New Delhi: There was little or no news on or around 4 November 2022 of a sessions court in Tapi District, Gujarat, having convicted and sentenced one Mohammed Aameen Anjum for offences under the Gujarat Animal Preservation Act of 1954.
This was the statute that had been amended in 2017 to permit the imposition of life imprisonment in cow slaughter cases and a sentence of up to 10 years for illegal transportation of cows.
It was at the end of January, when an unofficial translated copy of this judgement in English came to be circulated, that multiple news outlets carried the story.
What captured public attention was not so much the reasoning behind a long judgement that had sentenced a man to imprisonment for life, but on the remarkable observations that formed a sort of prologue to the order.
I need not repeat them here, as the headlines capture it all. “Religion is born out of Cow; Problems on Earth will be Solved the day Cow Slaughter is stopped: Gujarat Court” reported LiveLaw, and the story on NDTV ran with the headline, “Cow Dung Protects Houses from Atomic Radiation”.
These remarks attributed from the translated copy made the judgement an object of collective mirth, diverting our focus from the heart of the matter: that a man had been sentenced to life in prison for the crime of slaughtering an animal not by means of any evidence of such slaughter but leaps of logic scaffolded on presumptions in laws.
Building on analytical pieces like the one published by NewsClick, this piece takes a closer look at the judgement in Anjum’s case and argues that there may be some flaws in its reasoning. The bigger problem, though, is not the judgement but the potential that laws such as the 1954 statute can have to inflict injustice upon persons.
Mohammed Aameen Anjum’s Prosecution
The incident in question allegedly took place on the night of 18 July 2020, when a truck was halted by police for routine checking and it was found to be carrying 16 cows and bullocks.
The animals were tied in a narrow space without water or forage, or any medicine; subsequent inspections revealed that two of the animals were dead inside the truck. During this halt the driver, Anjum, allegedly escaped from the spot upon this discovery and fled into the night. He was arrested around 10 days later.
Anjum was prosecuted for various offences under state and central laws, the most serious of these being the violations of sections 5 and 6A of the 1954 Act, punished under section 8.
Since 2011, section 5 had made cow slaughter illegal, prohibiting any certificates permitting such slaughter from being issued. Where this was punished up to seven years in 2011, the 2017 amendment hiked the punishment clause in section 8(2) to permit a maximum of life imprisonment with a minimum of 10 years in prison for anyone found guilty of slaughtering a cow, or causing it to be slaughtered.
The 2011 amendment to the 1954 Act had inserted section 6A, which prohibited transporting cows for the purposes of slaughter, or with the knowledge that it was likely for the cow to be slaughtered.
Critical here was a presumption—a person found transporting a cow without a certificate from the government officer would be deemed as carrying it for slaughter “unless the contrary is proved thereto to the satisfaction of the concerned authority of officer”.
Since 2017, punishment for this illegal transportation under section 8(4) is a minimum of seven years in prison, with a possible maximum of 10 years.
There was no evidence to suggest that Anjum was the owner of the truck, or that he was in fact its driver at any point including that fateful night. The evidence against him was the testimony of the police officers who claimed to have halted the truck, the discovery of the animals inside the truck, and the circumstances in which they were found.
Supplemented by the presumption, and the language of the offence, this was enough to prosecute him and seek his imprisonment for life.
Verdict Of The Sessions Court
In the English translated copy of the judgement that I had read, there is a section after the paeans to cows and before the Court begins its analysis, where it is observed that “There is a big distance between ‘the accused has committed the crime’ and ‘the accused might have committed the crime’ and such long distance has to be crossed by the prosecution by producing unfailing evidence beyond doubt.”
The Court appears to have been untroubled by the failure to establish just who was the owner of the truck, by the suspicious circumstances of Anjum’s initial unsuccessful apprehension and later arrest, and by the total absence of any evidence as to just what was a truck with cattle doing on the road that night.
Possibly, because whatever might have been left of the ‘long distance’ that the prosecution had to cover on the basis of this material was being met by the presumption cast by section 6A, which was triggered by the discovery of cattle inside the truck without any certificate.
In the words of the presumption, the accused was deemed to have been carrying the cattle for purposes of slaughter—not with knowledge that slaughter was likely, but for the purpose of slaughter itself. The circumstances in which the cattle were found was given emphasis by the court, but it was, in fact, irrelevant; even the healthiest cattle transported without certificates or explanations would trigger the presumption.
On the basis of this combination of facts, circumstances, and presumptions, the case for illegal transportation was made out. And since the transportation had resulted in the death of two of the animals, it was established that the accused had “caused [them ]to be slaughtered”, satisfying the ingredients for punishing cow slaughter and imposing a life sentence on Anjum.
There are problems with statutes prohibiting slaughter of certain animals and not others. There are different problems with these statutes when they wish to pursue their objective of prohibiting slaughter not by means of robust checks, verifications etc. alone, but by inflicting the second-most serious punishment known to law.
The first problem is whether such punishments can be prescribed for such crimes. To which, the short answer is a resounding ‘yes’—the Supreme Court so far refusing to allow for judicial scrutiny of the proportionality of punishments—and the long answer is a ‘maybe’.
The second problem is one of fairness. If the statute is prescribing such severity, is it also providing a mechanism to minimise its inherent capacity to inflict injustice?
One mechanism to ensure fairness is to tightly define the offence which reduces the kind of activities which can be prosecuted as crimes to only the most serious, leaving the rest to civil penalties.
The other, more prominent measure, is by infusing relevant procedural guarantees, such as securing a presumption of innocence which, in the words of the sessions court in Anjum’s case, ensures a long distance is maintained between the suspicion that may accompany an initial arrest, from the conviction that must accompany a finding of guilt and a sentence to imprisonment for life.
The 1954 Act fails to provide any of these safeguards. Section 5 permits a possible life sentence on not only those who might slaughter cattle, but those who ‘cause’ such slaughter, without casting any limits on just how widely an ingenious police officer, prosecutor, or judge, may read the clause.
This breadth of the ‘act’ requirement in any offence of cow slaughter is accompanied by the statute conferring equally boundless terms on the ‘mental element’ that should accompany this act.
Crimes usually entail a combination of a physical act and a mental element accompanying this act. Every act of causing the death of another human being is not murder. It is murder only if it is committed with a particular mental element, such as being an intentional act to cause death, and negligent acts causing death are punished differently.
Looking at section 5, there is no clarity at all on the kind of mental element that would transform the act of causing a cow’s death to become slaughter, leaving open the obviously unjust possibility of treating all such acts as slaughter and meriting a possible life sentence.
Then, there is the presumption under section 6A, which deems any uncertified transportation of cattle to have been for purposes of slaughter. The court understood that this was in the nature of a rebuttable presumption, where an accused could lead evidence at trial to remove its operation.
Presumptions of fact are hardly unique in penal statutes, but simply because presumptions exist does not mean that each of them is legal, as was demonstrated in the separate opinion of Justice Gupte in the Maharashtra Beef Ban judgement of 2016.
I differ with his analytical framework to present a more simplified analysis here, in which three things matter in deciding the legality of presumption clauses: the distance which they invite the court to travel between facts in the chain of circumstances, the need for using a presumption to travel this distance, and the set of facts which must be established to trigger the presumption in question.
Out of these, the third is the most straightforward—the presumption does not operate automatically but must be preceded by the prosecution proving some foundational premises. For instance, without establishing that cattle were discovered as being transported without a certificate, no reliance on the presumption is possible.
This brings us to the other two, related, requirements.
Ordinarily, each party is required to prove its case before a court. But recognising that sometimes it would not be possible to lead evidence of all facts requiring to be proved, the law permits presumptions to bridge this gap.
To ensure that it does not prejudice the other side, the presumption can only bridge a small gap in the chain of circumstances being built, and not become the means to travel right from start to finish purely on the strength of presumption alone.
In criminal trials where the law recognises a handicap in favour of an accused person who is facing the might of the State by recognising the presumption of innocence and requiring that the state be put to a higher burden of establishing its facts, it is even more necessary to ensure that there is limited resort to presumptions.
The law demands that we must ask whether a presumption is necessary to establish the fact in question, and is this presumption achieving that objective fairly without unduly prejudicing the accused?
The section 6A presumption fails on both counts.
What is proscribed is transportation of cows for slaughter or knowledge that they will likely be slaughtered, and not mere illegal transportation of cows. There is no necessity for a presumption to establish this fact in issue, as it can be established by means of ordinary investigations.
Nor is this presumption meeting the task fairly. The offence is not punishing transportation of cows without proper authorisation per se where failure to show proper papers would fulfil the crime, but it is transporting cows for purposes of slaughter.
Mere failure to show papers cannot substitute actual evidence of such a purpose. There is simply too far a bridge between the fact and the ultimate hypothesis being proved—not every person transporting cattle without papers is doing so for purposes of slaughter to justify the presumption.
What is the outcome of such a regime of systematised injustice? It devolves power not to the court, but to the police and government authorities which can pick and choose which cases to prosecute by refusing certificates or refusing explanations. And, as the numbers consistently suggest, these persons are far more likely to be adult men from minority communities like Anjum.
Whichever cases the government does prosecute are almost certain to result in convictions. Not because there is an effective search for truth here, but because the law has been framed on terms such that there is hardly any distance to travel between finding facts justifying the initial suspicion to facts which can offer any conviction behind a verdict of guilt.
The prosecution and accused are both playing snakes and ladders, but the prosecution has a guarantee that it will always get the ladder taking it from five to 95.
Such a penal regime is unjustified, no matter what the ultimate objective.
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(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)