Citizens ought to be concerned about the liberal use of criminal law to regulate their innocuous activities and the careless prescription of mandatory imprisonment.
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THE Karnataka government’s measures to curb cattle slaughter have been contentious, with farmers and the finance department flagging a variety of issues. It all began with the introduction of the Karnataka Prevention of Slaughter and Preservation of Cattle Bill, 2020. When its efforts to get the Bill passed in the Legislative Council failed, the government promulgated an ordinance in January 2021. Subsequently, the ordinance was replaced by the Karnataka Prevention of Slaughter and Preservation of Cattle Act, 2020.
Among other things, the Act prohibits the slaughter of cows, calves and bulls of all ages, and buffalos below the age of thirteen. Also, Section 5 of the Act criminalises transportation of cattle for slaughter. When the constitutionality of the Act was challenged before the Karnataka High Court, the petitioners pointed out that there was a danger of Section 5 being misused against innocent farmers.
On January 20, last year, the Court refrained from staying the operation of the provision as the Advocate General assured the Court that no coercive action would be taken under Section 5 until detailed rules on transportation were framed. On April 18, the AG urged the Court to allow the government to enforce Section 5 as the government had framed the Karnataka Prevention of Slaughter and Preservation of Cattle (Transportation of cattle) Rules, 2021.
An important facet of proportionality is that a restriction imposed in furtherance of a legitimate goal ought to be the least restrictive option among alternatives. The goals of preventing slaughter and cruelty to cattle do not require such intrusive restrictions.
A close reading of the Rules and the Act exposes a string of flaws, including constitutional infirmities. This piece does not exhaustively analyse all the infirmities. Instead, it is confined to the problematic provisions pertaining to cattle transportation and the penal provisions.
Onerous restrictions
Section 5 of the Act criminalises the acts of transporting cattle for slaughter and ‘causing’ cattle to be transported for slaughter. It also stipulates that transporting cattle for the purpose of agriculture or animal husbandry shall not be an offence under this provision if the rules on cattle transportation are followed. Rule 3 of the Karnataka Prevention of Slaughter and Preservation of Cattle (Transportation of cattle) Rules, 2021 requires every person who intends to transport cattle ‘in any form’ to obtain a Transport Certificate from the jurisdictional Veterinary Officer, and possess an Ownership Document. According to Rule 4, a person ‘may be’ exempted from obtaining a Transport Certificate if not more than 2 cattle and their calves are sought to be transported within an area of 15 kilometres.
In the event of a medical emergency, the owner of the cattle is required to approach the ‘nearest’ veterinary doctor with the Ownership Document. In case the doctor opines that the cattle ought to be taken elsewhere for treatment, he may refer the case to the nearest polyclinic or referral hospital. However, the owner has to submit a statement to the Veterinary Officer within two weeks, explaining the emergency and why the Transport Certificate could not be obtained earlier. Furthermore, the Rules stipulate that cattle shall be transported only in a vehicle that is ‘specially licensed’ by Regional Transport Authority and adheres to the specifications prescribed.
Drastic penalties
Contravention of any of these rules is punishable with imprisonment for at least three years and may extend upto five years. These onerous restrictions coupled with the draconian penalty are akin to a sword over farmers’ heads. Violating some of the rules may not harm anyone or involve reckless behaviour. Yet, the offender runs the risk of being imprisoned for three to five years. For instance, a farmer who transported cattle without obtaining a Transport Certificate may be jailed for at least three years though his act did not harm anyone. In contrast, people convicted for theft, causing death by negligence or even certain forms of culpable homicide may not be imprisoned as the IPC does not prescribe mandatory imprisonment as punishment for these offences.
Confiscating a person’s property without following due process is a grave violation of the constitutional right to property and the fundamental right to freedom of occupation.
Ownership and rearing of cattle are not inconsequential activities which may be regulated sloppily. These activities concern the freedom of occupation and the right to livelihood enshrined in the Constitution. Therefore, any restriction on ownership and rearing of cattle ought to be reasonable and proportional. The Act and the Rules view every instance of cattle transportation with suspicion. Instead of merely empowering the authorities to seek details when they receive credible information about stolen cattle being transported or other illegalities, this intrusive law entrenches the State’s grip over citizens even in innocuous activities like owning and rearing cattle.
An important facet of proportionality is that a restriction imposed in furtherance of a legitimate goal ought to be the least restrictive option among alternatives. The goals of preventing slaughter and cruelty to cattle do not require such intrusive restrictions. Curbing cattle owners’ freedom to take their cattle to a veterinary hospital of their choice, compelling them to seek the State’s approval before transporting cattle for legitimate purposes, etc. are certainly not the least restrictive methods of preventing slaughter and cruelty. It is perhaps pertinent to ask if the government has ensured that there is a well-equipped veterinary hospital with a doctor in the radius of 15 kilometres of every village. Similarly, has the government ensured that every village has a ‘specially licensed vehicle’ (as mandated by the Rules) to transport cattle? It is irrational to impose stringent restrictions on rearing cattle without adequate support from the State’s agencies.
Arbitrary powers of confiscation
Section 8 of the Act empowers the Sub-Divisional Magistrate to confiscate and sell premises and materials used or ‘intended to be used’ for slaughter. Section 8(5) declares that the power of confiscation may be exercised ‘whether prosecution is instituted for the offence or not’(sic). Conferring such wide and arbitrary powers on an executive magistrate is deplorable, especially when the accused may not even have been pronounced guilty by a court. These provisions enable the State to deprive a person of his property merely because an executive magistrate believes the property has been used or even intended to be used for slaughter.
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Confiscating a person’s property without following due process is a grave violation of the constitutional right to property and the fundamental right to freedom of occupation. It is of little consolation that if the confiscation is set aside by a court, the owner will be entitled to the proceeds of the auction.
The Act and the Rules reflect the State’s apathy towards fundamental rights and constitutional principles.
Section 11 of the Act contains a peculiar provision which ousts the jurisdiction of ‘any court or authority’, except the Sub-Divisional Magistrate and the Sessions Court, in matters pertaining to custody and disposal of property used for or intended to be used for slaughter. Such a restriction falls foul of constitutional provisions that recognize the Supreme Court and the High Courts’ power of judicial review.
The Act and the Rules reflect the State’s apathy towards fundamental rights and constitutional principles. Citizens ought to be concerned about the liberal use of criminal law to regulate their innocuous activities and the careless prescription of mandatory imprisonment. It is incumbent upon the High Court to step in and prevent such laws from playing havoc with constitutional rights.
