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Madhya Pradesh's New Law On Cow Slaughter, Which Came Into Effect This Month, Raises Constitutional Questions. Legal Experts Tell Manjula Sen That Some Clauses Are More Stringent Than Those In Anti-terror Laws   |   Published 18.01.12, 12:00 AM

One man’s meat is another man’s poison. Or so stresses a new act passed by the Madhya Pradesh (MP) government, turning the spotlight on fundamental rights in the country. Legal experts believe that the law goes against the Consti-tution.

The avowed purpose of MP’s Gau-Vansh Vadh Pratishedh (Sanshodhan) Vidheyak or the amended Ban on Cow Slaughter Act — which received presidential assent in December and came into effect this month — is to make the provisions more “stringent”.

Accordingly, it raises the prison term for offenders from three to seven years; puts the burden of proof of innocence on the accused; arms police officers of the rank of head constable and above with the power of entry, inspection, search and seizure and to present the case in the court.

To pile on the pressure, the provisions of this act apply to anyone transporting “any cow progeny” or offering to transport or acting on the knowledge that it could be slaughtered. Not just the slaughter of cows, but storing beef too would invite penalty.

“The whole burden of proof clause goes against the fundamental tenet of criminal law — you are innocent until proven guilty,” says Vijay Hiremath, a Mumbai-based advocate with the Centre for Access to Rights. In criminal law, the onus is on the state to prove the accused is guilty. By making the defence having to prove their innocence, the cow slaughter law is put on par with anti-terror laws.

The law affects a wide swathe of people because beef is consumed by many communities including Christians, Muslims, several tribes and sections within the Hindu community. Of course, MP is not the only state to have a cow slaughter ban. Other states across the country have their own laws (see box). But the experts stress that the MP law is “draconian”.

For instance, the search-and-seize proviso in the law empowers the competent authority (for instance, a head constable) to “enter and inspect any premises within the local limits of his jurisdiction where he has reasons to believe that an offence under this act has been, is being, or is likely to be committed” and take “necessary action”. This means that on mere suspicion, someone can be accused, arrested and termed guilty until proven innocent.

“This is a draconian law. What was the need to give such sweeping, unbridled powers to a head constable? A local constable of any police chowky can now enter your house, restaurant, kitchen or hotel on the basis of mere suspicion,” says S. Japhet, director, Centre for the Study of Social Exclusion and Inclusive Policy (CSSIEP), National Law School of India University, Bangalore.

Hiremath points out that even in laws against terrorism, there are built-in protections. The search has to be done by an office of the rank of a deputy commissioner of police or above, he adds.

A law which first arrests on suspicion and then asks the accused to prove their innocence also increases the chances of jail time. “The suspicion element added to the law means that the accused is being punished from day one, without trial or course of remedy to law,” says Nadim Nikhat, senior research fellow, CSSIEP in Bangalore.

The police are also protected by the “good faith” principle which assumes that all official duties are being carried out without prejudice. But how is one to distinguish between different kinds of red meat? Nikhat points out that the municipal laboratories in Madhya Pradesh are not equipped to do tests that can distinguish between cow and buffalo meat.

“The law has potential for a lot of misuse. It is targeted towards communities that eat beef. A large number of tribal people eat beef, which is also the cheapest meat available. This is a way to either ‘Hinduise’ communities or tell them to stay away from the state,” says advocate Gautam Bandopadhyay, a member of the Nadi Ghati Morcha in Chhatisgarh that neighbours MP and has a large tribal population, including beef eaters.

“We are a democratic country, but we are being told what to eat, what to see, what to do. Individual ways are being banned and that is of concern,” says Bandopadhyay. Further, the law is tantamount to “a ban to prevent people from certain states to come into yours, or to keep people of one kind out,” says Hiremath, pointing out that it restricts the freedom of movement as guaranteed by Article 19 of the Constitution.

“We are not a declared Hindu nation, we are secular. Such a law goes against the grain of the Constitution,” says Hiremath, listing the fundamental rights that he feels the law contravenes: equality, non-discrimination on the basis of religion, race, etc., freedom of choice (including that of speech and expression, and movement throughout India), right to life and personal liberty.

Cow protection has always been an emotive issue — starting right from the highly-charged run-up to the country’s Independence. The Directive Principles of the Indian Constitution enshrine the protection of cows, calves and other milch and draught cattle. But even M.K. Gandhi, a staunch cow-protector, was not in favour of a ban.

“Gandhi was as uncompromising towards cow slaughter as against any legal and constitutional ban on it. His contention was that the cow could be saved much more effectively in a climate of mutual accommodation and goodwill rather than through coercive enforcement,” notes Salil Misra, professor of history at Ambedkar University, Delhi.

The central government which questioned raising the quantum of maximum sentence from three to seven years in MP’s law did not go into the fundamental issues of search-and-seizure on suspicion, unbridled power and shifting the onus of proof of innocence.

“The constitutionality of this law should be challenged,” says Hiremath unequivocally.

Holy cow

Like MP, other BJP-ruled states such as Gujarat have banned cow slaughter and the sale, purchase and transportation of beef. The Karnataka Prevention of Slaughter and Preservation of Cattle Bill, 2010, is awaiting the Governor’s assent. The bill too includes the search-and-seizure clause, but it is vested with policemen above the rank of sub-inspector.

Tamil Nadu bans cow slaughter but not the consumption of beef.

In Punjab and Haryana, cow slaughter is a criminal offence. The sale of beef is banned but consumption is not penalised.

Maharashtra bans the killing of cows but bullocks, female buffaloes and calves can be killed on getting a fit-for-slaughter certificate.

West Bengal’s Animal Slaughter Control Act bans the slaughter of healthy cows with offences carrying jail terms of up to six months. There is no ban on the consumption of beef or slaughter if carried out in government or municipal slaughterhouses after a certificate from a veterinarian. The act exempts slaughter for religious purposes. The Supreme Court has said however that such exclusions are illegal.

Kerala, with a vast beef eating population, does not have a ban. Beef is sold at meat shops. None of the northeastern states has a ban on cow slaughter and beef is consumed widely.

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