New Delhi: The Central government’s new notification has imposed a blanket prohibition on the slaughtering of cattle (cows, bulls, buffaloes, camels, heifers) brought from animal markets. Issued on May 23, the notification bans the sale of cattle for culling and also restrains sacrificing the animals for religious purposes.
The notification has engrafted new norms in accordance with the rule-making power of the Central government under the Prevention of Cruelty to Animals (PCA) Act. The new rules called the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017, therefore tend to put a full stop on the slaughtering of not just the cows but also other animals defined as ‘cattle’ under the Act.Environment Minister Harsh Vardhan described the move as “strengthening the hands of the government at the state level” to ensure prevention of cruelty to animals.
However, the attempt to strengthen the hands of the Central government at the state level is fraught with dangers to the federal structure envisaged under the Constitution, which has specifically demarcated the areas of jurisdiction for the two units of the federal democracy.
Entry 15 in the State List of the Seventh Schedule under the Constitution says that it is a state government which is empowered to make laws on “preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice.”
Besides, Article 243 also entitles a state government to delegate to panchayats and municipalities power to make regulations for animal husbandry, dairy, tanneries etc.
Therefore, the Modi government’s efforts to tighten slaughtering laws for cows and other ‘cattle’ have, perhaps, stepped into the State jurisdiction.
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The PCA Act is within the dominion of the Central government and the provisions made under it apply to the entire country. However, this authority with the Centre, ideally, cannot be used to usurp a State subject. When livestock has been put in the State List, there is a constitutional duty cast upon the Central government to make sure the wisdom of the state legislature prevails on such subjects.
But when the subjects are overlapping — animal cruelty and livestock, the situation becomes complex. For, a law made by the Central government on a subject apparently within its jurisdiction will not become bad on the face of it.
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The Centre can assert its authority to make laws on prevention of cruelty to the animals, which is in the List III. According to List III, Both Parliament and the state legislature have the concurrent authority to make laws on “prevention of cruelty to animals,” “protection of wild animals and birds,” “prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.” The Constitution, as well as a body of judicial precedents, have made it clear that a Central law will prevail over the state laws on the subjects mentioned under the List III, and hence, the new provisions in the PCA Act are not per se ultra vires.
Can states, such as Kerala and those in the north-east where beef and cattle meat are a staple diet, now choose to not implement the new law?
The provisions of the PCA Act are to be implemented ultimately by the state-level and district-level authorities. So, this move can definitely be frustrated in its implementation. There is legal recourse available too against the new law.
A state government can still go ahead and make its own law on ‘cattle’ under Entry 15 of the List II — something Tamil Nadu government had done when it wanted to overcome a prohibition under the PCA Act to use bulls in the traditional festival. However, since the new law could fall foul of the new provisions in the PCA Act, a presidential assent is a constitutional requirement.
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The Constitution lays down that where there is ‘repugnancy’ or ‘conflict’ between a Central law and a State law, the provisions of the Central law will prevail. However, if the State law obtains the President’s assent, it will prevail over the Central law. So, a state government will have to go to the President with a draft of the new law if it wishes to overcome the complete prohibition on slaughter of ‘cattle’ under the PCA Act.
Another remedy available to a state government is to challenge the new notification on the ground of legislative competence. A state government can move a constitutional court — a high court of competent jurisdiction or the Supreme Court — to challenge the validity of the new law. The state government will have to establish that the Centre’s move has disturbed the federal structure by impinging upon a subject completely within the jurisdiction of State. It will have to prove that the Central government has made the new law despite lacking the legislative power to do so.
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Given the nature of the legal recourse, it is certainly not going to be easy for a state government to nullify or undo the Central government’s new provisions but what should concern the latter is whether its populist move has strained the Centre-State relations and put in peril the sacrosanct federal balance.
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