ANNEX II (12)
(Reply of Dr. Pratibha D. Upasani, Judge, Bombay High Court)
DR. JUSTICE PRATIBHA D. UPASANI MARCH 5, 2002
Respected Hon’ble Justice
Mr. Ranganath Misra,
It gives me great pleasure to express my views and give my opinion by answering the Questionnaire sent by the National Commission on Cattle. Copy of this Questionnaire was circulated to me by the Additional Registrar of my High Court, as per the directions of the Hon’ble Chief Justice.
It also gives me great pleasure in sending you a copy of my dissertation, ‘The Image of Cow as Vedic Symbol’. I request you to kindly spare some time from your busy schedule to go through the said disseration written by me and the poem trying to explain the existence of Thirty – Three crore Gods in the body of a cow.
Being a Hindu, slaughtering of cow and its progeny is a topic, which is very sensitive to me. It does hurt my mind and the movement of prohibition of slaughtering of cow and its progeny is the cause which is dear to my heart.
However, being a Sitting High Court Judge, I will be discharging my duties as a High Court Judge only, with the four corners of law and as per the mandate of the Constitution of India. I am therefore clarifying that the views expressed and the opinion given by way of answering this Questionnaire are purely of a personal nature and the views are expressed as a common man professing Hindu Religion and citizen of this Country.
With warm regards,
Q. 1. What is your opinion about making of laws on Prohibition of slaughter of Cow and its progeny as Central Law by Parliament? Whether they would be covered by any item in Central List or Concurrent list? If not, whether you would opt for amendment of the Constitution, taking this subject in Central or Concurrent List?
Ans. Yes. I am of the opinion that there should be a Central Law by Parliament on prohibition of slaughter of Cow and its progeny. The only Central Legislation in the field of animals – excluding wild life – is the Prevention of Cruelty to Animals Act, 1960. However, as this Act permits killing of animals of food, it is not of much relevance to the issue of ban on Cow slaughter.
The issue of Cow protection forms part of the Entry No. 15 in List II – State List under Schedule VII of the Constitution of India, which is titled as, “ Preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice”. The other relevant provision is Article 48 of the Constitution under the Chapter of Directive Principles of State Policy, which states as follows:
“The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle”.
Thus, in Article 48, there is mention of prohibition of slaughter of cows and calves and other milch and draught cattle. The Article is in Part IV of the Constitution. As the matter is covered under Directive Principles of State Policy, which are not enforceable, enactment of necessary legislation by the States also cannot be enforced as Directive Principles are not justiciable. Since Entry No. 15 happens to be in the State List, the Centre has not enacted any law for preservation and prevention of cattle including cows, the only exception being Prevention of Cruelty to Animals Act, 1960 and Wild Life Protection Act. Thus, there is no specific law enacted by Centre preventing slaughter of cows and its progeny.
It has to be mentioned that, as on date, there is a total prohibition of slaughter of cows and cow family under the State Legislations of State of Rajasthan, Punjab, Haryana, Himachal Pradesh, Delhi and Jammu & Kashmir. Only States of West Bengal and Kerala do not have the State Law prohibiting slaughter of cow. The laws enacted by State of Bihar, Madhya Pradesh and Gujarat were struck down as they were challenged. As far as State of Gujarat is concerned, the matter is pending in the Supreme Court. Maharashtra has passed a legislation imposing total ban on slaughter of entire cow family. So far, the Bill has not received the assent of the President, in view of these legal precedents. The State of Uttar Pradesh had enacted a law during the first regime of Shri Kalyan Singh, which was sent for the assent of the President, however, in view of the dismissal of Kalyan Singh Government in the wake of Babri Masjid demolition, the Bill has lapsed.
Thus, it can be said that the legislative will of 11 major States in the Country, consisting of 65% of land area and population, is that there ought to be a law prohibiting slaughter of entire cow progeny. This itself is a major reason as to why the Centre should enact a Central law on this subject, which will have uniform application throughout the country and which will result in saving of precious cattle wealth of the nation.
For this purpose, the Constitution needs to be amended to bring the relevant entry into the ‘Concurrent list’, so that the Parliament gets power to legislate on this subject. Once this power is vested in the Parliament, law can be enacted with a simple majority, though this appears to be a rather difficult task, considering the present political scenario in the Country.
Q.2) Whether Cow Slaughter Prohibition should be included in the Fundamental Rights in the Constitution?
Ans. To include cow slaughter prohibition in the fundamental rights may not be feasible since our Constitution, as declared in the Preamble, is a secular Constitution, which is its basic feature. In India, we indeed see unity in diversity and diversity in unity, and the population of India consists of persons belonging to different religions. Moreover, prevention of cow slaughter can be achieved by passing appropriate Central and State Legislations, and therefore, it may not be necessary to include cow slaughter prohibition as a fundamental right in the Constitution. Since India is not a ‘Hindu Rashtra’, but a secular nation, such a move may violate the basic structure of the Constitution.
Q.3) Whether you want a review of the 1958 Mohd. Hanif Qureshi vs. State of Bihar (AIR 1958 SC 731) judgement of the Supreme Court holding that a butcher has got a fundamental right of his trade or business of slaughter of uneconomic or disabled bulls or bullocks?
Ans. Yes. In my opinion, it would be desirable to have the review of the Judgment of the Supreme Court reported in AIR 1958 SC 731, Mohd. Hanif Qureshi vs. State of Bihar.
In this five Judges’ Bench Judgment, the Court held that a total ban of the slaughter of bulls and bullocks who have ceased to remain draught animal puts unreasonable restriction on a citizens’ fundamental right to carry on his trade and business. This Judgment was delivered more than 40 years ago, in the context of the situation, which was then prevailing, and it is because of this Judgement that there is no total ban on the slaughter of cow’s progeny, called bulls and bullocks. Whenever, such a ban is put by a State enactment, the Courts strike it down as unreasonable, per se, without investigating whether the impugned ban affects the total or partial business of a citizen, and if it is partial, whether it can be treated as unreasonable. This approach may not be correct, as it is a well settled position in law that the test of reasonableness should include the considerations such as the nature of the right infringed, urgency of the evil sought to be remedies, disproportion of the imposition and also the nature of the business affected.
Some aspects, on which the decision given in Mohd. Hanif Qureshi vs. State of Bihar (Supra) can be distinguished, are :-
(1) One of the factors, which weighed with the Court, is that the Petitioners’ trade in that case was solely dependent on beef hides and other accessories, which could be obtained by the slaughter of bulls and bullocks.
(2) The above decision, so also, the other decisions which followed, namely, Abdul Hakim Quraishi & Ors. vs State of Bihar (AIR 1962 S.C. 448), Hashmatullah vs. State of M.P. (1996) 4 SCC 391 and Mohd. Faruk vs. State of M.P. (1969) 1 SEC 853, have taken into account only the utilitarian aspects involved in the disputes.
From times immemorial, our nation has developed a culture of non-violence and tendency to treat all living creature on the footing of equality with human beings. So far as cow and her progeny are concerned, they have acquired a special place in this treatment, as their economic and social usefulness through the history of our nation has been unique. It is for this reason that the grateful nation has gone to the extent of bestowing divinity in cow, and it is only for this reason that Article 48 of the Constitution has envisaged an absolute ban on the slaughter of cow and calves.
As far as the utilitarian aspect of Mod. Hanif’s case (Supra) is concerned, it has to be said that bulls and bullock are not useless to the Society because till the end of their lives they do yield their excreta in form of urine and dung which are both extremely useful for bio-gas and manure. After their death also, they supply hide and other accessories. Therefore, to call them ‘useless’ is totally devoid of reality. If the expenses fully covered by the return which they give, at the most, it can be said that they become ‘less useful’.
It is indeed utter selfishness and too materialistic approach to say that bulls and bullocks become useless once they become old. Even public servant get pension for their past services and we do take care of our old incapacitated parent. This is our culture to show gratitude.
Those who oppose the total ban on the slaughter of the cow and her progeny also should be made aware of Article 51A of the Constitution of India as found in Clauses (f), (g) and (h), which provide that it shall be the duty of every citizen of India,
(f) to value and preserve the rich heritage of our composite culture.
(g) to have compassion for living creatures and
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform.
Therefore, Mohd. Hanif’s Judgment (Supra) is required to be reviewed, which is half a century old. Since then, many important and revealing researchers are made in the field of bio-gas energy and importance of organic manure. Scientific research has even proved that cow milk, ghee, cow dung, cow urine and curds from cow milk are useful to prevent adverse effects of radiation from atomic energy. This has been proved by researchers in Japan where children born after Second World War had genetic defects because of the dropping of the atom bomb on Hiroshima and Nagasaki. By using them, Japanese saved the next generation. It has been proved since then that the use of cow milk and curds has prevented the adverse effects of radiation. It has also been proved that the butter milk made out of cow’s milk reduces the adverse effects of narcotic drugs like ganja, tobacco, heroin, smack and that, regular consumption of such butter milk goes a long way in rehabilitating the addict and that, his desire to consume the narcotic goes on reducing slowly.
It is also proved by research that the smoke which comes out of the Yadnay, in which ghee made out of cow milk has been poured, reduces the environmental pollution and helps in the plugging the holes of ozone layer. It has also been proved that the cow dung and cow urine work as the best manure and when it has been used along with honey, jaggery and water in the right proportions, yield of fruits, vegetables and grains is increased manifold. There is no need of giving urea at all because cow urine contains Nitrogen, Potassium, slat, Phosphate and uric acid. This has been proved by the Agricultural University at Parbhani in Maharashtra that the utility is 40% more. Therefore, pesticides have to be banned and cow dung and cow urine has to be used as a natural manure.
Now that the Hon’ble Justice Venkatachalyya Commission has been appointed to have a look of the working of the Constitution for last 50 years, and find out those provisions which require rethinking and review, the best thing would be to put up before the Parliament this conflict which is going on for the last 50 years between peoples’ will and the constitutional limitation.
Q.4) Please give reasons why the Report of the Sardar Datar Singh Committee 1947-48 to prohibit slaughter of cow and its progeny completed within two years was not included in the Constitution?
Ans. I am not aware of the report of Sardar Datar Singh, and hence, am unable to give an answer to this question.
Q.5) Whether the Central Government or the Prime Minister gave an assurance to Acharya Vinoba Bhave that cow slaughter prohibition would be completely legislated and implemented throughout India?
Ans. Yes. Such an assurance was indeed given to Acharya Vinoba Bhave, who was a great animal lover and crusader fighting against slaughter of cows.
Q.6) What steps you have taken in pursuance of the assurance, if any, given by Mrs. Indira Gandhi?
Ans. (Question is not very clear). Mrs. Indira Gandhi, while addressing at a Conference in Nairobi in August, 1981 had glorified the animal wealth in India and had described the cattle population as source of energy. Draught animals indeed cut down expenses on transportation.
Q.7) How many private Members introduced Bills or Resolutions in the Lok Sabha or Rajya Sabha for the prohibition of the slaughter of the Cow and its progeny since 1950 and what were the fate of them?
Ans. There were many private Members’ Bills moved in the Lok Sabha and Rajya Sabha for the prohibition of the slaughter of the cow and its progeny, however, the fate of all of them was same, namely, they either lapsed or they could not be passed. Justice Mr. G.M. Lodha had also introduced such a Bill for total ban on cow-slaughter.
Q.8) Whether the Govt. of India gave assurance to the 1967 Committee of Govt. having Puri Sankarachararji, Guruji and many others like D.P.Mishra, Shri Charan Singh, etc. that they have to suggest methods for implementing the principles of complete prohibition of the slaughter of the cow and its progeny in India?
Ans. I am aware that such an assurance was given when Shankaracharyaji announced fast unto death, but I am not aware whether any suggestions for implementing the principles of complete prohibition of the slaughter of the cow and its progeny in India, were actually given or not.
Q.9) What is the number of slaughter houses – illegal and legal, mechanical or indigenous in India?
Ans. As per my information and knowledge, there are approximately more than about 50,000 illegal and legal, mechanical or indigenous slaughter houses. Al – Kabeer in Andhra Pradesh is a highly sophisticated, mechanised and notorious slaughter house where thousands of animals are killed every day.
Q.10) Whether the Municipal Laws or State Laws prohibit or regulate construction of slaughter houses and, if so, give the details of each State.
Ans. There are State Laws and Municipal Laws to regulate construction of slaughter houses, for example, there is Goa, Daman and Diu Prevention of Cow Slaughter Act, 1978, there is Delhi Municipal Corporation Act, 1957, Bombay Animal Preservation Act, 1954 as applied to Gujarat, Punjab Prohibition of Cow Slaughter Act 1955 (applicable to State of Haryana), Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964, etc. Almost all these acts lay down rules and guidelines prohibiting slaughter of cow and regulating the slaughter procedure for permissible animals, inspection by competent authorities, power of Veterinary Officer of inspection, etc. and penalties for breach are provided thereunder. However, it is the sad state of affairs that these rules are observed more in breach. The slaughter houses are all unhygienic, including the one which is situated at Hyderabad (Al Kabir). The situation which was prevailing in the Delhi slaughterhouse is well known and became the talk of the entire nation. There is corruption all over, which goes on with the connivance of the municipal officers, staff of the municipality and staff of the slaughter houses.
Q. 11) What are the existing cow slaughter prohibition laws in India, Central as well as State ?
Ans. This discussion has already come in answer to Question No. (1). There is no Central Law prohibiting cow slaughter. However, almost all the states have passed such a legislation, except the States of West Bengal and Kerala.
Q. 12) Which of the States permit cow slaughter completely and which partially? Give details.
Ans. States of Kerala and West Bengal permit cow slaughter completely. In other States, cow slaughter is prohibited, cow’s progeny like bulls and bullocks are not protected. Thus, protection is only partial.
Q. 13) What is the impact of the Ashutosh Lahiri and others vs. State of West Bengal (AIR 1995 SC 464) Supreme Court Judgement declaring Govt. of Bengal’s Notification permitting Cow Slaughter during Bakri-Id unconstitutional?
Ans. In the case of State of West Bengal v. Ashutosh Lahiri reported in A.I.R. 1995 S.C. 464, Hon’ble Mr. Justice Majumdar, writing for the Bench, held as follows:
“….In view of this settled legal position, it becomes obvious that there is no fundamental right of a Muslim to insist on slaughter of healthy cow on Bakri-Id day, it cannot be a valid ground for exemption by the State under S.12 which would in turn enable slaughtering of such cows on Bakri-Id”.
The brief history leading to this landmark Judgment of the Supreme Court while dealing with the subject of cow slaughter, can be given as follows:-
The West Bengal Animal Slaughter Control Act, 1950 permitted slaughter of cows on Bakri-Id day for religious purposes under Section 12 of the Act. This was challenged before the Calcutta High court in the year 1971 and the Calcutta High Court ruled in August, 1982 that this provision was ultravires the Constitution. The State of West Bengal and various Muslim organizations / individuals went in appeal to the Supreme Court and obtained a stay on 9th September, 1983. Thus, slaughter of thousands of healthy and young cows continued on Bakri-Id day every year.
The appeal (State of West Bengal v. Ashutosh Lahiri) came up for hearing in the Supreme Court due to concerted efforts by Akhil Bharat Krishi Goseva Sangh in the year 1994 and the Supreme Court finally struck down the provision, holding that sacrifice of cows as a religious necessity for Bakri-Id, could not be proved. This case has settled, once and for all, that cow slaughter for religious purposes cannot be permitted. This case also highlights the irreparable loss arising from delays in judicial process because what was desired to be rectified in the year 1971 was ultimately rectified in the year 1994 and for long 23 years, the destruction of lakhs of young, healthy female cows and further destruction of millions of the progeny that would have ensued from the cows that were killed, went unchecked.
Even the Allahabad High Court has held in Mohd. Habib & Ors. V. State of U.P. & Ors. (Writ Petition 38469 of 1994) that it is not anybody’s fundamental right to take life and kill animals, and the Constitution of India does not permit this. The last para of the Judgement reads as follows:
“The Court is of the view that the Constitution of India does not permit any citizen of claim that it is his fundamental right to take life and kill animals. A butcher may have his profession, but he cannot claim it as a fundamental right by the Constitution. Otherwise, it will be a negation of the tenets of our Constitution. The Constitution of India has a Chapter on Fundamental Duties. This is Chapter IV-A. Article 51A(g) ordains “compassion for living creatures”.
Thus, the Court is unable to persuade itself that butchery as a profession, can be claimed as fundamental right of a citizen. That a butcher may slaughter and make a business of it is one aspect of the matter, but, the State can regulate this business“.
Q.14) Whether the Supreme Court in 1994 has laid down that under the Muslim law and their religion, there is no compulsion for doing sacrifices of cow on Bakri-Id? Give details.
Ans. Yes. As discussed in answer to Question No. 13.
Q. 15) Please mention the political parties who are in support of prohibition of cow slaughter and its progeny. Please mention who are against it.
Ans. Bharatiya Janata Party is one of the parties which is in support of the cow slaughter and its progeny while the Marxist (Communist) parties are not in favour of it. The Muslim League also is not in favour of ban on cow-slaughter. There are other so-called `Secular’ parties who do not support it.
Q. 16) Did Shri Vasant Sathe on behalf of All India Congress Party give a speech in Lok Sabha in 1990 supporting cow slaughter prohibition completely and said that it was the official policy of the Congress?
Ans. Yes. Shri Vasant Sathe on behalf of All India Congress Party while giving speech in Lok Sabha in 1990 did support cow slaughter prohibition completely and did say that it was the official policy of the Congress.
Q. 17) Is it a fact that the cow slaughter complete Prohibition Bill of private member Justice Guman Mal Lodha in 1990 was supported by the majority of members as per electronic display but immediately after voting, it was defeated by permitting correction of voting originally given by changing in slip voting by hand?
Ans. I am not aware.
Q. 18) Which are the countries you have heard in which there is prohibition of slaughter of cows?
Ans. Syria, Tripoli, Saudi Arabia and Turkey are the countries in which there is prohibition of slaughter of cows.
Q. 19) Who were the Muslim or Mughal Emperors who prohibited the cow slaughter during their reign and in which regions?
Ans. Akbar, Jehjangir, Ahmed Shah, Nawab Hyder Ali of Mysore, these are the names of some of the Muslim/Mughal emperors who prohibited the cows slaughter during their reign in the territories where they ruled.
Q. 20) Who were the great men in India who started the cow slaughter prohibition movement in India?
Ans. Bal Gangadhar Tilak, Mahatma Gandhi, Vinoba Bhave, Dr. Rajenmdra Prasad, Pandit Madan Mohan Malvia were the great men in India who started Cow Slaughter Prohibition Movement in India.
Q. 21) Whether the export or import of beef is prohibited in India?
Ans. No. But there should be a ban on it in my opinion. After `Al Kabeer’ was opened in A.P., it had disastrous consequences. Price of milk soared, cattle became scarce, 3,000,00 women who were earning their livelihood by selling dried cow-dung for fuel lost it and people then started cutting trees for using wood as Fuel.
Q. 22) Is it a fact that, by using cow dung and urine for organic manure and medicines or pesticides, ailing bullocks or bulls become economically viable?
Ans. In my opinion, yes. Cow dung and cow urine have immense medicinal value. It has also been proved that, that is the best manure for infertile land and in fact, helps to increase the yield of fruits, vegetables and grains in manifolds. This aspect I have already discussed while giving answer to Question No. 3. Bullocks have been the backbone of our Agrarian economy.
Organic farming through “dung revolution” is the best medium for promoting environmental protection and animal welfare in the country. The protection of cow and cow progeny in fact is not only a religious issue, but is economic issue as well. The importance of these animals and their dung and their places in the ever-rotating cycle of Jana-Raksha, Bhu-Raksha, Van-Raksha, Pashu-Raksha, has to be kept in mind for sustainable agriculture and overall sustainable economic development, our cattle wealth is very very precious. The dung meets our fuel-need as well as our manure-need. It helps in growing cheap yet nutritious food grains. It retains and enriches the fertility of our soil and helps in maintaining ecological balance by avoiding use of chemical fertilizers and poisonous pesticides.
The term “cows” used in Article 48 of the Constitution is in plural and logically, it should mean and include, “cow and its progeny”, meaning thereby, that the cow and its entire progeny including bulls and bullocks. The word ‘cow’ is derived from Sanskrit word Gau, and the plural of the word Gau is Gawah. According to the Sanskrit Dictionary, the word ‘cows’ means and includes bulls and bullocks too. In Vedic literature, the word Aghnya (inviolable) is used for cow.
Recently, I learnt that India had a plan of importing cow dung from Holland. It is a crazy idea for India to be the land of the holy cow and yet import cow dung from a foreign country. It is forgotten that, apart from production of milk by the cow, the bulls of good qualities like Khillar, Ongole, Kankarej, Hallikar can be used for good progeny of the Cow. India being mainly an agricultural country, even today, 80% work in fields is done by bullocks and it is one major village transport source. This avoids air pollution and drain on energy (electric) petrol source – thus, saving foreign exchange. There are many preparations known to an Indian farmer like “Amrit Pani” to enrich the soil. Amrit Pani is the combination of ghee of cow milk, honey, cow dung and fresh water in the right proportion. With this treatment of Amrit Pani, the earthworm population of the soil increases within 15 days and nothing is to be added by purchasing from market like fertilizers and pesticides. When the crops grow, the same leaves. The farmer can have the cow shed near the farm and allow the urine and dung to accumulate in a drum or cement wall and use it for spraying.
The use of cow dung for bio-gas purpose is immense. The bio-gas plant is a must for every Panjarapole, dairy farm, composite farm and cattle stock.
I have already highlighted the usefulness of dung and urine of cows/bulls for medicinal purposes for reha bilitation of those who are addicted to narcotics and even curing those who are afflicted with radiation, while giving answer to Question No. 3. In this way, even the ailing and old bullocks and bulls can become economically viable and that is why the saying -
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Q. 23) How many people have sacrificed their lives for cow slaughter prohibition? Mention their names and details?
Ans. I can give the names of at least three persons who became martyrs, who sacrificed their lives for cow slaughter prohibition, though I am sure there must be many more unsung heroes and heroines.
(1) Shri Haribhai from Ahmedabad:
Shri Haribhai, along with other workers was checking the trucks and lorries transporting the cattle taken illegally to the slaughter houses at Ahmedabad. Suddenly, one day some of the illegal traders came in rickshaws and on scooters with deadly weapons and attacked Shri Haribhai and his workers. Shri Haribhai was killed on the spot in this attack. The irony is that this cruel act took place on the auspicious Mahavir Jayanti Day.
(2) Shri Jumanlal Asopa:
Shri Jumanlal Asopa was keenly interested in the protection of cows. He was associated with number of animal welfare organizations. During famine, he played active role in saving cattle at the cost of his life. He was shot dead on 7th November, 1966 when the police fired at the public at New Delhi, when lakhs of Sadhus and other animal-lovers thronged the Parliament, demanding prohibition of cow slaughter.
(3) Sm,t. Geetaben:
Smt. Geetaben was associated with Shri Akhil Bharatiya Moosa Nivaran Sangh for more than 10 years. She had rescued lakhs and lakhs of cattle, which were taken for illegal slaughter. On 27th August, 1993, Geetaben rescued the cows and calves which were being taken away to the slaughter houses. While she was taking them to the Ahmedabad Panjarapole Society, she was killed near Ombavadi circle by the cruel hands of the butchers.
Q. 24) Should cow slaughter be totally banned or regulated, allowing killing of selected animals? Which type of cattle should be permitted to be eliminated?
Ans. In my opinion, cow slaughter should be totally banned. If at all any killing is to be permitted, then it should be only with respect to the terminally ill, sick, and suffering cattle. In other words, these cattle should be put to sleep in a humane way be practicing mercy killing to save them from their sufferings. In no other case, cow or its progeny be permitted to be killed, and by cow, I mean not only female cows, but also bulls and bullocks.
Q. 25) Examine the correctness of the opinion that hide from slaughtered cattle is superior in quality to hide collected from otherwise dead cattle.
Ans. This might be true. It is logical and reasonable to think that the hide/skin from a slaughtered animal, who is otherwise healthy may be superior tin quality than the one collected from a sick or aged dead cattle. Of course, that should not be the reason, even if true, for permitting killing of the cattle. Instead, some research should be done to improve the quality of the hide, which is that of a dead cattle and which can be put to use.
Q. 26) Should not punishment for violation of laws under Act be more heavy than what the existing statutes provide?
Ans. Yes. The punishment for violation of the laws under the Acts should be more stringent because as such, the punishment which is provided, is inadequate and serves no purpose.
Under the Indian Penal Code, the relevant Sections are Sections 428 and 429. Section 428 lays down that mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards, is punishable with imprisonment of either description for a term which may extent to two years, or with fine, or with both. The mandate of Section 429 is that, whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upward, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. However, experience has revealed that there is hardly any conviction under these sections and the person is let off very leniently.
Even under the Prevention of Cruelty to Animals Act, sub-clauses (i) (l) (m) and (o) of Section 11 and Section 12 only contain offences, which are cognizable. The punishment also is ludicrous and is not at all deterrent, if at all conviction takes place. It is also difficult to prosecute the offenders since other offences under Section 11 are not cognizable. It means that the police officer cannot arrest the offender without warrant. This puts impediment in the working of S.P.C.A. Officers. The only notable example where an owner of the animal was convicted for being cruel was at Delhi, where Judge Mr. R.S. Malha of Tis Hazari Court ordered the offender, one Yameen to undergo rigorous imprisonment for six months and a fine of Rs. 500/- and imprisonment for one more month, in default of fine. The said Yameen was caught outside Novelty Cinema Hall, near old Delhi Railway Station. He had put tobacco powder into his buffalo’s eyes in order to force the animal to walk. Such examples are very stray and sporadic. The fact remains that the punishment under the Act with respect to cruelty inflicted on animals or with respect to other offences concerning animals are not heavy and deterrent.
Q. 27) Should not unauthorized slaughter be made a cognizable offence?
Ans. Yes. The offence of carrying on unauthorized slaughter must be made a cognizable offence. This will help in bringing to book all those butchers who are carrying out their activities on the road-side dhabas or any other open spaces in the most unhygienic and cruel manner.
Q.28) Should slaughter be subject to appropriate certificate from the competent authority?
Ans. Yes. Keeping in mind the public hygiene, slaughter must be subject to appropriate certificate from the competent authority. Though in my opinion, the entire World population should turn to vegetarianism, I know it is not possible. In fact, if the animals are able to speak, the only sentence which they will utter would be, ‘don’t kill me”. Therefore, if at all slaughter is inevitable, it should be carried out in the most humane, scientific and painless way, giving the least pain to the animals.
There are instances when pregnant cows are taken up by the butchers for slaughtering. One such reported instance was brought to the notice of the Kerala High Court where a Writ Petition came to be filed by taking suo-motu cognizance of the report of the Indian Express dated 25th September, 1992. The news item narrated the story of a cow that gave birth to a calf when brought for slaughter at Kaloor in Kerala. The Kerala High Court then issued urgent notice to the State Government, Corporation of Kochi, District Veterinary office and others, treating as writ Petition a news item that appeared in two Malayalam dailies on August 21, 1992, which was later on reported in Indian Express dated 25th September, 1992. If there is a certificate from the Competent Authority, such cruel instances may not happen. If there is a stringency about the Certificate from the Competent Authority, certifying the fitness of the animal to be slaughtered, such tragic instances may not happen.
Q. 29) Should slaughter in unauthorized place carry a major punishment?
Ans. Yes. Slaughter in unauthorized places must carry a major punishment because such an act is not only inhuman but is unhygienic and opposed to public policy and poses a major health hazard.
Q. 30) Should the burden of proof in a case arising out of slaughter be on the accused?
Ans. Yes. Because in every case, when animals which are illegally being taken for slaughter are intercepted by any member of the N.G. O. or Police, the only answer given by the accused is that the animals are being taken for domestic purposes or domestication. It is very difficult to prove that the animals are being taken for slaughter and the accused are being let off. If the burden of proof is shifted to the accused, it will be a boon to the animals and the accused also can be punished.
In this field, there is an improvement in the sense that, in many such cases, interim custody of the cattle is taken by Panjarpoles or Go Rakshan Samities and after the trial is over, many times, accused refuses to take them back, because the Goshalas to which the interim custody is given, spend quite a lot on these cattle, for which they claim reimbursement and which the accused refuses to pay. This is indeed a boon in disguise, which has saved many cattle from being slaughtered.
Q. 31) What steps should be appropriate to safeguard against mixing of beef meat with other meat?
Ans. In my opinion, to avoid mixing of beef meat with other meat, there should be a total ban on the import of beef. There also has to be strict vigilance whether beef is being transported from one State to another. There also has to be supervision in the kitchen where products made out of meat are served. A declaration by the owner of the restaurant/hotel/meat-shop to the effect that no beef if used by them or sold by them will be desirable.
It will be desirable to have cattle population of every village, every District and every State, so that, any reduction in the cattle heads can be noticed immediately. I am aware that these suggestions, though may be ideal, are difficult to implement. Therefore, public awareness, disseminating information through Media, Television, Radio, Public Speeches are the only modes of reaching to the common man. Till that is done, and until corruption is totally stopped, state of affairs are difficult to be handled.
Dr. Justice Pratibha D. Upasani
Judge, Bombay High Court,
Gen. J. Bhosale Marg,
Mumbai – 400 021
Telephone Nos. 2027098 R
e-mail : prapanch[at]vsnl[dot]net