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The cattle market notification issued by the Ministry of Environment and Forests on May 23 has heated up the debate on cow slaughter. The notification is flawed on two counts. One, it imposes a total ban on the sale of the cattle in the cattle market for slaughter. Prohibition of slaughter of cattle falls in the State List under the Constitution’s Seventh Schedule.`

The Centre cannot make a law or subordinate legislation on this subject. It is rather disingenuous to argue that the notification deals only with sale or purchase of cattle. It clearly and directly prohibits slaughter and is, therefore, outside the jurisdiction of the Centre. The argument that sale of cattle for slaughter outside the cattle market is not prohibited has no merit as that is not the subject matter of the above notification.

Secondly, rule 22 of the notification is outside the scope of the parent act, namely the Prevention of Cruelty to Animals Act, 1960. When Parliament makes a law it delegates to the government the power to make rules for its implementation. The rules cannot exceed the scope of the Act under which it is made. They cannot propound a policy which is not germane to the parent law.

The Supreme Court has delivered a number of judgments on the exact scope of the rules made under an Act. In Shiv Kirpal Singh vs. V.V. Giri (1970) the Court held that any rule made in contravention of the provisions of the Act would be declared void on the ground that it goes beyond the scope of the power conferred on the government. Similarly, in Hukam Chand v. Union of India (AIR 1972, SC2427) the Court observed “the extent and amplitude of the rule making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central government in such an event would have no power to make that rule”.

The Prevention of Cruelty to Animals Act was enacted to “prevent the infliction of unnecessary pain or suffering on animals”. This law was not enacted to prohibit the slaughter of cattle. It is interesting to note that Section 11 (3) (e) of this law says that any act committed in the course of killing an animal for human food does not come within its purview. But the caveat is that such act should not be accompanied by the infliction of unnecessary pain or suffering.

How can the government, then, issue a notification prohibiting the sale or purchase of cattle in the cattle market for slaughter, in effect prohibiting slaughter of cattle? This rule amounts to saying that selling or purchasing cattle for slaughter is an act of cruelty. Obviously, the rule is in violation of the parent Act. As per the observation of the Supreme Court, quoted above, the Centre has no power to make such a rule.

Cow slaughter has always been a sensitive issue in India. It hurts the sentiments of millions of people in the country. No representative government can afford to ignore the matter. Article 48 of the Constitution says that the State shall take special steps for prohibiting the slaughter of cows and calves. However, the Constitution makers were wise enough to recognise the diversity of food habits in different parts of the country. Therefore, instead of keeping prohibition of slaughter of cows in the Union List, they put it under the State List. Thus, there is no Central law on prohibition of cow slaughter. Many states have passed stringent laws prohibiting the slaughter of cow. But the problem arises when the Centre attempts to do what the states alone can do under the Constitution.

The May 23 notification does have number of measures aimed at preventing cruelty to animals. Those are well within the scope of the Parent Act. But Rule 22 sticks out like a sore thumb. A revised notification without this rule will put an end to the needless controversy. Going strictly by the Constitution is the safest way for any government to deal with sensitive issues.