THURSDAY, APRIL 25, 2024
Gladstone D’Costa
Article 48 of the Constitution reads, "The State……shall take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.” Further, entry 15 of the State list of the 7th Schedule, gives the State Legislatures exclusive powers to legislate the prevention of slaughter and preservation of cattle.
Nine States do not have any such legislation; those that do, have varying laws. Fines range from Rs 1000, to 1,00,000; jail terms from 6 months to 10 years; with Haryana leading in severity of punishment. Even the definition of “cow slaughter” varies. Many States include bulls, bullocks and buffaloes. Some permit “fit for slaughter” certificates if the animal is economically worthless; others if the animal is over 15 years old; still others exclude buffaloes. Whilst one respects the sentiments related to the cow, it is difficult to rationalise the inclusion of bulls and buffaloes in the ban. But it is the enforcement of the law that is more intriguing.
Over the last three or four years there have been a number of arrests for violation of the cow slaughter ban; which left me wondering about the outcome of these arrests. The answer came in the form of a brilliant piece of investigative journalism regarding arrests made between Jan.’18 and Dec.’20. Curiously, the arrests were made under the NSA rather than cow slaughter.
The significance being that the NSA takes away the constitutional right of the individual to be produced before a magistrate within 24 hours, or to make a bail application before a criminal court. The arrest may be made without a formal charge or a trial. Further, neither the DM nor the person enforcing the arrest order, can be prosecuted. Under Article 22(5) the detainee may approach an independent advisory Board of 3, chaired by an ex or current HC judge. For the record the Board upheld the detention in every case. The only remaining avenue for redressal was a Haebus Corpus petition. This entitles a person to “report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, to bring the prisoner to court, to determine whether the detention is lawful.” And it is here that the authorities ended up with egg on their faces.
94 out of the 120 detentions were struck down by the Allahabad HC on the grounds that there were no constitutional safeguards for the detained. There has been a “non-application of the mind” by the DMs’ with “repeated use of the law to block bail”. Even the FIRs and detention orders were so similarly worded, that they appeared to be “cut-paste” jobs. The judiciary further declared that “preventive detention under the NSA must be delicately balanced between social security and a citizens’ freedom, with meticulous compliance with procedural safeguards”. These, the court declared were not followed.
In the Qureshi case, it stated “Slaughtering of a cow and consumption of beef cannot attract the provisions of the NSA. It is an offense under the Cow Slaughter Act”. In another case it bluntly stated that “there was no reference of the petitioner being involved in any serious or anti-national activity”, and the DM’s orders were based purely on the police FIRs without application of the mind; and showed signs of being influenced by political pressures. In many cases the stated reason for invoking the NSA was that the accused had applied for bail and was likely to be released; hence there was a danger that the accused would “again indulge in activities prejudicial to public order”.
The court rejected this argument stating that in that case, it is the application for bail should be opposed and not replaced by another order for detention. In one case, the person detained was not even mentioned in the FIR; in another, there had allegedly been a riot and mob violence, but not a single injury or “even an abrasion” had been reported.
In spite of such a slap in the face, the administration launched a masochistic repeat in the imposition of the sedition law; to such an extent that the SC saw fit to call for a re-examination of the law during the hearing of a case against two television channels booked by the AP government for its “seditious” broadcasts. A constitutional challenge by two journalists is already pending before the SC. In fact, there has been a binge of frivolous sedition cases; 22 in the Hathras rape case; under the CAA for sloganeering; all ending in a conviction rate of about 3%! The process becomes worse than the final outcome, as lower courts neither examine such cases nor consider bail.
The SCs concern arises from the Kedar Nath judgment of 1962, where it ruled that the sedition law should be applicable only in those cases where there was a call for violence or incitement to public disorder. Mere criticism of the government cannot be considered sedition. SC Justice Chandrachud sardonically asked whether reporting of dead Covid patients floating in the Ganga, would also invite sedition charges. The matter seems to have been decisively settled with the recent quashing of sedition charges against journalist Vinod Dua, for criticising Modi for his handling of the pandemic; declaring that “every journalist is entitled to protection under the Kedar Nath judgment” from the ambit of the sedition law. In spite of such judgments the government has persisted with a new “pensioners gag order”.
A serious retreat from attempts to muzzle dissent is called for. Historically, no one has ever succeeded.
(The author is a founder member of VHAG)
