(The Quint debates the merits and demerits of the UP police invoking the National Security Act in cases of cattle smuggling. This is the Counterview. You may read the View by animal rights activist Gauri Maulekhi here.)
Anyone who happens to rule India has had to deal with the issue of cow slaughter. Babur advised Humayun to eschew cow slaughter, in order to win over the local populace. In the all too brief period between May and September 1857, Bahadur Shah Zafar, restored to the throne of Delhi, ensured that there was no cow slaughter on Bakri Eid that year. In an independent India, since the advent of the Constitution, the Republic has tried to negotiate an uneasy balance.
Under the Constitution, state legislatures have exclusive powers to regulate cattle slaughter. Likewise, maintenance of public order is also a prerogative of the state's. However, there is a broad overarching directive principle of state policy, in article 48 of the Constitution, which though couched in economic terms, tends to lean against cow slaughter. Various states, through the years, have passed legislation seeking to control or prohibit the slaughter of bovines.
Since 2014, the advent of a BJP majority government at the Centre has also seen vigilante mobs get violent and lynch people assumed to be involved in trade or consumption of bovine meat. Less than a fortnight ago, lawyers, student leaders and members of civil society launched a campaign, urging the government to regulate public order by introducing a law against mob lynching.
Also Watch: FB Live: National Campaign Launched Against Mob-Lynching
On the other hand, the state of Uttar Pradesh seems to have responded by invoking the National Security Act (NSA) and the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act. The only problem – these laws, which were enacted for the maintenance of public order, have not been invoked to rein in lynch mobs and save human lives. Rather, they have been resorted to, to regulate the slaughter and transport of cows. The directive reportedly issued by the Director General of Police is a reiteration of a similar one threatened in 2015. However, it does not clarify the circumstances under which these laws will be invoked.
The NSA is one amongst a handful of laws that allow preventive detention in India. It was enacted in 1980, two years after the repeal of the Maintenance of Internal Security Act (MISA), a law that was misused liberally during the Emergency. The NSA has essentially the same procedural framework as the MISA.
Also Read: Cattle Smuggling, Slaughter to Be Punishable Under NSA: UP DGP
Under Section 3 of the NSA, the government may detain a person for upto a year, to prevent him from acting in any manner that is prejudicial to:
(i) the defence of India or its relation with foreign powers, or
(ii) the security of the state, or
(iii) public order, or
(iv) maintenance of supplies and services essential to the community.
The Constitutional Validity of the NSA was upheld by a Constitution Bench in AK Roy v Union of India.
However, the Court had warned that provisions of Section 3 were “fraught with grave consequences to personal liberty, if construed liberally”.
It further held that “while construing laws of preventive detention like the National Security Act, care must be taken to restrict their application to as few situations as possible.”
It is not clear under which of the heads mentioned in Section 3, Uttar Pradesh proposes to invoke the Act.
It is hard to imagine that the slaughter of cows is one of the ‘few situations’ that was envisaged by the Supreme Court in AK Roy’s case.
However, going by previous practice, it is likely that the State views the slaughter of cows as a threat to public order. “Public order” has not been defined under the NSA. A Constitution Bench of the Supreme Court in Dr. Ram Manohar Lohia v State of Bihar has held that “the contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.”
The Court in Arun Ghosh, while speaking in the context of preventive detention under the Maintenance of Security Act, stated,
The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?
In this case, eight separate incidents of molestation, assault and wrongful confinement were held to be individual, illegal actions, but not actions which disturbed ‘public order’.
Thus, to justify invocation of the NSA, the State would have to show that there is a “disturbance of the current of life of the community”. It is difficult to fathom, how the slaughter of a cow in an abattoir, or the consumption of beef in the privacy of one’s home can justify invocation of the NSA. It is admittedly a violation of the Uttar Pradesh Cow Slaughter Act. Under the Act, slaughtering a cow, bull or bullock is a non-bailable offence, punishable with imprisonment of up to seven years.
It is unclear why the NSA is being resorted to when stringent penal provisions exist even otherwise. Courts have often been critical of this approach.
In fact, resorting to preventive detention to bypass ordinary criminal process has been deemed to be an illegal and colourable exercise of power by the Supreme Court in Abdul Gaffer’s case.
In spite of these judgements, there seems to be a lack of uniformity in how high courts have dealt with situations in which the NSA has been invoked in cases of cow slaughter.
The Allahabad High Court has upheld preventive detention in a number of cases on the ground that slaughter of cows ‘may flame communal tempers’. In other cases, the same high court has held that such incidents can merely be regarded as ‘law and order’ issues and not issues related to ‘public order’.
Significantly, the Allahabad High Court in Saeed v State of Uttar Pradesh and Others, warned that it must “guard against an oversensitive reaction by an increasingly intolerant public. The Court must exercise a balance and differentiate between situations where the prosecution under the normal criminal law could suffice and where nothing less than keeping a person in detention without trial under the preventive law was necessitated.”
The Court went to hold:
We do not think that a few men clandestinely slaughtering a cow in the security of their home away from the public eye in the dark hours, perhaps for survival or for consuming the meat can come in the category of actions which intrinsically disturb public order or are intended to strike terror in the minds of the public.
Judicial precedent thus makes it clear that an invocation of the NSA for cow slaughter or transport would stand on a slender thread.
It is surprising that recourse to such stringent provisions is being taken for protection of cows. This at a time when those (often incorrectly) accused of cow slaughter are being lynched with impunity across the country.
A simple search on the internet will throw up dozens of results of mob violence. Over the last year, the attacks on Mohd Akhlaq, Pehlu Khan, a family in Jammu, cattle traders in Delhi amongst others have sent shockwaves across the country.
Also Read: Delhi: Cattle Traders Thrashed by ‘Cow Vigilantes’, Later Arrested
Human Rights Watch has reported instances of cow protectors allegedly assaulting Muslim men and women in trains and railway stations in Madhya Pradesh, stripping and beating Dalit men in Gujarat, force feeding cow dung and urine to two men in Haryana amongst a host of other instances. Recently, seven men were lynched, on the suspicion of kidnapping in two separate incidents in Jharkhand.
Disturbingly, most of these incidents have been filmed and distributed on social media. The New York Times has described a lynching ‘as more than a murder’.
“A lynching”, according to an article appearing in the paper, “is a majority’s way of telling a minority population that the law cannot protect it.”
The existing legal framework has failed to act as a deterrent to those looking to mete out summary justice. Shockingly, none of the instances cited above has managed to shake the legislature into action. Several petitions against vigilante violence are currently being considered by the Supreme Court.
While the court can extend compensation and relief for past violence, it is doubtful that the court can legislate peace and sanity. In these circumstances, a law against mob violence – one providing for stricter punishments, time-bound trials, witness protection and victim compensation – is the need of the hour.
Governments at the Centre and the states would do well to adopt and enact any legislation in this regard that young India comes up with. India owes every citizen an obligation to protect his life and liberty, irrespective of his religion, diet or veneration for the cow. We cannot have the holy cow and its devotees run amok through the rule of law.
(Sanjay Hegde is a senior advocate and Pranjal Kishore is a lawyer practicing in the Supreme Court.)
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