State Legislative Brief

KARNATAKA

The Karnataka Prevention of Slaughter and Preservation of Cattle Ordinance, 2020

Table 1: Comparison of the prohibition on slaughter and other activities

• Powers for inspection, search, and seizure: The 1964 Act empowered the competent authority (to be notified) to enter and inspect any premises if there is a reason to believe that an offence has been committed under the Act or is likely to be committed.   The Ordinance retains this provision and also empowers the competent authority (includes police officer not below the rank of sub-inspector) to seize cattle/buffaloes, premises (also includes vehicles), and materials used or intended to be used for the commission of offence.  The authority is required to report the seizure to the Sub-Divisional Magistrate (SDM) for confiscation.
   
• Confiscation and forfeiture of cattle, materials, and premises: The confiscated cattle/buffalo will be handed over to a care institution established under the Ordinance.  It will not be handed over to the accused or sold in the public auction under any circumstances.  If the SDM is satisfied that an offence has been committed or was intended to be committed, he may order confiscation of seized materials and premises.  Confiscation can happen irrespective of whether a prosecution is instituted or not.  However, no such order can be made without giving the accused person an opportunity to be heard.  Appeals against the confiscation may be filed within 30 days of such order in the Court of Sessions.  If the SDM allows the release of seized materials and premises, pending the disposal of criminal proceedings, the accused person will be required to produce a bank guarantee equal to the value of such materials and premises.
   
• Where the SDM in his opinion feels that it is expedient in the public interest, he may sell the confiscated premises through public auction.  If the order of confiscation is annulled by the Appellate court, the proceeds from the sale of the confiscated premises will be provided to the owner of the premises.  Expenses of the auction and other incidental expenses will be deducted from the proceeds.
   
• If the accused is convicted, the court is required to forfeit the confiscated cattle/buffalo, vehicle, premises, and materials to the state government.

PART B: KEY ISSUES AND ANALYSIS

The Ordinance empowers the competent authority to seize cattle/buffalo, premises (includes vessels and vehicles), and materials used or intended to be used for commission of an offence.  The officer may seize if he has a reason to believe that an offence under the Ordinance has been committed or is likely to be committed.   The officer is required to report such seizure without any unreasonable delay before the Sub-Divisional Magistrate (SDM) for confiscation.  If the SDM is satisfied that the offence has been committed or was intended to be committed, he may order the confiscation of seized materials and premises.  The confiscated cattle/buffalo will be handed over to a care institution and will not be handed over to the accused or sold in a public auction in any circumstances.  SDM may order sale of the premises if he believes that it is expedient in the public interest.  If the accused is convicted, the court is required to forfeit the confiscated cattle/buffalo, premises, and materials to the state government.  These provisions raise some issues discussed below.

Whether provisions of confiscation and forfeiture under the Ordinance are reasonable

Under the Ordinance, movable properties such as cattle/buffalo, vehicles, and immovable properties such as premises, used or intended to be used for the commission of such offence, may be confiscated.   These will be forfeited to the state government upon conviction of the accused.  The question is whether requiring confiscation and forfeiture of properties such as premises and vehicles, and cattle/buffalo is reasonable.

Typically, the rationale for the confiscation or forfeiture of property under a law include: (i) such property being accumulated using the proceeds of the crime, and (ii) recovering ill gains or dues from the offender.[13]^,[14]  Hence, laws dealing with offences such as money laundering, black money, or tax evasion provide for confiscation of property of the accused.[15]^,[16]  The Unlawful Activities (Prevention) Act, 1967 defines property intended to be used for terrorism as proceeds of terrorism and hence requires forfeiture of such property.[17]  The question is whether offences under the Ordinance belong to similar categories of offences and hence require confiscation and forfeiture.  Note that other state laws dealing with cattle slaughter do not contain such provisions for confiscation or forfeiture of premises.   Laws in some states such as Rajasthan and Haryana provide for confiscation of vehicles.[18]^,[19]  

Note that, there may be situations where confiscated vehicles or premises are not owned by the perpetrators but are instead rented.  An offence may have been committed without the knowledge of the original owner.  The confiscation will lead to the dispossession of the owner from the property, which would be forfeited to the state government upon conviction.  Hence, a further question is whether it will be reasonable to permanently deprive the owner of his property when he may not have any role in the commission of the offence.   

The Ordinance states that confiscated cattle/buffalo will be handed over to the care institution and will not be handed over to the accused “under any circumstances”.  There is no provision for the return of confiscated cattle/buffalo pending trial.  It is not clear what the term “under any circumstances” entails.  This could lead to deprivation of the accused from their source of livelihood for an indefinite period.  Note that cattle/buffalo may be seized based on suspicion by the police officer.  Laws preventing cattle slaughter in states such as Rajasthan and Maharashtra specify that the seized cattle will be under the custody of the care institution pending disposal of the case.[20]^,[21] 

Whether the procedure for search and seizure is appropriate

A police officer or competent authority can conduct search, and seize cattle/buffalo, vehicle, and premises on the basis of suspicion.  The police officer is required to report the seizure to the Sub-Divisional Magistrate who is a member of the executive.  No judicial oversight is required for taking such actions.  Unlike many existing laws, other procedural safeguards have not been specified in the Ordinance.  This raises a question whether the procedure for search and seizure under the Ordinance is appropriate.

For instance, the Code of Criminal Procedures, 1973 (CrPC) requires a search warrant issued by the Court for a police officer to undertake the search.[22]  Search without a warrant may be undertaken by a police officer where he has reasons to believe that such a search is required without undue delay.[23]   However, the officer must record the grounds of his belief for such action and specify the cause of the search.23  A copy of this record is to be sent to the judicial magistrate.23  Further, for undertaking searches, the officer is required to call upon two or independent and respectable inhabitants of the locality.[24]   Search is to be conducted in their presence, and list of any seizure required to be signed by these witnesses.24  The Supreme Court had observed that as search is a process exceedingly arbitrary in character, stringent statutory conditions have been imposed on the exercise of such power under the CrPC.[25]  The Immoral Traffic Prevention Act, 1956, which allows search without a warrant, also requires the officer to record the grounds in writing and call upon two or more witnesses to attend the search.[26]  Further, laws such as the Immoral Traffic Prevention Act, 1956 and the laws preventing cattle slaughter in Rajasthan and Maharashtra require observance of procedures under CrPC for search or inspection of a place or seizure by a police officer.[27]^,[28]   Unlike these laws, no reference to the CrPC has been provided under the Ordinance.

Whether it is appropriate to dispose of premises pending trial of an offence

The Ordinance provides that the Sub-Divisional Magistrate (SDM) may order the sale of the confiscated premises (including vehicles) through a public auction if he believes that it is expedient in the public interest.  Judicial authorisation is not required for ordering either confiscation or sale of premises.   However, the aggrieved person may appeal to Sessions Judge against a confiscation order.  The question is whether it is appropriate to dispose of premises pending trial.

If the accused appeals successfully against the order of confiscation and the premises has been sold in the auction in the meantime, the accused will only be eligible to receive proceeds from the auction. This may lead to a loss of value for the accused.  He will also be permanently deprived of the ownership of the premises.  Sale of premises may happen even before the accused has been convicted by any Court for the offence.  The Prevention of Money Laundering Act, 2002 (PMLA) allows for the confiscation of property that may be proceeds of crime.  However, if the court eventually finds that confiscated property is not involved in crime, the property is returned to the entitled person.[29]  Sale of premises pending trial may not leave scope for such recourse even if the accused person is subsequently acquitted by the court.  

A further question is whether an SDM should be empowered to take such an action.  Typically, confiscation and disposal of property require the authorisation of a judge.   For instance, under the CrPC, the property can be disposed of pending trial but requires an order from the court.[30]   Similarly, PMLA requires authorisation from a Judicial Magistrate for attaching a property.[31]

The Ordinance prohibits the slaughter of cows, bulls, and bullocks of all ages, and that of buffaloes up to the age of 13 years.   The Ordinance also removes the provision for the slaughter of permanently incapacitated cattle/buffalo.   Such a ban on slaughter may create a burden of maintaining unproductive animals, and consequently, impact the viability of the rearing of these animals.

In India, most farmers have small landholdings.[34]   Rearing of livestock provides for optimising output from limited land and other resources of production and thus supplementing income for farmers.34^,[35]  Utility of cattle and buffaloes differ based on gender as well as breed.  While male members provide for draught power in fields and operation of carts, female members provide for income through milk.   Farmers also earn from the selling the surplus progeny that these animals reproduce.  They may also earn from selling less useful cattle for slaughter.   Their dung and urine can be used for preparing manure and biogas and cooking fuel, providing for input to agriculture and household.  Cattle are broadly classified among exotic/crossbred and indigenous/non-descript.   The average milk yield of buffaloes (3.29 kg per day in Karnataka) and exotic/crossbred cattle (6.67 kg per day) are higher as compared to indigenous/non-descript cattle (2.36 kg per day).[36]

It may be argued that the pattern of rearing of these animals is guided by their utility.  This is reflected in the substantial difference in the male and female members in the livestock population and how the population has moved.  As can be seen in Table 2, between 2012 and 2019, the number of females of exotic/crossbred cattle and buffalo have increased at a higher rate than the females of indigenous/non-descript cattle at both Karnataka and India level.[37]^,[38]  During this period, the male population across all three categories has substantially declined at both Karnataka and India level.  This could be due to the declining use of these animals for draught work (as tractors become more ubiquitous) or that overall value provided by these animals is declining.  The Department of Animal Husbandry of the central government (2018-19) had observed that farmers are not willing to maintain bullocks for agriculture or any other draught work and male calves have become a liability for them.35  As of 2019, male to female ratio in Karnataka is: (i) 1:30 for exotic/crossbred cattle, (ii) 1:1.6 for indigenous/non-descript cattle, and (iii) 1:17 for buffalo.  Thus, the male population is substantially lower as compared to the female population despite an equal probability of birth.  The pre-selection of sex in cattle/buffalo reproduction using artificial techniques in still not widely prevalent in India.35^,[39]  Export of live animals is insignificant.  Hence, such a decline in the male population suggests that males are either slaughtered or abandoned.  

Table 2: Cattle and Buffalo population in Karnataka and India

Source: 19^th and 20^th Livestock Census; PRS.

While these numbers suggest a trend towards a decrease in the desirability of rearing male cattle, the Ordinance prohibits the slaughter of this category of animals irrespective of their age and utility.  This may create a burden for farmers to incur the costs of maintaining undesired animals thereby hurting the profitability of rearing.  This may in turn discourage farmers from rearing these animals.  This may also lead to an increase in the incidence of abandoning of these animals.

Table 3: Comparison of the restriction on slaughter of cattle and buffaloes under various state laws

Sources: Respective State Laws; PRS.