Tuesday, 20 June 2017

LAW AND LIBERTIES IN TIMES OF EXECUTIVE FIATS



The Central Government has added a few more rules to the existing Prevention of Cruelty to Animals Act, 1960. The Rules attempts to regulate the sale of cattle (and only cattle, as opposed to all animals) in markets, stipulating that cattle cannot be sold for slaughter but only for agricultural purposes. Many argued, and rightly so, that the Central Government’s attempts amounted to a backdoor restriction on the consumption of beef. And there are good reasons to believe that the motives of an openly Hindu nationalist government are indeed to stop the consumption of beef – one way or the other.

The Central Government rules were challenged in the Madurai Bench of the Madras High Court through a public interest litigation (PIL), filed by activists and lawyers S. Selvagomathy and B. Asik Ilagi Bava. Based on the PIL, the Madras High Court issued an interim stay for a period of four weeks. The period of the interim stay will expire by the time this article goes to press and we will have to await the Madras High Court’s further judgment on this issue. Nonetheless, it would be profitable to examine the logic through which the Madras High Court arrived at its decision to issue an interim stay.

Any basic civics textbook that children use in schools will tell you that constitutional democracy consists of three pillars of governance: the executive, the legislature, and the judiciary. There is a separation of power between these three branches so as to not allow one branch – let us say, the executive – with absolute powers. Further, in India there is the Central, State, and Concurrent lists which are areas of governance that are marked for the state and central government to formulate laws. The petitioners in the Madras High Court submitted that in addition to impinging on personal freedoms as regards consumption of food and trade is concerned, the Central Government’s rules amounted interference and usurpation of the powers of the state legislature. It should be noted that while ‘cruelty to animals’ is listed in the Concurrent list wherein the state and the centre can legislate, ‘slaughter of animals’ is listed in the State list.

While this may be the gray area through which the Central Government wanted to push for the new rules that would make the sale and purchase of cattle tougher, as indeed it argued that these rules were necessary precisely to prevent cruelty of animals and the protection of the agrarian economy. The Madras High Court was clear that the rules introduced by the Central Government were unconstitutional. The High Court stated that in addition to interfering in the legislative powers of the state, the Executive had transgressed its own constitutional powers – the new rules appended to the Prevention of Cruelty to Animals Act, 1960 also went against the framework, purpose and intent of the original or parent Act. The High Court recognized that personal liberties and choices with regard to food habits and trade were impinged upon by the new rules. However, it must be noted that while the Madras High Court recognized personal choice and freedom, the interim stay was granted only on technical grounds of the Central Government transgressing its constitutional powers, and the subject of the law being part of the State list.

Familiarizing ourselves with the logic of the interim stay order brings one fact clearly to the fore: it is actually the federal state which needs to legislate on the slaughter of animals. In Goa various laws that, while not providing a blanket ban of slaughter of cattle or the consumption of beef, have over the years nonetheless brought in many provisions that restrict the choice of food and trade in certain ways. Laws such as The Goa, Daman and Diu Prevention of Cow Slaughter Act, 1978 enacted by the then MGP government prevented the slaughter of female cattle. The Goa Animal Preservation Act, 1995, enacted during the Congress regime and amended in 2003 and 2010 to give it more teeth, sought to regulate the slaughter of non-female cattle by making it mandatory to obtain certification that the bovine was fit for slaughter.

What we can observe from the laws enacted by the governments in Goa is that, even while keeping with certain constitutional provisions and rights, the legislative assembly of Goa has slowly eroded the rights of Goans to trade in and consume the meat of bovines. Which is why when, following the hate speech of Sadhavi Saraswati recently made in Ramnathi, Ponda, Vijai Sardesai assured Goans that their right to eat and trade in the foods they prefer would not be infringed upon, his statement appeared to be half-hearted and cosmetic at best. The reason is that well before such Sadhavis could make Ramnathi their preferred base to spew hatred on Goans of all religious persuasions, the Goa government was happily playing to the sentiments of Hindu (i.e. brahmanical) majoritarianism. However, despite the oppressive cow politics there is no talk of re-looking the existing laws, or changing/abolishing these laws. It is after all within the constitutional limits of the state legislature to legislate justly on the issue. Political parties and politicians come and go, but laws remain: case in point, the 1978 law that the MGP brought restricting cow slaughter.

Rather than wishy-washy statements, or assurances that the Goa Government will object to certain provisions in the Centre’s rules by writing to the Central Government in this regard, the State of Goa should exercise its constitutional powers in the interest of Goans and not just one community. Bringing a substantial change through the state legislature is what Goans need to demand now.

(First published in O Heraldo, dt: 21 June, 2017)

Wednesday, 7 June 2017

TEJAS EXPRESS: PUBLIC PROPERTY AND CIVIC DUTIES

The high-speed, high-tech Tejas Express, plying between Bombay and Goa, was launched a couple of weeks ago. The launch of this train was much hyped because it offered state-of-the-art facilities to the passengers. The Tejas Express boasts of automatic doors, infotainment screens, vacuum bio-toilets, touch-free taps in the toilets, and much more. While the train’s maiden voyage was expected to be a triumphant heralding of a new era in rail transportation, the news that filtered in afterwards suggested otherwise.

It was reported that even before the journey began in Bombay, a window pane was smashed. By the time the train reached Goa 12 headsets were reported to be missing or stolen; there was garbage littered all over the train, and the toilets were also reported to be filthy. Opinion-makers reacted stating that Indians do not deserve nice things and lack the civic sense to take care of public property. Given the manner in which urban Indian liberals are blind to the most fundamental problems of the society, it was not surprising to observe that absence of civic sense being discussed without reference to caste.


The Indian Railways is said to be the largest employer of manual scavengers in the country – under the guise of employing sweepers – as contract workers across the length of the rail network. Almost all of these people who dispose human waste with their bare hands come from the Dalit castes. Though manual scavenging has been outlawed by law since a long time ago, the Indian Railways only started addressing the issue – albeit incompletely – from 2016. In other words, if the railway platforms and tracks bear the slightest resemblance of ‘clean’ it is only because of the thankless and demeaning labour provided by thousands of workers from such castes. If guests on board the maiden journey of the Tejas Express had left behind garbage and dirty toilets and/or wash-basins it was only to be expected as that is how things are done – it is simply someone else’s problem.

The South Asian idea of cleanliness is that someone else is responsible for doing the cleaning. While it is true that the authorities are responsible for collecting and disposing of garbage, there is no justification for collecting wet waste in plastic bags and dumping them along the side of roads, for someone else to collect. There is blindness to the fact that the labour provided come from persons who are denied the basic right of human dignity, let alone benefits like health insurance and proper working conditions. This is a problem that concerns not only the government but everybody.

This behavior with regards to disposing garbage tells us something about the way in which Indians approach public spaces and public property. On the one hand, one doesn’t view public spaces and public property as deserving care and maintenance. On the other hand, the full burden of maintaining public spaces and property is dumped (pun intended) on the members of the most discriminated-against strata of society, who, not ironically, are excluded and pushed either to the margins or outside the boundaries of villages and cities. There is simply an absence of a ‘collective feeling’ or of a ‘community’ when the issue of public spaces emerges. The reason many argue, is the existence of the caste division. (In fact it was Dr. B. R. Ambedkar who argued that it was impossible to build a common community in the form of a nation when thousands of castes or jatis were in existence in British India).

In a slightly different context, the theologian Philip Vinod Peacock in his essay ‘Hostility, Hypocrisy, Hospitality: Rethinking the Politics of Theology and Hospitality from a Dalit Perspective’ (2013), offers an interesting suggestion to understand the relationship that Indians share with public spaces. Peacock suggests that public spaces, containing hundreds or thousands of people unfamiliar to us, tend to be sites of repelling strangers: “Within the caste system all strangers are automatically considered to be lower in the caste hierarchy than oneself.” Public spaces therefore are sites where aggressive behavior is displayed or performed that goes against any form of civil behavior, in response to the underlying structures of casteism. Thus, he further suggests that “it is perhaps this logic or spirit [of the caste system] that is at work when Indians jump queues or push themselves before others, or basically choose not to follow the norms of what can be considered publicly acceptable behavior”.

Peacock’s suggestion can be used to argue that the physical location of public spaces – be they parks, roads, beaches, trains or anything else – are sites or spaces wherein the development of civic sense is constantly subverted because we are unable to relate to one another as persons outside of our narrow and individualistic identities. There is something that prevents us from being publicly-oriented citizens. Being in a public space leaves us supposedly vulnerable to physical overpowering, caste pollution, and even diseases. This is the reason why public property is often repeatedly vandalized or left to decay without any care. In many ways, it can be argued that a sense and concept of the ‘public’ is yet to evolve within Indian society. 

The unfortunate episode of the Tejas Express is not an aberration; in fact, one of the maintenance staff remarked that the amount of garbage left behind was just like any other train. As expected the educated, ‘middle class’ who can afford such expensive fares are the ones who are causing all the problems.  

(First published in O Heraldo, dt: 7 June, 2017)