Legality of a beef ban roll back in Delhi

Can the Legislative Assembly of Delhi repeal the Delhi Cattle Preservation Act, 1994 ?

To protest against the rising incidents of communal violence people gathered last week in several cities under the title of, “Not in my name”. They sought to condemn not only the violence but the omission of any meaningful government response. An immediate precursor to much of these incidents of violence have been allegations of possession of cow meat. The religious status of the cow has been used not only to regiment dietary choices, but to demonise minorities and inflict physical harm. It’s most recent instance was the public lynching of Hafiz Junaid on June 23, 2017 on a train from Delhi.

http://www.hindustantimes.com/delhi-news/his-dying-image-will-haunt-me-forever-says-brother-of-youth-lynched-on-train/story-rucxr5FjxSr3vvoXPrBSdL.html

These are worrying signals in a multi-cultural society and various functionaries of the Aam Aadmi Party including the Deputy Chief Minister marked their attendance at the protest. At this point it is worth noting that Delhi passed a stringent cattle preservation law in 1994. It not only criminalises the slaughter, but possession and hence the consumption of beef. Marking a departure from the expected norms of criminal jurisprudence the burden of proof is placed on the accused. Given their support for the protest couldn’t the Aam Aadmi Party do more ? More importantly, does it have the legislative power to reform or repeal provisions of the Delhi Agricultural Cattle Preservation Act, 1994 ?

Shortly after Arvind Kejriwal was sworn in as the Chief Minister, persistent friction with the Lieutenant Governor gridlocked the administration of Delhi. This eventually required the resolution of the dispute on the constitutional metes of the legislative and administrative powers to be litigated in the High Court of Delhi. On August 4, 2016 the High Court of Delhi pronounced it’s decision in a batch of petitions titled as, Government of National Capital Territory of Delhi v. Union of India [2016 SCC Online Del 4308]. This seemed as a formal declaration of what former Chief Minister, Madan Lal Khurana called the Delhi Government to be, “a C-grade assembly”. There is some historical background to Khurana’s statement as Delhi was originally categorised as a Part C state as per the first schedule of the Constitution when it came into effect.

Siesta at Hauz Khas Pond by B Manjunath Kamath (2010)

While Delhi’s status as a Part-C state merely lasted for a period of 4 years with the Constitution (Seventh Amendment) Act, 1956 repealing the categorisation the C-grade label has stuck on. The effect of the amendment was that from 1956 till about 1992, Delhi did not have a legislative assembly being directly administered by the Central Government. This was till the Constitution (Sixty-ninth Amendment) Act, 1991 inserted Article 239AA in the Constitution of India which made special provisions for what would be called the National Capital Territory of Delhi. The minutiae for the operation of Article 239AA was further determined by the enactment of the Government of National Capital of Delhi Act, 1991 and the Transaction of Business Rules, 1993. These texts form the basis of the determination of the executive and legislative competence of the Delhi Government.

Constitution (Sixty-ninth Amendment) Act, 1991

Article 239AA established the Legislative Assembly for Delhi and for the appointment of the Lieutenant Governor as its administrator. It is important to look at Clause (3) which defines the subjects on which the Assembly can make laws. It has been given a power to make laws for matters contained in the State List with the exception of Entries 1 (“Public Order”), 2 (“Police”), 3 (“Officers and servants of the High Court…”) and as Entries 64, 65 and 66 relate to them. Even then it would be entitled to make laws on the other entries in List II such as Entry 15 which states, “preservation, protection and improvement of stick and prevention of animal diseases”. This would relate to the Cattle Preservation Act of Delhi.

Further limitations exist where the assembly has to wrestle with legal doctrines of repugnancy and occupied fields of central legislation. This path becomes narrow as we step from the substance of the power to the modality of it’s exercise. For instance the High Court of Delhi has held in the case of Inder Pal Singh Chadha v. Government of National Capital Territory of Delhi [1996 SCC Online Del 747] that the Delhi Government did not have the power to prohibit lotteries. It reasoned that:

Mr. Nigam, however, contended that the lotteries being part of betting and gambling, the Delhi Government in exercise of power under Article 239 AA(3)(a) has the power to deal with the matter. The said Article is, however, subject to the provisions of other parts of the Constitution and only deals with the matters on which the Legislative Assembly shall have power to make laws for the whole or any part of National Capital Territory of Delhi. There is no dispute that the lotteries are part of betting and gambling but that by itself does not clothe the power on Delhi Government under Article 298 of the Constitution since it is not a State as understood by Constitution of India.

Many other complexities exist including dealing with the approval of the Lieutenant Governor. Clause (4) of Article 239AA provides that the Lt Governor would be “aided and advised” by the Council of Ministers in the exercise of functions in relation to the matters with reference to which the legislative assembly has power to make laws. In matters other than those on which the legislative assembly can exercise powers the Lieutenant Governor can act per its discretion. Even in matters where the legislative assembly can pass legislation it is obliged to, “to aid and advise the Lieutenant Governor”. In case of a difference of opinion between the Lieutenant Governor and “his ministers”, the matter may be referred to the President.

Government of National Capital of Delhi Act

This provisions with respect to legislation are further substantiated by the the Government of National Capital of Delhi Act, 1991 from which three distinct provisions are of relevance:

  • Section 41 expressly states that, “the Lieutenant Governor shall act in his discretion in a matter… (i) which falls outside the purview of the powers conferred on the Legislative Assembly…”.
  • Section 44(1) by which the President may make rules for, “for the allocation of business to the Ministers in so far as it is business with respect to which the Lieutenant Governor is required to act on the aid and advice of his Council of Ministers”, and “the more convenient transaction of business with the ministers”.
  • Section 45 under which the Chief Minister is obliged to furnish information including, “proposals for legislation”.

Transaction of Business Rules, 1993

It is further relevant to consider the Transaction of Business Rules, 1993 which were formed under Section 44(1). They provide for the following:

  • The Chief Minister has a pro-active duty to disclose any proposal for legislation as per Rule 10 to the Lieutenant Governor. The rule applies to any proposal referred to in a schedule appended to the rules which expressly includes, “16. Draft Bills and proposals for legislation including issue of Ordinance”.
  • The Lieutenant Governor has also been given powers to call on the Chief Minister to furnish information under Rule 25 which includes any, “proposals for legislation”. Further the process of introduction of any legislation requires the Lieutenant Governor to be informed at every step. Rule 30 provides that any proposal for a bill shall be submitted to the Law Department and processed as, “like other proposal or matters of a Department”. Rule 34 requires an approved draft of the bill to be submitted to the Lieutenant Governor again.
  • Rule 50 provides on difference of opinion between the Lieutenant Governor and the Delhi Government on any matter a reference will be made to the Central Government for the decision of the President.

These provisions provide an inescapable conclusion that rather than being a titular head, the Lieutenant Governor wields vast power on Delhi. Hence it comes as little surprise when the Hon’ble High Court of Delhi holds in para 249 of it’s decision in Government of National Capital Territory of Delhi v. Union of India :

…the same has to be exercised in terms of Clause (4) of Article 239AA of the Constitution…Admittedly, the exercise of the said executive function is traceable to the subject ‘electricity’ which is a Concurrent List subject vide Entry 38 of List III. Though it is not an exempted matter under Clause (3)(a) of Article 239AA and thus the Legislative Assembly of NCTD is competent to make laws and as a sequel the Government of NCT of Delhi can exercise the executive control, as expressed above, the decision of the Council of Ministers can be enforceable only after communicating the same to the Lt. Governor and only where the Lt. Governor does not opt for referring the matter to the Central Government in terms of provisions of Chapter V of the Transaction of Business Rules.

All these provisions apply even prior to the introduction of a Bill in the legislative assembly. What happens after it passes ? As clarified by Section 24 of the Government of National Capital of Delhi Act, 199, “[w]hen a Bill has been passed by the Legislative Assembly, it shall be presented to the Lieutenant Governor and the Lieutenant Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President”. Given this provision there is little hope without the cooperation if not the consent of the Lieutenant Governor no legislation can be passed by the Delhi Legislative Assembly. While the decision of the Hon’ble High Court of Delhi is subject to a pending appeal in the Supreme Court of India there is little hope it will be heard expeditiously given it requires the formation of a constitution bench. Even on the merits of the appeal the case of the Delhi Government hinges on the phrase, “aid and advice” in Article 239AA(4) and leans against the plain meaning of the Constitutional text.

Irrespective on the larger questions of the competence of the Delhi legislature it can always initiate a proposal for legislative business, especially with respect to cattle preservation laws. It is not as if such odds have not been faced before. The legislation of the Cattle Preservation Act, 1993 was done by Madan Lal Khurana acting under the same political office of Chief Minister by negotiating the political realities of the day. As the legal analysis above demonstrates efforts to pass a proposal for reforming Delhi’s cattle preservation may not result in an reform or repeal in law. There exist vast powers with the Lieutenant Governor and the Central Government which may block it at every stage. However the history of many legislations, especially those which have conflicting social interests evidence reforms rarely pass on first attempts.

http://www.hindustantimes.com/delhi-news/his-dying-image-will-haunt-me-forever-says-brother-of-youth-lynched-on-train/story-rucxr5FjxSr3vvoXPrBSdL.html

It is indeed disappointing to realise that the constitutional provisions as they presently stand are contrary to any stated public expectation of an autonomous Delhi Government. These expectations spur anger and blame. Many hold an opinion that there is little the Delhi Government can do right. But this is expected, given it can do little at all. It’s powers and ability to function remain under a legal cloud. Many will still continue to ask if this an inviolable restraint or an excuse ? It’s only natural to venture such questions when strong memories of promises from two recent election campaigns endure. Many people who were present at last week’s protest supported the political rise of the Aam Aadmi Party during elections only to be disillusioned later. In last weeks protest there is an opportunity for the Government of Delhi to rebuild that trust by initiating an institutional process which supports the conception of a tolerant legal climate for individual choices and minority groups. A proposal for the reform of the Delhi Cattle Preservation Act, 1994 must be urgently initiated in Delhi. Even if this does not pass into law each act of resistance is a measure of faith.

Disclosure : I appear as a counsel in the case of Gaurav Jain & Ors. v. NCT of Delhi which challenges the constitutionality of the Delhi Cattle Preservation Act, 1994 before the Hon’ble High Court of Delhi.

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