Mumbai: The Bombay High Court on Friday upheld the ban on slaughter of bulls and bullocks in BJP-ruled Maharashtra while making it clear that mere possession of beef of animals slaughtered outside the state cannot invite criminal action.
The High Court struck down two sections of the state Act which criminalised possession of beef.
In a 245-page strongly worded judgement, a division bench of the High Court said the sections that criminalised possession of beef is an infringement on the right to privacy of citizens and unconstituional.
Striking down sections 5(d)and 9(b) of the Maharashtra Animal Preservation (Amendment) Act which criminalised and imposed punishment for possession of beef of animals slaughtered in the state or outside, Justices A S Oka and S C Gupte held that the state cannot control what a citizen does in his house which is his own castle, provided he is not doing something contrary to law.
"Sections 5(d) which provides that no person shall have in his possession flesh of cow, bull or bullock slaughtered outside Maharashtra is unconstitutional and infringes upon a citizen's right to privacy," the court said.
"Similarly section 9(b) which imposes penal action (on an offender) and puts the onus of proving himself as innocent is also invalid," the court said, after hearing a bunch of petitions challenging the constitutional validity of the Act.
The court also modified section 5(c) of the Act, which makes possession of beef of animal slaughtered in the state an offence, and said only "conscious possession" of such meat will be held as an offence.
"As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health," the court said.
"The state cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice. A citizen has a right to lead a meaningful life within the four corners of his house as well as outside his house. This intrusion on the personal life of an individual is prohibited by the right to privacy which is part of the personal liberty guaranteed by Article 21," the court said.
Reacting to the judgement, Chief Minister Devendra Fadnavis said the state may approach the Supreme Court, after consulting legal experts, against the striking down of the two provisions of the Act but expressed the satisfaction that the High Court has affirmed the law is constitutional.
"The HC has affirmed that our law is constitutional and it has not targeted any religion, caste or creed. I am happy that our stand is vindicted by the Court," Fadnavis told reporters here.
"However, there are two provisions of the law that have been struck down by the High Court. We will consult our lawyers, and, if necessary, will approach the Supreme Court against this. Other than these two provisions, the court has found no fault with the law," he added.
Arif Kapadia, a city resident, and noted lawyer Harish Jagtiani challenged the provision of law which said that mere possession of beef in any place in the state is a crime.
According to them, this provision was arbitrary and hit upon the cosmopolitan nature of the city, which houses people from all religions and communities.
The HC noted that the government has not made any attempt to show any compelling public or state interest for enacting section 5(d).
"In the present case, section 5(d) prevents a citizen from possessing and consuming flesh of cow, bull or bullock even if it is slaughtered in territories where such slaughter is legal. Hence, section 5 (d) is certainly an infringement of right to privacy," the court said.
The court said preventing a citizen from possessing flesh of cow, bull or bullock slaughtered outside the state amounts to prohibiting a citizen from possessing and consuming food of his choice.
"Section 5(c) of the Act which criminalised mere possession of beef is being modified to conscious possession of the beef. If a person from whom beef has been found did not have prior knowledge of the meat, then he cannot be prosecuted. Only conscious possession can be held as an offence," the high court said.
The court noted that onus will be on the prosecution to prove that the accused who is charged for violation of section 5 (c) of the Act, was found in possession of flesh of cow, bull or bullock slaughtered within the state with the knowledge that it is the flesh of these animals and that were slaughtered in the state.
"If the possession under Section 5(c) is not treated as a conscious possession and is treated as mere custody then there is every possibility of an innocent person being convicted for an offence punishable under section 9(a)," the court said.
"It is relatively easy for the prosecution to bear the burden of establishing that the slaughter of the animal was in contravention of the Act than for the accused to bear the burden of showing otherwise," the court noted.
The court further said that merely because a person has been found in possession of bovine flesh does not make his knowledge of slaughter within the state in any way probable.
"A very drastic provision putting a negative burden on the accused at the time of trial of the offences punishable under sections 9 and 9(a) of the Act has been introduced by way of section 9(b). Under section 9(b) at the time of the trial, the burden of proving that the slaughter, transport, export, sale, purchase or possession of flesh of cow, bull or bullocks was not in contravention of the Act shall be on the accused," the court said.
The court hence struck down section 9(b) and said it was unconstitutional and invalid.
The HC, however, refused to stay its order pertaining to striking down of section 5(d) and 9(b) of the Act.
Upholding the government's decision to ban slaughter, sale, transport and purchase of cow, bulls and bullocks in the state, the court held that the government has placed on record material to support its stand that it is necessary to preserve these animals and prevent their slaughter.
"The legislature felt that it is necessary to preserve and protect agricultural animals like bulls and bullocks. Even after these animals cease to be useful for the purpose of breeding or even if they become too old to do work, it is stated that such bulls or bullocks continue to give dung for fuel, manure and bio-gas and therefore they cannot be said to be useless," the court said.
"The legislature is the best judge of what is good for the community. The legislative wisdom cannot be doubted only because some other view is possible," the court said.
"Considering the legal and factual position, we find that the stand of the state government that prohibiting the slaughter of cows, bulls and bullocks is in public interest will have to be accepted," the court said.
The bench further held that restrictions like slaughter, sale, transport and purchase imposed in the Act do not infringe upon the constitutional right of a person guaranteed under Article 14.
The court took note of the arguments put forth by the state government that the Act has been made to provide for prohibition of slaughter of cows, bulls and bullocks for preservation of these animals as they are suitable for milch, breeding, agricultural purposes.
The bench also noted the government's contention that for effective implementation of such total ban, it is necessary to provide for prohibition on transport, export, sale or purchase of cow, bulls and bullocks and its meat.
The court refused to accept the arguments of some petitioners, who held that animal sacrifice is an integral part of the religion followed by the Muslim community and some people who are poor cannot afford to sacrifice an entire goat and hence form groups and sacrifice cows, bulls or bullocks.
"It is well settled that what is protected under Articles 25 and 26 is only such religious practice which forms an essential and integral part of the religion. A practice followed may be a religious practice but if it is not an essential or integral part of the religion then the same is not protected by Article 25 of the Constitution of India," the court said.
The bench further said the "alleged economic compulsion will not make the alleged practice an essential part of the religion".
In January this year, Justices Oka and Gupte had reserved the order after hearing arguments of all parties involved.
In February 2015, the President had granted sanction to the Maharashtra Animal Preservation (Amendment) Act. While the Act had banned slaughter of cows way back in 1976, the recent amendments prohibited slaughter of bulls and bullocks, possession and consumption of their meat.
As per the Act, slaughter attracts a five-year jail term and Rs 10,000 fine and possession of meat of bull or bullock hands over one-year jail and Rs 2,000 fine.
While hearing the petition, the HC had in April last year refused to grant an interim stay on the law, on the issue of possession of beef.
Petitions were also filed by Vishal Sheth, a lawyer, and Shaina Sen, a student.
They said "we are Hindus who are consumers of beef, which is now part of our diet and nutrition source. The ban on beef and criminalising its sale and possession violates fundamental rights of citizens.”...