I would be perfectly willing to match wits and join issues with a vegetarian or a vegan who questions my desire to eat beef. I might even be convinced if he proved that a single malt tastes better with vegan ham (made out of coconut) or dhokla. But if a law is enacted that bans beef-eating in my own home because the state believes it has the right to tell me what my diet should be, I would challenge it. Such a law was enacted by the Maharashtra government called the Maharashtra Animal Preservation (Amendment) Act, 1995, and I did precisely that and invoked the extraordinary powers of the Bombay high court to strike down this abominable affront to my right to choose my food.
The Act contained some opprobrious provisions such as making consumption of the meat of cows, bulls and bullocks a non-bailable offence which permitted the police to enter my kitchen and arrest me on suspicion that the meat that was my dinner could be beef and then put me behind bars thereby substituting my gourmet meal with jail food.
To make matters worse, the offence being non-bailable, I could be stuck with jail food for a long time and at the trial I would have to prove my innocence, so to speak. Few people are aware that this has been the law since 1995 but for 20 years was not brought into effect. On March 4, 2015, our die-hard non-vegetarian President gave his assent to the Act and made it enforceable. I remember being terribly agitated and when I reached office I asked my young associates to research the law on the subject to examine the constitutional validity of these provisions. The team acquainted themselves with all judicial pronouncements on the subject. The Supreme Court in State of Gujarat vs Mirzapur Moti Kureshi Kassab (1998), had upheld the validity of legislations banning cow slaughter in all its dimensions.
The general approach of the Supreme Court was that any enactment banning cow slaughter would be declared valid on economic grounds and virtually gave the government the right to legislate on this field unhindered by any constitutional restraint. We decided to focus on the prohibition on consumption of beef for that was an issue unrelated to any economic welfare programme that a government wished to promote and on the basis of which cow slaughter was justified. We felt that a petition to challenge the ban on consumption would be sustainable on the touchstone of the right to privacy which included permitting an individual to choose his own diet so long as what he ate did not violate any law.
The logic that we followed was that the right to choose one’s diet is an aspect of one’s right to privacy which, in turn, is an aspect of one’s right to live life the way he wishes and thereby live a life of dignity. Our petition was grounded in Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except by due legal process. I honestly believed that the state, by bringing into effect a law that had come into existence 20 years earlier, was acting with motive which was aimed at the minorities — Muslims and Christians in particular. But in drafting the petition, we stayed clear of this angle as we felt confident that our challenge on the ground of right to life was solid and uncomplicated.
The 247-page judgement rendered by Justices A.S. Oka and S.C. Gupte vindicated our stand completely. The case was superbly piloted by senior counsel and good friends Aspi Chinoy and Navroz Seervai, assisted by my young, brilliant and enthusiastic team. In summary, the judgment laid down the following law:
That the right of privacy of an individual is a fundamental right emanating from the right to life guaranteed by the Constitution. That section 9 (b) which required an accused to prove his innocence was declared illegal, and struck down. That if a person was found transporting meat which was suspected to be contraband, it was for the state to prove that he knew that the meat was in fact contraband.
All in all, the judgement restored dignity to the individual in matters which were personal to him. I cannot help but rejoice over the fact that none of the opponents’ arguments in response to my petition were accepted by the judges and it doesn’t surprise me. For instance, when counsel appearing for the state was asked why buffaloes were excluded from the Act and allowed to be slaughtered, he said “they are lazy”.
For me, the real heartwarming takeaways from this entire episode are as follow: First, that the right of privacy is now unquestionably a fundamental right; second, that the phrase “rule of law” which we use almost by rote is demonstrated by this ruling to be a living democratic philosophy which distinguishes us from totalitarian regimes that pretend to operate under a democratic Constitution; and, finally, that the judiciary as an institution is the most reliable bastion of democracy where judges who believe in their oath will uphold constitutional principles unmoved by extraneous considerations. Our legal heritage is rich, profound and steeped in an innate sense of justice. I say this because in my experience as a lawyer, I have on occasions appeared before lower placed judicial officers in terms of their hierarchy in remote parts of our country and have come across individuals (perhaps a Mamlatdar) whose integrity all the money in the world cannot dent. It’s time that we as a society nurture this invaluablecultural heritage which has such deep and inalienable roots in this subcontinent....