A Bombay High Court judgment said it was no longer illegal to possess or eat beef as long as it was from outside the state. Though this has come as a breather for many, how will it be implemented?
By Neeta Kolhatkar in Mumbai
Beef consumers in Maharashtra got a small relief on May 6 when the Bombay High Court said that it is no longer illegal to possess or eat beef as long as it is from outside the state. It was only last year that Maharashtra had made the sale or possession of beef an offence punishable by a five-year term or a `10,000 fine.
In a packed courtroom, a boisterous media and a bustling array of lawyers waited to hear the landmark judgement by Justices AS Oka and SC Gupte. Their judgment said: “The state cannot dictate to citizens their right to the food they choose to eat.” This is part of Article 21, a fundamental right guaranteed by the constitution. Realistically speaking, the bench has not gone against the spirit of the Maharashtra Animal Preservation (Amendment) Act, 1995. Till 1995, slaughter of cows was always banned in Maharashtra. Later bulls, bullocks and heifers were added to it.
FUNDAMENTAL RIGHTS
Justice Oka’s judgment said:
“(a) We hereby hold and declare that Section 5, Section 5A, Section 5B, Section 5C, Sub¬sections (3) and (4) of Section 8, Section 9 and Section 9A of the Maharashtra Animal Preservation Act, 1976 as amended/inserted by the Maharashtra Act No. V of 2015 are constitutional, valid and legal;
(b) However, we hold that the possession in terms of the Section 5C of the Maharashtra Animal Preservation Act, 1976 shall be ‘conscious possession’;
(c) Section 5D of the Maharashtra Animal Preservation Act, 1976 is struck down on the ground that the same infringes the fundamental right guaranteed under Article 21 of the Constitution of India;
(d) Accordingly, wherever there is a reference to Section 5D in other Sections of the Maharashtra Animal Preservation Act, 1976, the same stands deleted;
(e) Section 9B of the Maharashtra Animal Preservation Act, 1976 is struck down as it infringes the fundamental right guaranteed by Article 21 of the Constitution of India.”
CRIMINAL OFFENCE
Senior counsel Aspi Chinoy explains how the removal of criminalization which Section 9B deals with (imprisonment of up to one year and a fine of `2,000 for possession of beef), is a huge step forward. He said that over a period of time, the cow slaughter ban had become a “total beef ban”. “We have seen how possessing beef and eating it had become a criminal offence in our state. But with this verdict, that is removed. Beef can be lawfully imported and eaten. Moreover, now the onus has shifted to the police to prove whether the beef is of a cow, bull or bullock,” said Chinoy. Incidentally, Section 5D deals with the possession of meat slaughtered outside the state.
The case was well-argued, with the main point being that the fundamental rights granted by the constitution should be preserved. The focus was to remove Sections 5D and 9B of the Maharashtra Animal Preservation (Amendment) Act, 1995.
Welcoming the decision, senior counsel Haresh Jagtiani told India Legal that what drove them to fight this petition was the stinging humiliation people felt on being denied the fundamental right to eat what they wanted without fear. “It was humiliating that the state was telling me what I should be eating. It offends my sense of dignity,” said Jagtiani. “The right to choose what I want to eat is part of the right to privacy which is founded in the right to life.”
However, the All India Jain Journalist Association (AIJJA) said that by striking down these sections, the heart and soul of the Act had been removed. “We are partly satisfied. We believe that striking down Section 5D and 9B will only add to police corruption. How will they ascertain that the beef has been slaughtered outside Maharashtra and the same is being brought for sale here? This is now a toothless act. We will appeal against this order in the Supreme Court,” said AIJJI advocate Ashish Mehta.
POLICE HARASSMENT
One of the main reasons that numerous petitioners including the Indian Muslim League, the Qureshi community which is part of the Beef Dealers Association and others sought judicial intervention was the criminalization of possessing and eating beef in Maharashtra. “For us, it is still not a victory. Our businesses have shut down, but at least now we can live without fear. Till now, our one foot was in jail because even if we possessed mutton being in the meat business, the police would harass us,” said Mohammed Ali Qureshi, president of the Beef Dealers Association.
He lamented that as far as the beef business was concerned, they would have to move out the state. The All India Muslim League has said that it would appeal against even this judgement in the Supreme Court. “Of course, we will go to the SC because we want the entire ban to be lifted,” said Hafeez Rahman, one of their counsels.
Chief Minister Devendra Fadnavis reportedly welcomed this order saying: “We stand vindicated that the beef ban imposed by the state government after the enactment of the Maharashtra Animal Preservation (Amendment) Act was not against any religious community. The Act bans slaughter of bulls and bullocks.” He added that the state government would file a petition against the order to decriminalize beef possession after seeking the state law and judiciary department’s views.
Sunip Sen, one of the senior counsels, welcomed the decision but said the larger issue had not been tackled. “Till the bull and bullock were not added, consumption of beef in Maharashtra was 39.9 crore kilos of beef. By denying the slaughter of bulls, we are preventing a good source of protein to lakhs of poor. And this is the line we will take when we pursue the case in the Supreme Court,” he said.
Though this judgment comes as a relief, it will benefit only those who can afford imported beef or pay for beef from another state. It remains to be seen if the petitioners can eventually reverse the total ban on beef in the state. This is a tough proposal considering that in 2015 then Chief Justice of India RC Lahoti, heading a seven-judge bench, said in his judgement: “Beef contributes only 1.3 per cent of the total meat consumption pattern of Indian society.”
Second Affidavit
The farm size in Maharashtra is small, below four hectares, and farmers are heavily reliant on these animals for all agricultural and allied uses. Also, there is scientific evidence which points to the fact that the flesh of cow and its progeny contains high saturated fats and cholesterol and could be a major cause of heart disease, diabetes, obesity and cancer.
Shrihari Aney, Advocate-General’s Submission (he has since resigned)
He submitted that the petitioners challenged the Act under Articles 14 and 21. While Article 14 deals with the right to equality, Article 21 deals with the fundamental right to liberty. He urged that the petitioners would have to establish that there exists under the constitution a right to privacy which is a part of the fundamental right to life and personal liberty. Thereafter, they must establish that the right to consume beef is part of their fundamental right to privacy. Further, they would have to show how the restriction on the transport, sale, purchase and possession of flesh of animals is violative of Article 21, which includes the right to choose the food we eat.