In a significant ruling, the Bombay High Court on Friday upheld the Constitutional validity of the Maharashtra Government’s recently amended legislation prohibiting the slaughter of bulls and bullocks in addition to existing ban on cow slaughter, even while striking down two provisions that criminalised possession of beef of animals slaughtered outside the State and put the onus of proving innocence on the accused.
Delivering its verdict on a bunch of petitions challenging the Maharashtra Animal Preservation (Amendment) Act a HC division Bench of Justices AS Oka and SC Gupte upheld the Sections 5, 5A (5B) among other things prohibiting the slaughter of bulls and bullocks — in addition to a ban on cow slaughter imposed through the original law in 1976, the transport of animals for slaughter and sale or purchase of animals in the question.
However, the HC division Bench struck down Sections 5 D and 9B of the Act which criminalised possession of beef of animals slaughtered outside the State and laid the onus of proving the onus of innocence for crimes committed under the Act respectively. The Bench also struck down a reference to Section 5D in Section 9A Act which prescribes imprisonment up to one year and a fine extending up to Rs2,000 for offenders.
Upholding the Constitutional amendment made to Section 5 where words “bull or bullock” have be added to the word cow in the original law, the HC Bench observed “We uphold the constitutional validity of the amendment to Section 5 of the Animal Preservation Act made by the impugned Amendment Act.. We uphold the constitutional validity of Sections 5A and 5B”
The Bench however, tweaked Section 5 which 5 C which bans persons from possessing flesh of cow, bull or bullock slaughtered in contravention of the Act, by saying, “We hold the possession in terms of the Section 5C of the Maharashtra Animal Preservation Act, 1976 shall be “conscious procession”.
In its ruling, the HC Bench said, a) We hereby hold and declare that Section 5, Section, 5A, Section 5B, Section 5C, Subsections (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”.
In what came as setback to the Maharashtra Government, the HC Bench struck down 5D and 5B and deleted all references to Section 5D in other sections of the Maharashtra Animal Preservation Act, 1976.
“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,” the court ruled.
“Accordingly, wherever there is a reference to Section 5D in other Sections of the Maharashtra Animal Preservation Act, 1976, the same stands deleted.. 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,” the HC Bench noted.
Significantly enough, the HC bench rejected the state government’s appeal to stay the part of the judgement under which sections 5D and 5B of the Act have been held “unconstitutional”.
In its ruling, the HC Bench noted: “At this stage, the learned Government Pleader seeks stay of that part of the judgment by which Sections 5D and 9B are held to be unconstitutional. Shri Jha, the learned counsel appearing for one of the Intervenors joins Shri Vagyani, the Government Pleader. We have declared the said Sections unconstitutional as they infringe Article 21 of the Constitution of India. Therefore, the prayer for stay is rejected”.
Reacting to the significant ruling, Maharashtra chief minister Devendra Fadnavis expressed happiness over the upholding of most of the provisions in the legislation as “Constitutional” but indicated that his Government would move the Supreme Court against the striking down of two provisions in the legislation.
Talking to media persons, Fadnavis said, "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 vindicated by the court".
"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," the chief minister said.
The Maharashtra Animal Preservation (Amendment) Act, for which President Pranab Mukherjee granted sanction in February last year, held the sale of bulls and bullocks in the state for slaughter an offence punishable with five—year jail term and Rs 10,000 fine. Besides, possession of flesh of cow or of bull or bullock was also an offence for which the punishment prescribed was one year jail and Rs 2,000 fine.
Harish Jagtiani, a lawyer, and Arif Kapadia, a city resident, were among the petitioners who challenged this provision of law which says mere possession of beef in any place in the state was a crime.
Jagtiani had stated in his petition this provision of law is arbitrary and hits upon the cosmopolitan nature of the city which is home for people from various religions and communities, while Kapadia described as “draconian” section 5(D) of the Act which makes possession of flesh of any cow, bull or bullock slaughtered outside the state a cognisable and non—bailable offence.
Two other petitioners Vishal Sheth, a lawyer, and Shaina Sen, a student, had stated in their petition: “We are Hindus who are consumers of beef, which is now part of our diet and nutrition sources. The ban on beef and criminalising its sale and possession violates fundamental rights of citizens”.
On its part, the Maharashtra government had contended the Maharashtra government’s decision to impose a comprehensive ban on beef was in furtherance of the Directive Principles of State Policy enumerated in the Constitution.
In his arguments made before the HC division bench, State Advocate General Srihari Aney, representing the state, had cited a Supreme Court judgement that says that any law which is in line with the Directive Principles should be regarded as having been enacted in the public interest.
Aney had also supported the arguments of advocate Anil Anturkar, who is representing an intervenor, that ‘right to food’ is covered by right to life and liberty guaranteed by the Article 21, but not the right to ‘choice of food’.
It may be recalled that on September 21, 2015, the Bombay High Court had refused to grant an interim stay on ban on slaughter of bulls and sale of their meat during the Muslim festival of Bakri Eid on the ground that such an interim relief would amount to a stay on section 5 of the Maharashtra Preservation of Animals (Amendment) Act.
Hearing petitions from the Muslim community members seeking direction to suspend provisions temporally banning and penalising the slaughter of bulls/male calves and possession of their meat under the amended act, a HC division bench of justices A S Oka and V l Achliya, had declined to grant any interim relief under the amended Maharashtra Act, which has been invoked to impose the ban.
The petitioners --Aslam Alamgir Malkani and Ishaque Abdul Aziz Shaikh – had said that amended Act banning and penalising the slaughter of bulls/male calves and possession of their meat, violated Articles 25 (freedom of religion), 26 (freedom to manage religious affairs) and 29 (protection of interests of minorities) of the Constitution
After hearing all sides, the HC bench had reserved its judgement on a bunch of petitions, on January 8 this year.