TaxTMI 
TaxTMI 
2016 (5) TMI 1565
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....ns (L.) No. 419 of 2015 in Public Interest Litigation No. 76 of 2015, Writ Petition No. 1975 of 2015, Chamber Summons (L.) No. 306 of 2015, Chamber Summons (L.) No. 417 of 2015 in Writ Petition No. 1975 of 2015, Writ Petition No. 2680 of 2015, Chamber Summons (L.) No. 455 of 2015, Chamber Summon (L.) No. 420 of 2015 in Writ Petition No. 2680 of 2015, Writ Petition (L.) No. 2566 of 2015, Chamber Summons (L.) No. 456 of 2015, Writ Petition (L.) No. 1109 of 2015, Chamber Summons (L.) No. 418 of 2015, Chamber Summons (L.) No. 315 of 2015 in Writ Petition (L.) No. 1109 of 2015, Writ Petition No. 1653 of 2015, Chamber Summons No. 277 of 2015, Chamber Summons (L.) No. 138 of 2015 in Writ Petition No. 1653 of 2015, Chamber Summons (L.) No. 132 of 2015 in Writ Petition No. 1653 of 2015, Chamber Summons (L.) No. 120 of 2015 in Writ Petition No. 1653 of 2015, Chamber Summons (L.) No. 125 of 2015 in Writ Petition No. 1653 of 2015, Chamber Summons (L.) No. 110 of 2015 in Writ Petition No. 1653 of 2015, Chamber Summons (L.) No. 105 of 2015 in Writ Petition No. 1653 of 2015, Writ Petition (L.) No. 3395 of 2015, Writ Petition (L.) No. 3396 of 2015 and Writ Petition (L.) No. 3422 of 2015 JUDGMENT ....
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.... behalf. For the sake of convenience, we are reproducing Sections 5 to 7 of the Animal Preservation Act before its amendment which read thus:-- "5. Notwithstanding anything contained in any other law for the time being in force or any usage or custom to the contrary no person shall slaughter or cause to be slaughtered or offer for slaughter any cow, in any place in the State of Maharashtra. 6. (1) Notwithstanding anything contained in any law for the time being in force or any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered any scheduled animal in any place in the State of Maharashtra, unless he has obtained in respect of such animal a certificate in writing from the competent authority that the animal is fit for slaughter. (2) No certificate shall be granted under Sub-section (1), if in the opinion of the competent authority, - (a) the scheduled animal, whether male or female, is or likely to become economical for the purpose of draught or any kind of agricultural operations; (b) the scheduled animal, if male, is or is likely to become economical for the purpose of breeding; (c) the scheduled ani....
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....did not receive Presidential assent for considerably long time. The Presidential assent was received to the said Bill on 4th March, 2015. Accordingly, the Amendment Act was published in Maharashtra Government Gazette dated 4th March, 2015. The Amendment Act was brought into force on 4th March, 2015. The Long Title of the Principal Act as well as the Preamble were amended by the Amendment Act. By the Amendment Act, even the Schedule was amended and consequential amendment was made to Sub-section (4) of Section 1. Section 5 was amended by incorporating words "bull or bullock" after the word "cow". Sections 5A to 5D were incorporated after Section 5 of the Principal Act. Sub-sections (3) and (4) were added to Section 8 of the Principal Act. There were amendments made to Section 9 of the Principal Act. Sections 9A and 9B were added by the Amendment Act. There were amendments made to Sections 10, 11 and 14 by the Amendment Act. 9. For the sake of convenience, we are reproducing the relevant provisions of the amended Animal Preservation Act. The long title and preamble read thus: "An Act to provide for the prohibition of slaughter of cows and for the preservation of certain othe....
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.... anything contained in any other law for the time being in force, no person shall have in his possession flesh of any cow, bull or bullock slaughtered in contravention of the provisions of this Act. 5D. No person shall have in his possession flesh of any cow, bull or bullock slaughtered outside the State of Maharashtra." 13. Sections 8 and 9 as amended read thus: "8. (1) For the purpose of this Act, the competent authority or any person authorized in writing in that behalf by the competent authority (hereinafter in this section referred to as "the authorized person") shall have power to enter and inspect any place where the competent authority or the authorized person has reason to believe that an offence under this Act has been, or is likely to be, committed. (2) Every person in occupation of any such place shall allow the competent authority or authorized person such access to that place as may be necessary for the aforesaid purpose and shall answer to the best of his knowledge and belief any question put to him by the competent authority or the authorized person. (3) Any Police Officer not below the rank of Sub-Inspector or any person authorized ....
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....s of this Act, the burden of proving that the slaughter, transport, export outside the State, sale, purchase or possession of flesh of cow, bull or bullock was not in contravention of the provisions of this Act shall be on the accused." 15. Section 10 as amended reads thus: "10. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under this Act shall be cognizable and non-bailable." (portion in bold letters added by Amendment) 16. For the sake of completion, we may also make a reference to the statement of objects and reasons of the Amendment Act which reads thus:-- "1. The Maharashtra Animal Preservation Act, 1976 (Mah. IX of 1977), has been brought into force in the State from the 15th April 1978. The Act totally prohibits in any place in the State, slaughter of cows which also include heifer and male or female calf of cow and provides for preservation of certain other animals specified in the schedule to the Act, like bulls, bullocks, female buffaloes and buffalo calves. Section 6 of the Act empowers the persons appointed as competent authority under this Act to issue certificate for slaughter of the scheduled animals....
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....ent for certain kind of offences under section 9 of the Act from six months to five years and of fine of one thousand rupees to ten thousand rupees and with a view to curb the tendency towards such offences also making such offences non-bailable so as to serve as deterrent." 17. Broadly, it can be said that by the Amendment Act, a complete ban on slaughter of bulls and bullocks in the State has been imposed by amending Section 5 of the Animal Preservation Act in addition to complete ban on the slaughter of Cow which was already provided in unamended Section 5. Under the unamended Animal Preservation Act, bulls and bullocks were scheduled animals which could be slaughtered only after obtaining a certificate of the Competent Authority in accordance with Sub-section (1) of Section 6. Sub-section (2) of Section 6 provided that no certificate as contemplated by Sub-section (1) would be granted unless the conditions specified in Sub-section (2) were satisfied. Now after the coming into force of the Amendment Act, only female buffaloes and buffalo calves continue to be scheduled animals as bulls and bullocks have been removed from the Schedule. By introducing Section 5A, a complete ban o....
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....s the right to choose what a citizen may eat/consume. It is contended that the impugned Sections seek to prevent a citizen from possessing flesh of cow, bull or bullock which is slaughtered outside the State where there is no prohibition on slaughter. It is contended that the impugned provisions are ex-facie arbitrary and have no nexus with the purpose, object and ambit of the Animal Preservation Act. It is contended that the provisions are violative of Article 14 of the Constitution of India. It is contended that the said amended provisions are contrary to the object of Article 48 of the Constitution of India. It is urged that the amended Sections put restrictions on Inter-State trade and commerce contrary to the provisions of Article 301 of the Constitution of India. Various other contentions are raised such as the amended provisions are in violation of right of preservation of culture and violation of right to life. 21. The State Government has relied upon the affidavits in reply filed by it in Writ Petition No. 1653 of 2015 for defending this Petition. Moreover, in this Petition, there is a reply dated 17th July, 2015 filed by the State Government by Shri Shashank Madhav Sathe....
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.... Petition under Article 226 of the Constitution of India, a declaration is sought that the Amendment Act is violative of various provisions of the Constitution of India and be declared as illegal, ultra-vires and void. The first Petitioner in the said PIL claims to be a film maker and the second Petitioner who is his wife is claiming to be a writer. The third Petitioner is an Advocate by profession. It is alleged that the provisions of the Amendment Act are in breach of Articles 19, 21 and 29 and the said provisions contravene the Directive Principles of State Policy incorporated under Articles 47, 48, 48A and 51A. It is urged that the Amendment Act violates the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India of the owners of the cattle, cattle dealers and butchers and beef sellers and the owners of leather industry. The statistics of milk production and other details have been incorporated in the Petition. There is a detailed affidavit in reply dated 1st December 2015 of Shri Shashank Madhav Sathe filed in the said Writ Petition along with the annexures thereto. We have reproduced the details set out in the said reply in the subsequent part of the....
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....stitution of India has been filed by the Petitioners who are claiming to be active social workers engaged in social, agricultural and welfare activities for the upliftment of poor and down-trodden in the society. The prayer made in this Writ Petition is for a declaration that the Animal Preservation Act and the Amendment Act are unconstitutional. Chamber Summons (L.) No. 456 of 2015 has been filed in this Writ Petition for intervention by Karuna Animal Welfare Trust. The intervention is for opposing the Writ Petition. ORIGINAL SIDE WRIT PETITION (L) NO. 1109 OF 2015 27. This Petition has been filed for challenging the constitutional validity of Sections 5, 5A, 5C, 5D, 6 as well as Sections 9 and 9A of the Animal Preservation Act. There are 29 Petitioners in this Petition. Some of them are activists. Some of them are claiming to be beef eaters. Some of them are Doctors and journalists. Some of them are film producers and womens' rights activist. One of them is the President of the Beef Market Merchants' Association, Sangli. Chamber Summons No. 315 of 2015 has been filed by Viniyog Parivar Trust in this Petition for intervention. The Intervenors desire to oppose the Petitio....
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.... claiming to be a social activist. He is also an elected member of the Maharashtra Legislative Assembly. In this Petition, the challenge is to the validity of the entire Amendment Act mainly on the ground of infringement of fundamental rights under Articles 21 and 25 of the Constitution of India. APPELLATE SIDE WRIT PETITION NO. 9209 OF 2015 32. This Petition has been filed by the Indian Union Muslim League. In the said Petition, there is a challenge to the constitutional validity of the Amendment Act based on violation of fundamental rights under Article 25 of the Constitution of India. It is contended that sacrifice of bulls and bullocks is an essential part of festival of Eid-Ul-Adha and Eid-ul-Fitr. Violation of Article 48 is alleged in this Petition. It is contended that the Amendment Act infringes the fundamental right of the citizens under Articles 14, 21, 25 and 29 of the Constitution of India. APPELLATE SIDE WRIT PETITION NO. 9996 OF 2015 33. This Writ Petition has been filed by Jamat-ul-Quresh Minority Association and others wherein the challenge is to the constitutional validity of the Amendment Act on the ground that it violates the fundamental rights under Articles....
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.... SIDE WRIT PETITION NO. 1379 OF 2015 37. The first and third Petitioners are Advocates by profession. The second Petitioner is a student. The challenge in this petition under Article 226 is to the constitutional validity of the entire Amendment Act on the grounds of the violation of Articles 19 and 21 of the Constitution. It is contended that the amendment is contrary to Article 48. APPELLATE SIDE WRIT PETITION NO. 5731 OF 2015 38. In this Petition, the challenge is to the constitutional validity of all the provisions of the Unamended provisions of the Animal Preservation Act and the Amendment Act on the ground that the same infringe Articles 15, 16, 19, 21 and 25 of the Constitution of India. A SUMMARY OF THE SUBMISSIONS CANVASSED ACROSS THE BAR 39. Detailed submissions were made by the parties including the Intervenors. Some of the submissions are common. We are reproducing a summary of the relevant submissions made on behalf of the parties. 40. In Writ Petition No. 1314 of 2015, Shri Chinoy, the learned senior counsel made detailed submissions. He pointed out the unamended provisions of the Animal Preservation Act and the nature of the amendments incorporated by the Amendm....
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....egistrar & Collector, Hyderabad v. Canara Bank (2005) 1 SCC 496. By pointing out the decision of the Apex Court in the case of M.P. Sharma and others v. Satish Chandra AIR 1954 SC 300, he submitted that the Apex Court has not considered the question whether right to privacy is a part of right to personal liberty guaranteed under Article 21 of the Constitution of India. He pointed out that in the decision in the case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat and others (2008)5 SCC 33, the Apex Court has observed that what one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of the Constitution of India. He relied upon the recent decision of the Apex Court in the case of National Legal Services Authority v. Union of India (2014) 5 SCC 438 which holds that Article 21 takes all those aspects which go to make a citizen's life meaningful and it protects personal autonomy and right of privacy. He submitted that the essence of personal liberty guaranteed by Article 21 is the personal autonomy of an individual and it is a right to be let alone. He would urge that the negative right is not to be subjected to interferen....
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....the personal liberty guaranteed under Article 21 is a compendious term which includes all varieties of rights which go to make up the personal liberties of a man i.e. the personal autonomy to live his life in the manner he chooses. He submitted that this would include the right of an individual to eat food of his choice. He urged that if there is any material tangible restriction on, and interference by the State with, the personal autonomy/personal liberty, it would violate Article 21 of the Constitution of India. He submitted that in the decision in the case of M.P. Sharma, the Apex Court observed that right of privacy has not been recognized in the Constitution as a separate fundamental right. He urged that the Apex Court in the decisions in the cases of R. Rajagopal v. State of Tamil Nadu, the District Registrar & Collector v. Canara Bank and Hinsa Virodhak Sangh v. Mirzapur was dealing with direct and tangible intrusions into, and restrictions on, personal autonomy/personal liberty. He pointed out that these decisions hold that such intrusions into or restrictions on the personal autonomy were violative of the right to privacy which was equated with the personal liberty/person....
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....rty which includes personal autonomy, the right to be let alone and to live his life without interference, is infringed by Section 5D. He pointed out that the right to privacy which is a part of the personal liberty is infringed. Relying upon the decision of the Apex Court in the case of National Legal Services Authority v. Union of India, he submitted that what is held by the Apex Court is that the personal autonomy includes both the negative right not to be subjected to interference by others and the positive right of individuals to make decisions about their life. He submitted that the concept of personal autonomy is the essence of personal liberty and the right to exercise personal choice regarding diverse aspects of his life constitutes personal liberty of a man. Relying upon the provisions of the Food Safety and Standards Act, 2006 and the Regulations framed thereunder, he urged that bovine flesh has been statutorily accepted as a nutritious food. He urged that in any event the State has not placed any material on record to show that the consumption of bovine flesh is harmful to the human health. He submitted that Section 5D violates personal liberty guaranteed under Article ....
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....unless possession of meat of a cow slaughtered outside the State or outside the country is not prohibited and criminalised. He pointed out that even under the unamended Animal Preservation Act, slaughter of bulls and bullocks on the basis of the certificate issued under Section 6 was permitted only at the Municipal or Government Abattoirs. He submitted that there is nothing placed on record as to why import of the beef from other States and abroad cannot be adequately regulated, if that is felt necessary to ensure that it does not create any hindrances in the implementation of the ban on cows, bulls and bullocks. He also pointed out that Section 5D does not create mere prohibition but the amendment to Section 9 makes the possession of flesh of cow, bull or bullock an offence. Moreover, Section 9B imposes onerous negative burden on the person who is found in possession of such meat which is prohibited by Section 5D. He urged that this drastic provision will also apply to the flesh of cow, bull or bullock which is a product on slaughter in a State where there is absolutely no prohibition on the slaughter. 45. The learned senior counsel appearing for the Petitioner summarized his sub....
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....relying upon the directive principles of State policy which attract a presumption that the legislation is in public interest. However, the factual issues raised by the Petitioners have not been dealt with by the State. He submitted that even assuming that the Amendment Act is relatable to directives principles of the State policy, it is not necessary to presume that the restrictions imposed by the provisions thereof on the fundamental rights are reasonable. Relying upon a decision of the Apex court in the case of Akhil Bharatiya Soshit Karmachari Sangh v. Union of India (1981)1 SCC 246, he urged that the reasonableness of restrictions imposed by the Statute is required to be independently examined. He urged that the decision of the Apex Court in the case of Pathumma v. State of Kerala AIR 1978 SC 771 will not help the State. His submission is that the directives principles of the State policy per se can never negate the requirements of Part III. He submitted that in the facts of the case, it was necessary for the State to establish reasonableness of restrictions and the existence of compelling public interest. 48. He urged that when a law enacted simplicitor for protecting bulls a....
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....e case of Javed v. State of Haryana AIR 2003 SC 3057, he urged that the judgment does not suggest that the test of reasonableness can be dispensed with merely because the Statute is enacted in furtherance of the directive principles of the State policy. He also relied upon a decision of the Apex Court in the case of Minerva Mills v. Union of India AIR 1980 SC 1789. He submitted that the Apex Court negatived the contention that the directive principles automatically support legislation which curtail fundamental rights. He relied upon Paragraphs 62 and 68 from the said decision. 50. In Writ Petition (L) No. 3396 of 2015, the challenge is to the constitutional validity of Sections 5C and 5D as well as Sub-section (3) of Sections 8 and 9B. The basic submission of the learned senior counsel appearing for the Petitioners is that if the word "Possession" appearing in Sections 5C and 5D is not read down to mean as "conscious possession", Sections 5C and 5D will become unconstitutional. Another submission is that Section 9B is ultra vires the Constitution of India as the negative burden cast by it virtually means that there is a burden to prove that the accused is innocent. Another content....
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....me has no nexus with the object of the Amendment Act. 52. The Submission of the learned senior counsel is that wherever the violation of Article 19 of the Constitution of India is alleged, the burden is on the State is to justify the validity of the statute. The contention is that the said burden has not been discharged by the State in the present case. It is contended that the restrictions under Clause (6) of Article 19 of the Constitution of India must not be arbitrary or excessive so as to go beyond the requirements of the interest of the general public and there must be a direct and proximate nexus between the restrictions imposed and the object which is sought to be achieved. 53. The learned counsel appearing for the Petitioners in Writ Petition No. 9996 of 2015 urged that on 8th January 2007, the Animal Husbandry Department wrote a letter to the Law and Judiciary Department stating that the bill of the Amendment Act be withdrawn and hearing must be given to all the concerned. Notwithstanding this view, there were no deliberations made by the Government of Maharashtra. Reliance is placed on the decision of the Apex Court in the case of Manohar S/o Manikrao Anchule v. State o....
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....he sacrifice of the cows and holds that it is not essential religious practice. He relied upon a decision of the Apex Court in the case of Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388 by contending that every person has a fundamental right under Article 25 of the Constitution which includes the right to exhibit his beliefs and ideas by such overt acts as are enjoined or sanctioned by his religion. He submitted that the sacrifice of bull is a religious usage and, therefore, it will fall under Clause (2)(b) of Article 25 of the Constitution of India as held by the Apex Court in its decision in the case of Sheshammal v. State of Tamil Nadu (1972)2 SCC 11. Coming back to the judgment in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, he urged that the Apex Court has recorded in the said decision that there are 335 Goshalas and 174 Panjarpoles in the State of Gujarat and as against this, in the State of Maharashtra, there are only 86 Goshalas. It is pointed out that as per the report of the Commissioner of Animal Husbandry dated 30th March 2010 for taking care of 3 lakhs uneconomical bullocks, there is a necessity of 300 more Goshalas. He pointed out t....
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....e relied upon various decisions of the Apex Court including the decisions in the cases of Ratilal Panachand Gandhi v. State of Bombay & Others and Seshammal and Others v. State of Tamil Nadu. In addition, she relied upon a decision of the Apex Court in the case of Commissioner, Hindu Religion Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282. She relied upon a decision of the Apex Court in the case of Dr. M. Ismail Faruqui & Others v. Union of India (1994)6 SCC 360 by submitting that the secularism is a positive concept of equal treatment of all religions. She urged that imposition of total ban on the slaughter of bulls and bullocks amounts to violation of Clause (g) of Article 19(1) of the Constitution of India and, therefore, the burden of proof that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State Government. She urged that laws permitting slaughter of bovine cattle by itself are not unconstitutional. She relied upon the extract of Holly Quran in support of her contention that the slaughter of bull and bullocks on the religious occasion is an essential pract....
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....ically weaker sections of muslim community to perform their religious obligation. She pointed out that the sacrifice of a goat is counted and treated as a single qurbani per person whereas, seven mature muslims can join together in case of sacrifice of one cow, bull or bullock. The submission in short is that the sacrifice of bulls and bullocks forms an integral and essential part of the religion of Islam and therefore, a complete ban imposed by the Amendment Act by introducing Section 5 of the Animal Preservation Act infringes fundamental rights guaranteed under Article 25 of the Constitution of India. 57. The learned senior counsel appearing for the Petitioners in Writ Petition (L) No. 3395 of 2015 urged that the possession under Sections 5C and 5D will have to be a conscious possession. He relied upon a decision of the Apex Court in the case of Mohan Lal v. State of Rajasthan (2015)6 SCC 222. He also relied upon the decisions of the Apex Court in the cases of People's Union for Civil Liberties and Another v. Union of India (2004)9 SCC 580, Sanjay Dutt v. State Through C.B.I., Bombay (II) (1994)5 SCCC 410 and Gopaldas Udhavdas Ahuja and Another v. Union of India and Others (....
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....urged that such a right is not included in the fundamental rights in Part III of the Constitution of India. 59. He urged that Article 21 of the Constitution of India cannot be read to include each and every right. He pointed out that in large number of cases, the Apex Court has refused to read certain rights in Article 21. He submitted that the rights which are essential for life are included in Article 21 of the Constitution of India and the rights which are not essential are not included therein. He submitted that even if the right to life and liberty includes every right which makes the life meaningful, it would mean only core rights or essential rights and not fringe rights. He submitted that the fringe rights are the one which are merely desirable to make the life comfortable or more comfortable or luxurious. He urged that in the present case, the Petitioner is not only claiming the right to food but claiming the right to a particular food in a particular geographical area, i.e., the State of Maharashtra, which right is not protected by the Constitution of India. He urged that if such a right is held to be a part of right under Article 21, the same would be available even to ....
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....Trust urged that in India, there is a drastic shortfall of the required cattle. He submitted that against the requirement of 88,21,660 bullocks, there are only 54,23,718 bullocks. He submitted that the estimated meat production in the State during the year 2014-2015 of buffaloes was 84.495 metric tonnes. He pointed out that the India is the largest exporter of buffalo meat. Relying upon the affidavit-in-reply filed by the State Government in PIL No. 76 of 2015, he would urge that the State has made necessary provision for providing fodder and care of cattle. He submitted that in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others, the Apex Court has termed the act of slaughter of cattle in its old age as an act of reprehensible ingratitude. He submitted that the Amendment Act is saved by Article 31-C and it is in furtherance of Articles 48 and Clause (g) of Article 51-A of the Constitution of India. 62. While coming to the reasonableness of the restrictions which can be imposed, he urged that the reasonableness has to be judged not from the view point of citizen who may be objecting to the restrictions but from the view point of the object which is sought....
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....65. The learned counsel appearing for the Intervenor in Writ Petition No. 9209 of 2015 pointed out that at least in 14 States in the country, there is a total ban on the slaughter of entire cow progeny. It is contended that practically in all the States in Northern India, except the North East, there is a total ban on the slaughter of entire cow progeny. He relied upon a decision of the Apex Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat. Relying upon Article 48 of the Constitution of India, he urged that there is no constitutional mandate in favour of slaughtering of animals. He submitted that the Intervenor himself is a follower of Islam religion and is practising the said religion. He submitted that according to the Intervenor, the interpretation put by the Petitioner to the Holly Quran is completely erroneous. 66. On the negative burden, the learned senior counsel representing the Petitioner relied upon a decision of the House of Lords in the case of Regina v. Johnstone (2003)1 WLR 1736. Reliance was also placed on another decision of the House of Lord in the case of Regina v. Lambert (2002)3 Appeal Cases 545. 67. The learned counsel appearing for....
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....erit in the challenge to the constitutional validity of the Amendment Act. 68. Shri J.S. Kini, the learned counsel appearing for the Intervenors in Writ Petition No. 1653 of 2015 urged that the rights of the animals which are sought to be slaughtered for the purposes of eating will have to be protected by this Court. He relied upon a decision of the Apex Court in the case of Aarushi Dhasmana v. Union of India and Others (2013)9 SCC 475. He also relied upon the views of Swami Vivekananda. He urged that the entire mankind drinks milk and consumes milk products. He submitted that though the entire mankind is benefited by milk and milk products, some human beings want the Court to permit the cattle to be slaughtered. He urged that the slaughter is rightly prohibited in the State by the Amendment Act. Relying upon a decision of the Apex Court in the case of Javed v. State of Haryana, He urged that the Apex Court has held that the fundamental rights must not be read in isolation but will have to be read along with the directive principles of the State Policy and the fundamental duties. He submitted that the act of prohibiting beef eating does not amount to a breach of fundamental rights....
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....n of flesh of cow, bull or bullock in the State is something which is necessary. 70. Learned counsel appearing for the Applicants in Chamber Summons No. 277 of 2015 in Writ Petition No. 1653 of 2015 has contended that if Section 5D is declared as ultra vires the Constitution, the entire Act will become redundant and the very purpose of enacting the Act will be defeated. Reliance was placed on the fundamental duties under Clause (g) of Article 51A of the Constitution of India. It is pointed out that this Court has prohibited killing of dogs except in exceptional circumstances. Therefore, if the slaughter of any animal is not prevented, it will be discriminatory to other animals. Reliance is placed on the opinions expressed by the great personalities like Mahatma Gandhi and Sri Aurobindo etc. It is contended that red meat is injurious to health. The learned counsel has also given a historical perspective of Muslims and British Rules as well as Independence Movement. He has also referred to various tenets of Muslim religion. The submission of saints have laid great emphasis on leading a noble life and a life of renunciation and compassion, eating simple food and abstaining from consu....
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.... an essential ingredient of personal liberty. Since personal liberty under Article 21 extended to the right of an individual to be free from restrictions and encroachments on his person, a violation of the right to privacy should be understood also to be an encroachment of his person and therefore a violation of Article 21. Ayyangar, J. for the majority refers to the right of privacy as an aspect of personal liberty under Article 21. He urged that the majority judgment clearly says that our constitution does not in terms confer any like constitutional guarantees. The ratio of the majority judgment is that in any case, such a right to choice, if at all it exists, must be "both direct and tangible" and must be "something tangible and physical" and not attributable to imponderable effects on the mind of the person. It is not possible to extend this judgment to include what the Petitioners term as "the right to choice". It goes without saying that the right to privacy, which means the same as the right to be left alone, is an individual's right subject to non interference where the privacy is enjoyed for the doing of any lawful activity. If, by virtue of the provisions of the impug....
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....cy as discussed in R. Rajagopal v. State of Tamil Nadu needs to be considered. In attempting to establish that the right to privacy is an aspect of Fundamental Right, the Supreme Court held that it was established in the facts of that case, as being connected with the Fundamental Right to speech and expression under Article 19(1)(a). He stated that with great respect, the discussion attempting to relate the right to privacy as a part of right to life under Article 21 was inconclusive. Reference was made to American law and judgments, most of which has already been considered in both Kharak Singh and Gobind. The U.S. Law was mostly viewed from the stand point of rights of private citizens with regard to freedom of speech and expression. The conclusion drawn in paragraph 26 is that even where it was said that the right to Privacy is implicit in the right to life guaranteed under Article 21, it was in respect of certain aspects of privacy such as the citizen's right to safeguard the privacy of himself, his family, marriage, procreation, motherhood, child bearing and education amongst other matters, and that no one could publish anything concerning these matters without his consent....
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....k" that this exposition of the right to privacy is more in the nature of a literary exercise than a judicial finding. The conclusion that the right to privacy and the right to eat should be treated like a Fundamental Right was without any reasoning. 78. He contended that the words "right to eat", when equated with the words like the right to sleep, breathe or drink, carry a specific emphasis. They are concerned with the right of every person to have access to food in order to nourish his body and sustain his life. It cannot be stretched by any means to cover the right to choose a particular kind of food. Assuming therefore that the right to eat is a part of the right to privacy, which might be a part of the right to life and liberty, it cannot be extended to mean that the right to eat beef is a fundamental right to eat. The right to eat the food of one's choice has been held to be an aspect of a person's right to privacy by a two-Judge Bench of the Supreme Court in Hinsa Virodhak Sangh v. Mirzapur Moti Kureshi Jamat. However, the aforesaid observation proceeds on an assumption that the right to privacy is included in Article 21 of the Constitution. Since it has been demons....
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.... right to life and personal liberty as contemplated by Article 21 of the Constitution, departed from the principles laid down by the Constitution of India. 81. The Supreme Court in the case of Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005)2 SCC 673 has categorically held that the law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser strength. Therefore, a High Court is also bound by a decision delivered by a Larger Bench. 82. He, therefore, submitted that it is a settled law that the right of privacy claimed by the Petitioner is not a part of his fundamental right to life or personal liberty under Article 21 of the Constitution of India. In the absence of such a fundamental right, the ultra vires challenge based on breach of fundamental rights is not available. As it is not a fundamental right, its curtailment by the impugned legislation cannot be attacked for want of compelling public interest. 83. The learned Advocate General submitted that the impugned provision of the Amendment Act finds justification in compelling public interest. He submitted that the Amendment Act has ....
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....od. He pointed out that there is a reasonable nexus between the enactment and the object sought to be achieved by the Act of 1976 and the impugned provisions of Sections 5D and 9B. 84. Relying upon a decision of the Apex Court in the case of Intellectual Forum v. State of Andhra Pradesh (2006)3 SCC 549, he urged that Article 48-A and Article 51A are not only fundamental in the governance of the country but that it is a duty of the State to apply these principles in making the laws. These two Articles are to be kept in mind to understand the scope and purport of the fundamental rights guaranteed by the Constitution of India including Articles 14, 19 and 21 thereof. Relying upon a decision of the Apex Court in the case of Municipal Corporation of the City of Ahmedabad & Others V. Jan Mohammed Usmanbhai and Another (1986)3 SCC 20, he urged that the expression "in the interest of general public" is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution. He submitted that since the impugned provisions of the Amendment Act are in furtherance of the directives sought to ....
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....hat the culture refers to the underlying characteristics that is shared in common by people in a particular section of the Society. He submitted that the Petitioners in the present case have failed to establish that the slaughtering of cows, bulls and bullocks or consumption of their flesh is such a common underlying characteristics of a particular class to which they belong. He urged that in any event, assuming that the fundamental rights under Article 29 of the Constitution of India have been restricted, such restriction is in public interest. 88. The learned Advocate General submitted that the Animal Preservation Act has been enacted under Entry 15 of List II of the Seventh Schedule of the Constitution of India, and therefore, in view of Clause 3 of Article 246 of the Constitution, the State Legislature was competent to enact the said law. He submitted that the Animal Preservation Act and the Prevention of Cruelty to Animals Act, 1960 operate in completely independent legislative fields. He submitted that the Prevention of Cruelty to Animals Act has been enacted under Entry 17 of the Concurrent List. He also relied upon the doctrine of pith and substance. As far as the argument....
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....sion has attained finality. STATE OF GUJARAT v. MIRZAPUR MOTI KURESHI KASSAB JAMAT 94. Before we deal with the grounds of challenge and the defence of the State, it will be necessary to make a reference to the decision of the Apex Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat. The reason for making a reference to the said decision is that by the said decision, a Constitution Bench of the Apex Court upheld the validity of a similar provision incorporated in the Bombay Animal Preservation Act, 1954 (as applicable to the State of Gujarat). This Act is hereafter for convenience is referred as "Gujarat Act". Before its amendment, Sub-section (1) of Section 5 of Gujarat Act provided that no person shall slaughter or cause to be slaughtered any animal unless he has obtained in respect of such animal, a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter. In the year 1961, Section 5 of the Gujarat Act was amended. Again in the year 1979, the Gujarat Act was amended by incorporating a provision in Sub-section (1) in Section 5 that no such certificate shall be granted in respect of a cow. By the said ....
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....ion (2), for the words 'No certificate' the words, brackets, figure and letter 'In respect of an animal to which sub-section (1-A) does not apply, no certificate' shall be substituted; (3) in sub-section (3), for the words 'religious purposes' the words, 'religious purposes, if such animal is not a cow' shall be substituted." 96. Thereafter, a total ban on the slaughter of cow was brought about by 1979 Amendment Act. Section 1A was substituted as under: "(1-A) No certificate under sub-section (1) shall be granted in respect of - (a) a cow; (b) the calf of a cow, whether a male or female and if male, whether castrated or not; (c) a bull below the age of sixteen years; (d) a bullock below the age of sixteen years." 97. Then came the 1994 Amendment to the Gujarat Act which further amended Sub-section (1A) of Section 5 by substituting Clauses (c) and (d). The Section 2 of the Amendment Act of 1994 reads thus: "2. In the Bombay Animal Preservation Act, 1954 (hereinafter referred to as 'the principal Act'), in Section 5,- (1) in sub-section (1-A), for clauses (c) and (d), the followi....
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....us: "Quareshi-I holds Directive Principles of State Policy to be unenforceable and subservient to the Fundamental Rights and, therefore, refuses to assign any weight to the Directive Principle contained in Article 48 of the Constitution and refuses to hold that its implementation can be a valid ground for proving reasonability of the restriction imposed on the Fundamental Right guaranteed by Article 19(1)(g) of the Constitution - a theory which stands discarded in a series of subsequent decisions of this Court. (2) What has been noticed in Quareshi-I is Article 48 alone; Article 48A and Article 51A(g) were not noticed as they were not available then, as they were introduced in the Constitution by Forty-second Amendment with effect from 3.1.1977. (3) The meaning assigned to "other milch and draught cattle" in Quareshi-I is not correct. Such a narrow view as has been taken in Quareshi-I does not fit into the scheme of the Constitution and, in particular, the spirit of Article 48. (4) Quareshi-I does not assign the requisite weight to the facts contained in the Preamble and Statement of Objects and Reasons of the enactments impugned therein. (5)....
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....A of the Constitution play a significant role. The decision in Quareshi-I [1959 SCR 629 : AIR 1958 SC 731] in which the relevant provisions of the three impugned legislations was struck down on the singular ground of lack of reasonability, would have decided otherwise if only Article 48 was assigned its full and correct meaning and due weightage was given thereto and Articles 48-A and 51-A(g) were available in the body of the Constitution." (emphasis added) Question 3 "In our opinion, the expression 'milch or draught cattle' as employed in Article 48 of the Constitution is a description of a classification or species of cattle as distinct from cattle which by their nature are not milch or draught and the said words do not include milch or draught cattle, which on account of age or disability, cease to be functional for those purposes either temporarily or permanently. The said words take colour from the preceding words "cows or calves". A specie of cattle which is milch or draught for a number of years during its span of life is to be included within the said expression. On ceasing to be milch or draught it cannot be pulled out from the category of "o....
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.... Objects and Reasons appended to it. In the light of the material available in abundance before us, there is no escape from the conclusion that the protection conferred by impugned enactment on cow progeny is needed in the interest of Nation's economy. Merely because it may cause 'inconvenience' or some 'dislocation' to the butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the general public. The former must yield to the latter." (emphasis added) 100. In paragraph 81, the Apex Court, observed thus: "The facts contained in preamble and the Statement of Objects and Reasons in the impugned enactment highlight the following facts: (a) Cow and her progeny sustain the health of the nation; (b) Working bulls are indispensable in agriculture as they supply power more than any animal; (c) The dung of the animal is cheaper than the artificial manures and is extremely useful for production of bio-gas; (d) The backbone of Indian Agriculture is the cow and her progeny and they have on their patient back the whole structure of the Indian agriculture and economic system; (e) T....
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.... in the year 1970-71, 66.20 lakh bovine animals were vaccinated and in the year 2014-15, 455.21 lakh bovine animals were vaccinated. In the said affidavit, he pleaded that according to the statistical data quoted by National Dairy Development Board, in its report "Dairying in Maharashtra- Statistical Profile 2015", the area under fodder crops in Maharashtra in the year 2010-2011 was 9,01,000 hectares and the area of permanent pasture and grazing lands was 12,45,000 hectares. In the said affidavit, he pleaded that in addition, there is a sizable production of coarse foodgrains like bajra, raagi, jowar, millet etc. The plant residue of these crops is used as a fodder. All these facilities put together try to cope up with the fodder requirement of cattle population of Maharashtra State. However, the uncertainties in monsoon rains pose difficulties in availability of green as well as dry fodder. The State Government through various measures is promoting production as well as availability through preservation of green and dry fodder for the cattle. The said measures set out in the affidavit are as under: "(a) Distribution of fodder seed to the farmers under centrally sponsored f....
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....applicable in case of large farms. This is not the position in the State. An average small farmer can ready his farm with proper tilling in 2/3 days' time before the rains are expected. The farmer is not caught unawares. Further, mechanical tilling with tractors has got its own disadvantage. The mechanical tiller breaks the crust of the soil up to the depth of 12 to 15 inches. This exposes the crust of 12 to 15 inches to outside dryness and the humus of the entire crust is lost. In this situation, unless there is good rain or irrigation to make the crust of 12 to 15 inches wet, sowing cannot take place. On the other hand, ploughing with the conventional plough with the help of bullocks breaks the crust up to the depth of 5 to 6 inches only and the humus below this level is retained. In this situation, even a small amount of rain makes the crust wet and suitable for sowing. I say that the Petitioners have given examples of unusual phenomena of rain this year in Western Maharashtra. The phenomena being unusual cannot justify their contention. I further say that bullocks also are used for transportation of Agriculture produce through bullock cart which is much economical t....
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.... in Punjab and other parts of the country and rendered the soil as infertile. Organic manure rejuvenates soil, is freely available as a bonus and by-product from cattle at the farmers' door step and does not need the huge infrastructure for production and distribution of chemical fertilisers." (emphasis added) 104. Paragraph 10 of the affidavit of Shri Sathe deals with the contention regarding the methane emissions. It is contended that methane is not produced only by cattle and there are other sources of methane emission. It is contended as under: "Belching or breaking winds are natural things with any living being. Even human beings belch and break wind. Thus this factor cannot be made responsible for elimination of the livestock population." 105. In Paragraph 11, it was contended that the shortage of dung which is the source of organic manure has compelled the use of chemical fertilizers. It is contended that the shortage can be overcome only by increasing dung availability and that is possible only if the cattle is saved. It is contended that under the Indian Agriculture and Animal Husbandry Practices, yielding of dung by cattle enjoys the topmost position ....
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....hashank Sathe had filed an affidavit-in-reply. In Paragraph 16 of the said affidavit, it is contended that flesh of cow and its progeny leads to diabetes, obesity etc. We must note here that the said contention is not pressed into service in the subsequent affidavit dated 1st December 2015 of Shri Sathe. We must also note that the learned Advocate General has not pressed the said contention in the earlier affidavit of Shri Shashank Sathe. In the affidavit dated 1st December 2015, he has stated thus: "17. In reply to para 21 of the Affidavit in Rejoinder I submit that it is not the intention of the State to impose a vegetarian regime or dictate/force food habits. The non-vegetarians are free to have their own food choices but cannot insist as a matter of right on a particular type of meat- beef in the present case. As regards the effect of non-vegetarian food on health, the consumers are free to have their own informed choices. The aim and object of the impugned act is to preserve cattle for their undeniable utility in agriculture and draught sectors." (emphasis added) 108. Coming back to the affidavit dated 1st December 2015 of Shri Shashank Sathe, it was contended ....
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.... the Apex Court in the case of State of Gujarat v. Mirzapur dealt with the challenge to similar Gujarat enactment, basically on the ground of infringement of rights of butchers and traders in meat under Article 19(1)(g) and Article 14 of the Constitution of India. However, the Apex Court has observed that the issue of violation of Article 25 has not been dealt with. 111. After the amendment to Section 5 of the Animal Preservation Act, Butchers can continue to slaughter other animals and traders can continue to trade in meat of the other animals. Thus, what is done by the impugned amendment to Section 5 is a restriction and not prohibition. Hence, the question is whether the restriction is reasonable in terms of Article 19(6). 112. We have extensively referred to the decision of the Apex Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat. In the said decision, the Constitution Bench of the Apex Court has quoted the decision in the case of Pathumma v. State of Kerala with approval. In Paragraph 39, the Constitution Bench of the Apex Court has analysed the decision in the case of Pathumma and the same has been summarized. Summary of the said decision reads t....
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.... to vary from case to case and having regard to the changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances all of which must enter into the judicial verdict. (para 15) (d) The Court is to examine the nature and extent, the purport and content of the right, the nature of the evil sought to be remedied by the statute, the ratio of harm caused to the citizen and the benefit conferred on the person or the community for whose benefit the legislation is passed. (para 18) (e) There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object which is sought to be achieved. (para 20) (f) The needs of the prevailing social values must be satisfied by the restrictions meant to protect social welfare. (para 22) (g) The restriction has to be viewed not only from the point of view of the citizen but the problem before the legislature and the object which is sought to be achieved by the statute. In other words, the Court must see whether the social control envisaged by Article 19(1) is being effectuated by the restrictions imposed on....
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....n and protection of agricultural animals like bulls and bullocks. With the growing adoption of non-conventional energy sources like bio-gas plants, even waste material have come to assume considerable value. After the cattle cease to be useful for the purpose of breeding or are too old to do work, they still continue to give dung for fuel, manure and bio-gas and, therefore, they cannot, at any time, be said to be useless. It is well accepted that the backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny and they have, on their back, the whole structure of the Indian agriculture and its economic system. 3. In order to achieve the above objective and also to ensure effective implementation of the policy of State Government towards securing the directive principles laid down in article 48 of the Constitution of India and in larger public interest, it is considered expedient by the Government of Maharashtra to impose total prohibition on slaughter of also the progeny of cow. Certain other provisions which it is felt by the Government would help in effecting the implementation of such total ban are also being incorporated such as provision for prohi....
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....ndian agriculture is in a manner of speaking the cow or her progeny. Clause 3 records that with a view to achieve the above object and also to ensure effective implementation of the policy of the State Government towards securing the directive principles laid down in Article 48 of the Constitution of India and in larger public interest, it is considered expedient by the Government of Maharashtra to impose total prohibition on slaughter of the progeny of cow as well. It is provided that for effective implementation of such total ban, it is necessary to provide for prohibition on the transport, export, sale or purchase of the category of cattle, the slaughter of which is proposed to be banned. It is further provided that for effective implementation of the ban, there is a need to provide for entry, search and seizure of the place and vehicles where there is a suspicion of such offences being committed and a provision of placing the burden of proof on accused. 115. Thus, the legislature felt that it is necessary to preserve and protect agricultural animals like bulls and bullocks. Even after bulls or bullocks cease to be useful for the purposes of breeding or even after bulls or bull....
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....n. On ceasing to be milch or draught it cannot be pulled out from the category of "other milch and draught cattle" mentioned in Article 48. Hence, bulls and bullocks on ceasing to be milch or draught continue to be covered by Article 48. (ii) Article 48 consists of two parts. The first part enjoins the State to "endeavour to organise agricultural and animal husbandry" and that too "on modern and scientific lines". The emphasis is not only on "organisation" but also on "modern and scientific lines". The subject is "agricultural and animal husbandry". India is an agriculture-based economy. According to the 2001 census, 72.2% of the population still lives in villages (see India Vision 2020, p. 99) and survives for its livelihood on agriculture, animal husbandry and related occupations. The second part of Article 48 enjoins the State, dehors the generality of the mandate contained in its first part, to take steps, in particular, "for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle". (iii) Cow progeny excreta is scientifically recognised as a source of rich organic manure. It enables the farmers av....
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....e same would be upheld as being in public interest because the individual interest must yield to the interest of the community at large, for only then a welfare State can flourish." (emphasis added) 120. In Paragraph 123 of the decision in the case of Akhil Bharatiya Soshit Karmachanri Sangh v. Union of India, the Apex Court held thus: "123. Because fundamental rights are justiciable and directive principles are not, it was assumed, in the beginning, that fundamental rights held a superior position under the Constitution than the directive principles, and that the latter were only of secondary importance as compared with the Fundamental Rights. That way of thinking is of the past and has become obsolete. It is now universally recognised that the difference between the Fundamental rights and directive principles lies in this that Fundamental rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the directive principles are aimed at securing social and economic freedoms by appropriate State action. The Fundamental rights are intended to foster the ideal of a political democracy and to prevent t....
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.... the agricultural sector, use of cattle for milch, draught, breeding or agricultural purposes always has great importance. It has, therefore, become necessary to emphasis preservation and protection of agricultural animals like bulls and bullocks. (ii) After the cattle cease to be useful for the purpose of breeding or are too old to do work, they still continue to give dung for fuel, manure and bio-gas and, therefore, they cannot, any time, be said to be useless. (iii) The backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny and they have, on their back, the whole structure of the Indian agriculture and its economic system. (iv) In order to achieve the above objective and also to ensure effective implementation of the policy of State Government towards securing the directive principles laid down in article 48 of the Constitution of India and in larger public interest, it is considered expedient by the Government of Maharashtra to impose total prohibition on slaughter of also the progeny of cow." 122. We must note that Statement of the Objects and Reasons of Gujarat Amendment Act the validity of which was upheld by the Apex Cou....
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.... manures and extremely useful of production of biogas; (iv) it is established that the backbone of Indian agriculture is the cow and her progeny and they have on their back the whole structure of the Indian agriculture and its economic system; (v) the economy of the State of Gujarat is still predominantly agricultural. In the agricultural sector use of animals for milch, draught, breeding or agricultural purposes has great importance. Preservation and protection of agricultural animals like bulls and bullocks needs emphasis. With the growing adoption of non-conventional energy sources like biogas plants, even waste material have come to assume considerable value. After the cattle cease to breed or are too old to work, they still continue to give dung for fuel, manure and biogas and, therefore, they cannot be said to be useless. Apart from the fact that we have to assume the above-stated facts as to be correct, there is also voluminous evidence available on record to support the above said facts. We proceed to notice few such documents". 124. If we compare the Statement of Objects and Reasons of the impugned Amendment Act with the Statement of Objects and Reasons of....
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....or supply and distribution of fodder seeds. In the year 2014-2015, under the Rashtriya Krishi Vikas Yojana, the fodder seeds of 6782 Metric Tonnes have been distributed to the farmers in the State. During the years 2012-2013 and 2013-2014, 3706 silo-pits have been constructed at farmer's level for production of green fodder; (g) There are more that 290 Goshalas and Panjarpoles in the State established for taking care of the cattle sheltered with them and there were no reports of shortage of feed and fodder in the said Institutions; (h) In the Current Financial Year (2015-2016), there were 23 cattle camps established in the affected/fodder scarce districts of Marathwada which housed nearly 27,479 animals; (i) As compared to the developed countries like Canada, USA, etc, the average land holding in Maharashtra State is very low and more than 90% of the farmers are holding the land having area of less than 4 Hectares. Therefore, most of the farmers cannot afford use of tractors or mechanical tillers and they mostly depend on bullocks to plough the land. (j) The advantages of ploughing with the help of bullocks have been set out in Paragraph 6 of the....
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....ocks is used as an organic manure is very relevant as the use of such manure is in furtherance of the object specified in Article 48-A of the Constitution of India. The prevention of slaughter is for giving effect to Article 48. The duty of the State under Article 48 is of preserving and preventing the slaughter of cows and other milch and draught animals. We have already noted that the Apex Court held that on ceasing to be milch or draught, such animals cannot be pulled out of the category of other milch and draught animals. 127. In the case of Quareshi-I, the Apex Court accepted that cow and her progeny play an important role in Indian Economy. The Apex Court observed thus: "The discussion in the foregoing paragraphs clearly establishes the usefulness of the cow and her progeny. They sustain the health of the nation by giving them the life-giving milk which is so essential an item in a scientifically balanced diet. The working bullocks are indispensable for our agriculture, for they supply power more than any other animal. Good breeding bulls are necessary to improve the breed so that the quality and stamina of future cows and working bullocks may increase and the produc....
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....ge are still useful to the farmers. The argument based on lack of adequate supply of fodder will not be sufficient to invalidate Section 5. There is material placed on record to show that the bulls and bullocks, after they cease to be draught animals, continue to be useful in many ways for agriculture and farmers. The dung can be used for multiple purposes. All this has to be appreciated in the light of the fact that economy of the State is predominantly agricultural. 130. In Paragraph 132 of the decision in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, the Apex Court rejected the argument that the poor will suffer only because of the prohibition of slaughter of cow progeny. Ultimately in paragraph 137, the Apex Court has observed thus: "137. .....The Legislature has correctly appreciated the needs of its own people and recorded the same in the Preamble of the impugned enactment and the Statement of Objects and Reasons appended to it. In the light of the material available in abundance before us, there is no escape from the conclusion that the protection conferred by impugned enactment on cow progeny is needed in the interest of Nation's economy. ....
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....rd to sacrifice one goat even on the occasion of BakrI'd instead seven persons can afford to sacrifice one cow or a progeny of cow. Reliance is placed by the Petitioners on the extracts of holy Quran and other material in support of their contention that the sacrifice of a cow, bull or bullock is an essential part of the Muslim religion. It is contended that to commemorate the outstanding act of sacrifice (Quarbani) by Prophet Abraham, people sacrifice a lamb, goat, ram, cow, bull, bullock or camel on Eid-ul-Adha. It is contended in Writ Petition No. 9209 of 2015 that the animal sacrifice is compulsory according to Islamic Jurisprudence and it is obligatory for every mature Muslim to sacrifice a cow, goat, lamb or a bull according to his financial status to almighty God. We must note here that the said issue is no longer res integra. In the case of Ashutosh Lahiri, a three Judge Bench of the Apex Court observed that it is optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. The Apex Court held that it is, therefore, not obligatory for a muslim to sacrifice a cow or progeny of cow. The Paragraphs 8 and 9 of the said decision read thus: ....
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....ppellants submitted that even optional purpose would be covered by the term "any religious purpose" as employed by Section 12 and should not be an essential religious purpose. We cannot accept this view for the simple reason that Section 12 seeks to lift the ban in connection with slaughter of such animals on certain conditions. For lifting the ban it should be shown that it is essential or necessary for a Muslim to sacrifice a healthy cow on BakrI'd day and if such is the requirement of religious purpose then it may enable the State in its wisdom to lift the ban at least on BakrI'd day. But that is not the position. It is well settled that an exceptional provision which seeks to avoid the operation of main thrust of the Act has to be strictly construed. In this connection it is profitable to refer to the decisions of this Court in the cases Union of India v. Wood Paper Ltd. [(1990) 4 SCC 256 : 1990 SCC (Tax) 422 : JT (1991) 1 SC 151] and Novopan India Ltd. v. C.C.E. & Customs [1994 Supp (3) SCC 606 : JT (1994) 6 SC 80]. If any optional religious purpose enabling the Muslim to sacrifice a healthy cow on BakrI'd is made the subject-matter of an exemption under Section 12....
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....storical background regarding cow slaughtering from the times of Mughal emperors. Mughal Emperor Babur saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this. Similarly, Emperors Akbar, Jehangir and Ahmad Shah, it is said, prohibited cow slaughter. In the light of this historical background it was held that total ban on cow slaughter did not offend Article 25(1) of the Constitution. 9. In view of this settled legal position it becomes obvious that if there is no fundamental right of a Muslim to insist on slaughter of healthy cow on BakrI'd day, it cannot be a valid ground for exemption by the State under Section 12 which would in turn enable slaughtering of such cows on BakrI'd. The contention of learned counsel for the appellants that Article 25(1) of the Constitution deals with essential religious practices while Section 12 of the Act may cover even optional religious practices is not acceptable. No such meaning can be assigned to such an exemption clause which seeks to whittle down and dilute the main provision of the Act, namely, Section 4 which is the very heart of the Act. If the app....
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....India. The alleged economic compulsion will not make the alleged practice an essential part of the religion. It is held in the cases of Ashutosh Lahiri and Quareshi-I that the sacrifice of a cow or its progeny is not an essential part of the muslim religion. Hence, violation of Article 25(1) of the Constitution of India is not at all attracted. CONSIDERATION OF CHALLENGE TO SECTION 5 BASED ON ARTICLE 29 OF THE CONSTITUTION OF INDIA 135. Then we turn to the challenge on the ground of violation of Article 29. It is alleged that the ban on slaughter of bulls and bullocks is violative of the fundamental rights of the Petitioners to conserve their culture. The learned Advocate General rightly submitted that no culture can claim perpetual and inflexible existence beyond the character of the civilization that created it. He submitted that a customary right could not be confused with the culture. Article 29 is for preservation of the essential culture of the people and not with peripheral customs which have no relation to an existing culture. He rightly gave an example of the abolition of the practice of Sati or untouchability which can be said to be a part of traditional practice. Howev....
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.... It may, though cover a hypothetical case of such transport of animals outside the State so as to slaughter it within the State, of course, after it is brought back to the State possibly by the slaughterer himself, the transporter and slaughterer being different persons. 138. However, the object of the amendment to Section 5 is to preserve cows, bulls or bullocks inside the State. It can be said that this provision has a direct and proximate nexus with the object sought to be achieved by making amendment to Section 5 for imposing prohibition on slaughter of cows, bulls and bullocks in the State. This provision can be said to have been made for the effective implementation of Section 5. Therefore, subject to what we have observed above, there is no merit in the challenge to Sub-section (1) of Section 5A. 139. Sub-section (2) of Section 5A reads thus: "(2) No person shall export or cause to be exported outside the State of Maharashtra cow, bull or bullock for the purpose of slaughter either directly or through his agent or servant or any other person acting on his behalf, in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be....
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....ious possession, namely with the knowledge that the flesh is the product of illegal slaughter of cow, bull or bullock made in contravention of Section 5. The second ground is that Section 9B introduced by the Amendment Act imposes a negative burden in a trial for offences punishable under Sections 9 and 9A on the accused of proving that the slaughter, transport, export outside the State, purchase, sale or possession of flesh of cow, bull or bullock was not in contravention of the provisions of the Animal Preservation Act. We must note here that there is a challenge in some of the Petitions to the constitutional validity of the provisions of Section 9B. By a detailed finding recorded in this judgment, we are accepting the contention that Section 9B suffers from the vice of unconstitutionality and, therefore, it is not necessary to test the challenge to Sections 5A, 5B and 5C on the basis of the provisions of the Section 9B. 144. Another challenge to Section 5C is on the ground that the said provision is not an ancillary or incidental provision. On a plain reading of Section 5C, we disagree with the said submission. The Section 5C attempts to put a ban on any person possessing flesh....
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....nt that the ban on slaughter of a cow, bull or bullock is in public interest. If ban on slaughter of progeny of cow is held to be in public interest, it follows that even restriction imposed by Section 5C is in public interest. 148. There is another argument canvassed by the owners of the cold storages. The argument is that Section 5C can be misused as it is impossible for the owners of cold storages to know whether the meat which is stored by their customers in their cold storages is the product of the illegal slaughter of animals which is prohibited under Section 5. Perhaps, this argument is in the context of negative burden put on the accused in a trial for offences under Sections 9 and 9A. Firstly, the possibility of a legal provision being misused is no ground to hold it unconstitutional. Secondly, in the subsequent part of the decision, we have held Section 9B to be an unconstitutional. Another argument is that if the possession contemplated by Section 5C is not construed as "conscious possession", a person who is found in possession of flesh of cow, bull or bullock without the knowledge of the fact that the same is the flesh of animals slaughtered in contravention of the Se....
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...." of arms or other weapons. The petitioners argued that since the knowledge element is absent the provision is bad in law. A similar issue was raised before a Constitution Bench of this Court in Sanjay Dutt v. State (II) (1994) 5 SCC 410 : 1994 SCC (Cri) 1433]. Here this Court in para 19 observed that: (SCC p. 430) "Even though the word 'possession' is not preceded by any adjective like 'knowingly', yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession. Accordingly, the ingredient of 'possession' in Section 5 of the TADA Act means conscious possession. This is how the ingredient of possession in similar context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood." 27. The finding of this Court squarely to the effect that there exists a mental element in the word possession itself answers the petitioners' argument. The learned Att....
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....re, assuming that the provisions of the Amended Act violate rights conferred by Article 301 of the Constitution of India, the restriction imposed is reasonable as this Court has held that the prohibition of slaughter of cows, bulls or bullocks is in public interest. (C) VALIDITY OF SECTION 5D OF ANIMAL PRESERVATION ACT Section 5D which reads thus: "5D. No person shall have in his possession flesh of any cow, bull or bullock slaughtered outside the State of Maharashtra." 152. The effect of Section 5D is that there is a complete prohibition on possessing flesh of cow, bull or bullock even though the flesh is of cow, bull or bullock which is slaughtered outside the State of Maharashtra. The effect of the said Section 5D is that if a cow, bull or bullock is slaughtered in another State or in a foreign country where there is no restriction on slaughter of cow, bull or bullock, even then possession of flesh of such cow, bull or bullock is prohibited in the State. Not only that its possession is prohibited in the State, but the possession is made an offence by virtue of the Amendment Act. The main challenge to the constitutional validity of the Section 5D is on the basis of in....
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....on of movements and absences by means of inquiry slips; (f) the collection and record on a history-sheet of all information bearing on conduct." 155. As noted in paragraph 9 of the said decision, the argument of the Petitioner was that Regulation 236 infringes the fundamental rights guaranteed under Clause (d) of Article 19(1) and it also infringes personal liberty under Article 21 of the Constitution of India. In Paragraph 13 of the majority view, the Apex Court discussed the concept of personal liberty under Article 21 of the Constitution of India. The Apex Court observed that while Article 19(1) deals with particular species or attributes of the freedom, personal liberty under Article 21 takes in and comprises the residue. The Apex Court in the majority view held that Clause (b) of Regulation 236 is violative of Article 21 of the Constitution of India. In paragraphs 15 and 16 the majority view holds thus: "15. It is true that in the decision of the U.S. Supreme Court from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads: "The right of the people to be secure in their persons, ....
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....ife" used in that Article cannot be confined only to the taking away of life i.e. causing death. In Munn v. Illinois [(1877) 94 US 113], Field, J., defined "life" in the following words: "Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, of the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world." The expression "liberty" is given a very wide meaning in America. It takes in all the freedoms. In Bolling v. Sharpe [ (1954) 347 US 497, 499], the Supreme Court of America observed that the said expression was not confined to mere freedom from bodily restraint and that liberty under law extended to the full range of conduct which the individual was free to pursue, But this absolute right to liberty was regulated to protect other social interests by the State exercising its power such as police power, the power of eminent domain, the power of taxation etc. The proper exercise of the power which is called t....
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....y. In the last resort, a person's house, where he lives with his family, is his "castle"; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. It so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution." (emphasis added) 158. The second ju....
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....nalytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty." Thereafter, in paragraph 28, the Apex Court held thus: "28. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute." 159. The next decision on this aspect is in the case of R. Rajagopal alias R.R. Gopal and Another v. State of Tamil Nadu and Others. The questions were framed by the Apex Court in Paragraph 8. The Question No. 1 in Paragraph 8 reads thus: "1. Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorized writing infringe the citizen's right to priv....
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....ivity, if any, on their part. The validity of these regulations came under challenge. In the first one, Kharak Singh v. State of U.P [ (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] the U.P. Regulations regarding domiciliary visits were in question and the majority referred to Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)] and held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to "life" in Article 21. According to the majority, clause 236 of the relevant Regulations in U.P., was bad in law; it offended Article 21 inasmuch as there was no law permitting interference by such visits. The majority did not go into the question whether these visits violated the "right to privacy". But, Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1)(a), and also of the right to movement in Article 19(1)(d), held that the Regulations permitting surveillance violated the fundamental right of privacy. In the discussion the learned Judge referred to Wolf v. Colorado [338 US 25 : 93 L Ed 1782 (1949)]. In eff....
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....f the butchers of Ahmedabad who practise their profession of meat selling. After all, butchers are practising a trade and it is their fundamental right under Article 19(1)(g) of the Constitution which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of the butchery shop alone. There may be also several workmen therein who may become unemployed if the slaughterhouses are closed for a considerable period of time, because one of the conditions of the licence given to the shop-owners is to supply meat regularly in the city of Ahmedabad and this supply comes from the municipal slaughterhouses of Ahmedabad. Also, a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court. In R. Rajagopal v. State of T.N. [(1994) 6 SCC 632 : AIR 1995 SC 264] (vide SCC para 26 : AIR para 28) this Court held that the right to privacy is implicit in the right to life and liberty guaranteed by Article 21. It is a "right to be let alone"." &nb....
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...., paras 34-35), this Court held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India." (emphasis added) 164. The learned Advocate General relied upon another order of the Apex Court in the case of K.S. Puttaswami (retd.) and Others v. Union of India wherein the Apex Court made a prima facie observation that the decision of the Constitution Bench in the case of Kharak Singh has not been correctly read by smaller Benches and, therefore, a reference has been made to a larger Bench to decide the question as to whether the right of privacy is guaranteed by Article 21 of the Constitution of India. The Apex Court in the said order observed that the view taken in several judgments subsequent to the decision in the case of Kharak Singh is that the right of privacy is a part of Article 21 of the Constit....
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....e procedure established by law." (emphasis added) 166. With a view to answer the question whether the right to privacy is a part of Article 21, the analysis of the decisions of the Apex Court which are quoted above will be necessary. In the case of Kharak Singh, the majority view is by Ayyangar, J. In Paragraph 13, the Apex Court examined the expression "personal liberty" under Article 21. The majority judgment observes that Article 19(1) deals with particular species or attributes of specific freedoms incorporated therein and Article 21 comprises the residue. The Apex Court observed that the words "personal liberty" cannot be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence. Clause (b) of Regulation 236 of the U.P. Police Regulations provided for domiciliary visits at night which was a part of surveillance on suspects. The said Clause (b) was declared as plainly violative of Article 21 as observed in Paragraph 16. Thus, the majority view as is apparent from Paragraph 13 appea....
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....ry of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples .... We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.' Murphy, J. considered that such invasion was against 'the very essence of a scheme of ordered liberty'. It is true that in the decision of the U.S. Supreme Court from which we have made these extracts, the Court had to consider also the impact of a violation of the Fourth Amendment which reads: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' and that our Constitution does not in terms confer any like constitutional guarantee. Nevertheless, these extracts would show that an unauthorised intrusi....
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....right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It observes that it is true that our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. 169. It will be necessary to consider what is held by the eight-Judge Bench of the Apex Court in the case of M.P. Sharma v. Satish Chandra. We have carefully perused the said judgment. The challenge in the Petitions under Article 32 of the Constitution of India was to the search warrants for simultaneous searches at 34 places. From Paragraph 1 of the judgment, it appears that the contention raised was of violation of Articles 20(3) and 19(1)(f). We find that there was no specific contention raised by the Petitioners that there is a violation of the right of privacy being a part of right of personal liberty conferred by Article 21. 170. In the case of R. Rajagopal, Question No. 1 was framed on the infringement of right of privacy. In Paragraph 9, the Apex Court extensively examined both the majority and minority views in the case of Kharak ....
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....ere is one more decision on this aspect. It is the decision in the case of Ram Jethmalani v. Union of India. The Apex Court reiterated that the right to privacy is an integral part of the right to life. Thus, there are series of decisions of the Apex Court which are delivered after considering the decisions of the Constitution Benches in the cases of Kharak Singh and M.P. Sharma consistently taking a view that the right to privacy is an integral part of the right to personal liberty under Article 21 of the Constitution of India. 171. Then comes the order of the Apex Court in the case of K.S. Puttaswamy and Another v. Union of India. The Apex Court was dealing with the challenge to the Adhar Card Scheme under which the Government of India is collecting and compiling both the demographic and biometric data of the residents of the country. One of the grounds of attack on the Scheme was a ground based on a right to privacy by contending that it is implied under Article 21 of the Constitution of India. The learned Attorney General submitted before the Apex Court that the decisions of the Apex Court in the cases of R. Rajagopal and People's Union for Civil Liberties were contrary to....
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.....P. Sharma, there was no need to make a reference. 172. To sum up, the following are the cases in which the Apex Court upheld the right of privacy as part of personal liberty guaranteed under Article 21 of the Constitution of India. "(a) R. Rajagopal v. State of Tamil Nadu; (b) District Registrar & Collector v. Canara Bank; (c) Re Ramlila Maidan Incident; (d) Peoples Union of Civil Liberties v. Union of India; (e) Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat and Ors; (f) National Legal Services Authority v. Union of India (g) Ram Jethmalani" 173. Most of the aforesaid decisions are rendered after considering the decisions in the cases of M.P. Sharma and Kharak Singh. In the case of Ashok Sadarangani and Another v. Union of India (2012)11 SCC 321, in Paragraph 29 held thus: "29. As was indicated in Harbhajan Singh case [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135], the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh ca....
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....is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21. The State cannot prevent a citizen from possessing and consuming a particular type of food which is not injurious to health (or obnoxious). In the decision in the case of Hinsa Virodhak Sangh, the Apex Court has specifically held that what one eats is one's personal affair and it is a part of privacy included in Article 21 of the Constitution of India. Thus, if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone. If a particular food is injurious to health or a particular food is illegally manufactured, it will be a case of compelling public interest which will enable the State to deprive citizens of the right to privacy by following the procedure established by law. In the present case, Section 5D prevents a citizen from possessing and from consuming flesh of a cow, bull or bullock even if it is flesh of a cow, bull or bullock slaughtered in territories where such slaughter is legal. Henc....
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.... "impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest". According to the learned Judge, in the case of a law passed under Article 304(b), the position on the question of burden of proof is somewhat stronger in favour of the citizen, because the very fact that the law is passed under that article means clearly that it purports to restrict the freedom of trade. By analogy, the position is also somewhat stronger in favour of the petitioners in cases arising under Article 21, because the very fact that, in defence, a law is relied upon as prescribing a procedure for depriving a person of his life or personal liberty means clearly that the law purports to deprive him of these rights. Therefore, as soon as it is shown that the Act invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law, that is to say, by a procedure which is just, fair and reasonable." (emphasis added) 179. In paragraph 22, the Apex Court held thus: "22. Ano....
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....akes in and comprises the residue. The minority view in the decision of the Apex Court in the case of Kharak Singh was that the fundamental right of life and personal liberty has many attributes and some of them are found in Article 19 of the Constitution of India. The Apex Court observed in view of its decision in the case of R.C. Cooper v. Union of India AIR 1970 SC 574 that the minority view on this aspect in the case of Kharak Singh will have to be recorded as correct and majority view must be held to have been overruled. The Apex Court in Paragraph 5 observed that the expression "personal liberty" in Article 21 is of widest amplitude and it covers variety of rights. Paragraph 7 of the judgment delivered by Bhagwati, J is relevant for our consideration which deals with the nature and requirement of the procedure under Article 21 of the Constitution of India. What is held by the Apex Court is that the procedure contemplated by Article 21 must answer the test of reasonableness. In Paragraph 5, the Apex Court held thus: "5. It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to ....
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....cle 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned." There can be no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view must be regarded as correct and the majority view must be held to have been overruled. We shall have occasion to analyse and discuss the decision in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] a little later when we deal with the arguments based on infraction of Articles 19(1)(a) and 19(1)(g), but it is sufficient to state for the present that according to this decision, which was a decision given by the Full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom. The decision in ....
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..... State of West Bengal [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778] which was a decision given by a Bench of five Judges, this Court considered the challenge of clause (d) of Article 19(1) to the constitutional validity of the Maintenance of Internal Security Act, 1971 and held that that Act did not violate the constitutional guarantee embodied in that article. It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression "personal liberty" as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights. The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction. The wavelength for comprehending the scope and ambit of the fundamental rights has been set by this Court in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and our approach in the interpretation of the ....
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....ther that is sufficient compliance with Article 21. Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney-General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law. There was some discussion in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure. Fazl Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials set out in Prof. Willis' book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure. Patanjali Sastri, J., did not go as far as that but he did say that "certain basic princ....
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....st answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied" (emphasis supplied) 182. Krishna Iyer, J in Paragraph 85 summed up by holding that the procedure in Article 21 must mean fair and not a formal procedure. The majority view taken in the said decision is that the fundamental rights under Part III are not distinct and mutually exclusive rights and, therefore, the law affecting personal liberty under Article 21 will have to satisfy the test under Article 14 and Clauses (2) to (6) of Article 19 of the Constitution of India. The procedure contemplated by Article 21 of the Constitution of India has to satisfy the test of fairness and reasonableness. 183. The question is what is the burden which the State will have to discharge. As held in the case of Deena when there is violation of Article 21, the burden is on the State to prove that the procedure followed is just fair and reasonable. In addition, in paragraph No. 318 in the case of Ramlila Maidan Incident In Re, the Ap....
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.... slaughter of cow, bull or bullock in the State. 185. The object of enacting amendment to Sections 5 and 5A, 5B and 5C appears to be to protect cows, bulls and bullocks in the State of Maharashtra from slaughter. Section 5D is a stand alone provision which has no nexus with the said object. It is not the case made out by the State that the ban on slaughter of cows, bulls and bullocks was to ensure that no one should eat the flesh of the said animals as it is injurious to health. The object is to protect cow and its progeny from slaughtering within the State. The object is not to prevent the citizens from eating flesh of cow or its progeny which is brought from a State or a country where there is no prohibition on slaughter. The question is whether such a drastic provision would stand to the test of compelling State interest. In fact, the State has made no attempt to show any compelling public or State interest for enacting Section 5D. We have already held that right of privacy is an integral part of the personal liberty under Article 21. In the case of Akhil Bharat Goseva Sangh, the Apex Court observed that it is not held in the case of Mirzapur that laws/policies permitting slaug....
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.... and depletion of habitats have seriously affected wildlife population. In order to check this trend, it is proposed to prohibit hunting of all wild animals (other than vermin). However, hunting of wild animals in exceptional circumstances, particularly for the purpose of protection of life and property and for education, research, scientific management and captive breeding, would continue. It is being made mandatory for every transporter not to transport any wildlife product without proper permission. The penalties for various offences are proposed to be suitably enhanced to make them deterrent. The Central Government Officers as well as individuals now can also file complaints in the courts for offences under the Act. It is also proposed to provide for appointment of honorary Wild Life Wardens and payment of rewards to persons helping in apprehension of offenders. To curb large-scale mortalities in wild animals due to communicable diseases, it is proposed to make provisions for compulsory immunisation of livestock in and around national parks and sanctuaries. *** It may be recalled that the parties to the 'Convention on International Trade in Endangere....
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.... irrational. Mr. Sanghi, as noticed hereinbefore, has drawn our attention to the changes sought to be effected in CITES at the instance of Botswana, South Africa, Namibia and Zimbabwe. The question as to whether a reasonable restriction would become unreasonable and vice versa would depend upon the fact situation obtaining in each case. In the year 1972 when the said Act was enacted, there might not have been any necessity to preserve the elephant as also ivory. The species might not have been on the brink of extinction. The Objects and Reasons set out for bringing in amendments in the said Acts in the years 1986, 1991 and 2003 clearly bring to the fore the necessity to take more and more stringent measures so as to put checks on poaching and illegal trade in ivory. Experience shows that poaching may be difficult to be completely checked. Preventive measures as regards poaching leading to killing of elephants for the purpose of extraction of their tusks is a difficult task to achieve and, thus, Parliament must have thought it expedient to put a complete ban on trade in ivory to meet the requirement of the country." (emphasis added) Thus in the facts of that case, the Apex C....
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....ative dealings in 'essential commodities' (such as cotton), during a period of emergency, the State may impose a temporary prohibition on all normal trading of such commodities. In the later case of Narendra v. Union of India [AIR 1960 SC 430 : (1960) 2 SCR 375] the Supreme Court has sustained even a permanent law leading to the elimination of middlemen from the business in essential commodities in order to ensure the supply of such goods to the consumers at a minimum price." (emphasis added) Clause B above would cover the facts of the case in hand. In the present case, Section 5D seeks to prohibit something which is not otherwise illegal. But, the State has not supported it by showing that it is in the interest of public welfare. 192. To summarize, Section 5D will have to be struck down as being violative of fundamental right guaranteed by Article 21 of the Constitution of India. 193. There is one more aspect of the matter. The scope of Article 21 has been expanded by the Apex Court from time to time. It includes the right to lead a meaningful life. It protects the citizen from unnecessary state intrusion into his home. For leading a meaningful life, a citizen wi....
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....by Amendment) 195. As we have held that Section 5D is unconstitutional, the reference to Section 5D in Sub-section (3) will have to be struck down. Clause (a) of Sub-section (3) of Section 8 confers power on the police officer not below the rank of Sub-Inspector or any officer authorized in that behalf by the State Government to enter, stop and search, or to authorize any person to enter, stop and search any vehicle used or intended to be used for the export of cow, bull or bullock. This power can be exercised only for securing compliance with Sub-section (2) of Section 5A. Clause (b) of Sub-section (3) of Section 8 authorizes seizure of any cow, bull or bullock provided the officers suspect that any provision of Sections 5A, 5B or 5C is being or is about to be contravened along with the vehicles in which such cows, bulls or bullocks are found. Sub-section (4) of Section 8 is very clear. It records that Section 100 of the Code of Criminal Procedure, 1973 will apply to any search carried out under Section 8. Section 100 of the Code of Criminal Procedure, 1973 reads thus: "100. Persons in charge of closed place to allow search.--(1) Whenever any place liable to search or ins....
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....safeguards which are incorporated in Section 100 are applicable to a search under Sub-section (3) of Section 8. 197. The word "suspicion" used in Clause (b) of Sub-section (3) of Section 8 cannot be a mere doubt. It is something much more than a mere doubt. We have already held that the provisions of Sections 5A, 5B and 5C have been enacted for the purposes of achieving the object of protecting cows, bulls and bullocks in the State from slaughter. The violation of Sections 5A, 5B and 5C has been made an offence by virtue of the Amendment Act. Therefore, the provisions of search and seizure have been incorporated in Sub-section (3) of Section 8 for securing compliance with the provisions of Sections 5A, 5B and 5C of the Amendment Act. If there is illegal seizure, the remedies are always available to the aggrieved person under the Code of Criminal Procedure, 1973 to apply for return of the property. 198. Proviso to Section 3 lays down that pending trial, seized cow, bull or bullock shall be handed over to the nearest Gosadans, Goshalas, Panjapols, Hinsa Nivaran Sangh or any other Animal Organizations which are willing to accept such custody. It provides that the accused shall be li....
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....w taken by S.C. Gupte, J in his erudite judgment. Hence, while adopting the findings recorded by Gupte, J, I am not recording any separate finding on this question. S.C. Gupte, J. 201. Section 9B of the Act casts the burden of proving that the slaughter, transport, export, sale, purchase or possession of bovine flesh, as the case may be, was not in contravention of the provisions of the Act on the accused in any trial for an offence punishable under Section 9 or 9A. The Petitioners challenge this provision as illegal and ultra vires the Constitution of India. It is submitted that presumption of innocence is a constitutional guarantee to every accused facing a trial and insofar as Section 9B presumes contravention, and thereby the guilt of the accused, and casts the legal burden of proving non-contravention, that is to say, innocence, on the accused, the same in violative of the constitutional right of the accused. Mr. Kumbhakoni, learned Senior Counsel appearing for the Petitioners in Writ Petition (L) No. 3396 of 2015, who made lead submissions on this point, suggested various tests where a "reverse burden" on the accused, or, in other words, limitations on the right to be presu....
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....of validity of casting of such reverse burden. It is submitted that Section 9B comes within the exceptions to the general rule requiring the prosecution to prove every element of an offence beyond reasonable doubt. It is submitted that the facts required to be proved by the accused for discharging the burden within the meaning of Section 9B are specially within his knowledge and can be proved by him. 203. The sanctity of human life and liberty is probably the most fundamental of human social values and Article 21, which forms the pivot of this fundamental value enshrined in our Constitution, prevents any encroachment upon this right to life and personal liberty by the executive, save in accordance with a procedure established by law. Every punishment meted out to an individual by way of imprisonment by the State must satisfy the test of Article 21. That is probably the least of the content of that Article. Such punishment must be in accordance with the procedure established by law. It is similar to the US concept of 'due process'. That concept was explained in the American case of Chambers v. Florida (1940)309 US 227 in the following words: ".... A liberty loving p....
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....is substantive aspect of due process. 204. In India, the early approach to Article 21 envisaged the right to life and personal liberty as circumscribed by literal interpretation. That was in A.K. Gopalan v. State of Madras 1950 SCR 88 : AIR 1950 SC 27. Article 21 was construed narrowly, as a guarantee against executive action unsupported by law. That would suggest that a law, coming under Article 21, made by a competent legislature is not controlled by other Articles within Part III (save, of course, Article 22, which provides for protection against arrest and detention in certain cases). Later decisions of the Supreme Court made a clear departure from that view. In R.C. Cooper v. Union of India, Shah J., speaking for the majority, pointed out that "Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields : they do not attempt to enunciate distinct rights". The majority in R.C. Cooper, in so many words, observed that even where a person is detained in accordance with the procedure prescribed by law, as mandated by Article 21, the protection conferred by the vario....
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....ovisions of the Constitution having regard to the competence of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for," including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 435: (AIR 1952 SC 123) where there was a special law providing for trial of certain offences by a speedier process which took away some of the safeguards available to an accused under the ordinary procedure in the Criminal Procedure Code. The special law in each of these two cases undoubtedly prescribed a procedure for trial of the specified offences and this procedure could not be condemned as inherently unfair or unjust and there was thus compliance with the requirement of Article 21, but even so, the validity of the special law was tested before the Supreme Court on the touchstone of Article 14 and in one case, namely, Kathi Raning Rawat's case, the validity was upheld and in the other, namely, Anwar Ali Sarkar's case, it was struck down. It was held in both these cases that the procedure established by the special law must ....
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....cing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence." 206. Thus, as a normal rule, an accused is presumed to be innocent until he is proved guilty. Correspondingly, it is the duty of the prosecution to prove the guilt of the accused. That brings us to the question of the burden of proof and its role in a criminal trial particularly in reference to the presumption of innocence of the accused. Burden of proof itself, as understood by the law, is of two types; one, burden of pursuation or the legal burden, which is on a party as a matter of law - if no evidence is produced, the party on whom such burden lies fails; and two, evidential burden or the burden of going forward with evidence. Under the traditional view, burden of pursuation never shifts from one party to the other at any stage of the proceedings, whereas evidential burden may well shift back and forth between the parties as the trial progresses. The normal rule of presumption of innocence of the accused would thus imply that it would be for the prosecu....
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....and 19, as it must as discussed above. The aspect of Article 19 insofar as the offences themselves are concerned, has already been considered above. Here we are essentially dealing with the procedure passing the muster of Article 14. Does the procedure violate the equality clause? Is it reasonable, fair and just? Or is it is arbitrary or fanciful? To answer these questions, we must first consider the rationable behind the requirement of casting a reverse burden on the accused, and then see the tests which must be satisfied by any provision of such reverse burden, before we consider how the statute in question fares in that respect. 208. The rationale behind limiting the individual's right to personal liberty and the consequential entitlement to due process in a criminal trial, in the first place, is to balance the interests of the state to secure a conviction, particularly in the case of heinous crimes, and thereby enforce the law with the interests of the citizen to be protected from injustice at the hands of the law enforcement machinery. The Supreme Court in the case of Noor Aga (supra), put the matter thus: "Enforcement of law, on the one hand and protection of cit....
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....ction with the Drugs Act of Singapore which raised a statutory presumption, whenever the quantity of a controlled drug was found to be beyond a certain quantity (presumably commensurate with self-consumption), of the drug being possessed for the purpose of trafficking in prohibited drug (heroin, in that case). If the accused is found in possession of controlled drugs and to have been moving them from one place to another, the mere act of moving did not of itself amount to trafficking under the Act. But if the purpose for which they were being moved was to transfer possession from the mover to some other person at their intended destination, the mover was guilty of the offence of trafficking under Section 3 of that Act. If the quantity of the controlled drugs being moved was in excess of a certain minimum specified in Section 15, a rebuttable presumption was created that the purpose of such moving was to so transfer possession. The onus lied upon the mover to satisfy the Court, upon balance of probabilities, that he had not actually intended to part with the possession of the drugs to anyone else, but to retain them solely for his own consumption. The Privy Council upheld the convic....
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.... unlawfully obtained. The Court was also concerned with another accused charged under Section 25 of Drug Trafficking (Recovery of Proceeds) Ordinance of Hong Kong, which provided for an offence of entering into or being concerned in an arrangement to facilitate retention or control of sale proceeds of drug trafficking on behalf of the trafficker. Sub-section (1) of Section 25 defined the offence. A person who enters into or is otherwise concerned in an arrangement whereby the retention or control by or on behalf of another ("the relevant person") of the relevant person's proceeds of drug trafficking is facilitated, knowing or having reasonable grounds to believe that the relevant person is a person who carries on or has carried on drug trafficking or has benefited from drug trafficking, commits the offence under Section 25. The section thus created an offence, which involved an absolute prohibition on engaging in the activities referred to therein with someone whom one knew or had reasonable grounds to believe as a person who carried on or benefited from drug trafficking. There were exceptions provided for in Sub-section (3) and a special defence was contained in Sub-section (4....
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....he necessary knowledge or had reasonable grounds to believe the specified facts, the defendant was entitled to be acquitted. The Privy Council held as follows: "The language of s 25 makes the purpose of the section clear. It is designed to make it more difficult for those engaged in the drug trade to dispose of the proceeds of their illicit traffic without the transactions coming to the knowledge of the authorities. Once a person has knowledge or has reasonable grounds to believe that a relevant person carries on or has carried on drug trafficking or has benefited from drug trafficking, then it will be an offence to become involved with 'the relevant person' in any of the wide-ranging activities referred to in the section, unless the activity is reported in accordance with sub-s (3) or the person who engages in the activity is in a position to establish the defence provided for in s 25(4). The section therefore creates an offence, which involves an absolute prohibition on engaging in the activities referred to in the section with someone whom you know or have reasonable grounds to believe is a person who carries on or has carried on or has benefited from drug traffi....
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....will be important. However, what will be decisive will be the substance and reality of the language creating the offence rather than its form. If the exception requires certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary v US (1969) 395 US 6 at 36, 'it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend'." 211. The foregoing discussion also shows that for a reverse burden to be upheld as a permissible limitation upon the presumption of innocence, what is important is to see if the prosecution has proved the basic foundational facts, which have a rational connection with presumed facts, so as to make them highly probable. In such a case, it may be legitimate to cast the burden of displacing those presumed facts on the accused, keeping in mind the various considerations discussed above, such as the rule against discharging of a negative burden, the rule for discharging of a positive burden of establishing facts within one's peculiar knowled....
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....t he was ineligible for citizenship. The statutes of California provided that as to this particular element of the crime (namely, the person not being a citizen or eligible to be a citizen of United States) the burden of proving the same was on the defendant. The observations of Cadozo, J. in that case, quoted by our Supreme Court in P.N. Krishna Lal, are quoted below: "The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression." This, then, gives us one more test to evaluate the validity of a statutory presumption. Has the State proved enough basic facts to raise a presumption, considering the probative connection between these basic facts and the facts presumed on the basis th....
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....tive of where the slaughter has taken place, such person commits an offence under the Act and a uniform punishment is provided for under the Act for such offence. What is, thus, in contravention of the Act is the very possession of bovine flesh. If that be the case, Section 9B, inasmuch as it casts the burden of proving that the possession of such flesh was not in contravention of the Act, makes no practical sense on the terms of Sections 5C and 5D on the one hand and Section 9B, on the other. Considering, however, that we have interpreted Sections 5C and 5D to apply only to "conscious" possession of bovine flesh, the knowledge of such possession may be said to be another ingredient of offences thereunder. In that case, if the prosecution proves the possession of the accused, the accused may be said to have the burden of proving that he did not know that the flesh was of a cow, bull or bullock. That means a burden to prove a negative fact. It is unthinkable how, even by the test of preponderance of probabilities, the accused can reasonably or fairly be expected to discharge this burden beyond possibly his own statement in the witness box that he did not know that it was bovine fles....
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.... within the State on the accused. 215. In its written submissions, the State has taken up a position that on a conjoint reading of Sections 9A and 9B, in a trial of an offence under the Act, two foundational facts would have to be established by the prosecution, viz.(a) the flesh is of an animal protected under the Act and (b) the accused is found in possession of the same; and once these foundational facts are established, the burden would shift on the accused to show that the slaughter was not in contravention of the Act. As we have shown above, the proof tendered by the State is not enough to lead to a presumption that the slaughter was in contravention of the Act. The proved foundational facts do not have a sufficient probative connection with the presumed fact of the slaughter being in contravention of the Act. Besides, as we have discussed above, the burden cast on the accused is to prove a negative fact, nothing of which can be said to be within his special knowledge. Casting of such burden amounts to subjecting the accused to grave hardship and oppression. At the hearing, however, the learned Advocate General practically conceded that all these ingredients, namely, (i) the....
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....ge of its slaughter (and for that matter, its slaughter within the State), if such be the case, out of such sale, probable. The two have no probative connection. Once again, the essence of the offence consists in the purpose of such transport or the knowledge that the transport is for slaughter in contravention of the Act. That itself cannot be presumed or be left to the accused to disprove. In other words, by proving the fact of transport per se, the State does not prove enough of basic or essential facts to raise a presumption of the intended ultimate purpose of the transport or its knowledge. Secondly, as in the case of offences under Sections 5C and 5D, what is cast on the accused is the burden to prove purely negative facts, namely, that the ultimate intended purpose of the transport was not to slaughter the cow, bull or bullock in contravention of the Act or that the accused did not know that such purpose was to slaughter the animal in contravention of the Act. Such a burden is clearly unreasonable and subjects the accused to a grave hardship and oppression. All these considerations squarely apply even to sale or disposal of a cow, bull or bullock covered within Section 5B. T....
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....ncur with the views expressed by A.S. Oka, J on the other aspects of the case. Per Court 220. Before we part with the judgment, we must record our appreciation for the assistance rendered by all the learned counsel appearing for the parties. Most of them were very brief and to the point. We must note that Shri Jha, the learned counsel appearing for one of the Intervenors made a submission on 23rd December 2015, which was the last working day before the Christmas Vacation, when the hearing was conducted with the consent of the parties till 6.30 p.m. During the course of the arguments, after the Court hour on 23rd December 2015, he urged that when a large number of litigants are waiting in a queue, it was a grave error on the part of this Court to have given priority to the hearing of this group of Petitions. He had to say something about the recusal of a learned Judge who was a part of the Bench hearing this group. He pointed out that after one learned Judge (G.S. Patel, J) who was a part of the Division Bench hearing this matter recused himself, a new Bench was immediately constituted. We must note here that G.S. Patel, J recused himself following highest traditions maintained by....