TaxTMI 
TaxTMI 
2016 (5) TMI 1565
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....(L.) No. 389 of 2015, Chamber Summons (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 Petiti....
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....hority or such officer the State Government may appoint in that 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 mal....
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....sand rupees, or with both." 8. In the year 1995, the Maharashtra State Legislature passed the Maharashtra Animal Preservation (Amendment) Bill, 1995. However, the Bill 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....
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.... or otherwise dispose of or offer to purchase, sell or otherwise dispose of any cow, bull or bullock for slaughter or knowing or having reason to believe that such cow, bull or bullock shall be slaughtered. 5C. Notwithstanding 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 b....
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.... "9A. Whoever contravenes the provisions of sections 5C, 5D, or 6 shall on conviction be punished with imprisonment for a term which may extend to one year or fine which may extend to two thousand rupees. 9B. In any trial for an offence punishable under sections 9 or 9A for contravention of the provisions 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....
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....e Goshala or Panjarapole or such other Animal Welfare Organisations which are willing to accept such custody and the provision relating to liability for the payment of maintenance of such seized cattle for the period they remained in the custody of any of such charitable organisations by the accused. It is also being provided for enhancement of penalty of imprisonment 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 ....
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....al validity of Sections 5D and 9A of the Animal Preservation Act as amended by the Amendment Act. The contention is that Sections 5D and 9A are ultra-vires the Constitution of India. It is contended that right to privacy is included in the right to life guaranteed by the Article 21 of the Constitution of India. It is contended that right to personal liberty and privacy includes 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....
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....n along with other connected Petitions were admitted for final hearing by the Judgment and Order dated 29th April, 2015 by granting limited ad-interim relief directing the State Government not to take coercive steps for the purpose of initiating any prosecution of those who are found to be in possession of beef. ORIGINAL SIDE PUBLIC INTEREST LITIGATION NO. 76 OF 2015 23. In this 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....
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....n out praying for interim relief which is confined to occasion of Bakra-Eid held on 25 to 27th September, 2015. In this Petition, there is a Chamber Summons (L.) No. 455/2015 taken out by Ekta Foundation for intervention. The intervention is for opposing the prayers made in the Petition. ORIGINAL SIDE WRIT PETITION (L.) NO. 2566 OF 2015 26. 26.This Writ Petition under Article 226 of the Constitution 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....
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....ion is filed for a declaration that Sections 5C and 5D of the Animal Preservation Act are unconstitutional. This Petition is filed by an Association of Cold Storage Owners in Maharashtra. The challenges are similar to those in Writ Petition (L.) No. 3395 of 2015. ORIGINAL SIDE WRIT PETITION (L.) NO. 3422 OF 2015 31. This Writ Petition has been filed by the Petitioner who is an Advocate by profession and who is 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 con....
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....dent who is a Government Officer informing the first Petitioner that the slaughter of cows, bulls and bullocks has been banned in the State with effect from 4th March, 2015. There is a challenge to the constitutional validity of Section 5D and 9A of the Animal Preservation Act as amended by the Amendment Act. The challenge is on the ground of violation of fundamental rights under Article 19(1)(g) of the Constitution of India. ORIGINAL 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 ACROS....
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....d that the Apex Court has held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens by Article 21 of the Constitution of India. He urged that the Apex Court held that right of privacy is implicit in Article 21. The said right of privacy is the right to be let alone. He submitted that this view taken by the Apex Court in the case of R. Rajagopal has been reiterated in its decision in the case of District Registrar & 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....
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....in the case of Hinsa Virodhak Sangh, when the Apex Court held that the right to choose one's food is a part of right of privacy, the Apex Court proceeded on the footing that it is a component or a part of personal liberty guaranteed under Article 21 of the Constitution of India. He invited our attention to the majority and minority views in the case of Kharak Singh. He submitted that the ratio of the decision in the case of Kharak Singh is that 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 decis....
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....er in the State is a direct interference with the Petitioner's personal autonomy and personal liberty. He urged that it is not the case made out by the State that it is injurious to eat the meat of bulls, bullocks or cows. He clarified that the Petitioner is not claiming a positive right to be provided with the food of his choice as a part of his right to life. He reiterated that the case made out by the Petitioner is that his right to personal liberty 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 con....
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.... for the effective implementation of the ban on slaughter of cows, bulls and bullocks. However, Section 5D is a stand alone Section which has no nexus with the ban on slaughter of cows, bulls and bullocks in the State. He pointed out that the ban imposed by Section 5 of the Amendment Act on the slaughter of cow has been in existence for last 40 years. However, there is no material placed on record to show that the said ban cannot be effectively implemented 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 possessi....
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....pointed out that the Petitioners have given figures showing the acute shortage of fodder. He submitted that the bulls, bullocks and buffaloes which are useful for agricultural and draught purposes were always protected. Only for the purposes of banning consumption of meat that a blanket ban has been imposed on slaughter of bulls and bullocks as well. 47. His submission is that the State Government has sought to defend the validity of the Amendment Act only by 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 decisio....
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....endment Act by relying upon Clause (g) of Article 51-A of the Constitution of India. 49. He relied upon a decision of the Apex Court in the case of Sri SriKalimata Thakurani v. Union of India and Others AIR 1981 SC 1030. He submitted that while dealing with the issue of violation of fundamental rights, the Court has to determine whether or not the restrictions imposed contain the quality of reasonableness. Relying upon the observations made by the Apex Court in the 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....
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....D of the Amendment Act is not restricted in its applicability within the State and therefore, the State does not have competence to enact Section 5D by virtue of Entry 26 in the List-II of the Constitution of India. It is urged that Sections 5C and 5D are not ancillary or incidental to the provision of Section 5. The ban on the possession of flesh of cows, bulls or bullocks slaughtered outside the State of Maharashtra is not an ancillary or incidental provision as the same 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 appea....
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....damental rights guaranteed under Article 25 of the Constitution of India. He relied upon the extract of holy Quran relied upon in Writ Petition No. 9209 of 2015. He urged that the sacrifice of a bull on the day of Eid is an essential religious practice of the muslim community which is protected under Article 25 of the Constitution of India. He urged the decision of the Apex Court in the case of State of West Bengal & Others v. Ashutosh Lahiri (1995)1 SCC 189 refers only to the 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 St....
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....overnment which shows that there was an abundance of fodder in the State of Gujarat. On the other hand, in the reply given by the Ministry of Agriculture in the Rajya Sabha, it was stated that there was a huge shortage of fodder in the State of Maharashtra. She urged that though the Amendment Act is of the year 1995, no survey was carried out to determine the situation before arriving at the conclusion that a complete ban on the slaughter of bulls and bullocks is necessary. She 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 A....
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....n of India was not considered. 56. She has specifically relied upon Verse No. 1 under Surah Al-Maidah in Part 6 in Holly Quran. She submitted that it provides that Eid Ul Adha marks the end of the Haj pilgrimage wherein cattle (including bulls and bullocks) is sacrificed. She also relied upon Verse 36. She pointed out that the Muslim religion provides for sacrifice or slaughter of cows, bulls and bullocks on the auspicious occasion of Eid Ul-Adha. It facilitates even the economically 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 ur....
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....f the Constitution of India. He submitted that now the Bench of three Hon'ble Judges of the Apex Court in the case of K.S. Puttaswami has made a reference to a larger Bench on the issue of availability of the right to privacy as a fundamental right. Relying upon the decision of the Apex Court of a larger Bench of eight Hon'ble Judges in the case of M.P. Sharma, he urged that the said decision lays down that the right to privacy is not included in the Constitution of India. He 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 th....
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....ce is permissible as provided in religious texts, it does not automatically mean that it is an essential part of the religion. He submitted that the things which are made compulsory or necessary for the purposes of a particular religion are covered by the right guaranteed under Article 25 of the Constitution of India. He relied upon a decision of the Apex Court in the case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat and Ors. 61. The learned counsel representing Viniyog Parivar 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 sla....
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....Rao relied upon a decision of the Apex Court in the case of Indian Handicrafts Emporium and Others v. Union of India (2003)7 SCC 589. He pointed out that amended provisions of the Wild Life (Preservation) Act, 1972 prohibited the trade of imported ivory. He pointed out that the Supreme Court upheld the said ban on the ground that it was necessary to implement the ban on poaching of Indian elephants. He urged that the ban on import was necessary to avoid evasion of taking recourse to camouflage. 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 prac....
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.... Division Bench of this Court in the case of State of Bombay v. R.M.D. Chamarbaughwalia AIR 1956 Bombay 1. He also relied upon a decision of the Apex Court in the case of Indian Handicrafts Emporium and Others v. Union of India and Others. He urged that in view of this decision, the argument that Sections 5A, 5B, 5C and 5D are unconstitutional will have to be rejected as the same have been enacted to ensure that the ban imposed by Section 5 is effectively implemented. He would submit that there is no merit 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 perm....
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....avention of the said Act of 1994. It prohibits the possession of flesh of agricultural cattle slaughtered outside Delhi. It is pointed out that there is a complete prohibition on the sale, storage and transport of beef or beef products in any form under the Bombay Animal Preservation Act, 1954 which is applicable to the State of Gujarat. The learned counsel pointed out similar laws applicable to the States of Madhya Pradesh, Karnataka, Bihar and Andhra Pradesh etc. The submission is that a ban on possession 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.....
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....er, they will have to show as to how the restriction on the transport, sell, purchase and possession of flesh of animals is violative of the fundamental right to life. He, thereafter, made detailed submissions on various decisions relied upon by the Petitioners. 72. He submitted that in Kharak Singh v. State of Uttar Pradesh, Subba Rao, J. speaking for himself and Shah, J. in the minority judgment agreed that although the Constitution did not expressly declare the right to privacy as a fundamental right, it was 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 "b....
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....itled to protection as a fundamental privacy right". Therefore, in order to accept an argument of the applicability of compelling state interest test, it is necessary first for the Petitioner to establish that transport, export, sale, purchase and possession of the livestock (Sections 5A and 5B), and possession of the flesh of such animals (Sections 5C and 5D), is a right to privacy, which in turn is a Fundamental Right to Life and Liberty under Article 21 and therefore, entitled to protection. 75. The right to privacy 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 right....
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.... Article 21. In effect, the Division Bench made observations which were contrary to those laid down by larger Benches. He urged that these observations therefore do not constitute the ratio of that judgment nor hold any precedentiary value. They are not binding. Seen from this context, the mere mention of certain rights such as the right to eat was nothing more than a broad equation of certain unspelt rights like right to sleep or right to breathe or right to drink. It is clear from the inclusion of the words "right to blink" 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 th....
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.... decisions of the respective Constitution Benches in Kharak Singh and M.P. Sharma to a larger Bench. He pointed out that the said order records that there is a certain amount of apparent unresolved contradiction in the law declared by the Supreme Court in regard to the right of privacy. The issue has therefore, been referred to a larger Bench. The order of reference makes it clear that even the three-Judge Bench of the Supreme Court is of the view that numerous smaller Benches which declared that the right to privacy is a part of 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 f....
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.... right to lead life with some intrinsic worth, honour and dignity. He submitted that in the Statement of Objects and Reasons in the Amendment Act, there is a justification in compelling public interest. He urged that the Statement of Objects and Reasons in the Amendment Act partakes the colour of Article 48 of the Constitution of India. While relying upon a decision of this Court in the case of Dhariwal Industries Ltd. v. Union of India 2003(2) BomCR 698, he urged that the compelling public interest is inherently connected to public good. 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....
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....oat for one person or a cow or a camel for seven persons. The Apex Court held that there was no fundamental right of a Muslim to insist on slaughter of a cow. 87. As far as the arguments based on Article 29 of the Constitution of India is concerned, the learned Advocate General submitted that a customary right should not be confused with culture. Article 29 is concerned with preservation of essential culture of people and not with peripheral customs which often have no relation to an existing culture to which they claim affinity. He urged that 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 und....
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....e matters is "whether the amendment to Section 5 of the Animal Preservation Act made by the Amendment Act by incorporating the words "bull or bullock" after the word "cow" is constitutionally valid? 93. Before We deal with this issue, it must be noted that in some of the Petitions, there is also a challenge to the validity of unamended Section 5 which imposes a total ban on slaughter of cows. However, this challenge was specifically rejected by a Division Bench in the case of Shaikh Zahid Mukhtar v. Commissioner of Police, Thane and others. The said decision 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 "Guja....
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.... 6. No animal in respect of which a certificate has been issued under Section 5 shall be slaughtered in any place other than a place specified by such authority or officer as the State Government may appoint in this behalf." In the year 1961, the Act was amended by Section 4 of the Amendment Act which reads thus: "4. Amendment of Section 5 of Bombay Act 72 of 1954.--In Section 5 of the principal Act,- (1) after sub-section (1), the following sub-section shall be inserted, namely- '(1-A) No certificate under sub-section (1) shall be granted in respect of a cow.'; (2) in sub-section (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 certi....
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.... dissented. The Apex Court allowed the Appeal and held that 1994 amendment was intra vires the Constitution. The Apex Court upheld the validity of the Gujarat Amendment. The Apex Court in its earlier decision in the case of Mohd. Hanif Quareshi v. State of Bihar ("Qureshi-I") dealt with a Bihar Legislation imposing prohibition on slaughter of bovine cattle. The Apex Court upheld the challenge to constitutional validity of the Bihar Act. In the case of Abdul Hakim Quareshi v. State of Bihar AIR 1961 SC 448 (for short "Quareshi-II), a similar view was taken. The Apex Court noted in Paragraph 35 of the decision in the case of Mirzapur that following six contentions raised by the State of Gujarat were required to be decided. The said contentions read thus: "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 Constit....
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.... Question 1 "The restriction which can be placed on the rights listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the provisions contained in the chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights." (emphasis added) Question 2 "It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Article 51-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....
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....from the body of dead animals) is concerned, it is not necessary that the animal must be slaughtered to avail these things. The animal, whose slaughter has been prohibited, would die a natural death even otherwise and in that case their hides, skins and other parts of body would be available for trade and industrial activity based thereon. We hold that though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of the general public, yet, in the present case banning slaughter of cow progeny is not a prohibition but only a restriction." (emphasis added) Question 6 "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. Merely because it may cause 'inco....
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.... 101. In the light of the law laid down by the Apex Court, it is necessary to examine the factual details placed on record by the State Government in the present case. Though there are earlier affidavits in reply filed by the State Government in some of the Petitions, the learned Advocate General has mainly relied upon an affidavit of Shri Shashank Madhav Sathe, the Deputy Secretary (Animal Husbandry) of the Agriculture, dated 1st December 2015 in PIL No. 76 of 2015. In the said affidavit, a reliance has been placed on the affidavit-in-reply filed in Writ Petition No. 1314 of 2015 and Writ Petition No. 1653 of 2015. Shri Sathe in his affidavit stated that in the year 1970, there were 1451 veterinary dispensaries in the State of Maharashtra which number has gradually increased. He has stated in the affidavit that as of 2015, there were 4856 veterinary dispensaries for taking care of the entire livestock in the State. He has further stated that 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....
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....fidavit, the details of the land holding in the State of Maharashtra are set out. Paragraph 6 of the affidavit reads thus: "6. In reply to para 8 of the Affidavit in rejoinder I say that in Western Countries like Canada, USA, European Countries, Australia etc. the land holding is huge, as compared to the land holding in the State. Land holding status in Maharashtra is as follows:-- Area (000) Ht Number (000) Category 0-1 Ht 3186 6709 Marginal Farmers 1-2 Ht 5739 4052 Small Farmers 2-4 Ht 5765 2159 Semi Medium 4-10 Ht 3993 711 Medium 10 Ht & above 1084 68 Large Total 19767 13699 I say that, from the above information, it is clear that average land holding in Maharashtra State is low. The farm sizes are such that the farmers cannot afford use of tractors and more than 90% of the farmers (below 4 Ht of land) depend on bullocks to plough the land. The concept of tilling the land with mechanical tillers is 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/....
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....that requirement. Though human excreta is also a good fertilizer, its use as fertilizer is shrinking with passage of time. In earlier days human beings went to ease themselves to the agricultural farms in early mornings. However, with growing emphasis on 'shauchalayas' the availability of human excreta as a fertilizer is being totally wiped out. I further submit that organic manure obtained from dung should not be viewed only in terms of monetary price. There is a difference between price and value. Air has no price but is invaluable. Water has negligible price but is invaluable. Similarly, organic manure may be available at certain price but its value is much more. It restores the fertility of soil to which no price can be attributed. It is devoid of the serious adverse features of chemical fertilizers which are used as an alternate due to shortage of organic manure. Chemical fertilisers pollute the soil, the crop, the sub-soil water table, and are huge financial burden on the farmers. Consistent use of chemical fertilizers has ruined the soil in Punjab and other parts of the country and rendered the soil as infertile. Organic manure rejuvenates soil, is fre....
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.... 5748 Indigenous Adult Female 4643 3840 3650 3302 Sub-total 11406 10083 9742 9050 Crossbred Adult Male 226 280 235 212 Crossbred Adult Female 1243 1483 1734 2138 Young Stock Male* 2371 1994 1846 1264 Young Stock Female* 2825 2897 2627 2820 Total 18071 16737 16184 15484 * Both indigenous & cross bred and upto the age of 2 1/2 to 3 years. Source : Livestock and Poultry Census, Maharashtra State for the year 1997, 2003, 2007 & 2012, published by Commissionerate of Animal Husbandry, Govt. of Maharashtra. In the State, almost all villages have cow grazing land (Gairan). These lands are reserved for and in the name of 'Cows'. Additionally, approximately 12.5 lakh hector permanent pasture lands are also available for grazing." (emphasis added) 106. In paragraph 15, he has stated that there is nothing like "over population of cattle" in the face of declining cattle population. It is contended that the straying of cattle on roads can be checked by proper steps. 107. We must note here that at the stage of admission, th....
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....sp;(b) the scheduled animal, if male, is or is likely to become economical for the purpose of breeding; (c) the scheduled animal, if female, is or is likely to become economical for the purpose of giving milk or bearing offspring." 110. By the Amendment Act, bulls and bullocks have been deleted from the schedule and now a complete ban on their slaughter has been imposed. The ban imposed by Section 5 is essentially challenged on the ground of violation of fundamental right of butchers under Article 19(1)(g) of the Constitution of India and breach of fundamental rights guaranteed under Article 25. There is also a challenge on the ground of violation of Article 29. There is a challenge in some of the Petitions on the basis of violation of Article 21. But, none of the Petitioners have seriously pressed the challenge based on Article 21. Section 5 does not take away the right, if any of any individual, of eating meat of cow, bull or bullock. The said prohibition comes by way of Section 5D which will be dealt with separately. So, essentially the challenge to the amended portion of Section 5 will have to be dealt with on the basis of the allegations of violation of Artic....
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....nferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. The courts have recognised that there is always a presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies on the party which assails it. (para 6) (3) The right conferred by Article 19(1)(f) is conditioned by the various factors mentioned in clause (5). (para 8) (4) The following tests have been laid down as guidelines to indicate in what particular circumstances a restriction can be regarded as reasonable: (a) In judging the reasonableness of the restriction the court has to bear in mind the directive principles of State policy. ... (para 8) (b) The restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirements of the interests of the general public. The legislature must take intelligent care and deliberation in choosing the course which is dictated by reason and good conscience so as to strike a just balance between the freedom in the article and the social control permitted by the restrictions under the article. (para 14) &....
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.... which amongst others will be taken into consideration by the court in judging the reasonableness of any restriction imposed on the fundamental rights of the individuals. Hence, it will be necessary to reproduce the Objects and Reasons of the impugned Amendment Act. Clauses 1, 2 and 3 thereof read 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, but such certificate is not to be granted if in the opinion of that competent authority the animal is or is likely to become useful for draught, agricultural operations, breeding, giving milk or bearing offspring. 2. The economy of the State of Maharashtra is still predominantly agricultural. In th....
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....d) 114. In the preamble of the Animal Preservation Act before its amendment, it is stated that the Act has been made to provide for prohibition of slaughter of cows and for the preservation of certain other animals suitable for milch, breeding, draught or agricultural purposes. Clause 1 of the Statement of Objects and Reasons of the Amendment Act refers to Section 6 which empowers the Competent Authority to issue a certificate for slaughter of scheduled animals. It also refers to the fact that such certificate is not to be granted if in the opinion of that Competent Authority, the animal is or is likely to become useful for draught or agricultural operations, breeding or giving milk or bearing offspring. Clause 2 provides that the economy of the State of Maharashtra is still predominantly agricultural. It is stated that in the agricultural use of cattle for milch, draught, breeding or agricultural purposes has a great deal of importance. It also refers to the growing adoption of non-conventional energy sources like bio-gas plants and even waste material. Therefore, Clause 2 recites that after the cattle cease to be useful for the purposes of breeding or is too old to do work, it....
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....on of India reads thus: "48A. Protection and improvement of environment and safeguarding of forests and wild life.--The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country." Clause (g) of Article 51A of the Constitution reads thus: "51-A. Fundamental duties.--It shall be the duty of every citizen of India- *** (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;" At this stage, it will be necessary to make a reference to Paragraphs 48 to 52 and 68 of the decision of the Apex Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat. What is held therein can be summarized as under: (i) 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 exclude milch or draught cattle, which on account of age or disability, cease to be functional for those purpo....
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....the duty of the State (see also AIIMS Student's Union v. AIIMS). (v) It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the directive principles of State policy and fundamental duties as enshrined in Article 51-A of the Constitution play a significant role. Hence, the Statement and Objects and Reasons of the impugned Amendment Act shows that the same enacted to give effect to Articles 48,48A and clause (g) of Article 51A of the Constitution. (emphasis added) 118. In the case of Javed v. State of Haryana, the Apex Court held that the fundamental rights cannot be read in isolation but along with the directive principles and the fundamental duties enshrined under Article 51A of the Constitution of India. 119. While dealing with the issue of reasonableness of restriction imposed by the statute in the case of Sri SriKalimata Thakurani v. Union of India and Others, in Paragraph 19, the Apex Court observed thus: &nbs....
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....ry and it shall be the duty of the State to apply these principles in making laws. It follows that it becomes the duty of the court to apply the directive principles in interpreting the Constitution and the laws. The directive principles should serve the courts as a code of interpretation. Fundamental rights should thus be interpreted in the light of the directive principles and the latter should, whenever and wherever possible, be read into the former. Every law attacked on the ground of infringement of a Fundamental Right should, among other considerations, be examined to find out if the law does not advance one or other of the directive principles or if it is not in discharge of some of the undoubted obligations of the State, constitutional or otherwise, towards its citizens or sections of its citizens, flowing out of the preamble, the directive principles and other provisions of the Constitution." (emphasis added) 121. The Apex Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat held that the facts stated in the preamble and the Statements of Objects and Reasons constitute important factors which will have to be taken into consideration by th....
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....ke bulls and bullocks. With the growing adoption of non-conventional energy sources like biogas plants, even waste material has come to assume considerable value. After the cattle cease to breed or are too old to do work, they still continue to give dung for fuel, manure and biogas, and therefore, they cannot be said to be useless. It is well established that the backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny and have on their back, the whole structure of the Indian agriculture and its economic system. In order to give effect to the policy of the State towards securing the principles laid down in Articles 47, 48 and clauses (b) and (c) of Article 39 of the Constitution, it was considered necessary also to impose total prohibition against slaughter of progeny of cow." 123. In the case of Mirzapur Moti Kureshi Kassab Jamat, in paragraph 81, the Apex Court has analyzed the Statement of Objects and Reasons of the Gujarat Amendment which was impugned before it. The said paragraph reads thus: "81. The facts contained in the Preamble and the Statement of Objects and Reasons in the impugned enactment highlight the following facts: ....
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.... What is stated in the affidavit can be summarized as under: "(a) As per the 2012 Census, the cattle which is not used either for draught or breeding was only 61,439 which was one percent of the total indigenous male population and less than half percent of the total cattle population. The percentage of the indigenous male cattle as per the 2012 Census which was not used either for draught or breeding was approximately only 1% of the total indigenous male population and less than half percentage of the total cattle population in the year 2012. It is, therefore, incomprehensible that such an insignificant portion of the total cattle population will create pressure on the available pasture and grazing lands; (b) In 1990, there were 2566 veterinary dispensaries which number increased to 4856 in the year 2015; (c) In 1993, there were 53 mobile veterinary units which number increased to 65 by the year 2014; (d) The average distance for availing veterinary aid considerably reduced in the year 1974-1975 to 16 kms which got further reduced to 3.91 kms in the year 2013-2014; (e) The area under fodder crops in the Sta....
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....rse features of chemical fertilizers which are used as an alternative due to shortage of organic manure. Chemical fertilisers pollute the soil, the crop, the sub-soil water table, and are huge financial burden on the farmers. Consistent use of chemical fertilizers has ruined the soil in Punjab and other parts of the country and has rendered the soil infertile. Organic manure rejuvenates soil, is freely available as a bonus byproduct from cattle at the farmers' door step and does not need the huge infrastructure for production and distribution of chemical fertilisers: (n) The decl ine in male population is clearly attributable to the policy of slaughter of cow progeny." 126. In the present case, the State Government has justified the prohibition imposed on slaughter of a cow, bull or bullock by contending that the cow progeny excreta is recognized as a source of rich organic manure which enables the farmers to avoid the use of chemicals as well as inorganic manure which helps in improving the quality of earth and the environment. In paragraph 50 of its judgment in the case of Mirzapur, the Apex Court has accepted this by obse....
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....ention to the preservation, protection and improvement of the stock and organise our agriculture and animal husbandry on modern and scientific lines." (emphasis added) 128. In Paragraph 86 of the decision in the case of Mirzapur, the Apex Court noted the conclusions of the Study Group appointed by Gujarat University. The study report submitted its conclusions as under: "1. The aged bullocks above 16 years of age generated 0.68 horse power draft output per bullock while the prime bullocks generated 0.83 horsepower per bullock during carting-hauling draft work. 2. The aged bullocks worked satisfactorily for the light work for continuous 4 hours during morning session and total 6 hours per day (morning 3 hours and afternoon 3 hours) for medium work. 3. The physiological responses (Rectal temperature, Respiration rate and Pulse rate) and hemoglobin of aged bullocks were within the normal range and also maintained the incremental range during work. However, they exhibited the distress symptoms earlier as compared to prime bullocks. 4. Seven percent aged bullocks under study were reluctant to work and/or lied down af....
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....lock. In our view, apart from the conclusions recorded by the Apex Court on the usefulness of the progeny of cow even after it ceases to be a milch or draught animal, the State of Maharashtra has placed on record facts and data to support what is stated in the Statement of Objects and Reasons of the Amendment Act. The State has placed on record material to support the stand that it is necessary to preserve cows, bulls and bullocks and to prevent its slaughter in the State. Considering the legal and factual position and what we have discussed above, we find that the stand of the State Government that prohibiting the slaughter of cows, bulls and bullocks is in public interest will have to be accepted. 132. The question is whether the restriction imposed by Article 19(1)(g) is unreasonable. We find nothing unreasonable about the said restriction. It is for giving effect to Article 48 and Clause (g) of Article 51A of the Constitution of India. The restrictions are not arbitrary and therefore, do not infringe Article 14. Therefore, the challenge based on violation of Article 19(1)(g) to the amendment made to Section 5 of the Animal Preservation Act completely prohibiting the slaughte....
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....ve to construe Section 12 which deals with power to grant exemption from the Act. As we have noted earlier the said section enables the State Government by general or special order and subject to such conditions as it may think fit to impose, to exempt from the operation of this Act slaughter of any animal for any religious, medicinal or research purpose. Now it becomes clear that when there is a total ban under the Act so far as slaughtering of healthy cows which are not fit to be slaughtered as per Section 4(1) is concerned, if that ban is to be lifted even for a day, it has to be shown that such lifting of ban is necessary for subserving any religious, medicinal or research purpose. The Constitution Bench decision of this Court in Mohd. Hanif Quareshi case [AIR 1958 SC 731 : 1959 SCR 629] at (SCR) page 650 of the report speaking through Das, C.J. referred to the observations in Hamilton's translation of Hedaya, Book XLIII at page 592 that it is the duty of every free Mussalman arrived at the age of maturity, to offer a sacrifice on the I'd Kurban, or festival of the sacrifice, provided he be then possessed of Nisab and be not a traveller. The sacrifice established for on....
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....se no such exemption can be granted so as to bypass the thrust of the main provisions of the Act. We, therefore, reject the contention of the learned counsel for the appellants that even for an optional religious purpose exemption can be validly granted under Section 12. In this connection it is also necessary to consider Quareshi case [SCR1958 SC 731 : 1959 SCR 629] which was heavily relied upon by the High Court. The total ban on slaughter of cows even on BakrI'd day as imposed by Bihar Legislature under Bihar Preservation and Improvement of Animals Act, 1955 was attacked as violative of the fundamental right of the petitioners under Article 25 of the Constitution. Repelling this contention the Constitution Bench held that even though Article 25(1) granted to all persons the freedom to profess, practise and propagate religion, as slaughter of cows on BakrI'd was not an essential religious practice for Muslims, total ban on cow's slaughter on all days including BakrI'd day would not be violative of Article 25(1). As we have noted earlier the Constitution Bench speaking through Das C.J., held that it was optional for the Muslims to sacrifice a cow on behalf of seven....
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.... that if it is not necessary or essential to permit slaughter of a healthy cow for any religious purpose it would be equally not open to the State to invoke its exemption power under Section 12 for such a religious purpose. We, therefore, entirely concur with the view of the High Court that slaughtering of healthy cows on BakrI'd is not essential or required for religious purpose of Muslims or in other words it is not a part of religious requirement for a Muslim that a cow must be necessarily sacrificed for earning religious merit on BakrI'd." (emphasis added) 134. This issue was dealt with by the Constitution Bench of the Apex Court in the case of Quareshi-I. In the said case, the challenge was to the total ban on slaughter of cows on BakrI'd day under the Bihar Preservation and Improvement of Animals Act, 1955. The challenge was specifically on the ground of violation of fundamental rights guaranteed under Article 25(1) of the Constitution of India. The Constitution Bench held that the slaughter of cows on BakrI'd was not an essential religious practice for Muslims and, therefore, a total ban on cow's slaughter on the BakrI'd day could not be v....
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....servation Act must fail. [B] THE VALIDITY OF SECTIONS 5A, 5B AND 5C OF THE ANIMAL PRESERVATION ACT SECTION 5A 136. Section 5A is in two Sub-sections. Sub-section (1) of Section 5A reads thus: "5A(1) No person shall transport or offer for transport or cause to be transported cow, bull or bullock from any place within the State to any place outside the State for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be, so slaughtered." 137. Sub-section (1) of Section 5A incorporates a prohibition on any person transporting or offering to transport or cause to be transported a cow, bull or bullock from any place within the State to any place outside the State for the purposes of its slaughter in contravention of the provisions of the Animal Preservation Act or with the knowledge that it will be or it is likely to be so slaughtered. The ban imposed by the amendment to Section 5 on slaughter of cows, bulls or bullocks is applicable only within the State of Maharashtra as the law is made by the State Legislature. Therefore, there is no question of anyone slaughtering a cow, bull or bull....
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....to the validity Sub-section (2) of Section 5A must fail. SECTION 5B 141. The Section 5B provides that no person shall purchase, sale or otherwise dispose of or offer to purchase, sell or dispose of any cow, bull or bullock for slaughter or knowing or having reason to believe that such cow, bull or bullock shall be slaughtered in contravention of the provisions of the Act. This restriction is naturally applicable within the State of Maharashtra which appears to be in furtherance of the intention of the legislature to put a complete embargo on slaughter of cows, bulls or bullocks with a view to implement Article 48. The Sub-section 5B has direct and proximate connection with the ban imposed by Section 5. We have dealt with issue of direct and proximate connection while dealing with Sections 5C. Section 5B has been enacted with a view to ensure that the ban imposed by Section 5 is effectively implemented. Hence, the said restriction is reasonable and cannot be unconstitutional. SECTION 5C 142. Section 5C starts with a non-obstante clause which provides that notwithstanding anything contained in any other law for the time being in force, no person shall have in his possessi....
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....ion of Section 5. 145. On this aspect, we may state that the learned Advocate General, notwithstanding the provisions of Section 9B, stated that in the prosecution for an offence punishable under Section 9 or 9A, the initial burden to prove the basic existence of facts constituting the offence of violation of Sections 5A, 5B and 5C will be always on the State. In short, the offence will be attracted if the possession is a conscious possession. 146. The challenge to Section 5C essentially by the owners of cold-storages in the State is based on violation of fundamental rights under Article 19(1)(g) of the Constitution of India. The contention is that Section 5C violates their fundamental rights under Article 19(1) (g) of the Constitution of India and the restriction imposed is unreasonable which will not stand to test of Article 19(6) of the Constitution of India. 147. The contention is that the burden is on the State to justify the law in cases where there is an allegation of violation of Article 19 of the Constitution of India. Reliance is placed on the decision of the Apex Court in the case of Deena alias Deen Dayal and Others. As stated earlier, Section 5C prohibits any ....
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....ow, bull or bullock illegally slaughtered within the State. In the absence of Section 9B, the prosecution will have to prove that the accused who is charged for violation of Section 5C was found in possession of flesh of cow, bull or bullock slaughtered within the State with the knowledge that it is a flesh of cow, bull or bullock so slaughtered. On this aspect, it will be necessary to make a reference to what is held by the Apex Court in its decision in the case of People's Union for Civil Liberties (PUCL) v. Union of India and Another. The Apex Court was dealing with Section 4 of the Prevention of Terrorism Act, 2002. Section 4 read thus: "4. Possession of certain unauthorized arms, etc.--Where any person is in unauthorized possession of any,- (a) arms or ammunition specified in columns (2) and (3) of Category I or Category III(a) of Schedule I to the Arms Rules, 1962, in a notified area, (b) bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not, he shall be guilty of terrorist act notw....
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.... hold that there is no infirmity in Section 4." (emphasis added) 150. Thus, even in a case of a legislation which makes unlawful possession of arms and ammunition an offence, the Apex Court read the possession as a conscious possession and not merely a custody. The meaning of the word "conscious" is awareness of a fact. It is a state of mind which is deliberate. Section 5C makes possession of flesh as an offence. Mental element is also a part of "possession" under Section 5C. The knowledge element is certainly a part of "possession" in Section 5C. The law laid down by the Apex Court will apply to Section 5C as well. To that extent, the Petitioners are right in contending that "conscious" possession will have to be read into Section 5C. If the possession under Section 5C is not treated as a conscious possession and is treated as mere custody, there is every possibility of an innocent person being convicted for an offence punishable under Section 9A. 151. The next limb of argument in support of the challenge to Sections 5A to 5C is based on Article 301 read with Article 304B. The contention is that the prohibition imposed by the Sections has a direct and immediate effe....
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....id question is in the negative, the question will be whether Section 5D infringes the said fundamental right. WHETHER RIGHT OF PRIVACY IS A PART OF PERSONAL LIBERTY GUANTEED BY ARTICLE 21 154. The first relevant decision which needs consideration is in the case of Kharak Singh v. State of U.P. and Others. It is a decision of the Constitution Bench of the Apex Court consisting of six Hon'ble Judges. The majority view in the said decision is by Ayyangar, J and the minority view is by Subba Rao, J. The challenge before the Apex Court was to the constitutional validity of Chapter 22 of the U.P. Police Regulations. Chapter 22 included Regulation 236 which defines "survelliance". Paragraph 7 of the said decision refers to the definition of "survelliance" in Regulation 236 which reads thus: "7. The sole question for determination therefore is whether "surveillance" under the impugned Ch. XX of the U.P. Police Regulations constitutes an infringement of any of a citizen's fundamental rights guaranteed by Part III of the Constitution. The particular Regulation which for all practical purposes defines "surveillance" is Regulations 236 which reads: "....
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....se extracts would show that an unauthorised intrusion into a person's home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man an ultimate essential of ordered liberty, if not of the very concept of civilisation. An English Common Law maxim asserts that "every man's house is his castle" and in Semayne's case [5 Coke 91 : 1 Sm LC (13th Edn) 104 at p. 105] where this was applied, it was stated that "the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose." We are not unmindful of the fact that Semayne case [5 Coke 91 : 1 Sm LC (13th Edn) 104 at p. 105] was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of "personal liberty" which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value. 16. In our view clause (b) of Regulation 236 is plainly violative of Article 21 and as ther....
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....succinctly explained by Dicey in his book on Constitutional Law, 9th edn. The learned author describes the ambit of that right at pp. 207-08 thus: "The right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification." Blackstone in his Commentaries on the Laws of England, Book 1, at p. 134 observes: "Personal liberty includes the power to locomotion of changing situation, or removing one's person to whatsoever place one's inclination may direct, without imprisonment or restraint, unless by due course of law." In A.K. Gopalan case [1950 SCR 88], it is described to mean liberty relating to or concerning the person or body of the individual; and personal liberty in this sense is the antithesis of physical restraint or coercion. The expression is wide enough to take in a right to be free from restrictions placed on his movements. The expression "coercion" in the modern age cannot be construed in a narrow sense. In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization adv....
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....terest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible State interest, the characterization of a claimed right as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a State interest sufficient to justify the infringement of a fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of State. 23. Individual autonomy, perhaps the central concern of any system of limited Government, is protected in part under our Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new con....
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....infringement of his right to privacy and further in case such writing amounts to defamation?" In Paragraph 9, the Apex Court considered its decision in the case of Kharak Singh. Thereafter, the Apex Court considered various decisions of Foreign Courts. In Clause (1) of Paragraph 26, the Apex Court summarized the principles. Clause (1) reads thus: "1. The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy." (emphasis added) Thus, the Apex Court held that the right to privacy is implicit in the right....
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....e Apex Court held thus: "39. We have referred in detail to the reasons given by Mathew, J. in Gobind [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] to show that, the right to privacy has been implied in Articles 19(1)(a) and (d) and Article 21; that, the right is not absolute and that any State intrusion can be a reasonable restriction only if it has reasonable basis or reasonable materials to support it. 40. A two-Judge Bench in R. Rajagopal v. State of T.N. [(1994) 6 SCC 632] held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. "It is the right to be let alone." Every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed. The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, People's Union for Civil Liberties v. Union of India [ (1997) 1 SCC 301], 'X' v. Hospital 'Z' [(1998) 8 SCC 296], People's Union for Civil Liberties v. Union of India[ (2003) 4 SCC 399] and Sharda v. Dharmpal [ ....
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....nomy of an individual. In paragraphs 73 and 75, the Apex Court held thus: "73. Article 21 of the Constitution of India reads as follows: "21. Protection of life and personal liberty.--No person shall be deprived of his life or personal liberty except according to procedure established by law." Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all those aspects of life which go to make a person's life meaningful. Article 21 protects the dignity of human life, one's personal autonomy, one's right to privacy, etc. Right to dignity has been recognised to be an essential part of the right to life and accrues to all persons on account of being humans. In Francis Coralie Mullin v. UT of Delhi[(1981) 1 SCC 608 : 1981 SCC (Cri) 212] (SCC pp. 618-19, paras 7 and 8), this Court held that the right to dignity forms an essential part of our constitutional culture which seeks to ensure the full development and evolution of perso....
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....01 This was a case of telephone tapping. The argument before the Apex Court was that the right of privacy is a fundamental right guaranteed under Article 19(1) and Article 21. The Apex Court considered the decisions in the cases of Kharak Singh, Gobind and R. Rajagopal. In Paragraphs 11 to 13, the Apex Court quoted the majority and minority views in the case of Kharak Singh and in Paragraph 14, it was observed thus: "14. Article 21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh case [(1964) 1 SCR 332 : AIR 1963 SC 1295] (majority and the minority opinions) to include that "right to privacy" as a part of the right to "protection of life and personal liberty" guaranteed under the said Article." (emphasis added) The ultimate finding of the Apex Court is in Paragraphs 17 and 18 which read thus: "17. We have, therefore, no hesitation in holding that right to privacy is a part of the right to "life" and "personal liberty" enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed "exc....
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....1 of the Constitution of India. Intrusion into a person's home was also held to be a part of personal liberty. The majority view in paragraph 13 reads thus: "We have already extracted a passage from the judgment of Field, J. in Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)] US at p. 142, where the learned Judge pointed out that 'life' in the 5th and 14th Amendments of the U.S. Constitution corresponding to Article 21, means not merely the right to the continuance of a person's animal existence, but a right to the possession of each of his organs - his arms and legs etc. We do not entertain any doubt that the word 'life' in Article 21 bears the same signification. Is then the word 'personal liberty' to 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 even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to 'assure the dignity of the individual' and t....
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....of a common law right of a man - an ultimate essential of ordered liberty, if not of the very concept of civilisation. An English Common Law maxim asserts that 'every man's house is his castle' and in Semayne case [Semayne's case, (1604) 5 Co Rep 91 a], where this was applied, it was stated that 'the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose'. We are not unmindful of the fact that Semayne case [Semayne's case, (1604) 5 Co Rep 91 a] was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of 'personal liberty' which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value. In our view clause (b) of Regulation 236 is plainly violative of Article 21 and as there is no 'law' on which the same could be justified it must be struck down as unconstitutional." (emphasis added) 167. Whi....
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.... right to privacy is implicit in the right to life and liberty guaranteed by Article 21. In fact, the Apex Court held that it is a right to be let alone. In the case of District Registrar and Collector, Hyderabad and Another v. Canara Bank and Others, the Apex Court specifically considered the question of right of privacy qua the search and seizure. In Paragraph 24, the Apex Court observed that our Constitution does not contain a specific provision either as to privacy or even as to unreasonable search. Thereafter, the Apex Court in Paragraph 35 referred to the decision in the case of M.P. Sharma. Thereafter, in Paragraph 36, a reference was made to the decision in the case of Kharak Singh. Thereafter, in Paragraph 39, the Apex Court referred to the decision in the case of Gobind and ultimately, in Paragraph 40, the Apex Court held that the right of privacy is implicit in the right to life and liberty guaranteed to the citizens of India by Article 21 of the Constitution of India. It was held that it is a right to be let alone. In the case of Re Ramlila Maindan Incident, the Apex Court considered the scope of Article 21 in the context of right of privacy. The Apex Court considered t....
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.... and Kharak Singh. We must note here that the Apex Court did not specifically accept the argument of the learned Attorney General as well as one of the Respondents that the opinions expressed by various Benches of the Apex Court after the decisions in the cases of M.P. Sharma and Kharak Singh show the jurisprudentially impermissible divergence of judicial opinions. In Paragraphs 12 and 13, the Apex Court observed thus: "12. We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right Under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty Under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smalle....
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....(2010) 15 SCC 118] need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field." (emphasis added) Hence, the aforesaid seven decisions continue to hold the field notwithstanding the pending reference. Therefore, in our considered view, the position of law as it stands today and which is reflected from the series of binding decisions is that the right of privacy is part of personal liberty guaranteed under Article 21 of the Constitution of India. 174. The argument of the Petitioners in support of their challenge to Section 5D is that it infringes the right of privacy which includes the right to be let alone and the right to consume the food of one's choice provided it is not otherwise prohibited by a valid law. In the second affidavit of Shri Shashank Sathe, the State Government has made it very clear that it is not the intention of the State Government to prevent the citizens from eating non-vegetarian food. It is not the case made out by the State at the time of final hearing that beef as an item of food is either obnoxious or harmful and its consumption is sought to be ....
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..... Hence, Section 5D is certainly an infringement of right to privacy which is implicit in the personal liberty guaranteed by Article 21. 177. It will be necessary on this aspect to make a reference to the decision of the Apex Court in the case of Deena alias Deen Dayal and Others v. Union of India and Others. In Paragraph 17, the Apex Court held thus: "17. Thus, there is a fundamental distinction between cases arising under Article 14 and those which arise under Articles 19 and 21 of the Constitution. In a challenge based on the violation of Articles 19 and 21, the petitioner has undoubtedly to plead that, for example, his right to free speech and expression is violated or that he is deprived of his right to life and personal liberty. But once he shows that, which really is not a part of the "burden of proof", it is for the State to justify the impugned law or action by proving that, for example, the deprivation of the petitioner's right to free speech and expression is saved by clause (2) of Article 19 since it is in the nature of a reasonable restriction on that right in the interests of matters mentioned in clause (2), or that, the petitioner has been depri....
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....rt held thus: "22. Another decision in the same category of cases is Mohd. Faruk v. State of Madhya Pradesh [(1969) 1 SCC 853 : AIR 1970 SC 93 : (1970) 1 SCR 156] in which the State Government issued a notification cancelling the confirmation of the municipal bye-laws in so far as they related to the permission to the slaughtering of bulls and bullocks. Dealing with the challenge of the petitioner to the notification on the ground that it infringed his fundamental right under Article 19(1)(g) of the Constitution Shah, J., who spoke for the Constitution Bench, observed: (SCC pp. 856-57, para 8) "When the validity of a law placing restriction upon the exercise of fundamental rights in Article 19(1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable ties upon the State.... Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition, but when the exercise of a fundamental right is prohibited, the burden of proving 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. (SCR ....
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....ntal right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law. The first question that arises for consideration on the language of Article 21 is : what is the meaning and content of the words "personal liberty" as used in this article? This question incidentally came up for discussion in some of the judgments in A.K. Gopalan v. State of Madras [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] and the observations made by Patanjali Sastri, J., Mukherjea, J., and S.R. Das, J., seemed to place a narrow interpretation on the words "personal liberty" so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words "personal liberty" as the inter-relation between Articles 19 and 21. It was in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to the proper scope and meaning of the expression "personal ....
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....et the challenge of another guaranteed freedom. The decision in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive - each article enacting a code relating to the protection of distinct rights, but this theory was overturned in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] where Shah, J., speaking on behalf of 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 conclusion was summarised in these terms : "In our judgment, the assumption in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] that certain articles in the Constitution exclusively deal with specific matters - cannot be accepted as correct". It was held in R.C. Cooper case [ (1970) 2 SCC 298 : (1971) 1 SCR 512] - and that is clear from the judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of law contained in the opinions of Kania, C.J., Patanjali....
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....(1971) 1 SCR 512] and our approach in the interpretation of the fundamental rights must now be in tune with this wavelength. We may point out even at the cost of repetition that this Court has said in so many terms in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression "personal liberty" in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1). The expression "personal liberty" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Now, it has been held by this Court in Satwant Singh case [AIR 1967 SC 1836 : (1967) 3 SCR 525 : (1968) 1 SCJ 178] that "personal liberty" within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law. Prior to the e....
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....d not go as far as that but he did say that "certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law". Mahajan, J., also observed that Article 21 requires that "there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty" and "it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings". But apart altogether from these observations in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21." (emphasis added) 181. In paragraph 7, Bhagawati, J. held thus: "7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democrat....
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....dition, in paragraph No. 318 in the case of Ramlila Maidan Incident In Re, the Apex Court observed thus: "316. While determining such matters the crucial issue in fact is not whether such rights exist, but whether the State has a compelling interest in the regulation of a subject which is within the police power of the State. Undoubtedly, reasonable regulation of time, place and manner of the act of sleeping would not violate any constitutional guarantee, for the reason that a person may not claim that sleeping is his fundamental right, and therefore, he has a right to sleep in the premises of the Supreme Court itself or within the precincts of Parliament. More so, I am definitely not dealing herein with the rights of homeless persons who may claim right to sleep on footpath or public premises but restrict the case only to the extent as under what circumstances a sleeping person may be disturbed and I am of the view that the State authorities cannot deprive a person of that right anywhere and at all times." (emphasis added) 184. Now the question is whether the State has discharged the burden. Article 31-C will not help the State as it is not applicable wh....
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....Court observed that it is not held in the case of Mirzapur that laws/policies permitting slaughter of progeny of cow were unconstitutional. As stated earlier, the burden was on the State Government to justify the constitutionality. There is no effort made to discharge the said burden. The State has not come out with any material to show what is the compelling State interest to prevent an individual from possessing or consuming the meat of cow or its progeny which is a product of slaughter outside the State. Preventing a citizen from possessing flesh of cow, bull or bullock slaughtered outside the State amounts to prohibiting a citizen from possessing and consuming food of his choice. In Section 5D, the focus seems to be generally on consumption of beef, as an item of food. Consumption of food which not injurious to health is a part of an individual's autonomy or his right to be let alone. Hence, it is an infringement of his right of privacy. In our view, Section 5D violates the right of privacy being an integral part of the personal liberty under Article 21. Violation of Section 5D by possessing meat of cow, bull or bullock which is lawfully slaughtered outside the State is mad....
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.... *** It may be recalled that the parties to the 'Convention on International Trade in Endangered Species of Wild Fauna and Flora' (CITES), being greatly concerned by the decline in population of African elephants due to illegal trade in ivory, have included this animal in Appendix I of the Convention in October 1989. Due to this change, the import and export of African ivory for commercial purposes has been prohibited. As a result, import of ivory would no longer be possible to meet the requirements of the domestic ivory trade. If the ivory trade is allowed to continue, it will lead to large-scale poaching of Indian elephants. With this point in view, the trade in imported ivory within the country is proposed to be banned after giving due opportunity to ivory traders to dispose of their existing stock." (emphasis added) 188. In paragraph 45 and 46, the Apex Court observed thus: "45. Parliament while enacting the said amending Act took note of serious dimensions of poaching of wild animals and illegal trade giving exponential rise of wild animals and their products. 46. The Hon'ble Minister of State of ....
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....ave 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 Court found that ban on trade of imported ivory was not only justified by the Statement of Object and Reasons, but the State placed on record enough material to justify the total ban. The ban on trade of imported ivory was imposed on the basis of past experience which showed that prevention of poaching can be achieved only by imposing a complete ban on trade in ivory. In the facts of the present case, the drastic provision of Section 5D is justified neither by the Statement of Object and Reasons nor by placing any material on record to justify the compelling state interest. In the facts of the case before us, it is not the case of the State Government that the imported flesh of cow, bull or bullock will be used as a cover for illegal slaughter of the animals of the said category in the State of Maharashtra. Moreover, the challenge to the Section 49-C was on the ground of infringement of right under Article 19(1)(g). In this case, the violation of Article 21 is alleged. Hence, the State must prove violation of....
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....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 will have to eat food and preferably food of his choice. If the state tells him not to eat a particular kind of food though the same is not injurious to health, it will prevent the citizen from leading a meaningful life. If the State starts making intrusion into the personal life of an individual by preventing him from eating food of his choice, such act may well affect his personal liberty. Hence, even assuming that there may not be any right of privacy, such interference will be violation of personal liberty guaranteed by the State. SUB-SECTIONS (3) AND (4) OF SECTION 8 194. Now we deal with the challenge to Sub-section (3) of Section 8 and which is added in the Animal Welfare Act by the Amendment Act. Sub-section (3) and Sub-section (4) which are added to Section 8, read thus: "(3) Any Police Officer not below the rank of Sub-Inspector or any person authorized in this behalf by the State Government, may, with a view to securing compliance of provisi....
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....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 inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of Section 47. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable ....
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....y 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 liable to pay for their maintenance for the period they remain in custody with any other institutions or organizations as per the orders of the Court. Apart from the fact that the remedies are available to challenge the illegal seizure, it is ultimately for the concerned Court to pass an order against the accused for payment of maintenance of the animals. It is obvious that the concerned Court has discretion to pass an order directing the payment of maintenance by the accused. In any event, the existence of suspicion as provided in Clause (b) of Sub-section (3) of Section 8 of likely contravention of the provisions of Section 5C will have to be in the context of the interpretation put by this Court to Section 5C. Before the amendment, Sub-sections (1) and (2) of Section 8 were already part of the Animal Preservation Act which read thus: "8. (1) For the pu....
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....ccused, 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 presumed innocent, might be countenanced as valid. He contended that such provision needs to be tested on the anvil of the State's responsibility to protect innocent citizens and the importance of this duty must be weighed against the purpose of the limitations. Learned Counsel relied on the case of Noor Aga v. State of Punjab in support of his submission. Relying on the case of Bhola Singh v. State of Punjab (2011)11 Supreme Court Cases 653, he also submitted that it is only after the state discharges its initial burden of proving foundational facts that the burden can be shifted onto the accused. Mr. Kumbhakoni submitted that there are no foundational facts to be established by the State in the case of a trial of offences under the Act, by virtue of Section 9B. He submitted that even tests such as the difficulty in the prosecution giving a pro....
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....ticle 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 people won the principle that criminal punishments could not be inflicted save for that which proper legislative action had already by 'the law of the land' forbidden when done. But even more was needed from the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the 'law of the land' evolved the fundamental idea that no man's life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried.... Thus, as assurance against ancient evils, our country, in order to preserve "the blessings of liberty," wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due....
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....ure 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 various clauses of Article 19(1) does not cease to be available to him. The Court held that the law authorising such detention has to satisfy the test of the applicable freedoms under Article 19. Then, in Maneka Gandhi v. Union of India, the Supreme Court authoritatively considered the interrelationship between Article 21 and Article 14 of the Constitution. In no uncertain terms, the Court in Maneka Gandhi held that if a law depriving a person of 'personal liberty' and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19, ex hypothesi it must also be liable to be tested with reference to Article 14. In other words, the Court accepted a clear limitation even on law making so that deprivation of life and person....
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....ment 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 not be violative of the equality clause. That procedure must answer the requirement of Article 14. The nature and requirement of the procedure under Article 21." If the procedure prescribed does not satisfy the test of Article 14, e.g. if it is arbitrary, oppressive or fanciful, it would be no procedure at all within the meaning of Article 21 (See District Registrar and Collector, Hyderabad v. Canara Bank). So also, considering that the concept of reasonableness permeates Article 14, a procedure which is unreasonable cannot be termed as a procedure so established by law. In sum, after Maneka Gandhi's case, the law can be taken as fully settled that personal liberties cannot be restricted even by law except after satisfying Articles 14 and 19. The right of life and liberty under Article 21, thus, clearly cov....
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....al 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 prosecution to discharge the pursuasive or legal burden to prove the guilt of the accused. Traditionally conceived, every criminal offence has two essential elements - actus reus, that is to say, the guilty act itself and mens rea, the guilty mind. Though there are many crimes (known as crimes of strict liability) which do not require mens rea, whenever mens rea is required, the prosecution has to ordinarily establish both the actus reus of the crime and the mens rea. This traditional view has undergone changes over time. Now there are well known exceptions to the normal rule that the burden of proof is upon the prosecution. These exceptions are : (1) when the accused admits the actus reus and mens rea but pleads a special defence. For example, in a prosecution for murder, when the accused pleads self-defenc....
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....ace, 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 citizen from operation of injustice in the hands of the law enforcement machinery, on the other, is, thus, required to be balanced. The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens. The court must assess the importance of the right being limited to our society and this must be weighed against the purpose of the limitation. The purpose of the limitation is the reason for the law or conduct which limits the right.(see S v. Dlamini ((1999) 4 SA 623: (1999) 7 BCLR 771 (CC)" This balance is achieved by allowing the State to rely on presumptions based on recognised principles, whilst at the same time, permitting the accused to rebut those presumptions. 209. There ar....
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.... 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 conviction holding that the material before the Court, namely, that the person was found in possession of and moving a certain quantity of drugs beyond the permissible limit was logically probative of the purpose of transferring possession. The possession of prohibited drugs was in itself unlawful, but more heinous was the crime of trafficking in such drugs. Upon the prosecution proving that certain acts consistent with the purpose of trafficking (i.e. transferring possession to another) were committed by the accused, namely, carrying of a quantity over the permissible limit consistent with self-consumption, there is nothing wrong with the presumption of the purpose behind carrying such quantity. The purpose with which he did the act is peculiarly within his knowledge and there was nothing un....
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....ug 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). The exceptions were disclosures made by the accused in accordance with sub-section (3) to an authorized officer of any suspicion or belief that any funds or investments were derived from or used in drug trafficking. If disclosures in terms of Sub-section (3) were made, the person doing an act in contravention with sub-section(1) could not be said to have committed the offence. Sub-section (4) provided for a special defence, namely, a defence to prove either that (a) the accused did not know or suspect that the arrangement related to proceeds of drug trafficking or (b) he did know that by such arrangement the retention or control by or on behalf of the trafficker was facilitated or (c) he actually intended to make a disclosure under sub-section (3) but that there was a reas....
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....d 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 trafficking, subject to an exception contained in s 25(3) and a special defence contained in sub-s (4). Section 25 is an offence which falls within the classes referred to by Lawton LJ in the passage cited from his judgment in R v Edwards." The Privy Council, whilst analyzing the application of Article 11(1) of the Hong Kong Bill of Rights, observed that the Article did not prohibit presumptions of fact or of law, which operate in every legal system, and had an implicit degree of flexibility in that behalf. It further held as follows: "This implicit flexibility allows a balance to be drawn between the interest of the person charged and the state. There are situations where it is clearly sensible and reasonable that deviations should be allowed from the stri....
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....c 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 knowledge, the relative ease of discharging such burden, etc. In the case of R. v. Oakes 26 DLR (4th) 200 considered by our Supreme Court in the case of P.N. Krishna Lal (supra), the Canadian Supreme Court was considering the constitutionality of the presumption engrafted in Section 8 of the Narcotic Control Act, 1970 of Canada on the anvil of Section 11(d) of the Canadian Charter of Rights and Freedoms, which guaranteed the presumption of innocence to the accused. Section 8 required that in any prosecution for the offence of possession of a narcotic for the purpose of trafficking (provided by Section 4(2) of that Act), if the Court found the accused to be in possession of the narcotic (which was itself an offence under Section 3 of that Act), he would be gi....
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.... 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 thereof, so as to make it just for the defendant to be required to displace such presumption? It is not within the province of a legislature to declare an individual presumptively guilty of a crime, but it is legitimate to draw presumptions on the basis of facts proved by the State and require the accused to displace them. 'These presumptions are not evidence in a proper sense', as observed in the case of P.N. Krishna Lal, 'but simply regulations of the burden of proof'. 213. We may now summarize the various tests which we have discussed above for sustaining a reverse burden in a criminal trial as constitutionally valid. They are as follows: "(i) Is the State required to prove enough basic or essential facts ....
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....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 flesh. Greater difficulty would be faced if on the basis of possession of such flesh, the State were to prosecute him for an offence under Section 5C, that is to say, for possession of the flesh of a cow, bull or bullock slaughtered in contravention to the Act, i.e. in Maharashtra. Pray how is the accused to discharge the onus of proving that he did know that the animal was slaughtered in contravention of the Act? Not only does the burden placed on him offend the rule against burden to prove a negative fact, it also subjects the accused to a great hardship and oppression, which is not commensurate with the balance of difficulty faced respectively by the prosecution and the accused in establishing the ingredient....
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.... 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 flesh being of a protected animal, (ii) the possession of the accused of such flesh, and (iii) slaughter of the protected animal within the State for producing such flesh, would have to be established by the prosecution. We are afraid that is not how Section 9B is worded. As framed by the legislature, it does cast the burden of proving the negative of the third ingredient on the accused, and as such is unconstitutional. Constitutionality cannot be a matter of concession by the State at the hearing. Besides, if all these ingredients were to be established by the prosecution, there is practically no content in Section 9B. We might as well disregard it entirely, as even the only other ingredient of 'kno....
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....rove 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. To cast a burden on the accused, after the State simply establishes the sale or disposal of the animal by him, to prove that such sale or disposal was not for slaughter or with knowledge of such slaughter or with reason to believe that the animal would be slaughtered, does not satisfy any of the tests for validity of a reverse burden. 217. Sections 5 and 6 prohibit slaughter or causing to be slaughtered or (under Section 5) offering for slaughter any (a) cow, bull and bullock, or (b) scheduled animal without the certificate referred to in Section 6 (under Section 6), in any place in the State of Maharashtra. Sections 9 and 9A, respectively, make the same punishable. The ingredients of the offence unde....
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....ueue, 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 this Court. He had written an article as a member of the Bar on a similar statute of another State in which he had expressed his own views on the subject. We thought that this gesture will be appreciated by the members of the Bar. We must record here that in some of the matters forming part of this group, there was already an order of a Co-ordinate Bench for giving out of turn priority to the final hearing of the Writ Petitions and in fact a peremptory date for final hearing was fixed. Apart from that, the Hon'ble the Acting Chief Justice by an order dated 17th November 2015 constituted this Special Bench for hearing this group of Petitions. It is obvious that the Special Bench was consti....