#Debriefed: What the Bombay High Court has said about the #BeefBan

In a 225-page judgment, the Bombay High Court has struck down some of the provisions amending the Maharashtra Animal Preservation Act of 1976. In essence, the High Court has held that although the ban on slaughter continues, possession of meat from animals slaughtered outside the state is perfectly legal..What is the law in question?.On March 4, 2015, the President of India gave his assent to the Maharashtra Animal Preservation (Amendment) Act of 1995. This Act made a number of changes to the Maharashtra Animal Preservation Act of 1976, three of which are particularly relevant..The amending Act added “bulls” and “bullocks” to the list of animals protected under the Act. Hence slaughter of cows, bulls, and bullocks in the state of Maharashtra became an offence under the Act.Sections 5A, 5B, 5C introduced further offences under the Act – now the transport, purchase or sale, and possession of “flesh of any cow, bull or bullock” slaughtered in Maharashtra was an offence. But most importantly, S. 5D held that possession of the animals slaughtered outside the State would also be an offence.S.9B introduced the concept of reverse burden – i.e. the burden of proof now lay on the person accused of violating the Act.What was the State’s justification for these amendments?.The Maharashtra government made a number of submissions in defence of the amendments. Shreehari Aney, the then Advocate General, argued that there did not appear to be “any authoritative judgment of the Supreme Court which lays down the ratio that the right to privacy should be considered a fundamental right.”.It is worth mentioning that the earlier affidavits filed by the State also claimed that evidence suggests a high risk of cancer, heart disease and obesity due to consuming cow flesh. However, this particular contention was not pressed during the final hearings..Also, the State was not the only party justifying the ban. A number of intervenors were also involved..What did the court hold?.The court has found no fault with Ss. 5A and 5B..However, with respect to Section 5C, the High Court held that possession of the flesh must be a “conscious possession”. What the court has said is that mere custody is not enough for an offence to be made out under the Act, reasoning that,.“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.”.And when it came to S.5D, the court held that the same is liable to be struck down, holding that the same is a violation of the right to privacy. This right to privacy, held the court, is inextricably linked to the right to liberty under Article 21..After going through a number of judgments, Justice Oka held that,.“The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice. A citizen has a right to lead a meaningful life within the four corners of his house as well as outside his house. This intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21..….Thus, if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone.”.Justice Oka goes on to hold that,.“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 fact, the judge even says that the provision would be struck down even if there was no right to privacy..“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.”.And what about the negative burden of S.9B?.This part of the judgment was penned by Justice Gupte, who has not been very kind on the State. Far from it. After running through laws where reverse burden has been upheld, the judge comes down to this particular provision..“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..….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 ingredients of the offence or the lack thereof..No one has told us at the Bar, in the first place, of there being any way of distinguishing the flesh of cow, bull or bullock from the flesh of other bovine species, e.g. buffalo. It is inconceivable that an ordinary consumer would know the difference. On top of it, the State would have the Court presume not just the knowledge of the accused of the nature of the flesh, namely, of an animal protected under the Act, but even the manner of its production, namely, by slaughter in contravention of the Act, and cast the burden of showing otherwise, a pure negative fact, on the accused. This is clearly impermissible.”.What will the State do?.There is a very high probability of this matter being taken to the apex court. In fact, even today, there was a request to grant a “stay” on the judgment, a request that was denied..Anything else to note?.While Justice Oka was the one who struck down S.5D of the Act, it was Justice Gupte who struck down S. 9B of the Act.This was not the initial Bench composition. Justice GS Patel had recused from the Bench, citing an article he had written on a similar law enacted in Karnataka. The judgment notes that this recusal was following the “highest traditions of this Court”.The official judgment has “fleshmatter draft 5” imprinted on the top right column of each page.One of the petitioners (WP 9996 of 2015) claimed that in 2007 the state’s Animal Husbandry Department had actually written to the Law and Judiciary Department asking for the Amendment Bill to be withdrawn and hearings held..Read the complete judgment below.