In a significant judgment delivered yesterday, the Bombay High Court struck down Sections 5D and 9B of the Maharashtra Animal Preservation Act, while upholding the other provisions of the act. Section 5D penalised the possession of beef, even if it had been brought from outside the state of Maharashtra. Section 9B reversed the presumption of innocence, and required that in a trial for the contravention of the Act, it would be for the accused to show that he had not violated the provisions of the law.
The Maharashtra Animal Preservation Act of 1976 had placed a ban upon cow slaughter in the state of Maharashtra. An Amendment Act – passed in 1995, but that only received Presidential assent in 2015 – extended the ban to the slaughter of bulls and bullocks as well. The Preamble to the Act was amended to specify that the Act’s purpose was the preservation of “cows, bulls and bullocks useful for milch, breeding, draught or agricultural purposes and for restriction on slaughter for the preservation of certain other animals suitable for the said purposes.” In addition to Section 5 of the Act, which now prohibited the slaughter of cows, bulls, and bullocks, the legislature added four sections: 5A, which prohibited transportation or export of cows, bulls or bullocks from within the State to any place outside the State for the purpose of slaughter “in contravention of the provisions of this Act“; 5B, which prohibited the purchase or sale of cows, bulls or bullocks for slaughter; 5C, which prohibited possession of the flesh of any cattle slaughtered in contravention of the Act; and 5D, which prohibited possession of cattle flesh brought from outside the State. To enforce these provisions, an amended Section 8 authorised Sub-Inspectors and higher-ranking police officers to search and stop vehicles, seize cattle flesh, and inspect any place. The Statement of Objects and Reasons of the Amendment Act specified that Maharashtra was a predominantly agricultural state, and that therefore, preserving animals for milch, draught and breeding purposes was specifically important.
All these provisions were challenged in a number of writ petitions, on grounds of Articles 19(1)(g), 21, 25, and 29 of the Constitution. These were heard and disposed off together by a two-judge bench of the High Court. To start with, it is important to note that to a large extent, the Bombay High Court’s hands were tied by a number of judgments of the Supreme Court that had upheld complete bans on cattle slaughter. From Mohd Hanif Qureshi to Mirzapur Moti Kureshi Kasab Jamat, numerous benches had consistently rejected arguments based upon the freedom of trade and the freedom of religion, and had held, instead, that the preservation of cattle in an agrarian economy was a matter of overriding public interest. Consequently, the Petitioners were very much swimming against the tide, and the rejection of most of their submissions cannot come as any great surprise.
The Court’s consideration of the substantive arguments begins at paragraph 92, on page 88 of the judgment. The first issue before the Court was whether the addition of “bull or bullock” to “cow” under Section 5 was constitutionally valid. Inevitably, the Court’s analysis largely mirrors that if Mirzapur Moti Kasab Kureshi Jamat, where a near-identical provision in Gujarat was upheld. In Mirzapur Moti, the Court had relied extensively on the Directive Principles of State Policy (in particular, Article 48) to uphold the prohibition. It had held that the importance of cattle to an agrarian economy justified a complete ban in the public interest, even though it did infringe Article 19(1)(g) of the Constitution. Following this, the Bombay High Court takes on board evidence (in the form of affidavits filed by the State) in order to determine the importance of cattle to the economy of Maharashtra (Paragraphs 101 – 109). It then proceeds to examine the challenge based on Article 19(1)(g), and after citing precedent, concludes:
“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 slaughter of cows, bulls and bullocks is without any merit.”
Unfortunately, this finding perpetuates a continuing confusion about the relationship between Parts III and IV of the Constitution. Under Article 19(6), there are two separate elements of a valid restriction upon the freedom of trade: public interest, and reasonableness. Over the years, the Courts have invoked the Directive Principles to hold both that a restriction is in the public interest, and that it is reasonable. This is very obviously incorrect. The Directive Principles are framed as goals that the State should take steps to accomplish. It therefore makes sense that a law directed towards fulfilling a Directive Principle must be held to be in the public interest. The requirement of reasonableness, however, has nothing to do with the goal that is sought to be achieved. Rather, it has everything to do with the methods applied to achieve that goal. In this enquiry, the DPSPs – which, by definition, are framed as goals – cannot help (for an examination of some of the cases, see here).
The use of DPSPs to find reasonableness denudes the enquiry of its substantive content. Just recently, the Supreme Court held that reasonableness, under 19(6), involves a “proportionality” enquiry. That enquiry did not happen in Mirzapur Moti, and it does not happen here. It is not simply enough to show that cows, bulls and bullocks play an important role in the agrarian economy – that only speaks to the public interest prong of the 19(6) enquiry. It is equally important to show that a complete ban on cattle slaughter is a proportionate way of addressing the problem, and that there do not exist other ways that could be equally efficacious, but which do not involve the same extent of infringement of Article 19(1)(g). This would require the Court to go beyond the affidavits submitted by the State, and engage in a first-level enquiry (something which, I’ve argued before, it ought to do when it comes to fundamental rights). Unfortunately, however, we only have a continuation of the same manner of deference to the State that has been the hallmark of previous cattle slaughter cases. Once again, though, it is difficult to see what else the High Court could have done, in the teeth of fifty-five years of consistent Supreme Court precedent.
The Court then goes on to reject the Article 25 challenge (again, following previous judgments that have held that cow sacrifice is not an “essential” part of Islam), as well as the Article 29 challenge (paragraphs 134 and 135). This brings the Court then, to consider the constitutional validity of Sections 5A, B, C, and D. The Court upholds Sections 5A (transport/import), B (sale/purchase) and C (possession) on the ground that they all have a direct and proximate nexus with the legislation’s goal of preventing cattle slaughter.
There are, however, two serious problems with this analysis. Consider, first, Section 5A, which prohibits transport to another State for the purpose of slaughter. The Court observes that “the object of the amendment to Section 5 is to preserve cows, bulls or bullocks inside the State. It can be said that this provision has a direct and proximate nexus with the object sought to be achieved by making amendment to Section 5 for imposing prohibition on slaughter of cows, bulls and bullocks in the State.” This, however, makes no sense. If the purpose is to preserve cattle inside the State, then the ban should be on all transport outside the State – what happens to the cattle once it exits the borders of Mahrashtra makes no difference to the fact that the moment it does, the cattle population of Maharashtra accordingly decreases. The Court understands this, acknowledging that the provision makes “little practical sense” (paragraph 137). But it then gets around that by holding that the Section covers “cover a hypothetical case of such transport of animals outside the State so as to slaughter it within the State, of course, after it is brought back to the State possibly by the slaughterer himself, the transporter and slaughterer being different persons.”
But that is not what Section 5A, plainly worded, says. It penalises all transport outside the State for the purposes of slaughter, wherever that slaughter might take place. The Court’s construction of Section 5A, to save it from unconstitutionality, is strained to say the least.
Similarly, when examining Section 5C (possession), the Court holds that penalising possession is, likewise, required to effectively implement the ban on slaughter (paragraph 144). Matters are not so simple, however. What the Court fails to take into account is that enforcing the ban on possession will inevitably infringe the privacy of the possessor under Article 21 of the Constitution. This adds an extra layer to the balancing process. For instance, in Stanley vs Georgia, the American Supreme Court held that even though obscenity was not protected by the First Amendment, the criminalisation of mere possession of obscene materials could not be countenanced, on privacy grounds. While there are some important differences between the two cases, the basic argument is this: while the State may legitimately ban cattle slaughter under Article 19(6) of the Constitution, criminalising possession will require invasions of privacy that need to be separately justified under Article 21’s compelling State interest-narrow tailoring test (the Court does hold, however, that “possession” under 5(C) is limited to “conscious possession, and the burden of proving that is upon the State (paragraphs 149 – 150).
The Court’s failure to deal with privacy in its Section 5C enquiry is all the more disappointing, since it proceeds to do so extensively while discussing Section 5D (possession of the flesh of cattle slaughtered outside the State). Notwithstanding the pending Constitution Bench reference about whether or not privacy is a fundamental right, the Court exhaustively considers precedent on the point. It finds (correctly, in my opinion) that M.P. Sharma vs Satish Chandra was decided on different grounds, and Kharak Singh, while disclaiming an express right of privacy, nonetheless effectively derives a right of that nature from personal liberty under Article 21. Consequently, neither M.P. Sharma, nor Kharak Singh, can overturn the last forty years of established jurisprudence holding that privacy is a fundamental right under the Constitution (paragraphs 155 – 173). The Court then holds:
“As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health. As observed earlier, even a right to sleep is held as a part of right to privacy which is guaranteed under Article 21 of the Constitution of India. In fact the State cannot control what a citizen does in his house which is his own castle, provided he is not doing something which is contrary to law. 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. The State cannot prevent a citizen from possessing and consuming a particular type of food which is not injurious to health (or obnoxious). In the decision in the case of Hinsa Virodhak Sangh, the Apex Court has specifically held that what one eats is one’s personal affair and it is a part of privacy included in Article 21 of the Constitution of India. Thus, if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone. If a particular food is injurious to health or a particular food is illegally manufactured, it will be a case of compelling public interest which will enable the State to deprive citizens of the right to privacy by following the procedure established by law. In the present case, Section 5D prevents a citizen from possessing and from consuming flesh of a cow, bull or bullock even if it is flesh of a cow,bull or bullock slaughtered in territories where such slaughter is legal. Hence, Section 5D is certainly an infringement of right to privacy which is implicit in the personal liberty guaranteed by Article 21.” (paragraph 176)
In this paragraph, the Court endorses two different (and complementary) conceptions of privacy. The first is a spatial vision: “the State cannot make an intrusion into his home… the citizen has a right to lead a meaningful life within the four corners of his house…” In other words, invasion of an individual’s “private space” in order to discover whether or not he is eating beef violates privacy (readers will not that this argument applies exactly to Section 5C as well). The second is a vision of privacy as decisional autonomy – “what one eats is one’s personal affair, and it is part of privacy… [Section 5D] violates the right to be let alone.” At first glance, it might not seem that dietary choices hardly implicate those kinds of fundamental life decisions that are normally associated with individual autonomy. This is perhaps why it might be more helpful to think of this not in terms of how central dietary choice is to individual autonomy, but in terms of something that Jed Rubenfeld has called the “anti-totalitarian principle” (previously discussed here): State power ought not to be used for “forcing of lives into well-defined and highly confined institutional layers.” Control over diet is one instance of State shaping lives into a rigid pattern (often justified by ideological considerations).
The Court ends by concluding that even if there is no right to privacy under the Constitution, intrusion into private dietary choices clearly violates personal liberty under Article 21 (paragraph 193).
As I mentioned in the beginning of this post, the Bombay High Court did not have very much choice when it came to upholding the cattle slaughter ban, generally. There were, however, good reasons to strike down Sections 5A and 5C, and to that extent, the judgment is disappointing. It is also disappointing that the well-documented discriminatory effect of the ban on certain castes and classes, in terms of economics and affordability (leading to a possible Article 14 and 15 claim), was discussed cursorily at best The strong endorsement of a robust privacy right, however, is certainly encouraging.
(A guest post tomorrow will discuss the concurring opinion, which strikes down Section 9B’s reverse burden as unconstitutional)