Maharashtra moves SC to tighten beef ban, allow home searches
11 August 2017
In a surprise move seeking to strengthen the law against cow slaughter in the state, the Maharashtra government has moved the Supreme Court seeking revival of a provision of law that made it an offence to carry or keep beef at home.
The court will hear today the appeal filed by the Maharashtra government against a Bombay High Court's decision to strike down the ban on possession of beef by citizens in the state.
In January, the Bombay High Court had upheld the beef ban imposed by the state government after the enactment of the Maharashtra Animal Preservation (Amendment) Act, which bans the slaughter of bulls, bullocks. However, the court said that the possession of such meat cannot be considered a crime, while striking down the relevant sections of the act (See: HC allows eating beef in Maharashtra, but slaughter ban stays).
Slaughtering of cows and sale of cow meat in Maharashtra was made illegal in 1976, but the new law extended the ban to calves, bulls and bullocks.
On 25 May the Centre, through an order, imposed a ban on the sale of cattle, including cows, for slaughter and restricted cattle trade solely to farm owners.
More than a year ago, the high court had doused protests against the beef ban by striking down Section 5D of the Maharashtra Animal Preservation (Amendment) Act, 1995.
The provision allowed any police officer to stop and search a person suspected of possessing the meat of cow, bull or bullock slaughtered outside Maharashtra. It also empowered police to enter homes to carry out searches.
In its appeal filed before the SC, the Devendra Fadnavis government said the HC erroneously held privacy to be a fundamental right and struck down Section 5D permitting the police to enter homes or stop and search a person on suspicion of possessing beef.
The state said the 6 May 2016 judgment could not have held privacy to be a fundamental right as at that time, the field was occupied by two SC judgments - one by an eight-judge bench in M P Sharma case in 1954 and another by a six-judge bench in Kharak Singh case in 1962 - declaring right to privacy was not a fundamental right. It is only now that a nine-judge bench is examining the status of privacy as a constitutional right, it said.
"Obviously, the HC failed to appreciate the law in its correct perspective, besides failing to observe judicial discipline, which is the foundation stone of the entire justice delivery system," the state said in its delayed appeal filed through additional advocate general Nishant Katneswarkar.
The HC had also struck down Section 9B which put the onus on the person in whose possession beef was found to prove his innocence. It had termed this a breach of Article 21.
Maharashtra said, "The HC failed to consider that in a similar manner, to the Act in question, presumptions have been raised against accused and reverse burden has been placed on accused in different laws - Essential Commodities Act, Narcotic Drugs and Psychotropic Substances Act, Wildlife Protection Act, Foreign Exchange Management Act, Food Adulteration Act and Customs Act."