Bombay High Court
Arif Usman Kapadia vs The State Of Maharashtra on 29 April, 2015
Author: V.M. Kanade
Bench: V. M. Kanade
WPL/777/15 with
connected writ petitions
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.777 OF 2015
Arif Usman Kapadia .....Petitioner.
Vs.
The State of Maharashtra
Through the Ministry of
Animal Husbandry. ....Respondents.
ALONGWITH
NOTICE OF MOTION (L) NO.268 OF 2015
ig IN
WRIT PETITION (L) NO.777 OF 2015
Bramhachari Amrit Shiji ..... Applicant.
In the matter between
Arif Usman Kapadia ...... Petitioner.
V/s
State of Maharashtra ..... Respondents.
ALONGWITH
WRIT PETITION (L) NO.1109 OF 2015
Swatija Paranjpe & Ors ....Petitionrs.
V/s
State of Maharashtra
Through the Department of
Animal Husbandry & Others ..... Respondents.
..1
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WPL/777/15 with
connected writ petitions
ALONGWITH
WRIT PETITION (L) NO.982 OF 2015
ALONGWITH
NOTICE OF MOTION (L) NO.251 OF 2015
IN
WRIT PETITION (L) NO.982 OF 2015
Haresh M. Jagtiani ....Petitioners.
V/s
The State of Maharashtra
through the Departmentig
of Law and Judiciary ......Respondents.
----
Mr. Firoz Bharucha i/b Pratap Nimbalkar for the Petitioner in
WPL/777/2015.
Mr. Aspi Chinoy, Senior Counsel alongwith Mr. Navroz
Seervai, Senior Counsel and Ms Gulnar Mistry alongwith Mr.
Khalid Khimnani, Ms. Rishika Rajyadhyaksha, Mr. Ryan
Mendes i/b Mr. Nikhil Sansare for the Petitioner in
WPL/982/2015.
Mr. Mihir Desai alongwith Mr. Sunil Dighe i/b Mr. Vijay
Hiremath and Ms. Rebeca Gonsalves for the Petitioner in
WPL/1109/2015.
Mr. Sunil Manohar, Advocate General alongwith Mr. Ashutosh
Thipsay and Ms. Anjali Helekar, AGP for Respondent No.1 in
WPL/777/2015, WPL/1109/2015.
Mr. Sunil Manohar, Advocate General alongwith Mr. Ashutosh
Thipsay and Mr. H.S. Venegaonkar in WPL/982/2015..
Mr. D.V. Saroj for Interner/Applicant in WPL/777/2015
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WPL/777/15 with
connected writ petitions
Mr. Ahmad Abdi and Mr. Ashok Asthana for the Applicant in
CHSWL/98/2015 in WPL/777/2015.
Mr. Rakesh Kumar alongwith Mr. Laxminarayan Shukla, Mr.
Bharat Jain, Mr Manoj Singh, Mr. Raju Gupta and Ms. Shobha
Mehra i/b M/s Legal Vision for Applicant/Intervener in
CHSW(L)/138/2015 in WPL/777/2015.
Mr. Dhrutiman S. Joshi alongwith Sampanna Walawalkar in
CHSW(L)/132/2015 in WPL/777/2015 for Applicant.
Mr. Harish Pandya alongwith Mr. Raju Gupta i/b Mr. Raju
Gupta for Applicant in CHSW(L)/139/2015 in WPL/982/2015.
Mr. Prafulla Shah for Applicant in CHSWST/105/2015 in
WPL/777/2015.
Mr. Subhash Jha alongwith Mr. Ghanshyam Upadhyaya,
Rushita Jain, Mr. Ashish Shukla, Mr. Shreenath, Mr. Sunny
Punamiya i/b Law Global for the Applicant in NMWL/251/2015
in WPL/982/2015.
Mr. A.K. Jain for Manav Kalyan Jeev Daya Charitable Trust for
Applicant in NMWL/268/2015 in WPL/777/2015.
----
CORAM: V. M. KANADE &
M.S. SONAK JJ.
Order Reserved on : 23/04/2015
Order pronounced on 29/04/2015
ORAL ORDER: (Per V.M. Kanade, J.)
1. Since the issue involved in all these Writ Petitions is identical, they can be conveniently heard together.
..3 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions FACTS
2. By these Petitions which are filed under Article 226 of the Constitution of India, Petitioners are seeking a declaration that Sections 5D and 9A of the Maharashtra Animal Preservation Act, 1976 as amended by recent Animal Preservation [Amendment] Act, 1995 which was granted assent by the President of India on 26/02/2015 and published in the Government Gazette on 04/03/2015 is unconstitutional and for further direction, directing the Respondents not to take any steps or action on the basis of the impugned provisions of Sections 5D and 9A of the said Act and for interim relief granting stay to the operation of the said provisions pending the hearing and final disposal of these Petitions.
3. Petitioner in Writ Petition (L) No.982 of 2015 is a Senior Advocate practicing in this Court and he being aggrieved by the Amendment Act, 1995 which was brought into force with effect from 04/03/2015 has filed this Petition challenging the said Sections 5D and 9A of the said Act, 1976.
4. The State of Maharashtra enacted the Maharashtra Animal Preservation Act, 1976 which, inter alia, prohibited slaughter of cows and restricted slaughter of other animals such as bulls and bullocks.
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5. The State of Maharashtra, thereafter, enacted Animal Preservation (Amendment) Act, 1995. However, it remained on the statute book and the assent was not obtained from the President until 26/02/2015, after which it was published in the Government Gazette on 04/03/2015. Various provisions of the original Act were amended and a total prohibition was sought to be imposed not only on the slaughter of cows but also on bulls and bullocks and a further prohibition has been ig imposed on slaughtering of these animals in the State of Maharashtra and for sale and consumption of flesh of these animals in the State of Maharashtra. It further has imposed a complete ban under Section 5D on the import of flesh of these animals which are slaughtered outside the State of Maharashtra and sought to be imported in Maharashtra. Further, the said Act also seeks to make the said offence of slaughtering of cows, bulls and bullocks in Maharashtra a punishable offence. It also makes sale of the flesh of these slaughtered animals punishable, including import of such flesh from other States or from other countries in the State of Maharashtra and a person who contravenes Section 5D, if convicted, can be punished with imprisonment for a term which may extend to one year or fine which may extend to Rs 2000/-. The offence is made non-bailable and cognizable.
..5 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions SUBMISSIONS ON BEHALF OF THE PETITIONRS:
6. Mr. Aspi Chinoy, the learned Senior Counsel appearing on behalf of the Petitioner in Writ Petition (L) No.982 of 2015 has submitted that the original Act viz. the Maharashtra Animal Preservation Act, 1976 was passed in furtherance of Article 48 of the Constitution of India. He submitted that the Amendment Act, 1995 also is in furtherance of the said Article. He made the following submissions:-
7. Firstly, he submitted that the impugned provisions are unconstitutional, ultra vires and void since they infringe fundamental rights of the Petitioner under Articles 21, 14, 29 and also Article 301 of the Constitution of India. He submitted that the ban which is imposed on the import of the flesh of the slaughtered animal is wholly extraneous with the aims and objects of the said Act and also Article 48 of the Constitution of India which speaks for preservation of animals and does not talk about animals which are already slaughtered for consumption and are imported in the State of Maharashtra.
Secondly, Mr. Chinoy, the learned Senior Counsel submitted that the said impugned provisions are unreasonable and nowhere it is stated as to how it is in the public interest or for public purpose.
..6 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions Thirdly, he submitted that it is extraneous and has no nexus with the protection of cows and bulls and bullocks and it operates to criminalize possession of flesh of animals which are lawfully slaughtered outside the State of Maharashtra. He submitted that, indirectly, by virtue of the said impugned provisions of Section 5D, the State is seeking to impose a ban on the right of a citizen to eat food of his choice which is a part of his right to privacy and right to life as envisaged under Article 21. He then submitted that the impugned provisions of Sections 5D and 9A are ultra vires since the provisions are procedurally and substantively unreasonable. He submitted that the said impugned provisions do not sub-
serve any discernible public interest.
8. Mr. Chinoy, the learned Senior Counsel for the Petitioner invited our attention to the objects and reasons of the Amendment Act and invited our attention to the judgment of the Apex Court in District Registrar and Collector, Hyderabad vs. Canara Bank and Others 1 in which it was held that right to privacy was a part of the right to life under Article 21. He also invited our attention to the judgment of the Apex Court in Hinsa Virdohak Sangh vs. Mirzapur Moti Kuresh Jamat and Others 2 and more particularly the observations made in para 27. He also relied upon the judgment of the Apex Court in Akhil Bharat Goseva 1 (2005) 1 SCC 496 2 (2008) 5 SCC 33 ..7 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions Sangh (3) vs. State of A.P and Others 1 and more particularly the observations made in paras 65, 67, 100 and 101. Lastly, he relied on the judgment of the Apex Court in Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India and Others2 and more particularly the observations made in paras 27, 28 and 29 of the said judgment.
9. He submitted that, normally, though there is a presumption as to the constitutionality of any section, the Apex Court has held in Bhavesh D. Parish and ig others vs. Union of India and another3 [para 30] that if the provision is manifestly unjust or glaringly unconstitutional then the Court is entitled to grant stay to the said provision. He also invited our attention to the order of the Apex Court in Dishnet Wireless Ltd vs. The Commercial Tax Officer & Anr. 4 He then invited our attention to Article 48 and List-I, Entry-52 of List-
I, Entries 26 and 27 of the State List-II and Entry-33 of List-III. He submitted that Live Stock Importation Act, 1898 which was amended in 2001 also permitted importation of live stock products. He submitted that, therefore, the said Act which was a Central Act had already covered the field and it was not open for the State to bring out the said Act which is contrary to the existing Act. He then submitted that the Food Safety and Standards Act, 2006 (For short "FSSA") also 1 (2006) 4 SCC 162 2 (2014) 9 SCC 737 3 AIR 2000 SC 2047 4 Order of the Supreme Court dated 31/1/2014 passed in Special Leave to Appeal (Civil) No(s). 37727/2013 ..8 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions clearly provides importation of food which included beef and Regulations under Section 62 of the FSSA have already come into force prescribing the standard which was to be maintained by the importer who imported the beef. He, therefore, submitted that the beef was a food which was not prohibited and/or was not inherently harmful like drugs or alcohol. He then submitted that Article 301 read with Article 304 only permitted reasonable restriction. He submitted that the Central Act permitted the inter-State trade of products under Article 301.
10. Mr. Chinoy the learned Senior Counsel for the Petitioner has relied upon the three Judgments of the Apex court in support of the said submission that whenever there were violation of fundamental rights, question of pith and substance did not arise. He relied on the judgment of the Apex Court in Shri Bileshwar Khand Udyog Khedut Sahakari Mandal Ltd vs. State of Gujarat and Another 1 [para 5 on page 45]. He then relied on the judgment in of the Apex Court in Smt. Meneka Gandhi vs. Union of India and another 2 [paras 43 and 68 on page 633]. Lastly, he relied on the judgment of the Apex Court in Delhi Transport Corporation vs. D.T.C. Mazdoor congress and Others3 [para 298 on page 750].
11. Mr. Mihir Desai the learned Counsel appearing on behalf 1 (1992) 2 SCC 42 2 AIR 1978 SC 597 3 1991 Supp (1) SCC 600 ..9 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions of the Petitioner in Writ Petition (L) No.1109 of 2015 adopted the submissions made by Mr. Aspi Chinoy, the learned Senior Counsel for other Petitioner on the point of legislative competence and on the restraint of trade and also on other grounds of violation of fundamental right under Articles 19 and 21. He submitted that he would like to point out the history of the present legislation. Secondly, he submitted that he would like to make more submissions in respect of right of privacy to an individual. Thirdly, he submitted that he would like to point out the tests which are laid down by the Apex Court to judge whether the right is violated or not. He submitted that, initially, the Act was brought into force in 1948 and there were no restrictions in respect of slaughter of cows. However, in 1954, the Act was amended. He submitted that, thereafter, 1976 Act came into force. He submitted that in the said Act also possession of beef was not prohibited. He however submitted that, for the first time total ban was imposed on slaughter of cows and under sections 5 and 6, the bulls and bullocks which were certified by veterinary doctor could alone be slaughtered in the government or municipal abettor. He submitted that the present amendment came into force on 04/03/2015. He submitted that no research had been done by the State before bringing in the said legislation.
12. Mr. Mihir Desai, the learned Counsel for the said Petitioner in other Petition then submitted that the Apex ..10 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions Court in National Legal Services Authority vs. Union of India and Others1 has laid down the tests which were found in paras 70, 75 and 91 of the said judgment. On the same point, he relied on the judgment of the Apex Court in Gobind vs. State of Madhya Pradesh and another 2 [para 21 on page 155]. He then relied on the judgment of the Apex Court in Suchita Srivastava and another vs. Chandigarh Administration3 [para 22 on page 15] and the judgment of the Apex Court in Health for Millions vs. Union of India and Others4 [para 13 on page 499]. He submitted that in order to impose a ban, State has to satisfy the Court about compelling State interest for which it was necessary to impose the ban.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS /STATE:
13. Mr. Sunil Manohar, the learned Advocate General appearing on behalf of the State submitted that four questions had emerged on the submissions made by the learned Senior Counsel appearing on behalf of the Petitioner viz:
(i) Is the law violative of Article 301 or protected by Article 304(b) of the Constitution?
1 (2014) 5 SCC 438 2 (1975) 2 SCC 148 3 (2009) 9 SCC 1 4 (2014) 14 SCC 496 ..11 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions
(ii) Is it a fundamental right to trade in cow meat?
(iii) Does the law violate Central Act viz Food Safety and Standards Act, 2006 or Live Stock Importation Act, 1898?
(iv) Whether both the Acts were such that they could not stand together?
He invited our attention to Entries 14, 15, 26 and 27 of the State List and Entries 17 and 33 of List-II. He also invited our attention to Articles 37, 47, 48 and 51-A of the Constitution of India. He then submitted that the aim and object of the legislation was to ban cow slaughter as also slaughtering of its cojones and for that purpose Sections 5A to 5D were incorporated so that the State could implement the said Act and for that purpose the said provisions ban the trade of beef both, import and export and possession of beef. He relied on the judgment of the Apex Court in State of Gujarat and Others vs. Akhil Gujarat Pravasi vs. Mahamandal and Others1 [para 21 on page 173]. He then submitted that complete ban on import of ivory also has been upheld by the Apex Court in Indian Handicrafts Emporium and Others vs. Union of India and Others 2. He relied on paras 70, 71 on 1 (2004) 5 SCC 155 2 (2003) 7 SCC 589 ..12 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions page 612 and paras 52, 53, 56 and 62 of the said judgment in support of his submission. He then submitted that the complete ban has been upheld on different commodities.
He relied on judgment of the Apex Court in Razakbhai Issakbhai Mansuri and Others vs. State of Gujarat and Others1 [paras 11 on page 668-669 and para 14 on page 670- 671]. He also relied on the judgment of the Apex Court in Om Prakash and Others vs. State of U.P and Others 2 [para 22 on page 412 and paras 32, 33 on page 413-414 and para 39 on page 415]. He submitted that policy of the State to further the goal under Article 48 could not be faulted and Sections 5A to 5D are ancillary provisions to advance the goal under Article 48. He then relied on the judgment of the Apex Court in State of Tamil Nadu and Others vs. M/s Sanjeetha Trading Co. and Others 3 [para 6 on page 240-241 and para 17 on page 246] where the ban on the timber was upheld. He submitted that in the said judgment it was held that the State could impose ban for the purpose of implementation of the object of the Act. He submitted that the main goal of the Act being prevention of slaughter, ancillary provisions making ban on import and export had a nexus with the object which was sought to be achieved viz prevention of slaughter and there were no extraneous reasons for which the said provisions were added. He also relied on paras 47, 65 and 67 of the judgment of the Apex 1 1993 Supp (2) SCC 659 2 (2004) 3 SCC 402 3 (1993) 1 SCC 236 ..13 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others1. He submitted that the said ban does not violate Articles 19 or 21.
14. The learned Advocate General then invited our attention to the various judgments of the Apex Court which had laid down the scope and ambit of the fundamental right under Article 21. He invited our attention to the judgment of the Apex Court in Animal Welfare Board of India vs. A. Nagaraja and Others2 [paras 73 and 74]. He submitted that in order to gage validity of the Act on the touch stone of Article 21, the scope of Article 21 had to be taken into consideration. He then submitted that the context of life which is to be taken away had to be considered. He submitted that in this context what had to be seen was the core aspect of the legislation and peripheral aspects. He submitted that though the core aspect could not be breached, any fringe right could be taken away. He invited our attention to the procedure in respect of putting the person behind bars for committing an offence under the Act. Then he pointed out that this could be done under the right of the State to detain a person by way of preventive detention even though the person has not committed any illegal but he is likely to commit one. He then submitted that under Section 167 of Cr.P.C. the Police had a right to deprive liberty of an individual for 24 hours only on the ground of suspicion. He submitted that, therefore, right 1 (2005) 8 SCC 534 2 (2014) 7 SCC 547 ..14 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions of liberty was not absolute in that sense. He submitted that though right to food cannot be taken away and it is a core right, prisoner who is sent to prison after he is convicted, cannot insist on eating a particular type of food. He submitted that right to take a particular food is a fringe right and can be taken away by the legislation. He submitted that, therefore, right to eat is not a fundamental right and right to prohibit trade did not violate Articles 19 and 21 of the Constitution. He then invited our attention to the two Central Acts on which reliance was placed ig by the learned Counsel for the Petitioner. He submitted that, firstly, so far as the FSSA is concerned, it lays down standards of food unless prohibited to band or not to ban is totally a different matter. He submitted that subject matter of FSSA operates in different field and the Act lays down the standard of food which conforms to the standards. He submitted that the main object of the Live Stock Importation Act was to prevent importation of the Live Stock which may be liable to be infected by infectious or contagious disease. He submitted that the Act occupied a very limited and different field.
15. The learned Advocate General then submitted that prevention of cow slaughter was principal and core act of legislation and import and export of slaughtered beef is an incidental matter. It could be saved by pith and substance doctrine. In support of the aforesaid submission, he relied on four judgments of the Apex Court viz (1) judgment in ..15 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions Darshan Singh Balwant Singh and another vs. The State of Punjab1 [paras, 4, 8 and 9], (2) judgment in The State of Bombay and another vs. F.N. Balsara 2 [para 9 on page 323], (3) judgment in Commonwealth of Australia and Others vs. Bank of New South Wales and Others 3 [at page 773] and (4) judgment in State of Uttar Pradesh and Others vs. Hirendra Pal Singh and Others4 [para 13 on page 312].
SUBMISSIONS ON BEHALF OF THE INTERVENERS:
16. Mr. Prafulla Shah the learned Counsel for one of the Interveners invited our attention to the judgment in Hinsa Virodhak [paras 33 and 72]. He submitted that the the restriction imposed was a reasonable restriction which the State was entitled to impose.
17. Mr. Subhash Jha the learned Counsel appearing for one another Intervener submitted that challenge to the Act was without any basis. He relied on the judgment of the Apex Court in Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others5. He submitted that Section 5D was incorporated to prevent mischief. He invited our attention to the judgment of the Apex Court in Girnar Traders (3) vs. State of Maharashtra and Others6 [para 179] and one another judgment of the 1 AIR 1953 Sup. Court 83 2 AIR 1951 SC 318 3 [1949] 2 ALL E.R. 755 4 (2011) 5 SCC 305 5 (2005) 8 SCC 534 6 (2011) 3 SCC 1 ..16 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions Apex Court in Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra and Others 1 [para 48]. He then invited our attention to the judgment of the Apex court in Pathumma and Others vs. State of Kerala and Others 2 [para 38 and 39 on page 23] and on para 57 of the judgment of the Apex Court in Animal Welfare Board of India vs. A. Nagaraja and Others3
18. Mr. Harish Pandya the learned Counsel appearing on behalf of some other intervener submitted that validity of similar provision has not been decided by this Court or the Apex Court. He invited our attention to various enactments made by other States in India. He also invited our attention to Clause (2) of the objects and reasons and submitted that the words used viz "Indian Agriculture" which have to be taken into consideration. Secondly, he submitted that Clause (3) indicated that this is for the purpose of securing directive principles and in larger public interest. He then submitted that Article 31(C) of the Constitution is relevant in this context. He further submitted that Article 48 is also a strong shield. He also invited our attention to Articles 48, 51 and 51A and other provisions of the Constitution. He invited our attention to the judgment in Hinsa Virdohak Sangh vs. Mirzapur Moti Kuresh Jamat and Others4 (paras 14, 36, 67 and para 99). He then invited our 1 (2010) 5 SCC 246 2 (1978) 2 SCC 1 3 (2014) 7 SCC 547 4 (2008) 5 SCC 33 ..17 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions attention to the judgment of the Apex Court in Akhil Bharat Goseva Sangh (3) vs. State of A.P and Others 1. It was urged that no interference was called for and the Petitions are liable to be dismissed.
REJOINDER BY THE PETITIONERS:
19. Mr. Aspi Chinoy, the learned Senior Counsel appearing on behalf of the Petitioner in WPL No.982 of 2015 submitted that the doctrine of pith and substance does not apply in cases where there is an allegation of breach of fundamental rights. He submitted that the object and purpose of the Act is not relevant for the purpose of deciding this issue. He then submitted that Section 5D is a stand alone section and unconnected with the Act, Objects and Purpose. He submitted that under the guise of implementation of the Act, the State cannot impose an unconnected provision.
Secondly, he submitted that the object and purpose of the Act was dehors the Articles 48, 51A and violative of the provisions of Article 301. He submitted that the Act travelled far beyond the legislative sphere. He then submitted that the said Act was not traceable to Article 47 and was dehors to public policy. He invited our attention to the Judgment of the Apex Court in Ramlila Maidan Incident, In Re, Suo Motu WP (Crl.) No.122 of 2011 decided on February 23, 2012 2. He also relied on the judgment of the Apex court in (2004) 6 1 (2006) 4 SCC 162 2 (2012) 5 SCC 1 ..18 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions SCC. Lastly, it was contended that Section 5D is not part of the objects and reasons and no observations are made regarding import of beef though reference is made to Sections 5A and 5B in the objects and reasons. He then submitted that the reason which was given by the State that for the purpose of implementation of the Act, it was necessary to incorporate Section 5D also does not stand a test of reasoning. He submitted that bulls and bullocks can be slaughtered only in abettors or Government and Corporation licensed slaughter house.
ig He submitted that, therefore, the Stage can very well ensure implementation of the said Act since these slaughter houses and Government and Corporation recognized slaughter houses were not many but are very few in number throughout the State. He then submitted that under the old Act, cow slaughtering was banned but bull and bullocks slaughtering was permitted subject to certain conditions which were imposed by Section 6 of the said Act. He submitted that the State, at no time, had complained of non-implementation of the provisions of cow slaughtering. He submitted that almost for 20 years bulls and bullocks have been slaughtered and no complaint has been made that during this time cows have been slaughtered under the guise of slaughtering of bulls and bullocks. He submitted that, therefore, bogie raised of possibility of difficulty in implementation of the Act was a guise for putting a ban on the fundamental right of the citizen to eat beef which is a part of the right of privacy and ..19 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions right to eat food of his choice which is guaranteed under Article 21 of the Constitution of India. He submitted that the ban on import was ex facie excessive since it does not contemplate regulation of imports. He submitted that all this indicated that genuine nexus of Section 5D is to the ban on eating of beef. He then distinguished the judgments on which reliance was placed by the learned Advocate General. He then invited our attention to the judgment of the Apex Court in Indian Handicrafts Emporium and Others vs. Union of India and Others1 and more particularly paras 44, 46 and 42 of the said judgment. He thereafter invited our attention to the judgment of the Apex Court in Razakbhai Issakbhai Mansuri and Others vs. State of Gujarat and Others 2 and more particularly para 9 and then on judgment in State of Tamil Nadu and Others vs. M/s Sanjeetha Trading Co. and Others3. He submitted that in the said case the issue was in respect of the ban on timber which was an essential commodity within the meaning of the Essential Commodities Act. He submitted that the State has, after due deliberations, imposed the said ban. He lastly submitted that under the provisions of the Prevention of Cruelty to Animals Act, Section 11(D) expressly excludes slaughtering of animals which are mean for human consumption.
20. We have heard all the learned Counsels appearing on 1 (2003) 7 SCC 589 2 1993 Supp (2) SCC 659 3 (1993) 1 SCC 236 ..20 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions behalf of the Petitioners and the learned Advocate General appearing on behalf of the State and all the Counsels who appeared on behalf of the Interveners at legnth on the question of grant of interim relief as prayed by the Petitiones.
21. Petitioners in this case have challenged validity of Section 5D and 9A of the said Act on various grounds. The issues which fall for consideration before this court are
(i) Whether, by virtue of the said provisions which have been incorporated under the said Act, fundamental right of the Petitioners under Article 21 of the Constitution of India, has been violated?
(ii) Are the said provisions violative of Article 301 or protected by Article 304-B of the Constitution?
(iii) Whether doctrine of pith and substance would be attracted in a case where it is urged that there is violation of fundamental right of the citizen?
(iv) Do the impugned provisions of Sections 5D and 9A violate the Central Act viz Food Safety and Standards Act, 2006 ..21 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions or the Live-Stock Importation Act, 1898 or whether both these Act viz the impugned provisions of the State Act and Central Act are such that they cannot stand together.
22. The learned Counsels appearing on behalf of both the sides have taken us through various entires in the State List and Concurrent List and they have also invited our attention to Article 47, 48 and 51A of the Constitution of India.
Detailed persuasive arguments have been made by the learned Counsel for the Petitioners as also the learned Counsel for the Interveners and equally persuasive arguments have been made by the learned Advocate General appearing on behalf of the State.
23. The learned Advocate General, while trying to support the legislative action, has relied on three judgments of the Apex court and has contended that for the purpose of proper implementation of the other provisions of the Act, it was necessary to incorporate Section 5D and 9A of the said Act. He submitted that this has been approved by the Apex Court in three judgments. He submitted that where complete ban on import of ivory was imposed, the Apex Court in Indian Handicrafts Emporium and Others vs. Union of India and Others1 has held that for the purpose of implementation of any Act, it was necessary to impose a complete ban.
1 (2003) 7 SCC 589 ..22 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions Secondly, he relied upon the judgment in Razakbhai Issakbhai Mansuri and Others vs. State of Gujarat and Others1. He submitted that in this case also, the Apex Court has held that the ban which was imposed was justified for the reason that it was necessary for the proper implementation of the Act. He then relied on one another judgment of the Apex Court in Om Prakash and Others vs. State of U.P and Others2.
24. On the other hand, Mr. Chinoy, the learned Counsel appearing on behalf of the Petitioner has tried to distinguish the said judgments and has submitted that the said judgments could be distinguished. He submitted that in case of Indian Handicrafts Emporium and Others vs. Union of India and Others3, there was a complete ban on import of ivory all over India and that in order to properly implement the said Act, the Apex Court was of the view that it was necessary to impose a ban on import of ivory. He submitted that under these circumstances, the Supreme Court has said that a ban was necessary for the proper implementation of the said Act. Similarly, he submitted that in Razakbhai Issakbhai Mansuri and Others vs. State of Gujarat and Others 4 also the said ban which was imposed was necessary for the proper implementation of the Act. He submitted that, however, in the said case, the State had considered whether it was 1 1993 Supp (2) SCC 659 2 (2004) 3 SCC 402 3 (2003) 7 SCC 589 4 1993 Supp (2) SCC 659 ..23 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions possible to regulate the said provision and only thereafter the ban was imposed, though possession of the said commodity was permitted after obtaining the license. He then submitted that in Om Prakash and Others vs. State of U.P and Others1, Apex Court has considered the peculiar facts and circumstances which were prevailing in the three town where large number of pilgrims visited the said place. He therefore submitted that all these three judgments could be distinguished.
25. The learned Senior Counsel Mr. Chinoy appearing on behalf of the Petitioner then urged that no distinction could be made between the core rights and peripheral rights and as such distinction was not made by the Supreme court in any of the judgments delivered by it on the scope and ambit of Article 21 of the Constitution of India.
26. Similarly, on the question of doctrine of pith and substance equally persuasive arguments have been made by Mr. Chinoy by pointing out various judgments which indicate that doctrine of pith and substance has been held to be not applicable in cases where there is violation of fundamental rights.
27. We are at the stage of grant of interim relief. State has not yet filed a detailed affidavit in reply. The law on the 1 (2004) 3 SCC 402 ..24 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions question of grant of interim relief is quite well settled. The Apex Court in Bhavesh D. Parish and others vs. Union of India and another1 [para 30 and 31] has very succinctly laid down the circumstances under which the Court can grant interim relief. The Apex Court in paras 30 and 31 of the said judgment has observed as under:-
"30. Before we conclude there is another matter to which we must advert to. It has been brought to our notice that S. 45-S of the Act has been challenged in various High Courts and few of them have granted the stay of provisions of S. 45-S. When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the Courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the Courts to consider the controversy, the legislative 1 AIR 2000 SC 2047 ..25 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions will should not normally be put under suspension pending such consideration.
It is now well settled that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood.
ig The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itself."
"31. While the Courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration ..26 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions at the final hearing, it is found to be unconstitutional. It is, therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutes."
28. It must be borne in mind that though the said observations have been made in a case where fiscal reforms were challenged , the said observations would apply practically in almost all cases where there is a legislation made by the legislative body and therefore the twin para meters which have to be kept in mind are as under:-
(i) The provision has to be shown to be manifestly unjust or glaringly unconstitutional.
(ii) The Courts are not expected to
abrogate its duty of granting
interim injunction. However,
overwhelming public interest in
favour of the continuing operation
of a fiscal statute or a piece of
economic reform legislation has to
be kept in mind.
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29. In the present case, arguable submissions have been made by the learned Counsels appearing on behalf of the Petitioners and equally persuasive submissions have been made by the learned Advocate General for the State of Maharashtra. We are therefore of the view that, at this stage, it will not be possible to grant stay to the operation of Section 5D and that question will have to be decided at the final hearing of the Petition after State and the other parties filed their detailed affidavit in reply.
30. Though we are not inclined to grant stay to the operation of Section 5D, we cannot forget that initially the Act was passed in 1948. It was then amended in 1954 and thereafter in 1976. Under the said Act, slaughtering of bulls and bullocks, after compliance of certain conditions, was permitted. The said provision remained in force since then till the present Act was amended and a complete ban has been imposed on slaughtering of bulls and bullocks by various provisions under the Act. Even after the present Act was passed in 1995, the State did not obtain the assent of the President for almost 20 years and it is only after the lapse of 20 years, the assent of the President was granted on 26/02/2015 and the said Act has been published in Official Gazette on 04/03/2015. What was legal therefore prior to 04/03/2015 for almost more than 30 years, has been declared to be illegal inviting penal consequences even for possession or import of beef. Before other Acts which have ..28 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions been passed from time to time imposing complete ban, State Act or the Central Act has given reasonable period of time to the citizens to ensure that if banned article is in their possession they should get reasonable period to either dispose of the said article or declare it to the competent authority. Even in the case of Razakbhai Issakbhai Mansuri and Others vs. State of Gujarat and Others 1, the State considered regulating the said provision and provided for issuance of license and upon license being issued, possession of the banned article was permitted.
ig In Indian Handicrafts Emporium and Others vs. Union of India and Others 2, the Apex Court granted six months' time to all those who had ivory in their possession to declare the same before the authorities and upon a declaration they were permitted to retain the said ivory.
31. In the present case also, no material has been placed before us to show firstly whether the State Government has any compelling reasons to impose a ban overnight without giving a reasonable opportunity to the persons who are either carrying on business of slaughtering of bulls and bullocks as per the old Section 6 of the Act or to those who had imported the beef in tin or can form as is permitted provided they comply with the provisions of the Old Act or other relevant Act which were repealed and incorporated in the FSSA which permitted import of beef if it complies with 1 1993 Supp (2) SCC 659 2 (2003) 7 SCC 589 ..29 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions the standards which are laid down under the Regulations. As a result of the sudden imposition of ban on import of the goods viz "beef" which was lawfully in possession of individuals or which was lawfully imported suddenly has become illegal and punishable under Section 9A of the said Act and no opportunity whatsoever has been given to all these persons. We are, therefore, of the view that the State, not having granted reasonable time for disclosing the beef products which are in possession of citizens and residents of Maharashtra, is patently unwarranted.
32. We, therefore, direct that the Stage Government shall not take any coercive steps for the purpose of initiating any prosecution of those who are found to be in possession of the beef from the date of publication of the Act in the Gazette i.e. 04/03/2015 and for a period of three months from today till the disposal of these petitions whichever is later. It is, however, clarified that we are not granting any stay to the impugned provisions of Section 5D and, therefore, import of beef after the Act has come into operation is prohibited. However, possession of the beef from the date of publication of the Act in the Gazette i.e. 04/03/2015 and for a period of three months from today till the disposal of these petitions is not prosecutable by the State. Though FIR may be registered, no coercive steps be taken. The State Authorities and Police Authorities, therefore, shall not invade privacy of citizens for the purpose of finding out as to what is in their ..30 ::: Downloaded on - 01/05/2015 00:00:13 ::: WPL/777/15 with connected writ petitions possession whether beef or other form of meat. At the highest, if it is found that illegal slaughtering of bulls and bullocks is being made then FIR may be registered against such individuals.
33. We direct the State Government to file their affidavit in reply within four weeks from today. Rejoinder, if any, to be filed within four weeks thereafter. All applications for interventions are allowed. Though the name of the applicants are not added as party respondents to the Petitions, they are also at liberty to file their detailed affidavit in reply.
34. These Petitions can be finally disposed of at the stage of admission. Respondents waive service. Place these Petitions for final hearing on 25th June, 2015.
(M.S. SONAK, J.) (V.M. KANADE, J.)
bdpps
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