Indira Jaising Seeks 9-Judge Bench To Re-consider 7 Judge Bench Verdict On Beef Ban

Senior advocate Indira Jaising has urged the Supreme Court to tag all petitions relating to beef ban in Maharashtra and refer it to a nine judge for hearing.

Representing 30 Maharashtra-based social activists, she is challenging the May 6, 2016 order of the Bombay High Court which upheld the ban on cow slaughter in the state under the amended Maharashtra Animals Preservation (Amendment) Act, 2015

During the hearing a lawyer in another petition said the offence of  possessing beef involved the right to privacy and referred to the judgment of a nine-judge bench yesterday. The bench agreed that aspect   may also have to be looked into when the matter is taken up for hearing.

Justifying a nine-judge bench, Jaising said earlier an SC seven judge bench led by the CJI R C Lahoti had imposed complete ban on slaughtering of even unproductive bovine. The case was State of Gujarat Vs Mirzapur Moti Kureshi Kassab.

Jaising has also pointed out that those who consume beef as a part of their regular diet are predominantly from the lower socio-economic strata of society, are predominantly members of SC/ST and Muslim community, and therefore the effect of restriction.
on access to cheap and nutritious food that is a part of their regular diet is extraordinarily intense and cannot be legally sustained.

Jaising also sought tagging together of all petitions relating to beef ban. A bench of justices A K Sikri and Ashok Bhushan however did not take any decision on the plea for a nine judge bench or tagging and merely adjourned the matter for another date

THE OTHER CASE

It is to be noted that on August 11 Supreme Court issued notice on a petition filed by Maharashtra government seeking revival of a provision of law that made it an offence to carry or keep beef at home in the state.
A bench of justices R K Agrawal and Abhay Manohar Sapre issued the notice to one Haresh M Jagtani who had challenged the law in the High Court.

The bench tagged the matter along with several pending matters on the issue from the state for a detailed hearing later

More than a year ago, the Bombay High Court struck down Section 5D of the Maharashtra Animal Preservation (Amendment) Act, 1995, which received presidential assent on March 4, 2015.

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. The state had banned cow slaughter in 1976.

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, stop and search a person on suspicion of possessing beef.

The state said the May 6, 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 as 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 appeal .

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."