In a surprise move unmindful of the huge controversy it had sparked, 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 in the state.
More than a year ago, the Bombay high court had doused protests against the beef ban by striking 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 SC will hear the appeal on Friday.
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 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 21.0
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.”