A division bench of the Bombay High Court struck down Sections 5(d) and 9(b) of the Maharashtra Animal Preservation Act, 1976 (MAPA 76), and allowed the possession and consumption of beef in Maharashtra.
In its order, the Bench upheld Article 21 (Right to Life) of the Indian Constitution and said it includes the right to lead a meaningful life.
The courts observed that Article 21 “protects the citizen from unnecessary state intrusion into his home. For leading a meaningful life, a citizen will have to eat food and preferably food of his choice.” If the state tells a citizen not to eat a particular kind of food even though that food is not injurious to health, the court noted, it would prevent that citizen from leading a meaningful life. The court said, “If the State starts making intrusion into the personal life of an individual by preventing him from eating food of his choice, such act may well affect his personal liberty. Hence, even assuming that there may not be any kind of privacy, such interference will be violation of his personal liberty guaranteed by the State.”
The court observed that in many countries, and many Indian states, the slaughter of a cow, bull or bullock is legal, and that the only slaughter which is in contravention of MAPA 76 is the slaughter within Maharashtra.
Possession can not be prosecuted
The court ensured that the possession of beef could not be prosecuted.
These observations came after the bench summed up the entire scenario placed before it on the beef ban as mentioned in the Act, where “the moment anyone is found to be in possession of bovine flesh in Maharashtra, irrespective of where the slaughter has taken place, such person commits an offence under the act and a uniform punishment is provided for the offence.”
The bench noted that to contravene the Act, mere possession of bovine flesh was enough. If such possession could be proved, an accused would have the burden of proving that he did not know that the flesh was that of a cow, bull or bullock.
The burden of proof
The court put the burden of proof on the accuser rather than accused, holding that it was relatively easy for the prosecution to bear the burden of establishing that the slaughter was in contravention of the act than for the accused to show otherwise. The bench observed that the greater difficulty would be faced if on the basis of possession of such flesh, the state were to prosecute him for possession of flesh of cow, bull or bullock slaughtered in Maharashtra.
GS II: POLITY-DEATH PENALTY INDIA REPORT
Most on death row in India are first time offenders
A total of 241 persons out of the 385 death row inmates in India are first time offenders, new findings contained in the “Death Penalty India Report” released . For the study, 373 of all the 385 death row inmates in India were interviewed from July 2013 to January 2015 by the Center of Death Penalty at National Law University, Delhi.
The study found that around 60 per cent of the prisoners did not complete secondary education and nearly 75 per cent belong to economically vulnerable sections.
Education levels affect the extent to which the death row prisoners are able to understand details of the case filed against them; lack of which results in alienation from the system.
Further, three fourth of the prisoners sentenced to death belong to backward classes and religious minorities. While this finding does not imply direct discrimination, it reflects structural concerns which disempowers the marginalised, as explained below.
Prior criminal record
Pendency of legal proceedings greater than five years is considered a grave violation of speedy justice by the Supreme Court. While the median duration of trial for the death row prisoners was around four years, trials went beyond five years for 127 prisoners. Though lengthy trials happen to be a concern in general, it has more significance in the case of death penalty. The seriousness of charge forces the families to hire a private lawyer than rely on poor quality of free legal aid provided by the government. The report finds that while the high fee of private lawyers – opted by more than 60 per cent of the prisoners during trial and high court – deepens the economic vulnerability of the already poor families, it doesn’t ensure access to competent legal representation. This makes it difficult for an accused to “navigate through the various stages of the legal process without sufficient socio-economic and political resources.”
Trial duration varies with nature of the crime. Overall, ‘murder simpliciter’ or accidental murder constituted most of the cases, followed by ‘rape with murder’.
The study found that median duration of trials and High Court proceedings in cases involving sexual offences is the lowest as compared to other cases. State-wise analysis also shows that trails were fastest in cases of sexual offence.
According to researchers, in a legal system beset with structural delays, it must be examined why the courts deliver faster decisions in cases of sexual offence when so is not the case for other offences. “While there certainly must be speedy trials, lopsided durations indicate a far deeper malaise”, the report said. Note that for Supreme Court proceedings – later stage of the legal process – sexual offences cases have the longest median duration.
Access to legal representation is critical during interrogation and investigation phases. The report states: “We heard numerous accounts of the accused being tortured and forced to sign blank sheets of paper, followed by a staged recovery of facts that go on to become critical to prove the guilt of the accused during the trial.” The study found that 185 of the 191 prisoners who shared information didn’t have a lawyer during interrogation. Most of them claimed they had experienced custodial violence and were tortured in police custody. Even at the time of being produced before a magistrate – where legal representation has been recognised as a fundamental right by the Supreme Court – 169 of 189 prisoners who shared information didn’t have a lawyer.
Alienation experienced by prisoners through lack of awareness of proceedings increased as cases rise in the appellate system.
Nature of crime
The researchers conclude that the realities of criminal justice system in India are largely ignored and a misplaced confidence is constructed around it. While the research doesn’t talk about abolition or retention of the death penalty, it makes a case for the debate to move beyond nature of the crime and the purpose of punishment to the structural concerns plaguing the criminal justice system.