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The Right to Choice of Food

Shaping Privacy Jurisprudence

Suhrith Parthasarathy (suhrith@gmail.com) is an advocate practising in Chennai.

The Supreme Court’s judgment in the Puttaswamy case has been hailed for the position of law that it espouses: that the Constitution recognises a fundamental right to privacy. But, its legacy will depend on how future benches apply its findings. One of the cases where the verdict is likely to make an impact is a case concerning the validity of a Maharashtra law that virtually bans the consumption of beef in the state.

The Supreme Court in K Puttaswamy v Union of India (2017a) unanimously declared that the Indian Constitution recognises a fundamental right to privacy. This verdict might have emanated out of the larger challenge to the Aadhaar scheme, which remains pending adjudication, but, as has already been noted by many, the impact of the judgment rendered is likely to be far more extensive (Kumar 2017; Sheikh 2017; Kannabiran 2017). The rationale of the Court’s conclusions could well touch areas that we might not intuitively consider as flowing from a guarantee of privacy.

One such area of controversy concerns the imposition of bans on the consumption of beef. The Supreme Court, as it happens, is presently seized of an appeal over the Bombay High Court’s judgment in Shaikh Zahid Mukthar v State of Maharashtra (2017), in which the high court had struck down Section 5D of the Maharashtra Animal Preservation Act, 1976. This provision imposed a prohibition on the mere retention in one’s possession of the flesh of any cow, bull or bullock slaughtered outside Maharashtra, executing thereby a virtual ban on the consumption of beef. The Bombay High Court ruled that the law places an unreasonable restriction on a person’s privacy, impinging deeply on the autonomy of individuals to decide for themselves how they want to lead their lives.

In examining the correctness of this view, the Supreme Court will now have on its hands an opportunity to apply its verdict in the Puttaswamy case in a meaningful manner. It will have to not only flesh out of an abstract shell the nature and extent of privacy guaranteed to India’s citizens, but also consider deeply the restrictions on this right that are constitutionally justifiable.

Before the Bombay High Court, a slew of petitioners challenged the many different amendments made to the Maharashtra Animal Preservation Act of 1976, which had received the President’s assent in 2015. These changes included the introduction of a complete ban on slaughter of bulls and bullocks in the state, in addition to the pre-existing proscription on slaughter of cows. As a result, only female buffaloes and buffalo calves could now be slaughtered, subject, however, to a certificate that had to be obtained from a competent authority established under the statute. Although this ban constituted the chief change made in the law, there were other restrictions that were also initiated, including the introduction of a new Section 5D to the act, which criminalised the mere possession of beef, regardless of where the meat had been sourced from.

Despite the protestations of the state government, and despite ruling against the petitioners on the challenges made to most of the other amendments, the court agreed to strike down the ban on the possession of beef, holding that it imposes an unreasonable restriction on a person’s right to eat food of their choice. Justice A S Oka wrote:

As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health … The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice. A citizen has a right to lead a meaningful life within the four corners of his house as well as outside his house. This intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21. The State cannot prevent a citizen from possessing and consuming a particular type of food which is not injurious to health (or obnoxious) … if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone. If a particular food is injurious to health or a particular food is illegally manufactured, it will be a case of compelling public interest which will enable the State to deprive citizens of the right to privacy by following the procedure established by law. (Shaikh Zahid Mukthar v State of Maharashtra2017: para 176)

There are two very particular points of argument that spring out of these findings from the Bombay High Court. One, that the state has no business interfering in a person’s choice of food, and, two, that the exception to this general principle is cases where a compelling public interest exists, such as matters of health and safety. Now, when the Supreme Court examines these conclusions, it will find no doubt that its verdict in the Puttaswamy case augments the basic argument that the rights of persons over preferences on food is an extension of a constitutionally guaranteed right to privacy. But, it will also find that a mere conclusion to this effect without ruling properly on what the nature of restrictions on such a right should be, might well have an impact that goes far beyond the case at hand.

Privacy of Choice

Let us consider, first, though, what the judgments in the Puttaswamy case tell us. We can see from a reading of the opinions (five in all, authored by Justice D Y Chandrachud, for himself and three others, and Justices J Chelameswar, R F Nariman, S A Bobde, S K Kaul and A M Sapre) that the Court recognised unanimously that a right to privacy flows from a collective reading of the right to personal liberty guaranteed under Article 21 and the various freedoms promised under Article 19. Further, at least two opinions (those of Justices Chandrachud and Chelameswar) explicitly recognised that choices over food are intrinsic to a guarantee of privacy, and indeed to the right of citizens to lead their lives with dignity.

The essence of Justice Chandrachud’s opinion can be located in paragraph 168, where he defined privacy as postulating the “reservation of a private space for the individual, described as the right to be let alone.” He wrote:

The concept [of privacy] is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality … Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. (K Puttaswamy v Union of India 2017b: para 168)

Therefore, according to the plurality opinion written by Justice Chandrachud, when read in conjunction with Article 21, the fundamental freedoms guaranteed under Article 19 enable the “individual to have a choice of preferences on various facets of life.” These would include what and how one will eat, the way one will dress, the faith one will espouse, and many other matters on which “autonomy and self-determination require a choice to be made within the privacy of the mind” (K Puttaswamy v Union of India 2017b: para 168).

Justice Chelameswar’s conclusions are also in a similar vein. He recognises, based on a reading of American scholar Gary Bostwick’s work, that privacy has three fundamental aspects: “repose,” which refers to a freedom from unwarranted stimuli; “sanctuary,” which refers to the protection against intrusive observation; and “intimate decision,” which refers to the autonomy that an individual enjoys in making personal choices (K Puttaswamy v Union of India 2017c: para 36). The right to eat what one desires, for him, is located within this third limb.

I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life … All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. (K Puttaswamy v Union of India 2017c: para 40)

Some of the other opinions also hint at a comparable argument. Justice Kaul’s judgment, for example, holds that a fundamental right to privacy would cover “the privacy of choice, which protects an individual’s autonomy over fundamental personal choices” (K Puttaswamy v Union of India 2017d: para 81). Although he does not tell us what these choices might be, it ought to be reasonable to conclude that a decision over what one wants to eat is an inherently personal and intimate decision.

Restrictions and Limitations

But, much as these grand conclusions are to be admired, there are also portions of holdings in these judgments that can give one cause to worry over the restrictions that might be imposed on the right to privacy. For example, Justice Chandrachud quotes with unexacting approval the judgment of the Supreme Court in Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Hamat (2008; K Puttaswamy v Union of India 2017b: para 69, 91). A two-judge bench in the Hinsa Virodhak Sangh case was considering a challenge to the closure of municipal slaughterhouses in the city of Ahmedabad for a period of nine days each year during the Jain festival of Paryushan. While holding that “what one eats is one’s personal affair” and is, therefore, protected under Article 21, the Court, however, found that the restrictions imposed on the slaughterhouses were constitutionally sustainable. Justice M Katju wrote for the bench:

In the present case we have noticed that the closure of the slaughter house is only for 9 days and not for a considerable period of time. This decision indicates that the restriction is reasonable. A period of 9 days is a very short time and surely the non-vegetarians can become vegetarians during those 9 days out of respect for the feeling of the Jain community. (Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Hamat 2008: para 34)

The almost glib endorsement of the judgment in the Hinsa Virodhak Sangh case is perturbing because the Court’s decision there militates against the general theory that Justice Chandrachud offers on what might constitute a constitutionally justifiable restriction on the right to privacy. For, according to him, there is a threefold requirement that has to be fulfilled by the state when it intends to restrict the right to privacy. One, there must be a legislation in existence, a requirement explicitly spelled out by Article 21. Two, the law must serve towards a legitimate aim of the state, and must conform to the requirements of Article 14, which requires that the law not suffer from any manifest arbitrariness. And three, the means adopted by the legislature must be proportional to the object and needs sought to be fulfilled by the law (K Puttaswamy v Union of India 2017b: para 180).

Now, while Justice Chandrachud spells out the nature of restrictions thus, Justice Chelameswar has a slightly different theory to offer. In his belief, the limitations on privacy will have to be identified on a case by case basis, “depending upon the nature of the privacy interest claimed.” There are, he writes, “different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles.” He cites four different standards of review that might be potentially applicable: one, a reasonableness enquiry under Article 14; two, an enquiry based on the express provisions of the various restrictions under clauses (2) to (6) of Article 19; three, a test of substantive due process under Article 21; and four, the “amorphous standard of ‘compelling state interest’” (K Puttaswamy v Union of India 2017c: para 43).

While he concedes that the first two tests will often be applicable, since “the spirit of liberty permeates every claim of privacy,” according to him, “it is difficult if not impossible to imagine that any standard of limitation, other than the one under Article 21 applies.” But, having said that, Justice Chelameswar simply holds that it is only in those cases that demand a strict scrutiny of a law that the Court must undertake to find out whether there exists a compelling state interest. He gives us no clues, though, on the nature of these privacy claims that demand a strict scrutiny, leaving it to the wisdom of future benches to decide.

Justice Nariman stays altogether clear of offering any particular theory on what a constitutionally justifiable restriction on the right to privacy might be. Justice Bobde suggests a standard of review, where the Court will simply have to consider whether a law restricting the right to privacy is rational. Justice Sapre states that the right is subject to “certain reasonable restrictions keeping in view social, moral and compelling public interest, which the State is entitled to impose by law,” offering us, though, nothing further in the way of what these interests can partake. Finally, we have Justice Kaul’s theory, which is laid out in the following terms:

(i) The action must be sanctioned by law;

(ii) The proposed action must be necessary in a democratic society for a legitimate aim;

(iii) The extent of such interference must be proportionate to the need for such interference;

(iv) There must be procedural guarantees against abuse of such interference. (K Puttaswamy v Union of India 2017d: para 71)

Questioning Section 5D

A collective reading of these opinions would, therefore, show us that at least five judges (by virtue of the opinions of Justices Chandrachud and Kaul) recommend a test of proportionality to determine whether a law that restricts the right to privacy is constitutionally justifiable or not.Therefore, when deciding on the merits of the appeal over the validity of Section 5D of the Maharashtra Animal Preservation Act of 1976, the Court will have to be guided by these standards. It must examine, first, whether a ban on consumption of beef enforced through a law that criminalises the mere possession of the meat infringes the right to privacy, and, if so, whether, the provision can be considered a legitimate aim of a democratic society, and whether the extent of its interference is proportional to its objects and purposes.

In the case of Section 5D, a reasonable analysis would show, much as the Bombay High Court’s judgment does, that it not only infringes the right to privacy, but also that the restrictions that it imposes are disproportionate to the objects of the law; indeed, they bear no rational nexus with the purposes of the legislation at all. As Justice Oka wrote,

the object of enacting amendment to Sections 5 and 5A, 5B and 5C appears to be to protect cows, bulls and bullocks in the State of Maharashtra from slaughter. Section 5D is a stand alone provision which has no nexus with the said object. It is not the case made out by the State that the ban on slaughter of cows, bulls and bullocks was to ensure that no one should eat the flesh of the said animals as it was injurious to health. The object is to protect cow and its progeny from slaughtering within the State. The object is not to prevent the citizens from eating flesh of cow or its progeny which is brought from a State or a country where there is no prohibition on slaughter. (Shaikh Zahid Mukthar v State of Maharashtra2017: para 185)

Therefore, there can be little doubt that Section 5D constitutes an unconstitutional interference with a person’s right to privacy, in that it is aimed at restricting people’s choice of food without serving any legitimate goal of the state. Were the Supreme Court to rule thus, as it should, its judgment will certainly have far-reaching consequences, affecting laws in a number of other states where the consumption of beef is either expressly or impliedly prohibited.1 That said, though, there is a reason why the Court should be careful in spelling out the test to be applied in judging restrictions made on a person’s choice of food.

Samuel Wiseman (2015) cautions against the elevation to a status of fundamental importance the right to food choice, for, were such a liberty to be recognised, the chief beneficiaries, he argues, would not be “sustainable agriculture consumers and producers, but rather those with the most at stake (and the most expensive lawyers)—big agriculture and large food manufacturers.” According to him, the values espoused in the sustainable food movement could substantially be affected by the necessity for a strict scrutiny of laws that seek to regulate food on the grounds of health and safety.

In many cases, it would be very difficult for government regulating food to show that a particular threat to health, for example, was serious enough to amount to a compelling interest. And even when an interest is clearly compelling, such as protecting consumers from salmonella poisoning, it would be difficult to prove that the regulations were narrowly tailored to meet that compelling interest. (Wiseman 2015: 1301)

We could have, for example, a case where it might be argued that the prevention of a relatively low risk of cancer does not constitute a compelling enough interest; likewise, even if studies do show a link between trans-fat in foods and different health problems, a prohibition on trans-fat might not be a solution that is sufficiently narrowly tailored. These issues can also be, as Wiseman points out, difficult for judges to evaluate, given the technical and scientific reasons that might underpin the regulations.

These arguments are not entirely lacking in merit, and the Supreme Court, when hearing the challenge to the ban on beef, should certainly be mindful of taking an excessively radical position, which might give the state little leeway to place restrictions on food in furtherance of legitimate state aims. Adopting the tests suggested by Justices Chandrachud and Kaul, which collectively represent the opinion of the majority in the Puttaswamy case, will go some way towards establishing a coherent jurisprudence. In so doing, the Court will not only be striking down the abominable Section 5D of the Maharashtra Animal Preservation Act, but will also be interpreting the law in a manner consistent with our constitutional vision. It will, in the process, also be laying down a lodestar on which other similar legislation can be tested.

Note

1 The Haryana Gauvansh Sanrakshan and Gausamvardhan Act, 2015, for example, provides that “no person shall directly or indirectly sell, keep, store, transport or offer for sale or cause to be sold beef or beef products except for such medicinal purposes and in such form as may be prescribed.” This provision could well be interpreted as impinging directly on a person’s right to consume beef. In many other states, the slaughter of cattle is banned simpliciter, making it virtually impossible to source and eat beef. It will be interesting to see whether such laws are considered as disproportionately impinging on a person’s right to privacy.

References

Bhatia, G (2017): “The Supreme Court’s Right to Privacy Judgment–VI: Limitations,” Indian Constitutional Law and Philosophy, blog, 1 September, https://indconlawphil.wordpress.com/2017/09/01/the-supreme-courts-right-....

Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Hamat (2008): Civil Appeal No 5469 of 2005, Supreme Court judgment dated 14 May.

K Puttaswamy v Union of India (2017a): Writ Petition (Civil) No 494 of 2012, Supreme Court judgment dated 24 August.

(2017b): Writ Petition (Civil) No 494 of 2012, Supreme Court judgment dated 24 August (plurality opinion).

(2017c): Writ Petition (Civil) No 494 of 2012, Supreme Court judgment dated 24 August (Chelameswar, J, concurring).

(2017d): Writ Petition (Civil) No 494 of 2012, Supreme Court judgment dated 24 August (Kaul, J, concurring).

Kannabiran, K (2017): “Right to Privacy as Right to Life,” Hindu, 9 November, http://www.thehindu.com/opinion/op-ed/right-to-privacy-as-right-to-life/....

Kumar, A Prasanna (2017): “Right to Privacy: Fundamental Rights Redefined,” Indian Express, 25 August, http://indianexpress.com/article/opinion/columns/right-to-privacy-fundam....

Shaikh Zahid Mukthar v State of Maharashtra (2017): Writ Petition (Civil) No 5731 of 2015, Bombay High Court judgment dated 6 May.

Sheikh, D (2017): “Rainbow of Possibilities,” Hindu, 30 August, http://www.thehindu.com/opinion/op-ed/rainbow-of-possibilities/article19....

Wiseman, Samuel (2015): “The Dangerous Right to Food Choice,” Seattle University Law Review, Vol 38, No 4, pp 1299–315.

Updated On : 27th Dec, 2017

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