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CASE NO.:

Appeal (civil) 4937-4940 of 1998

PETITIONER:

State of Gujarat

RESPONDENT:

Mirzapur Moti Kureshi Kassab Jamat & Ors.

DATE OF JUDGMENT: 26/10/2005

BENCH:

CJI R.C. LAHOTI,B.N. AGRAWAL,ARUN KUMAR G.P. MATHUR C.K. THAKKER P.K. BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

WITH

CIVIL APPEAL NOS. 4941-44 of 1998

Shree Ahimsa Army Manav Kalyan

Jeev Daya Charitable Trust \005Appellant

Versus

Mirzapur Moti Kureshi Kassab

Jamat, Ahmedabad & Ors. \005Respondents

and

CIVIL APPEAL NO. 4945 of 1998

Akhil Bharat Krishi Goseva Sangh \005Appellant

Versus

Mirzapur Moti Kureshi Kassab

Jamat, Ahmedabad & Ors. \005Respondents

R.C. LAHOTI, CJI

Section 2 of the Bombay Animal Preservation (Gujarat

Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) which

introduced certain amendments in Section 5 of the Bombay

Animal Preservation Act, 1954 (as applicable to the State of

Gujarat) has been struck down as ultra vires the Constitution by

the High Court of Gujarat. These three sets of appeals by

special leave have been filed thereagainst.

A chain of events, legislative and judicial, lead to the

impugned enactment. To appreciate the core issue arising for

decision in these appeals and also the constitutional questions

arising therein, it will be useful to set out the preceding events in

their chronological order.

PART - I

Backdrop of Events

Legislative history leading to impugned enactment

With a view to conserve the cattle wealth of the State of

Bombay, the State Government enacted the Bombay Animal

Preservation Act, 1948 and prohibited slaughter of animals which

were useful for milch, breeding or agricultural purposes. This

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Act was substituted by the Bombay Animal Preservation Act of

1954 (hereinafter referred to as 'the Bombay Act'). The

provisions relevant for our purpose are contained in Sections 5

and 6. Sub-sections (1), (2) and (3) of Section 5 and Section 6

are extracted and reproduced hereunder :

"5. (1) Notwithstanding any law for the time

being in force or any usage to the contrary, no

person shall slaughter or cause to be

slaughtered any animal unless, he has

obtained in respect of such animal a certificate

in writing from the Competent Authority

appointed for the area that the animal is fit for

slaughter.

(2) No certificate shall be granted under sub-

section (1), if in the opinion of the Competent

Authority\027

(a) the animal, whether male

or female, is useful or likely

to become useful for the

purpose of draught or any

kind of agricultural

operations;

(b) the animal, if male, is

useful or likely to become

useful for the purpose of

breeding;

(c) the animal, if female, is

useful or likely to become

useful for the purpose of

giving milk or bearing

offspring.

(3) Nothing in this section shall apply to the

slaughter of any animal above the age of

fifteen years for bona-fide religious purposes :

Provided that a certificate in writing for

such slaughter has been obtained from the

Competent Authority.

(4) xxx xxx xxx

(5) xxx xxx xxx

(6) xxx xxx xxx

6. No animal in respect of which a certificate

has been issued under section 5 shall be

slaughtered in any place other than a place

specified by such authority or officer as the

State Government may appoint in this behalf."

The Preamble to the Act stated \026 "WHEREAS it is expedient

to provide for the preservation of animals suitable for milch,

breeding or for agricultural purposes; It is hereby enacted \005as

follows:-"

The Statement of Objects and Reasons stated inter alia \026

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"It is now proposed to repeal the Bombay Animal Preservation

Act, 1948 and to undertake fresh legislation, on the basis of a

model bill recommended by the Government of India, in order to

stamp out slaughter in unauthorized places and abetment of

offences which were not covered by the Bombay Animal

Preservation Act, 1948".

The State of Gujarat was formed in the year 1960.

Gujarat Legislature enacted The Bombay Animal Preservation

(Gujarat Extension and Amendment) Act, 1961 whereby the

Bombay Act was extended to the State of Gujarat in order to

achieve uniformity in law in different parts of the State with

regard to this subject. The Saurashtra Animal Preservation Act,

1956 which was applicable to that part of Gujarat which formed

part of erstwhile State of Saurashtra was repealed. Apart from

extending the Bombay Act, Section 5 of the Bombay Act, which

was called 'the principal Act' in the Gujarat Act of 1961, was also

amended by Section 4 thereof which reads as under:

4. Amendment of Section 5 of Bombay LXXII of

1954.- In section 5 of the principal Act, -

(1) After sub-section (1), the following sub-

section shall be inserted, namely :-

"(1A) No certificate under sub-section (1)

shall be granted in respect of a cow.";

(2) in sub-section (2), for the words "No

certificate" the words, brackets, figure and

letter "In respect of an animal to which

sub-section (1A) does not apply, no

certificate" shall be substituted;

(3) in sub-section (3), for the words "religious

purposes" the words, "religious purposes,

if such animal is not a cow" shall be

substituted.

The above Act was assented to by the Governor on the 1st

May, 1961 which was published in the Gujarat Government

Gazette, Extraordinary, Part IV, dated May 6, 1961. The objects

of such extension were mainly two : (i) to achieve uniformity in

law in different parts of the State; and (ii) to impose a ban on

cow slaughter. The amendment introduced by Section 4 of the

Bombay Animal Preservation (Gujarat Extension and

Amendment) Act, 1961 indicates that slaughter of cow was

totally banned.

In 1979, the Gujarat Legislature enacted the Bombay

Animal Preservation (Gujarat Amendment) Act, 1979 to further

amend the Bombay Act. Section 2 of this Act is relevant which is

extracted and reproduced hereunder:

2. Amendment of section 5 of Bom. LXXII of

1954.__In the Bombay Animal Preservation Act,

1954, Bom. LXXII of 1954, (hereinafter referred to

as "the principal Act"), in section 5,__

(1) for sub-section (1A), the following shall be substituted,

namely:__

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"(1A) No certificate under sub-section (1) shall be

granted in respect of __

(a) a cow;

(b) the calf of a cow, whether male or female

and if male, whether castrated or not;

(c) a bull below the age of sixteen years;

(d) a bullock below the age of sixteen years";

(2) for sub-section (3), the following sub-section shall be

substituted, namely:__

"(3) Nothing in this section shall apply to __

(a) the slaughter of any of the following

animals for such bonafide religious purposes,

as may be prescribed, namely:__

(i) any animal above the age of fifteen years

other than a cow, bull or bullock;

(ii) a bull above the age of fifteen years;

(iii) a bullock above the age of fifteen years;

(b) the slaughter of any animal not being a

cow or a calf of a cow, on such religious days

as may be prescribed.

Provided that a certificate in writing for the

slaughter referred to in clause (a) or (b) has been

obtained from the Competent Authority."

The Act was preceded by an Ordinance, a reference to

which is not necessary. The Statement of Objects and Reasons

of the Act are stated as under:

"Under the existing provisions of the

Bombay Animal Preservation Act, 1954,

although there is a total prohibition against

the slaughter of a cow, the slaughter of

progeny of a cow, that is to say bulls, bullocks

and calves is prohibited, like that of other

bovines only if they are useful or likely to

become useful for the purposes of draught,

agricultural operations, breeding, giving milk

or bearing off spring. In order to give effect to

the policy of the Government towards further

securing the directive principle laid down in

article 48 of the Constitution namely

prohibiting the slaughter of cows and calves

and other milch and draught cattle, it was

considered necessary to impose a total

prohibition against slaughter of the aforesaid

progeny of a cow below the age of eighteen

years as they are useful for the aforesaid

purposes\005"

The above-said Act was assented to by the Governor on

16th October 1979. The Act was given retrospective effect by

sub-section (2) of Section 1 thereof, which provided that the

amendment shall be deemed to have come into force on 28th

November, 1978.

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Digressing a little from the narration of legislative

development, here itself we may indicate that the constitutional

validity of the above amendment introduced by the Gujarat

Legislature into the Bombay Act was put in issue and came to be

dealt with initially by the Gujarat High Court and then this Court

by a Constitution Bench in Haji Usmanbhai Hasanbhai

Qureshi and Others v. State of Gujarat, (1986) 3 SCC 12.

The Gujarat High Court turned down the challenge and the

decision of the Gujarat High Court was upheld by this Court. We

will revert back to this decision a little later.

This was followed by the impugned legislation, the Bombay

Animal Preservation (Gujarat Amendment) Act, 1994. The

Bombay Act of 1954 referred to as 'the principal Act' was further

amended by Section 2 of the amending Act which reads as

under:

2. In the Bombay Animal Preservation

Act, 1954 (hereinafter referred to as "the

principal Act"), in section 5, -

(1) in sub-section (1A), for clauses (c)

and (d), the following clauses shall be

substituted, namely :-

"(c) a bull;

(d) a bullock.";

(2) in sub-section (3), -

(i) in clause (a), sub-clauses (ii) and

(iii) shall be deleted;

(ii) in clause (b), after the words "calf

of a cow", the words "bull or bullock" shall be

inserted."

The Act was preceded by an Ordinance, a reference to the

provisions whereof is unnecessary. The Preamble to the Act

reads as under:

"WHEREAS it is established that cow and her

progeny sustain the health of the nation by

giving them the life giving milk which is so

essential an item in a scientifically balanced

diet;

AND WHEREAS the working bullocks are

indispensable for our agriculture for they supply

power more than any other animal;

AND WHEREAS the working bullocks are often

useful in ploughing the fields, drawal of water

from the wells and also very useful for drawing

carts for transporting grains and fodders from

the fields to the residences of farmers as well

as to the Agricultural Market Yards;

AND WHEREAS the dung of the animal is

cheaper than the artificial manures and

extremely useful for production of bio-gas;

AND WHEREAS it is established that the back-

bone of Indian agriculture is, in a manner of

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speaking the cow and her progeny and have,

on their back, the whole structure of the Indian

agriculture and its economic system;

AND WHEREAS it is expedient to give

effect to the policy of the State towards

securing the principles laid down in articles 47,

48 and in clauses (b) and (c) of articles 39 of

the Constitution of India and to protect,

preserve and sustain cow and its progeny;"

The Statement of Objects and Reasons and the facts set

out therein are of relevance and significance and hence are

reproduced hereunder:

"The existing provisions of the Bombay

Animal Preservation Act, 1954 provides for

prohibition against the slaughter of cow, calf

of a cow, and the bulls and bullocks below the

age of sixteen years. It is an established fact

that the cow and her progeny sustain the

health of the nation by giving them the life

giving milk which is so essential an item in a

scientifically balanced diet.

The economy of the State of Gujarat is

still predominantly agricultural. In the

agricultural sector, use of animals for milch,

draught, breeding or agricultural purposes

has great importance. It has, therefore,

become necessary to emphasise preservation

and protection of agricultural animals like

bulls and bullocks. With the growing adoption

of non-conventional energy sources like bio-

gas plants, even waste material have come to

assume considerable value. After the cattle

cease to breed or are too old to do work, they

still continue to give dung for fuel, manure

and bio-gas, and therefore, they cannot be

said to be useless. It is well established that

the backbone of Indian agriculture is, in a

manner of speaking, the cow and her progeny

and have on their back, the whole structure

of the Indian agriculture and its economic

system.

In order to give effect to the policy of

the State towards securing the principles laid

down in articles 47, 48 and clause (b) and (c)

of article 39 of the Constitution of India, it

was considered necessary also to impose total

prohibition against slaughter of progeny of

cow.

As the Gujarat Legislative Assembly was

not in session the Bombay Animal

Preservation (Gujarat Amendment) Ordinance,

1993 to amend the said Act was promulgated

to achieve the aforesaid object in the interest

of general public. This Bill seeks to replace the

said Ordinance by an Act of the State

Legislature."

The Challenge to the Constitutional Validity

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The constitutional validity of the abovesaid legislation, that

is, the Bombay Animal Preservation (Gujarat Amendment) Act,

1994 was put in issue by four writ petitions filed in the High

Court which were heard and disposed of by a common judgment

dated April 16, 1998. Two of the writ petitions were filed by

individuals who were butchers by profession, and are known as

Kureshis. Two writ petitions were filed by the representative

bodies of Kureshis. Akhil Bharat Krishi Goseva Sangh sought for

intervention before the High Court and was allowed to be

impleaded as a party-respondent in the writ petitions. Hinsa

Virodhak Sangh, Jivan Jagruti Trust and Gujarat Prantiya Arya

Pratinidhi Sabha also sought for intervention and they were also

allowed to be impleaded by the High Court as party-respondents

in the writ petitions. The High Court allowed the writ petitions

and struck down the impugned legislation as ultra vires the

Constitution. The High Court held that the Amendment Act

imposed an unreasonable restriction on the fundamental rights

and therefore, it was ultra vires the Constitution. The effect of

the judgment of the High Court as summed up by the learned

Judges would be that there would not be a total ban on the

slaughter of bulls or bullocks above the age of 16 years; in other

words animals could be slaughtered consistently with the

provisions of the parent Act as it stood prior to the amendment

brought in by Gujarat Act No. 4 of 1994. Feeling aggrieved by

the said decision, the State of Gujarat and Akhil Bharat Krishi

Goseva Sangh have filed these appeals. Shree Ahimsa Army

Manav Kalyan Jeev Daya Charitable Trust, a Public Trust has

filed an appeal by special leave, seeking leave of this Court to

file the appeal, which has been granted.

On 17.2.2005, a three-Judge Bench of this Court, before

which the appeals came up for hearing directed the matter to be

placed for hearing before a Constitution Bench in the following

terms of the order :

"Parties to these appeals agree that the issue

involved in these appeals requires

interpretation of the provisions of the

Constitution of India especially in regard to

the status of Directive Principles vis-`-vis the

Fundamental Rights as well as the effect of

introduction of Articles 31C and 51A in the

Constitution.

Therefore, in view of Article 145(3) of the

Constitution, we think it appropriate that this

matter should be heard by a Bench of at least

5 Judges."

On 19.7.2005, the Constitution Bench which heard the

matter referred it to a Bench of seven Judges on an opinion that

certain prior decisions of this Court by Constitution Benches

might call for reconsideration. This is how the matter came to

be heard by this Bench.

We have heard Dr. L.M. Singhvi, Shri Soli J. Sorabjee and

Shri S.K. Dholakia, Senior Advocates who led the submissions

made on behalf of the appellants in the three sets of appeals.

We have also heard Shri G.L. Sanghi, Senior Advocate and Shri

Ramesh P. Bhatt, Senior Advocate, who led the arguments on

behalf of the respondents (writ petitioners in High Court) in the

several appeals. Before we notice and deal with the submissions

made by the learned senior counsel for the appellants and the

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respondents, it will be useful to set out and deal with some of

the decisions delivered by this Court which have been relied on

by the High Court in its impugned judgment, and on which

implicit and forceful reliance was placed by the learned senior

counsel for the respondents in support of the judgment of the

High Court.

Relevant Decisions of this Court

The most important and leading decision is Mohd. Hanif

Quareshi and Ors. v. State of Bihar and Ors. 1959 SCR 629

(hereinafter referred to as 'Quareshi-I'). We propose to deal

with this case somewhat in detail.

Three legislative enactments banning the slaughter of

certain animals were passed respectively by the States of Bihar,

Uttar Pradesh and Madhya Pradesh. In Bihar, the Bihar

Preservation and Improvement of Animals Act, 1956 (Bihar Act

II of 1956) was introduced which imposed a total ban on the

slaughter of all categories of animals belonging to the species of

bovine cattle. In Uttar Pradesh, the Uttar Pradesh Prevention of

Cow Slaughter Act, 1955 (U.P. Act I of 1956) was enacted which

also imposed a total ban on the slaughter of cows and her

progeny which included bulls, bullocks, heifers and cows. In the

State of Madhya Pradesh, it was the C.P. and Berar Animal

Preservation Act (Act LII of 1949) which was amended and

applied. It imposed a total ban on the slaughter of cows and

female calf of a cow. The male calf of a cow, bull, bullock,

buffalo (male or female, adult or calf) could be slaughtered only

on obtaining a certificate. The bans, as imposed by the three

legislations were the subject matter of controversy.

The challenge to the constitutional validity of the three

legislations was founded on the following three grounds, as was

dealt with in the judgment : (i) that the total ban offended the

religion of the Muslims as the sacrifice of a cow on a particular

day is enjoined or sanctioned by Islam; (ii) that such ban

offended the fundamental right guaranteed to the Kasais

(Butchers) under Article 19(1)(g) and was not a reasonable and

valid restriction on their right; and (iii) that a total ban was not

in the interest of the general public. On behalf of the States,

heavy reliance was placed on Article 48 of the Constitution to

which the writ petitioners responded that under Article 37 the

Directive Principles were not enforceable by any court of law

and, therefore, Article 48 had no relevance for the purpose of

determining the constitutional validity of the impugned

legislations which were alleged to be violative of the fundamental

rights of the writ petitioners.

Dealing with the challenge to the constitutional validity of

the legislations, their Lordships reiterated the well accepted

proposition based on several pronouncements of this Court that

there is always a presumption in favour of the constitutionality of

an enactment and that the burden lies upon him who attacks it

to show that there has been a clear violation of the constitutional

principles. The legislative wisdom as expressed in the impugned

enactment can be pressed into service to support the

presumption. Chief Justice S.R. Das spoke for the Constitution

Bench and held :- (i) that a total ban on the slaughter of cows of

all ages and calves of cows and calves of she-buffaloes, male or

female, was quite reasonable and valid and is in consonance with

the Directive Principles laid down in Article 48; (ii) that a total

ban on the slaughter of she-buffaloes or breeding bulls or

working bullocks (cattle as well as buffaloes) as long as they are

capable of being used as milch or draught cattle was also

reasonable and valid; and (iii) that a total ban on slaughter of

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she-buffaloes, bulls and bullocks (cattle or buffalo) after they

ceased to be capable of yielding milk or of breeding or working

as draught animals could not be supported as reasonable in the

interests of the general public and was invalid.

The first ground of challenge was simply turned down due

to the meagre materials placed before their Lordships and the

bald allegations and denials made by the parties. No one

specially competent to expound the religious tenets of Islam filed

any affidavit and no reference was made to any particular Surah

of the Holy Quran which, in terms, requires the sacrifice of a

cow. It was noticed that many Muslims do not sacrifice cow on

the BakrI'd day. Their Lordships stated, inter alia :-

"It is part of the known history of India that

the Moghul Emperor Babar saw the wisdom of

prohibiting the slaughter of cows as and by

way of religious sacrifice and directed his son

Humayun to follow this example. Similarly

Emperors Akbar, Jehangir, and Ahmad Shah,

it is said, prohibited cow slaughter. Nawab

Hyder Ali of Mysore made cow slaughter an

offence punishable with the cutting of the

hands of the offenders. Three of the members

of the Gosamvardhan Enquiry Committee set

up by the Uttar Pradesh Government in 1953

were Muslims and concurred in the unanimous

recommendation for total ban on slaughter of

cows. We have, however, no material on the

record before us which will enable us to say,

in the face of the foregoing facts, that the

sacrifice of a cow on that day is an obligatory

overt act for a Mussalman to exhibit his

religious belief and idea. In the premises, it is

not possible for us to uphold this claim of the

petitioners." (p.651)

In State of West Bengal and Ors. v. Ashutosh Lahiri,

(1995) 1 SCC 189, this Court has noted that sacrifice of any

animal by muslims for the religious purpose on BakrI'd does not

include slaughtering of cow as the only way of carrying out that

sacrifice. Slaughtering of cow on BakrI'd is neither essential to

nor necessarily required as part of the religious ceremony. An

optional religious practice is not covered by Article 25(1). On

the contrary, it is common knowledge that cow and its progeny,

i.e., bull, bullocks and calves are worshipped by Hindus on

specified days during Diwali and other festivals like Makr-

Sankranti and Gopashtmi. A good number of temples are to be

found where the statue of 'Nandi' or 'Bull' is regularly

worshipped. However, we do not propose to delve further into

the question as we must state, in all fairness to the learned

counsel for the parties, that no one has tried to build any

argument either in defence or in opposition to the judgment

appealed against by placing reliance on religion or Article 25 of

the Constitution.

Dealing with the challenge founded on Article 14 of the

Constitution, their Lordships reiterated the twin tests on the

anvil of which the reasonability of classification for the purpose

of legislation has to be tested, namely, (i) that the classification

must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from others left out

of the group, and (ii) that such differentia must have a rational

relation to the object sought to be achieved by the statute in

question (p.652). Applying the twin tests to the facts of the

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cases before them, their Lordships held that it was quite clear

that the objects sought to be achieved by the impugned Acts

were the preservation, protection and improvement of

livestocks. Cows, bulls, bullocks and calves of cows are no doubt

the most important cattle for the agricultural economy of this

country. Female buffaloes yield a large quantity of milk and are,

therefore, well looked after and do not need as much protection

as cows yielding a small quantity of milk require. As draught

cattle, male buffaloes are not half as useful as bullocks. Sheep

and goat give very little milk compared to the cows and the

female buffaloes and have practically no utility as draught

animals. These different categories of animals being susceptible

of classification into separate groups on the basis of their

usefulness to society, the butchers who kill each category may

also be placed in distinct classes according to the effect produced

on society by the carrying on of their respective occupations (p.

653). Their Lordships added :-

"The attainment of these objectives may well

necessitate that the slaughterers of cattle

should be dealt with more stringently than the

slaughterers of, say, goats and sheep. The

impugned Acts, therefore, have adopted a

classification on sound and intelligible basis

and can quite clearly stand the test laid down

in the decisions of this Court. Whatever

objections there may be against the validity of

the impugned Acts the denial of equal

protection of the laws does not, prima facie,

appear to us to be one of them. In any case,

bearing in mind the presumption of

constitutionality attaching to all enactments

founded on the recognition by the court of the

fact that the legislature correctly appreciates

the needs of its own people there appears to

be no escape from the conclusion that the

petitioners have not discharged the onus that

was on them and the challenge under Article

14 cannot, therefore, prevail." (p. 653)

The challenge to the constitutional validity founded under

Article 14 was clearly and in no unmistaken terms turned down.

The third contention, that is, whether the "total

prohibition" could be sustained as a reasonable restriction on the

fundamental right of the butchers to slaughter animals of their

liking or in which they were trading, was dealt with in great

detail. This is the aspect of the decision of the Constitution

Bench in Quareshi-I which, in the submission of the learned

senior counsel for the appellants, was not correctly decided and,

therefore, calls for reconsideration. The question was dealt with

by their Lordships from very many angles. Whether the

restrictions permissible under clause (6) of Article 19 may

extend to "total prohibition" ___ was treated by their Lordships as

a vexed question and was left open without expressing any final

opinion as their Lordships chose to concentrate on the issue as

to whether the restriction was at all reasonable in the interests

of the general public, de hors the fact whether it could be held to

be partial or total.

Their Lordships referred to a lot of documentary evidence

which was produced before them, such as (i) the figures of 1951

Animals' Census; (ii) Report on the Marketing of Cattle in India

issued by the Directorate of Marketing and Inspection, Ministry

of Goods and Agriculture, Government of India, 1956; and (iii)

the figures given in the First and Second Five Years Plans and so

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on. Their Lordships concluded that if the purpose of sustaining

the health of the nation by the usefulness of the cow and her

progeny was achieved by the impugned enactments the

restriction imposed thereby could be held to be reasonable in the

interest of the general public.

Their Lordships referred to other documents as well. The

findings of fact arrived at, based on such evidence may briefly be

summed up. In the opinion of their Lordships, cow progeny

ceased to be useful as a draught cattle after a certain age and

they, although useful otherwise, became a burden on the limited

fodder available which, but for the so-called useless animals,

would be available for consumption by milch and draught

animals. The response of the States in setting up Gosadans

(protection home for cow and cow progeny) was very poor. It

was on appreciation of the documentary evidence and the

deduction drawn therefrom which led their Lordships to conclude

that in spite of there being a presumption in favour of the

validity of the legislation and respect for the opinion of the

legislatures as expressed by the three impugned enactments,

they were inclined to hold that a total ban of the nature imposed

could not be supported as reasonable in the interests of the

general public.

While dealing with the submissions made by the learned

senior counsel before us, we would once again revert to this

judgment. It would suffice to observe here that, excepting for

one limited ground, all other grounds of challenge to the

constitutional validity of the impugned enactments had failed.

In Abdul Hakim Quraishi & Ors. v.

State of Bihar, (1961) 2 SCR 610 (hereinafter referred to as

Quraishi-II) once again certain amendments made by the

Legislatures of the States of Bihar, Madhya Pradesh and Uttar

Pradesh were put in issue. The ground of challenge was

confined to Article 19(1)(g) read with Article 19(6). The ban as

imposed by the impugned Act was once again held to be 'total'

and hence an unreasonable restriction. The Constitution Bench,

by and large, chose to follow the dictum of this Court in

Quareshi-I.

In Mohammed Faruk v. State of Madhya Pradesh &

Ors., (1969) 1 SCC 853, the State Government issued a

notification whereby the earlier notification issued by the

Jabalpur Municipality which permitted the slaughter of bulls and

bullocks along with other animals was recalled. Para 6 of the

judgment notes the anguish of the Constitution Bench, as in the

opinion of their Lordships, the case was apparently another

attempt, though on a restricted scale, to circumvent the

judgment of this Court in Quareshi-I. Vide para 9, their

Lordships have noticed the decision of this Court in Narendra

Kumar & Ors. v. The Union of India and Ors., (1960) 2

SCR 375, which upholds the view that the term "restriction" in

Articles 19(5) and 19(6) of the Constitution includes cases of

"prohibition" also. Their Lordships drew a distinction between

cases of "control" and "prohibition" and held that when the

exercise of a fundamental right is prohibited, the burden of

proving that a total ban on the exercise of the right alone would

ensure the maintenance of the general public interest lies heavily

upon the State. As the State failed in discharging that burden,

the notification was held liable to be struck down as imposing an

unreasonable restriction on the fundamental right of the

petitioners.

In Haji Usmanbhai Hassanbhai Qureshi and Ors. v.

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State of Gujarat, (1986) 3 SCC 12 (hereinafter referred to as

'Qureshi-III') the constitutional validity of the Bombay Act as

amended by Gujarat Act 16 of 1961 was challenged. The ban

prohibited slaughter of bulls and bullocks below the age of 16

years. The petitioners pleaded that such a restriction on their

right to carry on the trade or business in beef and allied articles

was unreasonable. Yet another plea was urged that the total

ban offended their religion as qurbani (sacrifice) at the time of

BakrI'd or Id festival as enjoined and sanctioned by Islam. The

High Court rejected the challenge on both the grounds. The writ

petitioners came in appeal to this Court. The appeal was

dismissed. While doing so, this Court took note of the material

made available in the form of an affidavit filed by the Under

Secretary to the Government of Gujarat, Agriculture, Forest and

Cooperation Department wherein it was deposed that because

of improvement and more scientific methods of cattle breeding

and advancement in the science of looking after the health of

cattle in the State of Gujarat, today a situation has been reached

wherein the cattle remain useful for breeding, draught and other

agricultural purposes above the age of 16 years as well. As the

bulls and bullocks upto the 16 years of age continued to be

useful, the prescription of the age of 16 years up to which they

could not be slaughtered was held to be a reasonable restriction,

keeping in mind the balance which has to be struck between

public interest which requires useful animals to be preserved,

and permitting the appellants (writ petitioners) to carry on their

trade and profession. The test of reasonableness of the

restriction on the fundamental right guaranteed by Article

19(1)(g) was held to have been satisfied.

The challenge based on Article 14 of the Constitution

alleging the impugned legislation to be discriminatory, as it was

not uniform in respect of all cattle, was rejected.

The Court also held that buffaloes and their progeny, on

the one hand and cows and their progeny, on the other hand

constitute two different classes and their being treated

differently does not amount to hostile discrimination.

In Hashmattullah v. State of M.P. and Others, (1996)

4 SCC 391, vires of M.P. Krishik Pashu Parirakshan

(Sanshodhan) Adhiniyam, 1991 imposing a total ban on the

slaughter of bulls and bullocks in the State of Madhya Pradesh

was challenged. The validity of the amending Act was upheld by

the High Court. The writ petitioners came up in appeal to this

Court which was allowed and the amending Act was struck down

as ultra vires the Constitution.

In State of West Bengal and others v. Ashutosh

Lahiri and Others, (1995) 1 SCC 189, the legislation impugned

therein permitted slaughter of cows on the occasion of BakrI'd

subject to an exemption in that regard being allowed by the

State Government. The power to grant such an exemption was

challenged. The High Court allowed the writ petition and struck

down the power of the State Government to grant such an

exemption. There was a total ban imposed on the slaughter of

healthy cows and other animals mentioned in the schedule under

Section 2 of the Act. The State of West Bengal appealed. On a

review of earlier decisions of this Court, the three-Judge Bench

concluded that it was a settled legal position that there was no

fundamental right of Muslims to insist on slaughter of healthy

cows on the occasion of BakrI'd. The contention that not only an

essential religious practice under Article 25(1) of Constitution,

but even optional religious practice could be permitted, was

discarded. The Court held \026 "We, therefore, entirely concur with

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the view of the High Court that slaughtering of healthy cows on

BakrI'd is not essential or required for religious purpose of

Muslims or in other words it is not a part of religious requirement

for a Muslim that a cow must be necessarily sacrificed for

earning religious merit on BakrI'd."

Issues in Present Set of Appeals

Though there is no explicit concession given but it became

clear during the course of prolonged hearing before us that the

decision of this case hinges much on the answer to the question

whether the view of this Court in Quareshi-I is to be upheld or

not. While the submission of the learned senior counsel for the

appellants has been that, to the extent the Constitution Bench in

Quareshi-I holds the total ban on slaughter of cow progeny to

be unconstitutional, it does not lay down good law for various

reasons, the learned senior counsel for the writ petitioners-

respondents has submitted that Quareshi-I leads a chain of five

decisions of this Court which in view of the principle of stare

decisis, this Court should not upset. The learned senior counsel

for the appellants find following faults with the view taken by

this Court in Quareshi-I, to the extent to which it goes against

the appellants:-

(1) Quareshi-I holds Directive Principles of State Policy

to be unenforceable and subservient to the

Fundamental Rights and, therefore, refuses to assign

any weight to the Directive Principle contained in

Article 48 of the Constitution and refuses to hold that

its implementation can be a valid ground for proving

reasonability of the restriction imposed on the

Fundamental Right guaranteed by Article 19(1)(g) of

the Constitution \026 a theory which stands discarded in

a series of subsequent decisions of this Court.

(2) What has been noticed in Quareshi-I is Article 48

alone; Article 48A and Article 51A(g) were not

noticed as they were not available then, as they

were introduced in the Constitution by Forty-second

Amendment with effect from 3.1.1977.

(3) The meaning assigned to "other milch and draught

cattle" in Quareshi-I is not correct. Such a narrow

view as has been taken in Quareshi-I does not fit

into the scheme of the Constitution and, in

particular, the spirit of Article 48.

(4) Quareshi-I does not assign the requisite weight to

the facts contained in the Preamble and Statement

of Objects and Reasons of the enactments impugned

therein.

(5) 'Restriction' and 'Regulation' include 'Prohibition' and

a partial restraint does not amount to total

prohibition. Subsequent to the decision in

Quareshi-I the trend of judicial decisions in this

area indicates that regulation or restriction within the

meaning of Articles 19(5) and 19(6) of the

Constitution includes total prohibition - the question

which was not answered and left open in

Quareshi-I.

(6) In spite of having decided against the writ petitioners

on all their principal pleas, the only ground on which

the constitutional validity of the impugned

enactments was struck down in Quareshi-I is

founded on the finding of facts that cow progeny

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ceased to be useful after a particular age, that

preservation of such 'useless cattle' by establishment

of gosadan was not a practical and viable

proposition, that a large percentage of the animals,

not fit for slaughter, are slaughtered surreptitiously

outside the municipal limits, that the quantum of

available fodder for cattle added with the

dislodgment of butchers from their traditional

profession renders the total prohibition on slaughter

not in public interest. The factual situation has

undergone a drastic change since then and hence

the factual foundation, on which the legal finding has

been constructed, ceases to exist depriving the later

of all its force.

The learned senior counsel for the appellants further

submitted that Quareshi-I forms the foundation for subsequent

decisions and if the very basis of Quareshi-I crumbles, the

edifice of subsequent decisions which have followed Quareshi-I

would also collapse. We will examine the validity of each of the

contentions so advanced and at the end also examine whether

the principle of stare decisis prevents us from reopening the

question answered in favour of writ petitioners in Quareshi-I.

PART \026 II

Question-1. Fundamental Rights and Directive Principles:-

"It was the Sapru Committee (1945) which initially

suggested two categories of rights: one justiciable and the other

in the form of directives to the State which should be regarded as

fundamental in the governance of the country \005 Those directives

are not merely pious declarations. It was the intention of the

framers of the Constitution that in future both the Legislature and

the Executive should not merely pay lip service to these

principles but they should be made the basis of all legislative and

executive actions that the future Government may be taking in

matter of governance of the country. (Constituent Assembly

Debates, Vol.7, at page 41)" (See: The Constitution of India, D.J.

De, Second Edition, 2005, p.1367). If we were to trace the

history of conflict and irreconciliability between Fundamental

Rights and Directive Principles, we will find that the development

of law has passed through three distinct stages.

To begin with, Article 37 was given a literal meaning

holding the provisions contained in Part IV of the Constitution to

be unenforceable by any Court. In The State of Madras v.

Srimathi Champakam Dorairajan, 1951 SCR 525, it was held

that the Directive Principles of State Policy have to conform to

and run as subsidiary to the Chapter of Fundamental Rights. The

view was reiterated in Deep Chand and Anr. v. The State of

Uttar Pradesh and Others, 1959 Supp. (2) SCR 8. The Court

went on to hold that disobedience to Directive Principles cannot

affect the legislative power of the State. So was the view taken

in In Re : The Kerala Education Bill, 1957 , 1959 SCR 995.

With L.C. Golak Nath and others v. State of Punjab

and Another, (1967) 2 SCR 762, the Supreme Court departed

from the rigid rule of subordinating Directive Principles and

entered the era of harmonious construction. The need for

avoiding a conflict between Fundamental Rights and Directive

Principles was emphasized, appealing to the legislature and the

courts to strike a balance between the two as far as possible.

Having noticed Champakam (supra) even the Constitution

Bench in Quareshi-I chose to make a headway and held that the

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Directive Principles nevertheless are fundamental in the

governance of the country and it is the duty of the State to give

effect to them. "A harmonious interpretation has to be placed

upon the Constitution and so interpreted it means that the State

should certainly implement the directive principles but it must do

so in such a way that its laws do not take away or abridge the

fundamental rights, for otherwise the protecting provisions of

Part III will be a 'mere rope of sand'." Thus, Quareshi-I did

take note of the status of Directive Principles having been

elevated from 'sub-ordinate' or 'sub-servient' to 'partner' of

Fundamental Rights in guiding the nation.

His Holiness Kesavananda Bharati Sripadagalvaru

and Anr. v. State of Kerala and Anr., (1973) 4 SCC 225, a

thirteen-Judge Bench decision of this Court is a turning point in

the history of Directive Principles jurisprudence. This decision

clearly mandated the need for bearing in mind the Directive

Principles of State Policy while judging the reasonableness of the

restriction imposed on Fundamental Rights. Several opinions

were recorded in Kesavananda Bharati and quoting from them

would significantly increase the length of this judgment. For our

purpose, it would suffice to refer to the seven-Judge Bench

decision in Pathumma and Others v. State of Kerala and

Ors., (1978) 2 SCC 1, wherein the learned Judges neatly

summed up the ratio of Kesavananda Bharati and other

decisions which are relevant for our purpose. Pathumma (supra)

holds :-

"(1) Courts interpret the constitutional

provisions against the social setting of the

country so as to show a complete

consciousness and deep awareness of the

growing requirements of society, the

increasing needs of the nation, the burning

problems of the day and the complex issues

facing the people, which the legislature, in its

wisdom, through beneficial legislation, seeks

to solve. The judicial approach should be

dynamic rather than static, pragmatic and not

pedantic and elastic rather than rigid. This

Court while acting as a sentinel on the qui

vive to protect fundamental rights guaranteed

to the citizens of the country must try to

strike a just balance between the fundamental

rights and the larger and broader interests of

society so that when such a right clashes with

a larger interest of the country it must yield to

the latter.(Para 5)

(2) The Legislature is in the best position to

understand and appreciate the needs of the

people as enjoined in the Constitution. The

Court will interfere in this process only when

the statute is clearly violative of the right

conferred on a citizen under Part III or when

the Act is beyond the legislative competence

of the legislature. The courts have recognised

that there is always a presumption in favour

of the constitutionality of the statutes and the

onus to prove its invalidity lies on the party

which assails it. (Para 6)

(3) The right conferred by Article 19(1)(f) is

conditioned by the various factors mentioned

in clause (5). (Para 8)

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(4) The following tests have been laid down as

guidelines to indicate in what particular

circumstances a restriction can be regarded as

reasonable:

(a) In judging the reasonableness

of the restriction the court has to

bear in mind the Directive

Principles of State Policy. (Para

8)

(b) The restrictions must not be

arbitrary or of an excessive nature

so as to go beyond the

requirements of the interests of

the general public. The legislature

must take intelligent care and

deliberation in choosing the

course which is dictated by reason

and good conscience so as to

strike a just balance between the

freedom in the article and the

social control permitted by the

restrictions under the article.

(Para 14)

(c) No abstract or general pattern

or fixed principle can be laid down

so as to be of universal

application. It will have to vary

from case to case and having

regard to the changing conditions,

the values of human life, social

philosophy of the Constitution,

prevailing conditions and the

surrounding circumstances all of

which must enter into the judicial

verdict. (Para 15)

(d) The Court is to examine the

nature and extent, the purport

and content of the right, the

nature of the evil sought to be

remedied by the statute, the ratio

of harm caused to the citizen and

the benefit conferred on the

person or the community for

whose benefit the legislation is

passed. (Para 18 )

(e) There must be a direct and

proximate nexus or a reasonable

connection between the restriction

imposed and the object which is

sought to be achieved. (Para 20)

(f) The needs of the prevailing

social values must be satisfied by

the restrictions meant to protect

social welfare. (Para 22)

(g) The restriction has to be

viewed not only from the point of

view of the citizen but the

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problem before the legislature and

the object which is sought to be

achieved by the statute. In other

words, the Court must see

whether the social control

envisaged by Article 19 (1) is

being effectuated by the

restrictions imposed on the

fundamental right. However

important the right of a citizen or

an individual may be it has to

yield to the larger interests of the

country or the community. (Para

24)

(h) The Court is entitled to take

into consideration matters of

common report history of the

times and matters of common

knowledge and the circumstances

existing at the time of the

legislation for this purpose. (Para

25)"

(underlining by us)

In State of Kerala and Anr. v. N.M. Thomas and Ors.,

(1976) 2 SCC 310, also a seven-Judge Bench of this Court culled

out and summarized the ratio of this Court in Kesavananda

Bharati. Fazal Ali, J extracted and set out the relevant extract

from the opinion of several Judges in Kesavananda Bharati

and then opined:

"In view of the principles adumbrated by

this Court it is clear that the directive principles

form the fundamental feature and the social

conscience of the Constitution and the

Constitution enjoins upon the State to

implement these directive principles. The

directives thus provide the policy, the

guidelines and the end of socio-economic

freedom and Articles 14 and 16 are the means

to implement the policy to achieve the ends

sought to be promoted by the directive

principles. So far as the courts are concerned

where there is no apparent inconsistency

between the directive principles contained in

Part IV and the fundamental rights mentioned

in Part III, which in fact supplement each

other, there is no difficulty in putting a

harmonious construction which advances the

object of the Constitution. Once this basic fact

is kept in mind, the interpretation of Articles

14 and 16 and their scope and ambit become

as clear as day."

The message of Kesavananda Bharati is clear. The

interest of a citizen or section of a community, howsoever

important, is secondary to the interest of the country or

community as a whole. For judging the reasonability of

restrictions imposed on Fundamental Rights the relevant

considerations are not only those as stated in Article 19 itself or

in Part-III of the Constitution; the Directive Principles stated in

Part-IV are also relevant. Changing factual conditions and State

policy, including the one reflected in the impugned enactment,

have to be considered and given weightage to by the courts while

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deciding the constitutional validity of legislative enactments. A

restriction placed on any Fundamental Right, aimed at securing

Directive Principles will be held as reasonable and hence intra

vires subject to two limitations : first, that it does not run in clear

conflict with the fundamental right, and secondly, that it has

been enacted within the legislative competence of the enacting

legislature under Part XI Chapter I of the Constitution.

In Municipal Corporation of the City of Ahmedabad &

Ors. v. Jan Mohammed Usmanbhai & Anr., (1986) 3 SCC

20, what was impugned before the High Court was a standing

order issued by the Municipal Commissioner of the State of

Ahmedabad, increasing the number of days on which slaughter

houses should be kept closed to seven, in supersession of the

earlier standing order which directed the closure for only four

days. The writ petitioner, a beef dealer, challenged the

constitutional validity of the impugned standing orders (both, the

earlier and the subsequent one) as violative of Articles 14 and

19(1)(g) of the Constitution. The challenge based on Articles 14

of the Constitution was turned down both by the High Court and

the Supreme Court. However, the High Court had struck down

the seven days closure as not "in the interests of the general

public" and hence not protected by Clause (6) of Article 19 of the

Constitution. In appeal preferred by the Municipal Corporation,

the Constitution Bench reversed the Judgment of the High Court

and held that the objects sought to be achieved by the impugned

standing orders were the preservation, protection and

improvement of live-stock, which is one of the Directive

Principles. Cows, bulls, bullocks and calves of cows are no doubt

the most important cattle for our agricultural economy. They

form a separate class and are entitled to be treated differently

from other animals such as goats and sheep, which are

slaughtered. The Constitution Bench ruled that the expression

"in the interests of general public" is of a wide import covering

public order, public health, public security, morals, economic

welfare of the community and the objects mentioned in Part IV

of the Constitution.

In Workmen of Meenakshi Mills Ltd. and Others. v.

Meenakshi Mills Ltd. and Anr. , (1992) 3 SCC 336, the

Constitution Bench clearly ruled (vide para 27) \026 "Ordinarily any

restriction so imposed which has the effect of promoting or

effectuating a directive principle can be presumed to be a

reasonable restriction in public interest." Similar view is taken in

Papnasam Labour Union v. Madura Coats Ltd. and Anr. ,

(1995) 1 SCC 501.

Directive Principles

Long back in The State of Bombay and anr. v. F.N.

Balsara, 1951 SCR 682, a Constitution Bench had ruled that in

judging the reasonableness of the restrictions imposed on the

Fundamental Rights, one has to bear in mind the Directive

Principles of State Policy set-forth in Part IV of the Constitution,

while examining the challenge to the constitutional validity of law

by reference to Article 19(1)(g) of the Constitution.

In a comparatively recent decision of this Court in M.R.F.

Ltd. v. Inspector, Kerala Govt. and Ors., (1998) 8 SCC 227,

this Court, on a conspectus of its various prior decisions

summed up principles as 'clearly discernible', out of which three

that are relevant for our purpose, are extracted and reproduced

hereunder.

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"13. On a conspectus of various decisions of

this Court, the following principles are clearly

discernible:

(1) While considering the

reasonableness of the restrictions, the court

has to keep in mind the Directive Principles of

State Policy.

xxx xxx xxx xxx

(3) In order to judge the

reasonableness of the restrictions, no abstract

or general pattern or a fixed principle can be

laid down so as to be of universal application

and the same will vary from case to case as

also with regard to changing conditions, values

of human life, social philosophy of the

Constitution, prevailing conditions and the

surrounding circumstances.

xxx xxx xxx xxx

(6) There must be a direct and

proximate nexus or a reasonable connection

between the restrictions imposed and the

object sought to be achieved. If there is a

direct nexus between the restrictions and the

object of the Act, then a strong presumption in

favour of the constitutionality of the Act will

naturally arise. (See: Kavalappara

Kottarathil Kochuni Vs. State of Madras

and Kerala, (1960) 3 SCR 887; O.K. Ghosh

Vs. E.X. Joseph, 1963 Supp. (1) SCR 789)"

Very recently in Indian Handicrafts Emporium and Ors.

v. Union of India and Ors., (2003) 7 SCC 589, this Court while

dealing with the case of a total prohibition reiterated that

'regulation' includes 'prohibition' and in order to determine

whether total prohibition would be reasonable, the Court has to

balance the direct impact on the fundamental right of the citizens

as against the greater public or social interest sought to be

ensured. Implementation of the Directive Principles contained in

Part IV is within the expression of 'restriction in the interests of

the general public'.

Post Kesavananda Bharati so far as the determination of

the position of Directive Principles, vis-a-vis Fundamental Rights

are concerned, it has been an era of positivism and creativity.

Article 37 of the Constitution which while declaring the Directive

Principles to be unenforceable by any Court goes on to say \026

"that they are nevertheless fundamental in the governance of

the country." Several clauses of Article 37 themselves need to be

harmoniously construed assigning equal weightage to all of them.

The end part of Article 37 \026 "It shall be the duty of the State to

apply these principles in making laws" is not a pariah but a

constitutional mandate. The series of decisions which we have

referred to hereinabove and the series of decisions which

formulate the 3-stages of development of the relationship

between Directive Principles and Fundamental Rights undoubtedly

hold that, while interpreting the interplay of rights and

restrictions, Part-III (Fundamental Rights) and Part-IV (Directive

Principles) have to be read together. The restriction which can

be placed on the rights listed in Article 19(1) are not subject only

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to Articles 19(2) to 19(6); the provisions contained in the chapter

on Directive Principles of State Policy can also be pressed into

service and relied on for the purpose of adjudging the

reasonability of restrictions placed on the Fundamental Rights.

Question \026 2 Fundamental Rights and Articles 48, 48-A and

51-A (g) of Constitution

Articles 48, 48-A and 51-A(g) (relevant clause) of the

Constitution read as under :-

"48. Organisation of agriculture and

animal husbandry.\027The State shall

endeavour to organise agriculture and animal

husbandry on modern and scientific lines and

shall, in particular, take steps for preserving

and improving the breeds, and prohibiting the

slaughter, of cows and calves and other milch

and draught cattle.

48-A. Protection and improvement of

environment and safeguarding of forests

and wild life.\027The State shall endeavour to

protect and improve the environment and to

safeguard the forests and wild life of the

country.

51-A. Fundamental duties.\027It shall be the

duty of every citizen of India\027

(g) to protect and improve the natural

environment including forests, lakes, rivers

and wild life, and to have compassion for

living creatures;"

Articles 48-A and 51-A have been introduced into the body

of the Constitution by the Constitution (Forty-second

Amendment) Act, 1976 with effect from 3.1.1977. These

Articles were not a part of the Constitution when Quareshi-I,

Quraishi-II and Mohd. Faruk's cases were decided by this

Court. Further, Article 48 of the Constitution has also been

assigned a higher weightage and wider expanse by the Supreme

Court post Quareshi-I. Article 48 consists of two parts. The

first part enjoins the State to "endeavour to organize agricultural

and animal husbandry" and that too "on modern and scientific

lines". The emphasis is not only on 'organization' but also on

'modern and scientific lines'. The subject is 'agricultural and

animal husbandry'. India is an agriculture based economy.

According to 2001 census, 72.2% of the population still lives in

villages (See- India Vision 2020, p.99) and survives for its

livelihood on agriculture, animal husbandry and related

occupations. The second part of Article 48 enjoins the State,

de hors the generality of the mandate contained in its first part,

to take steps, in particular, "for preserving and improving the

breeds and prohibiting the slaughter of cows and calves and

other milch and draught cattle".

Article 48-A deals with "environment, forests and wild life".

These three subjects have been dealt with in one Article for the

simple reason that the three are inter-related. Protection and

improvement of environment is necessary for safeguarding

forests and wild life, which in turn protects and improves the

environment. Forests and wild life are clearly inter-related and

inter-dependent. They protect each other.

Cow progeny excreta is scientifically recognized as a

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source of rich organic manure. It enables the farmers avoiding

the use of chemicals and inorganic manure. This helps in

improving the quality of earth and the environment. The

impugned enactment enables the State in its endeavour to

protect and improve the environment within the meaning of

Article 48A of the Constitution.

By enacting clause (g) in Article 51-A and giving it the

status of a fundamental duty, one of the objects sought to be

achieved by the Parliament is to ensure that the spirit and

message of Articles 48 and 48A is honoured as a fundamental

duty of every citizen. The Parliament availed the opportunity

provided by the Constitution (Forty-second Amendment) Act,

1976 to improve the manifestation of objects contained in Article

48 and 48-A. While Article 48-A speaks of "environment", Article

51-A(g) employs the expression "the natural environment" and

includes therein "forests, lakes, rivers and wild life". While Article

48 provides for "cows and calves and other milch and draught

cattle", Article 51-A(g) enjoins it as a fundamental duty of every

citizen "to have compassion for living creatures", which in its

wider fold embraces the category of cattle spoken of specifically

in Article 48.

In AIIMS Students' Union v. AIIMS and Ors., (2002)

1 SCC 428, a three-Judge Bench of this Court made it clear that

fundamental duties, though not enforceable by writ of the court,

yet provide valuable guidance and aid to interpretation and

resolution of constitutional and legal issues. In case of doubt,

peoples' wish as expressed through Article 51-A can serve as a

guide not only for resolving the issue but also for constructing or

moulding the relief to be given by the courts. The fundamental

duties must be given their full meaning as expected by the

enactment of the Forty-second Amendment. The Court further

held that the State is, in a sense, 'all the citizens placed

together' and, therefore, though Article 51A does not expressly

cast any fundamental duty on the State, the fact remains that

the duty of every citizen of India is, collectively speaking, the

duty of the State.

In Mohan Kumar Singhania & Ors. v. Union of India

& Ors., 1992 Supp (1) SCC 594, a governmental decision to

give utmost importance to the training programme of the Indian

Administrative Service selectees was upheld by deriving support

from Article 51-A(j) of the Constitution, holding that the

governmental decision was in consonance with one of the

fundamental duties.

In State of U.P. v. Yamuna Shanker Misra & Ors.,

(1997) 4 SCC 7, this Court interpreted the object of writing the

confidential reports and making entries in the character rolls by

deriving support from Article 51-A(j) which enjoins upon every

citizen the primary duty to constantly endeavour to strive

towards excellence, individually and collectively.

In Rural Litigation and Entitlement Kendra & Ors. v.

State of Uttar Pradesh & Ors., 1986 (Supp) SCC 517, a

complete ban and closing of mining operations carried on in the

Mussoorie hills was held to be sustainable by deriving support

from the fundamental duty as enshrined in Article 51-A(g) of the

Constitution. The Court held that preservation of the

environment and keeping the ecological balance unaffected is a

task which not only Governments but also every citizen must

undertake. It is a social obligation of the State as well as of the

individuals.

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In T.N. Godavarman Thirumalpad v. Union of India

& Ors., (2002) 10 SCC 606, a three-Judge Bench of this Court

read Article 48-A and Article 51-A together as laying down the

foundation for a jurisprudence of environmental protection and

held that "Today, the State and the citizens are under a

fundamental obligation to protect and improve the environment,

including forests, lakes, rivers, wild life and to have compassion

for living creatures".

In State of W.B. & Ors. v. Sujit Kumar Rana, (2004)

4 SCC 129, Articles 48 and 51-A(g) of the Constitution were

read together and this Court expressed that these provisions

have to be kept in mind while interpreting statutory provisions.

It is thus clear that faced with the question of testing the

constitutional validity of any statutory provision or an executive

act, or for testing the reasonableness of any restriction cast by

law on the exercise of any fundamental right by way of

regulation, control or prohibition, the Directive Principles of State

Policy and Fundamental Duties as enshrined in Article 51-A of

the Constitution play a significant role. The decision in

Quareshi-I in which the relevant provisions of the three

impugned legislations was struck down on the singular ground of

lack of reasonability, would have decided otherwise if only Article

48 was assigned its full and correct meaning and due weightage

was given thereto and Articles 48-A and 51-A(g) were available

in the body of the Constitution.

Question \026 3 : Milch and draught cattle, meaning of, in

Article 48

Article 48 employs the expression 'cows and calves and

other milch and draught cattle'. What meaning is to be assigned

to the expression 'milch and draught cattle'?

The question is whether when Article 48 precludes

slaughter of cows and calves by description, the words 'milch

and draught cattle' are described as a like species which should

not be slaughtered or whether such species are protected only

till they are 'milch or draught' and the protection ceases

whenever, they cease to be 'milch or draught', either temporarily

or permanently?

According to their inherent genetic qualities, cattle breeds

are broadly divided into 3 categories (i) Milch breed (ii) Draught

breed, and (iii) Dual purpose breed. Milch breeds include all

cattle breeds which have an inherent potential for milk

production whereas draught breeds have an inherent potential

for draught purposes like pulling, traction of loads etc. The dual

purpose breeds have the potential to perform both the above

functions.

The term draught cattle indicates "the act of moving loads

by drawing or pulling i.e. pull and traction etc. Chambers 20th

Century Dictionary defines 'draught animal' as 'one used for

drawing heavy loads'.

Cows are milch cattle. Calves become draught or milch

cattle on attaining a particular age. Having specifically spoken of

cows and calves, the latter being a cow progeny, the framers of

the Constitution chose not to catalogue the list of other milch and

draught cattle and felt satisfied by employing a general

expression "other milch and draught cattle" which in their opinion

any reader of the Constitution would understand in the context of

the previous words "cows and calves".

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"Milch and draught", the two words have been used as

adjectives describing and determining the quality of the noun

'cattle'. The function of a descriptive or qualitative adjective is to

describe the shape, colour, size, nature or merits or demerits of

the noun which they precede and qualify. In a document like

the Constitution, such an adjective cannot be said to have been

employed by the framers of the Constitution for the purpose of

describing only a passing feature, characteristic or quality of the

cattle. The object of using these two adjectives is to enable

classification of the noun \026 'cattle' which follows. Had it been

intended otherwise, the framers of the Constitution would have

chosen a different expression or setting of words.

No doubt, cow ceases to be 'milch' after attaining a

particular age. Yet, cow has been held to be entitled to

protection against slaughter without regard to the fact that it has

ceased to be 'milch'. This constitutional position is well settled.

So is the case with calves. Calves have been held entitled to

protection against slaughter without regard to their age and

though they are not yet fit to be employed as 'draught cattle'.

Following the same construction of the expression, it can be said

that the words "calves and other milch and draught cattle" have

also been used as a matter of description of a species and not

with regard to age. Thus, 'milch and draught' used as adjectives

simply enable the classification or description of cattle by their

quality, whether they belong to that species. This classification is

with respect to the inherent qualities of the cattle to perform a

particular type of function and is not dependant on their

remaining functional for those purposes by virtue of the age of

the animal. "Milch and draught cattle" is an expression employed

in Article 48 of the Constitution so as to distinguish such cattle

from other cattle which are neither milch nor draught.

Any other meaning assigned to this expression is likely to

result in absurdity. A milch cattle goes through a life cycle during

which it is sometimes milch and sometimes it becomes dry. This

does not mean that as soon as a milch cattle ceases to produce

milk, for a short period as a part of its life cycle, it goes out of the

purview of Article 48, and can be slaughtered. A draught cattle

may lose its utility on account of injury or sickness and may be

rendered useless as a draught cattle during that period. This

would not mean that if a draught cattle ceases to be of utility for

a short period on account of sickness or injury, it is excluded

from the definition of 'draught cattle' and deprived of the benefit

of Article 48.

This reasoning is further strengthened by Article 51A(g) of

the Constitution. The State and every citizen of India must have

compassion for living creatures. Compassion, according to

Oxford Advanced Learners' Dictionary means "a strong feeling of

sympathy for those who are suffering and a desire to help them".

According to Chambers 20th Century Dictionary, compassion is

"fellow \026 feeling, or sorrow for the sufferings of another : pity".

Compassion is suggestive of sentiments, a soft feeling, emotions

arising out of sympathy, pity and kindness. The concept of

compassion for living creatures enshrined in Article 51A (g) is

based on the background of the rich cultural heritage of India \026

the land of Mahatama Gandhi, Vinobha, Mahaveer, Budha, Nanak

and others. No religion or holy book in any part of the world

teaches or encourages cruelty. Indian society is a pluralistic

society. It has unity in diversity. The religions, cultures and

people may be diverse, yet all speak in one voice that cruelty to

any living creature must be curbed and ceased. A cattle which

has served human beings is entitled to compassion in its old age

when it has ceased to be milch or draught and becomes so-called

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'useless'. It will be an act of reprehensible ingratitude to

condemn a cattle in its old age as useless and send it to a

slaughter house taking away the little time from its natural life

that it would have lived, forgetting its service for the major part

of its life, for which it had remained milch or draught. We have

to remember : the weak and meek need more of protection and

compassion.

In our opinion, the expression 'milch or draught cattle' as

employed in Article 48 of the Constitution is a description of a

classification or species of cattle as distinct from cattle which by

their nature are not milch or draught and the said words do not

include milch or draught cattle, which on account of age or

disability, cease to be functional for those purposes either

temporarily or permanently. The said words take colour from the

preceding words "cows or calves". A specie of cattle which is

milch or draught for a number of years during its span of life is to

be included within the said expression. On ceasing to be milch or

draught it cannot be pulled out from the category of "other milch

and draught cattle."

Question - 4 : Statement of Objects and Reasons -

Significance and Role thereof

Reference to the Statement of Objects and Reasons is

permissible for understanding the background, antecedent state

of affairs in relation to the statute, and the evil which the

statute was sought to remedy. (See __ Principles of Statutory

Interpretation by Justice G.P. Singh, 9th Edition, 2004, at

p.218). In State of West Bengal v. Subodh Gopal Bose

and Ors., 1954 SCR 587, the Constitution Bench was testing

the constitutional validity of the legislation impugned therein.

The Statement of Objects and Reasons was used by S.R.

Das, J. for ascertaining the conditions prevalent at that time

which led to the introduction of the Bill and the extent and

urgency of the evil which was sought to be remedied, in

addition to testing the reasonableness of the restrictions

imposed by the impugned provision. In his opinion, it was

indeed very unfortunate that the Statement of Objects and

Reasons was not placed before the High Court which would

have assisted the High Court in arriving at the right conclusion

as to the reasonableness of the restriction imposed. State of

West Bengal v. Union of India, (1964) 1 SCR 371, 431-32

approved the use of Statement of Objects and Reasons for the

purpose of understanding the background and the antecedent

state of affairs leading upto the legislation.

In Quareshi-I itself, which has been very strongly relied

upon by the learned counsel for the respondents before us,

Chief Justice S.R. Das has held:-

"Pronouncements of this Court further

establish, amongst other things, that there is

always a presumption in favour of the

constitutionality of an enactment and that the

burden is upon him, who attacks it, to show

that there has been a clear violation of the

constitutional principles. The courts, it is

accepted, must presume that the legislature

understands and correctly appreciates the

needs of its own people, that its laws are

directed to problems made manifest by

experience and that its discriminations are

based on adequate grounds. It must be borne

in mind that the legislature is free to

recognise degrees of harm and may confine

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its restrictions to those cases where the need

is deemed to be the clearest and finally that in

order to sustain the presumption of

constitutionality the Court may take into

consideration matters of common knowledge,

matters of common report, the history of the

times and may assume every state of facts

which can be conceived existing at the time of

legislation. (Para 15).

The legislature is the best judge of what is

good for the community, by whose suffrage it

comes into existence....". This should be the

proper approach for the court but the ultimate

responsibility for determining the validity of

the law must rest with the court." (Para 21,

also see the several decisions referred to

therein).

(underlining by us)

The facts stated in the Preamble and the Statement of

Objects and Reasons appended to any legislation are evidence of

legislative judgment. They indicate the thought process of the

elected representatives of the people and their cognizance of the

prevalent state of affairs, impelling them to enact the law.

These, therefore, constitute important factors which amongst

others will be taken into consideration by the court in judging

the reasonableness of any restriction imposed on the

Fundamental Rights of the individuals. The Court would begin

with a presumption of reasonability of the restriction, more so

when the facts stated in the Statement of Objects and Reasons

and the Preamble are taken to be correct and they justify the

enactment of law for the purpose sought to be achieved.

In Sardar Inder Singh v. The State of Rajasthan,

1957 SCR 605, a Constitution Bench was testing the validity of

certain provisions of the Ordinance impugned before and it found

it to be repugnant to Article 14 of the Constitution and hence

void. At page 620, Venkatarama Aiyar, J. speaking for the

Constitution Bench referred to the recitals contained in the

Preamble to the Ordinance and the object sought to be achieved

by the Ordinance as flowing therefrom and held "that is a matter

exclusively for the legislature to determine, and the propriety of

that determination is not open to question in courts. We should

add that the petitioners sought to dispute the correctness of the

recitals in the Preamble. This they cannot clearly do".

Question - 5 : Article 19(1)(g) : 'Regulation' or

'Restriction' includes Total Prohibition; Partial Restraint is

not Total Prohibition

Respondents rely on Article 19(1)(g) which deals with the

fundamental right to 'practise any profession or to carry on any

occupation, trade or business'. This right is subject to Article

19(6) which permits reasonable restrictions to be imposed on it

in the interests of the general public.

This raises the question of what is the meaning of the

word 'restriction'.

Three propositions are well settled:- (i) 'restriction'

includes cases of 'prohibition'; (ii) the standard for judging

reasonability of restriction or restriction amounting to

prohibition remains the same, excepting that a total prohibition

must also satisfy the test that a lesser alternative would be

inadequate; and (iii) whether a restriction in effect amounts to

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a total prohibition is a question of fact which shall have to be

determined with regard to the facts and circumstances of each

case, the ambit of the right and the effect of the restriction

upon the exercise of that right. Reference may be made to

Madhya Bharat Cotton Association Ltd. v. Union of India

(UOI) and Anr., AIR 1954 SC 634, Krishna Kumar v.

Municipal Committee of Bhatapara, (Petition No.660 of

1954 decided on 21st February 1957 by Constitution Bench)

(See __ Compilation of Supreme Court Judgments, 1957 Jan-

May page 33, available in Supreme Court Judges Library),

Narendra Kumar and Ors. v. Union of India (UOI) and

Ors., (1960) 2 SCR 375, The State of Maharashtra v.

Himmatbhai Narbheram Rao and Ors., (1969) 2 SCR 392,

Sushila Saw Mill v. State of Orissa & Ors., (1995) 5 SCC

615, Pratap Pharma (Pvt.) Ltd. & Anr. v. Union of India &

Ors., (1997) 5 SCC 87 and Dharam Dutt v. Union of India,

(2004) 1 SCC 712.

In Madhya Bharat Cotton Association Ltd. (supra) a

large section of traders were completely prohibited from

carrying on their normal trade in forward contacts. The

restriction was held to be reasonable as cotton, being a

commodity essential to the life of the community, and therefore

such a total prohibition was held to be permissible. In

Himmatbhai Narbheram Rao and Ors. (supra) trade in hides

was completely prohibited and the owners of dead animals

were required to compulsorily deposit carcasses in an appointed

place without selling it. The constitutionality of such prohibition,

though depriving the owner of his property, was upheld. The

court also held that while striking a balance between rights of

individuals and rights of citizenry as a whole the financial loss

caused to individuals becomes insignificant if it serves the

larger public interest. In Sushila Saw Mill (supra), the

impugned enactment imposed a total ban on saw mill business

or sawing operations within reserved or protected forests. The

ban was held to be justified as it was in public interest to which

the individual interest must yield. Similar view is taken in the

other cases referred to hereinabove.

In Krishna Kumar (supra), the Constitution Bench held

that when the prohibition is only with respect to the exercise of

the right referable only in a particular area of activity or relating

to a particular matter, there was no total prohibition. In that

case, the Constitution Bench was dealing with the case of

Adatiyas operating in a market area. A certain field of activity

was taken away from them, but they were yet allowed to

function as Adatiyas. It was held that this amounts to a

restriction on the exercise of writ petitioners' occupation as an

Adatiya or a seller of grain but does not amount to a total ban.

In the present case, we find the issue relates to a total

prohibition imposed on the slaughter of cow and her progeny.

The ban is total with regard to the slaughter of one particular

class of cattle. The ban is not on the total activity of butchers

(kasais); they are left free to slaughter cattle other than those

specified in the Act. It is not that the writ petitioner-respondents

survive only by slaughtering cow progeny. They can slaughter

animals other than cow progeny and carry on their business

activity. In so far as trade in hides, skins and other allied things

(which are derived from the body of dead animal) are concerned,

it is not necessary that the animal must be slaughtered to avail

these things. The animal, whose slaughter has been prohibited,

would die a natural death even otherwise and in that case their

hides, skins and other parts of body would be available for trade

and industrial activity based thereon.

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We hold that though it is permissible to place a total ban

amounting to prohibition on any profession, occupation, trade or

business subject to satisfying the test of being reasonable in the

interest of the general public, yet, in the present case banning

slaughter of cow progeny is not a prohibition but only a

restriction.

Question - 6 : Slaughter of cow progeny, if in public

interest

As we have already indicated, the opinion formed by the

Constitution Bench of this Court in Quareshi-I is that the

restriction amounting to total prohibition on slaughter of bulls and

bullocks was unreasonable and was not in public interest. We,

therefore, proceed to examine the evidence available on record

which would enable us to answer questions with regard to the

'reasonability' of the imposed restriction qua 'public interest'.

The facts contained in the Preamble and the Statement of

Objects and Reasons in the impugned enactment highlight the

following facts:-

(i) it is established that cow and her progeny sustain

the health of the nation;

(ii) the working bullocks are indispensable for our

agriculture for they supply power more than any

other animal (the activities for which the bullocks

are usefully employed are also set out);

(iii) the dung of the animal is cheaper than the

artificial manures and extremely useful of

production of biogas;

(iv) it is established that the backbone of Indian

agriculture is the cow and her progeny and they

have on their back the whole structure of the

Indian agriculture and its economic system;

(v) the economy of the State of Gujarat is still

predominantly agricultural. In the agricultural

sector use of animals for milch, draught, breeding

or agricultural purposes has great importance.

Preservation and protection of agricultural animals

like bulls and bullocks needs emphasis. With the

growing adoption of non-conventional energy

sources like biogas plants, even waste material

have come to assume considerable value. After

the cattle cease to breed or are too old to work,

they still continue to give dung for fuel, manure

and biogas and, therefore, they cannot be said to

be useless.

Apart from the fact that we have to assume the above-

stated facts as to be correct, there is also voluminous evidence

available on record to support the above said facts. We proceed

to notice few such documents.

Affidavits

Shri J.S. Parikh, Deputy Secretary, Agriculture Cooperative

and Rural Development, Department, State of Gujarat, filed three

affidavits in the High Court of Gujarat in Special Civil Application

No. 9991 of 1993. The first affidavit was filed on 20th October,

1993, wherein the following facts are discernible and mentioned

as under:

(i) With the improved scientific animal

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husbandry services in the State, the

average longivity of animals has

considerably increased. In the year

1960, there were only 456 veterinary

dispensaries and first aid veterinary

centers etc, whereas in the year 1993,

there are 946 veterinary dispensaries

and first aid veterinary centers etc.

There were no mobile veterinary

dispensaries in 1960 while there are 31

mobile veterinary dispensaries in the

State in 1993. In addition, there are

around 467 centres for intensive cattle

development where besides first aid

veterinary treatment, other animal

husbandry inputs of breeding, food or

development etc. are also provided. In

the year 1960, five lakh cattles were

vaccinated whereas in the year 1992-93

around 200 lakh animals are vaccinated

to provide life saving protection against

various fatal diseases. There were no

cattle food compounding units preparing

cattle food in the year 1960, while in the

year 1993 there are ten cattle food

factory producing 1545 MT of cattle food

per day. As a result of improved animal

husbandry services, highly contagious

and fatal disease of Rinder Pest is

controlled in the state and that the

deadly disease has not appeared in the

last three years.

(ii) Because of various scientific technologies

namely, proper cattle feeding, better

medical and animal husbandry services,

the longevity of the cattle in the State

has considerably increased.

(iii) The population of bullock is 27.59 lakhs.

Over and above agricultural work,

bullocks are useful for other purposes

also. They produce dung which is the

best organic measure and is cheaper

than chemical manure. It is also useful

for production of bio-gas.

(iv) It is estimated that daily production of

manure by bullocks is about 27,300

tonnes and bio-gas production daily is

about 13.60 cubic metres. It is also

estimated that the production of bio-gas

from bullock dung fulfil the daily

requirement of 54.78 lakh persons of the

State if whole dung production is utilized.

At present, 1,91,467 bio-gas plants are

in function in the State and about 3-4

lakhs persons are using bio-gas in the

State produced by these plants.

(v) The population of farmers in the State is

31.45 lakhs. Out of which 7.37 lakhs are

small farmers, 8 lakhs are marginal

farmers, 3.05 lakhs are agricultural

labourers and 13.03 lakhs are other

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farmers. The total land of Gujarat State

is 196 lakh hectares and land under

cultivation is 104.5 lakh hectares. There

are 47,800 tractors by which 19.12 lakh

hectares land is cultivated and the

remaining 85.38 lakh hectares land is

cultivated by using bullocks. It may be

mentioned here that all the agricultural

operations are not done using tractors.

The bullocks are required for some of

agricultural operations along with

tractors. There are about 7,28,300

bullock carts and there are about

18,35,000 ploughs run by bullocks in the

State.

(vi) The figure of slaughter of animals done

in 38 recognised slaughter houses are as

under:

Year

Bullock/Bull

Buffalo

Sheep

Goat

1990-91

9,558

41,088

1,82,269

2,22,507

1991-92

9,751

41,882

2,11,245

2,20,518

1992-93

8,324

40,034

1,13,868

1,72,791

The above figures show that the

slaughter of bullocks above the age of 16

years is done in the State in very small

number. The animals other than

bullocks are slaughtered in large

number. Hence, the ban on the

slaughter of cow and cow progeny will

not affect the business of meat

production significantly. Therefore, the

persons engaged in this profession will

not be affected adversely.

Thereafter two further affidavits were filed by Shri J.S.

Parikh, abovesaid, on 17th March, 1998, wherein the following

facts are mentioned :

(i) there are about 31.45 lakhs land holders in

Gujarat. The detailed classifications of the

land holders are as under:-

Sl.

No.

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Details of land

holders

No. of land

holders

1.

01 hectare

8.00 lakhs

2.

1-2 hectares

7.37 lakhs

3.

2 and above

16.08 lakhs

(ii) almost 50 per cent of the land holdings are

less than 2 hectares; tractor keeping is not

affordable to small farmers. For economic

maintenance of tractors, one should have

large holding of land. Such land holders

are only around 10 per cent of the total

land holders. Hence the farmers with

small land holdings require bullocks as

motive power for their agricultural

operations and transport;

(iii) the total cultivable land area of Gujarat

State is about 124 lakh hectares.

Considering that a pair of bullocks is

required for ploughing 10 acres of land the

bullock requirement for ploughing purpose

alone is 5.481 million and approximately

equal number is required for carting.

According to the livestock census 1988 of

Gujarat State, the availability of

indigenous bullocks is around 2.84

millions. Thus the availability of bullocks

as a whole on percentage of requirement

works out to be about 25 per cent. In this

situation, the State has to preserve each

single bull and bullock that is available to

it;

(iv) it is estimated that bull or bullock at every

stage of life supplies 3,500 kgs of dung

and 2,000 litres of urine and whereas this

quantity of dung can supply 5,000 cubic

feet of biogas, 80 M.T. of organic fertilizer,

the urine can supply 2,000 litres of

pesticides and the use of these products in

farming increases the yield very

substantially. The value of above

contribution can be placed at Rs.20,000/-

per year to the owner;

(v) since production of various agricultural

crops removes plant nutrients from the

soil, they must be replenished with

manures to maintain and improve fertility

of soil. There are two types of manures

which are (i) Organic manures, i.e. natural

manures and (ii) Artificial or chemical

fertilizer. Amongst the organic manures,

farm yard manures is the most valuable

organic manure applied to soil. It is the

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most commonly used organic manure in

India. It consists of a mixture of cattle

dung, the bedding used in the stable. Its

crop increasing value has been recognized

from time immemorial (Ref. Hand Book of

Agriculture, 1987 by ICAR page 214);

(vi) the importance of organic manure as a

source of humus and plant nutrients to

increase the fertility level of soils has been

well recognised. The organic matter

content of cultivated soils of the tropics

and sub-tropics is comparatively low due

to high temperature and intense microbial

activity. The crops remove annually large

quantity of plant nutrients from soil.

Moreover, Indian soils are poor in organic

matter and in major plant nutrients.

Therefore, soil humus has to be

replenished through periodic addition of

organic manure for maintaining soil

productivity;

(vii) animals are the source of free availability

of farmyard manure, which has all the

three elements, i.e. Nitrogen, Phosphoric

acid and Potash, needed in fertilizer and at

the same time which preserve and enrich

the fertility of the soil. In paucity of dung

availability, the farmers have to depend

upon chemical fertilizers. Investment in

chemical fertilizers imposes heavy burden

upon the economy. If there is availability

of alternate source of organic manure from

animals, it is required to be promoted;

(viii) the recent scenario of ultramodern

technology of super ovulation, embryo

transfer and cloning technique will be of

very much use to propagate further even

from the incapable or even old animals

which are not capable of working or

reproducing. These animals on a large

scale can be used for research

programmes as well as for production of

non-conventional energy sources such as

biogas and natural fertilizers. At present,

there are 19,362 biogas plants installed in

the State during 1995-97. On an average,

each adult cattle produces 4.00 kg. of

dung per day. Out of the total cattle

strength of (1992 Census) 67,85,865, the

estimated dung produced is 99,07,363

tonnes;

(ix) India has 74% of rural population, and in

Gujarat out of 4.13 crores of human

population, there are 1.40 crores of

workers which comprises of 47,04,000

farmers and 32,31,000 workers are

workers related to livestock and forestry.

In Gujarat, there are 9.24 lakhs marginal

farmers and 9.15 lakhs of small farmers,

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according to the 1991-92 census. Animals

are reared in few numbers per family and

the feed is obtained from the

supplementary crop on fodder/agricultural

by-products or from grazing in the gaucher

land. In Gujarat 8.48 lakh hectares of land

is available as permanent pasture and

grazing land. An individual cattle-owner

does not consider one or two bullocks as

an extra burden for his family, even when

it is incapable of work or production.

Sometimes the unproductive animals are

sent to Panjarapoles and Gosadans. In

Gujarat, there are 335 Gaushalas and 174

Panjarapoles which are run by non-

governmental oranizations and trusts.

Formerly farmers mostly kept few animals

and, in fact, they are treated as part of

their family and maintained till death. It

cannot be treated to be a liability upon

them or burden on the economy;

(x) butchers are doing their business since

generations, but they are not doing only

the slaughter of cow class of animals.

They slaughter and trade the meat of other

animals like buffaloes, sheep, goats, pig

and even poultry. In Gujarat there are

only 38 registered slaughter houses

functioning under various

Municipalities/Nagar Panchayats. Beef

(meat of cattle) contributes only 1.3% of

the total meat groups. Proportion of

demand for beef is less in the context of

demand for pig, mutton and poultry meat.

Slaughtering of bulls and bullocks for the

period between 1990-91 and 1993-94 was

on an average 9,000;

(xi) number of bullocks have decreased in a

decade from 30,70,339 to 28,93,227 as in

1992. A statement showing the amount of

dung production for the year 1983-84 to

1996-97 and a statement showing the

nature of economy of the State of Gujarat

is annexed. The number of bullocks

slaughtered per day is negligible compared

to other animals, and the business and/or

trade of slaughtering bullocks would not

affect the business of butchers. By

prohibiting slaughter of bullocks the

economy is likely to be benefited.

The three affidavits are supported by documents,

statements or tables setting out statistics which we have no

reason to disbelieve. Neither the High Court has expressed any

doubt on the contents of the affidavit nor has the veracity of the

affidavits and correctness of the facts stated therein been

challenged by the learned counsel for the respondents before us.

In this Court Shri D.P. Amin, Joint Director of Animal

Husbandry, Gujarat State, has filed an affidavit. The salient facts

stated therein are set out hereunder:

(i) The details of various categories of animals

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slaughtered since 1997-1998 shows that

slaughter of various categories of animals in

regulated slaughter houses of Gujarat State

has shown a tremendous decline. During the

year way back in 1982-83 to 1996-97 the

average number of animals slaughtered in

regulated slaughter houses was 4,39,141. As

against that (previous figure) average number

of slaughter of animals in recent 8 years i.e.

from 1997-98 to 2004-05 has come down to

only 2,88,084. This clearly indicates that there

has been a vast change in the meat eating

style of people of Gujarat State. It is because

of the awareness created among the public due

to the threats of dangerous diseases like

Bovine Spongiform Encephalopathy commonly

known as "Mad Cow disease" B.S.E. which is a

fatal disease of cattle meat origin not reported

in India. Even at global level people have

stopped eating the beef which is known as

meat of cattle class animals. This has even

affected the trade of meat particularly beef in

the America & European countries since last 15

years. Therefore, there is international ban on

export-import of beef from England, America &

European countries;

(ii) there is reduction in slaughter of bulls &

bullocks above the age of 16 years reported in

the regulated slaughter houses of Gujarat

State. As reported in the years from 1982-83

to 1996-97, the slaughter of bulls & bullocks

above the age of 16 years was only 2.48% of

the total animals of different categories

slaughtered in the State. This percentage has

gone down to the level of only 1.10% during

last 8 years i.e. 1997-98 to 2004-05 which is

very less significant to cause or affect the

business of butcher communities;

(iii) India is predominantly agrarian society with

nearly >th of her population living in seven lakh

rural hamlets and villages, possesses small

fragmentary holding (54.6% below 1 hectare

18% with 1-2 hectares). Draft/pack animal

contributes more than 5 crores horse power

(H.P.) or 33,000 megawatt electric power and

shares for/in 68% of agricultural operations,

transport & other draft operations. In addition

to draft power, 100 million tonnes dung per

year improves the soil health and also used as

raw material for biogas plant;

(iv) the cattle population in Gujarat in relation to

human population has declined from 315 per

1000 humans in 1961 to 146 per 1,000

humans in 2001 indicating decline in real

terms;

(v) in Gujarat 3.28 million draft animal (bullocks

85%) have multifaceted utilities viz.

agricultural operations like ploughing, sowing,

hoeing, planking, carting, hauling, water lifting,

grinding, etc.;

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Gujarat State has a very rich cattle

population of Kankrej & Gir breed, of which

Kankrej bullocks are very well known for its

draft power called "Savai Chal";

(vi) considering the utility of aged bullocks above

16 years as draft power a detailed combined

study was carried out by Department of Animal

Husbandry and Gujarat Agricultural University

(Veterinary Colleges S.K. Nagar & Anand). The

experiments were carried out within the age

group of 16 to 25 years. The study covered

different age groups of 156 (78 pairs) bullocks

above the age of 16 years. The aged bullocks

i.e. above 16 years age generated 0.68 horse

power draft output per bullock while the prime

bullock generated 0.83 horse power per

bullock during carting/hauling draft work in a

summer with about more than 42?C temp. The

study proves that 93% of aged bullock above

16 years of age are still useful to farmers to

perform light & medium draft works. The

detailed report is on record;

(vii) by the end of year 2004-05 under the Dept. of

Animal Husbandry, there are 14 Veterinary

Polyclinics, 515 Vety. Dispensaries, 552 First

Aid Vety. Centres and 795 Intensive Cattle

Development Project Sub Centers. In all, 1876

institutions were made functional to cater

various health care activities to livestock

population of State of Gujarat. About two

crores of livestock and poultry were vaccinated

against various diseases. As a result, the total

reported out break of infectious diseases was

brought down to around 106 as against 222 in

1992-1993. This shows that State has created

a healthy livestock and specifically the

longevity of animals has been increased. This

has also resulted into the increased milk

production of the state, draft power and source

of non-conventional energy in terms of

increased quantity of dung and urine;

(viii) the value of dung is much more than even the

famous "Kohinoor" diamond. An old bullock

gives 5 tonnes of dung and 343 pounds of

urine in a year which can help in the

manufacture of 20 carts load of composed

manure. This would be sufficient for manure

need of 4 acres of land for crop production.

The right to life is a fundamental right and it

can be basically protected only with proper

food and feeding and cheap and nutritious food

grains required for feeding can be grown with

the help of dung. Thus the most fundamental

thing to the fundamental right of living for the

human being is bovine dung. (Ref. Report of

National Commission on Cattle, Vol.III, Page

1063-1064);

(ix) the dung cake as well as meat of bullock are

both commercial commodities. If one bullock

is slaughtered for its meat (Slaughtering

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activity) can sustain the butchers trade for only

a day. For the next day's trade another

bullock is to be slaughtered. But if the bullock

is not slaughtered, about 5000-6000 dung

cakes can be made out of its dung per year,

and by the sale of such dung cake one person

can be sustained for the whole year. If a

bullock survives even for five years after

becoming otherwise useless it can provide

employment to a person for five years whereas

to a butcher, bullock can provide employment

only for a day or two.

(x) Even utility of urine has a great role in the field

of pharmaceuticals as well as in the

manufacturing of pesticides. The Goseva Ayog,

Govt. of Gujarat had commissioned study for

"Testing insecticides properties of cow urine

against various insect pests". The study was

carried out by Dr. G.M. Patel, Principal

Investigator, Department of Entomology, C.P.

College of Agriculture, S.D. Agricultural

University, Sardar Krishi Nagar, Gujarat. The

study has established that insecticides

formulations prepared using cow urine

emerged as the most reliable treatment for

their effectiveness against sucking pest of

cotton. The conclusion of study is dung &

urine of even aged bullocks are also useful and

have proved major effect of role in the Indian

economy;

(xi) it is stated that availability of fodder is not a

problem in the State or anywhere. During

drought period deficit is compensated by

grass-bank, silo and purchase of fodder from

other States as last resources. The sugarcane

tops, leaves of banana, baggase, wheat bhoosa

and industrial byproducts etc. are available in

plenty. A copy of the letter dated 8.3.2004

indicting sufficient fodder for the year 2004,

addressed to Deputy Commissioner, Animal

Husbandry Government of India is annexed.

Report on draughtability of bullocks above 16 years of age

On 20th June, 2001 the State of Gujarat filed I.A. No.

2/2001 in Civil Appeal Nos. 4937-4940 of 1998, duly supported

by an affidavit sworn by Shri D.U. Parmar, Deputy Secretary

(Animal Husbandry) Agriculture and Cooperation Department,

Government of Gujarat, annexing therewith a report on

draughtability of aged bullocks above 16 years of age under field

conditions. The study was conducted by the Gujarat Agricultural

University Veterinary College, Anand and the Department of

Animal Husbandry, Gujarat State, Ahmedabad. The study was

planned with two objectives:

(i) To study the draughtability and utility of aged

bullocks above 16 years of age; and

(ii) To compare the draughtability of aged bullocks with

bullocks of prime age.

Empirical research was carried out under field conditions in

North Gujarat Region (described as Zone-I) and Saurashtra

region (described as Zone-II). The average age of aged bullocks

under the study was 18.75 years. The number of bullocks/pair

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used under the study were sufficient to draw sound conclusions

from the study. The gist of the findings arrived at, is summed up

as under:

1. Farmer's persuasion

The aged bullocks were utilized for different purposes like

agricultural operations (ploughing, planking, harrowing, hoeing,

threshing) and transport-hauling of agricultural produce, feeds

and fodders of animals, drinking water, construction materials

(bricks, stones, sand grits etc.) and for sugarcane crushing/

khandsari making. On an average the bullocks were yoked for 3

to 6 hours per working day and 100 to 150 working days per

year. Under Indian conditions the reported values for working

days per year ranges from 50 to 100 bullock paired days by

small, medium and large farmers. Thus, the agricultural

operations-draft output are still being taken up from the aged

bullocks by the farmers. The farmers feed concentrates, green

fodders and dry fodders to these aged bullocks and maintain the

health of these animals considering them an important segment

of their families. Farmers love their bullocks.

2. Age, body measurement and body weight

The biometric and body weight of aged bullocks were

within the normal range.

3. Horsepower generation/Work output

The aged bullocks on an average generated 0.68

hp/bullock, i.e.18.1% less than the prime/young bullocks (0.83

hp/bullock). The aged bullocks walked comfortably with an

average stride length of 1.43 meter and at the average speed of

4.49 km/hr. showing little less than young bullocks. However,

these values were normal for the aged bullocks performing

light/medium work of carting. These values were slightly lower

than those observed in case of prime or young bullocks. This

clearly indicates that the aged bullocks above 16 years of age

proved their work efficiency for both light as well as medium

work in spite of the age bar. In addition to this, the experiment

was conducted during the months of May-June, 2000 \026 a

stressful summer season. Therefore, these bullocks could

definitely generate more work output during winter, being a

comfortable season. The aged bullock above 16 years of age

performed satisfactorily and disproved that they are unfit for any

type of draft output i.e. either agricultural operations, carting or

other works.

4. Physiological responses and haemoglobin

concentration

These aged bullocks are fit to work for 6 hours (morning 3

hours + afternoon 3 hrs.) per day. Average Hb content (g%) at

the start of work was observed to be 10.72 g% and after 3 hours

of work 11.14g%, indicating the healthy state of bullocks. The

increment in the haemoglobin content after 3 to 4 hours of work

was also within the normal range and in accordance with prime

bullocks under study as well as the reported values for working

bullocks.

5. Distress symptoms

In the initial one hour of work, 6 bullocks (3.8%) showed

panting, while 32.7% after one hour of work. After 2 hour of

work, 28.2% of bullocks exhibited salivation. Only 6.4% of the

bullocks sat down/lied down and were reluctant to work after

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completing 2 hours of the work. The results are indicative of the

fact that majority of the aged bullocks (93%) worked normally.

Summer being a stressful season, the aged bullocks exhibited

distress symptoms earlier than the prime/young bullocks.

However, they maintained their physiological responses within

normal range and generated satisfactory draft power.

The study report submitted its conclusions as under:

"1. The aged bullocks above 16 years of age generated

0.68 horse power draft output per bullock while the

prime bullocks generated 0.83 horsepower per bullock

during carting-hauling draft work.

2. The aged bullocks worked satisfactorily for the light

work for continuous 4 hours during morning session

and total 6 hours per day (morning 3 hours and

afternoon 3 hours) for medium work.

3. The physiological responses (Rectal temperature,

Respiration rate and Pulse rate) and haemoglobin of

aged bullocks were within the normal range and also

maintained the incremental range during work.

However, they exhibited the distress symptoms earlier

as compared to prime bullocks.

4. Seven percent aged bullocks under study were

reluctant to work and/or lied down after 2 hours of

work.

5. The aged bullocks were utilized by the farmers to

perform agricultural operations (ploughing, sowing,

harrowing, planking, threshing), transport-hauling of

agricultural product, feeds and fodders, construction

materials and drinking water.

Finally, it proves that majority (93%) of the aged bullocks

above 16 years of age are still useful to farmers to perform light

and medium draft works."

With the report, the study group annexed

album/photographs and cassettes prepared while carrying out the

study. Several tables and statements setting out relevant

statistics formed part of the report. A list of 16 authentic

references originating from eminent authors on the subject under

study which were referred to by the study group was appended to

the report.

This application (I.A. No. 2/2001) was allowed and the

affidavit taken on record vide order dated 20.8.2001 passed by

this Court. No response has been filed by any of the respondents

controverting the facts stated in the affidavit and the

accompanying report. We have no reason to doubt the

correctness of the facts stated therein; more so, when it is

supported by the affidavit of a responsible officer of the State

Government.

Tenth Five Year Plan (2002-2007) Documents

In the report of the Working Group on Animal Husbandry

and Dairy Farming, the Tenth Five Year Plan (2002-2007) dealing

with 'the draught breed relevance and improvement', published

by the Government of India, Planning Commission in January,

2001, facts are stated in great detail pointing out the relevance

of draught breeds and setting out options for improvement from

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the point of view of the Indian Economy. We extract and

reproduce a few of the facts therefrom:

"3.6.12 Relevance of draught breeds

and options for improvement

3.6.12.1 In India 83.4 million holdings

(78%) are less than 2 ha. where tractors and

tillers are uneconomical and the use of animal

power becomes inevitable since tractors and

tillers are viable only for holdings above 5 ha..

In slushy and water logged fields tractor tiller

is not suitable. In narrow terraced fields and

hilly regions tractors cannot function. Animal

drawn vehicle are suitable for rural areas under

certain circumstances/conditions viz., uneven

terrain, small loads (less than 3 tons), short

distances and where time of loading and

unloading is more than travel time or time is

not a critical factor and number of collection

points/distribution points are large as in case

of milk, vegetable, water, oil, etc. In India the

energy for ploughing two-thirds of the

cultivated area comes from animal power and

animal drawn vehicles haul two-thirds of rural

transport.

3.6.12.2 The role of cattle as the main

source of motive power for agriculture and

certain allied operations would continue to

remain as important as meeting the

requirement of milk in the country. It has been

estimated that about 80 million bullocks will be

needed. There is, therefore, a need for

improving the working efficiency of the

bullocks through improved breeding and

feeding practices.

3.6.13 Development of Draught

Breeds

Focused attention to draft breed will not

be possible unless a new scheme is formulated

for this purpose.

3.6.13.2 In tracts where there are

specialized draught breeds of cattle like Nagori

in Rajasthan, Amritmahal and Hallikar in

Karnataka, Khillar in Maharashtra etc.,

selection for improvement in draughtability

should be undertaken on a large scale as the

cattle breeders in these areas derive a large

income by sale of good quality bullocks.

Planned efforts should be made for improving

the draught capacity and promoting greater

uniformity in the type of the cattle population

in the breeding tracts. There is need to

intensify investigations to develop yardsticks

for objective assessment of draught capacity of

bullocks.

3.6.14 Supplementation of fund-flow

for cattle and Buffalo development.

3.6.14.2 A number of organizations like

NABARD, NDDB, NCDC etc. are also likely to

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be interested in funding activities relating to

cattle and buffalo development in the form of

term as loan provided timely return is ensured.

Time has now come for exploring such avenues

seriously at least on pilot basis in selected

areas, where better prospects of recovery of

cost of breeding inputs and services exists."

Recognising the fact that the cow and its progeny has a

significant role to play in the agricultural and rural economy of

the country, the Government felt that it was necessary to

formulate measures for their development in all possible ways.

In view of the persistent demands for action to be taken to

prevent their slaughter, the Government also felt and expressed

the need to review the relevant laws of the land relating to

protection, preservation, development and well-being of cattle

and to take measures to secure the cattle wealth of India.

Yet another document to which we are inclined to make a

reference is Mid-Term Appraisal of 10th Five Year Plan (2002-

2007) released in June, 2005 by the Government of India

(Planning Commission). Vide para 5.80 the report recommends

that efforts should be made to increase the growth of bio-

pesticides production from 2.5 to 5 per cent over the next five

years.

According to the report, Organic farming is a way of farming

which excludes the use of chemical fertilizers, insecticides, etc.

and is primarily based on the principles of use of natural organic

inputs and biological plant protection measures.

Properly managed organic farming reduces or eliminates

water pollution and helps conserve water and soil on the farm

and thereby enhances sustainability and agro-biodiversity.

Organic farming has become popular in many western

countries. There are two major driving forces behind this

phenomenon; growing global market for organic agricultural

produce due to increased health consciousness; and the

premium price of organic produce fetched by the producers.

India has a comparative advantage over many other

countries.

The Appraisal Report acknowledged the commencement of

the biogas programme in India since 1981-82. Some 35,24,000

household plants have been installed against an assessed

potential of 120,00,000 units.

Biogas has traditionally been produced in India from cow

dung (gobar gas). However, dung is not adequately and

equitably available in villages. Technologies have now been

developed for using tree-based organic substrates such as leaf

litter, seed starch, seed cakes, vegetable wastes, kitchen wastes

etc. for production of biogas. Besides cooking, biogas can also

be used to produce electricity in dual fired diesel engines or in

hundred per cent gas engines. Ministry of Non-conventional

Energy Sources (MNES) is taking initiatives to integrate biogas

programme in its Village Energy Security Program (VESP).

Production of pesticides and biogas depend on the

availability of cow-dung.

National Commission on Cattle

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Vide its Resolution dated 2nd August, 2001, the

Government of India established a National Commission on

Cattle, comprising of 17 members.

The Commission was given the follow terms of reference:-

a. To review the relevant laws of the land(Centre

as well as States) which relate to protection,

preservation, development and well being of

cow and its progeny and suggest measures for

their effective implementation,

b. To study the existing provisions for the

maintenance of Goshalas, Gosadans,

Pinjarapoles and other organisations working

for protection and development of cattle and

suggest measures for making them

economically viable,

c. To study the contribution of cattle towards the

Indian economy and to suggest ways and

means of organising scientific research for

maximum utilisation of cattle products and

draught animal power in the field of nutrition

and health, agriculture and energy, and to

submit a comprehensive scheme in this regard

to the Central Government,

d. To review and suggest measures to improve

the availability of feed and fodder to support

the cattle population.

The Committee after extensive research has given a list of

recommendations. A few of them relevant in the present case

are:-

" 1.The Prohibition for slaughter of cow and

its progeny, which would include bull,

bullocks, etc., should be included in

Fundamental Rights or as a Constitutional

Mandate anywhere else, as an Article of

Constitution. It should not be kept only in the

Directive Principles or/Fundamental duties as

neither of these are enforceable by the

courts.

2. The amendment of the Constitution should

also be made for empowering the Parliament

to make a Central Law for the prohibition of

slaughter of cow and its progeny and further

for prohibition of their transport from one

State to another.

3. The Parliament should then make a Central

law, applicable to all States, prohibiting

slaughter of cow and its progeny. Violation of

the Law should be made a non-bailable and

cognizable offence.

xxx xxx xxx

14. The use and production of chemical

fertilizers and chemical pesticides should be

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discouraged, subsidies on these items should

be reduced or abolished altogether. The use

of organic manure should be subsidized and

promoted."

Thus the Commission is of the view that there should be a

complete prohibition on slaughter of cow progeny.

Importance of Bovine Dung

The Report of the National Commission on Cattle, ibid,

refers to an authority namely, Shri Vasu in several sub-

paragraphs of para 12. Shri Vasu has highlighted the unique

and essential role of bovine and bovine dung in our economy and

has pleaded that slaughter of our precious animals should be

stopped. He has in extenso dealt with several uses of dung and

its significance from the point of view of Indian society. Dung is

a cheap and harmless fertilizer in absence whereof the farmers

are forced to use costly and harmful chemical fertilizers. Dung

also has medicinal value in Ayurved, the Indian system of

medicines.

Continuing Utility of Cattle : Even if the utility argument of

the Quareshi's judgment is accepted, it cannot be accepted that

bulls and bullocks become useless after the age of 16. It has to

be said that bulls and bullocks are not useless to the society

because till the end of their lives they yield excreta in the form

of urine and dung which are both extremely useful for production

of bio-gas and manure. Even after their death, they supply hide

and other accessories. Therefore, to call them 'useless' is totally

devoid of reality. If the expenditure on their maintenance is

compared to the return which they give, at the most, it can be

said that they become 'less useful'.(Report of the National

Commission on Cattle, July 2002, Volume I, p. 279.)

The Report of the National Commission on Cattle has

analyzed the economic viability of cows after they stopped

yielding milk and it also came to the conclusion that it shall not

be correct to call such cows 'useless cattle' as they still continue

to have a great deal of utility. Similar is the case with other cattle

as well.

"37. Economic aspects:

37.1 The cows are slaughtered in India

because the owner of the cow finds it difficult

to maintain her after she stops yielding milk.

This is because it is generally believed that

milk is the only commodity obtained from

cows, which is useful and can be sold in

exchange of cash. This notion is totally

wrong. Cow yields products other than milk,

which are valuable and saleable. Thus the

dung as well as the urine of cow can be put to

use by owner himself or sold to persons or

organizations to process them. The

Commission noticed that there are a good

number of organizations (goshalas) which

keep the cows rescued while being carried to

slaughter houses. Very few of such cows are

milk yielding. Such organizations use the

urine and dung produced by these cows to

prepare Vermi-compost or any other form of

bio manure and urine for preparing pest

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repellents. The money collected by the sale of

such products is normally sufficient to allow

maintenance of the cows. In some cases, the

urine and dung is used to prepare the medical

formulations also. The organizations, which

are engaged in such activities, are making

profits also.

37.2 Commission examined the balance sheet

of some such organizations. The expenditure

and income of one such organization is

displayed here. In order to make accounts

simple the amounts are calculated as average

per cow per day.

It is obvious that expenditure per cow is

Rs. 15-25 cow/day.

While the income from sale is Rs. 25-35

cow-day.

37.3 These averages make it clear that the

belief that cows which do not yield milk are

unprofitable and burden for the owner is

totally false. In fact it can be said that

products of cow are sufficient to maintain

them even without milk. The milk in such

cases is only a by\026product.

37.4 It is obvious that all cow owners do not

engage in productions of fertilizers or insect

repellents. It can also be understood that

such activity may not be feasible for owners

of a single or a few cows. In such cases, the

cow's urine and dung may be supplied to such

organizations, which utilize these materials

for producing finished products required for

agricultural or medicinal purpose. Commission

has noticed that some organizations which

are engaged in production of agricultural and

medical products from cow dung and urine do

purchase raw materials from nearby cow

owner at a price which is sufficient to

maintain the cow." (Report of National

Commission on Cattle, July 2002, Vol. II,

pp.68-69)

A host of other documents have been filed originating from

different sources such as Governmental or Semi-governmental,

NGOs, individuals or group of individuals, who have carried out

researches and concluded that world-over there is an awareness

in favour of organic farming for which cattle are indispensable.

However, we do not propose to refer to these documents as it

would only add to the length of the judgment. We have, apart

from the affidavits, mainly referred to the reports published by

the Government of India, whose veracity cannot be doubted.

We do not find any material brought on record on behalf

of the respondents which could rebut, much less successfully,

the correctness of the deductions flowing from the documented

facts and statistics stated hereinabove.

The utility of cow cannot be doubted at all. A total ban on

cow slaughter has been upheld even in Quareshi-I. The

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controversy in the present case is confined to cow progeny. The

important role that cow and her progeny play in the Indian

Economy was acknowledged in Quareshi-I in the following

words:

"The discussion in the foregoing

paragraphs clearly establishes the usefulness

of the cow and her progeny. They sustain the

health of the nation by giving them the life

giving milk which is so essential an item in a

scientifically balanced diet. The working

bullocks are indispensable for our agriculture,

for they supply power more than any other

animal. Good breeding bulls are necessary to

improve the breed so that the quality and

stamina of the future cows and working

bullocks may increase and the production of

food and milk may improve and be in

abundance. The dung of the animal is cheaper

than the artificial manures and is extremely

useful. In short, the back bone of Indian

agriculture is in a manner of speaking the cow

and her progeny. Indeed Lord Linlithgow has

truly said \027 "The cow and the working bullock

have on their patient back the whole structure

of Indian agriculture." (Report on the

Marketing of Cattle in India, p. 20). If,

therefore, we are to attain sufficiency in the

production of food, if we are to maintain the

nation's health, the efficiency and breed of

our cattle population must be considerably

improved. To attain the above objectives, we

must devote greater attention to the

preservation, protection and improvement of

the stock and organise our agriculture and

animal husbandry on modern and scientific

lines."

On the basis of the available material, we are fully satisfied

to hold that the ban on slaughter of cow progeny as imposed by

the impugned enactment is in the interests of the general public

within the meaning of clause (6) of Article 19 of the Constitution.

Part - III

Stare Decisis

We have dealt with all the submissions and counter

submissions made on behalf of the parties. What remains to be

dealt with is the plea, forcefully urged, on behalf of the

respondents that this Court should have regard to the principle

of stare decisis and should not upturn the view taken in

Quareshi-I which has held field ever since 1958 and has been

followed in subsequent decisions, which we have already dealt

with hereinabove.

Stare decisis is a Latin phrase which means "to stand by

decided cases; to uphold precedents; to maintain former

adjudication". This principle is expressed in the maxim "stare

decisis et non quieta movere" which means to stand by decisions

and not to disturb what is settled. This was aptly put by Lord

Coke in his classic English version as "Those things which have

been so often adjudged ought to rest in peace". However,

according to Justice Frankfurter, the doctrine of stare decisis is

not "an imprisonment of reason" (Advanced Law Lexicon, P.

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Ramanatha Aiyer, 3rd Edition 2005, Volume 4, p. 4456). The

underlying logic of the doctrine is to maintain consistency and

avoid uncertainty. The guiding philosophy is that a view which

has held the field for a long time should not be disturbed only

because another view is possible.

The trend of judicial opinion, in our view, is that stare

decisis is not a dogmatic rule allergic to logic and reason; it is a

flexible principle of law operating in the province of precedents

providing room to collaborate with the demands of changing

times dictated by social needs, State policy and judicial

conscience.

According to Professor Lloyd concepts are good servants

but bad masters. Rules, which are originally designed to fit

social needs, develop into concepts, which then proceed to take

on a life of their own to the detriment of legal development. The

resulting "jurisprudence of concepts" produces a slot-machine

approach to law whereby new points posing questions of social

policy are decided, not by reference to the underlying social

situation, but by reference to the meaning and definition of the

legal concepts involved. This formalistic a priori approach

confines the law in a strait-jacket instead of permitting it to

expand to meet the new needs and requirements of changing

society (Salmond on Jurisprudence, Twelfth Edition, at p.187).

In such cases Courts should examine not only the existing laws

and legal concepts, but also the broader underlying issues of

policy. In fact presently, judges are seen to be paying increasing

attention to the possible effects of their decision one way or the

other. Such an approach is to be welcomed, but it also warrants

two comments. First, judicial inquiry into the general effects of a

proposed decision tends itself to be of a fairly speculative nature.

Secondly, too much regard for policy and too little for legal

consistency may result in a confusing and illogical complex of

contrary decisions. In such a situation it would be difficult to

identify and respond to generalized and determinable social

needs. While it is true that "the life of the law has not been

logic, it has been experience" and that we should not wish it

otherwise, nevertheless we should remember that "no system of

law can be workable if it has not got logic at the root of it"

(Salmond, ibid, pp.187-188).

Consequently, cases involving novel points of law, have to

be decided by reference to several factors. The judge must look

at existing laws, the practical social results of any decision he

makes, and the requirements of fairness and justice. Sometimes

these will all point to the same conclusion. At other times each

will pull in a different direction; and here the judge is required to

weigh one factor against another and decide between them. The

rationality of the judicial process in such cases consists of

explicitly and consciously weighing the pros and cons in order to

arrive at a conclusion. (Salmond, ibid, pp. 188).

In case of modern economic issues which are posed for

resolution in advancing society or developing country, the court

cannot afford to be static by simplistically taking shelter behind

principles such as stare decisis, and refuse to examine the issues

in the light of present facts and circumstances and thereby adopt

the course of judicial "hands off". Novelty unsettles existing

attitudes and arrangements leading to conflict situations which

require judicial resolution. If necessary adjustments in social

controls are not put in place then it could result in the collapse of

social systems. Such novelty and consequent conflict resolution

and "patterning" is necessary for full human development. (See -

The Province and Function of Law, Julius Stone, at pp.588,

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761and 762)

Stare decisis is not an inexorable command of the

Constitution or jurisprudence. A careful study of our legal system

will discern that any deviation from the straight path of stare

decisis in our past history has occurred for articulable reasons,

and only when the Supreme Court has felt obliged to bring its

opinions in line with new ascertained fact, circumstances and

experiences. (Precedent in Indian Law, A. Laxminath, Second

Edition 2005, p. 8).

Given the progressive orientation of the Supreme Court, its

creative role under Article 141 and the creative elements implicit

in the very process of determining ratio decidendi, it is not

surprising that judicial process has not been crippled in the

discharge of its duty to keep the law abreast of the times, by the

traditionalist theory of stare decisis (ibid, p. 32). Times and

conditions change with changing society, and, "every age should

be mistress of its own law" \026 and era should not be hampered by

outdated law. "It is revolting", wrote Mr. Justice Holmes in

characteristically forthright language, "to have no better reason

for a rule of law than it was so laid down in the time of Henry IV.

It is still more revolting if the grounds upon which it was laid

down have vanished long since, and the rule simply persists

from blind imitation of the past". It is the readiness of the

judges to discard that which does not serve the public, which has

contributed to the growth and development of law. (ibid, p. 68)

The doctrine of stare decisis is generally to be adhered to,

because well settled principles of law founded on a series of

authoritative pronouncements ought to be followed. Yet, the

demands of the changed facts and circumstances dictated by

forceful factors supported by logic, amply justify the need for a

fresh look.

Sir John Salmond, while dealing with precedents and

illustrating instances of departure by the House of Lords from its

own previous decisions, states it to be desirable as 'it would

permit the House (of Lords) to abrogate previous decisions which

were arrived at in different social conditions and which are no

longer adequate in present circumstances. (See \026 Salmond, ibid,

at p.165). This view has been succinctly advocated by Dr.

Goodhart who said: "There is an obvious antithesis between

rigidity and growth, and if all the emphasis is placed on

absolutely binding cases then the law looses the capacity to

adapt itself to the changing spirit of the times which has been

described as the life of the law". (ibid, p.161) This very principle

has been well stated by William O' Douglas in the context of

constitutional jurisprudence. He says: "So far as constitutional

law is concerned, stare decisis must give way before the

dynamic component of history. Once it does, the cycle starts

again". (See \026 Essays on Jurisprudence from the Columbia Law

Review, 1964, at p.20)

We have already indicated that in Quareshi-I, the

challenge to the constitutional validity of the legislation

impugned therein, was turned down on several grounds though

forcefully urged, excepting for one ground of 'reasonableness';

which is no longer the position in the case before us in the

altered factual situation and circumstances. In Quareshi-I the

reasonableness of the restriction pitted against the fundamental

right to carry on any occupation, trade or business determined

the final decision, having been influenced mainly by

considerations of weighing the comparative inconvenience to the

butchers and the advancement of public interest. As the

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detailed discussion contained in the judgment reveals, this

determination is not purely one of law, rather, it is a mixed

finding of fact and law. Once the strength of the factual

component is shaken, the legal component of the finding in

Quareshi-I loses much of its significance. Subsequent decisions

have merely followed Quareshi-I. In the case before us, we

have material in abundance justifying the need to alter the flow

of judicial opinion.

Part - IV

Quareshi-I, re-visited :

Having dealt with each of the findings recorded in

Quareshi-I, which formed the basis of the ultimate decision

therein, we revert to examine whether the view taken by the

Constitution Bench in Quareshi-I can be upheld.

We have already pointed out that having tested the

various submissions made on behalf of the writ petitioners on

the constitutional anvil, the Constitution Bench in Quareshi-I

upheld the constitutional validity, as reasonable and valid, of a

total ban on the slaughter of : (i) cows of all ages, (ii) calves of

cows and she-buffaloes, male or female, and (iii) she-buffaloes

or breeding bulls or working bullocks (cattle as well as buffaloes)

as long as they are as milch or draught cattle. But the

Constitution Bench found it difficult to uphold a total ban on the

slaughter of she-buffaloes, bulls or bullocks (cattle or buffalo)

after they cease to be capable of yielding milk or of breeding or

working as draught animals, on the material made available to

them, the ban failed to satisfy the test of being reasonable and

"in the interests of the general public". It is clear that, in the

opinion of the Constitution Bench, the test provided by clause

(6) of Article 19 of the Constitution was not satisfied. The

findings on which the above-said conclusion is based are to be

found summarized on pp.684-687. Para-phrased, the findings

are as follows:

(1) The country is in short supply of milch cattle,

breeding bulls and working bullocks, essential

to maintain the health and nourishment of the

nation. The cattle population fit for breeding

and work must be properly fed by making

available to the useful cattle in presenti in

futuro. The maintenance of useless cattle

involves a wasteful drain on the nation's cattle

feed.

(2) Total ban on the slaughter of cattle would bring

a serious dislocation, though not a complete

stoppage, of the business of a considerable

section of the people who are by occupation

Butchers (Kasai), hide merchant and so on.

(3) Such a ban will deprive a large section of the

people of what may be their staple food or

protein diet.

(4) Preservation of useful cattle by establishment

of gosadan is not a practical proposition, as

they are like concentration camps where cattle

are left to die a slow death.

(5) The breeding bulls and working bullocks (cattle

and buffaloes) do not require as much

protection as cows and calves do.

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These findings were recorded in the judgment delivered on

23rd April, 1958. Independent India, having got rid of the

shackles of foreign rule, was not even 11 years old then. Since

then, the Indian economy has made much headway and gained

a foothold internationally. Constitutional jurisprudence has

indeed changed from what it was in 1958, as pointed out earlier.

Our socio-economic scenario has progressed from being gloomy

to a shining one, full of hopes and expectations and

determinations for present and future. Our economy is steadily

moving towards prosperity in a planned way through five year

plans, nine of which have been accomplished and tenth is under

way.

We deal with the findings in Quareshi-I seriatim.

Finding 1 :

We do not dispute that the country is in short supply of

milch cattle, breeding bulls and working bullocks and that they

are essential to maintain the health and nourishment of the

nation as held in Quareshi-I. Rather we rely on the said finding

which stands reinforced by the several documents which we

have referred to hereinbefore.

In the Quareshi-I era, there was a shortage of fodder in

the country. Various plans were drawn up in the direction of

exploring potential fodder areas for the future. Although, the

planning was there; implementation was lacking. The Report of

National Commission on Cattle, July 2002 (Vol. II) reveals that

the existing fodder resources of the country can sustain and

meet 51.92% of the total requirements to sustain its livestock

population. But we have to take into consideration the fodder

potential of the country. We have vast culturable waste land

which with some efforts can be developed into good pasture

land. Major part of the fallow land can be put under the plough

for having fodder crops such as Jowar, Bajra and smaller millets.

The combined area of several categories of land which can be

developed as potential fodder area is 58.87 million hectares. If

managed properly, there are areas in the country which can be

developed into a "Grass Reservoir of India for use as pasture

land". One very big potential area lies in Jaisaelmer District of

Rajasthan (spread over 22,16,527 hectares). The Commission

has recommended 23 steps to be taken by the State

Government and the Central Government for development and

conservation of food and fodder (See paras 37-41 of the report

at pages 130-135).

So far as the State of Gujarat is concerned, we have

already noticed, while dealing with the documentary evidence

available on record, that fodder shortage is not a problem so far

as this state is concerned and cow progeny, the slaughtering

whereof has already shown a downward trend during the recent

years, can very well be fed and maintained without causing any

wasteful drain on the feed requisite for active milch, breeding

and draught cattle.

Finding 2 :

The finding suffers from two infirmities. First, Quareshi-I

has not felt the necessity of finding whether a 'total prohibition'

is also included within 'restriction' as employed in Article 19(6).

It is now well-settled that 'restriction' includes 'prohibition'.

Second and the real fallacy in Quareshi-I is that the ban limited

to slaughtering of cow progeny has been held at one place to be

a 'total prohibition', while in our opinion, is not so. At another

place, the effect of ban has been described as causing 'a serious

dislocation, though not a complete stoppage of the business of a

considerable section of the people'. If that is so, it is not a 'total

prohibition'. The documentary evidence available on record

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shows that beef contributes only 1.3% of the total meat

consumption pattern of the Indian society. Butchers are not

prohibited from slaughtering animals other than the cattle

belonging to cow progeny. Consequently, only a part of their

activity has been prohibited. They can continue with their

activity of slaughtering other animals. Even if it results in slight

inconvenience, it is liable to be ignored if the prohibition is found

to be in the interest of economy and social needs of the country.

Finding 3 :

In the first and second Five Year Plans (Quareshi-I era),

there was scarcity of food which reflected India's panic. The

concept of food security has since then undergone considerable

change.

47 years since, it is futile to think that meat originating

from cow progeny can be the only staple food or protein diet for

the poor population of the country. 'India Vision 2020' (ibid,

Chapter 3) deals with 'Food Security and Nutrition : Vision 2020'.

We cull out a few relevant findings and observations therefrom

and set out in brief in the succeeding paragraphs. Food

availability and stability were considered good measures of food

security till the Seventies and the achievement of self-sufficiency

was accorded high priority in the food policies. Though India

was successful in achieving self-sufficiency by increasing its food

production, it could not solve the problem of chronic household

food insecurity. This necessitated a change in approach and as a

result food energy intake at household level is now given

prominence in assessing food security. India is one of the few

countries which have experimented with a broad spectrum of

programmes for improving food security. It has already made

substantial progress in terms of overcoming transient food

insecurity by giving priority to self-sufficiency in foodgrains,

employment programmes, etc. The real problem, facing India, is

not the availability of food, staple food and protein rich diet; the

real problem is its unequal distribution. The real challenge

comes from the slow growth of purchasing power of the people

and lack of adequate employment opportunities. Another reason

for lack of food and nutrient intake through cereal consumption

is attributable to changes in consumer tastes and preferences

towards superior food items as the incomes of the household

increases. Empirical evidence tends to suggest a positive

association between the calorie intake and nutritional status.

The responsiveness is likely to be affected by the factors relating

to health and environment. It is unclear as to how much of the

malnutrition is due to an inadequate diet and how much due to

the environment.

India achieved near self-sufficiency in the availability of

foodgrains by the mid-Seventies. The trend rate of foodgrain

production improved 2.3 per cent during the 1960s and 1970s to

2.9 per cent in the Eighties. The recent economic survey of

2005 has also pointed out that the per capita availability of the

milk has doubled since independence from 124 gms/day in the

year 1950-51 to 229 gms/day in the year 2001-02. (Report of

National Commission on Cattle. Vol. II, p. 84.)

A complete reading of the research paper on Food Security

and Nutrition (Chapter 3 in India Vision 2020) is a clear pointer

to the fact that desirable diet and nutrition are not necessarily

associated with non-vegetarian diet and that too originating from

slaughtering cow progeny. Beef contributes only 1.3% of the

total meat consumption pattern of the Indian society.

Consequently a prohibition on the slaughter of cattle would not

substantially affect the food consumption of the people. To

quote (ibid. p.209) : "Even though the question of desirable diet

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from nutritional perspective is still controversial, we can make

certain policy options to overcome the nutritional deficiencies.

The most important problem to be attended is to increase the

energy intake of the bottom 30 per cent of the expenditure

class. The deficiency of energy intake of the bottom 30 per cent

can be rectified by increasing agricultural productivity in rain fed

areas, making available food at an affordable price through the

Public distribution system (PDS), and other poverty alleviation

programmes. The micro-nutrient deficiency can be cost-

effectively rectified by supplementary nutritional programmes to

the children and the expectant and lactating mothers."

The main source of staple food which is consumed both by

vegetarians and non-vegetarians is supplied by vegetables.

Synthetic staple food has also been made available by scientific

researches. It will, therefore, not be correct to say that poor will

suffer in availing staple food and nutritional diet only because

slaughter of cow progeny was prohibited.

Finding 4 :

Quareshi-I itself reveals a very general opinion formed by

the Court as to the failure of gosadans and their inability to

preserve cattle. The statistics made available before us are a

positive indicator to the contrary that gosadans and goshalas are

being maintained and encouraged so as to take up both useful

and so-called useless cattle, if the owner is not willing to

continue to maintain them. Quareshi-I relied on a Report of an

Expert Committee, which has certainly become an outdated

document by the lapse of 47 years since then. Moreover,

independent of all the evidence, we have in this judgment

already noticed that cattle belonging to the category of cow

progeny would not be rendered without shelter and feed by the

owner to whom it had served throughout its life. We find support

from the affidavits and reports filed on behalf of the State of

Gujarat which state inter alia "farmers love their cattle".

National Commission on Cattle in its Report (ibid) has

incorporated as many as 17 recommendations for strengthening

of goshalas (para 20 at pages 120-122)

We have already noticed in the affidavits filed on behalf of

the State of Gujarat that, in the State of Gujarat adequate

provisions have been made for the maintenance of gosadans and

goshalas. Adequate fodder is available for the entire cattle

population. The interest exhibited by the NGOs seeking

intervention in the High Court and filing appeals in this Court

also indicates that the NGOs will be willing to take up the task of

caring for aged bulls and bullocks.

Finding 5

In Quareshi-I, vide para 42, the Constitution Bench chose

to draw a distinction between breeding bulls and working

bullocks, on the one hand and cows and calves, on the other

hand, by holding that the farmers would not easily part with the

breeding bulls and working bullocks to the butchers as they are

useful to the farmers. It would suffice to observe that the

protection is needed by the bulls and bullocks at a point of time

when their utility has been reduced or has become nil as they

near the end of their life. That is what Article 48, in fact,

protects, as interpreted in this judgment.

India, as a nation and its population, its economy and its

prosperity as of today are not suffering the conditions as were

prevalent in 50s and 60s. The country has achieved self-

sufficiency in food production. Some of the states such as State

of Gujarat have achieved self-sufficiency in cattle-feed and

fodder as well. Amongst the people there is an increasing

awareness of the need for protein rich food and nutrient diet.

Plenty of such food is available from sources other than cow/cow

progeny meat. Advancements in the field of Science, including

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Veterinary Science, have strengthened the health and longetivity

of cattle (including cow progeny). But the country's economy

continues to be based on agriculture. The majority of the

agricultural holdings are small units. The country needs bulls

and bullocks.

For multiple reasons which we have stated in very many

details while dealing with Question-6 in Part II of the judgment,

we have found that bulls and bullocks do not become useless

merely by crossing a particular age. The Statement of Objects

and Reasons, apart from other evidence available, clearly

conveys that cow and her progeny constitute the backbone of

Indian agriculture and economy. The increasing adoption of

non-conventional energy sources like Bio-gas plants justify the

need for bulls and bullocks to live their full life in spite of their

having ceased to be useful for the purpose of breeding and

draught. This Statement of Objects and Reasons tilts the

balance in favour of the constitutional validity of the impugned

enactment. In Quareshi-I the Constitution Bench chose to bear

it in mind, while upholding the constitutionality of the legislations

impugned therein, insofar as the challenge by reference to

Article 14 was concerned, that "the legislature correctly

appreciates the needs of its own people". Times have changed;

so have changed the social and economic needs. The Legislature

has correctly appreciated the needs of its own people and

recorded the same in the Preamble of the impugned enactment

and the Statement of Objects and Reasons appended to it. In

the light of the material available in abundance before us, there

is no escape from the conclusion that the protection conferred by

impugned enactment on cow progeny is needed in the interest of

Nation's economy. Merely because it may cause 'inconvenience'

or some 'dislocation' to the butchers, restriction imposed by the

impugned enactment does not cease to be in the interest of the

general public. The former must yield to the latter.

According to Shri M.S. Swaminathan, the eminent Farm

Scientist, neglect of the farm sector would hit our economy hard.

According to him "Today, global agriculture is witnessing two

opposite trends. In many South Asian countries, farm size is

becoming smaller and smaller and farmers suffer serious

handicaps with reference to the cost-risk-return structure of

agriculture. In contrast, the average farm size in most

industrialized countries is over several hundred hectares and

farmers are supported by heavy inputs of technology, capital and

subsidy. The on-going Doha round of negotiations of the World

Trade Organisation in the field of agriculture reflects the

polarization that has taken place in the basic agrarian structure

of industrialized and developing countries. Farming as a way of

life is disappearing and is giving way to agribusiness." (K.R.

Narayanan Oration delivered by Dr. Swaminathan at the

Australian National University, Canberra, published in 'The

Hindu', October 17, 2005, p.10)

"In India, nearly 600 million individuals are engaged in

farming and over 80 per cent of them belong to the small and

marginal farmer categories. Due to imperfect adaptation to local

environments, insufficient provision of nutrients and water, and

incomplete control of pests, diseases and weeds, the present

average yields of major farming systems in India is just 40 per

cent of what can be achieved even with the technologies

currently on the shelf. There is considerable scope for further

investment in land improvement through drainage, terracing,

and control of acidification, in areas where these have not

already been introduced." (ibid)

Thus, the eminent scientist is very clear that excepting the

advanced countries which have resorted to large scale

mechanized farming, most of the countries (India included) have

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average farms of small size. Majority of the population is

engaged in farming within which a substantial proportion belong

to small and marginal farmers category. Protection of cow

progeny will help them in carrying out their several agricultural

operations and related activities smoothly and conveniently.

Organic manure would help in controlling pests and acidification

of land apart from resuscitating and stimulating the environment

as a whole.

Having subjected the restrictions imposed by the

impugned Gujarat enactment to the test laid down in the case of

N.M. Thomas (supra) we are unhesitatingly of the opinion that

there is no apparent inconsistency between the Directive

Principles which persuaded the State to pass the law and the

Fundamental Rights canvassed before the High Court by the writ

petitioners.

Before we part, let it be placed on record that Dr. L.M.

Singhvi, the learned senior counsel for one of the appellants,

initially tried to build an argument by placing reliance on Article

31C of the Constitution. But at the end he did not press this

submission. Similarly, on behalf of the respondents, the

Judgment of the High Court has been supported only by placing

reliance on Article 19(6) of the Constitution. The legislative

competence of the State Legislature to enact the law was not

disputed either in the High Court or before us.

Result

For the foregoing reasons, we cannot accept the view

taken by the High Court. All the appeals are allowed. The

impugned judgment of the High Court is set aside. The Bombay

Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat

Act No. 4 of 1994) is held to be intra vires the Constitution. All

the writ petitions filed in the High Court are directed to be

dismissed.