Slaughter of Bulls or Bullocks in Gujarat



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Slaughter of Bulls or Bullocks in Gujarat

Compiled by Sanjeev Nayyar November 2005


The Supreme Court on Wednesday, 26.10.05 upheld the 1994 Gujarat government order banning slaughter of bulls and bullocks over the age of 16 years. A seven-judge constitutional bench headed by Chief Justice R C Lahoti set aside the judgment of the 1998 Gujarat High Court which termed it as unconstitutional. The Judgment is divided into the following parts.





Para Nos

Contents


Part 1

2-20

Backdrop of Events




21-22

Q1 Fundamental Rights & Directive Principles.




23-25

Q2 Fundamental Right & Arts 48,48A, 51A.




26-29

Q3 Milch & drought cattle, meaning on in Art 48.




30-31

Q4 Statements of Objects & Reasons – Significance & role thereof.




32-34

Q5 Regulation or Restrictions includes total prohibition, partial restraint is not total prohibition.




35-37

Q6 Slaughter of cow progeny, if in public interest.




38-41

Report on Draughtability of Bullocks above 16 years.




42-45

National Commission on Cattle




46-47

Importance of Bovine Dung– economic viability of Cows

Part 2

48-50

Stare Decissis

Part 3

51

Quereshi I revisted.




52-60

Findings

Part 4




Dissenting Opinion by A K Mathur para 1-23

Courtesy and Copyright www.manupatra.com



IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4937-4940 and 4941-44 of 1998

Decided On: 26.10.2005

Appellants: State of Gujarat Vs. Respondent: Mirzapur Moti Kureshi Kassab Jamat and Ors.



AND

Appellants: Shree Ahimsa Army Manav Kalyan Jeev Daya Charitable Trust


Vs. Respondent: Mirzapur Moti Kureshi Kassab Jamat, Ahmedabad and Ors.
[Alongwith Civil Appeal No. 4945 of 1998]

Hon'ble Judges: R.C. Lahoti, C.J., B.N. Agarwal, Arun Kumar, G.P. Mathur, C.K. Thakker and P.K. Balasubramanyan, JJ. and (A.K. Mathur, J. Dissenting Opinion)

Subject: Constitution

Subject: Environment

Acts/Rules/Orders:
Bombay Animal Preservation (Gujarat Amendment) Act, 1994 - Sections 2 and 4; Bombay Animal Preservation Act, 1954 - Sections 5, 5(1), 5(1A) and 5(2); Bombay Animal Preservation Act, 1948 - Sections 5, 5(1), 5(2), 5(3) and 6; Bombay Animal Preservation (Gujarat Extension and Amendment) Act, 1961 - Section 4; Saurashtra Animal Preservation Act, 1956; Bombay Animal Preservation (Gujarat Amendment) Act, 1979; Constitution of India - Articles 14, 19, 19(1), 19(2) to 19(6), 25, 25(1), 31C, 37, 39, 47, 48, 48A, 51A, 141 and 145(3); Bombay Animal Preservation (Gujarat Amendment) Ordinance, 1993; Bihar Preservation and Improvement of Animals Act, 1956; Uttar Pradesh Prevention of Cow Slaughter Act, 1955; Central Provinces and Berar Animal Preservation Act, 1949; Madhya Pradesh Krishik Pashu Parirakshan (Sanshodhan) Adhiniyam, 1991; Constitution of India (Forty-second Amendment) Act, 1976 - Articles 48A and 51A; Madhya Pradesh Municipal Corporation Act; Madhya Pradesh Agricultural Cattle Preservation Act, 1959; Madhya Pradesh Agricultural Cattle Preservation (Amendment) Act, 1991; Companies Act, 1862; Fines and Recoveries Act, 1833; Prescription Act 1832

Cases Referred:

Haji Usmanbhai Hasanbhai Qureshi and Ors. v. State of Gujarat, MANU/SC/0080/1986; Mohd. Hanif Quareshi and Ors. v. State of Bihar and Ors., 1959 SCR 629; State of West Bengal and Ors. v. Ashutosh Lahiri, MANU/SC/0100/1995; Abdul Hakim Quraishi and Ors. v. State of Bihar, MANU/SC/0038/1960; Mohammed Faruk v. State of Madhya Pradesh and Ors., MANU/SC/0046/1969; Narendra Kumar and Ors. v. The Union of India and Ors., MANU/SC/0013/1959; Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of Gujarat; Hashmattullah v. State of M.P. and Ors., MANU/SC/0518/1996; State of West Bengal and Ors. v. Ashutosh Lahiri and Ors., MANU/SC/0100/1995; The State of Madras v. Srimathi Champakam Dorairajan, 1951 SCR 525; Deep Chand and Anr. v. The State of Uttar Pradesh and Ors., 1959 Supp. (2) SCR 8; In Re : The Kerala Education Bill, 1957, 1959 SCR 995; L.C. Golak Nath and Ors. v. State of Punjab and Anr., MANU/SC/0029/1967; His Holiness Kesavananda Bharati Sripadagalvaru and Anr. v. State of Kerala and Anr., MANU/SC/0445/1973; Pathumma and Ors. v. State of Kerala and Ors., MANU/SC/0315/1978; State of Kerala and Anr. v. N.M. Thomas and Ors., MANU/SC/0479/1975; Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai and Anr., MANU/SC/0099/1986; Workmen of Meenakshi Mills Ltd. and Ors., v. Meenakshi Mills Ltd. and Anr., MANU/SC/0512/1992; Papnasam Labour Union v. Madura Coats Ltd. and Anr., MANU/SC/0567/1995; The State of Bombay and Anr. v. F.N. Balsara, 1951 SCR 682; M.R.F. Ltd. v. Inspector, Kerala Govt. and Ors., MANU/SC/0702/1998; Kavalappara Kottarathil Kochuni v. State of Madras and Kerala, MANU/SC/0019/1960; O.K. Ghosh v. E.X. Joseph, 1963 Supp. (1) SCR 789; Indian Handicrafts Emporium and Ors. v. Union of India and Ors., MANU/SC/0640/2003; AIIMS Students' Union v. AIIMS and Ors., MANU/SC/0480/2001; Mohan Kumar Singhania and Ors. v. Union of India and Ors., 1992 Supp (1) SCC 594; State of U.P. v. Yamuna Shanker Misra and Ors., MANU/SC/0914/1997; Rural Litigation and Entitlement Kendra and Ors. v. State of Uttar Pradesh and Ors., 1986 (Supp) SCC 517; T.N. Godavarman Thirumalpad v. Union of India and Ors., MANU/SC/1317/2002; State of W.B. and Ors. v. Sujit Kumar Rana, MANU/SC/0049/2004; State of West Bengal v. Subodh Gopal Bose and Ors., 1954 SCR 587; State of West Bengal v. Union of India, MANU/SC/0086/1962; Madhya Bharat Cotton Association Ltd. v. Union of India (UOI) and Anr., MANU/SC/0161/1954; Krishna Kumar v. Municipal Committee of Bhatapara, (Petition No. 660 of 1954; Narendra Kumar and Ors. v. Union of India (UOI) and Ors., MANU/SC/0013/1959; The State of Maharashtra v. Himmatbhai Narbheram Rao and Ors., MANU/SC/0275/1968; Sushila Saw Mill v. State of Orissa and Ors., MANU/SC/0503/1995; Pratap Pharma (Pvt.) Ltd. and Anr. v. Union of India and Ors., MANU/SC/0697/1997; Dharam Dutt v. Union of India, MANU/SC/0970/2003; Abul Hakim v. State of Bihar, MANU/SC/0038/1960; Mohd. Faruk v. State of M.P. and Ors., MANU/SC/0046/1969; Haji Usmanbhai Hasanbhai Qureshi and Ors. v. State of Gujarat, MANU/SC/0080/1986; Hashmattullah v. State of M.P. and Ors., MANU/SC/0518/1996; Mohd. Hanif Qureshi's and Ors. v. State of Bihar and Ors., MANU/SC/0027/1958; Hanau v. Ehrlich; Malins v. C.; Cohen v. Bayley; Close v. Steel Co. of Wales Ltd.; Morgan v. Fear; Cohen v. Bayley- Worthington

JUDGMENT

R.C. Lahoti, C.J.

1. 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 there against.

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

2. 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 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--

(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."

3. The Preamble to the Act stated - "WHEREAS it is expedient to provide for the preservation of animals suitable for milch, breeding or for agricultural purposes; It is hereby enacted ...as follows:"

The Statement of Objects and Reasons stated inter alia -"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".



4. 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.

5. 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:

"(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...."

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.

6. 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 Ors. 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.

7. 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."

8. 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 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;

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 emphasize 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

9. The constitutional validity of the above said 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.

10. 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-a-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.



11. 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 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

12. 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.



13. 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 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.



14. The first ground of challenge was simply turned down due to the meager 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, MANU/SC/0100/1995, 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.

15. 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 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 livestock’s. 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.

16. 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 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.

17. 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.

18. In Abdul Hakim Quraishi and Ors. v. State of Bihar, MANU/SC/0038/1960 (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 and Ors., MANU/SC/0046/1969, 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 and Ors. v. The Union of India and Ors., MANU/SC/0013/1959, 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. State of Gujarat, MANU/SC/0080/1986 (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.

19. In Hashmattullah v. State of M.P. and Ors., MANU/SC/0518/1996, 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 Ors. v. Ashutosh Lahiri and Ors., MANU/SC/0100/1995, 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 - "We, therefore, entirely concur with 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

20. 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 - 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 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.





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