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2005 (10) TMI 540
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....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 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 subsection (1), if in the opinion of the Competent Authority (a) the animal, whether male or female, is u....
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...., 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 fol....
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.... 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 unnecessar....
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....ablished 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 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 a....
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....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 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 I....
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....t 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. 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 stat....
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....gether 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 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 re....
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....en 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....
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....ombay 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 ....
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....t 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 petitionersrespondents 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 appellan....
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....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 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 futu....
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....ision 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 elast....
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.... (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 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 thi....
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....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 shee....
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....he 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 "that they are nevertheless fundamental in the governance of the country." Several clauses of Art....
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.... 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 sci....
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....he 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. 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 foun....
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....f 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". "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 adjective....
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.... who are suffering and a desire to help them". According to Chambers 20th Century Dictionary, compassion is "fellow 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 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 '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 ....
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.... 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 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 ....
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....ng 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 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....
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....l 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. 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:- (....
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....ded. 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 tha....
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....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 v....
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....a 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, 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 nongovernmental 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....
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....ase 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 meg....
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....sed 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 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 ....
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....der the study was 18.75 years. The number of bullocks/pair 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 ....
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....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 carr....
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....llion 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 be interested in funding activities relating to cattle and buffalo development in the form of term as loan provide....
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.... 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 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 utilisat....
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.... 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 ca....
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....ncluded 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 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 suppl....
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....s 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 socie....
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....d Function of Law, Julius Stone, at pp.588, 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" 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 ....
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....sion 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 Constitutio....
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....o 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....
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....rogeny 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 pro....
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....actating 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 affida....
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....nd 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....
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....hly 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 impu....
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.... High Court after dealing with all aspects in detail held that amendment is ultra vires. Hence, the present petition alongwith the other petitions came up before this Court by Special Leave Petition. The matter was listed before the three Judges' Bench. Thereafter, it was taken by the Constitution Bench and the Constitution Bench realizing difficulty that there are already Constitution Bench judgments holding the field, referred the matter to the seven Judges' Bench for reconsideration of all the earlier decisions of the Constitution Benches. Hence these matters are before seven Judges' Bench. Hon'ble the Chief Justice has already reproduced the objects and reasons for amendment therefore same need not be reproduced here. This amendment brought about to effect directive principles of the State Policy under Articles 47, 48 of the Constitution and Clause (b) and (c) of Article 39 of the Constitution. Thereafter, Hon'ble Chief Justice has also reviewed all the cases bearing on the subject which can be enumerated as under: 1. AIR 1958 SC 731 ( Mohd. Hanif Qureshi & Ors. Vs. State of Bihar) 2. AIR 1961 SC448 ( Abul Hakim Vs. State of Bihar) 3. 1969 (1) SCC 853 ....
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....oes) as long as they are as milch or draught cattle is also reasonable and valid and (iii) that a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public." Therefore, their Lordships have summarized the whole concept of preservation of the cattle life in India with reservation that those cattle head which have lost their utility can be slaughtered specially with regard to draught cattle, bulls, bullocks & buffaloes so as to preserve the other milching cattle for their better breed and their better produce. Subsequently in another decision, in the case of Abdul Hakim vs. State of Bihar reported in AIR 1961 SC 448 the ban was imposed by the States of Bihar, Madhya Pradesh and U.P. which came up for consideration before this Court and in this context it was observed as under: "The test of reasonableness should be applied to each individual statute impugned and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleg....
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.... respect the susceptibilities and sentiments of a section of the people whose way of life belief or thought is not the same as that of the claimant. The notification issued must, therefore, be declared ultra virus as infringing Article 19(1)(g) of the Constitution." Then again in the case of Haji Usmanbhai Hasanbhai Qureshi & Ors. vs. State of Gujarat reported in (1986) 3 SCC 12, the insertion of Section 5 (1-A) (c) and (d) was made under the Bombay Animal Preservation (Gujarat amendment) act 1979) came up for consideration. By virtue of this insertion by the Gujarat State, it was laid down that there will be ban of slaughter of bulls, bullocks below the age of 16 years. It was contented that this prohibition is unreasonable and violative of Art. 19(1)(g). Their Lordships upheld the restriction under Art. 19(6) with reference to Art. 48 of the constitution. Their Lordships upheld the contention of the State of Gujarat that with the improvement of scientific methods cattle up to the age of 16 years are used for the purpose of breeding and other agricultural operation. But by this Act of 1994 this age restriction has now been totally taken away by the Act of 1994 (which is subject m....
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....rvey of the judicial determination on the subject. And in the last case their Lordships frowned on unsuccessful attempt by the State to somehow nullify the ratio laid down in Mohd. Hanif Qureshi's case and subsequent decisions following Qureshi's case. But this time, the State of Gujarat has come up to seek the review of earlier decisions. Now I shall examine the material which has been placed by the State of Gujarat to justify the total prohibition of slaughter of bulls and bullocks. Learned counsel for the appellant has brought to our notice the affidavit filed by the State of Gujarat which has been reproduced by the Hon'ble Chief Justice on page 56 in his opinion onwards. Therefore, I need not reproduce the whole of the affidavit. Mr. J.S.Parikh, Deputy Secretary, Agricultural Cooperative and Rural Development Department of the State of Gujarat has in his affidavit stated that almost in 50% of the agricultural operation by tractor is not possible because of small holdings in the State of Gujarat. Therefore, for such small holdings the draught animals are best used for cultivation purposes. It was also stated that the total cultivated area of Gujarat State is about 1....
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....ower draught output while the prime bullock generates 0.83 horse power per bullock during carting/hauling draught work. Considering the utility of bullocks above 16 years of age as draught power a detailed combined study was carried out by Department of Animal Husbandry and Gujarat Agricultural University (Veterinary Colleges S.K. Nagar & Anand). The study covered different age groups of 156 (78 pairs) bullocks above the age of 16 years age generated 0.68 horse power draught output per bullock while the prime bullock generated 0.83 horse power per bullock during carting/hauling draught work in a summer with about more than 42: F temp. The study proves that 93% of aged bullock above 16 years of age are still useful to farmers to perform light and medium draught works. The importance of organic manure as a source of humus and plant nutrients to increase the fertility level of soils has been well recognized. 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 i....
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.... age of 16 years was only 2.48 % of the total animals of different categories slain in the State prior to this period. This percentage has gone down to the level of only 1.10 % during the last 8 years i.e. 1997-98 to 2004-2005. These details reveal that in fact the slaughtering of these bulls and bullocks beyond the age of 16 years constituted only 1.10% of the total slaughtering takes place in the State. If this is the ratio of the slaughtering, I fail to understand how this legislation can advance the cause of the public at the expense of the denial of Fundamental Right of this class of persons (butchers). In view of facts disclosed in the affidavit filed by the two senior officer of the State of Gujarat speaks volume that for small percentage of 1.10% can the fundamental right of this class of persons should be sacrificed and earlier decisions be reversed. I fail to understand how it would advance the cause of the public at large so as to deprive the handful of persons of their rights to profession. On the basis of this material, I am of the opinion that the earlier decisions of this Court have not become irrelevant in the present context. The tall claim made by State looks attr....
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.... cow dung can be used for the purposes of manure as well as for the purpose of fuel that will be more echo-friendly. Similarly, in Mohd. Hanif Qureshi's case their Lordships have quoted from the scriptures to show that we should have a proper consideration for our cattle wealth and in that context their Lordships quoted in para 22 which reads as under: "22. The avowed object of each of the impugned Acts is to ensure the preservation, protection, and improvement of the cow and her progeny. This solicitude arises out of the appreciation of the usefulness of cattle in a predominantly agricultural society. Early Aryans recognized its importance as one of the most indispensable adjuncts of agriculture. It would appear that in Vedic times animal flesh formed the staple food of the people. This is attributable to the fact that the climate in that distant past was extremely cold and the Vedic Aryans had been a pastoral people before they settled down as agriculturists. In Rg. Vedic times goats, sheep, cows, buffaloes and even horses were slaughtered for food and for religious sacrifice and their flesh used to be offered to the Gods. Agni is called the "eater of ox or cow" in Rg.Veda (....
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.... that one can explain and reconcile the apparent conflict between the custom of killing cows for food and the high praise bestowed on the cow in Rg.Vedic times. It would appear that the protest raised against the slaughter of cows greatly increased in volume till the custom was totally abolished in a later age. The change of climate perhaps also make the use of beef as food unnecessary and even injurious to health. Gradually cows became indicative of the wealth of the owner. The Neolithic Aryans not having been acquainted with metals, there were no coins in current use in the earlier stages of their civilization, but as they were eminently a pastoral people almost every family possessed a sufficient number of cattle and some of them exchanged them for the necessaries of their life. The value of cattle (Pasu) was, therefore, very great with the early Rg.Vedic Aryans. The ancient Romans also used the word pecus or pecu (pasu) in the sense of wealth or money. The English words, "pecuniary" and "impecunious", are derived from the Latin root pecus or pecu, originally meaning cattle. The possession of cattle in those days denoted wealth and a man was considered rich or poor according to ....
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....mic concept and it should change with the time. But at the same time it shall not be so fickle that it changes with change of guard. If the ground realities have not changed and it has not become irrelevant with the time then it should not be reviewed lightly. I have discussed above the reasons which have been given by the State of Gujarat for reconsideration of the earlier decisions on the subject, in my humble opinion the justification so pleaded is not sufficient to change or review the decision of the Constitution Bench by the present Bench of seven Judges. The principle of stare decisis is based on a public policy. This policy is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e. that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law. If the courts start changing their views frequently then there will be a lack of certainty in the law and it is not good for the health of the nation. Craies on Statue Law, 7th Edition, it was observed that: "The rule is also founded more logically on the axiom statre decisis, which ....
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.... conviction that that interpretation is the legal and proper one and is one which will not be departed from." The rule of stare decisis was followed in Associated Newspapers Ltd. vs City of London Corporation, where the House of Lords declined to overrule two old cases which established the non-ratability of certain property in the City of London on the construction of an Act of 1767, and in Morgan vs Fear, where the House of Lords refused to disturb a construction of the Prescription Act 1832, which had been settled and acted on for forty-six years. In Cohen vs Bayley- Worthington which turned on the construction of the Fines and Recoveries Act, 1833, the House of Lords refused to put on that Act a new construction, as property had been settled or otherwise dealt with for a long period of time on the faith of the older cases, and in Close vs Steel Co. of Wales Ltd. Lord Morton of Henryton said: "I have always understood that when this House clearly expresses a view upon the construction of an Act of Parliament and bases its decision on that view, the Act must bear that construction unless and until Parliament alters the Act." Therefore one of the hallmarks of the law is certaint....