Supreme Court Judgement On GOHATYA 2005
(Full text)
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CASE NO. :

Appeal (civil) 4937-4940 of 1998

PETITIONER :
State of Gujarat

RESPONDENT:

Mirzapur Moti Kureshi Kassab Jamat & Ors .

DATE OF JUDGMENT: 26/10/2005

BENCH:

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



<\




JUDGMENT:

JUDGMENT

WITH

CIVIL APPEAL NOS. 4941-44 of 1998

Shree Ahimsa Army Manav Kalyan

Jeev Daya Charitable Trust



Versus







Mirzapur Moti Kureshi Kassab
Jamat, Ahmedabad & Ors.



and



\\



CIVIL APPEAL NO. 4945 of 1998

Akhil Bharat Krishi Goseva Sangh

Versus

Mirzapur Moti Kureshi Kassab

Jamat, Ahmedabad & Ors.




\005Appellant

005Respondents

\005Appellant
005Respondents




R.C. LAHOTI, CJI

Section 2 of the Bombay Animal Preservation (Gujarat
Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) which
introduced certain amendments in Section 5 of the Bombay
Animal Preservation Act, 1954 (as applicable to the State of
Gujarat) has been struck down as ultra vires the Constitution by
the High Court of Gujarat . These three sets of appeals by
special leave have been filed thereagainst .



A chain of events, legislative and judicial, lead to the
impugned enactment . To appreciate the core issue arising for
decision in these appeals and also the constitutional questions
arising therein, it will be useful to set out the preceding events in
their chronological order.

PART - I




Backdrop of Events



Legislative history leading to impugned enactment

With a view to conserve the cattle wealth of the State of
Bombay, the State Government enacted the Bombay Animal
Preservation Act, 1948 and prohibited slaughter of animals which
were useful for milch, breeding or agricultural purposes. This



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Act was substituted by the Bombay Animal Preservation Act of
1954 (hereinafter referred to as 'the Bombay Act') . The
provisions relevant for our purpose are contained in Sections 5
and 6. Sub-sections (1) , (2) and (3) of Section 5 and Section 6
are extracted and reproduced hereunder :

"5. (1) Notwithstanding any law for the time
being in force or any usage to the contrary, no
person shall slaughter or cause to be
slaughtered any animal unless, he has
obtained in respect of such animal a certificate
in writing from the Competent Authority
appointed for the area that the animal is fit for
slaughter.



(2) No certificate shall be granted under sub-
section (1) , if in the opinion of the Competent
Authority\027

(a) the animal, whether male
or female, is useful or likely
to become useful for the
purpose of draught or any
kind of agricultural
operations;

(b) the animal, if male, is
useful or likely to become
useful for the purpose of
breeding;

(c) the animal, if female,
useful or likely to become
useful for the purpose of
giving milk or bearing
offspring.



(3) Nothing in this section
slaughter of any animal above
fifteen years for bona-fide



Provided that a certificate in writing for
such slaughter has been obtained from the
Competent Authority.




XXX



XXX



XX.



XXX



(4)
(5)
(6)



6. No animal in respect of which a certificate
has been issued under section 5 shall be
slaughtered in any place other than a place
specified by such authority or officer as the
State Government may appoint in this behalf. "




The Preamble to the Act stated \026 "WHEREAS it is expedient
to provide for the preservation of animals suitable for milch,
breeding or for agricultural purposes; It is hereby enacted \005as
follows : - "



The Statement of Objects and Reasons stated inter alia \026



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"It is now proposed to repeal the Bombay Animal Preservation
Act, 1948 and to undertake fresh legislation, on the basis of a
model bill recommended by the Government of India, in order to
stamp out slaughter in unauthorized places and abetment of
offences which were not covered by the Bombay Animal
Preservation Act, 1948".

The State of Gujarat was formed in the year 1960.
Gujarat Legislature enacted The Bombay Animal Preservation
(Gujarat Extension and Amendment) Act, 1961 whereby the
Bombay Act was extended to the State of Gujarat in order to
achieve uniformity in law in different parts of the State with
regard to this subject. The Saurashtra Animal Preservation Act,
1956 which was applicable to that part of Gujarat which formed
part of erstwhile State of Saurashtra was repealed. Apart from
extending the Bombay Act, Section 5 of the Bombay Act, which
was called 'the principal Act' in the Gujarat Act of 1961, was also
amended by Section 4 thereof which reads as under:

4. Amendment of Section 5 of Bombay LXXII of

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

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

section shall be inserted, namely :-







" (1A) No certificate under sub-section (1)
shall be granted in respect of a cow.



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

certificate" the words, brackets, figure and
letter "In respect of an animal to which
sub-section (1A) does not apply, no
certificate" shall be substituted;




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

purposes" the words, "religious purposes,
if such animal is not a cow" shall be
substituted.



The above Act was assented to by the Governor on the 1st
May, 1961 which was published in the Gujarat Government
Gazette, Extraordinary, Part IV, dated May 6, 1961. The objects
of such extension were mainly two : (i) to achieve uniformity in
law in different parts of the State; and (ii) to impose a ban on
cow slaughter. The amendment introduced by Section 4 of the
Bombay Animal Preservation (Gujarat Extension and
Amendment) Act, 1961 indicates that slaughter of cow was
totally banned.

In 1979, the Gujarat Legislature enacted the Bombay
Animal Preservation (Gujarat Amendment) Act, 1979 to further
amend the Bombay Act . Section 2 of this Act is relevant which is
extracted and reproduced hereunder:

2. Amendment of section 5 of Bom. LXXII of

1954. In the Bombay Animal Preservation Act,

1954, Bom. LXXII of 1954, (hereinafter referred to
as "the principal Act"), in section 5,

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





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" (1A) No certificate under sub-section (1) shall be
granted in respect of

(a) a cow;

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

and if male, whether castrated or not;

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

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

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

" (3) Nothing in this section shall apply to

(a) the slaughter of any of the following
animals for such bonafide religious purposes,
as may be prescribed, namely:

(i) any animal above the age of fifteen years
other than a cow, bull or bullock;

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

(Hi) 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 bee.
obtained from the Competent Authority . "

The Act was preceded by an Ordinance, a reference to

which is not necessary. The Statement of Objects and Reasons

of the Act are stated as under:

"Under the existing provisions of the

Bombay Animal Preservation Act, 1954,

although there is a total prohibition against

the slaughter of a cow, the slaughter of

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

and calves is prohibited, like that of other

bovines only if they are useful or likely to

become useful for the purposes of draught,

agricultural operations, breeding, giving milk

or bearing off spring. In order to give effect to

the policy of the Government towards further

securing the directive principle laid down in

article 48 of the Constitution namely

prohibiting the slaughter of cows and calves

and other milch and draught cattle, it was

considered necessary to impose a total

prohibition against slaughter of the aforesaid

progeny of a cow below the age of eighteen

years as they are useful for the aforesaid

purposes \ 005 "

The above-said Act was assented to by the Governor on
16th October 1979. The Act was given retrospective effect by
sub-section (2) of Section 1 thereof, which provided that the
amendment shall be deemed to have come into force on 28th
November, 1978.





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Digressing a little from the narration of legislative
development, here itself we may indicate that the constitutional
validity of the above amendment introduced by the Gujarat
Legislature into the Bombay Act was put in issue and came to be
dealt with initially by the Gujarat High Court and then this Court
by a Constitution Bench in Haji Usmanbhai Hasanbhai
Qureshi and Others v. State of Gujarat, (1986) 3 SCC 12.
The Gujarat High Court turned down the challenge and the
decision of the Gujarat High Court was upheld by this Court . We
will revert back to this decision a little later.



This was followed by the impugned legislation, the Bombay

Animal Preservation (Gujarat Amendment) Act, 1994. The

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

amended by Section 2 of the amending Act which reads as

under :

2. In the Bombay Animal Preservation
Act, 1954 (hereinafter referred to as "the
principal Act ") , in section 5, -



(1) in sub-section (1A) , for clauses (c)
and (d) , the following clauses shall be
substituted, namely :—

"(c) a bull;

(d) a bullock. ";

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

(i) in clause (a) , sub-clauses (ii) and
(Hi) shall be deleted;

(ii) in clause (b) , after the words "calf
of a cow", the words "bull or bullock" shall
inserted. "




\\




The Act was preceded by an Ordinance, a reference
provisions whereof is unnecessary. The Preambl
reads as under:

"WHEREAS it is established that cow and her
progeny sustain the health of the nation by
giving them the life giving milk which is so
essential an item in a scientifically balanced
diet;

AND WHEREAS the working bullocks are
indispensable for our agriculture for they supply
power more than any other animal;

AND WHEREAS the working bullocks are often
useful in ploughing the fields, drawal of water
from the wells and also very useful for drawing
carts for transporting grains and fodders from
the fields to the residences of farmers as well
as to the Agricultural Market Yards;




AND WHEREAS the dung of the animal is
cheaper than the artificial manures and
extremely useful for production of bio-gas;



AND WHEREAS it is established that the back-
bone of Indian agriculture is, in a manner of




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speaking the cow and her progeny and have,

on their back, the whole structure of the Indian

agriculture and its economic system;

AND WHEREAS it is expedient to give
effect to the policy of the State towards
securing the principles laid down in articles 47,
48 and in clauses (b) and (c) of articles 39 of
the Constitution of India and to protect,
preserve and sustain cow and its progeny; "

The Statement of Objects and Reasons and the facts set
out therein are of relevance and significance and hence are
reproduced hereunder:

"The existing provisions of the Bombay
Animal Preservation Act, 1954 provides for
prohibition against the slaughter of cow, calf
of a cow, and the bulls and bullocks below the
age of sixteen years. It is an established fact
that the cow and her progeny sustain the
health of the nation by giving them the life
giving milk which is so essential an item in a
scientifically balanced diet.

( /

The economy of the State of Gujarat is
still predominantly agricultural. In the
agricultural sector, use of animals for milch,
draught, breeding or agricultural purposes
has great importance. It has, therefore,
become necessary to emphasise preservation
and protection of agricultural animals like
bulls and bullocks. With the growing adoption
of non-conventional energy sources like bio-
gas plants, even waste material have come to
assume considerable value. After the cattle
cease to breed or are too old to do work, they
still continue to give dung for fuel, manure
and bio-gas, and therefore, they cannot be
said to be useless. It is well established that
the backbone of Indian agriculture is, in a
manner of speaking , the cow and her progeny
and have on their back, the whole structure
of the Indian agriculture and its economic
system.

In order to give effect to the policy of

the State towards securing the principles laid

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

of article 39 of the Constitution of India, it

was considered necessary also to impose total

prohibition against slaughter of progeny of

cow.

As the Gujarat Legislative Assembly was
not in session the Bombay Animal
Preservation (Gujarat Amendment) Ordinance,
1993 to amend the said Act was promulgated
to achieve the aforesaid object in the interest
of general public. This Bill seeks to replace the
said Ordinance by an Act of the State
Legislature. "

The Challenge to the Constitutional Validity




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The constitutional validity of the abovesaid legislation, that
is, the Bombay Animal Preservation (Gujarat Amendment) Act,
1994 was put in issue by four writ petitions filed in the High
Court which were heard and disposed of by a common judgment
dated April 16, 1998. Two of the writ petitions were filed by
individuals who were butchers by profession, and are known as
Kureshis . Two writ petitions were filed by the representative
bodies of Kureshis . Akhil Bharat Krishi Goseva Sangh sought for
intervention before the High Court and was allowed to be
impleaded as a party- respondent in the writ petitions . Hinsa
Virodhak Sangh, Jivan Jagruti Trust and Gujarat Prantiya Arya
Pratinidhi Sabha also sought for intervention and they were also
allowed to be impleaded by the High Court as party-respondents
in the writ petitions . The High Court allowed the writ petitions
and struck down the impugned legislation as ultra vires the
Constitution. The High Court held that the Amendment Act
imposed an unreasonable restriction on the fundamental rights
and therefore, it was ultra vires the Constitution. The effect of
the judgment of the High Court as summed up by the learned
Judges would be that there would not be a total ban on the
slaughter of bulls or bullocks above the age of 16 years; in other
words animals could be slaughtered consistently with the
provisions of the parent Act as it stood prior to the amendment
brought in by Gujarat Act No. 4 of 1994. Feeling aggrieved by
the said decision, the State of Gujarat and Akhil Bharat Krishi
Goseva Sangh have filed these appeals . Shree Ahimsa Army
Manav Kalyan Jeev Daya Charitable Trust, a Public Trust has
filed an appeal by special leave, seeking leave of this Court to
file the appeal, which has been granted.

On 17.2.2005, a three-Judge Bench of this Court, before
which the appeals came up for hearing directed the matter to be
placed for hearing before a Constitution Bench in the following
terms of the order :

"Parties to these appeals agree that the issue
involved in these appeals requires
interpretation of the provisions of the
Constitution of India especially in regard to
the status of Directive Principles vis- '-vis the
Fundamental Rights as well as the effect of
introduction of Articles 31C and 51A in the
Constitution .

Therefore, in view of Article 145(3) of the
Constitution, we think it appropriate that this
matter should be heard by a Bench of at least
5 Judges. "

On 19.7 .2005, the Constitution Bench which heard the
matter referred it to a Bench of seven Judges on an opinion that
certain prior decisions of this Court by Constitution Benches
might call for reconsideration. This is how the matter came to
be heard by this Bench .

We have heard Dr. L.M. Singhvi, Shri Soli J. Sorabjee and
Shri S.K. Dholakia, Senior Advocates who led the submissions
made on behalf of the appellants in the three sets of appeals.
We have also heard Shri G.L. Sanghi, Senior Advocate and Shri
Ramesh P. Bhatt, Senior Advocate, who led the arguments on
behalf of the respondents (writ petitioners in High Court) in the
several appeals. Before we notice and deal with the submissions
made by the learned senior counsel for the appellants and the




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respondents, it will be useful to set out and deal with some of
the decisions delivered by this Court which have been relied on
by the High Court in its impugned judgment, and on which
implicit and forceful reliance was placed by the learned senior
counsel for the respondents in support of the judgment of the
High Court .

Relevant Decisions of this Court

The most important and leading decision is Mohd. Hanif
Quareshi and Ors. v. State of Bihar and Ors . 1959 SCR 629
(hereinafter referred to as 'Quareshi-I' ) . We propose to deal
with this case somewhat in detail .

Three legislative enactments banning the slaughter of
certain animals were passed respectively by the States of Bihar,
Uttar Pradesh and Madhya Pradesh. In Bihar, the Bihar
Preservation and Improvement of Animals Act, 1956 (Bihar Act
II of 1956) was introduced which imposed a total ban on the
slaughter of all categories of animals belonging to the species of
bovine cattle. In Uttar Pradesh, the Uttar Pradesh Prevention of
Cow Slaughter Act, 1955 (U.P. Act I of 1956) was enacted which
also imposed a total ban on the slaughter of cows and her
progeny which included bulls, bullocks, heifers and cows. In the
State of Madhya Pradesh, it was the C.P. and Berar Animal
Preservation Act (Act LII of 1949) which was amended and
applied. It imposed a total ban on the slaughter of cows and
female calf of a cow. The male calf of a cow, bull, bullock,
buffalo (male or female, adult or calf) could be slaughtered only
on obtaining a certificate . The bans, as imposed by the three
legislations were the subject matter of controversy.

The challenge to the constitutional validity of the three
legislations was founded on the following three grounds, as was
dealt with in the judgment : (i) that the total ban offended the
religion of the Muslims as the sacrifice of a cow on a particular
day is enjoined or sanctioned by Islam; (ii) that such ban
offended the fundamental right guaranteed to the Kasais
(Butchers) under Article 19(1) (g) and was not a reasonable and
valid restriction on their right; and (Hi) 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 (Hi) that a total ban on slaughter of




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she-buffaloes , bulls and bullocks (cattle or buffalo) after they
ceased to be capable of yielding milk or of breeding or working
as draught animals could not be supported as reasonable in the
interests of the general public and was invalid.

The first ground of challenge was simply turned down due
to the meagre materials placed before their Lordships and the
bald allegations and denials made by the parties. No one
specially competent to expound the religious tenets of Islam filed
any affidavit and no reference was made to any particular Surah
of the Holy Quran which, in terms, requires the sacrifice of a
cow. It was noticed that many Muslims do not sacrifice cow on
the BakrI'd day. Their Lordships stated, inter alia :-
"It is part of the known history of India that
the Moghul Emperor Babar saw the wisdom of
prohibiting the slaughter of cows as and by
way of religious sacrifice and directed his son
Humayun to follow this example. Similarly
Emperors Akbar, Jehangir, and Ahmad Shah,
it is said, prohibited cow slaughter. Nawab
Hyder Ali of Mysore made cow slaughter an
offence punishable with the cutting of the
hands of the offenders . Three of the members
of the Gosamvardhan Enquiry Committee set
up by the Uttar Pradesh Government in 1953
were Muslims and concurred in the unanimous
recommendation for total ban on slaughter of
cows. We have, however, no material on the
record before us which will enable us to say,
in the face of the foregoing facts, that the
sacrifice of a cow on that day is an obligatory
overt act for a Mussalman to exhibit his
religious belief and idea. In the premises, it is
not possible for us to uphold this claim of the
petitioners." (p. 651)





'"



In State of West Bengal and Ors. v. Ashutosh Lahiri,
(1995) 1 SCC 189, this Court has noted that sacrifice of any
animal by muslims for the religious purpose on BakrI'd does not
include slaughtering of cow as the only way of carrying out that
sacrifice. Slaughtering of cow on BakrI'd is neither essential to
nor necessarily required as part of the religious ceremony . An
optional religious practice is not covered by Article 25(1). On
the contrary, it is common knowledge that cow and its progeny,
i.e., bull, bullocks and calves are worshipped by Hindus on
specified days during Diwali and other festivals like Makr
Sankranti and Gopashtmi . A good number of temples are to be
found where the statue of 'Nandi' or 'Bull' is regularly
worshipped. However, we do not propose to delve further into
the question as we must state, in all fairness to the learned
counsel for the parties, that no one has tried to build any
argument either in defence or in opposition to the judgment
appealed against by placing reliance on religion or Article 25 o
the Constitution.

Dealing with the challenge founded on Article 14 of the
Constitution, their Lordships reiterated the twin tests on the
anvil of which the reasonability of classification for the purpose
of legislation has to be tested, namely, (i) that the classification
must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out
of the group, and (ii) that such differentia must have a rational
relation to the object sought to be achieved by the statute in
question (p. 652). Applying the twin tests to the facts of the




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

that the objects sought to be achieved by the impugned Acts

were the preservation, protection and improvement of

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

the most important cattle for the agricultural economy of this

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

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

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

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

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

female buffaloes and have practically no utility as draught

animals. These different categories of animals being susceptible

of classification into separate groups on the basis of their

usefulness to society, the butchers who kill each category may

also be placed in distinct classes according to the effect produced

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

653) . Their Lordships added :—

"The attainment of these objectives may well

necessitate that the slaughterers of cattle

should be dealt with more stringently than the

slaughterers of, say, goats and sheep. The

impugned Acts, therefore, have adopted a

classification on sound and intelligible basis

and can quite clearly stand the test laid down

in the decisions of this Court . Whatever

objections there may be against the validity of

the impugned Acts the denial of equal

protection of the laws does not, prima facie,

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

bearing in mind the presumption of

constitutionality attaching to all enactments

founded on the recognition by the court of the

fact that the legislature correctly appreciates

the needs of its own people there appears to

be no escape from the conclusion that the

petitioners have not discharged the onus that

was on them and the challenge under Article

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

The challenge to the constitutional validity founded under
Article 14 was clearly and in no unmistaken terms turned down

The third contention, that is, whether the "total

prohibition" could be sustained as a reasonable restriction on the
fundamental right of the butchers to slaughter animals of their
liking or in which they were trading, was dealt with in great
detail. This is the aspect of the decision of the Constitution
Bench in Quareshi-I which, in the submission of the learned
senior counsel for the appellants, was not correctly decided and,
therefore, calls for reconsideration. The question was dealt with
by their Lordships from very many angles . Whether the
restrictions permissible under clause (6) of Article 19 may

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

a vexed question and was left open without expressing any final
opinion as their Lordships chose to concentrate on the issue as
to whether the restriction was at all reasonable in the interests
of the general public, de hors the fact whether it could be held to
be partial or total .

Their Lordships referred to a lot of documentary evidence
which was produced before them, such as (i) the figures of 1951
Animals' Census; (ii) Report on the Marketing of Cattle in India
issued by the Directorate of Marketing and Inspection, Ministry
of Goods and Agriculture, Government of India, 1956; and (Hi)
the figures given in the First and Second Five Years Plans and so






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on. Their Lordships concluded that if the purpose of sustaining
the health of the nation by the usefulness of the cow and her
progeny was achieved by the impugned enactments the
restriction imposed thereby could be held to be reasonable in the
interest of the general public.

Their Lordships referred to other documents as well . The
findings of fact arrived at, based on such evidence may briefly be
summed up. In the opinion of their Lordships, cow progeny
ceased to be useful as a draught cattle after a certain age and
they, although useful otherwise, became a burden on the limited
fodder available which, but for the so-called useless animals,
would be available for consumption by milch and draught
animals. The response of the States in setting up Gosadans
(protection home for cow and cow progeny) was very poor. It
was on appreciation of the documentary evidence and the
deduction drawn therefrom which led their Lordships to conclude
that in spite of there being a presumption in favour of the
validity of the legislation and respect for the opinion of the
legislatures as expressed by the three impugned enactments,
they were inclined to hold that a total ban of the nature imposed
could not be supported as reasonable in the interests of the
general public.

/ / %\

While dealing with the submissions made by the learned

senior counsel before us, we would once again revert to this
judgment. It would suffice to observe here that, excepting for
one limited ground, all other grounds of challenge to the
constitutional validity of the impugned enactments had failed.

In Abdul Hakim Quraishi & Ors . v.
State of Bihar, (1961) 2 SCR 610 (hereinafter referred to as
Quraishi-II) once again certain amendments made by the
Legislatures of the States of Bihar, Madhya Pradesh and Uttar
Pradesh were put in issue. The ground of challenge was
confined to Article 19(1) (g) read with Article 19(6) . The ban as
imposed by the impugned Act was once again held to be 'total'
and hence an unreasonable restriction. The Constitution Bench,
by and large, chose to follow the dictum of this Court in
Quareshi-I .




In Mohammed Faruk v. State of Madhya Pradesh &
Ors., (1969) 1 SCC 853, the State Government issued a
notification whereby the earlier notification issued by the
Jabalpur Municipality which permitted the slaughter of bulls and
bullocks along with other animals was recalled. Para 6 of the
judgment notes the anguish of the Constitution Bench, as in the
opinion of their Lordships , the case was apparently another
attempt, though on a restricted scale, to circumvent the
judgment of this Court in Quareshi-I . Vide para 9, their
Lordships have noticed the decision of this Court in Narendra
Kumar & Ors. v. The Union of India and Ors., (1960) 2
SCR 375, which upholds the view that the term "restriction" in
Articles 19(5) and 19(6) of the Constitution includes cases of
"prohibition" also. Their Lordships drew a distinction between
cases of "control" and "prohibition" and held that when the
exercise of a fundamental right is prohibited, the burden of
proving that a total ban on the exercise of the right alone would
ensure the maintenance of the general public interest lies heavily
upon the State. As the State failed in discharging that burden,
the notification was held liable to be struck down as imposing an
unreasonable restriction on the fundamental right of the
petitioners .

In Haji Usmanbhai Hassanbhai Qureshi and Ors. v.




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State of Gujarat, (1986) 3 SCC 12 (hereinafter referred to as
' Qureshi-III' ) the constitutional validity of the Bombay Act as
amended by Gujarat Act 16 of 1961 was challenged. The ban
prohibited slaughter of bulls and bullocks below the age of 16
years. The petitioners pleaded that such a restriction on their
right to carry on the trade or business in beef and allied articles
was unreasonable . Yet another plea was urged that the total
ban offended their religion as qurbani (sacrifice) at the time of
BakrI'd or Id festival as enjoined and sanctioned by Islam. The
High Court rejected the challenge on both the grounds. The writ
petitioners came in appeal to this Court . The appeal was
dismissed. While doing so, this Court took note of the material
made available in the form of an affidavit filed by the Under
Secretary to the Government of Gujarat, Agriculture, Forest and
Cooperation Department wherein it was deposed that because
of improvement and more scientific methods of cattle breeding
and advancement in the science of looking after the health of
cattle in the State of Gujarat, today a situation has been reached
wherein the cattle remain useful for breeding, draught and other
agricultural purposes above the age of 16 years as well. As the
bulls and bullocks upto the 16 years of age continued to be
useful, the prescription of the age of 16 years up to which they
could not be slaughtered was held to be a reasonable restriction,
keeping in mind the balance which has to be struck between
public interest which requires useful animals to be preserved,
and permitting the appellants (writ petitioners) to carry on their
trade and profession. The test of reasonableness of the
restriction on the fundamental right guaranteed by Article
19(1) (g) was held to have been satisfied.



The challenge based on Article 14 of the Constitution
alleging the impugned legislation to be discriminatory, as it was
not uniform in respect of all cattle, was rejected.

The Court also held that buffaloes and their progeny, on
the one hand and cows and their progeny, on the other hand
constitute two different classes and their being treated
differently does not amount to hostile discrimination.

In Hashmattullah v. State of M.P. and Others, (1996)
4 SCC 391, vires of M.P. Krishik Pashu Parirakshan
(Sanshodhan) Adhiniyam, 1991 imposing a total ban on the
slaughter of bulls and bullocks in the State of Madhya Pradesh
was challenged. The validity of the amending Act was upheld by
the High Court . The writ petitioners came up in appeal to this
Court which was allowed and the amending Act was struck down
as ultra vires the Constitution.

In State of West Bengal and others v. Ashutosh
Lahiri and Others, (1995) 1 SCC 189, the legislation impugned
therein permitted slaughter of cows on the occasion of BakrI'd
subject to an exemption in that regard being allowed by the
State Government . The power to grant such an exemption was
challenged. The High Court allowed the writ petition and struck
down the power of the State Government to grant such an
exemption. There was a total ban imposed on the slaughter of
healthy cows and other animals mentioned in the schedule under
Section 2 of the Act. The State of West Bengal appealed. On a
review of earlier decisions of this Court, the three- Judge Bench
concluded that it was a settled legal position that there was no
fundamental right of Muslims to insist on slaughter of healthy
cows on the occasion of BakrI'd. The contention that not only an
essential religious practice under Article 25(1) of Constitution,
but even optional religious practice could be permitted, was
discarded. The Court held \026 "We, therefore, entirely concur with





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the view of the High Court that slaughtering of healthy cows on
BakrI'd is not essential or required for religious purpose of
Muslims or in other words it is not a part of religious requirement
for a Muslim that a cow must be necessarily sacrificed for
earning religious merit on BakrI'd. "

Issues in Present Set of Appeals

Though there is no explicit concession given but it became
clear during the course of prolonged hearing before us that the
decision of this case hinges much on the answer to the question
whether the view of this Court in Quareshi-I is to be upheld or
not . While the submission of the learned senior counsel for the
appellants has been that, to the extent the Constitution Bench in
Quareshi-I holds the total ban on slaughter of cow progeny to
be unconstitutional, it does not lay down good law for various
reasons, the learned senior counsel for the writ petitioners-
respondents has submitted that Quareshi-I leads a chain of five
decisions of this Court which in view of the principle of stare
decisis, this Court should not upset . The learned senior counsel
for the appellants find following faults with the view taken by
this Court in Quareshi-I, to the extent to which it goes against
the appellants :-

(1) Quareshi-I holds Directive Principles of State Policy
to be unenforceable and subservient to the
Fundamental Rights and, therefore, refuses to assign

any weight to the Directive Principle contained in
Article 48 of the Constitution and refuses to hold that
its implementation can be a valid ground for proving
reasonability of the restriction imposed on the
Fundamental Right guaranteed by Article 19(1) (g) of
the Constitution \026 a theory which stands discarded in
a series of subsequent decisions of this Court .

(2) What has been noticed in Quareshi-I is Article 48
alone; Article 48A and Article 5lA(g) were not
noticed as they were not available then, as they
were introduced in the Constitution by Forty-second
Amendment with effect from 3 . 1 . 1977 .

(3) The meaning assigned to "other milch and draught
cattle" in Quareshi-I is not correct. Such a narrow
view as has been taken in Quareshi-I does not fit
into the scheme of the Constitution and, in
particular, the spirit of Article 48.

<\

(4) Quareshi-I does not assign the requisite weight to
the facts contained in the Preamble and Statement
of Objects and Reasons of the enactments impugned
therein .






(5) 'Restriction' and 'Regulation' include 'Prohibition' and
a partial restraint does not amount to total
prohibition. Subsequent to the decision in
Quareshi-I the trend of judicial decisions in this
area indicates that regulation or restriction within the
meaning of Articles 19(5) and 19(6) of the
Constitution includes total prohibition - the question
which was not answered and left open in
Quareshi-I .

(6) In spite of having decided against the writ petitioners
on all their principal pleas, the only ground on which
the constitutional validity of the impugned
enactments was struck down in Quareshi-I is
founded on the finding of facts that cow progeny




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ceased to be useful after a particular age, that
preservation of such 'useless cattle' by establishment
of gosadan was not a practical and viable
proposition, that a large percentage of the animals,
not fit for slaughter, are slaughtered surreptitiously
outside the municipal limits, that the quantum of
available fodder for cattle added with the
dislodgment of butchers from their traditional
profession renders the total prohibition on slaughter
not in public interest. The factual situation has
undergone a drastic change since then and hence
the factual foundation, on which the legal finding has
been constructed, ceases to exist depriving the later
of all its force.

The learned senior counsel for the appellants further
submitted that Quareshi-I forms the foundation for subsequent
decisions and if the very basis of Quareshi-I crumbles, the
edifice of subsequent decisions which have followed Quareshi-I
would also collapse. We will examine the validity of each of the
contentions so advanced and at the end also examine whether
the principle of stare decisis prevents us from reopening the
question answered in favour of writ petitioners in Quareshi-I .

PART \026 II

Question-1. Fundamental Rights and Directive Principles :—

"It was the Sapru Committee (1945) which initially
suggested two categories of rights: one justiciable and the other
in the form of directives to the State which should be regarded as
fundamental in the governance of the country \005 Those directives
are not merely pious declarations . It was the intention of the
framers of the Constitution that in future both the Legislature and
the Executive should not merely pay lip service to these
principles but they should be made the basis of all legislative and
executive actions that the future Government may be taking in
matter of governance of the country. (Constituent Assembly
Debates, Vol.7, at page 41)" (See: The Constitution of India, D.J.
De, Second Edition, 2005, p. 1367). If we were to trace the
history of conflict and irreconciliability between Fundamental
Rights and Directive Principles, we will find that the development
of law has passed through three distinct stages.

To begin with, Article 37 was given a literal meaning
holding the provisions contained in Part IV of the Constitution to
be unenforceable by any Court. In The State of Madras v.
Srimathi Champakam Dorairajan, 1951 SCR 525, it was held
that the Directive Principles of State Policy have to conform to
and run as subsidiary to the Chapter of Fundamental Rights. The
view was reiterated in Deep Chand and Anr. v. The State of
Uttar Pradesh and Others, 1959 Supp. (2) SCR 8. The Court
went on to hold that disobedience to Directive Principles cannot
affect the legislative power of the State. So was the view taken
in In Re : The Kerala Education Bill, 1957 , 1959 SCR 995.

With L.C. Golak Nath and others v. State of Punjab
and Another, (1967) 2 SCR 762, the Supreme Court departed
from the rigid rule of subordinating Directive Principles and
entered the era of harmonious construction. The need for
avoiding a conflict between Fundamental Rights and Directive
Principles was emphasized, appealing to the legislature and the
courts to strike a balance between the two as far as possible.
Having noticed Champakam (supra) even the Constitution
Bench in Quareshi-I chose to make a headway and held that the




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Directive Principles nevertheless are fundamental in the
governance of the country and it is the duty of the State to give
effect to them. "A harmonious interpretation has to be placed
upon the Constitution and so interpreted it means that the State
should certainly implement the directive principles but it must do
so in such a way that its laws do not take away or abridge the
fundamental rights, for otherwise the protecting provisions of
Part III will be a 'mere rope of sand' . " Thus, Quareshi-I did
take note of the status of Directive Principles having been
elevated from ' sub-ordinate' or ' sub- servient' to 'partner' of
Fundamental Rights in guiding the nation.



His Holiness Kesavananda Bharati Sripadagalvaru
and Anr. v. State of Kerala and Anr . , (1973) 4 SCC 225, a
thirteen-Judge Bench decision of this Court is a turning point in
the history of Directive Principles jurisprudence . This decision
clearly mandated the need for bearing in mind the Directive
Principles of State Policy while judging the reasonableness of the
restriction imposed on Fundamental Rights. Several opinions
were recorded in Kesavananda Bharati and quoting from them
would significantly increase the length of this judgment . For our
purpose, it would suffice to refer to the seven-Judge Bench
decision in Pathumma and Others v. State of Kerala and
Ors., (1978) 2 SCC 1, wherein the learned Judges neatly
summed up the ratio of Kesavananda Bharati and other
decisions which are relevant for our purpose. Pathumma (supra)
holds : -

" (1) Courts interpret the constitutional
provisions against the social setting of the
country so as to show a complete
consciousness and deep awareness of the
growing requirements of society, the
increasing needs of the nation, the burning
problems of the day and the complex issues
facing the people, which the legislature, in
wisdom, through beneficial legislation, seeks
to solve. The judicial approach should be
dynamic rather than static, pragmatic and not
pedantic and elastic rather than rigid. This
Court while acting as a sentinel on the qui
vive to protect fundamental rights guaranteed
to the citizens of the country must try to
strike a just balance between the fundamental
rights and the larger and broader interests of
society so that when such a right clashes with
a larger interest of the country it must yield to
the latter. (Para 5)

(2) The Legislature is in the best position to
understand and appreciate the needs of the
people as enjoined in the Constitution. The
Court will interfere in this process only when
the statute is clearly violative of the right
conferred on a citizen under Part III or when
the Act is beyond the legislative competence
of the legislature . The courts have recognised
that there is always a presumption in favour
of the constitutionality of the statutes and the
onus to prove its invalidity lies on the party
which assails it . (Para 6)




(3) The right conferred by Article 19(1) (f) is
conditioned by the various factors mentioned
in clause (5) . (Para 8)



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(4) The following tests have been laid down as
guidelines to indicate in what particular
circumstances a restriction can be regarded as
reasonable :

(a) In judging the reasonableness
of the restriction the court has to
bear in mind the Directive
Principles of State Policy. (Para
8)

(b) The restrictions must not be
arbitrary or of an excessive nature
so as to go beyond the
requirements of the interests of
the general public. The legislature
must take intelligent care and
deliberation in choosing the
course which is dictated by reason
and good conscience so as to
strike a just balance between the
freedom in the article and the
social control permitted by the
restrictions under the article.

(Para 14)

(c) No abstract or general pattern
or fixed principle can be laid down
so as to be of universal
application. It will have to vary
from case to case and having
regard to the changing conditions,
the values of human life, social
philosophy of the Constitution,
prevailing conditions and the
surrounding circumstances all of
which must enter into the judicial
verdict . (Para 15)



(d) The Court is to examine the
nature and extent, the purport
and content of the right, the
nature of the evil sought to be
remedied by the statute, the ratio
of harm caused to the citizen and
the benefit conferred on the
person or the community for
whose benefit the legislation is
passed. (Para 18 )

(e) There must be a direct and
proximate nexus or a reasonable
connection between the restriction
imposed and the object which is
sought to be achieved. (Para 20)

(f) The needs of the prevailing
social values must be satisfied by

the restrictions meant to protect
social welfare. (Para 22)

(g) The restriction has to be
viewed not only from the point of
view of the citizen but the





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problem before the legislature and
the object which is sought to be
achieved by the statute. In other
words, the Court must see
whether the social control
envisaged by Article 19 (1) is
being effectuated by the
restrictions imposed on the
fundamental right . However
important the right of a citizen or
an individual may be it has to
yield to the larger interests of the
country or the community. (Para

24)

(h) The Court is entitled to take
into consideration matters of
common report history of the
times and matters of common
knowledge and the circumstances
existing at the time of the
legislation for this purpose. (Para
25) "
(underlining by us)

/ \

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

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

out and summarized the ratio of this Court in Kesavananda

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

from the opinion of several Judges in Kesavananda Bharati

and then opined:

"In view of the principles adumbrated by

this Court it is clear that the directive principles

form the fundamental feature and the social

conscience of the Constitution and the

Constitution enjoins upon the State to

implement these directive principles. The

directives thus provide the policy, the

guidelines and the end of socio-economic

freedom and Articles 14 and 16 are the means

to implement the policy to achieve the ends

sought to be promoted by the directive

principles. So far as the courts are concerned

where there is no apparent inconsistency

between the directive principles contained in

Part IV and the fundamental rights mentionec

in Part III, which in fact supplement each

other, there is no difficulty in putting a

harmonious construction which advances the

object of the Constitution. Once this basic fact

is kept in mind, the interpretation of Articles

14 and 16 and their scope and ambit become

as clear as day. "

The message of Kesavananda Bharati is clear. The
interest of a citizen or section of a community, howsoever
important, is secondary to the interest of the country or
community as a whole. For judging the reasonability of
restrictions imposed on Fundamental Rights the relevant
considerations are not only those as stated in Article 19 itself or
in Part-Ill of the Constitution; the Directive Principles stated in
Part-IV are also relevant. Changing factual conditions and State
policy, including the one reflected in the impugned enactment,
have to be considered and given weightage to by the courts while




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deciding the constitutional validity of legislative enactments . A

restriction placed on any Fundamental Right, aimed at securing

Directive Principles will be held as reasonable and hence intra

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

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

been enacted within the legislative competence of the enacting

legislature under Part XI Chapter I of the Constitution.

In Municipal Corporation of the City of Ahmedabad &
Ors . v. Jan Mohammed Usmanbhai & Anr . , (1986) 3 SCC
20, what was impugned before the High Court was a standing
order issued by the Municipal Commissioner of the State of
Ahmedabad, increasing the number of days on which slaughter
houses should be kept closed to seven, in supersession of the
earlier standing order which directed the closure for only four
days. The writ petitioner, a beef dealer, challenged the
constitutional validity of the impugned standing orders (both, the
earlier and the subsequent one) as violative of Articles 14 and
19(1) (g) of the Constitution . The challenge based on Articles 14
of the Constitution was turned down both by the High Court and
the Supreme Court . However, the High Court had struck down
the seven days closure as not "in the interests of the general
public" and hence not protected by Clause (6) of Article 19 of the
Constitution. In appeal preferred by the Municipal Corporation,
the Constitution Bench reversed the Judgment of the High Court
and held that the objects sought to be achieved by the impugned
standing orders were the preservation, protection and
improvement of live-stock, which is one of the Directive
Principles . Cows, bulls, bullocks and calves of cows are no doubt
the most important cattle for our agricultural economy. They
form a separate class and are entitled to be treated differently
from other animals such as goats and sheep, which are
slaughtered. The Constitution Bench ruled that the expression
"in the interests of general public" is of a wide import covering
public order, public health, public security, morals, economic
welfare of the community and the objects mentioned in Part IV
of the Constitution.




In Workmen of Meenakshi Mills Ltd. and Others, v
Meenakshi Mills Ltd. and Anr. , (1992) 3 SCC 336, the
Constitution Bench clearly ruled (vide para 27) \026 "Ordinarily any
restriction so imposed which has the effect of promoting or
effectuating a directive principle can be presumed to be a
reasonable restriction in public interest . " Similar view is taken in
Papnasam Labour Union v. Madura Coats Ltd. and Anr. ,
(1995) 1 SCC 501.





Directive Principles

Long back in The State of Bombay and anr. v. F.N.
Balsara, 1951 SCR 682, a Constitution Bench had ruled that in
judging the reasonableness of the restrictions imposed on the
Fundamental Rights, one has to bear in mind the Directive
Principles of State Policy set-forth in Part IV of the Constitution,
while examining the challenge to the constitutional validity of law
by reference to Article 19(1) (g) of the Constitution .

In a comparatively recent decision of this Court in M.R.F.
Ltd. v. Inspector, Kerala Govt, and Ors., (1998) 8 SCC 227,
this Court, on a conspectus of its various prior decisions
summed up principles as 'clearly discernible' , out of which three
that are relevant for our purpose, are extracted and reproduced
hereunder .




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"13. On a conspectus of various decisions of

this Court, the following principles are clearly
discernible :

(1) While considering the

reasonableness of the restrictions , the court
has to keep in mind the Directive Principles of
State Policy.



XXX



XXX



XXX



XXX



(3) In order to judge the

reasonableness of the restrictions , no abstract
or general pattern or a fixed principle can be
laid down so as to be of universal application
and the same will vary from case to case as
also with regard to changing conditions, values
of human life, social philosophy of the
Constitution, prevailing conditions and the
surrounding circumstances.



XXX



X,



XX




XXX



XXX



,




(6) There must be a direct and

proximate nexus or a reasonable connection
between the restrictions imposed and the
object sought to be achieved. If there is a
direct nexus between the restrictions and the
object of the Act, then a strong presumption in
favour of the constitutionality of the Act
naturally arise. (See: Kavalappara
Kottarathil Kochuni Vs. State of Madras
and Kerala, (1960) 3 SCR 887; O.K. Ghosh
Vs. E.X. Joseph, 1963 Supp. (1) SCR 789)

Very recently in Indian Handicrafts Emporium and Ors .
v. Union of India and Ors., (2003) 7 SCC 589, this Court while
dealing with the case of a total prohibition reiterated that
'regulation' includes 'prohibition' and in order to determine
whether total prohibition would be reasonable, the Court has to
balance the direct impact on the fundamental right of the citizens
as against the greater public or social interest sought to be
ensured. Implementation of the Directive Principles contained in
Part IV is within the expression of 'restriction in the interests of
the general public' .

Post Kesavananda Bharati so far as the determination of
the position of Directive Principles, vis-a-vis Fundamental Rights
are concerned, it has been an era of positivism and creativity.
Article 37 of the Constitution which while declaring the Directive
Principles to be unenforceable by any Court goes on to say \026
"that they are nevertheless fundamental in the governance of
the country. " Several clauses of Article 37 themselves need to be
harmoniously construed assigning equal weightage to all of them.
The end part of Article 37 \026 "It shall be the duty of the State to
apply these principles in making laws " is not a pariah but a
constitutional mandate. The series of decisions which we have
referred to hereinabove and the series of decisions which
formulate the 3-stages of development of the relationship
between Directive Principles and Fundamental Rights undoubtedly
hold that, while interpreting the interplay of rights and
restrictions , Part-Ill (Fundamental Rights) and Part-IV (Directive
Principles) have to be read together. The restriction which can
be placed on the rights listed in Article 19(1) are not subject only




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to Articles 19(2) to 19(6); the provisions contained in the chapter
on Directive Principles of State Policy can also be pressed into
service and relied on for the purpose of adjudging the
reasonability of restrictions placed on the Fundamental Rights.

Question \026 2 Fundamental Rights and Articles 48, 48-A and
51-A (g) of Constitution

Articles 48, 48-A and 51-A(g) (relevant clause) of the
Constitution read as under :-
"48. Organisation of agriculture and
animal husbandry. \027The State shall
endeavour to organise agriculture and animal
husbandry on modern and scientific lines and
shall, in particular, take steps for preserving
and improving the breeds, and prohibiting the
slaughter, of cows and calves and other milch
and draught cattle.

48-A. Protection and improvement of

environment and safeguarding of forests

and wild life. \027The State shall endeavour to

protect and improve the environment and to

safeguard the forests and wild life of the

country.

51-A. Fundamental duties . \027It shall be the
duty of every citizen of India\027

(g) to protect and improve the natural
environment including forests, lakes, rivers
and wild life, and to have compassion for
living creatures; "

Articles 48-A and 51-A have been introduced into the body
of the Constitution by the Constitution (Forty-second
Amendment) Act, 1976 with effect from 3.1.1977. These
Articles were not a part of the Constitution when Quareshi-I ,
Quraishi-II and Mohd. Faruk' s cases were decided by this
Court. Further, Article 48 of the Constitution has also been
assigned a higher weightage and wider expanse by the Supreme
Court post Quareshi-I . Article 48 consists of two parts. The
first part enjoins the State to "endeavour to organize agricultural
and animal husbandry" and that too "on modern and scientific
lines". The emphasis is not only on 'organization' but also on
'modern and scientific lines' . The subject is 'agricultural and
animal husbandry' . India is an agriculture based economy .
According to 2001 census, 72.2% of the population still lives in
villages (See- India Vision 2020, p. 99) and survives for its
livelihood on agriculture, animal husbandry and related
occupations . The second part of Article 48 enjoins the State,
de hors the generality of the mandate contained in its first part,
to take steps, in particular, "for preserving and improving the
breeds and prohibiting the slaughter of cows and calves and
other milch and draught cattle".

Article 48-A deals with "environment, forests and wild life".
These three subjects have been dealt with in one Article for the
simple reason that the three are inter-related. Protection and
improvement of environment is necessary for safeguarding
forests and wild life, which in turn protects and improves the
environment . Forests and wild life are clearly inter-related and
inter-dependent. They protect each other.

Cow progeny excreta is scientifically recognized as a





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source of rich organic manure. It enables the farmers avoiding
the use of chemicals and inorganic manure. This helps in
improving the quality of earth and the environment . The
impugned enactment enables the State in its endeavour to
protect and improve the environment within the meaning of
Article 48A of the Constitution.

By enacting clause (g) in Article 51-A and giving it the
status of a fundamental duty, one of the objects sought to be
achieved by the Parliament is to ensure that the spirit and
message of Articles 48 and 48A is honoured as a fundamental
duty of every citizen. The Parliament availed the opportunity
provided by the Constitution (Forty-second Amendment) Act,
1976 to improve the manifestation of objects contained in Article
48 and 48-A. While Article 48-A speaks of "environment", Article
51-A(g) employs the expression "the natural environment" and
includes therein "forests, lakes, rivers and wild life". While Article
48 provides for "cows and calves and other milch and draught
cattle", Article 51-A(g) enjoins it as a fundamental duty of every
citizen "to have compassion for living creatures", which in its
wider fold embraces the category of cattle spoken of specifically
in Article 48.

In AIIMS Students' Union v. AIIMS and Ors . , (2002)
1 SCC 428, a three-Judge Bench of this Court made it clear that
fundamental duties, though not enforceable by writ of the court,
yet provide valuable guidance and aid to interpretation and
resolution of constitutional and legal issues. In case of doubt,
peoples' wish as expressed through Article 51-A can serve as a
guide not only for resolving the issue but also for constructing or
moulding the relief to be given by the courts. The fundamental
duties must be given their full meaning as expected by the
enactment of the Forty-second Amendment . The Court further
held that the State is, in a sense, 'all the citizens placed
together' and, therefore, though Article 51A does not expressly
cast any fundamental duty on the State, the fact remains that
the duty of every citizen of India is, collectively speaking, the
duty of the State.



In Mohan Kumar Singhania & Ors. v. Union of India
& Ors., 1992 Supp (1) SCC 594, a governmental decision to
give utmost importance to the training programme of the Indian
Administrative Service selectees was upheld by deriving support
from Article 51-A(j) of the Constitution, holding that the
governmental decision was in consonance with one of the
fundamental duties.




In State of U.P. v. Yamuna Shanker Misra & Ors.,
(1997) 4 SCC 7, this Court interpreted the object of writing the
confidential reports and making entries in the character rolls by
deriving support from Article 51-A(j) which enjoins upon every
citizen the primary duty to constantly endeavour to strive
towards excellence, individually and collectively .

In Rural Litigation and Entitlement Kendra & Ors. v.
State of Uttar Pradesh & Ors., 1986 (Supp) SCC 517, a
complete ban and closing of mining operations carried on in the
Mussoorie hills was held to be sustainable by deriving support
from the fundamental duty as enshrined in Article 51-A(g) of the
Constitution. The Court held that preservation of the
environment and keeping the ecological balance unaffected is a
task which not only Governments but also every citizen must
undertake. It is a social obligation of the State as well as of the
individuals .




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In T.N. Godavarman Thirumalpad v. Union of India
& Ors., (2002) 10 SCC 606, a three-Judge Bench of this Court
read Article 48-A and Article 51-A together as laying down the
foundation for a jurisprudence of environmental protection and
held that "Today, the State and the citizens are under a
fundamental obligation to protect and improve the environment,
including forests, lakes, rivers, wild life and to have compassion
for living creatures" .

In State of W.B. & Ors. v. Sujit Kumar Rana, (2004)
4 SCC 129, Articles 48 and 51-A(g) of the Constitution were
read together and this Court expressed that these provisions
have to be kept in mind while interpreting statutory provisions .

It is thus clear that faced with the question of testing the
constitutional validity of any statutory provision or an executive
act, or for testing the reasonableness of any restriction cast by
law on the exercise of any fundamental right by way of
regulation, control or prohibition, the Directive Principles of State
Policy and Fundamental Duties as enshrined in Article 51-A of
the Constitution play a significant role. The decision in
Quareshi-I in which the relevant provisions of the three
impugned legislations was struck down on the singular ground of
lack of reasonability , would have decided otherwise if only Article
48 was assigned its full and correct meaning and due weightage
was given thereto and Articles 48-A and 51-A(g) were available
in the body of the Constitution.

Question \026 3 : Milch and draught cattle, meaning of, in
Article 48

Article 48 employs the expression 'cows and calves and
other milch and draught cattle' . What meaning is to be assigned
to the expression 'milch and draught cattle'?

\
The question is whether when Article 48 precludes

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

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

not be slaughtered or whether such species are protected only

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

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

or permanently?

According to their inherent genetic qualities, cattle breeds

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

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

cattle breeds which have an inherent potential for milk

production whereas draught breeds have an inherent potential

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

purpose breeds have the potential to perform both the above

functions .

The term draught cattle indicates "the act of moving loads
by drawing or pulling i.e. pull and traction etc. Chambers 20th
Century Dictionary defines 'draught animal' as 'one used for
drawing heavy loads ' .

Cows are milch cattle. Calves become draught or milch
cattle on attaining a particular age. Having specifically spoken of
cows and calves, the latter being a cow progeny, the framers of
the Constitution chose not to catalogue the list of other milch and
draught cattle and felt satisfied by employing a general
expression "other milch and draught cattle" which in their opinion
any reader of the Constitution would understand in the context of
the previous words "cows and calves " .




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"Milch and draught ", the two words have been used as
adjectives describing and determining the quality of the noun
'cattle' . The function of a descriptive or qualitative adjective is to
describe the shape, colour, size, nature or merits or demerits of
the noun which they precede and qualify. In a document like
the Constitution, such an adjective cannot be said to have been
employed by the framers of the Constitution for the purpose of
describing only a passing feature, characteristic or quality of the
cattle. The object of using these two adjectives is to enable
classification of the noun \026 'cattle' which follows. Had it been
intended otherwise, the framers of the Constitution would have
chosen a different expression or setting of words.

No doubt, cow ceases to be 'milch' after attaining a
particular age. Yet, cow has been held to be entitled to
protection against slaughter without regard to the fact that it has
ceased to be 'milch' . This constitutional position is well settled.
So is the case with calves. Calves have been held entitled to
protection against slaughter without regard to their age and
though they are not yet fit to be employed as 'draught cattle' .
Following the same construction of the expression, it can be said
that the words "calves and other milch and draught cattle" have
also been used as a matter of description of a species and not
with regard to age. Thus, 'milch and draught' used as adjectives
simply enable the classification or description of cattle by their
quality, whether they belong to that species. This classification is
with respect to the inherent qualities of the cattle to perform a
particular type of function and is not dependant on their
remaining functional for those purposes by virtue of the age of
the animal. "Milch and draught cattle" is an expression employed
in Article 48 of the Constitution so as to distinguish such cattle
from other cattle which are neither milch nor draught.

Any other meaning assigned to this expression is likely to
result in absurdity. A milch cattle goes through a life cycle during
which it is sometimes milch and sometimes it becomes dry. This
does not mean that as soon as a milch cattle ceases to produce
milk, for a short period as a part of its life cycle, it goes out of the
purview of Article 48, and can be slaughtered. A draught cattle
may lose its utility on account of injury or sickness and may be
rendered useless as a draught cattle during that period. This
would not mean that if a draught cattle ceases to be of utility for
a short period on account of sickness or injury, it is excluded
from the definition of 'draught cattle' and deprived of the benefit
of Article 48.

This reasoning is further strengthened by Article 51A(g) of
the Constitution. The State and every citizen of India must have
compassion for living creatures. Compassion, according to
Oxford Advanced Learners' Dictionary means "a strong feeling of
sympathy for those who are suffering and a desire to help them".
According to Chambers 20th Century Dictionary, compassion is
"fellow \026 feeling, or sorrow for the sufferings of another : pity"
Compassion is suggestive of sentiments, a soft feeling, emotions
arising out of sympathy, pity and kindness. The concept of
compassion for living creatures enshrined in Article 51A (g) is
based on the background of the rich cultural heritage of India \026
the land of Mahatama Gandhi, Vinobha, Mahaveer, Budha, Nanak
and others . No religion or holy book in any part of the world
teaches or encourages cruelty. Indian society is a pluralistic
society. It has unity in diversity. The religions, cultures and
people may be diverse, yet all speak in one voice that cruelty to
any living creature must be curbed and ceased. A cattle which
has served human beings is entitled to compassion in its old age
when it has ceased to be milch or draught and becomes so-called




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'useless' . It will be an act of reprehensible ingratitude to
condemn a cattle in its old age as useless and send it to a
slaughter house taking away the little time from its natural life
that it would have lived, forgetting its service for the major part
of its life, for which it had remained milch or draught . We have
to remember : the weak and meek need more of protection and
compassion .

In our opinion, the expression 'milch or draught cattle' as
employed in Article 48 of the Constitution is a description of a
classification or species of cattle as distinct from cattle which by
their nature are not milch or draught and the said words do not
include milch or draught cattle, which on account of age or
disability, cease to be functional for those purposes either
temporarily or permanently . The said words take colour from the
preceding words "cows or calves". A specie of cattle which is
milch or draught for a number of years during its span of life is to
be included within the said expression. On ceasing to be milch or
draught it cannot be pulled out from the category of "other milch
and draught cattle. "

Question - 4 : Statement of Objects and Reasons -
Significance and Role thereof

/ X <\

Reference to the Statement of Objects and Reasons is
permissible for understanding the background, antecedent state
of affairs in relation to the statute, and the evil which the

statute was sought to remedy. (See Principles of Statutory

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

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

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

the constitutional validity of the legislation impugned therein.

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

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

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

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

addition to testing the reasonableness of the restrictions

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

indeed very unfortunate that the Statement of Objects and

Reasons was not placed before the High Court which would

have assisted the High Court in arriving at the right conclusion

as to the reasonableness of the restriction imposed. State of

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

approved the use of Statement of Objects and Reasons for the

purpose of understanding the background and the antecedent

state of affairs leading upto the legislation.





In Quareshi-I itself, which has been very strongly relied
upon by the learned counsel for the respondents before us,
Chief Justice S.R. Das has held:-
" Pronouncements of this Court further
establish, amongst other things, that there is
always a presumption in favour of the
constitutionality of an enactment and that the
burden is upon him, who attacks it, to show
that there has been a clear violation of the
constitutional principles. The courts, it is
accepted, must presume that the legislature
understands and correctly appreciates the
needs of its own people, that its laws are
directed to problems made manifest by
experience and that its discriminations are
based on adequate grounds. It must be borne
in mind that the legislature is free to
recognise degrees of harm and may confine




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its restrictions to those cases where the need
is deemed to be the clearest and finally that in
order to sustain the presumption of
constitutionality the Court may take into
consideration matters of common knowledge,
matters of common report, the history of the
times and may assume every state of facts
which can be conceived existing at the time of
legislation. (Para 15).

The legislature is the best judge of what is
good for the community, by whose suffrage it
comes into existence . . . .". This should be the
proper approach for the court but the ultimate
responsibility for determining the validity of
the law must rest with the court. " (Para 21,
also see the several decisions referred to
therein) .
(underlining by us)

\ \^s \

The facts stated in the Preamble and the Statement of
Objects and Reasons appended to any legislation are evidence of
legislative judgment . They indicate the thought process of the
elected representatives of the people and their cognizance of the
prevalent state of affairs, impelling them to enact the law.
These, therefore, constitute important factors which amongst
others will be taken into consideration by the court in judging
the reasonableness of any restriction imposed on the
Fundamental Rights of the individuals. The Court would begin
with a presumption of reasonability of the restriction, more so
when the facts stated in the Statement of Objects and Reasons
and the Preamble are taken to be correct and they justify the
enactment of law for the purpose sought to be achieved.

In Sardar Inder Singh v. The State of Rajasthan,
1957 SCR 605, a Constitution Bench was testing the validity of
certain provisions of the Ordinance impugned before and it found
it to be repugnant to Article 14 of the Constitution and hence
void. At page 620, Venkatarama Aiyar, J. speaking for the
Constitution Bench referred to the recitals contained in the
Preamble to the Ordinance and the object sought to be achieved
by the Ordinance as flowing therefrom and held "that is a matter
exclusively for the legislature to determine, and the propriety of
that determination is not open to question in courts. We should
add that the petitioners sought to dispute the correctness of the
recitals in the Preamble. This they cannot clearly do".

Question - 5 : Article 19(1) (g) : 'Regulation' or
'Restriction' includes Total Prohibition; Partial Restraint it
not Total Prohibition

Respondents rely on Article 19(1) (g) which deals with the
fundamental right to 'practise any profession or to carry on any
occupation, trade or business' . This right is subject to Article
19(6) which permits reasonable restrictions to be imposed on it
in the interests of the general public.

This raises the question of what is the meaning of the
word 'restriction' .

Three propositions are well settled:- (i) 'restriction'
includes cases of 'prohibition' ; (ii) the standard for judging
reasonability of restriction or restriction amounting to
prohibition remains the same, excepting that a total prohibition
must also satisfy the test that a lesser alternative would be
inadequate; and (Hi) whether a restriction in effect amounts to




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a total prohibition is a question of fact which shall have to be
determined with regard to the facts and circumstances of each
case, the ambit of the right and the effect of the restriction
upon the exercise of that right . Reference may be made to
Madhya Bharat Cotton Association Ltd. v. Union of India
(UOI) and Anr., AIR 1954 SC 634, Krishna Kumar v.
Municipal Committee of Bhatapara, (Petition No. 660 of
1954 decided on 21st February 1957 by Constitution Bench)
(See Compilation of Supreme Court Judgments, 1957 Jan-
May page 33, available in Supreme Court Judges Library) ,
Narendra Kumar and Ors . v. Union of India (UOI) and
Ors., (1960) 2 SCR 375, The State of Maharashtra v.
Himmatbhai Narbheram Rao and Ors., (1969) 2 SCR 392,
Sushila Saw Mill v. State of Orissa & Ors., (1995) 5 SCC
615, Pratap Pharma (Pvt . ) Ltd. & Anr. v. Union of India &
Ors., (1997) 5 SCC 87 and Dharam Dutt v. Union of India,
(2004) 1 SCC 712.

In Madhya Bharat Cotton Association Ltd. (supra) a
large section of traders were completely prohibited from
carrying on their normal trade in forward contacts . The
restriction was held to be reasonable as cotton, being a
commodity essential to the life of the community, and therefore
such a total prohibition was held to be permissible . In
Himmatbhai Narbheram Rao and Ors . (supra) trade in hides
was completely prohibited and the owners of dead animals
were required to compulsorily deposit carcasses in an appointed
place without selling it . The constitutionality of such prohibition,
though depriving the owner of his property, was upheld. The
court also held that while striking a balance between rights of
individuals and rights of citizenry as a whole the financial loss
caused to individuals becomes insignificant if it serves the
larger public interest . In Sushila Saw Mill (supra) , the
impugned enactment imposed a total ban on saw mill business
or sawing operations within reserved or protected forests. The
ban was held to be justified as it was in public interest to which
the individual interest must yield. Similar view is taken in the
other cases referred to hereinabove.

In Krishna Kumar (supra) , the Constitution Bench held
that when the prohibition is only with respect to the exercise of
the right referable only in a particular area of activity or relating
to a particular matter, there was no total prohibition. In that
case, the Constitution Bench was dealing with the case of
Adatiyas operating in a market area. A certain field of activity
was taken away from them, but they were yet allowed to
function as Adatiyas . It was held that this amounts to a
restriction on the exercise of writ petitioners' occupation as an
Adatiya or a seller of grain but does not amount to a total ban.

In the present case, we find the issue relates to a total
prohibition imposed on the slaughter of cow and her progeny.
The ban is total with regard to the slaughter of one particular
class of cattle. The ban is not on the total activity of butchers
(kasais) ; they are left free to slaughter cattle other than those
specified in the Act . It is not that the writ petitioner-respondents
survive only by slaughtering cow progeny. They can slaughter
animals other than cow progeny and carry on their business
activity. In so far as trade in hides, skins and other allied things
(which are derived from the body of dead animal) are concerned,
it is not necessary that the animal must be slaughtered to avail
these things. The animal, whose slaughter has been prohibited,
would die a natural death even otherwise and in that case their
hides, skins and other parts of body would be available for trade
and industrial activity based thereon.




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We hold that though it is permissible to place a total ban
amounting to prohibition on any profession, occupation, trade or
business subject to satisfying the test of being reasonable in the
interest of the general public, yet, in the present case banning
slaughter of cow progeny is not a prohibition but only a
restriction.

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

As we have already indicated, the opinion formed by the
Constitution Bench of this Court in Quareshi-I is that the
restriction amounting to total prohibition on slaughter of bulls and
bullocks was unreasonable and was not in public interest . We,
therefore, proceed to examine the evidence available on record
which would enable us to answer questions with regard to the
' reasonability' of the imposed restriction qua 'public interest' .

The facts contained in the Preamble and the Statement of
Objects and Reasons in the impugned enactment highlight the
following facts :-

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

the health of the nation;

(ii) the working bullocks are indispensable for our

agriculture for they supply power more than any
other animal (the activities for which the bullocks
are usefully employed are also set out) ;

(Hi) the dung of the animal is cheaper than the
artificial manures and extremely useful of
production of biogas;

(iv) it is established that the backbone of Indian

agriculture is the cow and her progeny and they
have on their back the whole structure of the
Indian agriculture and its economic system;

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

predominantly agricultural. In the agricultural
sector use of animals for milch, draught, breeding
or agricultural purposes has great importance.
Preservation and protection of agricultural animals
like bulls and bullocks needs emphasis . With the
growing adoption of non-conventional energy
sources like biogas plants, even waste material
have come to assume considerable value. After
the cattle cease to breed or are too old to work,
they still continue to give dung for fuel, manure
and biogas and, therefore, they cannot be said to
be useless.

Apart from the fact that we have to assume the above-
stated facts as to be correct, there is also voluminous evidence
available on record to support the above said facts. We proceed
to notice few such documents.



Affidavits

Shri J.S. Parikh, Deputy Secretary, Agriculture Cooperative
and Rural Development, Department, State of Gujarat, filed three
affidavits in the High Court of Gujarat in Special Civil Application
No. 9991 of 1993. The first affidavit was filed on 20th October,
1993, wherein the following facts are discernible and mentioned
as under :

(i) With the improved scientific animal





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husbandry services in the State, the
average longivity of animals has
considerably increased. In the year
1960, there were only 456 veterinary
dispensaries and first aid veterinary
centers etc, whereas in the year 1993,
there are 946 veterinary dispensaries
and first aid veterinary centers etc.
There were no mobile veterinary
dispensaries in 1960 while there are 31
mobile veterinary dispensaries in the
State in 1993. In addition, there are
around 467 centres for intensive cattle
development where besides first aid
veterinary treatment, other animal
husbandry inputs of breeding, food or
development etc. are also provided. In
the year 1960, five lakh catties 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.

(Hi) The population of bullock is 27.59 lakhs

Over and above agricultural work,

bullocks are useful for other purposes

also. They produce dung which is the

best organic measure and is cheaper

than chemical manure. It is also useful

for production of bio-gas.

(iv) It is estimated that daily production of

manure by bullocks is about 27,300
tonnes and bio-gas production daily is
about 13.60 cubic metres. It is also
estimated that the production of bio-gas
from bullock dung fulfil the daily
requirement of 54 . 78 lakh persons of the
State if whole dung production is utilized.
At present, 1,91,467 bio-gas plants are
in function in the State and about 3-4
lakhs persons are using bio-gas in the
State produced by these plants.

(v) The population of farmers in the State is

31.45 lakhs. Out of which 7.37 lakhs are
small farmers, 8 lakhs are marginal
farmers, 3.05 lakhs are agricultural
labourers and 13.03 lakhs are other




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farmers. The total land of Gujarat State
is 196 lakh hectares and land under
cultivation is 104.5 lakh hectares. There
are 47,800 tractors by which 19.12 lakh
hectares land is cultivated and the
remaining 85 . 38 lakh hectares land is
cultivated by using bullocks. It may be
mentioned here that all the agricultural
operations are not done using tractors.
The bullocks are required for some of
agricultural operations along with
tractors. There are about 7,28,300
bullock carts and there are about
18,35, 000 ploughs run by bullocks in the
State.

(vi) The figure of slaughter of animals done

in 38 recognised slaughter houses are as
under:

Year

Bullock/Bull

Buffalo

Sheep

Goat

1990-91

9,558

41,088

1,82,269

2,22,507

1991-92

9, 751

41,882

2,11,245

2,20,518

1992-93

8,324

40, 034

1,13,868

1, 72, 791



The above figures show that the
slaughter of bullocks above the age of 16
years is done in the State in very small
number. The animals other than
bullocks are slaughtered in large
number. Hence, the ban on the
slaughter of cow and cow progeny will
not affect the business of meat
production significantly . Therefore, the
persons engaged in this profession will
not be affected adversely .



Thereafter two further affidavits were filed by Shri J.S.
Parikh, abovesaid, on 17th March, 1998, wherein the following
facts are mentioned :

(i) there are about 31 . 45 lakhs land holders in

Gujarat . The detailed classifications of the
land holders are as under :-




SI.
No.



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Details of land

holders

No. of land

holders

1.

01 hectare
8.00 lakhs
2.

1-2 hectares
7.37 lakhs
3.

2 and above
16.08 lakhs



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

less than 2 hectares; tractor keeping is not

affordable to small farmers. For economic

maintenance of tractors, one should have

large holding of land. Such land holders

are only around 10 per cent of the total

land holders. Hence the farmers with

small land holdings require bullocks as

motive power for their agricultural

operations and transport;



(Hi) the total cultivable land area of Gujarat
State is about 124 lakh hectares.
Considering that a pair of bullocks is
required for ploughing 10 acres of land the
bullock requirement for ploughing purpose
alone is 5.481 million and approximately
equal number is required for carting.
According to the livestock census 1988 of
Gujarat State, the availability of
indigenous bullocks is around 2.84
millions. Thus the availability of bullocks
as a whole on percentage of requirement
works out to be about 25 per cent. In this
situation, the State has to preserve each
single bull and bullock that is available to
it;



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

stage of life supplies 3, 500 kgs of dung

and 2, 000 litres of urine and whereas this

quantity of dung can supply 5, 000 cubic

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

the urine can supply 2, 000 litres of

pesticides and the use of these products in

farming increases the yield very

substantially . The value of above

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

per year to the owner;

(v) since production of various agricultural

crops removes plant nutrients from the
soil, they must be replenished with
manures to maintain and improve fertility
of soil . There are two types of manures
which are (i) Organic manures, i.e. natural
manures and (ii) Artificial or chemical
fertilizer. Amongst the organic manures,
farm yard manures is the most valuable
organic manure applied to soil . It is the




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most commonly used organic manure in
India. It consists of a mixture of cattle
dung, the bedding used in the stable. Its
crop increasing value has been recognized
from time immemorial (Ref. Hand Book of
Agriculture, 1987 by ICAR page 214);



animals are the source of free availability



(vi) the importance of organic manure as a

source of humus and plant nutrients to
increase the fertility level of soils has been
well recognised. The organic matter
content of cultivated soils of the tropics
and sub-tropics is comparatively low due
to high temperature and intense microbial
activity. The crops remove annually large
quantity of plant nutrients from soil .
Moreover, Indian soils are poor in organic
matter and in major plant nutrients .
Therefore, soil humus has to be
replenished through periodic addition of
organic manure for maintaining soil
productivity;

(vii)

of farmyard manure, which has all the
three elements, i.e. Nitrogen, Phosphoric
acid and Potash, needed in fertilizer and at
the same time which preserve and enrich
the fertility of the soil . In paucity of dung
availability, the farmers have to depend
upon chemical fertilizers . Investment in
chemical fertilizers imposes heavy burden
upon the economy. If there is availability
of alternate source of organic manure from
animals, it is required to be promoted;



(viii) the recent scenario of ultramodern
technology of super ovulation, embryo
transfer and cloning technique will be of
very much use to propagate further even
from the incapable or even old animals
which are not capable of working or
reproducing. These animals on a large
scale can be used for research
programmes as well as for production of
non-conventional energy sources such as
biogas and natural fertilizers . At present,
there are 19,362 biogas plants installed in
the State during 1995-97. On an average,
each adult cattle produces 4.00 kg. of
dung per day. Out of the total cattle
strength of (1992 Census) 67,85, 865, the
estimated dung produced is 99, 07,363
tonnes;




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

Gujarat out of 4.13 crores of human

population, there are 1 . 40 crores of

workers which comprises of 47 , 04, 000

farmers and 32, 31, 000 workers are

workers related to livestock and forestry .

In Gujarat, there are 9.24 lakhs marginal

farmers and 9.15 lakhs of small farmers,



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according to the 1991-92 census. Animals
are reared in few numbers per family and
the feed is obtained from the
supplementary crop on fodder/agricultural
by-products or from grazing in the gaucher
land. In Gujarat 8.48 lakh hectares of land
is available as permanent pasture and
grazing land. An individual cattle-owner
does not consider one or two bullocks as
an extra burden for his family, even when
it is incapable of work or production.
Sometimes the unproductive animals are
sent to Panjarapoles and Gosadans . In
Gujarat, there are 335 Gaushalas and 174
Panjarapoles which are run by non-
governmental oranizations and trusts.
Formerly farmers mostly kept few animals
and, in fact, they are treated as part of
their family and maintained till death. It
cannot be treated to be a liability upon
them or burden on the economy;

(x) butchers are doing their business since

generations, but they are not doing only
the slaughter of cow class of animals.
They slaughter and trade the meat of other
animals like buffaloes, sheep, goats, pig
and even poultry. In Gujarat there are
only 38 registered slaughter houses
functioning under various
Municipalities/Nagar Panchayats . Beef
(meat of cattle) contributes only 1.3% of
the total meat groups. Proportion of
demand for beef is less in the context of
demand for pig, mutton and poultry meat.
Slaughtering of bulls and bullocks for the
period between 1990-91 and 1993-94 was
on an average 9, 000;




(xi) number of bullocks have decreased in

decade from 30,70,339 to 28,93,227 as in
1992. A statement showing the amount of
dung production for the year 1983-84 to
1996-97 and a statement showing the
nature of economy of the State of Gujarat
is annexed. The number of bullocks
slaughtered per day is negligible compared
to other animals, and the business and/or
trade of slaughtering bullocks would not
affect the business of butchers. By
prohibiting slaughter of bullocks the
economy is likely to be benefited.

The three affidavits are supported by documents,
statements or tables setting out statistics which we have no
reason to disbelieve. Neither the High Court has expressed any
doubt on the contents of the affidavit nor has the veracity of the
affidavits and correctness of the facts stated therein been
challenged by the learned counsel for the respondents before us.

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

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

stated therein are set out hereunder:

(i) The details of various categories of animals




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slaughtered since 1997-1998 shows that
slaughter of various categories of animals in
regulated slaughter houses of Gujarat State
has shown a tremendous decline. During the
year way back in 1982-83 to 1996-97 the
average number of animals slaughtered in
regulated slaughter houses was 4,39,141 . As
against that (previous figure) average number
of slaughter of animals in recent 8 years i.e.
from 1997-98 to 2004-05 has come down to
only 2, 88, 084 . This clearly indicates that there
has been a vast change in the meat eating
style of people of Gujarat State. It is because
of the awareness created among the public due
to the threats of dangerous diseases like
Bovine Spongiform Encephalopathy commonly
known as "Mad Cow disease" B.S.E. which is a
fatal disease of cattle meat origin not reported
in India . Even at global level people have
stopped eating the beef which is known as
meat of cattle class animals. This has even
affected the trade of meat particularly beef in
the America & European countries since last 15
years. Therefore, there is international ban on
export-import of beef from England, America &
European countries;

(ii) there is reduction in slaughter of bulls S

bullocks above the age of 16 years reported in
the regulated slaughter houses of Gujarat
State. As reported in the years from 1982-
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
very less significant to cause or affect the
business of butcher communities ;

(Hi) India is predominantly agrarian society with
nearly >th of her population living in seven lakh
rural hamlets and villages, possesses small
fragmentary holding (54.6% below 1 hectare
18% with 1-2 hectares) . Draft/pack animal
contributes more than 5 crores horse power

(H.P.) or 33,000 megawatt electric power and
shares for/in 68% of agricultural operations,
transport & other draft operations . In addition
to draft power, 100 million tonnes dung per
year improves the soil health and also used as
raw material for biogas plant;

(iv) the cattle population in Gujarat in relation to

human population has declined from 315 per
1000 humans in 1961 to 146 per 1,000
humans in 2001 indicating decline in real
terms;

(v) in Gujarat 3 . 28 million draft animal (bullocks

85%) have multi faceted utilities viz.
agricultural operations like ploughing, sowing,
hoeing, planking, carting, hauling, water lifting,
grinding, etc. ;





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Gujarat State has a very rich cattle
population of Kankrej & Gir breed, of which
Kankrej bullocks are very well known for its
draft power called "Savai Chal ";

(vi) considering the utility of aged bullocks above

16 years as draft power a detailed combined
study was carried out by Department of Animal
Husbandry and Gujarat Agricultural University

(Veterinary Colleges S.K. Nagar & Anand) . The
experiments were carried out within the age
group of 16 to 25 years. The study covered
different age groups of 156 (78 pairs) bullocks
above the age of 16 years. The aged bullocks
i.e. above 16 years age generated 0.68 horse
power draft output per bullock while the prime
bullock generated 0.83 horse power per
bullock during carting/hauling draft work in a
summer with about more than 42 ?C temp. The
study proves that 93% of aged bullock above
16 years of age are still useful to farmers to
perform light & medium draft works. The
detailed report is on record;

(vii) by the end of year 2004-05 under the Dept . of
Animal Husbandry, there are 14 Veterinary
Polyclinics, 515 Vety. Dispensaries, 552 First
Aid Vety. Centres and 795 Intensive Cattle
Development Project Sub Centers. In all, 1876
institutions were made functional to cater
various health care activities to livestock
population of State of Gujarat . About two
crores of livestock and poultry were vaccinated
against various diseases. As a result, the total
reported out break of infectious diseases was
brought down to around 106 as against 222 in
1992-1993. This shows that State has created
a healthy livestock and specifically the
longevity of animals has been increased. This
has also resulted into the increased milk
production of the state, draft power and source
of non-conventional energy in terms of
increased quantity of dung and urine;

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

famous "Kohinoor" diamond. An old bullock

gives 5 tonnes of dung and 343 pounds of

urine in a year which can help in the

manufacture of 20 carts load of composed

manure. This would be sufficient for manure

need of 4 acres of land for crop production.

The right to life is a fundamental right and it

can be basically protected only with proper

food and feeding and cheap and nutritious food

grains required for feeding can be grown with

the help of dung. Thus the most fundamental

thing to the fundamental right of living for the

human being is bovine dung. (Ref. Report of

National Commission on Cattle, Vol. Ill, Page

1063-1064);

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

both commercial commodities . If one bullock
is slaughtered for its meat (Slaughtering




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activity) can sustain the butchers trade for only
a day. For the next day's trade another
bullock is to be slaughtered. But if the bullock
is not slaughtered, about 5000-6000 dung
cakes can be made out of its dung per year,
and by the sale of such dung cake one person
can be sustained for the whole year. If a
bullock survives even for five years after
becoming otherwise useless it can provide
employment to a person for five years whereas
to a butcher, bullock can provide employment
only for a day or two.

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

of pharmaceuticals as well as in the

manufacturing of pesticides . The Goseva Ayog,

Govt, of Gujarat had commissioned study for

"Testing insecticides properties of cow urine

against various insect pests". The study was

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

Investigator, Department of Entomology, C.P.

College of Agriculture, S.D. Agricultural

University, Sardar Krishi Nagar, Gujarat . The

study has established that insecticides

formulations prepared using cow urine

emerged as the most reliable treatment for

their effectiveness against sucking pest of

cotton. The conclusion of study is dung S

urine of even aged bullocks are also useful and

have proved major effect of role in the Indian

economy;

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

problem in the State or anywhere. During
drought period deficit is compensated by
grass-bank, silo and purchase of fodder from
other States as last resources. The sugarcane
tops, leaves of banana, baggase, wheat bhoosa
and industrial byproducts etc. are available in
plenty. A copy of the letter dated 8.3.2004
indicting sufficient fodder for the year 2004,
addressed to Deputy Commissioner , Animal
Husbandry Government of India is annexed.

Report on draughtability of bullocks above 16 years of age
On 20th June, 2001 the State of Gujarat filed I. A. No.
2/2001 in Civil Appeal Nos . 4937-4940 of 1998, duly supported
by an affidavit sworn by Shri D.U. Parmar, Deputy Secretary
(Animal Husbandry) Agriculture and Cooperation Department,
Government of Gujarat, annexing therewith a report on
draughtability of aged bullocks above 16 years of age under field
conditions . The study was conducted by the Gujarat Agricultural
University Veterinary College, Anand and the Department of
Animal Husbandry, Gujarat State, Ahmedabad. The study was
planned with two objectives:

(i) To study the draughtability and utility of aged

bullocks above 16 years of age; and

(ii) To compare the draughtability of aged bullocks with

bullocks of prime age.

Empirical research was carried out under field conditions in
North Gujarat Region (described as Zone-I) and Saurashtra
region (described as Zone-II) . The average age of aged bullocks
under the study was 18.75 years. The number of bullocks/pair






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used under the study were sufficient to draw sound conclusions
from the study. The gist of the findings arrived at, is summed up
as under :

1. Farmer' s persuasion

The aged bullocks were utilized for different purposes like
agricultural operations (ploughing, planking, harrowing, hoeing,
threshing) and transport-hauling of agricultural produce, feeds
and fodders of animals, drinking water, construction materials
(bricks, stones, sand grits etc.) and for sugarcane crushing/
khandsari making. On an average the bullocks were yoked for 3
to 6 hours per working day and 100 to 150 working days per
year. Under Indian conditions the reported values for working
days per year ranges from 50 to 100 bullock paired days by
small, medium and large farmers. Thus, the agricultural
operations-draft output are still being taken up from the aged
bullocks by the farmers. The farmers feed concentrates, green
fodders and dry fodders to these aged bullocks and maintain the
health of these animals considering them an important segment
of their families . Farmers love their bullocks .

2. Age, body measurement and body weight

The biometric and body weight of aged bullocks were
within the normal range.




3. Horsepower generation/Work output

\ \ // \\

The aged bullocks on an average generated 0.68

hp/bullock, i.e. 18 . 1% less than the prime/young bullocks (0.83
hp/bullock) . The aged bullocks walked comfortably with an
average stride length of 1 .43 meter and at the average speed of
4.49 km/hr . showing little less than young bullocks. However,
these values were normal for the aged bullocks performing
light/medium work of carting. These values were slightly lower
than those observed in case of prime or young bullocks . This
clearly indicates that the aged bullocks above 16 years of age
proved their work efficiency for both light as well as medium
work in spite of the age bar. In addition to this, the experiment
was conducted during the months of May- June, 2000 \026 a
stressful summer season . Therefore, these bullocks could



definitely generate more work output during winter, being a
comfortable season. The aged bullock above 16 years of age
performed satisfactorily and disproved that they are unfit for any
type of draft output i.e. either agricultural operations, carting or
other works .

4. Physiological responses and haemoglobin

concentration




These aged bullocks are fit to work for 6 hours (morning 3
hours + afternoon 3 hrs . ) per day. Average Hb content (g%) at
the start of work was observed to be 10.72 g% and after 3 hours
of work 11.14g%, indicating the healthy state of bullocks. The
increment in the haemoglobin content after 3 to 4 hours of work
was also within the normal range and in accordance with prime
bullocks under study as well as the reported values for working
bullocks .

5. Distress symptoms

In the initial one hour of work, 6 bullocks (3.8%) showed
panting, while 32.7% after one hour of work. After 2 hour of
work, 28.2% of bullocks exhibited salivation. Only 6.4% of the
bullocks sat down/lied down and were reluctant to work after




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completing 2 hours of the work. The results are indicative of the
fact that majority of the aged bullocks (93%) worked normally .
Summer being a stressful season, the aged bullocks exhibited
distress symptoms earlier than the prime/young bullocks .
However, they maintained their physiological responses within
normal range and generated satisfactory draft power.

The study report submitted its conclusions as under:

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

. 68 horse power draft output per bullock while the
prime bullocks generated 0.83 horsepower per bullock
during carting-hauling draft work.

2. The aged bullocks worked satisfactorily for the light
work for continuous 4 hours during morning session

and total 6 hours per day (morning 3 hours and
afternoon 3 hours) for medium work.

3. The physiological responses (Rectal temperature,
Respiration rate and Pulse rate) and haemoglobin of
aged bullocks were within the normal range and also
maintained the incremental range during work.
However, they exhibited the distress symptoms earlier
as compared to prime bullocks.

4. Seven percent aged bullocks under study were
reluctant to work and/or lied down after 2 hours of
work.



\

5. The aged bullocks were utilized by the farmers to

perform agricultural operations (ploughing, sowing,
harrowing, planking, threshing) , transport-hauling of
agricultural product, feeds and fodders, construction
materials and drinking water.

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

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

and medium draft works. "




With the report, the study group annexed
album/photographs and cassettes prepared while carrying out the
study. Several tables and statements setting out relevant
statistics formed part of the report. A list of 16 authentic
references originating from eminent authors on the subject under
study which were referred to by the study group was appended to
the report.

This application (I. A. No. 2/2001) was allowed and the
affidavit taken on record vide order dated 20 . 8 .2001 passed by
this Court . No response has been filed by any of the respondents
controverting the facts stated in the affidavit and the
accompanying report . We have no reason to doubt the
correctness of the facts stated therein; more so, when it is
supported by the affidavit of a responsible officer of the State
Government .

Tenth Five Year Plan (2002-2007) Documents

In the report of the Working Group on Animal Husbandry
and Dairy Farming, the Tenth Five Year Plan (2002-2007) dealing
with 'the draught breed relevance and improvement' , published
by the Government of India, Planning Commission in January,
2001, facts are stated in great detail pointing out the relevance
of draught breeds and setting out options for improvement from




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the point of view of the Indian Economy. We extract and
reproduce a few of the facts therefrom:

"3.6.12 Relevance of draught breeds
and options for improvement

3 . 6. 12 . 1 In India 83.4 million holdings
(78%) are less than 2 ha. where tractors and
tillers are uneconomical and the use of animal
power becomes inevitable since tractors and
tillers are viable only for holdings above 5 ha. .
In slushy and water logged fields tractor tiller
is not suitable. In narrow terraced fields and
hilly regions tractors cannot function. Animal
drawn vehicle are suitable for rural areas under
certain circumstances/conditions viz., uneven
terrain, small loads (less than 3 tons) , short
distances and where time of loading and
unloading is more than travel time or time is
not a critical factor and number of collection
points/distribution points are large as in case
of milk, vegetable, water, oil, etc. In India the
energy for ploughing two-thirds of the
cultivated area comes from animal power and
animal drawn vehicles haul two-thirds of rural
transport .

3.6.12.2 The role of cattle as the main
source of motive power for agriculture and
certain allied operations would continue to
remain as important as meeting the
requirement of milk in the country. It has been
estimated that about 80 million bullocks will
needed. There is, therefore, a need for
improving the working efficiency of the
bullocks through improved breeding and
feeding practices .




3.6.13 Development of Draught
Breeds

Focused attention to draft breed will not
be possible unless a new scheme is formulated
for this purpose.

3 . 6. 13 .2 In tracts where there are

specialized draught breeds of cattle like Nagori
in Rajasthan, Amritmahal and Hallikar in
Karnataka, Khillar in Maharashtra etc.,
selection for improvement in draughtability
should be undertaken on a large scale as the
cattle breeders in these areas derive a large
income by sale of good quality bullocks.
Planned efforts should be made for improving
the draught capacity and promoting greater
uniformity in the type of the cattle population
in the breeding tracts. There is need to
intensify investigations to develop yardsticks
for objective assessment of draught capacity of
bullocks .

3.6.14 Supplementation of fund- flow
for cattle and Buffalo development.

3 . 6 .14 .2 A number of organizations like

NABARD, NDDB, NCDC etc. are also likely to




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be interested in funding activities relating to
cattle and buffalo development in the form of
term as loan provided timely return is ensured.
Time has now come for exploring such avenues
seriously at least on pilot basis in selected
areas, where better prospects of recovery of
cost of breeding inputs and services exists. "

Recognising the fact that the cow and its progeny has a
significant role to play in the agricultural and rural economy of
the country, the Government felt that it was necessary to
formulate measures for their development in all possible ways.
In view of the persistent demands for action to be taken to
prevent their slaughter, the Government also felt and expressed
the need to review the relevant laws of the land relating to
protection, preservation, development and well-being of cattle
and to take measures to secure the cattle wealth of India.

Yet another document to which we are inclined to make a
reference is Mid-Term Appraisal of 10th Five Year Plan (2002-
2007) released in June, 2005 by the Government of India
(Planning Commission) . Vide para 5 . 80 the report recommends
that efforts should be made to increase the growth of bio-
pesticides production from 2.5 to 5 per cent over the next five
years .

According to the report, Organic farming is a way of farming
which excludes the use of chemical fertilizers, insecticides, etc.
and is primarily based on the principles of use of natural organic
inputs and biological plant protection measures.

Properly managed organic farming reduces or eliminates
water pollution and helps conserve water and soil on the farm
and thereby enhances sustainability and agro-biodiversity .

Organic farming has become popular in many western
countries. There are two major driving forces behind this
phenomenon; growing global market for organic agricultural
produce due to increased health consciousness ; and the
premium price of organic produce fetched by the prodv

India has a comparative advantage over many other
countries .

The Appraisal Report acknowledged the commencement of

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

household plants have been installed against an assessed




potential of 120,00,000 units.

Biogas has traditionally been produced in India from cow
dung (gobar gas) . However, dung is not adequately and
equitably available in villages. Technologies have now been
developed for using tree-based organic substrates such as leaf
litter, seed starch, seed cakes, vegetable wastes, kitchen wastes
etc. for production of biogas. Besides cooking, biogas can also
be used to produce electricity in dual fired diesel engines or in
hundred per cent gas engines. Ministry of Non-conventional
Energy Sources (MNES) is taking initiatives to integrate biogas
programme in its Village Energy Security Program (VESP) .

Production of pesticides and biogas depend on the
availability of cow-dung.



National Commission on Cattle




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Vide its Resolution dated 2nd August, 2001, the
Government of India established a National Commission on
Cattle, comprising of 17 members.

The Commission was given the follow terms of reference :—

a . To review the relevant laws of the land (Centre
as well as States) which relate to protection,
preservation, development and well being of

cow and its progeny and suggest measures for
their effective implementation,

<\

b. To study the existing provisions for the
maintenance of Goshalas, Gosadans,
Pinjarapoles and other organisations working
for protection and development of cattle and
suggest measures for making them
economically viable,

/



c. To study the contribution of cattle towards the
Indian economy and to suggest ways and
means of organising scientific research for
maximum utilisation of cattle products and
draught animal power in the field of nutrition
and health, agriculture and energy, and to
submit a comprehensive scheme in this regard
to the Central Government,

d. To review and suggest measures to improve
the availability of feed and fodder to support
the cattle population.

The Committee after extensive research has given a list of

recommendations . A few of them relevant in the present case

are:- X

" 1 . The Prohibition for slaughter of cow and

its progeny, which would include bull,

bullocks, etc., should be included in

Fundamental Rights or as a Constitutional

Mandate anywhere else, as an Article of

Constitution. It should not be kept only in the

Directive Principles or/Fundamental duties as

neither of these are enforceable by the

courts.

2. The amendment of the Constitution should
also be made for empowering the Parliament
to make a Central Law for the prohibition of
slaughter of cow and its progeny and further
for prohibition of their transport from one
State to another.

3. The Parliament should then make a Central
law, applicable to all States, prohibiting
slaughter of cow and its progeny. Violation of
the Law should be made a non-bailable and
cognizable offence.

XXX XXX XXX

14. The use and production of chemical
fertilizers and chemical pesticides should be





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discouraged, subsidies on these items should
be reduced or abolished altogether . The use
of organic manure should be subsidized and
promoted. "

Thus the Commission is of the view that there should be a
complete prohibition on slaughter of cow progeny.

Importance of Bovine Dung

The Report of the National Commission on Cattle, ibid,
refers to an authority namely, Shri Vasu in several sub-
paragraphs of para 12. Shri Vasu has highlighted the unique
and essential role of bovine and bovine dung in our economy and
has pleaded that slaughter of our precious animals should be
stopped. He has in extenso dealt with several uses of dung and
its significance from the point of view of Indian society. Dung is
a cheap and harmless fertilizer in absence whereof the farmers
are forced to use costly and harmful chemical fertilizers . Dung
also has medicinal value in Ayurved, the Indian system of
medicines .

/ <\

Continuing Utility of Cattle : Even if the utility argument of
the Quareshi' s judgment is accepted, it cannot be accepted that
bulls and bullocks become useless after the age of 16. It has to
be said that bulls and bullocks are not useless to the society
because till the end of their lives they yield excreta in the form
of urine and dung which are both extremely useful for production
of bio-gas and manure. Even after their death, they supply hide
and other accessories. Therefore, to call them 'useless' is totally
devoid of reality. If the expenditure on their maintenance is
compared to the return which they give, at the most, it can be
said that they become 'less useful' . (Report of the National
Commission on Cattle, July 2002, Volume I, p. 279.)

The Report of the National Commission on Cattle has

analyzed the economic viability of cows after they stopped

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

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

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

as well .

"37. Economic aspects:

37.1 The cows are slaughtered in India
because the owner of the cow finds it difficult
to maintain her after she stops yielding milk.
This is because it is generally believed that
milk is the only commodity obtained from
cows, which is useful and can be sold in
exchange of cash. This notion is totally
wrong. Cow yields products other than milk,
which are valuable and saleable. Thus the
dung as well as the urine of cow can be put to
use by owner himself or sold to persons or
organizations to process them. The
Commission noticed that there are a good
number of organizations (goshalas) which
keep the cows rescued while being carried to
slaughter houses. Very few of such cows are
milk yielding. Such organizations use the
urine and dung produced by these cows to
prepare Vermi-compost or any other form of
bio manure and urine for preparing pest




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repellents. The money collected by the sale of
such products is normally sufficient to allow
maintenance of the cows. In some cases, the
urine and dung is used to prepare the medical
formulations also. The organizations, which
are engaged in such activities, are making
profits also.

37.2 Commission examined the balance sheet
of some such organizations . The expenditure
and income of one such organization is
displayed here. In order to make accounts
simple the amounts are calculated as average
per cow per day.

It is obvious that expenditure per cow is
Rs . 15-25 cow/day.



(



While the income from sale is Rs . 25-35
cow-day .

37.3 These averages make it clear that the
belief that cows which do not yield milk are
unprofitable and burden for the owner is
totally false. In fact it can be said that
products of cow are sufficient to maintain
them even without milk. The milk in such
cases is only a by\026product .



37.4 It is obvious that all cow owners do not
engage in productions of fertilizers or insect
repellents . It can also be understood that
such activity may not be feasible for owners
of a single or a few cows. In such cases, the
cow's urine and dung may be supplied to such
organizations , which utilize these materials
for producing finished products required for
agricultural or medicinal purpose. Commission
has noticed that some organizations which
are engaged in production of agricultural and
medical products from cow dung and urine do
purchase raw materials from nearby cow
owner at a price which is sufficient to
maintain the cow. " (Report of National
Commission on Cattle, July 2002, Vol. II,
pp. 68-69)



A host of other documents have been filed originating from
different sources such as Governmental or Semi-governmental,
NGOs, individuals or group of individuals, who have carried out
researches and concluded that world-over there is an awareness
in favour of organic farming for which cattle are indispensable.
However, we do not propose to refer to these documents as it
would only add to the length of the judgment . We have, apart
from the affidavits, mainly referred to the reports published by
the Government of India, whose veracity cannot be doubted.

We do not find any material brought on record on behalf
of the respondents which could rebut, much less successfully,
the correctness of the deductions flowing from the documented
facts and statistics stated hereinabove.

The utility of cow cannot be doubted at all . A total ban on
cow slaughter has been upheld even in Quareshi-I . The





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controversy in the present case is confined to cow progeny. The
important role that cow and her progeny play in the Indian
Economy was acknowledged in Quareshi-I in the following
words :

"The discussion in the foregoing
paragraphs clearly establishes the usefulness
of the cow and her progeny. They sustain the
health of the nation by giving them the life
giving milk which is so essential an item in a
scientifically balanced diet . The working
bullocks are indispensable for our agriculture,
for they supply power more than any other
animal . Good breeding bulls are necessary to
improve the breed so that the quality and
stamina of the future cows and working
bullocks may increase and the production of
food and milk may improve and be in
abundance. The dung of the animal is cheaper
than the artificial manures and is extremely
useful. In short, the back bone of Indian
agriculture is in a manner of speaking the cow
and her progeny. Indeed Lord Linlithgow has
truly said \027 "The cow and the working bullock
have on their patient back the whole structure
of Indian agriculture . " (Report on the
Marketing of Cattle in India, p. 20) . If,
therefore, we are to attain sufficiency in the
production of food, if we are to maintain the
nation' s health, the efficiency and breed of
our cattle population must be considerably
improved. To attain the above objectives, we
must devote greater attention to the
preservation, protection and improvement of
the stock and organise our agriculture and
animal husbandry on modern and scientific
lines. "

On the basis of the available material, we are fully satisfied
to hold that the ban on slaughter of cow progeny as imposed by
the impugned enactment is in the interests of the general public
within the meaning of clause (6) of Article 19 of the Constitution .

Part - III

Stare Decisis

We have dealt with all the submissions and counter
submissions made on behalf of the parties . What remains to be
dealt with is the plea, forcefully urged, on behalf of the
respondents that this Court should have regard to the principle
of stare decisis and should not upturn the view taken in
Quareshi-I which has held field ever since 1958 and has been
followed in subsequent decisions , which we have already dealt
with hereinabove.

Stare decisis is a Latin phrase which means "to stand by
decided cases; to uphold precedents; to maintain former
adjudication" . This principle is expressed in the maxim "stare
decisis et non quieta movere" which means to stand by decisions
and not to disturb what is settled. This was aptly put by Lord
Coke in his classic English version as "Those things which have
been so often adjudged ought to rest in peace". However,
according to Justice Frankfurter, the doctrine of stare decisis is
not "an imprisonment of reason" (Advanced Law Lexicon, P.






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Ramanatha Aiyer, 3rd Edition 2005, Volume 4, p. 4456) . The
underlying logic of the doctrine is to maintain consistency and
avoid uncertainty . The guiding philosophy is that a view which
has held the field for a long time should not be disturbed only
because another view is possible .

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

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

flexible principle of law operating in the province of precedents

providing room to collaborate with the demands of changing

times dictated by social needs, State policy and judicial

conscience .

According to Professor Lloyd concepts are good servants
but bad masters. Rules, which are originally designed to fit
social needs, develop into concepts, which then proceed to take
on a life of their own to the detriment of legal development . The
resulting "jurisprudence of concepts" produces a slot-machine
approach to law whereby new points posing questions of social
policy are decided, not by reference to the underlying social
situation, but by reference to the meaning and definition of the
legal concepts involved. This formalistic a priori approach
confines the law in a strait- jacket instead of permitting it to
expand to meet the new needs and requirements of changing
society (Salmond on Jurisprudence, Twelfth Edition, at p. 187).
In such cases Courts should examine not only the existing laws
and legal concepts, but also the broader underlying issues of
policy. In fact presently, judges are seen to be paying increasing
attention to the possible effects of their decision one way or the
other. Such an approach is to be welcomed, but it also warrants
two comments . First, judicial inquiry into the general effects of a
proposed decision tends itself to be of a fairly speculative nature.
Secondly, too much regard for policy and too little for legal
consistency may result in a confusing and illogical complex of
contrary decisions . In such a situation it would be difficult to
identify and respond to generalized and determinable social
needs. While it is true that "the life of the law has not been
logic, it has been experience" and that we should not wish it
otherwise, nevertheless we should remember that "no system of
law can be workable if it has not got logic at the root of it '
(Salmond, ibid, pp. 187-188) .



Consequently, cases involving novel points of law, have to
be decided by reference to several factors. The judge must look
at existing laws, the practical social results of any decision he
makes, and the requirements of fairness and justice. Sometimes
these will all point to the same conclusion. At other times each
will pull in a different direction; and here the judge is required to
weigh one factor against another and decide between them. The
rationality of the judicial process in such cases consists of
explicitly and consciously weighing the pros and cons in order to
arrive at a conclusion. (Salmond, ibid, pp. 188).

In case of modern economic issues which are posed for
resolution in advancing society or developing country, the court
cannot afford to be static by simplistically taking shelter behind
principles such as stare decisis, and refuse to examine the issues
in the light of present facts and circumstances and thereby adopt
the course of judicial "hands off". Novelty unsettles existing
attitudes and arrangements leading to conflict situations which
require judicial resolution. If necessary adjustments in social
controls are not put in place then it could result in the collapse of
social systems. Such novelty and consequent conflict resolution
and "patterning" is necessary for full human development. (See -
The Province and Function of Law, Julius Stone, at pp.588,





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761and 762)

Stare decisis is not an inexorable command of the

Constitution or jurisprudence. A careful study of our legal system
will discern that any deviation from the straight path of stare
decisis in our past history has occurred for articulable reasons,
and only when the Supreme Court has felt obliged to bring its
opinions in line with new ascertained fact, circumstances and
experiences. (Precedent in Indian Law, A. Laxminath, Second
Edition 2005, p. 8) .

Given the progressive orientation of the Supreme Court, its
creative role under Article 141 and the creative elements implicit
in the very process of determining ratio decidendi, it is not
surprising that judicial process has not been crippled in the
discharge of its duty to keep the law abreast of the times, by the
traditionalist theory of stare decisis (ibid, p. 32) . Times and
conditions change with changing society, and, "every age should
be mistress of its own law" \026 and era should not be hampered by
outdated law. "It is revolting", wrote Mr. Justice Holmes in
characteristically forthright language, "to have no better reason
for a rule of law than it was so laid down in the time of Henry IV.
It is still more revolting if the grounds upon which it was laid
down have vanished long since, and the rule simply persists
from blind imitation of the past". It is the readiness of the
judges to discard that which does not serve the public, which has
contributed to the growth and development of law. (ibid, p. 68)

The doctrine of stare decisis is generally to be adhered to,
because well settled principles of law founded on a series of
authoritative pronouncements ought to be followed. Yet, the
demands of the changed facts and circumstances dictated by
forceful factors supported by logic, amply justify the need for a
fresh look.

\
Sir John Salmond, while dealing with precedents and

illustrating instances of departure by the House of Lords from its

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

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

were arrived at in different social conditions and which are no

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

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

Goodhart who said: "There is an obvious antithesis between

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

absolutely binding cases then the law looses the capacity to

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

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

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

constitutional jurisprudence. He says: "So far as constitutional

law is concerned, stare decisis must give way before the

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

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

Review, 1964, at p. 20)





We have already indicated that in Quareshi-I , the
challenge to the constitutional validity of the legislation
impugned therein, was turned down on several grounds though
forcefully urged, excepting for one ground of 'reasonableness' ;
which is no longer the position in the case before us in the
altered factual situation and circumstances. In Quareshi-I the
reasonableness of the restriction pitted against the fundamental
right to carry on any occupation, trade or business determined
the final decision, having been influenced mainly by
considerations of weighing the comparative inconvenience to the
butchers and the advancement of public interest. As the



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detailed discussion contained in the judgment reveals, this
determination is not purely one of law, rather, it is a mixed
finding of fact and law. Once the strength of the factual
component is shaken, the legal component of the finding in
Quareshi-I loses much of its significance . Subsequent decisions
have merely followed Quareshi-I . In the case before us, we
have material in abundance justifying the need to alter the flow
of judicial opinion.

Part - IV

Quareshi-I, re-visited :

Having dealt with each of the findings recorded in
Quareshi-I , which formed the basis of the ultimate decision
therein, we revert to examine whether the view taken by the
Constitution Bench in Quareshi-I can be upheld.

We have already pointed out that having tested the
various submissions made on behalf of the writ petitioners on
the constitutional anvil, the Constitution Bench in Quareshi-I
upheld the constitutional validity, as reasonable and valid, of a
total ban on the slaughter of : (i) cows of all ages, (ii) calves of
cows and she-buffaloes, male or female, and (Hi) she-buffaloes
or breeding bulls or working bullocks (cattle as well as buffaloes)
as long as they are as milch or draught cattle. But the
Constitution Bench found it difficult to uphold a total ban on the
slaughter of she-buffaloes , bulls or bullocks (cattle or buffalo)
after they cease to be capable of yielding milk or of breeding or
working as draught animals, on the material made available to
them, the ban failed to satisfy the test of being reasonable and
"in the interests of the general public" . It is clear that, in the
opinion of the Constitution Bench, the test provided by clause
(6) of Article 19 of the Constitution was not satisfied. The
findings on which the above-said conclusion is based are to be
found summarized on pp. 684-687 . Para-phrased, the findings
are as follows:

(1) The country is in short supply of milch cattle,
breeding bulls and working bullocks , essential
to maintain the health and nourishment of the
nation. The cattle population fit for breeding
and work must be properly fed by making
available to the useful cattle in present! in
future The maintenance of useless cattle
involves a wasteful drain on the nation' s cattle
feed.

(2) Total ban on the slaughter of cattle would bring
a serious dislocation, though not a complete
stoppage, of the business of a considerable
section of the people who are by occupation
Butchers (Kasai) , hide merchant and so on.

(3) Such a ban will deprive a large section of the
people of what may be their staple food or
protein diet .

(4) Preservation of useful cattle by establishment
of gosadan is not a practical proposition, as
they are like concentration camps where cattle
are left to die a slow death.

(5) The breeding bulls and working bullocks (cattle
and buffaloes) do not require as much
protection as cows and calves do.




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These findings were recorded in the judgment delivered on
23rd April, 1958. Independent India, having got rid of the
shackles of foreign rule, was not even 11 years old then. Since
then, the Indian economy has made much headway and gained
a foothold internationally . Constitutional jurisprudence has
indeed changed from what it was in 1958, as pointed out earlier.
Our socio-economic scenario has progressed from being gloomy
to a shining one, full of hopes and expectations and
determinations for present and future. Our economy is steadily
moving towards prosperity in a planned way through five year
plans, nine of which have been accomplished and tenth is under
way.

We deal with the findings in Quareshi-I seriatim.
Finding 1

We do not dispute that the country is in short supply of
milch cattle, breeding bulls and working bullocks and that they
are essential to maintain the health and nourishment of the
nation as held in Quareshi-I. Rather we rely on the said finding
which stands reinforced by the several documents which we
have referred to hereinbefore.

In the Quareshi-I era, there was a shortage of fodder in
the country . Various plans were drawn up in the direction of
exploring potential fodder areas for the future. Although, the
planning was there; implementation was lacking. The Report of
National Commission on Cattle, July 2002 (Vol. II) reveals that
the existing fodder resources of the country can sustain and
meet 51 . 92% of the total requirements to sustain its livestock
population. But we have to take into consideration the fodder
potential of the country. We have vast culturable waste land
which with some efforts can be developed into good pasture
land. Major part of the fallow land can be put under the plough
for having fodder crops such as Jowar, Bajra and smaller millets .
The combined area of several categories of land which can be
developed as potential fodder area is 58.87 million hectares. If
managed properly, there are areas in the country which can be
developed into a "Grass Reservoir of India for use as pasture
land". One very big potential area lies in Jaisaelmer District of
Rajasthan (spread over 22,16,527 hectares) . The Commission
has recommended 23 steps to be taken by the State
Government and the Central Government for development and
conservation of food and fodder (See paras 37-41 of the report
at pages 130-135) .

So far as the State of Gujarat is concerned, we have
already noticed, while dealing with the documentary evidence
available on record, that fodder shortage is not a problem so far
as this state is concerned and cow progeny, the slaughtering
whereof has already shown a downward trend during the recent
years, can very well be fed and maintained without causing any
wasteful drain on the feed requisite for active milch, breeding
and draught cattle.
Finding 2 :

The finding suffers from two infirmities . First, Quareshi-I
has not felt the necessity of finding whether a 'total prohibition'
is also included within 'restriction' as employed in Article 19(6).
It is now well-settled that 'restriction' includes 'prohibition' .
Second and the real fallacy in Quareshi-I is that the ban limited
to slaughtering of cow progeny has been held at one place to be
a 'total prohibition' , while in our opinion, is not so. At another
place, the effect of ban has been described as causing 'a serious
dislocation, though not a complete stoppage of the business of a
considerable section of the people' . If that is so, it is not a 'total
prohibition' . The documentary evidence available on record




\



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shows that beef contributes only 1.3% of the total meat
consumption pattern of the Indian society. Butchers are not
prohibited from slaughtering animals other than the cattle
belonging to cow progeny. Consequently, only a part of their
activity has been prohibited. They can continue with their
activity of slaughtering other animals. Even if it results in slight
inconvenience, it is liable to be ignored if the prohibition is found
to be in the interest of economy and social needs of the country.
Finding 3 :

In the first and second Five Year Plans (Quareshi-I era) ,
there was scarcity of food which reflected India's panic. The
concept of food security has since then undergone considerable
change .

47 years since, it is futile to think that meat originating
from cow progeny can be the only staple food or protein diet for
the poor population of the country . 'India Vision 2020' (ibid,
Chapter 3) deals with 'Food Security and Nutrition : Vision 2020' .
We cull out a few relevant findings and observations therefrom
and set out in brief in the succeeding paragraphs . Food
availability and stability were considered good measures of food
security till the Seventies and the achievement of self-sufficiency
was accorded high priority in the food policies . Though India
was successful in achieving self-sufficiency by increasing its food
production, it could not solve the problem of chronic household
food insecurity. This necessitated a change in approach and as a
result food energy intake at household level is now given
prominence in assessing food security. India is one of the few
countries which have experimented with a broad spectrum of
programmes for improving food security. It has already made
substantial progress in terms of overcoming transient food
insecurity by giving priority to self-sufficiency in foodgrains,
employment programmes, etc. The real problem, facing India, is
not the availability of food, staple food and protein rich diet; the
real problem is its unequal distribution. The real challenge
comes from the slow growth of purchasing power of the people
and lack of adequate employment opportunities . Another reason
for lack of food and nutrient intake through cereal consumption
is attributable to changes in consumer tastes and preferences
towards superior food items as the incomes of the household
increases. Empirical evidence tends to suggest a positive
association between the calorie intake and nutritional status
The responsiveness is likely to be affected by the factors relating
to health and environment . It is unclear as to how much of the
malnutrition is due to an inadequate diet and how much due to
the environment .

India achieved near self-sufficiency in the availability of
foodgrains by the mid-Seventies . The trend rate of foodgrain
production improved 2.3 per cent during the 1960s and 1970s to
2.9 per cent in the Eighties. The recent economic survey of
2005 has also pointed out that the per capita availability of the
milk has doubled since independence from 124 gms/day in the
year 1950-51 to 229 gms/day in the year 2001-02. (Report of
National Commission on Cattle. Vol. II, p. 84.)

A complete reading of the research paper on Food Security
and Nutrition (Chapter 3 in India Vision 2020) is a clear pointer
to the fact that desirable diet and nutrition are not necessarily
associated with non-vegetarian diet and that too originating from
slaughtering cow progeny. Beef contributes only 1.3% of the
total meat consumption pattern of the Indian society.
Consequently a prohibition on the slaughter of cattle would not
substantially affect the food consumption of the people. To
quote (ibid. p. 209) : "Even though the question of desirable diet




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from nutritional perspective is still controversial, we can make
certain policy options to overcome the nutritional deficiencies.
The most important problem to be attended is to increase the
energy intake of the bottom 30 per cent of the expenditure
class. The deficiency of energy intake of the bottom 30 per cent
can be rectified by increasing agricultural productivity in rain fed
areas, making available food at an affordable price through the
Public distribution system (PDS) , and other poverty alleviation
programmes. The micro-nutrient deficiency can be cost-
effectively rectified by supplementary nutritional programmes to
the children and the expectant and lactating mothers. "

The main source of staple food which is consumed both by
vegetarians and non-vegetarians is supplied by vegetables.
Synthetic staple food has also been made available by scientific
researches. It will, therefore, not be correct to say that poor will
suffer in availing staple food and nutritional diet only because
slaughter of cow progeny was prohibited.
Finding 4 :

Quareshi-I itself reveals a very general opinion formed by
the Court as to the failure of gosadans and their inability to
preserve cattle. The statistics made available before us are a
positive indicator to the contrary that gosadans and goshalas are
being maintained and encouraged so as to take up both useful
and so-called useless cattle, if the owner is not willing to
continue to maintain them. Quareshi-I relied on a Report of an
Expert Committee, which has certainly become an outdated
document by the lapse of 47 years since then. Moreover,
independent of all the evidence, we have in this judgment
already noticed that cattle belonging to the category of cow
progeny would not be rendered without shelter and feed by the
owner to whom it had served throughout its life. We find support
from the affidavits and reports filed on behalf of the State of
Gujarat which state inter alia "farmers love their cattle".

National Commission on Cattle in its Report (ibid) has
incorporated as many as 17 recommendations for strengthening
of goshalas (para 20 at pages 120-122)

We have already noticed in the affidavits filed on behalf of
the State of Gujarat that, in the State of Gujarat adequate
provisions have been made for the maintenance of gosadans and
goshalas. Adequate fodder is available for the entire cattle
population. The interest exhibited by the NGOs seeking
intervention in the High Court and filing appeals in this Court
also indicates that the NGOs will be willing to take up the task of
caring for aged bulls and bullocks.
Finding 5

In Quareshi-I, vide para 42, the Constitution Bench chose
to draw a distinction between breeding bulls and working
bullocks, on the one hand and cows and calves, on the other
hand, by holding that the farmers would not easily part with the
breeding bulls and working bullocks to the butchers as they are
useful to the farmers. It would suffice to observe that the
protection is needed by the bulls and bullocks at a point of time
when their utility has been reduced or has become nil as they
near the end of their life. That is what Article 48, in fact,
protects, as interpreted in this judgment.

India, as a nation and its population, its economy and its
prosperity as of today are not suffering the conditions as were
prevalent in 50s and 60s . The country has achieved self-
sufficiency in food production. Some of the states such as State
of Gujarat have achieved self-sufficiency in cattle-feed and
fodder as well . Amongst the people there is an increasing
awareness of the need for protein rich food and nutrient diet .
Plenty of such food is available from sources other than cow/cow
progeny meat . Advancements in the field of Science, including




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Veterinary Science, have strengthened the health and longetivity
of cattle (including cow progeny) . But the country' s economy
continues to be based on agriculture. The majority of the
agricultural holdings are small units. The country needs bulls
and bullocks .

For multiple reasons which we have stated in very many
details while dealing with Quest ion-6 in Part II of the judgment,
we have found that bulls and bullocks do not become useless
merely by crossing a particular age. The Statement of Objects
and Reasons, apart from other evidence available, clearly
conveys that cow and her progeny constitute the backbone of
Indian agriculture and economy. The increasing adoption of
non-conventional energy sources like Bio-gas plants justify the
need for bulls and bullocks to live their full life in spite of their
having ceased to be useful for the purpose of breeding and
draught . This Statement of Objects and Reasons tilts the
balance in favour of the constitutional validity of the impugned
enactment. In Quareshi-I the Constitution Bench chose to bear
it in mind, while upholding the constitutionality of the legislations
impugned therein, insofar as the challenge by reference to
Article 14 was concerned, that "the legislature correctly
appreciates the needs of its own people". Times have changed;
so have changed the social and economic needs. The Legislature
has correctly appreciated the needs of its own people and
recorded the same in the Preamble of the impugned enactment
and the Statement of Objects and Reasons appended to it . In
the light of the material available in abundance before us, there
is no escape from the conclusion that the protection conferred by
impugned enactment on cow progeny is needed in the interest of
Nation' s economy. Merely because it may cause 'inconvenience'
or some 'dislocation' to the butchers, restriction imposed by the
impugned enactment does not cease to be in the interest of the
general public. The former must yield to the latter.

According to Shri M.S. Swaminathan, the eminent Farm
Scientist, neglect of the farm sector would hit our economy hard.
According to him "Today, global agriculture is witnessing two
opposite trends. In many South Asian countries, farm size is
becoming smaller and smaller and farmers suffer serious
handicaps with reference to the cost-risk-return structure of
agriculture. In contrast, the average farm size in most
industrialized countries is over several hundred hectares and
farmers are supported by heavy inputs of technology, capital and
subsidy. The on-going Doha round of negotiations of the World
Trade Organisation in the field of agriculture reflects the
polarization that has taken place in the basic agrarian structure
of industrialized and developing countries. Farming as a way of
life is disappearing and is giving way to agribusiness . " (K.R.
Narayanan Oration delivered by Dr. Swaminathan at the
Australian National University, Canberra, published in 'The
Hindu', October 17, 2005, p. 10)

"In India, nearly 600 million individuals are engaged in
farming and over 80 per cent of them belong to the small and
marginal farmer categories. Due to imperfect adaptation to local
environments , insufficient provision of nutrients and water, and
incomplete control of pests, diseases and weeds, the present
average yields of major farming systems in India is just 40 per
cent of what can be achieved even with the technologies
currently on the shelf. There is considerable scope for further
investment in land improvement through drainage, terracing,
and control of acidification, in areas where these have not
already been introduced. " (ibid)

Thus, the eminent scientist is very clear that excepting the
advanced countries which have resorted to large scale
mechanized farming, most of the countries (India included) have



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average farms of small size. Majority of the population is
engaged in farming within which a substantial proportion belong
to small and marginal farmers category. Protection of cow
progeny will help them in carrying out their several agricultural
operations and related activities smoothly and conveniently .
Organic manure would help in controlling pests and acidification
of land apart from resuscitating and stimulating the environment
as a whole.

Having subjected the restrictions imposed by the
impugned Gujarat enactment to the test laid down in the case of
N.M. Thomas (supra) we are unhesitatingly of the opinion that
there is no apparent inconsistency between the Directive
Principles which persuaded the State to pass the law and the
Fundamental Rights canvassed before the High Court by the writ
petitioners .

Before we part, let it be placed on record that Dr. L.M.
Singhvi, the learned senior counsel for one of the appellants,
initially tried to build an argument by placing reliance on Article
31C of the Constitution. But at the end he did not press this
submission. Similarly, on behalf of the respondents, the
Judgment of the High Court has been supported only by placing
reliance on Article 19(6) of the Constitution. The legislative
competence of the State Legislature to enact the law was not
disputed either in the High Court or before us.
Result

For the foregoing reasons, we cannot accept the view

taken by the High Court. All the appeals are allowed. The

impugned judgment of the High Court is set aside. The Bombay

Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat

Act No. 4 of 1994) is held to be intra vires the Constitution. All

the writ petitions filed in the High Court are directed to be

dismissed.