Holding

The total ban on slaughter of bulls and bullocks under the Gujarat amendment is intra vires, as the restriction, including prohibition, is a reasonable measure in the public interest, supported by Articles 48, 48A and 51A(g), and does not infringe Article 19(1)(g) or Article 14.

Summary

The Gujarat Legislature enacted the Bombay Animal Preservation (Gujarat Amendment) Act, 1994, imposing a total ban on the slaughter of bulls and bullocks of any age. Butchers (Kureshis) challenged the amendment as an unreasonable restriction on their right to practice any profession under Article 19(1)(g) of the Constitution. The Gujarat High Court struck down the amendment, and the State of Gujarat appealed. A seven‑Judge Supreme Court Bench examined the interplay of fundamental rights with Directive Principles, particularly Articles 48, 48A and 51A(g), and revisited earlier decisions such as Quareshi‑1. The Court held that the ban is a permissible restriction, that ‘restriction’ includes prohibition, and that the legislation is reasonable in the interest of the general public and therefore intra vires. Consequently, the High Court judgment was set aside and the amendment upheld.

Issues considered

The constitutionality of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994, which bans slaughter of bulls and bullocks irrespective of age, under Article 19(1)(g) and Article 19(6).
Whether the term ‘restriction’ in Article 19(6) includes a total prohibition and if such a prohibition can be reasonable.
The relevance of Directive Principles (Article 48, 48A) and Fundamental Duty (Article 51A(g)) in justifying the restriction.
Whether earlier Supreme Court decisions in Quareshi‑1 and related cases should be overruled.
Whether the amendment violates Article 14 (equality) or exceeds the State’s legislative competence.

Subjects

Article 19(1)(g)Article 19(6)restrictionprohibitionDirective PrinciplesArticle 48Article 48AArticle 51A(g)cow progenyslaughter banstare decisispublic interestGujaratbutchersKureshi

Judgment

A STATE OF GUJARAT
v.
MJRZAPUR MOTi KURESHI KASSAB JAMA T AND ORS.

OCTOBER 26, 2005

B [R.C. LAHOTI, CJ., B.N. AGRA WAL, ARUN KUMAR, G.P. MATHUR,
A.K. MATHUR, C.K. THAKKER AND P.K. BALASUBRAMANYAN, JJ.)

Constitution of India, 1950:

C Articles 19(/)(g), (6), 48, 48-A and 51-A--Constitutional validity of
the Bombay Animal Preservation (Gujarat Amendment) Act, 1994-Putting
a total ban on slaughter of bulls and bullocks irrespective of any age-Held,
per majorjty (A.K. Mathur, J. dissenting), the Act is intra vires the
Constitution-The ban on slaughter of cow progeny as imposed by the Act
D is in the interest of general public within the meaning of clause (6) of Article
19-Protection conferred by the Act on cow progeny is needed in the interest
of Nation's economy--The Act enables the State in its endeavour to protect
and improve the environment within the meaning of Article 48-A-Qureshi-
l partly overruled-Bombay Animal Preservation (Gujarat Amendment) Act,
1994.
E
Article 19(6)- 'Restrictions' as employed in the Article-Held, includes
prohibition.

Bombay Animal Preservation (Gujarat Amendment) Act, 1994-Putting
a total ban on slaughter of bulls and bullocks irrespective of any age-Held,
F is intra vires the Constitution.

Doctrine-Principle of stare decisis-Discussed

Words and Phrases:

G 'Restriction '-As occurring in Article 19(6) of the Constitution of
India-Connotation of

With the formation of the State of Gujarat in the year 1960, the Bombay
Animal Preservation Act, 1954 was extended to the State by the Bo.mbay

H 582
STATE OF GUJARAT v. MIRZAPUR MOT! KURESHI KASSAB JAMAT 583

Animal Preservation (Gujarat Extension and Amendment) Act, 1961 putting A
a total ban on cow slaughter in the State of Gujarat. By the Bombay Animal
Preservation (Gujarat Amendment) Act, 1979 the ban was further extended
to 'calf of a cow, whether female or male, whether castrated or not and to bull
and bullock 'below the age of sixteen years'. Validity of the said amendment
Act was ultimately upheld by the Supreme Court in Hazi Usmanbhai Qureshi
and Ors. v. State a/Gujarat, [1986) 3SCC12. The Gujarat Legislature further B
amended the Bombay Act of 1954 by the Bombay Animal Preservation (Gujarat
Amendment) Act, 1994 prohibiting also slaughter of bulls and bullocks
irrespective of any age. The amendment was challenged by butchers known
as Kureshis and by their representative bodies. The High Court struck down
the amendment as ultra vires the Constitution holding that the Amendment C
Act imposed an unreasonable restriction on the fundamental rights.
Aggrieved, the State of Gujarat and a few other organizations (NGOs) filed
the present appeals.

In view of the earlier decisions of this Court, particularly the
Constitution Bench decision in Mohd. Hanif Quareshi and Ors. v. State of D
Bihar and Ors., 119591 SCR 629, holding that a total ban on slaughter of the
buffaloes, bulls and bullocks after they ceased to be capable of yielding milk
or breeding or working as draught animals could not be supported as
reasonable in the interest of general public and was invalid, and thereafter
insertion of Articles 48-A and 51-A in the Constitution, the appeals were E
referred to the present seven Judge Bench.

Allowing the appeals, the Court

HELD: Per Lahoti CJ (for himself and for Agrawal, Arun Kumar, G.P.
Mathur, Thakker and Balasubnimanyan, JJ.)
F
I.I. The Bombay Animal Preservation (Gujarat Amendment) Act, 1994
(Gujarat Act No. 4of1994) is intra vires the Constitution of India. The ban
on slaughter of cow progeny as imposed by the Act is in the interests of the
general public within the meaning of clause (6) of Article 19 of the
Constitution. 1653-C; 642-DI G
Mohd. Hanif Quareshi and Ors. v. Slate of Bihar and Ors., [19591 SCR
629, partly overruled.

Abdul Hakim Quraishi and Ors. v. State of Bihar, [19611 2 SCR 610;
Mohammed Faruk v. State of Madhya Pradesh and Ors., 1196911 SCC 853 H
584 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A and Hashmattullah v. State ofM.P. and Ors., (1996) 4 SCC 391, disapproved.
Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State ofGujarat, (1986)
3 sec 12, affirmed.
State of West Bengal and Ors. v. Ashutosh Lahiri and Ors., (1995) l SCC
B 189, referred to.

1.2. While interpreting the interplay of rights and restrictions, Part-
111 (Fundamental Rights) and Part-IV (Directive Principles) of the Constitution
have to be read together. The restriction which can be placed on the rights
listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the
C 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.
(614-C, DJ

L.C. Golak Nath and Ors. v. State of Punjab and Anr., (1967) 2 SCR
D 762; Pathumma and Ors. v. State of Kera/a and Ors., (1978( 2 SCC l; His
Holiness Kesavananda Bharati Sripadagalvaru and Anr. v. State of Kera/a
and Anr., (1973) 4 SCC 225; State of Kera/a and Anr. v. NM. Thomas and
Ors., (1976) 2 SCC 310; Municipal Corporation of the City of Ahmedabad
and Ors. v. Jan Mohammed Usmanbhai and Anr., (1986] 3 SCC 20; Workmen
E of Meenakshi Mills Ltd. and Ors. v. Meenakshi Mills Ltd. and Anr., (1992) 3
SCC 336 and Papnasam Labour Union v. Madura Coats Ltd. and Anr., (1995]
1 sec 501, relied on.
The State of Madras v. Srimathi Champakam Dorairajan, (1951) SCR
525; Deep Chand and Anr. v. The State of Uttar Pradesh and Ors., (1959)
F Supp. (2) SCR 8; Jn Re: The Kera/a Education Bill, (195'7), (1959) SCR 995;
The State of Bombay and Anr. v. F.N. Balsara, (19511 SCR 682 and M.R.F.
Ltd v. Inspector, Kera/a Govt. and Ors., (1998) 8 SCC 227, referred to.
1.3. In the context of 'restriction' three propositions are well settled:-
(i) 'restriction' includes cases of 'prohibition'; (ii) the standard for judging
G reasonability of restriction or restriction amounting to prohibition remains
the same, excepting that a total prohibition must also satisfy the test that a
lesser alternative would be inadequate; and (iii) whether a restriction in effect
amounts to 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.
H (622-B-q
STATEOFGUJARATv. MIRZAPURMOTIKURESHJKASSABJAMAT 585

Madhya Bharat Cotton Association ltd. v. Union of India (UOI) and A
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); Narendra Kumar and Ors. v. Union of India (UGI) and
Ors., 119601 2 SCR 375; The State of Maharashtra v. Himmatbhai Narbheram
Rao and Ors., 119691 2 SCR 392; Sushi/a Saw Mill v. State of Orissa and
Ors., 1199515 SCC 615; Pratap Pharma fPvt.) ltd. and Anr. v. Union of India B
and Ors., 119971 5 SCC 87 and Dharam Dutt v. Union ofIndia, 1200411 SCC
712, referred to.

1.4. 'Restriction' as employed in Article 19(6) includes 'prohibition'.
Though it is permissible to place a total ban amounting to prohibition on any C
profession, occupation, trade or business subject to satisfying the test of being
reasonable in the interest of the general public, yet, in the instant case banning
slaughter of cow and her progeny is not a prohibition but only a restriction.
Though the ban is total with regard to the slaughter of one particular class
of cattle, i.e., cow and her progeny, the ban is not on the total activity of
butchers. They are not prohibited from slaughtering animals other than those D
specified in the Act. In so far as trade in hides, skins and other allied things
(which are derived from body of dead animal) are concerned, these would be
available for trade and industrial activity after natural death of the animal.
Even if the ban results in slight inconvenience, it is liable to be ignored if it
is found to be in the interest of economy and social needs of the country. E
1648-B; 623-F; 623-C-E; 648-DI

Indian Handicrafts Emporium and Ors. v. Union of India and Ors., (20031
7 sec 589, referred to.

2.1. Articles 48~A and 51-A were not a part of the Constitution when F
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-1. 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 G
'modern and scientific lines'. The subject is 'agriculture and animal
husbandry'. 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". (615-A-DJ
H
586 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A *Mohd. Hanif Quareshi and Ors. v. State of Bihar and Ors., (19591 SCR
629; **Abdul Hakim Quraishi and Ors. v. State of Bihar, (196112SCR610
and Mohammed Faruk v. State of Madhya Pradesh and Ors., (196911 SCC
853, referred to.

2.2. Article 48-A deals with "environment, forests and wild life".
B Protection and improvement of environment is necessary for safeguarding
forests and wild life, which in turn protects and improves the environment.
Cow progeny excreta is scientifically recognized as a source of rich organic
manure. This helps in improving the quality of earth and the environment.
The impugned enactment enables the State in its endeavour to protect and
C improve the environment within the meaning of Article 48A of the Constitution.
(615-E-F)

2.3. 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
D as a fundamental duty of every citizen. 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. 1615-G-H; 616-AI

AIIMS Students' Union v. AllMS and Ors., (200211 SCC 428; Mohan
E Kumar Singhania and Ors. v. Union of India and Ors., (19921Suppl.1 SCC
594; State of U.P. v. Yamuna Shanker Misra and Ors., (199714 SCC 7; Rural
Litigation and Entitlement Kendra and Ors. v. State of Uttar Pradesh and
Ors., (19861 Suppl. SCC 517; TN. Godavarman Thirumalpadv. Union ofIndia
and Ors., (2002) 10 SCC 606 and State of W.B,. and Ors. v. Sujit Kumar Rana,
F (2004) 4 sec 129, referred to.

2.4. 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
G Fundamental Duties as enshrined in Article 51-A of the Constitution play a
significant role. The decision in Quareshi-1 in which the relevant provisions
of the three impugned legislations were 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
H and Articles 48-A and 51-A(g) were available in the body of the Constitution.
1617-C-DI
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT 587

2.5. Protection is needed by bulls and bullocks at a point of time when A
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. 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 exclude milch or draught
cattle, which on account of age or disability, cease to be functional for those B
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." C
[619-G, H; 620-A; 650-H; 651-AJ

3. The underlying logic of the doctrine of stare decisis 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. However, the trend of judicial opinion is that stare decisis is D
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. 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 E
and circumstances dictated by forceful factors supported by logic, amply
justify the need for a fresh look. (642-H; 643-A-B; 644-H; 645-A[

Salmond on Jurisprudence, Tweljih Edition, at p.187; The Province and
Function'of Law, Julius Stone, at pp.588, Precedent in Indian Law, A.
Laxminath, Second Edition 2005; Essays on Jurisprudence from the Columbia F
Law Review, 1964, referred to.

4.1. 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. The facts G
stated in the Preamble and the Statement of Objects and Reasons appended to
any legislation are evidence of legislative judgment and, 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 H
588 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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. (620-C; 621-D-EJ

State of West Bengal v. Subodh Gopal Bose and Ors., (1954) SCR 587;
State of West Bengal v. Union of India 119641 l SCR 371 and Sardar Inder
B Singh v. The State of Rajas than, It 9571 SCR 605, referred to.

4.2. Since Quareshi-1 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
C light of the material available in abundance before the Court, there is no escape
from the conclusion that the prctection 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
D general public. The former must yield to the latter. [651-E-H(

4.3. However, country's economy continues to be based on agriculture.
Majority of agricultural holdings are small units. The country needs bulls
and bullocks. Bulls and bullocks do not become useless merely by crossing
a particular age. The Statement of Objects and Reasons, apart from other
E evidence available, clearly conveys that cow and her progeny constitute the
backbone of Indian agriculture and economy. The increasing adoption of non-
conven tional energy sources like Bio-gas plants justify the need for bulls
and bullocks to live their full life in spite of their having become 'less useful'
for agricultural operations, carting and other work and having ceased to be
F useful for the purpose of breeding. This Statement of Objects and Reasons
tilts the balance in favour of the constitutional validity of the impugned
enactment. (651-C, D, El

4.4. Cattle belonging to the category of cow progeny would not be
rendered without shelter and feed by the owner to whom it had served
G throughout its life. Adequate fodder is available for the entire cattle population.
Some of the States such as Gujarat l;ave achieved self-sufficiency in cattle
feed and fodder. Besides, "farmers love their cattle". 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. (650-D-F; 651-A-BJ
H
STATE OF GUJARAT v. MIRZAPUR MOT! KURESHI KASSAB JAMAT 589

Report of the Working Group on Animal Husbandry and Dairy Farming, the A
Tenth Five Year Plan (2002-2007; and Resolution of National Commission
on Cattle dated 2.8.2001; Report of the National Commission on Cattle, July
2002, Volume I, p. 2 79, referred to.

4.5. Desirable diet and nutrition are not necessarily associated with non-
vegetarian diet and that too originating from slaughtering cow progeny. Beef B
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. (649-E-F]

Research Paper on Food Security and Nutrition (Chapter 3 in India
Vision 2020), referred to. C
5. 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. Besides, the
legislative competence of the State Legislature to enact the law was not
disputed either in the High Court or before the Supreme Court. D
(652-H; 653-B]

State of Kera/a and Anr. v. N.M. Thomas and Ors., [1976] 2 SCC 310,
referred to.

Per A.K. Mathur, J (Dissenting):
E
I.I. Despite the changing pattern oflife it cannot be said that the decision
delivered in the case of Mohd. Qureshi (Qureshi-I)* followed by subsequent
decisions have outlived its ratio. The material which has been placed for taking
a contrary view does not justify the reversal of earlier decisions. The situation
which existed right from 1958 till this date there is no material change F
warranting reversal of the judgments bearing on the subject from 1958-96.
(653-F, G, H; 654-A]

*Mohd. HanifQureshi's and Ors. v. State of Bihar and Ors., AIR (1958)
SC 731; Abu/ Hakim v. State of Bihar, AIR (1961) SC 448; Mohd. Faruk v.
State ofMP. and Ors., (1969] I SCC 853; Haji Usmanbhai Qureshi v. State of G
Gujarat, (1986] 3 SC 12 and Hashmattullah v. State of M.P. and Ors., (1996]
4 sec 391, relied on.

1.2. The datas produced by the appellant cannot change the reality that
such an aged bull and bullocks produce huge quantity of the cow dung manure
and urine which can alter a situation materially so as to reverse the earlier H
590 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A decisions of this court. Utility of the cow dung and urine was realized and
appreciated in the earlier decision of this Court in Qureshi-I. Therefore, it .
cannot be said that the earlier decisions rendered by the Constitution Bench
was oblivious of these facts. It is explicit from the affidavits tiled in the case
that the age of 16 years prescribed earlier was on a very reasonable basis
after proper scientific study but de hors those scientific study the State
B Government brought this amendment removing the age limit for slaughtering
of the bulls and bullocks and totally prohibited slaughtering of the same. This
decision of the State Government does not advance the public interest.
1660-F-G; 661-A-Bl

1.3. Another significant disclosure in the affidavits on record is that
C slaughtering of bulls and bullocks has considerably reduced and it constitutes
only 1.10% of the total slaughtering that takes place in the State. This
legislation does not advance the cause of the public at the expense of the denial
of Fundamental Right of butchers. On the basis of the material on record, the
earlier decisions of this Court have not become irrelevant in the present
D context. 1661-C-FJ

1.4. Therefore, in the background of the scenario, it will not be proper
to reverse the view which has been held good for a long spell of time from
1958 to 1996. There is no material change in ground realities warranting
reversal of earlier decisions. 1662-Cf
E 2.1. It is true that Article 48A nf the Constitution which was introduced
by the 42nd Constitutional Amendment in 1976 with effect from 3.1.1977 and
Article 51 A i.e. fundamental duties, which was also brought about by the same
amendment, were not in existence earlier but the effect of those Articles was
indirectly conside~ed in the Mohd Hanif Qureshi 's case in 1958. Therefore,
F it cannot be said that the Judges were not conscious about the usefulness and
the sanctity with which the entire cow and its progeny has been held in our
country. Though Article 48A and 51A were not there, but their Lordships
1_·,
were indirectly consciou~ of the implication. Articles 48(A) and 51(A) do not
substantially change the ground realities which can persuade to change the
views which have been held from 1958 to 1996.1662-C, D, El
G
3.1. It is true that law is a dynamic concept and it should change with
the time. But at the same time it shall not be so fickle that it changes with
change of guard. If the ground realities have not changed and it has not become
irrelevant with the time then it should not be reviewed lightly. In the present
case, the ground reality has not changed and the law laid down by this court ~-

H holds good and relevant. Some advancement in technology and more and more
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT 59 J
use of the cow dung and urine is not such a substantial factor to change the A.
ground realities so as to totally do away with the slaughtering of the aged
bulls and bullocks. (665-F, 667-Fl

3.2. The principle of stare decisis is based on a public policy. This policy
is based on the assumption that certainty, predictability and stability in the
law are the major objectives of the legal system; i.e. that parties should be B
able to regulate their conduct and enter into relationships with reasonable
assurance of the governing rules of law. If the courts start changing their
views frequently then there will be a lack of certainty in the law and it is not
good for the health of the nation. (665-H; 666-A-BI

Craies on Statue Law, 7th Edition, referred to. c
4. The earlier decisions still hold good in the present context also.
Therefore, there are no compelling reasons for reversal of the earlier
decisions either on the basis of advancement of technology or reason, or logic,
or economic consideration. Therefore, there is no need to reverse the earlier
decisions. The view taken by the Division Bench of the Gujarat High Court is D
correct and there is no justification for reversing the view taken by the earlier
Constitution Bench decision of this Court (668-A-B, Fl

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4937-4940 of
1998.
E
From the Judgment and Order dated l6.4.98 of the Gujarat High Court
in S.C. Application Nos. 9991, 11204, 11309 and 11379of1993.
WITH
C.A. Nos. 4941-4944 and 4945 of 1998.
F
Dr. L.M. Singhvi, Soli J. Sorabjee, S.K. Dholakia, Ms. Hemantika Wahi,
Manish Singhvi, Ms. Abhilasha Singhvi, Mayur Shah, Rutwick Panda,
Abhish~k Mishra, Sushi! Kumar Jain, Jasraj Shri Shrimal, Parmanand Mittal,
Pradeep Aggarwal, A.P. Dhamija, H.D. Thanvi, Sharad Singhania, Ms. Pratibha
Jain, Puneet Jain, Lal Pratap Singh, Ram Niwas, Ms. Rani M'aheshwari, G
Rupinder Singh Suri, R.K. Joshi, Vinay K. Shailendra, Ms. Prema Chawla and
T.S. Chaudhary for the Appellants.

G.L. Sanghi and Ramesh P. Bhatt, M.N. Shroff, Ms. Tanuja Sheel, M.R.
Bhatt, Chirag M. Shroff, M.S. Girish, Sunil Kumar Jain, Manish Kumar, S.
Borthakur, Ansar Ahmad Chaudhary, Nikhi Goel, Ms. Naveen Goel and Mrs. I-I
592 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A Sheela Goel with them for the Respondents.
The Judgment of the Court was delivered by

R.C. LAHOTI, CJ. Section 2 of the Bombay Animal Preservation (Gujarat
Amendment) Act, 1994 (Gujarat Act No. 4of1994) which introduced certain
B 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
C 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-!
Backdrop of Events
D
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
E agricultural purposes. This Act was substituted by the Bombay Animal
'
Preservation Act of 1954 (hereinafter referred to as 'the Bombay Act'). The
provisions relevant for our purpose are contained in Sections 5 and 6. Sub-
sections (I), (2) and (3) of Section 5 and Section 6 are extracted and reproduced
hereunder :

F "5. (I) 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.
G (2) No certificate shall be granted under sub-section (I), if in the
opinion of the Competent Authority-

(a) the animal, whether male or female, is useful or likely to
become useful for the purpose of draught or any kind of
agricultural operations;
H
STATEOFGUJARATv. MIRZAPURMOTIKURESH!KASSABJAMAT [LAHOTI,CJ.] 593

(b) the animal, if male, is useful or likely to become useful for the A
purpose of breeding;
(c) the animal, if female, is useful or likely to become useful for
the purpose of giving milk or bearing offspring.

(3) Nothing in this section shall apply to the slaughter of any animal B
above the age of fifteen years for bona-fide religious purposes :

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

(4) xxx xxx xxx
c
(5) xxx xxx xxx

(6) xxx xxx xxx

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

The Preamble to the Act stated-"WHEREAS it is expedient to provide
for the preservation of animals suitable for milch, breeding or for agricultural
purposes; It is hereby enacted....... as follows:-" E
The Statement of Objects and Reasons stated inter alia-"It is now
proposed to repeal the Bombay Animal Preservation Act, 1948 and to
undertake fresh legislation, on the basis of a model bill recommended by the
Government of India, in order to st~mp out slaughter in unautborized places
and abetment of offences which were not covered by the Bombay Animal F
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 G
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: H
594 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 4. Amendment of Section 5 of Bombay LXXII of 1954.-in section S
of the principal Act, -

(I) After sub-section (I), the following sub-section shall be inserted,
namely:-
"(IA) No certificate under sub-section (I) shall be granted in respect
B of a cow.";
(2) in sub-section (2), for the words "No certificate" the words,
brackets, figure and letter "Jn respect of an animal to which sub-
section (IA) does not apply, no certificate" shall be substituted;
C (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 I st May, 1961
which was published in the Gujarat Government Gazette, Extraordinary, Part
D 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.

E 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 Born. LXXII of 1954.-In the Bombay
Animal Preservation Act, 1954, Born. LXXII of 1954, (hereinafter referred
F to as "the principal Act"), in section 5,-

(\)for sub-section (IA), the following shall be substituted, namely:-

"( IA) No certificate under sub-section (I) shall be granted in respect
of-
G (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;
;:.:
H
ST ATE OF GUJARAT"· MIRZAPUR MOTi KURESHI KASSAB JAMAT (LAHOTI, CJ.] 595

(d) a bullock below the age of sixteen years"; A
(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 B
bonajide religious purposes, as may be prescribed, namely:_

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

(i0 a bu II above the age of fifteen years; c
(ii0 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 D
in clause (a) or (b) has been obtained from the Competent Authority."

The Act was preceded by an Ordinance, a reference to which is not
necessary. The Statement of Objects and Reasons of the Act are stated as
under:
E
"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 F
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 G
below the age of eighteen years as they are useful for the aforesaid
purposes ..... "

The above-said Act was assented to by the Governor on 16th October
1979. The Act was given retrospective effect by sub-section (2) of Section
I thereof, which provided that the amendment shall be deemed to have come H
596 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A into force on 28th November, 1978.
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
B Court by a Constitution Bench in Haji Usmanbhai Hasanbhai Qureshi and
Ors. v. State o/Gzfiarat, [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.

C 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
D referred to as "the principal Act"), in section 5, -

(I) in sub-section (IA), for clauses (c) and (d), the following
clauses shall be substituted, namely :-

"(c) a bull;

E (d) a bullock.";

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

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

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

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

"WHEREAS it is established that cow and her progeny sustain the
G 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;

H AND WHEREAS the working bullocks are often useful in ploughing
STATE OF GUJARAT v. M!RZAPUR MOT! KU RESH! KASSAB JAMAT [LAHOTI, CJ.] 597

the fields, drawal of water from the wells and also very useful for A
drawing carts for tranS)'lorting 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;
B
AND WHEREAS it is established that the back-bone of Indian
agriculture is, in a manner of speaking the cow and her progeny and
have, on their back, the whole structure of the Indian agriculture and
its economic system;

AND WHEREAS it is expedient to give effect to the policy of the C
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: D
"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 E
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 F
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 G
to be useless. It is well established that the backbone of Indian
agricu Itu re 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 H
598 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A 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
B 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 lo the Constitutional Validity

C 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
D 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.
E 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
F 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
G 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 :
H
STATEOF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 599

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

Therefore, in view of Article 145(3) of the Constitution, we think it B
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 C
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 behaif of the
appellants in the three sets of appeals. We have also heard Shri G.L. Sanghi, D
Senior Advocate and Shri Ramesh P. Bhatt, Senior Advocate, who led the
arguments on behalf of the respondents (writ petitioners in High Court) in the
several appeals. Before we notice and deal with the submissions made by the
learned senior counsel for the appellants and the respondents, it will be useful
to set out and deal with some of the decisions delivered by this Court which
have been relied on by the High Court in its impugned judgment, and on E
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 F
Ors. v. State of Bihar and Ors., [1959] SCR 629 (hereinafter referred to as
'Quareshi-1}. 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, G
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 H
600 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

' A cows. In the State of Madhya Pradesh, it was the C.P. and Berar Animal
Preservation Act (Act Lil 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
B 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
C ban offended the fundamental right guaranteed to the Kasais (Butchers)
under Article 19(1 )(g) and was not a reasonable and valid restriction on their
right; and (iii) that a total ban was not in the interest of the general public.
On behalf of the States, heavy reliance was placed on Article 48 of the
~onstitution to which the writ petitioners responded that under Article 37 the
Directive Principles were not enforceable by any court of law and, therefore,
D 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·
E 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
F 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
G as milch or draught cattle was also reasonable and valid; and (iii) that a total
ban on slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after
they ceased to be capable of yielding milk or of breeding or working as
draught animals could not be supported as reasonable in the interests of the
general public and was invalid.
H
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 60 J

The first ground of challenge was simply" turned down due to the A
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 Su rah 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 Bakr/'d B
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 ofreligious sacrifice and directed his son Humayun to follow this
example. Similarly Emperors Akbar, Jehangir, and Ahmad Shah, it is C
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 D
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)
E
In State of West Bengal and Ors. v. Ashutosh lahiri, [1995] l SCC 189,
this Court has noted that sacrifice of any animal by muslims for the religious
purpose on Bakr/'d does not include slaughtering of cow as the only way
of carrying out that sacrifice. Slaughtering of cow on Bakr/'d is neither
essential to nor necessarily required as part of the religious ceremony. An
F
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 G
state, in all fairness to the learned counsel for the parties, that no one has
tried to build any argument either in defence or in opposition to the judgment
appealed against by placing reliance on religion or Article 25 of the
Constitution.

Dealing with the challenge founded on Article I4 of the Constitution, H
602 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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
B object sought to be achieved by the statute in question (p.652). Applying the
twin tests to the facts of the cases before them, their Lordships held that it
was quite clear that the objects sought to be achieved by the impugned Acts
were the preservation, protection and improvement of livestocks. Cows, bulls,
bullocks and calves of cows are no doubt the most important cattle for the
agricultural economy of this country. Female buffaloes yield a large quantity
C 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
D 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
E 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.
F 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,
G therefore, prevail." (p. 653)

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

H
The third contention, that is, whether the "total prohibition" could be
sustained as a reasonable restriction on the fundamental right of the butchers
....
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 603

to slaughter animals of their liking or in which they were trading, was dealt A
with in great detail. This is the aspect of the decision of the Constitution
Bench in Quareshi-1 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 B
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
c
produced before them, such as (i) the figures of 1951 Animals' Census; (ii)
Report on the Marketing of Cattle in India issued by the Directorate of
Marketing and Inspection, Ministry of Goods and Agriculture, Government
of India, 1956; and (iii) the figures given in the First and Second Five Years
Plans and so on. Their Lordships concluded that if the purpose of sustaining D
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 E
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 p
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 G
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
H
604 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A challenge to the constitutional validity of the impugned enactments had
failed.

In Abdul Hakim Quraishi and Ors. v. Stale 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
B 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-
1.
c In Mohammed Faruk v. State ofMadhya Pradesh & Ors., [1969] I 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
D Lordships, the case was apparently another attempt, though on a restricted
scale, to circumvent the judgment of this Court in Quareshi-1. Vide para 9,
their Lordships have noticed the decision of this Court in Narendra Kumar
and 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
E 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 ~urden, the notification was held liable to be struck down as im~osing
F an unreasonable restriction on the fundamental right of the petitioners.

In Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of Gujarat,
[ 1986] 3 sec 12 (hereinafter referred to as 'Qureshi-///') 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
G 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
H grounds. The writ petitioners came in appeal to this Court. The appeal was ... '
.
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 605

dismissed. While doing so, this Court took note of the material made available A
in the fonn 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 B
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 C
petitioners) to carry on their trade and profession. The test of reasonableness
of the restriction on the fundamental right guaranteed by Article 19( I )(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 unifonn in respect of D
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. E

In Hashmattullah v. State of MP. and Ors., [ 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 F
High Court. The writ petitioners came up in appeal to this Court which was
allowed and the amending Act was struck down as ultra vires the Constitution.

In State of West Bengal and Ors. v. Ashutosh Lahiri and Ors, (1995) I
sec 189, the legislation impugned therein permitted slaughter of cows on the
occasion of Bakr/'d subject to an exemption in that regard being allowed by G
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 H
606 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A a settled legal position that there was no fundamental right of Muslims to
insist on slaughter of healthy cows on the occasion of Bakr I'd. The contention
that not only an essential religious practice under Article 25( 1) of Constitution,
but even optional religious practice could be permitted, was discarded. The
Court held-"We, therefore, entirely concur with the vir,w of the High Court
that slaughtering of healthy cows on Bakr/'d is not essential or required for
B 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 Bakr/'d."

Issues in Present Set of Appeals
c 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-1 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
D Bench in Quareshi-1 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-1 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 folfowing faults with the view taken by this
E Court in Quareshi-1, to the extent to which it goes against the app_ellants:-
¥<
(I) Quareshi-1 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
F that its implementation can be a valid ground for proving
reasonability of the restriction imposed on the Fundamental Right
guaranteed by Article 19(1 )(g) of the Constitution-a theory
which stands discarded in a series of subsequent decisions of
this Court.
G (2) What has been noticed in Quareshi-1 is Article 48 alone; Article
48A and Article 51 A(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
H Quareshi-1 is not correct. Such a narrow view as has been taken
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 607

in Quareshi-1 does not fit into the scheme of the Constitution A
and, in particular, the spirit of Article 48.
(4) Quareshi-1 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 B
restraint does not amount to total prohibition. Subsequent to the
decision in Quareshi-1 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 C
in Quareshi-1.
(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-
1 is founded on the finding of facts that cow progeny ceased to D
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 E
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.
F
The learned senior counsel for the appellants further submitted that
Quareshi-1 forms the foundation for subsequent decisions and if the very
basis of Quareshi-1 crumbles, the edifice of subsequent decisions which have
followed Quareshi-1 would also collapse. We will examine the validity of each
of the contentions so advanced and at the end also examine whether the G
principle of stare decisis prevents us from reopening the question answered
in favour of writ petitioners in Quareshi-1.

PART II
Question-I. Fundamental Rights and Directive Principles:-
H
608 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A "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...... 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
B 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
C 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,
D [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 Ors., [ 1959] Supp. (2) SCR 8. The Court went on to ho.Id that
disobedience to Directive Principles cannot affect the legislative power't>f the
E State. So was the view taken in In Re : The Kera/a Education Bill, [1957],
1959 SCR 995.

With L.C. Golak Nath and Ors. v. State of Punjab and Anr., [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
p 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-1 chose to make a headway and held that
the 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
G 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-1 did take note of the status of
H Directive Principles having been elevated from 'sub-ordinate' or 'sub-servient'
STATE OF GUJARAT v. MIRZAPUR MOT! KURESHI KASSAB JAMAT [LAHOTI, CJ.] 609

to 'partner' of Fundamental Rights in guiding the nation.

His Holiness Kesavananda Bharati Sripadagalvaru and Anr. v. State
of Kera/a andAnr., [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 reasonabieness of the restriction B
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 Ors. v. State of Keraia and
Ors., [1978] 2 SCC I, wherein the learned Judges neatly s_ummed up the ratio C
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 D
needs of the nation, the burning problems of the day and the complex
issues facing the people, which the legislature, in its wisdom, through
beneficial legislation, seeks to solve. The judicial approach should bt
dynamic rather than static, pragmatic and not pedantic and elastic
rather than rigid. This Court while acting as a sentinel on the qui vive E
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 Ill 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( I)( f) is conditioned by the various
factors mentioned in clause (5). (Para 8)
610 SUPREME COURT REPORTS (2005) SUPP. 4 S.C.R.

A (4) The following tests have been laid down as guidelines to indicate
in what particula.r 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
13 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
c 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
D 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 I 5)

(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
E
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
F
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
G view of the citizen but the problem before the legislature and the
object which is sought to be achieved by the statute. In other
words, the Court must see whether the social control envisaged ,
by Article I 9 ( 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
H
STATE OF GUJARAT v. MIRZAPURMOTI KURESHI KASSAB JAMAT [LAHOTI, CJ] 6] J

interests of the country or the community. (Para 24) A
(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 Kera/a and Anr. v. N.M Thomas and Ors., [1976] 2 SCC 310,
B
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
c
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 D
to achieve the ends sought to be promoted by the directive principles.
So far as the courts are concerned where there is no apparent
inconsistency between the directive principles contained in Part IV
and the fundamental rights mentioned in Part III, which in fact
supplement each other, there is no difficulty in putting a harmonious E
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 F
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 G
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 H
612 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A legislature under Part XI Chapter I of the Constitution.
In Municipal Corporation of the City of Ahmedabad and Ors. v. Jan
Mohammed Usmanbhai and 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
B 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
C 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
D 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
E 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 Me~nakshi Mills Ltd. and Ors. v. Meenakshi Mills Ltd.
p and Anr., (1992] 3 SCC 336, the Constitution Bench clearly ruled (vide para
27)-"0rdinarily 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] J SCC 501.

G 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, .
H
STATE OF GUJARAT v. MIRZAPlJR MOTi KURESHI KASSABJAMAT [LAHOTI, CJ.] 613

while examining the challenge to the constitutional validity of law by reference A
to. Article 19(1 )(g) of the Constitution.

In a comparatively recent decision of this Court in MR.F Ltd v. Inspector,
Kera/a 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 B
hereunder.

"13. On a conspectus of various decisions of this Court, the following
principles are clearly discernible:

(I) While considering the reasonableness of the restrictions, the C
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 D
of universal application and the same will vary from case to case as
also with regard to changing conditions, values of human life, social
philosophy of the Constitution, prevailing conditions and the
surrounding circumstances.

xxx xxx xxx xxx E
(6) There must be a direct and proximate nexus or a reasonable
connection between the restrictions imposed and the object sought
to be achieved. If there is a direct nexus between the restrictions and
the object of the Act, then a strong presumption in favour of the
constitutionality of the Act will naturally aris~. (See: Kavalappara F
Kol/arathil Kochuni v. State of Madras and Kera/a, (1960] 3 SCR 887
and 0.K. Ghosh v. EX Joseph, [1963] Supp. I 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 G
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'.
H
614 SUPREME COURT REPORTS 12005] SUPP. 4 S.C.R.

A Post Kesavananda Bharati so far as the detennination 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 <;:ourt
goes on to say-"that they are nevertheless fundamental in the governance
of the country." Several clauses of Article 37 'themselves need to be
B harmoniously construed assigning equal weightage to all of them. The end
part of Article 37-"lt 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
C Directive Principles and Fundamental Rights undoubtedly hold that, while
interpreting the interplay of rights and restrictions, Part-III (Fundamental
Rights) and Part-IV (Directive Principles) have to be read together. The
restriction which can be placed on the rights listed in Article 19(1) are not
.subject only 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
D relied on for the purpose of adjudging the reasonability of restrictions placed
on the Fundamental Rights.

Question-2 Fundamental Rights and Articles 48, 48-.A 1 and 51-A (g) of
Constitution

E
.
Articles 48, 48-A and 51-A(g) (relevant clause) of the Constitution read
as under :-

"48. Organisation of agriculture and animal husband1y.-The State
shall endeavour to organise agriculture and animal. husbandry on
modem and scientific lines and shall, in particular, take steps for
F 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 /ife.-The State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life of
G the country.

51-A. Fundamental duties.-it shall be the duty of every citizen of
India-

(g) to protect and improve the natural environment including
H forests, lakes, rivers and wild life, and to have compassion for living
ST ATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 615

creatures;" A
Articles 48-A and S 1-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-1, Quraishi-11 and Mohd. Faruk 's cases were decided by this Court.
Further, Article 48 of the Constitution has also be.en assigned a higher B
weightage and wider expanse by the Supreme Court post Quareshi-1. Article
I
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
'modem and scientific lines'. The subject is 'agricultural and animal husbandry'. C
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 fir'st part, to take steps, in particular, "for preserving
and improving the breeds and prohibiting the slaughter of cows and calves D
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 tum protects and improves the E
environment. Forests and wild life are clearly inter-related and inter-dependent.
They protect each other.

Cow progeny excreta is scientifically recognized as a source of rich
organic manure. It enables the farmers avoiding the use of chemicals and F
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 S 1-A and giving it the status of a G
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 H
616 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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.

B "In.AllMS Students' Union v. AJJMS and Ors., [2002] 1 sec 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 guida~ce and aid to
interpretation and resolution of constitutional and legal is~ues. In case of
doubt, peoples' wish as expressed through Article 51-A can serve as a guide
C 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 51 A does not expressly cast any
fundamental duty on the State, the fact remains that the duty of every citizen
D of India is, collectively speaking, the duty of the State.

In Mohan Kumar Singhania and Ors. v. Union of India and 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-AU) of the Constitution, holding that the
E governmental decision was in consonance with one of the fundamental duties.

In State of U.P. v. Yamuna Shanker Misra and 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
F .enjoins upon every citizen the primary duty to constantly endeavour to strive
towards excellence, individually and collectively.

In -Rural Litigation and Entitlement Kendra and Ors. v. State of Uttar
Pradesh and Ors., [ 1986] Supp. SCC: 517, a complete ban and closing of
mining operations carried on in the Mussoorie hills was held to be sustainable
G 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.

H In T.N. Godavarman Thirumalpad v. Union ofIndia and Ors., (2002) 10
STATE OF GUJARAT v. M!RZAPUR MOT! KU RES HI KASSAB JAMAT [LAHOT!, CJ] 617

SCC 606, a three-Judge Bench of this Court read Article 48-A and Article 51- A
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 WB. and Ors. v. Sujit Kumar Rana, [2004) 4 SCC 129, Articles B
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 C
validity of any statutory provisio.n 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 regu[ation, 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-1 in which the
relevant provisions of the three impugned legislations was struck down on D
the singular ground of lack of reasonability, would have decided otherwise
if only Article 48 was assigned its full ;ind 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-3 : Milch and draught cattle, meaning of, in Article 48 E
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 F
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? G
According to their inherent genetic qualities, cattle breeds are broadly
divided into 3 categories (i) Milch breed (ii) Draught breed, and (iii) Dual
purpose breed. Milch breeds include all cattle breeds which have an inherent
potential for milk production whereas draught breeds have an inherent potential
H
618 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A 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'.
B
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
C reader of the Constitution would understand in the context of the previous
words "cows and calves".

"Milch and draught", t~e two words have been used as adjectives
describing and determining the quality of the noun 'cattle'. The function of
I) 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-'cattle'
E 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
F 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
G 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
H Article 48 of the Constitution so as to distinguish such cattle from, other cattle
STA TE OF GUJARAT v. M!RZAPUR MOTi KURESHI KASSABJAMAT [LAHOT!, CJ.] 6J9
I

which are neither milch nor draught. A
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 d~aught B
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 injmy, it is excluded from the definition of 'draught cattle' and
deprived of the benefit of Article 48. C
This reasoning is further strengthened by Article 5 IA(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, D
comp~ssion is-"fellow feeling, or sorrow for the sufferings of another : pity".
Compassion is suggestive of sentiments, a soft feeling, emotions arising out
of sympathy, pity and kindness. The concept of compassion for living creatures
enshrined in Article 51 A (g) is based on the background of the rich cultural
heritage of Inqia-the land of Mahatama Gandhi, Yinobha, Mahaveer, Budha, E
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 div~rse, yet all speak in
one voice that cruelty to any living creature must be curbed and ceased. A
cattle which has served human beings is entitled to compassion in its old age
when it has ceased to be milch or draught and becomes so-called 'useless'. F
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.
G
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 tho,se purposes either temporarily H
620 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A or pennanently. 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."

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

Reference to the Statement of Objects and Reasons is pennissible 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
C 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
D 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.
E State of West Bengal v. Union of India, [ 1964] l 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-1 itself, which has been very strongly relied upon by the
F 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
G 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 needy 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
H harm and may confine its restrictions to those cases where the need
STATE OF GUI ARAT v. MIRZAPUR MOTi KURESHI KASSABJAMAT [LAHOTI, CJ.] 62 J

is deemed to be the clearest and finally that in order to sustain the A
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, B
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) C
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 D
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 E
of law for the purpose sought to be achieved.

In Sardar Jnder 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 F
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
deterrn ine, and the propriety of that determination is not open to question in
courts. We should add that the petitioners sought to dispute the correctness G
of the recitals in the Preamble. This they cannot clearly do".

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

Respondents rely on Article l 9(1)(g) which deals with the fundamental H
622 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

·A right to 'practise any profession or to carry on any occupation, trade or
business'. This right is subject to Article 19(6) which pennits 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'.

B Three propositions are well settled:- (i) 'restriction' includes cases of
'prohibition'; (ii) the standard for judging reasonability of restriction or
restriction amounting to prohibition remains the same, excepting that a total
prohibition must also satisfy the test that a lesser alternative would be
inadequate; and (iii) whether a restriction in effect amounts to a total prohibition
C is a question of fact which shall have to be detennined 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-
D Compilation of Supreme Court Judgments, 1957 Jan-May page 33, available
in Supreme·Court Judges Library), Narendra Kumar and Ors. v. Union of
India (VO/) and Ora.,· [1960] 2 SCR 375, The State of Maharashtra v.
Himmatbhai Narbhe;ain Rao and Ors., (1969) 2 SCR 392, Sushi/a Saw Mill
v. State of Orissa and Ors., [1995] 5 SCC 615, Pratap Pharma (Pvt.) Ltd. &
Anr. v. Union of India and Ors., [1997] 5 SCC 87 and Dharam Dutt v. f.Jnion
E of India, (2004] 1sec712.
In Madhya Bharat Cotton Association Ltd. (supra) a large section of
traders were completely prohibited from carrying on their nonnal trade in
forward contacts. The restriction was held to be reasonable as cotton, being
F 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
G 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 Sushi/a 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
H was in public interest to which the individual interest must yield. Similar view
STATE OF GUJARAT v. MIRZAPUR MOTi KURE SHI KASSAB JAMAT [LAHOTI, CJ.] 623

is taken in the other cases referred to hereinabove. A
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 B
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 C
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 D
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 E
thereon.

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

Question - 6 : Slaughter of cow progenJ~ if in public interest

As we have already indicated, the opinion formed by the Constitution G
Bench of this Court in Quareshi-1 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'.
H
624 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

. .A 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
B they supply power more than any other animal (the activities for
which the bullocks are usefully employed are also set out);
(iii) the dung of the animal is cheaper than the artificial manures and
extremely useful of production of biogas;
C (iv) it is established that the backbone of Indian agriculture is the
cow and h.er 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,
D 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 bfogas 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
E 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.
F
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. 999I of 1993. The first
G affidavit was filed on 20th October, 1993, wherein the following facts are
discernible and mentioned as under:

(i) With the improved scientific animal husbandry services in the
State, the average longivity of animals has considerably increased.
In the year 1960, there were only 456 veterinary dispensaries and
H
STATE OF GUJARAT v. M!RZAPUR MOT! KURESHI KASSABJAMAT [LA HOT!, CJ.) 625

first aid veterinary centers etc, whereas in the year 1993, there are A
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 B
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 C
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 contro"Ued in the
state and that the deadly disease has not appeared in the last
three years.
D
(ii) Because of various scientific technologies namely, proper cattle
feeding, better medical and animal husbandry services, the
longevity of the cattle in the State has considerably increased.
(iii) The population of bullock is 27.59 lakhs. Over and above
agricultural work, bullocks are useful for other purposes also. E
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 I 3.60 F
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,
I, 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
pl~~. G
(v) The population of farmers in the State is 31.45 Iakhs. Out of
which 7.3 7 lakhs are small farmers, 8 lakhs are marginal farmers,
3.05 Iakhs are agricultural labourers and 13.03 Iakhs are other
farmers. The total land of Gujarat State is 196 lakh hectares and
land under cultivation is 104.5 lakh hectares. There are 47,800 H
626 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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
B 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
c
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
D
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
E 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) ther!! are about 31.45 lakhs land holders in Gujarat. The detailed
F classifications of the land holders are as under:-
Sl. No. Details of land holders No. of land holders
I. 0 I hectare 8.00 lakhs
2. 1-2 hectares 7.37 lakhs
G
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.
H Such land holders are only around I 0 per cent of the total land
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHJ KASSAB JAMAT [LAHOTI, CJ.] 627

holders. Hence the farmers with small land holdings require A
bullocks as motive power for their agricultural operations and
transport;
(iii) the total cultivable land area of Gujarat State is about 124 lakh
hectares. Considering that a pair of bullocks is required for
ploughing I0 acres of land the bullock requirement for ploughing B
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 c
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 ofbiogas, 80 M.T.
of organic fertilizer, the urine can supply 2,000 litres of pesticides D
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 E
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 most commonly used organic manure in India. It
F
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 !CAR page
214);
(vi) the importance of organic manure as a source of humus and plant
G
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. H
628 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A Therefore, soil humus has to be replenished through periodic
addition of organic manure for maintaining soil productivity;
(vii) animals are the source of free availability of farmyard manure,
which has all the three elements, i.e. Nitrogen, Phosphoric acid
and Potash, needed in fertilizer and at the same time which
B 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;

c (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
D 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;
E (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, according
to the I991-92 census. Animals are reared in few numbers per
F
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 ofland 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,
G 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
mosfly kept few animals and, in fact, they are treated as part of
their family and maintained till death. It cannot be treated to be
H
STATE OF GUJARAT v. MIRZAPURMOTI KURESHI KASSAB JAMAT [LAHOTI, CJ.] 629

a liability upon them or burden on the economy; A
(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 B
Municipalities/Nagar Panchayats. Beef (meat of cattle) contributes
only l .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
1990-91and1993-94 was on an average 9,000;
c
(xi) number of bullocks have decreased in a decade from 30,70,339 to
28,93,227 as in 1992. A statement showing the amount of dung
production for the year 1983-84 to 1996-97 and a statement
showing the nature of economy of the State of Gujarat is annexed.
The number of bullocks slaughtered per day is negligible compared
to other animals, and the business and/or trade of slaughtering D
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 E
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 F
hereunder:

(i) The details of various categories of animals 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- G
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 H
630 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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
B in the America & European countries since last 15 ~ears.
Therefore, there is international ban on export-import of beef from
England, America & European countries;
(ii) there is reduction in slaughter of bulls & bullocks above the age·
of 16 years reported in the regulated slaughter houses of Gujarat
c State. As reported in the years from 1982-83 to 1996-97, the
slaughter of bulls & bullocks above the age of 16 years was only
2.48% of the total animals of different categories slaughtered in
the State. This percentage has gone down to the level of only
I.I 0% during last 8 years i~e. 1997-98 to 2004-05 which is very
D less significant to cause or affect the business of butcher
communities;
(iiO India is predominantly agrarian society with nearly 'I.th of her
population living in seven lakh rural hamlets and villages,
possesses small fragmentary holding (54.6% below 1 hectare 18%
E 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;
F
(iv) the cattle population in Gujarat in relation to human population
has declined from 315 per IOOO humans in 1961 to 146 per 1,000
humans in 2001 indicating decline in real terms;
(v) in Gujarat 3.28 million draft animal (bullocks 85%) have
multifaceted utilities viz. agricultural operations like ploughing,
G
sowing, hoeing, planking, carting, hauling, water lifting, grinding,
etc.;

Gujarat State has a very rich cattle population of Kankrej & Gir
breed, of which Kankrej bullocks are very well known for its draft
H power called "Savai Chai";
STATE OF GUJARAT\'. MIRZAPURMOTI KURESHl KASSABJAMAT [LAHOTl,CJ.] 63 J

(vi) considering the utility of aged bullocks above 16 years as draft A
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 B
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 C
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 D
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 I 06
as against 222 in 1992-1993. This shows that State has created
a healthy livestock and specifically the longevity of animals has E
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" F
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 G
proper food and feeding and cheap and nutritious food grains
required for feeding can be grown with the help of dung. Thus
the most fundamental thing to the fundamental right of living for
the human being is bovine dung. (Ref. Report of National
Commission on Cattle, Vol.III, Page 1063-1064);
H
632 SUPREME COURT REPORTS (2005) SUPP. 4 S.C.R.

A (ix) the dung cake as well as meat of bullock are both commercial
commodities. If one bullock is slaughtered for its meat
(Slaughtering activity) can sustain the butchers trade for only a
day. For the next day's trade another bullock is to be slaughtered.
But ifthe bullock is not slaughtered, about 5000-6000 dung cakes
can be made out of its dung per year, and by the sale of such
B 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.
c (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,
D Department of Entomology, C.P. College of Agriculture, S.D.
Agricultural University, Sardar Krishi Nagar, Gujarat. The study
has established that insecticides formulations prepared using
cow urine emerged as the most reliable treatment for their
effectiveness against sucking pest of cotton. The conclusion of
study is dung & urine of even aged bullocks are also useful and
E 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
F bhoosa and industrial byproducts etc. are available in plenty. A
copy of the letter dated 8.3.2004 indicting sufficient fodder forthe
year 2004, addressed to Deputy Commissioner, Animal Husbandry
Government·of India is annexed.

Report on draughtability of bullocks above 16 years of age
G
On 20th June, 2001 the State of Gujarat filed I.A. No. 2/2001 in Civil
Appeal Nos. 4937-4940of1998, 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
H on draughtability of aged bullocks above 16 years of age under field conditions.
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 633
.. The study was conducted by the Gujarat Agricultural University Veterinary A
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
B
(ii) To compare the draughtability of aged bullocks with bullocks of
pnme age.

Empirical research was carried out under field conditions in North Gujarat
Region (described as Zone-I) and Saurashtra region (described as Zone-H),
The average age of aged bullocks under the study was 18.75 years. The D
number of bullocks/pair used under the study were sufficient to draw sound
conclusions from the study. The gist of the findings arrived at, is summed up
as under:

I. Farmer's persuasion
c
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 I00 to 150 working days per year. Under Indian E
conditions the reported values for working days per year ranges from 50 to
I 00 bullock paired days by small, medium and large farmers. Thus, the
agricultural operations-draft output are still being taken up from the aged
bu! locks by the farmers. The farmers feed concentrates, green fodders and dry
fodders to the,se aged bullocks and maintain the health of these animals F
considering them an important segment of their families. Farmers love their
bullocks.

2. Age, body measuremem and body weight

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

3. Horsepower generation/Work output

The aged bullocks on an average generated 0.68 hp/bullock, i.e.18. l %
-,• less than the prime/young bullocks (0.83 hp/bullock). The aged bullocks H
634 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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
B work in spite of the age bar. In addition to this, the experiment was conducted
during the months of May-June, 2000 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
C 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
D observed to be 10.72 g% and after 3 hours of work l 1.14g%, 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
E
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 completing 2 hours of the work. The results are
indicative of the fact that majority ofthe·aged bullocks (93%) worked normally.
F 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.

G The study report submitted its conclusions as under:

"I. The aged bullocks ·above 16 years of age generated 0.68 horse
power draft output per bullock while the prime bullocks generated
0.83 horsepower per bullock during carting-hauling draft work.
2. The aged bullocks worked satisfactorily for the light work for
H continuous 4 hours during morning session and total 6 hours per
STATEOFGUJARATv. MIRZAPURMOTIKURESHIKASSABJAMAT [LAHOTI.CJ.J 635

day (morning 3 hours and afternoon 3 hours) for medium work. A
3. The physiological responses (Rectal temperature, Respiration rate
and Pulse rate) and haemoglobi'l 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. B
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 C
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."
D
.< With the report, the study group annexed album/photographs an?.
cassettes prepared while carrying out the study. Several tables and statemen.ts
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. E
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
affi_davit and the accompanying report. We have no reason to d~ubt the
correctness of the facts stated therein; more so, when it is supported by the p
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 G
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 the
point of view of the Indian Economy. We extract and reproduce a few of the
facts therefrom:
-· H
636 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A "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
B 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,
c 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
D agriculture and certain allied operations would continue to remain as
important as meeting the requirement of milk in the country. It has
been estimated that about 80 million bullocks will be needed. There
is, therefore, a need for improving the working efficiency of the bullocks
through improved breeding and feeding practices.

E 3.6.13 Development of Draught Breeds
'
Focused attention to draft breed will not be possible unless a new
scheme is fonnulated 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
F 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 unifonnity in the type of the cattle population in the breeding
G. tracts. There is n.eed to intensify investigations to develop yardsticks
for objective assessment of draught capacity of bullocks.
I.

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.
H
STATEOFGU:ARATv. MIRZAPURMOTIKURESHI KASSABJAMAT (LAHOTI,CJ.) 637

are also likely to be interested in funding activities relating to cattle A
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 h...-;i a ti~ificant role B
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
c
wealth of India.

Yet another document to which we are inclined to make a reference is
Mid-Term Appraisal of I 0th Five Year Plan (2002-2007) released in June, 2005
by the Government of India (Planning Commission). Vide para 5.80 the repon D
·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 repon, Organic farming is a way of fanning 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 E
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.
F
Organic farming has become popular in many western countries. There
are two major driving forces behind this phenomenon; growing global market
for organic agricultural produce due to increased health consciousness; and
~
the premium price of organic produce fetched by the producers.

India has a comparative advantage over many other countries. G

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 H
638 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A 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
B initiatives to integrate biogas programme in its Village Energy Security Program
(VESP).
..
,
Production of pesticides and biogas depend on the availability of cow-
dung.
c National Commission on Cattle

Vide its Resolution dated 2nd August, 200 I, the Government of India
established a National Commission on Cattle, comprising of 17 members.

The Commission was given the follow terms of reference:-
D
(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,

E (b) To study the existing provisions for the maintenance of Gosha/as,
Gosadans, Pinjarapoles and other organisations working for
protection and development of cattle and suggest measures for
making them economically viable,
(c) To s~dy the contribution of cattle towards the Indian economy
F 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,

G (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:-"

I. The Prohibition for slaughter of cow and its progeny, which would
H
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 639

include bull, bullocks, etc., should be included in Fundamental Rights A
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 B
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. C
xxx xxx xxx

14. The use and production of chemical fertilizers and chemical
pesticides should be discouraged, subsidies on these items should be
reduced or abolished altogether. The use of organic manure should be D
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 E
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 qf our precious animals should
be stopped. He has in extenso dealt with several uses of dung and its F
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 fenilizers. Dung also has medicinal value in Ayurved, the
Indian system of medicines.

Continuing Utility of Cattle : Even if the utility argument of the G
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 H
640 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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
B 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:
c
37.1 The cows are slaui;htered 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
D
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
E 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 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
F engaged in such activities, are making profits also.

3 7 .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
G 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
H not yield milk are unprofitable and burden for the owner is totally
STATE OF GUJARAT''· MIRZAPUR MOTi KURESHI KASSAB JAM AT [LAHOTI, CJ.] 64]

false. In fact it can be said that products of cow are sufficient to A ·
maintain them even without milk. The milk in such cases is only a by
product.

3 7.4 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 B
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 C
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 D
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. E
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.
F
The utility of cow cannot be doubted at all. A total ban on cow
slaughter has been upheld even in Quareshi-1. The controversy in the present
case is confined to cow progeny. The important role that cow and her progeny
play in the Indian Economy was acknowledged in Quareshi-1 in the following
words:
G
"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 H
any other animal. Good breeding bulls are necessary to improve the
642 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A 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-"The cow and the
B wor!dng 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
c objectives, we must devote greater attention to the preservation,
protection and improvement of the stock and organise our agriculture
and animal husbandry on modem 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
D is in the interests of the general public within the meaning of clause (6) of
Article 19 of the Constitution.

Part - III

Stare Decisis
E
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-1 which has held field ever since 1958 and has been followed in
F 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 fonner adjudication''. This principle is
expressed in the maxim "stare decisis et non quieta movere" which means to
G stand by decisions and not tci 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 dee is is is not "an imprisonment of reason"
(Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd Edition 2005, Volume 4, p.
4456). The underlying logic of the doctrine is to maintain consistency and
H avoid uncertainty. The guiding philosophy is that a view which has held the
STATE OF GUJARAT r. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ] 643

field for a long time should not be disturbed only because another view is A
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 B
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 C
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-jack~t instead of
permitting it to expand to meet the new needs and requirements of changing D
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 po !icy. 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 E
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 F
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 G
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 H
644 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A consciously weighing the pros and cons in order to arrive at a conclusion.
(Salmond, ibid, pp. 188).

In case of modem economic issues which are posed for resolution in
advan-:i111g society or developing country, the court r.'.lllnot afford to be static
'· y <:irnp!istir.a!ly taking skelter behind pri:td~ stlcll as stare decisis, and
B 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
C consequent conflict resolution and "patterning" is necessary for full human
development. (See - The Province and Function of Law, Julius Stone, at pp.
588, 761and 762)

Stare decisis is not an inexorable command of the Constitution or
jurisprudence. A careful study of our legal system will discern that any
D 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).

E 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
F change with changing society, and, "every age should be mistress of its own
law" and era should not be hampered by outdated law. "It is revolting", wrote
Mr. Justice Holmes in characteristically forthright language, "to have no
better reason for a rule of law than it was so laid down in the time 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
G 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 ·
H ought to be followed. Yet, the demands of the changed facts and circumstances
STATEOFGUJARATv. MIRZAPURMOT!KURESHIKASSABJAMAT [LAHO"n,CJ.j 645

dictated by forceful factors supported by logic, amply justify the need for a A
fresh look.

Sir John Salmond, while dealing with precedents and illustrating instances
1)f 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 B
which are no longer adequate in present circumstances. (See 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 C
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-Essays on Jurisprudence from the Columbia Law Review, 1964,
at p. 20) D
We have already indicated that in Quareshi-1, 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-1 the reasonableness E
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 detailed
discussion contained in the judgment reveals, this determination is not purely F
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-1 loses much of its significance. Subsequent decisions have merely
followed Quareshi-1. In the case before us, we have material in abundance
justifying the need to alter the flow of judicial opinion.
G
Part - IV

Quareshi-1, re-visited :

Having dealt with each of the findings recorded in Quareshi-1, which
formed the basis of the ultimate decision therein, we revert to examine whether H
646 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A the view taken by the Constitution Bench in Quareshi-1 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-1 upheld the constitutional validity, as
reasonable and valid, of a total ban on the slaughter of : (i) cows of all ages,
B (ii) calves of cows and she-buffaloes, male or female, and (iii) she-buffaloes
or breeding bulls or working bullocks (cattle as well as buffaloes) as long as
they are as milch or draught cattle. But the Constitution Bench found it
difficult to uphold a total ban on the slaughter of she-buffaloes, bulls or
bullocks (cattle or buffalo) after they cease to be capable of yielding milk or
C 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,
D the findings are as follows:
(I) 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
E presenti in faturo. 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 ~he people who are by occupation
F 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
G 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.

These findings were recorded in the judgment delivered on 23rd April,
H 1958. Independent India, having got rid of the shackles of foreign rule, was
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI. CJ.] 64 7

not even 11 years old then. Since then, the lndian economy has made much A
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. B
We deal with the findings in Quareshi-1 seriatim.

Finding I :

We do not dispute that the country is in short supply of milch cattle, C
breeding bulls and working bullocks and that they are essential to maintain
the health and nourishment of the nation as held in Quareshi-1. Rather we rely
on the said finding which stands reinforced by the several documents which
we have referred to hereinbefore.

In the Quareshi-1 era, there was a shortage of fodder in the country. D
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 E
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 F
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 G
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 H
648 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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

B The finding suffers from two infirmities. First, Quareshi-1 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-1 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
C 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 shows that beef contributes only I .3% of the total meat
consumption pattern of the Indian society. Butchers are not prohibited from
D 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.

E Finding 3 :

In the first and second Five Year Plans (Quareshi-1 era), there was
scarcity of food which reflected India's panic. The concept of food sec1Jrity
has since then undergone considerable change.

F 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
G 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 _
H in assessing food security. India is one of the few countries which have
STATE OF GUJARA h MIRZAPUR MOTi KU RES HI KASSAB JAMAT [LAHOTI, CJ.] 649

experimented with a broad spectrum of programmes for improving food security. A
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 B
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 C
e!lvironment. 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 D
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 E
(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 th~ people. To quote (ibid. p.209) : "Even though the question
F
of desirable diet 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 G
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."
H
650 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A 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.

B Finding 4 :

Quareshi-1 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
C useful and so-called useless cattle, if the owner is not willing to continue to
maintain them. Quureshi-1 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
D 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 gosha/as (para 20 at pages
E 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
F 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

G In Quareshi-1, 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
H is needed by the bulls and bullocks at a point of time when their utility has
STATE OF GUJARAT'" MIRZAPUR MOTi KURESHI KASSAB JAMAT [LAHOTI, CJ.] 65 J

been reduced or has become nil as they near the end of their life. That is what A
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 B
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 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 C
holdings are small units. The country needs bulls and bullocks.

For multiple reasons which we have stated in very many details while
dealing with Question-6 in Part II of the judgment, we have found that bulls
and bullocks do not become useless merely by crossing a particular age. The D
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 E
favour of the constitutional validity of the impugned enactment. In Quareshi-
1 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
F
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 G
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.

H
,.
652 SUPREME COURT REPORTS (2005] SUPP. 4 s,i:.R.
·~ ~~ ·-~

A \ According to Shri M.S. S\vaminathan, the eminent Fann 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 fanners 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
B hundred hectares and farmers are supported by heavy inputs of technology,
capital and subsidy. The on-going Doha round of negotiations of t~e 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 "·ay of life is disappearing and is giving.wa' to
C ·agribusiness." {K.R. Narayanan Oration delivered by Dr. Swaminathan at: the
Australian National University, Canberra, p~blished in 'The Hindu', O::tober
17,2005,p.IO)

"In India, nearly 600 million individuals are eniaged in farming and over
80 per cent of them belong to the small and marginal farmer categories. Due
D to imperfect adaptation to local environments, insufficient provision of
nutrients and water, and incomplete control of pests, diseases and weeds, the
prJosent 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
E drainage, terracing, and control of acidification, in areas whe~e 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
countrjes (India included) have average farms of small size. Majority o_f the
F 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.
G
Having subjected the restrictions imposed by thelmpug~ed Gujarat
enactment to the test laid down in· the case of N.M. Thomas (supra) \ve 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.
H
STATE OF GU.JARA Tl' MIRZAPURMOTI KURESHJ KASSABJAMAT [A.K. MATHUR,J.] 653

Before we part, let it be placed on record that Dr. L.M. Singhvi, the A
learned senior counsel for one of the appellants, initially tried to build an
argument by placing reliance on Article 31 C 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 B
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 C
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.

A.K. MATHUR, J. l have gone through the erudite judgment by Hon'ble
Chief Justice. But I regret I cannot support the view taken by Hon'ble Chief D
Justice.

Basic question that arises in these petitions are whether there is need
to over-rule the earlier decisions which held the field right from 1958-1996, is
the ground realities have materially changed so as to reverse the view held E
by successive Constitutional Benches of this Court or those decisions ceased
to have any relevance.

It is true that life is ever changing and the concept which was useful
in 18th century may not be useful in this millennium. We have gone from
cartage to space age. New scientific temper is a guiding factor in this F
millennium. But despite the changing pattern of life it cannot be said that the
decision delivered in the case of Mohd. Qureshi followed by subsequent
decisions have outlived its ratio. In my respectful view the material which has
been placed for taking a contrary view does not justify the reversal of earlier
decisions.
G
The detailed history of the legislation and various decisions bearing on
the subject has been dealt with by Hon 'ble Chief Justice in most exhaustive
and pains-taking manner. Therefore, there is no need to repeat those legislative
as well as judicial history here. My endeavor in this opinion will be to show
that the situation which existed right from 1958 till this date there is no H
654 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A material change warranting reversal of the judgments bearing on the subject
from 1958-96.

The whole controversy arose in the writ petition filed in the Gujarat
High Court challenging the validity of the Bombay Animal Preservation (Gujarat
Amendment) Act, 1994 (hereinafter referred to Gujarat Act No. 4 of 1994). By
B this amendment the age of bulls and bullocks which was existed at that time
that is bull below the age of 16 years and bullocks below the age of 16 years
can not be slaughtered was deleted. By this amendment the age restriction
was totally taken away and that means that no bull and bullock irrespective
of age shall be slaughtered. This amendment was challenged before the
Gujarat High Court. The Gujarat High Court after dealing with all aspects in
C detail held that amendment is ultra vires. Hence, the present petition alongwith
the other petitions came up before this Court by Special Leave Petition.

The matter was listed before the three Judges' Bench. Thereafter, it was
taken by the Constitution Bench and the Constitution Bench realizing difficulty
that there are already Constitution Bench judgments holding the field, referred
D
the matter to the seven Judges' Bench for reconsideration of all the earlier
decisions of the Constitution Benches. Hence these·matters are before seven
Judges' Bench.

Hon 'ble the Chief Justice has already reproduced the objects and reasons
E for amendment therefore same need not be reproduced here. This amendment
brought about to effect directive principles of the State Policy under Articles
47, 48 of the Constitution and Clause (b) and (c) of Article 39 of the
Constitution.

Thereafter, Hon'ble Chief Justice has also reviewed all the cases bearing
F on the subject which can be enumerated as under:

I. AIR (1958) SC 731 (Mohd. Han if Qureshi and Ors. v. State of Bihar)

2. AIR (1961) SC 448 (Abu! Hakim v. State of Bihar)

G 3. (1969] 1 sec 853 (Mohd. Faruk V. State of M.P. and Ors.)

4. (1986] 3 sec 12 (Haji Usmanbhai Hasanbhai Qureshi V. State of
Gujarat)

5. (1996] 4 SCC 391 (Hashmattullah v. State of M.P. and Ors.)
H
STATEOFGUJARATv. MIRZAPURMOTI KURESHI KASSABJAMAT [A.K MATHUR.!.] 655

In these cases, this very question was agitated & by series of decisions A
it was answered in the negative.

In Mohd. Hanif Qureshi 's case this Court upheld a total prohibition of
slaughter of the cows of all ages and calf of buffalows (male and female) &
she-buffaloes, breeding bulls and working bullocks, without prescribing any
test of requirement as to their age. But so far as bull & bullocks are concerned B
when they ceased to have draughtability prohibition of their slaughter was
not upheld in public interest. Hon'ble S.R. Das, CJ speaking for the Court
exhaustively dealt with all the aspects which practically covers all the arguments
which have been raised before us, especially, the utility of the cow-dung for
manure as well as the cow urine for its chemical qualities like Nitrogen C
Phosphates and Potash. His Lordship recognized that this enactment was
made in discharge of State's obligation under Art. 48 of the Constitution to
preserve our livestock.

His Lordship has discussed the question of reasonable restriction under
Article 19 (6) and after considering all material placed before the Court, and D
adverting to social, religious, utility point of view in most exhaustive manner
finally concluded thus :

"After giving our most careful and anxious consideration to the pros
and cons of the problem as indicated and discussed above and
keeping in view the presumption in favour of the validity of the E
legislation and without any the least disrespect to the opinions of the
legislatures concerned we feel that in discharging the ultimate
responsibility cast on us by the Constitution we must approach and
analyze the problem in an objective and realistic manner and then
make our pronouhcement on the reasonableness of the restrictions
imposed by the impugned enactments. So approaching and analyzing F
the problem, we have reached the conclusion (i) that a total ban on
the slaughter of cows of all ages and calves of cows and calves of
she-buffaloes, male and female, is quite reasonable and valid and is
in consonance with tpe directive principles laid down in Art. 48; (ii)
that a total ban on the slaughter of she-buffaloes, or breeding bulls ·G
or working bullocks (cattle as well as buffaloes) as long as they are
as milch or draught cattle is also reasonable and valid and (iii) that
a total ban on the slaughter of she-buffaloes, bulls and bullocks
(cattle or buffalo) after they cease to be capable of yielding milk or
of breeding or working as draught animals cannot be supported as
H
656 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A reasonable in the interest of the general public."

Therefore, their Lordships have summarized the whole concept of
preservation of the cattle life in India with reservation that those cattle head
which have lost their utility can be slaughtered specially with regard to
draught cattle, bulls, bullocks & buffaloes so as to preserve the other milching
B cattle for their better breed and their better produce.

Subsequently in another decision, in the case of Abdul Hakim v. State
of Bihar, reported in AIR ( 1961) SC 448 the ban was imposed by the States
of Bihar, Madhya Pradesh and U.P. which came up for consideration before
this Court and in this context it was observed as under:
c
"The test of reasonableness should be applied to each individual
statute impugned and no abstract standard, or general pattern, of
reasonableness can be laid down as applicable to all cases. The nature
of the right alleged to have been infringed, the underlying purpose of
the restrictions imposed, the extent and urgency of the evil sought to
D
be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict."

Their Lordship also emphasized that the legislature is the best Judge of
what ,is good for the community, by whose suffrage it comes into existence,
E the ultimate responsibility for determining the validity of the law must rest
with the Court and the Court must not shirk that solemn duty cast on it by
the Constitution.

It was observed that the unanimous opinion of the experts is that after
the age of 15, bulls, bullocks and buffaloes are no.Jonger useful for breeding,
F draught and other purpose and whatever little use they may have then is
greatly off-set by the economic disadvantage of feeding and maintaining
unserviceable cattle.

Section 3 of the Bihar Act in so far as it has increased the age limit to
25 in respect of bulls, bullocks and she-buffaloes, for the purpose of their
G slaughter imposes an unreasonable restriction on the fundamental right of the
butchers to carry on their trade and profession. Moreover the restriction
cannot be said to be in the interests of the general public, and to that extent
it is void.

Then again in the case of Mohd. Faruk vs. State of Madhya Pradesh
H
STATEOFGU.IARAT1·. MJRZAPURMOTIKURESHI KASSABJAMAT [AK. MATHUR,!.] 657

and Ors. reported in 1969 (I) sec 853, Constitution Bench was called upon A
,· to decide the validity of the notification issued by the Madhya Pradesh
Government under Municipal Corporation Act. Earlier, a notification was
issued by the Jabalpur Municipality permitting the slaughter of bulls and
bullocks alongwith the other animals. Later on State Government issued
notification cancelling the notification permitting the slaughter of bulls and
bullocks. This came up for a challenge directly under Art. 32 of the constitution B
before this Court, that this restriction amounts to breach of Art. 19(1 )(g) of
the constitution. In that context, their Lordship observed:

"That the sentiments of a section of the people may be hurt by
permitting slaughter of bulls and bullocks in premises maintained by
a local authority. But a prohibition imposed on the exercise of a C
fundamental right to carry on an occupation, trade or business will
not be regarded as reasonable if it is imposed not in the interest of
the general public but merely to respect the susceptibilities and
sentiments of a section of the people whose way of life belief or
thought is not the same as that of the claimant. The notification D
issued must, therefore, be declared ultra virus as infringing Article
19(l)(g) of the Constitution."

Then again in the case of Haji Usmanbhai Hasanbhai Qureshi and Ors.
v. State a/Gujarat, reported in [1986] 3 sec 12, the insertion of Section 5 (I-
A) (c) and (d) was made under the Bombay Animal Preservation (Gujarat E
amendment) act 1979) came up for consideration. By virtue· of this insertion
by the Gujarat State, it was laid down that there will be ban of slaughter of
bulls, bullocks below the age of 16 years. It was contented that this prohibition
is unreasonable and violative of Art. 19( 1)(g). Their Lordships upheld the
restriction under Art. I9(6) with reference to Art. 48 of the constitution. Their
Lordships upheld the contention of the State of Gujarat that with the F
improvement of scientific methods cattle up to the age of 16 years are used
for the purpose of breeding and other agricultural operation. But by this Act
of 1994 this age restriction has now been totally taken away by the Act of
1994 (which is subject matter of challenge in these petitions).
G
Then again the matter came up before this Court in the case of
Hashmattullah v. State of M.P. and Ors., reported in [1996] 4 SCC 391. This
time the provisions of the M. P. Agricultural Cattle Preservation Act, 1959
came up for consideration. This Act was amended by Amending Act of 1991
and a total ban on slaughter of bulls and bullocks came to be imposed. And
H
658 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A this was challenged being violative of Art. 19 (l)(g) of the constitution.
Their Lordships after reviewing all earlier cases on the subject and
taking into consideration the uselessness of these bulls and bullocks after
they have attained a particular age for agriculture operation like manure as
well as bio-gas and ecology, observed in para 18 as under:
B
"We are pained to notice the successive attempts made by the State
of Madhya Pradesh to nullify the effect of this Court's decisions
beginning with Mohd. Hanifs case and ending with Mohd. Faruk's
case, each time on flimsy grounds. In this last such attempt, the
objects and reasons show how insignificant and unsupportable the
c ground for bringing the legislation was. The main thrust of the objects
and reasons for the legislation seems to be that even animals which
have ceased to be capable of yielding milk or breeding or working as
draught animals can be useful as they would produce dung which
could be used to generate non-conventional sources of energy like
bio-gas without so much as being aware of the cost of maintaining
D
such animals for the mere purpose of dung. Even the supportive
articles relied upon do not bear on this point. It is obvious that
successive attempts are being made in the hope that some day it will
succeed as indeed it did with the High Court which got carried away
by research papers published only two or three years before without
E realizing that they dealt with the aspect of utility of dung but had
nothing to do with the question of the utility of animals which have
ceased to be reproductive of capable of being used as draught animals.
Besides, they do not even reflect on the economical aspect of;
maintaining such animals for '.he sole purpose of dung. Prim facie it
seems farfetched and yet the State Government thought it as sufficient
F to amend the law."

And their Lordships declined to review the ratio laid down in Mohd. Hanif
Qureshi 's case & reiterated the same.

G This is a survey of the judicial determination on the subject. And in the
last case their Lordships frowned on unsuccessful attempt by the State to
somehow nullify the ratio laid down in Mohd. Han if Qureshi 's case and
subsequent decisions following Qureshi 's case. But this time, the State of
Gujarat has come up to seek the review of earlier decisions. Now I shall
examine the material which has been placed by the State of Gujarat to justify
H the total prohibition of slaughter of bulls and bullocks.
STATE OF GUJARAT I'. MIRZAPUR MOTi KURESHI KASSAB JAMA T [A.K. MATHUR, J.] 659

Learned counsel for the appellant has brought to our notice the affidavit A
filed by the State of Gujarat which has been reproduced by the Hon'ble Chief
Justice on page 56 in his opinion onwards. Therefore, I need not reproduce
the whole of the affidavit. Mr. J.S.Parikh, Deputy Secretary, Agricultural
Cooperative and Rural Development Department of the State of Gujarat has
in his affidavit stated that almost in 50% of the agricultural operation by
tractor is not possible because of small holdings in the State of Gujarat. B
Therefore, for such small holdings the draught animals are best used for
cultivation purposes. It was also stated that the total cultivated area of
Gujarat State is about 124 lakh hectares and a pair of bullocks is required for
ploughing I 0 hectares of land. Therefore, 5.48 lmillion and approximately
equal number is required for carting of whole land. In accordance with livestock C
census, the Gujarat State has availability of indigenous bullocks around 2.84
millions that means that a State has only 25% of their requirement and it is
also stated that each bull is required for this purpose. He has also stated that
bull or bullocks at every stage of life supplies 3500 kg. of dung and 2000 ltrs.
of urine and this quantity of dung can supply 5000 cubic feet of biogas, 80
M. T. of organic fertilizer and the urine can supply 2000 ltrs of pesticides and D
the use of it in farming increases the yield very substantially. That in recent
advancement of technology use of biogas has become very useful source of
. - energy and the biogas can be prepared out of the cow dung and other inputs .
It was pointed out that there are 19362 biogas plants installed in the State
during 1995-97. E
Similarly, an additional affidavit was filed by Mr. D.P. Amin, Joint Director
of Animal Husbandry, Gujarat State. He has mentioned that the number of the
slaughter houses have declined during the year 1982-83 to 1996-97. The
av~rage number of animals slaughtered in regulated slaughter hol!ses was
4,39,141. It is also stated that there is a reduction in slaughter of the bull and p
bullocks above the age of 16 years. Almost 50 per cent of the land holdings
are less than 2 hectares; tractor operation is not affordable to small farmers.
For tractors operation one should have large holding of land. Such land
holders are only around I 0 per cent of the total land holders. Hence the
farmers with small land holdings require bullocks for their agricultural
operations and transport. There is reduction in slaughter of bulls and bullocks G
above the age of 16 years reported in the regulated slaughter houses of
Gujarat State. As reported in the years from 1982-83 to 1996-97, the slaughter
of bulls and 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 I. I0% during last 8 years i.e. 1997-98 to 2004- H
660 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A 05 which is very less significant to cause or affect the business of butcher
communities. He has also stated that the bullock above the age of 16 years
can generate 0.68 horse power draught output while the prime bullock generates
0.83 horse power per bullock during carting/hauling draught work. Considering
the utility of bullocks above 16 years of age as draught power a detailed
combined study was carried out by Department of Animal Husbandry and
B Gujarat Agricultural University (Veterinary Colleges S.K. Nagar & Anand).
The study covered different age groups of 156 (78 pairs) bullocks above the
age of 16 years age generated 0.68 horse power draught output per bullock
while the prime bullock generated 0.83 horse power per bullock during carting/
hauling draught work in a summer with about more than 42: F temp. The study
C proves that 93% of aged bullock above 16 years of age are still useful to
farmers to perform light and medium draught works. The importance of organic
manure as a source of humus and plant nutrients to increase the fertility level
of soils has been well recognized. The organic matter content of cultivated
soils of the tropics and sub-tropics is comparatively low due to high temperature
and intense microbial activity. The crops remove annually large quantity of
D 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. It was
mentioned that there is number of bio-gas plants operating in the State of
Gujarat.
E Apart from these affidavits many more published documents have been
placed on record which has been reproduced by the Hon 'ble Chief Justice of
India in his opinion. But all these are general datas which only provide the
usefulness of cow dung for the purposes of manure as well as for biogas and
likewise the urine of the cqws for pesticides and ayurvedic purposes. But all
F those datas cannot change the reality that such an aged bull and bullocks
produce huge quantity of the cow dung manure and urine which can alter a
situation materially so as to reverse the earlier decisions of this court. Utility
of the cow dung and urine was realized and appreciated in the earlier decision
of this Court in Mohd. Han if Qureshi 'sand Ors. v. State of Bihar and Ors.
AIR ( 1958) SC 73 l The then Chief Justice has quoted from various scriptures
G emphasizing the importance of the cattle life. Therefore it cannot be said that
the earlier decisions rendered by the Constitution Bench was oblivious of
these facts.

However, so far as the affidavits filed on behalf of State of Gujarat about
H the use of biogas and the usefulness of the draught animals has to be taken
STATEOFGUJARATv. MIRZAPURMOTIKURESHI KASSABJAMAT [A.K. MAIBUR,J.] 66J

with pinch of salt, in both the affidavits it has been admitted that urine and A
the cow dung of the aged bull and bullocks beyond 16 years is reduced
considerably and likewise their draughtability. Therefore, it is admitted that
the bullocks which have crossed the age of 16 years their output for the urine,
cow dung and draughtability is substantially reduced. Therefore it is explicit
from their affidavits that the age of 16 years prescribed earlier was on a very
reasonable basis after proper scientific study but de hors those scientific B
study the State Government brought this amendment removing the age limit
for slaughtering of the bulls and bullocks and totally prohibited slaughtering
of the same. This decision of the State Government does not advance the
public interest.

Another significant disclosure in both these affidavits is that slaughtering C
of these bulls and bullocks has considerably reduced in the year 1997-98 to
2004-2005. The slaughtering of bulls and bullocks beyond the age of 16 years
was only 2.48% of the total animals of different categories slain in the State
prior to this period. This percentage has gone down to the level of only 1.10
% during the last 8 years i.e. 1997-98 to 2004-2005. These details reveal that D
in fact the slaughtering of these bulls and bullocks beyond the age of 16
years constituted only 1.10% of the total slaughtering takes place in the State.
If this is the ratio of the slaughtering, I fail to understand how this legislation
can advance the cause of the public at the expense of the denial of Fundamental
Right of this class of persons (butchers). In view of facts disclosed in the
affidavit filed by the two senior officer of the State of Gujarat speaks volume E
that for small percentage of I.I 0% can the fundamental right of this class of
persons should be sacrificed and earlier decisions be reversed. I fail to
understand how it would advance the cause of the public at large so as to
deprive the handful of persons of their rights to professiqn. On the basis of
this material, I am of the opinion that the earlier decisions of this Court have F
not become irrelevant in the present context. The tall claim made by State
looks attractive in a print but in reality it is not so. I fail to understand that
how can an animal whose average age is said to be 12-16 years can at the
age of 16 years reproduce the cow-dung or urine which can off set the
requirement of the chemical fertilizer. In this connection reference be made to
text book where average age is 12 years. It is a common experience that the G
use of the chemical fertilizer has increased all over the country and the first
priority of the farmer is the chemical fertilizer, as a result of which the production
in food grain in the country has gone up and today the country has become
surplus. This is because of the use of the chemical fertilizer only and not the
H
662 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R,

A organic manure. It was observed in Mohd. Hanifs case that India. has a
largest cattle head but a lower in the production of milk. It is only because
of the scientific methods employed by veterinarian which has increased the
milk production in the country not because of the poor breed of the bulls.
It is common experience that aged bulls are not used for purposes of covering
the cows for better quality of the breed. Only well-built young bulls are used
B for the purpose of improving the breeding and not the aged bulls. If the aged
and weak bulls are allowed for mating purposes, the off-spring will be of poor
health and that will not be in the interest of the country. So far as the use
of biogas is concerned, that has also been substantially reduced after the
advent ofL.P.G ..
c · Therefore in my opinion, in the background of this scenario, I do not
think that it will be proper to reverse the view which has been held good for
a long spell of time from 1958 to 1996. There is no material change in ground •
realities warranting reversal of earlier decisions.

D One of the other reasons which has been advanced for reversal of
earlier judgments was that at the time when these earlier judgments were
deliverec( Article 48(A) and 51(A) were not there and impact of both these
Articles ~ere not considered. It is true that Article 48(A) which was introduced
by the 42nd Constitutional Amendment in 1976 with effect from 3.1.1977 and
Article 51(A) i.e. fundamental duties were also brought about by the same
E amendment. Though, these Articles were not in existence at that time but the
effect of those Articles were indirectly considered in the Mohd HanifQureshi's
case in 1958. It was mentioned that cow dung can be used for the purposes
of manure as well as for the purpose of fuel that will be more echo-friendly.
Similarly, in MoJ:d HanifQureshi's case their Lordships have quoted from the
F scriptures to show that we should have a proper consideration for our cattle
wealth and in that context their Lordships quoted in para 22 which reads as
under:

"22. The avowed object of each of the impugned Acts is to ensure
the preservation, protection," and improvement of the cow and her
G progeny. This solicitude arises out of the appreciation of the usefulness
of cattle in a predominantly agricultural society~ Early -Aryans
recognized its importan.ce as one of the most indispensable adjuncts
of agriculture. It would appear that in Vedic times animal flesh formed
the staple food of the people. This is attributable to the fact that the
climate in that distant past was extremely cold and the Vedic Aryans
H
STATEOFGUJARATv. M!RZAPURMOT!KURESH!KASSABJAMAT [AK MATHUR,J.] 663

had been a pastoral people before they settled down as agriculturists. A
In Rg. Vedic times goats, sheep, cows, buffaloes and even horses
were slaughtered for food and for religious sacrifice and their flesh
used to be offered to the Gods. Agni is called the "eater of ox or cow"
in Rg.Veda (VIII,43,11). The slaying of a great ox (Mahoksa) or a
"great Goat" (Mahaja) for the entertainment of a distinguished guest
has been enjoined in the Satapatha Brahmana (III.4. 1-2). Yagnavalkya B
also expresses a similar view (Vaj.1. 109). An interesting account of
those early days will be found in Rg.Vedic Culture by Dr. A.C. Das,
Chapter 5, pages 203-5 and in the History ofDharamasastras (Vol.JI,
Part II) by P.V. Kane at pages 772-773. Though the custom of
slaughtering of cow.s and bulls prevailed during the vedic period, C
nevertheless, even in the Rg. Vedic times there seems to have grown
up a revulsion of feeling against the custom. The cow gradually came
to a~quire a special sanctity and was called "Aghnya" (not to be
slain). There was a school of thinkers amongsMhe Risis, who set their
face against the custom of killing such useful animals as the cow. \,1-nd
the bull. High praise was bestowed on the cow as will appear from the D
following verses from Rg.Veda, Book VI, Hymn XXVllI (Cows)
attributed to the authorship of Sage Bhardavaja:

"I . The kine have come and brought good fortune; let them rest in
the cow-pen and be happy near us.
E
Here let them stay prolific, many coloured, and yield through many
morns their milk for Indra.

6. 0 Cows, ye fatten e'n the worn and wasted, and make the unlovely
beautiful to look on.

Prosper my house, ye with auspicious voices, your power is glorified F
in our assemblies.

7. Crop goodly pasturages and be prolific; drink pure sweet water at
good drinking places.

Never be thief or sinful man your master, and may the dart of Rudra G
still avoid you."
'.
(Translation by Ralph Griffith). Verse 29 of hymn I in Book X of Atharva
Veda forbids cow slaughter in the following words:

H
664 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A "29. The slaughter of an innocent, 0 Kritya, is an awful deed, Slay not
cow, horse, or man of ours."

Hyman 10 in the same book is a rapturous glorification of the cow:

"30. The cow is Heaven, the cow is Eath, the cow is Vishnu, Lord of
life.
B
The Sadhyas and the Vasus have drunk the outpourings of the cow.

34. Both Gods and mortal men depend for life and being on the cow.

She hath become this universe; all that the sun surveys is she."
c P.V. Kane argues that in the times of the Rg.Veda only barren cows,
, if at all, were killed for sacrifice or meat and cows yielding milk were
held to be not fit for being killed. It is only in this way, according to
him that one can explain and reconcile the apparent conflict between
the custom of killing cows for food and the high praise bestowed on
D the cow in Rg.Vedic times. It would appear that the protest raised
against the slaughter of cows greatly increased in volume till the
custom was totally abolished in a later age. The change of climate
perhaps also make the use of beef as food unnecessary and even
injurious to health. Gradually cows became indicative of the wealth of
the owner. The Neolithic Aryans not having been acquainted with
E metals, there were no coins in current use in the earlier stages of their
civilization, but as they were eminently a pastoral people almost every
family possessed a sufficient number of cattle and some of them
exchanged them for the necessaries of their life. The value of cattle
(Pasu) was, therefore, very great with the early Rg.Vedic Aryans. The
F ancient Romans also used the word pecus or pecu (pasu) in the sense
of wealth or money. The English words, "pecuniary" and
"impecunious", are derived from the Latin root pecus or pecu, originally
meaning cattle. The possession of cattle in those days denoted wealth
and a man was considered rich or poor according to the large or small
number of cattle that he owned. In the Ramayana king Janaka's wealth
G was described by reference to the large number of herds that he
owned. It appears that the cow was gradually raised to the status of
divinity. Kautilya's Arthasastra has a special chapter (Ch.XXIX) dealing
with the "superintendent of cows" and the duties of the owner of
cows are also referred to· in Ch.XI of Hindu Law in its sources by
Ganga Nath Jha. There can be no gainsaying the fact that the Hindus
H
STATE OF GUJARAT v. MIRZAPUR MOTi KURESHI KASSAB JAMA T lA.K. MATHUR, J.] 665

in general hold the cow in great reverence and the idea of the slaughter A
of cows for food is repugnant to their notions and this sentiment has
in the past even led to communal riots. It is also a fact that after the
recent partition of the country this agitation against the slaughter of
cows has been further intensified. While we agree that the
constitutional question before us cannot be decided on grounds of B
mere sentiment, however passionate it may be, we, nevertheless, think
that it has to be taken into consideration, though only as one of many
elements, in arriving at a_judicial verdict as to the reasonableness of
the restrictions."

Therefore it cannot be said that the Judges were not conscious about C
the usefulness and the sanctity with which the entire cow and its progeny
has been held in our country. Though Article 48(A) and 5l(A) were not there,
but their Lordships were indirectly conscious of the implication. Articles
48(A) and 5 J(A) do not substantially change the ground realities which can
persuade to change the views which have been held from 1958 to 1996.
Reference was also made that for protection of top soil, the cow dung will D
be useful. No doubt the utility of the cow dung for protection of the top soil
is necessary but one has to be pragmatic in its approach that whether the
small yield of the cow dung and urine from. aged bulls and bullocks can
substantially change the top soil. In my opinion this argument was advanced
only for the sake of argument but does not advance the case of the petitioners/ E
appellants to reverse the decision of the earlier Benches which had stood the
test of time.

In this connection, it will be relevant to refer the principle of stare
dee is is. The expression of 'stare dee is is' is a Latin phrase which means "to
stand by decided cases; to uphold precedents; to maintain former F
adjudications". It is true that law is a dynamic concept and it should change
with the time. But at the same time it shall not be so fickle that it changes
with change of guard. If the ground realities have not changed and it has not
become irrelevant with the time then it should not be reviewed lightly. I have
discussed above the reasons which have been given by the State of Gujarat
for reconsideration of the earlier decisions on the subject, in my humble G
opinion the justification so pleaded is not sufficient to change or review the
decision of the Constitution Bench by the present Bench of seven Judges.

The principle of stare decisis is based on a public policy. This policy
is based on the assumption that certainty, predictability and stability in the H
666 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.

A law are the major objectives of the legal system; i.e. that parties should be
able to regulate their conduct and enter into relationships with reasonable
assurance of the governing rules of law. If the courts start changing their
views frequently then there will be a lack of certainty in the law and it is not
good for the health of the nation.

B Craies on Statue Law, 7th Edition, it was observed that:

"The rule is also founded more logically on the axiom statre decisis,
which was the ground of the decision in Hanau v. Ehrlich. The case
turned on the ambiguous words in the Statute of. Frauds as to
agreements not to be performed within a year from the making thereof.
c The House of Lords in 12912 decided that though it may be well
doubted whether an agreement for more than one year determinable
by notice within the year is within the statute, a long course of
decisions going back to 1829 in the affirmative ought not to be
disturbed. And in 1945 Scott L.J. refused to decide against a decision
D of Malins v. C. in (1870) on the ground that the construction placed
by the Vice-Chancellor on certain sections of the Companies Act 18~2
had been accepted for a long time. In 1958 Lord Evershed M.R. said:
"There is well-established authority for the view that a decision of
long standing, on the basis of which many persons will in the course
of time have arranged their affairs, should not lightly be disturbed by
E a superior court not strictly bound itself by the decision."

In 1919 Lord Buckmaster enunciated the principles on which the rule
of stare decisis is based. "Firstly, the construction of a statute of
doubtful meaning once laid down and accepted for a long period of
time ought not to be altered unless your Lordships could say positively
F that it was wrong and productive of inconvenience. Secondly, that the
decisions upon which title to property depends or which by
establishing principles of construction otherwise form the basis of
contracts ought to receive the same protection. Thirdly, decisions
affecting the general conduct of affairs, so that their alteration would
G mean that taxes had been unlawfully imposed or exemption unlawfully
obtained, payments needlessly made or the position of the public
materially affected, ought in the same way to continue."

Earlier, Lord Westbury had thus stated the rule, "We must bow to the
uniform interpretation which has been put upon the statute of Elizabeth
H and must not attempt to disturb the exposition it has received ..... If we
STATE OF GUJARAT v. MIRZAPUR MOT! KURESHI KASSAB !AMAT [A.K MA THUR, J .J 667

find a unifonn interpretation of a statue upon a question materially A
affecting property, and perpetually recurring, and which has been
adhered to without interruption, it would be impossible for us to
introduce the precedent of disregarding that interpretation. Disagreeing
with it would thereby be shaking rights and titles which have been
founded through so many years upon the conviction that that B
interpretation is the legal and proper one and is one which will not
be departed from."

The rule of stare decisis was followed in Associated Newspapers Ltd
v. City of London Corporation, where the House of Lords declined
to overrule two old cases which established the non-ratability of C
certain property in the City of London on the construction of an Act
of 1767, and in Morgan v. Fear, where the House of Lords refused to
disturb a construction of the Prescription Act 1832, which had been
settled and acted on for forty-six years. In Cohen v. Bayley-Worthington
which turned on the construction of the Fines and Recoveries Act,
.1833, the House of Lords refused to put on that Act a new construction, D
as property had been settled or otherwise dealt with for a long period
of time on the faith of the older cases, and in Close v. Steel Co. of
Wales Ltd. Lord Morton of Henryton said: "I have always understood
that when this House clearly expresses a view upon the construction
of an Act of Parliament and bases its decision on that view, the Act
must bear that construction unless and until Parliament alters the E
Act."

Therefore one of the hallmarks of the law is certainty predictability and
stability unless the ground realty has completely changed. In the present
case, as discussed above, in my opinion the ground reality has not changed F
and the law laid down by this court holds good and relevant. Some
advancement in technology and more and more use of the cow dung and
urine is not such a substantial factor to change the ground realities so as to
totally done away with the slaughtering of the aged bulls and bullocks. It is
true my Lord the Chief Justice has rightly observed that principle of stare
decisis is not a dogmatic rule allergic to logic and reason; it is a flexible G
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. There is no quarrel to this proposition.
but the only question is whether the earlier decisions are not logical or they
have become unreasonable with the passage of time. In my humble opinion, H
668 SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
J
A those decisions still hold good in the present context also. Therefore, I do
not think that there are compelling reasons for reversal of the earlier decisions
either on .the basis of advancement of technology or reason, or logic, or
economic consideration. Therefore, in my humble opinion, there is no need
to reverse the earlier decisions.

B An argument was raised with regard to role of objects and reasons
preceding the enactment. There is no two opinion that they are useful and
for purposes of interpretation of the provisions whenever its validity is
challenged. This aspect has been dealt with by the Hon'ble Chief Justice and
I do not wish to add anything more to it.
c Likewise, the Hon'ble Chief Justice has dealt in detail the relation of
Fundamental Rights with Directive Principles. His Lordship has very
exhaustively dealt with all the cases bearing on the subject prior and after
decision in Keshwanand Bharti 's case. The court should guard zealously
Fundamental Rights guaranteed to the citizens of the society, but at the same "
D time strike a balance between the Fundamental Rights and the larger interests
of the society. But when such right clashes with the larger interest of the
country it must yield to the latter. Therefore, wherever any enactment is made
for advancement of Directive Principles and it runs counter to the Fundamental
Rights an attempt should be made to harmonise the same if it promotes larger
public interest.
E
Therefore, as a result of above discussion, I am of the view that the
view taken by the Division Bench of the Gujarat High Court is correct and
there is no justification for reversing the view taken by the earlier Constitution
Bench decision of this Court. All appeals are dismissed. No order as to costs.

F RP. Appeals dismissed.

I