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

- **Citation:** [2005] Supp. 4 S.C.R. 582
- **Court:** Supreme Court of India
- **Decided:** 2005-10-26
- **Case number:** Civil Appeal Nos. 4937-4940 of 1998
- **Bench:** R.C. Lahoti, B.N. Agra Wal, Arun Kumar, G.P. Mathur, A.K. Mathur, C.K. Thakker, P.K. Balasubramanyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-v-mjrzapur-moti-kureshi-kassab-jama-t-and-ors-20977
- **Pages:** 87

## Headnote

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-Qureshil 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
H
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
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.)
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
F
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 of M.P. and Ors., (1996) 4 SCC 391, disapproved.
Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of Gujarat, (1986)
3 sec 12, affirmed.
State of West Bengal and Ors. v. Ashutosh Lahiri and Ors., (1995) l SCC
B 189

## Text

_Characters 0–39,965 of 214,711. This is a partial read: ask again with offset=39965 for what follows._

A
B
STATE OF GUJARAT
v.
MJRZAPUR MOTi KURESHI KASSAB JAMA T AND ORS.
OCTOBER 26, 2005
[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-Qureshil 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
H
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
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.)
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
F
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 of M.P. and Ors., (1996) 4 SCC 391, disapproved.
Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of Gujarat, (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, Part111 (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 of India, 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 of India
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 nonconven 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
5 89
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 nonvegetarian 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):
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
E
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 of MP. 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
E
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
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
G
substantially change the ground realities which can persuade to change the
views which have been held from 1958 to 1996.1662-C, D, El
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.
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,
c
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.
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.
E
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.
D
PART-!
Backdrop of Events
Legislative history leading to impugned enactment
With a view to conserve the cattle wealth of the State of Bombay, the
State Government enacted the Bombay Animal Preservation Act, 1948 and
prohibited slaughter of animals which were useful for milch, breeding or
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. Subsections (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
H
(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;
'
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
(5) xxx
(6) xxx
xxx
xxx
xxx
xxx
xxx
xxx
c
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, -
B
(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
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 subsection (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
F
G
H
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
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-
(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;
;:.:
ST ATE OF GUJARAT"· MIRZAPUR MOTi KURESHI KASSAB JAMAT (LAHOTI, CJ.] 595
(d) a bullock below the age of sixteen years";
(2)
for sub-section (3), the following sub-section shall be substituted,
namely:-
"(3) Nothing in this section shall apply to
A
(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;
(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.
c
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:
"Under the existing provisions of the Bombay Animal Preservation
Act, 1954, although there is a total prohibition against the slaughter
E
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, -
E
F
(I) in sub-section (IA), for clauses (c) and (d), the following
clauses shall be substituted, namely :-
"(c) a bull;
(d) a bullock.";
(2) in sub-section (3), -
(i) in clause (a), sub-clauses (ii) and (iii) shall be deleted;
(ii) in clause (b ), after the words "calf of a cow", the words "bull
or bullock" shall be inserted."
The Act was preceded by an Ordinance, a reference to the provisions
whereof is unnecessary. The Preamble to the Act reads as under:
"WHEREAS it is established that cow and her progeny sustain the
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;
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;
B
AND WHEREAS it is expedient to give effect to the policy of the C
State towards securing the principles laid down in articles 4 7, 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 I tu 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.
H
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 :
STA TEOF 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.