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CASE NO.: Appeal (civil)  4937-4940 of 1998

PETITIONER: State of Gujarat                                               

RESPONDENT: Mirzapur Moti Kureshi Kassab Jamat & Ors.

DATE OF JUDGMENT: 26/10/2005

BENCH: A.K. MATHUR

JUDGMENT: J U D G M E N T  With

C.A. No.4941-44 of 1998 and C.A. No.4945 of 1998

A.K. MATHUR, J.

       I have gone through the erudite  judgment  by Hon’ble  Chief Justice.  But I  regret  I cannot  support the view taken by Hon’ble Chief 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  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  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.

       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 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 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 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

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was  taken by the Constitution Bench and the Constitution Bench realizing  difficulty  that there are  already  Constitution Bench judgments holding the  field, referred the matter to the seven  Judges’ Bench for reconsideration of  all the earlier decisions of the Constitution Benches.  Hence these matters  are before  seven Judges’ Bench.          Hon’ble the Chief Justice has already reproduced the objects and  reasons for  amendment  therefore same need not be reproduced here. This  amendment brought about to effect  directive principles of the State Policy  under  Articles 47,  48 of the Constitution and Clause (b) and (c)  of Article  39 of the Constitution.                   Thereafter,  Hon’ble  Chief Justice  has also reviewed all the cases  bearing on the subject which can be enumerated as under: 1.      AIR 1958 SC 731 ( Mohd. Hanif Qureshi & Ors. Vs. State of  Bihar) 2.      AIR 1961 SC448 ( Abul Hakim Vs. State of Bihar) 3.      1969 (1) SCC 853 ( Mohd. Faruk Vs. State of M.P. & Ors.) 4.      1986 (3) SCC 12 ( Haji Usmanbhai Hasanbhai Qureshi Vs. State of  Gujarat 5.      1996 (4) SCC 391 ( Hashmattullah  Vs. State of M.P. & Ors.)

In these cases, this very question  was agitated  & by  series of   decisions 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   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 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 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 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  pronouncement on the  reasonableness of the restrictions  imposed by the impugned enactments.  So approaching and  analyzing 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 the directive  principles laid down  in Art. 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 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

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milk or of  breeding or working as draught animals cannot be  supported as reasonable in the interest of the general public."

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

Subsequently in another decision, in the case of Abdul Hakim vs.  State  of Bihar  reported in AIR 1961 SC 448   the ban was imposed by the  States of Bihar, Madhya Pradesh and U.P. which came up for consideration  before this Court and in this context  it was observed as under:

"The test of reasonableness should be applied to each  individual statute impugned and no abstract standard, or general  pattern, of  reasonableness can be laid down as applicable to all  cases.  The nature of the right alleged to have been infringed,  the underlying purpose of the restrictions imposed, the extent  and urgency of the evil sought to 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, 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 longer useful for  breeding, 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 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  and Ors. reported in  1969 (1) SCC 853,  Constitution Bench  was called  upon 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 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 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 issued must, therefore, be  declared ultra virus as infringing Article 19(1)(g) of  the   Constitution."

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Then again in the case of  Haji Usmanbhai Hasanbhai Qureshi & Ors.  vs. State of Gujarat reported in (1986) 3 SCC 12,  the insertion of Section 5  (1-A) (c) and (d)   was made under the  Bombay Animal Preservation   (Gujarat amendment) act 1979) came up for consideration.  By virtue of this  insertion by the Gujarat State, it was laid down that there will be ban of   slaughter of  bulls, bullocks below the age of 16 years.  It was contented that  this prohibition is unreasonable and violative of Art. 19(1)(g).   Their  Lordships upheld the restriction under  Art. 19(6) with reference to Art. 48  of the constitution.     Their Lordships   upheld the contention of the  State of  Gujarat    that with the improvement of scientific methods cattle up to   the  age of 16 years    are used for the purpose of breeding and other agricultural   operation.   But by this Act of  1994 this age restriction has now been totally   taken away by the Act of 1994 (which is subject matter of challenge  in these  petitions).

Then again the matter  came up before this Court in the case of   Hashmattullah vs. 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 this was challenged being violative of Art. 19 (1)(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:

"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. Hanif’s 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 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 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 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 the sole  purpose of  dung. Prim facie it seems  farfetched and yet the State Government thought it as sufficient  to amend the law."

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

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. Hanif Qureshi’s  case and  subsequent decisions following Qureshi’s case.      But this time, the State of  Gujarat  has come up to seek  the review of earlier decisions.   Now I shall  examine the material which has been placed  by  the State of Gujarat to  justify the total prohibition of  slaughter of bulls and bullocks.

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Learned counsel  for the appellant has brought to our notice the  affidavit filed by the State  of Gujarat  which has been reproduced by the  Hon’ble Chief Justice on page 56 in his opinion onwards.    Therefore, I  need not reproduce the  whole of the affidavit.   Mr. J.S.Parikh, Deputy  Secretary, Agricultural Cooperative and Rural Development Department of  the State of Gujarat has in his affidavit stated that  almost in 50% of the  agricultural operation by tractor is not possible because of small holdings in  the State of Gujarat.   Therefore, for such small holdings the  draught  animals are best used for cultivation purposes.   It  was also stated  that the  total cultivated area of Gujarat  State  is about 124 lakh hectares and   a pair  of bullocks is required for ploughing 10 hectares of land. Therefore,  5.481million  and approximately equal number is required for carting of   whole land.   In accordance with livestock 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 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.

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 average number of   animals slaughtered  in regulated  slaughter houses  was 4,39,141.  It is also stated  that there  is a reduction in  slaughter   of  the bull and 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 10 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 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 1.10%  during last 8 years i.e. 1997-98 to 2004-05 which is very less significant to  cause or affect the business of butcher communities.  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 Gujarat  Agricultural University (Veterinary Colleges S.K. Nagar & Anand).   The  study covered different age groups of 156 (78 pairs) bullocks above the age  of 16 years age generated 0.68 horse power draught output per bullock while  the prime bullock generated 0.83 horse power per bullock during  carting/hauling draught work in a summer with about more than 42: F temp.   The study proves that 93% of aged bullock above 16 years of age are still  useful to farmers to perform light and medium draught works.  The  importance of organic manure as a source of humus and plant nutrients to  increase the fertility level of soils has been well recognized.  The organic  matter content of cultivated soils of the tropics and sub-tropics is  comparatively low due to high temperature and intense microbial activity.   The crops remove annually large quantity of plant nutrients from soil.   Moreover, Indian soils are poor in organic matter and 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.  

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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 cows for pesticides and ayurvedic  purposes. But all 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. Hanif Qureshi’s and Ors. vs State  of Bihar and Ors. (AIR 1958 SC 731)  The then Chief Justice has quoted  from various scriptures 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 the use of biogas and the usefulness of the draught animals has to be  taken with pinch of salt, in both the affidavits it has been admitted that urine  and 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 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 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 in fact the slaughtering of these bulls and bullocks  beyond the age of 16 years constituted only 1.10% of the total slaughtering  takes place in the State.  If this is the ratio of the slaughtering, I fail to  understand how this legislation can advance the cause of the public at the  expense of the denial of Fundamental Right of this class of persons  (butchers).  In view of facts disclosed in the affidavit filed by the two senior  officer of the State of Gujarat speaks volume that for small percentage of  1.10% can the fundamental right of this class of persons should be sacrificed  and earlier decisions be reversed. I fail to understand how it would advance  the cause of the public at large so as to deprive the handful of persons of  their rights to profession.    On the basis of this material, I am of the opinion  that the earlier decisions of this Court have not become irrelevant in the  present context.  The tall claim made by State looks 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 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  organic manure.  It was observed  in Mohd. Hanif’s 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 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-

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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 of L.P.G. 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.  

One of the other reasons which has been advanced for reversal of  earlier judgments was that at the time when these earlier judgments were  delivered Article 48(A) and 51(A) were not there and impact of both these  Articles were 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 amendment.  Though, these Articles were not in existence at  that time but the effect of those Articles were indirectly considered in the  Mohd. Hanif Qureshi’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 Mohd. Hanif Qureshi’s case their  Lordships have quoted from the scriptures to show that we should have a  proper consideration for our cattle wealth and in that context their Lordships  quoted in para 22 which reads as under:

"22. The avowed object of each of the impugned Acts is to  ensure the preservation, protection, and improvement of the  cow and her progeny.  This solicitude arises out of the  appreciation of the usefulness of cattle in a predominantly  agricultural society.  Early Aryans recognized its importance as  one of the most indispensable adjuncts of agriculture.  It would  appear that in Vedic times animal flesh formed the staple food  of the people.  This is attributable to the fact that the climate in  that distant past was extremely cold and the Vedic Aryans had  been a pastoral people before they settled down as  agriculturists.  In Rg. Vedic times goats, sheep, cows, buffaloes  and even horses were slaughtered for food and for religious  sacrifice and their flesh used to be offered to the Gods.  Agni is  called the "eater of ox or cow" in Rg.Veda (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 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 of  Dharamasastras (Vol.II, Part II) by P.V. Kane at pages 772-773.   Though the custom of slaughtering of cows and bulls prevailed  during the vedic period, 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 acquire a  special sanctity and was called "Aghnya" (not to be slain).   There was a school of thinkers amongst the Risis, who set their  face against the custom of killing such useful animals as the  cow and the bull.  High praise was bestowed on the cow as will  appear from the following verses from Rg.Veda, Book VI,  Hymn XXVIII (Cows) attributed to the authorship of Sage  Bhardavaja:

"1 . The kine have come and brought good fortune;  let them rest in the cow-pen and be happy near us.

Here let them stay prolific, many coloured, and  yield through many morns their milk for Indra.

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

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Prosper my house, ye with auspicious voices, your  power is glorified 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 still avoid you."

(Translation by Ralph Griffith).  Verse 29 of hymn 1 in Book X  of Atharva Veda forbids cow slaughter in the following words:

"29. The slaughter of an innocent, O 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.

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."

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 the cow in Rg.Vedic  times.  It would appear that the protest raised against the  slaughter of cows greatly increased in volume till the custom  was totally abolished in a later age.  The change of climate  perhaps also make the use of beef as food unnecessary and even  injurious to health.  Gradually cows became indicative of the  wealth of the owner.  The Neolithic Aryans not having been  acquainted with metals, there were no coins in current use in the  earlier stages of their civilization, but as they were eminently a  pastoral people almost every family possessed a sufficient  number of cattle and some of them exchanged them for the  necessaries of their life.  The value of cattle (Pasu) was,  therefore, very great with the early Rg.Vedic Aryans.  The  ancient Romans also used the word pecus or pecu (pasu) in the  sense of wealth or money.  The English words, "pecuniary" and  "impecunious", are derived from the Latin root pecus or pecu,  originally meaning cattle.  The possession of cattle in those  days denoted wealth and a man was considered rich or poor  according to the large or small number of cattle that he owned.   In the Ramayana king Janaka’s wealth 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 in general hold the cow in  great reverence and the idea of the slaughter 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

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cows has been further intensified.  While we agree that the  constitutional question before us cannot be decided on grounds  of 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  the usefulness and the sanctity with which the entire cow and its progeny has  been held in our country.  Though Article 48(A) and 51(A) were not there,  but their Lordships were indirectly conscious 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.   Reference was also made that for protection of top soil, the cow dung will 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/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  decisis.  The expression of ’stare decisis’ is a Latin phrase which means "to  stand by decided cases; to uphold precedents; to maintain former  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 opinion the justification so pleaded is not sufficient to change or  review the decision of the Constitution Bench by the present Bench of seven  Judges.

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

Craies on Statue Law, 7th Edition, it was observed that:  "The rule is also founded more logically on the axiom statre  decisis, which was the ground of the decision in Hanau vs  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.  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 of Malins Vs. C.  in 1870 on the ground that the construction placed by the Vice- Chancellor on certain sections of the Companies Act 1862 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 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

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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 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 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 and must not attempt to disturb the  exposition it has received \005.  If we find a uniform  interpretation of a statue upon a question materially 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 interpretation is the legal and proper one  and is one which will not be departed from."

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

Therefore one of the hallmarks of the law is 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  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  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,  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.

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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.  

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  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.  

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.