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

PETITIONER: State of Gujarat                                                 

RESPONDENT: Mirzapur Moti Kureshi Kassab Jamat & Ors.        

DATE OF JUDGMENT: 26/10/2005

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

JUDGMENT: J U D G M E N T WITH CIVIL APPEAL NOS. 4941-44 of 1998  Shree Ahimsa Army Manav Kalyan Jeev Daya Charitable Trust                              \005Appellant

Versus

Mirzapur Moti Kureshi Kassab Jamat, Ahmedabad & Ors.                         \005Respondents

and   CIVIL APPEAL NO. 4945 of 1998 Akhil Bharat Krishi Goseva Sangh                        \005Appellant Versus Mirzapur Moti Kureshi Kassab Jamat, Ahmedabad & Ors.                         \005Respondents

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

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

PART  - I

Backdrop of Events

Legislative history leading to impugned enactment

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

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

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

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

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

(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 by such authority or officer as the  State Government may appoint in this behalf."

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

       The Statement of Objects and Reasons stated inter alia \026

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

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

4.      Amendment of Section 5 of Bombay LXXII of  1954.- In section 5 of the principal Act, -

(1)     After sub-section (1), the following sub- section shall be inserted, namely :-

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

(2)     in sub-section (2), for the words "No  certificate" the words, brackets, figure and  letter "In respect of an animal to which  sub-section (1A) does not apply, no  certificate" shall be substituted;

(3)     in sub-section (3), for the words "religious  purposes" the words, "religious purposes,  if such animal is not a cow" shall be  substituted.

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

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

2. Amendment of section 5 of Bom. LXXII of  1954.__In the Bombay Animal Preservation Act,  1954, Bom. LXXII of 1954, (hereinafter referred to  as "the principal Act"), in section 5,__      

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

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"(1A) No certificate under sub-section (1) shall be  granted in respect of __         (a) a cow;         (b) the calf of a cow, whether male or female               and if male, whether castrated or not;         (c) a bull below the age of sixteen years;         (d) a bullock below the age of sixteen years";

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

       "(3) Nothing in this section shall apply to __  

        (a) the slaughter of any of the following     animals for such bonafide religious purposes,  as may be prescribed, namely:__          (i) any animal above the age of fifteen years         other than a cow, bull or bullock;

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

       (iii) a bullock above the age of fifteen years;

(b) the slaughter of any animal not being a  cow or a calf of a cow, on such religious days  as may be prescribed.

Provided that a certificate in writing for the  slaughter referred to in clause (a) or (b) has 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 of a cow, the slaughter of  progeny of a cow, that is to say bulls, bullocks  and calves is prohibited, like that of other  bovines only if they are useful or likely to  become useful for the purposes of draught,  agricultural operations, breeding, giving milk  or bearing off spring. In order to give effect to  the policy of the Government towards further  securing the directive principle laid down in  article 48 of the Constitution namely  prohibiting the slaughter of cows and calves  and other milch and draught cattle, it was  considered necessary to impose a total  prohibition against slaughter of the aforesaid  progeny of a cow below the age of eighteen  years as they  are useful for the aforesaid  purposes\005"

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

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

This was followed by the impugned legislation, the Bombay  Animal Preservation (Gujarat Amendment) Act, 1994.  The  Bombay Act of 1954 referred to as ’the principal Act’ was further  amended by Section 2 of the amending Act which reads as  under:

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

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

"(c) a bull;

(d) a bullock.";

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

(i)   in clause (a), sub-clauses (ii) and  (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 health of the nation by  giving them the life giving milk which is so  essential an item in a scientifically balanced  diet;

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

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

AND WHEREAS the dung of the animal is  cheaper than the artificial manures and  extremely useful for production of bio-gas;       AND WHEREAS it is established that the back- bone of Indian agriculture is, in a manner of

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

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

The Statement of Objects and Reasons and the facts set  out therein are of relevance and significance and hence are  reproduced hereunder: "The existing provisions of the Bombay  Animal Preservation Act, 1954 provides for  prohibition against the slaughter of cow, calf  of a cow, and the bulls and bullocks below the  age of sixteen years. It is an established fact  that the cow and her progeny sustain the  health of the nation by giving them the life  giving milk which is so essential an item in a  scientifically balanced diet.  

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

In order to give effect to the policy of  the State towards securing the principles laid  down in articles 47, 48 and clause (b) and (c)  of article 39 of the Constitution of India, it  was considered necessary also to impose total  prohibition against slaughter of progeny of  cow.  

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

The Challenge to the Constitutional Validity

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

       On 17.2.2005, a three-Judge Bench of this Court, before  which the appeals came up for hearing directed the matter to be  placed for hearing before a Constitution Bench in the following  terms of the order :  "Parties to these appeals agree that the issue  involved in these appeals requires  interpretation of the provisions of the  Constitution of India especially in regard to  the status of Directive Principles vis-‘-vis the  Fundamental Rights as well as the effect of  introduction of Articles 31C and 51A in the  Constitution.

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

       On 19.7.2005, the Constitution Bench which heard the  matter referred it to a Bench of seven Judges on an opinion that  certain prior decisions of this Court by Constitution Benches  might call for reconsideration.  This is how the matter came to  be heard by this Bench.

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

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

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

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

       The challenge to the constitutional validity of the three  legislations was founded on the following three grounds, as was  dealt with in the judgment :  (i) that the total ban offended the  religion of the Muslims as the sacrifice of a cow on a particular  day is enjoined or sanctioned by Islam; (ii) that such ban  offended the fundamental right guaranteed to the Kasais  (Butchers) under Article 19(1)(g) and was not a reasonable and  valid restriction on their right; and (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 Constitution to  which the writ petitioners responded that under Article 37 the  Directive Principles were not enforceable by any court of law  and, therefore, Article 48 had no relevance for the purpose of  determining the constitutional validity of the impugned  legislations which were alleged to be violative of the fundamental  rights of the writ petitioners.           Dealing with the challenge to the constitutional validity of  the legislations, their Lordships reiterated the well accepted  proposition based on several pronouncements of this Court that  there is always a presumption in favour of the constitutionality of  an enactment and that the burden lies upon him who attacks it  to show that there has been a clear violation of the constitutional  principles. The legislative wisdom as expressed in the impugned  enactment can be pressed into service to support the  presumption.  Chief Justice S.R. Das spoke for the Constitution  Bench and held :- (i) that a total ban on the slaughter of cows of  all ages and calves of cows and calves of she-buffaloes, male or  female, was quite reasonable and valid and is in consonance with  the Directive Principles laid down in Article 48; (ii) that a total  ban on the slaughter of she-buffaloes or breeding bulls or  working bullocks (cattle as well as buffaloes) as long as they are  capable of being used as milch or draught cattle was also  reasonable and valid;  and (iii) that a total ban on slaughter of

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

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

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

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

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cases before them, their Lordships held that it was quite clear  that the objects sought to be achieved by the impugned Acts  were the preservation, protection and improvement of  livestocks. Cows, bulls, bullocks and calves of cows are no doubt  the most important cattle for the agricultural economy of this  country. Female buffaloes yield a large quantity of milk and are,  therefore, well looked after and do not need as much protection  as cows yielding a small quantity of milk require. As draught  cattle, male buffaloes are not half as useful as bullocks. Sheep  and goat give very little milk compared to the cows and the  female buffaloes and have practically no utility as draught  animals. These different categories of animals being susceptible  of classification into separate groups on the basis of their  usefulness to society, the butchers who kill each category may  also be placed in distinct classes according to the effect produced  on society by the carrying on of their respective occupations (p.  653).  Their Lordships added :- "The attainment of these objectives may well  necessitate that the slaughterers of cattle  should be dealt with more stringently than the  slaughterers of, say, goats and sheep. The  impugned Acts, therefore, have adopted a  classification on sound and intelligible basis  and can quite clearly stand the test laid down  in the decisions of this Court. Whatever  objections there may be against the validity of  the impugned Acts the denial of equal  protection of the laws does not, prima facie,  appear to us to be one of them. In any case,  bearing in mind the presumption of  constitutionality attaching to all enactments  founded on the recognition by the court of the  fact that the legislature correctly appreciates  the needs of its own people there appears to  be no escape from the conclusion that the  petitioners have not discharged the onus that  was on them and the challenge under Article  14 cannot, therefore, prevail." (p. 653)

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

The third contention, that is, whether the "total  prohibition" could be sustained as a reasonable restriction on the  fundamental right of the butchers to slaughter animals of their  liking or in which they were trading, was dealt with in great  detail.  This is the aspect of the decision of the Constitution  Bench in Quareshi-I which, in the submission of the learned  senior counsel for the appellants, was not correctly decided and,  therefore, calls for reconsideration.  The question was dealt with  by their Lordships from very many angles. Whether the  restrictions permissible under clause (6) of Article 19 may  extend to "total prohibition" ___ was treated by their Lordships as  a vexed question and was left open without expressing any final  opinion as their Lordships chose to concentrate on the issue as  to whether the restriction was at all reasonable in the interests  of the general public, de hors the fact whether it could be held to  be partial or total.   

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

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

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

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

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

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

       In Haji Usmanbhai Hassanbhai Qureshi and Ors. v.

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

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

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

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

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

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

Issues in Present Set of Appeals Though there is no explicit concession given but it became  clear during the course of  prolonged hearing before us that the  decision of this case hinges much on the answer to the question  whether the view of this Court in Quareshi-I is to be upheld or  not.  While the submission of the learned senior counsel for the  appellants has been that, to the extent the Constitution Bench in  Quareshi-I holds the total ban on slaughter of cow progeny to  be unconstitutional, it does not lay down good law for various  reasons, the learned  senior counsel for the writ petitioners- respondents has submitted that Quareshi-I leads a chain of five  decisions of this Court which in view of the principle of stare  decisis, this Court should not upset.  The learned senior counsel  for the appellants find following faults with the view taken by  this Court in Quareshi-I, to the extent to which it goes against  the appellants:-   (1)  Quareshi-I holds Directive Principles of State Policy  to be unenforceable and subservient to the  Fundamental Rights and, therefore, refuses to assign  any weight to the Directive Principle contained in  Article 48 of the Constitution and refuses to hold that  its implementation can be a valid ground for proving  reasonability of the  restriction imposed on the  Fundamental Right guaranteed by Article 19(1)(g) of  the Constitution \026 a theory which stands discarded in  a series of subsequent decisions of this Court.

(2)   What has been noticed in Quareshi-I is Article 48  alone; Article 48A and Article 51A(g) were not  noticed as they were not available then,  as they  were introduced in the Constitution by Forty-second  Amendment with effect from 3.1.1977.

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

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

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

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

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ceased to be useful after a particular age, that  preservation of such ’useless cattle’ by establishment  of gosadan was not a practical and viable  proposition, that a large percentage of the animals,  not fit for slaughter,  are slaughtered surreptitiously  outside the municipal limits, that the quantum of  available fodder for cattle added with the  dislodgment of butchers from their traditional  profession renders the total prohibition on slaughter  not in public interest. The factual situation has  undergone a drastic change since then and hence  the factual foundation, on which the legal finding has  been constructed, ceases to exist depriving the later  of all its force.                  The learned senior counsel for the appellants further  submitted that Quareshi-I forms the foundation for subsequent  decisions and if the very basis of Quareshi-I crumbles, the  edifice of subsequent decisions which have followed Quareshi-I  would also collapse.  We will examine the validity of each of the  contentions so advanced and at the end also examine whether  the principle of stare decisis prevents us from reopening the  question answered in favour of writ petitioners in Quareshi-I.

PART \026 II

Question-1. Fundamental Rights and Directive Principles:-

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

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

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

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

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

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

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

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

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

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

(b) The restrictions must not be  arbitrary or of an excessive nature  so as to go beyond the  requirements of the interests of  the general public. The legislature  must take intelligent care and  deliberation in choosing the  course which is dictated by reason  and good conscience so as to  strike a just balance between the  freedom in the article and the  social control permitted by the  restrictions under the article.                         (Para 14)

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

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

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

       (f)  The needs of the prevailing  social values must be satisfied by  the restrictions meant to protect  social welfare.  (Para 22)

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

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problem before the legislature and  the object which is sought to be  achieved by the statute. In other  words, the Court must see  whether the social control  envisaged by Article 19 (1) is  being effectuated by the  restrictions imposed on the  fundamental right. However  important the right of a citizen or  an individual may be it has to  yield to the larger interests of the  country or the community.   (Para  24)

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

In State of  Kerala and Anr.  v. N.M. Thomas and Ors.,  (1976) 2 SCC 310, also a seven-Judge Bench of this Court culled  out and summarized the ratio of this Court in Kesavananda  Bharati.  Fazal Ali, J extracted and set out the relevant extract  from the opinion of several Judges in Kesavananda Bharati    and then opined: "In view of the principles adumbrated by  this Court it is clear that the directive principles  form the fundamental feature and the social  conscience of the Constitution and the  Constitution enjoins upon the State to  implement these directive principles.  The  directives thus provide the policy, the  guidelines and the end of socio-economic  freedom and Articles 14 and 16 are the means  to implement the policy to achieve the ends  sought to be promoted by the directive  principles.  So far as the courts are concerned  where there is no apparent inconsistency  between the directive principles contained in  Part IV and the fundamental rights mentioned  in Part III, which in fact supplement each  other, there is no difficulty in putting a  harmonious construction which advances the  object of the Constitution.  Once this basic fact  is kept in mind, the interpretation of Articles  14 and 16 and their scope and ambit become  as clear as day."

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

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deciding the constitutional validity of legislative enactments. A  restriction placed on any Fundamental Right, aimed at securing  Directive Principles will be held as reasonable and hence intra  vires subject to two limitations : first, that it does not run in clear  conflict with the fundamental right, and secondly, that it has  been enacted within the legislative competence of the enacting  legislature under Part XI Chapter I of the Constitution.

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

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

Directive Principles

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

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

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

       (1)     While considering the  reasonableness of the restrictions, the court  has to keep in mind the Directive Principles of  State Policy.

       xxx             xxx             xxx             xxx                  (3)     In order to judge the  reasonableness of the restrictions, no abstract  or general pattern or a fixed principle can be  laid down so as to be of universal application  and the same will vary from case to case as  also with regard to changing conditions, values  of human life, social philosophy of the  Constitution, prevailing conditions and the  surrounding circumstances.

       xxx             xxx             xxx             xxx                  (6)     There must be a direct and  proximate nexus or a reasonable connection  between the restrictions imposed and the  object sought to be achieved.  If there is a  direct nexus between the restrictions and the  object of the Act, then a strong presumption in  favour of the constitutionality of the Act will  naturally arise. (See: Kavalappara  Kottarathil Kochuni Vs. State of Madras  and Kerala, (1960) 3 SCR 887; O.K. Ghosh  Vs. E.X. Joseph, 1963 Supp. (1) SCR 789)"

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

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

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

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

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

48-A. Protection and improvement of  environment and safeguarding of forests  and wild life.\027The State shall endeavour to  protect and improve the environment and to  safeguard the forests and wild life of the  country.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The question is whether when Article 48 precludes  slaughter of cows and calves by description, the words ’milch  and draught cattle’ are described as a like species which should  not be slaughtered or whether such species are protected only  till they are ’milch or draught’ and the protection ceases  whenever, they cease to be ’milch or draught’, either temporarily  or permanently? According to their inherent genetic qualities, cattle breeds  are broadly divided into 3 categories (i) Milch breed (ii) Draught  breed, and (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  for draught purposes like pulling, traction of loads etc. The dual  purpose breeds have the  potential to perform both the above  functions.

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

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

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

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

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

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

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’useless’.  It will be an act of reprehensible ingratitude to  condemn a cattle in its old age as useless and send it to a  slaughter house taking away the  little  time from its natural life  that it would have lived, forgetting its service for the major part  of its life, for which it had remained milch or draught.  We have  to remember : the weak and meek need more of protection and  compassion.                          In our opinion, the expression ’milch or draught cattle’ as  employed in Article 48 of the Constitution is a description of a  classification or species of cattle as distinct from cattle which by  their nature are not milch or draught and the said words do not  include milch or draught cattle, which on account of age or  disability, cease to be functional for those purposes either  temporarily or permanently. The said words take colour from the  preceding words "cows or calves".  A specie of cattle which is  milch or draught for a number of years during its span of life is to  be included within the said expression.  On ceasing to be milch or  draught it cannot be pulled out from the category of "other milch  and draught cattle."

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

       Reference to the Statement of Objects and Reasons is  permissible for understanding the background, antecedent state  of affairs in relation to the statute, and the evil which the  statute was sought to remedy. (See __ Principles of Statutory  Interpretation by Justice G.P. Singh, 9th Edition, 2004, at  p.218).  In State of West Bengal v. Subodh Gopal Bose  and Ors., 1954 SCR 587, the Constitution Bench was testing  the constitutional validity of the legislation impugned therein.   The Statement  of Objects and Reasons was  used  by  S.R.  Das, J. for ascertaining the conditions prevalent at that time  which led to the introduction of the Bill  and the extent and  urgency of the evil which was sought to be remedied, in  addition to testing the reasonableness of the restrictions  imposed by the impugned provision. In his opinion, it was  indeed very unfortunate that the Statement of Objects and  Reasons was not placed before the High Court which would  have assisted the High Court  in arriving at the right conclusion  as to the reasonableness of the restriction imposed.     State of  West Bengal v. Union of India, (1964) 1 SCR 371, 431-32  approved the use of Statement of Objects and Reasons for the  purpose of understanding the background and the antecedent  state of affairs leading upto the legislation.

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

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

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

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

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

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

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

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

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

       In Madhya Bharat Cotton Association Ltd. (supra) a  large section of traders were completely prohibited from  carrying on their normal trade in forward contacts.  The  restriction was held to be reasonable as cotton, being a  commodity essential to the life of the community, and therefore  such a total prohibition was held to be permissible.  In  Himmatbhai Narbheram Rao and Ors. (supra) trade in hides  was completely prohibited and the owners of dead animals  were required to compulsorily deposit carcasses in an appointed  place without selling it. The constitutionality of such prohibition,  though depriving the owner of his property, was upheld.   The  court also held that while striking a balance between rights of  individuals and rights of citizenry as a whole the financial loss  caused to individuals becomes insignificant if it serves the  larger public interest. In Sushila Saw Mill (supra), the  impugned enactment imposed a total ban on saw mill business  or sawing operations within reserved or protected forests.  The  ban was held to be justified as it was in public interest to which  the individual interest must yield.  Similar view is taken in the  other cases referred to hereinabove.                  In Krishna Kumar (supra), the Constitution Bench held  that when the prohibition is only with respect to the exercise of  the right referable only in a particular area of activity or relating  to a particular matter, there was no total prohibition.  In that  case, the Constitution Bench was dealing with the case of  Adatiyas operating in a market area. A certain field of activity  was taken away from them, but they were yet allowed to  function as Adatiyas.   It was held that this amounts to a  restriction on the exercise of writ petitioners’ occupation as an  Adatiya or a seller of grain but does not amount to a total ban.

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

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

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

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

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

(i)     it is established that cow and her progeny sustain  the health of the nation; (ii)    the working bullocks are indispensable for our  agriculture for they supply power more than any  other animal (the activities for which the bullocks  are usefully employed are also set out); (iii)   the dung of the animal is cheaper than the  artificial manures and extremely useful of  production of biogas; (iv)    it is established that the backbone of Indian  agriculture is the cow and her progeny and they  have on their back the whole structure of the  Indian agriculture and its economic system; (v)     the economy of the State of Gujarat is still  predominantly agricultural. In the agricultural  sector use of animals for milch, draught, breeding  or agricultural purposes has great importance.   Preservation and protection of agricultural animals  like bulls and bullocks needs emphasis.  With the  growing adoption of non-conventional energy  sources like biogas plants, even waste material  have come to assume considerable value. After  the cattle cease to breed or are too old to  work,  they still continue to give dung for fuel, manure  and biogas and, therefore, they cannot be said to  be useless.  

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

Affidavits  

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

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husbandry services in the State, the  average longivity of animals has  considerably increased.  In the year  1960, there were only 456 veterinary  dispensaries and first aid veterinary  centers etc, whereas in the year 1993,  there are 946 veterinary dispensaries  and first aid veterinary centers etc.   There were no mobile veterinary  dispensaries in 1960 while there are 31  mobile veterinary dispensaries in the  State in 1993.  In addition, there are  around 467 centres for intensive cattle  development where besides first aid  veterinary treatment, other animal  husbandry inputs of breeding, food or  development etc. are also provided.  In  the year 1960, five lakh cattles were  vaccinated whereas in the year 1992-93  around 200 lakh animals are vaccinated  to provide life saving protection against  various fatal diseases.  There were no  cattle food compounding units preparing  cattle food in the year 1960, while in the  year 1993 there are ten cattle food  factory producing 1545 MT of cattle food  per day.  As a result of improved animal  husbandry services, highly contagious  and fatal disease of Rinder Pest is  controlled in the state and that the  deadly disease has not appeared in the  last three years.          (ii)    Because of various scientific technologies  namely, proper cattle feeding, better  medical and animal husbandry services,  the longevity of the cattle in the State  has considerably increased.

(iii)   The population of bullock is 27.59 lakhs.   Over and above agricultural work,  bullocks are useful for other purposes  also.  They produce dung which is the  best organic measure and is cheaper  than chemical manure.  It is also useful  for production of bio-gas.

(iv)    It is estimated that daily production of  manure by bullocks is about 27,300  tonnes and bio-gas production daily is  about 13.60 cubic metres.  It is also  estimated that the production of bio-gas  from bullock dung fulfil the daily  requirement of 54.78 lakh persons of the  State if whole dung production is utilized.   At present, 1,91,467 bio-gas plants are  in function in the State and about 3-4  lakhs persons are using bio-gas in the  State produced by these plants.

(v)     The population of farmers in the State is  31.45 lakhs.  Out of which 7.37 lakhs are  small farmers, 8 lakhs are marginal  farmers, 3.05 lakhs are agricultural  labourers and 13.03 lakhs are other

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farmers.  The total land of Gujarat State  is 196 lakh hectares and land under  cultivation is 104.5 lakh hectares.  There  are 47,800 tractors by which 19.12 lakh  hectares land is cultivated and the  remaining 85.38 lakh hectares land is  cultivated by using bullocks.  It may be  mentioned here that all the agricultural  operations are not done using tractors.   The bullocks are required for some of  agricultural operations along with  tractors.  There are about 7,28,300  bullock carts and there are about  18,35,000 ploughs run by bullocks in the  State.

(vi)    The figure of slaughter of animals done  in 38 recognised slaughter houses are as  under:

Year Bullock/Bull Buffalo Sheep Goat 1990-91 9,558 41,088 1,82,269 2,22,507 1991-92 9,751 41,882 2,11,245 2,20,518 1992-93 8,324 40,034 1,13,868 1,72,791

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

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

(i)     there are about 31.45 lakhs land holders in  Gujarat.  The detailed classifications of the  land holders are as under:-

Sl.  No.

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Details of land  holders No. of land  holders 1. 01 hectare 8.00 lakhs 2. 1-2 hectares 7.37 lakhs 3. 2 and above 16.08 lakhs

(ii)    almost 50 per cent of the land holdings are  less than 2 hectares; tractor keeping is not  affordable to small farmers.  For economic  maintenance of tractors, one should have  large holding of land.  Such land holders  are only around 10 per cent of the total  land holders.  Hence the farmers with  small land holdings require bullocks as  motive power for their agricultural  operations and transport;

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

(iv)    it is estimated that bull or bullock at every  stage of life supplies 3,500 kgs of dung  and 2,000 litres of urine and whereas this  quantity of dung can supply 5,000 cubic  feet of biogas, 80 M.T. of organic fertilizer,  the urine can supply 2,000 litres of  pesticides and the use of these products in  farming increases the yield very  substantially.  The value of above  contribution can be placed at Rs.20,000/-  per year to the owner;

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

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

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

(vii)   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 preserve and enrich  the fertility of the soil.  In paucity of dung  availability, the farmers have to depend  upon chemical fertilizers.  Investment in  chemical fertilizers imposes heavy burden  upon the economy.  If there is availability  of alternate source of organic manure from  animals, it is required to be promoted;

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

(ix)    India has 74% of rural population, and in  Gujarat out of 4.13 crores of human  population, there are 1.40 crores of  workers which comprises of 47,04,000  farmers and 32,31,000 workers are  workers related to livestock and forestry.   In Gujarat, there are 9.24 lakhs marginal  farmers and 9.15 lakhs of small farmers,

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

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

(xi)    number of bullocks have decreased in 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 bullocks would not  affect the business of butchers.  By  prohibiting slaughter of bullocks the  economy is likely to be benefited.            

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

In this Court Shri D.P. Amin, Joint Director of Animal  Husbandry, Gujarat State, has filed an affidavit. The salient facts  stated therein are set out hereunder:   (i)     The details of various categories of animals

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

(ii)    there is reduction in slaughter of bulls &  bullocks above the age of 16 years reported in  the regulated slaughter houses of Gujarat  State.  As reported in the years from 1982-83  to 1996-97, the slaughter of bulls & bullocks  above the age of 16 years was only 2.48% of  the total animals of different categories  slaughtered in the State.  This percentage has  gone down to the level of only 1.10% during  last 8 years i.e. 1997-98 to 2004-05 which is  very less significant to cause or affect the  business of butcher communities;

(iii)   India is predominantly agrarian society with  nearly >th of her population living in seven lakh  rural hamlets and villages, possesses small  fragmentary holding (54.6% below 1 hectare  18% with 1-2 hectares).  Draft/pack animal  contributes more than 5 crores horse power  (H.P.) or 33,000 megawatt electric power and  shares for/in 68% of agricultural operations,  transport & other draft operations.  In addition  to draft power, 100 million tonnes dung per  year improves the soil health and also used as  raw material for biogas plant;

(iv)    the cattle population in Gujarat in relation to  human population has declined from 315 per  1000 humans in 1961 to 146 per 1,000  humans in 2001 indicating decline in real  terms;

(v)     in Gujarat 3.28 million draft animal (bullocks  85%) have multifaceted utilities viz.   agricultural operations like ploughing, sowing,  hoeing, planking, carting, hauling, water lifting,  grinding, etc.;

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

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

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

(viii)  the value of dung is much more than even the  famous "Kohinoor" diamond.  An old bullock  gives 5 tonnes of dung and 343 pounds of  urine in a year which can help in the  manufacture of 20 carts load of composed  manure.  This would be sufficient for manure  need of 4 acres of land for crop production.   The right to life is a fundamental right and it  can be basically protected only with proper  food and feeding and cheap and nutritious food  grains required for feeding can be grown with  the help of dung.  Thus the most fundamental  thing to the fundamental right of living for the  human being is bovine dung. (Ref. Report of  National Commission on Cattle, Vol.III, Page  1063-1064);

(ix)    the dung cake as well as meat of bullock are  both commercial commodities.  If one bullock  is slaughtered for its meat (Slaughtering

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

(x)     Even utility of urine has a great role in the field  of pharmaceuticals as well as in the  manufacturing of pesticides. The Goseva Ayog,  Govt. of Gujarat had commissioned study for  "Testing insecticides properties of cow urine  against various insect pests".  The study was  carried out by Dr. G.M. Patel, Principal  Investigator, Department of Entomology, C.P.  College of Agriculture, S.D. Agricultural  University, Sardar Krishi Nagar, Gujarat.  The  study has established that insecticides  formulations prepared using cow urine  emerged as the most reliable treatment for  their effectiveness against sucking pest of  cotton.  The conclusion of study is dung &  urine of even aged bullocks are also useful and  have proved major effect of role in the Indian  economy;

(xi)    it is stated that availability of fodder is not a  problem in the State or anywhere.  During  drought period deficit is compensated by  grass-bank, silo and purchase of fodder from  other States as last resources.  The sugarcane  tops, leaves of banana, baggase, wheat bhoosa  and industrial byproducts etc. are available in  plenty.  A copy of the letter dated 8.3.2004  indicting sufficient fodder for the year 2004,  addressed to Deputy Commissioner, Animal  Husbandry Government of India is annexed.

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

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

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

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

2.      Age, body measurement and body weight

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

3.      Horsepower generation/Work output

The aged bullocks on an average generated 0.68  hp/bullock, i.e.18.1% less than the prime/young bullocks (0.83  hp/bullock).  The aged bullocks walked comfortably with an  average stride length of 1.43 meter and at the average speed of  4.49 km/hr. showing little less than young bullocks.  However,  these values were normal for the aged bullocks performing  light/medium work of carting. These values were slightly lower  than those observed in case of prime or young bullocks.  This  clearly indicates that the aged bullocks above 16 years of age  proved their work efficiency for both light as well as medium  work in spite of the age bar.  In addition to this, the experiment  was conducted during the months of May-June, 2000 \026 a  stressful summer season. Therefore, these bullocks could  definitely generate more work output during winter, being a  comfortable season.  The aged bullock above 16 years of age  performed satisfactorily and disproved that they are unfit for any  type of draft output i.e. either agricultural operations, carting or  other works.  

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

5.   Distress symptoms

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

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

The study report submitted its conclusions as under:

"1.     The aged bullocks above 16 years of age generated  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 continuous 4 hours during morning session  and total 6 hours per day (morning 3 hours and  afternoon 3 hours) for medium work.

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

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

5.      The aged bullocks were utilized by the farmers to  perform agricultural operations (ploughing, sowing,  harrowing, planking, threshing), transport-hauling of  agricultural product, feeds and fodders, construction  materials and drinking water.          Finally, it proves that majority (93%) of the aged bullocks  above 16 years of age are still useful to farmers to perform light  and medium draft works."          

       With the report, the study group annexed  album/photographs and cassettes prepared while carrying out the  study. Several tables and statements setting out relevant  statistics formed part of the report.  A list of 16 authentic  references originating from eminent authors on the subject under  study which were referred to by the study group was appended to  the report.          This application (I.A. No. 2/2001) was allowed and the  affidavit taken on record vide order dated 20.8.2001 passed by  this Court. No response has been filed by any of the respondents  controverting the facts stated in the affidavit and the  accompanying report. We have no reason to doubt the  correctness of the facts stated therein; more so, when it is  supported by the affidavit of a responsible officer of the State  Government.

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

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

"3.6.12 Relevance of draught breeds  and options for improvement

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

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

3.6.13  Development of Draught  Breeds         Focused attention to draft breed will not  be possible unless a new scheme is formulated  for this purpose.

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

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

3.6.14.2        A number of organizations like  NABARD, NDDB, NCDC etc. are also likely to

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

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

Yet another document to which we are inclined to make a  reference is Mid-Term Appraisal of 10th Five Year Plan (2002- 2007) released in June, 2005 by the Government of India  (Planning Commission).  Vide para 5.80 the report recommends  that efforts should be made to increase the growth of  bio- pesticides production from 2.5 to 5 per cent over the next five  years.  

According to the report, Organic farming is a way of farming  which excludes the use of chemical fertilizers, insecticides, etc.  and is primarily based on the principles of use of natural organic  inputs and biological plant protection measures.         Properly managed organic farming reduces or eliminates  water pollution and helps conserve water and soil on the farm  and thereby enhances sustainability and agro-biodiversity.                   Organic farming has become popular in many western  countries.  There are two major driving forces behind this  phenomenon; growing global market for organic agricultural  produce due to increased health consciousness; and the  premium price of organic produce fetched by the producers.          India has a comparative advantage over many other  countries.

The Appraisal Report acknowledged the commencement of  the biogas programme in India since 1981-82.  Some 35,24,000  household plants have been installed against an assessed  potential of 120,00,000 units.            Biogas has traditionally been produced in India from cow  dung (gobar gas). However, dung is not adequately and  equitably available in villages.  Technologies have now been  developed for using tree-based organic substrates such as leaf  litter, seed starch, seed cakes, vegetable wastes, kitchen wastes  etc. for production of biogas.  Besides cooking, biogas can also  be used to produce electricity in dual fired diesel engines or in  hundred per cent gas engines.   Ministry of Non-conventional  Energy Sources (MNES) is taking initiatives to integrate biogas  programme in its Village Energy Security Program (VESP).

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

National Commission on Cattle

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

The Commission was given the follow terms of reference:-

a.      To review the relevant laws of the land(Centre  as well as States) which relate to protection,  preservation, development and well being of  cow and its progeny and suggest measures for  their effective implementation,

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

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

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

The Committee after extensive research has given a list of  recommendations. A few of them relevant in the present case  are:- " 1.The Prohibition for slaughter of cow and  its progeny, which would include bull,  bullocks, etc., should be included in  Fundamental Rights or as a Constitutional  Mandate anywhere else, as an Article of  Constitution. It should not be kept only in the  Directive Principles or/Fundamental duties as  neither of these are enforceable by the  courts.

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

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

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

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

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

Importance of Bovine Dung

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

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

The Report of the National Commission on Cattle has  analyzed the economic viability of cows after they stopped  yielding milk and it also came to the conclusion that it shall not  be correct to call such cows ’useless cattle’ as they still continue  to have a great deal of utility. Similar is the case with other cattle  as well.   "37. Economic aspects:

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

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

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

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

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

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

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

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

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

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

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

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

Part - III

Stare Decisis  

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

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

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

The trend of judicial opinion, in our view, is that stare  decisis is not a dogmatic rule allergic to logic and reason; it is a  flexible principle of law operating in the province of precedents  providing room to collaborate with the demands of changing  times dictated by social needs, State policy and judicial  conscience.  

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

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

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

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761and 762)  

Stare decisis is not an inexorable command of the  Constitution or jurisprudence. A careful study of our legal system  will discern that any deviation from the straight path of stare  decisis in our past history has occurred for articulable reasons,  and only when the Supreme Court has felt obliged to bring its  opinions in line with new ascertained fact, circumstances and  experiences. (Precedent in Indian Law, A. Laxminath, Second  Edition 2005, p. 8).   

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

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

Sir John Salmond, while dealing with precedents and  illustrating instances of departure by the House of Lords from its  own previous decisions, states it to be desirable as ’it would  permit the House (of Lords) to abrogate previous decisions which  were arrived at in different social conditions and which are no  longer adequate in present circumstances. (See \026 Salmond, ibid,  at p.165).  This view has been succinctly advocated by Dr.  Goodhart who said: "There is an obvious antithesis between  rigidity and growth, and if all the emphasis is placed on  absolutely binding cases then the law looses the capacity to  adapt itself to the changing spirit of the times which has been  described as the life of the law". (ibid, p.161)  This very principle  has been well stated by William O’ Douglas in the context of  constitutional jurisprudence.  He says: "So far as constitutional  law is concerned, stare decisis must give way before the  dynamic component of history.  Once it does, the cycle starts  again". (See \026 Essays on Jurisprudence from the Columbia Law  Review, 1964, at p.20)

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

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

Part - IV

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

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

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

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

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

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

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

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       These findings were recorded in the judgment delivered on  23rd April, 1958.  Independent India, having got rid of the  shackles of foreign rule, was not even 11 years old then.  Since  then, the Indian economy has made much headway and gained  a foothold internationally.  Constitutional jurisprudence has  indeed changed from what it was in 1958, as pointed out earlier.  Our socio-economic scenario has progressed from being gloomy  to a shining one, full of hopes and expectations and  determinations for present and future.  Our economy is steadily  moving towards prosperity in a planned way through five year  plans, nine of which have been accomplished and tenth is under  way. We deal with the findings in Quareshi-I seriatim.  Finding 1  :     We do not dispute that the country is in short supply of  milch cattle, breeding bulls and working bullocks and that they  are essential to maintain the health and nourishment of the  nation as held in Quareshi-I.  Rather we rely on the said finding  which stands reinforced by the several documents which we  have referred to hereinbefore.                    In the Quareshi-I era, there was a shortage of fodder in  the country.  Various plans were drawn up in the direction of  exploring potential fodder areas for the future.  Although, the  planning was there; implementation was lacking.  The Report of  National Commission on Cattle, July 2002 (Vol. II) reveals that  the existing fodder resources of the country can sustain and  meet 51.92% of the total requirements to sustain its livestock  population.  But we have to take into consideration the fodder  potential of the country.  We have vast culturable waste land  which with some efforts can be developed into good pasture  land.  Major part of the fallow land can be put under the plough  for having fodder crops such as Jowar, Bajra and smaller millets.   The combined area of several categories of land which can be  developed as potential fodder area is 58.87 million hectares.  If  managed properly, there are areas in the country which can be  developed into a "Grass Reservoir of India for use as pasture  land". One very big potential area lies  in Jaisaelmer District of  Rajasthan (spread over 22,16,527 hectares).  The Commission  has recommended 23 steps to be taken by the State  Government and the Central Government for development and  conservation of food and fodder  (See paras 37-41 of the report  at pages 130-135).

       So far as the State of Gujarat is concerned, we have  already noticed, while dealing with the documentary evidence  available on record, that fodder shortage is not a problem so far  as this state is concerned and cow progeny, the slaughtering  whereof has already shown a downward trend during the recent  years, can very well be fed and maintained without causing any  wasteful drain on the feed requisite for active milch, breeding  and draught cattle. Finding 2 :      The finding suffers from two infirmities.  First, Quareshi-I  has not felt the necessity of finding whether a ’total prohibition’  is also included within  ’restriction’ as employed in Article 19(6).   It is now well-settled that ’restriction’ includes ’prohibition’.   Second and the real fallacy in Quareshi-I is that the ban limited  to slaughtering of cow progeny has been held at one place to be  a ’total prohibition’, while in our opinion, is not so.  At another  place, the effect of ban has been described as causing ’a serious  dislocation, though not a complete stoppage of the business of a  considerable section of the people’.  If that is so, it is not a ’total  prohibition’.  The documentary evidence available on record

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shows that beef contributes only 1.3% of the total meat  consumption pattern of the Indian society.  Butchers are not  prohibited from slaughtering animals other than the cattle  belonging to cow progeny.  Consequently, only a part of their  activity has been prohibited.  They can continue with their  activity of slaughtering other animals.  Even if it results in slight  inconvenience, it is liable to be ignored if the prohibition is found  to be in the interest of economy and social needs of the country. Finding 3 :      In the first and second Five Year Plans (Quareshi-I era),  there was scarcity of food which reflected India’s panic.  The  concept of food security has since then undergone considerable  change.

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

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

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

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from nutritional perspective is still controversial, we can make  certain policy options to overcome the nutritional deficiencies.   The most important problem to be attended is to increase the  energy intake of the bottom 30 per cent of the expenditure  class.  The deficiency of energy intake of the bottom 30 per cent  can be rectified by increasing agricultural productivity in rain fed  areas, making available food at an affordable price through the  Public distribution system (PDS), and other poverty alleviation  programmes.  The micro-nutrient deficiency can be cost- effectively rectified by supplementary nutritional programmes to  the children and the expectant and lactating mothers."            The main source of staple food which is consumed both by  vegetarians and non-vegetarians is supplied by vegetables.   Synthetic staple food has also been made available by scientific  researches.  It will, therefore, not be correct to say that poor will  suffer in availing staple food and nutritional diet only because  slaughter of cow progeny was prohibited. Finding 4 :      Quareshi-I itself reveals a very general opinion formed by  the Court as to the failure of gosadans and their inability to  preserve cattle.  The statistics made available before us are a  positive indicator to the contrary that gosadans and goshalas are  being maintained and encouraged so as to take up both useful  and so-called useless cattle, if the owner is not willing to  continue to maintain them.  Quareshi-I relied on a Report of an  Expert Committee, which has certainly become an outdated  document by the lapse of 47 years since then.  Moreover,  independent of all the evidence, we have in this judgment  already noticed that cattle belonging to the category of cow  progeny would not be rendered without shelter and feed by the  owner to whom it had served throughout its life. We find support  from the affidavits and reports filed on behalf of the State of  Gujarat which state inter alia "farmers love their cattle".         National Commission on Cattle in its Report (ibid) has  incorporated as many as 17 recommendations for strengthening  of goshalas (para 20 at pages 120-122)          We have already noticed in the affidavits filed on behalf of  the State of Gujarat that, in the State of Gujarat adequate  provisions have been made for the maintenance of gosadans and  goshalas.  Adequate fodder is available for the entire cattle  population. The interest exhibited by the NGOs seeking  intervention in the High Court and filing appeals in this Court  also indicates  that the NGOs will be willing to take up the task of  caring for aged bulls and bullocks.      Finding 5         In Quareshi-I, vide para 42, the Constitution Bench chose  to draw a distinction between breeding bulls and working  bullocks, on the one hand and cows and calves, on the other  hand, by holding that the farmers would not easily part with the  breeding bulls and working bullocks to the butchers as they are  useful to the farmers.  It would suffice to observe that the  protection is needed by the bulls and bullocks at a point of time  when their utility has been reduced or has become nil as they  near the end of their life.  That is what Article 48, in fact,  protects, as interpreted in this judgment.

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

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

       According to Shri M.S. Swaminathan, the eminent Farm  Scientist, neglect of the farm sector would hit our economy hard.   According to him "Today, global agriculture is witnessing two  opposite trends.  In many South Asian countries, farm size is  becoming smaller and smaller and farmers suffer serious  handicaps with reference to the cost-risk-return structure of  agriculture.  In contrast, the average farm size in most  industrialized countries is over several hundred hectares and  farmers are supported by heavy inputs of technology, capital and  subsidy.  The on-going Doha round of negotiations of the World  Trade Organisation in the field of agriculture reflects the  polarization that has taken place in the basic agrarian structure  of industrialized and developing countries.  Farming as a way of  life is disappearing and is giving way to agribusiness." (K.R.  Narayanan Oration delivered by Dr. Swaminathan at the  Australian National University, Canberra, published in ’The  Hindu’, October 17, 2005, p.10)         "In India, nearly 600 million individuals are engaged in  farming and over 80 per cent of them belong to the small and  marginal farmer categories.  Due to imperfect adaptation to local  environments, insufficient provision of nutrients and water, and  incomplete control of pests, diseases and weeds, the present  average yields of major farming systems in India is just 40 per  cent of what can be achieved even with the technologies  currently on the shelf.  There is considerable scope for further  investment in land improvement through drainage, terracing,  and control of acidification, in areas where these have not  already been introduced." (ibid)         Thus, the eminent scientist is very clear that excepting the  advanced countries which have resorted to large scale  mechanized farming, most of the countries (India included) have

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average farms of small size.  Majority of the population is  engaged in farming within which a substantial proportion belong  to small and marginal farmers category.  Protection of cow  progeny will help them in carrying out their several agricultural  operations and related activities smoothly and conveniently.   Organic manure would help in controlling pests and acidification  of land apart from resuscitating and stimulating the environment  as a whole.         Having subjected the restrictions imposed by the  impugned Gujarat enactment to the test laid down in the case of  N.M. Thomas (supra) we are unhesitatingly of the opinion that  there is no apparent inconsistency between the Directive  Principles which  persuaded the State to pass the law and the  Fundamental Rights canvassed before the High Court by the writ  petitioners.          Before we part, let it be placed on record that Dr. L.M.  Singhvi, the learned senior counsel for one of the appellants,  initially tried to build an argument by placing reliance on Article  31C of the Constitution.  But at the end he did not press this  submission.  Similarly, on behalf of the respondents, the  Judgment of the High Court has been supported only by placing  reliance on Article 19(6) of the Constitution. The legislative  competence of the State Legislature to enact the law was not  disputed either in the High Court or before us.  Result

For the foregoing reasons, we cannot accept the view  taken by the High Court.   All the appeals are allowed.  The  impugned judgment of the High Court is set aside.  The Bombay  Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat  Act No. 4 of 1994) is held to be intra vires the Constitution.  All  the writ petitions filed in the High Court are directed to be  dismissed.