)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD Special Civil Application No 9991 of 1993 with Special Civil Application No 11204 of 1993 with Special Civil Application No.11309 of 1993 with Special Civil Application No.11379 of 1993 ... For Approval and Signature: Hon'ble THE CHIEF JUSTICE MR. K.SREEDHARAN and MR.JUSTICE A.R.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- MIRZAPUR MOTI KURESHI KASSAB Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9991 of 1993 MR ARUN H MEHTA, Advocate, for Petitioner Mr.S.N. Shelat, Additional Advocate General, with Ms. Amee Yajnik, A.G.P., for respondent No.1. Mr. A.V. Trivedi, Advocate, for Mr.A.C. Gandhi, Advocate, for respondent No.2. MR DS SHAH, Advocate, for Respondent No. 3 MR.KM Mehta with Mr.SC Shah, for respondend no.4. 2. Special Civil Application No 11204 of 1993 MR MB FAROOQUI, Advocate, for Petitioner Mr.S.N. Shelat, Additional Advocate General, with Ms. Amee Yajnik, A.G.P., for the respondent. 3. Special Civil Application No.11309 of 1993 Mr.M.B. Farooqui, Advocate, for the Petitioner. Mr.S.N. Shelat, Additional Advocate General, with Ms. Amee Yajnik, A.G.P., for the respondent. 4. Special Civil Application No.11379 of 1993 Mr.M.B.Farooqui, Advocate, for the Petitioner. Mr.S.N. Shelat, Additional Advocate General, with Ms. Amee Yajnik, A.G.P., for the respondent. -------------------------------------------------------------- CORAM : THE CHIEF JUSTICE MR. K.SREEDHARAN and MR.JUSTICE A.R.DAVE Date of decision: April 16, 1998 C.A.V. JUDGEMENT: (Per K. Sreedharan, C.J.) 1. Constitutional validity of Act 4 of 1994, by which Bombay Animal Preservation Act, 1954, adopted by the Gujarat State, was amended, is the issue raised in these petitions. So, we consider it advantageous to dispose of all these petitions by a common judgment. Counsel appearing on either side submitted that Special Civil Application No.9991 of 1993 be treated as the main case. We are, therefore, referring to the parties and documents as they are arrayed and marked in Special Civil Application No.9991 of 1993. 2. Bombay Animal Preservation Act, 1954 was adopted and modified by the Gujarat Adaptation of Laws (State and Concurrent Subjects) Order, 1960. It was amended by Gujarat Act 16 of 1961 and then by Act 23 of 1979. The State Government issued Ordinance 4 of 1993 to amend the Act. By that amendment, slaughter of bulls and bullocks was totally banned in the State of Gujarat. Provisions contained in that Ordinance were challenged in these Special Civil Applications. Pending these petitions, State Legislature passed Act 4 of 1994 for replacing the Ordinance. The Amending Act has been assented to by the President of India on 15th March, 1994. Thereupon, it was brought into force by Notification in the Gazette dated 15th March, 1994. 3. Special Civil Application No.9991 of 1993 is filed by three petitioners. First petitioner is a Trust of persons, which is carrying on the business of selling and buying bulls / bullocks and other animals for slaughtering them and for selling their meat, as permitted by law. Some of its members carry on business of selling and trading hides, bones, guts, etc., of slaughtered animals. Second petitioner is the President of the Trust and third petitioner, Joint Secretary. Petitioners 2 and 3 are carrying on business of buying and selling bulls and bullocks, and slaughtering them for selling the meat. They are licensees for carrying on that business in accordance with law. As a result of promulgation of Gujarat Ordinance 4 of 1993, and in view of Act 4 of 1994, by which the Ordinance was replaced, their business in slaughter of bulls and bullocks has been completely banned. So, it is contended that the provisions of the Act are interfering with petitioners' fundamental right to carry on business. In other words, the contention is that the Act is violative of provisions contained in Articles 14 and 19(1)(g) of the Constitution of India. On this basis, they pray for declaring provisions of Gujarat Act 4 of 1994 as illegal, ultra vires the Constitution and unconstitutional as violative of the fundamental rights of the petitioners guaranteed under Articles 19(1)(g) and 21 of the Constitution of India. 4. On behalf of the State, Deputy Secretary, Agriculture, Cooperation and Rural Development Department filed a detailed affidavit-in-reply, dated 20.10.1993. The statements made therein are to the following effect. Ordinance 4 of 1993 was issued to amend Bombay Animal Preservation Act, 1954. It provides for total prohibition against slaughtering of cows, calves of cows, whether male or female, bulls and bullocks irrespective of their age. Improved scientific animal husbandry services in the State considerably increased average longevity of animals. As against 456 Veterinary Dispensaries and First Aid Veterinary Centres in 1960, there are 946 Veterinary Dispensaries and First Aid Centres in 1993. 31 Mobile Veterinary Dispensaries are working in 1993 as against none in 1960. 467 Intensive Cattle Development Centres have been set up. In 1960, 5,00,000 cattle were vaccinated while in 1992-'93, nearly 2,00,00,000 were vaccinated to protect them from fatal diseases. 10 Cattle Feed Factories produce 1545 metric tonnes of cattle feed per day. As a result of improved animal husbandry services, contagious diseases have been brought under control. The death of such animals in 1992-'93 was brought down to 636 as against 6689 during 1960-'61. Population of bullock is 27.39 lakhs. Over and above agricultural work, to which they are deployed, they are useful in other respects as well. Dung produced by them is the best organic manure, cheaper than chemical manure. It can be used for production of bio-gas. Annual production of manure by bullocks is about 27300 tonnes and bio-gas production is about 13.60 lakhs cubic metres per day. If the whole dung production is utilised, it will meet the daily requirement of 54.78 lakhs persons. As on today, 1,91,467 bio-gas plants are in operation in the State and 3 to 4 lakhs people are utilising the bio-gas. Nearly 85.38 lakhs hectares of land are cultivated by using bullocks. The State has about 728300 bullock carts. About 18,83,000 ploughs are run by bullocks. Cattle dung is used as fuel. Statistics show that number of bullocks above the age of 16 years, which are slaughtered, is very small. Animals other than bullocks are slaughtered in large number. Hence, the ban on the slaughter of cow and its progeny will not affect the business of meat production to any significant extent. Sources of conventional energy have depleted. So, sources of non-conventional energy will have to be utilised. Bio-gas is one such source of non-conventional energy. Cattle dung is its main source. On this basis, it is contended that bulls and bullocks are to be preserved during their whole life span. 5. Ordinance was promulgated, it is contended, in the interest of general public. It seeks to impose only reasonable restrictions on the fundamental rights of the petitioners. Provisions in the Ordinance are meant to give effect to the provisions contained in Article 39(b) and (c), Articles 47 and 48 of the Constitution of India. Meat obtained by slaughter of bulls and bullocks is a very limited source of protein and other by-products. Protein and other by-products are available in plenty from other sources, viz., meat of other animals. Since the number of bulls and bullocks slaughtered is very few, the provision contained in the Ordinance, subsequently changed by the Act, will not adversely affect the negligible number of people, who are engaged in slaughtering of animals. 6. Another affidavit dated 17.3.1998 was sworn to by a Deputy Secretary in the Agriculture, Cooperation and Rural Development Department. It is averred therein that the impugned Act, Act 4 of 1994, was enacted in order to give effect to the policy contained in the Directive Principles, viz., those in Articles 47, 48 and clauses (b) and (c) of Article 39 of the Constitution. The object is to protect, preserve and sustain cow and its progeny. Entire cow family is necessary to support agricultural operation, for, they provide cost free and rich manure. The recent scenario of ultra modern technology of super ovulation, embryo transfer and cloning techniques will be of very much use to propagate further from the incapable or even old animals, which are not capable of working or reproducing. These animals can be used for research programmes as well as for production of non-conventional energy sources, such as bio-gas and natural fertilisers. During 1996-'97, there were 19362 Bio-gas Plants. On an average, each adult cattle produces 4 K.Gs. of dung. As per the 1992 census, the total cattle strength is 67,85,865. They are supposed to produce 99,07,363/- tonnes of dung. 32,31,000 workers are related to livestock and forestry. 8.48 lakh hectares of land are available in Gujarat as permanent pasture and grazing land. No individual cattle owner considers one or two bullocks as an extra burden on him. Unproductive animals are being sent to Panjarapoles and `Gosadans'. There are 335 `Gaushalas' and 174 Panjarapoles, which are run by Non-Governmental Organisations and Trusts. Beef (meat of cattle) contributes to 1.3% of total meat products. Demand for beef is less in contrast to the demand for pig, mutton and poultry meat. Number of bulls and bullocks slaughtered per year between 1990-'91 and 1993-'94 was about 9000. It is also contended that the Amending Act is protected under Article 31C of the Constitution as it has got the Assent of the President. It is, therefore, outside the challenge of being violative of the provisions contained in Articles 14 and 19 of the Constitution. 7. Private Parties, who oppose killing of cow and its progeny, including bulls and bullocks, have been made parties to these proceedings. They oppose the challenge made by the petitioners based on Articles 14 and 19(1)(g) of the Constitution. They have filed detailed affidavits, opposing the claims made by the petitioners. Since contentions raised by them are virtually identical to those raised by the Government, we do not think it is necessary to burden this judgment by summarising their contentions. 8. On the formation of the State of Gujarat, the Bombay Animal Preservation Act, 1954 was extended to be operative throughout the State by Gujarat Act 16 of 1961. To begin with, that Act applied to animals specified in the Schedule, viz., Bovines, (bulls, bullocks, cows, calves, male and female buffaloes and calves). Clause (2) of Section 2 of the 1954 Act authorised Government to extend the provisions of the Act to any other animal, which it thought desirable to preserve, by Notification in the Official Gazette. It is not stated that the Government exercised power under this provision to include any other category of animal within the purview of the Act. Section 5 of the Act imposed ban on slaughter of any animal unless a certificate is obtained from competent authority to the effect that the animal is fit for slaughter. Clause (1A) of that Section provided that no certificate shall be granted in respect of a cow, calves of a cow, whether male or female, and if male, whether castrated or not, a bull below the age of 16 years or a bullock below the age of 16 years. Sub-section (2) of Section 5 further provided that the Competent Authority shall not grant any certificate if :- (a) the animal, whether male or female, or 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; or (c) the animal, if female, is .. i likely to become useful for the purpose of giving milk or bearing offspring. By Act 23 of 1979, sub-section (3) was added to Section 5. It reads :- "... Nothing in this section shall apply to- (a) the slaughter of any of the following animals for such bona fide 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 of 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...." 9. The amendment brought out by Gujarat Act 23 of 1979, imposing a ban on the slaughter of bulls and bullocks below the age of 16, was challenged on the ground of violative of the provisions contained in Articles 14 and 19(1)(g) of the Constitution. The matter was disposed of b... Court in the decision in Haji Usmanbhai Hasanbhai Qureshi and others v. The State of Gujarat, AIR 1986 SC 1213. The provision was upheld by the Apex Court, holding :- "... The material before the Court thus clearly goes to show that with the help of the scientific advances which have taken place since 1962, the longevity of the cattle and their useful span of life has increased and, therefore, the prescribed age of sixteen years can be said to be a reasonable restriction on the right of the appellants to carry on their trade and profession as mentioned in Article 19(1)(g) of the Constitution...." In coming to this conclusion, Their Lordships examined the sustainability of the provision contained in the Act in the light of the Directive Principles of Article 48 of the Constitution. According to Their Lordships, the balance between the requirement contemplated by Article 14 and the requirement of a large section of people and traders and dealers has to be struck by the Court. 10. By the impugned Act, Gujarat Act 4 of 1994, a total ban on the slaughter of bulls and bullocks, irrespective of its age, has been imposed. This, according to the petitioners, interferes with their fundamental rights guaranteed under Article 19(1)(g) of the Constitution. Complete ban on slaughter of bulls and bullocks has been termed as an `unreasonable restriction' on the fundamental right of the petitioners. It is also contended that such a restriction is not in the interest of general public. This contention is met by the learned Additional Advocate General, Gujarat, by urging that the Amendment Act gets the protection of Article 31C of the Constitution. It has been enacted to give effect to the provisions contained in the Directive Principles. The Objects and Reasons of the enactment specifically places it under the protective umbrella of Article 31C of the Constitution. It is also his case that the various scientific factors highlighted in the reply submitted by the Government show that the longevity of cattle in the State of Gujarat has increased and it is useful to the farmers and the public at large for longer period than 16 years mentioned earlier. So, the enactment is comi... of the Constitution. The Amending Act, according to the learned Additional Advocate General, is one aimed to secure the ownership and control of material resources of the community so that it is distributed in the best manner to subserve the common good. 11. The Objects and Reasons for enacting the impugned Act, Gujarat Act 4 of 1994, are :- "... 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... 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...." 12. In the Preamble to the Amending Act, following statements were also made :- ......T.........T.........T.........T.........T.........T.........T...... "... 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 backbone of Indian agricultural is, in a manner of speaking, the cow and her progeny and have, on their back, the whole structure of the Indian agriculture and its economic system; AND WHEREAS it is expedient to give effect to the policy of the State towards securing the principles laid down in articles 47, 48 and in clauses (b) and (c) of article 39 of the Constitution of India and to protect, preserve and sustain cow and its progeny;..." On the basis of these materials, Additional Advocate General, representing the State, put forth an argument that the impugned enactment has got the protection of Article 31C of the Constitution. Consequently, if the enactment aims to achieve any of the Directive Principles contained in Part IV of the Constitution, the said enactment is not open to challenge on the ground that it violates Articles 14 and 19 of the Constitution. 13. Article 31C of the Constitution was introduced by the Constitution (Twenty-fifth Amendment) Act, 1971. The Article, as introduced by the said amendment, provided that notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the fundamental rights conferred by Article 14, Article 19 or Article 31. Validity of that Article was upheld by a Constitution Bench of the Supreme Court in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. Thereafter, the Sick Textiles (Undertakings) Nationalisation Act, 1974 was passed. Constitutional validity of this enactment was questioned. In that case, it was not open to the petitioner therein to question the correctness or otherwise of the Constitution (Twenty-fifth Amendment) Act, 1971, by which Article 31C was introduced, because that amendment was upheld in Kesavananda's case. But, Constitutional validity of Section 4 of the Constitution (Forty-second Amendment) Act, 1976, by which Article 31C was amended, was raised. In the Constitution (Forty-second Amendment) Act, 1976, the words "the principles specified in clause (b) or (c) of Article 39" in Article 31C were replaced by "all or any of the principles laid down in Part IV". The Constitution Bench of the Supreme Court went into the question of the validity of Section 4 of the Constitution (Forty-second Amendment) Act, 1976 in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789. Majority took the view that Section 4 of the Constitution (Forty-second Amendment) Act, 1976 is beyond the amending power of the Parliament and is void since it damages the basic or essential feature of the Constitution. Again, in Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd., AIR 1983 SC 239, Apex Court considered the validity of Article 31C, as amended by the Constitution (Forth-second Amendment) Act, 1976. Differing from the observations made by the Constitution Bench in Minerva Mills' case, Apex Court observed that Article 31C, with its extended protection, is also Constitutionally valid. On this basis, learned Additional Advocate General submitted that the impugned Act is aimed to give effect to the Directive Principles contained in clauses (b) and (c) of Article 39 and Articles 47 and 48, and the challenge made under Articles 14 and 19 of the Constitution must fail. 14. Learned counsel representing the petitioners did not address us on the scope and ambit of Article 31C of the Constitution. According to him, even if the extended meaning that is given to Article 31C under Constitution (Forty-second Amendment) Act, 1976 is operative, the impugned Act will not fall within any of the provisions of the Directive Principles and so, it has to withstand the test of reasonableness. According to the learned counsel, if the impugned enactment does not fall within the four corners of clauses (b) and (c) of Article 39 or Articles 47 and 48, it cannot seek immunity from attack as violative of Articles 14 and 19 of the Constitution. Clauses (b) and (c) of Article 39 relate to distribution of ownership and control of material resources of the community. The Act, claiming protection under Article 31C, on the ground that it falls under clauses (b) and (c) of Article 39, must have operation in the economic system and concentration of wealth. Only when the Court finds that the impugned law has got such relevancy, can it get the protection of Article 31C. The Court has the power to ascertain whether the law impugned is one aimed to give effect to said economic ... Jaganmohan Reddy, in his judgment in Kesavananda's case, observed :- "... Though the expression `economic system' is used in Article 39(c), that article has not the object of changing the economic system generally, but is confined to only preventing concentration of wealth and means of production to the common detriment. What this clause envisages is that the State should secure the operation of the economic system in such a way as not to result in the concentration of wealth and means of production to the common detriment. Where there is already concentration of wealth and means of production which is to the common detriment, the law under Art. 39(c) would be only to break up or regulate as may be necessary the concentration of wealth and means of production. All other rights are outside the purview of Article 31-C...." This view expressed by the learned Judge has been agreed to by the majority, nay virtually all the Judges in Kesavananda's case. So, one has to examine whether the said test is satisfied by the impugned Act. The impugned Act does not in any way deal with the concentration of wealth and means of production to the common detriment. No case has been advanced by any one that in case bulls and bullocks above the age of their utility are slaughtered or butchered, it will in... the concentration of wealth. Thus, learned counsel stated, it is seen that the impugned Act does not fall within the ambit of clauses (b) and (c) of Article 39 of the Constitution. We find much force in this argument. 15. Article 48 was relied