2005 Supreme(SC) 1404

2005(8) Supreme 697
Supreme Court of India
(From Gujarat High Court)
R.C. Lahoti, CJI, B.N. Agrawal, Arun Kumar, G.P. Mathur, A.K. Mathur, C.K. Thakker & P.K. Balasubramanyan, JJ.
State of Gujarat —Appellant
versus
Mirzapur Moti Kureshi Kassab Jamat & Ors. —Respondents
Civil Appeal Nos. 4937-4940 of 1998
With
Civil Appeal Nos. 4941-44 of 1998
And
Civil Appeal No. 4945 of 1998
All Decided on 26-10-2005
Counsel for the Parties :
For the Appellants : Dr. L.M. Singhvi, Soli J. Sorabjee, S.K. Dholakia, Sr. Advocates, Ms. Hemantika Wahi, Manish Singhvi, Ms. Abhilasha Singhvi, Mayur Shah, Rutwick Panda, Abhishek Mishra, Sushil Kumar Jain, Jasraj Shri Shrimal, Parmanand Mittal, Pradeep Aggarwal, A.P. Dhamijia, H.D. Thanvi, Sharad Singhania, Ms. Pratibha Jain, Puneet Jain, Lal Pratap Singh, Ram Niwas, Ms. Rani Maheshwari, Rupinder Singh Suri, R.K. Joshi, Vinay K. Shailendra, Ms. Prerna Chawla, T.S. Chaudhary, Advocates.
For the Respondents : G.L. Sanghi and Ramesh P. Bhatt, Sr. Advocates, M.N. Shroff, Ms. Tanuja Sheel, M.R. Bhatt, Chirag M. Shroff, M.S. Girish, Sunil Kumar Jain, Manish Kumar, S. Borthakur, Ansar Ahmad Chaudhary, Nikhil Goel, Ms. Naveen Goel, Mrs. Sheela Goel, Advocates.

Important point
Total ban on slaughter of cow progeny as imposed by the Bombay Animal Preservation Act is in the interests of the general public within the meaning of clause (6) of Article 19 of the Constitution.

Headnote:(i) Bombay Animal Preservation Act, 1954—Sections 5 and 6—Bombay Animal Preservation (Gujarat Amendment) Act, 1994—Section 2—Constitutional validity—Ban on slaughter of certain animals—Milch and draught cattle—Meanings—Total prohibition imposed on slaughter of cow and her progeny—A total ban on cow slaughter has been upheld—Whether ban on slaughter of cow progeny as imposed by impugned enactment is in the interests of the general public within the meaning of clause (6) of Article 19 of the Constitution—(Yes)—There is no apparent inconsistency between the Directive Principles which persuaded the State to pass the law and the fundamental rights convassed by writ petitioners—No bull and bullock irrespective of age shall be slaughtered—Whether High Court was justified in holding this amendment as ultra vires—(No).

       Majority Judgment

       Held : 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 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. (Paras 143 to 145)

       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 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. (Paras 146 and 147)

       The utility of cow cannot be doubted at all. A total ban on cow slaughter has been upheld even in Quareshi-I. The controversy in the present case is confined to cow progeny. The important role that cow and her progeny play in the Indian Economy was acknowledged in Quareshi-I. (Para 114)

       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. (Para 115)

       Minority Judgment [A.K. Mathur, J.]

       I have gone through the erudite judgment by Hon’ble Chief Justice. But I regret I cannot support the view taken by Hon’ble Chief Justice. Basic question that arises in these petitions are whether there is need to over-rule the earlier decisions which held the field right from 1958-1996, is the ground realities have materially changed so as to reverse the view held by successive Constitutional Benches of this Court or those decisions ceased to have any relevance. It is true that life is ever changing and the concept which was useful in 18th century may not be useful in this millennium. We have gone from cartage to space age. New scientific temper is a guiding factor in this millennium. But despite the changing pattern of life it cannot be said that the decision delivered in the case of Mohd. Qureshi followed by subsequent decisions have outlived its ratio. In my respectful view the material which has been placed for taking a contrary view does not justify the reversal of earlier decisions. (Paras 150 to 152)

       The whole controversy arose in the writ petition filed in the Gujarat High Court challenging the validity of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (hereinafter referred to Gujarat Act No. 4 of 1994). By this amendment the age of bulls and bullocks which was existed at that time that is bull below the age of 16 years and bullocks below the age of 16 years can not be slaughtered was deleted. By this amendment the age restriction was totally taken away and that means that no bull and bullock irrespective of age shall be slaughtered. This amendment was challenged before the Gujarat High Court. The Gujarat High Court after dealing with all aspects in detail held that amendment is ultra vires. Hence, the present petition alongwith the other petitions came up before this Court by Special Leave Petition. (Para 154)

       One of the hallmarks of the law is certainty predictability and stability unless the ground reality has completely changed. In the present case, as discussed above, in my opinion the ground reality has not changed and the law laid down by this court holds good and relevant. Some advancement in technology and more and more use of the cow dung and urine is not such a substantial factor to change the ground realities so as to totally done away with the slaughtering of the aged bulls and bullocks. It is true my Lord the Chief Justice has rightly observed that principle of stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the province of precedents providing room to collaborate with the demands of changing times dictated by social needs. State policy and judicial conscience. There is no quarrel to this proposition, but the only question is whether the earlierdecisions are not logical or they have become unreasonable with the passage of time. In my humble opinion, those decisions still hold good in the present context also. Therefore, I do not think that there are compelling reasons for reversal of the earlier decisions either on the basis of advancement of technology or reason, or logic, or economic consideration. Therefore, in my humble opinion, there is no need to reverse the earlier decisions. An argument was raised with regard to role of objects and reasons preceding the enactment. There is no two opinion that they are useful and for purposes of interpretation of the provisions whenever its validity is challenged. This aspect has been dealt with by the Hon’ble Chief Justice and I do not wish to add anything more to it. Likewise, the Hon’ble Chief Justice has dealt in detail the relation of Fundamental Rights with Directive Principles. His Lordship has very exhaustively dealt with all the cases bearing on the subject prior and after decision in Keshwanand Bharati’s case. The court should guard zealously Fundamental Rights guaranteed to the citizens of the society, but at the time strike a balance between the Fundamental Rights and the larger interests of the society. But when such right clashes with the larger interest of the country it must yield to the latter. Therefore, wherever any enactment is made for advancement of Directive Principles and it runs counter to the Fundamental Rights an attempt should be made to harmonise the same if it promotes larger public interest. Therefore, as a result of above discussion, I am of the view that the view taken by the Division Bench of the Gujarat High Court is correct and there is no justification for reversing the view taken by the earlier Constitution Bench decision of this Court. (Paras 181 to 184)

       (ii) Constitution of India—Article 141—Article 141—Principle of stare decisis—Applicability—Flexible principle of law operating in the province of precedents.

       Majority Judgment

       Held : 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. Ramamatha 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. (Paras 117 and 118)

       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” - 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. (Paras 122 to 124)

       Minority Judgment

       The expression of ‘stare decisis’ is a Latin phrase which means to stand by decided cases; to uphold precedents; to maintain former adjudications”. It is true that law is a dynamic concept and it should change with the time. But at the same time it shall not be so fickle that it changes with change of guard. If the ground realities have not changed and it has not become irrelevant with the time then it should not be reviewed lightly. I have discussed above the reasons which have been given by the State of Gujarat for reconsideration of the earlier decisions on the subject, in my humble opinion the justification so pleaded is not sufficient to change or review the decision of the Constitution Bench by the present Bench of seven Judges. The principle of stare decisis is based on a public policy. This policy is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e. that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law. If the courts start changing their views frequently then there will be a lack of certainty in the law and it is not good for the health of the nation. (Paras 179 and 180)