The Supreme Court - Preservation of Animals contd.

contd... from previous

Dissenting Judgment per Mr. Justice A.K. MATHUR


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

PETITIONER:
State of Gujarat

RESPONDENT:
Mirzapur Moti Kureshi Kassab Jamat & Ors.

DATE OF JUDGMENT: 26/10/2005

BENCH:
A.K. MATHUR

JUDGMENT:
J U D G M E N T
With

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


A.K. MATHUR, J.


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

Basic question that arises in these petitions are whether there is need
to over-rule the earlier decisions which held the field right from 1958-1996,
is the ground realities have materially changed so as to reverse the view held
by successive Constitutional Benches of this Court or those decisions
ceased to have any relevance.

It is true that life is ever changing and the concept which was useful
in 18th century may not be useful in this millennium. We have gone from
cartage to space age. New scientific temper is a guiding factor in this
millennium. But despite the changing pattern of life it cannot be said that
the decision delivered in the case of Mohd. Qureshi followed by subsequent
decisions have outlived its ratio. In my respectful view the material which
has been placed for taking a contrary view does not justify the reversal of
earlier decisions.

The detailed history of the legislation and various decisions bearing
on the subject has been dealt with by Hon'ble Chief Justice in most
exhaustive and pains-taking manner. Therefore, there is no need to repeat
those legislative as well as judicial history here. My endeavor in this
opinion will be to show that the situation which existed right from 1958
till this date there is no material change warranting reversal of the judgments
bearing on the subject from 1958-96.

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

The matter was listed before the three Judges' Bench. Thereafter, it
was taken by the Constitution Bench and the Constitution Bench realizing
difficulty that there are already Constitution Bench judgments holding the
field, referred the matter to the seven Judges' Bench for reconsideration of
all the earlier decisions of the Constitution Benches. Hence these matters
are before seven Judges' Bench.

Hon'ble the Chief Justice has already reproduced the objects and
reasons for amendment therefore same need not be reproduced here. This
amendment brought about to effect directive principles of the State Policy
under Articles 47, 48 of the Constitution and Clause (b) and (c) of Article
39 of the Constitution.

Thereafter, Hon'ble Chief Justice has also reviewed all the cases
bearing on the subject which can be enumerated as under:
1. AIR 1958 SC 731 ( Mohd. Hanif Qureshi & Ors. Vs. State of
Bihar)
2. AIR 1961 SC448 ( Abul Hakim Vs. State of Bihar)
3. 1969 (1) SCC 853 ( Mohd. Faruk Vs. State of M.P. & Ors.)
4. 1986 (3) SCC 12 ( Haji Usmanbhai Hasanbhai Qureshi Vs. State of
Gujarat
5. 1996 (4) SCC 391 ( Hashmattullah Vs. State of M.P. & Ors.)



In these cases, this very question was agitated & by series of
decisions it was answered in the negative.

In Mohd. Hanif Qureshi's case this Court upheld a total prohibition
of slaughter of the cows of all ages and calf of buffalows (male and
female) & she-buffaloes, breeding bulls and working bullocks, without
prescribing any test of requirement as to their age. But so far as bull &
bullocks are concerned when they ceased to have draughtability
prohibition of their slaughter was not upheld in public interest. Hon'ble S.R.
Das, CJ speaking for the Court exhaustively dealt with all the aspects which
practically covers all the arguments which have been raised before us,
especially, the utility of the cow-dung for manure as well as the cow urine
for its chemical qualities like Nitrogen Phosphates and Potash. His Lordship
recognized that this enactment was made in discharge of State's obligation
under Art. 48 of the Constitution to preserve our livestock.

His Lordship has discussed the question of reasonable restriction
under Article 19 (6) and after considering all material placed before the
Court, and adverting to social, religious, utility point of view in most
exhaustive manner finally concluded thus :

"After giving our most careful and anxious consideration to the
pros and cons of the problem as indicated and discussed above
and keeping in view the presumption in favour of the validity of
the legislation and without any the least disrespect to the
opinions of the legislatures concerned we feel that in
discharging the ultimate responsibility cast on us by the
Constitution we must approach and analyze the problem in an
objective and realistic manner and then make our
pronouncement on the reasonableness of the restrictions
imposed by the impugned enactments. So approaching and
analyzing the problem, we have reached the conclusion (i) that
a total ban on the slaughter of cows of all ages and calves of
cows and calves of she-buffaloes, male and female, is quite
reasonable and valid and is in consonance with the directive
principles laid down in Art. 48; (ii) that a total ban on the
slaughter of she-buffaloes, or breeding bulls or working
bullocks (cattle as well as buffaloes) as long as they are as
milch or draught cattle is also reasonable and valid and (iii) that
a total ban on the slaughter of she-buffaloes, bulls and bullocks
(cattle or buffalo) after they cease to be capable of yielding
milk or of breeding or working as draught animals cannot be
supported as reasonable in the interest of the general public."

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

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

"The test of reasonableness should be applied to each
individual statute impugned and no abstract standard, or general
pattern, of reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed,
the underlying purpose of the restrictions imposed, the extent
and urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the
time, should all enter into the judicial verdict."

Their Lordship also emphasized that the legislature is the best Judge
of what is good for the community, by whose suffrage it comes into
existence, the ultimate responsibility for determining the validity of the law
must rest with the Court and the Court must not shirk that solemn duty cast
on it by the Constitution.

It was observed that the unanimous opinion of the experts is that
after the age of 15, bulls, bullocks and buffaloes are no longer useful for
breeding, draught and other purpose and whatever little use they may have
then is greatly off-set by the economic disadvantage of feeding and
maintaining unserviceable cattle.

Section 3 of the Bihar Act in so far as it has increased the age limit
to 25 in respect of bulls, bullocks and she-buffaloes, for the purpose of
their slaughter imposes an unreasonable restriction on the fundamental right
of the butchers to carry on their trade and profession. Moreover the
restriction cannot be said to be in the interests of the general public, and to
that extent it is void.

Then again in the case of Mohd. Faruk vs. State of Madhya Pradesh
and Ors. reported in 1969 (1) SCC 853, Constitution Bench was called
upon to decide the validity of the notification issued by the Madhya Pradesh
Government under Municipal Corporation Act. Earlier, a notification was
issued by the Jabalpur Municipality permitting the slaughter of bulls and
bullocks alongwith the other animals. Later on State Government issued
notification cancelling the notification permitting the slaughter of bulls and
bullocks. This came up for a challenge directly under Art. 32 of the
constitution before this Court, that this restriction amounts to breach of
Art. 19(1)(g) of the constitution. In that context, their Lordship observed:

"That the sentiments of a section of the people may be hurt by
permitting slaughter of bulls and bullocks in premises
maintained by a local authority. But a prohibition imposed on
the exercise of a fundamental right to carry on an occupation,
trade or business will not be regarded as reasonable if it is
imposed not in the interest of the general public but merely to
respect the susceptibilities and sentiments of a section of the
people whose way of life belief or thought is not the same as
that of the claimant. The notification issued must, therefore, be
declared ultra virus as infringing Article 19(1)(g) of the
Constitution."

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

Then again the matter came up before this Court in the case of
Hashmattullah vs. State of M.P. and Ors. reported in 1996 (4) SCC 391.
This time the provisions of the M.P. Agricultural Cattle Preservation Act,
1959 came up for consideration. This Act was amended by Amending Act
of 1991 and a total ban on slaughter of bulls and bullocks came to be
imposed. And this was challenged being violative of Art. 19 (1)(g) of the
constitution.

Their Lordships after reviewing all earlier cases on the subject and
taking into consideration the uselessness of these bulls and bullocks after
they have attained a particular age for agriculture operation like manure as
well as bio-gas and ecology, observed in para 18 as under:

"We are pained to notice the successive attempts made by the
State of Madhya Pradesh to nullify the effect of this Court's
decisions beginning with Mohd. Hanif's case and ending with
Mohd. Faruk's case, each time on flimsy grounds. In this last
such attempt, the objects and reasons show how insignificant
and unsupportable the ground for bringing the legislation was.
The main thrust of the objects and reasons for the legislation
seems to be that even animals which have ceased to be capable
of yielding milk or breeding or working as draught animals can
be useful as they would produce dung which could be used to
generate non-conventional sources of energy like bio-gas
without so much as being aware of the cost of maintaining such
animals for the mere purpose of dung. Even the supportive
articles relied upon do not bear on this point. It is obvious that
successive attempts are being made in the hope that some day it
will succeed as indeed it did with the High Court which got
carried away by research papers published only two or three
years before without realizing that they dealt with the aspect of
utility of dung but had nothing to do with the question of the
utility of animals which have ceased to be reproductive of
capable of being used as draught animals. Besides, they do not
even reflect on the economical aspect of; maintaining such
animals for the sole purpose of dung. Prim facie it seems
farfetched and yet the State Government thought it as sufficient
to amend the law."

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

This is a survey of the judicial determination on the subject. And in
the last case their Lordships frowned on unsuccessful attempt by the State to
somehow nullify the ratio laid down in Mohd. Hanif Qureshi's case and
subsequent decisions following Qureshi's case. But this time, the State of
Gujarat has come up to seek the review of earlier decisions. Now I shall
examine the material which has been placed by the State of Gujarat to
justify the total prohibition of slaughter of bulls and bullocks.

Learned counsel for the appellant has brought to our notice the
affidavit filed by the State of Gujarat which has been reproduced by the
Hon'ble Chief Justice on page 56 in his opinion onwards. Therefore, I
need not reproduce the whole of the affidavit. Mr. J.S.Parikh, Deputy
Secretary, Agricultural Cooperative and Rural Development Department of
the State of Gujarat has in his affidavit stated that almost in 50% of the
agricultural operation by tractor is not possible because of small holdings in
the State of Gujarat. Therefore, for such small holdings the draught
animals are best used for cultivation purposes. It was also stated that the
total cultivated area of Gujarat State is about 124 lakh hectares and a pair
of bullocks is required for ploughing 10 hectares of land. Therefore,
5.481million and approximately equal number is required for carting of
whole land. In accordance with livestock census, the Gujarat State has
availability of indigenous bullocks around 2.84 millions that means that a
State has only 25% of their requirement and it is also stated that each bull is
required for this purpose. He has also stated that bull or bullocks at every
stage of life supplies 3500 kg. of dung and 2000 ltrs. of urine and this
quantity of dung can supply 5000 cubic feet of biogas, 80 M.T. of organic
fertilizer and the urine can supply 2000 ltrs of pesticides and the use of it in
farming increases the yield very substantially. That in recent advancement
of technology use of biogas has become very useful source of energy and the
biogas can be prepared out of the cow dung and other inputs. It was pointed
out that there are 19362 biogas plants installed in the State during 1995-97.

Similarly, an additional affidavit was filed by Mr. D.P. Amin, Joint
Director of Animal Husbandry, Gujarat State. He has mentioned that the
number of the slaughter houses have declined during the year 1982-83 to
1996-97. The average number of animals slaughtered in regulated
slaughter houses was 4,39,141. It is also stated that there is a reduction in
slaughter of the bull and bullocks above the age of 16 years. Almost 50
per cent of the land holdings are less than 2 hectares; tractor operation is not
affordable to small farmers. For tractors operation one should have large
holding of land. Such land holders are only around 10 per cent of the total
land holders. Hence the farmers with small land holdings require bullocks
for their agricultural operations and transport. There is reduction in
slaughter of bulls and bullocks above the age of 16 years reported in the
regulated slaughter houses of Gujarat State. As reported in the years from
1982-83 to 1996-97, the slaughter of bulls and bullocks above the age of 16
years was only 2.48% of the total animals of different categories slaughtered
in the State. This percentage has gone down to the level of only 1.10%
during last 8 years i.e. 1997-98 to 2004-05 which is very less significant to
cause or affect the business of butcher communities. He has also stated that
the bullock above the age of 16 years can generate 0.68 horse power
draught output while the prime bullock generates 0.83 horse power per
bullock during carting/hauling draught work. Considering the utility of
bullocks above 16 years of age as draught power a detailed combined study
was carried out by Department of Animal Husbandry and Gujarat
Agricultural University (Veterinary Colleges S.K. Nagar & Anand). The
study covered different age groups of 156 (78 pairs) bullocks above the age
of 16 years age generated 0.68 horse power draught output per bullock while
the prime bullock generated 0.83 horse power per bullock during
carting/hauling draught work in a summer with about more than 42: F temp.
The study proves that 93% of aged bullock above 16 years of age are still
useful to farmers to perform light and medium draught works. The
importance of organic manure as a source of humus and plant nutrients to
increase the fertility level of soils has been well recognized. The organic
matter content of cultivated soils of the tropics and sub-tropics is
comparatively low due to high temperature and intense microbial activity.
The crops remove annually large quantity of plant nutrients from soil.
Moreover, Indian soils are poor in organic matter and in major plant
nutrients. Therefore, soil humus has to be replenished through periodic
addition of organic manure for maintaining soil productivity. It was
mentioned that there is number of bio-gas plants operating in the State of
Gujarat.

Apart from these affidavits many more published documents have
been placed on record which has been reproduced by the Hon'ble Chief
Justice of India in his opinion. But all these are general datas which only
provide the usefulness of cow dung for the purposes of manure as well as for
biogas and likewise the urine of the cows for pesticides and ayurvedic
purposes. But all those datas cannot change the reality that such an aged bull
and bullocks produce huge quantity of the cow dung manure and urine
which can alter a situation materially so as to reverse the earlier decisions of
this court. Utility of the cow dung and urine was realized and appreciated in
the earlier decision of this Court in Mohd. Hanif Qureshi's and Ors. vs State
of Bihar and Ors. (AIR 1958 SC 731) The then Chief Justice has quoted
from various scriptures emphasizing the importance of the cattle life.
Therefore it cannot be said that the earlier decisions rendered by the
Constitution Bench was oblivious of these facts.

However, so far as the affidavits filed on behalf of State of Gujarat
about the use of biogas and the usefulness of the draught animals has to be
taken with pinch of salt, in both the affidavits it has been admitted that urine
and the cow dung of the aged bull and bullocks beyond 16 years is reduced
considerably and likewise their draughtability. Therefore, it is admitted that
the bullocks which have crossed the age of 16 years their output for the
urine, cow dung and draughtability is substantially reduced. Therefore it is
explicit from their affidavits that the age of 16 years prescribed earlier was
on a very reasonable basis after proper scientific study but de hors those
scientific study the State Government brought this amendment removing the
age limit for slaughtering of the bulls and bullocks and totally prohibited
slaughtering of the same. This decision of the State Government does not
advance the public interest.

Another significant disclosure in both these affidavits is that
slaughtering of these bulls and bullocks has considerably reduced in the year
1997-98 to 2004-2005. The slaughtering of bulls and bullocks beyond the
age of 16 years was only 2.48 % of the total animals of different categories
slain in the State prior to this period. This percentage has gone down to the
level of only 1.10 % during the last 8 years i.e. 1997-98 to 2004-2005.
These details reveal that in fact the slaughtering of these bulls and bullocks
beyond the age of 16 years constituted only 1.10% of the total slaughtering
takes place in the State. If this is the ratio of the slaughtering, I fail to
understand how this legislation can advance the cause of the public at the
expense of the denial of Fundamental Right of this class of persons
(butchers). In view of facts disclosed in the affidavit filed by the two senior
officer of the State of Gujarat speaks volume that for small percentage of
1.10% can the fundamental right of this class of persons should be sacrificed
and earlier decisions be reversed. I fail to understand how it would advance
the cause of the public at large so as to deprive the handful of persons of
their rights to profession. On the basis of this material, I am of the opinion
that the earlier decisions of this Court have not become irrelevant in the
present context. The tall claim made by State looks attractive in a print but
in reality it is not so. I fail to understand that how can an animal whose
average age is said to be 12-16 years can at the age of 16 years reproduce
the cow-dung or urine which can off set the requirement of the chemical
fertilizer. In this connection reference be made to text book where average
age is 12 years. It is a common experience that the use of the chemical
fertilizer has increased all over the country and the first priority of the
farmer is the chemical fertilizer, as a result of which the production in food
grain in the country has gone up and today the country has become
surplus. This is because of the use of the chemical fertilizer only and not
the organic manure. It was observed in Mohd. Hanif's case that India has
a largest cattle head but a lower in the production of milk. It is only because
of the scientific methods employed by veterinarian which has increased the
milk production in the country not because of the poor breed of the bulls.
It is common experience that aged bulls are not used for purposes of
covering the cows for better quality of the breed. Only well-built young
bulls are used for the purpose of improving the breeding and not the aged
bulls. If the aged and weak bulls are allowed for mating purposes, the off-
spring will be of poor health and that will not be in the interest of the
country. So far as the use of biogas is concerned, that has also been
substantially reduced after the advent of L.P.G.
Therefore in my opinion, in the background of this scenario, I do not
think that it will be proper to reverse the view which has been held good for
a long spell of time from 1958 to 1996. There is no material change in
ground realities warranting reversal of earlier decisions.

One of the other reasons which has been advanced for reversal of
earlier judgments was that at the time when these earlier judgments were
delivered Article 48(A) and 51(A) were not there and impact of both these
Articles were not considered. It is true that Article 48(A) which was
introduced by the 42nd Constitutional Amendment in 1976 with effect from
3.1.1977 and Article 51(A) i.e. fundamental duties were also brought about
by the same amendment. Though, these Articles were not in existence at
that time but the effect of those Articles were indirectly considered in the
Mohd. Hanif Qureshi's case in 1958. It was mentioned that cow dung can be
used for the purposes of manure as well as for the purpose of fuel that will
be more echo-friendly. Similarly, in Mohd. Hanif Qureshi's case their
Lordships have quoted from the scriptures to show that we should have a
proper consideration for our cattle wealth and in that context their Lordships
quoted in para 22 which reads as under:

"22. The avowed object of each of the impugned Acts is to
ensure the preservation, protection, and improvement of the
cow and her progeny. This solicitude arises out of the
appreciation of the usefulness of cattle in a predominantly
agricultural society. Early Aryans recognized its importance as
one of the most indispensable adjuncts of agriculture. It would
appear that in Vedic times animal flesh formed the staple food
of the people. This is attributable to the fact that the climate in
that distant past was extremely cold and the Vedic Aryans had
been a pastoral people before they settled down as
agriculturists. In Rg. Vedic times goats, sheep, cows, buffaloes
and even horses were slaughtered for food and for religious
sacrifice and their flesh used to be offered to the Gods. Agni is
called the "eater of ox or cow" in Rg.Veda (VIII,43,11). The
slaying of a great ox (Mahoksa) or a "great Goat" (Mahaja) for
the entertainment of a distinguished guest has been enjoined in
the Satapatha Brahmana (III.4. 1-2). Yagnavalkya also
expresses a similar view (Vaj.1. 109). An interesting account
of those early days will be found in Rg.Vedic Culture by Dr.
A.C. Das, Chapter 5, pages 203-5 and in the History of
Dharamasastras (Vol.II, Part II) by P.V. Kane at pages 772-773.
Though the custom of slaughtering of cows and bulls prevailed
during the vedic period, nevertheless, even in the Rg. Vedic
times there seems to have grown up a revulsion of feeling
against the custom. The cow gradually came to acquire a
special sanctity and was called "Aghnya" (not to be slain).
There was a school of thinkers amongst the Risis, who set their
face against the custom of killing such useful animals as the
cow and the bull. High praise was bestowed on the cow as will
appear from the following verses from Rg.Veda, Book VI,
Hymn XXVIII (Cows) attributed to the authorship of Sage
Bhardavaja:

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

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

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

Prosper my house, ye with auspicious voices, your
power is glorified in our assemblies.

7. Crop goodly pasturages and be prolific; drink
pure sweet water at good drinking places.

Never be thief or sinful man your master, and may
the dart of Rudra still avoid you."

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

"29. The slaughter of an innocent, O Kritya, is an
awful deed, Slay not cow, horse, or man of ours."

Hyman 10 in the same book is a rapturous glorification of the
cow:

"30. The cow is Heaven, the cow is Eath, the cow
is Vishnu, Lord of life.

The Sadhyas and the Vasus have drunk the
outpourings of the cow.

34. Both Gods and mortal men depend for life and
being on the cow.
She hath become this universe; all that the sun
surveys is she."

P.V. Kane argues that in the times of the Rg.Veda only barren
cows, if at all, were killed for sacrifice or meat and cows
yielding milk were held to be not fit for being killed. It is only
in this way, according to him that one can explain and reconcile
the apparent conflict between the custom of killing cows for
food and the high praise bestowed on the cow in Rg.Vedic
times. It would appear that the protest raised against the
slaughter of cows greatly increased in volume till the custom
was totally abolished in a later age. The change of climate
perhaps also make the use of beef as food unnecessary and even
injurious to health. Gradually cows became indicative of the
wealth of the owner. The Neolithic Aryans not having been
acquainted with metals, there were no coins in current use in the
earlier stages of their civilization, but as they were eminently a
pastoral people almost every family possessed a sufficient
number of cattle and some of them exchanged them for the
necessaries of their life. The value of cattle (Pasu) was,
therefore, very great with the early Rg.Vedic Aryans. The
ancient Romans also used the word pecus or pecu (pasu) in the
sense of wealth or money. The English words, "pecuniary" and
"impecunious", are derived from the Latin root pecus or pecu,
originally meaning cattle. The possession of cattle in those
days denoted wealth and a man was considered rich or poor
according to the large or small number of cattle that he owned.
In the Ramayana king Janaka's wealth was described by
reference to the large number of herds that he owned. It
appears that the cow was gradually raised to the status of
divinity. Kautilya's Arthasastra has a special chapter
(Ch.XXIX) dealing with the "superintendent of cows" and the
duties of the owner of cows are also referred to in Ch.XI of
Hindu Law in its sources by Ganga Nath Jha. There can be no
gainsaying the fact that the Hindus in general hold the cow in
great reverence and the idea of the slaughter of cows for food is
repugnant to their notions and this sentiment has in the past
even led to communal riots. It is also a fact that after the recent
partition of the country this agitation against the slaughter of
cows has been further intensified. While we agree that the
constitutional question before us cannot be decided on grounds
of mere sentiment, however passionate it may be, we,
nevertheless, think that it has to be taken into consideration,
though only as one of many elements, in arriving at a judicial
verdict as to the reasonableness of the restrictions."

Therefore it cannot be said that the Judges were not conscious about
the usefulness and the sanctity with which the entire cow and its progeny has
been held in our country. Though Article 48(A) and 51(A) were not there,
but their Lordships were indirectly conscious of the implication. Articles
48(A) and 51(A) do not substantially change the ground realities which can
persuade to change the views which have been held from 1958 to 1996.
Reference was also made that for protection of top soil, the cow dung will be
useful. No doubt the utility of the cow dung for protection of the top soil is
necessary but one has to be pragmatic in its approach that whether the small
yield of the cow dung and urine from aged bulls and bullocks can
substantially change the top soil. In my opinion this argument was advanced
only for the sake of argument but does not advance the case of the
petitioners/appellants to reverse the decision of the earlier Benches which
had stood the test of time.

In this connection, it will be relevant to refer the principle of stare
decisis. The expression of 'stare decisis' is a Latin phrase which means "to
stand by decided cases; to uphold precedents; to maintain former
adjudications". It is true that law is a dynamic concept and it should change
with the time. But at the same time it shall not be so fickle that it changes
with change of guard. If the ground realities have not changed and it has not
become irrelevant with the time then it should not be reviewed lightly. I
have discussed above the reasons which have been given by the State of
Gujarat for reconsideration of the earlier decisions on the subject, in my
humble opinion the justification so pleaded is not sufficient to change or
review the decision of the Constitution Bench by the present Bench of seven
Judges.

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

Craies on Statue Law, 7th Edition, it was observed that:
"The rule is also founded more logically on the axiom statre
decisis, which was the ground of the decision in Hanau vs
Ehrlich. The case turned on the ambiguous words in the Statute
of Frauds as to agreements not to be performed within a year
from the making thereof. The House of Lords in 12912 decided
that though it may be well doubted whether an agreement for
more than one year determinable by notice within the year is
within the statute, a long course of decisions going back to
1829 in the affirmative ought not to be disturbed. And in 1945
Scott L.J. refused to decide against a decision of Malins Vs. C.
in 1870 on the ground that the construction placed by the Vice-
Chancellor on certain sections of the Companies Act 1862 had
been accepted for a long time. In 1958 Lord Evershed M.R.
said: "There is well-established authority for the view that a
decision of long standing, on the basis of which many persons
will in the course of time have arranged their affairs, should not
lightly be disturbed by a superior court not strictly bound itself
by the decision."

In 1919 Lord Buckmaster enunciated the principles on which
the rule of stare decisis is based. "Firstly, the construction of a
statute of doubtful meaning once laid down and accepted for a
long period of time ought not to be altered unless your
Lordships could say positively that it was wrong and productive
of inconvenience. Secondly, that the decisions upon which title
to property depends or which by establishing principles of
construction otherwise form the basis of contracts ought to
receive the same protection. Thirdly, decisions affecting the
general conduct of affairs, so that their alteration would mean
that taxes had been unlawfully imposed or exemption
unlawfully obtained, payments needlessly made or the position
of the public materially affected, ought in the same way to
continue."

Earlier, Lord Westbury had thus stated the rule, "We must bow
to the uniform interpretation which has been put upon the
statute of Elizabeth and must not attempt to disturb the
exposition it has received . If we find a uniform
interpretation of a statue upon a question materially affecting
property, and perpetually recurring, and which has been
adhered to without interruption, it would be impossible for us to
introduce the precedent of disregarding that interpretation.
Disagreeing with it would thereby be shaking rights and titles
which have been founded through so many years upon the
conviction that that interpretation is the legal and proper one
and is one which will not be departed from."

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

Therefore one of the hallmarks of the law is certainty predictability
and stability unless the ground realty has completely changed. In the present
case, as discussed above, in my opinion the ground reality has not changed
and the law laid down by this court holds good and relevant. Some
advancement in technology and more and more use of the cow dung and
urine is not such a substantial factor to change the ground realities so as to
totally done away with the slaughtering of the aged bulls and bullocks. It is
true my Lord the Chief Justice has rightly observed that principle of stare
decisis is not a dogmatic rule allergic to logic and reason; it is a flexible
principle of law operating in the province of precedents providing room to
collaborate with the demands of changing times dictated by social needs,
State policy and judicial conscience. There is no quarrel to this proposition,
but the only question is whether the earlier decisions are not logical or they
have become unreasonable with the passage of time. In my humble opinion,
those decisions still hold good in the present context also. Therefore, I do
not think that there are compelling reasons for reversal of the earlier
decisions either on the basis of advancement of technology or reason, or
logic, or economic consideration. Therefore, in my humble opinion, there is
no need to reverse the earlier decisions.

An argument was raised with regard to role of objects and reasons
preceding the enactment. There is no two opinion that they are useful and
for purposes of interpretation of the provisions whenever its validity is
challenged. This aspect has been dealt with by the Hon'ble Chief Justice
and I do not wish to add anything more to it.

Likewise, the Hon'ble Chief Justice has dealt in detail the relation of
Fundamental Rights with Directive Principles. His Lordship has very
exhaustively dealt with all the cases bearing on the subject prior and after
decision in Keshwanand Bharti's case. The court should guard zealously
Fundamental Rights guaranteed to the citizens of the society, but at the same
time strike a balance between the Fundamental Rights and the larger
interests of the society. But when such right clashes with the larger interest
of the country it must yield to the latter. Therefore, wherever any enactment
is made for advancement of Directive Principles and it runs counter to the
Fundamental Rights an attempt should be made to harmonise the same if it
promotes larger public interest.

Therefore, as a result of above discussion, I am of the view that the
view taken by the Division Bench of the Gujarat High Court is correct and
there is no justification for reversing the view taken by the earlier
Constitution Bench decision of this Court. All appeals are dismissed. No
order as to costs.