The Bombay Animal Preservation Act, 1994 is held to be intra vires the Constitution

Kosha Doshi | Symbiosis Law School, Pune | 29th March 2020

State of Gujarat v. Mirzapur Moti Qureshi Kasab (2005 8 SCC 534; Supreme Court of India)

Facts:

            The Bombay Animal Preservation (Gujarat Amendment) Act, 1994 which restricted the slaughter of bulls and bullocks below the age of 16 years was enlarged to a total prohibition on slaughter of the progeny of the cow in the State of Gujarat. The respondent, challenged the constitutional validity of the aforesaid amendment; wherein the High Court favored the respondent holding the same as unconstitutional. The State of Gujarat challenging the decision appealed to the Supreme Court. 

Issue:

1. Quareshi – I^[1] holds directive principles of state policy to be unenforceable and subservient to the fundamental rights and therefore recuses 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, 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; Articles 48A and 51A(g) were not noticed as they were not available then, as they were not introduced in the constitution by the forty-second amendment with effect from 3/1/1997.
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 the 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 fact that cow progeny 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 latter of all its force.

Judgment-

The court did not accept the view taken by the High Court. All the appeals were allowed. The impugned judgment of the High Court was set aside. The Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act 4 of 1994) is held to be intra vires the Constitution. All the writ petitions filed in the High Court were directed to be dismissed.

A detailed discussion on the justification of protection and its utility was done. The majority looked into the agarin economy which was dependent on cows and bullocks. They formed the agricultural force and were the source of non-conventional energy. An insight was made to the reference to the Statement of Objectives and Reasons in order to enhance the understanding and justify the enactment of the law. 

Mere inconvenience and dislocation to butchers does not cease the restriction. Under Article 19(2) to (6) the reasonability of restrictions was justifiable, standard of judging reasonability of restriction and restriction amounting to prohibition remains the same. Total prohibition imposed on slaughter of cow and her progeny is not a total ban as slaughter of other species not banned. Inter-relationship between Part III and Part IV was established. Further stated that where fundamental right clashes with the larger interests of society, it must yield the latter. 

^[1] 1959 SCR 629: AIR 1958 SC 731.