Supreme Court of India
Gulam Abbas & Ors vs State Of U.P. & Ors on 3 November, 1981
Equivalent citations: 1981 AIR 2198, 1982 SCR (1)1077
In Muthialu Chetti v. Bapun Sahib the facts were that in 1875 Mohammedans of Sevvaipett applied for permission to erect a mosque in that village on the site occupied by the previous mosque that had recently been destroyed but the Hindus objected and the application was refused; the Mohammedans nevertheless occupied the site and in 1878 again applied for permission to build the mosque but the Hindus again opposed the application expressing their apprehension that the erection of mosque would lead to disturbances when they were conducting their processions with music or celebrating ceremonies in the temples adjoining the river. The Collector accorded sanction to the erection of the mosque on condition that the Mohammedans undertook to allow the free passage of processions but professing to act as the District Magistrate he at the same time ordered that all music should cease when any procession was passing or repassing the mosque and directed that the order be notified to the inhabitants of Sevvaipett and Gogoi. The restriction that music should cease when processions would be passing or repassing the mosque was imposed in accordance with G.O. dated 9th May, 1874 which ran thus "All Magistrates should make it an invariable condition that music shall cease playing while the procession is passing any recognised place of worship, to whatever denomination belonging, except of course the places of worship appertaining to the processionaries themselves." Some leading Hindus of Sevvaipett filed a suit in Munsif's Court against Mohammedans for a declaration of their right to conduct their processions with music past the site occupied by the mosque and challenged the validity of the District Magistrate's order that the music of their processions should stop whilst passing or repassing the mosque. The Munsif's Court granted a decree in favour of the plaintiffs which was reversed by the District Court but was restored with some qualification by the High Court in second appeal. The High Court laid down that whilst the law recognised the right of an assembly, lawfully engaged in religious worship or religious ceremonies, not to be disturbed, it also recognised the right of persons for a lawful purpose, whether civil or religious, to use a common highway in parading it attended by music, so that they do not obstruct use of it by other persons; that whenever a conflict of rights exists, it is the duty of the Magistrate, if he apprehends civil tumults, to guard against it, and, if necessary, to interdict a procession; but that a general order interdicting all musical processions is ultra vires and illegal. The High Court pointed out that the extent of authority possessed by the Magistrate was to suspend the exercise of the right on particular occasions, and not prohibit it absolutely and before the occasion arose which entitled him to act; and it consequently held the District Magistrate's order to be ultra vires.
In Parthasaradi Ayyangar v. Chinna Krishna Ayyangar Turner C.J. laid down the law at page 309 of the report thus:
"Persons of whatever sect are entitled to conduct religious processions through public streets so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace."
In Sundram Chetti and Ors. v. The Queen before a Full Bench of the Madras High Court the aforesaid position was maintained and it was further laid down that the worshippers in the mosque or temple which abutted on a high road could not compel the processionists to intermit their (processionists') worship while passing the mosque or temple on the ground that there was continuous worship there. Turner C.J. who presided over the Full Bench observed at page 217 of the Report thus:-
"With regard to processions, if they are of a religious character, and the religious sentiment is to be considered, it is not less a hardship on the adherents of a creed that they should be compelled to intermit their worship at a particular point, than it is on the adherents of another creed, that they should be compelled to allow the passage of such a procession past the temples they revere. But the prejudices of particular sects out not to influence the law."
At page 215 of the Report the learned Chief Justice observed thus:
"The Criminal Procedure Code declares the authority of the Magistrate to suspend the exercise of rights recognised by law, when such exercises may conflict with other rights of the public or tend to endanger the public peace. But by numerous decisions it has been ruled that this authority is limited by the special ends it was designed to secure and is not destructive of the suspended rights."
Again at page 220 he has observed thus:
"I must nevertheless observe that this power (to suspend the exercise of legal rights on being satisfied about the existence of an emergency) is extraordinary and that the Magistrate should resort to it only when he is satisfied that other powers with which he is entrusted are insufficient. Where rights are threatened, the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of. It needs no argument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension; in the repression of illegal rather than in interference with lawful acts. If the Magistrate is satisfied that the exercise of a right is likely to create a riot, he can hardly be ignorant of the per-sons from whom disturbance is to be apprehended, and it is his duty to take from them security to keep the peace.
(Emphasis supplied).
It may be stated that the aforesaid view of the Madras High Court was preferred by the Privy Council to the contrary view of the Bombay High Court. In Manzur Hasan and Ors. v. Muhammad Zaman and Ors. the facts were that Shia Mahomedans in the town of Aurangabad, District Aligarh conducted Muharram a procession bearing religious emblems and pausing from time to time for the performance of "matam" (wailing). From time immemorial the procession performing "matam" had passed along a public street immediately behind a Sunni Mahommedan mosque; in and after 1916 the respondents (Sunnis) interfered to prevent "matam" near the mosque, as they alleged that it disturbed their devotions. The appellants (Shias) brought a suit for declaration of their rights to make short pauses behind the mosque for the performance of "matam" and for a permanent injunction against the Sunnis from interfering with their rights. The Judicial Committee upholding the Madras view and rejecting the Bombay view held that in India there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public, and subject to lawful directions by the Magistrates and that a civil suit for declaration lies against those who interfere with a religious procession or its appropriate observances. These decisions show that legal rights should be regulated and not prohibited altogether for avoiding breach of peace or disturbance or public tranquillity.
In Haji Mohammed Ismail v. Munshi Barakat Ali and Ors. there was a dispute concerning the conduct of a prayer in a mosque, and there being an apprehension of breach of peace the Magistrate under s. 144 drew up a proceeding and eventually recorded an order that ."no man of either party will be allowed to read prayers in the mosque." The Court held that the order was mis-conceived; that the effect of the order was that no Mohammedan would be allowed to say his prayers in the mosque it was not justified under s. 144 and that the proper course was for the Magistrate to ascertain which party was in the wrong and was interfering unnecessarily with the legal exercise of the legal rights of the other party, and to bind down that party restraining them from committing any act which may lead to a breach of peace. (Emphasis supplied).
In Madhu Limaye's case (supra) this Court has also expressed the view that the key-note of the power in s. 144 is to free the society from menace of serious disturbances of a grave character and the section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health.
The instant case, as we have held above, is one where the entitlement of the Shias to their customary rights to perform their religious ceremonies and functions on the plots and structures in question has been established and is the subject matter of a judicial pronouncement and decree of Civil Court of competent jurisdiction as also by reason of these properties having been registered as Shia Waqfs for performance of their religious ceremonies and functions and their complaint has been that the power under s. 144 is being exercised in utter disregard of the lawful exercise of their legal rights and every time instead of exercising the power in aid of their rights it is being exercised in suppressing their rights under the pretext of imminent danger to peace and tranquillity of the locality. Having elaborated the principles which should guide the exercise of that power we hope and trust that in future that power will be exercised by the executive magistracy in defence of such established rights of the petitioners and the Shia community and instead of prohibiting or suspending the exercise of such rights on concerned occasions on the facile ground of imminent danger to public peace and tranquillity of the locality the authorities would make a positive approach to the situation and follow the dictum of Turner C.J. that if they are satisfied that the exercise of the rights is likely to create a riot or breach of peace it would be their duty to take from those from whom disturbance is apprehended security to keep the place. After all the customary rights claimed by the petitioners part take of the character of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution to the religious denomination of Shia Muslims of Varanasi, a religious minority, who are desirous of freely practising their religious faith and perform their rites, practices, observances and functions without let or hindrance by members belonging to the majority sect of the community namely, Sunni Muslims, and as such a positive approach is called for on the part of the local authorities, It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure.
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.
Supreme Court of India
State Of Gujarat vs Mirzapur Moti Kureshi Kassab ... on 26 October, 2005
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 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.;
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 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 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 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 and 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 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 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 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 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 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 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 byproduct.
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 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 "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. 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, 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" 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 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 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 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.
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 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 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 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 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.
Supreme Court of India
Javed & Ors vs State Of Haryana & Ors on 30 July, 2003
The provision if it violates Article 25 ?
It was then submitted that the personal law of muslims permits performance of marriages with 4 women, obviously for the purpose of procreating children and any restriction thereon would be violative of right to freedom of religion enshrined in Article 25 of the Constitution. The relevant part of Article 25 reads as under:-
25. Freedom of conscience and free profession, practice and propagation of religion. - (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law -
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
A bare reading of this Article deprives the submission of all its force, vigour and charm. The freedom is subject to public order, morality and health. So the Article itself permits a legislation in the interest of social welfare and reform which are obviously part and parcel of public order, national morality and the collective health of the nation's people. The Muslim Law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion. In our view, the question of the impugned provision of Haryana Act being violative of Article 25 does not arise. We may have a reference to a few decided cases.
The meaning of religion - the term as employed in Article 25 and the nature of protection conferred by Article 25 stands settled by the pronouncement of the Constitution Bench decision in Dr. M. Ismail Faruqui and Ors. Vs. Union of India & Ors. (1994) 6 SCC 360. The protection under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. The latter is not protected by Article
25. In Sarla Mudgal (Smt.), President, Kalyani and Ors. Vs. Union of India and Ors. (1995) 3 SCC 635, this Court has judicially noticed it being acclaimed in the United States of America that the practice of polygamy is injurious to 'public morals', even though some religions may make it obligatory or desirable for its followers. The Court held that polygamy can be superseded by the State just as it can prohibit human sacrifice or the practice of Sati in the interest of public order. The Personal Law operates under the authority of the legislation and not under the religion and, therefore, the Personal Law can always be superseded or supplemented by legislation. In Mohd. Ahmed Khan Vs. Shah Bano Begum and Ors., (1985) 2 SCC 556, the Constitution Bench was confronted with a canvassed conflict between the provisions of Section 125 of Cr.P.C. and Muslim Personal Law. The question was: when the Personal Law makes a provision for maintenance to a divorced wife, the provision for maintenance under Section 125 of Cr.P.C. would run in conflict with the Personal Law. The Constitution Bench laid down two principles; firstly, the two provisions operate in different fields and, therefore, there is no conflict and; secondly, even if there is a conflict it should be set at rest by holding that the statutory law will prevail over the Personal Law of the parties, in cases where they are in conflict. In Mohd. Hanif Quareshi & Ors. Vs. The State of Bihar, (1959) SCR 629, the State Legislation placing a total ban on cow slaughter was under challenge. One of the submissions made was that such a ban offended Article 25 of the Constitution because such ban came in the way of the sacrifice of a cow on a particular day where it was considered to be religious by Muslims. Having made a review of various religious books, the Court concluded that it did not appear to be obligatory that a person must sacrifice a cow. It was optional for a Muslim to do so. The fact of an option seems to run counter to the notion of an obligatory duty. Many Muslims do not sacrifice a cow on the Id day. As it was not proved that the sacrifice of a cow on a particular day was an obligatory overt act for a Mussalman for the performance of his religious beliefs and ideas, it could not be held that a total ban on the slaughter of cows ran counter to Article 25 of the Constitution. In The State of Bombay Vs. Narasu Appa Mali, AIR 1952 Bombay 84, the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act (XXV (25) of 1946) was challenged on the ground of violation of Article 14, 15 and 25 of the Constitution. A Division Bench, consisting of Chief Justice Chagla and Justice Gajendragadkar (as His Lordship then was), held -
"A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole."
Their Lordships quoted from American decisions that the laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Their Lordships found it difficult to accept the proposition that polygamy is an integral part of Hindu religion though Hindu religions recognizes the necessity of a son for religious efficacy and spiritual salvation. However, proceeding on an assumption that polygamy is recognized institution according to Hindu religious practice, their Lordships stated in no uncertain terms -
"The right of the State to legislate on questions relating to marriage cannot be disputed. Marriage is undoubtedly a social institution an institution in which the State is vitally interested. Although there may not be universal recognition of the fact, still a very large volume of opinion in the world today admits that monogamy is a very desirable and praiseworthy institution. If, therefore, the State of Bombay compels Hindus to become monogamists, it is a measure of social reform, and if it is a measure of social reform then the State is empowered to legislate with regard to social reform under Article 25(2)(b) notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practise and propagate religion."
What constitutes social reform? Is it for the legislature to decide the same? Their Lordships held in Narasu Appa Mali's case (supra) that the will expressed by the legislature, constituted by the chosen representatives of the people in a democracy who are supposed to be responsible for the welfare of the State, is the will of the people and if they lay down the policy which a State should pursue such as when the legislature in its wisdom has come to the conclusion that monogamy tends to the welfare of the State, then it is not for the Courts of Law to sit in judgment upon that decision. Such legislation does not contravene Article 25(1) of the Constitution. We find ourselves in entire agreement, with the view so taken by the learned Judges whose eminence as jurists concerned with social welfare and social justice is recognized without any demur. Divorce unknown to ancient Hindu Law, rather considered abominable to Hindu religious belief, has been statutorily provided for Hindus and the Hindu marriage which was considered indissoluble is now capable of being dissolved or annulled by a decree of divorce or annulment. The reasoning adopted by the High Court of Bombay, in our opinion, applies fully to repel the contention of the petitioners even when we are examining the case from the point of view of Muslim Personal Law.
The Division Bench of the Bombay High Court in Narasu Appa Mali (supra) also had an occasion to examine the validity of the legislation when it was sought to be implemented not in one go but gradually. Their Lordships held - "Article 14 does not lay down that any legislation that the State may embark upon must necessarily be of an all-embracing character. The State may rightly decide to bring about social reform by stages and the stages may be territorial or they may be community- wise."
Rule 21 of the Central Civil Services (Conduct) Rules, 1964 restrains any government servant having a living spouse from entering into or contracting a marriage with any person. A similar provision is to be found in several service rules framed by the States governing the conduct of their civil servants. No decided case of this court has been brought to our notice wherein the constitutional validity of such provisions may have been put in issue on the ground of violating the freedom of religion under Article 25 or the freedom of personal life and liberty under Article 21. Such a challenge was never laid before this Court apparently because of its futility. However, a few decisions by the High Courts may be noticed. In Badruddin Vs. Aisha Begam, 1957 ALJ 300, the Allahabad High Court ruled that though the personal law of muslims permitted having as many as four wives but it could not be said that having more than one wife is a part of religion. Neither is it made obligatory by religion nor is it a matter of freedom of conscience. Any law in favour of monogamy does not interfere with the right to profess, practise and propagate religion and does not involve any violation of Article 25 of the Constitution.
In Smt. R.A. Pathan Vs. Director of Technical Education & Ors. - 1981 (22) GLR 289, having analysed in depth the tenets of Muslim personal law and its base in religion, a Division Bench of Gujarat High Court held that a religious practice ordinarily connotes a mandate which a faithful must carry out. What is permissive under the scripture cannot be equated with a mandate which may amount to a religious practice. Therefore, there is nothing in the extract of the Quaranic text (cited before the Court) that contracting plural marriages is a matter of religious practice amongst Muslims. A bigamous marriage amongst Muslims is neither a religious practice nor a religious belief and certainly not a religious injunction or mandate. The question of attracting Articles 15(1), 25(1) or 26(b) to protect a bigamous marriage and in the name of religion does not arise.
In Ram Prasad Seth Vs. State of Uttar Pradesh and Ors. (1957 L.L.J. (Vol.II) 172 = AIR 1961 Allahabad 334) a learned single Judge held that the act of performing a second marriage during the lifetime of one's wife cannot be regarded as an integral part of Hindu religion nor could it be regarded as practising or professing or propagating Hindu religion. Even if bigamy be regarded as an integral part of Hindu religion, the Rule 27 of the Government Servants' Conduct Rules requiring permission of the Government before contracting such marriage must be held to come under the protection of Article 25(2)(b) of the Constitution.
The law has been correctly stated by the High Court of Allahabad, Bombay and Gujarat, in the cases cited hereinabove and we record our respectful approval thereof. The principles stated therein are applicable to all religions practised by whichever religious groups and sects in India. In our view, a statutory provision casting disqualification on contesting for, or holding, an elective office is not violative of Article 25 of the Constitution.
Looked at from any angle, the challenge to the constitutional validity of Section 175 (1)(q) and Section 177(1) must fail. The right to contest an election for any office in Panchayat is neither fundamental nor a common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications enacted by legislation. It may be permissible for Muslims to enter into four marriages with four women and for anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he likes but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one. What is permitted or not prohibited by a religion does not become a religious practise or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does.
If anyone chooses to have more living children than two, he is free to do so under the law as it stands now but then he should pay a little price and that is of depriving himself from holding an office in Panchayat in the State of Haryana. There is nothing illegal about it and certainly no unconstitutionality attaches to it.
Some incidental questions It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two, are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out. It was also submitted that the impugned disqualification would hit the women worst, inasmuch as in the Indian society they have no independence and they almost helplessly bear a third child if their husbands want them to do so. This contention need not detain us any longer. A male who compels his wife to bear a third child would disqualify not only his wife but himself as well. We do not think that with the awareness which is arising in Indian women folk, they are so helpless as to be compelled to bear a third child even though they do not wish to do so. At the end, suffice it to say that if the legislature chooses to carve out an exception in favour of females it is free to do so but merely because women are not excepted from the operation of the disqualification it does not render it unconstitutional.
Hypothetical examples were tried to be floated across the bar by submitting that there may be cases where triplets are born or twins are born on the second pregnancy and consequently both of the parents would incur disqualification for reasons beyond their control or just by freak of divinity. Such are not normal cases and the validity of the law cannot be tested by applying it to abnormal situations. Exceptions do not make the rule nor render the rule irrelevant. One swallow does not make a summer; a single instance or indicator of something is not necessarily significant.
Supreme Court of India
Sri Adi Visheshwara Of Kashi ... vs State Of U.P. And Ors on 14 March, 1997
The question is ; whether Sri Kashi Vishwanath temple is a denominational Temple and whether the Act interferes with freedom of conscience and the right to profess, practice and to propagate religion of one's choice and whether the devotees of Lord Vishwanath are members of religious denomination and shall have the fundamental right to manage its affairs in the matter of religion guaranteed under Articles 25 and 26 of the Constitution or to administer the properties of the Temple in accordance with law? In the Law Lexicon by P. Ramanatha Iyer (1987 Reprint Edition) at page 315, the author says that "denomina-tion" means a class or collection of individuals called by the same name; a sect; a class of units; a distinctively named church or sect as clergy of all denominations. The maxim Denominatio est a digniore means "Denomination is from the more worthy" (Burrill). "Denominate fieri debet a dignioribus" another maxim means "denomination should be deduced from the more worthy" (Wharton Law Lexican). "Denomine proprio non est curandum cum in substantia non erretur quia nomina inutabilla sunt res autern immobiles meaning" means "as to the proper name, it is not to be regarded when one errs not in substance; because names are changeable, but things are immutable". (Bouvier Law Dictionary; Ame, Encyc.). in The Commissioner, Hindu Religious Endowments, Madras v, Sri Lakshmindra Thirtha Swamiar of Sri Shirur Math, [1954] SCR 1005, the precise meaning of the word "denomination" had come up for consideration before the Constitution Bench. It was held, following the meaning given in Oxford Dictionery, that the word 'denomination' means a collection of in-dividuals or class together under the same name a religious group or body having a common faith and organisation and designated by a distinc-tive name. On the practices of the Math, the meaning of the connotation 'denomination' in that behalf, it was held that each such sect or special sects who founded by their organiser generally by name be called a religious denomination as it is designated by distinctive name in many cases. It is the name of the founder and has common faith and common spiritual organisation: Article 26 contemplates not merely a religious denomination but also a section thereof. Therefore, it was held that Shimr Math was a religious denomination entitled to the protection of Article 26. In The Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. [1962] 1 SCR 383, another Constitution Bench considering the ratio laid in Shirur Math's case explained Sri' Venkataramana Devaru's case [1958] SCR 895 and had laid down that the words "religious denomination" under Article 26 of the Constitution must take their colour from the word religion and if this be so the expression religious denomination must also specify three conditions, namely it must be (1) a collection of religious faith, a system of belief which is conducive to the spiritual well-being i.e., a common faith; (2) common organisation; (3) a desig-nation by a distinctive name. Therein, the endowment to the tomb of Hazrat Khwaja Moin- ud-din Chishti of Ajmer, under the Khadims Dur-gah Khwaja Saheb Act, 1955 was challenged by the respondents as violative of their fundamental rights under Articles 25, 26, 19(1)(f) and (g) of the Constitution. This Court had held that Hazrat Moin-ud-din Chishti tomb was not confined to Muslims alone but belonged to all communities, i.e., Hindus, Khwaja and Parsies Who visit the tomb out of devotion for the memory of departed soul and it is a large circle of pilgrims who must be held to be the beneficiary of the endowment made to the tomb. Considered from that perspective, it was held that the right to receive offerings was not affected or prejudiced by the Act, though they had a right to worship in accordance with their faith. Article 26 requires to be carefully scrutinised to extend protection and it must be confined to such religious practices as are an essential and integral part of it and no other. The management of the properties was in the hands Of the officers. Article 26 does not create rights in any denomination or a section which it never had. It merely safeguards and guarantees the Continuance of a right which such denomination or the section had. If the denomination never had the right to manage property in favour of a denominational institution as per reasonable terms on which the endowment was created, it cannot be had to have it. It had not acquired the said right as a result of Article 26 and that the practice and the custom prevailing in that behalf which obviously is consistent which the terms of the endowment should not be ignored. The Act cannot be treated as illegal and the administration and management should be given to the denomina-tion. Such a claim is inconsistent with Article 26. In Bramchari Sidheswar Shai & Ors. v. State of West Bengal & Ors., [1995] 4 SCC 646, the relevant facts were that the Ramakrishna Mission had established educational institutions to which approval and affiliation were granted by the Govern-ment and the University. The dispute arose as regards the composition of the Government Body, viz., whether the Governments nominee would be associated on a standard pattern? Ramakrishna Mission claimed "minority" status being a denomination. In that perspective, this Court While rejected the claim of the Mission as a minority institution under Article 30(1), upheld its denominational character within the meaning of Article 26(a) of the Constitution. It was held that it being a denomination was entitled to administer the educational institutions. Therein, the vires of the statute did not come up for consideration in the context of the followers of Sri Ramakrishna who are professing the line of teachings and doctrines of Sri Ramakrishna. The followers were considered, to be a denominational section of the citizens. The ratio therein, therefore, does not apply to the facts of the present ease.
In State of Rajasthan v. Sajjanlal Panjawat & Ors., [1974] 1 SCC 500, Section 52 of the Rajasthan Public Trust Act was challenged as ultra vires Articles 25 and 26 offending the denominational right to manage their Jain Temple properties; namely, by the Jain denomination. The management of the Temple of Rikhabdevji with its properties, was vested in the rulers of Udaipur before the Constitution of India came into force. The rights which the jains or any one of the Jain denomination namely, Swetamber or Pitamber or both, have had in the Temple or its management in the pre-Constitution period, vested in the State; they cannot claim right to its management under the Act. Following the ratio in Durgah Committee of Ajmer case, it was held that the right to acquire any property by religious denomination is different from the right to manage its own affairs in matters of religion. Latter is a fundamental right which cannot be taken away by the legislature; the former can be regulated by the law which the legislature can validly enact.
The question, therefore relates to only administration of properties belonging to the religious group or institution. They are not matters of religion to which Article 25 or 26 gets attracted. Article 26 does not protect the right to management and they are not entitled to the management. In Bira Kishore Deb v. State of Orissa, AIR (1964) SC 1501, another Constitu-tion Bench had held that Section 6 of Sri Jagannath Temple Act, 1954 extinguishes the hereditary right of the Raja and entrusts secular manage-ment of the Temple of Lord Jagannath at Puri to the Committee of which he remains the Chairman. The superintendence of the Temple is not the property. It carried no beneficial interest or enjoyment of the property with it. The right was not acquired by the State. The whole of the right to mange the Temple was extinguished and in its place another body for the purpose of administration of the properties to the Temple was created. In other words, the affairs of the functionary are brought to cm end and another functionary had come into existence in its place. Such process cannot be said to constitute the acquisition or extinguishment of office or the vesting of the right in such persons holding that office (emphasis supplied). In that context, it was contended that the Act interfered with religious affairs of the Temple offending Article 19(1) of the Constitution. The contention was rejected, The contention that it is a denominational Temple was also not accepted. In S.P. Mittal v. Union of India, AIR (1983) SC 1, the Constitution Bench was to consider whether Auroville (Emergency Provisions) Act was viola-tive of Article 26 of the Constitution. Considering the speeches and writings of Sri Aurobindo on religious beliefs, it was held that it was not a religious denomination. The Act was incidental to the proper administration. It was not violative of Articles 25 and 26 of the Constitution.
The right to establish and maintain institutions for religious and charitable purposes or to administer property of such institutions in ac- cordance with law was protected only in respect of such religious denomination or any section thereof which appears to extend help equally to all arid religious practice peculiar to such small or specified group or section thereof as part of the main religion from which they got separated. The denominational sect is also bound by the constitutional goals and they too are required to abide by law; they are not above law. Law aims at removal of the social ills and evils for social peace, order, stability and progress in an egalitarian society. In A.S. Narayana Deekshitulu v. State of A.P., [1996] 9 SCC 548, a Bench of this Court (to which one of us, K. Ramaswamy, J., was a member) considered in extenso the entire case law in the context of abolition of the hereditary rights of archakas arid mathadipatis (trustees) and of the attached right to share in the offerings, plate collections etc: and appointment of Executive Officer to religious institution and endowment under A.P. Charitable and Hindu Religious Institutions and Endowments Act, 3987 (for short, the "A.P, Act"). There is a difference between secularism and secularisation. Secularisation essen- , tially is a process of decline in religious activity, belief ways of thinking and in restructuring the institution. Though secularism is a political ideology and strictly may not accept any religion as the basis of State action or as the criterion of dealing with citizens, the Constitution of India seeks to synthesise religion, religious practice or matters of religion and secularism. In secularising the matters of religion which are not essentially and integral-ly parts of religion, secularism, therefore, consciously denounces ail forms of supernaturalism or superstitious beliefs or actions and acts which are not essentially or integrally matters of religion or religious belief or faith or religious practices. In other words, non-religious or anti-religious prac-tices are antithesis to secularism which seeks to contribute in some degree to the process of secularisation of the matters of religion or religious practices. For instance, untouchability was believed to be a part of Hindu religious belief. But human rights denounce it and Article 17 of the Constitution of India abolished it and its practice in any from is a constitu-tional crime punishable under Civil Rights Protection Act, Article 15(2) and other allied provisions achieve the purpose of Article 17.
The '.religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community lift and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Article 25 and 26, therefore, strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaran-teed freedom of conscience to commune with his Cosmos/Creator and realise his spiritual: self. Sometimes. practices religious of secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because under the provisions of the ancient Smriti, human actions from birth to death and most of the individual actions from day-to-day are regarded as religious in character in one facet or the other. They sometimes claim the religious system or sanctuary and seek the clock of constitutional protection guaranteed by Articlse 25 and 26
The protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They extend also to acts done in furtherance of religion and, therefore, they contain a guarantee for rituals and observan- ces, ceremonies and modes of worship which are integral parts of the religion. In Seshammal case on which great reliance was placed and stress was laid by counsel on either side, this Court while reiterating the impor- tance of performing rituals in temples for the idol to sustain the faith of the people, insisted upon the need for performance of elaborate ritual ceremonies accompanied by chanting of mantras appropriate to the Deity. This Court also recognised the place of an archaka and had held that the priest would occupy place of importance in the performance of ceremonial rituals by a qualified archaka who would observe daily discipline imposed upon him by the Agamas according to tradition, usage and customs ob-tained in the temple. Shri P.P. Rao, learned senior Counsel also does not dispute it. It was held that Articles 25 and 26 deal with and protect religious freedom. Religion as used in those Articles requires restricted interpreta- tion in etymological sense, Religion undoubtedly has its basis in a system of beliefs which are regarded by those who profess religion to be con- ducive to the future well-being. It is not merely a doctrine. It has outward expression in acts as well. It is not every aspect of the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with. Every mundane and human activity is not intended to be protected under the Constitution in the grab of religion. Articles 25 and 26 must be viewed with pragmatism. By the very nature of things it would be extremely difficult, if not impos-sible, to define the expression "religion" or "matters or religion" or "religious beliefs or practice". Right to religion guaranteed by Articles 25 and 26 is hot absolute of unfettered right to propagate religion which is subject to legislation by the State limiting or regulating every non-religious activity. The right to observe and practice rituals and right to manage in matters of religion are protected under these Articles. But right to manage the Temple or endowment is not integral to religion or religious practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious practices which are integral part of religion are protected. It is well settled law that administration, management and government: of the religious institution or endowment are secular activities and the State could regulate them by appropriate legislation. This Court upheld the A.P. Act which regulated the management of the religious institutions and endowments and abolition of heriditary rights and the right to receive offerings and plate collections attached to the duty.
It would, therefore, be necessary to consider whether the Act infr-inges the right of the Hindus who believe in Shaiva form of worship. In A.S. Narayan Deekshitulu's case (supra) this Court pointed out that in matters of performing pooja in Shiva Temple,, 28 agamas are applicable whereas in Vaishnava Temples Pancharatna agama contain elaborate rules regulating how the Temple would be constructed, whereat the principal deity is to be consecrated, whereat the other idols are to be installed and what would be the place where the worshippers would stand and worship the Deity. Accordingly, in paragraph 5, it was held that to integrate the people, all people are entitled to participate in all forms of worship. The only prohibition was as to the entry into sanctum sanctorum in which the Priest would be entitled to enter. The form of worship and absence of prohibition for devotees to enter the sanctum sanctorum in the temple has already been pointed out and needs no reiteration.
Thus, it could be seen that every Hindu whether a believer of Shaiva form of worship or of Pancharatna form of worship, has a right of entry into the Hindu Temple and worship the Deity, Therefore, the Hindu believers of Shaiva form of worship are not denominational worshippers. They are part of the Hindu religious form of worship. The Act protects the right to perform worship, rituals or ceremonies in accordance with estab-lished custom and practices. Every Hindu has right to enter the Temple, touch Linga of Lord Sri Vishwanath and himself perform the worship. The State is required under the Act to protect the religious practices of Hindu form of worship of Lord Vishwanath, be it in any form, in accordance with Hindu Sastras, the customs or usage obtained in the temple; It is not restricted to any particular denomination or sect. Believers of Shaiva form of worship are not a denominational sect or section of Hindus but they are Hindus as such. They are entitled to the protection under Articles 25 and 26 of the Constitution. However, they are not entitled to the protection, in particular, of clauses (b) and (d) of Article 26 as a religious denomination in the matter of management, administration and governance of the temples under (he Act. The Act, therefore, is not ultra vires Articles 25 and 26 of the Gonstitution.
It is then contended that abolition of the right to manage the Temple as Mahant is offensive of their right to religious practice and management of the Temple. This controversy is no longer res integra. This Court in Pannalal Bansilal Pitti v. State of A.P., [1996] 2 SCC 498, was to decide the validity of the provisions of the A.P. Act in the matter of abolishing the right Of hereditary trustees and appointment of the Executive Officer and non-hereditary trustee, in Sri Sri Sri Lakshamana Yatendrulu v. State of A,P., [1996] 8 SCC 705 this Court was to decide the constitutionality of Sections 50 to 55 of the said A P. Act dealing with action against erring Mathadhipati, maintenance of accounts and removal of Matadhipati for misconduct and filling up of the resultant vacancies. After elaborate con- sideration, the provisions were upheld as valid and constitutional. Diverse provisions of the A.P. Act, 1987 were upheld. We need not reiterate them once over and to avoid burdening the judgment, we adopt the reasons given therein and agree with the same. For the same reasons, the need to examine in detail aforequoted provisions is obviated. Accordingly, we hold that the contention that some of the persons have customary and hereditary rights as archakas and that the Act extinguishes their rights and so is violative of Article 25 and 26 (b) and (d) of the Constitution, is untenable and devoid of substance.
The further contention that the impugned Act is overboard and is vitiated with vice of discretionary power without any supervision or guidelines and is ultra vires, is devoid of any force. The Act has carefully formulated different principles, applied the same in the matter of nomina-tion of the members of the Board, appointment of the Executive Commit-tee, the staff and proper and efficient management of the Temple. Even the discretionary powers are well within the parameters laid under the Act. Even assuming that if any action is found to be in excess of the Statutory conferment of the power of wanting in quality that would be an individual case which may be liable to challenge in an appropriate proceeding and for that reason the Act cannot be declared as ultra virus, In view of the finding that Lord Sri Vishwanath Temple is not a denominational Temple and Hindus as such are not denomination/sec-tion/sect nor the appellants are denominational worshippers, the conten-tion that Sections 6 and 3 cannot be read down so as to make the appellants as members of the Board under Section 6 of the Act. is without any force, Similarly, it is difficult to accede to the contention that Section 6 must be read down to include those persons who profess denominational Hindu Shivaites practising as members of the Board. Equally, Sections 20(1) and (2) cannot be read down so as to give wider powers to the "archaka" defined in Section 4(2). Equally, Sections 22(2), 23(2)(b), 24(2) and 25(8) cannot be read down so as to confer functional and financial respon-sibilities on the archaka. Thus considered, we hold that the Act does not suffer from any invalidity except to the extent indicated in the judgment.
106. The term „morality‟ occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. We must remember that when there is a violation of the fundamental rights, the term „morality‟ naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution.
Supreme Court of India
Indian Young Lawyers Association vs The State Of Kerala on 28 September, 2018
107. In Manoj Narula (supra), this Court has reflected upon the predominant role that the concept of constitutional morality plays in a democratic set-up and opined thus:
“The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality.”
108. That apart, this Court, in Government of NCT of Delhi v. Union of India and others29, observed thus:
“Constitutional morality in its strictest sense of the term implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the constitutional fundamentals. This duty imposed by the Constitution stems from the fact that the Constitution is the indispensable foundational base that functions as the guiding force to protect and ensure that the democratic setup promised to the citizenry remains unperturbed.”
109. Elaborating further, in Navtej Singh Johar and others v. Union of India and others30, this Court observed:
“The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.” (2018) 8 SCALE 72 (2018) 10 SCALE 386 And again:
“115. The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality”
110. The right guaranteed under Article 25(1) has been made subject to, by the opening words of the Article itself, public order, morality, health and other provisions of Part III of the Constitution. All the three words, that is, order, morality and health are qualified by the word „public‟. Neither public order nor public health will be at peril by allowing entry of women devotees of the age group of 10 to 50 years into the Sabarimala temple for offering their prayers. As regards public morality, we must make it absolutely clear that since the Constitution was not shoved, by any external force, upon the people of this country but was rather adopted and given by the people of this country to themselves, the term public morality has to be appositely understood as being synonymous with constitutional morality.
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