Hashmattullah
Vs. State of Madhya Pradesh & Ors [1996] INSC 716 (10 May 1996)
N.P.
Singh, B.N. Kirpal Kirpal,J.
ACT:
HEAD NOTE:
Leave
granted.
The
challenge in this is to the validity of the M.P. Krishik Pashu Parirakshan (Sanshodhan)
Adhiniyam, 1991 (hereinafter referred to as the `Amending Act') by virtue of
which a total ban has been imposed on the slaughter of the bulls and bullocks
in the State of Madhya
Pradesh.
The
appellant is engaged in the butcher's trade in Jabalpur and, according to him, he mainly slaughters bulls and
bullocks which are unfit either for breeding, draught or milch purpose. These
animals are slaughtered only after they are certified as fit for slaughter by
the Municipal Corporation of Jabalpur in
the State of Madhya
Pradesh, which has a
meat market where the meat is sold under a licence granted by the Corporation.
It is alleged that the appellant's family is engaged in the butcher's trade for
the past several generations and this vocation is the only source of livelihood
of the family.
Prior
to the passing of the amending Act, sub-section (1) of Section 4 of the M.P.
Agriculture Cattle Preservation Act, 1959 prohibited slaughter of certain types
of agriculture cattle. This provision was as under:-
"4.
PROHIBITION OF SLAUGHTER OF AGRICULTURAL CATTLE
(1)
Notwithstanding anything contained in any other law for the time being in force
or i any usage or custom to the contrary, no person shall slaughter of cause to
be slaughtered or offer or cause to be offered, for slaughter:-
(i) cows,
calves of cows, calves of she buffalo or;
(ii)
any other agriculture cattle unless he has obtained in respect of such cattle a
certificate in writing issued by the Competent Authority for the area in which
the cattle is to be slaughtered, that the cattle is fit for slaughter.
By the
Amending a new sub-section (1) of Section 4 of the Principal Act was inserted
which reads as follows:- "(1) Notwithstanding anything contained in any
other law for the time being in force or in ay usage or custom to the contrary,
no person shall slaughter or cause to be slaughtered or offer or cause to be
offered, for slaughter:
a) cow,
calf of cow, calf of she- buffalo, bull or bullock; and
b) any
other agricultural cattle unless he has obtained in respect of such cattle a certificate
in writing issued by the Competent Authority for the area in which the cattle
is to be slaughtered that the cattle is fit for slaughter." Sub-section
(2) to (5) remained unaltered.
The unamended
Section 4(1) by sub-clause (i) had imposed an absolute ban on the slaughter of
cows, calves of cows, or calves of she-buffalo, but other agriculture cattle
like male and female buffaloes, bulls and bullocks could be slaughtered only on
the receipt of a certificate in writing by the Competent Authority to the
effect that the cattle was fit for slaughter. As a result of the amendment
introduced by the Amending Act bulls and bullocks have been added to sub-clause
(a) of sub-section (1) of Section 4 with the result that an absolute ban on
slaughter of bulls and bullocks has also been imposed. notwithstanding the fact
that the said animals may have ceased to be draught animals or may have become
permanently incapacitated for work or breeding or for any other purposes.
The
appellant challenged the Amending Act of 1991 by filing a writ petition in the
High Court of Madhya Pradesh at Jabalpur. The contention of the appellant was that the Amending Act violated the
appellant's fundamental right under Article 19(1)(g) of the Constitution of
India and the restriction now placed were unreasonable and not in public
interest. It was also the case of the appellant that the presence of a large
number of old and useless animals was bad for the economy and the banning of
the slaughter of bulls and bullocks was actually in violation of the duty cast
on the State by Article 48 of the Constitution. It was also contended that
there was shortage of fodder in the State of Madhya Pradesh and that preservation of bulls and bullocks above the age
of 15 years, which had ceased to be useful for breeding, draught and other
purposes, will have deleterious effect on the agricultural economy of the
State.
It was
also submitted that not only will the preservation of these useless animals put
a pressure on the scant food and fodder available in the State but such animals
will also become a menace to the standing crop as these useless animals are not
cared for by the owners and allowed to stray. The appellant sought to give
facts and figures in an effort to show that the absolute ban on the slaughter
of bulls and bullocks was neither in the public interest nor was it a
reasonable restriction on the fundamental right of the appellant guaranteed
under Article 19 (1) (g) of the Constitution of India.
The
respondents sought to justify the validity of the amending Act by referring to
its statement of objects and reasons and contending that the bulls and bullocks
ought not be slaughtered. The aforesaid objects and reasons were as follows:-
" The economy of the State of Madhya Pradesh is still predominantly agriculture. In the Agriculture
section, use of animals for milch. draught, breeding of agricultural purposes
preponderates. It has, therefore, become necessary to emphasis preservation and
protection of agricultural animals by dealing more stringently with slaughter
of cattle than before. Viewed in this perspective, the amendment proposed to
encompass calf of she buffalo or bull or bullock within the mischief of the
basic provision of this enactment can be said to have a reasonable nexus to the
purpose originally stated for the legislation. What with the growing adoption
of non-conventional energy source like bio-gas plants, even waste-materials
have come to achieve considerable value. In this backdrop, yielding, milk or
breeding or working as draught animals can not any more be said to be useless. That
being so, there can be no doubt about the proposed amendment which is to cover
such animals through this legislation being reasonable in the interest of the
general pubic. This legislation is aimed at implementing the object of Article
48 of the Constitution of India." The Division Bench of the Madhya Pradesh
High Court at Jabalpur, after referring to the decisions of this Court in
Madhya Pradesh and Ors., 1970 (1) SCR 156 observed that the ration of these decisions
was that "if bulls and bullocks are useful then ban on their slaughter is
within the competence of the legislature, as the legislation falls under clause
(6) of Article 19 of the Constitution of India, imposing reasonable
restrictions on the fundamental right to carry on trade, occupation or
business. However, a total ban is not permissible if under economic conditions
keeping a useless bull or bullock will be a burden on the society and therefore
not in the public interest". The High Court then referred to statements
made in a research paper published from Germany in 1987, which referred to the availability to the farmer of cattle
dung for fuel and manure. It also referred to All India Statistics 1989
published by C.M.I.E.
which
had suggested that there should be effective programme for conservation of soil
and water and promotion of organic manure to safeguard and strengthen the
ecological structure of agriculture. The High Court also referred to some other
publications of different authors for the purpose of concluding that there was
no acute shortage of cattle fodder and that it was better to use the cattle
dung as a manure rather than using chemical fertilizers. It then came to the
conclusion that bulls and bullocks were useful animals and the ban on the
slaughter was in consonance with social interest. It also observed that it was
the courts' duty to give harmonious construction to the directive principles
and duties vis-a-vis the fundamental rights and Article 51-A(g) imposed the
duty on every citizen "to have compassion for living creature" and,
therefore, applying the rule of harmonious construction the Amending Act of
1991 fell within the ambit of Article 19 (6) of the Constitution. The High
Court accordingly upheld the validity of the Amending Act.
The
main thrust of the argument on behalf of the appellant in this appeal is that
the Amending Act is yet another attempt by the State of Madhya Pradesh to
impose a total ban on the slaughter of bulls and bullocks notwithstanding the
fact that similar attempts, made earlier, had failed, Relying upon the above
mentioned decisions of this Court, it was contended by Mr. G.L.
Sanghi,
learned Senior counsel for the appellant, that the point in issue, namely,
whether there could be an absolute ban on the slaughter of bulls and bullocks,
stood concluded in favour of the appellant by a series of judgments of this
Court and, therefore, the High Court ought to have upheld the appellant's
contention.
On
behalf of the respondents reliance was placed on some articles and research
paper in order to show that even after the bulls and bullocks have ceased to be
draught animals, they are still useful. The usefulness of these bulls and
bullocks was sough to be established by reference to some research papers
articles and books in which it was stated that the cattle dung which was
available to the farmers or agriculturists was a source of proving them with
manure as well as bio gas and, in the interest of ecology, it was much better
to use organic manure rather than chemical fertilizers. Reference, in
particular, was made to a paper written by one Mr. Panna Lall Mundhra,
Chairman, Animal Welfare Board of India, in which he mentions that a single old
incapacitated animal provides 4500 Ltrs. of bio gas, 120 tonnes of organic fertilizer,
2000 Ltrs. of organic pesticides, increases they yield of foodgrains by 30 to
40 tonnes per hectare and that if all this was taken into consideration, it
would work out that each bull or bullock earned about Rs. 20,000/-. This is one
of the paper which was taken into consideration by the High Court, in t he
instant case, incoming to the conclusion that bulls and bullocks were useful
animals even after they had become old and, therefore, they should not be
slaughtered.
This
is the fourth attempt by the State of Madhya Pradesh to impose a total ban on the slaughter of bulls and
bullocks even after they become old and useless. The first attempt was the
enactment of C.P. and Berar Animal Preservation Act, 1949. Which placed a total
ban on the slaughter of cows, bulls and bullocks and of all categories of
animals of the species of "bovine cattle". This Act along with of
three other States, namely, Bihar Preservation and Improvement of Animals Act,
1956 and U.P. Prevention of Cow Slaughter Act, 1955, were challenged before
this court in Mohd. Hanif Quareshi's case (supra). The petitioners therein were
butchers and had challenged the validity of the three Acts on the plea that
same infringed their fundamental rights under Articles 14, 19(1) (g) and 25 of
the constitution. After going into all the facets of the case and examining the
usefulness of the cattle in great detail and keeping in mind the availability
of adequate fodder and other relevant facts, this Court held that: (1) total
ban on the slaughter of cows of all ages and calves of cows and of she
buffaloes. male and female, was quite reasonable and valid; (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 were capable of being
used as milch or draught cattle, we also reasonable and valid; (iii) that a
total ban on the slaughter of she buffaloes, bulls and bullocks "cattle or
buffalo" after they ceased to be capable of yielding milk or of breeding
or working as draught animals was not in the interest of the general public and
was invalid. In coming to the conclusion that ban on the slaughter of bulls and
bullocks after they had become useless, was not valid this Court in Mohd. Hanif
Quareshi's case (supra) at page 784 observed as follows:
"The
country is in short supply of milch cattle, breeding bulls and working
bullocks. If the nation is to maintain itself in health and nourishment and get
adequate food, our cattle must be improved. In order to achieve this objective
our cattle population fit for breeding and work must be property fed and what
ever cattle food is now at our disposal and whatever more she can produce must
be made available to the useful cattle which are in present or will in futuro
be capable of yielding milk or doing work. The maintenance the nation's cattle
feed. To maintain them is to deprive the useful cattle of the much needed
nourishment. The presence of so many useless animals tends to deteriorate the
useless animals tends to deteriorate the breed. total ban on the slaughter of
cattle, useful or otherwise, is calculated to bring about a serious
dislocation, though not a compete stoppage, of the business of a considerable
section of the people who are by occupation butchers (kassais), hide merchants
and so on. Such a ban will also deprive a large section of the people of what
may be their staple food. at any rate, they will have to forego the little
protein food which may be within their means to take once to twice in the week.
Preservation of useless cattle by establishment of Gosadans is not, for
reasons, already indicated, a practical proposition. Preservation of these
useless animals by sending them to concentration camps to fend for themselves
is to leave them to a process of slow death and does not good them. On the
contrary, it hurts the best interest of the nation in that the useless cattle drprive
the useful one of a good part of the cattle food, deteriorate the breed and
eventually affect the production of milk and breeding bulls and working
bullocks, besides involving and enormous expense which could be better utilised
for more urgent needs." After the judgment in Mohd. Hanif Quareshi's case
(supra), the second attempt was made enacting Madhya Pradesh Agriculture Cattle
Preservation, 1959 whereby Section 4(2) (a) and Rule 5 prohibited the slaughter
of bull, bullock or buffalo except upon a certificate issued by a competent
authority and such certificate could not issued unless the animal was over 20
years of age and was unit for working or breeding. Similar attempts were made
by the States of Bihar and U.P. which had provided minimum age of 25 and 20
years respectively before the bulls and bullocks could be slaughtered. The Acts
of these three States were challenged in Abdul Hakim's case (supra). This
Court, while allowing the petitions, held that a bull, bullock or buffalo did
not remain useful after it was 15 years old, and whatever little use it may
then have, was greatly offset by the economic disadvantage of feeding and
maintaining unserviceable cattle. The Court took note of the fact that in some
of books it was stated that cows and bullocks may live upto 20 or 25 years, but
it was observed that "the question before us is not the maximum age upto
which bulls and bullocks and buffalo may live in rare cases. The question
before us is what is their average longivity, at what age they become useless,
on this question we think that the opinion is almost unanimous, and the opinion
which the Deputy Minister expresses was not wrong".
The
third attempt to circumvent the judgment in Mohd. Hanif Quareshi's case which
had the effect of imposing a complete ban on the slaughter of bulls and
bullocks within the Jabalpur Municipality was made in the year 1967. Under the bye-laws of the Jabalpur Municipality a licence and to be obtained for the slaughter of bulls and
bullocks. Section 257(3) of the Madhya Pradesh Municipal Corporation Act, 1956,
prohibited the slaughter of animals in places outside the premises fixed by the
Municipality. Under a notification issued in 1948 bye-laws were promulgated
which permitted bulls and bullocks to be slaughtered in premises fixed for the
purpose. By the impuged notification dated 12.1.1967 confirmation of the
aforesaid bye-laws in so far as they related to slaughter of bulls and bullocks
was cancelled.
The
effect of this notification was to prohibit the slaughter of bulls and bullocks
within the limits of Municipality of Jabalpur. Challenging the cancellation of these bye-laws it was
alleged by the petitioners therein that the impuged notification imposed a
direct restriction on their fundamental right under Article 19(1)(g) of the
Constitution. Allowing the writ petition it was observed at page 160 that
"imprisonment of restriction on the exercise of fundamental right may be
in the form of control or prohibition, but when the exercise of a fundamental
right is prohibited, the burden or proving that a total ban on the exercise of
the right alone may ensure the maintenance of the general public interest lies
heavily upon the State".
While
quashing the impugned notification it was observed at page 161 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 sections of the people whose way of life,
belief or thought is not the same as that of the claimant." Now in 1991
the State of Madhya
Pradesh has, once
again, sought to ban the slaughter of bulls and bullocks by enacting the
amending Act. The law now enacted is similar to the one which was quashed by
this Court in Mohd. Hanif Quarishi's case (supra). Having failed to circumvent
the judgment of this Court in Mohd. Hanif's case by fist fixing the minimum age
of bulls and bullocks at 20 years and then when it sought to prohibit the
slaughter of bulls and bullocks within the limits of the Municipality, the
State has chosen. notwithstanding the judgment in Mohd. Hanif's Case (supra),
to impose a complete ban on the slaughter of bulls and bullocks and has sought
to justify its action by referring to the manifold benefits of cattle dung
which would be available to the agriculturists and farmers even from the
useless animals.
Three
different constitution Benches of this Court in Mohd. Hanif's case, Abdul Hakim.'s
case and Mohd. Faruk's case (supra) have held that total ban on slaughter of
bulls and bullocks is ultra vires the constitution. The submission which have
now been made and seem to have found favour with the High Court, with reference
to the usefulness and merits of cattle dung and the part which it plays in the
rural economy, has been dealt with at length by this court in Mohd. Hanif's
case (supra). The right of the butchers to practice their trade has been upheld
in these decisions and because there is a short supply of milch cattle, total
ban on their slaughter was upheld as being a reasonable restriction in the
interest of general public.
But it
was held in no uncertain terms that a total ban on the slaughter of useless
cattle, which involves a wastesful drain on the nation's cattle fodder, which
itself was in short supply and which would deprive the useful cattle of much
needed nourishment, could not be justified as being in the interest of general
public.
Though
some literature was placed on and was sought to be relied upon by the counsel
for the respondent in an effort to show that, with the passage of time, the
position has changed and now the utility of the old bulls and bullocks has
grown. We are not satisfied, as contended by Dr. A.M. Singhvi, learned Senior
Counsel for the respondent, that there is any change in the circumstances or
that the decisions of this Court in the aforesaid three cases require
reconsideration. The consistent view of this Court since 1958 being that total
ban on slaughter of bulls and bullocks which had become old amounted to an
unreasonable restriction on the fundamental rights of the butchers, no
conclusive material has been placed on record to show that the restriction now
placed is to be regarded as reasonable.
Notwithstanding
to the fact that the cattle dung is used for generating bio gas, on a specific
query put to learned counsel for the respondent, no information was available
as to what are the number of bio gas plants which have been installed and which
are in operation and whether the cattle dung available is sufficient or not. Similarly,
no authentic information was given by the learned counsel with regard to the
expense which will have to be incurred by cannot be used as milched cattle or
draught cattle. A fact which cannot be ignored is that no farmer or agriculturaist
who has kept a bull or bullock for a number of years would sell it to a butcher
unless and until it is uneconomic for him to retain that animal. Normally, it
would be only when an animal has become totally useless, and the expenses of
maintaining it outways its utility, that the animal would be sold to a butcher.
Compelling the retention of such animal, by not permitting its sale for being
slaughtered would not be in public interest. It has also not been shown that there
has been any increase in the average age of the bulls and bullocks. We may here
notice that the ban placed on the slaughter of the bull and bullocks below the
age of 16 years in the State of Gujarat by the Bombay Animal Preservation
(Gujarat Amendment) Act, 1979 was upheld because it was observed that because
of the improvement in and more scientific method of cattle breeding, the
usefulness of cattle for breeding, draught and other agricultural purposes was
about the age of 16 years in the State of Gujarat.
Having
concluded that the usual span of life was 16 years, the Constitution Bench of
this court held in Haji Usmanbhai SCC 12 that the prescribed age of 16 years
could be said to be a reasonable restriction on the rights of the appellants
therein to carry on their trade and profession as mentioned in Article 19 (1)
(g) of the Constitution. In reaching this conclusion it was observed at page 18
that the prescription of the age of 16 years could "be said to be
reasonable, looking to the balance which has to be struck between public
interest, which requires useful animals to be preserved and permitting the
different appellants before us to carry on their trade and profession"
[Emphasis added]. This Court, therefore, in Haji Usmanbhai's case (supra) once again
reiterated the principle of striking a balance between the right of the
butchers and the public interest.
The
High Court has referred to and relied upon a number of articles and books
written by different persons in coming to the conclusion that bulls and
bullocks are useful animals, even if they become old, and their slaughter
should be banned. Dr. Singhvi has also sough to rely on some of such documents.
The appellants does not admit that the material relied upon by the High Court
presents the correct picture. Till what age the cattle in question are useful
is normally a question of fact. In deciding such a question the High Court
should have been careful in selecting the material on which it sought to rely.
Every article published or a book written cannot ipso facto be regarded as
conclusive or worthy of acceptance. What is stated therein may only be a view
of the author and may no be based on an data which is scientifically collected
from a reliable source. The Writ Court has
to be very careful in accepting what data should be accepted and relied upon if
there is a bona fide dispute between the parties about the correctness of the
same, as in this case. For example in the instant case not only the High Court
but Dr. Singhvi has also sough to place reliance on an article written by one
Mr. Panna Lall Mundhra, Chairman, Animal Board of India in which he has, inter alia,
stated "the cattle even after stopping the supply of milk gives 3500 Kg.
dung and 2000 litres of urine yearly which in turn supplies 4500 cft. bio-gas,
80 tonnes organic fertilizers, 2000 litres organic pesticides, increases per
hectare yield by 30-40 per cent, fetches higher price for their produce as they
contain more nutrient. All these gain if complied together works out to Rs.
20,000/- per cattle per year to the owner." The aforesaid statement of the
author does not indicate as to from where he has obtained the aforesaid
information or data on the basis of which he has concluded that the gain to an
owner by retaining a cattle which stopped giving the milk is still Rs. 20,000/-
per year. Merely because the article is written in which such a statement is
made cannot be a reason for accepting as correct what is stated therein without
the Court being satisfied as to the basis on which such a conclusion has been
arrived at. Merely because some person has made such vague and unsubstantial
statement in writing can be no ground for concluding that an absolute ban on
the slaughter of useless bulls and bullocks is a reasonable restriction under Articles
19 (o) of the Constitution.
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 insignificant and
unsupportable the ground for bringing the legislation was. The main trust 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 purduce 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 realising 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 or
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.
Prima facie it seems far fetched and yet the State Government thought it as
sufficient to amend the law.
We may
note that just as the respondents have made statements with regard to the
quantity of cattle dung available and the extent of economic benefit which will
be derived by the use of the same, similarly, the appellant has in his writ
petition averred that there is useless cattle will result in large scale
pressure on land an d would decrease the availability of fodder. In our opinion
it is not necessary to got into the correctness of these allegations which have
been considered at length in Mohd. Hanif's case (supra). We see no
justification for the need of reconsideration of the said decision. as was
sough to be suggested.
With
reference to Article 48, on which reliance was also placed by Dr. Singhvi, it
was observed by this Court in Mohd. Hanif Quareshi's case (supra) dealing with
Article 48 as follows:
"The
protection recommended by this part of the directive is, in our opinion,
confined only to cows and calves and to those animals which are presently or
potentially capable of yielding milk or of doing work as draught cattle but
does not, from the very nature of the purpose for which it is obviously
recommended, extent to cattle which at one time were milch or draught cattle
but which ceased to be such." It is clear from the aforesaid observation
that absolute ban on slaughter of bulls and bullocks is not necessary for
complying with Article 48 of the Constitution.
In
view of the aforesaid decisions of this Court the only conclusion which can be
arrived at is that the inclusion of bull of bullock in sub-clause (a) of sub-
section (1) of Section 4 of the Madhya Pradesh Agricultural Cattle Preservation
Act, 1959, brought about by the Amending Act of 1991 has imposed an
unreasonable restriction on the fundamental rights of the appellant and to that
extent only the sub-clause is held to be ultra vires. The effect of this would
be that there would be a total ban on the slaughter of cow, calf of cow and
calf of she buffalo while the slaughter of bull or bullock, along with other
agricultural cattle, shall fall under sub-clause (b) of Section 4(1) of the Act
and they can be slaughtered after complying with provision of the said-clause
and obtaining a certificate contemplated by sub-section (2) of Section 4 of the
said Act.
The
appeal is accordingly allowed. The appellant will also be entitled to costs.
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