Appellants: State of Gujarat Vs. Respondent: MirzapurMotiKureshiKassabJamat and Ors.

AND

Appellants: Shree Ahimsa Army ManavKalyanJeevDaya Charitable Trust
Vs. Respondent: MirzapurMotiKureshiKassabJamat, Ahmedabad and Ors.
[Alongwith Civil Appeal No. 4945 of 1998] Decided On: 26.10.2005

Acts/Rules/Orders:
Bombay Animal Preservation (Gujarat Amendment) Act, 1994 – Sections 2 and 4; Bombay Animal Preservation Act, 1954 – Sections 5, 5(1), 5(1A) and 5(2); Bombay Animal Preservation Act, 1948 – Sections 5, 5(1), 5(2), 5(3) and 6; Bombay Animal Preservation (Gujarat Extension and Amendment) Act, 1961 – Section 4; Saurashtra Animal Preservation Act, 1956; Bombay Animal Preservation (Gujarat Amendment) Act, 1979; Constitution of India – Articles 14, 19, 19(1), 19(2) to 19(6), 25, 25(1), 31C, 37, 39, 47, 48, 48A, 51A, 141 and 145(3); Bombay Animal Preservation (Gujarat Amendment) Ordinance, 1993; Bihar Preservation and Improvement of Animals Act, 1956; Uttar Pradesh Prevention of Cow Slaughter Act, 1955; Central Provinces and Berar Animal Preservation Act, 1949; Madhya Pradesh KrishikPashuParirakshan (Sanshodhan) Adhiniyam, 1991; Constitution of India (Forty-second Amendment) Act, 1976 – Articles 48A and 51A; Madhya Pradesh Municipal Corporation Act; Madhya Pradesh Agricultural Cattle Preservation Act, 1959; Madhya Pradesh Agricultural Cattle Preservation (Amendment) Act, 1991; Companies Act, 1862; Fines and Recoveries Act, 1833; Prescription Act 1832

Case Note:

Constitution — Amending Act — Validity of — Bombay Animal Preservation Act of 1954 (Bombay Act); Bombay Animal Preservation (Gujarat Amendment) Act 1994 (Amendment Act) — In order to conserve cattle population of Bombay, State Government enacted the Bombay Animal Preservation Act 1948 (Act) prohibiting slaughter — Act was substituted by Bombay Animal Preservation Act of 1954 (Bombay Act) — State of Gujarat was formed in 1960 — Gujarat Legislature enacted the Bombay Animal Preservation (Gujarat Extension and Amendment) Act 1961 (‘1961 Act’) through which Bombay Act was extended to State of Gujarat — Various amendments followed till enactment of the present impugned Act, Bombay Animal Preservation (Gujarat Amendment) Act 1994 (Amendment Act) — The Bombay Act of 1954 referred to as ‘the principal Act’ was further amended by Section 2 of the amending Act— Constitutional validity of Amendment Act was put in issue by four writ petitions filed in the High Court which were heard and disposed of by a common judgment— High Court allowed the writ petitions and struck down the impugned Amending Act — High Court held that the Amendment Act imposed an unreasonable restriction on the fundamental rights and therefore, it was ultra vires the Constitution— Effect of the judgment of the High Court as summed up by the Judges would be that there would not be a total ban on the slaughter of bulls or bullocks above the age of 16 years — Feeling aggrieved, the appellants filed these appeals — By a three judge Judge Bench of this Court, before which the appeals came up for hearing, the matter was directed to be placed for hearing before a Constitution Bench — Hence, present appeal — Held, firstly, impugned enactment enables the State in its endeavour to protect and improve the environment within the meaning of Article 48A of the Constitution — Secondly, three propositions are well settled: (i) ‘restriction’ includes cases of ‘prohibition’; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right — Thirdly, in the present case, we find the issue relates to a total prohibition imposed on the slaughter of cow and her progeny. The ban is total with regard to the slaughter of one particular class of cattle. The ban is not on the total activity of butchers (kasais); they are left free to slaughter cattle other than those specified in the Act. It is not that the writ petitioner-respondents survive only by slaughtering cow progeny. They can slaughter animals other than cow progeny and carry on their business activity — Though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of the general public, yet, in the present case, banning slaughter of cow progeny is not a prohibition but only a restriction — Thus, Amendment Act intra vires — Appeals allowed