This will gladden saviours of cows!

 SOMETIMES A court ruling of immense legal, constitutional and social significance escapes the limelight. Like a recent Supreme Court decision which upturned a 1959 apex court ruling in the case of Mohd Hanif Qureshi vs State of Bihar, which had laid down that a ban on the slaughter of the cow’s progeny—old bulls and bullocks—was unconstitutional because it amounted to imposing an “unreasonable restriction” on the fundamental right of the butchers to carry on their profession.

As for the backdrop, slaughter of cow and its male or female calves was earlier restricted in Gujarat, but that of old bulls and bullocks, above 16 years, was permitted. However, in 1994, Gujarat amended the law, banning slaughter of the cow as well as all her progeny, irrespective of the age factor. This meant that the earlier permitted slaughter of even old bullocks and bulls, above 16 years, too, stood prohibited.

Butchers’ organisations assailed it as being violative of their fundamental right to carry on their profession. The Constitutional Bench of the Gujarat High Court upheld their plea. It ruled that banning the slaughter of even old bulls and bullocks, above the age of 16 years, imposed an “unreasonable restriction on the fundamental right” of the butchers to carry on their profession and was, therefore, unconstitutional.

The Gujarat government moved the Supreme Court in appeal. The butchers’ organisations, however, stuck there also to the earlier 1959 apex court ruling in Mohd Hanif Qureshi case which had invalidated a ban on the slaughter of old bulls and bullocks.

The 1959 ruling, consistently followed by the apex court in subsequent cases of the same nature, it was pleaded, had enunciated the correct constitutional position vis-à-vis the fundamental right of the butchers to carry on their profession, and so deserved no upturning.

The seven-judge Constitution bench of the apex court looked into the issue in the changed circumstances since 1959, particularly in the light of the chapter on Fundamental Duties, incorporated in the Constitution in the mid-1970s. In other words, did the 1959 ruling in the Qureshi case still hold good? 

At the end, the apex court’s six-judge majority judgement, delivered by the then CJI Lahoti (State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat CCSC 2005 (3) 1650) set aside the Gujarat High Court judgement. And in doing so, it heavily banked on the Directive Principle, as contained in the Constitution’s Article 48, and also on the Fundamental Duty, incorporated in Article 51A (1)(g) in the mid-1970s. 

The Directive Principle under Article 48 enjoins the State to take steps for “preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle”.  Then, the Fundamental Duty under Article 51A (1)(g) obligates every citizen “to have compassion for living creatures”, which, in its wider fold, embraces the category of cattle spoken of specifically in Article 48.

In the light of these two Articles, the majority judgement said, it would be “an act of reprehensible ingratitude to condemn a cattle in its old age as useless and send it to a slaughter house, and take away the little time from its natural life that it would have lived, forgetting its service for the major part of its life during which it had remained milch or draught”.

“Bullocks and bulls,” it said, “do not become useless, because till the end of their lives, their excreta are extremely useful for production of bio-gas and manure, and even after their death, they supply hide and other accessories.” Butchers are still free to carry on their profession by slaughtering cattle other than the cow and its progeny. The Directive Principle (Article 48), which persuaded Gujarat to impose the impugned ban, does not thus suffer from any conflict with the butchers’ Fundamental Right to carry on their profession, it added. 

However, in a dissenting judgement, Justice AK Mathur held there were no “compelling reasons” to reverse the earlier legal position in the 1959 Qureshi case. For cow lovers, fighting in other states for a total ban on the slaughter of cow and its entire progeny, the apex court verdict surely comes as a great morale booster.