M. Karpaga Vinayagam, C.J.
1. Mustafa Quraishi, the petitioner herein, seeking for a declaration that the provisions contained in Sections 3, 5, 6, 7 and 14 of the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005, (herein after called as Jharkhand Act, 2005) are ultra vires to Article 19(1)(g) and Article 21 of the Constitution of India, has filed this writ application before this Court.
2. The short facts leading to the filing of the writ application are as follows:
In the State of Bihar, before bifurcation of the State of Jharkhand, Bihar Preservation and Improvement of Animal Act, 1956, (hereinafter called as the Bihar Act; 1956) was enforceable. Even after enactment of the Bihar Re-Organization Act, 2000, by which the State of Jharkhand has been bifurcated, the Bihar Act, 1956 was applicable to the entire area of Jharkhand in view of Section 85 of the Reorganization Act. Under the Bihar Act, 1956, the legislature sought to prohibit slaughter of cow or its progeny in entirety through Section 3 of the Bihar Act, 1956.
The same was challenged before the Supreme Court in the case of Hanif Quraishi v. State of Bihar reported in : [1959]1SCR629 . Though the Supreme Court through 5 Judges Special Bench upheld the Bihar Act, 1956, holding the same to be intra vires to the Constitution of India, It held that Section 3 of the Bihar Act, 1956, which completely prohibited the cow, bull and bullock to be slaughtered in all forms, was declared illegal. In the said decision, Hon'ble Supreme Court allowed the bull and bullock to be slaughtered after the age of 16 years and the cow was allowed to be slaughtered when it became useless.
Even after the judgment in Hanif Quraishi : [1959]1SCR629 , the State of Himachal Pradesh and the State of Bihar made attempts, by bringing legislation, to put a total ban upon slaughter of cow and its progeny. Hon'ble Supreme Court deprecated the action of those States and affirmed the decision rendered by the 5 Judges Bench, i.e. Hanif Quraishi, : [1959]1SCR629 . Those judgments are 1961 SC 448 (Abdul Hakim v. State of Bihar) and 1970 SC 93 (Mohd. Faruk v. State of M.P.).
Despite the fact that the law laid down by the Supreme Court prohibiting the total ban upon slaughter of cow and its progeny, the Government of Jharkhand in the year 2005 enacted the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005, incorporating Sections 3, 5, 6 and 7, whereby slaughter of cow and its progeny is completely sought to be banned in any form and in all circumstances irrespective of their age. Jharkhand Act, 2005 is sought to be challenged in this writ application for a declaration that it is ultra vires to the Constitution of India.
3. The crux of the submission made by the counsel for the petitioner is as follows:
(a) The State of Jharkhand by enactment of the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005, i.e. Jharkhand Act, 2005, seeking to prohibit slaughter of cow and its progeny, including bull and bullock in entirety irrespective of their age, has completely ignored the law laid down by the Supreme Court in the various judgments from 1956 to 2004, thereby the right of profession guaranteed under Article 19(1)(g) of the Constitution has been done away with.
(b) Under Section 14 of the Jharkhand Act, 2005, while leaving the offence relating to slaughter of cow and its progeny, it provided that it is for the accused to prove that he has not committed the offence. It means that the burden of proof that he has not committed the offence under the Act is on the accused and not on the prosecution. This ultra vires the main Act as well as the Indian Evidence Act.
(c) The State of Jharkhand cannot take the shelter under the recent judgment of the Supreme Court in the case of State of Gujrat v. Mirzapur Moti Qurasi reported in AIR 2005 SCW 5723 rendered by 7 Judges Bench just few days back before the instant enactment was introduced. The said decision would not apply to the present case because the Supreme Court dealt in this case only with regard to the facts and figures of the State of Gujrat and it will not apply to the State of Jharkhand in as much as the State of Gujrat is totally different from the State of Jharkhand in the facts and figures, population and other circumstances. The judgment rendered in State of Gujrat, AIR 2005 SCW 5723, was given only by taking into consideration several facts prevailing in the State of Gujrat on the basis of the affidavits and reports filed by the Gujrat Government in that case and the conditions prevailing in the State of Jharkhand had not been considered. As such, that would not apply to the State of Jharkhand. The State of Jharkhand is populous constituting 2.75 crores of people, out of which more than half are those populous who consumes the beef of the cow or its progeny, which is not the case in the State of Gujrat.
(d) Further the State of Gujrat is rich and healthy State in which all sorts of protection for preservation of animals are taken but that is not the condition prevailing in the State of Jharkhand.
(e) The judgment rendered by the Supreme Court in State of Gujrat AIR 2005 SCW 5723 did not deal with the various ratios decided by the Supreme Court in Hanif Quraishi : [1959]1SCR629 . Therefore, the said judgment is not the judgment in rem but it is the judgment in personam.
(f) Further the Supreme Court dealt with the fundamental rights as well as the directive principles and held that the directive principles of the State Policy is not subservient to the fundamental rights. Thus, the Supreme Court has given weightage to Article 48, 48A and 51A of the Constitution of India, upholding that the cow dung, urine or its utility are more beneficial and in the interest of the general public than consuming the beef thereof. The said judgment does not apply to the State of Jharkhand especially when the Supreme Court held in the said decision that 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 unless and until the uniform law is enacted, the prohibition cannot be enforced effectively. This observation giving suggestion to the Parliament would make it clear that the decision of the Supreme Court would not apply to the other States and it would apply to the State of Gujrat alone.
(g) Further there are various rules framed under the Gujrat Act for preservation of animals by providing food provisions. Even though Section 20 of the Jharkhand Act, 2005, provides for framing of rules, the State of Jharkhand has not taken care to frame those rules. This shows that the purpose of the legislation was only to ban the slaughter of cow and its progeny in its all forms without any exception and under all circumstances, which is arbitrary and unreasonable.
4. In reply to the above submissions, the counsel appearing for the State would contend as follows:
(i) In view of the recent judgment in the case of State of Gujrat v. Mirzapur Moti Qurasi reported in AIR 2005 SCW 5723 delivered by the constitutional Bench of 7 Judges, the total ban on slaughter of cows and its progeny cannot be said to be violative of Article 19(1)(g) of the Constitution and it is no more res integra. It has been categorically held in the said decision that the protection conferred on cow and its progeny is needed in the interest of nation's economy and merely because some dislocation is caused to the butchers, the restrictions imposed on slaughter of cow and its progeny do not cease to be in the interest of general public. Since it refers to the nation's economy, the decision in the case of State of Gujrat v. Mirzapur Moti Qurasi AIR 2005 SCW 5723, is a decision in rem and the principles laid down in the said decision is not only applicable to the State of Gujrat but also to all the States, including the State of Jharkhand and the same is binding precedent under Article 141 of the Constitution of India.
(ii) Section 14 of the Jharkhand Act, 2005, cannot be said to be ultra vires, since it is well within the legislative competence to shift the burden of proof on the person who is prosecuted. From bare perusal of Section 14 of the Act in question, it would be evident that the burden of proof is shifted to the person prosecuted for an offence under the provisions of the Slaughter Act only if the prosecution is in a position to produce the prima facie evidence against such person at the first instance. Thus, under the provision of Section 14, it cannot be said that the entire burden is put on the accused. On the other hand, the prosecution at the first instance has to produce prima facie evidence against the persons concerned for shifting the burden of proof on him. Therefore, the provision of Section 14 of the Jharkhand Act, 2005 cannot be said to be ultra vires.
5. Elaborating these points, both the counsel have argued at length. Several decisions were cited as referred to above by both sides. The written submissions were also filed by both.
6. We have considered their rival contentions urged on behalf of either sides and have given our anxious consideration to the respective submissions.
7. The questions to be answered in the instant writ application are as follows:
(A) Whether imposition of total ban or prohibition on slaughter of bovine animals interferes with the fundamental right of the petitioner, who is Quraishi by profession and it violates the fundamental right as enshrined under Article 19(1)(g) of the Constitution of India ?
(B) Whether the provisions of Section 14 of the Slaughter Act, which shifts the burden of proof upon the person who is prosecuted for an offence under the provisions of the Slaughter Act, can be said to be arbitrary and violative of the provisions of the main Act as well as the Indian Evidence Act?
8. The main contention urged by the counsel for the petitioner is that the judgment of the Hon'ble Supreme Court rendered in the case of State of Gujrat v. Mirzapur Moti Qurasi reported in AIR 2005 SCW 5723 would not apply to the State of Jharkhand and consequently, it is to be held that the said judgment is not a judgment in rem but a judgment in personam. Further argument of the counsel for the petitioner is that the Supreme Court has not dealt with the various ratios decided by the Supreme Court in Hanif Quraishi : [1959]1SCR629 and further the Supreme Court has considered the question only in relation to the conditions prevailing in the State of Gujrat only. These propositions projected by the learned Counsel for the petitioner, in our view, are not only unacceptable but also are dangerous.
9. It cannot at all be contended that the constitution Bench of 7 Judges of the Supreme Court has not considered the decision in the case of Hanif Quraishi : [1959]1SCR629 . As a matter of fact, when the same question was raised before the 7 Judges Bench of the Supreme Court, the Judges felt that 5 Judges bench in : [1959]1SCR629 did not take into consideration the various other aspects of the matter including the directive principles enshrined in Part IV of the Constitution. As a matter of fact, in para 15 of the said judgment, it has been specifically said that 5 Judges Bench felt that the matter shall be referred to the Bench of 7 Judges on the opinion that certain prior decisions of the Hon'ble Supreme Court including the decision rendered in : [1959]1SCR629 require reconsideration.
10. In para 17 to 34, the Hon'ble Supreme Court dealt with the earlier judgments of the Supreme Court including : [1959]1SCR629 and discussed in detail and held that the total ban can be imposed in the light of the directive principles. The interpretation given in paras 36 to 47 would make it clear that the Hon'ble Supreme Court was of the clear view that implementation of the directive principles contained in Part IV was within the expression of restriction in the interest of larger public. The Hon'ble Supreme Court was of the opinion that any restriction which is imposed for implementation of directive principles cannot be said to be unreasonable restrictions even if it affects the fundamental right of one or other person. It means that larger public interest would prevail over and above the individual interest.
11. The perusal of para 48 to 58 would make it clear that the Hon'ble Supreme Court had discussed the three Articles, namely, 48, 48A and 51A(g) as contained in directive principles, which had been introduced in the body of the Constitution by virtue of 42nd Amendment Act, 1976, with effect from 3.1.1977. Their Lordships have discussed that when the earlier case : [1959]1SCR629 was decided by the Supreme Court, these relevant Articles were not in the body of the Constitution as it was introduced by virtue of subsequent amendment.
12. In view of the specific ratio decided by the 7 Judges Bench holding that the decision rendered by the 5 Judges Bench requires reconsideration in the light of the introduction of new Articles in the Constitution, the contention urged by the counsel for the petitioner that the decision of the Supreme Court in : [1959]1SCR629 still holds the field would not merit acceptance. In this context, it would be appropriate to quote some of the observations made by the Supreme Court in AIR 2005 SCW 5723, which is as follows:
For judging the reasonability of restrictions imposed on Fundamental Rights, the relevant considerations are not only those as enshrined in Article 19 itself or in Part III of the Constitution. The Directive Principles stated in Para - IV are also relevant. Article 37 of the Constitution, which while declaring the Directive Principles to be unenforceable by any Court, goes on to say - 'that they are nevertheless fundamental in the governance of the country' Several clauses of Article 37 themselves need to be harmoniously construed assigning equal weightage to all of them. The end part of Article 37 - It shall be the duty of the State to apply these principles in making law' is not a partish but a constitutional mandate. While interpreting the interplay of rights and restrictions, Part - III and Part IV have to be read together. The restriction which can be placed on the rights listed in Article 19(1) are not subject only to Articles 19(2) to 19(6). The provisions contained in the chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights. A restriction placed on any Fundamental Right aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two limitations - first, that it does not run in clear conflict with the fundamental right, and secondly, that it has been enacted within the legislative competence of the enacting legislature.
13. On the basis of the above observations, the Supreme Court held that the Act prohibiting the slaughter of cow and its progeny based on the directive principles is not inconsistent with the fundamental rights. As the object and purport of the Jharkhand Act, 2005 as well as the Gujrat Act are common, it is to be held that the decision rendered by 7 Judges Bench of the Supreme Court is binding under Article 141 of the Constitution of India and as such, it would apply to all the States including the State of Jharkhand.
14. It was vehemently contended by the counsel for the petitioner that the judgment was rendered only on the basis of the affidavits filed by the Gujrat Government with reference to the facts and figures relatable to the said State and as such, it will not apply to other States.
15. This argument also would not merit consideration, in view of the fact that the perusal of the whole decision of the 7 Judges Bench of the Supreme Court would clearly indicate that the Supreme Court had not only taken into consideration the various facts and figures related to the State, but it also had taken into account the entire Indian economy. The relevant observations, which are as follows, would clarify that:
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 Gujrat has achieved self-sufficiency in cattle-feed and fodder as well. Amongst the people there is an increasing awareness of need for protein rich food and nutrient diet. Plenty of such food is available from sources other than cow/cow progeny meat. But the country's economy continues to be based on agriculture. The majority of agricultural holdings are small units. The country needs bulls and bullocks. The statement of objects and reasons, apart from other evidence available, clearly conveys that cow and its 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.
In Quareshi -I AIR 1958 SC 731, 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 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. In the light of the material available in abundance before us, there is no escape from the conclusion that the protection conferred by the 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.
16. This observation, in our considered view, would apply with all fours to the facts of the present case. Therefore, the first contention is liable to be rejected and is hereby rejected.
17. With regard to Section 14 of the Slaughter Act, which is sought to be declared ultra vires to the main Act and the Indian Evidence Act, it is to be stated that the said provision cannot be said to be violative of the Constitution as well as the Indian Evidence Act. It is well settled that it is within the legislative competence to shift the burden of proof on the person who is prosecuted for the offence under the provisions of the Slaughter Act.
18. Section 14 of the Slaughter Act reads thus:
Where any person is prosecuted for the offence under the provisions of this Act, the burden of proof that he had not committed the offence under the provision of the Act, shall be on him, if the prosecution is in a position to produce the prima facie evidence against him at the first instance.
19. From bare perusal of the above provision, it would appear that where any person is prosecuted for the offence under the provisions of this Act, the burden of proof that he has committed no offence under the provisions of the Act, shall be on him, if the prosecution is in a position to produce the prima facie evidence against him at the first instance.
20. Thus, from the reading of the provision of Section 14, it would be evident that the burden of proof is shifted to the accused only when the prosecution is in a position to produce prima facie evidence against such a person at the first instance. In other words, under the provisions of Section 14 of the Jharkhand Act, 2005, it is the prosecution which has to produce and establish prima facie evidence against the person concerned initially and only then, the burden of proof is shifted on the accused, which is not very much inconsistent with Sections 104 and 105 of the Evidence Act.
21. In that view of the matter, the provision of Section 14 of the Jharkhand Act, 2005, cannot be said to be ultra vires either to Article 19(1)(g) or Article 21 of the Constitution of India or the provisions of the Evidence Act. Therefore, the second contention urged by the counsel for the petitioner as well would fail. Consequently, this writ application, being devoid of any merit, is dismissed.
Permod Kohli, J.
22. I agree.