Right to Freedom of Profession

Chintamani Rao v. State of M.P AIR 1951 SC 1862
• The Central Provinces and Berar Regulation of Manufacture of
Bidis (Agricultural Purposes) Act, of 1948.
• Preamble to the Act:
• “Act is enacted to provide measures for the supply of adequate
labour for agricultural purposes in bidi manufacturing areas.”
• Section 3 & 4
• 3. The Deputy Commissioner may by notification fix a period to be an
agricultural season with respect to such villages as may be specified therein.
• 4. (1) The Deputy Commissioner may, by general order which shall extend
to such villages as he may specify, prohibit the manufacture of bidis
during the agricultural season.
• (2). No person residing in a village specified in such order shall
during the agricultural season engage himself in the manufacture of
bidis, and no manufacture shall during the said season employ any
person for the manufacture of bidis.”

• The contravention of any of these provisions is made
punishable by S.7 of the Act, the penalty being imprisonment
for a term which may extend to six months or with fine or
with both.
• On 13-6-1950 an order was issued by the Dy. Comr., Sagar
under the provisions of the Act forbidding all persons
residing in certain villages from engaging in the manufacture
of bidis.
• Petition filed under Art. 32 of the Constitution challenging
the validity of the order as it prejudicially affected the
petitioners' right of freedom of occupation and business.

• The question for decision is
• whether the statute under the guise of protecting public
interests arbitrarily interferes with private business and
imposes unreasonable and unnecessarily restrictive
regulations upon lawful occupations;
• in other words,
• whether the total prohibition of carrying on the business of
manufacture of bidis within the agricultural season amounts
to a reasonable restriction on the fundamental rights
mentioned in Art.19 (1) (g) of the Constitution.

• Meaning of ‘Reasonable restriction”
• The phrase "reasonable restriction" connotes that the
limitation imposed on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public.
• The word "reasonable" implies intelligent care and
deliberation, that is the choice of a course which reason
dictates.
• Legislation which arbitrarily or excessively invades the right
cannot be said to contain the quality of reasonableness and
unless it strikes a proper balance between the freedom
guaranteed in Art. 19 (1) (g) and the social control permitted
by cl. (6) of Art. 19, it must be held to be wanting in that
quality.

• The statute in substance and effect suspends altogether the right
mentioned in Art.19 (1) (g) during the agricultural seasons and
such suspension may lead to such dislocation of the industry as to
prove its ultimate ruin.
• The object (supply of adequate labour for agricultural purposes in
bidi manufacturing areas) could well be achieved by legislation
restraining the employment of agricultural labour in the
manufacture of bidis during the agricultural season.
• Even in point of time, a restriction may well have been reasonable
if it amounted to a regulation of the hours of work in the
business.
• The effect of the provisions of the Act, however, has no
reasonable relation to the object in view but is so drastic in scope
that it goes much in excess of that object.
• Not only are the provisions of the statute in excess of the
requirements of the case but the language employed prohibits a
manufacturer of bidis from employing any person in his business,
no matter wherever that person may be residing.

• The statute seeks to prohibit all persons residing in the notified
villages during the agricultural season from engaging
themselves in the manufacture of bidis.
• It cannot be denied that there would be a number of infirm and disabled persons, a number of children, old women and petty shop keepers residing in these villages who are incapable of being
used for agricultural labour.
• All such persons are prohibited by law from engaging themselves in the manufacture of bidis; and are thus being deprived of earning their livelihood. It is a matter of common knowledge that
there are certain classes of persons residing in every village who do not engage in agricultural operations.
• They and their womenfolk and children in their leisure hours supplement their income by engaging themselves in bidi business.
• There seems no reason for prohibiting them from carrying on this occupation. The statute as it stands, not only compels those who can be engaged in agricultural work front not taking to other
avocations, but it also prohibits persons who have no connection or relation to agricultural operations from engaging in the business of bidi making and thus earning their livelihood.
• These provisions of the statute, in our opinion, cannot be said
to amount to reasonable restrictions on the right of the
applicants and that being so, the statute is not in conformity
with the provisions of Part III of the Constitution.
• The result, therefore, is that the orders issued by the Dy.
Comr. on 13-6-1950 and 26 9-1950 are void, inoperative and
ineffective.
• We therefore direct the respondents not to enforce the
provisions contained in S. 4 of the Act against the
petitioner in any manner whatsoever.

Om Prakash v. State of U.P AIR 2004 SC1896
• The appellants challenged the validity of Gazette
Notification under Section 298(2) of the U.P. Municipal Act
as amended prohibiting the sale of eggs within the
municipal limits of Rishikesh on the ground that it imposed
unreasonable restrictions on their rights to carry on business
under Article 19(1)(g) of the Constitution.
• Issue
• Whether complete prohibition imposed on trade of eggs
within the municipal limits of Rishikesh can be held to be
reasonable and can pass the test of clause (6) of Article 19

Om Prakash v. State of U.P AIR 2004 SC1896
• Supreme Court held
• The Notification was valid.
• It imposes reasonable restriction on the right to trade of the
appellants.
• The reasonableness of complete restriction imposed on trade
of non-vegetarian food items has to be viewed from the
cultural and religious background of three municipal towns.
• The members of several communities in India are strictly
vegetarian, such people in great number regularly and
periodically visit Haridwar, Rishikesh and Har Ki pauri on
pilgrimage.
• Tourists and pilgrims are the major source of revenue for the
Local Municipalities and the inhabitants of three towns.
• Trade in all kinds of food items vegetarian or non-vegetarian in
adjoining these towns and villages outside the municipal limits
of three towns remain unrestricted.

MRF Ltd. v. Inspector, Kerala Government AIR 1999 SC 188
• The petitioners challenged the constitutional validity of the
Kerala Industrial Establishment (National & Festival
Holidays) Amendment Act, 1990, on the ground that the
increase in number of National and Festival holidays were
violative of the fundamental rights guaranteed to them
under Article 19(1)(g).
• The total numbers of compulsory paid holidays were raised
from 7 to 13.
• Petitioners Contention
• Increase in the number of National & festival holidays are
arbitrary and without any reasonable basis as such increase
compelled them to pay their labour and other employee’s
salary even for closed days on which they do not work.

MRF Ltd. v. Inspector, Kerla Government AIR 1999 SC 188
• Compulsory closure of the industrial concern
in National & festival holidays cannot be
treated as unreasonable and therefore the
amendment Act of 1990 is valid.
• The Act is a social legislation for giving effect
to directive principles of State policy contained
in Article 43 of the Constitution which enjoins
(directs) the State to secure to all workers a
decent standard of life.

Bombay Hawkers’ Union v. Bombay Municipal Corporation
AIR 1985 SC 1206
• Petitioners Contention-
• Under Article 19(1) (g) hawkers have a Fundamental Right to
carry on their trade on public streets.
• Supreme Court held:-
• No one has a right to do business so as to cause annoyance or
inconvenience to members of the public.
• Public streets are meant for the use of general public; they are
not meant to facilitate the carrying on of private trade or
business.
• But the hawkers ought not to be completely deprived of their
right to carry on trade.
• Court directed that there should be hawking zones in the city
where licenses should not be refused to the hawkers except
for good reasons.

Sodan Singh v. New Delhi Municipal Committee (I)
AIR 1989 SC 1988
• Trading on pavements of street Fundamental right.
• Subject to reasonable restrictions.
• Hawkers cannot insist that they should be allowed to conduct
business on every street.
• The right to carry on trade or business mentioned in Art.19 (1)
(g) on street pavements, if properly regulated cannot be denied
on the ground that the streets are meant exclusively for passing
or re-passing and for no other use.
• The small traders on the sidewalks can considerably add to the
comfort and convenience of general public.
• If the circumstances are appropriate and a small trader can do
some business for personal gain on the pavement to the
advantage of the general public and without any discomfort or
annoyance to the others there cannot be any objection to his
carrying on the business.

• Proper regulation is, however, a necessary condition as otherwise the very
object of laying out roads - to facilitate traffic - may be defeated.
• Allowing the right to trade without appropriate control is likely to lead to
unhealthy competition and quarrel between traders and, traveling public
and sometimes amongst the traders themselves resulting in chaos.
• The hawkers though do have the fundamental right to carry on the business
of their choice but not to do so at a particular place.
• They also cannot claim that they must be permitted to trade on every road
in the city. If a road is not wide enough to conveniently manage the traffic
on it, no hawking may be permitted at all, or may be sanctioned only once a
week.
• Hawking may also be prohibited near hospitals or where necessity of
security reasons so demands the right is subject to reasonable restrictions
under clause (6) of Art. 19.
• Art.21 is not attracted in a case of trade or business - either bit or small.
• The right to carry on any trade or business and the concept of life and
personal liberty within Art.21 are too remote to be connected together

M. E. H. Union v. Municipal Corpn. Greater Mumbai
AIR 2004 SC 416
• The hawkers have a fundamental right to trade under Art. 19(1) (g).
• This right however is subject to reasonable restrictions under Art.
19(6).
• Thus hawking may not be permitted where e.g.
– due to narrowness of road free flow of traffic or movement of
pedestrians is hindered or
– Where for security reasons an area is required to be kept free or
near hospitals, places of worship etc.
• There is no fundamental right under Art. 21 to carry on any
hawking business.
• There is also no right to do hawking at any particular place.
• If properly regulated the small traders can considerably add to the
convenience and comfort of the general public, by making
available ordinary articles of everyday use for a comparatively
lesser price.

AIR 2004 SC 416
• The restrictions/conditions on which the hawkers shall do
the business are:
• Area of 1 mtr x 1 mtr on one side of the footpath.
• Vehicular and pedestrian traffic is not obstructed.
• Access to shops and residences should not be blocked.
• Hawking should be on one side of the footpath or road.
• Hawkers must not put up stalls or place any tables, stand or
such other thing or erect any type of structure.
• They should also not use handcarts.
• They may protect their goods from the sun, rain or wind.
• No hawking within 100 meters from any place of worship,
holy shrine, educational institutions and hospitals or within
150 meters from any municipal or other markets or from
any railway station.

AIR 2004 SC 416
• No hawking on foot-bridges and over-bridges.
• Certain areas may be required to be kept free of hawkers for
security reasons.
• Outside places of worship hawkers can be permitted.
• The hawkers must not create any noise or play any
instrument or music for attracting the public or the
customers;
• They can only sell cooked foods, cut fruits juices.
• No cooking of any nature whatsoever shall be permitted.
• Hawking must be only between 7.00 a.m. and 10.00 p.m.;
• Hawking will be on the basis of payment of a prescribed fee
to be fixed by BMC.
• No hawking on street which is less than 8 meters in width.

AIR 2004 SC 416
• No hawking in areas which are exclusively residential
and where trading and commercial activity is
prohibited.
• The license must be displayed, at all times, by the
hawkers on their person by clipping it on to their shirt.
• Not more than one member of a family must be given
a license to hawk.
• Vending of costly items e.g. electrical appliances,
video and audio tapes and cassettes, cameras, phones
etc. are to be prohibited.
• The licences must be for a period of 1 year.

Whether right to carry on businessincludes a right to close it
down under Article 19(1) (g).

Excel Wear v. Union of India AIR 1979 SC 25
• Excel Wear was a registered firm.
• It had a factory at Bombay where it manufactured garments for exports.
• Due to serious labour trouble the factory was running into a recurring loss.
• Petitioner finding it almost impossible to carry on business of the factory.
• Served a notice on the State Government for prior approval for its closure.
• Government refused approval in the Public Interest.
• Government refused approval u/s 25-O & 25-R of Industrial Dispute Act
1947.
• Section 25-O
– Requires an employer to take permission from the Government for
closure.
– Employer is required to give a three month notice.
– Government could refuse permission to close down the business if it is
satisfied that the reasons given by the employer were not adequate or
sufficient or that such closure is prejudicial to the public interest.

Excel Wear v. Union of India AIR 1979 SC 25
• Section 25-R
• Provides punishment for violation of Section 25-O.
• Supreme Court held-
• Section 25-O whole and 25-R partly unconstitutional.
• Nobody has got a right to carry on the business if he
cannot pay even minimum wages to the employees.
• The right to close a business is an integral part of the
fundamental right to carry on business. But as no right
is absolute in its scope, so is the nature of this right. It
can certainly be restricted, regulated or controlled by
law in the interest of general public.

Important Cases
• Cooverjee v. Exercise Commissioner, Ajmer, AIR
1954 SC220
• Krishan Kumar v. State of Jammu & Kashmir AIR
1967 SC 1368
• Nashirwar v. State of M.P AIR 1975 SC 360
• Har Shankar v. Dy. E.T. Commr., AIR 1975 SC 1121
• Khoday distilleries v. State of Karnataka, (1995)1
SCC 574
• State of A.P v. McDowell & Co., AIR 1996 SC 1627

Cooverjee v. Exercise Commissioner, Ajmer, AIR 1954 SC220
• No one has an inherent (natural) right to sell
intoxicating liquors in retail sale.
• It is a business which is dangerous to the
community; the state may entirely prohibit it
or permit it under conditions.
• The manner and extent of regulation rest
within the discretion of the state.

Krishan Kumar v. State of Jammu & Kashmir AIR 1967 SC 1368
• Supreme Court refused to countenance the argument that
dealing in noxious and dangerous goods like liquor was
dangerous to the community and subversive of its morals
and, therefore, was not trade.
• Acceptance of such a broad argument “involves the position
that meaning of the expression ‘trade or business’ depends
upon, and varies with, the general acceptance of the
standards of morality obtaining at a particular point of time
in our country”.
• Standards of morality could afford guidance to impose
restrictions; they could not limit the scope of the right.
• The morality or illegality or otherwise of a deal would not
affect the quality or character of the activity thought might
be a ground for imposing a restriction on the activity.
• The judicial view underwent a fundamental change in course
of time.

Nashirwar v. State of M.P AIR 1975 SC 360
•
• That there was no Fundamental Right to carry on trade in
liquor because of the reasons of public morality, public
interest and harmful and dangerous character of liquor.
• The court ruled that “there is the police power of the state
to enforce public morality to prohibit trades in noxious or
dangerous goods”.
•
• Reference was also made to Article 47 a Directive
Principle, in support of this view.
•

Har Shankar v. Dy. E.T. Commr., AIR 1975 SC 1121
• After reviewing the previous case law, Supreme
Court observed:
• “There is no Fundamental Right to do trade or
business in intoxicants.
• The state under its regulatory powers has the
right to prohibit absolutely every form of
activity in relation to intoxicants – its
manufacture, storage, export, import, sale and
possession.”

Khoday distilleries v. State of Karnataka, (1995)1 SCC 574
• Supreme Court observed
• That a citizen has no Fundamental right to trade or
business in intoxication liquids and that trade or business
in such liquors can be completely prohibited.
• Because of its pernicious and vicious nature, dealing in
intoxicating liquors is considered to be res extra
commercium.
• The state can create a monopoly either in itself or in an
agency created by it for manufacture, possession, sale
and distribution of liquor as a beverage.
• The state can impose restrictions, limitations and even
prohibition on intoxicating liquors.

State of A.P v. McDowell & Co., AIR 1996 SC 1627
• Supreme Court said that
• Even if it were to be argued that trade in intoxicating
liquors falls within the scope of Art. 19(1) (g), the state
could still impose severe restrictions, or even
prohibition, on the trade in intoxicating liquors.
• Article 47 expressly speaks of the obligations of the
state to endeavour to bring about prohibition of the
consumption of intoxicating liquors.
• Therefore, imposing prohibition is to achieve the
directive principle adumbrated in Article 47.
• Such a course merits to be treated as a reasonable
restriction within the meaning of Article 19(6).

Fateh Chand v. State of Maharashtra AIR 1977 SC 1825
• Money lending to poor villagers is not trade and commerce.
• It is exploitative of the village people.
• Such an activity has been considered as ‘anti-social, usurious,
unscrupulous’.
• On the other hand, money-lending amongst the commercial
community is trade as it is integral to trade and commerce.
• Krishna Iyer., J. said
• “where money-lending is ancillary to commercial activity, it
may be categorized as trade, but when it facilitates no
movement of commerce, no promotion of intercourse, no
servicing of business, but merely stagnate rural economy &
strangulates the borrowing communities, it thus , in its
deleterious pattern cannot be classed as ‘trade’”.

M/s.B.R.Enterprises v. State of U.P AIR 1999 SC 1867
• The petitioners had challenged the Validity of Lotteries (Regulation)
Act 1998, and the order passed by the State of U.P. in exercise of
power vested under Section 5 of the Act banning sale of lottery
tickets of other States in State of Uttar Pradesh as violative of
Article 19(1)(g) and Article 301, 302 and 303 of the Constitution.
• Lottery contains an element of chance and therefore cannot be trade
or commerce but is gambling.
• Sale of lottery tickets organized by the state can not be construed to
be trade & commerce within the meaning of Article 301 to 303 or
trade or business under Article 19(1) (g).

M/s.B.R.Enterprises v. State of U.P AIR 1999 SC 1867
• The constitution makers could never have conceived to give
protection to gambling either under Article 19(1) (g) or as
trade under Article 301.
• The difference between trade and gambling is that a
gambling inherently contains a chance with the no skill,
while trade contains skill with no chance what makes lottery
a pernicious is its gambling nature even in the state run
lotteries the same elements of chance remains with no skill.

• Articles 48, 48A and 51A(g) (relevant clause) of the Constitution
read as under :
• "48. Organisation of agriculture and animal husbandry. - The
State shall endeavour to organise agriculture and animal husbandry on
modern and scientific lines and shall, in particular, take steps for
preserving and improving the breeds, and prohibiting the slaughter, of
cows and calves and other milch and draught cattle.
• 48A. Protection and improvement of environment and
safeguarding of forests and wild life.- The State shall endeavour to
protect and improve the environment and to safeguard the forests and
wild life of the country.
• 51A. Fundamental duties. - It shall be the duty of every citizen of
India -
• (g) to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures;"

Mohd. Hanif Quareshi and Ors. v. State of Bihar and Ors.
AIR 1958 SC 731
• Three legislative enactments banning the slaughter of
certain animals were passed respectively by the States of
Bihar, Uttar Pradesh and Madhya Pradesh.
• The Bihar Preservation and Improvement of Animals Act,
1956
• imposed a total ban on the slaughter of all categories of
animals belonging to the species of bovine cattle.
• The Uttar Pradesh Prevention of Cow Slaughter Act, 1955
• Imposed a total ban on the slaughter of cows and her
progeny which included bulls, bullocks, heifers and cows.
• The C.P. and Berar Animal Preservation Act
• imposed a total ban on the slaughter of cows and female calf
of a cow. The male calf of a cow, bull, bullock, buffalo (male
or female, adult or calf) could be slaughtered only on
obtaining a certificate.

AIR 1958 SC 731
• Grounds for challenge
• total ban offended the religion of the Muslims as the
sacrifice of a cow on a particular day is enjoined or sanctioned
by Islam;
• such ban offended the fundamental right guaranteed to the
Kasais (Butchers) under Article 19(1)(g) and was not a
reasonable and valid restriction on their right; and
• total ban was not in the interest of the general public.

AIR 1958 SC 731
• On behalf of the States,
• heavy reliance was placed on Article 48 of the
Constitution to which the writ petitioners
responded that under Article 37 the Directive
Principles were not enforceable by any court of
law and, therefore, Article 48 had no relevance
for the purpose of determining the constitutional
validity of the impugned legislations which were
alleged to be violative of the fundamental rights
of the writ petitioners.

AIR 1958 SC 731
• Chief Justice S.R. Das spoke for the Constitution Bench and held :-
• REASONABLE
• (i) that a total ban on the slaughter of cows of all ages and calves of
cows and calves of she-buffaloes, male or female, was quite
reasonable and valid and is in consonance with the Directive
Principles laid down in Article 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 capable of being used as milch or draught cattle was also
reasonable and valid; and
• UNREASONABLE
• (iii) that a total ban on 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 could not be supported
as reasonable in the interests of the general public and was invalid.

AIR 1958 SC 731
• The Court observed:
• “The maintenance of useless cattle involves
a wasteful drain on 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 breed.”

Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of
Gujarat, (1986) 3 SCC 12
• Constitutional validity of the Bombay Act as amended by
Gujarat Act of 1961 was challenged.
• The ban prohibited slaughter of bulls and bullocks
below the age of 16 years.
• The petitioners pleaded that such a restriction on their
right to carry on the trade or business in beef and allied
articles was unreasonable.
• Yet another plea was urged that the total ban offended
their religion as qurbani (sacrifice) at the time of
BakrI'd or Id festival as enjoined and sanctioned by
Islam.
• The High Court rejected the challenge on both the
grounds.
• The writ petitioners came in appeal to this Court.
• The appeal was dismissed.

Hashmattullah v. State of M.P. and Others,
(1996) 4 SCC 391
• M.P. Krishik Pashu Parirakshan (Sanshodhan)
Adhiniyam, 1991 imposing a total ban on the
slaughter of bulls and bullocks in the State of
Madhya Pradesh was challenged. The validity
of the amending Act was upheld by the High
Court.
• The writ petitioners came up in appeal to this
Court which was allowed and the amending
Act was struck down as ultra vires the
Constitution.

State of West Bengal and others v. Ashutosh Lahiri and Others,
(1995) 1 SCC 189
• The legislation permitted slaughter of cows on the occasion of
BakrI'd subject to an exemption in that regard being allowed
by the State Government.
• The power to grant such an exemption was challenged.
• The High Court allowed the writ petition and struck down the
power of the State Government to grant such an exemption.
• There was a total ban imposed on the slaughter of healthy cows and
other animals mentioned in the schedule under Section 2 of the Act.
• The State of West Bengal appealed.
• On a review of earlier decisions of this Court, the three-Judge
Bench concluded that it was a settled legal position that there
was no fundamental right of Muslims to insist on slaughter of
healthy cows on the occasion of BakrI'd. The contention that
not only an essential religious practice under Article 25(1) of
Constitution, but even optional religious practice could be
permitted, was discarded.

State of West Bengal and others v. Ashutosh Lahiri and Others,
(1995) 1 SCC 189
• The Court held
• "We, therefore, entirely concur with the view of the High
Court that slaughtering of healthy cows on BakrI'd is not
essential or required for religious purpose of Muslims or in
other words it is not a part of religious requirement for a
Muslim that a cow must be necessarily sacrificed for
earning religious merit on BakrI'd."

State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Ors
2006 (2) G.L.H. 201
• R. C. LAHOTI, CJI,
B. N. AGRAWAL, ARUN KUMAR,
G. P. MATHUR, A. K. MATHUR (Dissenting View),
C. K. THAKKER AND
P. K. BALASUBRAMANYAN, JJ.
• Basic question that arises in these petitions are
• whether there is need to over-rule the earlier decisions which held
the field right from 1958-1996,
• Is the ground realities have materially changed so as to reverse the
view held by successive Constitutional Benches of this Court or
those decisions ceased to have any relevance.
1. Mohd. Hanif Qureshi & Ors. v. State of Bihar (supra) .
2. Abul Hakim v. State of Bihar
3. Mohd. Faruk v. State of M.P. & Ors
4. Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat
5. 1996 (4) SCC.391 ( Hashmattullah v, State of M.P. & Ors.)

2006 (2) G.L.H. 201
• Bombay Animal Preservation Act of 1954
• "5. (1) Notwithstanding any law for the time being in force or any
usage to the contrary, no person shall slaughter or cause to be
slaughtered any animal unless, he has obtained in respect of such
animal a certificate in writing from the Competent Authority
appointed for the area that the animal is fit for slaughter.
• (2) No certificate shall be granted under sub- section (1), if in the
opinion of the Competent Authority
• (a) the animal, whether male or female, is useful or likely to become
useful for the purpose of draught or any kind of agricultural
operations;
• (b) the animal, if male, is useful or likely to become useful for the
purpose of breeding;
• (c) the animal, if female, is useful or likely to become useful for the
purpose of giving milk or bearing offspring.
• (3) Nothing in this section shall apply to the slaughter of any animal
above the age of fifteen years for bona-fide religious purposes:

2006 (2) G.L.H. 201
• The State of Gujarat was formed in the year 1960.
• The Bombay Animal Preservation (Gujarat Extension and
Amendment) Act, 1961
• The Saurashtra Animal Preservation Act, 1956 repealed.
• Section 5 of the Bombay Act, which was called 'the
principal Act' in the Gujarat Act of 1961, was also amended
by Section 4 thereof which reads as under:
• 4. Amendment of Section 5 of Bombay LXXII of 1954.- In
section 5 of the principal Act, - (1) After sub-section (1), the
following sub- section shall be inserted, namely :- "(1A) No
certificate under sub-section (1) shall be granted in
respect of a cow."

2006 (2) G.L.H. 201
• 1979, the Gujarat Legislature enacted the Bombay Animal
Preservation (Gujarat Amendment) Act, 1979 to further
amend the Bombay Act.
• Section 2 of this Act is relevant which is extracted and
reproduced hereunder:
• "(1A) No certificate under sub-section (1) shall be granted
in respect of-
• (a) a cow;
• (b) the calf of a cow, whether male or female and if male,
whether castrated or not;
• (c) a bull below the age of sixteen years;
• (d) a bullock below the age of sixteen years"

2006 (2) G.L.H. 201
• The Bombay Animal Preservation (Gujarat Amendment)
Act, 1994
• In the Bombay Animal Preservation Act, 1954, in section
5, - (1) in sub-section (1A), for clauses (c) and (d), the
following clauses shall be substituted, namely:
• "(c) a bull;
• (d) a bullock.";

2006 (2) G.L.H. 201
• The Preamble to the Act reads as under:
• "WHEREAS it is established that COW AND HER
PROGENY sustain the health of the nation by giving them
the life giving milk which is so essential an item in a
scientifically balanced diet;
• AND WHEREAS the WORKING BULLOCKS are
indispensable for our agriculture for they supply power more
than any other animal;
• AND WHEREAS the WORKING BULLOCKS are often
useful in ploughing the fields, drawal of water from the wells
and also very useful for drawing carts for transporting grains
and fodders from the fields to the residences of farmers as
well as to the Agricultural Market Yards;

2006 (2) G.L.H. 201
• AND WHEREAS the DUNG OF THE ANIMAL is
cheaper than the artificial manures and extremely useful
for production of bio-gas;
• AND WHEREAS it is established that the backbone of
Indian agriculture is, in a manner of speaking the cow
and her progeny and have, on their back, the whole
structure of the Indian agriculture and its economic
system;
• AND WHEREAS it is expedient to give effect to the
policy of the State towards securing the principles laid
down in articles 47, 48 and in clauses (b) and (c) of
articles 39 of the Constitution of India and to protect,
preserve and sustain cow and its progeny;"

2006 (2) G.L.H. 201
• The Statement of Objects and Reasons
• The Statement of Objects and Reasons and the facts set out
therein are of relevance and significance and hence are
reproduced hereunder:
• "The existing provisions of the Bombay Animal
Preservation Act, 1954 provides for prohibition against the
slaughter of cow, calf of a cow, and the bulls and bullocks
below the age of sixteen years.
• It is an established fact that the cow and her progeny 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 economy of the State of Gujarat is still predominantly
agricultural. In the agricultural sector, use of animals for
milch, draught, breeding or agricultural purposes has great
importance.

2006 (2) G.L.H. 201
• It has, therefore, become necessary to emphasise
preservation and protection of agricultural animals like bulls
and bullocks.
• With the growing adoption of non-conventional energy
sources like bio- gas plants, even waste material have come to
assume considerable value.
• After the cattle cease to breed or are too old to do work, they
still continue to give dung for fuel, manure and bio-gas, and
therefore, they cannot be said to be useless.
• It is well established that the backbone of Indian agriculture
is, in a manner of speaking, the cow and her progeny and
have on their back, the whole structure of the Indian
agriculture and its economic system.
• In order to give effect to the policy of the State towards
securing the principles laid down in articles 47, 48 and clause
(b) and (c) of article 39 of the Constitution of India, it was
considered necessary also to impose total prohibition against
slaughter of progeny of cow.

2006 (2) G.L.H. 201
• Writ Petition Before the High Court
• Constitutional Validity of the Bombay Animal
Preservation (Gujarat Amendment) Act, 1994
was challenged.
• The High Court struck down the impugned
legislation as ultra vires the Constitution.
• The High Court held that the Amendment Act
imposed an unreasonable restriction on the
fundamental rights and therefore, it was ultra
vires the Constitution.
• The effect of the judgment of the High Court would be that there would not be a total ban on the slaughter of bulls or bullocks above the age of 16 years; in other words
animals could be slaughtered consistently with the provisions of the parent Act as it stood prior to the amendment brought in by Gujarat Act No. 4 of 1994.

2006 (2) G.L.H. 201
• Appeal before Supreme Court
• The State of Gujarat and Akhil Bharat Krishi Goseva Sangh filed appeasl.
• Three Judge Bench
• On 17.2.2005, a three-Judge Bench of this Court, before which the appeals
came up for hearing directed the matter to be placed for hearing before a
Constitution Bench in the following terms of the order :
• "Parties to these appeals agree that the issue involved in these appeals
requires interpretation of the provisions of the Constitution of India
especially in regard to the status of Directive Principles vis-à-vis the
Fundamental Rights as well as the effect of introduction of Articles 31C
and 51A in the Constitution.
• Therefore, in view of Article 145(3) of the Constitution, we think it
appropriate that this matter should be heard by a Bench of at least 5
Judges."
• Constitution Bench
• On 19.7.2005, the Constitution Bench which heard the matter referred it to a
Bench of seven Judges on an opinion that certain prior decisions of this
Court by Constitution Benches might call for reconsideration.
• This is how the matter came to be heard before SEVEN Bench.

2006 (2) G.L.H. 201
• Issues in Present Set of Appeals
• Whether the view of this Court in Quareshi-I is
to be upheld or not.
• Respondents submitted that -
• Quareshi-I leads a chain of five decisions of
this Court which in view of the principle of
stare decisis, this Court should not upset.
• Appellants find following faults with the view
taken by this Court in Quareshi-I, to the extent
to which it goes against the appellants:-

2006 (2) G.L.H. 201
(1) Quareshi-I holds Directive Principles of State Policy to be
unenforceable and subservient to the Fundamental Rights and,
therefore, refuses to assign any weight to the Directive
Principle contained in Article 48 of the Constitution and
refuses to hold that its implementation can be a valid ground
for proving reasonability of the restriction imposed on the
Fundamental Right guaranteed by Article 19(1)(g) of the
Constitution a theory which stands discarded in a series of
subsequent decisions of this Court.
(2) What has been noticed in Quareshi-I is Article 48 alone;
Article 48A and Article 51A (g) were not noticed as they were
not available then, as they were introduced in the Constitution
by Forty-second Amendment with effect from 3.1.1977.
(3) The meaning assigned to "other milch and draught cattle" in
Quareshi-I is not correct. Such a narrow view as has been
taken in Quareshi-I does not fit into the scheme of the
Constitution and, in particular, the spirit of Article 48.

2006 (2) G.L.H. 201
(4) Quareshi-I does not assign the requisite weight to the
facts contained in the Preamble and Statement of
Objects and Reasons of the enactments impugned
therein.
(5) 'Restriction' and 'Regulation' include 'Prohibition' and
a partial restraint does not amount to total prohibition.
Subsequent to the decision in Quareshi-I the trend of
judicial decisions in this area indicates that regulation or
restriction within the meaning of Articles 19(5) and 19(6)
of the Constitution includes total prohibition - the
question which was not answered and left open in
Quareshi-I.
(6) Quareshi-I forms the foundation for subsequent
decisions and if the very basis of Quareshi-I crumbles,
the edifice (structure) of subsequent decisions which
have followed Quareshi-I would also collapse.

2006 (2) G.L.H. 201
• Judgement
• 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
- Butchers can slaughter animals other than cow progeny and
carry on their business activity - Ban on slaughter of cow
progeny is not a prohibition but only a restriction - It is in the
interest of general public.
• Cow progeny excreta is scientifically recognized as a source of
rich organic manure. It enables the farmers avoiding the use
of chemicals and inorganic manure. This helps in improving
the quality of earth and the environment The impugned
enactment enables the State in its endeavour to protect and
improve the environment within the meaning of Art. 48A of
the Constitution.

2006 (2) G.L.H. 201
• 'milch or draught cattle' as employed in Art. 48
• A specie of cattle which is milch or draught for a number of
years during its span of life is to be included within the said
expression. On ceasing to be milch or draught it cannot be
pulled out from the category of "other milch and draught
cattle."
• Art. 141 - doctrine of stare decisis –
• 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.
• It is generally to be adhered to, yet the demands of changed
facts and circumstances justify the need for a fresh look.

2006 (2) G.L.H. 201
• Articles 48, 48A and 51A(g) (relevant clause) of the Constitution read
as under :
• "48. Organisation of agriculture and animal husbandry. - The
State shall endeavour to organise agriculture and animal husbandry on
modern and scientific lines and shall, in particular, take steps for
preserving and improving the breeds, and prohibiting the slaughter, of
cows and calves and other milch and draught cattle.
• 48A. Protection and improvement of environment and
safeguarding of forests and wild life.- The State shall endeavour to
protect and improve the environment and to safeguard the forests and
wild life of the country.
• 51A. Fundamental duties. - It shall be the duty of every citizen of
India -
• (g) to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures;"

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