M.KARPAGA VINAYAGAM,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. 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.
(3.) 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. ;