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PROTECTION
OF THE COW AND HER PROGENY- T. U. Mehta
Some reflection on Court Decisions
Art. 48 of our constitution
is in the same words as of Art. 38-A which was proposed by way
of an amendment to the Draft Constitution by Shri Thakardas
Bhargav in the constituent Assembly. This amendment also made
a specific mention of the prohibition of "The Slaughter
of Cows, Calves and other milch and draught Cattle", In spite
of this, the amendment was passed "without much
controversy" (vide: Last volume of The Framing of Indian
Constitution -B.Shiv Rao. P. 331 ). This was much unlike Art.
44 relating to" Uniform Civil Code" which was very
much resisted by some Muslim members.
In a well documented judgment
given by a five judges Bench of Supreme Court in
Mohd. Hanif v/s. State of Bihar (AIR 1958 S.C. 731 ).
The court has held that a total ban on the slaughter of bulls
and bullocks who have ceased to remain draught animals puts
unreasonable restriction on a citizens fundamental right to
carry on his trade and business. It is this judgment, which
is given in context of the situation which was prevalent more
than 40 years ago, but which still prevents the total ban on
the slaughter of cow's progeny called bulls and bullocks.
It is found that whenever
such a ban is put by a State enactment the courts strike it
down as unreasonable, per se, without investigating whether
the impugned ban affects the total or partial business of
citizen, and if it is partial, whether it can be treated as
unreasonable. This approach is not correct as it is a well
settled position in law that the test of reasonableness should
include the considerations such as the nature of the right
infringed, urgency of the evil sought to be remedied,
disproportion of the imposition and also the nature of the
business affected. (A. Hakim Quaraishi v/s. State of
Bihar (A. 1962 S.C. 448 and Cooverjee Bharucha A. 1954 S.C.
220).
There are some aspects on
which this decision given in Mohd. Hanif v/s. State can
be distinguished. They are as under-
1.. One of the factors which
has weighed with the Court was that petitioners' trade in that
case was solely dependent on beef hide and other accessories
which could be obtained by the slaughter of bulls and
bullocks. This will be clear from the following observations
of the Court- " The immediate effect of the operation of
these Acts (Impugned Acts) is to cause a serious dislocation
of petitioners business without any compensatory benefit.
(Para 29 of the judgment).
In support of this
proposition, the court has cited their decision in Shagir
Ahmed vis. State of U. P. (A. 1957 S. C. R. 699).
It should be noted that the
above observations have been made in context of petitioners'
contention that the impugned Acts, if enforced would
"Compel them to close down their business and would, in
effect, amount to a complete denial of their right to carry on
their occupation trade or business". (vide Para 18 of the
judgment). >>>
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