BEFORE

THE HON’BLE HIGH COURT OF MAHESHWAR

IN THE MATTER OF
MAHESHWAR BUTCHERS ASSOCIATION & Ors.
v.
STATE OF MAHESHWAR & Ors.

COUNSEL APPEARING ON BEHALF OF MAHESHWAR BUTCHERS ASSOCIATION & Ors.

Submitted by:
Name: Ragini Sharma
Roll No: 47/18 Sec-A
Course: B.A. LL.B (5 years)
Semester
1 9

MEMORIAL SUBMITTED ON BEHALF OF PETITIONER

MEFASDASDAD[Type the company name] | [Type the company address]

 TABLE OF CONTENTS
Contents
Table of Contents.......................................................................................................................1

Index of Authorities...................................................................................................................2

Index of Abbreviations..............................................................................................................3

Statement of Jurisdiction...........................................................................................................4

Issues Raised..............................................................................................................................

Summary of Arguments.............................................................................................................

Arguments Advanced................................................................................................................

Issue1 : Whether the petition filed before the Hon’ble Supreme Court under Article 226
maintainable.

Issue 2: Whether the MAP Act, 1995 is ultra-vires to the Indican Constitution 1950.

Prayer.......................................................................................................................................

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
 INDEX OF AUTHORITITES

LEGISLATION

1. The Constitution of India,1950.

2. The Maharashtra Animal Preservation Act, 1976.

CASES REFERED

1. State of Gujarat and Others vs. Akhil Gujarat Pravasivs. Mahamandal and Others

2.Indian Handicrafts Emporium and Others vs. Union of India and Others

3.Razakbhai Issakbhai Mansuri and Others vs. State of Gujarat and Others

4.Om Prakash and Others vs. State of U.P and Others

5.State of Tamil Nadu and Others vs. M/s Sanjeetha Trading Co. and Others

6.State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others

7.Animal Welfare Board of India vs. A. Nagaraja and Others

8.The State of Bombay and another vs. F.N. Balsara

9.State of Uttar Pradesh and Others vs. Hirendra Pal Singh and Others

LIST OF ABBREVIATIONS
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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
Sr no. Abbrevation Full form
1 Hon’ble Honourable
2 U.O. I Union of India
3 Vol. Volume
4 J Justice
5 SC Supreme Court
6 H.C High Court
7 S Section
8 Art. Article

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
 STATEMENT OF JURISDICTION

The Hon’ble High Court of Maheshwar has the jurisdiction to hear the instant matter under
Article 226 of the Constitution of Indica, 1950.

226. Power of High Courts to issue certain writs

Under Article 226 the High Courts are granted power, throughout the territories in relation to
which it exercises jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories’ directions, orders or writs.

1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories’ directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in
relation to the territories within which the cause of action, wholly or in part, arises for the
exercise of such power, notwithstanding that the seat of such Government or authority or the
residence of such person is not within those territories.

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
 STATEMENT OF FACTS

1. HISTORY

Republic of Indica being located in the South Asian Region of Asia is one of the ancient
nations of the world ruled by the British for about 150 years and attained independence in
1947.

Now the Republic of Indica is a democratic country and its Constitution came into force in
1950. Being a democratic country, the majority of Indica’s population belong to Hindu
religion & other major religions are Buddhism, Christianity, Islam, Jainism & Sikhism.

2. Background

An amendment was brought about to the Maheshwar Animal Preservation Act, 1978 which
imposed a total ban on the transportation, purchase, sale & disposal, slaughter, import and
possession of any flesh of cows, bulls and bullocks slaughtered inside the State of
Maheshwar.

The amendment brought about new provision which stated that the burden of proving that the
slaughter, transport, export outside the State, sale, purchase or possession of Flesh of cow,
bull or bullock, was not in contravention of the MAP Act, 1978 is upon the accused.

3. THE CONFLICT

The amendment brought about by the government developed restlessness among certain class

of public as well as slaughter house owners who considered this act to be highly arbitrary and

unconstitutional.

4. MATTER BEFORE THE COURT

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
Being aggrieved by the said ban, writ petitions were filed by various associations &

individuals before the Hon’ble High Court of Maheshwar challenging the constitutional

validity of the Maheshwar Animal Preservation Act, 1995(amendment). The case lies

pending for final arguments & disposal in the High Court of Maheshwar.

STATEMENT OF ISSUES

ISSUE I

● Whether the petition filed before the Hon’ble Supreme Court under Article 226
maintainable.

ISSUE II

● Whether the Maheshwar Animal Protection Act, 1995 is ultravires to the Indican
Constitution 1950.

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
 SUMMARY OF ARGUMENTS
1. WHETHER THE PETITION FILED BEFORE THE HON’BLE SUPREME
COURT UNDER ARTICLE 226 MAINTAINABLE.

Firstly, The Hon,ble High Court has unassailable and unquestionable jurisdiction under Art.
226.

Secondly, Hon’ble Court may interfere in matters by way of such civil & criminal appeal

where there is grave injustice, a manifest error, perversity, illegality or irregularity or where

there is non-application of mind or excess jurisdiction. The High Court may invoke this

purely as matter of discretion to meet the ends of justice.

Thirdly, the Hon’ble Court may under its jurisdiction exercise its powers where there is gross

violation of fundamental rights granted to the citizens.

2. Whether the MAP Act, 1995 is ultravires to the Indian Constitution 1950.

It is humbly submitted before the Hon’ble Supreme Court by the petitioners that the

amendment of the MAP,Act 1995 (amendment) is unconstitutional, ultravires and void.

The amendment to the MAP Act, 1995 brought about new provisions namely Sections 5A to

5D which imposed a total ban on the transportation, slaughter import, and possession of any

flesh of cows, bulls and bullocks slaughtered outside the state of Maheshwar. Also by

Sections 9A and 9B the burden of proving that the slaughter transport, export outside the state

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
sale purchase or possession of flesh of cow bull or bullock was not in contravention of the

MAP,Act 1995 is upon the accused.

It is humbly submitted before the Hon’ble Court by the petitioners that the amendment of the

MAP,Act 1995 (amendment) is constitutionally invalid. The amendment violates Article 21,

19(1)(g) and Articles 25 & 29 of t

ARGUMENTS ADVANCED

1. Whether this Writ petition is maintainable?

The present petition is maintainable under Article 226 of the Constitution, since the writ

petition filed by Maheshwar Butchers Association is withstanding the law and it is

constitutional. The government’s new set of rules on cattle sale is unlikely to withstand

judicial scrutiny. Over the last few days, the newly passed Maheshwar Animal Prevention

Act have run into strong headwinds. These rules, which effectively prohibit the sale of

cows and buffaloes for slaughter at animal markets, and are therefore perceived as

imposing an indirect beef ban, have been the subject of protests in Kerala and Tamil

Nadu, and have drawn strong condemnation from West Bengal Chief Minister Mamata

Banerjee. With the High Court on Tuesday staying the rules for four weeks, the

battle has swiftly moved to the court as well. And with this, apart from the political

turmoil, legal and constitutional fault lines have also been reopened, causing much

uncertainty about what the outcome will be. In the Constituent Assembly This dispute

has a history, which goes back to the founding of the Republic. During the framing of the

Constitution, the subject of cow slaughter was one of the most fraught and contentious

topics of debate. Seth Govind Das, a member of the Constituent Assembly, framed it as

a “civilisational [problem] from the time of Lord Krishna”, and called for the prohibition

of cow slaughter to be made part of the Constitution’s chapter on fundamental rights, on a

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
par with the prohibition of untouchability. In this, he was supported by other

members of the Constituent Assembly, such as Shibban Lal Saksena, Thakur Das

Bhargava, Ramnarayan Singh, Ram Sahai, Raghu Vira, R.V. Dhulekar and Chaudhari

Ranbir Singh. Proponents of a cow slaughter ban advanced a mix of cultural and

economic arguments, invoking the “sentiments of thirty crores of population” on the

one hand, and the indispensability of cattle in an agrarian economy on the other. There

was one small, snag, however: fundamental rights were meant to inhere in human beings,

not animals. After much debate, the Constitution’s Drafting Committee agreed upon a

compromise: prohibition of cow slaughter would find a place in the Constitution, but not

as an enforceable fundamental right. It would be included as a “Directive Principle of

State Policy”, which was meant to guide the state in policymaking, but could not be

enforced in any court. Furthermore, in its final form, this Directive Principle (Article 48

of the Constitution) carefully excluded the question of religious sentiments. Nor did it

require the state to ban cow slaughter outright. Instead, under the heading

“Organisation of Agriculture and Animal Husbandry”, Article 48 says the state shall

“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 milk and draught cattle.” Members of the

Constituent Assembly found these incremental compromises both unprincipled and

unsatisfactory. Shibban Lal Saksena objected to such “back door” tactics, and asked why

the Drafting Committee was “ashamed of providing for [the prohibition of cow slaughter]

frankly and boldly in so many plain words”. Z.H. Lari, one of the Muslim

representatives in the Assembly, stated that his community would not stand in the

way of the majority’s desire, but nonetheless asked that the majority “express itself

clearly and definitely”, so that Muslims could know exactly what the position was on cow

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
 slaughter. However, clear and definite expression on the issue of cow slaughter was

one thing that the Assembly was unwilling to commit to. Article 48, a provision that

was grafted out of a compromise that left nobody satisfied, came into being with the

rest of the Constitution, on January 26, 1950.

In the Supreme Court

In the Supreme Court

The fundamental disingenuousness that underlay Article 48 was to be repeated,

many times over, in constitutional litigation before the Supreme Court. Right from 1958,
the Supreme Court was asked to adjudicate upon the constitutional validity of cattle
slaughter bans passed by various States. Petitioners before the court argued that a
prohibition of cow slaughter violated their rights to trade and business, and also
their right to freedom of religion. The Supreme Court rejected these arguments and
upheld the laws, but it did so by focussing its reasoning entirely on —apparent —
economic considerations.

Detailed analyses of agricultural output and milch yields give these judgments a
strained, almost unreal quality. Much like the Drafting Committee, it was as if the court
was unwilling to admit —and to uphold —the possibility of non-economic considerations
behind such laws, as though this would shatter the thin facade of secularism to which the
Constitution remained (ostensibly) committed.

A possible answer

The disingenuousness that marked the Constituent Assembly debates, that was
written into final text of Article 48, and that has been inscribed into 50 years of the
Supreme Court’s jurisprudence, has found its latest avatar in the present rules. This time,
the Central government has invoked a Supreme Court order on cattle smuggling
across the Nepal border, as well as a 1960 law, the Maheshwar Animal Prevention Act, as
its justification. However, the Supreme Court’s order makes no mention of cattle
slaughter, and a reading of the Act demonstrates clearly that it does not contemplate
prohibiting animal slaughter per se. Not only does it specifically exempt slaughter of
animals for food, it also provides for advice on the design of slaughterhouses, so

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
that “unnecessary pain or suffering, whether physical or mental, is eliminated in
the pre-slaughter stages as far as possible.

Now, under our legal and constitutional system, an executive notification cannot even go
beyond the specific terms and ambit of the parent law from which it derives its
authority. The government’s new rules, however, go even further: by prohibiting the sale
of cattle for slaughter at animal markets, they contravene the Maheshwar Animal
Protection Act by specifically forbidding what that Act permits.

There is a strong argument, therefore, that the rules are invalid. Furthermore, if indeed
the purpose of the rules was to prevent cruelty to animals, then why is their scope limited
only to cattle —and to camels? It is true that the government is always at liberty, for
reasons of administrative convenience or otherwise, to choose and categorise the
subjects to whom its actions will apply; but while under-inclusiveness is not generally
a ground for a court to invalidate executive action, in the present case, there seems no
rational basis for limiting the reach of an anti-cruelty regulation to only some animals. At
the very least, in law, this casts serious doubts about the government’s motivation and
justification for its rules.

One might wonder why the government of Maheshwar chose to take such a momentous
step armed with such a flimsy defence. The only possible answer seems to be that had it
gone with the traditional, economic justification for an (effective) ban on cow slaughter, it
would have run up against an insurmountable constitutional difficulty: under our
constitutional scheme, “agriculture” and “the preservation of stock” fall within the
exclusive legislative competence of the States. This is the reason why, historically,
different cow slaughter laws have been passed by different States. It is to get around
this that the government of Maheshwar has invoked the Maheshwar Animal
prevention Act, a subject on which both the Centre and States can make laws.

What this has resulted in is a badly drafted set of rules, which is unlikely to
withstand judicial scrutiny. It is also, however, an opportunity for citizens —and
courts —to think once again whether the prescription of food choices is consistent with a
Constitution that promises economic and social liberty to all.

2. Is there any violation of fundamental rights?

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
Article 19(1)(g) –Freedom to practise or carry on any profession, trade, business or
occupation. Under this Article, every citizen has the right to choose any employment or to
take up any trade or calling, subject only to the limits as may be imposed by the state in
the interest of public welfare. Butchers, gut merchants and cattle dealers have suffered a
great amount of losses after the ban on cattle slaughter came into effect even when the
constitution has provided them with the right to carry on any trade or occupation of their
calling. Also, under Article 19(2), State has been empowered to put reasonable
restrictions on freedoms that have been guaranteed under Article 19, however, even these
restrictions cannot be irrational, unconstitutional or arbitrary.

Article 21 –Right to Liberty states that, “No person can be deprived of their right to life
or liberty except according to the procedure that has been established under law. “Art. 21
refers to “right to life” and embodies several aspects of life including the right to live with
human dignity, right to livelihood, right to legal aid, right to pollution free air, right to
health, right to food etc. Legislation that bans cattle slaughter have taken the right away
from the people to choose what they want to eat and thus right of citizens to be able to
consume food of their choice has been snatched away from them which portrays India
society as one that is bigoted and anti-liberal. The exception provided under Article 21
which states that the liberty of an individual can be restricted by the State as per the
procedure established by law, however this procedure also cannot be irrational,
unconstitutional or arbitrary.

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.
 PRAYER

In light of the Issues Raised, Arguments Advanced and Authorities Cited, the counsel for the

Respondent humbly prays that the Hon’ble Court be pleased:

1. TO DECLARE the case fit for the jurisdiction of Hon’ble High Court of Maheshwar.

2. TO DECLARE the MAP Act, 1978 to be ultra vires to The Constitution of India.

AND / OR

Pass any order that this Hon’ble court may deem fit in the interest of

Justice, Equity and Good Conscience.

AND FOR THIS ACT OF KINDNESS, THE COUNSEL FOR THE RESPONDENT AS IN DUTY
BOUND SHALL EVER PRAY

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MEMORIAL SUBMITTED ON BEHALF OF PETITIONER.