IN THE HON’BLE HIGH COURT

OF
MAHATI

Mahati Butchers Association………………………………………………….Petitioner

V/S
State of Mahati………………………………………………………………..Respondent

MEMORIAL ON BEHALF OF PETITIONER

TABLE OF CONTENTS

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1. List of Abbreviations
2. Index of Authorities
3. Jurisdiction
4. Statement of Facts
5. Statement of Issues
6. Summary of Arguments
7. Arguments Advanced
8. Prayer

LIST OF ABBREVIATIONS

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SL.No Abbreviation Full Form
1 Hon’able Honorable
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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INDEX OF AUTHORITIES
Table of Cases
1. State of Gujarat and Others vs. Akhil Gujarat Pravasi vs. 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

4. State of Tamil Nadu and Others vs. M/s Sanjeetha Trading Co. and Others
5. State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others

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

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

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

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STATEMENT OF JURISDICTION
The petitioner has filed the petition invoking the jurisdiction of the Hon’ble High
Court of Mahati as provided under Art. 226 of the Constitution of India

226. Power of High Courts to issue certain writs

—(1) Notwithstanding anything in article 32, every High Court shall have
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, writs,
including writs in the nature of habeas corpus, mandamus, prohibition,
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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STATEMENT OF FACTS
Republic of Indukush is a Democracy following secularism. It is a federal state with a union and
around 29 states. This country comprises of many religions with diverse culture, practices and food
habits of which beef eating is one. One community considers milch animals as “Holy” according
to their religion while consuming the flesh of cow is the only source of protein for minority X and
cost effective nature of beef makes them rely on it.

State of Mahati is a state belonging to the Republic of Indukush. State of Mahati enacted a law
called The Animal Preservation Act, 2018 which
1. Bans the slaughter of cows, calves and other milch animals
2. Seeks to prohibit the transport( from state of Mahati to another state) the export, purchase, sale,
disposal, of cows, calves, bulls, bullocks for purpose of slaughter
3. Prohibit the possession of the flesh of the cows, calves, bulls, bullocks slaughtered in
contravention of the Act.
4. Criminalises the possession of beef per se-whether or not this was obtained through lawful
slaughter from another state
5. Also stipulates the punishment for the contravention of the Act.
In this regard Mahati Butchers Association filed a petition in High Court of Mahati for protection
of fundamental rights and also state the grievance of the community X

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STATEMENT OF ISSUES
1. Whether this Writ petition is maintainable?
2. Is there any violation of fundamental rights?

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SUMMARY OF ARGUMENTS
As far as the choice of eating food of the citizens is concerned, the citizens are required
to be let alone especially when the food of their choice is not injurious to health. As
observed earlier, even a right to sleep is held as a part of right to privacy which is
guaranteed under Article 21 of the Constitution of India. In fact the State cannot control
what a citizen does in his house which is his own castle, provided he is not doing
something which is contrary to law. The State cannot make an intrusion into his home and
prevent a citizen from possessing and eating food of his choice. A citizen has a right to
lead a meaningful life within the four corners of his house as well as outside his house.
This intrusion on the personal life of an individual is prohibited by the right to privacy
which is part of personal liberty guaranteed by Article 21. The State cannot prevent a
citizen from possessing and consuming a particular type of food which is not injurious to
health (or obnoxious). In the decision in the case of Hinsa Virodhak Sangh, the Apex Court
has specifically held that what one eats is one’s personal affair and it is a part of privacy
included in Article 21 of the Constitution of India. Thus, if the State tells the citizens not to
eat a particular type of food or prevents the citizens from possessing and consuming a
particular type of food, it will certainly be an infringement of a right to privacy as it violates
the right to be let alone. If a particular food is injurious to health or a particular food is
illegally manufactured, it will be a case of compelling public interest which will enable the
State to deprive citizens of the right to privacy by following the procedure established by
law. In the present case, Section 5D prevents a citizen from possessing and from
consuming flesh of a cow, bull or bullock even if it is flesh of a cow,bull or bullock
slaughtered in territories where

1. Whether this Writ petition is maintainable?

The writ petition was filed in the highcourt of Mahati under Article 226. It is contended that the
same is maintainable as the ambit of Article 226 is wide and the availability of alternative remedies
is not a bar to maintainability in cases of writ petition

2. Is there any violation of fundamental rights?

It is humbly contended before the Court that there has been violation of fundamental rights of Mahati
Butchers Association. There has been a violation of the Right to Life and Personal Liberty under Article 21
[1] and violation of Article 14, 16 and 19 (1) (g) on the grounds of banning cow slighter

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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 Mahati Butchers Association is against the law and it is non
constitutional.

The government’s new set of rules on cattle sale is unlikely to withstand judicial
scrutiny
Over the last few days, the Central government’s new Prevention of Cruelty to
Animals (Regulation of Livestock Market) Rules 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
Madras 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
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Krishna”, and called for the prohibition of cow slaughter to be made part of the
Constitution’s chapter on fundamental rights, on a 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 milch 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 slaughter. However, clear and definite

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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

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 Prevention of Cruelty
to Animals 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

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for food, it also provides for advice on the design of slaughterhouses, so 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
Prevention of Cruelty to Animals 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 Central government 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 Central government has invoked the Prevention of
Cruelty to Animals Act, a subject on which both the Centre and States can make
laws.

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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?

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

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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.

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon‟ble Court
be pleased to:

1. To bring central law to allow slaughter of cows, calves and other milch animals.

2. To bring uniformity in state laws on slaughter of cows, calves and other milch animals

3. To order for amending the Article 19(1)(g) to strengthen the slaughter of cows, calves and other
milch animals

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