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Statement Of Jurisdiction
The Hon’ble High Court Of Mahakaala has jurisdiction over the present matter under Article 226 Of Constitution Of Hindikaala. Article 226 Of Constitution Of Hindikaala reads as follows –
Article 226 – Power of High Courts to issue certain writs -
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise 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
(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1
), without
(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the date on which it is received or from
the date on which the copy of such application is so furnished, whichever is later, or where
the High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of Article 32
Statement Of Facts
- The Republic Of Hindikaala is a democratic and secular country with a written constitution. It has 29 states and 7 Union territories. The majority of the population of the country belongs to Hindu religion. Buddhism, Christianity, Islam, Jainism and Sikhism are the other major religions which are followed by the people of Republic of Hindikaala. The Republic Of Hindikaala is a secular country and thus characterized by diversity of religious beliefs and practices, dressing, cultural outlook, food-habits etc.
- Since 1950 Republic Of Hindikaala and its various states enacted laws for protection of cows. Some of these laws are specifically enacted for protection of cows while some are directed towards protection of animals from cruelty in general. Slaughter and protection of cows is matter of great disharmony between different religions of the Republic Of Hindikaala since long time.
- State Of Mahakaala is situated in western region of country of Hindikaala. It is second most populous state of Republic Of Hindikaala. In 1978 it enacted the Mahakaala Animal Preservation Act, 1978. In 1995, amendments were made in 1978 Act and Amendment Act of 1995 was reserved for the assent of the President. Section 5, 5A, 5B, 5C, 5D, 9A & 9B were inserted by Mahakaala Animal Preservation (Amendment) Act 1995.The Object of the act as given is prohibition of slaughter and preservation of cows, bulls and bullocks useful for milch, breeding, draught or agricultural purposes and for restriction on slaughter for the preservation of certain other animals suitable for the said purposes and to provide for matters connected therewith. Therefore It was enacted to give effect to one of The Directive Principles of State Policy.Article 48 of Constitution of Hindikaala provides for the said object.
- The Object of the Mahakaala Animal Preservation (Amendment) Act 1995 as given is prohibition of slaughter and preservation of cows, bulls and bullocks useful for milch, breeding, draught or agricultural purposes and for restriction on slaughter for the preservation of certain other animals suitable for the said purposes and to provide for matters connected therewith.Therefore It can be seen that it was enacted to give effect to one of the Fundamental Duty given under Article 51(g) of Constitution Of Hindikaala which states that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures”
- Section 5 of said act Extended prohibition on slaughter of cows and calves to bulls and bullocks which was previously limited to prohibition on slaughter of cows and calves.
- After the said act came into force, there was great Political turmoil throughout the Republic Of Hindikaala.Tension was created between those who were beef eaters and who were not. Various religious organizations started large scale mobilization against slaughter of cows. Few individuals were attacked on the accusation that they stored cow- flesh in their home.
- One minority community ‘X’ was affected drastically as beef eating was their common food habit. Moreover, beef was less costly as compared to other non-vegetarian food. As the degree of poverty is higher in community ‘X’, beef eating was an easy source of protein for them. But with the new amended law by the state of Mahakaala, they were deprived of this source.
- After Mahakaala Animal Preservation (Amendment) Act 1995 came into force Writ Petition were filed by various associations and individuals before the Hon’ble High Court of Mahakaala under Article 226 of Constitution of Hindikaala challenging the constitutional validity of Mahakaala Animal preservation (Amendment) Act 1955. Mahakaala Butchers’ Association, a Registered Society is one of the petitioners which is working for the protection of interest of minority community ‘X’.
- The Writ Petition is now posted for final arguments and disposal on 20th^ January 2018.
Statement Of Issues
ISSUE: 1
Whether Writ Petition under Article 226 Of Constitution Of Hindikaala is maintainable?
ISSUE : 2
Does petitioner have locus standi to file Writ Petition on behalf of Community ‘X’.
ISSUE: 3
Whether the prohibitions imposed by Mahakaala Animal Preservation (Amendment) Act 1995 are extraneous with aims & objects of Article 48 Of the Constitution Of Hindikaala?
ISSUE :
Whether the prohibitions imposed by Mahakaala Animal Preservation (Amendment) Act 1995 are extraneous with Fundamental Duty provided under Article 51 (g) Of Constitution Of Hindikaala?
ISSUE: 5
Whether the prohibitions imposed by the State Of Mahakaala on import & export of Cows, Bulls or Bullocks outside the state of Mahakaala as well as Sell,Purchase and disposal of them for the purpose of slaughter is in contravention of Article 301 Of Constitution Of Hindikaala?
Issue:
Whether Fundamental Rights Of Community ‘X’ are violated?
ISSUE: 7
Whether the Mahakaala Animal Preservation (Amendment) Act 1995 is Ultra Vires the constitution Of Hindikaala?
Whether the prohibitions imposed by the State Of Mahakaala on import & export of Cows, Bulls or Bullocks outside the state of Mahakaala as well as Sell, Purchase and disposal of them for the purpose of slaughter is in contravention of Article 301 & 304 (B) Of Constitution Of Hindikaala? It is humbly submitted before Hon’ble High Court that the prohibition imposed by amended act of 1995 on import and export of cows , bulls or bullocks as well as purchase, sale and disposal of them for purpose of slaughter are arbitrary and put restriction on Freedom Of Trade & Commerce which is given under Article 301 Of Constitution Of Hindikaala. Issue – 6 Whether Fundamental Rights Of Community ‘X’ are violated? It is humbly submitted before Hon’ble High Court that section 5D & 5C of Mahakaala Animal Preservation (Amendment) Act 1995 which imposes prohibition on possession of cows, calves, bulls or bullocks is in contravention of Article 21 of Constitution Of Hindikaala which includes right to eat food in it. Section 5A & 5B are also ultravires since it impose restriction on Right to carry on trade, Bussinnes & Occupation as given under Article 19 (1) (g) Of Constitution Of Hindikaala.Moreover Section 5D & 9A are procedurally and substantively unreasonable. Issue – 7 Whether the Mahakaala Animal Preservation (Amendment) Act 1995 is Ultra Vires the constitution Of Hindikaala? It is humbly submitted before Hon’ble High Court that because Mahakaala Animal Preservation (Amendment) Act 1995 violates many Fundamental as well as Constitutional Rights Of Community ‘X’ and the said act is also extraneous with aims & objects of Article 48 and it has no nexus with the object of Article 48 it is Ultra Vires the Constitution Of Hindikaala.
Arguments Advanced
Whether Writ Petition under Article 226 Of Constitution Of Hindikaala against State Of Mahakaala & Others is maintainable?
Article 226 (1) Of Constitution Of Hindikaala states that “Notwithstanding anything in
Article 32 every High Court shall have powers, throughout the territories in relation to
which it exercise 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”. Therefore A Writ Petition can be filed against state
under Article 226 before High Court Of Mahakaala because Article 226(1) expressly provides that a Writ can be issued against Government in appropriate cases. Moreover the matter of constitutional validity of Mahakaala Animal Preservation (Amendment) Act 1995 is related to Violation of Fundamental Rights which forms Part- III of Constitution and Article 226(1) expressly provides that A writ under this article can be filed for enforcement of Fundamental Right conferred by Part III of Constitution. Article 226(1) expressly also provides that A writ under this article can be filed for ‘Any other purpose’ and the matter related to violation of Constitutional Rights as well as matter relating to giving effect to ‘Directive Principles Of State Policies ‘falls within the ambit of word ‘Any other purpose’.Moreover the matter is also related to making one of the Fundamental Duties Of Citizens, A statutory Duty and it also falls within the ambit of word ‘any other purpose’ as stated in Article 226(1) of constitution. Thus the jurisdiction of High Court is not limited to the protection of Fundamental Rights but also other legal rights as is clear from the words ‘any other purpose’. Does petitioner have locus standi to file Writ Petition on behalf of Community ‘X’ The traditional rule is that a person whose constitutional or legal rights is infringed can apply for relief under Article 226.But the Supreme Court has now considerably liberalized the above rule of locus standi .The court now permits the public spirited persons to file a writ petition for enforcement of constitutional and statutory rights of any other person or a class.If that person or a class is unable to invoke the jurisdiction of the High Court due to poverty or any social and economic disability. In case of A.B.S.K Sangh (Rly) v. Union of India , Supreme court held that the A.B.S.K. Sangh (Rly) though an unregistered association could maintain a writ petition under article 226 for the redressal of a common grievance. Justice Krishna Iyer J. Declared : Access to justice through ‘class action ’,’Public interest Litigation, and ‘representative proceedings’ is the present constitutional jurisprudence. The concept of locus standi has undergone a sea change.The court has in its various decision given widest meaning to the concept of locus standi.The public spirited citizens having faith in Rule Of Law are rendering, great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on technical conservative yardstick of the locus standi of obsense of personal loss or injury. Since community ‘X’ is socially and economically backward, and due to their poverty and social reasons unable to invoke jurisdiction of High Court, The petitioner - Mahakaala Butchers’ Association, a Registered Society can file writ petition under
“It does not mean merely that life cannot be extinguished or taken away as for example by imposition and execution of death sentence ,except according to procedure established by law. That is one aspect of right to life. An equally important facet of that right is the right to livelihood because no person and no person can live without the means of livelihood”. Article 48 also violates right to freedom of religion provided in article 25 of constitution. Article 25 states that “(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I - The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II- In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly. The slaughtering of cattle on the occasion of Bakri Eid and every festival is a religious practice
which is protected under Clause (1) of Article 25 of the Constitution of India. By article 48,this
right of Islamic peoples is being violated.Hindikaala ia a secular state which is also now stated in Preamble of constitution and article 25 ensures this secular character of Republic Of Hindikaala which is being infringed by Article 48. Article 29 of constitution is also violated by article 48.Article 29 provides for Protection of interest of minorities. Article 29 states that “(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Article 29 gives minority right to protect their interest,language,script and culture.Isalmic people have culture of slaughtering cows and calves on occasion of Eid- Ul-Fitr and they have right to conserve the same. Moreover prohibitions imposed by Mahakaala Animal Preservation (Amendment) Act 1995 are extraneous with aims & objects of Article 48 Of the Constitution Of Hindikaala. There has been always a debate and conflict on the superiority between Directive Principles Of state Policy and Fundamental Rights.On many occasion supreme court. In the Champakam Dorairajan case (1951 ),supreme court ruled that in case of any conflict between the Fundamental Rights and the Directive Principles, the former would prevail. The supreme Court said in State Of Madras v. Champakam Dorairajan that “ The Directive Principles Of State Policy,which by article 37 expressly made unenforceable cannot override the provision found in Part – 3 which notwithstanding other provisions are expressly made enforceable by appropriate writs,orders or directions under Article 32.The directive principles of state policy have to run and conform as subsidiary to the Chapter on Fundamental Rights.In our opinion that is correct approach in which provisison of part 3 and part 4 can be understood” Therefore Article 48 enroches upon fundamental rights provided under article 21,14, and 29 and also the amemded act of 1995 is extraneous with aims and objects of article
The submission is that the directive principles of the State policy by themselves do not constitute any reason for infringing the fundamental rights. the hidden motive is to ban consumption of meat of bulls and bullocks and this hidden motive will have to be considered while testing reasonableness. Dealing with the right to food and right to nutrition in the context of Article 47 of the Constitution,It is urged that beef is the cheapest animal protein available to the poor. Whether the prohibitions imposed by Mahakaala Animal Preservation (Amendment) Act 1995 are extraneous with Fundamental Duty provided under Article 51 A (g) Of Constitution Of Hindikaala?
Article 51 A (g) states that “to protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for living creatures”
This fundamental duties cannot infringe or enroch upon the fundamental rights
enshrined in part – 3 of constitution. It can only be implemented so as not to enroch
upon fundamental rights of any person. Fundamental duty as provided in article 51 a (g) similarly enroches upon fundamental rights provided under article 14,21,15 and 29 as
It is to be pointed out that restrictions imposed by section 5C & 5D are not reasonable restrictions required in public interest. Whether Fundamental Rights Of Community ‘X’ are violated? The amendments made by The Mahakaala Animal Preservation (Amendment) Act of 1995 are violative of Fundamental Rights of community ‘X’. Fundamental right provided under article 14,19(1)(g),21,25 and 29 are infringed by the amended act of 1995. Article 14 is violated by amended act of 1955. Article 14 provide for right to equality. Article 14 states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India” .It means that every person belonging to any religion have equal rights. It violates Article 14 of constitution by indirectly putting restriction on celebrating Islamic festivals which includes slaughtering of cows. The slaughtering of cattle on the occasion of Bakri Eid and every festival is a religious practice which is protected under Clause (1) of Article 25 of the Constitution of Hindikaala. In this way. It is thus favoring Hindu Religion by protecting Cows because Cows have specially scared place in that religion. The restriction imposed by amended act of 1995 on slaughtering of cows is arbitrary and hence against right to equality enshrined under article 14. In case of E.P. Royappa v. State Of Tamil Nadu Bhagwati J. while delivering judgment on behalf of himself, chandrachud and Krishna Iyer JJ. Said that ‘Equality and arbitrariness are sworn enemies; one belongs to rule of law I a republic while other belongs to whim and caprice of an absolute monarch.When an act is arbitrary , it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of article 14”. In case of International Airport Authority Case Bhagwati J reiterated the same principle in following words :- “It Must…Therefore, now be taken to be well settled that what article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality” Amended Act of 1995 also violates Article 21 of Constitution Of Hindikaala. Article 21 provides for Right to Life and Personal Liberty.Right to life and personal Liberty has been given new dimesions from time to time by the Supreme Court of Hindikaala.Right to life and personal liberty now also includes Right to Food which has now been made clear by Supreme Court in its various decisions. It has been made clear by Supreme Court that Right to life and personal liberty includes Right to get Food in famous case of PUCL v. Union Of India .By putting
restriction on slaughter of Cows, calves ,bulls or bullocks state is putting restrictions on Right to food which is integral part of Fundamental right of life and personal liberty as enshrined in article 21 of constitution. Article 21 also includes Right to livelihood which is now made clear by Supreme Court on many occasions. Supreme Court has ruled out that the word ‘Life’ in article 21 also includes Right to Livelihood in famous case ‘ Olga Tellis v. Bombay Muncipal Corporation’ popularly known as Pavement Dweller’s Case. Court said that “It does not mean merely that life cannot be extinguished or taken away as for example by imposition and execution of death sentence ,except according to procedure established by law. That is one aspect of right to life. An equally important facet of that right is the right to livelihood because no person and no person can live without the means of livelihood” .If the right to livelihood is not treated as a part of constitutional right to lie , the easiest way of depriving a person of his right to life would be to deprive him of his means to livelihood”. Section 5A,5B,5C and 5D of amended act violates Right to livelihood which is now integral part of right to life and personal liberty. It violates right to livelihood by prohibiting export, import, sale & possession of flesh of aforementioned cattle. Article 21 also includes Right to privacy which is made clear by supreme court in many cases.
- This is very recent judgement wherein private activities of people including dietary habits are protected as Fundamental rights. Following might be implications of this judgement in our case- a. Act of eating /possession of beef in PRIVATE might not be considered a crime even in states where beef is banned. b. Government cannot put a raid at one’s home or utilize evidence of private possession of beef to prove someone guilty, as this would be violation of fundamental right to privacy- as dietary habits are now protected. The decision of the nine-judge bench of the Supreme Court in Puttaswamy v Union of India , handed down in late August 2017, affirmed the existence of the fundamental right to privacy under the Constitution. In case of Rajagopal v. state of T.N Popularly knows as ‘Auto Shanker case’ supreme court held that right to privacy is guaranteed by article 21 of constitution. Article 19(1)(g) is violated by amended act of 1995.Article 19 (1)(g) states that “ All citizens shall
have right - to practice any profession, or to carry on any occupation, trade or business.
Restrictions on Article 19(1)(g) can be imposed as given under Article 19(6).Article 19(6) states that “ Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-
weaker sections of muslim community to perform their religious obligation. She pointed out that the sacrifice of a goat is counted and treated as a single qurbani per person whereas, seven mature muslims can join together in case of sacrifice of one cow, bull or bullock. The submission in short is that the sacrifice of bulls and bullocks forms an integral and essential part of the religion of Islam and therefore, a complete ban imposed by the Amendment Act by introducing Section 5 of the Animal Preservation Act infringes fundamental rights guaranteed under Article 25 of the Constitution of Hindikaala. Article 29 is also infringed by provisions of amended act of 1995.Article 29 provides for protection of interest of minorities. It provides that minorities have right to protect their language, script and culture and can preserve the same. But due to new provisions inserted by amended act of 1995 now Muslims or followers of Islam cannot follow their culture and preserve it because of ban of slaughter of cows.Cows sacrifice forms an integral part of festival of Eid-Ul-Adha.Therefore It also violates fundamental right enshrined in article 29. Therefore many fundamental rights are violated because of provisions inserted in Mahakaala Animal Preservation Act 1978 by Mahakaala Animal Preservation (Amendment) Act 1995. Whether the Mahakaala Animal Preservation (Amendment) Act 1995 is Ultra Vires the constitution Of Hindikaala? Yes ,Mahakkala Animal Preservation (Amendment) Act 1995 is Ultra vires the constitution of Hindikaala because as already mentioned that this amended act of 1995 infringes many fundamental right of people of state of Mahakaala. Any law which violates or infringes Fundamental Rights which are contained in part – 3 of constitution are liable to be declared Ultra Vires the constitution of Hindikaala, Because Constitution of Hindikaala is supreme law of land.
Prayer
In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble Court be pleased to:
- Hold that Section 5C & 5D of Mahakaala Animal Preservation (Amendment) Act 1995 are in conflict with article 301 and article 304(B) of constitution of Hindikaala.
- Hold that Section 9B is ultra vires the Constitution of India as the negative burden cast by it virtually means that there is a burden to prove that the accused is innocent.
- Hold that Section 5A,5B,5C & 5D of Mahakaala Animal Preservation (Amendment) Act 1995 are Violating Article 14,19(1)(g),21,25 &29 of constitution of Hindikaala.
- Declare that Mahakaala Animal Preservation (Amendment) Act 1995 is Ultra Vires to the constitution of Hindikaala.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Petitioner as in duty bound, shall humbly pray. Counsel For The Petitioner
