IN THE COURT OF JUDICATURE AT MADRAS … IN THE COURT OF JUDICATURE AT MADRAS MADURAI BENCH (Special...

1

IN THE COURT OF JUDICATURE AT MADRAS

MADURAI BENCH

(Special Original Jurisdiction)

W.P.(MD)No. of 2017

elvagomathy, D/o.Suriyakannu, Lakeview Road, K.K.Nagar, Madurai ...Petitioner

Vs

1) The Union of India,

Rep. by its Joint Secretary,

Ministry of Environment, Forest and Climate Change,

Indira Paryavaran Bhawan,

Jorbagh Road,

New Delhi – 110 003.

2) The State of Tamil Nadu,

Rep. by its Chief Secretary,

Government of Tamil Nadu

Fort St. George,

Chennai. ....Respondents

AFFIDAVIT OF THE PETITIONER

I, S.Selvagomathy D/o.Suriyakannu, Hindu aged about 45 years presently

residing at Lakeview Road, K.K.Nagar, Madurai now temporarily having come to

Madurai, do hereby solemnly affirm and sincerely state as follows:-

1) I am the petitioner herein and as such I am well acquainted with the facts of

the case. I am competent to swear the present affidavit. I have not filed any other

writ petition for the same relief before this Hon'ble Court or any other forum. I am

filing the present writ petition in public interest as probona publico. I have no

personal interest in the subject matter of the present writ petition and the entire

funds for filing the present writ petition are my own. The present writ petition has

been filed satisfying the regulations framed by this Hon’ble Court to regulate public

interest litigations dated 25.07.2010. In case, this Hon’ble Court, comes to the

conclusion that the present writ petition has been filed otherwise than as stated

above, I undertake to pay any cost that may be imposed by this Hon’ble Court. I am

a social activist and a lawyer. I am the managing trustee of Justice Shivaraj V.Patil

2

Foundation for Social Legal Education and Development, Madurai, which is a non

governmental organisation, working for upliftment of weaker section of the society

such as schedule caste and schedule tribes and minorities. I was also a member of

the monitoring committee appointed by this Hon’ble Court to study and report on

the presence of “Anti Labour Practice” of Women in Textile Mills in Tamil Nadu

called “Sumangali Thittam” . I was also a member of the Child Welfare Committee,

Madurai and had represented India in the International Visitors Leadership

Programme conducted by the Government of United States of America. I have also

authored many books on labour rights, Women empowerment and child rights.

2) I respectfully state that, I am filing the present writ petition praying this

Hon’ble court to issue a writ in the nature of a WRIT OF DECLARATION to

declare Rule 22(b)(iii) and Rule 22(e) of the Prevention of Cruelty to Animals

(Regulations of live Stock Markets) Rules 2017 as ultra vires the Prevention of

Cruelty to Animals Act1960 and Article 14, 19, 21, 25 and 29 of the Constitution of

India.

3) I respectfully state that, India is a multi religious and multi cultural secular

republic ensuring to all its citizens social justice. The constitution of India, clearly

demarcates the powers of the legislatures and also the executive power of the

Union and that of the States. The Parliament enacted the Prevention of Cruelty to

Animals Act, 1960, repealing the Prevention of Cruelty to Animals Act, 1890

(Central Act 11 of 1890), accepting the recommendations of the Committee for

Prevention of Cruelty to Animals appointed to the Government of India. The Act

was primarily intended to provide for a comprehensive law to prevent the infliction

of unnecessary pain or suffering from animals. The said Act defines cruelty to

animals under section 11 to be the following acts and provides for a penalty of a fine

not less than Rs.10 and not exceeding Rs.50/ in case of subjecting any animal to

such cruelty.

(a) Beating, Kicking, Overriding, Overdriving, Overloading torture

Or otherwise treat any animal so as to subject it to unnecessary pain and suffering

3

(b) Employing in any work or labour or for any other purpose any animal which

by reason of its ill health or age is unfit for such employment.

(c) Wilful administration of any injurious drug or substance to the animal

(d) Conveys or carries in a vehicle any animal in such a manner as to subject it

to unnecessary pain or suffering

(e) Keeps for confines any animal in a cage or other receptacle which does not

measure sufficiently in height, length and breath to permit the animal the

reasonable opportunity of movement

(f) Keeps for unreasonable time any animal chained

(g) Being the owner of any animal fails to provide sufficient food, drink and

Shelter

(h) Without any reasonable cause abandons any animals in circumstances

which render it likely that it will suffer pain by reason of starvation of thirst

(i) Wilfully permit any animal to go at large in any street while such animal is

affected contagious or infectious disease or allow if to fie

(j) Has in possession any animal which is suffering pain by reason of

mutilation, starvation, overcrowding or thirst

(k) Mutilates any animal or kills any animal by using the method of strychnine

injection in the heart or in any other unnecessarily cruel manner

(l) Confining or causing to confined any animal so as to make it an object of

prey for any other animal or in sighting any animal to fight or bait any other

animal for the purpose of entertainment

4

(m) Holding any shooting match or competition of animals in captivity or

holding animal fighting.

Thus the Parliament by the Act of 1960 had exhaustively provided the acts

which in the wisdom of legislature amounts to cruelty, which is sought to be

prevented by the Act of 1960. Further, it is to be noted that section 11 also

provides exceptions to the acts stated above under section 11(3), making it clear

that the section would not apply to among other things any commission or

omission of any act in the course of destruction or the preparation for the

destruction of any animal as food for mankind unless, such destruction or

preparation was accompanied by the infliction of unnecessary pain and

suffering. From the above it is clear that the legislature had not categorize

slaughtering of animals for the purpose of food to be an act of cruelty, sought to

be in any way prevented by the Act of 1960. In fact, the scheme of the Act

specifically provides for and permits slaughter of any animal for the purpose of

food. It is also to be noted that though the legislature has specifically sought to

prohibit experiments on animals, the scheme of the Act does not contemplate

any prohibition on slaughter of animals. In fact, the legislature has positively

provided vide section 28, that killing of any animal in any manner required by

the religion of any community to be outside the purview of the Act of 1960.

Therefore, from the above express provisions of the Act, it is clear that the Act of

1960 was not enacted by the Parliament to in any way prohibit or restrict any

act of slaughter of animals for food or for religious sacrifice or the sale of animals

for the same.

4) I respectfully state that, section 38 of the Act of 1960 empowers the 1st

respondent herein to make Rules subject to the condition of previous publication

for carrying out the provisions of the Act and for various other matters enumerated

under section 38(2) of the Act. In other words, the 1st respondent, the Central

Government was empowered by the legislature to make Rules to carry out the

provisions of the Act and for other matters specifically enumerated under section

38(2) of the Act and thus by implication, the 1st respondent was not delegated any

power to make Rules concerning matters outside the purview of the Act. Therefore,

5

the 1st respondent has no competency to make any Rules prohibiting slaughter of

animals for food or religious sacrifice or the sale of animals for such purpose. When

such is the case, the 1st respondent, the Government of India had framed the

impugned Rules, namely “Prevention of Cruelty to Animals (Regulations of live

Stock Markets) Rules 2017, purportedly under section 38 (1) & (2) of the Act of

1960. The said Rules vide Rule 2(e) defines a cattle to mean a bovine animal

including Bulls, Bullocks, Cows, Buffalos, Steers, Heifers and Calves and includes

Camels. Rule 22 of the Rules, provides for restriction on sale of cattle, while the Act

of 1960 does not in any way provide for regulation of sale of cattle except when

animal is suffering pain by reason of mutilation, starvation or ill treatment.

However, Rule 22 mandates that no person shall bring a cattle to a market unless,

he upon arrival furnishes a written declaration signed by the owner of the cattle

that the cattle has not been brought to the market for sale for slaughter. Similarly

rule 22 (e) prohibits a purchaser of a cattle from selling the animal for the purpose

of slaughter or sacrifice the animal for any religious purpose. It is to be noted that

section 28 of the Act of 1960 specifically permits the killing of any animals for

religious sacrifice, while section 11(3) provides for killing of animals for food, while

by the impugned Rules, the 1st respondent claiming to frame Rules to give effect in

the provisions of the Act had infact acted beyond the power of Rule making and

had legislated Rules prohibiting slaughter of animals, which is specifically

permissible under the parent Act. Further, as stated supra, section 38 empowers

the 1st respondent to make Rules only to give effect to the purposes of the Act and

for matters specifically enumerated under sub clause 2 of the said provision, when

slaughter of animals for food or for animal sacrifice and the sale of the same as a

preparatory measure of such slaughter are not sought to be regulated by the

express intention of the Act of 1960, the 1st respondent has no jurisdiction or power

to framed Rules either restricting or prohibiting slaughter of animals for food or

religious sacrifice or sale of them for the same. Thus the impugned Rules are

contrary to the parent enactment and also beyond the Rule making power

delegated to the 1st respondent by the Parliament and therefore, the impugned

provisions are ultra vires in the parent Act namely The Prevention of Cruelty of

Animals Act, 1960.

6

5) I respectfully stated that, the impugned provision, Rule 22(e)(iii) by

prohibiting the purchaser of the cattle from sacrificing any cattle for religious

purpose, when cattle has been defined under the said Rules to include Camels,

Bullocks, Cows, Buffalos and other animals, the 1st respondent has prohibited the

members of various communities in the country, such as Muslims, Sikhs and the

backward classes and Dalits, who as a matter of worship and offering sacrifice

animals falling within the expansive definition of the term cattle under the Rules.

The impugned provisions by prohibiting such slaughter for religious purposes, had

sought to emasculate the right of every citizen to freely practice his religion

according to the belief of his community. The practices associated with religion or

rites perceived by the community to be a part of worship, is a essential facade of

religion, protected under Article 25 of the Constitution of India. It is also to be

noted that a right under Article 25 can be restricted on the grounds of public order

morality and health or grounds enumerated under Article 25(2), only by a law made

by the legislature and not by the delegated executive fiat having no backing of the

enactment made by the legislature. As the impugned provisions have not been

made either on the grounds of public order or morality or health or any justification

of restriction provided under Article 25(2) and also the impugned provisions is not

a legislature made law, the impugned provisions offend the right to freedom of

religion and conscience and is therefore void. Further, it is also to be noted that

slaughtering of animals for food, the foods and culinary made out of such animal

flesh and offering sacrifice of animals is a part of the cultural identity of such

communities, which is protected from any legislative or executive encroachment

under Article 29 of the Constitution of India, which is not been subjected to any

restriction by the framers of the constitution and thus the impugned provision

which prohibits sale, purchase, for slaughter of animals for food and religious

offering is violative of Article 29 of the Constitution of India.

6) I respectfully state that, by the impugned provisions, a citizen has been

deprived of his right to sell or purchase any animal under the definition of the term

cattle under the Rules. The sale of animals is a trade and business and every citizen

has a right to carry on any occupation trade of business, which is guaranteed under

Article 19(1)(g) the Constitution of India. The said right can be subjected to

7

reasonable restriction under Article 19(6) by a law made by the competent

legislature in the interest of public or for providing professional or technical

qualification or so as to monopolize either partly or completely in exclusion of the

other citizens. Similarly by imposing a complete ban on the sale or slaughter of

animals subject matter of the Rule irrespective of whether the animal is

economically useful, is a burdensome interference into the freedom of trade

guaranteed under Article 19 of the Constitution of India. The Hon’ble Supreme

Court has while testing the validity of the slaughter laws, had adopted the doctrine

of economic utility of animals, whereby the court, had while upholding the

prohibition of killing of economically useful animals (Milching Animals), had

struck down any such prohibition in respect of animals who have become

economically useless to the society. The Court has emphasize that a prohibition

imposed on a fundamental right to carry on trade and commerce cannot be

regarded as reasonable if it is impose not in the interest of the general public and a

total prohibition without having regard to the age or utility of the animal, cannot

be set to be in the interest of public. In fact, the Constitution Bench of the Supreme

Court in M.H.Qureashi Vs State of Bihar AIR 1958 SC 731, had observed as

follows:-

“ The maintenance of useless cattle involves a wasteful drain on the nation’s

cattle feed. To maintain them is to deprive the useful cattle of the much needed

nutrition. The presence of so many useless animals tends to deteriorate the

breed”

Similarly State laws providing for total ban on slaughter of Bulls and Bullocks,

was quashed by the Supreme Court. Further, it is also to be noted that any freedom

under Article 19 can be restricted, only by a law made by the legislature and cannot

be curtailed by a delegated executive fiat having no sanction in the parent Act.

Further, the complete ban of sale or purchase or resale of animals, would cast a

huge economic burden on the farmers who find it difficult to feed their children

today but would be required to feed the cattle as it is an offence under the Act of

1960 to starve an animal or failure to maintain it. Therefore, it would be to subject

the farmers to lower level of standard of living and nutrition and would also give

way for Cow Vigilantes to harass farmers under the blessing of the impugned

regulations.

8

7) I respectfully state that, as stated supra, the farmers and other traders

involved in sale of cattle and other animals and slaughter houses and its employees

would be gravely deprived of their right to livelihood as under the impugned

regulations, the sale of animals for slaughter has been prohibited in any animal

market while the definition of animal market under Rule 2(b) covers all places of

sale and therefore by the impugned regulations, a complete ban has been imposed

on the trade of sale or purchase of animals defined as cattle under Rule 2(e) of the

Rules. Therefore, the impugned provisions are in violation of the right to livelihood

under Article 21 of the Constitution of India. Further, the Hon’ble Supreme Court

had in various decisions, held that the right to choice of food (Non Vegetarian or

Vegetarian) is a part of the right to personal liberty, conscience and privacy. By

imposing a ban on slaughter of animals for food, the citizens with a choice to eat

the flesh of such animals would be deprived of such food, which violates the right

to food, privacy and personal liberty, guaranteed under Article 21 of the

Constitution of India.

8) I respectfully state that, the Constitution clearly demarcates the fields of

legislation, for the Parliament and for the State legislatures in the VII Schedule to

the Constitution. It is relevant to note that, the fields of legislation, concerning

“Markets and fairs” and “Preservation or protection and improvement of stocks”,

falls, within entry 28 and 15 of the State list and thus it is only the State legislature,

which is empowered to make laws on the said fields of legislation. The impugned

regulations though have been framed in furtherance of the prevention of Cruelty to

Animals Act, 1960, the impugned provisions and Rules, which tend to regulate live

stock markets with an intention of preserving protecting and improving stocks, is

in pith and substance a legislation on the fields earmarked for the State legislature.

Given the fact, that the parent Act (Act of 1960) itself does not deal with the

regulation of markets for sale of animals or the slaughter of the same, the 1st

respondent cannot make the impugned Rules entrenching into the fields of

legislation occupied by the State legislature by their respective enactments. For

example, in the State of Tamil Nadu, the Tamil Nadu District Municipalities Act

and the Panchayat Act, permit a person to hold animal markets. When the field of

legislation as regards markets and sale of animals for food and sacrifice is occupied

9

by the State legislation, the impugned Rules being delegated legislations cannot

prohibit the holding of markets for sale of animals for food and sacrifice. As the

Rule making power of the delegate is only co extensive as that of the parent Act

and also subject to the limitation place therein, the impugned provisions which

entrench into the powers of the State legislature is unconstitutional and therefore

void.

9) I respectfully state that, as stated supra, the 1st respondent had as a delegate

of the Parliament, sought to legislate on matters falling purely within the domain of

the State legislature and thus the exercise of Rule making power, directly usurping

the legislative powers of the States of the Union, the 1st respondent had breached

the cardinal principle of Federalism, which is a basic structure of our constitution.

Therefore, the impugned rules, which emasculate the State legislature of their

domain of legislation, particularly when the Parliamentary enactment on the

subject does not empower such Rule making, is a direct attack on federal structure

of our Constitution and is therefore void. Further, the Constitutional scheme

provides for primacy of the fundamental rights of citizens over the directive

principles and the fine balance between the two is by itself a façade of the identity

of the Constitution and has been declared by the Hon’ble Supreme Court to be a

basic structure of the Constitution. Therefore, by the impugned provisions, the 1st

respondent had sought to give primacy to the directive principles over the

fundamental rights of citizens and thus has breached the Constitutional identity

and therefore void. It is also relevant to note that recently the Hon’ble Bombay

High Court in the case of Sheik Zahid Mukthar Vs State of Maharastra and the

Allahabad High Court in Saeed Ahamed Vs State of U.P, had held similar

entrenchment of the State in connection with slaughter of animals and depriving

the people of their right to choice of food to be unconstitutional. As the impugned

provisions are ex-facie illegal and beyond the competence of the 1st respondent, and

constrained to approach this Hon’ble Court under Article 226 of the Constitution

of India for the following among other:-

Bar & Bench (www.barandbench.com) 10

G R O U N D S:-

i) The impugned provisions are contrary to the Prevention to Cruelty to

Animals Act, 1960, for the said Act being the parent enactment specifically permits

slaughter of animals and the sale of animals for slaughter, and also vides section 28

permits killing of animals for religious purposes, while the impugned provisions

being delegated legislations which prohibits sale, purchase or sacrifice for religious

purposes is thus ultra vires the Act of 1960 and therefore void.

ii) Section 38 of the Act of 1960 empowers the 1st respondent to make Rules for

carrying out the provisions of the Act and for various other matters specifically

enumerated under section 38(2) of the Act and as prohibition of slaughter for

animals for food and sacrifice or the sale of animals for the same is not part of the

statutory scheme of the Act, the 1st respondent has not been empowered make

Rules in respect thereof and therefore, the impugned provisions are given the Rule

making power delegated by the Parliament to the 1st respondent under the Act of

1960.

iii) The impugned provisions which prohibit the sale or purchase of animals

defined as cattle under the Rules for religious purposes, offends the right to

freedom of religion guaranteed under Article 25 of the Constitution of India.

iv) It is also to be noted that slaughtering of animals for food, the foods and

culinary made out of such animal flesh and offering sacrifice of animals is a part of

the cultural identity of most communities in India, protected from any legislative or

executive encroachment under Article 29 of the Constitution of India, which is not

been subjected to any restriction by the framers of the constitution and thus the

impugned provision which prohibits sale, purchase, for slaughter of animals for

food and religious offering is violative of Article 29 of the Constitution of India.

v) The impugned provisions deprives a citizen of his right to sell or purchase

any animal for sale or slaughter the same as a part of meat vending business is a

burdensome interference into the freedom of trade and business guaranteed under


Article 19(i)(g) of the Constitution of India and the impugned provisions also do

not qualify to be a reasonable restriction as by the impugned provisions, complete

ban on the sale or purchase or slaughter of animals irrespective of their economic

utility thereby even prohibiting sale and slaughter of animals which have ceased to

milk, and thus is an excessive restriction on the right to free trade and business.

vi) The farmers and other traders involved in sale of cattle and other animals and

slaughter houses and its employees would be gravely deprived of their right to

livelihood as under the impugned regulations, the sale of animals for slaughter has

been prohibited in any animal market while the definition of animal market under

Rule 2(b) covers all places of sale and therefore by the impugned regulations, a

complete ban has been imposed on the trade of sale or purchase of animals defined

as cattle under Rule 2(e) of the Rules. Therefore, the impugned provisions are in

violation of the right to livelihood under Article 21 of the Constitution of India.

vii) The right to choice of food (Non Vegetarian or Vegetarian) is a part of the

right to personal liberty, conscience and privacy. By imposing a ban on slaughter of

animals for food, the citizens with a choice to eat the flesh of such animals would

be deprived of such food, which violates the right to food, privacy and personal

liberty, guaranteed under Article 21 of the Constitution of India.

viii) The Constitution clearly demarcates the fields of legislation, for the

Parliament and for the State legislatures in the 7th Schedule to the Constitution. It

is relevant to note that, the fields of legislation, concerning markets and fairs and

preservation or protection and improvement of stocks, falls, within entry 28 and 15

of the State list and thus it is only the State legislature, which is empowered to

make laws on the said fields of legislation. The impugned regulations though have

been framed in furtherance of the prevention of Cruelty to Animals Act, 1960, the

impugned provisions and Rules, which tend to regulate live stock markets with an

intention of preserving protecting and improving stocks, is in pith and substance,

legislation on the fields earmarked for the State legislature. Thus the 1st respondent

has not competence to make Rules on a subject matter falling purely within the

legislative domain of the State Legislature.


ix) The 1st respondent had as a delegate of the Parliament, sought to legislate on

matters falling purely within the domain of the State legislature and thus the

exercise of Rule making power, directly usurping the legislative powers of the

States of the Union, the 1st respondent had breached the cardinal principle of

federalism, which is a basic structure of our constitution. Therefore, the impugned

rules, which emasculate the State legislature of their domain of legislation,

particularly when the Parliamentary enactment on the subject does not empower

such Rule making, is a direct attack on federal structure of our Constitution and is

therefore void.

x) The Constitutional scheme provides for primacy of the fundamental rights of

citizens over the directive principles and the fine balance between the two is by

itself a façade of the identity of the Constitution and has been declared by the

Hon’ble Supreme Court to be a basic structure of the Constitution. Therefore, by

the impugned provisions, the 1st respondent had sought to give primacy to the

directive principles over the fundamental rights of citizens and thus has breached

the Constitutional identity and therefore void.

xi) The impugned provisions which prohibit the sale or purchase for slaughter of

animals such as bovine animals and camel, has created a discriminatory segregation

between the owners, purchasers and people engaged in the slaughter of the animals

covered under the term cattle and owners, purchasers and people engaged in the

slaughter of other animals like goat, sheep or poultry, while the object of the

impugned Rules is to protect and preserve all lives stocks and thus the impugned

provision makes a discriminatory segregation not based on any intelligible

differentia having any nexus with the object sought to be achieved by the Rules and

therefore, offends equal protection of law guaranteed under Article 14 of the

Constitution of India and is therefore void.

The impugned provisions came to be notified on 23.05.2017, when this

Hon’ble court is on vacation and further on the basis of the same, the local bodies

throughout the country have been prohibiting slaughter of animals, creating unrest

among various sections of the society and anti social elements have been policing

every shop and house of persons belonging to the minority communities and Dalits,


and they have been attacked sighting the impugned provisions without any

authority. The authorities are also calling upon all animal markets and meat

vending shops immediately close down. As the impugned provisions are ex-facie

illegal, contrary to the parent Act and the decisions of the Hon’ble Supreme Court

in respect of similar prohibitions, the impugned provisions do not enjoy

presumption of constitutionality and is perse unconstitutional. Hence, I am

constrained to approach this Hon’ble Vacation Court to obtain urgent interim

orders.

Hence, it is therefore prayed that this Hon’ble court may be pleased to grant

an AD-INTERIM STAY of the operation of Rule 22(b)(iii) and Rule 22(e) of the

Prevention of Cruelty to Animals (Regulations of live Stock Markets) Rules 2017

pending disposal of above writ petition and thus render justice.

In these circumstances, it is prayed that this Hon'ble Court may be pleased to

issue an order, writ or direction in the nature of a WRIT OF DECLARATION to

declare Rule 22(b)(iii) and Rule 22(e) of the Prevention of Cruelty to Animals

(Regulations of live Stock Markets) Rules 2017 as ultra vires the Prevention of

Cruelty to Animals Act 1960 and Article 14, 19, 21, 25 and 29 of the Constitution of

India and pass such further or other orders as this Hon'ble Court may deem fit and

proper in the circumstances of the case and thus render justice.

Solemnly affirmed at Madurai

this the th day of BEFORE ME

May 2017 and signed

his name in my presence ADVOCATE : MADURAI



MADURAI BENCH


W.P.(MD)No. of 2017





Jorbagh Road,





Fort St. George,


BATTA

Batta Paid Rs. 60/-

Dated at Madurai this the day of May 2017

Counsel for Petitioner


MEMORANDUM OF WRIT PETITION (UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)

IN THE COURT OF JUDICATURE AT MADRAS MADURAI BENCH


W.P.(MD)No. of 2017 elvagomathy, D/o.Suriyakannu, Lakeview Road, K.K.Nagar, Madurai ...Petitioner

Vs





Jorbagh Road,





Fort St. George,


WRIT PETITION

The address for service of all process is notices is that of his counsels M/s.

AJMAL ASSOCIATES, E.MAREES KUMAR, Advocates at No.108, Law

Chambers, High Court Building Madurai-23. The address for the service of

Respondents all process and notices is that of the same.

For the reasons stated that in the accompanying affidavit, it is prayed that

this Hon'ble Court may be pleased to issue an order, writ or direction in the nature

of a WRIT OF DECLARATION to declare Rule 22(b)(iii) and Rule 22(e) of the

Prevention of Cruelty to Animals (Regulations of live Stock Markets) Rules 2017 as

ultra vires the Prevention of Cruelty to Animals Act1960 and Article 14, 19, 21, 25

and 29 of the Constitution of India and pass such further or other orders as this

Hon'ble Court may deem fit and proper in the circumstances of the case and thus

render justice.

Dated at Madurai this the day of May 2017



S.Selvagomathy, D/o.Suriyakannu, Lakeview Road, K.K.Nagar,


MADURAI BENCH


W.P.(MD)No. Of 2017

Madurai ...Petitioner

Vs

The Union of India,




Jorbagh Road,


And another ....Respondents

TYPED SET OF PAPERS

S.No Date Particulars Page No.

1 1960 Prevention of Cruelty to Animals Act

2 23.05.2017 Impugned Rules

It is certified that the documents filed herewith are true copies from the originals

Dated at Madurai this May 2017



MEMORANDUM OF WRIT MISCELLANEOUS PETITION

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

IN THE HIGH COURT OF JUDICATURE AT MADRAS

MADURAI BENCH


W.M.P (MD) No. of 2017

elvagomathy, D/o.Suriyakannu, Lakeview Road, K.K.Nagar,

in

W.P.(MD) No. of 2017

Madurai ...Petitioner/Petitioner

Vs





Jorbagh Road,





Fort St. George,

Chennai. ....Respondents /Respondents

PETITION FOR AD-INTERIM STAY

For the reasons stated in the accompanying affidavit it is therefore

prayed that this Hon’ble Court may be pleased to grant an AD-INTERIM STAY of

the operation of Rule 22(b)(iii) and Rule 22(e) of the Prevention of Cruelty to

Animals (Regulations of live Stock Markets) Rules 2017 pending disposal of above

writ petition and thus render justice

Dated at Madurai on this day of May 2017.




MADURAI BENCH


W.P.(MD)No. Of 2017

elvagomathy, D/o.Suriyakannu, Lakeview Road, K.K.Nagar, Madurai ...Petitioner

Vs

The Union of India,




Jorbagh Road,


And another ....Respondents

SYNOPSIS

• The Parliament enacted the Prevention of Cruelty to Animals Act, 1960, repealing

the Prevention of Cruelty to Animals Act, 1890 (Central Act 11 of 1890), accepting

the recommendations of the Committee for Prevention of Cruelty to Animals

appointed to the Government of India. The Act was primarily intended to provide

for a comprehensive law to prevent the infliction of unnecessary pain or suffering

from animals. The said Act defines cruelty to animals under section 11 to be the

following acts and provides for a penalty of a fine not less than Rs.10 and not

exceeding Rs.50/ in case of subjecting any animal to such cruelty.

• the Parliament by the Act of 1960 had exhaustively provided the acts which in the

wisdom of legislature amounts to cruelty, which is sought to be prevented by the

Act of 1960. Further, it is to be noted that section 11 also provides exceptions to

the acts stated above under section 11(3), making it clear that the section would

not apply to among other things any commission or omission of any act in the

course of destruction or the preparation for the destruction of any animal as food

for mankind unless, such destruction or preparation was accompanied by the

infliction of unnecessary pain and suffering. From the above it is clear that the

legislature had not categorize slaughtering of animals for the purpose of food to

be an act of cruelty, sought to be in any way prevented by the Act of 1960.


• In fact, the legislature has positively provided vide section 28, that killing of any

animal in any manner required by the religion of any community to be outside

the purview of the Act of 1960. Therefore, from the above express provisions of

the Act, it is clear that the Act of 1960 was not enacted by the Parliament to in any

way prohibit or restrict any act of slaughter of animals for food or for religious

sacrifice or the sale of animals for the same.

• section 38 of the Act of 1960 empowers the 1st respondent herein to make Rules

subject to the condition of previous publication for carrying out the provisions of

the Act and for various other matters enumerated under section 38(2) of the Act.

In other words, the 1st respondent, the Central Government was empowered by

the legislature to make Rules to carry out the provisions of the Act and for other

matters specifically enumerated under section 38(2) of the Act and thus by

implication, the 1st respondent was not delegated any power to make Rules

concerning matters outside the purview of the Act.

• the 1st respondent has no competency to make any Rules prohibiting slaughter of

animals for food or religious sacrifice or the sale of animals for such purpose.

When such is the case, the 1st respondent, the Government of India had framed

the impugned Rules, namely “Prevention of Cruelty to Animals (Regulations of

live Stock Markets) Rules 2017, purportedly under section 38 (1) & (2) of the Act of

1960. The said Rules vide Rule 2(e) defines a cattle to mean a bovine animal

including Bulls, Bullocks, Cows, Buffalos, Steers, Heifers and Calves and includes

Camels. Rule 22 of the Rules, provides for restriction on sale of cattle, while the

Act of 1960 does not in any way provide for regulation of sale of cattle.

• rule 22 (e) prohibits a purchaser of a cattle from selling the animal for the purpose

of slaughter or sacrifice the animal for any religious purpose. It is to be noted that

section 28 of the Act of 1960 specifically permits the killing of any animals for

religious sacrifice, while section 11(3) provides for killing of animals for food,

while by the impugned Rules, the 1st respondent claiming to frame Rules to give

effect in the provisions of the Act had infact acted beyond the power of Rule

making and had legislated Rules prohibiting slaughter of animals, which is

specifically permissible under the parent Act. Further, as stated supra, section 38

empowers the 1st respondent to make Rules only to give effect to the purposes of

the Act and for matters specifically enumerated under sub clause 2 of the said

provision, when slaughter of animals for food or for animal sacrifice and the sale

of the same as a preparatory measure of such slaughter are not sought to be

regulated by the express intention of the Act of 1960, the 1st respondent has no


jurisdiction or power to framed Rules either restricting or prohibiting slaughter of

animals for food or religious sacrifice or sale of them for the same. Thus the

impugned Rules are contrary to the parent enactment and also beyond the Rule

making power delegated to the 1st respondent by the Parliament and therefore,

the impugned provisions are ultra vires in the parent Act namely The Prevention

of Cruelty of Animals Act, 1960.

• Rule 22(e)(iii) by prohibiting the purchaser of the cattle from sacrificing any cattle

for religious purpose, when cattle has been defined under the said Rules to

include Camels, Bullocks, Cows, Buffalos and other animals, the 1st respondent

has prohibited the members of various communities in the country, such as

Muslims, Sikhs and the backward classes and Dalits, who as a matter of worship

and offering sacrifice animals falling within the expansive definition of the term

cattle under the Rules. The impugned provisions by prohibiting such slaughter

for religious purposes, had sought to emasculate the right of every citizen to

freely practice his religion according to the belief of his community. The practices

associated with religion or rites perceived by the community to be a part of

worship, is a essential facade of religion, protected under Article 25 of the


• it is also to be noted that slaughtering of animals for food, the foods and culinary

made out of such animal flesh and offering sacrifice of animals is a part of the

cultural identity of such communities, which is protected from any legislative or

executive encroachment under Article 29 of the Constitution of India, which is not

been subjected to any restriction by the framers of the constitution and thus the

impugned provision which prohibits sale, purchase, for slaughter of animals for

food and religious offering is violative of Article 29 of the Constitution of India.

• by the impugned provisions, a citizen has been deprived of his right to sell or

purchase any animal under the definition of the term cattle under the Rules. The

sale of animals is a trade and business and every citizen has a right to carry on

any occupation trade of business, which is guaranteed under Article 19(1)(g) the

Constitution of India

• The farmers and other traders involved in sale of cattle and other animals and

slaughter houses and its employees would be gravely deprived of their right to

livelihood as under the impugned regulations, the sale of animals for slaughter

has been prohibited in any animal market while the definition of animal market

under Rule 2(b) covers all places of sale and therefore by the impugned


regulations, a complete ban has been imposed on the trade of sale or purchase of

animals defined as cattle under Rule 2(e) of the Rules. Therefore, the impugned

provisions are in violation of the right to livelihood under Article 21 of the


• , the Hon’ble Supreme Court had in various decisions, held that the right to choice

of food (Non Vegetarian or Vegetarian) is a part of the right to personal liberty,

conscience and privacy. By imposing a ban on slaughter of animals for food, the

citizens with a choice to eat the flesh of such animals would be deprived of such

food, which violates the right to food, privacy and personal liberty, guaranteed

under Article 21 of the Constitution of India.

• The Constitution clearly demarcates the fields of legislation, for the Parliament

and for the State legislatures in the VII Schedule to the Constitution. It is relevant

to note that, the fields of legislation, concerning “Markets and fairs” and

“Preservation or protection and improvement of stocks”, falls, within entry 28 and

15 of the State list and thus it is only the State legislature, which is empowered to

make laws on the said fields of legislation. The impugned regulations though

have been framed in furtherance of the prevention of Cruelty to Animals Act,

1960, the impugned provisions and Rules, which tend to regulate live stock

markets with an intention of preserving protecting and improving stocks, is in

pith and substance a legislation on the fields earmarked for the State legislature.

Given the fact, that the parent Act (Act of 1960) itself does not deal with the

regulation of markets for sale of animals or the slaughter of the same, the 1st

respondent cannot make the impugned Rules entrenching into the fields of

legislation occupied by the State legislature by their respective enactments.

• The 1st respondent had as a delegate of the Parliament, sought to legislate on

matters falling purely within the domain of the State legislature and thus the

exercise of Rule making power, directly usurping the legislative powers of the

States of the Union, the 1st respondent had breached the cardinal principle of

Federalism, which is a basic structure of our constitution.

• Hence the present WRIT OF DECLARATION to declare Rule 22(b)(iii) and Rule

22(e) of the Prevention of Cruelty to Animals (Regulations of live Stock Markets)

Rules 2017 as ultra vires the Prevention of Cruelty to Animals Act 1960 and

Article 14, 19, 21, 25 and 29 of the Constitution of India and pass such further or

other orders as this Hon'ble Court may deem fit and proper in the circumstances

of the case and thus render justice


DATES AND EVENTS

1 1960 Prevention of Cruelty to Animals Act

2 23.05.2017 Impugned Rules were notified

.

Dated at Madurai this the January 2017



RTC RESORTS AND HOTELS PVT. LTD.,

DIRECTOR

MEMORANDUM OF WRIT MISCELLANEOUS PETITION (UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)

IN THE COURT OF JUDICATURE AT MADRAS MADURAI BENCH



W.M.P.(MD) No. of 2017

In

W.P.(MD)No. of 2017 RTC Resorts and Hotels Pvt. Ltd., Rep. by its Director, A R Akbar Sheriff, Tiruchirapalli. ...Petitioner / Petitioner

Vs 1) The Union of India,

Rep. by its Joint Secretary (Judicial),

Ministry of Home affairs,

NDCC- II Building,

Jai Singh Road,



Rep. by its Secretary,

Department of Law,

Fort St. George,

Chennai.

3) The Additional Chief Secretary,

Government of Tamil Nadu,

Highways and Minor Ports Department,

Fort. St George,

Chennai.

4) The District Revenue Officer,

Tiruchirapalli District,

Tiruchirapalli.

5) The Divisional Engineer,

Highways,

Projects,

Tiruchirapalli District ....Respondents / Respondent

PETITION FOR DISPENSE WITH

For the reasons stated in the accompanying affidavit, it is prayed that this

Hon'ble Court may be pleased to DISPENSE WITH the production of the Original

impugned legislation in The Right To Fair Compensation And Transparency In


Land Acquisition, Rehabilitation And Re Settlement (Tamil Nadu Amendment)

Act, 2014, ( Tamil Nadu Act No. 1 Of 2015) for the present and thus render justice.

Dated at Madurai this the day of January 2017


IN THE COURT OF JUDICATURE AT MADRAS … IN THE COURT OF JUDICATURE AT MADRAS MADURAI BENCH (Special...

Documents

Transcript of IN THE COURT OF JUDICATURE AT MADRAS … IN THE COURT OF JUDICATURE AT MADRAS MADURAI BENCH (Special...