W.M.P(MD)Nos.7769, 7769 and 7770 of 2017 in W.P(MD)Nos.10128 and 10129 of 2017 M.V.MURALIDARAN,J. and C.V.KARTHIKEYAN, J

(Order of the court was made by M.V.MURALIDARAN,J.)

This writ petition in W.P(MD)No.10128 of 2017 has been filed to issue 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. 2.This writ petition in W.P(MD)No.10129 of 2017 has been filed to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 dated 23.05.2017 notified by the second respondent and to declare the same as unconstitutional and illegal. 3.The public interest litigation writ petitions are filed challenging the validity of the recent Rule 2017 which amended section 22(b) and section 22(e) of the Prevention of Cruelty to Animals Act, 1960 by introducing Rule 22(b)(iii) and Rule 22(e) of the Prevention of Cruelty to Animals (Regulations of live Stock Markets) Rules, 2017.

4.By filing the instant public interest litigation, the petitioner is attempting to draw the attention of this court as to whether the government of India can impose a restriction upon the choice of food on its citizen. in order to justify the case, the petitioner is also attempting to bring the notice of this court in respect of the following aspects:(i) Whether the government of India is empowered to decide the choice of food on its citizen? (ii) Whether the constitution of India is empowered the government of India to make amendment in a particular act which would against the habit of the larger community adopting their food habit since time immemorial? (iii) Whether the recent amendment would curtail various state enactments in respect of dealing slaughtering of animals? (iv) Whether the recent amendment is against the constitutional rights guaranteed to the citizens of India in respect of right to life including food? (v) Whether the Union of India by introducing the new rule to section 22 of the Prevention of Cruelty to Animals Act, 1960, is interfering with not only the domain of the State Enactments and the existing laws relating to the slaughtering of animals?

5. It is the case that the petitioners are renowned persons and they are part of several social welfare and women welfare organization. They have filed the instant writ petition challenging the rule introduced by way of amendment in the Prevention of Cruelty to Animals Act 1960. For the better understanding the crux of the recent amendment in the above said rule is as follows; 22.(b) no person shall bring a cattle to an animal market unless upon arrival he has furnished a written declaration signed by the owner of the cattle or his duty authorised agent. (iii) stating that the cattle has not been brought to market for sale for slaughter; (e)(i) not sell the animal for purpose of slaughter; (iii) not sacrifice the animal for any religious purpose;” 6.The learned senior counsel appearing for the petitioners would submit that the impugned provision, Rule 22(b)(iii) by prohibiting the purchaser of the cattle from sacrificing for religious purpose is against the object of the parent Act. The learned senior counsel would further contend that the choice of food will depend upon the person to person and the same cannot be curtailed by enacting a law. Further, the Union of India by introducing the new rule to section 22 of the Prevention of Cruelty to Animals Act, 1960, is interfering with not only the domain of the State Enactments and the existing laws relating to the slaughtering of animals, but it is also an act of interference in the food habit of the citizen which is ever lasting since time immemorial. The Union of India by way of recent amendment to the Prevention of Cruelty to Animals Act, 1960 trying to usurping the powers of the state legislature and the same is unconstitutional and ultra-virus. Further he has also pointed out though the central government is empowered to make enactments, it should get the opinion of the State Governments as already several state governments are having enactments dealing upon the slaughtering of animals. In the failure of getting opinion of the state governments concern it shows that the central government taking upper hand in the legal filed forgetting the fact that the subject of the law is in the concurrence list.

7.The learned senior counsel would draw the attention of this court to the recent Judgment of 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 entrenchments of the State in connection with slaughter of animals and depriving the people of their right to choice of food to be unconstitutional. The right to choice of food whether it is a Non Vegetarian or Vegetarian is absolutely part of the right to the personal liberty, conscience and privacy. By imposing such a ban on slaughter of animals for food, the citizens with a choice to eat the flesh of such animals would be deprived of right to food, violates the right to food, privacy and personal liberty, guaranteed under Article 21 of the Constitution of India.

8. The learned senior counsel would also draw the attention of this court to the Judgment of the Constitution Bench of the Hon’ble Apex Court in M.H.Qureashi Vs State of Bihar reported in AIR 1958 SC 731, had observed that cattle feed shall not be wasted to useless cattles as the same would affect nutrition of useful cattles. 9. The learned senior counsel further submitted that the State laws prohibiting total ban on slaughter of Bulls and Bullocks, was quashed by the Hon’ble Supreme Court. The further contention of the

learned senior counsel is 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. It is further submitted that though rule making power is given in the parent act under section 38 (1), but it is not extended to the slaughtering of animals. Therefore by using the rule making power, the 1st respondent cannot frame such a rule, that too, affecting the very fundamental of the food habit of the common people. Further, the complete ban of sale or purchase or resale of animals, would cast a huge economic burden on the farmers. 10. The learned senior counsel vehemently contented that the customs and usage of the people enjoying for time immemorial cannot be prevented by enacting a law when the customs and usages are mixed with part and parcel of their life. The customary law will prevail over the statutory provision and therefore it cannot be prevented by enacting or introducing a new law or by way of amendment. The people of India are eating cattle flesh for quite a long time and it is their one of the choice of food. Further nowadays the word “Palieo” food has become popular which meant eating of non-vegetarian. But by way of introduction of the recent amendment to the Prevention of Cruelty to Animals Act, 1960 the central government is creating chaotic among larger people. 11. On the other hand learned Assistant Solicitor General of India would contend that though the rule is framed by the 1st respondent, it is to be presumed that the rule is framed by the parliament as such presumption is in favour of the Central Government. Further, he has also contented that the introduction of the amendment is completely necessary not only to prevent to the cruelty of animals, but also to protect the agriculture of the country. Moreover, though it is a cattle, the human being is not entitled to subject the cattle under cruelty for slaughtering. Moreover it is an essential act of the Central Government to protect the cattle in order to keep the same for the welfare of the future generation also. Further, the learned Assistant Solicitor General of India argued that as per the order of the Hon'ble Supreme Court in W.P(C)No.881 of 2014 the rule is furnished and issued. The Hon'ble Apex Court issued following order:“Having heard learned counsel for the petitioner, and especially Mr.Sanjay Kumar Pathak, Advocate, representing the Ministry of Environment and Forests, who has informed us that draft Rules have already been prepared, and are under process of finalisation, we are satisfied to direct the competent authority to finalise the Rules, within there months from today. The instant writ petition stands disposed of in the above termss” 12.Further, the learned Assistant Solicitor General of India strongly opposed grant of interim order since the writ petition itself is filed questioning the validity of the order and whether it is against the Constitution of India. Therefore, the Rules issued by the Government of India are only based on the order pased by the Honourble Supreme Court of India in the above said Writ Petition in W.P.(C)No.881 of 2014. Therefore, he sought time of four weeks for filing counter and strongly opposed for granting interim order. 13.In a case in Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat and others reported in (2008)5 SCC 33, the Hon'ble Apex Court in Paragraph Nos.27 and 39, held as follows:27. Had the impugned resolutions ordered closure of municipal slaughter houses for a considerable period of time we may have held the impugned resolutions to be invalid being an excessive restriction on the rights of the butchers of Ahmedabad who practise their profession of meat selling. After all, butchers are practicing a trade and it is their fundamental right underArticle 19(1)(g)of the Constitution which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of the butchery shop alone. There may be also several workmen therein who may become unemployed if the slaughter houses are closed for a considerable period of time, because one of the

conditions of the licence given to the shop-owners is to supply meat regularly in the city of Ahmedabad and this supply comes from the municipal slaughter houses of Ahmedabad. Also, a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is ones personal affair and it is a part of his right to privacy which is included inArticle 21of our Constitution as held by several decisions of this Court.In R. Rajagopal vs. State of TamilnaduAIR 1995 SC 264 (vide para 28) this Court held that the right to privacy is implicit in the right to life and liberty guaranteed byArticle 21.It is a `right to be let alone. 39. We have recently held inGovt of Andhra Pradesh & Ors. vs. Smt. P. Laxmi Devi, JT2008(2) 8 SC 639 that the Court should exercise judicial restraint while judging the constitutional validity of statutes. In our opinion, the same principle also applies when judging the constitutional validity of delegated legislation and here also there should be judicial restraint. There is a presumption in favour of the constitutionality of statutes as well as delegated legislation, and it is only when there is a clear violation of a constitutional provision (or of the parent statute, in the case of delegated legislation) beyond reasonable doubt that the Court should declare it to be unconstitutional. 14.In yet another case in K.C.G.Gajapati Narayan Deo and others vs. State of Orissa reported in AIR 1953 SC 375, the Hon'ble Apex Court in paragraph 9 held as follows:(9) It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of 'bona fides' or 'mala fides' on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a partcular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are law, the motives which impelled it to act are really irrelevant. On the other hand, it the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus alway a question of power vide Cooley's Constitutional Limitations Vol.1, p.379. A distinction, however, exists between a legislature which is legally omnipotent like the British Parliament and the laws promulgated by which could not be challenged on the ground of incompetenty, and a legislature which enjoys only a limited or a qualified jurisdiction. If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject matter of hte statue or in the method of enacting it, transgressed the limits of its constitution powers. Such transgression may be patent, manifest, or direct and it is to this latter class of cases that the expression “colourable legislation” has been applied in certain juridicial pronouncements. The idea conveyed by the expressionis that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the trangression being velied by what appears, on proper examination, to be a mere pretence or disguise. As was said by what appears, on proper examination, to be a mere pretence or disguise. As was siad by Duff, J in 'Attorney-General for Ontario vs. Reciprocal Insurer's 1924 AC 328 at p.337 (B) “Where the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislationfor the purpose of determining what is what the legislature is really doing.” In other words, it is the substance of hte Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from

condemnation. The legislature cannot violate the constitutional prohibition by employing an indirect method. ..... 15.In another Judgement of the Honourable Supreme Court of India Kunji Behari Lal Butail and others vs. State of H.P. and others reported in (2000)3 SCC 40, it is held at aragraphs 9, 10, 13 and 14 are as follows:9.In Supreme CourtEmployees Welfare Association v. Union of India, AIR (1990) SC 334, this Court has held : "A delegated legislation or a subordinate legislation must confirm exactly to the power granted." (para 62) "Rules whether made under Constitution or a statute, must be intra vires the parent law under which power has been delegated." (para 98) 10.In General Officer Commandaig-in-chief & Anr. v. Dr. Subhash Candra Yadav & Anr., AIR (1988) SC 876, it has been held : "Before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is trained; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void." 13.It is very common for the legislature to provide for a general rule making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent Act, (See :Sant Saran Lal & Anr. v. Parsuram Sahu & Ors., AIR (1966) SC 1852, para 19. From the provisions of the Act we cannot spell out any legislative intent delegating expressly, or by necessary implication, the power to enact any prohibition on transfer of land. We are also in agreement with the submission of Shri Anil Divan that by placing complete prohibition on transfer of land subservient to tea estates no purpose sought to be achieved by the Act is advanced so also such prohibition cannot be sustained. Land forming part of tea estate including land sub-servient to tea plantation have been placed beyond the ken of the Act. Such land is not to be taken in account either for calculating area of surplus land or for calculating area of land which a person may retain as falling within ceiling limit. We fail to understand how a restriction on transfer of such land is going to carry out any purpose of the Act. We are fortified in taking such view by the Constitution Bench decision of this Court inMaharao Sahib Shri Bhim Singhji v. Union of India Ors., [1981] 1 SCC 166 whereby sub-section (1) of Section 27of the Urban Land (Ceiling andRegulation) Act, 1976 was struck down as invalid insofar as it imposed a restriction on transfer of any urban or urbanisable land with a building or a portion only of such building which was within the ceiling area. The provision impugned therein imposed a restriction on transactions by way of sale, mortgage, gift or lease of vacant land or buildings for a period exceeding ten years, or otherwise for a period of ten years from the date of the commencement of the Act even though such vacant land, with or without building thereon, fell within the ceiling limits. The Constitution Bench held (by majority) that such property will be transferable without the constraints mentioned in subsection (1) of Section 27of the said Act. Their Lordships opined that the right to carry on a business guaranteed underArticle 19(1) (g)of the Constitution carried with it the right not to carry on business. It logically followed, as a necessary corollary, that the right to acquire, hold and dispose of property guaranteed to citizens underArticle 19(l)(f)carried within it the right not to hold any property. It is difficult to appreciate how could a citizen be compelled to own property against his will though he wanted to alienate it and the land being within the ceiling limits was outside the purview ofSection 3of the Act and that being so the person owning the land was not governed by any of the provisions

of the Act. Reverting back to the case at hand, the learned counsel for the State of Himachal Pradesh has not been able to satisfy us as to how such a prohibition as is imposed by the impugned amendment in the Rules helps in achieving the object of the Act. 14.We are also of the opinion that a delegated power to legislate by making rules 'for carrying out the purposes of the Act' is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself, 16.Therefore, considering the submissions of the learned senior counsel and the learned Assistant Solicitor General and the legal background of the Prevention of Cruelty to Animals Act, 1960, this Court feels considerable force in the arguments advanced by the learned senior counsel in total that a prima facie case exists in favour of the petitioners for granting the interim relief sought for. On the other hand, the submissions of the learned Assitnat Solictior General of India have also been taken up for consideration. However, this Court is not in full agreement that a presumption is in favour of the Central Government when a particular rule is introduced, not by the Parliament, but by the Executive, because the primary aspect is that the subject of the law under consideration is in the State list in Entry No.15. In addition to that, it is also to be kept in mind that the subject of the Prevention of Cruelty to Animals Act is also in the Concurrent list in Entry No.17. At the same time, so for as slaughtering of animals is concerned, it is exclusively in the State list. Under the above background, it should be tested whether the impugned Rule is within the Constitutional and/or legal frame work and have consideration over and above the State enactments in this secular Country. Further, this Court also keeps in mind that the subject of the law under consideration is also in the Concurrent list. Under the above observations, it is necessary to grant the interim relief of stay of the further proceedings of the impugned enactments. 17.For the foregoing reason, the impugned Rule is stayed for a period of 4 weeks and the respondents are directed to file their counter before the expiry of 4 weeks time by serving a copy of counter to the counsel for the petitioners well in advance so as to enable them to be ready with the case for final hearing. Post the matter after four weeks. (M.V.M.J) & (C.V.K.J) 30.05.2017 skn M.V.MURALIDARAN,J. and C.V.KARTHIKEYAN, J skn