Team Code

A3-04

BEFORE THE HON’BLE

SUPREME COURT OF INDICA

In the matter of

SLP (Civil) No.-/2019

SAIYYED REHMAN.............................................................................PETITIONER

V.

STATE OF UTTAM PRADESH.................................................................RESPONDENT

SPECIAL LEAVE PETITION FILED UNDER ARTICLE 136 OF CONSTITUTION

OF INDICA

MEMORANDUM ON BEHALF OF RESPONDENT

 TABLE OF CONTENTS

TABLE OF ABBREVATIONS......................................................

INDEX OF AUTHORITIES....................................

SATEMENT OF JURISDICTION.................

STATEMENT OF FACTS................................................

ISSUES RAISED..............................................

SUMMARY OF ARGUMENTS.................................

ARGUMENTS ADVANCED

PRAYER........................

MEMORANDUM ON BEHALF OF RESPONDENT

 LIST OF ABBREVATIONS

& And
AIR All India Reporter
SC Supreme Court
Art. Article
Anr. Another
No. Number
UOI Union of India
Hon’ble Honourable
V. Versus
Govt. Government
i.e. That is
SLP Special leave petition
BBM Bhartiya Bhakti Morcha
UPLPA Uttam Pradesh Liquor Prohibition Act
UPPA Uttam Pradesh Preservation of Animals

MEMORANDUM ON BEHALF OF RESPONDENT

 INDEX OF AUTHORITIES

CASES

BOOKS

The Constitutional Law of India by M.P. Jain

LAW DICTIONARY

Black’s Law Dictionary

MEMORANDUM ON BEHALF OF RESPONDENT

 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indigo has jurisdiction to hear the instant matter under Article
136 of the Constitution of Indigo. Article 136 of the Constitution of Indigo reads as:

136. Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this
Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India (2) Nothing in clause ( 1 ) shall apply to any
judgment, determination, sentence or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.”

MEMORANDUM ON BEHALF OF RESPONDENT

 STATEMENT OF FACTS

The nation of Indica is in a small country in the sub-continent of Akia. In the 15th general
election of state of Uttam Pradesh, Bhartiya Bhakti Morcha won the election. BBM in its
election manifesto promised the following things- 1) complete liquor ban in the state 2)
Dance bar will be prohibited 3) cow slaughter will be prohibited and punished.

BBM passed an act Uttam Pradesh Liquor Prohibition Act 2019. Which prohibits sale,
purchase, and consumption of liquor in the state of Uttam Pradesh and this act had a proviso
which stated that 5 star hotels with the permission from the competent authority defined in
the act could serve liquor on the price specified by the competent authority. By the same act
of UPPA 2019, the state Government also prohibited any form of bar dance and made it a
criminal offence.

The state brought an amendment to the Uttam Pradesh Preservation of Animals Act 2000.
The newly added sections 5A TO 5D of UPPA 2000 in effect, imposed a total ban, inter alia
on the transportation, slaughter, import and possession of any flesh of cows, bulls and
bullocks slaughtered outside the state of Uttam Pradesh. Also by section 9A and 9B of UPPA
2000, the burden of proving that the slaughter, transport, export outside the state, sale,
purchase or possession of flesh of cow, bull or bullock was not in contravention of the UPPA
2000 is upon the accused.

Saiyyed filed a PIL in the Hon’ble High Court challenging the vires of UPPA Amendment
Act 2019 and UPLPA Act 2019. The Slaughter house association along with Indica hotel
association filed another writ petition challenging the vires of the UPPA Amendment Act
2019 and UPLPA Act 2019. The petitioner raised the following contentions.

 Sections 5A and 55D of UPPA violates article 21 the amendment have taken away the
fundamental right of citizens right of choice and left alone.
 Section 9B of UPPA, 2000 also violates article 21 as the reverse burden of proof
imputed upon the accused to show his innocence is violating the general presumption
of the accused being innocent until proven guilty.
 The amendment challenged on the grounds of being violate of article 19 (1) (g),
freedom of trade.

MEMORANDUM ON BEHALF OF RESPONDENT

  The amendment also violates article 25 and 29.

The respondent’s contentions are –

 Fundamental right is subject to reasonable restrictions.

 The petitioners cannot seek violation of fundamental rights when a legislation seeks to
achieve a “compelling public interest’
 Reasonable restrictions in implementation of directive principles of state policy
should be upheld as being in public interest and individual interest must yield to the
same.
 The court brought within its ambit the right of life for animals as well.

The Hon’ble High Court upheld the validity of the amendment and the petitioners are before
the Hon’ble Supreme Court in a special leave petition under article 136, before a nine judge
bench.

MEMORANDUM ON BEHALF OF RESPONDENT

 SUMMARY OF ARGUMENTS

MEMORANDUM ON BEHALF OF RESPONDENT

 ARGUMENTS ADVANCED

It is humbly submitted that the state of Uttam Pradesh passed the UPLPA Act, 2019 and
UPPA 2000 and thereby regulated liquor ban, cow slaughter ban and prohibition of dance
bar. The present acts is in consonance with the constitutional provisions as only reasonable
restrictions are imposed by the acts in conformity with the constitutional purport and thus the
acts should be declared as good in law.

Article 19 (1) (g) of the constitution of India reads as follows:

“Protection of certain rights regarding freedom of speech, etc – (1) all citizen shall have the
right-

(g) To practice any profession or to carry on any occupation, trade or business.”

However the freedom granted by article 19 (1) (g) is not absolute and reasonable restrictions
can be imposed on it under article 19 (6) of the constitution reads 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 interest of the general public,
reasonable restriction on the exercise of right conferred by the said sub-clause, and in
particular, (nothing in the said sub clause shall affect the operation of any existing law insofar
as it relates to, or prevent the state from making any law relating to-

i. The professional or technical qualifications necessary for practising any

profession or carrying any occupation, trade or business, or
ii. The carrying on by the state or by a corporation owned or controlled by the
state, of any trade, business, industry or service, whether to the exclusion
complete or partial of citizen or otherwise.

To substantiate the stand of the respondent the case of State Of Gujarat V. Mizapur Moti
Quereshi Kasab Zamar the court repelled all arguments on the grounds of fundamental rights
under article 19 (1) (g) and article 14 by stating that, “In the light of the material available in
abundance before us, there is no escape from the conclusion that the protection conferred by
the impugned enactment on cow progeny is needed in the interest of the nation’s economy.

MEMORANDUM ON BEHALF OF RESPONDENT

Merely because it may cause “inconvenience” or some “dislocation” to the butchers,
restriction imposed by the impugned enactment does not cease to be in the interest of the
general public. The former must yield to the latter.”

In the case of Razakbhai Issakbhai Mansuri and Others v. State of Gujarat and Ors the state
of Gujarat held justified in controlling the business in intoxicating liquor by introducing
amendment in the Bombay prohibition act, 1949 the court stated that the restrictions i.e.
production, manufacture, possession, transport, purchase and sale of liquors. imposed by the
impugned provisions arc reasonable and in the public interest, and are, therefore, fully
protected by clause (6) of Article 19.

In the case of Kerala Bar Hotels Association vs State Of Kerala held that the business in
potable liquor is in the nature of res extra commercium and would therefore be subject to
more stringent restrictions than any other trade or business. Thus while the ground of Article
19(1) (g) can be raised, in light of the arguments discussed with regard to Article 14, it cannot
be said that the qualification on that right is unreasonable.

The act does not violate the bar dancers to carry on their profession there is no violation of
article 19 as the dance being conducted is not an expression but a profession where restriction
can be imposed. With regard to article 19 (1) (g) there is no absolute right to conduct trade or
profession and that the same is subject to public order, decency and morality and hence the
restriction is reasonable and justified

MEMORANDUM ON BEHALF OF RESPONDENT

Section 5 A to 5 D of UPPA Act does not violate article 21 of the constitution of India as
right to privacy is not an absolute right. Every fundamental right is subject to reasonable
restriction.

As the test laid down in the case of Justice Puttaswamy (Retd.) and Anr. v Union of India and
Ors. The Supreme Court held that the right to privacy cannot be impinged without a just, fair
and reasonable law. This required existence of a law, which serves a legitimate state aim and
is proportionate to the objective sought to be achieved. The Supreme Court further clarified
that the proportionality test includes the following four aspects

a. Legitimategoal
The measure restricting the right must have a legitimate goal.

 Under Article 48 of the Constitution of India, the State shall endeavour to take steps
for preserving and improving the breeds, and prohibiting the slaughter of cows, calves
and other milch and draught cattle.
 Article 48A of the Constitution of India mandates that the State to enact laws in order
to protect and improve the environment and to make provisions for the safeguard of
forest and wildlife of the country.
 Also, the Constitution casts a Fundamental Duty upon every citizen of India under
Article 51A(g), to protect and improve the natural environment and to have
compassion for living creatures”.
 The ban on cow slaughter was justified because this enactment enabled the State to
protect and improve the environment. The excreta of cow progeny is a source of rich
organic manure which helped in improving the quality of the earth and avoided the
use of chemicals and inorganic manure.
 Also, under Entry 15 of List II (State List), the State Legislatures can make laws to
implement directive contained in Article 48 regarding prohibition of cattle slaughter
as they have been empowered by the Constitution of India to enact laws related to
Preservation, Protection and Improvement of stock.
 The structure of the Constitution of India is such that even a blanket wide ban on
cattle slaughter falls within the ambit of constitutionality and can hence be termed as
constitutional. However, the fact that such type of ban is violative of various
fundamental rights of citizens cannot be disregarded either.

MEMORANDUM ON BEHALF OF RESPONDENT

In the case of Mohd. Hanif Quareshi & Others Vs State of Bihar regarding total ban on the
slaughter of all categories of animal, of the species of bovine cattle.

Supreme Court after going through the issues have reached the following
conclusions:

(i) That a total ban on the slaughter of cows of all ages and calves of cows and calves of
she-buffaloes, male and female, is quite reasonable and valid and is in consonance with
the directive principles laid down in Art. 48,

(ii) That a total ban on the slaughter of she-buffaloes or breeding bulls or working
bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also
reasonable and valid and

(iii) That a total ban on the slaughter of shebuffaloes, bulls and bullocks (cattle or buffalo)
after they cease to be capable of yielding milk or of breeding or working as draught
animals cannot be supported as reasonable in the interest of the general public.

b. Rational connection

It must be a suitable means of furthering the goal.

it is established that cow and her progeny sustain the health of the nation by giving
them the life-giving milk which is so essential an item in a scientifically balanced
diet; the working bullocks are indispensable for our agriculture for they supply power
more than any other animal; the working bullocks are often useful in ploughing the
fields, drawal of water from the wells and also very useful for drawing carts for
transporting grain and fodder from the fields to the residences of farmers as well as to
the agricultural market yards; the dung of the animal is cheaper than the artificial
manures and extremely useful for production of biogas; it is established that the
backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny
and have, on their back, the whole structure of the Indian agriculture and its economic
system; it is expedient to give effect to the policy of the State towards securing the
principles laid down in Articles 47, 48 and in clauses (b) and (c) of Article 39 of the

MEMORANDUM ON BEHALF OF RESPONDENT

 Constitution and to protect, preserve and sustain cow and its progeny;” and the same
contentions were accepted by the State of Gujarat v. Mirzapur Moti Kureshi Kassab
Jamat

c. Necessity
There must not be any less but equally effective alternative

d. Balancing

The measure must not have a disproportionate impact on the right holder.
In the case of State of Gujarat v. Mirzapur moti kureshi kassab jannat it was held that
when prohibition is only with respect to the exercise of the right referable only in a
particular area of activity or relating to a particular matters, there is no total
prohibition hence when total prohibition. Hence when total prohibition is imposed on
the slaughter of cow and her progeny the ban is total with regard to slaughter of one
particular class of cattle and is not on total activity of butchers as they are left free to
slaughter cattle other than those specified in impugned act.

MEMORANDUM ON BEHALF OF RESPONDENT

There is no violation of the fundamental right to practice and propagate religion under article
25 as well as violation of cultural right under article 29.

Article 25 is as follows

Freedom of conscience and free profession, practice and propagation of religion.—

(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, practice
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.

If these people say that by the Following Acts they would not be able to sacrifice a cow on
Bakri Id day. Let me tell the counsel of the appellant that no where it is mentioned in the
Holy Quran that sacrificing a Cow on Bakri Id day is compulsion, it is just that group of
people who were Muslim started sacrificing Cow on Bakri Id ,and it started a trend and
people sacrifice it. As seen by the records there are many Muslims who do not sacrifice a
Cow on Bakri Id day, its not necessary that if you are Muslim so you need to Sacrifice a Cow
or Goat. Some of the Muslims don’t even sacrifice cow on BakrI’d day, In State of West
Bengal and Ors. v. Ashutosh Lahiri this Court has noted that sacrifice of any animal by
Muslims for the religious purpose on BakrI'd does not include slaughtering of cow as the only
way of carrying out that sacrifice. Slaughtering of cow on BakrI'd is neither essential to nor
necessarily required as part of the religious ceremony. An optional religious practice is not
covered by Article 25(1). On the contrary, it is common knowledge that cow and its progeny,
i.e., bull, bullocks and calves are worshipped by Hindus on specified days during Diwali and
other festivals like Makr-Sankranti . These acts just sets a restriction and control to protect
the Cow and its progeny. In Ratilal Panachand Gandhi v. The State of Bombay the court had
held that the second clause of the article 25 does not prevent state from making laws or affect
existing laws. Hence the article 25 is not violated by the Impugned Acts. If the Muslims are

MEMORANDUM ON BEHALF OF RESPONDENT

not willing to agree, then they should start sacrificing Pig or other animal on Bakri id day or
stop slaughtering cow.

Several State Governments and Union Territories (UTs) have enacted cattle preservation laws
in one form or the other.

The following are the three impugned acts-

THE BIHAR PRESERVATION AND IMPROVEMENT OF ANIMALS ACT, 1955

Ban on Slaughter:

Slaughter of cow and calf totally prohibited

Slaughter of bull or bullock of over 15 years of age or has become permanently incapacitated
for work or breeding due to injury, deformity or any incurable disease.

THE UTTAR PRADESH PREVENTION OF COW SLAUGHTER ACT, 1955

‘Beef’ means flesh of cow and of such bull or bullock whose slaughter is prohibited under
the Act’ Ban on Slaughter:

Slaughter of cow totally prohibited.

Slaughter of bull or bullock permitted on ‘fit-for-slaughter’ certificate provided it is over the

age of 15 years or has become permanently unfit for breeding, draught and any agricultural
operations.

Transport of cow outside the State not permitted for slaughter.

Prohibition on sale of beef.

THE MADHYA PRADESH AGRICULTURAL CATTLE PRESERVATION ACT, 1959.

Slaughter of cow, calf of cow, bull, bullock and buffalo calf prohibited.
However, bulls and bullocks are being slaughtered in the light of Supreme Court judgement,
provided the cattle is over 15 years or has become unfit for work or breeding.
Transport or export for slaughter not permitted.
Export for any purpose to another State where cow slaughter is not banned by law is not
permitted.
Sale, purchase, disposal of cow and its progeny and possession of flesh of cattle is prohibited.

MEMORANDUM ON BEHALF OF RESPONDENT

As per Hon’ble Supreme Court Judgement in AWBI V. A. Nagaraja (Animal Welfare Board
Of India vs A. Nagaraja & Ors) in para 62 of the judgement the court observed :

Every species has a right to life and security, subject to the law of the land, which includes
depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding
the rights of humans, protects life and the word “life” has been given an expanded definition
and any disturbance from the basic environment which includes all forms of life, including
animal life, which are necessary for human life, fall within the meaning of Article 21 of the
Constitution. So far as animals are concerned, in our view, “life” means something more than
mere survival or existence or instrumental value for human-beings, but to lead a life with
some intrinsic worth, honour and dignity. Animals’ well-being and welfare have been
statutorily recognised under Sections 3 and 11 of the Act and the rights framed under the Act.
Right to live in a healthy and clean atmosphere and right to get protection from human beings
against inflicting unnecessary pain or suffering is a right guaranteed to the animals
under Sections 3 and 11 of the PCA Act read with Article 51A(g) of the Constitution. Right
to get food, shelter is also a guaranteed right under Sections 3 and 11of the PCA Act

MEMORANDUM ON BEHALF OF RESPONDENT

In the Constitution of India, the powers to enact the laws on several subjects have been
granted to the Parliament as well as the state legislatures. These subjects have been provided
in the lists in the Seventh Schedule of the Constitution. These lists have been divided into
three parts, namely, the Union List (List –I), the State List (List-II) and the Concurrent List
(List-III). The state legislatures are empowered to enact laws on the subjects of List-II
and List-III. Hence the present state government has the full power to make the act.

It is submitted that section 9 B of UPPA 2000 is consistent with article 21 of the constitution
of India on the grounds that the act has been carved out on the principle of justness fairness
and non arbitriness due to the stated reasons as following-

 Because the person is guilty is just a presumption not a conviction.

 In the trial the accused is being given opportunity to establish his case
 And he is being the opportunity of proper and fair trial.

And this is not ultra vires to the constitution.

Even if the burden of proof is upon the accused the same does not amount to inculpation
amounting to conviction but is instead, just a presumption for the purpose

Follows that a legislative interference with the presumption of innocence requires

justification and must not be greater than is necessary illustrates the application and
principles of the test, this contemplation of proportionality is a matter of general principle
between the suppression of the interest of society as a whole and the interest of the individual
in question To correctly do so, the courts must take into consideration a number of factors.

The factors that should be taken into account by the courts when applying the test of
proportionality are further identified and summarized And it is through these factors that the
courts could ensure that proportionality is observed, and whether there really is a pressing
need to impose a legal burden on the accused. The factors to be considered are judicial
deference, classification of offences, construction of criminal liability; element of offences
and defences, significance of maximum penalties, ease of proof and peculiar knowledge, and
presumption of innocence.

1. Judicial Deference- “Parliament, not the court, is in charge of what should be

constituted as elements of a criminal offence, the court will reach a different

MEMORANDUM ON BEHALF OF RESPONDENT

 conclusion from the legislature only when it is apparent that the legislature has
attached insufficient importance to the fundamental right of an individual to be
presumed innocent until proven guilty.”.
To highlight and identify the legitimate aim of a statute, the courts are to consider the
policy goals concerning the enactment of the statute and its impact upon the many
aspects of society. Then, the courts should raise the question of whether the
imposition of a reversal is proportionate to achieve said aim.
2. Classification of Offences- Moving onto the factor of the classification of offences,
the point being made is that the courts could rely on the distinction between
serious[ and regulatory offences to determine or justify the imposition of a reverse
onus.
3. Peculiar Knowledge- The idea behind this factor is to distinguish whether the accused
or the prosecution is at ease to prove a piece of evidence and whether the accused has
peculiar knowledge of a certain matter. The courts would generally impose a reverse
onus where it is easier for the accused to prove a piece of evidence as compared to the
prosecution.

4. Presumption of Innocence- presumption is a mechanism for the courts to reduce the

risk of wrongful convictions, but also increase the risk of wrongful acquittals This
provides the perception that the outcome of wrongful convictions are regarded as
significantly worse than wrongful acquittals. This can be observed especially in cases
that involve substantial punishments.

To prevent wrongful convictions by not being in line with convention rights, the courts have
taken preventive measures and came up with the test, which consists of a number of factors
developed in order to assist the courts in determining the right approach in upholding a
reverse onus.

MEMORANDUM ON BEHALF OF RESPONDENT