THE ANIMAL WELFARE BOARD OF INDIA AND ORS. versus UNION OF INDIA & ANR
[2023] 7 S.C.R. 426, Supreme Court of India, 2023
Outcome: Unknown
Segment: Ratio
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THE ANIMAL WELFARE BOARD OF INDIA AND ORS.
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No. 23 of 2016)
MAY 18, 2023
[K. M. JOSEPH, AJAY RASTOGI, ANIRUDDHA BOSE,
HRISHIKESH ROY AND C. T. RAVIKUMAR, JJ.]
Prevention of Cruelty to Animals Act, 1960 – Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 – Prevention
of Cruelty to Animals (Maharashtra Amendment) Act, 2017 –
Prevention of Cruelty to Animals (Karnataka Second Amendment)
Act, 2017 – Held: The expressions Jallikattu, Kambala and Bull
Cart Race as introduced by the Amendment Acts of the three States
have undergone substantial change in the manner they were used
to be practiced or performed and the factual conditions that
prevailed at the time the A. Nagaraja judgment was delivered cannot
be equated with the present situation – The Supreme Court cannot
come to the conclusion that in the changed circumstances,
absolutely no pain or suffering would be inflicted upon the bulls
while holding these sports – But the Court is satisfied that the large
part of pain inflicting practices, as they prevailed in the manner
these three sports were performed in the pre-amendment period have
been substantially diluted by the introduction of these statutory
instruments.
Prevention of Cruelty to Animals Act, 1960 – Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 – Is the Tamil
Nadu Amendment Act referable, in pith and
substance, to Entry 17,
List III of the Seventh Schedule to the Constitution of India, or does
it further and perpetuate cruelty to animals; and can it, therefore,
be said to be a measure of prevention of cruelty to animals? Is it
colourable legislation which does not relate to any Entry in the
State List or Entry 17 of the Concurrent List – Held: The Tamil Nadu
Amendment Act is not a piece of colourable legislation – It relates,
in pith and substance, to Entry 17 of List III of Seventh Schedule to
the Constitution of India – It minimises cruelty to animals in the
concerned sports and once the Amendment Act, along with their
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Rules and Notification are implemented, the bovine sports would
not come within the mischief sought to be remedied by Sections 3,
11(1) (a) and (m) of the 1960 Act.
Prevention of Cruelty to Animals Act, 1960 – Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 – The Tamil
Nadu Amendment Act states that it is to preserve the cultural heritage
of the State of Tamil Nadu – Can the impugned Tamil Nadu
Amendment Act be stated to be part of the cultural heritage of the
people of the State of Tamil Nadu so as to receive the protection of
Article 29 of the Constitution of India – Held: Jallikattu is a type of
bovine sports – It is going on in the State of Tamil Nadu for at least
last few centuries – But whether this has become integral part of
Tamil culture or not requires religious, cultural and social analysis
in greater detail, which is an exercise that cannot be undertaken by
the Judiciary – The question as to whether the Tamil Nadu
Amendment Act is to preserve the cultural heritage of a particular
State is a debateable issue which has to be concluded in the House
of the People – This ought not be a part of judicial inquiry – This
question cannot be conclusively determined in the writ proceedings
– Since legislative exercise has already been undertaken and
Jallikattu has been found to be part of cultural heritage of Tamil
Nadu, the Court would not disrupt this view of the legislature.
Prevention of Cruelty to Animals Act, 1960 – Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 – Is the Tamil
Nadu Amendment Act, in pith and substance, to ensure the survival
and well-being of the native breed of bulls? Is the Act, in pith and
substance, relatable to Article 48 of the Constitution of India – Held:
The Tamil Nadu Amendment Act is not in pith and substance, to
ensure survival and well-being of the native breeds of bulls – The
said Act is also not relatable to Article 48 of the Constitution of
India – Incidental impact of the said Amendment Act may fall upon
the breed of a particular type of bulls and affect agricultural
activities, but in pith and substance the Act is relatable to Entry 17
of List III of the Seventh Schedule to the Constitution of India.
Prevention of Cruelty to Animals Act, 1960 – Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 – Does the
Tamil Nadu Amendment Act go contrary to Articles 51A(g) and
51A(h), and could it be said, therefore, to be unreasonable and
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violative of Articles 14 and 21 of the Constitution of India – Held:
The Tamil Nadu Amendment Act does not go contrary to the Articles
51-A (g) and 51-A(h) and it does not violate the provisions of Articles
14 and 21 of the Constitution of India.
Prevention of Cruelty to Animals Act, 1960 – Prevention of
Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 – Is the
impugned Tamil Nadu Amendment Act directly contrary to the
judgment in A. Nagaraja, and the review judgment dated 16.11.2016
in the aforesaid case, and whether the defects pointed out in the
aforesaid two judgments could be said to have been overcome by
the Tamil Nadu Legislature by enacting the impugned Tamil Nadu
Amendment Act – Held: The Tamil Nadu Amendment Act read along
with the Rules framed in that behalf is not directly contrary to the
ratio of the judgment in the case of A. Nagaraja and judgment of
this Court delivered on 16.11.2016 dismissing the plea for Review
of the A. Nagaraja judgment as the defects pointed out in the
aforesaid two judgments have been overcome by the State Amendment
Act read with the Rules made in that behalf.
Constitution of India – Art. 48 – Recognising rights of animals
– By virtue of Article 48 of the Constitution of India which essentially
operates as a national guideline for law makers, a two-way path
has been devised – The first is imposing duty on the State to organise
agriculture and animal husbandry on modern and
scientific lines –
The second is emphasising the duty of the State to take steps for
preserving and improving the breeds and prohibiting slaughter of
cows and calves and other milch and draught cattle.
Answering the referred questions, the Court
HELD: 1. On the question of conferring fundamental right
on animals there is no precedent. The Division Bench in the case
of A. Nagaraja also does not lay down that animals have
Fundamental Rights. The only tool available for testing this
proposition is interpreting the three Amendment Acts on the
anvil of reasonableness in Article 14 of the Constitution of India.
While the protection under Article 21 has been conferred on
person as opposed to a citizen, which is the case in Article 19 of
the Constitution, it will not be prudent to venture into a judicial
adventurism to bring bulls within the said protected mechanism.
We have our doubt as to whether detaining a stray bull from the
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street against its wish could give rise to the constitutional writ of
habeas corpus or not. In the judgment of A. Nagaraja, the question
of elevation of the statutory rights of animals to the realm of
fundamental rights has been left at the advisory level or has been
framed as a judicial suggestion. This Court does not want to
venture beyond that and leave this exercise to be considered by
the appropriate legislative body. This Court does not think Article
14 of the Constitution can also be invoked by any animal as a
person. While we can test the provisions of an animal welfare
legislation, that would be at the instance of a human being or a
juridical person who may espouse the cause of animal welfare.
[Para 24][464-B-F]
2. In order to come to a definitive conclusion on this
question, some kind of trial on evidence would have been
necessary. It is also not Court’s jurisdiction to decide if a particular
event or activity or ritual forms culture or tradition of a community
or region. But if a long lasting tradition goes against the law, the
law Courts obviously would have to enforce the law. Learned
counsel appearing for the parties, however, have cited different
ancient texts and modern literature to justify their respective
stands. In Public Interest Litigations, this Court has developed
the practice of arriving at a conclusion on subjects of this nature
without insisting on proper trial to appreciate certain social or
economic conditions going by
available reliable literature. In
paragraphs 53 and 73 in the case of Nagaraja, there is judicial
determination about the practice being offensive to the provisions
of the Central Statute. It would be trite to repeat that provisions
of a Statute cannot be overridden by a traditional or cultural event.
Thus, this Court accepts the argument of the petitioners that at
the relevant point of time when the decision in the case of A.
Nagaraja was delivered, the manner in which Jallikattu was
performed did breach the aforesaid provisions of the 1960 Act
and hence conducting such sports was impermissible. [Para
27][465-A-D]
3. The Tamil Nadu Amendment Act contains stipulation to
the effect that conduct of Jallikattu subject to such Rules and
regulations as may be framed by the State Government shall be
permitted. Section 38-B of the Maharashtra Act provides Rule
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making power of the State consistent with the Rules made by the
Central Government. Both these Statutes have become part of
the 1960 Act in their respective States and specifically confer
Rule making power to the States and Rules have been framed. In
such circumstances, as held by this Court in the case of Peerless
General Finance and Investment Co. Ltd., our opinion is that these
Rules have to be read along with the Amendment Acts for their
proper interpretation. So far as the Karnataka Amendment Act
is concerned, two fresh restrictions have been imposed in
conducting Kambala by virtue of introduction of Section 3(2) in
the main Act after Amendment. These conditions ban unnecessary
pain or suffering that would be caused to the animals by the person
in charge of the animals conducting Kambala and make such
practice subject to the conditions as may be specified by the State
Government by notification. Following the same analogy which
we have expressed earlier while reading the Amendment Acts of
Tamil Nadu and Maharashtra, in our opinion the Notification
issued by the State of Karnataka ought to be accorded same status
as Rule and has also to be read as integral part of the Statute, as
amended. These Rules and the Notification ought not to be
segregated from the Amendment Acts for appreciating their true
scope while examining the petitioners’ claim that the Amendment
Acts, analysed in isolation from the said Rules and
the Notification
would be contrary to the findings of this Court in the case of A.
Nagaraja. [Para 29][466-F-H; 467-A-C]
4. The expressions Jallikattu, Kambala and Bull Cart Race
as introduced by the Amendment Acts of the three States have
undergone substantial change in the manner they were used to
be practiced or performed and the factual conditions that
prevailed at the time the A. Nagaraja judgment was delivered
cannot be equated with the present situation. This Court cannot
come to the conclusion that in the changed circumstances,
absolutely no pain or suffering would be inflicted upon the bulls
while holding these sports. But this Court is satisfied that the
large part of pain inflicting practices, as they prevailed in the
manner these three sports were performed in the pre-amendment
period have been substantially diluted by the introduction of these
statutory instruments. Argument was advanced that in reality
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these welfare measures may not be practiced and the system as
it prevailed could continue. This Court, however, cannot proceed
in exercise of judicial power on the assumption that a law ought
to be struck down on apprehension of its abuse or disobedience.
All the three bovine sports, after Amendment, assume different
character in their performance and practice and for these reasons
this Court does not accept the petitioners’ argument that the
Amendment Acts were merely a piece of colourable legislation
with cosmetic change to override judicial pronouncement. Once
the amended Statutes are read with the respective Rules or
Notification, this Court does not find them to encroach upon the
Central legislation. Respondents have cited a large body of
authorities to defend their stand that these are not cases of
colourable legislation but this Court does not consider it
necessary to refer to all these judgments individually as this Court
has come to this conclusion after analysing various statutory
instruments covering the field. [Para 30][467-D-H; 468-A]
5. Can the Amendment Acts be struck down for being
arbitrary? There is a body of cases in which legislations have
been invalidated on this ground. So far as the subject of the present
controversy is concerned, the bulls form a distinct species
referred to as draught or pack animals as opposed to horses,
which are adapted to run. But this Court declines to hold that
just because bulls lack the natural ability to
run like a horse, the
subject-sports which are seasonally held shall be held to be
contrary to the provisions of the 1960 Act. In fact, on behalf of
the respondents it was argued that these genre of bulls are
specially bred and have natural ability to run. There are contrary
views on this point. But in opinion of this Court, no irrational
classification as regards these bull sports have been made by the
legislature so as to attract the mischief which Article 14 of the
Constitution of India seeks to prevent. The validity of a legislative
Act can also be negated on the ground of it being unreasonable.
The element of unreasonableness here is that the bovine species
involved herein are being subjected to unnecessary pain and
suffering mainly for entertainment purpose. But the 1960 Act
itself categorizes several activities which cause pain and suffering,
even to a sentient animal. [Para 31][468-A-E]
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6. In the case of I.N Saksena -vs- State of Madhya Pradesh
this Court had laid down that legislative lists in the Constitution
ought to be interpreted in a wide amplitude. The 1960 Act in
whole and the subjects of the three Amendments directly deal
with the question of prevention of cruelty to animals. There is no
other entry in any of the lists to which this subject could be
connected with. In such circumstances, this Court rejects the
contention of the petitioners that the State Legislatures inherently
lacked jurisdiction to bring these Amendments, which
subsequently received Presidential assent. [Para 34][470-E-F]
7. Next comes the question as to whether even after the
said Amendments, Jallikattu and the other two activities could
be held to be beyond legislative competence of the three
legislative bodies. This Court has already held that the three
Amendment Acts have to be read together with the consequential
Rules or Notifications. In view of this Court, these Rules, once
treated as part of the Acts, alter the manner of conducting these
sports and once these provisions are implemented, the mischief
sought to be remedied by the aforesaid two provisions of 1960
Act (i.e. Sections 3 and 11(1)(a) and (m)) would not be attracted
anymore. Thus, the argument that the Amendment Acts are void
because they seek to override the judgment of A. Nagaraja
cannot be sustained as the basis of that judgment having regard
to the
nature and manner in which the offending activities were
carried on has been altered. [Para 35][470-G-H; 471-A-B]
8. In the light of what had already discussed, this Court
answered the five questions referred to them in the following
terms:-
(i) The Tamil Nadu Amendment Act is not a piece of
colourable legislation. It relates, in pith and substance, to Entry
17 of List III of Seventh Schedule to the Constitution of India. It
minimises cruelty to animals in the concerned sports and once
the Amendment Act, along with their Rules and Notification are
implemented, the aforesaid sports would not come within the
mischief sought to be remedied by Sections 3, 11(1) (a) and (m)
of the 1960 Act.
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(ii) Jallikattu is a type of bovine sports and this Court is
satisfied on the basis of materials disclosed before, that it is going
on in the State of Tamil Nadu for at least last few centuries. This
event essentially involves a bull which is set free in an arena and
human participants are meant to grab the hump to score in the
“game”. But whether this has become integral part of Tamil
culture or not requires religious, cultural and social analysis in
greater detail, which is an exercise that cannot be undertaken by
the Judiciary. The question as to whether the Tamil Nadu
Amendment Act is to preserve the cultural heritage of a particular
State is a debateable issue which has to be concluded in the House
of the People. This ought not be a part of judicial inquiry and
particularly having regard to the activity in question and the
materials in the form of texts cited by both the petitioners and
the respondents, this question cannot be conclusively determined
in the writ proceedings. Since legislative exercise has already
been undertaken and Jallikattu has been found to be part of
cultural heritage of Tamil Nadu, this Court would not disrupt this
view of the legislature. This Court does not accept the view
reflected in the case of A. Nagaraja that performance of Jallikattu
is not a part of the cultural heritage of the people of the State of
Tamil Nadu. This Court does not think there was sufficient
material before the Court for coming to this conclusion. In
the
Preamble to the Amendment Act, Jallikattu has been described
to be part of culture and tradition of Tamil Nadu. In the case of A.
Nagaraja, the Division Bench found the cultural approach
unsubstantiated and referring to the manner in which the bulls
are inflicted pain and suffering, the Division Bench concluded
that such activities offended Sections 3 and 11(1)(a) and (m) of
the 1960 Act. Even if this Court proceeds on the basis that
legislature is best suited branch of the State to determine if
particular animal-sports are part of cultural tradition of a region
or community, or not, if such cultural event or tradition offends
the law, the penal consequence would follow. Such activities cannot
be justified on the ground of being part of cultural tradition of a
State. In A. Nagaraja, the sports were held to attract the restriction
of Sections 3 and 11(1)(a) and (m) of the 1960 Act because of the
manner it was practiced. The Amendment Act read with the Rules
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seek to substantially minimise the pain and suffering and continue
with the traditional sports. The Amendment having received
Presidential assent, this Court does not think there is any flaw in
the State action. “Jallikattu” as bovine sports have to be isolated
from the manner in which they were earlier practiced and
organising the sports itself would be permissible, in terms of the
Tamil Nadu Rules.
(iii) The Tamil Nadu Amendment Act is not in pith and
substance, to ensure survival and well-being of the native breeds
of bulls. The said Act is also not relatable to Article 48 of the
Constitution of India. Incidental impact of the said Amendment
Act may fall upon the breed of a particular type of bulls and affect
agricultural activities, but in pith and substance the Act is relatable
to Entry 17 of List III of the Seventh Schedule to the Constitution
of India.
(iv) Answer to this question is in the negative. The Tamil
Nadu Amendment Act does not go contrary to the Articles 51-A
(g) and 51-A(h) and it does not violate the provisions of Articles
14 and 21 of the Constitution of India.
(v) The Tamil Nadu Amendment Act read along with the
Rules framed in that behalf is not directly contrary to the ratio of
the judgment in the case of A. Nagaraja and judgment of this
Court delivered on 16th November 2016 dismissing the plea for
Review of the A. Nagaraja judgment as this Court is of the opinion
that the defects pointed out
in the aforesaid two judgments have
been overcome by the State Amendment Act read with the Rules
made in that behalf. [Para 40][473-B-H]
9. Decision of this Court on the Tamil Nadu Amendment
Act would also guide the Maharashtra and the Karnataka
Amendment Acts and this Court finds all the three Amendment
Acts to be valid legislations. [Para 41][475-B-C]
Animal Welfare Board of India v. A. Nagaraja and
Others (2014) 7 SCC 547 : [2014] 6 SCR 646; Gram
Panchayat of Village Jamalpur v. Malwinder Singh and
Others (1985) 3 SCC 661 : [1985] 2 Suppl. SCR 28;
Hoechst Pharmaceuticals Ltd. and Others v. State of
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Bihar and Others (1983) 4 SCC 45 : [1983] 3 SCR
130; Shri Prithvi Cotton Mills Ltd. and Another - vs-
Broach Borough Municipality and Others (1969) 2 SCC
283 : [1970] 1 SCR 388; Bhubaneshwar Singh and
Another -vs- Union of India and Others (1994) 6 SCC
77 : [1994] 1 Suppl. SCR 639; Indra Sawhney -vs-
Union of India and Others (2000) 1 SCC 168 : [1999]
5 Suppl. SCR 229; Amarendra Kumar Mohapatra and
Others -vs- State of Orissa and others (2014) 4 SCC
583 : [2014] 2 SCR 1031; State of M.P. -vs- Mahalaxmi
Fabric Mills Ltd. and Others 1995 Supp (1) SCC 642 :
[1995] 1 SCR 756; D.C. Wadhwa DR and Others -vs-
State of Bihar and Others (1987) 1 SCC 378 : [1987] 1
SCR 798; Sri Sri Sri K. C. Gajapati Narayan Deo -vs-
State of Orissa [1954] SCR 1; S.S. Bola and Others vs
B.D. Sardana and Others (1997) 8 SCC 522 : [1997] 2
Suppl. SCR 507; State of Tamil Nadu vs State of Kerala
and Another (2014) 12 SCC 696 : [2014] 12 SCR 875;
Madan Mohan Pathak and Another vs Union Of India
and Others (1978) 2 SCC 50 : [1978] 3 SCR 334;
National Agricultural Cooperative Marketing
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and Others (2003) 5 SCC 23 : [2003] 3 SCR 1; In Re
Punjab Termination of Agreement Act, 2004 [(2017) 1
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and Others vs Union of India and Others (1997) 5 SCC
29 536 : [1996] 10 Suppl. SCR 585; S. T. Sadiq vs
State of Kerala and Others (2015) 4 SCC 400 : [2015]
3 SCR 287; A.R. Antulay vs R.S. Nayak and
Another
(1988) 2 SCC 602 : [1988] 1 Suppl. SCR 1; Maneka
Gandhi vs Union of India and Another (1978) 1 SCC
248 : [1978] 2 SCR 621; Chief Secretary to the
Government, Chennai, Tamil Nadu and Others -vs-
Animal Welfare Board and Another (2017) 2 SCC 144 :
[2016] 8 SCR 477; Rupa Ashok Hurra vs Ashok Hurra
and Another (2002) 4 SCC 388 : [2002] 2 SCR 1006;
State of Bihar and Others vs Indian Aluminium Company
and Others (1997) 8 SCC 360 : [1997] 4 Suppl. SCR
222; M. Karunanidhi -vs- Union of India and Another
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(1979) 3 SCC 431 : [1979] 3 SCR 254; K.T. Plantation
Private Ltd. and Another -vs- State of Karnataka (2011)
9 SCC 1 : [2011] 13 SCR 636; Director of Education
(Secondary) and Another –vs Pushpendra Kumar and
Others (1998) 5 SCC 192 : [1998] 3 SCR 432; Harbilas
Rai Bansal -vs- State of Punjab and Another (1996) 1
SCC 1 : [1995] 6 Suppl. SCR 178; State of Gujarat
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(1983) 2 SCC 33 : [1983] 2 SCR 287; Shayara Bano -
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9 SCR 797; Narayan Dutt Bhatt -vs- Union of India
(2018) SCC OnLine Utt 645; Saurabh Chaudri and
Others -vs- Union of India and Others (2003) 11 SCC
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Pradesh and Others -vs- L.V.A. Dixitulu and Others
(1979) 2 SCC 34 : [1979] 1 SCR 26; Video Electronics
Pvt. Ltd. and Another -vs- State of Punjab and Another
(1990) 3 SCC 87 : [1989] 2 Suppl. SCR 731; Ashok
Kumar Gupta and Another v. State of U.P. and Others
(1997) 5 SCC 201 : [1997] 3 SCR 269; State of U.P.
and Others -vs- Babu Ram Upadhya (1961) 2 SCR 679;
Peerless General Finance and Investment Co. Ltd. and
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Chawla and Dr Pohumal (1959) Supp (1) SCR 904;
Ishwari Khetan Sugar Mills (P) Ltd. and Others -vs-
State of U.P. and Others (1980) 4 SCC 136 : [1980] 3
SCR 331; Federation of Hotel & Restaurant
Association
of India, etc. -vs- Union of India and Others (1989) 3
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-vs- McDowell & Co. and Others (1996) 3 SCC 709 :
[1996] 3 SCR 721; State of W.B. -vs- Kesoram Industries
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564; I.N Saksena -vs- State of Madhya Pradesh (1976)
4 SCC 750 : [1976] 3 SCR 237; T.N. Godavarman
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Others (2013) 8 SCC 234 : [2013] 6 SCR 757; N.R.
Nair and Others -vs- Union of India and Others (2001)
6 SCC 84 : [2001] 3 SCR 353; E.P. Royappa -vs- State
of Tamil Nadu and Another (1974) 4 SCC 3 : [1974] 2
SCR 348; Ajay Hasia and Others -vs- Khalid Mujib
Sehravardi and Others (1981) 1 SCC 722 : [1981] 2
SCR 79; Joseph Shine -vs- Union of India (2018) 2
SCC 189 -referred to.
Case Law Reference
[2014] 6 SCR 646
referred to
Para 2
[1985] 2 Suppl. SCR 28
referred to
Para 9
[1983] 3 SCR 130
referred to
Para 9
[1970] 1 SCR 388
referred to
Para 17
[1994] 1 Suppl. SCR 639
referred to
Para 17
[1999] 5 Suppl. SCR 229
referred to
Para 17
[2014] 2 SCR 1031
referred to
Para 17
[1995] 1 SCR 756
referred to
Para 17
[1987] 1 SCR 798
referred to
Para 17
[1954] SCR 1
referred to
Para 17
[1997] 2 Suppl. SCR 507
referred to
Para 17
[2014] 12 SCR 875
referred to
Para 17
[1978] 3 SCR 334
referred to
Para 17
[2003] 3 SCR 1
referred to
Para 17
[2016] 11 SCR 15
referred to
Para 17
[1996] 10 Suppl. SCR 585
referred to
Para 17
[2015] 3 SCR 287
referred to
Para 17
[1988] 1 Suppl. SCR 1
referred to
Para 17
[1978] 2 SCR 621
referred to
Para 17
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[2016] 8 SCR 477
referred to
Para 18
[2002] 2 SCR 1006
referred to
Para 18
[1997] 4 Suppl. SCR 222
referred to
Para 19
[1979] 3 SCR 254
referred to
Para 19
[2011] 13 SCR 636
referred to
Para 19
[1998] 3 SCR 432
referred to
Para 20
[1995] 6 Suppl. SCR 178
referred to
Para 20
[1983] 2 SCR 287
referred to
Para 20
[2017] 9 SCR 797
referred to
Para 20
[2003] 5 Suppl. SCR 152
referred to
Para 22
[1979] 1 SCR 26
referred to
Para 22
[1989] 2 Suppl. SCR 731
referred to
Para 22
[1997] 3 SCR 269
referred to
Para 22
[1961] 2 SCR 679
referred to
Para 28
[1992] 1 SCR 406
referred to
Para 28
[1959] Supp (1) SCR 904
referred to
Para 33
[1980] 3 SCR 331
referred to
Para 33
[1989] 2 SCR 918
referred to
Para 33
[1996] 3 SCR 721
referred to
Para 33
[2004] 1 SCR 564
referred to
Para 33
[1976] 3 SCR 237
referred to
Para 34
[2012] 1 SCR 923
referred to
Para 36
[2013] 6 SCR 757
referred to
Para 36
[2001] 3 SCR 353
referred to
Para 36
[1974] 2 SCR 348
referred to
Para 37
[1981] 2 SCR 79
referred to
Para 37
(2018) 2 SCC 189
referred to
Para 37
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CIVIL ORIGINAL JURISDICTIONL: Writ Petition (Civil) No.
23 of 2016.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
With
Writ Petition (Civil) Nos. 6, 10 of 2018, Civil Appeal No. 3849 of
2023, Writ Petition (Civil) Nos. 1193 of 2017, 1152 of 2018, 24, 25, 26,
27, 88 of 2016, 1011, 1059, 1188 of 2017, Transferred Case No. 60 of
2021.
Tushar Mehta, SG, K. M. Nataraj, Ms. Aishwarya Bhati, ASGs,
Nikhil Goel, AAG, S. Nagamuthu, V. Giri, Mukul Rohatgi, Krishnan
Venugopal, Sidharth Luthra, Dr. Manish Singhvi, Shyam Divan, Anand
Grover, N. R. Elango, V. K. Khanna, Ms. Mahalakshmi Pavani, Kapil
Sibal, Rakesh Dwivedi, Komal Mehta, Jayanth Muth Raj, Nagamuthu,
Sr. Advs., C. Paramasivam, Y. Arunagiri, M. P. Paramasivam, Rakesh
K. Sharma, A. S. Vairawan Shiva, R. Sudhakaran, G. R. Vikash, Ms.
Shalini Mishra, D. Subrahmanya Bhanu, P. R. Kovilan Poongkuntran,
Ms. Geetha Kovilan, Ms. Jubli Momalia, Sumit Attri, Ritu Anand
Vishwakarma, Ms. Esha Dutta, Vivek Kumar, M/s. Cyril Amarchand
Mangaldas, D. Kumanan, Sheikh F. Kalia, Ms. Anusha Nagarajan Iyer,
Ms. Rupali Samul, Ms. Rishabh Devan Parikh, Subodh S. Patil, Ajay
Singh, Lokesh Kumar Choudhary, Ram Kumar, Ms. Supriya Deshpande,
Ms. Supriya Juneja, Krishnan Agarwal, Ms. Deepanshi Ishar, Ms. Pallavi
Srivastava, Ms. Pritha Srikumar, Asif Ahmed, Akshat Kumar, Ms.
Mansvini Jain, Abhyudaya Shishodia, Karanvir Gogia, Kushagra
Raghuvanshi, Ayush Kaushik, Ms. Supriya Juneja, Ms. Aparna Bhat,
Ms. Karishma Maria, Balendu Shekhar,
Kanu Agrawal, Devashish
Bharuka, Shamik Sananwala, Balaji Srinivasan, Manvendra Singh
Rathore, Ameyavikrama Thanvi, Ms. Swati Ghildiyal, Ms. Samiksha
Anjanwala, Padmesh Mishra, Amrish Kumar, Arvind Kumar Sharma,
Gurmeet Singh Makker, Manish Sharma, Neeraj Sharma, Aaditya
Aniruddha Pande, D.K. Devesh, Arpit Parkash, Vikalp Sharma, Sachin
Patil, Geo Joseph, Risvi Muhammed, Durgesh Gupta, Ms. Pritha Srikumar,
Sudipto Sarkar, Ms. Ria Singh Sawhney, Saurabh Chaudhary, Ms.
Arunima Kedia, Ms. Anne Mathew, P. V. Yogeswaran, Ashish Kumar
Upadhyay, Y. Lokesh, V. Sibi Kargil, V. Kandha Prabhu, L. R.
Venkatesan, Ms. Maitri Goal, Ms. Priyanka Chowdhary, Hemant Kumar
Niranjan, Sachin Kumar Verma, Ms. Yakeen Bishoyi, Satyam Thareja,
Ms. Varnika Singh, Ms. Deeksha Aggarwal, Prateek Kundu, Rohin Bhatt,
Rahul Kumar, Purushottam Sharma Tripathi, Ms. Manisha T. Karia,
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Adarsh Kumar, Aditya Kesar, Ms. Nidhi Nagpal, Vikram Chandravanshi,
Dr. R. R. Deshpande, Amit Anand Tiwari, Ms. Shakun Sharma, Ms.
Devyani Gupta, Ms. Saushriya Havelia, Ms. Tanvi Anand, Anand Dilip
Landge, Hitesh Kumar Sharma, S. K. Rajora, Akhileshwar Jha, Ms.
Niharika Dewivedi, Ms. Shweta Sand, Narendra Pal Sharma, Anubhav
Gupta, C. M. Jha, Anil Kumar Mishra-I, Anil Kumar Mishra, M. Yogesh
Kanna, Mayil Samy K., G. Anandaselvam, Dr. Ram Sankar, Dr. Gayathiri
A. S., S. J. Amith, Sanchit Maheshwari, P. Soma Sundaram, K.
Kumaran, K. Muthu Ganesa Pandian, Kabilan Manoharan, K. Vijay
Anand, V. Pavel, A. Santhakumaran, Ankur S. Kulkarni, Ms. Puspita
Basak, Ms. Priyanka Chaudhary, Bijan Kumar Ghosh, Ravindra
Keshavrao Adsure, Gopal Balwant Sathe, Yash Prashant Sonavane, Ms.
Sakshi Ajit Kale, Rohan Darade, V. N. Raghupathy, Adithya Roy,
Manendra Pal Gupta, Md. Apzal Ansari, C. Ravichandran Iyer, Reegan
S. Bel, C. M. Sundaram Iyer, Keerthi Priyan, N. Rajaraman, Vishnu
Sharma, Rakesh K. Sharma, Tomy Chacko, Neeleswar Pavani, Ms.
Shaurya Mishra, Vibhuti Sushant Gupta, Narender Kumar Verma, M. Y.
Deshmukh, M. Thanga Durai, Ms. Racheeta Chwla, Eklavya Dwivedi,
Ms. Sansriti Pathak, Ms. Monika Dwivedi, Ms. Divya Singh, Kushal
Sarkar, Vinodh Kanna B., Nishant Ramakantrao Katneshwarkar, Mrs.
Naresh Bakshi, Ajay Pal, Mayank Dahiya, Ms. Priyanka C., Kupdeep
Singh Kuchaliya, C. K. Sasi, Abdulla Naseeh V. T., Ms. Meena K.
Poulose, Kabir
Hathi, Ms. Jesal Wahi, Anand Sanjay M. Nuli, Dharm
Singh, Suraj Kaushik, Nanda Kumar K. B., Shiva Swaroop, M/s. Nuli &
Nuli, Ranjeth Marar, Prabhurama Subramanian, Raghunatha Sethupathy
B, Karuppaiah Meyyappan, Ms. Kanika K., Ms. Pariksha, Bharathi
Mohan, Ms. Priya, S. Sabari Bala Pandian, Mrs. Malavika Jayanth, Ms.
Miranda Solaman, Sudhakaran, T. Harish Kumar, Goutham Shivshankar,
P. Rajalakshmi, Ms. Ruchira Goel, Adit Jayeshbhai Shah, Rajesh Kumar
Chaurasia, Ganga Sagar Singh, Ashish Kumar Chaurasiya,, Advs. for
the appearing parties.
Applicant-in-person
The Judgment of the Court was delivered by
ANIRUDDHA BOSE, J.
Leave granted in Special Leave Petition (C) No.3528 of 2018.
2. In the case of Animal Welfare Board of India -vs- A.
Nagaraja and Others [(2014) 7 SCC 547], a Division Bench of this
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Court had essentially outlawed two common sports practised in the States
of Tamil Nadu and Maharashtra popularly referred to as ‘Jallikattu’ and
‘Bullock Cart Race’ respectively. These bovine sports were held to be
contrary to the provisions of Sections 3, 11(1)(a) and (m) of the Prevention
of Cruelty to Animals Act, 1960 (“1960 Act”) which is a Statute enacted
by the Parliament. The two Judge Bench had construed the said
provisions in the Constitutional backdrop of Article 51-A (g) and (h) as
also Articles 14 and 21 of the Constitution of India. This judgment was
delivered on 7th May 2014. At that point of time, Jallikattu was regulated
by a State Act in Tamil Nadu, being Tamil Nadu Regulation of Jallikattu
Act, 2009. The Bench held that this State Act was repugnant to the
provisions of the 1960 Act and was held to be void, having regard to the
provisions of Article 254 (1) of the Constitution of India. On 7th January
2016, a notification was issued by the Ministry of Environment, Forest
and Climate Change (“MoEF&CC”) [bearing number GSR 13 (E)].
This notification was issued in exercise of the powers conferred by
Section 22 of the 1960 Act and prohibited exhibition or training of bulls
as performing animals. However, an exception was carved and it was
specified in this notification that bulls might be continued to be trained as
performing animals at events such as Jallikattu in Tamil Nadu and Bullock
Cart Races in Maharashtra, Karnataka, Punjab, Haryana,
Kerala and
Gujarat in the manner by the customs of common community or practice
traditionally under the customs or as part of culture in any part of the
country. In the State of Karnataka, the race involved male buffaloes,
known in that State as “Kambala”. This exception, however, was made
subject to certain conditions seeking to reduce the pain and suffering of
bulls while being used in such sports. A batch of writ petitions i.e. W.P.
(C) Nos. 23 of 2016, 24 of 2016, 25 of 2016, 26 of 2016, 27 of 2016, 88
of 2016, 1059 of 2017, 1011 of 2017, 1188 of 2017, 1193 of 2017, SLP(C)
No.3528 of 2018 and SLP(C) Nos. 3526-3527 of 2018 were instituted
before a Division Bench of this Court questioning legality of the said
notification. The petitioners in those proceedings also sought compliance
with the directions of this Court contained in the case of A. Nagaraja
(supra).
3. The first of these writ petitions have been brought by Animal
Welfare Board of India and others including one Anjali Sharma, but in
course of hearing, the Animal Welfare Board changed its stance and
sought to support the stand of the State and Union of India mainly on the
ground that the 1960 Act and certain State Amendments which were
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enacted in the year 2017 were not repugnant and the Board had framed
guidelines to prevent suffering of the bovine species during holding of
the aforesaid events. We shall refer to the three State Amendment Acts
later in this judgment. However, the second writ petitioner- Anjali Sharma,
a practicing advocate of this Court and also a member of the Board
prosecuted the aforesaid writ petition as a single writ petitioner.
4. In connection with W.P.(C) No.1188 of 2017, an Interlocutory
Application (170346 of 2022) has been filed by one Vikramsinh Nivrutti
Bhosale on the strength of his being an agriculturalist in Maharashtra.
He has argued that the challenge to the Maharashtra Amendment Act,
if sustained, could hamper lives of farmers still associated with Bullock
Cart Race. It is also his argument that the Amendment Act of Maharashtra
is also relatable to entry 15 of List II of the Seventh Schedule of the
Constitution of India which stipulates:-
“Preservation, protection and improvement of stock and prevention
of animal diseases; veterinary training and practice”.
5. The Prevention of Cruelty to Animals (Tamil Nadu Amendment)
Act, 2017,(“Tamil Nadu Amendment Act”), The Prevention of Cruelty
to Animals (Maharashtra Amendment) Act, 2017 (“Maharashtra
Amendment Act”) and The Prevention of Cruelty to Animals (Karnataka
Second Amendment) Act, 2017 (“Karnataka Amendment Act”) were
enacted by the respective State Legislatures
and had received Presidential
assent. We shall refer to these Acts in greater details in this judgment.
These Amendment Acts in substance seek to legitimise various types of
bovine sports including Jallikattu in Tamil Nadu, Bullock Cart Race in
Maharashtra and Kambala in Karnataka. The term Jallikattu as defined
in the Tamil Nadu Amendment Act is as follows:-
“(dd) “Jallikattu” means an event involving bulls conducted
with a view to follow tradition and culture on such days from
the months of January to May of a calendar year and in such
places, as may be notified by the State Government, and includes
“manjuviratu”, “vadamadu” and “erudhuvidumvizha”.”
In the Karnataka Amendment Act, the term Kambala has been
defined, upon Amendment of the parent Statute as:-
“(aa) “Bulls race or Bullock cart race” means any form of
bulls race including race of Bullock cart as a traditional sports
involving Bulls whether tied to cart with the help of wooden
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yoke or not (in whatever name called) normally held as a
part of tradition and culture in the state on such days and
places, as may be notified by the State Government.”; and
(ii) after clause (d), the following shall be inserted, namely:-
(dd) “Kambala” means the traditional sports event involving
Buffalo’s (male) race normally held as a part of tradition and
culture in the state on such days and places, as may be notified
by the State Government.”
Bullock Cart Race as held in Maharashtra has been defined under
Section 2 of the Amendment Act as:-
“(bb) “bullock cart race” means an event involving bulls or
bullocks to conduct a race, whether tied to cart with the help
of wooden yoke or not (by whatever name called), with or
without a cartman with a view to follow tradition and culture
on such days and in any District where it is being traditionally
held at such places, as may be previously approved by the
District Collector, and also known as “Bailgada Sharyat”,
“Chhakadi” and “Shankarpat” in the State of Maharashtra.”
6. A Public Interest Litigation (“PIL”) was brought before the
High Court of Judicature at Bombay, registered as PIL (stamp) number
23132 of 2017 (Ajay Marathe vs. The State of Maharashtra and
Others) challenging certain proposed Rules brought by the State of
Maharashtra under the heading “The Maharashtra Prevention of Cruelty
to Animals (Conduct of Bullock Cart Race) Rules, 2017” permitting
Bullock Cart Race and on 11th October 2017, the
High Court restrained
conducting of Bullock Cart Races within the State of Maharashtra. The
aforesaid Rules sought to regulate organisation of Bullock Cart Races.
7. A farmer from that State, Vikramsinh Nivrutti Bhosale from
the District of Sanghli, has instituted Special Leave Petition (Civil) 3528
of 2018 assailing that order passed by the Bombay High Court and in
this reference, we shall deal with certain points raised in the said special
leave petition as well.
8. A Division Bench of this Court by an order passed on 2nd
February 2018 formulated five questions to be answered by a Constitution
Bench and the papers were directed to be placed before the Hon’ble
Chief Justice of India. The Division Bench had formulated the following
5 questions which we have to answer in this judgment:-
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i.
“Is the Tamil Nadu Amendment Act referable, in pith
and substance, to Entry 17, List III of the Seventh
Schedule to the Constitution of India, or does it further
and perpetuate cruelty to animals; and can it, therefore,
be said to be a measure of prevention of cruelty to
animals? Is it colourable legislation which does not
relate to any Entry in the State List or Entry 17 of the
Concurrent List?
ii.
The Tamil Nadu Amendment Act states that it is to
preserve the cultural heritage of the State of Tamil Nadu.
Can the impugned Tamil Nadu Amendment Act be stated
to be part of the cultural heritage of the people of the
State of Tamil Nadu so as to receive the protection of
Article 29 of the Constitution of India?
iii.
Is the Tamil Nadu Amendment Act, in pith and
substance, to ensure the survival and well-being of the
native breed of bulls? Is the Act, in pith and substance,
relatable to Article 48 of the Constitution of India?
iv.
Does the Tamil Nadu Amendment Act go contrary to
Articles 51A(g) and 51A(h), and could it be said,
therefore, to be unreasonable and violative of Articles
14 and 21 of the Constitution of India?
v.
Is the impugned Tamil Nadu Amendment Act directly
contrary to the judgment in A. Nagaraja (supra), and
the review judgment dated 16th November, 2016 in the
aforesaid case, and whether the defects pointed out in
the aforesaid two judgments could be said to have been
overcome by the Tamil Nadu
Legislature by enacting
the impugned Tamil Nadu Amendment Act?”
9. The Presidential assent was sought for by the three States in
terms of Article 254(2) of the Constitution of India. On behalf of the
petitioners, the very act of assent of the President has been questioned
and citing the judgment of this Court in the case of Gram Panchayat of
Village Jamalpur -vs- Malwinder Singhand Others [(1985) 3 SCC
661] it has been argued that for obtaining such assent, complete details
were not disclosed before the President. The judgment of this Court in
Hoechst Pharmaceuticals Ltd. and Others-vs- State of Bihar and
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Others [(1983) 4 SCC 45] was also cited by the petitioners to contend
that such assent of the President is relevant only if the legislation is
relatable to an Entry in List III of Seventh Schedule of the Constitution.
But in our view, the Amendment Statutes are relatable to Entry 17 of
List III of Seventh Schedule and hence we do not consider it necessary
to deal with the ratio laid down in the case of Hoechst
Pharmaceuticals (supra). Certain other judgments were also cited in
support of this proposition. We shall express our opinion on this point in
subsequent part of this judgment.
10. In W.P. (C) No.1152 of 2018, the legality of the Karnataka
Amendment Act has been challenged. This petition was tagged with
W.P.(C) No.1059 of 2017 by an order dated 7.12.2018. W.P.(C) No.1059
of 2017 was heard along with T.C. (C) No.60 of 2021, a three-Judge
Bench of this Court took cognizance of the Karnataka and Maharashtra
Amendment Acts and in an order passed by the said Bench on 16.12.2021,
it was observed:-
“The entire matter in relation to similar amendments made by
the State of Tamil Nadu and State of Karnataka is now referred
to the Constitution Bench, including to consider the question
whether these amendment Acts (of State of Tamil Nadu)
overcome the defects pointed out in the two judgments of this
Court. Similar question would arise in these writ petitions
and transferred case from Maharashtra concerning the
provisions of State of Maharashtra. Hence, these
writ petitions
be heard along with writ petitions pertaining to the State of
Tamil Nadu and State of Karnataka.”
11. In the judgment of A. Nagaraja (supra), dealing with Jallikattu
and Bullock Cart Race in Maharashtra, the Division Bench of this Court
found bulls to be non-suitable for being involved in any sports. The Bench
found that the bulls were not performing animals having no natural
inclination for running like a horse. The reasoning of the Bench in the
case of A. Nagaraja (supra) would appear, inter-alia, from paragraphs
33, 37, 41, 44, 53 and 73. It has been held by the Court in these paragraphs:-
“33. The PCA Act is a welfare legislation which has to be
construed bearing in mind the purpose and object of the Act
and the directive principles of State policy. It is trite law that,
in the matters of welfare legislation, the provisions of law
should be liberally construed in favour of the weak and infirm.
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The court also should be vigilant to see that benefits conferred
by such remedial and welfare legislation are not defeated by
subtle devices. The court has got the duty that, in every case,
where ingenuity is expanded to avoid welfare legislations, to
get behind the smokescreen and discover the true state of
affairs. The court can go behind the form and see the
substance of the devise for which it has to pierce the veil and
examine whether the guidelines or the regulations are framed
so as to achieve some other purpose than the welfare of the
animals. Regulations or guidelines, whether statutory or
otherwise, if they purport to dilute or defeat the welfare
legislation and the constitutional principles, the court should
not hesitate to strike them down so as to achieve the ultimate
object and purpose of the welfare legislation. The court has
also a duty under the doctrine of parens patriae to take care
of the rights of animals, since they are unable to take care of
themselves as against human beings.”
Xxx
“37. Section 11 generally deals with the cruelty to animals.
Section 11 confers no right on the organisers to conduct
Jallikattu/bullock cart race. Section 11 is a beneficial
provision enacted for the welfare and protection of the animals
and it is penal in nature. Being penal in nature, it confers
rights on the animals and obligations on all persons, including
those who are in charge or care of the animals, AWBI,
etc. to
look after their well-being and welfare.”
xxx
“41. Section 11(3) carves out exceptions in five categories
of cases mentioned in Sections 11(3)(a) to (e), which are as
follows:
“11. (3) Nothing in this section shall apply to—
(a) the dehorning of cattle, or the castration or branding
or nose-roping of any animal, in the prescribed manner;
or
(b) the destruction of stray dogs in lethal chambers or by
such other methods as may be prescribed; or
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(c) the extermination or destruction of any animal under
the authority of any law for the time being in force; or
(d) any matter dealt with in Chapter IV; or
(e) the commission or omission of any act in the course of
the destruction or the preparation for destruction of any
animal as food for mankind unless such destruction or
preparation was accompanied by the infliction of
unnecessary pain or suffering.”
Exceptions are incorporated based on the “doctrine of
necessity”. Clause (b) to Section 11(3) deals with the
destruction of stray dogs, out of necessity, otherwise, it
would be harmful to human beings. Clause (d) to Section
11(3) deals with matters dealt with in Chapter IV,
incorporated out of necessity, which deals with the
experimentation on animals, which is for the purpose
of advancement by new discovery of physiological
knowledge or of knowledge which would be useful for
saving or for prolonging life or alleviating suffering
or for combating any disease, whether of human beings,
animals or plants, which is not prohibited and is lawful.
Clause (e) to Section 11(3) permits killing of animals
as food for mankind, of course, without inflicting
unnecessary pain or suffering, which clause is also
incorporated “out of necessity”. Experimenting on
animals and eating their flesh are stated to be two major
forms of speciesism in our society. Over and above, the
legislature, by virtue of Section 28, has favoured killing
of animals in a manner required by the
religion of any
community. Entertainment, exhibition or amusement do
not fall under these exempted categories and cannot
be claimed as a matter of right under the doctrine of
necessity.”
xxx
“44. Bulls, therefore, in our view, cannot be performing
animals, anatomically not designed for that, but are forced to
perform, inflicting pain and suffering, in total violation of
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Section 3 and Section 11(1) of the PCA Act. Chapter V of the
PCA Act deals with the performing animals. Section 22 of the
PCA Act places restriction on exhibition and training of
performing animals, which reads as under:
“22.Restriction on exhibition and training of performing
animals.—No person shall exhibit or train—
(i) any performing animal unless he is registered in
accordance with the provisions of this Chapter;
(ii) as a performing animal, any animal which the Central
Government may, by notification in the Official Gazette,
specify as an animal which shall not be exhibited or trained
as a performing animal.”
xxx
“53. The Statement of Objects and Reasons of the TNRJ Act
refers to ancient culture and tradition and does not state
that it has any religious significance. Even the ancient culture
and tradition do not support the conduct of Jallikattu or
bullock cart race, in the form in which they are being
conducted at present. Welfare and the well-being of the bull
is Tamil culture and tradition, they do not approve of
infliction of any pain or suffering on the bulls, on the other
hand, Tamil tradition and culture are to worship the bull
and the bull is always considered as the vehicle of Lord
Shiva. Yeru Thazhuvu, in Tamil tradition, is to embrace bulls
and not overpowering the bull, to show human bravery.
Jallikattu means, silver or gold coins tied to the bull’s horns
and in olden days those who got at the money
to the bull’s
horns would marry the daughter of the owner. Jallikattu or
the bullock cart race, as practised now, has never been the
tradition or culture of Tamil Nadu.”
xxx
“73. Jallikattu and other forms of bulls race, as the various
reports indicate, cause considerable pain, stress and strain
on the bulls. Bulls, in such events, not only do move their
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head showing that they do not want to go to the arena but, as
pain inflicted in the vadi vasal is so much, they have no other
go but to flee to a situation which is adverse to them. Bulls, in
that situation, are stressed, exhausted, injured and humiliated.
Frustration of the bulls is noticeable in their vocalisation and,
looking at the facial expression of the bulls, ethologist or an
ordinary man can easily sense their suffering. Bulls, otherwise
are very peaceful animals dedicating their life for human use
and requirement, but they are subjected to such an ordeal
that not only inflicts serious suffering on them but also forces
them to behave in ways, namely, they do not behave, force
them into the event which does not like and, in that process,
they are being tortured to the hilt. Bulls cannot carry the so-
called performance without being exhausted, injured, tortured
or humiliated. Bulls are also intentionally subjected to fear,
injury—both mentally and physically—and put to unnecessary
stress and strain for human pleasure and enjoyment, that too,
a species which has totally dedicated its life for human benefit,
out of necessity.”
12. The 1960 Act has been enacted in pursuance of legislative
power contained in Entry 17 of List III of the Seventh Schedule to the
Constitution of India. The impact of the Amendment Acts on the main
Statute would be revealed from the comparative table given below:-
THE ANIMAL WELFARE BOARD OF INDIA AND ORS. v.
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THE ANIMAL WELFARE BOARD OF INDIA AND ORS. v.
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THE ANIMAL WELFARE BOARD OF INDIA AND ORS. v.
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THE ANIMAL WELFARE BOARD OF INDIA AND ORS. v.
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13. After the aforesaid three Amendment Acts received
Presidential assent, the States of Tamil Nadu and Maharashtra formulated
Rules for conducting the aforesaid bovine sports. The Tamil Nadu Rules
were titled “The Tamil Nadu Prevention of Cruelty to Animals (Conduct
of Jallikattu) Rules, 2017” and for the State of Maharashtra, “The
Maharashtra Prevention of Cruelty to Animals (Conduct of Bullock Cart
Race) Rules, 2017” was formulated. So far as the State of Karnataka is
concerned, a Notification was issued on similar lines by a Memorandum
No. PSM 257 SLV-2014 dated 17th December 2015. These Rules/
Notification seek to rigidly regulate conducting the aforesaid bovine
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sports. They postulate provisions for application for permission of holding
the sports, for participating in the race. For organising of Bullock Cart
Race, Rules stipulate for the manner in which such races could be
conducted with specifications for length of the track, rest period and
isolation of the track from general public. The Tamil Nadu Rules
specifically provides for examination of bulls, with specifications for the
arena, bull collection yard as also setting up of spectators’ gallery. These
instruments in substance prohibit causing any physical disturbance to
the bulls like beating and poking them with sharp objects, sticks, pouring
chilli powder in their eyes, twisting their tails amongst other such pain
inflicting acts.
14. The main theme of the submissions of the petitioners/parties
who are assailing the Amendment Acts are founded on two planks. Mr.
Shyam Divan, Mr. Anand Grover, Mr. Sidharth Luthra, Mr. Krishnan
Venugopal and Mr. V. Giri, learned Senior Advocates have appeared for
the parties assailing continued performance of these sports which are
considered to be cruel. The Respondents’ cases supporting the
continuation of these sports have been mainly argued by Mr. Tushar
Mehta, ld. Solicitor General, Mr. Kapil Sibal, Mr. Mukul Rohatgi and Mr.
Rakesh Dwivedi, learned Senior Advocates. For the petitioners, their
main case is that even after the State Amendments, the activities sought
to be legitimised still remain destructive and contrary
to the provisions of
Sections 3, 11(1) (a) and (m) of the 1960 Act. It is their contention that
the Amendment Acts do not cure the defects or deficiencies brought
about by the judgment of A.Nagaraja (supra). The ratio of the said
judgment is sought to be bypassed through these Amendment Acts, which
is impermissible in law. It has also been argued that the expression
“person” as used in Article 21 of the Constitution of India includes sentient
animals and their liberty is sought to be curtailed by legitimising the
aforesaid bovine sports and the instrument of such legitimisation being
the three Amendment Acts is unreasonable and arbitrary, thereby not
meeting the standard of Article 14 of the Constitution of India. In fact,
that is the fourth point of question of reference which we shall be
addressing in this judgment. The petitioners seek to inter-weave Articles
14, 21, 48, 51-A (h) and (g) to set up a rights-regime for the animals.
Their contention is that the Fundamental Duty of Indian citizens to have
compassion for living creatures and to develop humanism result in
corresponding rights for sentient animals to be protected for distress and
pain inflicting activities only having entertainment value for human beings.
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15. The other argument advanced is that these sports cannot be
held to be part of cultural heritage of the State of Tamil Nadu which is so
provided in the Preamble of the Amendment Act of that State. Preamble
of the Tamil Nadu Amendment Act provides that the object of the said
Statute is to preserve the cultural heritage of the State of Tamil Nadu
and to ensure the survival and wellbeing of native breeds of bulls. The
said Act inserted [clause 2(d)] in the definition clause of the 1960 Act
and amended Section 11(3) of the same Statute, adding sub-clause (f)
thereto. There are two more Amendments which would appear from
the table we have given above, but those are primarily to exempt Jallikattu
from the restrictive provisions of the 1960 Act. In the judgment of A.
Nagaraja (supra) it was inter-alia held on the point of tradition and culture
of Jallikattu:-
“54. The PCA Act, a welfare legislation, in our view,
overshadows or overrides the so-called tradition and culture.
Jallikattu and bullock cart races, the manner in which they
are conducted, have no support of Tamil tradition or culture.
Assuming, it has been in vogue for quite some time, in our
view, the same should give way to the welfare legislation, like
the PCA Act which has been enacted to prevent infliction of
unnecessary pain or suffering on animals and confer duties
and obligations on persons in charge of animals. Of late,
there are some attempts at certain
quarters, to reap maximum
gains and the animals are being exploited by the human beings
by using coercive methods and inflicting unnecessary pain
for pleasure, amusement and enjoyment. We have a history
of doing away with such evil practices in society, assuming
such practices have the support of culture and tradition, as
tried to be projected in the TNRJ Act. Professor Salmond states
that custom is the embodiment of those principles which have
commended themselves to the national conscience as the
principles of justice and public utility. This Court, in N.
Adithayan v. Travancore Devaswom Board [(2002) 8 SCC
106] (2002) 8 SCC 106, while examining the scope of Articles
25(1), 26(a), 26(b), 17, 14 and 21, held as follows: (SCC p.
125, para 18)
“18. … Any custom or usage irrespective of even any proof
of their existence in pre-constitutional days cannot be
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countenanced as a source of law to claim any rights when
it is found to violate human rights, dignity, social equality
and the specific mandate of the Constitution and law made
by Parliament. No usage which is found to be pernicious
and considered to be in derogation of the law of the land
or opposed to public policy or social decency can be
accepted or upheld by courts in the country.”
55. As early as 1500-600 BC in Isha-Upanishads, it is
professed as follows:
“The universe along with its creatures belongs to the land.
No creature is superior to any other. Human beings should
not be above nature. Let no one species encroach over the
rights and privileges of other species.”
In our view, this is the culture and tradition of the country,
particularly the States of Tamil Nadu and Maharashtra.
56. The PCA Act has been enacted with an object to safeguard
the welfare of the animals and evidently to cure some mischief
and age old practices, so as to bring into effect some type of
reform, based on eco-centric principles, recognising the
intrinsic value and worth of animals. All the same, the Act
has taken care of the religious practices of the community,
while killing an animal vide Section 28 of the Act.”
16. On this basis, arguments have been advanced on behalf of the
petitioners that the Amendment Act of Tamil Nadu having regard to its
Preamble seeks to invalidate conclusive judicial opinion without curing
the defects specified in that decision in the conduct
of Jallikattu. So far
as the Karnataka Amendment Act is concerned, in the definition clauses
of “Bulls Race or Bullock Cart Race” and “Kambala”, they have been
described as part of tradition and culture of the State. In the Maharashtra
Act also the source of Bullock Cart Race has been identified to be the
tradition and culture of specified parts of that State in the definition clause
of Bullock Cart Race.
17. The argument of the petitioners and the interveners supporting
in substance the ban on performance of these sports have been that the
Statutes seek to validate the provisions that were held to be illegal by
this Court without curing the defects outlined in the judgment of A.
Nagaraja (supra). In such circumstances, the Amendment Acts could
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not be held to be in exercise of legitimate legislative power in the light of
the constitutional provisions and these enactments are colourable
legislations. The authorities in support of this proposition cited by the
petitioners are Shri Prithvi Cotton Mills Ltd. and Another -vs-
Broach Borough Municipality and Others [(1969) 2 SCC 283],
Bhubaneshwar Singh and Another -vs- Union of India and Others
[(1994) 6 SCC 77], Indra Sawhney -vs- Union of India and Others
[(2000) 1 SCC 168], Amarendra Kumar Mohapatra and Others -
vs- State of Orissa and others [(2014) 4 SCC 583], State of M.P. -
vs- Mahalaxmi Fabric Mills Ltd. and Others [1995 Supp (1) SCC
642], D.C. Wadhwa DR and Others -vs- State of Biharand Others
[(1987) 1 SCC 378], Sri Sri Sri K.C. Gajapati Narayan Deo -vs-
State of Orissa [1954 SCR 1], S.S. Bola and Others -vs- B.D.
Sardana and Others [(1997) 8 SCC 522], State of Tamil Nadu -vs-
State of Kerala and Another [(2014) 12 SCC 696], Madan Mohan
Pathak and Another -vs- Union Of India and Others [(1978) 2 SCC
50], National Agricultural Cooperative Marketing Federation of
India Ltd. and Another -vs- Union of India and Others [(2003) 5
SCC 23], In Re Punjab Termination of Agreement Act, 2004 [(2017)
1 SCC 121], Mafatlal Industries Ltd. and Others -vs- Union of
India and Others [(1997) 5 SCC 536], S. T. Sadiq -vs- State of
Keralaand Others [(2015) 4 SCC 400], A.R. Antulay -vs- R.S. Nayak
and Another [(1988) 2 SCC
602] and Maneka Gandhi -vs- Union of
India and Another [(1978) 1 SCC 248]. The judgment of the Maneka
Gandhi (supra) was also relied upon to contend that in order to protect
Fundamental Rights, the effect of the law has to be looked at and not
just theories and provisions of law.
18. Corollary submissions of the petitioners are that after
Presidential assent was given to the three Statutes, they legitimised
the three aforesaid events but the manner in which they are conducted
is contrary to the provisions of Sections 3, 11(1)(a) and (m) as was
held in the A. Nagaraja (supra) case. Hence, the attempt of the
Amendment Acts is to override a judicial verdict without addressing
the grounds on which this Court had found Jallikattu and Bullock Cart
Race in the States of Tamil Nadu and Maharashtra respectively to be
in violation of the 1960 Act. This legislative exercise, as argued by the
petitioners, go contrary to Constitutional scheme. The authorities cited
on this point are State of Tamil Nadu -vs- State of Kerala (supra),
Chief Secretary to the Government, Chennai, Tamil Nadu and
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Others -vs- Animal Welfare Board and Another [(2017) 2 SCC
144] and Rupa Ashok Hurra -vs- Ashok Hurra and Another
[(2002) 4 SCC 388].
19. In the case of A. Nagaraja (supra), the two Judge Bench, on
the basis of affidavit of the Animal Welfare Board of India and
MoEF&CC described the manner in which Jallikattu was being
performed. The preparation of the bulls for these sports entail, but not
limited to, ear cutting/mutilation, twisting of tail, resulting in fracture and
dislocation of tail bones. It was also stated that 95% of the bulls that
were used in the process of participation in these sports were soiled
with faeces from below the base of their tails and across the large part
of their hindquarters. Additionally, bovine species were forced to stand
together in accumulated waste for hours. At one of the locations of the
events, the Animal Welfare Board found that in the “collection area”, a
bull died due to injuries caused as a result of head-on collision with a
moving passenger bus. Injuries were caused to muscle bones, nerves
and blood vessels also as the bulls were subjected to tail-biting, poking
them with sharp objects to excite them, use of irritants in the eyes and
nose. Vadi vassal (the cattle bull entry place in Jallikattu) were narrow
entry corridors which had cramping conditions and bulls were made to
move sideways which is an unnatural movement for them. There was
also lack of food and water at the respective locations and instances of
spectators beating, biting and agitating the bulls. Such abhorrent practises
surfaced from investigation reports relied on by the petitioners. In
paragraph 67 of A. Nagaraja (supra), as reported in the aforesaid journal,
substantial emphasis has been laid on Article 48 of the Constitution of
India read with Fundamental Duties enshrined in Article 51-A (g) and
(h). On that basis, argument was advanced that sentient species should
be accorded the protective umbrella of Article 21 of the Constitution.
We shall deal with that aspect later in this judgment. In fact, argument in
this line has been advanced on the basis that sentient animals have natural
rights to live a life with dignity without any infliction of cruelty. The other
line of submission on behalf of the petitioners is that the subject dealt
with by the three Amendment Acts does not relate to List III. On this
count the authorities cited were State of Bihar and Others -vs- Indian
Aluminium Companyand Others [(1997) 8 SCC 360], Hoechst
Pharmaceuticals Ltd. (supra), M. Karunanidhi -vs- Union of India
and Another [(1979) 3 SCC 431] and K.T. Plantation Private Ltd.
and Another -vs- State of Karnataka [(2011) 9 SCC 1].
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20. It has also been the argument of the petitioners that making
exception for bulls to carve them out of the protective mechanism of the
1960 Act was not based on any intelligible criteria but on an arbitrary
selection. Learned Counsel for the petitioners relied on Director of
Education (Secondary) and Another -vs- Pushpendra Kumarand
Others [(1998) 5 SCC 192], Harbilas Rai Bansal -vs- State of
Punjaband Another [(1996) 1 SCC 1], State of Gujarat and Another
-vs- Raman Lal Keshav Lal Soniand Others [(1983) 2 SCC 33] and
Shayara Bano -vs- Union of India and Others [(2017) 9 SCC 1] to
substantiate this argument.
21. We shall first deal with the argument advanced on behalf of
the petitioners that animals have rights. In fact, what has been urged
before us is that animals have Fundamental Rights as also legal rights. It
has been held in A. Nagaraja (supra) case at paragraph 66 (in the
Report):-
“66. Rights guaranteed to the animals under Sections 3, 11,
etc. are only statutory rights. The same have to be elevated to
the status of fundamental rights, as has been done by few
countries around the world, so as to secure their honour and
dignity. Rights and freedoms guaranteed to the animals under
Sections 3 and 11 have to be read along with Article 51-A(g)
and (h) of the Constitution, which is the magna carta of animal
rights.”
22. The concept of animal rights has been anchored by the
petitioners on dual foundation. It has
been submitted that our jurisprudence
does not recognise rights only for human beings and Narayan Dutt Bhatt
-vs- Union of India [(2018) SCC OnLine Utt 645] has been cited to
demonstrate that animals are legal entities having a distinct persona with
corresponding rights, duties and liabilities as that of a legal person. In
order to put emphasis on this concept of evolving rights, petitioners have
submitted that our legal system is both organic and dynamic in nature
and with passage of time law must change. (Saurabh Chaudri and
Others -vs- Union of India and Others [(2003) 11 SCC 146], Chief
Justice of Andhra Pradesh and Others -vs- L.V.A. Dixitulu and
Others [(1979) 2 SCC 34], Video Electronics Pvt. Ltd. and Another
-vs- State of Punjab and Another [(1990) 3 SCC 87] and Ashok
Kumar Gupta and Another v. State of U.P. and Others, [(1997) 5
SCC 201]). In this regard, certain international authorities being Argentina,
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Case No.P-72.254/2015 has been cited. Further, our attention has been
drawn to the Animal Wellbeing (Sentience) Act, 2022 recognising animals
as sentient beings in the United Kingdom. It has also been asserted that
rights of sentient animals have been recognised by the Constitutional
Court of Ecuador. On behalf of the respondents, the factum of existence
of animal rights has not been directly contested but the stand of the
respondents on this point is that the rights which the sentient animal
would have enjoyed ought to be subject to the legislative provisions and
in a case of this nature, which is likely to have seminal impact not only
on our jurisprudence but our society as well, legislature would be a better
judge to determine what would be the nature, contours and limitations of
such rights. The effect of this argument is that the rights of sentient
animals can be recognised by law but such rights would be in a nature as
determined by the appropriate law-making body and not by judicial
interpretation.
23. On the point of recognizing rights of animals, the legislative
approach appears to us to be two-fold. Of course, the animals cannot
demand their right in the same way human beings can assert for bringing
a legislation, but as part of the social and cultural policy the law makers
have recognised the rights of animals by essentially imposing restriction
on human beings on the manner in which they deal with animals. By
virtue of Article 48 of the
Constitution of India which essentially operates
as a national guideline for law makers, a two-way path has been devised.
The first is imposing duty on the State to organise agriculture and animal
husbandry on modern and scientific lines. The second is emphasising
the duty of the State to take steps for preserving and improving the
breeds and prohibiting slaughter of cows and calves and other milch and
draught cattle. Under the chapter on Fundamental Duties, a citizen is
required to protect and improve the natural environment including forests,
lakes, rivers and wildlife ought to have compassion for living creatures.
The petitioners want us to interpret the Amendment Acts in light of
these two constitutional provisions and want us to scrutinise the three
Statutes taking into cognizance pain and suffering that would be caused
to them, so that the bovine species are not compelled to participate in the
aforesaid sports organised by human beings for the latter’sown pleasure.
It is the petitioners’ stand that wherever the 1960 Act enjoins human
beings from performing certain acts vis-à-vis animals, the obligations
ought to be translated jurisprudentially into rights of the animals not to be
subjected to such prohibited acts. The line of reasoning in this regard on
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behalf the petitioners is that the very manner in which these sports
activities are undertaken directly offend the aforesaid two provisions of
the 1960 Act. Merely by introducing these three Amendment Acts, the
organisers of these events cannot be saved from the offences specified
in the 1960 Act, which aspect has been dealt with in detail in the judgment
of this Court in the case of A. Nagaraja (supra).
24. On the question of conferring fundamental right on animals
we do not have any precedent. The Division Bench in the case of A.
Nagaraja (supra) also does not lay down that animals have Fundamental
Rights. The only tool available for testing this proposition is interpreting
the three Amendment Acts on the anvil of reasonableness in Article 14
of the Constitution of India. While the protection under Article 21 has
been conferred on person as opposed to a citizen, which is the case in
Article 19 of the Constitution, we do not think it will be prudent for us to
venture into a judicial adventurism to bring bulls within the said protected
mechanism. We have our doubt as to whether detaining a stray bull
from the street against its wish could give rise to the constitutional writ
of habeas corpus or not. In the judgment of A. Nagaraja (supra), the
question of elevation of the statutory rights of animals to the realm of
fundamental rights has been left at the advisory level or has been framed
as a judicial suggestion. We do
not want to venture beyond that and
leave this exercise to be considered by the appropriate legislative body.
We do not think Article 14 of the Constitution can also be invoked by any
animal as a person. While we can test the provisions of an animal welfare
legislation, that would be at the instance of a human being or a juridical
person who may espouse the cause of animal welfare.
25. We shall next test the argument of the authorities, i.e., the
Union, the three States as also the Animal Welfare Board (in their changed
stance) that bovine sports are part of the culture and tradition of the
respective States. We have already referred to the relevant provisions
of the three Amendment Acts which carries expression to this effect.
26. Ordinarily, whether a particular practice or event is part of
culture or tradition is to be decided by the custom and usage of a particular
community or a geographical region which can be translated into an
enactment by the appropriate legislature. But here the continuance of
the subject sports have been found to be in breach of a Central Statute
by a Division Bench of this Court and these three Amendment Acts
seek to revive the earlier position. That is the petitioners’ argument.
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27. In order to come to a definitive conclusion on this question,
some kind of trial on evidence would have been necessary. It is also not
Court’s jurisdiction to decide if a particular event or activity or ritual
forms culture or tradition of a community or region. But if a long lasting
tradition goes against the law, the law Courts obviously would have to
enforce the law. Learned counsel appearing for the parties, however,
have cited different ancient texts and modern literature to justify their
respective stands. In Public Interest Litigations, this Court has developed
the practice of arriving at a conclusion on subjects of this nature without
insisting on proper trial to appreciate certain social or economic conditions
going by available reliable literature. In paragraphs 53 and 73 in the case
of A. Nagaraja (supra), there is judicial determination about the practice
being offensive to the provisions of the Central Statute. It would be trite
to repeat that provisions of a Statute cannot be overridden by a traditional
or cultural event. Thus, we accept the argument of the petitioners that at
the relevant point of time when the decision in the case of A. Nagaraja
(supra) was delivered, the manner in which Jallikattu was performed did
breach the aforesaid provisions of the 1960 Act and hence conducting
such sports was impermissible.
28. But that position of law has changed now and the Amendment
Acts have introduced a new regime for conducting these
events. It is a
fact that the Amendment Acts per se seeks to legitimize the aforesaid
three bovine sports by including them by their respective names and the
body of the Statute themselves do not refer to any procedure by which
these sports shall be held. If that was the position these Amendment
Acts would have fallen foul of the ratio of the decisions of this Court in
the cases of S.S. Bola and Others (supra), State of Tamil Nadu -vs-
State of Kerala (supra), Madan Mohan Pathak (supra), National
Agricultural Cooperative Marketing Federation of India Ltd.
(supra), In Re Punjab Agreement Act (supra), Mafatlal (supra), S.T.
Sadiq (supra) and A.R. Antulay (supra). The stand of the respondents
however is that many of the offending elements of Jallikattu, Kambala
or Bullock Cart Race have been eliminated by the Rules made under the
Tamil Nadu and Maharashtra Amendment Acts and the State of
Karnataka has issued statutory notification laying down rigid regulatory
measures for conducting these sports. These Rules specify isolated arena
for the sports or events to be conducted including setting up of both bull
run and bull collection area, galleries separating spectators from directly
coming into contact with bulls. The learned counsel for the respondents
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want us to read the Statutes and the Rules together to counter the
argument of the petitioners that the Amendment Acts merely reintroduce
the offending sports into the main Statute for their respective States
without correcting or removing the defects pointed out by this Court in
the case of A. Nagaraja (supra). In the case of State of U.P. and
Others -vs- Babu Ram Upadhya [(1961) 2 SCR 679], it was inter alia
observed that the fundamental principle of construction was that the
Rules made under the Statute must be treated as a part and parcel thereof
as if they were contained in the parent Act. In the case of Peerless
General Finance and Investment Co. Ltd. and Another -vs-
Reserve Bank of India [(1992) 2 SCC 343], it was held:-
“52. In State of U.P. v. Babu Ram Upadhya [(1961) 2 SCR
679 : AIR 1961 SC 751 : (1961) 1 Cri LJ 773] this Court held
that rules made under a statute must be treated, for all
purposes of construction or obligations, exactly as if they
were in that Act and are to the same effect as if they were
contained in the Act and are to be judicially noticed for all
purposes of construction or obligations. The statutory rules
cannot be described or equated with administrative directions.
In D.K.V. Prasada Rao v. Government of A.P. [AIR 1984 AP
75 : (1983) 2 Andh WR 344] the same view was laid down.
Therefore, the directions are incorporated and become part
of the Act itself. They must be governed by the
same principles
as the statute itself. The statutory presumption that the
legislature inserted every part thereof for a purpose and the
legislative intention should be given effect to, would be
applicable to the impugned directions.”
29. The Tamil Nadu Amendment Act contains stipulation to the
effect that conduct of Jallikattu subject to such Rules and regulations as
may be framed by the State Government shall be permitted. Section 38-
B of the Maharashtra Act provides Rule making power of the State
consistent with the Rules made by the Central Government. Both these
Statutes have become part of the 1960 Act in their respective States and
specifically confer Rule making power to the States and Rules have
been framed. In such circumstances, as held by this Court in the case of
Peerless General Finance and Investment Co. Ltd. (supra), our
opinion is that these Rules have to be read along with the Amendment
Acts for their proper interpretation. So far as the Karnataka Amendment
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Act is concerned, two fresh restrictions have been imposed in conducting
Kambala by virtue of introduction of Section 3(2) in the main Act after
Amendment. These conditions ban unnecessary pain or suffering that
would be caused to the animals by the person in charge of the animals
conducting Kambala and make such practice subject to the conditions
as may be specified by the State Government by notification. Following
the same analogy which we have expressed earlier while reading the
Amendment Acts of Tamil Nadu and Maharashtra, in our opinion the
Notification issued by the State of Karnataka ought to be accorded same
status as Rule and has also to be read as integral part of the Statute, as
amended. These Rules and the Notification ought not to be segregated
from the Amendment Acts for appreciating their true scope while
examining the petitioners’ claim that the Amendment Acts, analysed in
isolation from the said Rules and the Notification would be contrary to
the findings of this Court in the case of A. Nagaraja (supra).
30. In our opinion, the expressions Jallikattu, Kambala and Bull
Cart Race as introduced by the Amendment Acts of the three States
have undergone substantial change in the manner they were used to be
practiced or performed and the factual conditions that prevailed at the
time the A. Nagaraja (supra) judgment was delivered cannot be equated
with the present situation. We cannot come to the conclusion that in the
changed circumstances,
absolutely no pain or suffering would be inflicted
upon the bulls while holding these sports. But we are satisfied that the
large part of pain inflicting practices, as they prevailed in the manner
these three sports were performed in the pre-amendment period have
been substantially diluted by the introduction of these statutory instruments.
Argument was advanced that in reality these welfare measures may not
be practiced and the system as it prevailed could continue. We, however,
cannot proceed in exercise of our judicial power on the assumption that
a law ought to be struck down on apprehension of its abuse or
disobedience. All the three bovine sports, after Amendment, assume
different character in their performance and practice and for these
reasons we do not accept the petitioners’ argument that the Amendment
Acts were merely a piece of colourable legislation with cosmetic change
to override judicial pronouncement. Once we read the amended Statutes
with the respective Rules or Notification, we do not find them to encroach
upon the Central legislation. Respondents have cited a large body of
authorities to defend their stand that these are not cases of colourable
legislation but we do not consider it necessary to refer to all these
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judgments individually as we have come to this conclusion after analysing
various statutory instruments covering the field.
31. Can the Amendment Acts be struck down for being
arbitrary? There is a body of cases in which legislations have been
invalidated on this ground. So far as the subject of the present
controversy is concerned, the bulls form a distinct species referred to
as draught or pack animals as opposed to horses, which are adapted to
run. But we decline to hold that just because bulls lack the natural
ability to run like a horse, the subject-sports which are seasonally held
shall be held to be contrary to the provisions of the 1960 Act. In fact,
on behalf of the respondents it was argued that these genre of bulls
are specially bred and have natural ability to run. There are contrary
views on this point. But in our opinion, no irrational classification as
regards these bull sports have been made by the legislature so as to
attract the mischief which Article 14 of the Constitution of India seeks
to prevent. The validity of a legislative Act can also be negated on the
ground of it being unreasonable. The element of unreasonableness here
is that the bovine species involved herein are being subjected to
unnecessary pain and suffering mainly for entertainment purpose. But
the 1960 Act itself categorizes several activities which cause pain and
suffering, even to a sentient animal. The judgment in the case of A.
Nagaraja (supra) was largely founded on factual basis that bulls were
sentient animals, and the sports involved were unnecessary, as opposed
to being necessary for human survival. But the 1960 Act, on which the
petitioners’ case largely rests, proceeds on the basis of perceived
human necessity to employ animals in certain load carrying and
entertainment activities. For instance, while other means of carriage
of goods are available, why should bulls be permitted to undertake
such activities - which are apparently involuntary and subject these
sentient bovine species to pain and suffering? Horse racing is allowed
under Performing Animals (Registration) Rules, 2001. Horse is also a
sentient animal. But the fact remains that by making them perform in
races, some element of pain and suffering must be caused to horses.
Here, the focus shifts from causing pain and suffering to the degree of
pain and suffering to which a sentient animal is subjected to while
being compelled to undertake certain activities for the benefit of human
beings. Similarly, proponents of vegetarianism may argue that
slaughtering animals is not necessary as human beings can survive
without animal protein. In our opinion, we should not take up this
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balancing exercise which has societal impact in discharge of our judicial
duties. This kind of exercise ought to be left for the legislature to decide
upon.
32. We shall now turn to the petitioners’ case assailing the legality
of the State Amendments by invoking the “Doctrine of Pith and
Substance”. On that count, their submission is based on two principles.
First, it has been urged that even after the Amendment, the performance
of these sports continue to inflict pain and injury on the participating bulls
and secondly, it was found by this Court in A. Nagaraja (supra), that
these sports are in violation of the aforesaid provisions of the 1960 Act
at the time when the three State Amendments were not enacted. On the
face of it, learned counsel appearing for the petitioners argued, that the
Amendment Acts does not in any way provide remedial measures which
could have rendered the three sports cured of the legal failing as is
postulated in the said provisions. According to the petitioners, these Acts
seek to only introduce the Jallikattu, Kambala and Bullock Cart Race as
permissible activities within the provisions of the 1960 Act. Even if certain
sports by their names are included within the ambit of permissible activity,
the provisions of Sections 3, 11(1) (a) and (m) of the 1960 Act are not
rendered otiose. The other point raised by the petitioners is that the
subject of Jallikattu does not come within the ambit of Entry 17 of List
III of the Seventh
Schedule to the Constitution of India and hence the
State Assemblies lacked the legislative competence to enact the
Amendment Acts. Presidential assent would not cure the said
incompetency, it is urged by the petitioners. We have found no flaw in
the process of obtaining Presidential assent having regard to the provisions
of Article 254(2) of the Constitution of India.
33. The “Doctrine of Pith and Substance” has been explained in
the well-known text, “Principles of Statutory Interpretation” by G.P. Singh.
We quote below the extract from 14th Edition of that text:-
“The question whether the Legislature has kept itself within
the jurisdiction assigned to it or has encroached upon a
forbidden filed is determined by finding out the true nature
and character or pith and substance of the legislation which
may be different from its consequential effects. If the pith and
substance of the legislation is covered by an entry within the
permitted jurisdiction of the Legislature any incidental
encroachment in the rival field is to disregarded. There is a
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presumption of constitutionality of statutes and hence, prior
to determining whether there is any repugnancy between a
Central Act and a State Act, it has to determined whether both
Acts relate to the same entry in List III, and whether there is a
‘direct’ and ‘irreconcilable’ conflict between the two, applying
the doctrine of ‘pith and substance’.
The petitioners have relied on a several authorities explaining this
doctrine. These are State of Rajasthan -vs- Shri G. Chawla and Dr
Pohumal [(1959) Supp (1) SCR 904], Ishwari Khetan Sugar Mills
(P) Ltd. and Others -vs- State of U.P. and Others [(1980) 4 SCC
136], Federation of Hotel & Restaurant Association of India, etc.
-vs- Union of Indiaand Others [(1989) 3 SCC 634],State of A.P. and
Others -vs- McDowell & Co.and Others [(1996) 3 SCC 709], State
of W.B. -vs- Kesoram Industries Ltd. and Others [(2004) 10 SCC
201] and Hoechst Pharmaceuticals Ltd. (supra).
34. First we shall examine as to whether conducting these bovine
sports is relatable to Item 17 of the concurrent list. It stipulates:-
“Prevention of Cruelty to Animals.”
In the case of I.N Saksena -vs- State of Madhya Pradesh
[(1976) 4 SCC 750], this Court had laid down that legislative lists in the
Constitution ought to be interpreted in a wide amplitude. The 1960 Act in
whole and the subjects of the three Amendments directly deal with the
question of prevention of cruelty to animals. There is no other entry in
any
of the lists to which this subject could be connected with. In such
circumstances, we reject the contention of the petitioners that the State
Legislatures inherently lacked jurisdiction to bring these Amendments,
which subsequently received Presidential assent. On behalf of the
respondents, several decisions have been relied upon in support of this
argument. Having regard to the view that we have already taken, we do
not consider it necessary to reproduce all these decisions.
35. Next comes the question as to whether even after the said
Amendments, Jallikattu and the other two activities could be held to be
beyond legislative competence of the three legislative bodies. We have
already held that the three Amendment Acts have to be read together
with the consequential Rules or Notifications. In our view, these Rules,
once treated as part of the Acts, alter the manner of conducting these
sports and once these provisions are implemented, the mischief sought
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to be remedied by the aforesaid two provisions of 1960 Act (i.e. Sections
3 and 11(1)(a) and (m)) would not be attracted anymore. Thus, the
argument that the Amendment Acts are void because they seek to
override the judgment of A. Nagaraja (supra) cannot be sustained as
the basis of that judgment having regard to the nature and manner in
which the offending activities were carried on has been altered.
36. Petitioners contend that even after changed procedure
contemplated by the three statutory instruments, the very participation
of the bulls in these sports involve a strong element of involuntariness as
well as some element of pain and suffering. In the cases of T.N.
Godavarman Thirumulpad -vs- Union of India and Others [(2012)
4 SCC 362], Centre for Environmental Law, World Wide Fund-
India -vs- Union of India and Others [(2013) 8 SCC 234]and N.R.
Nair and Others -vs- Union of India and Others [(2001) 6 SCC 84],
it has been broadly held that animals have inherent right in natural law to
live a dignified life without infliction of cruelty and this principle is sought
to extended to proscribe Jallikattu, Kambala and Bullock Cart Race. In
the case of N.R. Nair (supra), it was held that animals have capability
to bear pain and suffering and that they have a fear from restrictions on
their spaces and bodies and other forms of physical discomfort. But we
need not refer to these authorities as we accept the obligation of human
beings to ensure that animals do
not suffer from pain and injury. Our
jurisdiction, however, does not extend to provide an absolute protection
to the animals from any manner of infliction of pain and suffering. What
the broad theme of 1960 Act is that the animals must be protected from
unnecessary pain and suffering. This aspect has been dealt with in the
case of A. Nagaraja (supra). This approach would be apparent from a
plain reading of Section 11 of the 1960 Act itself even before the three
Amendments where the legislature appears to have undertaken a
balancing exercise without disturbing the concept of ownership of animal
by an individual and such individual’s right to employ these animals in the
aforesaid sports. We have already expressed our views on the point
earlier in this judgment.
37. As we proceed on the basis that the Constitution does not
recognise any Fundamental Right for animals, we shall have to test the
legality of the three Statutes against the provisions of 1960 Act along
with the constitutional provisions of Articles 48, 51-A (g) and (h). The
three Statutes will also have to meet the test of arbitrariness, which has
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become the foundation of our constitutional jurisprudence after this Court
delivered the judgment in the cases of E.P. Royappa -vs- State of
Tamil Nadu and Another [(1974) 4 SCC 3], Ajay Hasia and Others
-vs- Khalid MujibSehravardi and Others [(1981) 1 SCC 722] and
Joseph Shine -vs- Union of India [(2018) 2 SCC 189].
38. Factual arguments have been advanced that prohibition on
the practice of particularly Bullock Cart Race could result in ultimate
collapse of a particular genre of cattle which are useful for agricultural
purpose and hence the aforesaid Amendment Acts to be treated to be
relatable to Entry 15 of List II of the Seventh Schedule to the Constitution
of India. But having regard to the nature of challenge, we are of the
view that in pith and substance, the Amendment Acts seek to address
the question of prevention of cruelty to animals. The tenor of the
Maharashtra Amendment Act and its Preamble point to that interpretation
and the object of the Amendments primarily is relatable to Item 17 of the
Concurrent List. Hence, we reject the argument that the Maharashtra
Amendment Act has been legislated for the preservation, protection and
improvement of stock and prevention of animal diseases, veterinary
training and practice. So far as the argument that livelihood of farmers
and people associated with Bullock Cart Race could be adversely affected
if the prohibition which the writ petitioners want us to impose by
striking
down the aforesaid Amendment Statute is concerned, we do not need to
address this argument. We have, in this judgment dealt with the question
as to whether provisions of 1960 Act are being violated or not, as was
held in the case of A. Nagaraja (supra), decided prior to the three
Amendment Statutes. The effect of the said prohibition upon the livelihood
of the people of that State is said to be espoused in I.A. No.170346 of
2022. If we were to hold that these bovine sports offended the provisions
of the 1960 Act, the deprivation apprehended would have come within
the reasonable restriction clause enshrined in Article 19(6) of the
Constitution of India. In such a situation, a law made in that regard
would also be protected in relation to the challenge on the basis of Article
21 of the Constitution of India being procedure established by law.
39. In the judgment of A. Nagaraja (supra),the Division Bench of
this Court, while examining the claim of the petitioners therein held that
Jallikattu is dangerous not only to bulls but also to human and many
participants and spectators sustained injury in course of such events. So
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far as human beings are concerned, their injuries would attract the
principle of Tort known in common law as “volenti non fit injuria”.
40. In the light of what we have already discussed, we answer
the five questions referred to us in the following terms:-
(i)
The Tamil Nadu Amendment Act is not a piece of colourable
legislation. It relates, in pith and substance, to Entry 17 of
List III of Seventh Schedule to the Constitution of India. It
minimises cruelty to animals in the concerned sports and
once the Amendment Act, along with their Rules and
Notification are implemented, the aforesaid sports would
not come within the mischief sought to be remedied by
Sections 3, 11(1) (a) and (m) of the 1960 Act.
(ii)
Jallikattu is a type of bovine sports and we are satisfied on
the basis of materials disclosed before us, that it is going on
in the State of Tamil Nadu for at least last few centuries.
This event essentially involves a bull which is set free in an
arena and human participants are meant to grab the hump
to score in the “game”. But whether this has become integral
part of Tamil culture or not requires religious, cultural and
social analysis in greater detail, which in our opinion, is an
exercise that cannot be undertaken by the Judiciary. The
question as to whether the Tamil Nadu Amendment Act is
to preserve the cultural heritage of a particular State is a
debateable issue which has to be concluded in the House
of the People. This ought not be a part of
judicial inquiry
and particularly having regard to the activity in question
and the materials in the form of texts cited before us by
both the petitioners and the respondents, this question cannot
be conclusively determined in the writ proceedings. Since
legislative exercise has already been undertaken and
Jallikattu has been found to be part of cultural heritage of
Tamil Nadu, we would not disrupt this view of the
legislature. We do not accept the view reflected in the case
of A. Nagaraja that performance of Jallikattu is not a part
of the cultural heritage of the people of the State of Tamil
Nadu. We do not think there was sufficient material before
the Court for coming to this conclusion. In the Preamble to
the Amendment Act, Jallikattu has been described to be
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part of culture and tradition of Tamil Nadu. In the case of
A. Nagaraja (supra), the Division Bench found the cultural
approach unsubstantiated and referring to the manner in
which the bulls are inflicted pain and suffering, the Division
Bench concluded that such activities offended Sections 3
and 11(1)(a) and (m) of the 1960 Act. Even if we proceed
on the basis that legislature is best suited branch of the
State to determine if particular animal-sports are part of
cultural tradition of a region or community, or not, if such
cultural event or tradition offends the law, the penal
consequence would follow. Such activities cannot be justified
on the ground of being part of cultural tradition of a State.
In A. Nagaraja (supra), the sports were held to attract the
restriction of Sections 3 and 11(1)(a) and (m) of the 1960
Act because of the manner it was practiced. The
Amendment Act read with the Rules seek to substantially
minimise the pain and suffering and continue with the
traditional sports. The Amendment having received
Presidential assent, we do not think there is any flaw in the
State action. “Jallikattu” as bovine sports have to be isolated
from the manner in which they were earlier practiced and
organising the sports itself would be permissible, in terms
of the Tamil Nadu Rules.
(iii)
The Tamil Nadu Amendment Act is not in pith and substance,
to ensure survival and well-being of the native breeds of
bulls. The
said Act is also not relatable to Article 48 of the
Constitution of India. Incidental impact of the said
Amendment Act may fall upon the breed of a particular
type of bulls and affect agricultural activities, but in pith
and substance the Act is relatable to Entry 17 of List III of
the Seventh Schedule to the Constitution of India.
(iv)
Our answer to this question is in the negative. In our opinion,
the Tamil Nadu Amendment Act does not go contrary to
the Articles 51-A (g) and 51-A(h) and it does not violate
the provisions of Articles 14 and 21 of the Constitution of
India.
(v)
The Tamil Nadu Amendment Act read along with the Rules
framed in that behalf is not directly contrary to the ratio of
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the judgment in the case of A. Nagaraja (supra) and
judgment of this Court delivered on 16th November 2016
dismissing the plea for Review of the A. Nagaraja (supra)
judgment as we are of the opinion that the defects pointed
out in the aforesaid two judgments have been overcome by
the State Amendment Act read with the Rules made in that
behalf.
41. Our decision on the Tamil Nadu Amendment Act would also
guide the Maharashtra and the Karnataka Amendment Acts and we
find all the three Amendment Acts to be valid legislations.
42. However, we direct that the law contained in the Act/Rules/
Notification shall be strictly enforced by the authorities. In particular, we
direct that the District Magistrates/competent authorities shall be
responsible for ensuring strict compliance of the law, as amended along
with its Rules/Notifications.
43. All the I.As. for Intervention are allowed in the above terms.
As we have answered the referred questions, we do not think any purpose
would be served in keeping the writ petitions pending. All the writ petitions
shall stand dismissed. The appeal and the Transferred Case shall also
stand disposed of in the above terms.
44. Other pending applications, if any, are also disposed of.
45. There shall be no order as to costs.
Ankit Gyan
Referred questions answered.
(Assisted by : Aarsh Choudhary, LCRA)
THE ANIMAL WELFARE BOARD OF INDIA AND ORS. v.
UNION OF INDIA & ANR. [ANIRUDDHA BOSE, J.]