The Animal Welfare Board of India and Ors. vs Union of India & Anr.

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 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 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 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 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]

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.

(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 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]

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