The Animal Welfare Board Of India vs Union Of India

WRIT PETITION (CIVIL) NO. 23 OF 2016

THE ANIMAL WELFARE BOARD OF INDIA & ORS. ..PETITIONER(S)

VERSUS

UNION OF INDIA & ANR. ..RESPONDENT(S)

WITH WRIT PETITION (CIVIL) NO.6 OF 2018 WRIT PETITION (CIVIL) NO.10 OF 2018 CIVIL APPEAL NO….. OF 2023 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 3528 OF 2018)

WRIT PETITION (CIVIL) NO. 1193 OF 2017 WRIT PETITION (CIVIL) NO. 1152 OF 2018

WRIT PETITION (CIVIL) NO. 24 OF 2016 WRIT PETITION (CIVIL) NO. 25 OF 2016 WRIT PETITION (CIVIL) NO. 26 OF 2016 WRIT PETITION (CIVIL) NO. 27 OF 2016 WRIT PETITION (CIVIL) NO. 88 OF 2016 WRIT PETITION (CIVIL) NO. 1011 OF 2017 Signature Not Verified

Digitally signed by Nidhi Ahuja WRIT PETITION (CIVIL) NO. 1059 OF 2017 Date: 2023.05.18 19:47:34 IST Reason: WRIT PETITION (CIVIL) NO. 1188 OF 2017 TRANSFERRED CASE 60 OF 2021 1 JUDGMENT

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

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 2 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, 3 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 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”.

4 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 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:-

5 (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)

6 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 2 nd

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:-

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 7 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 Singh and

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 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.

8

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, 9 in the matters of welfare legislation, the provisions of law should be liberally construed in favour of the weak and infirm. 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

(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

10

(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 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:

11 “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 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,

12 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:-

Provisions The Prevention of The Prevention of The Prevention of The Prevention of Cruelty to Animals Cruelty to Animals Cruelty to Animals Cruelty to Animals Act, 1960 (Tamil Nadu (Karnataka Second (Maharashtra (“Principal Act”) Amendment) Act, Amendment) Act, Amendment) Act, 2017 2017 2017

Scope An Act to prevent the An Act to amend the An Act further to An Act to amend the infliction of Prevention of Cruelty amend the Prevention of Cruelty unnecessary pain or to Animals Act, 1960 Prevention of Cruelty to Animals Act, suffering on animals so as to preserve the to Animals Act, 1960 1960, in its and for that purpose cultural heritage of in its application to application to the to amend the law the State of Tamil the State of State of relating to the Nadu and to ensure Karnataka. Maharashtra.

prevention of cruelty the survival and to animals. wellbeing of the native breeds of bulls.

Section 2 Defintions.-In this In section 2 of the - In section 2 of the In section 2 of the Act, unless the Prevention of Cruelty Prevention of Cruelty Prevention of Cruelty context otherwise to Animals Act, 1960 to Animals Act, 1960 to Animals Act, requires,― (a) (Central Act 59 of (Central Act 59 of 1960, in its “animal” means any 1960) (hereinafter 1960) (hereinafter application to the living creature other referred to as the referred to as the State of than a human being; Principal Act after Principal Act),- (i) Maharashtra [(b) “Board” means clause (d), the after clause (a), the (hereinafter referred the Board following clause following shall be to as “the principal established under shall be inserted, inserted, namely:- Act”), after clause section 4, and as namely:— “(dd) “(aa) “Bulls race or (b), the following reconstituted from ‘’Jallikattu’’ means Bullock cart race” clause shall be time to time under an event involving means any form of inserted, namely:— section 5A;] (c) bulls conducted with bulls race including “captive animal” a view to follow race of Bullock cart “(bb) "bullock cart means any animal tradition and culture as a traditional race" means an (not being a on such days from sports involving event involving bulls

13 domestic animal) the months of Bulls whether tied to or bullocks to which is in captivity January to May of a cart with the help of conduct a race, or confinement, calendar year and in wooden yoke or not whether tied to cart whether permanent such places, as may (in whatever name with the help of or temporary, or be notified by the called) normally held wooden yoke or not which is subjected to State Government, as a part of tradition (by whatever name any appliance or and includes and culture in the called), with or contrivance for the “manjuviratu”, state on such days without a cartman purpose of hindering “vadamadu” and and places, as may with a view to follow or preventing its “erudhuvidumvizha” be notified by the tradition and culture escape from captivity .” State Government.”; on such days and in or confinement or and (ii) after clause any District where it which is pinioned or (d), the following is being traditionally which is or appears shall be inserted, held at such places, to be maimed; (d) namely:- “(dd) as may be previously “domestic animal” “Kambala” means approved by the means any animal the traditional sports District Collector, which is tamed or event involving and also known as which has been or is Buffalo’s (male) race "Bailgada Sharyat', being sufficiently normally held as a "Chhakadi" and tamed to serve some part of tradition and "Shankarpat” in the purpose for the use culture in the state State of of man or which, on such days and Maharashtra". although it neither places, as may be has been nor is being notified by the State nor is intended to be Government.” so tamed, is or has become in fact wholly or partly tamed; (e) “local authority” means a municipal committee, district board or other authority for the time being invested by law with the control and administration of any matters within a specified local area; (f) “owner”, used with reference to an animal, includes not only the owner but also any other person for the time being in possession or custody of the animal, whether with or without the consent of the owner; (g) “phooka” or “doom dev” includes any process of introducing air or any substance into the female organ of a milch animal with the object of drawing

14 off from the animal any secretion of milk; (h) “prescribed” means prescribed by rules made under this Act; (i) “street” includes any way, road, lane, square, court, alley, passage or open space, whether a thoroughfare or not, to which the public have access.

Section 3 Duties of persons Section 3 of the Section 3 of the Section 3 of the having charge of principal Act shall be principal Act, shall principal Act shall be animals.―It shall be re-numbered as sub- be renumbered as re-numbered as sub- the duty of every section (1) of that subsection (1) of that section (1) thereof; person having the section and after section and after and after sub- care or charge of sub-section (1) as so sub-section (1) as so section (1) as so any animal to take re-numbered, the renumbered, the renumbered, the all reasonable following subsection following sub- following sub- measures to ensure shall be added, section shall be sections shall be the well-being of namely:— inserted, namely:- added, namely :— such animal and to “(2)Notwithstanding “(2) Notwithstanding “(2)Notwithstanding prevent the anything contained anything contained anything contained infliction upon in sub-section (1), in subsection (1) in sub-section (1), such animal of conduct of conduct of the bullock cart race unnecessary pain ‘Jallikattu’, subject “Kambala” or “Bulls may be conducted or suffering. to such rules and race or Bullock cart with the prior regulations as may race” shall be permission of the be framed by the permitted, subject to Collector, subject to State Government, condition that no the condition that no shall be permitted.”. unnecessary pain or pain or suffering as suffering is caused envisaged by or to the animals, by under the Act is the person in charge caused to the animal of that animal used by any person or to conduct person in charge of “Kambala” or “Bulls the animal used to race or Bullock cart conduct bullock cart race” as the case race and subject to may be and subject such other to such other conditions as may be conditions as may be prescribed by rules specified, by the under section 38B State Government, by the State by notification." Government. (3) If any person or person in charge of the animals conducts bullock cart race in contravention of the conditions laid down in sub-section (2) or rules made thereunder relating

15 to the bullock cart race or causes pain or suffering to the animal, he shall be punished with fine which may extend upto rupees five lakhs or imprisonment for a term which may extend upto three years.”

Section 11 Treating animals In section 11 of the In section 11 of the In section 11 of the cruelly.―(1) If any principal Act, in sub- principal Act, in sub- principal Act, in sub- person― (a) beats, section (3), after section (3), after section (3), after kicks, over-rides, clause (e), the clause (e), the clause (c),the overdrives, over- following clause following shall be following clause loads, tortures or shall be added, inserted, namely:- shall be inserted, otherwise treats namely:— “(f) the “(f) the conduct of namely :— “(c-1) the any animal so as to conduct of “Kambala” with a conduct of bullock subject it to ‘Jallikattu’ with a view to follow and cart race in unnecessary pain view to follow and promote tradition accordance with the or suffering or promote tradition and culture and provisions of sub- causes or, being the and culture and ensure preservation section (2) of section owner permits, any ensure preservation of native breed of 3 or participation animal to be so of native breeds of buffalos as also their therein with a view treated; or (b) bulls as also their safety, security and to follow and [employs in any safety, security and wellbeing. (g) the promote tradition work or labour or wellbeing.” conduct of “Bulls and culture and for any purpose any race or Bullock cart ensure preservation animal which, by race” with a view to of native breeds of reason of its age or follow and promote bulls as also their any disease], tradition and culture purity, safety, infirmity, wound, and ensure security and well sore or other cause, preservation of being; or”. is unfit to be so native breed of cattle employed or, being as also their safety, the owner, permits security and any such unfit wellbeing.” animal to be so employed; or (c) wilfully and unreasonably administers any injurious drug or injurious substance to 2 [any animal] or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by 2 [any animal]; or (d) conveys or carries, whether in or upon any vehicle or not,

16 any animal in such a manner or position as to subject it to unnecessary pain or suffering; or (e) keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or (f) keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or (g) being the owner, neglects to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement; or (h) being the owner of [any animal] fails to provide such animal with sufficient food, drink or shelter; or (i) without reasonable cause, abandons any animal in circumstances which render it likely that it will suffer pain by reason of starvation or thirst; or (j) wilfully permits any animal, of which he is the owner, to go at large in any street while the animal is affected with contagious or infectious disease or, without reasonable excuse

17 permits any diseased or disabled animal, of which he is the owner, to die in any street; or (k) offers for sale or, without reasonable cause, has in his possession any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill-treatment; or 1 [(l) multilates any animal or kills any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner; or] 2 [(m) solely with a view to providing entertainment— (i) confines or causes to be confined any animal (including tying of an animal as a bait in a tiger or other sanctuary) so as to make it an object of prey for any other animal; or (ii) incites any animal to fight or bait any other animal; or] (n) 3 *** organises, keeps, uses or acts in the management of, any place for animal fighting or for the purpose of baiting any animal or permits or offers any place to be so used or receives money for the admission of any other person to any place kept or used for any such

18 purposes; or (o) promotes or takes part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting; he shall be punishable, 4 [in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both]. (2) For the purposes of sub-section (1), an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to the prevention of such offence: Provided that where an owner is convicted of permitting cruelty by reason only of having failed to exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine. (3) Nothing in this section shall apply

19 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 5 [by such other methods as may be prescribed]; or (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.

Section 22 Restriction on The following proviso In section 22 of the In section 22 of the exhibition and shall be added to principal Act, at the principal Act, the training of section 22 of the end, the following following proviso performing principal Act, proviso shall be shall be added, animals.―No person namely:— “Provided inserted, namely :— “ Provided shall exhibit or that nothing namely:“Provided that, nothing train― (i) any contained in this that nothing contained in this performing animal section shall apply to contained in this section shall apply to unless he is conduct of section shall apply to the conduct of registered in ‘Jallikattu’.”. conduct of bullock cart race in accordance with the “Kambala” or “Bulls accordance with the provisions of this race or Bullock cart provisions of sub- Chapter; (ii) as a race” as the case section (2) of section performing animal, may be.” 3.”. any animal which the Central Government may, by notification in the Official Gazette, specify as an animal

20 which shall not be exhibited or trained as a performing animal.

Section 27 Exemptions.―Nothin In section 27 of the In section 27 of the In section 27 of the g contained in this principal Act, after principal Act, after principal Act, after Chapter shall apply clause (b), the clause (b), the clause (a), the to― (a) the training of following clause following shall be following clause animals for bona fide shall be added, inserted, namely:- shall be inserted, military or police namely:— “(c) the “(c) the conduct of namely :— “(a-1) the purposes or the conduct of “Kambala” with a conduct of bullock exhibition of any ‘Jallikattu’ with a view to follow and cart race in animals so trained; view to follow and promote tradition accordance with the or (b) any animals promote tradition and culture and provisions of sub- kept in any and culture and ensure survival and section (2) of section zoological garden or ensure survival and continuance of 3, with a view to by any society or continuance of native breeds of follow and promote association which native breeds of buffaloes. (d) the tradition and culture has for its principal bulls.”. conduct of “Bulls and ensure survival object the exhibition race or Bullock cart and continuance of of animals for race” with a view to native breeds of educational or follow and promote bulls; or ” scientific purposes. tradition and culture and ensure survival and continuance of native breeds of cattle.”

Insertion of — After Section 28 of After Section 28 of After Section 28 of 28A the principal Act, the the principal Act, the the principal Act, the following section following section following section shall be inserted, shall be inserted, shall be inserted, namely:- namely:- namely:- "Nothing Contained Nothing contained in "28A Nothing in this Act shall this Act, shall apply contained in this Act apply to 'Jallikattu' to “Kambala” or shall apply to the conducted to follow “Bulls race or bullock cart race and promote Bullock cart race” conducted in tradition and culture conducted to follow accordance with the and such conduct of and promote provisions of sub- 'Jallikattu' shall not tradition and culture section (2) of Section be an offence under and such conduct of 3 to follow and this Act." “Kambala” or “Bulls promote tradition race or Bullock cart and culture and race” shall not be an such conduct shall offence under this not be an offence Act.” under this Act."

Insertion of — — — After Section 38A of 38B the principal Act, the following section shall be inserted, namely:- “(1) The State

21 Government may, subject to the condition of previous publication, by notification in the Official Gazette, make the rules, not inconsistent with the rules made by the Central Government, if any, for carrying into effect the provisions of sub- section (2) of section 3 of the Act (2) Every rule made under this section shall be laid, as soon as may be, after it is made, before each House of the State Legislature, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in rule or both Houses agree that the rule should not be made, and notify such decision in the Official Gazette, the rule shall, from the date of publication of such notification, have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule"

22 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 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

23 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 24 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.

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 25 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 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.” 26 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

27 circumstances, the Amendment Acts could 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 Bihar

and 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

28 536], S. T. Sadiq -vs- State of Kerala and 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

Others -vs- Animal Welfare Board and Another [(2017) 2 SCC

29 144] 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 30 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

Company and 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].

20. It has also been the argument of the petitioners that making

exception for bulls to carve them out of the protective mechanism 31 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 Kumar and Others [(1998) 5 SCC 192], Harbilas Rai

Bansal -vs- State of Punjab and Another [(1996) 1 SCC 1], State

of Gujarat and Another -vs- Raman Lal Keshav Lal Soni and

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 32 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, 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

33 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, 34 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’s own 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 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 35 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 36 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.

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 37 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 38 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 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 39 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

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

40 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 41 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 judgments individually as we have come to this

conclusion after analysing various statutory instruments covering

the field.

42

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

43 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 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 44 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

45 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 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 India and 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).

46 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 47 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 (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 48 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 become the foundation of our

constitutional jurisprudence after this Court delivered the 49 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

Mujib Sehravardi 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 50 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 far as human beings are concerned, their

injuries would attract the principle of Tort known in common law

as “voluntary non fit injuria”.

51

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 52 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 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

53 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.

54

(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 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.

55

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.

. . . . . . . . . . . . . . . . . J.

(K.M. JOSEPH)

. . . . . . . . . . . . . . . . . J.

(AJAY RASTOGI)

. . . . . . . . . . . . . . . . . J.

(ANIRUDDHA BOSE)

. . . . . . . . . . . . . . . . . J.

(HRISHIKESH ROY)

. . . . . . . . . . . . . . . . . J.

(C.T. RAVIKUMAR) New Delhi;

May 18, 2023

56