Supreme Court: The 5-Judge Constitution Bench of Supreme Court comprising of KM Joseph, Ajay Rastogi, Aniruddha Bose*, Hrishikesh Roy and CT Ravikumar, JJ. has upheld the Constitutional validity of the State amendments made to the Prevention of Cruelty to Animals Act, 1960 (‘PCA Act’) by the Tamil Nadu, Karnataka and Maharashtra and allowed the conduct of animal sports like Jallikattu, Kambala and bull-cart racing in these respective States.
Further, the Bench directed that the law contained in the Act/Rules/Notification shall be strictly enforced by the authorities. Also, it directed the District Magistrates/competent authorities to ensure strict compliance of the law, as amended along with its Rules/Notifications.
Background
In the petition seeking compliance of Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547, in the light of the cruelty to Bulls in the Jallikattu event, the bench of former Chief Justice of India Dipak Misra and Justice RF Nariman, referred the matter to a 5-judge Constitution bench as it noticed that the writ petitions involve substantial questions relating to the interpretation of the Constitution of India.
The petitions challenge the validity of the following Amendments Acts:
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The Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017.
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The Prevention of Cruelty to Animals (Karnataka Second Amendment) Act, 2017.
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The Prevention of Cruelty to Animals (Maharashtra Amendment) Act, 2017.
After the aforesaid three Amendment Acts received Presidential assent, the States of Tamil Nadu and Maharashtra formulated Rules for conducting the aforesaid bovine sports, such as:
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The Tamil Nadu Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules, 2017
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The Maharashtra Prevention of Cruelty to Animals (Conduct of Bullock Cart Race) Rules, 2017
Analysis:
The Court noted that for organising of Bullock Cart Race, Rules stipulate the way such races could be conducted with specifications for length of the track, rest period and isolation of the track from 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 24 chilli powder in their eyes, twisting their tails and other pain inflicting acts.
The Animal Welfare Board (‘Board’) submitted 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 PCA Act. It contended 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 animals, and their liberty is sought to be curtailed by legitimising the aforesaid bovine sports and the instrument of such legitimisation being the three Amendment Acts is unreasonable and arbitrary, thereby not meeting the standard of Article 14 of the Constitution of India. Further, 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.
On the argument that animals also have fundamental rights, the Court said that there is no precedent and 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. The Court opined that Article 14 of the Constitution cannot be invoked by any animal as a person. However, the Court can test the provisions of animal welfare legislation, but at the instance of a human being or a juridical person who may espouse the cause of animal welfare.
The issues placed before the Constitution Bench are as follows:
• 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?
The Court opined that, 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. The Court said 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.
The Bench said that it cannot strike down the law on apprehension of its abuse or disobedience. Further, it stated that all the three bovine sports, after amendment, assume different character in their performance and practice, and for these reasons ejected the Board’s argument that the Amendment Acts were merely a piece of colourable legislation with cosmetic change to override judicial pronouncement.
After reading the amended Statutes with the respective Rules or Notification, the Court viewed that the Amendment Acts do not encroach upon the Central legislation.
The Court held that Tamil Nadu Amendment Act is not a piece of colorable legislation. It relates in pith and substance to entry 17, List III of the Seventh Schedule to the Constitution of India. It minimises cruelty to animals in the sports concerned and once the Amendment Act, along with the rules and notifications are implemented, the aforesaid sports cannot come within the mischief sought to be remedied by Sections 3, 11(1)(a) and (m) of the PCA Act. Jallikattu is a type of bovine sport, and it is going on in Tamil Nadu for at least last few centuries. This sport is an integral part of Tamil culture requires religious, cultural, and social analysis in greater detail, which cannot be undertaken by the judiciary. The question that the Tamil Nadu Amendment Act is to preserve the cultural heritage of the particular State is a debatable issue, which has to be concluded in the House of People and ought not be a part of the Judicial inquiry.
• Is it colourable legislation which does not relate to any Entry in the State List or Entry 17 of the Concurrent List? 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 to receive the protection of Article 29 of the Constitution of India?
The Court said that since, legislative exercise has already undertaken and Jallikattu has been found to be an important part of cultural heritage of Tamil Nadu, the Court said that it will not disrupt this view of the legislature. The Court rejected the view in A Nagraja (supra) that performance of Jallikattu is not a part of cultural heritage of Tamil Nadu. In the preamble to the Amendment Act Jallikattu has been described to be a part of culture and tradition of Tamil Nadu.
The Court said that the Amendment Act read with the Rules substantially reduces the pain and suffering of the bulls and continues with the traditional sports. The amendment has received the President’s assent and held that there is no flaw in the State action. These sports need to be isolated from the way they were practiced earlier.
• 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?
The Court further held that the Tamil Nadu Amendment Act in not in pith and substance, to ensure survival and well-being of the native breeds of bulls. It is also not relatable to Article 48 of the Constitution. Incidental impact of the said amendment may fall upon the breed of a particular type of bulls and affect agricultural activities, but the said amendment is referable in pith and substance to Entry 17, List III of the Seventh Schedule to the Constitution.
• Does the Tamil Nadu Amendment Act go contrary to Articles 51-A(g) and 51-A(h), and could it be said, therefore, to be unreasonable and violative of Articles 14 and 21 of the Constitution of India?
The Court opined that Tamil Nadu Amendment Act do not go contrary to Articles 51-A(g) and 51-A(h), and it does not violate Articles 14 and 21 of the Constitution of India.
• Is the impugned Tamil Nadu Amendment Act directly contrary to the Nagaraja judgment, and the review judgment of 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?
The Court held that the Tamil Nadu Amendment Act along with the Rules concerned is not directly contrary to the Nagaraja judgment, and the review judgment of 2016 dismissing the plea for review of A Nagaraja Judgment, as the defects pointed out by the aforesaid Judgments have been overcome by the Tamil Nadu Legislature by enacting the impugned Tamil Nadu Amendment Act.
[Animal Welfare Board of India v. Union of India, 2023 SCC OnLine SC 661 decided on 18-05-2023]
*Judgement Authored by: Justice Aniruddha Bose
Know Thy Judge | Supreme Court of India: Justice Aniruddha Bose