Jallikattu Law Can't Be Termed Arbitrary Merely Because Bulls Lack Natural Ability To Run Like Horses : Supreme Court

The issues arising in the petitions seeking compliance of the judgment in Animal Welfare Board of India v. A. Nagaraja And Ors., which prohibited Jallikattu bull fights in Tamil Nadu and similar activities in other states were adjudicated by a Constitution Bench comprising Justice KM Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice CT Ravikumar.

In Animal Welfare Board of India v. A. Nagaraja And Ors., a Division Bench of the apex court had outlawed the practice of Jallikattu and Bullock Cart Race in Tamil Nadu and Maharashtra respectively for being in contravention of the Sections 3, 11(1)(a) and (m) of the Prevention of Cruelty to Animals Act, 1960. In 2016, a notification was issued by the Ministry of Environment, Forest and Climate Change in exercise of power under the Prevention of Cruelty to Animals Act, to prevent the exhibition or training of bulls as performing animals. However, an exception was curved out and bulls were permitted to be trained as performing animals. This exception was subjected to conditions seeking to reduce the pain and suffering of bulls used in racing. The said notification was challenged for being in the teeth of the judgment in A. Nagaraja. In the meanwhile the State Legislature of Tamil Nadu, Maharashtra and Karnataka enacted State Amendments, which received the assent of the President. These amendments aimed to legitimise bovine sports.

A PIL was filed before the Bombay High Court challenging provisions of the Maharashtra Prevention of Cruelty to Animals (Conduct of Bullock Cart Race) Rules, 2017 permitting Bullock Cart Race. Upon dismissal an appeal was filed before the Apex Court. The Division Bench of the Supreme Court formulated five issues were framed to be referred to the Constitution Bench -

1. 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?
2. 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?
3. 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?
4. 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?
5. Is the impugned Tamil Nadu Amendment Act directly contrary to the judgment in A. Nagaraja (supra), and the review judgment dated 16th November, 2016 in the aforesaid case, and whether the defects pointed out in the aforesaid two judgments could be said to have been overcome by the Tamil Nadu Legislature by enacting the impugned Tamil Nadu Amendment Act?”

The Bench noted that the 1960 Act is enacted in pursuant to power contained in Entry 17 of List III of the Seventh Schedule to the Constitution of India. After the State amendment Acts received Presidential assent, the States proceeded to formulate Rules to regulate bovine sports.

Bovine Sports Are Integral Part Of Culture And Tradition Of Concerned States

The Constitution Bench noted that whether a particular practice is part of the 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. It opined that it is not within the jurisdiction of the court to decide if a practice is part of the culture of a community or region. However, if a tradition goes against the law, such practice cannot be upheld. It acknowledged that at the time the judgment in A. Nagaraja was delivered, the manner in which the concerned bovine sports were performed was in breach of the provisions of the 1960 Act. The Bench noted that the position has changed after the enactment of the State Amendment Acts; the manner in which the sports are performed have also undergone substantial change; the pain inflicting practices have been diluted post amendment. It opined that the State Amendment Acts and the Rules made thereunder have to be read together while attempting to cull out the legislative intent. Upon reading them together, the Bench concluded that they were not repugnant to the Central legislation.

State Amendment Acts Not Arbitrary Or Unreasonable

The Constitution Bench stated,“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”. It refused to accept the petitioners’ submission that the irrational classification had been made with respect to the bull sports in violation of Article 14 or the Constitution. Noting the petitioners’ submission that the unnecessary pain inflicted on the bovine species merely for the purpose of entertainment is unreasonable, the Bench stated -

“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 view of the above, the Bench refused to take up the balancing exercise having societal impact and thought it fit to leave the same to the legislature.

State Amendment Acts Are Valid

The Bench found no flaw in the process of obtaining the Presidential assent that had been assailed by the petitioners. Applying the doctrine of pith and substance, it concluded that State legislatures had jurisdiction to enact the Amendment Acts.

State Amendment Acts and Rules Cured Mischief That Existed Prior To Nagaraja

The mischief prior to A. Nagaraja has been cured by the enactment of the respective Amendment Act and the Rules thereunder. Thus, the Bench concluded, “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.”

The Amendment Act read with the Rules seek to substantially minimise the pain and suffering and continue with the traditional sports, the Court held.

No Precedent To Show Constitution Recognises Fundamental Right For Animals

Considering the submission of the petitioners that even after the amendments the practice itself involves a strong element of involuntariness and infliction of some pain and suffering, the Bench noted, “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.”. It also noted that there is no precedent to show that the Constitution recognises any Fundamental Right for animals.

[Case Title: The Animal Welfare Board of India And Ors. v. UoI And Anr. WP(C) No. 23/2016]

Other reports about the judgment can be read here.

Citation : 2023 LiveLaw (SC) 447

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