Case Analysis - The Animal Welfare Board Of India V. The Union Of India
Author: LawSphereX
Category: General Law
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CASE
ANALYSIS
THE ANIMAL WELFARE BOARD OF INDIA V. THE UNION OF INDIA
Heer Pandya, Government Law College, Churchgate
ABSTRACT
The case analysis delves into the intricate interplay of animal welfare and cultural practices of profound importance to people. The encumbrance of establishing animal rights becomes challenging as its adversary, the cultural practices is bestowed with fundamental protection. The paper summaries the case history and the arduous task of protecting animal rights undertaken by the courts. It also portrays the manifest conflict between Judiciary and the Legislature, the latter acting on the implied support of the people. It highlights the deep rooted obstinate preference towards traditional values. This case is of utmost importance as the current talks of ecosystem protection and steps towards nature preservation stem up mainly in the context of Climate Change. The analysis applauds the court’s decision and also significantly reviews the other legal aspects inherent therein.
CASE
ANALYSIS
THE ANIMAL WELFARE BOARD OF INDIA AND ORS. V.
UOI AND ANR.
WRIT PETITION (CIVIL) NO. 23 OF 2016, 18th MAY, 2023
HON’BLE SUPREME COURT OF INDIA BENCH: K.M. JOSEPH; J., AJAY RASTOGI; J. ANIRUDDHA BOSE; J., HRISHIKESH ROY; J., C.T. RAVIKUMAR; J.
INTRODUCTION
In this case the court finds itself analysing the centuries old cultural event named Jallikattu performed in Tamil Nadu during the harvest festival of Pongal. Jallikattu an ancient tradition of Tamil Nadu, the name itself has a fascinating blend of Tamil words "Jalli," meaning gold or silver coins, and "Kattu," which means "tied. " Owing to the origin of its name; coins are tied to the bull horns and the person who is able to overpower by taming the bull wins the coins. The winning bulls which are a symbol of strength and pride for the farmer who has trained it are used to sire many calves which ensures survival of the native breed.
However, incidents leading to cruelty on bulls have not gone unnoticed, such as hitting and beating with whetted objects, beating with sticks, pouring chilli power into their eyes and twisting their tails which in most cases causes excruciating pain and leads to breaking of bones. This is when concerns over animal cruelty steps in; it envisages a vivid tussle between animal rights & wellbeing and cultural significance for the people. 1 The Madras High Court had outlawed this sport it in 2006, after death of a young spectator but this went against people’s spirit and later the legislature with enactment of Tamil Nadu Regulation of Jallikattu Act, 2009 rescinded the ban and repealed the prohibition. Cultural significance and necessity of Jallikattu was challenged in the case of Animal Welfare Board of India V A. Nagaraja & Ors. Wherein the courts held that this sport did
1 Shocking new jallikattu investigation leads PETA back to Supreme Court - Living (2021) PETA India.
Available at: https://www. petaindia. com/features/new-jallikattu-investigation/ (Accessed: 02 October 2024). not prove to be significant part of the Tamilian Culture and thus, it was banned. FACTS OF THE CASE- On 7th May, 2014 the Division Bench of the Hon’ble Supreme Court had banned two sports that were based on animal-human interaction mainly bovine species in the case of Animal Welfare Board of India v A. Nagaraja & Ors. In this sport, bull race is held seasonally which had a cultural significance owing to a tradition followed since many centuries in Tamil Nadu. This bovine sport is called Jallikattu, Bullock cart race, and Kambala in Tamil Nadu, Maharashtra, and Karnataka respectively. Jallikattu was regulated by Tamil Nadu Regulation of Jallikattu Act, 2009.
The sports were held to be contrary to Section 3 (expounds duty of persons in charge of animals) and Section 11(1)(a) & (m) (which deals with the treatment of animals with cruelty) of Prevention of Cruelty to Animals Act, 1960 (hereafter referred as ‘1960 Act’ for brevity). The Court construed the above articles of the 1960 Act in accordance with Art. 51-(A) (g) & (h) of the Constitution which envisages the value and protection of the natural environment and developing scientific and humanism by the citizens of the country. After the said Judgement Hon’ble Supreme Court banning the traditional sports, the Ministry of Environment, Forest and Climate Change (MoEF&CC) on 7th January 2016 issued a notification restricting the training of bulls as Performing Animals in accordance with S. 22 of 1960 Act.
However, things escalated owing to an exception in the said Notification, which defies the Supreme Court’s ruling. The Notification permits the use of Bulls as Performing Animals in the states of Maharashtra, Karnataka, Punjab, Haryana, Kerala and Gujarat at events that coalesces with the culture tradition or customs of any particular community or any events performed in any part of the country. In reply, several Writ Petitions were filed before the Hon’ble Supreme Court challenging the legality of the impugned Notification. During the proceeding, the 1960 Act was amended by the states of Tamil Nadu, Maharashtra and Karnataka in 2017 to prevent the suffering of bovine species for which due assent was given by the President. The Writ Petitions filed in response to the State Amendments of 1960 Act are heard together.
On 2nd February 2018, the Division Bench in the Nagaraja Case passed an order banning the sport and framed five questions of law to be answered by a larger Bench of the Hon’ble Supreme Court. LEGAL ISSUES- The 5 key question answered by Court in this case are in association with the Tamil Nadu Amendment Act, 2017. They are listed below.
1. Does the Tamil Nadu Amendment Act concurs with 17th Entry of Concurrent
List of the Constitution. Does the Amendment purport to perpetuate cruelty or has genuine aims to prevent cruelty. Is the legislation a colourable legislation.
2. Whether the Tamil Nadu Amendment Act objects to preserving the Cultural
Heritage of the people of the state. Whether the impugned act on grounds of preservation of culture receive protection under Article 29 of the Constitution.
3. Does the Tamil Nadu Amendment Act intends to ensure survival of native
breed of bulls. Is the Act in concurrence with Article 48 of Constitution.
4. Is the Tamil Nadu Amendment Act contrary to provision of Article 51A(g) and
(h), and simultaneously also violative of Article 14 & 21 of Constitution.
5. Is the Tamil Nadu Amendment Act directly contrary to the Judgement given
by Courts in the previous case. Has the impugned Act overcome the defects highlighted in the Judgements. Other Questions raised in the course of proceedings include
1. Provision Of Fundamental Rights for sentient Animals
2. Whether animal’s freedom is barred by the limits framed by Legislature.
PETITIONER’S ARGUMENTS-
The significant proposition of petitioner’s case is based on the Prevention of Cruelty to Animals Act, 1960. The Petitioners have argued for upholding of Rights of sentient animals in this case bulls and assailed on the 3 State Amendments contending that even after receiving Presidential assent, the acts are in contravention of S. 3 and S. 11 (1) (a) and (m) of the 1960 Act. The Amendments are arbitrary and unreasonable in nature and have not brought forth any novel aspect of curing the deficiency highlighted in the case of Animal Welfare Board Of India V A. Nagraja & Ors. And have curtailed freedom of animals by legalising bovine sports/competition. The Amendments must be scrutinised in light of two grounds under S. 48 of the Constitution.
The Petitioner seek for a combined reading of Article 14, 21, 48, 51-A (h) and (g) of the Constitution to establish rights of literally voice-less animals. Their contention is that the Fundamental Duty of the citizens is to have compassion for living creatures and to develop humanism resulting in corresponding rights for sentient animals. The rights prominently includes to be protected from distress and pain inflicting activities solely as a source of entertainment for human beings. It is being argued that the mere sport cannot be held as an inherent or significant part of culture of people as forthright mentioned in the Preamble of the Amendment. The Isha Upanishad was quoted which exhorted that ‘No species should encroach the right and privileges of other species.
’2 The Preamble further provides for concurrent protection of cultural heritage of the state and survival and well-being of bulls. The statue is a colourable legislative amendment and purports to invalidate the Judicial Decision. The Petitioners have also devised that the expression “persons” under Article 21 of the Constitution should be construe to include sentient animals within its purview. They have also advocated for Fundamental Rights of sentient animals, the court was requested to take cognizance of Animal Wellbeing (Sentience) Act, 2022 recognising animals as sentient beings in the United Kingdom. The same contention aroused in A. Nagraja case however no decision was given thereof. Ultimately, the exclusion of bulls from protection of the 1960 Act by perpetuating the games is arbitrary.
2 The Animal Welfare Board Of India And Ors. V. UOI And Anr., [(2014) 7 SCC 547]
RESPONDENT’S ARGUMENTS- The Respondents consisted of the Central Government, the Governments of Maharashtra, Tamil Nadu and Karnataka and the Animal Welfare Board which turned the tables by supporting the Government. The Respondents argued that Animal rights would be limited by the laws framed by Legislature, this postulated that those rights laid down by legislature would not come under Judicial scrutiny; they did not contest the existence of the rights forthwith. They propagated that legislature would be in a better position to formulate the nature and limitation of rights of animals. The 3 Amendments ailed the shortcomings highlighted in the previous case and laid strict rules and regulation to prevent cruelty to animals.
The measures which render to reduce the defect, include, specification of 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. They have contended that a rule or guideline inserted must be view in toto or as a part of the act. In State of U. P. v. Babu Ram Upadhya, one of the many cases cited by the Respondents, held that any rule inserted or amended in a statue must be viewed per se as an inherent part of it for all purposes and not as separate or stand-alone rules/guidelines for merely administrative purpose. This interpretation would give the amendments equal weightage as given to the Central Act.
Lastly by contesting the Government notification which excludes bulls from the category of Performing animals which means a hindrance to use bulls in the sport is that these genre of bulls are specially bred and have natural ability to run. The Division Bench in the case of Animal Welfare Board of India v A. Nagaraja & Ors. Has held that Bulls have no natural inclination to run like a horse. 3 JUDGEMENT- An eagle-eyed view of the Judgement will reveal a vivid tussle between cultural legacy and a welfare legislation viz. animal welfare which has been skewedly combined to display that the traditions and welfare of Bulls go hand-in-hand. It is known that a welfare
3 The Animal Welfare Board Of India V. UOI And Anr, [(2014) 7 SCC 547]
legislation will override culture and traditions but the courts have said that it is not their duty to decide whether a particular activity or event forms a part of culture or not and should be left for the Legislature to decide. On the point of sufferings endure by bulls during the event it is held that a statue cannot be struck down on mere apprehension of it promoting abuse. Even though in the case of A. Nagaraja it was held that bulls have no natural ability to run, in this case it is held that this native breed of bulls has be trained for the purpose and if the tradition does not persist the native breed will perish sooner or later. In Nagraja, the Supreme Court had held that the practice of Jallikattu is not the subject-matter but the way in which it is conducted and held is of great importance.
The Tamil Nadu Regulation of Jallikattu Act, 2009 has been laid down to minimize the cruelty towards animals by ensuring the regulation of conduct of Jallikattu, holding the organiser accountable and laying down penalties in case of breach of the rules in the 1960 Act. As to answer the questions framed by the Division Bench, the Courts answers the first question, saying that the Tamil Nadu Amendment Act, 2017 not only concurs but also relates to 17th Entry of Concurrent list of the Constitution in Pith and Substance as the Amendment was made by state but it did not defile its legislative Jurisdiction and both statue fall within the same entry in List III. With a combined reading of the Act with the Amendments it is sought to alleviate the cruelty by reducing mischief in accordance with S. 3 and S. 11(1) (a) and (m) of the 1960 Act.
The Tamil Nadu Amendment Act is not a colourable legislation, thus upholding the state Amendments. The second question is answered, if an activity forms a part of culture of state it has to be determined by the Legislature and by amending the statue it has made steel clear that Jallikattu is an inherent part thereof. The sport has been organised and practiced in the state for quite a few centuries. This court has denied acceptance of view reflected in the case of A. Nagaraja that performance of Jallikattu is not a part of cultural heritage of state as this aspect has to be isolated from the aspect of conducting and organising the event which will be permissible as per the rules laid down by the Amendment.
The mechanism of conducting Jallikattu before the safeguard regulations were in place impedes protection of bulls but with regulations set in, it does away with the perpetuating pain and sufferings. Thus Jallikattu is recognised as a part of culture and tradition and will undoubtedly receive protection under Article 29 of the Constitution.
The third question is answered by the court in negative, the Tamil Nadu Amendment Act is not in Pith and Substance ensure survival of native breed of bulls. The Amendment is also not in concurrence with Article 48 of the Constitution as it does not specify the impact of this native breed on agriculture; however this amendment relates to 17th Entry, list III and 7th Schedule of the Constitution of India. The fourth question is answered by the court in negative, it is opined that 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. The conduct of performance of bull race would have been contravening of the articles in absence of the state amendments but with imposition of strict regulation it is in consonance with abovementioned Articles.
The fifth question is answered as, the Tamil Nadu Amendment Act is not contrary to the Judgement given by court in case of A. Nagraja and the ensuing Review Judgement. The defects highlighted in the Judgement have been cured by the State Amendment Act when read with the Rules made in that behalf. As to provision of Fundamental Rights for Animals, no such right was granted as animals cannot advocate for their own rights and it would contradict giving them rights and keeping them as pets as they have their own ecosystem to live in. Moreover Section 28 of the 1960 act permits killing of animals for religious purposes and Section 11(3) permits killing of animals for sustenance. Thus, granting substantial rights to animals would not only be against the legal principle of Ubi jus, ibi remedium and also lead to sarcastic duality.
The laws framed not only lays a bar to freedom of animals nay envisages for their welfare and wellbeing. Thus, Jallikattu was held to be a part of culture and traditions of the state it was given sanction to be continued in consonance with the amended rules and regulations. The performance of Kambala and Bullock Cart Race was permitted in the state of Karnataka and Maharashtra subsequently. SIGNIFICANCE- The Prevention of Cruelty to Animals Act is a central legislation enacted on basis of 17th Entry, 3rd list and 7th Schedule of the Constitution; it has been enacted with the aim to prevent infliction of unnecessary pain to animals. What may seem suffering to humans may not be the same for animals as they naturally have higher tolerance and resistance. Keeping this in mind the 1960 Act takes into consideration excessive pain and sufferings only when it expounds cruelty to animals.
In accordance with Article 254(2) of the Constitution this state Amendment duly received the assent of president and as stated by court it is an inherent part of the Central Act. In Nagraja the Supreme Court held the state amendment was contrary to the 1960 Act on grounds of Article 254. In current case the court held that the amendment by the Tamil Nadu legislature would prevail and there existed no inconsistency between the central and state law. This case portrays a harmonious stability between Legislature and Judiciary and the will of people; the history of the case reveals that after the Judicial verdict of the Madras High Court in 2006 banning Jallikattu was nullified by the state legislature enacting Tamil Nadu Regulation of Jallikattu Act, 2009 by lifting the ban on the sport. Then, the Judgement of Animal Welfare Board of India v A. Nagaraja & Ors.
in 2014 again banned the performance of the sport. This ban by Supreme Court was followed by widespread pro- Jallikattu protests in 2017 in Tamil Nadu. Later the impugned Notification by the Ministry of Environment, Forest and Climate Change (MoEF&CC) was challenged due to the exception, however in this case the Judiciary favoured the performance of Jallikattu by welcoming the Amendments and rules laid by the state legislature which represents the will of the people supporting the performance of Jalikatu. Most importantly, this Judgment upholds the fundamental rights under Article 29 of the Constitution; by legalising Jallikattu the distinct culture of people of state of Tamil Nadu is protected.
As the history of this judicial battle shows this cultural protection was not a doddle as it was denied by the Supreme Court until a balance was struck between cultural ambitions of people and the welfare of the animals.
ANALYSIS
OF THE CASE- This case is truly landmark, as it recognizes India’s rich tapestry of cultural heritage, where long-standing traditions and customs are deeply woven into the fabric of society and often have legislative support. The Judiciary in the past had always opposed giving sanction to Jallikattu and the Legislature had tried to supersede the court’s Judgement by passing statues which legalises it’s performance. The Courts and the House of People have never been on the same page as the former has focused on the welfare outlook and the latter focused on the cultural importance and the public demand.
The Fundamental rights as under Article 14 and 21 of the Constitution as invoked by the Petitioners is incoherent as there are no legal rights for Animals in India unlike in Ecuador where legal rights are given to animals and consequently Article 29 of the Constitution provides for a distinct culture of citizens to be conserved, thus protection of culture is recognised by the Constitution which the courts cannot deny. Moreover Article 48 acts only as a directive for protection and prohibiting slaughter of livestock and Article 51-A (g) and (h) only confers a duty upon the citizens to have compassion for living creature and to develop scientific temper, humanism and reform mindset respectively. So, the laws protecting the culture are given greater importance than the laws protecting the rights of animals.
However, the courts have ensured the basic principles of natural justice are not violated by supporting the hapless animals in absence of strong legislative back-up. When it comes to the welfare of animals undoubtedly there are legislations one of paramount importance being the Prevention of Cruelty to Animals Act, 1960 which prevents excessive cruelty towards animals but does not bestow them with any legal rights and thus their freedom is based on the laws framed thereon. However, the cultural ambition must not strangle the well-being of animals.
The irony being that legislature on one hand approves killing of animals for religious purpose and promotes prevention of animal brutality in context of cultural significance, therefore unfortunately the animal existence is at the whims of human mind and compassion towards animals will differ accordingly the importance which humans provide their own social practices to be. Ultimately the Respondent’s contention that if the cultural practice of Jallikattu is discontinued it will render the native breed of bulls unproductive for agricultural purpose and gradually as the financial and cultural incentives for maintaining these bulls would diminish and the population of native bulls will decline and may even lead to extinction. The optimal and compassionate decision would be ensuring the continued preservation of bull species while fostering their care and stewardship by farmers.
The court has achieved a commendable balance between the principles of animal welfare and ethical considerations, alongside the preservation of cultural heritage. “The preservation of culture must not be achieved at the expense of jeopardizing innocent beings whose mere existence is at the mercy of humans. ” This paramount principle has been upheld by the Supreme Court, underscoring the significance of protecting both our cultural heritage and the ethical treatment of all living beings. In conclusion, the dedication to cultural preservation should co-exist harmoniously with compassion and reverence for animal life.