Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Soumyabrata Chakraborty, a second-year law student at Gujarat National Law University, Gandhinagar, Gujarat.
On May 18, the Supreme Court of India (SCI) pronounced its judgement in the case of Animal Welfare Board of India v. Union of India. The five-judge Constitution Bench, headed by Justice KM Joseph, upheld the constitutional validity of amendments to the Prevention of Cruelty to Animals Act, 1960 (the “Act”) by the Indian states of Tamil Nadu, Karnataka and Maharashtra, and allowed the conduct of animal sports like Jallikattu, Kambala and bull-cart racing in the respective states. The Constitution Bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, and CT Ravikumar further directed strict enforcement of the Amendment Acts and the Rules and Notifications framed accordingly.
The SCI expressed disagreement with its previous two-judge Bench decision of Animal Welfare Board of India v. A. Nagaraja, pronounced back in 2014. The Court in that instance was dealing with a batch of petitions seeking compliance with its 2014 judgement that prohibited the conduct of animal sports and seeking quashing of State amendments to the Act of 1960, which allegedly bypassed the Court’s previous ruling, allowing the conduct of animal sports.
“Jallikattu” is a bull-taming sport played in the State of Tamil Nadu as part of the Pongal harvest festival. Similar animal sports are practised in other states, including “Kambala” in Karnataka which is a buffalo racing event and “Bullock Cart Racing” in Maharashtra.
In the 2014 judgement, the SCI observed that animal welfare laws have to be interpreted keeping in mind the welfare of animal species and any exceptions to such laws will be based on justified human necessities specified in Section 11(3) and Section 28 of the Act of 1960. Notably, Section 28 provides for exceptions in cases involving killing of an animal in the manner required by the religion of any community. The landmark judgement of 2014 recognised “life” for animals to include the right of protection against unnecessary pain inflicted by human beings. Pertinently the Court had held that activities which are avoidable or are not exceptions under Sections 11(3) and 28 of the Act, cannot be permitted. Consequently, the Court outlawed animal sports such as Jallikattu. In paragraph 43 of the said judgement the Apex Court observed that “Jallikattu and Bullock cart races, the manner in which they are conducted, have no support of Tamil tradition or culture”.
Subsequent to the 2014 judgement, the Union Government of India issued a notification in 2016 through the Ministry of Environment, Forest and Climate Change, requiring the states to comply with the 2014 judgement. However, an exception was carved out in the said notification that bulls might be continued to be trained for events such as Jallikattu in Tamil Nadu and Bullock Cart Races in other states, in the manner prescribed by the customs of any community or traditional practice in any part of the country. The said notification was challenged in a batch of Writ Petitions filed before the SCI, which questioned its legality and sought compliance with the 2014 Judgement.
While the petitions were pending before the Apex Court, the State Governments of Tamil Nadu, Karnataka and Maharashtra made amendments to the Prevention of Cruelty to Animals Act of 1960. Tamil Nadu, for example, brought in the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 (the “Tamil Nadu Amendment Act, 2017”), and formulated Rules for conducting Jallikattu in the State (the Tamil Nadu Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules, 2017). Similar amendments to the Act of 1960 were passed and Rules were formulated for the conduct of Kambala and Bullock Cart Races by the States of Karnataka and Maharashtra, respectively. Notably, Section 28A of the Tamil Nadu Amendment Act, 2017 provides for an exception to the provisions of the Act of 1960, in the case of Jallikattu. It declares that the conduct of Jallikattu shall not be an offence under the Act. Further, the Legislative Assembly of Tamil Nadu recognised Jallikattu as a part of the cultural heritage of the State and Tamil tradition. The Preamble to the Amendment Act reads, “An Act to amend the Prevention of Cruelty to Animals Act, 1960 so as to preserve the cultural heritage of the State of Tamil Nadu and to ensure the survival and wellbeing of the native breeds of bulls.” The Rules formulated for the conduct of such sports prohibit causing any physical disturbance to the bulls like beating or poking them with sharp objects or twisting their tails.
Subsequent to these State amendments the pending Writ Petitions were amended and the issues before the Court now were to decide on the legality of the Amendment Acts and incidental thereto, to decide on whether bovine sports like Jallikattu are a part of the cultural heritage of the respective States.
The petitioners argued that the State amendments and Rules that seek to legitimise and regulate the conduct of such animal sports do not cure the deficiencies brought about by the 2014 judgement and that the ratio of the same is sought to be bypassed by these legislative instruments. Further, it was submitted that Article 21 of the Constitution of India which provides for protection of life and personal liberty extends to animals and “person” as envisaged in Article 21 includes animals. The petitioners also questioned the Preamble of the Amendment Acts that recognises these bovine sports as part of the cultural heritage of the respective States.
On the question of whether animals enjoy certain fundamental rights including the rights under Article 21, the Courts observed that there is no precedent or tool for testing this proposition and it can only be decided on the basis of the interpretation of the Amendment Acts in light of the reasonableness criteria of Article 14 of the Constitution (paragraph 24). The Court observed that Article 14 cannot be invoked by any animal as a person, however, it can be used to test the provisions of animal welfare laws when invoked by a juridical person. The Constitution Bench observed that the Amendment Acts cannot be construed as colourable legislations that seek to override the previous judicial pronouncement and that the State Legislative Assemblies do have the power to make such amendments under Entry 17, List III of the Seventh Schedule to the Indian Constitution which provides for the prevention of cruelty to animals as a subject of concurrent legislation for the Union and the States. The Court held that the Amendment Acts and the Rules or Notifications formulated minimises the cruelty to animals in the sports concerned and that the conduct of such bovine sports has undergone substantial change since the Court’s 2014 judgement. The Bench observed that it cannot strike down the laws on mere apprehension of abuse or noncompliance. The Apex Court thus upheld the Amendment Acts and directed their strict enforcement.
On the question of whether animal sports like Jallikattu form a part of the cultural heritage of the respective states, the Court observed that Jallikattu has been going on in Tamil Nadu for at least the last few centuries and that answering this question would require religious, cultural and social analysis in greater detail, which cannot be undertaken by the Judiciary, and rather has to be concluded by the legislature of the respective States. The Court held that since the legislative exercise has already recognised these bovine sports to be a part of the cultural heritage it will not interfere with this conclusion. Thus the Court deviated from the view taken in its 2014 judgement that Jallikattu is not a part of the cultural heritage of Tamil Nadu, and refused to delve into this question of fact.
The SCI’s ruling shifts the burden of preventing undue cruelty to animals used in these bovine sports onto the executive rather than imposing a blanket judicial ban on such practices. However, going ahead, it has to be seen how effective the executive is in dealing with instances of non-compliance or violation of the said Amendment Acts, especially in light of the lacunas in the implementation of laws. The Court has however made it a point to direct strict enforcement and even directed competent executive authorities to ensure strict compliance (paragraph 42).