Order dated 12-1-2016
(Before Dipak Misra and N.V. Ramana, JJ.)
Writ Petition (Civil) No. 24 of 2016
1. In these writ petitions preferred under Article 32 of the Constitution of India, the petitioners, Compassion Unlimited Plus Action, the Animal Welfare Board of India, Gauri Maulekhi, People for Ethical Treatment of Animals India and Federation of Indian Animal Protection Organisations, have prayed for an appropriate writ, order or direction for quashing Notification No. G.S.R. 13(E) dated 7-1-2016, published by the respondent, the Union of India, in the Gazette of India, Extraordinary; and further to command the respondent to ensure compliance with the law laid down in Animal Welfare Board of India v. A. Nagaraja (2014) 7 SCC 547, and to pass such other order as may be deemed necessary. There is a prayer for stay of the impugned Notification.
2. We have heard Mr C.A. Sundaram, Mr Sidharth Luthra, Mr K.K. Venugopal, Mr Anand Grover, Mr R. Venkataramani, Mr Dushyant A. Dave, learned Senior Counsel along with Ms Anjali Sharma, learned counsel and other learned counsel for the petitioners and Mr Mukul Rohatgi, learned Attorney General for the Union of India, Mr L.N. Rao and Mr Shekhar Naphade, learned Senior Counsel for the State of Tamil Nadu and Mr Nishant Ramakantrao Katneshwarkar, learned counsel for the State of Maharashtra.
3. The present case has a history to narrate. The Central Government had issued a Notification on 11-7-2011. The said Notification reads as follows:
“ministry of environment and forests notification
New Delhi, 11th July, 2011
G.S.R. 528(E).—In exercise of the powers conferred by Section 22 of the Prevention of Cruelty to Animals Act, 1960 (59 of 1960), and in supersession of the Notification of the Government of India in the erstwhile Ministry of Social Justice and Empowerment No. G.S.R. 619(E) dated 14-10-1998, except as respects things done or omitted to be done before such supersession, the Central Government, hereby specifies the following animals shall not be exhibited or trained as performing animals, with effect from the date of publication of this Notification, namely:
1. Bears
2. Monkeys
3. Tigers
4. Panthers
5. Lions
6. Bulls.
[F. No. 27-1/2011-AWD]
Anjani Kumar, Director (AW)”
4. The matter when travelled to this Court, a two-Judge Bench in A. Nagaraja case (2014) 7 SCC 547 was required to examine the rights of animals under the Constitution of India, laws, culture, tradition, religion and ethology, especially in connection with the conduct of “Jallikattu”, bullock cart races, etc. in the States of Tamil Nadu and Maharashtra, with particular reference to the provisions of the Prevention of Cruelty to Animals Act, 1960 (for short “the PCA Act”), the Tamil Nadu Regulation of Jallikattu Act, 2009, and the Notification dated 11-7-2011, issued by the Central Government under Section 22(ii) of the PCA Act. The Court adverted to various aspects and it expressed its views from various angles. Paras 55, 56, 61, 62, 67, 73 and 74, are relevant to be reproduced for understanding the analysis made therein. We quote the same:(, 592-94 & 596)“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.’
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.
61. When we look at the rights of animals from the national and international perspective, what emerges is that every species has an inherent right to live and shall be protected by law, subject to the exception provided out of necessity. Animal has also honour and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attacks.
62. The Universal Declaration of Animal Welfare (UDAW) is a campaign led by World Society for the Protection of Animals (WSPA) in an attempt to secure international recognition for the principles of animal welfare. UDAW has had considerable support from various countries, including India. WSPA believes that the world should look to the success of the Universal Declaration of Human Rights (UDHR) to set out what UDAW can achieve for animals. Five freedoms referred to in UDAW, which we will deal with in the latter part of the judgment, find support in the PCA Act and the Rules framed thereunder to a great extent.
67. Article 51-A(g) states that it shall be the duty of citizens to have compassion for living creatures. In State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534, this Court held that by enacting Article 51-A(g) and giving it the status of a fundamental duty, one of the objects sought to be achieved by Parliament is to ensure that the spirit and message of Articles 48 and 48-A are honoured as a fundamental duty of every citizen. Article 51-A(g), therefore, enjoins that it was a fundamental duty of every citizen ‘to have compassion for living creatures’, which means concern for suffering, sympathy, kindliness, etc., which has to be read along with Sections 3, 11(1)(a) and (m), 22, etc. of the PCA Act.
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 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, 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.
74. We are, therefore, of the view that Sections 21 and 22 of the PCA Act and the relevant provisions have to be understood in the light of the rights conferred on animals under Section 3, read with Sections 11(1)(a) and (o) and Articles 51-A(g) and (h) of the Constitution, and if so read, in our view, bulls cannot be used as performing animals for Jallikattu and bullock cart race, since they are basically draught and pack animals, not anatomically designed for such performances.”
5. Mr C.A. Sundaram and Mr Anand Grover, learned Senior Counsel, have also drawn our attention to paras 90 and 91. They read as follows: (A. Nagaraja case (2014) 7 SCC 547)“90
. We, therefore, hold that AWBI is right in its stand that Jallikattu, bullock cart race and such events per se violate Sections 3, 11(1)(a) and 11(1)(m)(ii) of the PCA Act and hence we uphold the Notification dated 11-7-2011 issued by the Central Government. Consequently, bulls cannot be used as performing animals, either for the Jallikattu events or bullock cart races in the State of Tamil Nadu, Maharashtra or elsewhere in the country.
91. We, therefore, make the following declarations and directions:
91.1. We declare that the rights guaranteed to the bulls under Sections 3 and 11 of the PCA Act read with Articles 51-A(g) and (h) of the Constitution cannot be taken away or curtailed, except under Sections 11(3) and 28 of the PCA Act.
91.2. We declare that the five freedoms, referred to earlier be read into Sections 3 and 11 of the PCA Act, be protected and safeguarded by the States, Central Government, Union Territories (in short ‘the Governments’), MoEF and AWBI.
91.3. AWBI and the Governments are directed to take appropriate steps to see that the persons in charge or care of animals, take reasonable measures to ensure the well-being of animals.
91.4. AWBI and the Governments are directed to take steps to prevent the infliction of unnecessary pain or suffering on the animals, since their rights have been statutorily protected under Sections 3 and 11 of the PCA Act.
91.5. AWBI is also directed to ensure that the provisions of Section 11(1)(m)(ii) are scrupulously followed, meaning thereby, that the person in charge or care of the animal shall not incite any animal to fight against a human being or another animal.
91.6. AWBI and the Governments would also see that even in cases where Section 11(3) is involved, the animals be not put to unnecessary pain and suffering and adequate and scientific methods be adopted to achieve the same.
91.7. AWBI and the Governments should take steps to impart education in relation to humane treatment of animals in accordance with Section 9(k) inculcating the spirit of Articles 51-A(g) and (h) of the Constitution.
91.8. Parliament is expected to make proper amendment of the PCA Act to provide an effective deterrent to achieve the object and purpose of the Act and for violation of Section 11, adequate penalties and punishments should be imposed.
91.9. Parliament, it is expected, would elevate rights of animals to that of constitutional rights, as done by many of the countries around the world, so as to protect their dignity and honour.
91.10. The Governments would see that if the provisions of the PCA Act and the declarations and the directions issued by this Court are not properly and effectively complied with, disciplinary action be taken against the erring officials so that the purpose and object of the PCA Act could be achieved.
91.11. The TNRJ Act is found repugnant to the PCA Act, which is a welfare legislation, hence held constitutionally void, being violative of Article 254(1) of the Constitution of India.
91.12. AWBI is directed to take effective and speedy steps to implement the provisions of the PCA Act in consultation with SPCA and make periodical reports to the Governments and if any violation is noticed, the Governments should take steps to remedy the same, including appropriate follow-up action.”
6. When the matter stood thus, the Central Government has issued a Notification on 7-1-2016. The said Notification reads as follows:
“ministry of environment and climate change notification
New Delhi, 7th January, 2016
G.S.R. 13(E).—In exercise of the powers conferred by Section 22 of the Prevention of Cruelty to Animals Act, 1960 (59 of 1960), and in supersession of the Notification of the Government of India in the Ministry of Environment and Forests, Government of India No. G.S.R. 528(E), dated 11-7-2011, except as respects things done or omitted to be done before such supersession, the Central Government, hereby specifies that the following animals shall not be exhibited or trained as performing animal, with effect from the date of publication of this Notification, namely:
1. Bears
2. Monkeys
3. Tigers
4. Panthers
5. Lions
6. Bulls:
Provided that bulls may continue to be exhibited or trained as a performing animal, 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 any community or practiced traditionally under the customs or as a part of culture, in any part of the country subject to the following conditions, namely:
(i) such event shall take place in any district where it is being traditionally held annually, at such place explicitly permitted by the District Collector or the District Magistrate;
(ii) bullock cart race shall be organised on a proper track, which shall not exceed two kilometres. In case of Jallikattu, the moment the bull leaves the enclosure, it shall be tamed within a radial distance of 15 m;
(iii) ensure that the bulls are put to proper testing by the authorities of the Animal Husbandry and Veterinary Department to ensure that they are in good physical condition to participate in the event and performance enhancement drugs are not administered to the bulls in any form; and
(iv) ensure that the rights conferred upon the animals under Section 3 and clause (a) and clause (m) of sub-section (1) of Section 11 of the Prevention of Cruelty to Animals Act, 1960 (59 of 1960) and five freedoms declared by the Hon'ble Supreme Court in its order dated 7-5-2014 in Animal Welfare Board of India v. A. Nagaraja (2014) 7 SCC 547 are fully protected during such events:
Provided further that any event of Jallikattu or bullock cart races so organised shall be held with the prior approval of the District Authorities concerned:
Provided also further that the Jallikattu or bullock cart races so organised shall be duly monitored by the District Society for Prevention of Cruelty to Animals and State Animal Welfare Board or the District Authorities as the case may be, ensuring that no unnecessary pain or suffering is inflicted or caused, in any manner, whatsoever, during the course of such events, or in preparation thereof.
[F. No. 27/01/2011-AWD]
Hem Pande, Special Secy.”
7. It is submitted by the learned Senior Counsel appearing for the petitioners that the said Notification does not really efface the verdict of this Court and, in fact, it runs contrary to the provisions of the PCA Act. It is urged by them that though the Central Government by recent Notification has added conditions, but treating of bulls in such a manner would not be justifiable regard being had to the compassion which has been enshrined under the PCA Act and the fundamental duties engrafted under Article 51-A of the Constitution of India. The learned counsel would urge that the use of bulls in this manner cannot be a matter of festivity for the human race, particularly in the 21st century and, therefore, the Notification dated 7-1-2016, should be stayed.
8. Mr Mukul Rohatgi, learned Attorney General, in his turn, has submitted that the writ petitions are not maintainable under Article 32 of the Constitution of India as the fundamental rights of the Animal Welfare Board and other petitioners are in no way affected. The said issue shall be debated at a later stage, for earlier a writ petition was entertained and as we perceive the Board and the others have really not approached the Court for protection of their fundamental rights, but the rights of the animals in the constitutional and statutory framework. Be that as it may, as such a preliminary objection has been raised by the learned Attorney General, we keep the issue open. Apart from the said submission, it is canvassed by Mr Mukul Rohatgi, learned Attorney General that para 91 of the judgment pronounced in A. Nagaraja case (2014) 7 SCC 547 has to be appropriately understood. In essence, the submission of Mr Rohatgi, is that this Court has not totally prohibited the participation of bulls in the Jallikattu, but it desired that care should be taken so that the bulls are not meted with cruelty. He has emphasised on the various terms and the guidelines provided in the Notification dated 7-1-2016, so that cruelty to the participating animals is avoidable. The issue is of the stage of avoidability or treating with cruelty.
9. Mr L.N. Rao and Mr Shekhar Naphade, learned Senior Counsel appearing for the State of Tamil Nadu, have submitted that this sport is in vogue for centuries and this Court has taken note of the nature of the Jallikattu in the earlier decision in A. Nagaraja case (2014) 7 SCC 547 and, therefore, there cannot be a prohibition as that will be creating a dent in the culture. The same view is echoed with more concern by Mr Shekhar Naphade.
10. Mr K.K. Venugopal, learned Senior Counsel appearing for the Federation of Indian Animal Protection Organisations (Fiapo), per contra, would contend that cruelty to animals is inconceivable in the present day. The learned Senior Counsel has seriously criticised such an activity on the foundation that the sports of this nature deserve to be prohibited. It is urged by him that sports with articles and sports with living beings are different and the Court should take cognizance of the same.
11. Having heard the learned counsel for the parties, we are inclined to issue notice. The respondents who have entered appearance be served with the copy of the petition within a week hence. Counter-affidavit be filed within four weeks therefrom. Rejoinder-affidavit, if any, be filed within four weeks from the date of receipt of the counter-affidavit. The unserved respondents be served through dasti.
12. As an interim measure, we direct that there shall be stay of Notification dated 7-1-2016, issued by the Ministry of Environment, Forests and Climate Change, until further orders.
13. Let the matter be listed on 15-3-2016.
Order dated 13-1-2016
(Before Dipak Misra and N.V. Ramana, JJ.)
IA No. ……2016 in Writ Petition(s) (Civil) No(s). 24 of 2016
14. Taken on Board. The application for intervention stands allowed. Apart from intervention, in the application there is also a prayer seeking vacation of the order of stay dated 12-1-2016 passed in the writ petition. It is contended in the application that the Jallikattu is not a fight between bulls and humans but a game where the participants are required to embrace the running bulls by hanging on to their hump as long as possible; and they are unarmed. It is also put forth that the bulls are trained not to let the village youth clamber on to their humps and in no case they are led away by the owners afterwards.
15. It is urged that Jallikattu is a socio-religious festival and not an entertainment and the people at various places in the State of Tamil Nadu have immense faith in the said festival for many a reason. Emphasis is laid on the culture of the State and the belief of the pastoral communities. In essence, it is urged that there is no cruelty meted out to the bulls in such a festival or game.
16. Mr N. Rajaraman, learned counsel appearing for the applicant would submit that it is a 3000 years old tradition and this Court had never meant in Animal Welfare Board of India v. A. Nagaraja (2014) 7 SCC 547 that there should be ban on Jallikattu. It is urged by him that there was no justification or necessity to direct stay of the Notification issued by the Central Government on 7-1-2016 at the instance of the petitioners, for they do not have any idea about the cultural base of this country. The learned counsel would submit that the age old culture of this country is perceivable in the villages but not in the metro cities where the representatives of the petitioners or the petitioners reside.
17. We had already adverted to many an aspect in our order passed on 12-1-2016. However, for the issue raised today by the learned counsel for the applicant, it is necessary to refer to paras 43 and 44 of the decision in A. Nagaraja (2014) 7 SCC 547. They read as follows:
“43. All animals are not anatomically designed to be performing animals. Bulls are basically draught and pack animals. They are livestock used for farming and agriculture purposes, like ploughing, transportation, etc. Bulls, it may be noted, have been recognised as draught and pack animals in the Prevention of Cruelty to Draught and Pack Animals Rules, 1965. Draught animal means an animal used for pulling heavy loads. The Rules define large bullock to mean a bullock the weight of which exceeds 350 kg. Bullocks have a large abdomen and thorax and the entire body has a resemblance to a barrel shape, which limits the ability to run. Bulls have also limitations on flexing joins and the rigid heavily built body and limited flexion of joints do not favour running faster. Due to that body constitution, the Prevention of Cruelty to Animals (Transport of Animals on Foot) Rules, 2001, especially Rule 11 says that no person shall use a whip or a stick in order to force the animal to walk or to hasten the pace of their walk. Bulls, it may be noted, are cloven footed (two digits) animals and two digits in each leg can comfortably bear weight only when they are walking, not running. Horse, on the other hand, is a solid hoofed plant-eating quadruped with a flowing mane and tail, domesticated for riding and as a draught animal. Horsepower, we call it as an imperial unit of power, equal to 550 foot-pounds per second. Horse's anatomy enables it to make use of speed and can be usefully used for horse racing, etc., unlike bulls.
44. Bulls, therefore, in our view, cannot be a performing animal, 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:
‘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.’”
18. In addition to the same, it should be apposite to refer to para 8 where the following contention was raised: (A. Nagaraja case (2014) 7 SCC 547)“8
. The State of Tamil Nadu has also taken up the stand that every effort shall be made to see that bulls are not subjected to any cruelty so as to violate the provisions of the PCA Act and the sports event can be regulated as per the provisions of the TNRJ Act. Further, it was also pointed out that the bulls taking part in Jallikattu, bullock-cart race, etc. are specifically identified, trained, nourished for the purpose of the said sports event and owners of bulls spend considerable money for training, maintenance and upkeep of the bulls.”
19. The two-Judge Bench in para 36 had dealt with suffering caused to the animals. The said passage reads as under: (A. Nagaraja case (2014) 7 SCC 547)“36
. We will now examine whether the second limb of Section 3 which casts a duty on the person in charge or care of animal to prevent the infliction upon an animal, unnecessary pain or suffering, discharges that duty. Considerations, which are relevant to determine whether the suffering is unnecessary, include whether the suffering could have reasonably been avoided or reduced, whether the conduct which caused the suffering was in compliance with any relevant enactment. Another aspect to be examined is whether the conduct causing the suffering was for a legitimate purpose, such as, the purpose for benefiting the animals or the purpose of protecting a person, property or another animal, etc. Duty is to prevent the infliction of unnecessary pain or suffering, meaning thereby, no right is conferred to inflict necessary/unnecessary pain or suffering on the animals. By organising Jallikattu and bullock-cart race, the organisers are not preventing the infliction of unnecessary pain or suffering, but they are inflicting pain and suffering on the bulls, which they are legally obliged to prevent. Section 3 is a preventive provision casting no right on the organisers, but only duties and obligations. Section 3, as already indicated, confers corresponding rights on the animals as against the persons in-charge or care, as well as AWBI, to ensure their well-being and be not inflicted with any unnecessary pain or suffering. Jallikattu or bullock-cart race, from the point of the animals, is not an event ensuring their well-being or an event meant to prevent the infliction of unnecessary pain or suffering, on the contrary, it is an event against their well-being and causes unnecessary pain and suffering on them. Hence, the two limbs of Section 3 of the PCA Act have been violated while conducting Jallikattu and bullock-cart race.”
20. In para 42, the two-Judge Bench has observed thus: (A. Nagaraja case (2014) 7 SCC 547)“42
. Sections 3 and 11, as already indicated, therefore, confer no right on the organisers of Jallikattu or bullock-cart race, but only duties, responsibilities and obligations, but confer corresponding rights on animals. Sections 3, 11(1)(a) and (o) and other related provisions have to be understood and read along with Article 51-A(g) of the Constitution which cast fundamental duties on every citizen to have ‘compassion for living creatures’. Parliament, by incorporating Article 51-A(g), has again reiterated and re-emphasised the fundamental duties on human beings towards every living creature, which evidently takes in bulls as well. All living creatures have inherent dignity and a right to live peacefully and right to protect their well-being which encompasses protection from beating, kicking, overdriving, overloading, tortures, pain and suffering, etc. Human life, we often say, is not like animal existence, a view having anthropocentric bias, forgetting the fact that animals have also got intrinsic worth and value. Section 3 of the PCA Act has acknowledged those rights and the said section along with Section 11 cast a duty on persons having charge or care of animals to take reasonable measures to ensure well-being of the animals and to prevent infliction of unnecessary pain and suffering.”
21. The aforesaid paragraphs clearly show that the Jallikattu and other form of bulls race cause trouble, pains and stress to the bulls and it is contrary to the provisions of the Act. Be it be ingeminated that the Court has adjudged the issue in the backdrop of Articles 51-A(g) and (h) of the Constitution of India. There can be no shadow or trace of doubt that the Constitution of India is an organic and compassionate Constitution.
22. The learned counsel for the applicant has drawn our attention to para 91 to show that there was no prohibition or ban but to regulate the game. On the contrary, Mr Sundaram and Mr Grover, learned Senior Counsel, would submit that apposite reading of para 91 does not reflect so. We had noted the said submission yesterday and we will be dealing with the same at the time of final hearing.
23. The learned counsel for the applicant would submit that certain arrangements have already been made and responsible District Collectors have been appointed to supervise Jallikattu, and therefore, the order of stay passed by this Court should be vacated. The aforesaid submission leaves us unimpressed, for the Simon-pure reason, the two-Judge Bench of this Court (2014) 7 SCC 547, as it appears, had discussed many facets with regard to Jallikattu and expressed its opinion. The arrangements made on the basis of the Notification would not warrant alteration of our order and, therefore, we are not inclined to vacate the order of stay.
24. Let the matter be listed on the date fixed. It is open to the applicant to file the counter-affidavit within four weeks from today and assist the Court.
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