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The Supreme Court on Thursday upheld the validity of 2017 Tamil Nadu law for allowing bull taming sport 'Jallikattu', saying it has been going on for at least last few centuries in the state.
A five-judge bench headed by Justice KM Joseph also similarly affirmed the validity of Maharashtra and Karnataka laws enacted in 2017 to allow bull carts race and 'Kambala' respectively.
"All the three bovine sports, after Amendment, assume different character in their performance and practice and for these reasons we do not accept the petitioners’ argument that the Amendment Acts were merely a piece of colourable legislation with cosmetic change to override judicial pronouncement. Once we read the amended Statutes withthe respective Rules or Notification, we do not find them to encroach upon the Central legislation," the bench said.
The bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, dismissed a batch of writ petitions filed by Animal Welfare Board of India and others against the three state legislations for being violative of the provisions of the Prevention of Cruelty to Animals Act and the Constitution.
"Jallikattu is a type of bovine sports and we are satisfied on the basis of materials disclosed before us, that it is going on in the State of Tamil Nadu for at least last few centuries. This event essentially involves a bull which is set free in an arena and human participants are meant to grab the hump to score in the “game”," the bench said.
Writing the judgement on part of the bench, Justice Bose said but whether this has become integral part of Tamil culture or not requires religious, cultural and social analysis in greater detail, which in our opinion, is an exercise that cannot be undertaken by the Judiciary.
"The question as to whether the Tamil Nadu Amendment Act is to preserve the cultural heritage of a particular State is a debatable issue which has to be concluded in the House of the People," the bench said.
The court did not accept the view that the division bench's judgement in A Nagaraj case (2014) which declared that performance of Jallikattu is not a part of the cultural heritage of the people of the State of Tamil Nadu.
"We do not think there was sufficient material before the court for coming to this conclusion," the bench said.
The court also noted since legislative exercise has already been undertaken, it would not disrupt the scheme of the laws.
The bench also declared that even if we proceed on the basis that legislature is best suited branch of the State to determine if particular animal-sports are part of cultural tradition of a region or community, or not, if such cultural event or tradition offends the law, the penal consequence would follow.
"Such activities cannot be justified on the ground of being part of cultural tradition of a State," it said.
The court also said the defects pointed out in the two previous judgement in the matter have been overcome with the state amendment Act and rules.
It also directed that the law contained in the Act/Rules/Notification should be strictly enforced by the authorities.
"In particular, we direct that the District Magistrates/competent authorities shall be responsible for ensuring strict compliance of the law, as amended along with its Rules/Notifications," the bench said.
In its judgement, the court said 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 judgment was delivered cannot be equated with the present situation.
"We cannot come to the conclusion that in the changed circumstances, absolutely no pain or suffering would be inflicted upon the bulls while holding these sports. But we are satisfied 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.
The petitioners contended that in reality the welfare measures, mentioned in the amendment acts may not be practiced and the system as it prevailed previously could continue.
"We, however, cannot proceed in exercise of our judicial power on the assumption that a law ought to be struck down on apprehension of its abuse or disobedience. Respondents have cited a large body of authorities to defend their stand that these are not cases of colourable legislation but we do not consider it necessary to refer to all these judgments individually as we have come to this conclusion after analysing various statutory instruments covering the field," the bench said.
The bench also said it accepted the obligation of human beings to ensure that animals do not suffer from pain and injury.
"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. This aspect has been dealt with in the case of A. Nagaraja (supra). This approach would be apparent from a plain reading of Section 11 of the 1960 Act itself even before the three
Amendments where the legislature appears to have undertaken a balancing exercise without disturbing the concept of ownership of animal by an individual and such individual’s right to employ these animals in the aforesaid sports," the bench said.
With regard to question of conferring fundamental right on animals, the bench said we do not have any precedent.
"The division bench in the case of A Nagaraja also also does not lay down that animals have Fundamental Rights. 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. While the protection under Article 21 has been conferred on person as opposed to a citizen, which is the case in Article 19 of the Constitution, we do not think it will be prudent for us to venture into a judicial adventurism to bring bulls within the said protected mechanism. We have our doubt as to whether detaining a stray bull from the street against its wish could give rise to the constitutional writ of habeas corpus or not," court said.
The court also noted the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017, The Prevention of Cruelty to Animals (Maharashtra Amendment) Act, 2017 and The Prevention of Cruelty to Animals (Karnataka Second Amendment) Act, 2017 were enacted by the respective State Legislatures and had received Presidential assent.
Case Title: THE ANIMAL WELFARE BOARD OF INDIA & ORS. vs. UNION OF INDIA & ANR.
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