Animal Welfare Board of India v. A Nagaraja & Ors: Case Analysis

Animal Welfare Board of India v. A Nagaraja & Ors
In Supreme Court of India Civil Appellate Jurisdiction
Case No:- Special Leave Petition (Civil) No. 11686 of 2007
Petitioner:-  Animal Welfare Board
Respondent:-  A Nagaraja
Date of Judgement"- 7th May, 2014
Bench:-  K. S. Radhakrishnan, Pinaki Chandra Ghose

INTRODUCTION

The widely celebrated judgement which brought rights of animals under the ambit of right to life and liberty i.e., Article 21 of the Indian Constitution has some unnoticeable flaws. The present case is concerned with an issue of importance with regard to the Rights of Animals, laws, culture, tradition, religion and ethology of Tamil Nadu and Maharashtra.

The case majorly deals with practice of Jallikattu which consists of silver or gold coins tied on the bulls’ horns. People, in the earlier time, used to fight to get at the money placed around the bulls’ horns which depicted as an act of bravery. Later, it became a sport conducted for entertainment in which a fast-moving bull was corralled with ropes around its neck.

The case was analyzed with reference to the PCA Act, 1960, along with the Tamil Nadu Regulation of Jallikattu Act, 2009 (‘the TNRJ Act’).

Also Read: Lalman Shukla v. Gauri Dutt:- Case Analysis- Our Legal World

FACTS

The present case dealt with two sets of cases:

1. One set challenged the Division Bench Judgment of the Madras High Court which challenged the validity of TNRJ Act and few other writ petitions which questioned the validity of the Ministry of Environment and Forest (Notification dated 11.07.2011).
2. The appeal for ban on Jallikattu was initiated in 2006, when a petition was filed before the Madras High Court, seeking permission to conduct Jallikattu. Though the single bench banned Jallikattu, owing to the cruelty, the Division Bench, in another appeal, overturned the previous order and granted permission to conduct Jallikattu under special conditions.
3. But since the practice of Jallikattu was continued disregarding the conditions, the Animal Welfare Board being a statutory board, established under Section 4 of the PCA Act put up a notification barring bulls as “performing animals”.
4. Another set of cases, which challenged the Division Bench judgment of the Bombay High Court dated 12.03.2012 upholding the MoEF (Notification dated 11.07.2011) and the corrigendum issued by the Government of Maharashtra prohibiting all Bullock-cart races, games, training, exhibition etc.
5. It is in the present case that, the petitioners have approached the Supreme Court against order of the Division Bench, aiming to enforce the notification, while the respondents on the other hand argues that Jallikattu ought not to be banned on the grounds of culture and traditions.

ISSUES

1. Whether the events that are being conducted in the States of Tamil Nadu and Maharashtra are in violation of Sections 3, 11(1)(a) & (m), 21 and 22 of the PCA Act read with Articles 51A(g) and (h) of the Constitution.
2. Whether provisions of the TNRJ Act, which is a State Act, is repugnant to the PCA Act, which is a Central Act, since, both the Acts fall under Entry No. 17 in the Concurrent List.

ARGUMENTS

BY PETITIONERS

1. AWBI took stand that the bulls involved in Jallikattu, Bullock-cart race etc. are not “performing animals” within Sections 21 and 22 of the PCA Act. Bulls are Draught and Pack animal recognized under Prevention of Cruelty to Draught and Pack Animals Rules, 1965, they are used for live-stock, farming and agriculture. Further, it was pointed out that, during Jallikattu they carry out a flight response, indicating fear, pain and suffering.
2. AWBI submitted that the Bulls which were forced to participate in the race are subjected to pain and suffering, which violates Section 3 and Sections 11(1)(a) & (m) of the PCA Act read with Article 51A(g) and Article 21 of the Constitution of India.
3. A considerable stress was made on the words “or otherwise” in Section 11(1)(a) and was submitted that any act which inflicts unnecessary pain or suffering on an animal is prohibited unless it is specifically permitted under any of the provisions of PCA Act or the rules made thereunder.
4. It was further argued that Article 21 of the Constitution, while safeguarding the rights of humans, protects life and “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution.
5. Right to live in a healthy and clean atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under Sections 3 and 11 of the PCA Act read with Article 51A(g) of the Constitution.
6. AWBI further corroborates their arguments with findings of their research over how event of Jallikattu is being conducted. It stated, bulls were forced to participate and were deliberately taunted, tormented, mutilated, stabbed, beaten, chased and denied even their most basic needs, including food, water and sanitation are violation of Section 11(1)(a) & (l).

BY RESPONDENTS

1. Organizers of Jallikattu took up the stand that these events take place at the end of harvest season and sometimes during temple festivals. While, organizers of Bullock- cart races in the State of Maharashtra took the stand that the same is going on for the last more than 300 years by way of custom and tradition and that extreme care and

protection are being taken not to cause any injury or pain to the bullocks which participate in the event.

• Organizers also submitted that such sport generates revenue for the State. It is also their stand that the sport events can only be regulated and not completely prohibited and the State of Tamil Nadu has already enacted the TNRJ Act, which takes care of the apprehensions expressed by the Board.
• Also, stated that no cruelty is meted out to the performing bulls in Bullock-cart races so as to violate Section 11(1)(a) of the PCA Act and the District Collector, Police Officials etc. are always on duty to prevent cruelty on animals.
• Further, it was also pointed out that the bulls taking part in these activities are specifically identified, trained, nourished for the purpose of the said sport event and owners of Bulls spend considerable money for training, maintenance and upkeep of the bulls.
• State of Tamil Nadu, referred to Section 11(3) of PCA Act, submitted that the Act does not prohibit the infliction of all forms of pain or suffering on animals and hence Section 11(1)(a) has to be read and understood in that context.
• Referring to Sections 11(1)(a), (g), (h), (j), (m) and (n), the counsel submitted that the expression “unnecessary pain or suffering” is not used in those clauses and hence the events like Jallikattu, which do not cause that much of pain or suffering on the animal. Furthermore, they highlighted the historical and cultural importance of the event.

JUDGEMENT

1. It was held 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 PCA Act and hence upheld 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.
2. The Court declared that the rights guaranteed to the Bulls under Sections 3 and 11 of PCA Act read with Articles 51A(g) & (h) are cannot be taken away or curtailed, except under Sections 11(3) and 28 of PCA Act.
3. The five freedoms, referred to earlier be read into Sections 3 & 11 of PCA Act, be protected and safeguarded by the States, Central Government, Union Territories (in short “Governments”), MoEF and AWBI.

• AWBI and Governments were 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.
• AWBI and Governments were 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 PCA Act.
• AWBI was also directed to ensure that the provisions of Section 11(1)(m)(ii) is 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.
• AWBI and the Governments were also to see that even in cases where Section 11(3) is involved, the animals were not put to unnecessary pain and suffering and adequate and scientific methods be adopted to achieve the same.
• It was directed that AWBI and the Governments should take steps to impart education in  relation  to  the  human  treatment  of   animals   in   accordance   with Section   9(k) inculcating the spirit of Articles 51A(g) & (h) of the Constitution.
• Parliament was 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 were to be imposed.
• Parliament was expected to 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.
• 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 is taken against the erring officials so that the purpose and object  of PCA Act could be achieved.
• TNRJ Act was found repugnant to PCA Act, which is a welfare legislation, hence held constitutionally void, being violative of Article 254(1) of the Constitution of India as previously held in Vijay Kumar Sharma v. State of Karnataka¹.
• AWBI was directed to take effective and speedy steps to implement the provisions   of 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.

ANALYSIS

The judgement states summary of the case, arguments and a first-hand information by AWBI of the manner in which the event of Jallikattu is conducted. The observational research conducted by AWBI states the behaviour of the bulls. The judgement states “Doctrine of Necessity” wherein the Court in the case of Bhuri Nath & Ors vs. The State of Jammu and Kashmir & Ors² held that excitement, presentation or entertainment does not fall under the exceptions under Section 11(3) of PCA Act.

APPRECIATION OF THE JUDGEMENT

Though the decision deems fit in all other aspects of protecting the animals from intentional cruelty just for entertainment and revenue purpose. The Court also kept in mind that the spectators can be injured and some incidents have also led to death of the spectators as well as the bull. A recent newspaper report states that ten persons- four bull tamers and six owner were injured during Jallikattu³. The Court was appropriate in its judgement when it declared that commissions of act during the preparation of the Jallikattu were cruel and against Prevention of Cruelty to Animals Act, 1960, which prohibits the misuse of animals and cannot be brushed under the carpet of customs.

CRITICISM OF THE JUDGEMENT

1. INTERPRETATION OF “LIFE” UNDER ARTICLE 21

The Court’s action is flawed when, it directed to bring animals under the protection of Article 21 and stated that the interpretation of the term ‘life’ must be expanded. As animals form a crucial part of environment, their rights must be protected. It further held that the provisions of the PCA Act were indicative of animals’ rights to “live in a healthy and clean atmosphere” or “not to be beaten, kicked”. A similar stance was taken by Kerala High Court in N.R. Nair v. Union of India⁴.

The author believes that a rights-based interpretation of the Court is erroneous as Indian courts have upheld that Article 21 of the Constitution is a source of protection for human rights and dignity⁵. By protecting non-human animal life under Article 21, the Supreme Court has challenged the understanding of who are the bearers of right and questions rights-based approach towards animal protection.

While granting rights to entities under the State, it is seen that they are not collectively applied to every object that exists but are restricted to those who possess certain characteristics and these characteristics forms the basis for “capacity for rights”⁶.

HOHFELD’S RIGHT-DUTY CORRELATION

The foremost question that arises while assigning constitutional or legal rights to non-human animals is whether they can be said to be legal persons. Here, we will briefly study about Hohfeld’s corelation of rights and duties⁷. He explains that the correlative of a right would be a duty and a person’s right would be satisfied only by another person’s duty to not infringe upon that right.

For example, a person who is granted the right to life has a duty not to endanger the lives of others but we cannot expect a dog not to bite. This also means that non-performance of a duty by a person may be punishable if it violates the right of another person, but in a practical sense, we cannot lodge a complaint if locusts attack farms.

Moreover, the logical analysis falls short while, testing of cosmetics on animals have been held illegal⁸ but tests related to medicine is still a widespread practice, which is equally harmful and can lead to death of an animal. This is clear indicative of the fact that how the laws that are said to protect animals are in effect passed against the backdrop of human interests and standards. It has been said that a conflict of rights can only result in the prevailing of human rights⁹.

The source of the duty that human beings owe to non-human animals must be viewed as arising not from what we give non-human animals through charity, but as what we owe to these species because of their inherent faculty¹⁰.

DUTY-BASED APPROACH

However, it will be unfair to not grant animals any security because they do not possess a level of mental development that humans do. But to protect animals, there is an urgent need to shift from a rights-based to approach to a duty-based approach.

Austin suggested the idea of absolute duty through his positivist analysis of rights and duties¹¹. The majority of legislation towards animal welfare across jurisdictions is the codification of negative and indirect duties that we owe to non-human animals¹². However, now the need is formation of direct and positive duties into legal provisions, and the enforcement of the same.

The PCA Act states our duties towards animals to refrain from causing harm, but fails to assure actions which contribute to their existence with dignity in ecosystem. For instance, Article 80 of the Swiss Constitution, holds that the State will positively regulate the keeping and care of animals; experiments and intervention on live animals; the use of animals; the importation of animals; animal trade and transportation of animals and the killing of animals¹³.

A more sustainable and effective commission would be towards duty-based approach which will create a positive and direct obligation upon humans and the State to protect non-human.

Bibliography/Footnote
1 Vijay Kumar Sharma & Ors. Etc v. State of Karnataka & Ors, (1990) SCR (1) 614 (India).
2 Bhuri Nath & Ors v. The State of Jammu and Kashmir & Ors, (1997) 19 SC (India).
3 Ten injured in jallikattu, THE HINDU, Feb 27, 2021.
4 N.R. Nair v. Union of India, (2000) Ker 340 (India).
5 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 SC 597 (India); State of A.P. v. Challa Ramakrishna Reddy, (2000) 5 SCC 712 SC 2083 (India); Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (India)
6 JOSEPH RAZ, On the Nature of Rights, 93 (370) MIND 194, 204 (1984).
7 Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 (1) YALE L.J. 16 (1917).
8 The Prevention of Cruelty to Animals Act, 1960, §14.
9 P.J. FITZGERALD, SALMOND ON JURISPRUDENCE 63 (2004).
10 Jessamine Therese Mathew & Ira Chadha-Sridhar, GRANTING ANIMALS RIGHTS UNDER THE CONSTITUTION: A MISPLACED APPROACH? AN ANALYSIS IN LIGHT OF ANIMAL WELFARE BOARD OF INDIA V. A NAGARAJA 7 NUJS L.REV. 349, 364 (2014).
11 JOHN AUSTIN, JURISPRUDENCE, OR THE PHILOSOPHY OF POSITIVE LAW 113 (R. Campbell ed., 2002); Roscoe Pound, Legal Rights, 26 (1) INTERNATIONAL JOURNAL OF ETHICS 92, 94 (1915).
12 See, e.g., Act on Welfare and Management of Animals, 1972 (Japan); Animal Welfare Act, 1966 (USA); Animal Welfare Act, 2006 (UK).
13 BUNDESVERFASSUNG DER SCHWEIZERISCHEN EIDGENOSSENSCHAFT, The Federal Constitutionof the Swiss Confederation, 1874, Art. 80.

Written by Sakshi Komal Dubey {VIPS, Delhi}