The Supreme Court in Animal Welfare Board vs. Nagaraj had declared jallikattu, the sport prevalent in Tamil Nadu, to be illegal, being violative of the Prevention of Cruelty to Animals Act, 1960. Now by a notification dated January 7, the Central Government has permitted it, subject to some conditions.
The Animal Welfare Board has announced that it will challenge this notification in Court. In my opinion there is no illegality in this notification.
The AWB has said that its prior approval was not taken before issuing the notification. It relies on paragraph 40 of the Supreme Court judgment which states “The stand of the Animal Welfare Division of MoEF and AWBI was accepted by the Central Government (MoEF) and a notification dated July 11, 2011 was issued, which was also gazetted on the same date, including bull also in the category of banned animals. Power is conferred on the Central Government under Section 22(ii) to ban the exhibition or training of any animal as a performing animal. Following its earlier notification dated October 14, 1998, as already stated, the MoEF issued another notification dated July 11, 2011 including “Bull” also as an animal not to be exhibited or trained for exhibition as a performing animal, which is a conscious decision taken by the MoEF on relevant materials.
While this Court was seized of the matter. AWBI’s advice under Sections 9(a) and (l) as well as the note of Animal Welfare Division of MoEF was accepted by the Central Government and now it cannot take a contrary stand, that too, without consulting the AWBI, whose advice was already accepted and acted upon.”
In my opinion this observation has to be construed in a proper manner in its context, and not mechanically.
Context of previous judgements
It is well settled by several decisions of our Supreme Court, following decisions of British Courts, that judgments have not to be read as Euclid’s formula, without considering the context. If even one important fact in a judgment is different from that in a subsequent case, it is not to be treated as a precedent.
Thus in Dev Dutt vs. Union of India, 2008 the Court observed, ”As observed in Bharat Petroleum Corporation Ltd. vs. N.R. Vairamani AIR 2004 SC 4778 (vide para 9): Observations of Courts are neither to be read as Euclid’s Theorems nor as provisions of the statute, and that too, taken out of their context.”
On the subject of precedent, Lord Halsbury, L.C., said in Quinn v. Leathem, 1901 AC 495: “Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.”
In Ambica Quarry Works vs. State of Gujarat & others (1987) 1 SCC 213 (vide paragraph 18) the Court observed: “The ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.”
In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd (2003) 2 SCC 111 (vide paragraph 59), the Court observed: ”It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.”
As held in Bharat Petroleum Corporation Ltd.& another vs. N.R.Vairamani & another (AIR 2004 SC 4778), a decision cannot be relied on without disclosing the factual situation. In the same judgment the Court also observed: ”Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
In Home Office vs. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, “Lord Atkin`s speech is not to be treated as if it was a statute definition; it will require qualification in new circumstances.” And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said: “There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.”
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedent have become locus classicus: “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J. ) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”
As Lord Denning observed :”Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.”
Conditions for allowing bulls
Earlier, via the Central Govt. notification of 2011 under section 22(ii) of the Prevention of Cruelty to Animals Act, all bulls were prohibited from being used as performing animals. Now by the notification of January 7, bulls used in jallikattu are permitted, but with some conditions. which are—”(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 metres;
(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;
(iv) and 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 May 7, 2014 in Civil Appeal No. 5387 of 2014 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.”
A perusal of these conditions shows that the objection of the Animal Welfare Board that no unnecessary cruelty is inflicted on the bull is taken care of by the new notification. The Animal Welfare Board can monitor a jallikattu along with district officials, and immediately get it stopped if extreme cruelty to the animal is being inflicted. What more does it want?
It may be noted that section 22(ii) does not expressly require prior approval of the AWB before a notification is issued under that provision. The casual observation of the Supreme Court in para 40 of its judgment in Animal Welfare Board vs. Nagaraj must therefore not be read neither as a Euclid’s formula, nor out of context. That judgment mentioned ( in paragraphs 17, etc) cites various cruelties inflicted on bulls in many Jallikattus like stabbing it, cutting off its tail or pouring irritants in its eyes. Hence if a Jallikattu is held by avoiding such extreme cruelty, the ratio of the judgment will not apply.
It may be noted that section 11 uses the words ‘ unnecessary cruelty ‘,which should be interpreted to mean not any kind of cruelty but extreme cruelty. After all, some cruelty is done to most animals, e.g. horses in horse riding (since one has to tap it in the belly to make it move, or pull the reins at times, which obviously causes some pain), or bullocks ( which have to be sometimes whipped when used in bullock carts), or dogs, elephants, etc. while training them.
In my opinion, one has to take a balanced view of the matter. An animal is not a human being, and what may be cruelty to a human, cannot be always regarded cruelty to animals. We eat the flesh of many animals, but not of humans. Those who give the example of the ban on sati forget that sati was performed on human beings, not animals.
Jallikattu is an ancient sport of Tamil Nadu, being mentioned in the Tamil epic ‘ Silappathiharam ‘ and other works of Sangam literature. We must respect the culture of Tamil Nadu. We have a federal Constitution, and federalism means catering to regional aspirations, and respecting the culture of different people in India. That is necessary if we want to keep the country united. I see no illegality in the notification of January 7.
Justice Katju is a former judge of the Supreme Court