Uttarakhand High Court
Alim vs State Of Uttarakhand And Others on 10 August, 2018
Equivalent citations: AIRONLINE 2018 UTR 738
Bench: Rajiv Sharma, Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
************
Writ Petition (PIL) No. 112 of 2017
Alim ................ Petitioner
versus
State of Uttarakhand and others .......... Respondents
Ms. Neetu Singh, Advocate for the petitioner.
Mr. S.N. Babulkar, Advocate General assisted by Mr. Paresh
Tripathi, Chief Standing Counsel for the State.
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Manoj Kumar Tiwari ,J.
Hon'ble Rajiv Sharma, J. (Oral) The petitioner is a permanent resident of Village Sohalpur Gada, Tehsil Roorkee, District Haridwar. The petitioner has sought direction to stop illegal activities of Respondent nos. 5 to 7 in the village. According to the averments made in the petition, the respondent 5 is brutally slaughtering cows in the Village and the blood is flowing in the streets. Petitioner has placed on record the disturbing and moving picture of a cow being slaughtered in a very brutal manner, that too in an open space.
2. The respondent no.2 had issued a license in favour of the respondent no.5 on 24.04.2014, respondent no.2 issued license in favour of respondent no.5 for only selling meat. It was extended till 23.04.2015. Respondent no.5 slaughters the cow during night time. The license issued in favour of respondent no.5 had expired on 23.04.2016.
23. The villagers had also lodged complaints with the Police Station Kotwali-Gangnahar, Roorkee District Haridwar on 05.07.2015. Special inspection was carried out in the village. The report was filed before the Senior Superintendent of Police, Hardwar, vide annexure no.4.
4. It has come on record that private respondents have not obtained licenses to slaughter animals. They slaughter the animals in their houses and sell their meat.
5. The petitioner has sought direction to the respondent nos. 2, 3 & 4 to stop the illegal slaughtering of animals openly in the streets of village. The respondent no.2 has filed counter affidavit. It is categorically admitted in paragraph no.3 of the counter affidavit that the license issued in favour of respondent no.5 on 24.04.2014 had expired on 23.04.2015. Thereafter, no license was issued to him.
6. The scope of writ petition was enlarged with the consent of the parties.
7. Learned counsel appearing on behalf of the petitioner has vehemently argued that the private respondents are indulging in slaughtering cows in open streets/spaces. The respondent-State has not strictly enforced the provisions of the Uttarakhand Protection of Cow Progeny Act, 2007, Municipal Laws and Prevention of Cruelty to Animals Act, 1960. The respondent-State and Municipal Bodies and Panchayati Raj Institutions have not constructed sufficient number of Goshalas/Gosadans and pounds.
8. Learned counsel appearing for the State has admitted that the license issued in favour of the 3 respondent no.5 had expired. According to him, the provisions of law are being strictly enforced.
9. A question of great public importance has been raised in this writ petition. The petitioner had highlighted the plight of cows in the State of Uttarakhand. The petitioner has prayed for construction of modern Goshala or Gosadans and also to provide medical assistance to the cows and stray cattle.
10. In sequel to the directions issued by this Court, Mr. Krishna Kumar, Senior Superintendent of Police, Haridwar is present in person before this Court. He has apprised the Court that 2-3 FIRs are registered ordinarily under the provisions of the Uttarakhand Protection of Cow Progeny Act, 2007 (hereinafter referred to as the 'Act') in a fortnight. It is an alarming number. It suggests that cow slaughtering is prevalent in District Haridwar. Mr. Krishna Kumar, Senior Superintendent of Police, Haridwar submits that special squad has been constituted by the State Government for Kumaoun Division and Garhwal Division headed by the Inspector.
11. The Court can take judicial notice of the fact that the owners abandon their cattle on the roads in order to avoid feeding and taking care of them. These animals, including cows cause great nuisance/menace on the roads as well.
12. Article 48 of the Constitution of India provides for Organisation of agriculture and animal husbandry. The State is required to make an endeavour to take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught 4 cattle. It is the responsibility of the State under Article 48A to protect and improve the environment and safeguarding of forests and wild life of the country. According to Article 51A(g), it is the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
13. The Parliament has enacted the Act called Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as the Act, 1960).
14. Chapter III deals with cruelty to animals generally.
15. Section 11 defines cruelty to animals as under:-
"11. Treating animals cruelly: (1) If any person
(a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes, or being the owner permits, any animal to be so treated; or
(b) (employs in any work or labour or for any purpose any animal which, by reason of its age or any disease) infirmity; wound, sore or other cause, is unfit to be so employed or, being the owner, permits any such unfit animal to be employed; or
(c) wilfully and unreasonably administers any injurious drug or injurious substance to 14(any animal) or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by 15(any animal;) or
(d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or
(e) keeps or confines any animal in any -cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or
f) keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or
(g) being the owner, neglects to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement; or
(h) being the owner of (any animal) fails to provide such animal with sufficient food, drink or shelter; or
(i) without reasonable cause, abandons any animal in circumstances which tender it likely that it will suffer pain by reason of starvation thirst; or
(j) wilfully permits any animal, of which he is the owner, to go at large in any street, while the animal is affected with contagious or infectious disease or, without reasonable excuse permits any diseased or disabled animal, of which he is the owner, to die in any street; or 5
(k) offers for sale or without reasonable cause, has in his possession any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other illtreatment; or (1) mutilates any animal or kills any animal (including stray dogs) by using the method of strychnine injections, in the heart or in any other unnecessarily cruel manner or;) [(m) solely with a view to providing entertainment
(i) confines or causes to be confined any animal (including tying of an animal as a bait in a tiger or other sanctuary) so as to make it an object or prey for any other animal; or
(ii) incites any animal to fight or bait any other animal; or]
(n) [xxxx] organises, keeps uses or acts in the management or, any place for animal fighting or for the purpose of baiting any animal or permits or offers any place to be so used or receives money for the admission of any other person to any place kept or used for any such purposes; or
(o) promotes or takes part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting:
he shall be punishable 19(in the case of a first offence, with fine which shall not be less than ten rup6es but which may extend to fifty rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend, to one hundred rupees or with imprisonment for a term which may extend, to three months, or with both.] (2) For the purposes of section (1) an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to the prevention of such offence;
Provided that where an owner is convicted permitting cruelty by reason only of having failed to exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine. (3) Nothing in this section shall apply to -
(a) the dehorning of cattle, or the castration or branding or noseroping of any animal in the prescribed manner, or
(b) the destruction of stray dogs in lethal chambers 20[by such other methods as may be prescribed] or
(c) the extermination or destruction of any animal under the authority of any law for the time being in force; or
(d) any matter dealt with in Chapter IV; or
(e) the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering."
16. Section 35 provides for treatment and care of animals. It reads as under:-
"35. Treatment and care of animals : (1) The State Government, may by general or special order appoint infirmaries for the treatment and care of animals in respect of which offences against this Act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate. (2) The magistrate before whom a prosecution for an offence against this Act has been instituted may direct that the animals concerned shall be treated and cared for in an infirmary, until it is fit to perform its usual work or is otherwise fit for discharge, or that it shall be sent to a pinjrapole, or if the veterinary officer in charge of the area in which the animal is found or such a veterinary officer as may be authorised in this behalf by rules made under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed. (3) An animal sent for care and treatment to an infirmary shall not, unless the magistrate directs that it shall be sent to a pinjrapole or 6 that it shall be destroyed, be released from such place except upon a certificate of its fitness for discharge issued by the veterinary officer in charge of the area in which the infirmary is situated or such other veterinary officer as may be authorised in this behalf by rules made under this Act.
(4) The cost of transporting the animal to an infirmary or pinjrapole and of its maintenance and treatment in an infirmary, shall be payable by the district magistrate, or, in presidency-towns, by the commissioner of police;
Provided that when the magistrate so orders on account of the poverty of the owner of the animal, no charge shall be payable for the treatment of the animal.
(5) Any amount payable by an owner of an animal under sub- section (4) may be recovered in the same manner as an arrear of land revenue, (6) If the owner refuses or neglects to remove the animal within such time as a magistrate may specify, the magistrate may direct that the animal be sold and that the proceeds of the same be applied to the payment of such cost.
(7) The surplus, if any, of the proceeds of such sale shall, on application made by the owner within two months from the date of the sale be paid to him."
17. Section 38 empowers the Central Government to frame rules.
18. The Central Government has framed the Rules called Prevention of Cruelty to Draught and Pack Animals Rules, 1965 (hereinafter referred to as the Act, 1965).
19. Rule 2(a) defines "large bullock" or "large buffalo".
20. "Medium bullock" or "medium buffalo" has been defined under Rule 2(b).
21. "Small bullock" or "small buffalo" has been defined under Rule 2(c).
22. Rule 2(e) defines "Vehicle". "Vehicle" means a wheeled conveyance of any description which is capable of being used as such on any street.
23. Rule 3 provides for the maximum loads for draught animals as under:-
1 2 3Small bullock or small Two-wheeled vehicle- 1000 kilograms buffalo (a) if fitted with ball bearings
(b) if fitted with pneumatic 750 kilograms tyres
(c) if not fitted with pneumatic 500 kilograms tyres 7
2. Medium bullock or Two-wheeled vehicle- 1400 kilograms medium buffalo (a) if fitted with ball bearings
(b) if fitted with pneumatic 1050 kilograms tyres
(c) if not fitted with pneumatic 700 kilograms tyres
3. Large bullock or large Two wheeled vehicle- 1800 kilograms buffalo (a) if fitted with ball bearing
(b) if fitted with pneumatic 1350 kilograms tyres
(c) if not fitted with pneumatic 900 kilograms tyres
4. Horse or mule Two-wheeled vehicle- 750 kilograms
(a) if fitted with pneumatic tyres
(b) if not fitted with pneumatic 500 kilograms tyres
5. Pony Two-wheeled vehicle- 600 kilograms
(a) if fitted with pneumatic tyres
(b) if not fitted with pneumatic 400 kilograms tyres
6. Camel Two-wheeled vehicle 1000 kilograms.
24. Rule 4 provides for maximum load for certain pack animals including small bullock or buffalo, medium bullock or buffalo, large bullock or buffalo, pony, mule, donkey and camel.
25. Rule 5 provides for maximum number of passengers for animals drawn vehicles.
26. Rule 6 provides that no person shall use or cause to be used any animal for drawing any vehicle or carrying any load for more than nine hours in a day in the aggregate, for more than five hours continuously without a break for rest for the animal, in any where the temperature exceeds 37°C (99°F) during the period between 12.00 noon and 3.00 P.M.
27. Rule 7 provides for animals to be disengaged after work.
28. Rule 8 provides for prohibition of use of spiked bits.
29. Rule 10 provides for certificates regarding unladen weight of vehicles etc. 8
30. The powers of police officers and other authorized persons are provided under Rule 11.
31. The Central Government has also framed rules called Transport of Animals Rules, 1978 (hereinafter referred to as the Rules, 1978). The mode of transport of dogs and cats, monkeys, cattle, equines, sheep and goats, poultry by rail, road and air is provided in the rules.
32. We can take judicial notice of the fact that the cattle are transported in breach of provisions of the Rules, 1978.
33. Rules 47 to 56 apply to the transport by rail of cows, bulls, bullocks, buffaloes, yaks and calves.
34. When cattle are to be transported by goods vehicle, the precautions are required to be taken as provided under Rule 56.
35. The transport of sheep and goats is provided under Chapter VI.
36. The transport of poultry by rail, road and air is provided under Chapter VII.
37. The Court can take judicial notice of the fact that the animals are also transported on foot.
38. The Central Government has also framed the Rules called Prevention of Cruelty to Animals (Transport of Animals on Foot) Rules, 2001 (hereinafter referred to as the Rules, 2001).
39. The "animal" is defined under Rule 2.
40. Rule 4 provides that every animal are to be transported on foot shall be healthy and in good condition for such transport. A certificate of a veterinary doctor in 9 respect of each animal to be transported to the effect that such animal is in a fit condition for such transportation and is not suffering from any infectious, contagious or parasitic diseases and that it has been vaccinated against any infectious, contagious or parasitic diseases shall accompany such animal. The certificate under sub-Rule (1) shall be in the form as specified in the First Schedule.
41. Rule 5 provides that certain animals are not to be transported on foot including new born animals of which the navel has not completely healed, diseased, blind, emaciated, lame, fatigued, or having given birth during the preceding seventy two hours or likely to give birth during transport is not be transported on foot.
42. Rule 7 provides that the owner of the animal shall provide veterinary first aid equipment to be accompanied with such animals while being transported on foot.
43. Rule 9 provides that there should be arrangement of water during transportation of animals.
44. Rule 10 provides that sufficient feed and fodder with adequate reserve of such feed and fodder for the animals is to be made available by their owner during their transport on foot.
45. Rule 11 provides for prohibition of the use of whip, etc. during transportation of animals on foot.
46. Rule 12 provides certain prohibitions on transport of animals on foot. These are as under;-
"12. Certain Prohibition on transport of animals on foot- (1) No person shall transport on foot an animal before sunrise or after sunset.
(2) No animal shall be transported on foot beyond the distance, time, rest interval and temperature specified for such animal in the Table below, namely:-10
Species Maximum Maximum no. Period of rest (interval) Temperature (Animals) distance of range covered/day/hour walking/day Max. Min.
of hours
(Travelling)
Cattle 30 km/day 8 hours At every 2 hours for 12°C to 30°C
(Cows) 4 km/hr drinking and at every 4
hrs for feeding
Buffaloes 25 km/day 8 hours At every 2 hours for 12°C to 30°C
4 km/hr drinking and at every 4
hrs for feeding
Cows and 16 km/day 6 hours At every 1½ hours for 15°C to 25°C
Buffaloes 205 km/hr drinking and at every 3
Calves hrs for feeding
Horses, 45 km/day 8 hours At every 3 hours for 12°C to 30°C
Ponies, 6 km/hr drinking and at every
Mules, 6hrs for feeding
Donkeys
Young 25 km/day 6 hours At every 2 hours for 15°C to 25°C
ones 4 km/hr drinking and at every 4
(Foal) hrs for feeding
Goats 30 km/day 8 hours At every 2 hours for 12°C to 30°C
and 4 km/hr drinking and at every 4
Sheep hrs for feeding
Kids and 16 km/day 6 hours At every 1½ hours for 15°C to 25°C
Lambs 2.5 km/hr drinking and at every 3
hrs for feeding
Pigs 15 km/day 8 hours At every 1½ hours for 12°C to 25°C
2 km/hr drinking and at every 3
hrs for feeding
Piglets 10 km/day 6 hours At every 1½ hours for 15°C to 25°C
1.5 km/hr drinking and at every 3
hrs for feeding
Note : After being provided with water every animal shall be given a break of 20 minutes before the commencement of the transport of the animal on foot and in case of feeding the break shall be given for one hour before the commencement of the transport of the animal on foot.
(3) No animal shall be made to walk under conditions of heavy rain, thunderstorms or extremely dry or sultry conditions during its transport on foot."
47. Rule 13 provides that in certain cases, transportation of animals is not permitted without shoes.
48. The Central Government has also enacted the Act called the Prevention and Control of Infectious and Contagious Diseases in Animals Act, 2009 (hereinafter referred to as the Act, 2009) to provide for the prevention, control and eradication of infectious and contagious diseases affecting animals, for prevention of outbreak or spreading of such diseases from one State to another, and to meet the international obligations of India for facilitating import and export of animals and animal products and for matter connected therewith or incidental thereto.
1149. Section 3 provides for appointment of Veterinary Officers.
50. The duty to segregate infected animals is provided under Section 5.
51. Section 6 provides for notification of controlled areas and free areas.
52. Section 7 provides that where a notification has been issued under sub-section (1) of Section 6 declaring any area as a controlled area in relation to any disease affecting any species of animals, no animal belonging to that species shall be moved from the place where it is kept.
53. Section 10 provides for entry and exit of animals into controlled area and free area.
54. Section 14 provides for check posts and Quarantine Camps.
55. Section 20 provides for declaration of infected areas.
56. It is the duty cast upon the State Government to enforce the Uttar Pradesh Municipalities Act, 1916 and the rules framed thereunder.
57. Section 2 (a) of the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as the Act) defines "animals" as any living creature other than a human being. The "owner" has been defined under Section 2(f) to include not only the owner but also any other person for the time being in possession or custody of the animal, whether with or without the consent of the owner. Section 3 provides that it shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary 12 pain or suffering. Section 11 (h) provides that if any person being the owner or any animal, fails to provide such animal with sufficient food, drink or shelter, it would amount to cruelty.
58. The abandoning of the animals by owners, including cows, oxen, Bulls and buffaloes would also amount to cruelty. Section 35 of the Prevention of Cruelty to Animals Act, 1960, provides for treatment and care of animals. The State Government, till date, has not appointed any infirmaries for treating and caring of the animals.
59. According to Section 114(xxviii) of the Uttar Pradesh Municipal Corporations Act, 1959, it is the duty cast upon the Corporation to construct and maintain cattle pounds. It is the duty of the Municipal Bodies in the State of Uttarakhand to construct and maintain cattle pounds preventing cruelty to animals as per Section 7 (y) of Uttarakhand Municipalities Act. Similar duties are cast upon the Panchayati Raj Institutions under the Uttarakhand Panchayati Raj Act.
60. It was also brought to the notice of the Court that large scale encroachments are made by the unscrupulous people on the Goshalas/Gosadans land with impunity.
61. Attention of this Court has been drawn towards the Uttarakhand Protection of Cow Progeny Act, 2007. Section 2(b) prescribes that 'cow progeny' means a cow, bull, bullock, heifer or calf. Section 2(d) defines 'slaughter'. Section 2(g) defines 'uneconomic cow'. Section 2(h) defines 'free/vagrant wandering'. Section-3 provides that no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter the cow or cow progeny.
1362. Section 5 provides that no person shall kept in possession or cause to kept in possession or sell or transport or offer for sale or transport or cause to be sold or transported, beef or beef products in any form.
63. Section 6 reads as under:-
(1) No person shall transport or offer for transport or cause to be transported any such cow progeny, the slaughter whereof is punishable under this Act, from any place within the State to any place outside the State except under a permit, issued by an officer authorized and notified by the State Government in this behalf and in accordance with the terms and conditions of such permit.
(2) Competent Authority shall issue the permit on payment of a fee of rupees 500 for every cow progeny under sub-section (1) after satisfying himself of the compliance of the provisions of sub-section (3). (3) Permission may be granted only for rearing, protection and promotion of cow progeny under sub- section (1).
(4) The form of permit and application thereof and the procedure for dispoal of such application shall be such as may be prescribed by the State Government. (5) The State Government or any Competent Authority authorized by it, of the purpose of satisfying itself, as to the legality or propriety of the action taken under this section, may call for and examine the record of any case and pass such order thereon as he may deem fit.
64. Section 7 provides that no person shall leave vagrant any cow progeny and shall free for wandering a cow after milching her.
1465. Section 9 provides that the State Government or NGOs may establish institutions as may be necessary for taking care of uneconomic cow progeny.
66. The penalty is provided under Section 11.
67. There is a complete ban on slaughtering of cows as per Section 3 of the Act. The transportation of cow progeny is also regulated under Section 5 of the Act. It is the duty cast upon the State Government to establish institutions for taking care of uneconomic cow progeny.
68. The importance of cow as per Arthasastra, reads as under:-
"This food is stored the hymn continues in the highest of the upper worlds. All the gods and the deceased ancestors are the guardians of this food. Whatever is eaten, or split or scattered as an offering. Is altogether but a hundredth part of my whole body. The two great vessels. Heaven and Earth, have both been filled. By the spotted cow with the milk of but one milking, pious people, drinking of it, cannot diminish it. It become neither more nor less."
69. Section 47 of the Indian Penal Code defines word "animal" to include any living creature other than a human being. Section 289, 428 and 429 of I.P.C. reads as under:
"289. Negligent conduct with respect to animal.- Whoever knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger of grievous hurt from such animal, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
428, Mischief by killing or maiming animal of the value of ten rupees.- Whoever commits mischief by killing, poisoning, maiming, or rendering useless any animal or animals of the value of ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees.- whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the 15 value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may be extended to five years, or with fine, or with both."
70. Their Lordships of the Hon'ble Supreme Court in the case of State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and others, reported in (2005) 8 SCC 534, have held that Article 48 consists of two parts. The first part enjoins the State to "endeavour to organize agricultural and animal husbandry" and that too "on modern and scientific lines". The subject is "agriculture and animal husbandry". The second part of Article 48 enjoins the State, dehors the generality of the mandate contained in its first part, to take steps, in particular, "for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle". Article 51-A(g) enjoins it as a fundamental duty of every citizen "to have compassion for living creatures", which in its wider fold embraces the category of cattle spoken of specifically in Article 48. Their lordships further held that fundamental duties play a significant role in determining constitutional validity of a statutory provision or executive act, or for testing reasonableness of any restriction cast by law on exercise of any fundamental right. Their lordships have interpreted the interrelationship between Article 48, 48-A and 51-A(g) of the Constitution. Their lordships have also held that the restrictions placed on any fundamental right, aimed at securing directive principles will be held as reasonable and hence intra vires subject to two limitations: first, that it does not run in clear conflict with the fundamental right, and secondly, that it has been enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution. Their lordships have further held that the expression "milch or draught cattle"
16in Article 48, are words which are a description of a classification of species of cattle as distinct from cattle which by their nature are not milch or draught. It has been held as follows:
"36. "It was the Sapru Committee (1945) which initially suggested two categories of rights: one justiciable and the other in the form of directives to the State which should be regarded as fundamental in the governance of the country Those directives are not merely pious declarations. It was the intention of the framers of the Constitution that in future both the Legislature and the Executive should not merely pay lip service to these principles but they should be made the basis of all legislative and executive actions that the future Government may be taking in matter of governance of the country. (Constituent Assembly Debates, Vol.7, at page 41)"
(See: The Constitution of India, D.J. De, Second Edition, 2005, p.1367). If we were to trace the history of conflict and irreconciliability between Fundamental Rights and Directive Principles, we will find that the development of law has passed through three distinct stages.
37. To begin with, Article 37 was given a literal meaning holding the provisions contained in Part IV of the Constitution to be unenforceable by any Court. In The State of Madras v. Srimathi Champakam Dorairajan, 1951 SCR 525, it was held that the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. The view was reiterated in Deep Chand and Anr. v. The State of Uttar Pradesh and Others, 1959 Supp. (2) SCR 8. The Court went on to hold that disobedience to Directive Principles cannot affect the legislative power of the State. So was the view taken in In Re : The Kerala Education Bill, 1957 , 1959 SCR 995.
38. With L.C. Golak Nath and others v. State of Punjab and Another, (1967) 2 SCR 762, the Supreme Court departed from the rigid rule of subordinating Directive Principles and entered the era of harmonious construction. The need for avoiding a conflict between Fundamental Rights and Directive Principles was emphasized, appealing to the legislature and the courts to strike a balance between the two as far as possible. Having noticed Champakam (supra) even the Constitution Bench in Quareshi-I chose to make a headway and held that the Directive Principles nevertheless are fundamental in the governance of the country and it is the duty of the State to give effect to them.
"A harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights, for otherwise the protecting provisions of Part III will be a 'mere rope of sand'."
Thus, Quareshi-I did take note of the status of Directive Principles having been elevated from 'sub-ordinate' or 'sub- servient' to 'partner' of Fundamental Rights in guiding the nation.
1739. Kesavananda Bharati Sripadagalvaru and Anr. v. State of Kerala and Anr., (1973) 4 SCC 225, a thirteen-Judge Bench decision of this Court is a turning point in the history of Directive Principles jurisprudence. This decision clearly mandated the need for bearing in mind the Directive Principles of State Policy while judging the reasonableness of the restriction imposed on Fundamental Rights. Several opinions were recorded in Kesavananda Bharati and quoting from them would significantly increase the length of this judgment. For our purpose, it would suffice to refer to the seven-Judge Bench decision in Pathumma and Others v. State of Kerala and Ors., (1978) 2 SCC 1, wherein the learned Judges neatly summed up the ratio of Kesavananda Bharati and other decisions which are relevant for our purpose. Pathumma (supra) holds:-
"(1) Courts interpret the constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people, which the legislature, in its wisdom, through beneficial legislation, seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society so that when such a right clashes with a larger interest of the country it must yield to the latter.(Para 5) (2) The Legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in this process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. The courts have recognised that there is always a presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies on the party which assails it. (Para 6) (3) The right conferred by Article 19(1)(f) is conditioned by the various factors mentioned in clause (5). (Para 8) (4) The following tests have been laid down as guidelines to indicate in what particular circumstances a restriction can be regarded as reasonable:
(a) In judging the reasonableness of the restriction the court has to bear in mind the Directive Principles of State Policy. (Para 8)
(b) The restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirements of the interests of the general public. The legislature must take intelligent care and deliberation in choosing the course which is dictated by reason and good conscience so as to strike a just balance between the freedom in the article and the social control permitted by the restrictions under the article. (Para
14)
(c) No abstract or general pattern or fixed principle can be laid down so as to be of universal application. It will have to vary from case to case and having regard to the changing conditions, the values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding 18 circumstances all of which must enter into the judicial verdict. (Para 15)
(d) The Court is to examine the nature and extent, the purport and content of the right, the nature of the evil sought to be remedied by the statute, the ratio of harm caused to the citizen and the benefit conferred on the person or the community for whose benefit the legislation is passed. (Para 18 )
(e) There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object which is sought to be achieved. (Para 20)
(f) The needs of the prevailing social values must be satisfied by the restrictions meant to protect social welfare. (Para 22)
(g) The restriction has to be viewed not only from the point of view of the citizen but the problem before the legislature and the object which is sought to be achieved by the statute.
In other words, the Court must see whether the social control envisaged by Article 19 (1) is being effectuated by the restrictions imposed on the fundamental right. However important the right of a citizen or an individual may be it has to yield to the larger interests of the country or the community. (Para 24)
(h) The Court is entitled to take into consideration matters of common report history of the times and matters of common knowledge and the circumstances existing at the time of the legislation for this purpose. (Para 25)"
41. The message of Kesavananda Bharati is clear. The interest of a citizen or section of a community, howsoever important, is secondary to the interest of the country or community as a whole. For judging the reasonability of restrictions imposed on Fundamental Rights the relevant considerations are not only those as stated in Article 19 itself or in Part-III of the Constitution; the Directive Principles stated in Part-IV are also relevant. Changing factual conditions and State policy, including the one reflected in the impugned enactment, have to be considered and given weightage to by the courts while deciding the constitutional validity of legislative enactments. A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires subject to two limitations : first, that it does not run in clear conflict with the fundamental right, and secondly, that it has been enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution.
46. Very recently in Indian Handicrafts Emporium and Ors. v. Union of India and Ors., (2003) 7 SCC 589, this Court while dealing with the case of a total prohibition reiterated that 'regulation' includes 'prohibition' and in order to determine whether total prohibition would be reasonable, the Court has to balance the direct impact on the fundamental right of the citizens as against the greater public or social interest sought to be ensured. Implementation of the Directive Principles contained in Part IV is within the expression of 'restriction in the interests of the general public'.
47. Post Kesavananda Bharati so far as the determination of the position of Directive Principles, vis-a-vis Fundamental Rights are concerned, it has been an era of positivism and creativity. Article 37 of the Constitution which while declaring the Directive Principles to be 19 unenforceable by any Court goes on to say "that they are nevertheless fundamental in the governance of the country."
Several clauses of Article 37 themselves need to be harmoniously construed assigning equal weightage to all of them. The end part of Article 37 "It shall be the duty of the State to apply these principles in making laws" is not a pariah but a constitutional mandate. The series of decisions which we have referred to hereinabove and the series of decisions which formulate the 3-stages of development of the relationship between Directive Principles and Fundamental Rights undoubtedly hold that, while interpreting the interplay of rights and restrictions, Part-III (Fundamental Rights) and Part-IV (Directive Principles) have to be read together. The restriction which can be placed on the rights listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the provisions contained in the chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights.
48. Articles 48, 48-A and 51-A(g) (relevant clause) of the Constitution read as under :- "48. Organisation of agriculture and animal husbandry.-The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
48-A. Protection and improvement of environment and safeguarding of forests and wild life.-The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
51-A. Fundamental duties.-It shall be the duty of every citizen of India-
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;"
Articles 48-A and 51-A have been introduced into the body of the Constitution by the Constitution (Forty-second Amendment) Act, 1976 with effect from 3.1.1977. These Articles were not a part of the Constitution when Quareshi-I, Quraishi-II and Mohd. Faruk's cases were decided by this Court. Further, Article 48 of the Constitution has also been assigned a higher weightage and wider expanse by the Supreme Court post Quareshi-I. Article 48 consists of two parts. The first part enjoins the State to "endeavour to organize agricultural and animal husbandry" and that too "on modern and scientific lines". The emphasis is not only on 'organization' but also on 'modern and scientific lines'. The subject is 'agricultural and animal husbandry'. India is an agriculture based economy. According to 2001 census, 72.2% of the population still lives in villages (See- India Vision 2020, p.99) and survives for its livelihood on agriculture, animal husbandry and related occupations. The second part of Article 48 enjoins the State, de hors the generality of the mandate contained in its first part, to take steps, in particular, "for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle".
49. Article 48-A deals with "environment, forests and wild life". These three subjects have been dealt with in one 20 Article for the simple reason that the three are inter-related. Protection and improvement of environment is necessary for safeguarding forests and wild life, which in turn protects and improves the environment. Forests and wild life are clearly inter-related and inter-dependent. They protect each other.
50. Cow progeny excreta is scientifically recognized as a source of rich organic manure. It enables the farmers avoiding the use of chemicals and inorganic manure. This helps in improving the quality of earth and the environment. The impugned enactment enables the State in its endeavour to protect and improve the environment within the meaning of Article 48A of the Constitution.
51. By enacting clause (g) in Article 51-A and giving it the status of a fundamental duty, one of the objects sought to be achieved by the Parliament is to ensure that the spirit and message of Articles 48 and 48A is honoured as a fundamental duty of every citizen. The Parliament availed the opportunity provided by the Constitution (Forty-second Amendment) Act, 1976 to improve the manifestation of objects contained in Article 48 and 48-A. While Article 48-A speaks of "environment", Article 51-A(g) employs the expression "the natural environment" and includes therein "forests, lakes, rivers and wild life". While Article 48 provides for "cows and calves and other milch and draught cattle", Article 51-A(g) enjoins it as a fundamental duty of every citizen "to have compassion for living creatures", which in its wider fold embraces the category of cattle spoken of specifically in Article
48.
58. It is thus clear that faced with the question of testing the constitutional validity of any statutory provision or an executive act, or for testing the reasonableness of any restriction cast by law on the exercise of any fundamental right by way of regulation, control or prohibition, the Directive Principles of State Policy and Fundamental Duties as enshrined in Article 51-A of the Constitution play a significant role. The decision in Quareshi-I in which the relevant provisions of the three impugned legislations was struck down on the singular ground of lack of reasonability, would have decided otherwise if only Article 48 was assigned its full and correct meaning and due weightage was given thereto and Articles 48-A and 51-A(g) were available in the body of the Constitution.
61. According to their inherent genetic qualities, cattle breeds are broadly divided into 3 categories (i) Milch breed (ii) Draught breed, and (iii) Dual purpose breed. Milch breeds include all cattle breeds which have an inherent potential for milk production whereas draught breeds have an inherent potential for draught purposes like pulling, traction of loads etc. The dual purpose breeds have the potential to perform both the above functions.
62. The term draught cattle indicates "the act of moving loads by drawing or pulling i.e. pull and traction etc. Chambers 20th Century Dictionary defines 'draught animal' as 'one used for drawing heavy loads'.
63. Cows are milch cattle. Calves become draught or milch cattle on attaining a particular age. Having specifically spoken of cows and calves, the latter being a cow progeny, the framers of the Constitution chose not to catalogue the list of other milch and draught cattle and felt satisfied by employing a general expression "other milch and draught cattle" which in 21 their opinion any reader of the Constitution would understand in the context of the previous words "cows and calves".
64. "Milch and draught", the two words have been used as adjectives describing and determining the quality of the noun 'cattle'. ::: Downloaded on - 10/08/2018 17:59:37 :::HCHP High Court of H.P. 31 The function of a descriptive or qualitative adjective is to describe the shape, colour, size, nature or merits or demerits of the noun which they precede and qualify. In a document like the Constitution, such an adjective cannot be said to have been employed by the framers of the Constitution for the purpose of describing only a passing feature, characteristic or quality of the cattle. The object of using these two adjectives is to enable classification of the noun 'cattle' which follows. Had it been intended otherwise, the framers of the Constitution would have chosen a different expression or setting of words.
65. No doubt, cow ceases to be 'milch' after attaining a particular age. Yet, cow has been held to be entitled to protection against slaughter without regard to the fact that it has ceased to be 'milch'. This constitutional position is well settled. So is the case with calves. Calves have been held entitled to protection against slaughter without regard to their age and though they are not yet fit to be employed as 'draught cattle'. Following the same construction of the expression, it can be said that the words "calves and other milch and draught cattle" have also been used as a matter of description of a species and not with regard to age. Thus, 'milch and draught' used as adjectives simply enable the classification or description of cattle by their quality, whether they belong to that species. This classification is with respect to the inherent qualities of the cattle to perform a particular type of function and is not dependant on their remaining functional for those purposes by virtue of the age of the animal. "Milch and draught cattle" is an expression employed in Article 48 of the Constitution so as to distinguish such cattle from other cattle which are neither milch nor draught.
66. Any other meaning assigned to this expression is likely to result in absurdity. A milch cattle goes through a life cycle during which it is sometimes milch and sometimes it becomes dry. This does not mean that as soon as a milch cattle ceases to produce milk, for a short period as a part of its life cycle, it goes out of the purview of Article 48, and can be slaughtered. A draught cattle may lose its utility on account of injury or sickness and may be rendered useless as a draught cattle during that period. This would not mean that if a draught cattle ceases to be of utility for a short period on account of sickness or injury, it is excluded from the definition of 'draught cattle' and deprived of the benefit of Article 48.
67. This reasoning is further strengthened by Article 51A(g) of the Constitution. The State and every citizen of India must have compassion for living creatures. Compassion, according to Oxford Advanced Learners' Dictionary means "a strong feeling of sympathy for those who are suffering and a desire to help them". According to Chambers 20th Century Dictionary, compassion is "fellow feeling, High Court of H.P. 32 or sorrow for the sufferings of another: pity". Compassion is suggestive of sentiments, a soft feeling, emotions arising out of sympathy, pity and kindness. The concept of compassion for living creatures enshrined in Article 51A (g) is based on the background of the rich cultural heritage of India the land of 22 Mahatama Gandhi, Vinobha, Mahaveer, Budha, Nanak and others. No religion or holy book in any part of the world teaches or encourages cruelty. Indian society is a pluralistic society. It has unity in diversity. The religions, cultures and people may be diverse, yet all speak in one voice that cruelty to any living creature must be curbed and ceased. A cattle which has served human beings is entitled to compassion in its old age when it has ceased to be milch or draught and becomes so-called 'useless'. It will be an act of reprehensible ingratitude to condemn a cattle in its old age as useless and send it to a slaughter house taking away the little time from its natural life that it would have lived, forgetting its service for the major part of its life, for which it had remained milch or draught. We have to remember: the weak and meek need more of protection and compassion.
68. In our opinion, the expression 'milch or draught cattle' as employed in Article 48 of the Constitution is a description of a classification or species of cattle as distinct from cattle which by their nature are not milch or draught and the said words do not include milch or draught cattle, which on account of age or disability, cease to be functional for those purposes either temporarily or permanently. The said words take colour from the preceding words "cows or calves". A specie of cattle which is milch or draught for a number of years during its span of life is to be included within the said expression. On ceasing to be milch or draught it cannot be pulled out from the category of "other milch and draught cattle."
71. Their Lordships of the Hon'ble Supreme Court in 2014 (7) SCC 547, in the case of "Animal Welfare Board of India vs. A. Nagaraja & others", have held that animal welfare laws have to be interpreted keeping in mind the welfare of animals and species best interest subject to just exceptions out of human necessity. Their Lordships have further held that there are internationally recognized freedoms of animals as under:- (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and disease; and
(v) freedom to express normal patterns of behavior. These five freedoms have to be read into Sections 3 and 11 of PCA Act and have to be protected and safeguarded by the States, Central Government, Union Territories, MoEF and AWBI. Though no international agreement ensures protection of animals' welfare, campaigns like UDAW and 23 WSPA's and OIE's effort in this regard, taken judicial note off. It is the duty to protect welfare of animals and not to put them to avoidable pain and suffering. Their Lordships have also explained the meaning of "pain and suffering". Pain informs an animal which stimuli it needs to avoid and suffering informs it about a situation to avoid. Their Lordships have held that every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word "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, within the meaning of Article 21 of the Constitution. So far as animals are concerned, "life" means something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity. Their Lordships have held as under:-
"15. We have to examine the various issues raised in these cases, primarily keeping in mind the welfare and the well-being of the animals and not from the standpoint of the organisers, bull tamers, bull racers, spectators, participants or the respective States or the Central Government, since we are dealing with a welfare legislation of a sentient being, over which human beings have domination and the standard we have to apply in deciding the issue on hand is the "species' best interest", subject to just exceptions, out of human necessity.
33. The PCA Act is a welfare legislation which has to be construed bearing in mind the purpose and object of the Act and the directive principles of State policy. It is trite law that, in the matters of welfare legislation, the provisions of law should be liberally construed in favour of the weak and infirm. The court also should be vigilant to see that benefits conferred by such remedial and welfare legislation are not defeated by subtle devices. The court has got the duty that, in every case, where ingenuity is expanded to avoid welfare legislations, to get behind the smokescreen and discover the true state of affairs. The court can go behind the form and see the substance of the devise for which it has to pierce the veil and examine whether the guidelines or the regulations are framed so as to achieve some other purpose than the welfare of the animals. Regulations or guidelines, whether statutory or otherwise, if they purport to dilute or defeat the welfare legislation and the constitutional principles, the court should not hesitate to strike them down so as to achieve the ultimate object and purpose of the welfare legislation. The court has also a duty under the doctrine of parens patriae to take care of the rights of animals, since they are unable to take care of themselves as against human beings.
34. The PCA Act, as already indicated, was enacted to prevent the infliction of unnecessary pain, suffering or cruelty on animals. Section 3 of the Act deals with duties of persons having charge of animals, which is mandatory in nature and hence confer corresponding rights on animals. Rights so conferred on animals are thus the antithesis of a duty and if those rights are violated, law 24 will enforce those rights with legal sanction. Section 3 is extracted hereunder for an easy reference:
"3. Duties of persons having charge of animals.--It shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering."
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.
40. Pain and suffering are biological traits. Pain, in particular, informs an animal which specific stimuli, it needs to avoid and an animal has pain receptors and a memory that allows it to remember what caused the pain. Professor of Animal Welfare, D.M. Broom of the University of Cambridge in his articles appearing in chapter fourteen of the book Animal Welfare and the Law, Cambridge University Press (1989) says:
"Behavioural responses to pain vary greatly from one species to another, but it is reasonable to suppose that the pain felt by all of these animals is similar to that felt by man."
Suffering has the same function, but instead of informing the animal about stimuli to avoid, it informs it about a situation to avoid. An animal might be regarded as suffering, if it is in pain, distress, or acute or unduly prolonged discomfort. Consequently, to experience the suffering, the animal needs an awareness of its environment, the ability to develop moods that coordinate a behavioural response, and the capacity to change adverse situation or avoid them. Reports submitted by AWBI clearly indicate that bulls are being treated with extreme cruelty and suffering, violating the provisions of Section 11(1) of the PCA Act. Over and above, Section 11(1) clauses (b) to (o) also confer various duties and obligations, generally and specifically, on the persons in charge of or care of animals which, in turn, confer corresponding rights on animals, which, if violated, are punishable under the proviso to Section 11(1) of the PCA Act.
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.
International approach to animals welfare
57. We may, at the outset, indicate unfortunately, there is no international agreement that ensures the welfare and protection of animals. The United Nations, all these years, safeguarded only the rights of human beings, not the 25 rights of other species like animals, ignoring the fact that many of them, including bulls, are sacrificing their lives to alleviate human suffering, combating diseases and as food for human consumption. International community should hang their head in shame, for not recognising their rights all these ages, a species which served the humanity from the time of Adam and Eve. Of course, there has been a slow but observable shift from the anthropocentric approach to a more nature's rights centric approach in international environmental law, animal welfare laws, etc. Environmentalist noticed three stages in the development of international environmental law instrument, which are as under:
(a) The First Stage: Human self-interest reason for environmental protection 57.1. The instruments in this stage were fuelled by the recognition that the conservation of nature was in the common interest of all mankind.
57.2. Some of the instruments executed during this time included the Declaration of the Protection of Birds Useful to Agriculture (1875), Convention Designed to Ensure the Protection of Various Species of Wild Animals which are Useful to Man or Inoffensive (1900), Convention for the Regulation of Whaling (1931) which had the objective of ensuring the health of the whaling industry rather than conserving or protecting the whale species. 57.3. The attitude behind these treaties was the assertion of an unlimited right to exploit natural resources--which derived from their right as sovereign nations.
(b) The Second Stage: International Equity 57.4. This stage saw the extension of treaties beyond the requirements of the present generation to also meet the needs of future generations of human beings. This shift signalled a departure from the pure tenets of anthropocentrism.
57.5. For example, the 1946 Whaling Convention which built upon the 1931 treaty mentioned in the Preamble that "it is in the interest of the nations of the world to safeguard for future generations the great natural resource represented by the whale stocks". Similarly, the Stockholm Declaration of the UN embodied this shift in thinking, stating that "man ... bears a solemn responsibility to protect and improve the environment for present and future generations" and subsequently asserts that "the natural resources of the earth ... must be safeguarded for the benefit of present and future generations through careful planning and management". Other documents expressed this shift in terms of sustainability and sustainable development.
(c) The Third Stage: Nature's own rights 57.6. Recent multinational instruments have asserted the intrinsic value of nature.
57.7. UNEP Biodiversity Convention (1992) "Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, educational, cultural, recreational and aesthetic values of biological diversity and its components ... [we have] agreed as follows: ...." The World Charter for Nature proclaims that "every form of life is unique, warranting respect regardless of its worth to man". The Charter uses the term "nature" in preference to "environment" with a view to shifting to non-anthropocentric human- independent terminology."
58. We have accepted and applied the ecocentric principles in T.N. Godavarman Thirumulpad v. Union of India, T.N. Godavarman Thirumulpad v. Union of India and in Centre for Environmental Law, World Wide Fund-India v. Union of India.
59. Based on ecocentric principles, rights of animals have been recognised in various countries. Protection of animals has been guaranteed by the Constitution of Germany by way of an amendment in 2002 when the words "and the animals" were added to the constitutional clauses that obliges "State" to respect "animal dignity". Therefore, the dignity of the animals is constitutionally recognised in that country. German Animal Welfare Law, especially Article 3 provides far-reaching protections to animals including inter alia from animals fight and other activities which may result in the pain, suffering and harm for the animals. Countries like Switzerland, Austria, Slovenia have enacted legislations to include animal welfare in their national Constitutions so as to balance the animal owners' fundamental rights to property and the animals' interest in freedom from unnecessary suffering or pain, damage and fear.
60. The Animals Welfare Act of 2006 (UK) also confers considerable protection to the animals from pain and suffering. The Austrian Federal Animal Protection Act also recognises man's responsibilities towards his fellow 26 creatures and the subject "Federal Act" aims at the protection of life and well- being of the animals. The Animal Welfare Act, 2010 (Norway) states:
"3. General requirement regarding the treatment of animals.-- Animals have an intrinsic value which is irrespective of the usable value they may have for man. Animals shall be treated well and be protected from the danger of unnecessary stress and strain."
Section 26 of the legislation prohibits training an animal to fight with people; the operative portion of the same reads as follows:
"26. Training, showing, entertaining and competition.--Any person who trains animals and who uses animals which are used for showing, entertainment and competitions, including those who organise such activities, shall ensure that the animals:
(a)-(c) * * *
(d) are not trained for or used in fights with other animals or people."
64. Chapter 7.1.2 of the Guidelines of OIE, recognises five internationally recognised freedoms for animals, such as:
(i) freedom from hunger, thirst and malnutrition;
(ii) freedom from fear and distress;
(iii) freedom from physical and thermal discomfort;
(iv) freedom from pain, injury and disease; and
(v) freedom to express normal patterns of behaviour.
Food and Agricultural Organisation (FAO) in its "Legislative and Regulatory Options for Animal Welfare" indicated that these five freedoms found their place in Farm Welfare Council 2009 UK and is also called "Brambell's Five Freedoms". These five freedoms, as already indicated, are considered to be the fundamental principles of animal welfare and we can say that these freedoms find a place in Sections 3 and 11 of the PCA Act and they are for animals like the rights guaranteed to the citizens of this country under Part III of the Constitution of India.
65. Animals are worldwide legally recognised as "property" that can be possessed by humans. On deletion of Article 19(1)(f) from the Indian Constitution, right to property is (sic no) more a fundamental right in India, this gives Parliament more a leeway to pass laws protecting the rights of animals. Right to hold on to a property which includes animals also, is now only a legal right not a fundamental right. We have also to see the rights of animals in that perspective as well.
66. Rights guaranteed to the animals under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity. Rights and freedoms guaranteed to the animals under Sections 3 and 11 have to be read along with Articles 51- A(g) and (h) of the Constitution, which is the magna carta of animal rights. Humanism
68. Article 51-A(h) says that it shall be the duty of every citizen to develop the scientific temper, humanism and the spirit of inquiry and reform. Particular emphasis has been made to the expression "humanism" which has a number of meanings, but increasingly designates as an inclusive sensibility for our species. Humanism also means, to understand benevolence, compassion, mercy, etc. Citizens should, therefore, develop a spirit of compassion and humanism which is reflected in the Preamble of the PCA Act as well as in Sections 3 and 11 of the Act. To look after the welfare and well-being of the animals and the duty to prevent the infliction of pain or suffering on animals highlights the principles of humanism in Article 51-A(h). Both Articles 51-A(g) and (h) have to be read into the PCA Act, especially into Section 3 and Section 11 of the PCA Act and be applied and enforced.
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.
82. Section 3 has been specifically enacted, as already indicated, to confer duties on persons who are in-charge or care of the animals, which says, it is the duty of such persons to ensure the well-being of such animals and to prevent infliction of unnecessary pain or suffering upon the animals. In other words, the well-being and welfare of the animals is the paramount and dominant intention of the PCA Act and with that intention it has conferred duties on the person in-charge or care of the animals and 27 corresponding rights on the animals. Section 11 confers obligations on all persons, including persons-in-charge or care of the animals to see that Section 3 has been fully obeyed. Exemptions to Section 11 have been provided in sub-section (3) on the doctrine of necessity, which concept we have already dealt with in the earlier part of the judgment. Section 22 of the PCA Act, which deals with "performing animals", has to be read along with Sections 3, 11(1) and 11(3) of the Act and that expects only the animal to perform in an exhibition and bull tamers have no role unlike the TNRJ Act. Sections 21 and 22 refer to training of animals for performance and not training to withstand the onslaught of bull tamers. Sections 3, 11 or 22 do not confer any right on the human beings to overpower the animals while it is performing, on the other hand, under Section 11(1)(m), inciting an animal to fight is an offence.
83. Section 38 of the PCA Act confers rule-making powers on the Central Government and, in exercise of its rule-making powers, the Central Government made the Performing Animals Rules, 1973 and the Performing Animals (Registration) Rules, 2001 and thrust of all the substantive and procedural provisions is the welfare and well-being of the animal and the duties and obligations of the persons who are in charge of the animals and also to safeguard the rights conferred on the animals. Rule 8(vii) specifically refers to animals' "basic natural instinct" and cautions that the basic natural instinct of the animals be protected and be not exploited.
84. The TNRJ Act, 2009 is an anthropocentric legislation enacted not for the welfare of the animals, unlike the PCA Act, which is an ecocentric legislation, enacted to ensure the well-being and welfare of the animals and to prevent unnecessary pain or suffering of the animals. The State Act basically safeguards the interest of the organisers and spectators while conducting the event of Jallikattu.
85. The Act has no Preamble and the Statement of Objects and Reasons of the Act reads as follows:
"STATEMENT OF OBJECTS AND REASONS
1. 'Jallikattu' includes 'Manjuvirattu', 'Oormadu', 'Vadamadu' or 'Erudhu vidum vizha'. The said function consists of taming of bulls as a part of ancient culture and tradition of the Tamils. The said tradition is in vogue for more than 400 years. At present, there is no legislation to regulate the conduct of Jallikattu, Manjuvirattu, Oormadu, Vadamadu, Erudhu vidum vizha or any such activity involving the taming of bulls. The Government have, therefore, decided to bring out a legislation to regulate the conduct of the Jallikattu in the State of Tamil Nadu by prescribing norms to hold such events and to ensure the safety of animals, participants and the spectators.
2. The Bill seeks to give effect to the above decisions."
86. Section 4 deals with the responsibility of the organisers. Section 4(iii) provides for double barricade area in order to avoid injuries to the spectators and bystanders, the prime consideration is, therefore, to avoid injuries to spectators and bystanders and not that of the animal. Section 4(iv) deals with the fixing of the gallery for the spectators to sit and watch the event. Section 4(vi) empowers the Animal Husbandry Department to test the bulls to ensure that performance enhancement drugs are not administered. Duties have also been assigned to the District Collector, under Section 5 of the Act, to ensure safety of the spectators and to see that bulls are free from diseases and not intoxicated or administered with any substance like nicotine, cocaine, etc. to make them more aggressive and ferocious. Sections 5(ix) and (x) authorise the District Collector to give wider publicity to the provisions of the PCA Act and the Rules made thereunder and to ensure the presence of animal welfare activists of AWBI during the conduct of the event. Section 7 deals with penalty, it says "whoever contravenes the provisions of this Act shall, on conviction, be punishable with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees or with both". Section 11 of the PCA Act, it may be noted, provides for imprisonment for a term which may extend maximum to three months, to that extent, there is inconsistency between Section 7 of the TNRJ Act as well as Section 11 of the PCA Act.
87. Section 2(d) of the PCA Act speaks of domestic animal and taming the animal for use of men, which is evidently for domestic use, being domestic animal, not for entertainment or amusement. Section 11(3), as already stated, excludes five categories of cases from Section 11 "due to necessity"
and Section 28 speaks of killing of animal in a manner required by the religion of any community. Section 22 of the Act speaks of performing animal, meaning thereby, exhibition and training only for performance of the animal. The PCA Act does not speak of "taming of animals"28
(overpowering animals). Taming of animal for domestic use and taming of animal for exhibition or entertainment are entirely different. Section 2(c) of the TNRJ Act speaks of "taming of bulls" which is inconsistent and contrary to the provisions of Chapter V of the PCA Act. Sections 4(vii), (viii) and 5(viii) speak of bull tamers. Bull tamers, therefore, tame the bulls at the arena, thereby causing strain, stress, inflict pain and suffering, which the PCA Act wants to prevent under Section 11 of the Act. Taming of bulls in the arena during Jallikattu, as per the State Act, is not for the well- being of the animal and causes unnecessary pain and suffering, that is exactly what the Central Act (the PCA Act) wants to prevent for the well- being and welfare of animals, which is also against the basic natural instinct of the bulls.
88. The PCA Act, especially Section 3, coupled with Section 11(1)(m)(ii), as already stated, makes an offence, if any person solely with a view to provide entertainment, incites any animal to fight. Fight can be with an animal or a human being. Section 5 of the TNRJ Act envisages a fight between a bull and bull tamers, that is, bull tamer has to fight with the bull and tame it. Such fight is prohibited under Section 11(1)(m)(ii) of the PCA Act read with Section 3 of the Act. Hence, there is inconsistency between Section 5 of the TNRJ Act and Section 11(1)(m)(ii) of the PCA Act.
89. The TNRJ Act, in its Objects and Reasons, speaks of ancient culture and tradition and also safety of animals, participants and spectators. The PCA Act was enacted at a time when it was noticed that in order to reap maximum gains, the animals were being exploited by human beings, by using coercive methods and by inflicting unnecessary pain. The PCA Act was, therefore, passed to prevent infliction of unnecessary pain or suffering and for the well-being and welfare of the animals and to preserve the natural instinct of the animal. Overpowering the performing animal was never in the contemplation of the PCA Act and, in fact, under Section 3 of the PCA Act, a statutory duty has been cast on the person who is in-charge or care of the animal to ensure the well-being of such animal and to prevent infliction on the animal of unnecessary pain or suffering. The PCA Act, therefore, casts not only duties on human beings, but also confer corresponding rights on animals, which is being taken away by the State Act (the TNRJ Act) by conferring rights on the organisers and bull tamers, to conduct Jallikattu, which is inconsistent and in direct collision with Section 3, Section 11(1)(a), Section 11(1)(m)(ii) and Section 22 of the PCA Act read with Articles 51-A(g) and (h) of the Constitution and hence repugnant to the PCA Act, which is a welfare legislation and hence declared unconstitutional and void, being violative of Article 254(1) of the Constitution of India.
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.
72. Their Lordships of the Hon'ble Supreme Court in the judgment cited hereinabove have held that 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. The principle of equality of all species found in Isha Upanishads is the culture and tradition of the country, particularly the States of Tamil Nadu and Maharashtra. 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, recognizing the intrinsic value and worth of animals. So far as animals are 29 concerned, "life" means something more than mere survival or existence or instrumental value for human being, but to lead a life with some intrinsic worth, honour and dignity.
73. We have to show compassion towards all living creatures. Animals may be mute but we as a society have to speak on their behalf. No pain or agony should be caused to the animals. Cruelty to animals also causes psychological pain to them. In Hindu Mythology, every animal is associated with god. Animals breathe like us and have emotions. The animals require food, water, shelter, normal behavior, medical care, self-determination.
74. It would be pertinent at this stage to make reference of book, "Sacred Animals of India", written by Nanditha Krishna. She has introduced every animal with the myths and legends that establish its religious status, followed by a short note on the ecological or social role of the animal, which made it important in people's lives. Learned author has also discussed the Ahimsa and Non- violence preached by Lord Mahavira, Lord Gautama Buddha as under:-
"Ahimsa or Non-violence The concept of ahimsa - non-violence in though and deed - is India's unique contribution to world culture. The Vedas and Upanishads were the first to speak of ahimsa. Although the Aryans were not vegetarians, the concept of non-killing appears in the earliest literature. The Rig Veda (10.87.16), condemns all forms of killing, even for food, preferring vegans to drinkers of milk:
The yatudhana who fills himself with the flesh of man, He who fills himself with the flesh of horses or of other animals, And he who steals the milk of the cow:
Lord, cut off their heads with your flame.
The Yajur Veda says that service to animals leads to heaven: 'No person should kill animals helpful to all and persons serving them should obtain heaven.' According to the Atharva Veda, the earth was created for the enjoyment of not only human beings but also for bipeds and quadrupeds, birds, animals and all others creatures. The emergence of all life forms from the Supreme Being is expressed in the Mundakopanishad from Him, too, gods are produced manifold, The celestials, men, cattle, birds.
These ideas led to the concept of ahimsa or non-violence. Much later, the Manusmriti says, 'He who injuries innocent beings with a desire to give himself pleasure never finds happiness, neither in life nor in death.' The Shrimad Bhagavatam says that a cruel person who kills others for his existence deserves to be killed, and cannot be happy, either in life or in death. The consequences, according to the Yajunavalkya Smriti are that 'the wicked person who kills 30 animals which are protected has to live in hellfire for the days equal to the number of hairs on the body of that animal.' In the later Puranas, killing animals and eating meat were considered to be such heinous sins that neither prayers nor pilgrimages or bathing in holy rives would absolve of it.
Although Sanatana Dharma did not require its adherents to be vegetarians, vegetarianism was recognized as a higher forms of living, a belief that continues in contemporary Hinduism where vegetarians is considered essential for spiritualism.
Around the sixth century BCE, two great religious preachers were born, who took the Upanishadic philosophy of good conduct and non-killing to the people in the common language:
Mahavira the Jina (Victor), and Gautama the Budha (wise). The name traditionally used for Hinduism.
Both emphasized that ahimsa or non-violence was essential for a good life. Mahavira (599-527 BCE) and Jainism Mahavira ('Great Hero') was born as Prince Vardhamana, son of Siddhartha, Raja of Kundalpura, and Queen Trishala or Priyakarni, in 599 BCE. He abandoned home in 569 BCE to become a monk.
He attained enlightenment in 557 BCE and attained nirvana in 527 BCE. Queen Trishala had fourteen auspicious signs before she gave birth to Vardhamana, foretelling the advent of a great soul. These symbols included the elephant, bull, lion, and a pair of fish. Which denote great spirituality in Jainism. Mahavira was not the founder of Jainism: he was the twenty-fourth and last Tirthankara who revised the Jaina doctrines and established the central tenets of Jainism of Jainism. Ahimsa paramo dharmah: 'Ahimsa (non-violence) is the highest religion' is a tenet basis to Jainism. Violence is the root cause of all crises. Ethical discipline is important and sacred. To liberate oneself, Mahavira tought the importance of right faith, right knowledge and right conduct, which includes non-violence (ahimsa)- not to cause harm to any living being. Jainism is basically an ethico-metaphysical system. In comparison to Hinduism and Buddhism, ahimsa is the prime Tirtha means ford, a means of crossing over, and denotes a spiritual guide or philosophy which enables one to cross over the ocean of recurring births in this world. Kara means the one who makes, and the word Tirthankara means 'one who crosses the sacred ford', or a Jain saint. According to Jainism, ahimsa is not the mere causing of violence; it is the 'severance of any of the vitality in a mobile or immobile being'. Ahimsa, as viewed by Jainism, is very comprehensive and takes into consideration the welfare of all beings on earth. Keeping anything in confinement, without consideration for its freedom to exist or live, is bandhana (captivity). Rearing animals without adequate shelter, air, light, space and food is atichara (bad conduct). Keeping animals, including dairy animals, tied with ropes or chains throughout the day is violence. The simple prayer of the Jainas is 'Let the law of the Jaina give all happiness to all the living beings of the world. All beings desire to live. They like pleasure, hate pain, shun destruction, like to live long. To all, life is dear (Ramanujam 2006).
As the images of all the Tirthankaras are identical, their pedestals contain the animal emblem of each, which is the sole means of identification. They include x Rishabhanath (Adinatha)- Bull x Ajitanatha- Elephant x Sambhavananatha- Horse x Abhinandanatha- Monkey x Sumatinatha- Curlew or red goose x Padmaprabha- Lotus x Suparashvanatha- Swastika x Chandraprabha- Moon or crescent x Suvidhinatha (Pushpadanta)- Crocodile x Shitalanatha- Pipal tree x Shreyamsunatha- Rhinoceros x Vasupujya- Buffalo (female) x Vimalanatha- Boar x Anantanatha- Hawk or bear or porcupine x Dharmanatha (Vajranatha)- Thunderbolt x Shantinatha- Deer or tortoise x Kunthunatha- Goat x Aranatha- Fish x Mallinatha- Water jar x Munisuvrata - Tortoise 31 x Naminatha- Blue lotus or Ashoka tree x Neminatha- Conch x Parshvanatha- Snake x Mahavira- Lion Gautama Buddha (563-483 BCE) The eightfold path taught by the Buddha emphasized the importance of abstaining from activities that bring harm to other living beings and non-killing. The Boddhisattva is one who is full of maitri (friendship) towards all animals, for the aspires to achieve Buddha-hood. Said the Buddha, 'As a mother would be very good towards her only child, her well-beloved son' so too you should be very good towards all creatures everywhere and to everyone' (Dwivedi, 1989) The Buddha himself sought refuge from his bickering disciples by living among the animals who werved him devotedly. The Jataka tales hold up the noble qualities of various animals as examples to emulate.
The Dhyani Buddhas and their vehicles are x Amitabha- peacock x Akshobhya-Elephant x Raktayamari-Buffalo x Vairochana- Lion or Dragon x Marichi Ashokakanta- Pig x Arya Marichi-Pig x Marichi Pichuva- Chariot of Seven Pigs x Dashabhujasita Marichi- Chariot of Seven Pigs x Amoghasiddhi- Eagle x Ratnasambhava- Lion The aspects of Boddhisattava Manjushri with animal vehicles include x Manjughosha- Lion x Vagishvara-Lion x Manjuvara- Lion x Vadirata- Tiger The aspects of Boddhisatta Avalokiteshvara with animal vehicles include x Simhanada- Lion x Harihariharivahana- Lion and eagle x Vajradharma- Peacock."
Following animals are sacred to Hindus:-
x Blackbuck and Blue bull are considered as sacred. x The antelope is also the vehicle of Soma. The antelope first appears as the vehicle of Vayu, the Wind, and the steed of the Maruts, the strom deities and the sons of Rudra and Diti.
x Jambavan the bear appears in the Ramayana. x The boar is associated with rain and is believed to dig the earth before the onset of the monsoon.
x In the Rig Veda, the bull was the symbol of strength and power. x The domestic cat is the vehicle of goddess Shashthi, a goddess of fertility who is popular in West Bengal and Maharashtra. x The cow occupies a special place in Hindu culture. She symbolizes dharma, the Law of Righteousness.
x The crane is a symbol of long life.
x The crocodile is the symbol of prosperity. x Even crow occupies a special place in Hindu religious rituals. It is usually identified with departed souls or ancestors. x Cuckoo is a symbol of fertility, fun and good times. x Donkey is the vehicle of Shitala Devi, the goddess who is invoked to ward off smallpox, even as her anger can bring it on. x The dove is associated with Yama, the god of death. x The Indian flying fox, better known as the fruit bat, is the only species of bat that is regarded as sacred.
x The vehicle or vahana of Agni is goat.
x The lion is a symbol of power and majesty. He is regarded as the king of the animals in literature and art. It is the symbol of royalty and royal power. The state of emblem of contemporary India is adopted from the famous lion capital of Ashoka's Pillar at Sarnath. x Mouse is the vehicle or vahana of Lord Ganesha. x Peacock is the vehicle of Lord Kartikeya. x Rooster is the symbol of the sun.
x Vishnu Durga rides the Lion.32
75. Jainism is one of the oldest religion. It preaches "ahimsa". Jains avoid even honey since it involves violence towards bees. According to Lord Mahavira, "To kill any living being amounts to killing one's self. Compassion to others is compassion to one's own self. Therefore, one should avoid violence like poison and thorn."
76. Mahatma Gandhi has said, "The greatness of a nation and its moral progress can be judged by the way its animals are treated."
77. His Holiness, the Dalai Lama has said, "Environmental damage is often gradual and not easily apparent, and by the time we become aware of it, it is generally too late." His Holiness has also said, "Mothers in society are the first lamas, or gurus, of compassion; our spiritual lamas come later in life. Our mothers teach us the power and value of compassion right from our birth."
78. The welfare of animals and birds is a part of moral development of humanity. Animals/ birds also require suitable environment, diet and protection from pain, sufferings, injury and disease. It is the man's special responsibility towards the animals and birds being fellow creatures. We must respect the animals. They should be protected from the danger of unnecessary stress and strains. The United Kingdom Farm Animal Welfare Council (FAWC) has expanded 5 freedoms for animals as under:
1. Freedom from hunger and thirst - by ready access to fresh water and a diet designed to maintain full health and vigour.
2. Freedom from discomfort - by the provision of an appropriate environment including shelter and a comfortable resting area;
3. Freedom from pain, injury or disease - by prevention or through rapid diagnosis and treatment;33
4. Freedom to express normal behaviour - by the provision of sufficient space, proper facilities and company of the animal's own kind; and
5. Freedom from fear and distress - by the assurance of conditions that avoid mental suffering.
79. These are fundamental principles of animal welfare. The Welfare Quality Project (WQP) research partnership of scientists from Europe and Latin America founded by the European Commission has developed a standardized system for assessing animal welfare as under:
1. "Animals should not suffer from prolonged hunger, i.e. they should have a sufficient and appropriate diet.
2. Animals should not suffer from prolonged thirst, i.e. they should have a sufficient and accessible water supply.
3. Animals should have comfort around resting.
4. Animals should have thermal comfort, i.e. they should neither be too hot nor too cold.
5. Animals should have enough space to be able to move around freely.
6. Animals should be free from physical injuries.
7. Animals should be free from disease, i.e. farmers should maintain high standards of hygiene and care
8. Animals should not suffer pain induced by inappropriate management, handling, slaughter or surgical procedures (e.g. castration, dehorning).
9. animals should be able to express normal, non- harmful social behaviours (e.g. grooming).
10. Animals should be able to express other normal behaviours, i.e. they should be able to express species
- specific natural behaviours such as foraging.
11. Animals should be handled well in all situations, i.e. handlers should promote good human-animal relationships.
12. Negative emotions such as fear, distress, frustration or apathy should be avoided, whereas positive emotions such as security or contentment should be promoted."
80. The Court by invoking the 'parens patriae' doctrine issue following mandatory directions to the respondents in the welfare of the cows and other stray cattle:
34A. No person in the State of Uttarakhand shall slaughter cause or cause to be slaughtered, or offer, or cause to be offered for slaughter, any cow, bull, bullock, heifer or calf forthwith.
B. No person shall export cow, bull, bullock, heifer or calf for the purpose of slaughter either directly or through his agent or servant or any other person acting on his behalf if the same is likely to be slaughtered.
C. No person shall sell beef or beef products in any form throughout the State of Uttarakhand.
D. Prosecution be launched under Section 289, 428 and 429 of the I.P.C. and also under various provisions of the Prevention of Cruelty of Animals Act, 1960 as well as Section 7 of the Uttarakhand Protection of Cow Progeny Act, 2007, against the owners of any cattle which are found on the streets, roads and public places.
E. Chief Engineers of all National Highways in the State of Uttarakhand and the State Highways are directed to ensure that no stray cattle, including cows and oxen come onto the roads.
F. Executive Officers of the Municipal Corporations, Municipal Bodies, Nagar Panchayats and Pradhans of the Gram Panchayats are directed to ensure that all the roads passing through their jurisdiction are kept free from the stray cattle to ensure free and smooth flow of the traffic.
G. The functionaries of the State are directed that while removing the stray cattle from the road, the utmost compassion is shown towards them and no unnecessary pain and suffering is inflicted on. In case the cattle are transported, in that eventuality, there should be a provision for construction of ramps and the vehicles should be driven at speeds not more 35 than 10-15 kms/hour to avoid injuries to the animals, being transported.
H. The Government Veterinary Officers/Doctors throughout the State of Uttarakhand are directed to treat all the stray cattle. The Executive Officers of the Municipal Bodies, Nagar Panchayats and all the Gram Panchayats are directed to ensure that the stray cattle suffering from any injury or disease are got treated from the Veterinary Hospitals in their respective jurisdictions. All the Veterinary Hospitals in the State of Uttarakhand are directed to provide necessary medical treatment to the cows and animals as and when brought before them. No Government Veterinary Officer/Doctor shall refuse to treat stray cattle brought before him by the authorities or any enlightened citizen. Every citizen has a right to bring to the notice of the Veterinary Officer/Doctor throughout the State of Uttarakhand the location of the Cow or stray animal suffering from any disease or injury for its treatment.
I. All the Municipal Corporation, Municipal Bodies including Zila Parishads are directed to construct in their respective jurisdiction "gaushalas"/"gausadans" or shelters/homes for housing cow progeny and stray cattle within a period of one year from today. J. All the District Magistrates throughout State of Uttarakhand are directed to construct Gaushalas/Gausadans in a cluster of 25 villages throughout the State of Uttarakhand, within a period of one year from today.
K. The "gaushalas'/gausadans' or shelters should be constructed on scientific lines, taking into consideration the comfort of animals to be housed there. No commercial charges shall be levied for supplying the electricity and water connections in Gaushalas/Shelters.
36L. The State Government is directed to appoint infirmaries within a period of three weeks in order to treat and take care of the animals as per Section 35 of the Prevention of Cruelty to Animals Act, 1960.
M. The special squad is ordered to be headed by the Officer not below the rank of Deputy Superintendent of Police in both Commissionaries i.e. Kumaon and Garhwa with one Veterinary Doctor to protect cows.
N. The State Government is directed to evict all the unauthorized occupants/encroachers from the gaushalas/gausadans within a period of three months from today after granting opportunity of hearing to them.
O. The Circle Officer of all the Districts throughout the State of Uttarakhand more particularly falling in the plain areas are directed to patrol the rural areas once in 24 hours to ensure that no cow is slaughtered.
P. All the Head Gurus of all the religions including
Deras are requested to assist the State in
construction of gaushalas/gausadans to house cows.
Q. The State Government is directed to ensure that the draught animals do not carry load while driving vehicles more than prescribed as under:
1 2 3Small bullock or small Two-wheeled vehicle- 750 kilograms buffalo (a) if fitted with ball bearings
(b) if fitted with pneumatic tyres 500 kilograms
(c) if not fitted with pneumatic 350 kilograms tyres
2. Medium bullock or Two-wheeled vehicle- 1000 kilograms medium buffalo (a) if fitted with ball bearings
(b) if fitted with pneumatic tyres 750 kilograms
(c) if not fitted with pneumatic 500 kilograms tyres
3. Large bullock or large Two wheeled vehicle- 1400 kilograms buffalo (a) if fitted with ball bearing
(b) if fitted with pneumatic tyres 1000 kilograms
(c) if not fitted with pneumatic 600 kilograms tyres
4. Horse or mule Two-wheeled vehicle- 500 kilograms
(a) if fitted with pneumatic tyres
(b) if not fitted with pneumatic 300 kilograms tyres
5. Pony Two-wheeled vehicle- 350 kilograms 37
(a) if fitted with pneumatic tyres
(b) if not fitted with pneumatic 250 kilograms tyres
6. Camel Two-wheeled vehicle 250 kilograms.
R. The State Government is directed to ensure that no animal shall carry weight or load in excess of the weight prescribed as under:-
1 21. Small bullock or buffalo 75 kilograms
2. Medium bullock or buffalo 100 kilograms
3. Large bullock or buffalo 125 kilograms
4. Pony 50 kilograms
5. Mule 150 kilograms
6. Donkey 35 kilograms
7. Camel 200 kilograms S. It is also made clear that where the route by which a vehicle is to be drawn involves an ascent for not less than one kilometer and the gradient is more than three meters in a distance of thirty metres, the weight shall be half of what is specified by this Court. It is also made clear by way of abundant precaution that the weight specified in the direction made hereinabove, shall be inclusively the weight of the vehicle.
T. The State Government is directed to ensure that in any area where the temperature exceeds 37°C (99°F) during the period between 11.00 am and 4.00 p.m. in summers and when the temperature is below 5°C between 5 a.m. to 7 a.m. and between 10 p.m. to 5 a.m. in winter season no person is permitted to keep or cause to be kept in harness any animal used for the purpose of drawing vehicles.
U. The State Government is directed to ensure that all the cattle i.e. cow, bulls, buffalos and calf are transported in goods vehicle as per Rule 56 of the Transport of Animals Rules, 1978 by providing special type of tail board on padding around the sides. The ordinary goods vehicle shall 38 be provided with anti-slipping material such as coir matting or wooden boards on the floor and the superstructure. No goods vehicle shall carry more than six cattle. Each goods vehicle shall be provided with one attendant. The goods vehicle shall not be loaded with any other merchandise. The cattle should preferably face the engine to prevent them from being frightened or injured. The same instructions shall be followed by the Railways authority as per Rules 47-55 of the Transport of Animals Rules, 1978. The horses, mules and donkeys shall also be transported as per Rules, 57 to 53 of the Transport of Animals Rules, 1978. The sheep and goats shall be transported as per Rules 64 to 75 of the Transport of Animals Rules, 1978. The poultry shall be transported as per Chapter VII and the Rules 76 to 84 of the Transport of Animals Rules, 1978. The animals should be separated by means of wooden ballies or MS pipes in such a way not more than 6 cattle can be transported in the vehicle. A ramp should be fixed to the vehicle on the rear side which can be folded upwards and it should have a width of 1.5 meters and inclination of 30 degrees when it is landed on the ground. The ramp should take the weight of the animals. A First-Aid Box filled with the medicines, as provided under the Rules shall be carried in the vehicle transporting the animals.
V. No animal including cows, buffaloes, calves, horses, ponies, mules, donkeys, foal, goats and sheep, kids and lambs, pigs, piglets shall be transported on foot beyond the period specified in Rule 12 of the Prevention of Cruelty to Animals (Transport of Animals on Foot) Rules, 2001.
39W. The animals shall be transported on foot only when the temperature is between 12°C to 30°C. The animals should be provided water every two hours and food in every four hours. The animals should not be made to walk more than 2 hours at a stretch.
X. The State Government is directed to ensure that every animal to be transported should be healthy and in good condition. A certificate of veterinary doctor in respect of each animal to be transported is made compulsory as per Rule 4 of the Prevention of Cruelty to Animals (Transport of Animals on Foot) Rules, 2001.
Y. No new born animal of which the navel has not completely healed, diseased, blind, emaciated, lame, fatigued, or having given birth during the preceding seventy-two hours or likely to give birth during transport are ordered not to be transported on foot. There should be watering arrangements en-route during transport of such animals on foot. There should be sufficient feed and fodder arrangements during transportation of animals.
Z. The animals while transported shall not be tied by its nose, or legs or any other part of the body except by its neck. The animals, if at all, are to be tied during transportation shall be tied with rope covered with suitable cushioning.
AA. The State Government is directed to ensure that no animals shall be transported on foot on hard cement, bitumen-coated or metalled roads, steep gradients or hilly and rocky terrain, irrespective of weather conditions (summers and winter), as per Rule 30 of the Rules of 2001.
40BB. All the police officers are directed to enforce the provisions of Rule 14.
CC. The State Government is also directed to constitute societies for prevention of cruelty to animals in each district, if not already constituted.
DD. The cost of transporting the animal to an infirmary or pinjrapole, shall be paid by the owner of the animal.
EE. The State Government is directed to register cases against the persons who leave vagrant any cow progeny and free for wandering a cow after milching her.
(Manoj Kumar Tiwari, J.) (Rajiv Sharma, J.) 10.08.2018 Jitendra/Kaushal 41