IN THE SUPREME COURT OF GONDWANA AT BAKER

Writ Jurisdiction under Art. 32 of the Constitution of Gondwana

Writ Petition No. XXX/2020

Date: 15th April, 2020.

1. ANIMAL WELFARE BOARD OF GONDWANA (REPRESENTED BY ITS

CHAIRMAN, MR. DANIEL BRYAN)…………………..……PETITIONER
NO.1
2. CITIZENS FOR MORAL TREATMENT OF ANIMALS (REPRESENTED BY
ITS CHAIRMAN, MR. SHERLOCK HOLMES)…………….PETITIONER
NO.2
3. CHOLA SANSKRITI BACHAO (REPRESENTED BY ITS CHAIRMAN, MR.
ANDREW HEISENBERG)…..……..……..…………………..PETITIONER NO.3

VERSUS

1. GOVERNMENT OF CHOLA (REPRESENTED BY ITS CHIEF SECRETARY

TO THE GOVERNMENT, MR. NARAYAN SHILOUT)…RESPONDENT
NO.1
2. GOVERNMENT OF GONDWANA (REPRESENTED BY ITS SECRETARY
TO THE GOVERNMENT, MINISTRY OF HOME AFFAIRS, MRS.
RANJANA SWAMINATHAN)...……………………………………….…
RESPONDENT NO.2
3. COMMISSIONERATE OF POLICE, MYLANGLUR (REPRESENTED BY ITS
COMMISSIONER OF POLICE, MRS. LILAVATI SHARMA)
……………………………………………………..RESPONDENT NO.3

Counsel for Petitioner No. 1 – Mr. Harvey Watson;

Counsel for Petitioner No. 2 – Mr. Mike Stevenson;

Counsel for Petitioner No. 3 – Mrs. Irene Adler;

Counsel for Respondent No. 1 – Ms. Rachel Johnson;

1
 Counsel for Respondent No. 2 – Mr. Ross Sheldon;

Counsel for Respondent No. 3 – Mrs. Walter White.

JUDGMENT

JUSTICE JESSICA SPECTOR ON BEHALF OF A 5-JUDGE CONSTITUTIONAL BENCH.

JURISDICTION

The Writ petitions have been filed by the Animal Welfare Board of Gondwana and Citizens
for Moral Treatment of Animals under Article 32 of the Constitution of Gondwana read with
Order XXXVIII of the Supreme Court Rules, 2013. The third respondent, Chola Sanskriti
Bachao has approached this court under Order V Rule 2(3) and Order XVII Rule 3 of
Supreme Court Rules, 2013, through an intervention application as an intervenor.

Since the petitions allege violation of Fundamental Rights enshrined under Article 14, 21, 25,
29 of the Constitution by the Chola Amendment Act and certain section of Prevention of
Cruelty to Animals Act, 1960, this court decides to allow the petitioners. All the petitions
have been clubbed together by this court under Article 139A of the Constitution.

FACTS

The practice of Sallikkatu, practiced in the state of Chola had witnessed incidents of animal
cruelty as recorded by the petitioner, Animal Welfare Board of Gondwana via report dated
20/10/2008. The Government of Chola, took cognizance of the aforementioned reports and
videos, enacted the Chola Regulation of Sallikkatu Act, 2009 to regulate Sallikkatu in Chola.
However, there were still instances of animal cruelty.

The Ministry of Environment and Forests issued a Notification No. MoEF/07/2011 dated
11/07/2011 which prohibited exhibition and training of bulls. This notification was
challenged in this court, and the court struck down the CRS Act, while upholding the
notification. The decision led to widespread protests in Chola.

Based on a credible intelligence, there was an imposition of curfew under Sec. 144 of the
Criminal Procedure Code in the city of Mylanglur on 31 st of August 2017 by the

2
Commissionerate of police vide Order No. 11B and a subsequent imposition of restriction on
internet services in the area by the secretary to the government of Chola, vide Order No.
Home-01.

The Central Government amidst protests issued Notification No. MoEF 10/17 dated
07/10/2017 which permitted exhibition and training of bulls for the purpose of Sallikkatu and
laid down mandatory guidelines for the organization of Sallikkatu. Yet, the Supreme Court
ordered a stay on the Notification No. MoEF 10/17 in November 2017.

In public interest, the Chola government passed the Prevention of Cruelty to Animals (Chola
Amendment) Act, 2017, to exempt Sallikkatu from the PCA Act. 

ISSUES AT HAND

I. Whether the restriction on protests and the restriction on internet

connectivity imposed are violative of the Constitution of Gondwana?
II. Is the Chola Amendment Act referable, in pith and substance, to Entry 17,
List III of the Seventh Schedule to the Constitution of Gondwana?
III. Whether the people of Chola can claim that the practice of Sallikattu is
protected by Art. 25 and 29 of the Constitution of Gondwana and the
Chola Amendment Act is constitutionally valid?
IV. Does the Chola Amendment Act and Sec. 28 of the PCA Act contradict
Articles 51A(g) and 51A(h), and are violative of Articles 14 and 21 of the
Constitution of Gondwana?
V. Is the Chola Amendment Act directly contrary to the judgment in A.
Nagaraja and whether the defects pointed out in the aforesaid judgment
could be said to have been overcome by enacting the Chola Amendment
Act?
VI. Whether Sec. 28 of the PCA Act is protected by Art. 25 of the Constitution
of Gondwana?

MAINTAINABILITY OF THE WRIT PETITION

Prior to delving into the question of breach, it is necessary to address the question of
maintainability of the petition. The petition is maintainable on the following grounds:

3
 1. In the case of A Nagraj1, 5 fundamental freedoms2 for animals have been recognised
as fundamental rights under Art. 21. The petitioners, Animal Welfare Board of
Gondwana have argued that fundamental rights are enforceable against ‘State’ as
defined under Art. 12, and therefore the legislations and orders of the state are subject
to Part III of the Constitution. Whenever there is a breach, the petitioner has the right
to approach this court under Art. 32. In the present petition, Right to Life of animals
under Art. 21 is being violated by the Chola Amendment Act.
2. This court has the power to delve upon case involving a substantial question of law of
general importance and cases involving violation of fundamental rights under Art. 131
of the Constitution. The constitutional validity of Sallikkatu and Sec. 28 of the PCA,
as challenged by the petitioners, Citizens for Moral Treatment of Animals, are a
substantial questions of law wherein the court has to strike a balance between the
rights of humans and animals. The right to freedom of religion of citizens and the
rights of animals against discomfort, pain, fear and distress.3 Therefore, this court
must analyse the validity of Sec. 28 of the PCA Act.
3. Earlier too, this court has allowed such petitions like in Animal Welfare Board of
India vs A. Nagaraja wherein the rights of animals are put through the constitutional
prism.
4. Under Art. 32 this court has jurisdiction over matters when two FR are conflicting.
The present matter requires analysis of Fundamental Rights since Right to Life under
Art. 21 and Right to Practice Religion under Art. 25 are at conflict. In cases of
conflict of fundamental rights, the right which promotes higher public-morality is to
be upheld.4 And in order to find higher public morality, audi altrum partem is
inevitable.
5. Lastly, for the third writ petition, Chola Sanskriti Bachao has approached the court
under Art. 32. They have claimed that Order no. Home-01 and Notification No.
MoEF/07/2011 violates their Fundamental Rights, namely, Art. 19 (1)(a) and 21.
6. Hence, we are allowing this Writ petition.

1
Animal Welfare Board of India vs A. Nagaraja, 2014 7 SCC 547.
2
See N.R. Nair v. Union of India, 2001 6 SCC 84; TERRESTRIAL ANIMAL HEALTH CODE, Art. 7.1.2, OIE,
https://www.oie.int/fileadmin/Home/eng/Health_standards/tahc/current/chapitre_aw_introduction.pdf, (14TH
MARCH, 2020).
3
Ibid.
4
Asha Ranjan v. State of Bihar, 2017 4 SCC 397.

4
 I WHETHER THE RESTRICTION ON PROTESTS IMPOSED BY THE ORDER NO.
11B AND THE RESTRICTION ON INTERNET CONNECTIVITY IMPOSED BY

ORDER NO: HOME-01 ARE CONSTITUTIONALLY INVALID?

CONTENTIONS

7. The petitioner while challenging the constitutionality of these restrictions had

questioned the same on the provisions of Art. 19(1)(a) 5 and Art. 19(1)(b).6 They have
argued that the said order is violative of the fundamental right assemble peacefully
under Art. 19.
8. The petitioner relied on the ratio of this court in the case of Madhu Limaye7, where the
court had laid down that the particular Sec. can only be invoked in cases of sudden
emergency, the consequences of which is sufficiently grave, and the same lacks in the
instant order.
9. Further, questioning the restriction on the reasonability as allowed in Art. 19(2), the
counsel relied on the doctrine of proportionality as laid down in the case of K.S.
Puttuswamy8. They argued that the aforementioned order is unreasonable and lacks
proportionality and thus violative of Art. 19(1)(a) of the constitution.
10. Emphasizing on the right to dissent in a democracy, the petitioners relied on the
recent judgement of Anuradha Bhasin9, where this court had clearly mentioned that
Sec. 144 of the CrPC cannot be used to suppress legitimate expression of opinion,
grievance or exercise of any democratic right.
11. Further, the petitioner had argued that any imposition of restriction on internet under
Gondwana Telegraph Act, 188510 and Temporary Suspension of Telecom services
(Public emergency or Public Safety) Act, 201711 should confirm to Art. 19(1)(a) and
Art. 21. The counsel submitted that the aforementioned restriction has violated their
“fundamental right to internet”12.

5
Const. of Gondwana, art. 19(1)(a).
6
Const. of Gondwana, art. 19(1)(b).
7
Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, AIR 1971 SC 2481.
8
K.S. Puttuswamy v. Union of India, 2017 10 SCC 1.
9
Anuradha Bhasin v. Union of India, 2020 1 MLJ 574.
10
Gondwana Telegraph Act, (1885).
11
Temporary Suspension of Telecom services (Public emergency or Public Safety) Act, (2017).
12
Supra note 6.

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 12. Further stressing on the importance of internet in a democracy, the petitioner also
referred to report by the special rapporteur to the U.N on freedom of speech and
expression13 and UNICCPR.14
13. Contending the above arguments of the petitioners, the counsel for the state has
primarily defended the restrictions both on internet and assembly on the grounds of
public order. The counsel emphasized that the said order under Sec. 144 was passed
on an apprehension of disruption of public tranquillity as required under Sec. 144(1)
of CrPC.15
14. Relying on the ratio in the cases of Babul Parate16 and Madhu Limaye17 the learned
counsel stated that the orders passed were under unavoidable circumstances for the
maintenance of public order and tranquillity. It relied on various judgements like
Dharam Dutt18 and Pratap Pharma Ltd.,19 where imposition of restriction to Art.
19(1) has been held constitutional even in cases of it not being partial.
15. Further, contending on the validity of the same on the principles of doctrine of
proportionality, the respondent relied on Modern Dental20 where it was held that no
constitutional right is absolute in nature and limiting some for the public interest may
be justified.

REASONING

16. “Nothing strengthens authority so much as silence.”

―  Leonardo da Vinci
17. Dissent in a democracy is as important as any of its other pillars. This is evident from
the views of the framers of our constitution when we put a look at the constituent
assembly debates of the 2nd of December 1948. Its importance is clear as its nature
being that of a fundamental right enshrined in Art. 19(1)(a).

13
U.N.GA, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Frank La Rue, A/HRC/17/27,
https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.
14
Art. 19, UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966, United Nations, Treaty Series, vol. 999, p. 171, available at:
https://www.refworld.org/docid/3ae6b3aa0.html [accessed 14 April 2020].
15
Criminal Procedure Code § 144(1), (1973).
16
Babulal Parate v. State of Bombay, AIR 1960 SC 51.
17
Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr, 1970 3 SCC 746.
18
Dharam Dutt v, Union of India, 2004 1 SCC 712.
19
Pratap Pharma (Pvt.) Ltd. v. Union of India, 1997 5 SCC 87.
20
Modern Dental College v. State of Madhya Pradesh, 2016 7 SCC 353.

6
 18. Hon’ble J. Bhagawati while hearing the case of Maneka Gandhi,21 had rightly stated
that in a democracy a free flow of information on public matters is necessary for the
citizens, to enable them the exercise their enshrined rights. 22 Open criticism or dissent
against the government policies cannot be a ground for restriction of freedom of
speech and expression. 23 Greater circulation of an information or its increased impact
cannot be a reason for its restriction.24
19. But these fundamental rights are not of an absolute in nature and are subject to
reasonable restrictions as enshrined under Art. 19(2) and the right of a person cannot
come at the stake of the right of another. 25
20. Internet is the power house of modern-day information dissemination and forms an
essential part of the right to freedom of speech and expression.
21. While stressing on its importance, we must not ignore the evils of a medium of such
vastness. It’s important to note the rate of transmission of information is high over the
internet and that the same disrupting public order on instigation or over misleading
information is high.
22. Therefore, the right to access internet can be restricted but should confirm to the
doctrine of proportionality. The test of reasonableness requires the court to consider
the amount of restriction, its nature, circumscribing facts and relief it sought to
achieve.26 The test of clear and probable danger as laid down by the American court
in the case Dennis v United States27 would also come into play while determining
reasonableness.
23. Proportionality entails that while restricting a fundamental right, the state should
maintain a balance between the object it sought to achieve, the amount of restriction
and its adverse effects on the rights and liberties of individuals.28
24. This court in the case of K.S. Puttuswamy,29 laid down new criteria which were in
consonance with the former. The exact paragraphs from the judgement being:

“(i) The action must be sanctioned by law;

21
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
22
See Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal.
23
S. Rangarajan v..P. Jagjivan Ram, 1989 SCC (2) 574.
24
Shreya Singhal v. Union of India, AIR 2015 SC 1523.
25
A.K Gopalan v. State of Madras, 1950 AIR 27.
26
Madras v. V.G. Row, 1952 S.C.R. 597.
27
Dennis v. United States, 341 U.S. 494 (1951).
28
Om Kumar v. Union of India, 2001 2 SCC 386.
29
Supra note 5.

7
 (ii) The proposed action must be necessary in a democratic society for a legitimate
aim;
(iii) The extent of such interference must be proportionate to the need for such
interference;
(iv) There must be procedural guarantees against abuse of such interference.”30
(emphasis supplied)
25. Therefore, summarizing the above doctrines and applying the same to the present
case, we need to look into the facts of this case. The order was passed on reports of
false news. It is important to note that the restriction which the order imposed was not
absolute but a partial one, restricting access to social media. While the order if
scrutinized individually shall stand on the doctrine of reasonableness and
proportionality considering the protests and the sensitivity of the matter.
26. But the same has to be looked in the context of the preceding order under Sec. 144,
which restricted assembly of protestors in the city. This court believes that while the
assembly of the protestors was already restricted by a preceding order, there was no
requirement of curtailment of information by restricting the internet. The restriction
over the internet therefore doesn’t seem to be proportional in the eyes of this court
considering the existence of a curfew in the region.
27. Thus, we believe that the order for enforcement of Sec. 144 of the CrPC was justified
in the light of the preceding events and is not unconstitutional, but the order to restrict
internet vide order no. Home-01 is unconstitutional and does not confirm to
reasonable restriction as allowed by Art. 19(2).

II WHETHER THE CHOLA AMENDMENT ACT BELONGS TO ENTRY 17, LIST

III?

CONTENTIONS

28. The second issue at hand is whether the Chola Amendment Act [hereinafter “ CCA
Act”], belongs to Entry 17 of List III in Pith and Substance. In order to examine the
true character of the enactment, the entire Act, its object and scope is required to be
looked into.31

30
Supra note 5.
31
Union of India v. Shah Goverdhan L. Kabra Teachers' College, AIR 2002 SC 3675.

8
 29. The counsel for the petitioners argued that the Act does not fall within Entry 17 of
List III. Entry 17 is ‘Prevention of cruelty to animals’ and this Act is intended to
subject bulls to the cruel practice by exempting Sallikkatu from the jurisdiction of the
Prevention to Cruelty of Animals Act, 1960 32 [hereinafter PCA Act]. The said Act is
apparently an attempt to save the culture and tradition of the people of Chola, and
therefore will fall under Entry 97 of List I, ‘Any other matter not enumerated in List II
or List III’ as ‘preserving culture and tradition’ does not fall under any list.

30. In defence of the above contention, the counsel for the respondent argued that Entries
in the Seventh Schedule33, are subjects on which the legislatures may legislate on. The
Act exempts the practice of Sallikkatu from the PCA Act, and is therefore a
legislation on the same subject. Thus, fitting itself in Entry 17, List III. For instance,
Entry 82 gives power to the Parliament to legislate on ‘Taxes on income other than
agricultural income.’ The Parliament also has the authority to make laws for
exemption from such tax also. Entries in the 3 Lists relating to taxation also include
the power to make laws to exempt an entity from taxation. Applying the same analogy
here, the Act is not a Colourable Legislation and the state of Chola is competent to
legislate the Act.

31. For the above reasoning, the respondent relied on this court’s observation that any
Entry in Seventh Schedule must be given the widest possible interpretation34.

32. Concluding his arguments, the counsel for respondent stated that a State Legislature
may incidentally affect any Item in the Union List. If a Law is on a matter enumerated
in the Concurrent List and is repugnant any existing law, then the repugnant provision
in the State List may be void unless it can coexist without repugnancy to the
provisions of the existing law.35 The said Act can co-exist as an exemption to the PCA
Act, and therefore the court must apply the Doctrine of Harmonious Construction.36
The courts must construe the contradictory provisions so as to harmonize them.37

REASONING

32
Prevention of Cruelty to Animals Act, (1960).
33
Const. of Gondwana, Schedule VII.
34
Jijubhai Nanbhai Kachar v. State of Gujarat, 1995 Supp. (1) SCC 596.
35
Prafulla Kumar Mukherjee v. The Bank of Commerce, 1947 49 BOMLR 568.
36
Commissioner Of Income Tax v. Hindustan Bulk Carriers, AIR 2002 SC 3491.
37
Ibid.

9
 33. The Act is a Colourable Legislation and contemplates the doctrine of Quando aliquid
prohibetur ex directo, prohibetur et per obliquum38. It seems that the respondent has
enacted a legislation under Entry 97, List I giving it the garb of Entry 17, List III.
Further, the question or bona-fide or mala-fide is irrelevant.39

34. For the instant case, it is important to note the doctrine construction ut res magis
valeat quam pereat40 i.e. a statute or any enacting provision therein must be so
construed as to make it effective and operative, the same cannot hold true if an Act is
enacted by a legislature which was not competent to do so.

35. In the eyes of this court, the Act preserves the time-immemorial practice of
Sallikkatu, which is apparently the culture of Chola and the same is made to ‘preserve
the culture’ and in no way intended to ‘prevent cruelty to animals’. Thus, it falls under
Entry 97, and comes under Residuary Powers of the Parliament. Therefore, we
believe that it leaves the state legislature incompetent to formulate laws on the subject
and the impugned Act ultra vires to its conferred powers.

III WHETHER THE PRACTICE OF SALLIKKATU WARRANTS CONSTITUTION

PROTECTION UNDER ART. 29 AND WHETHER THE CHOLA AMENDMENT
ACT IS SAVED BY ART. 29?

CONTENTIONS

36. It was argued that Art. 25 is thus subjected to certain restrictions, so as to balance
religion with reason. It is therefore not an absolute right and is also subject to public
order, health and morality.41

37. Further, it was submitted by the counsel that Clause (1) of Art. 2542 is subject to the
other provisions in Part III of the Constitution. 43 Right to Life of people under Art. 21
has been extended to animals, which have given them 5 fundamental freedoms.
Further, Fundamental Rights have to be balanced duly with Fundamental Duties,
which also includes Art. 51(g).44
38
See K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375.
39
K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375.
40
State of Gujarat v. R.A. Mehta, 2013 3 SCC 1.
41
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan, AIR 1963 SC 1638.
42
See Const. of Gondwana, art. 25(1).
43
Shri Venkatarama Devaru v. State of Mysore, AIR 1958 SC 255.
44
See Const. of Gondwana, art. 51(g).

10
 38. It was claimed by the petitioners that Sallikkatu does not form an ‘essential’ part of
the religious practice. It was brought to the notice of this court that though the practice
dates back to centuries, there is difference in the way the ‘sport’ was played earlier
and now. Earlier, whenever a girl child was born, a cow and a male calf were bought.
As the child grew up, the calf was nurtured. The man who tamed it in
a Sallikkatu won the woman as bride. Now, however no longer one man plays it at a
time. Rather, hundreds of men chase the bull – in an attempt to twist its tail, or hold
its hump to stop the animal. Hence, the present way of the sport being played does not
constitute essential practice.

39. The essentiality test came to be linked to the "fundamental character" of the religion.
If the abrogation of a practice does not change the fundamental nature of the religion,
the practice itself is not essential.45 Sallikkatu is played on the third day of Pongal and
is not played by every Chola. It is popular among farmers who own bulls. Hence, it
cannot be called an essential religious practice.

40. Further, it was submitted that all secular activities which may be associated with
religion but which do not relate or constitute an essential part of it may be amenable
to State regulations.46 This makes the PCA Act applicable to Sallikkatu.

41. The petitioners emphasised that crimes cannot be given Constitutional Protection and
criminal activities in name of religion should be strictly dissuaded. 47 Also, right to
practise religion must be subject to the criminal laws of the country which have a
penal character.48 Thus, making Sallikkatu a criminal offence, which cannot be
guarded by Art. 25 or 29.

42. The respondent argued that Right to Freedom of Religion and Right to Protect
Culture, are Fundamental Rights and cannot be taken away arbitrarily as they are a
part of the basic structure of the Constitution.49

43. It was further stated that Art. 18 of the UNHRD 50 reads as, “Everyone has the right to
freedom of thought, conscience and religion; to manifest his religion or belief in

45
Indian Young Lawyers Association v. State of Kerala, 2019 11 SCC 1.
46
A.S. Narayana Deekshitulu v. State of A.P, AIR 1996 SC 1765.
47
Gondwana Penal Code § 289, (1860).
48
Subhas Bhattacharjee v. State of Tripura, MANU/TR/0215/2019.
49
Kesavananda Bharati v. State of Kerela, 1973 4 SCC 225.
50
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at:
https://www.refworld.org/docid/3ae6b3712c.html [accessed 14 April 2020].

11
 teaching, practice, worship and observance.” This right cannot be abridged by any
legislation, which is further guaranteed by Art. 29. 51 Therefore, the State cannot by
any legislation abridge Fundamental Rights.

44. Additionally, it was submitted that the protection guaranteed under Art. 25 and 26 52
also extends to acts done in pursuance of religion and, therefore, contains a guarantee
for rituals and modes of worship which are an essential part of religion. 53 It is
consistently stressed by the counsel that Sallikkatu forms an integral part of the
religion of the people of Chola and is also evident form its presence in age – old
religious texts.54

45. Further, in deciding as to whether a given religious practice is an integral part of the
religion or not, the test always would be whether it is regarded as such by the
community following the religion or not.55 The people of Chola have their sentiments
attached to the practice as it is a showcase of how well the farmers have nurtured their
bulls and how strong it has grown to be. The farmers take care of the bulls all year
long to exhibit it’s pedigree during Sallikkatu.

46. It is important to note that even if the sport has changed its form, as argued by the
petitioners, what matters is the sentimental value attached and not the way it is played.
Sallikkatu is deeply ingrained as a sport in the culture of Chola. It is inextricably
linked to the to the rural agrarian customs of Chola, which the state is dutybound to
preserve.56

REASONING

47. Shri K. Santhanam remarked in the Constituent Assembly.

“Hitherto it was thought in this country that anything in the name of religion must
have the right to unrestricted practice and propagation. But we are now in the new
Constitution restricting the right only to that right which is consistent with public
order, morality and health.”57
51
Const. of Gondwana., art. 29.
52
Const. of Gondwana., art. 26.
53
Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, 2004 12 SCC 770.
54
Aravindan Neelakandan, Jallikattu: The Bull Beyond The Bullying Of ‘Activism’, SWARAJYA, (1 Jan., 2020),
https://swarajyamag.com/magazine/jallikattu-the-bull-beyond-the-bullying-of-activism.
55
Jamshed Noshir Sukhadwalla and Ors. v. Union of India, MANU/MH/3188/2018.
56
See Memorandum on Promulgation of an Ordinance Enabling Conduct of Sallikkatu by the Chief Minister of
Tamil Nadu.
57
Const. Assembly Debates

12
 48. In the present case, this court is faced with the question whether the practice of
‘Sallikkatu’ enjoys constitutional protection under the Right to Freedom of Religion
and the Right to preserve one’s culture, both of which are Fundamental Rights.

49. For answering the same, the doctrine of Harmonious Construction has to be used so as
to make the Fundamental Rights and Fundamental Duties to co–exist. The process of
harmonising different interests is within the powers of the legislature. 58 Fundamental
right of a person may have to co-exist in harmony with the exercise of another’s
fundamental rights and duties and also with reasonable and valid exercise of power by
the State in the light of the Directive Principles [hereinafter DPSP] in the interests of
social welfare as a whole.59 Fundamental Duty of people under Art. 51(g) cannot be
ignored and has to be balanced with the Right to Religion and Preserving Culture
under Art. 25 and 29.60

50. Further, the religious practice has to constitute the very essence of that religion, and
should be such, that if permitted, it will change its fundamental character. It is such
permanent essential practices which are protected by the Constitution.61

51. Another important test required at this juncture is that ‘Essential part’ of a religion
means the core beliefs upon which a religion is founded. It is upon the cornerstone of
essential parts or practices the superstructure of religion is built, without which, a
religion will be no religion.62

52. In the opinion of this court, it would be irrational to say that essential part or practice
of one's religion has changed from a particular date or by an event. Such alterable
parts or practices are definitely not the 'core' of religion where the belief is based and
religion is founded upon. There has to be unhindered continuity in a practice for it to
attain the status of essential practice.63

53. In the instant case, Sallikkatu though practiced from time immemorial, has changed
its form in recent times.64 Therefore, it no more qualifies to be an ‘integral’ part of the

58
Shayara Bano v. Union of India, 2017 9 SCC 1.
59
Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association, 2000 7 SCC 282.
60
Const. of Gondwana, art. 25 & 29.
61
Dr. Noorjehan Safia Niaz v. State of Maharashtra, 2016 5 ABR 660.
62
SSTS Saheb v. State of Bombay, 1962 (Supp) 2 SCR 496; Seshammal v. State of Tamilnadu, 1972 2 SCC 11;
Supra note 59.
63
Supra note 45.
64
Kalaiyarasan A. & Sahapedia, The Past and Present of Sallikkatu: An Overview, THE BRIDGE,
https://thebridge.in/featured/the-past-and-present-of-Sallikkatu-an-overview/.

13
 religion. Sallikkatu therefore does not enjoy the Constitutional Protection under Art.
29. We believe it is necessary that traditions and cultures have to be tested from time
to time on the touchstone of reasonableness. At times of modernisation and evolution
of culture and traditions, what might be reasonable centuries back might not be
reasonable in the twenty-first century.

54. Therefore, applying the same approach, this court has the power to ban the practice,
for being opposed to public morality and social order, even if banning Sallikkatu is a
restriction on Right to Freedom of Religion.

IV DOES THE CHOLA AMENDMENT ACT AND SEC. 28 OF THE PCA ACT ARE

CONTRADICTORY TO ART. 51A(G) AND 51A(H) AND VIOLATIVE OF ART. 14

AND 21 OF THE CONSTITUTION?

CONTENTIONS

55. The petitioner in the instant case has challenged the constitutionality of both Act and
Sec. 28 of PCA Act65 of being contradictory Art. 51A(g) and 51A(h) and thus
violative of Art. 14 and 15.
56. For the above contention the petitioner argued that when checking the
constitutionality of a law, the court should check the same on the stones of
fundamental rights along with fundamental duties and Directive principles. 66 Any law
enacted by the parliament should confirm to the duties enumerated in Part-IVA of the
constitution, that is the fundamental duties.
57. Further, it was submitted that the state as an entirety represents the citizens placed
together and thus, though the fundamental duties does not expressly cast any duty on
the state but, as every citizen is collective duty of the state, it inflicts a fundamental
duty to the state as well.67
58. Therefore, the challenged provisions are against the spirit of Art. 51A(g) and 51A(h),
which endeavors for compassion for all living beings and development of humanism
among the citizen.68

65
Prevention of Cruelty to Animals Act § 28, (1960).
66
Supra note 1.
67
AIIMS Students' Union v. AIIMS, 2002 1 SCC 428.
68
Const. of Gondwana, art. 51A(g) & art. 51A(h).

14
 59. Additionally, the said provisions directly violate Right to Life with honour and
dignity of animals as enshrined under Art. 21.69 The court had also laid down that Sec.
3 and 11 of the PCA act, read with Art. 51A(g) , gives a right to animals from
infliction of unnecessary pain and suffering by the human beings. 70 The said
provisions are violative of Art. 14 as the classification made by them fail to be a
reasonable classification.71
60. It was submitted that legitimizing the practice of animal sacrifice, which is itself cruel
in nature, is subject to such principles and thus fails to comply with the doctrine of
reasonable classification.
61. The counsel for the petitioner submitted similar reasoning for furthering the
unconstitutionality of Act, which tries to legitimize an inhumane practice which
subjects’ animals to unnecessary pain, on the grounds of Sec. 28 of the PCA Act.
62. Countering the above contentions, the counsel for the respondents emphasized that the
fundamental duties are not enforceable as they are not addressed to the state but to the
citizen and the very absence of any provision for enforcement shows that they were
never intended to be made legally enforceable.72
63. Additionally, the said provisions confirm to the doctrine of reasonable classification
are allowed as an exception to Art. 14. The counsel relied on the Judgement of J.
Bhagwati in the case of Ajay Hasia,73 where she made it clear that reasonable
classification isn’t the sole mode to justify equality and the same should be viewed in
its true sense.
64. The classification of religions with such religious practices which requires animal
sacrifice has been done to secure Right to Religion. Thus, these people stand at a
different footing than the usual equals and the made provisions provides equality to
them, in the true sense.

REASONING

65. It is true that the citizens placed together as a whole represents the state and therefore,
though Fundamental Duties are not expressly enforceable against the state, it inflicts a
fundamental duty to the state too.74

69
Supra note 1.
70
Ibid.
71
Dr. Saurabh Chaudhuri v. Union of India, AIR 2004 SC 2212.
72
Vol. 7., DD BASU, COMMENTARY ON INDIAN CONSTITUTION, (9th Ed., 2016).
73
Ajay Hasia v. Khalid Mujid, 1981 1 SCC 722.
74
Supra note 68.

15
 66. In this regard, it has been made clear that Art. 51A gives a right to move to courts for
enforcement of the duties cast on the state or its instrumentalities. 75 Therefore, the
present petitioners have an absolute right to challenge the constitutionality of the
provisions being contradictory to Art. 51A(g) and 51A(h).
67. A bare perusal of Sec. 28 of the PCA Act and the CAA Act makes it evident that the
same are contradictory to the principles of fundamental duty, that are humanism and
passion towards living being. Animals, similar to humans deserve to live and with
honour and dignity.76
68. Following the above reasoning, various High Courts of the country have time and
again tried to confer these rights to animals, who have been subject to numerous
atrocities because of human actions.77 For instance, in Narayan Dutt Bhatt,78 where
the Uttarakhand High Court used the doctrine of ‘parens patriae’ to make all citizens
the guardians of animals.
69. Therefore, we are of the view that the alleged provisions violate the right to life of the
animals and thus violate Art. 21, which they have been enshrined by an extension.
70. The doctrine of necessity, which stands as the only exception to the above right isn’t
applicable in the present scenario. This court, in the case of A. Nagaraja79 had cleared
the air regarding the non-applicability of the doctrine to the practice of Sallikkatu and
the same cannot be exempted from the ambit of Right to Life of animals.
71. Where we would like to differ from the aforementioned decisions are, that the court
had in the same case justified the Sec. 28 of the PCA Act as it caters to the necessity
arising out religious practices. We believe that the judgements following A. Nagaraja
have widely expanded the ambit of animal rights in the country.
72. Sec. 3 and 11 of the PCA Act have to be read along with Art. 51A(h) and (g). Sec. 28
of the PCA act is an ancient law and the classification made does not stand with the
spirit of modern-day democracy. The ancient law was enacted to provide protection to
religious beliefs, in line with Art. 25. But, ‘morality’, to which the Right to religious
freedom is subject to, is governed by the constitutional principles of justice, liberty,
equality and dignity.80 Thus, the legitimacy of any religious practice shall be subject
to general constitutional principles.
75
L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2.
76
Supra note 1.
77
See Karnail Singh v. State of Haryana, 2019 SCC OnLine P&H 704.
78
Narayan Dutt Bhatt v. Union of India, 2018 SCC 645.
79
Supra note 1.
80
Supra note 45.

16
 73. Therefore, we are of the view that justification of religious killing on the basis of
religious necessity and providing corresponding protection to the same under law is
against the spirit of the constitution and thus also violates Art. 21 of the same.
74. On the matter of that the alleged provisions are violative of Art. 14, we have to
scrutinize the laws on two tests which are intelligible differentia and reasonable nexus
to the object sought, respectively.
75. But, the second test requires the provisions to have nexus with the object it seeks to
achieve. In the present case, we have to look at the wider ambit of Art. 25 which
provides the Right to Religion to every individual of the nation. While, the
classification seeks to secure this Right of some religions, but it also goes to infringe
the same of some other religions.
76. Hon’ble J. R.F. Nariman, in the Sabarimala81 had clearly mentioned that Art. 25 is
available to all citizens and the same cannot be privileged to a particular person and
cannot interfere with the right of another person.
77. In the above context, animal sacrifice can be justified to secure Right to Religion for
some, but for example, Buddhism and Jainism preach peaceful and harmonious
existence of all living creatures.
78. Therefore, in our view, Sec. 28 fails to satisfy the second test of reasonable nexus and
thus can be held to be violative of Art. 14. We conclude that the said act neither
confirms to either of tests. Classification of the people of the state of Chola on the
basis of existing practice of Sallikkatu fails to be an intelligible differentia and further
cannot be justified to have nexus it seeks to achieve.
79. Thus, both the impugned provisions are unconstitutional and are liable to be struck
down. We further direct the Govt. to bring necessary change in the PCA Act to
accommodate the extension of right to life of animals and repeal Sec. 28 of the same
Act.
V WHETHER THE CHOLA AMENDMENT ACT IS DIRECTLY CONTRARY TO THE

JUDGMENT IN A. NAGARAJA AND WHETHER THE DEFECTS POINTED OUT IN

THE AFORESAID JUDGEMENT COULD HAVE SAID TO BE OVERCOME BY

ENACTING THE CHOLA AMENDMENT ACT?

REASONING

81
Supra note 45.

17
 80. The Act was enacted in light of prevailing stay by this court on the Notification by the
central government vide no. MoEF 10/17, which allowed the exhibition of bull for the
purpose of Sallikkatu.
81. This court, through its previous judgment had elaborately discussed on why and how,
Sallikkatu as a practice is cruel in nature and thus violative of Art. 21, 14, 48, 51A(g),
51A(h), Sec. 3 & 11 of the PCA act and the very spirit of modern day ecocentrism.
82. The Act, through its enactment has tried to circumscribe the restriction placed by the
PCA act by creating an exception for Sallikkatu, defining it to be an event of bulls
conducted with a view to follow tradition and culture. The same tries to amend the
central act and exclusively allow the practice of Sallikkatu.
83. We have already clarified that the Act is ultra vires to the jurisdiction of the State of
Chola and by the virtue of Art. 254(1)82 the same stand repugnant to PCA Act.
84. The PCA Act in its true sense endeavors to protect the animals from unnecessary pain
and suffering by acts of human beings.83 In the same judgement, this court took a step
towards ecocentrism and extended the Right to Life under Art. 21 of the Constitution
to animals. It was further clarified that any infliction of pain or suffering outside the
ambit of necessity described in Sec. 11(3) and 28 of the PCA Act cannot be permitted.
85. The doctrine of necessity shall be read along the lines of Art. 51A(g) of the
Constitution which warrants the citizens to have compassion towards all living
creatures.84 Every animal has the right to live with honour and dignity and thus the
practice of Sallikkatu, which involves fight between the tamers and bulls, fails to
provide the same to Bulls.
86. The Act tries to legitimize a practice which has already been held illegal judicially by
allowing the same practice as an exception. Even if keeping the above Act in isolation
from the PCA Act, which it creates an exception to, the same still clearly violates the
Right to Life of animals under Art. 21 of the constitution. A bare perusal of the same
also shows the Act to be an anthropocentric legislation and only serves human
interest, opposed to eccentric nature of the PCA Act. Therefore, this legislation is
clearly in contrary to the judicial pronouncement in A. Nagaraja case.
87. Coming to the second limb of this particular issue, this court believes that the State of
Chola has tried to circumscribe the judicial decision of A. Nagaraja by passing the
impugned Act. We believe the said act of the state legislature is directly a violation of
82
Const. of Gondwana, art. 254(1).
83
Supra note 1.
84
D.M. BROOM, ANIMAL WELFARE AND THE LAW, (Cambridge University, 1986).

18
 doctrine of separation of powers. Our constitution has indeed adopted this doctrine in
its rigid sense and stands at the core at the democratic setup. 85 The practice of
legislative overruling of judicial decisions which pertains to fundamental rights
enshrined under the constitution cannot be allowed.86
88. The judicial decision in the case of Madan Mohan Pathak vs Union of India87 had
made it clear that bringing legislation to nullify a judicial decision shall be amount to
trenching of judicial power.
89. Therefore, we are of the view that the impugned act is violative of the various
provisions of law, the judicial pronouncement in the aforementioned case and thus is
struck down from the following instance.

VI WHETHER SEC. 28 OF THE PCA ACT IS PROTECTED BY ART. 25 OF THE

CONSTITUTION OF GONDWANA?

CONTENTIONS

90. The petitioner submits that Sec. 28 of the PCA Act,1960 is not protected by the Right
to Freedom of Religion under Art. 25. To determine whether this freedom is
reasonable, it must be tested on public health, morality and other provisions of Part
III.

91. Right to life,88 now stands extended to all living beings, thus the expression "person"
has to be read contextually. Hence, life of an animal, cannot be deprived except, in
accordance with the procedure established by law.89 No law gives sanction to kill
animals.

92. The petitioner further submitted that, right guaranteed by Art. 25 is an individual right
as distinguished from the right of an organised body like a religious denomination
dealt with by Art. 26. Hence, every member of the community has the right so long as
he does not in any way interfere with the corresponding rights of others, to profess,
practise and propagate his religion, and everyone is guaranteed his freedom of
conscience.90 Animal sacrifice and religious killing cannot be considered under the
85
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549.
86
State of Tamil Nadu v. K Shyam Sunder, AIR 2011 SC 3470.
87
Madan Mohan Pathak v. Union of India, AIR 1978 SC 803.
88
Supra note 1.
89
See Maneka Gandhi v. Union of India & another, 1978 1 SCC 248.
90
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.

19
 ambit of Right of Freedom of Religion, since it interferes with the 5 basic freedoms
guaranteed to animals by the Hon’ble Court in A. Nagaraj.91

93. Human sacrifice is a religious practice in some tribes of Gondwana. If Freedom of

Religion was not to be subjected to these reasonable restrictions, then should fellow
humans be killed in the name of religion? If humans are not allowed to be killed and
have a Right to Life under Art. 21, fellow animals also have a Right to Life.92

94. Such practices are a mere superstition. The constitution cannot give protection to such
practices that find no place in religion, but are merely made by superstitious men. Co
-existence and tolerance are basic principles of all religions. Giving animal killing a
religious garb should not be supported by the law.

95. The counsel for the respondents argued that Sec. 28 of the PCA Act makes an
exception to animal killing with a view to safeguard Religious Freedom under Art. 25.
Recognising Right to freedom of Religion, the SC of United States has even allowed
religious sacrifice of animals. In the case of  Church of the Lukumi Babalu Aye v. City
of Hialeah,93 the court held that banning animal sacrifice, which is a part of the
religious ritual and belief of the Santerían community, would be violative of the First
Amendment.94

REASONING

96. No religion calls for killing of animals. Religious texts show mankind the path of how
to co – exist in this world. Rig Veda says, "Sarvae Jana Sukhino Bhavantoo". The
divine Bhagwat Geeta says, " Look upon all the living beings as your friends, for in
all of them there resides one soul. "

97. The word "as required by the religion" used in Sec. 28 of the PCA Act, 95 poses a
question as to when will the religion require to inflict such pain on the animal?
Religious practice based on a tradition cannot have an overriding effect of the Act so
enacted. With an object of safeguarding the welfare of the animal and to cure some
mischief and old age practices, so as to bring into effect some type of reform, based
on eco centric principles, recognizing the intrinsic value and worth of animals. The

91
Supra note 1.
92
Supra note 1.
93
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 US 520 (1993).
94
U.S. Const., 1st Amendment.
95
Prevention of Cruelty to Animals Act § 28, (1960).

20
 PCA Act is a welfare legislation which overshadows or overrides the so-called
traditions.

98. This court agrees that Freedom of Religion as envisaged in the Constitution is subject
to public order, morality and health. 96 "Morality" for the purposes of Art. 25 and 26 to
mean "that which is governed by a fundamental constitutional principles", 97 which
include the basic structure, the Fundamental Duties and the DPSP.

99. This Court has earlier observed that both directive principles and fundamental duties
must be kept in mind while assessing the reasonableness of legal restrictions placed
upon fundamental rights.98 Art. 48A states protection and preservation of wildlife.
Killing of animals for religious pursuits not only violates DPSP, but is also against the
Fundamental Duty to have compassion for all living being.

100. In terms of Art. 48,99 it is obligatory on the part of the State, for the expression
used is "shall", to make an endeavour of organizing agriculture and animal husbandry
on the modern and scientific lines and take steps for preserving and improving breeds
and prohibiting the slaughter of cows and other milch and drought. A restrictive
meaning cannot be given to the words 'agriculture' and 'animal husbandry'. It includes
all types of animals put to use for such purpose. Agriculture and animal husbandry are
wider concepts having different connotations.100 The Fundamental Duty on every
citizen to have compassion towards all living beings, must not be forgotten while
enacting legislations to give way to Religious freedoms.
101. The vision of the founding fathers of Constitution was liberate the society
from blind adherence to mere traditional superstitious beliefs sans reason or rational
basis as seen from Art. 17.101
102. Further, the United States’ First Amendment, it states that, ‘The State shall
make no law prohibiting the free exercise of religion.’102 Though it seems that
Freedom of Religion is absolute, it is not. The Supreme Court in Reynolds v. U.S.103
held that while the freedom to believe is absolute, the freedom to act on those beliefs

96
Const. of Gondwana, art. 26.
97
Supra note 45.
98
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat 2005 8 SCC 534.
99
Const. of Gondwana, Art. 48.
100
Supra note 48.
101
N. Adithayan v. Travancore Devaswom Board 2002 8 SCC 106.
102
Supra note 95.
103
Reynolds v. U.S, 25 L. Ed. 244; 1878 U.S.

21
 is not. Belief though can be propagated, but cannot be acted upon on the whims and
fancies of individuals. Thus, Freedom of Religion cannot be said to be absolute.
103. The Spanish Supreme Court had delved into the question of killing of bulls in
name of tradition. Hence, Fundamental Rights cannot be read in isolation and have to
be in consonance with the Fundamental Duties, DPSP’s and public policy. Right to
Freedom of Religion cannot protect animal sacrifices and killing and has to be
subjected to reasonable restrictions.
104. The court, after analysing the arguments put forth, comes to the conclusion
that Sec. 28 of the PCA Act is not protected by Art. 25, and is unconstitutional.

ORDER/VERDICT

This 5 Judge Bench, compromising of Hon’ble J. Siddhu, J. Narayani, J. Peterson, J. Patnaik

and J. Jessica Spector share the similar opinion as expressed above and agree unanimously to
pass the following conclusion. This court, after examining the facts and various authorities,
concludes that:

I While the imposition of restriction on movement vide Order No. MoEF/07/2011 was
reasonable under the circumstances but the restriction on internet vide Order no.
Home-01 stands unconstitutional and hence void.

II The Parliament of Chola has no authority to legislate on the subjects not enumerated
in any list and therefore, the Chola Amendment Act is a colourable legislation.

III The practice of Sallikattu is not an ‘essential’ religious practice and is thus, not
saved by Art. 25 and 29.

IV The Chola Amendment Act and Section 28 of PCA Act are violative of Article 14
and 21 of the Constitution of Gondwana and are thus unconstitutional.

V The Chola Amendment Act is in contrary to the precedent set in AWBI v. A.

Nagaraja judgement and fails to satisfy the defects pointed out in the same.

VI The practice of Sallikkatu and Sec. 28 of the PCA Act are violative of Art. 21 and
25 of the Constitution and thus, ultra vires the Constitution.

22
Therefore, the Chola Amendment Act and Sec. 28 of PCA Act are struck down with
immediate effect and a writ of Mandamus is issued, directing the police Commissionerate to
revoke the restriction on internet in the city of Mylangur.

___________________________J.

(JESSICA SPECTOR)

___________________________J.

(HARMINDER SIDDHU)

___________________________J.

(RADHIKA NARAYANI)

___________________________J.

(JOHN PETERSON)

___________________________J.

(ABHISEKH PATNAIK)

BAKER;

APRIL 15, 2020.

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