Gauhati High Court
Page No.# 1/23 vs The State Of Assam And 2 Ors on 17 December, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/23
GAHC010017262024
2024:GAU-AS:13103
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/466/2024
PEOPLE FOR THE EHICAL TREATMENT OF ANIMALS (PETA) INDIA
REPRESENTED BY ONE OF ITS DIRECTOR, KHUSHBOO GUPTA, AGED
ABOUT 35 YEARS, WIFE OF SHUBHAM SACHDEVA, PRESENTLY WORKING
AS DIRECTOR OF ADVOCACY PROJECTS IN PEOPLE FOR THE ETHICAL
TREATMENT OF ANIMALS (PETA), INDIA, HAVING ITS REGISTERED
OFFICE AT F-110,1ST FLOOR, JAGDAMBA TOWER, PLOT NO. 13,
COMMUNITY CENTRE, PREET VIHAR, NEW DELHI- 110092.
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF ASSAM,
BLOCK-C, 3RD FLOOR, ASSAM SACHIVALAYA, DISPUR- 781006,
GUWAHATI
2:COMMISSIONER AND SECRETARY
HOME AND POLITICAL DEPARTMENT
GOVERNMENT OF ASSAM
2ND FLOOR
CMS BLOCK
ASSAM SECRETARIAT
DISPUR
GUWAHATI-6
3:ANIMAL WELFARE BOARD OF INDIA
THROUGH DR. O.P. CHAUDHARY
CHAIRMAN
AWBI AND JOINT SECRETARY
MOFAHD
42 KM STONE
DELHI-AGRA HIGHWAY
NATIONAL HIGHWAY-2
Page No.# 2/23
VILLAGE- SEEKRI BALLABHGARH
FARIDABAD
HARYANA- 121004 INDI
Linked Case : WP(C)/468/2024
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS PETA INDIA
REPRESENTED BY ONE OF ITS DIRECTOR
KHUSHBOO GUPTA
AGED ABOUT 35 YEARS
WIFE OF SHUBHAM SACHDEVA
PRESENTLY WORKING AS DIRECTOR OF ADVOCACY PROJECTS IN
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS (PETA)
INDIA
HAVING ITS REGISTERED OFFICE AT F-110
1ST FLOOR
JAGDAMBA TOWER
PLOT NO. 13
COMMUNITY CENTRE
PREET VIHAR
NEW DELHI- 110092
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY ITS CHIEF SECRETARY
GOVERNMENT OF ASSAM
BLOCK-C
3RD FLOOR
ASSAM SACHIVALAYA
DISPUR- 781006
GUWAHATI
2:COMMISSIONER AND SECRETARY
HOME AND POLITICAL DEPARTMENT
GOVERNMENT OF ASSAM
2ND FLOOR
CMS BLOCK
ASSAM SECRETARIAT
DISPUR
GUWAHATI-6
3:ANIMAL WELFARE BOARD OF INDIA
THROUGH DR. O.P. CHAUDHARY
CHAIRMAN
Page No.# 3/23
AWBI AND JOINT SECRETARY
MOFAHD
42 KM STONE
DELHI-AGRA HIGHWAY
NATIONAL HIGHWAY-2
VILLAGE- SEEKRI BALLABHGARH
FARIDABAD
HARYANA- 121004 INDIA
------------
For the Petitioner(s) : Mr. D. Das, Senior Advocate
Mr. D.J. Das, Advocate
For the Respondent(s) : Mr. B.J. Talukdar, Addl. Senior Govt. Advocate
Date of Hearing : 17.12.2024
Date ofJudgment : 17.12.2024
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. D. Das, the learned Senior Counsel assisted by Mr. D.J. Das,
the learned counsel appearing on behalf of the petitioners in both the writ
petitions. Mr. B.J. Talukdar, the learned Additional Senior Government
Advocate appears on behalf of the respondent Nos. 1 and 2.
2. It is seen from the materials on record that service has been duly affected
upon the respondent No. 3 but none has appeared on behalf of the respondent
No. 3.
3. People for Ethical Treatment of Animals (PETA) is the writ petitioner in
both the writ petitions. The writ petitioner claims to be a Charitable Company
incorporated under Section 25 of the Companies Act, 1956 and continues to
operate under the Companies Act, 2013. The writ petitioner further claims to be
a reputed organization working for the promotion and protection of animal
Page No.# 4/23
welfare and animal rights in India. In both the writ petitions, the writ petitioner
had challenged the Notification dated 27.12.2023 whereby the Governor of
Assam have issued an SOP/guidelines to ensure that buffalo and other
traditional birds fight are allowed to be organized in all places where it has been
traditionally organized with specific provision for regulation by the District
Administration to ensure that cruelty to animals is not allowed to be inflicted.
4. In WP(C) No. 466/2024, the Notification dated 27.12.2023 is challenged on
the aspect pertaining to the Buffalo Fight (Moh-Juj) whereas in WP(C) No.
468/2024 the Notification dated 27.12.2023 is assailed on the aspect pertaining
to Bulbuli Bird Fights.
5. Before embarking upon the adjudication as regards the legality and validity
of the Notification dated 27.12.2023, this Court finds it relevant to mention the
circumstances which led to the issuance of the impugned Notification dated
27.12.2023. It is seen from the very impugned Notification dated 27.12.2023
that the event of Buffalo Fights (Moh-Juj) is claimed by the Government of
Assam as an integral part of the culture and tradition of Morigaon and Nagaon
Districts etc., in Assam for centuries. It is mentioned therein that events of
Buffalo Fights were organized formerly during the Ahom Rule, especially in Rang
Ghar and it was a part of the Magh-Bihu festival. It is also mentioned that the
politico-economic relationship between the Tiwa Chief (Gobha Raja) of the then
undivided Nagaon District and Ahom Barphukan and the tradition of the Jonbeel
festival bridged the gap between the two historical kingdoms of Assam which
smoothened the road through which the tradition of Moh-Juj was transplanted
to undivided Nagaon district (Nagaon and Morigaon district) from Rang Ghar. It
also appears from the said impugned Notification that Historians believed that
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Moh-Juj was practiced in undivided Nagaon district in a different forms
(unorganized and unprofessional) before the 17th century and the relationship
between the Ahom and Tiwa Chief resulted in intermixing of culture and
traditions between the people of both the kingdoms, which culminated in formal
introduction of Moh-Juj in undivided Nagaon district.
6. Furthermore, it is also seen that a writ petition was filed by an
Organization in the name and style of Oitigya Mandita Ahatguri Anchalik Moh-Juj
and Bhogali Bihu Utsav Samiti along with Another which was registered and
numbered as WP(C) No. 73/2016 whereby the petitioners therein assailed the
order dated 13.01.2015 of the Officer-in-Charge of Dharamtul Police Station as
the petitioners therein were directed not to conduct the Buffalo Fights.
7. It is further noticed that vide a judgment and order dated 10.10.2023, the
learned Coordinate Bench of this Court categorically opined that the well being
of the buffaloes were adversely affected because of certain provocative acts
being committed by the organizers of the Buffalo Fights like subjecting the
buffaloes to commotions and keeping them tied and hungry for days to make
them aggressive and also on many occasions the buffaloes were forcefully fed
local intoxicants for creating anxiety etc. The learned Coordinate Bench of this
Court had observed in the said judgment that the prevalence of Buffalo Fights
during Magh Bihu was a long standing tradition in the State of Assam. On the
basis thereof, the learned Coordinate Bench of this Court while disposing of the
writ petition vide judgment and order dated 10.10.2023 at paragraph 15
observed as herein under:
“15. In the circumstance, the respondents in the State of Assam
Page No.# 6/23through the Chief Secretary to the Government of Assam to look into the
aspect of the long standing tradition of buffalo fights being performed in
the State of Assam during the festival of Magh Bihu which is a part of
the tradition as well as the aspect of the well-being of the animals being
put to jeopardy because of any provocative acts being inflicted by the
organizers and thereupon, to take a conscious decision on the matter.
Any resultant decision that may be taken be informed to the court. For
the purpose the Chief Secretary may also take note of the provisions of
the Hon’ble Supreme Court in paragraph 44(ii) of the judgment rendered
in Animal Welfare Board of India-II by referring to the paragraphs as
appears in the judgment of Animal Welfare Board of India and others v.
Union of India and another reported in (2023) SCC OnLine SC 661.”
8. From the above quoted portion of the judgment and order dated
10.10.2023, it is seen that the Chief Secretary to the Government of Assam was
directed to look into the aspect of long standing tradition of Buffalo Fights being
performed in the State of Assam during the festival of Magh Bihu which is a part
of the tradition by keeping in mind the well-being of the animals being put to
jeopardy on account of provocative acts being inflicted by the organizers and
thereupon to take a conscious decision on the matter. It was also observed that
while taking such decision, the Chief Secretary shall also take note of the
judgment of the Supreme Court in the case of Animal Welfare Board of
India and Another Vs. Union of India and Another reported in (2023),
9 SCC 322 and more particularly, to paragraph 45.2 (which corresponds to
paragraph 44(ii) in 2023 SCC OnLine SC 661).
9. It appears that basing on the said directions, a Cabinet decision was taken
on 08.12.2023 to allow the buffalo and other traditional fights to be organized in
all places where it has been done traditionally over the years and further
Page No.# 7/23
directed the Home and Political Department, Government of Assam to come up
with a comprehensive SOP to ensure that the Buffalo Fights are allowed to be
organized in all places where it had been done traditionally with specific
provisions for regulation by the District Administration to ensure that cruelty
upon the animals are not allowed to be inflicted. It is in terms with the Cabinet
decision dated 08.12.2023, the impugned Notification was issued prescribing the
Standard Operating Procedure (SOP/guideline) for Buffalo fights (Moh-Juj).
10. Let this Court now take up the aspect pertaining to Bulbuli Bird Fights.
The Bulbuli Birds in question are the red-vented bulbul species having the
scientific name Pycnonotus Cafer. It is relevant to take note of that the red-
vented Bulbul is mentioned at serial No. 63 of Part B of Schedule II to the
Wildlife (Protection) Act, 1972. From the impugned Notification dated
27.12.2023, it is seen that there appears to be no documented history about
when the Bulbuli Bird Fights started. It was however mentioned that as could be
learnt the Bulbuli Bird Fights started sometime during the reign of the Great
Ahom King Swargadeo Pramatta Singha from 1744 and 1751. It is further
mentioned that it is believed that the said Ahom King saw two Bulbul birds fight
while descending the stairs of a temple. It is on the said basis now thousands of
people from Assam converge into the town of Hajo in lower Assam’s Kamrup
District to witness the famous Bulbul fight that takes place during the Bhogali
Bihu celebrations every year.
11. In view of the Cabinet decision so taken on 08.12.2023, not only the
Buffalo Fights were allowed by the Government of Assam vide the impugned
Notification dated 27.12.2023, the Bulbuli Bird Fights were also allowed subject
to certain guidelines being laid in the impugned Notification.
Page No.# 8/23
12. In the backdrop of the above, let this Court take note of the submissions
so made by the learned counsels appearing on behalf of the parties.
13. Mr. D. Das, the learned Senior Counsel submitted that the impugned
Notification is contrary to the provisions of the Prevention of Cruelty to Animals
Act, 1960 (for short the ‘Act of 1960’) as well as the judgment of the Supreme
Court in the case of Animal Welfare Board of India Vs. A. Nagaraja and
Others reported in (2014) 7 SCC 547 . Elaborating his argument, the
learned Senior Counsel submitted that by nature the buffaloes are docile and
thrive in peaceful environment. They can only be made to fight by agitating
them through physical or mental torture and in order to make these buffaloes
fight they are beaten and tortured. In that regard, the learned Senior Counsel
drew the attention of this Court to Annexure-11 to the writ petition which is an
investigative report made by the petitioner on 24.01.2024 much after the
impugned Notification. The attention of this Court was drawn to the various
photographs enclosed to the said report which evidences as to how the
buffaloes were incited to fight with another buffalo which results in egregious
torture upon the animals.
14. Mr. D. Das, the learned Senior Counsel described on the basis of the
investigation report as to how the Buffalo Fights are carried out. He submitted
that the owners/handlers jabs the buffaloes with wooden sticks to force the
animal to fight. In the process of fighting, the buffaloes bleeds profusely. The
learned Senior Counsel further submitted that such torture so meted out upon
the buffaloes is in violation to Section 3 and 11 of the Act of 1960. He further
submitted that there is also a restriction imposed by the Central Government
vide a Notification dated 11.07.2011 in exercise of the powers under Section 22
Page No.# 9/23
(ii) of the Act of 1960. He drew the attention of this Court to Annexure-1 to the
writ petition which is the Notification whereby the Central Government had
specified various categories of animals which shall not be exhibited or trained as
performing animals with effect from the date of publication of the Notification
and it includes amongst other bulls. The learned Senior counsel further
submitted that the term “bulls” used in the Notification dated 11.07.2011 are
male buffaloes and this aspect would be seen from the fact that the Indian
Council for Agricultural Research-Central Coastal Agricultural Research Institute
have termed male buffaloes as bulls, bullocks as well as buffalo bulls. The
learned Senior Counsel therefore submitted that the impugned Notification by
which the Buffalo Fights are allowed is contrary to the Notification dated
11.07.2011.
15. The learned Senior Counsel further submitted that insofar as the Bulbuli
Bird Fights are concerned, the same is contrary to the provisions of the Wildlife
(Protection) Act, 1972 (for short “the Act of 1972”) as well as the Act of 1960.
The learned Senior Counsel submitted that the term “animal” had been defined
in Section 2(a) of the Act of 1960 to mean any living creature other than a
human being. He further submitted that these Bulbuli Birds are red-vented
bulbul species and are protected under Schedule II of Part B of the Act of 1972.
16. Mr. D. Das, the learned Senior Counsel drew the attention of this Court to
the investigation report dated 15.01.2024 as had been enclosed to the writ
petition at Annexure-P8. The learned Senior Counsel submitted that in order to
carry out these Bulbuli Bird Fights, two handlers/judges sits at the stage and
hold the birds by short ropes in order to conduct the fights. These birds are kept
hungry before the match day. Half of a banana is dangled in front of the two
Page No.# 10/23
birds by the handlers and the hungry birds peck on the banana in order to
consume, thereupon the bananas are brought closer to both the birds so that
the birds cross path. When the birds see each other pecking the banana they
attack each other. The learned Senior Counsel submitted that essentially these
two starving birds are made to attack and fight each other over food. To
demonstrate the same, the learned Senior Counsel further drew the attention of
this Court to the various photographs which were part of the report. The
learned Senior Counsel submitted that the bird’s state of health upon fighting
can be seen from the photographs. He submitted that when these birds get
tired after fighting, the handlers of the bird in question blows air inside the beak
of the birds through their mouth in order to startle them and to force them to
move and fight again. The learned Senior Counsel therefore submitted that the
manner in which the Bulbuli Bird Fights are carried out are not only in violation
to Section 3 and Section 11 of the Act of 1960, but also is in violation to Section
9 of the Act of 1972 inasmuch as there is a prohibition of hunting any wild
animal specified in Schedule I and Schedule II, except as provided in Sections
11 and 12 of the Act of 1972. The learned Senior Counsel submitted that the
term “hunting” has been specifically defined in Section 2(16) of the Act of 1972,
which includes amongst others capturing, coursing, snaring, trapping, driving or
baiting any wild or captive animal and every attempt to do so. The learned
Senior Counsel therefore submitted that an act which is otherwise prohibited
under law had been sought to be legalized by the impugned Notification. He
therefore submitted that the impugned Notification insofar as permitting the
Buffalo Fights as well as the Bulbuli Bird Fights are required to be interfered
with.
17. The materials on record do not show that there is any affidavit-in-
Page No.# 11/23
opposition filed by the Respondent Authorities justifying the impugned
Notification. However, there is an affidavit filed on 02.09.2024, by the Joint
Secretary to the Government of Assam, Home and Political Department. A
perusal of the said affidavit only shows that the Respondent Authorities have
permitted the carrying out of the Buffalo Fights (Moh-Juj) as well as the Bulbuli
Bird Fights in terms of the impugned Notification.
18. Be that as it may, Mr. B.J. Talukdar, the learned Additional Senior
Government Advocate submitted that both the Buffalo Fights (Moh-Juj) as well
as the Bulbuli Bird Fights are long standing traditions being performed in the
State of Assam during the Magh Bihu and the Bohag Bihu Festival respectively.
The learned Additional Senior Government Advocate submitted that this aspect
of the matter was duly recognized by the learned Coordinate Bench of this Court
vide the judgment and order dated 10.10.2023 passed in WP(C) No. 73/2016.
The learned Additional Senior Government Advocate further submitted that
taking into account the directions which were passed in the judgment and order
dated 10.10.2023 in WP(C) No. 73/2016, the Cabinet of the Government of
Assam had taken a decision on 08.12.2023, to permit the Buffalo Fights (Moh-
Juj) as well as the Bulbuli Bird Fights subject to following the guidelines so that
the Buffaloes as well as the Bulbuli Birds are not inflicted with any physical
cruelty. On the basis of the said Cabinet decision, the impugned Notification
dated 27.12.2023 was been issued. He further submitted that the perusal of the
guidelines mentioned in the impugned Notification would show that due care
has been taken so that no physical torture and cruelty is made upon the
Buffaloes as well as the Bulbuli Birds. He therefore submitted that taking into
account that the Buffalo Fights and the Bulbuli Bird Fights have been in
existence for ages and taking into consideration that the impugned Notification
Page No.# 12/23
duly takes care of the animals and birds, this Court ought not to interfere with
the impugned Notification.
19. This Court heard the counsels appearing on behalf of the petitioner as
well as the respondents at length and have perused the materials on record.
20. The points for determination which arises in both the writ petitions are as
herein under:
(i) Whether the Buffalo Fights (Moh-Juj) as well as the Bulbuli
Bird Fights can be permitted to be carried out as per the provisions
of law on the ground that the same have been in existence since
ages and being a part of the culture and tradition?
(ii) Whether the impugned Notification dated 27.12.2023 is liable
to be interfered with?
21. To answer the first point for determination, it is relevant to observe that
the Respondent Authorities have not placed any materials that the Buffalo
Fights (Moh-Juj) as well as the Bulbuli Bird Fights are long standing traditions in
the State of Assam. It is only in the impugned Notification as observed in the
previous segments of the instant judgment that the Buffalo Fights (Moh-Juj) and
the Bulbuli Bird Fights have been stated to be long standing traditions in the
State of Assam.
22. This Court further takes notice of the fact that in the judgment and order
dated 10.10.2023 passed in WP(C) No. 73/2016, the learned Coordinate Bench
of this Court had given certain indications to the effect that the Buffalo Fights
Page No.# 13/23
(Moh-Juj) is a long standing tradition in the State of Assam. Therefore, the
question which arises is even assuming that the Buffalo Fights (Moh-Juj) as well
as the Bulbuli Bird Fights are long standing traditions, can the said be permitted
if the provisions of law stipulate otherwise. The answer to the same can be
found from the judgment of the Constitution Bench of the Supreme Court in the
case of Animal Welfare Board of India and Other (supra) and more
particularly at paragraph 32 of the said judgment which is reproduced herein
below:
“32. In order to come to a definitive conclusion on this question, some
kind of trial on evidence would have been necessary. It is also not Court’s
jurisdiction to decide if a particular event or activity or ritual forms
culture or tradition of a community or region. But if a long-lasting
tradition goes against the law, the law courts obviously would have to
enforce the law. The learned counsel appearing for the parties, however,
have cited different ancient texts and modern literature to justify their
respective stands. In public interest litigations, this Court has developed
the practice of arriving at a conclusion on subjects of this nature without
insisting on proper trial to appreciate certain social or economic
conditions going by available reliable literature. In paras 53 and 73 in A.
Nagaraja, there is judicial determination about the practice being
offensive to the provisions of the Central statute. It would be trite to
repeat that provisions of a statue cannot be overridden by a traditional or
cultural event. This, we accept the argument of the petitioners that at
the relevant point of time when the decision in A. Nagaraja was
delivered, the manner in which Jallikattu was performed did breach the
aforesaid provisions of the 1960 Act and hence conducting such sports
was impermissible.”
(emphasis supplied on the underlined portion)
Page No.# 14/23
23. It is seen from the above quoted paragraph of the judgment of the
Supreme Court that a long lasting tradition cannot be permitted if it goes
against the law and it is the bounden duty of the law Courts to enforce the law.
In view of the above, the question therefore arises is as to whether the Buffalo
Fights (Moh-Juj) as well as the Bulbuli Bird Fights are contrary to any statute.
24. This Court finds it relevant at this stage to take note of that vide the
Constitution of India (42ndAmendment) Act, 1976, Article 48A and Article 51A
were inserted to the Constitution of India. A reading of Article 48A, cast a duty
upon the State to make an endeavor to protect and improve the environment
and to safeguard the forest and wildlife of the country. Article 51A (g) imposes a
duty upon every citizen of India to protect and improve the natural
environment, including forests, lakes, river and wildlife and to have compassion
for living creatures. It would therefore be seen that vide Article 48A, which
comes within the ambit of the Directive Principles of State Policy, a duty is cast
upon the State to apply the said principles in making laws. Similarly, every
citizen of India is endowed with the duty to protect and improve amongst others
the wildlife and to have compassion for living creatures. In addition to the
above, Article 48 of the Constitution also casts a duty upon the State to take
steps for preserving and improving the breeds and prohibiting the slaughter of
cows and calves and other milch and draught cattle. Therefore, a duty is cast
upon the State to safeguard the Buffaloes as well as the Bulbuli Birds. Similarly
a duty is cast upon every citizen of India to have compassion towards the
Buffaloes as well as the Bulbuli Birds.
25. At this stage, this Court finds it very pertinent to take note of the
investigative reports enclosed to both the writ petitions as already referred to
Page No.# 15/23
herein above. The photographs enclosed to those investigative reports, however,
portrays a very sorry state of affairs in respect to the performance of the duty of
the State to safeguard the wildlife of the country as well as in performance of
the duties by each citizen of India.
26. In the backdrop of the above, let this Court take note of the various
provisions of the Act of 1960 as well as the Act of 1972.
27. Entry 17 of List III of Schedule 7 of the Constitution of India empowers
both the Union as well as the State Government to frame laws for Prevention of
Cruelty to Animals. On the basis of the said power, the Act of 1960 was enacted
by the Parliament. The Preambular object of the Act of 1960 is to prevent the
infliction of unnecessary pain or suffering on animals and for that purpose to
amend the law relating to Prevention of Cruelty to Animals. A perusal of the
provisions of the said Act of 1960 would show that the said Act is a welfare
legislation which has to be construed bearing in mind the purpose and object of
the said Act.
28. It is well settled that in matters of welfare legislation the provisions of law
should be liberally construed in favour of the weak and infirm and the Court
should be vigilant to see that benefits conferred by such remedial and welfare
legislations are not defeated by subtle devices. It is also trite that in every case
where ingenuity is expanded to avoid welfare legislations a duty is cast upon the
Court to lift the veil and discover the true state of affairs. In the judgment of the
Supreme Court in A. Nagaraja (supra), it was categorically observed that the
Court can go behind the form and see the substance of the device and examine
whether the guidelines or the regulations so framed are to achieve some other
Page No.# 16/23
purpose than the welfare of the animals. It was further observed that
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.
29. Section 3 of the Act of 1960 would show that a duty is cast upon every
person having the care or charge of an 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. The imposition of the duty upon every
person having the care or charge of an animal confers a corresponding right
upon the animal that the person having the care or charge of the animal shall
take reasonable measures to ensure the well-being of such animal and also that
the animal would not be inflicted with unnecessary pain or suffering. In the case
of A. Nagaraja (supra), the Supreme Court observed that the term “well-
being” means state of being comfortable, healthy or happy. The question
therefore arises as to whether the persons who are in charge of the Buffaloes as
well as the Bulbuli Birds have taken due care and have ensured the well-being
of the animal which is a statutory mandate. The investigative reports enclosed
to the writ petitions as well as the pictures forming part of the investigative
report show a dismal state of affairs insofar as the well-being of the animals and
the birds in question. Under such circumstances, the manner in which the
Buffalo Fights (Moh-Juj) and Bulbuli Bird Fights are being conducted as would
be seen from the investigative reports appears to be contrary to the mandate of
Section 3 of the Act of 1960.
30. Moving forward, let this Court now take note of Section 11 of the Act of
Page No.# 17/23
1960. Section 11 generally deals with the cruelty to animals. The said Section in
no manner confers any right on the organizers to conduct Buffalo Fights (Moh-
Juj) or Bulbuli Bird Fights. Rather it is a beneficial legislation enacted for the
welfare and protection of the animals and it is also penal in nature.
31. Mr. D. Das, the learned Senior Counsel drew the attention of this Court to
Clauses (m) and (n) of Section 11(1) of the Act of 1960. The said provisions are
reproduced here in below:
“11. Treating animals cruelly.- (1) if any person-
(a)…….
(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 tier or other sanctuary) so
as to make it an object of prey for any other animal; or
(ii) incites any animal to fight or bait any other animal; or
(n) organizes, keeps, uses or acts in the management of, 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 too any place kept or used for any such
purposes;”
32. A perusal of the above quoted provisions would show that if any person
solely with a view to providing entertainment 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 of prey for another animal; or incites any animal to
Page No.# 18/23
fight or bait any other animal, the same is a penal offence. In terms with Clause
(n) if a person organizes, keeps, uses or acts in the management of, 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 admission of any other person to
any place kept or used for any such purpose, the same is also a penal offence.
The investigative reports enclosed to the writ petitions clearly shows that the
Buffaloes as well as the Bulbuli Birds are incited to fight each other. The
Buffaloes are starved, forcefully intoxicated as well as beaten up to fight against
each other. Similarly the Bulbuli Birds are starved and lured to a piece of
banana/fruit to incite the birds to fight.
33. In the opinion of this Court the Buffalo Fights and the Bulbuli Birds Fights
plays foul to the provisions of Section 11(1) (m) and (n) and under such
circumstances, as the State is the custodian of law, it is the bounden duty of the
State to protect and prevent such actions of cruelty upon the animals. However,
vide the impugned Notification, the State have permitted to go ahead with the
Buffalo Fights (Moh-Juj) as well as the Bulbuli Bird Fights thereby aiding to a
violation of statutory provisions of law.
34. This Court further finds it relevant to take note of Section 21 and 22 of
the Act of 1960. Section 21 defines the terms”exhibit” and “train”. The word
“exhibit” has been defined to mean exhibit at any entertainment to which the
public are admitted through sale of tickets and “train” means trained for the
purpose of any such exhibition and the expression exhibitor and trainer have
respectively the corresponding meanings. Section 22 empowers the Central
Government to specify an animal which shall not be exhibited or trained as a
performing animal by issuance of a Notification in the Official Gazette.
Page No.# 19/23
35. This Court therefore finds it relevant to take note of the Notification dated
11.07.2011, issued by the Ministry of Environment and Forest, Government of
India, whereby in exercise of the powers under Section 22 of the Act of 1960,
the Central Government specified the various animals mentioned therein which
shall not be exhibited or trained as performing animals with effect from the date
of publication of the Notification. Amongst the various animals the “bulls” finds
place in the said Notification.
36. Mr. D. Das, the learned Senior Counsel appearing on behalf of the
petitioner had submitted that the Indian Council for Agricultural Research-
Central Coastal Agricultural Research Institute identifies male buffaloes as bulls,
bullocks as well as buffalo bulls. The learned Senior Counsel further submitted
that in the Oxford English Dictionary “bulls” are referred to as male bovines
including male buffaloes.
37. No materials have been placed by the respondents to show that the bulls
are not male buffaloes. In the opinion of this Court, the question of exhibiting or
training a male buffalo is therefore forbidden in terms with the Notification
dated 11.07.2011 or in other words, the male buffaloes in terms with the
Notification dated 11.07.2011 cannot be used for Buffalo Fights. At this stage,
this Court further finds it relevant to mention that the another Notification dated
07.01.2016 was issued whereby certain exceptions were made in respect to
events of Jallikattu in Tamil Nadu and bullock cart races in Maharashtra,
Karnataka, Punjab, Haryana, Kerala and Gujarat. However, the said Notification
dated 07.01.2016 was withdrawn as would be seen from the order dated
31.01.2017 in the case of Compassion Unlimited Plus Action Vs. Union of India
(WP(C) No. 24/2016) of the Supreme Court.
Page No.# 20/23
38. This Court further finds it relevant to take note of the Act of 1972, which
was enacted with an object for the conservation, protection and management of
wildlife and for matters connected therewith or ancillary or incidental thereto. It
is further seen from the Statements of Objects and Reasons of the Act of 1972
that the said Act was enacted in order to stop the rapid decline of India’s wild
animals and birds, which have become a cause of great concern inasmuch as
some of the wild animals and birds have already become extinct in the country
and others are in the danger of being so. The said Act prohibits hunting, as
would be seen in Section 9 of the said Act. A perusal of Section 9 would show
that no person shall hunt any wild animal specified in Schedule I and II, except
as provided under Section 11 and 12 of the Act of 1972.
39. This Court finds it relevant to take note of Section 2(16) of the Act of
1972 which defines the term “hunting”.The same being relevant is reproduced
here in under:
“(16) “hunting”, with its grammatical variations and cognate expressions,
includes,-
(a) killing or poisoning of any wild animal or captive animal and every
attempt to do so;
(b) capturing, coursing, snaring, trapping, driving or baiting any wild or
captive animal and every attempt to do so;
(c) injuring or destroying or taking any part of the body of any such animal
or, in the case of wild birds or reptiles, damaging the eggs of such birds or
reptiles, or disturbing the eggs or nests of such birds or reptiles;”
40. A perusal of the above quoted provision would show that “hunting”
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includes capturing, coursing, snaring, trapping, driving or baiting any wild or
captive animal and every attempt to do so. It also includes injuring. This Court
has also taken note of that the Bulbuli Birds who are being made to fight are
red-vented Bulbul which appears at Serial No. 63 of Part B of Schedule II. Under
such circumstances, there is a prohibition of capturing, coursing, snaring,
trapping, driving or baiting, including causing injury to the Bulbuli Birds. In the
opinion of this Court, the State of Assam therefore ought not to have permitted
the Bullbuli Bird Fights that too when even capturing of a Bulbuli Bird is
prohibited and is an offence under Section 51 of the Act of 1972.
41. This Court further finds it relevant to take note of the judgment of the
Constitution Bench in the case of Animal Welfare Board of India (supra), in
view of the fact that the learned Coordinate Bench of this Court had directed the
Chief Secretary to arrive at a conscious decision taking into account the said
judgment. A perusal of the said judgment would show that after the judgment
was rendered in the case of A. Nagaraja (supra) and the dismissal of the
review petition, the three States of Tamil Nadu, Maharashtra and Karnataka
made amendments to the Act of 1960 and such amendment had also received
the Presidential assent. The Constitution Bench of the Supreme Court in the said
judgment held that the amendments which were carried out with the
Presidential assent minimized the cruelty to animals in the sports concerned and
once the amendment Act along with the Rules are implemented, the sports
would not come within the mischief sought to be remedied by Section 3, 11(1)
(a) (m) and (n) of the Act of 1960. In the instant case, it is relevant to take note
of that for the State of Assam there is no such amendment being made to the
Act of 1960 or even to the provisions of the Act of 1972. By way of an
impugned Notification the State of Assam have permitted carrying out of the
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Buffalo Fights (Moh-Juj) as well as the Bulbuli Bird Fights that too contrary to
the provisions of Sections 3, 11(m) and (n) and 22 of the Act of 1960; the
Notification dated 11.07.2011 as well as the provision of Section 9 of the Act of
1972. In that view of the matter, this Court answers the two points for
determination as formulated above as herein under:
(a) The Buffalo Fights (Moh-Juj) as well as Bulbuli Bird Fights,
irrespective of being long traditions and practiced in the State of
Assam cannot be permitted as it offends the statutory provisions of
the Act of 1960 as well as the Act of 1972.
(b) The impugned Notification permitting Buffalo Fights (Moh-Juj)
and Bulbuli Bird Fights is contrary to the Act of 1960 and the Act of
1972 and accordingly interfered with.
42. The writ petitions stands disposed of with the following observations and
directions:
(i) The impugned Notification dated 27.12.2023 is set
aside and quashed.
(ii) This Court directs the State of Assam to ensure
that the provisions of the Act of 1960 and more particularly,
Section 3, Section 11 (m) and (n) and Section 22 is strictly
enforced. In addition to that, the State of Assam is further
directed to take steps for enforcing Section 9 of the Act of
1972.
(iii) This Court further observes and directs that the
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judgment in the case of A. Nagaraja (supra), as well as
the Animal Welfare Board of India (supra) , are law
within the meaning of Article 141 of the Constitution of
India. The State of Assam is bound to confirm with the law
laid down in the said judgments.
43. Before parting with the record, this Court finds it relevant to observe as
regards a submission made by the learned Additional Senior Government
Advocate, Assam to the effect that the judgment passed herein should not
preclude the State of Assam to take appropriate actions similar to what the
States of Tamil Nadu, Maharashtra and Karnataka had taken. This Court would
not like to make any comment on the said submission as it relates to something
which is absolutely within the domain of the State Legislature.
JUDGE
Comparing Assistant