The What, Why And How of The Jalikattu Judgment by The Supreme Court

ON Thursday, a five-judge Constitution Bench of the Supreme Court, in the case of Animal Welfare Board of India & Ors versus Union of India & Ors, unanimously upheld the legislation passed by the three states of Tamil Nadu, Karnataka and Maharashtra that legitimatise the bovine sports of jallikattu, kambala and bullock-cart racing.

The Constitution Bench, headed by Justice K.M. Joseph and comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravi Kumar, held that the legislative instruments of the states substantially changed the manner in which such sports are conducted, where a large part of pain-inflicting practices are “diluted”.

Background

Jallikattu, a rural bull-taming sport, became contested because of the cruelty inflicted on participating bulls.

An investigation by People for the Ethical Treatment of Animals (PETA), an animal rights non-profit organisation, found that jallikattu bulls undergo agonising pain. Between January and June 2017, 15 people and five bulls died and nearly 2,000 spectators were injured due to jalikattu, according to the PETA report.

Another investigative report by Elsa Foundation, a non-profit charitable trust that focuses on issues impacting biodiversity and the rights of animals, revealed that 100 persons and at least 20 bulls have been killed at jallikattu events since 2017.

Kambala, another sport contested before the court, is a buffalo racing sport that involves a pair of buffaloes tied to the plough and anchored by one person. It is widely practised in the coastal districts of Dakshina Kannada and Udupi in Karnataka.

According to The Hindu, the challenge to jalikattu started in 2007 when the division Bench of the Madras High Court stayed the order of a single judge of the high court banning the practice, and allowed jalikattu. This was challenged before the Supreme Court through a special leave petition.

While the Supreme Court initially stayed the order of the high court’s division Bench, it eventually lifted the ban in 2008 with a caveat that unnecessary pain must not be inflicted upon bulls.

Subsequently, the Tamil Nadu Regulation of the Jallikattu Act, 2009 was passed, which was challenged by PETA before the Supreme Court. In 2011, the then Ministry of Environment and Forests (MoEF)— which was christened Union Ministry of Environment, Forest and Climate Change (MoEF&CC) in 2014— issued a notification under Section 22(ii) of the Prevention of Cruelty to Animals Act, 1960, whereby bulls were declared as non-performing animals.

In 2014, the Supreme Court, in Animal Welfare Board of India (AWBI) versus A. Nagaraja & Ors (2014) banned jallikattu and bullock-cart race in Maharashtra as contrary to the provisions of Sections 3 (duties of persons having charge of animals), 11(1)(a) and (m) (treating animals cruelly), and 22 (restriction on exhibition and training of performing animals) of the 1960 Act. Thereafter, the Tamil Nadu government filed a review petition in Chief Secretary to the Government Chennai, Tamilnadu & Ors etc versus AWBI & Ors (2016), which was subsequently rejected.

On January 7, 2016, the MoEF&CC modified its 2011 notification allowing bulls to be performing animals for the purpose of jallikattu and other sports. The notification was challenged before the Supreme Court by the AWBI, PETA and others, including the Federation of India Animal Protection Organisation for non-compliance with A. Nagaraja. They were successful in obtaining a stay.

In January 2017, in the backdrop of huge protests, the government of Tamil Nadu enacted the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017, which allowed jallikattu in the state under the 1960 Act. It also issued the Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules, 2017. In view of this, the 2016 notification of the MoEF&CC was withdrawn by the Union government. Petitions were filed before the Supreme Court to put a stay on the implementation of the 2017 Act and Rules, but the court refused to entertain them.

In 2016, the High Court of Karnataka passed an interim order banning the practice of kambala on a plea by PETA alleging animal cruelty. In January 2017, however, the high court stayed the ban until the Supreme Court decides on the jallikattu petitions. Thereafter in February 2017, the Prevention of Cruelty to Animals (Karnataka Second Amendment) Bill, 2017 was passed that sought to exempt kambala and bullock-cart racing from the ambit of the 1960 Act. In Karnataka, a notification dated December 17, 2015 was issued to regulate the conduct of the sport.

In Maharashtra, the Prevention of Cruelty to Animals (Maharashtra Amendment) Bill, 2017, to allow bailgada sharyat or bullock-cart racing, and the Maharashtra Prevention of Cruelty to Animals (Conduct of Bullock Cart Race) Rules, 2017 were enacted for conducting the sport.

Subsequently, a Supreme Court division Bench of the then Chief Justice of India, Dipak Misra and Justice Rohinton Fali Nariman in The AWBI & Ors versus UOI & Ors (2018) referred the matter to a Constitution Bench in view of the substantial questions relating to the interpretation of the Constitution. It formed five questions for adjudication, including whether the 2017 Tamil Nadu state amendment could be protected under Article 29 of the Constitution, and whether it was in direct contravention of A. Nagaraja & Ors.

On December 8 last year, the Constitution Bench reserved its judgment on the batch of petitions challenging the practice of jallikattu and other similar practices, comprising the amendments made by Tamil Nadu, Karnataka and Maharashtra to the 1960 Act.

Fundamental rights for animals

On the question of whether animals have rights, the judgment, authored by Justice Bose, points out the petitioners’ argument that animals should be accorded the protective umbrella under Article 21 of the Constitution since sentient beings have the natural right to live with dignity without any infliction of cruelty. It further highlights the contention that animals, as legal entities, have a distinct persona with corresponding rights, duties and liabilities similar to a legal person. Our legal system is both organic and dynamic in nature and with the passage of time, the law must change, the judgment quoted the petitioners’ argument.

The judgement discussed the legislative approach to the rights of animals by imposing restrictions on the manner in which human beings deal with animals, that is, by imposing a duty on the State to organise agriculture and animal husbandry on modern and scientific lines, to preserve and improve breeds, and to prohibit the slaughter of cows, calves and other milch and draught cattle.

On conferring fundamental rights on animals, although the Bench acknowledged that Article 21 grants protection to ‘a person’ as opposed to ‘a citizen’, it rejected the notion of bringing bulls within the protective mechanism of Article 21. “We have our doubts whether detaining a stray bull from the street against its wish could give rise to the constitutional writ of habeas corpus or not,” the judgment said.

The Bench, thereby, held that the Constitution does not recognise any fundamental rights for animals, and decided to leave the question for determination by the appropriate legislative body.

Focus on the degree of pain and suffering 

The court delved into the petitioners’ arguments that since bulls lack the natural ability to run like a horse, the seasonally held sport is contrary to the provisions of the 1960 Act. The judgment observed that the 1960 Act categorises several activities which cause pain and suffering, and proceeds on the basis of perceived human necessity to employ animals in certain load-carrying and entertainment activities. It ultimately rejected the contention of the petitioners that the three states’ Amendment Acts were unreasonable.

The judgment gave the example of the Performing Animals (Registration) Rules, 2001, through which horse racing is allowed, although some form of pain and suffering is caused to horses, who are also sentient animals. It also gave the instance of vegetarianism, whose proponents could argue that slaughtering animals is not necessary as human beings can survive without animal protein.

The judgment states, “The focus shifts from causing pain and suffering to the degree of pain and suffering to which a sentient animal is subjected to while being compelled to undertake certain activities for the benefit of human beings.”

Further, the judgment observed that the court’s jurisdiction does not extend to providing absolute protection to animals from any manner of infliction of pain and suffering.

Bovine sports as part of culture and tradition

On the question of whether bovine sports are part of culture and tradition, the Bench held that the decision falls beyond the jurisdiction of the court. In acknowledging that a tradition or culture cannot override the provisions of a statute, the court accepted that jallikattu was contrary to the provisions of the 1960 Act and that is why the practice had been made impermissible.

The Bench, however, rejected the view adopted in A. Nagaraja that the performance of jallikattu is not a part of the cultural heritage in Tamil Nadu, and opined that sufficient material was not placed to establish that point before the court in A. Nagaraja. The judgment upheld the legislature’s view and referred to the preamble to the Amendment Act, wherein jallikattu is described as part of the culture and tradition of Tamil Nadu.

The Constitution Bench further emphasised that the Amendment Act introduced a new regime for conducting sports. It held that since the Amendment Act has received presidential assent, it is not flawed.

The Amendment Acts bring “substantial change” 

The judgment states that the expressions ‘jallikattu’, ‘kambala’ and ‘bull-cart race’, under the Amendment Acts of the three states, have undergone “substantial change” in the manner they used to be practised or performed. It further states that the factual conditions that prevailed when A. Nagaraja was pronounced cannot be equated with the present situation.

The judgment expresses satisfaction that a large part of pain-inflicting practices are “substantially diluted” with the introduction of the statutory instruments. “The Amendment Act read with the Rules seek to substantially minimise the pain and suffering and continue with the traditional sports,” the judgment said.

The petitioners’ argument that the Amendment Acts were merely a piece of colourable legislation passed with the intention to override judicial pronouncement was rejected by the court. It based its reasoning on the grounds that it cannot strike down a law on “apprehension” of its abuse and that after the amendments, all three bovine sports assume different characteristics in their performance and practice.

The legality of the Amendment Acts

By referring to Item 17 of the concurrent list in the Seventh Schedule of the Constitution that provides for ‘Prevention of Cruelty to Animals’, the judgment held that the state legislatures enjoyed the jurisdiction to pass the Amendment Acts. Further, it reiterated that since the nature and manner in which the offending activities of the sport were conducted are altered due to the Amendment Acts and its consequential Rules and Notifications, the Amendment Acts are not void.

The Bench opined that the Rules and the Notification issued under the Amendment Acts of Tamil Nadu and Maharashtra should be read as an integral part of the statute.

The Bench directed that the law contained in the Amendment Acts, and associated Rules and Notification shall be strictly enforced by the authorities. In particular, it directed district magistrates or such competent authorities to ensure strict compliance.

On the contention of the petitioners that besides bulls, jallikattu is also dangerous to humans, and many participants and spectators who have sustained an injury in the course of such events, the judgment referred to A. Nagaraja and held that such human injuries are dealt with by the principle of common law, voluntary non fit injuria (if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict).

Reactions of animal rights advocates 

Alokparna Sengupta, managing director of Humane Society International/India, the Indian chapter of the world’s largest animal protection organisation, has expressed sheer disappointment on behalf of other animal protection advocates on the judgment. On the current regulations, Sengupta stressed that such regulations fail and will continue to fail in preventing pain and suffering caused to the participating bulls. According to Sengupta, jallikattu, kambala and bullock-cart racing force animals to act against their nature. Causing bulls fear, distress and pain are intrinsic to the sports, Sengupta contended.

Anusha Murthy, senior legal counsel of PETA India is reported to have said in a statement that jallikattu favours cruel events that have consistently caused the suffering and death of animals as well as Tamil men and children.

Gauri Maulekhi, trustee of People for Animals, one of India’s largest animal welfare organisations, expressing disappointment with the judgment, saying that it dismissed the lives of countless animals, and of the people who lost their lives due to the agonising injuries from the brutal practice of jallikattu. “Morality cannot be compromised in the name of culture,” Maulekhi remarked in a public statement.

Sengupta stated, “We will continue to urge the government of India and the state governments to ensure that animal and human victims of these redundant and cruel activities are not forgotten and cruelty to animals is not allowed under the guise of culture.”

According to Murthy, similar games involving animals ended hundreds of years ago in the rest of the world. Countries around the world are prohibiting animal circuses and other cruel events involving animals, she pointed out.

Click here to view the Supreme Court’s full judgment in The AWBI & Ors. versus Union of India & Anr.