Tamil Nadu Act permitting jallikattu is a colourable exercise, petitioners tell the Supreme Court

A Supreme Court Constitution bench, which began hearing petitions challenging Tamil Nadu and Karnataka Acts on the ground that they violated a 2014 judgment of the Court, is of the prima facie view that the Acts did not suffer from the vice of lack of legislative competence.

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A five-judge Constitution Bench of the Supreme Court on Thursday began hearing a batch of petitions challenging the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 and the Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules of 2017 by the Tamil Nadu government, to allow jallikattu events in the state. The Tamil Nadu Act and the Rules, according to the petitioners, sought to override the decision of the Supreme Court in 2014 that banned the use of bulls for jallikattu.

The bench comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar is also hearing the challenge to similar legislation enacted by the Karnataka Vidhan Sabha permitting 'Kambala' – an annual festival celebrated in the Dakshina Kannada district of Karnataka, and the Maharashtra Government allowing bullock cart racing.

Senior advocate Siddharth Luthra, appearing for one of the petitioners, argued that all three enactments do not deal with or prevent the cruelty to the animals. Luthra added that the impugned legislation fly in the face of the decision of the Supreme Court in Animal Welfare Board of India versus A. Nagaraja and Ors. (2014).

In the said decision, the Supreme Court held that jallikattu, bullock cart race and such events per se violate Sections 3, 11(1)(a) and 11(1)(m)(ii) of the Prevention of Cruelty to Animals Act, 1960 ('PCA Act'). It also held that bulls could not be used as performing animals, either for jallikattu events or bullock cart races in Tamil Nadu, Maharashtra or elsewhere in the country. Luthra also submitted that these three enactments under challenge are destructive of the PCA Act.

In 2016, the Union Government issued a notification allowing the bull taming sport, jallikattu in Tamil Nadu. While the petitions challenging the notification were pending before the Supreme Court, the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017, which received Presidential assent on January 31, 2017, was passed. A division bench of the Supreme Court, comprising the then Chief Justice of India, Dipak Misra and Justice R.F. Nariman on February 2, 2018, referred the matter to a larger bench to decide:

• Is the Tamil Nadu Amendment Act referable, in pith and substance, to Entry 17, List III of the Seventh Schedule to the Constitution, or does it further and perpetuate cruelty to animals; and can it, therefore, be said to be a measure of prevention of cruelty to animals? Is it colourable legislation which does not relate to any Entry in the State List or Entry 17 of the Concurrent List?
• The Tamil Nadu Amendment Act states that it is to preserve the cultural heritage of the state of Tamil Nadu. Can the impugned Tamil Nadu Amendment Act be stated to be part of the cultural heritage of the people of Tamil Nadu so as to receive the protection of Article 29 of the Constitution?
• Is the Tamil Nadu Amendment Act, in pith and substance, to ensure the survival and well-being of the native breed of bulls? Is the Act, in pith and substance, relatable to Article 48 of the Constitution?
• Does the Tamil Nadu Amendment Act go contrary to Articles 51A(g) and 51A(h), and could it be said, therefore, to be unreasonable and violative of Articles 14 and 21 of the Constitution?
• Is the impugned Tamil Nadu Amendment Act directly contrary to the judgment in A. Nagaraja and the review judgment dated November 16, 2016 in the aforesaid case, and whether the defects pointed out in the aforesaid two judgments could be said to have been overcome by the Tamil Nadu legislature by enacting the impugned Tamil Nadu Amendment Act?

Attacking the legislation, Luthra argued that they were colourable legislation to perpetuate cruelty. A state government had no power to enact the legislation under the State List of the Seventh Schedule, and thus they chose the Concurrent List to bring legislation to prevent animal cruelty, which in fact, is perpetuating the cruelty.

Referring to the title of the Prevention of Cruelty Act, Justice Joseph said, "Title can mean anything. Prevention of cruelty does not mean it is absolute. When you are talking of legislative competence, it is there. We only need to understand whether it is contrary to the 2014 judgment." 

Reading from A. Nagaraja, Luthra emphasised the observation of the court that had said, "Section 38 of the PCA Act confers rule-making powers on the Central Government and, in exercise of its rule-making powers, the Central Government made the Performing Animal Rules, 1973 and the Performing Animals (Registration) Rules, 2001 and thrust of all the substantive and procedural provisions is the welfare and well-being of the animal and the duties and obligations of the persons who are in-charge of the animals and also to safeguard the rights conferred on the animals. Rule 8(vii) specifically refers to animals' "basic natural instinct" and cautions that the basic natural instinct of the animals be protected and be not exploited."

Luthra thus submitted that the state legislation is contrary to the decision of the Supreme Court in 2014. The arguments of Luthra remained inconclusive for the day. The bench will hear the matter on Tuesday next week.

In the 2014 judgment, the Supreme Court declared the Tamil Nadu Regulation of Jallikattu Act, 2009 repugnant to the PCA Act, which is a welfare legislation. The court had held "The [2009 Act] is an anthropocentric legislation enacted not for the welfare of the animals, unlike PCA Act, which is an eco-centric legislation, enacted to ensure the well-being and welfare of the animals and to prevent unnecessary pain or suffering of the animals. The State Act basically safeguards the interest of the organizers and spectators while conducting the event of Jallikattu. "

The sport was banned between 2014 and 2016 until the state government passed the law which is under challenge before the Supreme Court. The Tamil Nadu government has defended its law, telling the Supreme Court that jallikattu is both a religious and cultural event celebrated by the state's people, and its influence extends beyond the confines of caste and creed