The Supreme Court has reserved its judgment on the challenges to state amendments allowing Jallikattu and other rural sports. It extensively heard arguments, from the perspective of cultural and religious rights, to preserving the native breed, and to unnecessary pain or suffering caused to the bull, which is not structured as a fighting animal.
ON December 8, a Supreme Court constitutional bench headed by Justice K.M. Joseph and comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravi Kumar reserved its judgment on a batch of petitions challenging the practice of Jallikattu and other similar practices in the case of Animal Welfare Board of India & Ors versus Union of India & Ors.
What is the practice of Jallikattu?
Jallikattu is a Tamil word, which comes from the term ‘Callikattu’, in which “calli” means coins and “kattu” means a package. Jallikattu refers to silver or gold coins tied on bulls’ horns. It is a bull-taming sport having ancient significance. In this, a bull is released into a field and whoever is able to take control of the bull by grabbing the large hump on its back wins the sport. It is typically practiced as a part of Pongal celebrations in Tamil Nadu on Mattu Pongal day, the third day of the four-day Pongal festival.
What is the controversy surrounding this rural sport?
The rural sport eventually became contested because of the cruelty inflicted on bulls. An investigation conducted by People for the Ethical Treatment of Animals (‘PETA’), an animal rights non-profit organisation, found that jallikattu bulls’ tails are twisted and bitten. The exhausted bulls are yanked by nose ropes, causing excessive bleeding, and the participants often break the bulls’ tailbones, causing 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.
In 2020, after some regulations were in place by the Tamil Nadu government, PETA found that the deliberate infliction of violence on bulls continued. There are regular cases of exploitation of bulls’ inherent nervousness by triggering their “fight or flight” response. PETA called for reinstating the ban on the practice (more on the ban in the next section).
Jallikattu refers to silver or gold coins tied on bulls’ horns. It is a bull-taming sport having ancient significance. In this, a bull is released into a field and whoever is able to take control of the bull by grabbing the large hump on its back wins the sport.
In 2022, one person died and more than 80 suffered injuries in Madurai’s first bull-taming event. It is often considered inherently dangerous as it is nearly impossible to hold the sport incident-free because injuries, and often death, are inevitable consequences of this.
What is the background of the petitions challenging jallikattu?
According to The Hindu, it started in 2007 when the division bench of the Madras High Court stayed the order of a single-judge banning the practice, and allowed jallikattu. This was then challenged before the Supreme Court through a special leave petition. The court stayed the order of the high court’s division bench but eventually lifted the ban in 2008 with a caveat that unnecessary pain must not be inflicted upon bulls.
Soon, the Tamil Nadu Regulation of the Jallikattu Act, 2009 was enacted. This was challenged by PETA before the Supreme Court. In 2011, the Union Ministry of Environment, Forest and Climate Change (‘MoEFCC’) issued a notification under Section 22(ii) of the Prevention of Cruelty to Animals Act, 1960 (‘PCA Act’), whereby bulls were declared as non-performing animals.
In 2014, the Supreme Court in Animal Welfare Board of India versus A. Nagaraja & Ors. (2014) banned jallikattu and found that the 2009 Act was repugnant to the PCA Act. In this case, the Animal Welfare Board of India (‘AWBI’), a statutory body established under Section 4 of the PCA Act for animal welfare, argued that bull and bullock cart races conducted in Tamil Nadu and Maharashtra, respectively, inherently violate the provisions of the PCA Act, particularly, 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 PCA Act.
It also told to the court that bulls involved in jallikattu and bullock-cart races are not “performing animals” within the meaning of Sections 21 (“exhibit” and “train” defined ) and 22 of the PCA Act, and that the notification of the MoEFCC, in any view, was justified. In essence, the bulls which are forced to participate are subjected to pain and suffering, which clearly violates sections 3, and 11(1)(a) and (m) of the PCA Act read with Articles 51A(g) and 21 of the Constitution. Whereas, the organisers and the Tamil Nadu government argued that these rural sports are closely associated with their culture and traditions. The state of Maharashtra did not take a stand.
Subsequently, the Supreme Court division bench of the then Chief Justice of India, Dipak Misra and Justice Rohinton Fali Nariman in The Animal Welfare Board of India & Ors versus UOI & Ors (2018) referred the matter to a Constitution bench as they felt that it involved substantial questions relating to the interpretation of the Constitution. It formed five questions for adjudication, including whether the 2017 Tamil Nadu state amendment can be protected under Article 29 of the Constitution and whether it is in direct contravention with A. Nagaraja & Ors.
Are there any similar cultural sports challenged before the Supreme Court?
Yes. Kambala is buffalo racing that is widely practiced in coastal districts of Dakshina Kannada and Udupi in Karnataka. It involves a pair of buffaloes tied to the plough and anchored by one person. They are made to run in parallel muddy tracks.
An investigation conducted by People for the Ethical Treatment of Animals (‘PETA’), an animal rights non-profit organisation, found that jallikattu bulls’ tails are twisted and bitten. The exhausted bulls are yanked by nose ropes, causing excessive bleeding, and the participants often break the bulls’ tailbones, causing agonising pain.
The High Court of Karnataka, in 2016, passed an interim order banning the practice of kambala on a plea by PETA alleging animal cruelty. Thereafter, in January 2017, the high court stayed the ban until the Supreme Court decides on the jallikattu petitions. However, in February, Karnataka passed the Prevention of Cruelty to Animals (Karnataka Second Amendment) Bill, 2017. The Bill sought to exempt kambala and bullock-cart racing from the ambit of the PCA Act.
In Maharashtra, the Prevention of Cruelty to Animals (Maharashtra Amendment) Bill, 2017, allowed bailgada sharyat or bullock cart racing. However, the Bombay High Court stayed its implementation. In December 2021, the Supreme Court set aside the high court order. Maharashtra had argued that similar practices are going on in Karnataka and Tamil Nadu. Senior advocate Anand Grover, representing the FIAPO, opposed the plea and argued that the state cannot claim parity with other states because the high court in this case had put a stay on the implementation of the amendment.
Challenges to both amended acts were also heard by the constitution bench.
Senior advocate Siddharth Luthra, appearing for some petitioners, challenged all three state amendments on the grounds of colourable legislation. He told the bench that the objective of the parent act was the prevention of cruelty, whereas the amendments only perpetuate cruelty, and this cannot be done through Entry 17, List III of the Seventh Schedule of the Constitution. Justice Joseph pointed out that the legislature may have competence but what needs to be determined is whether these are contrary to the A. Nagaraja.Luthra continued his arguments that all three amendments of the states do not either deal with or prevent cruelty. They are in the face of A. Nagaraja, and are contradictory and destructive of the main objects of the principal central act.
Further, the court was curious to know whether animals have liberty within the spheres of Article 21 of the Constitution when they cannot make a choice. Luthra responded to this by saying that liberty is inherent and when the Constitution recognises that cruelty cannot be perpetuated to animals, it recognises the rights of animals. That is why such practices, irrespective of whether they are alleviated as cultural rights, cannot be allowed under Articles 14 and 21 of the Constitution, read with Articles 48, 48A, and 51A(g) & (h). It is also contrary to sections 3 and 11(1)(m) and (n) of the PCA Act. However, the bench indicated that this relates to the complex area of rights and it may be better to leave it to the legislature.
Senior advocate Shyam Divan, appearing for PETA, confined his arguments to the challenge to the Tamil Nadu amendment act. He also argued on the exercise of colourable legislation and that the impugned act is contrary to the principle of separation of powers. He told the bench that the issues of cruelty in jallikattu and similar rural sports has already attained finality. Lastly, Divan referred to the doctrine of progressive realisation of rights or the principle of non-retrogression, according to which rights move forward. Divan answered one of the questions posed by the bench, in the previous hearing, on what happens if the Parliament repeals the PCA Act. He answered that the constitutional protection and the principles laid down in A. Nagaraja is enough as far as jallikattu is concerned.
Divan’s arguments also concerned the violation of Article 21 because people die and suffer from injuries in jallikattu. He also told the bench that bulls are not structured to fight, and converting them to fighting animals amounts to cruelty within the context of section 11 of the PCA Act. However, Divan disagreed with Luthra’s argument on legislative competence and told the court that this falls within Entry 17 of List III of the Seventh Schedule.
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 PCA Act. It also issued the Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules, 2017.
Senior Advocate V. Giri, representing one of the petitioners, also confined his arguments to jallikattu. He submitted that there is no material available to show that jallikattu is a part of cultural heritage since time immemorial.
Senior advocate Anand Grover, appearing for FIAPO, told the bench that A. Nagaraja put the dignity of animals on a high pedestal. He argued that Article 21 can be invoked against jallikattu in the aspect of dignity. Grover referred to the Supreme Court’s judgment in Francis Coralie Mullin versus The Administrator, Union Territory of Delhi & Ors (1981), in which the court said that human dignity is also a part of personal liberty; he submitted that like Francis Coralie Mullin, A. Nagaraja evolves the contour of animal rights in the aspect of dignity. He told the bench that sentinel animals are similar to human beings: they have a place in nature, and their place in nature is crucial to human beings.
The bench seemed convinced with the argument that the person in Article 21 is interlinked with animals and the environment. However, the court pointed out that animal meat is consumed and animals do not have the agency to differentiate between voluntary and involuntary acts. Regarding how the difference of benefit is justified in when animals are used for entertainment in jallikattu as opposed to when they are consumed as food, Grover said that the difference has been made by PCA Act and A. Nagaraja.
Senior advocate Krishnan Venugopal, appearing for one of the petitioners, challenged the amendment on the ground that there is no legislative competence at all, irrespective of the presidential assent, to pass it since it cannot be traced to Entry 17 of List III. The amendment cannot also be traced to Entries 14 and 15 of List II either. Further, he told the court that after A. Nagaraja found that jallikattu is necessarily cruel, any law which permits this cannot be traced to Entry 17. Thus, this cannot, in pith and substance, be related to Entry 17.
Senior advocate Anil V. Anturkar, appearing for some petitioners in Maharashtra, argued that the term ‘unnecessary’ used in section 3(2) of the PCA Act alongside ‘pain or suffering’ is read as unnecessary pain or unnecessary suffering caused to the animal. According to him, the term ‘unnecessary’ is an important phraseology, and this has been deliberately missed out in the state amendment. This will mellow down the impact of the provision, he conteded.
What are the arguments for this practice?
Senior advocate Kapil Sibal, on behalf of the Government of Tamil Nadu, argued that not every duty results in a concomitant right as a matter of law. A. Nagaraja presumed that because there is a duty to ensure the well-being of animals, there is a right of the animals to demand it. There is no such right evolved. There is, however a moral norm for humans to not cause unnecessary pain or suffering. Further, Sibal told the bench that A. Nagaraja cannot say that jallikattu, in any form, cannot be done especially when the amended laws have changed the regime of how it is performed. There are now regulations in place. He made the argument in the context of the AWBI reports relied on the court in A. Nagaraja.The probity of the report was challenged by Sibal.
The bench seemed convinced with the argument that the person in Article 21 is interlinked with animals and the environment. However, the court pointed out that animal meat is consumed and animals do not have the agency to differentiate between voluntary and involuntary acts.
Sibal laid down the changes in the new regime, according to which prior permission of the collector is to be taken by the organisers for the persons and the bulls participating in it. The collector is supposed to inspect the venue and they shall form a committee on jallikattu to monitor the event. The committee consists of various officials such as those from the animal husbandry and the police departments. The bull is put to proper test and no performance-enhancing drugs must be administered to it.
A question was put up by the bench regarding participants being allowed to embrace the bull by its hump. The bench asked if there is any safeguard regarding that. Sibal answered that only one person is allowed to embrace the bull. The bench pointed out that there is no rule which specifies that. Sibal responded that the committee monitors that. However, the bench was not convinced.
Further, Sibal told the bench that the purpose of jallikattu is not solely entertainment. It has a societal purpose to make sure that the indigenous breed survives.
Senior advocate Rakesh Dwivedi, for the Government of Tamil Nadu, argued that there are acts that per se cause pain and suffering. Once the per se aspect is exempted, it becomes permissible to that extent. According to his argument, the legislature is entitled to exempt some activity on justifiable grounds, and religion is the value the legislature keeps to even permit extreme pain. He referred to section 11(3)(e) of the PCA Act, which allows the killing of an animal for the purpose of human food. He termed that this is nothing but food culture. The causing of extreme pain finds its justification in Section 28 (saving as respects manner of killing prescribed by religion) of the PCA Act, which says that it would not be an offence to kill animals in a manner required by the religion of any community. It is upon the legislature to make a value judgment and it may legislate that on account of religion, extreme pain can be tolerated. That is why the classification in A. Nagaraja on what is unnecessary pain or suffering is completely erroneous.
Further, he told the bench that animals do not have independent rights. Their rights are a result of the restriction put on human beings while trying to balance human rights and the duty of compassion, where the former remains superior.
Sibal told the bench that A. Nagarajacannot say that jallikattu, in any form, cannot be done especially when the amended laws have changed the regime of how it is performed. There are now regulations in place. He made the argument in the context of the AWBI reports relied on the court in A. Nagaraja. The probity of the report was challenged by Sibal.
Senior advocate Mukul Rohatgi, representing the state of Tamil Nadu, challenged A. Nagaraja on the grounds that it indicates animals have rights and humans have duties. The bench asked if animals can enforce their legal rights. Rohatgi answered in negative. He said that section 11 of the PCA Act is nothing but moral ethics. But the bench pointed out that they constitute elements of an offence.
Solicitor General of India Tushar Mehta, for the Union Government, told the bench that they do not have to travel to the argument of repugnancy of the state amendments because the assent of the President was sought and granted. Moreover, the amendments only carve out more exceptions under section 11 with the same condition that the legislature has already stipulated.
Mehta was asked why the Maharashtra Act deliberately misses out on the term ‘unnecessary’. However, he did seem to answer that.
Mehta also said that the Constitution bench must not call out the assent of the President because it concerns the question of constitutional sacrosanctity. This must definitely not be done to satisfy one’s intellectual curiosity unless there is a basis for that. This was in the context of the questions on Presidential assent raised by a few petitioners, including Grover. The petitioners had raised a point that it must be shown that the President was informed of the repugnancy.
Additional Advocate General for the state of Maharashtra, Nikhil Goel argued against the challenges to kambala. He countered the argument that the bullock cart race is torturous by referring to the report of a committee set up by the Bombay High Court in this regard. The committee could not find any evidence to suggest the propensity of the act being misused. Just because there is an apprehension that an act can be misused cannot be the basis to quash it, he submitted.