New Delhi, Nov 30.
A five-judge Constitution Bench of the Supreme Court has begun hearing arguments on whether Jallikattu (the traditional bull-taming sport) in Tamil Nadu can get constitutional protection as a “traditional and cultural fundamental right” under Article 29 (1) of the Constitution.
Similarly, sports such as Kambala (running contest between buffalo pairs in wet, slushy rice fields held at the beginning of the sowing season) in Karnataka and bullock cart races in Maharashtra are also under challenge as violative of India’s laws against cruelty to animals.
A bench, comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C. T. Ravi Kumar, is hearing a batch of petitions challenging the validity of the law passed by Tamil Nadu allowing Jallikattu in the state.
Similar laws were enacted in Karnataka and Maharashtra as well to protect their traditional sports events.
These petitions have been filed by the Animal Welfare Board, the People for Ethical Treatment of Animals (PETA), the Federation of Indian Animal Protection Organisations (FIAPO) and Compassion Unlimited Plus Action (CUPA).
Among other issues, the bench is examining five questions, viz does the Tamil Nadu Amendment Act perpetuate cruelty to animals or is a measure of prevention of cruelty to animals?
Is it a colourable legislation which does not relate to the powers of the state to amend the central law; whether the Tamil Nadu law is to preserve the cultural heritage of the people of the state, which can receive the protection of Article 29 (as a cultural right) of the Constitution?
Article 29 (1) says that “any section of citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”.
Is the Tamil Nadu law meant to ensure the survival and well-being of the native breed of bulls? Whether the law is unreasonable and violative of Articles 14 and 21 of the Constitution; whether the law is directly contrary to the 2014 apex court judgment in A. Nagaraja case banning Jallikattu.
Arguments by those opposing the practice
Jallikattu is a barbaric bull-taming blood sport which takes place annually in various districts of Tamil Nadu.
Events such as Jallikattu (and other events involving the performance of bulls including buffaloes, such as buffalo racing and bullock-cart racing events) are also recognised as causing immense mental and physical torture to the animal.
Jallikattu, in particular, purposefully creates immense fear and distress in the animal, to provoke a defensive-aggression reaction in him, designed in turn to make the sport of bull-taming more “enjoyable” to human spectators.
This sport also results in injuring and even killing numerous people each year, including not just participants, but also spectators and bystanders. According to reports as many as 5263 human injuries and 43 deaths were caused in Jallikattu events held between 2008 and 2014.
One of the objects of the Jallikattu law is “to ensure survival and well-being of the native breeds of bulls” – implying perhaps that a deliberately cruel event like Jallikattu is in some way essential to preserving native breeds.
Cruelty is inherent in Jallikattu, they said, annexing documents and photographs to show the extent of cruelty suffered by animals during such events.
These include rubbing irritants like chilli powder into their eyes and nose; constant yanking by a nose-rope; prodding and poking bulls in the vadi vassal with iron rods.
The vadi vassal is a chamber that is closed off from public view. Abuse is rampant in the vadi vassals. Bulls are poked, beaten and deliberately agitated before they are forced into the jallikattu arena where more than 30 bull tamers are waiting.
Jallikattu can’t be performed without inflicting unnecessary pain on the bulls, they argued. The law is therefore ex facie unconstitutional, illegal, invalid and void ab initio, since it is nothing but an attempt to overturn the rule of law by doing something indirectly which cannot be done directly.
Such an exercise of power is effectively a “fraud” on the Constitution, they said, and prayed for quashing the law passed by the state government.
The culture argument made in its defence
The proponents of traditionalism claimed that it was the right of the people of the state to preserve their traditions and culture.
“A practice which is centuries old and symbolic of a community’s identity can be regulated and reformed as the human race evolves rather than being completely obliterated. It will be viewed as hostile to culture and against the sensitivities of the community. The people of Tamil Nadu have a right to preserve their traditions and culture.”
Jallikattu should be seen as a tool for conserving precious and indigenous breeds of livestock. Bulls taking part in Jallikattu, bullock-cart race etc are specifically identified, trained, nourished for the sport. Their owners spend considerable money for their training, maintenance and upkeep.
The bulls participating in Jallikattu are not “performing animals” as there is no sale of tickets. Section 22 of Prevention of Cruelty to Animals Act, 1960, will not apply to Jallikattu. It remains to be seen how the court decides the issue viz animal rights versus tradition and culture.
This incidentally is the third round of litigation on this issue which became a crucial plank of vote bank politics in the state. The Central government had by a notification dated July 11, 2011, banned use of bulls as performing animals.
Consequently, Jallikattu, Kambala, bullock-cart races and all other similar events were understood as prohibited by law. In 2014, the Supreme Court declared Jallikattu and other animal sports as illegal.
Such sports were per se violative of Sections 3 and 11 of the 1960 Act, and the right of the animals to be treated with dignity, without unnecessary pain and suffering, the top court said.
Extending the scope of Article 21 (right to life and liberty), the court said, even animals have the right to live with dignity and subjecting them to cruelty amounted to infringement of that right.
This right is enshrined in and protected under Article 51A (g) read with Article 21. The court also held that since the Act is a welfare legislation, it overrides tradition and culture. Jallikattu was accordingly not conducted in Tamil Nadu in 2015 and 2016.
Amid widespread protests in the state, the Centre on January 7, 2016, without removing the basis of the 2014 verdict, issued a notification allowing Jallikattu even as bulls remained in the “list of performing animals”.
Supporters of Jallikattu argued that it was not a performance but a sport to test the valour and strength of participants. The apex court eventually stayed the 2011 notification and restrained Tamil Nadu from conducting Jallikattu.
Animal activists argued that the Centre acted in violation of the 2014 ruling which held that the use of bulls as performing animals in these events is inherently cruel. The animals suffer acute stress, strain, fear and distress when forced to participate in such events, they said.
Later, the Centre withdrew the notification, and permitted Tamil Nadu to amend the law to exempt bulls used in “Jallikattu” from the list of performing animals. This law is now being tested by the Constitution bench.
Tamil Nadu argued that by amending the Act to remove Jallikattu from its ambit, the state had not sanctified “cruelty”. It had also passed rules to prevent cruelty of animals, like pouring chilli powder, piercing the animal with a weapon, no liquor and no whipping etc.
Bulls are associated with every house and are given names and grown with tender care like children, the state said. There are no fetters on the state to enact a law to give protection to the tradition being followed for over 2,500 years.
On the other hand, the critics said, only the Centre can frame the rules, and hence the rules framed under Section 3(2) of the Tamil Nadu Act are invalid and therefore inapplicable.
It is clear that by bringing in the amendment, the state sought to circumvent the 2014 ruling. A binding judgment cannot be rendered ineffective by enactment of a law that substantially overrules its intended effect. In 2017, this issue was referred to a constitution bench.
