J. Venkatesan
Holding that Jallikattu is a bovine sport and essential aspect of cultural heritage of Tamil Nadu and a tradition being followed for a few centuries, a five-judge constitution bench of the Supreme Court has upheld the law passed by the state for conducting the sport.
The bench, comprising Justices K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, also upheld the laws passed by Karnataka and Maharashtra for the conduct of Kambala and bullock-cart race in their respective states.
This judgment has given a ray of hope for pilgrims of Sabarimala Ayyappa temple in Kerala that the tradition and cultural practice of not allowing women in the age group of 10 to 50 years would be restored.
A Constitution bench had earlier held that the custom being followed in Sabarimala temple was not an essential religious practice to be preserved.
Further, tradition and culture cannot violate fundamental rights of citizens and there could not be any discrimination on the basis of male or female devotees. The matter is now pending before a nine-judge bench.
Rejecting the argument that animals have fundamental rights of not subjecting them to cruelty, the bench said “Constitution does not recognise any Fundamental Right for animals. In our opinion, the expressions Jallikattu, Kambala and Bull Cart Race as introduced by the Amendment Acts of the three states have undergone substantial change in the manner they were used to be practiced or performed and the factual conditions that prevailed at the time the A. Nagaraja judgment was delivered (in May 2014) cannot be equated with the present situation.”.
In 2014, a two-judge bench had held in its judgment that such sports were per se violative of Sections 3 and 11 of the Prevention of Cruelty to Animals Act, 1960 (PCA Act) and furthermore in violation of the rights of animals to be treated with dignity and without unnecessary pain and suffering.
Extending scope of Article 21 of the Constitution (right to life and liberty), the court had held that even animals have right to live with dignity and subjecting them to cruelty amounted to infringement of that right, which are enshrined in and protected inter alia under Article 51A(g) of the Constitution read with Article 21.
It further held that since the PCA Act is a welfare legislation, it overrides so-called tradition and culture.
Not concurring with this view, the Constitution Bench in the Jallikattu case, said: “We cannot come to the conclusion that in the changed circumstances, absolutely no pain or suffering would be inflicted upon the bulls while holding these sports.
“But we are satisfied that the large part of pain inflicting practices, as they prevailed in the manner these three sports were performed in the pre-amendment period have been substantially diluted by the introduction of these statutory instruments. We, however, cannot proceed in exercise of our judicial power on the assumption that a law ought to be struck down on apprehension of its abuse or disobedience.”
The court was of the view that the Amendment Act of Tamil Nadu read with the Rules seek to substantially minimise the pain and suffering and continue with the traditional sports.
“The Amendment having received Presidential Assent; we do not think there is any flaw in the state action. ‘Jallikattu’ as bovine sports have to be isolated from the manner in which they were earlier practiced and organising the sports itself would be permissible, in terms of the Tamil Nadu Rules.”
“Jallikattu is a type of bovine sport and we are satisfied on the basis of materials disclosed before us that it has been going on in the state of Tamil Nadu for at least the last few centuries. This event essentially involves a bull which is set free in an arena and human participants are meant to grab the hump to score in the “game”.
Since legislative exercise has already been undertaken and Jallikattu has been found to be part of cultural heritage of Tamil Nadu, we would not disrupt this view of the legislature. We do not accept the view reflected in the case of A. Nagaraja that the performance of Jallikattu is not a part of the cultural heritage of the people of the State of Tamil Nadu. We do not think there was sufficient material before the court for coming to this conclusion.”
After the Supreme Court banned Jallikattu in Tamil Nadu, there were huge protests on the streets in the state for restoring the sport as a cultural event coinciding with Pongal, the harvest festival in January.
Following the protests on 7th January 2016, a notification was issued by the Ministry of Environment, by which an exception was carved out in the Prevention of Cruelty to Animals Act and it was specified in this notification that bulls might be continued to be trained as performing animals at events such as Jallikattu in Tamil Nadu and bullock-cart races in Maharashtra, Karnataka, Punjab, Haryana, Kerala and Gujarat in the manner by the customs of common community or practice traditionally under the customs or as part of culture in any part of the country thus allowing the sports to continue.
In 2017, the matter was referred to a constitution bench.
Tamil Nadu argued that by amending the Prevention of Cruelty to Animals Act to remove Jallikattu from the ambit of PC Act, the state had not sanctified “cruelty”. The State had passed rules to prevent cruelty of animals, like pouring chilli powers, piercing with a weapon, no liquor and no whipping etc. Bulls are associated with every house and are given names and grown as a child.
Among other issues, the Bench examined five questions referred to it in 2017, viz. Does the Tamil Nadu Amendment Act perpetuate cruelty to animals or is a measure of prevention of cruelty to animals? Is it 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 (cultural right) of the Constitution?
Is the Tamil Nadu law meant to ensure the survival and well-being of the native breed of bulls? Whether Tamil Nadu law is said to be 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.
The bench held that the laws passed by Tamil Nadu, Karnataka and Maharashtra are valid and answered the five questions in favour of these states.
The court directed that the law contained in the act/rules/notification shall be strictly enforced by the authorities. In particular, it directed that the District Magistrates/competent authorities shall be responsible for ensuring strict compliance of the law, as amended along with its Rules/Notifications.
