Challenge to Jallikattu Day #5: SG Mehta Argues Bench Cannot Look Into President’s AssentChallenge to the Practice of Jallikattu
On December 6th, 2021, the Constitution Bench led by Justice K.M. Joseph heard Senior Advocate Rakesh Dwivedi (representing the State of Tamil Nadu) who argued that Culture could serve as a basis for exemption from the Prevention of Cruelty Against Animals Act, 1960. The Bench also heard arguments from Solicitor General Tushar Mehta, appearing for the State of Maharashtra, defending the legality of bullock-cart races.
In January 2016 the Union government issued a notification allowing bull-taming sports like Jallikattu and bullock-cart racing to be played in accordance with the additional restrictions they proposed. This notification was immediately challenged at the Supreme Court by the Animal Welfare Board of India (AWBI),People for Ethical Treatment of Animals (PETA), and animal rights activists. They argue that the notification is contrary to the SC’s 2014 ban of Jallikattu and bullock-cart racing under the Prevention of Cruelty to Animals Act, 1960 (PCA Act).
While the challenge was pending at the SC, the States of Tamil Nadu and Maharashtra enacted amendments, in 2017 and 2018 respectively, to the PCA Act which carved out specific exceptions to allow Jallikattu and bullock-cart racing respectively. Both States claim the amendments were intended to promote culture and ensure the survival of native breeds of bulls. The challenges to these amendments were tagged with the original challenge to the Union’s notification.
In February 2018, a Bench comprising Justices Dipak Misra and R.F. Nariman referred the case to a 5-Judge Constitution Bench to decide if Jallikattu and other bull-taming sports like bullock-cart racing are protected as a cultural right under Article 29 of the Constitution.
Mr. Dwivedi: Culture is a Basis for Exemption Under The PCA Act
Expanding upon Mr. Sibal’s distinction between ‘necessary’ and ‘unnecessary’ pain and suffering from yesterday, Mr. Dwivedi argued that the State Legislature is entitled to exempt practices on the basis of cultural necessity. He compared Jallikattu to the practice of killing for food, which according to him is also informed by culture. When Justice Joseph pointed out that food may be different because it is essential and related to the environment, Mr. Dwivedi replied that it was for the Legislature to decide on these ‘value judgments’ and exempt certain activities for justifiable reasons.
As Jallikattu is currently practiced, Mr. Dwivedi argued that the Amendment and the Rules prescribed by the Legislature made sure that it abides by the cultural understanding of the practice, and this determination received Presidential assent. He then referred to past SC Judgments which state that cultural rights are absolute and can only be subjected to State regulation, not outright bans.
SG Mehta: Court Must Have Grounds to Check if Presidential Assent was Properly Given
SG Mehta made submissions against the Petitioner’s arguments that the Amendments were ‘repugnant’ as they ran counter to the objectives of the PCA Act to ‘prevent cruelty’, and instead ‘perpetuated’ cruelty. He argued that the Amendments merely carve out additional ‘exceptions’, like those contained in Section 11(3) of the PCA Act.
Justice Joseph responded by asking about why the President’s assent was sought if not for the possibility of repugnancy. SG Mehta argued that the Court should not entertain any challenge to the President’s assent as the Petitioners had not made any arguments on the issue before the Bench.
He then submitted the original documents containing the President’s assent to the Act, but requested the Bench not to record this submission in their Order. The SG was concerned that recording this submission would create a precedent for the Court to demand documents showing Presidential assent without a specific challenge to the assent.
Sr. Adv. Anand Grover pushed back against SG Mehta’s claim that they had not made any arguments with regards to the assent. He said original petition mentioned the possibility of improper assent as the President is required to acknowledge the possibility of repugnancy before giving their ‘specific’ assent in these situations. SG Mehta implored the Bench to reject this arguments as it was a purely legal submission not based on any facts. Mr. Grover responded stating that without access to the documents their only option was to ‘speculate’ in the petition.
Justice Joseph finally said the Bench had found something concerning in the documents, but hesitated to ask SG Mehta about it as it could be ‘constitutional heresy’. SG Mehta vociferously agreed with the presumption considering the President’s assent had not been brought into question during the hearings.
The Bench will continue hearing arguments tomorrow (December 7th, 2022).