Challenge to Jallikattu Day #6: Mr. Divan Asks Bench to Look at Impact of Amendment, Not PhraseologyChallenge to the Practice of Jallikattu
Today, the Constitution bench led by Justice K.M. Joseph finished hearing arguments in the challenge to Jallikattu and other bull-taming sports. Over roughly two hours, Senior Advocates for multiple petitioners responded to arguments defending bull-taming sports made by the Union and State governments. The Bench gave all parties one week to file final written submissions and reserved Judgment in the case.
In May 2014, in Animal Welfare Board of India v A. Nagaraja (2014), the Supreme Court banned Jallikattu and bullock-cart racing on the grounds that the practices caused unnecessary pain and suffering, and subjected bulls to cruel treatment under the Prevention of Cruelty to Animals Act, 1960 (PCA Act). However, this ban was undone through a Union government notification in January 2016. The notification also imposed several additional restrictions that must be adhered to while organising Jallikattu events.
One year later, in January 2017, the Tamil Nadu government enacted an Amendment to the PCA Act, allowing Jallikattu and introducing rules to govern its organisation and practice. In 2018, the Maharashtra Legislature enacted a similar Amendment to the PCA Act to allow bullock-cart races. A group of animal rights activists and organisations challenged the Union notification at the Supreme Court, as well as both Amendments after their enactment.
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 are constitutionally protected under Article 29 as cultural practices.
Mr. Divan: Tamil Nadu Amendment Perpetuates Cruelty Against Animals
Senior Advocate Shyam Divan began by arguing that the Court had a duty to look at the effects and consequences of the 2017 Amendment and not just the ‘phraseology’. Substantiating his stance, he referred to the SC’s decision Bennett Coleman (1972) where the Court held that a tax on newspapers would, as a consequence, violate the Freedom of Speech and Expression.
In order to show the impact of the Amendment, he referred to reports from People for Ethical Treatment of Animals (PETA) based on ground-level investigations of multiple Jallikattu events conducted since 2017. These reports, he claimed, show proof that the Amendment does not change the core factual finding in Nagaraja, that the practice causes physical and mental anguish to the bulls. Further, the impact of the Amendment is to perpetuate this cruelty even further.
Mr. Divan then compared the safeguards surrounding Jallikattu in 2009 (before the SC first banned the practice) and 2017 (after the Amendment was enacted). He argued that the safeguard remained relatively unchanged and the Amendment did not change the facts determined in Nagaraja (2014). The roles and duties of the District Collector and the organisers, he argued, remained the same.
Justice Joseph asked Mr. Divan to weigh in on two questions. First, if the Amendment is upheld, what safeguards can be put in place to improve the condition of the animals? Second, he asked Mr. Divan if he had anything to say about the conclusion that animals have rights from Nagaraja.
Mr. Divan ‘decline(d) the invitation’ to suggest further safeguards for Jallikattu, stating that they were fighting on a matter of principle. On the subject of animal rights, he stated that animal rights should not be understood in a conventional sense as the Court in Nagaraja did not demarcate specific rights. It is only a reflection of the constitutional duty of protection owed to animals under Article 51-A. It doesn’t matter whether it is framed as a ‘right’ or a ‘duty’.
Senior Advocates S. Luthra, A. Grover, and K. Venugopal Make Brief Submissions
Mr. Luthra and Mr. Grover both argued that the State governments had failed to prove that the current practice of Jallikattu is in line with the cultural understanding of the practice. The Bench in Nagaraja (2014) found that there was no material to justify labelling Jallikattu as a cultural practice. Mr. Luthra said the States only provided ‘anecdotal’ evidence (like old wall-paintings) to refute the Judgment in Nagaraja, which is insufficient.
Both advocates also argued that the SC, contrary to Solicitor General Tushar Mehta’s arguments, had the power to refer to the documents signed by the President to enact the Amendment.
Mr. Grover posed an interesting question to the Bench on this issue. He argued that the SC has held that the President must have all the material required to make an informed decision when giving their assent to legislation. How could the President do so in this case when the Rules governing Jallikattu had not been framed at the time of granting their assent to the Amendment?
Mr. Venugopal argued on facts, suggesting that for Jallikattu to take place it necessarily has to involve torturing the animal. There is no reason the bull would leave the assigned pen without being poked, prodded, pouring alcohol down his throat or breaking his tail.
The Constitution Bench reserved Judgment in the case.