Supreme Court Upholds Laws Allowing Jallikattu, Kambala & Bull-Cart Racing In Tamil Nadu, Karnataka & Maharashtra

The bench further observed,

"We are satisfied on materials that in Jallikettu is going in TN for last one century. Whether this as part of integral part of Tamil culture requires greater detail, which exercise judiciary cannot undertake...When legislature has declared that jallikettu is part of cultural heritage of TN state, judiciary cannot take a different view. Legislature is best suited to decide that."

The bench added that its decision will similarly apply laws on Kambala and bull-cart racing in Maharashtra and Karnataka and directed that these laws be followed strictly. District Magistrates concerned have been asked to ensure strict compliance.

The batch of petitions were initially filed to quash and set aside a notification issued by the Union of India on 07.01.2016 which allowed the conduct of these animal sports activities. The petitions filed by the Animal Welfare Board of India, PETA and other animal rights groups sought to direct the concerned States to comply with the 2014 judgment of the Apex Court in Animal Welfare Board of India v. A. Nagaraja And Ors, which banned jallikettu. While the matter was pending, the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 was passed. Similar amendments were passed by Maharashtra and Karnataka. Thereafter, the writ petitions were modified to seek quashing of the said Amendment Act.

The Supreme Court had then referred the matter to a constitution bench on whether Tamil Nadu can conserve Jallikattu as its cultural right under Article 29(1) of the Constitution which guarantees protection to cultural rights of citizens. A Division Bench comprising Chief Justice Dipak Misra and Justice Rohinton Nariman were of the opinion that the writ petition revolving around Jallikattu involved substantial questions relating to interpretation of the Constitution and referred the matter to the Constitution Bench with five questions to decide, besides those raised in the writ petitions.

The Constitution Bench had heard all the parties concerned and reserved its judgment on 8th December, 2022. It has held that the view taken in Nagaraja that Jallikattu is not a part of cultural heritage of Tamil Nadu is not acceptable. "We do not think that there was sufficient material for the Court to come to that conclusion...The amendment having received Presidential assent, we do not think there is any fault in it," the judgment states.

It has further held that the Amendment Act is not a colourable piece of legislation as it relates to Entry 17 of List II to Schedule VII of the Constitution. It said the law minimizes cruelty to animals in the sports and cannot be held contrary to Articles 51A (g) and (j) or violative of Articles 14 and 21 of the Constitution. "When legislature has declared that jallikettu is part of cultural heritage of TN state, judiciary cannot take a different view. Legislature is best suited to decide that."

Senior Advocate, Siddharth Luthra appearing on behalf of the People for the Ethical Treatment of Animals(PETA) pointed out the impugned legislations were colourable in nature. He argued that even if it is assumed that the President’s assent was taken for the amendment made by Tamil Nadu legislature to the Prevention of Cruelty to Animals Act, the same was for a statute which in reality perpetuates cruelty. Relying on the Apex Court’s judgment in Animal Welfare Board of India v. A. Nagaraja And Ors. (2014) Luthra submitted that the amendments passed by the States cannot undo the factual findings made by the Supreme Court that events like Jallikattu result in cruelty to animals. Furthermore he argued that when the Constitution itself recognises that cruelty to animals cannot be perpetuated, then it can be inferred that the Constitution recognises the rights of animals, which may be read into Part III of the Constitution. It was also averred that Jallikattu and similar activities cannot be said to be protected under cultural and traditional rights merely because a group of citizens say so.

Senior Advocate, Shyam Divan appearing for another petitioner limited his arguments to the challenge to the Tamil Nadu legislation. He made four broad arguments -

1. The Impugned Act is contrary to the separation of powers as it overrides the decision attained in Nagaraj.
2. Issues regarding Jallikattu have attained finality in Nagaraj.
3. Non-retrogression or progressive realisation of rights wherein he argued that our law has evolved and our understanding for sentient creatures has also evolved and that the Supreme Court has recognised this as a constitutional principle. He argued that progressive realisation of rights has been held by this court by the fact that our constitution is a living document. Progressive realisation of rights means that doctrine of non-retrogression will come into motion. The state cannot retreat. It can only progress.
4. Subsequent findings on facts have been placed on record in regard to Jallikattu still being cruel to animals as well as humans. Divan averred that since people also die in Jallikattu the same also infringes Article 21 rights.

Divan argued that even if Jallikattu is a practice that is protected under cultural rights of the people of Tamil Nadu it still amounts to cruelty. Referring to the science of animal behaviours and biological integrity of the animal, he submitted that bulls are not structured to fight.

Senior Advocate, V Giri, appearing for one of the petitioners, argued that since the fact was already decided and reached finality in Nagaraj, the legislature did not have the competence to legislate on the adjudicated fact.

Senior Advocate Anand Grover, appearing for another petitioner, argued on the notion of dignity in Article 21. He submitted that dignity is the underlying notice of all fundamental rights. He pointed out that in the review petition the State had claimed Jallikattu to be a religious practice, but in the present proceedings it has been portrayed as cultural practice.

Senior Advocate, Krishnan Venugopal, representing another petitioner, argued on the aspect of legislative competence. He emphasised that in Nagaraj the Apex Court had already found the practice to be cruel. Moreover Entry 17 List 3 of the Seventh Schedule of the Constitution deals with prevention of cruelty of animals and the practice which is cruelty to animals cannot fit under the said Entry. Therefore, the assent of the President in this regard would be immaterial.

Counsel appearing for the petitioners from State of Maharashtra distinguished the Maharashtra legislation from the Tamil Nadu legislation. He submitted -

1. The Tamil Nadu impugned legislation had been enacted in 2009. It was challenged subsequently. In Nagaraj it was declared unconstitutional. However, in Maharashtra there was no such act. The impugned Act first came in 2017.
2. The purpose of the Principle Act is that "unnecessary pain or suffering" needs to be prevented. That word "unnecessary" is missing in Section 3(2) of the Amendment Act - a mere "pain or suffering" phrase is used. Although 3(2) starts with a non-obstante clause, because of this phraseology, its effect is mellowed down by absence of the word "unnecessary". Amendment in Maharashtra reintroduces Section 11 of the principle Act because of the way it has been mellowed down by its absence of the word "unnecessary".

Senior Advocate, Kapil Sibal appearing for the State of Tamil Nadu conceded at outset that it is natural for animals do suffer pain in the process of being domesticated or otherwise. However, he said that the real test for the court to see was whether such pain or suffering was "unnecessary". Mr. Sibal argued that just because compassion for living creatures is specified as a fundamental duty under Article 51A, it cannot be argued that animals have rights under the Constitution. He said that the act cannot be a colourable legislation because there was a legislative presumption. Sibal apprised the Bench that the State Government is concerned about protecting the native breed of bulls that are at the verge of extinction.

Senior Advocate Mukul Rohatgi appearing for the State of Tamil Nadu argued that Nagaraja does not lay down the correct law. He submitted that the judgment is on a wrong premise that animals have rights. Advocate Nikhil Goel appearing for the State of Karnataka emphasised on Kambala and how it is different from Jallikattu.

Other reports about the judgment can be read here.

[Case Title: The Animal Welfare Board of India And Ors. v. UoI And Anr. WP(C) No. 23/2016]

Citation : 2023 LiveLaw (SC) 447

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