Challenge to Jallikattu Day #4: Mr. Sibal Argues Amendment Prevents ‘Unnecessary’ Pain and Suffering
Challenge to the Practice of JallikattuJudges: K.M. Joseph J, Ajay Rastogi J, Aniruddha Bose J, Hrishikesh Roy J, C.T. Ravikumar J
Today, the Constitution Bench led by Justice K.M. Joseph heard arguments from Senior Advocate Kapil Sibal defending the practice of Jallikattu on behalf of the Tamil Nadu government. He argued that Nagaraja Judgment (2014) erroneously conferred rights on animals based on a set of facts and circumstances which have now changed following the 2017 Amendment to the Prevention of Cruelty Against Animals Act, 1960 (PCA Act).
Background
The Supreme Court banned the bull-taming sport Jallikattu in Animal Welfare Board of India v A. Nagaraja (2014), and dismissed a petition seeking a review of the Judgment in 2015. However, in January 2016 the Union government issued a notification allowing the sport to be played while placing certain restrictions, such as requiring organisers to receive approval from the District collector and to follow certain safety standards. This was immediately challenged at the Supreme Court by animal rights activists and organisations like The Animal Welfare Board of India (AWBI) and People for Ethical Treatment of Animals (PETA).
One year later, in January 2017, the Tamil Nadu Legislature enacted the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act. The Amendment allowed the practice of Jallikattu to ‘promote tradition and culture’ and to ‘ensure the survival of native breeds of bulls’. It also provided an exception for Jallikattu from offences under the PCA Act through Section 28-A.
The AWBI and PETA approached the SC for directions to quash the Tamil Nadu Amendment. 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. Sibal: Tamil Nadu Amendment Prevents ‘Unnecessary’ Pain and Suffering
Section 3 of the PCA Act places a duty on persons responsible for animals in their care to prevent the infliction of ‘unnecessary pain and suffering’. Mr. Sibal stated that the process of domesticating an animal inevitably implies a certain amount of pain and suffering. He argued that the PCA Act recognises this, which is why it focuses on ‘unnecessary’ pain and suffering.
In order to highlight his point about the inevitability of pain and suffering in domestication, he referred to a French meat dish where a bird is fattened through force feeding until its stomach bursts or explodes. Presumably, he was referring to the French delicacy ‘Ortolon bunting’ where a small songbird, the Ortolon, is force fed to bursting and then drowned in brandy. Interestingly, hunting the Orotolan has been banned in France since 1999.
Mr. Sibal then directed the Bench’s attention to the 2017 Amendment. He argued that it completely changes the factual basis of the case, from what was considered in A. Nagaraja. In 2014, the facts of the case were based on three reports submitted by the AWBI about the ground realities of Jallikattu and the cruelty involved. The 2017 Amendment addressed the Bench’s concerns in Nagaraja by ensuring that Jallikattu is conducted safely and without cruelty. He listed the safeguards established through the amendment. These included receiving prior permission from the district collector or the magistrate to organise an event, regular monitoring by the AWBI, and medical checks to ensure the bulls have not been drugged.
Justices Bose and Rastogi asked Mr. Sibal if there were issues in implementing the act. Mr. Sibal however, cautioned the Bench against entering into this issue as it would require a finding of fact which was not the scope of this hearing. He added that the petitioners haven’t made such a claim either, nor have they taken any actions against possible violations of the Tamil Nadu Amendment.
Mr. Sibal: Petitioners’ Claim Unfounded, Lacks Latest Information
Mr. Sibal strongly criticised the conduct of the petitioners, stating that they were primarily relying on a 2020 PETA report. The report relied solely on newspaper reports and not ground-level investigations. Further, he informed the Court that this report was submitted to the Court just a day before the hearings began. The State of Tamil Nadu was yet to receive a copy.
Later in the day, Senior Advocate Shyam Divan pushed back against Mr. Sibal’s portrayal of the petitioners’ claims. He argued that they had been conducting investigations on the ground for years and submitting the findings to the Court through affidavits. He said that it was Mr. Sibal who had not been filing replies to these affidavits. Mr. Sibal stated that they had replied to one of the affidavits and Mr. Divan must have missed it.
Mr. Sibal: Judgment in Nagaraj Mistakenly Confers Rights on Animals and Wrongly Dubs Jallikattu ‘Pure Entertainment’
Mr. Sibal attempted to poke multiple holes in the Nagaraja Judgment to further explain why it should not apply to the present case. Firstly, he argued that the Judgment misunderstood the ‘duty’ of protection owed to animals under Article 51-A of the Constitution. It mistakenly concluded that this meant animals have rights. Rights, according to him, must be specifically conferred by the Constitution or separate legislation.
Further, the Nagaraja Judgment held that Jallikattu was a cruel practice as it is purely for entertainment, violating section 11(m) of the PCA Act. Mr. Sibal argued that this conclusion was mistaken as well. He informed the Court that the pool of bull breeds available in India were being diluted with an influx of international breeds. Jallikattu provided a compelling reason for local farmers and breeders to propagate local varieties of bull.
The Bench is expected to finish hearing the State of Tamil Nadu’s arguments and the petitioner’s rejoinder (a counter-response)on Tuesday (December 6th, 2022) before concluding the case.