The legal tangle

THE Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017, that the Tamil Nadu Assembly passed on January 24 in the wake of widespread protests in the State against the ban on jallikattu is the latest in a series of attempts by the legislature, the judiciary and the executive to tweak the law either to include or to exclude the controversial sport from the rigours of the Prevention of Cruelty to Animals Act, which Parliament enacted in 1960.

Section 2(d) of this Act defines “domestic animal” as any animal which is tamed or which has been or is being sufficiently tamed to serve some purpose for the use of man or which although it neither has been nor is intended to be so tamed is or has become in fact wholly or partly tamed. The Tamil Nadu Amendment Act adds to Section 2 subsection (dd), which defines jallikattu as an event involving bulls conducted with a view to follow tradition and culture on such days from the months of January to May of a calendar year and in such places, as may be notified by the State government, and includes the events “manju viratu”, “vadamadu” and “erudhuvidumvizha”.

Section 3 of the Central Act says that it shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering. The Amendment Act renumbers the above clause as subsection (1) and adds subsection (2) of Section 3 as follows: “Notwithstanding anything contained in subsection (1), conduct of ‘jallikattu’, subject to such rules and regulations as may be framed by the State government, shall be permitted.”

Section 11 (1) of the Central Act enumerates 16 kinds of cruel behaviour towards animals and prescribes very mild punishment for a person found guilty of such behaviour: a fine of Rs.10 to Rs.100 and imprisonment for a term that may extend to three months, or both. Section 11(2) says an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to prevent such offence.

Section 11(3) lists five exceptions to this (from a to e), which include the dehorning of cattle, destruction of stray dogs in lethal chambers, extermination of any animal under the authority of any law, or the commission or omission of any act in the course of destruction of any animal as food for mankind without the infliction of unnecessary pain or suffering. The Tamil Nadu Amendment Act adds subclause f to Section 11 (3) exceptions as follows: “the conduct of ‘jallikattu’ with a view to follow and promote tradition and culture and ensure preservation of native breed of bulls as also their safety, security, and well-being”.

Section 22 of the Central Act deals with the restriction on the exhibition and training of performing animals. The two subclauses under this section make it clear that a person who exhibits or trains any performing animal must be registered and that animals the Central government may notify as non-performing animals cannot be exhibited or trained as performing animals. To this, the Tamil Nadu Amendment Act adds a proviso saying that “nothing contained in this section shall apply to conduct of ‘jallikattu’”.

Section 27 of the Central Act deals with the two exemptions to the chapter “Performing Animals”: (a) the training of animals for bona fide military or police purpose or the exhibition of any animals so trained and (b) any animals kept in any zoological garden or by any society or association which has for its principal object the exhibition of animals for educational or scientific purposes. To this, the Amendment Act adds subclause (c), which provides for “the conduct of jallikattu with a view to follow and promote tradition and culture and ensure survival and continuance of native breeds of bulls”.

Lastly, Section 28 of the Central Act says nothing contained in the Act shall render it an offence to kill any animal in a manner required by the religion of any community. The Tamil Nadu Amendment Act adds Section 28-A to this, which says that nothing contained in this Act shall apply to jallikattu conducted to follow and promote tradition and culture and such conduct of jallikattu shall not be an offence under this Act.

The Tamil Nadu Amendment Act includes, as did the Ordinance that it replaced, an Explanatory Statement stating that the Supreme Court found in its judgment in Animal Welfare Board of India [AWBI] vs A. Nagaraja & Ors (Civil Appeal No.5387 of 2014) that the conduct of jallikattu was violative of Sections 3, 11 and 22 of the Central Act—the very provisions the Amendment Act sought to amend. The reasons for so amending it are that jallikattu plays a vital role in ensuring the survival and continuance of native breeds of bulls and in preserving and promoting tradition and culture among people in large parts of Tamil Nadu. On the face of it, the Tamil Nadu Amendment Act may withstand judicial scrutiny as it is not unusual for a legislature or Parliament to neutralise the effect of a judgment by making necessary changes in laws. But there are serious legal challenges that remain unaddressed.

Madras High Court decisions In K. Muniasamythevar vs Deputy Superintendent of Police , which Justice R. Banumathi of the Madras High Court (now a judge of the Supreme Court) decided on March 29, 2006, permission was sought for the conduct of a rekla race at a temple festival in a village in Ramanathapuram district. The district police issued a circular stating that permission could not be granted because the Bombay High Court had prohibited bullock cart races and bullfights. The Madras High Court’s order clearly mentions that the then government advocate resisted the petition seeking permission. Justice Banumathi directed the State to take immediate steps to ban jallikattu, rekla race, bull race or any other entertainment involving cruelty to animals. Her order did not deal with the question of jallikattu’s role in promoting native breeds of bulls, or tradition and culture. Muniasamythevar went in appeal against Justice Banumathi’s order before the Division Bench of the Madras High Court, which decided it on March 9, 2007. The bench, comprising Justices Elipe Dharma Rao and P.P.S. Janardhana Raja, set aside Justice Banumathi’s order and held that trained animals performing before spectators could be categorised as performing animals, but the State should take steps to ensure that the animals were not subjected to any kind of violence or cruelty and to ensure safety of participants and spectators.

The State government counsel took a pro-jallikattu stand before the Division Bench and argued in favour of its role in advancing tradition and culture. But the bench, like Justice Banumathi, was not willing to be drawn into questions of tradition and culture and instead took the core issue to be whether the treatment of the animals during such sports events would amount to “cruelty” within the meaning of Section 11 of the Central Act. But the bench did observe: “When our traditional and cultural lifestyle of India, more particularly the lifestyle of the villagers, is being rabidly effaced by the influence of the Western culture, it is imperative that our village traditional and cultural events are preserved and maintained.”

The bench, by strictly confining itself to the provisions of the Central Act, held that there was no provision in the Act for imposing a total ban on the conduct of jallikattu and that it only provided for criminal prosecution and punishment with a fine and/or imprisonment of the persons causing violence or cruelty to bulls. The bench also opined that a proper balance safeguarding the interests of everyone, including the animals, could be struck by regulating the conduct of jallikattu through appropriate legislation by the State and its strict implementation by the district administration and the police. The bench also held that the sports events should be permitted to be conducted only during the harvest season, that is, during January and February, and not as part of village temple festivals according to the convenience of the villagers.

Supreme Court 2014 judgment

The Supreme Court bench comprising Justices K.S. Radhakrishnan and Pinaki Chandra Ghose set aside the Madras High Court’s Division Bench judgment on May 7, 2014, and imposed a total ban on the conduct of jallikattu. Even while the case was being heard, the Central government told the Supreme Court that it proposed to exempt bulls participating in jallikattu in Tamil Nadu from the purview of the notification dated July 11, 2011, which included the bull in the list of animals not to be exhibited or trained as performing animals. But the exclusion did not take place until January 7, 2016, when the Central government issued a fresh notification. This led to a fresh challenge to it before the Supreme Court. On January 23, the Central government informed the Supreme Court that it would withdraw this notification in view of the Amendment Act passed by the Tamil Nadu Assembly. The Centre’s decision means that the Supreme Court’s pending judgment in the case, after hearing the challenges to the 2016 notification, will become infructuous.

But what would be of interest is how the 2014 judgment of the Supreme Court considered the various contentions in the jallikattu debate that have now resurfaced as it is very likely that the latest Amendment Act of Tamil Nadu will also be challenged before the Supreme Court.

Doctrine of necessity

The 2014 judgment justified the exceptions under Section 11(3) of the Central Act on the doctrine of necessity. It clearly held that entertainment, exhibition or amusement do not fall under the existing exempted categories and cannot be claimed as a matter of right under the doctrine of necessity. But the Supreme Court has not considered the question whether jallikattu’s role in promoting tradition and culture or the survival and continuance of native breeds of bulls could be claimed under the doctrine of necessity. The court did not consider this because the State government did not raise this issue then. The 2014 judgment referred to Section 11 (1)(m), according to which it is punishable under the Act if any person, solely with a view to providing entertainment, confines any animal so as to make it an object of prey for any other animal or incites any animal to fight or bait any other animal. The Supreme Court held that in jallikattu the bull is expected to fight with various bull tamers, for which it is incited solely to provide entertainment for the spectators by sale of tickets or otherwise. “Inciting the bull to fight with another animal or human being matters little, so far as the bull is concerned, it is a fight, hence, cruelty,” the court held. By not mentioning Section 11 (1)(m) of the Central Act, the Tamil Nadu Amendment Act probably has a loophole that would enable the Supreme Court to strike it down.

The ‘natural instinct’ argument

The Amendment Act also seems to ignore the Performing Animals (Registration) Rules, 2001. Rule 8 (vii), as reproduced in the 2014 Supreme Court judgment, specifically cautions that the owner shall train the animal as a performing animal to perform an act in accordance with the animal’s natural instinct. A bull is not trained in accordance with its natural instinct for jallikattu or bullock cart races, the Supreme Court held in the judgment. The court reasoned that bulls in those events were observed to carry out a “flight response”, running away from the crowd and from the bull tamers since they were in fear and distress, and that this natural instinct was being exploited. Thus, even if Tamil Nadu succeeds in convincing the Supreme Court that bulls can be categorised as a performing animal, it will still have to explain how bulls can perform consistent with their “natural instinct”.

The Tamil Nadu Regulation of Jallikattu Act, 2009, invoked the contention that jallikattu promoted the tradition and culture of the people. But the Supreme Court rejected this contention saying that even if it was true it was repugnant to the Prevention of Cruelty to Animals Act, which is a piece of welfare legislation, and hence constitutionally void. It is a moot question how the new Tamil Nadu Act, by seeking to amend the parent Act with the Centre’s agreement beforehand, can be reconciled with this perceived repugnancy, which is inherent to it.

The stand of the AWBI, which had challenged the 2016 notification in the Supreme Court, is as yet unclear. M. Ravi Kumar, the AWBI’s Secretary, wrote to Anjali Sharma, an advocate and a member of the AWBI, asking her to withdraw the petition filed on behalf of AWBI, if any, against the Tamil Nadu Amendment Act. Anjali Sharma, in a statement, has described this letter as lacking any legal force as the AWBI had duly authorised her earlier to file any additional applications, if required, in connection with the pending petition against the Centre’s 2016 notification. She has clarified that she has not filed any fresh petition but only an application in the pending case and that she is competent to intervene in her individual capacity even if the AWBI wants to disassociate itself from the fresh challenge.