View: Jallikattu Causes Unnecessary Pain, Goes Against Constitutional Morality

Can any cultural practice override the principles of constitutional morality?

(Photo: PTI)

(While lawyers appearing for the state of Tamil Nadu have said that the state has ensured bulls’ safety during Jallikattu and it is imperative that the sport be allowed to continue in interest of the state’s cultural rights, Jayam Jha and Pooja Rajawat offer a counter to some of these arguments.)

The recent uproar over Jallikattu started when the Tamil Nadu government, in the backdrop of protests against the 2014 Supreme Court ban on the bull-taming sport, passed the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017.

The 2014 judgment of the Supreme Court in Animal Welfare Board of India v. A. Nagaraja & Ors. banned Jallikattu because it violated section 3 read with section 11(1)(a) and 11(1)(m) of the Prevention of Cruelty to Animals (PCA) Act.

“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,” Section 3 reads.

While (1) (a) of Section 11 defines cruelty to animals as “beating, kicking, over-riding, over-driing, over-loading, torturing or subjecting any animal to unnecessary pain or suffering,” part 1 (m) of the same section adds “inciting any animal to fight or bait any other animal” to the list.

The amended act passed by the Tamil Nadu government, however, permitted the practice of Jallikattu albeit with certain measures to regulate the cruelty unleashed on bulls.

When petitions were filed in the supreme court challenging the 2017 amendment to the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as the ‘PCA Act’), the court referred the matter to a five-judge constitution bench which concluded the hearing and reserved its judgment on 8 December.

Animal Rights: The Backdrop

In the 2014 judgment, the scope of ‘life’ under Article 21 was expanded to include animal life as well. 

However, this brought animal rights at par with human rights under the constitution. 

 Arghya Sengupta, writing for The Hindu, argued that granting the right to life to animals would also grant upon them the right to personal liberty, which would make it unconstitutional to domesticate any animal or to slaughter them for consumption. 

Section 3 of the PCA Act casts a duty upon any person in-charge of an animal to ensure that they do not undergo any unnecessary pain or suffering. 

Notably, Article 51A(g) of the Constitution of India says that citizens shall be compassionate towards other living creatures. 

Thus, even though animals cannot be given the status of personhood under Article 21,  they do have the right not to be treated in a cruel manner.

Over the course of the hearing in the apex court, the Tamil Nadu government contended that section 3 of the PCA Act is in the nature of a duty and not every duty yields to a consequent right. 

However, it is important to note that the legislation in question is a penal statute, which imposes a penal action only upon the breach of the rights mentioned in it.

The subsequent sections of the act clearly impose a restriction on certain activities with regards to animals which is equivalent to granting them a right to be protected against such acts.

Interpreting 'Unnecessary Pain or Suffering'

One of the key objectives of the above-mentioned act is to protect animals from any “unnecessary pain or suffering.” Tamil Nadu has argued that since the word pain or suffering is qualified by the word “unnecessary,” some amount of necessary pain or suffering is allowed.

However, the doctrine of necessity says that such necessary pain or suffering shall be permissible only in case of unavoidable activities like carrying out scientific experiments for the advancement of science and technology or for combating any disease or to provide food to mankind. 

It has been stated clearly that this doctrine, under no circumstances can be interpreted to subject animals to necessary pain or suffering for the purpose of entertainment, exhibition or amusement.

This brings us to another contention by the state where it says that if Jallikattu is leading to cruelty against animals, the apt recourse is not to ban such activities outrightly but to regulate them.

This argument ignores the fact that the court declared Jallikattu unconstitutional not because the rights of animals were being undermined during the event, but because they were being violated for the purpose of entertainment.

Why Jallikattu Goes Against Constitutional Morality

Jallikattu’s unviability finds its roots in constitutional morality.

When the constitution says that citizens should show compassion towards each other, it envisions a society where public display of pain and cruelty are not celebrated.

Further, Article 51(h) of the Constitution of India says that as a matter of duty, every citizen of the country should develop humanism, scientific temper and the spirit of inquiry and reform.

In fact, in  N. Adithayan v. Thravancore Dewaswom Board and Others, the top court held:

“No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”

Thus no prevalent ‘cultural’ practice can override the principles of constitutional morality.

(Pooja Rajawat and Jayam Jha are third year students at National Law University, Jodhpur. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)