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By Sakshi Pawar (Co-Founder and Managing Editor at KhelAdhikar)
“Behavioural responses to pain vary greatly from one species to another, but it is reasonable to suppose that the pain felt by all of these animals is similar to that felt by man”
– Professor of Animal Welfare, D. M. Broom of University of Cambridge in his book “Animal Welfare and the Law”
While it is important to analyse recent developments in the field of sports law, it is equally relevant to unearth the forgotten loopholes in our legal system. The subject of today’s throwback is animal rights and the jarring, horrifying speciesism of mankind. All around the world, the concept of making animal sports a part of tradition and culture has sugar-coated the subjugation of innocent animals to unrequited torture and suffering.
KhelAdhikar brings to you this series of articles on contentious animal sports played across the world such as bull-fighting, cock-fighting, dog fighting and camel races.
Part I (this article) focuses on bullock races in Tamil Nadu, Maharashtra and Karnataka (Jallikattu, Bailgada Sharyat and Kambala respectively) and how they were banned by the Supreme Court (SC) judgement of AWBI v. A Nagaraja case. It will further discuss their subsequent legalisation in 2016 due to protests against the ban and the respective state legislatures which are now being enacted to regulate it.
Part II compares India’s political and legal scenario with that of Spain and Brazil. Like India, bull-fighting and bull-racing events in Spain are legalised. Surprisingly, the question of animal rights in Spanish bull-fighting and bull-racing events are determined not by jurisprudence but by political undercurrents. The order passed by the Spanish Constitutional Court has revoked the ban on Spanish bullfighting in various states of Spain under the pretext of preserving “intangible cultural heritage”. However, these bans are just political statements by the states who wish to cede from Spain. The revocation of the ban is the Constitutional Court’s attempt to prevent the same. Further, Vaquejada in Brazil, which is akin to bullfighting in Spain, was legalised in early 2017 as “intangible cultural heritage” as well. The judgements or legislation which now govern the sport will be explored.
Part III will explore attempts by countries to curb animal sports that cannot be covered under “intangible cultural heritage” such as various forms of dog fighting and bird fighting.
“Bullfighting is not a fight at all. It’s a systematic torture that pits a gang of armed thugs against a lone, frightened, and wounded animal.”
– SHARK (Showing Animals Respect and Kindness), Animal rights organisation
- Bullock Races
Jallikattu comes from the Tamil word ‘Callikattu’: Calli = coins and Kattu = package. In the earlier days, being able to tie coins of gold and silver around the horns of the bull would signify bravery. The man might even have the blessing to marry the daughter of the man who hosted the competition. Later, it evolved into “Yeruthu Kattu”, where the bull would have to be corralled with ropes around its neck. While both these forms where simpler sports where the chances of the animal getting hurt were rare, the competition of bull races now exploit the fight or flight response of the bull for entertainment. Jallikattu includes Manjuvirattu, Oormaadu, Vadamadu, Erudhu, Vadam, Vadi and all other events involve taming of bulls. The event involves a special breed of bull known as the Bos indicus and usually takes place after the festival of Mattu Pongal.
Bailgada Sharyat is a bullock race, much like horse racing, where spectators can place bets and earn money on how quickly the bull reaches the finishing line. Sometimes the length of these races is ten kilometres or more, causing the bull extreme physical anguish to cover such a distance. These bulls are blindfolded and then brought to the starting point where they are instantly forced to race. The sudden exposure to noise and light frightens the bull. To enhance their performance, they are often electrocuted or jabbed torturously.
Kambala Kannada, although not referred to by the Court, is a similar bullock cart race held in Karnataka.
Due to unnecessary pain and suffering inflicted on the bulls, PETA (see video for how animals are treated during Jallikattu) and the Animal Welfare Board of India (a statutory organisation under section 4 of the Prevention of Cruelty of Animals Act, 1960) have consistently advocated a ban on such bullock races and fights.
The SC judgement of Animal Welfare Board of India v. Nagaraja (AWBI case), (2014) 7 SCC 547, discussed the seminal issue of animal rights in India and banned bullock cart races. However, the event is still legalised due to vote bank politics which have diluted the jurisprudence of the judgement. Let us revisit events that led to this case:
- In 1998, the Ministry of Environment and Forests (MoEF) under section 22(ii) of the Prevention of Cruelty Act, 1960 (PCA) issued a notification banning certain animals such as bears, monkeys, tigers, panthers and dogs from being trained and exhibited as “performing animals”. The sections 21 and 22 govern the rights of performing animals under the PCA. Section 21 defines “exhibition” and “training” to be the nurturing of an animal in such a manner that it could perform at events which an audience would attend with a ticket. Section 22(i) stipulates that such animals must be registered and section 22(ii) gives the power to the Central Government (CG) to prohibit certain animals that are not suited to perform, from being forced to partake in such activities.
- This notification was challenged by the Indian Circus Organisation in the Delhi High Court. However, a corrigendum was issued by MoEF later in 1998, where dogs were excluded from the notification. This notification was yet again challenged in the Kerala High Court and then the SC in the first case which dealt with animal performance rights in India, R. Nair and Others v. Union of India and Others (2001) 6 SCC 84. The Supreme Court concurred with the Kerala High Court’s decision to uphold the validity of the notification. The court stated that the power exercised by the CG was in line with the Preamble of the PCA. The preamble held that the object and purpose of PCA is preventing “the infliction of unnecessary pain or suffering on animals and for that purpose to amend the law relating to the prevention of cruelty to animals“. Furthermore, the power exercised by the CG was not unguided and they had considered all relevant factors prior to the enactment of the notification.
- For several years there had been news of people or bulls injured severely during Jallikattu. This prompted the Tamil Nadu government to enact the Tamil Nadu Jallikattu Regulation Act, 2009 (TNJR) to regulate this sport. There were five main changes that were brought about by this Act: (a) permission had to be taken from the collector thirty days prior to the event, the location also had to be informed (b) the vadi vassal/arena had to be double barricaded. (c) Necessary galleries had to be provided for people to stand. (d) Necessary permission for participants and bulls was to be taken fifteen days prior to the event. (e) Regular checks by the Animal Husbandry Department were to be held.
- The ground reality was that few of these regulations were being followed and therefore on 27 November 2010, the Supreme Court addressed the matter, allowing Jallikattu to be held only five months in a year. The order required district collectors to ensure registration of these animals and the Animal Welfare Board would send its representative to monitor the event. The government of Tamil Nadu demanded a Two Lakh rupees deposit from all those hosting the event, this would pay for any injuries caused to the participants. Additionally, a team of veterinarians had to be present to check the conditions of the bulls.
- Despite these measures, atrocities still continued and the representatives of the Animal Welfare Board Division of MoEF, represented by its Director, submitted a note file on 27 January, 2011 to the Minister which reads as follows: “Jallikattu is indeed an extremely cruel and barbaric sport, in which the Bulls that are forced to participate are brutalized and subjected to unnecessary pain and suffering. Surrounded by huge crowds of shouting, screaming people intent upon seeing them cruelly subdued and overpowered, regardless of what they endure, the bulls are subjected to terrible acts of cruelty. They are beaten, kicked, and chilly- powder rubbed into their eyes. Their humps and horns are seized and twisted and turned during the course of the ‘sport’, leading to injuries, tears and bleeding and the animals toppling over. All of this occurs while they are surrounded by the jeering, frenzied crowd. In fact, the tails of the animals are routinely pulled, twisted and turned, leading to painful injuries and often to broken tails. By no stretch of imagination can the bulls be termed as “performing animals” or “trained for the sport”. In fact, what occurs during the event is that the participating bulls are forced to endure unnecessary pain and suffering beyond measure. It is for this reason that the answering respondent had represented to the Central Government that this barbaric, pre-historic event masquerading under the guise of sport, be banned.”
- This was accepted by the MoEF and by a notification of 11 July 2011, bulls were added to the 1998 notification which banned the exhibition or training of certain animals as performing animals.
- This matter went to the Madurai bench of the Madras High Court who while dealing with several writ petitions, orders for enforcement of this notification etc. upheld the validity of the notification. Appeal(s) and Special Leave Petition (SLP) from the same was directed to the Supreme Court. This became the landmark AWBI case.
- After this progressive notification was issued by the Congress government, several protests occurred throughout Tamil Nadu. The Congress government, to pander to its voters, tried to dial back the notification by exempting Jallikattu from it. They agreed to let Jallikattu continue in Tamil Nadu if the state agreed to implement additional guidelines for protection. This attempt was cut short by the complete prohibition placed by the Nagaraja judgement.
- In addition, the State of Maharashtra banned the races after the MoEF notification of 2011, with its own corrigendum on 24 August. 2011. This corrigendum was contested in front of the Bombay High Court. When the Bench upheld the corrigendum, a review petition was filed. As that too was rejected, another SLP was filed in the Supreme Court. The matter was clubbed with the AWBI case.
Arguments of the Respondents (in favour of upholding the ban, PETA and AWBI)
- Jallikattu, in the form that it is prevalent today, does not find its roots in tradition and culture. Even if it did, the people’s rights to their tradition and culture could be subverted by a Central Enactment. There is no such thing as an absolute right to culture, especially considering such suffering of the animals. (para 4)
- The past attempts at regulating the sport including the Supreme Court’s 2010 order have had little effect on the way the sport is played, and each year man and animal both get hurt. Therefore, a ban is the need of the hour. (para 4)
- Minimising the harm by using regulations or creating greater superintendence does not alter the legality of the sport. The animals flight or fight response is still induced by external forceful means and it is this reaction that is the very crux of the event. To induce such a reaction would necessarily require agitating or hurting, therefore the PCA would be violated regardless. (para 9)
- The sections of the PCA which have been violated are section 3, section 11(1)(a) and (m), and section 22(ii). (para 4) Section 3 provides that owner of the animal has to take care of its wellbeing and ensure that no unnecessary pain or suffering is meted out to it. Section 11 refers to the ways in which animals can be treated cruelly. Section 11(1)(a) provides that beating, kicking, overloading, “or otherwise” any measure that causes unnecessary suffering would be considered cruelty to animals. As per the counsel for the respondent, the term “or otherwise” covers all atrocities committed during Jallikattu. (para 9) Section 11(1)(m)(ii) provides that when any animal if forcefully incited to fight, then that too would be cruelty.
- It goes against the Indian constitutional provisions of Article 51A(g) and Article 21. The former is the fundamental duty to have compassion for all living creatures and to try and protect the environment. The latter is the right to life, in this case the animal’s right to life without pain.
Arguments by the Petitioners/Appellants (in favour of revoking the ban, the organizers in Maharashtra and Tamil Nadu and the state of Tamil Nadu)
- The organizers argued that these events took place at the end of harvest season and were an important part of the rural economy. Additionally, they argued that it had been a part of their culture for three hundred years. (para 5)
- The state of Karnataka promised to ensure that all guidelines for the safety of the participants and the bulls would be enforced. (para 6)
- The counsel on behalf of Karnataka stated an absurd argument where first, he directed attention to section 11(1)(m)(ii), which did not mention the unnecessary suffering of the animal. Therefore, no one participating in Jallikattu events could be penalised under that provision. Second, the bulls in Jallikattu were not made to go through “that much” suffering, so as to be considered “unnecessary pain and suffering” under section 3 and section 11(1(a). Therefore, the sport should only be regulated and not prohibited. (para 10)
- Finally, the counsel on behalf of Karnataka also stated that section 21 and 22 covered performances where an audience would pay to watch with a ticket. Since there was no ticket for Jallikattu, the CG notification of 2011 under section 22(ii) cannot apply.
Summary of the judgement
The 60 page judgment by the SC is so far the best analysis (world over, and therefore makes no reference to foreign case law!) of animal rights and the obligation of the judiciary to protect these rights. The bench of Justice Radhakrishnan and Justice Ghose left no stone unturned while weighing right to life against the right to culture and humanism against speciesism. The SC judgement specifically mentions that it is being written from the perspective of “Species Best Interest”.
- The Prevention of Cruelty to Animals Act came into force in 1960 after several revisions to the British legislature (enacted in the 19th century). The British Legislature was a faux legislature which allowed most acts of atrocities against the animals to be committed. After Independence, the administration noticed several fallacies and suitable amendments were made till 1960. Therefore, the intention of the legislature was to protect the animals and not systematise any procedure that allowed the continual infliction of pain upon them. (para 26)
- The judiciary of the country has a duty under the doctrine of parens patriae to ensure the welfare of the animals and prevent them from enduring pain and suffering. This doctrine holds it is the duty of the court to ensure that a beneficial legislation is provided to those who are voiceless and are unable to formulate their own opinions. (para 26)
- It is also the duty of the Court to pierce the veil and understand whether a legislature has been enacted to continue extolling the animal or whether it has been enacted to prevent suffering. TNJR Act, 2009 which regulated Jallikattu had been passed by the legislature despite being in violation of the PCA, and without the consent of the President to override this violation. It was believed to have been enacted to minimise the effect of the atrocities and suffering on the animals, however, the sport is inherently such that the atrocities cannot be prevented and the ground realities further prove that the TNJR Act is not being implemented. Therefore, the TNJR Act is diluting or defeating the purpose of the PCA. (para 26)
- Section 11 is a beneficial provision for the welfare of animals and is not intended to authorise the organisers of bull racing events to conduct their events. As pointed out by the counsel for defence, the term “or otherwise” is important as it does not limit the atrocities committed on the animal to those expressly mentioned in section 11(1)(a) of the Act. The list of activities in section 11(1)(a) are merely indicative and not exhaustive. The court referred to a previous case of Lilavati Bai v. State of Bombay1957 SCR 721 where the term “or otherwise” was interpreted to mean circumstances that are not be limited to the other activities or words mentioned in the clause. Section 11(1)(a) therefore covers all instances where animals are subjected to unnecessary pain and suffering and therefore Jallikattu, Bailgada Sharyat and other Bullock-cart races will be considered illegal as per the Prevention of Cruelty Act. (para 29)
- Moreover, section 11(1)(m)(ii) of the PCA specifies that if any person solely for entertainment incites or baits an animal to fight, he will have violated the law.
- The court referred to a paragraph from Professor Broom of the University of Cambridge to derive that pain and suffering are similar to both man and animal. Therefore, it is unbecoming to cause unnecessary pain and suffering to an animal. (para 30)
- The doctrine of necessity is accounted for under section 11(3) of the Act and does not consider any case of harming animals for exhibition or entertainment such as by bullock cart races. (para 31) The instances covered by section 11(3) are: i. dehorning of cattle, or the castration or branding or nose-roping of any animal. ii. Harm caused during preparation of food for mankind iii. Destruction of stray dogs in lethal chambers or by such other methods as may be prescribed. iv. Experimentation for advancement of mankind.
- Section 11(3) assumes preparation of food and experimentation for advancement of mankind as the two acceptable forms of speciesism. Therefore, they have been exempted from the Act. Suffering for exhibition and entertainment is not a form of speciesism that has been exempted. (para 31, speciesism is further elaborated upon in )
- More importantly, section 28 of the PCA exempts killing of animals as required by religion (Halal is a customary practice in Islam and is a process of preparation of food) but not the killing or harm done for pure exhibition or amusement. While, the bare reading of the Act does not mention this, the Supreme Court in this case has interpreted section 28 in this fashion. Therefore, even if Jallikattu were termed vital for culture and religion in South India, it would be illegal to conduct such events as per the Act. (para 31) Additionally, the statement of objects and reasons for the enactment of the TNJR Act are the cultural and historical important but not any religious importance. Even if such an instance of bull fighting is found in the scriptures, its current form would not be religiously acceptable. The bull is a vehicle for Lord Shiva and is a revered animal. (Para 43)
- Bulls are not performing animals and have been recognized as Draught and Pack animals in the Prevention of Cruelty to Draught and Pack Animals Rules, 1965. This is because they have “a large abdomen and thorax and the entire body has a resemblance to a barrel shape, which limits ability to run”. Due to their body constitution, the Prevention of Cruelty to Animals (Transportation of Animals on Foot) Rules, 2001, Rule 11 says that no person shall use a whip or a stick to force the animal to walk or to hasten the pace of their walk. Horse’s anatomy on the other hand is better suited to run and therefore horse racing and bets placed on horse racing are legalised. (para 33)
- The government has specified under Section 22(ii) of the PCA vide the 2011 MoEF notification that bulls are not to be considered performing animals. Additionally, the court under section 24 of the PCA also has the power to declare that certain animals cannot be performing animals. (para 36)
- The applicants had contested that since section 21 of the Act (section 21 dictates that “exhibition” and “training” under the Act would only refer to events where animals are displayed to an audience which has brought tickets) would not apply as no one was buying tickets to the Jallikattu event. The court found this strict interpretation absurd and held that regardless, the actions at Jallikattu events would still violation section 3 and section 11 of the Act. (para 36)
- Even if the court were to assume that bulls were indeed ‘performing animals’ within the meaning of the PCA, then Rule 8(v) of the Performing Animal (Registration) Rules, 2001 also specifies that no unnecessary pain or harm will be inflicted on the animal and it will be taught to fight in accordance with its natural instincts. Here, the bull tamers do not train the animal for the event. Eventually, they falsely induce a fight or flight response and exploit the instinctual reaction of these animals. (para 38)
- The court traced the development of international law with regards to animal protection and held that international law was insufficient to cover such instances. It took years for man to realise the harm he was doing to the environment, and when he did, he only decided to protect the environment so he could save himself. This was done under the garb of principles such as sustainable development, where nature is preserved for the future of mankind. Only now is the international community waking up to the prospect of protecting the environment with the selfless intent of protecting other species as well. For this it has enacted treaties such as the Convention on Biological Diversity. The court also referred to the German constitution which obliges the state to respect ‘animal dignity’. Additionally, it also observed the PCA has been drafted to comply with the Universal Declaration of Animal Welfare (UDAW) and the principles of World Health Organization of Animal Health (OIE). There are five freedoms for animals that are embodied in the OIE: (a) freedom from hunger, thirst and malnutrition, (b) freedom from fear and distress, (c) freedom from physical and thermal discomfort, (d) freedom from pain, injury and disease; and (e) freedom to express normal patterns of behaviour. The same freedoms must be read into section 3 and section 11 of the PCA. (paras 47 to 54).
- Sections 3 and 11 will have to be read along with the fundamental duty of compassion mentioned under Article 51A(g) and the development of humanism under Article 51A(h). Article 51A(h) says that it shall be the duty of every citizen to develop the scientific temper, humanism and the spirit of inquiry and reform. (para 57 and 58)
- Right to life, Article 21 does not mean mere existence but also an existence with dignity and comfort. That is being denied to these animals. (para 62 to 64).
- Jallikattu is a non-essential human activity and therefore no animal can suffer for the same (para 61).
- The TNJR Act is inconsistent with the central enactments and the Constitution. (para 76).
- Tamil Nadu
On 8 January 2016, the MoEF permitted the tradition to continue under certain conditions, ending the ban. Six days later, the SC put a stay on the notification and upheld the ban. On 26 July 2016, the Supreme Court refused to review this decision. On 8 January 2017, hundreds of protesters conducted a rally opposing the ban on Jallikattu. A few churches even conducted prayer mass against the SC ruling. Once again on 12 January 2017, the SC ordered a stay on the CG and SG regarding Jallikattu. On 21 January 2017, the Governor of Tamil Nadu issued a new ordinance authorizing Jallikattu and the legislature on 23 January 2017 passed a bipartisan bill with the accession of the Prime Minister. The purpose of the bi partisan bill, now the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act of 2017 is to exempt Jallikattu from the provisions of the Prevention of Cruelty to Animals Act, 1960. This is the situation at present.
The legality of the new act is still in question. First, local ordinances cannot trump the PCA and any exemption will have to be done by way of amendment to the central enactment only. Second, no law can be in violation of the fundamental rights and in this instance, the SC held that Article 21 was being violated. Thereby no amendment to the central act or any local state law would be able to legalise Jallikattu.
On April 6, 2017 the legislature in Maharashtra unanimously passed the law exempting Bullock races in the state from the central act (same method as Jallikattu). Animal Husbandry Minister Mahadev Jankar stated that the rules were strict to ensure no harm was caused to the animals. The district collector had to be informed thirty days prior to the event taking place. Additionally, ambulance facility for the animals would also be present to ensure that their well being is taken care of.
On February 13, 2017 Karnataka also enacted a similar law. It was contested by advocate Siddharth Luthra in the SC in January 2018. However, Chief Justice Dipak Misra postponed the matter till March, 2018. The animal sports continued as usual in Karnataka this year.
As per the SC judgement, no law can be enacted or exemption can be made that would legalise Jallikattu. Unfortunately, the three states which host such events have turned a blind eye to the obvious illegality of the sport and continued to pass legislation in an attempt to legalise it. It is important to remember that these amendments to the PCA are void as they violate a fundamental right. Additionally, unless the Parliament amends the PCA, these amendments would be ultra vires. Another petition has been filed contesting the validity of these legislations in the SC again and it is hoped that by January next year the matter will be resolved.
Stay tuned for next week’s article on the legality of Bullfighting in Spain and Brazil!
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