Jallikattu: Keeping

Intact the National

Emblem
A Critique of the Jallikattu Case
 JALLIKATTU: KEEPING INTACT THE NATIONAL EMBLEM

A Critique of the Jallikattu Case

“For thousands of years it (Jallikattu) has been known as a sport where we embrace the
bull.”

This observation by Kollywood celebrity Kamal Hassan appropriately summarises the stand
of the Respondents in the “landmark” judgement of Animal Welfare Board of India v. A.
Nagaraja.1 While there is no denying that Jallikattu is a tradition dating back to antiquity,2
claiming that it includes “embracing” the bull is definitely contestable. Although the tradition
has been in vogue since 2,000 years but, as shall be discussed in the ensuing paragraphs, it
was prevalent in a different form during the 1st and the 4th century B.C.

Before we begin with our discussion, it is pertinent to remember that the controversy
pertaining to Jallikattu has notable political and religious nuances. With election of a new
Government at the Centre, there was a rather surprising modification in its (Government’s)
stand regarding the status of bulls used in Jallikattu. Interestingly, the Prevention of Cruelty
Against Animals Act, 1963 (hereafter referred to as “PCA Act”), exempts the sacrifice of
animals for religious and certain other purposes. The provisions were fundamentally relied
upon by the promoters of the sport including the Respondents to justify Jallikattu, regardless
of the reasonability and validity of the section itself.

I. REVISITING JALLIKATTU- THE SAGA SO FAR

The undercurrents of resistance against Jallikattu first appeared in 2004, when a 14-year-old
died after a bull plowed into the front row of the audience.3 Inception of parallel activism by
pro-bono organisations like People for Ethical Treatment for Animals (PETA), led to public
opposition of the sport.4 Eventually, the Ministry of Environment and Forest (hereafter
referred to as “MoEF”) of the United Progressive Alliance (UPA) government, issued a

1
Animal Welfare Board of India v. A. Nagaraja, MANU/SC/0426/2014 (Supreme Court of India) [“The
Jallikattu Case”].
2
Francois Gautier, A WESTERN JOURNALIST OF INDIA, 159 (2011).
3
Daniel Grushkin, Ringing in the New Year by Wrestling Bulls, THE NEW YORK TIMES (March 22, 2007),
available at http://www.nytimes.com/2007/03/22/travel/21webletter.html (Last visited on September 21,
2017).
4
Pranav Joshi, All you need to know about Jallikattu and the controversy around it, THE DECCAN CHRONICLE
(January 19, 2017), available at http://www.deccanchronicle.com/nation/current-affairs/190117/all-you-need-
to-know-about-jallikattu-and-the-controversy-around-it.html (Last visited on September 21, 2017).
notification in 2011, banning the use of bulls as performing animals.5 In direct contravention
of the notification, the sport continued under the Tamil Nadu Regulation of Jallikattu Act,
2009 (hereafter referred to as “TNRJ Act”),6 killing 17 people and leaving over a 1000
injured in a span of 4 years.7

In 2015, the Hon’ble Supreme Court of India pronounced a historic judgment. In a novel
leap, the Court banned the sport of Jallikattu in the light of animals’ rights and Prevention of
Cruelty Act, 1960. The judgement was prima facie a humongous leap from anthropocentrism
to eco-centrism. It declared TNRJ Act as void categorising it as an anthropocentric
legislation.

With multiple stakeholders involved in the event, the ban was welcomed by some, while
some were sceptic, and the remaining were agitated by it. During the proceedings before the
Court, the MoEF of the National Democratic Alliance (NDA) government, claimed to exempt
bulls used for Jallikattu from the operation of the notification. A sudden shift in the stance of
the Government seems rather politically motivated.

Surprisingly, despite of the judgement of the Hon’ble Court, on January 7, 2016, the Central
government issued a notification permitting Jallikattu. Prompting controversy, this
notification led to numerous reactions. The judiciary objected and issued a stay order on the
notification in response to the urgent petitions filed by various pro-bono organisations.
Simultaneously an amendment to the TNRJ Act was passed in Tamil Nadu, legalising
Jallikattu and consequently, a day prior to the judgment, the Centre withdrew its notification
allowing Jallikattu.

II. ANALYSING THE LANDMARK JUDICIAL PRONOUNCEMENT OF 2015 –

UNDERSTANDING THE PRESENT STATUS OF THE SPORT

This section attempts to analyse the current status of the Jallikattu through a comprehensive
discussion of the Jallikattu Case. Currently, the event is conducted under the umbrella of the
amended legislation passed by the State Legislative Assembly of Tamil Nadu. While the

5
The Jallikattu Case, MANU/SC/0426/2014, 4.
6
The Tamil Nadu Regulation of Jallikattu Act, 2009.
7
HT Correspondent, What is Jallikattu? All you need to know about the bull-taming sport, HINDUSTAN TIMES
(January 19, 2017), available at http://www.hindustantimes.com/india-news/jallikattu-ban-protests-all-you-
need-to-know-about-the-festival-sc-ruling/story-Qf3nZRE24637qlapp4hwhK.html (Last visited on September
19, 2017).
government is amending the PCA Act, the Supreme Court is in the process of hearing
arguments on the legislation, to determine its constitutionality.8

The author seeks to analyse as to why, unlike any other judgement pronounced by the
Hon’ble Supreme Court, there has been wide and open contravention of the Jallikattu
judgement. An in-depth insight into the various modalities of the judgement has been
presented in this article, setting forth a critique of the historical precedent.

A. The application of the principle of Ejusdem Generis

Essentially, the judgement revolves around the interpretation and application of section 3, 11,
21 and 22 of the PCA Act. Section 11(1)(a) lists several acts the performance of which is
precluded by the section itself. The list not exhaustive. The section gives an open ended
definition by including the term “or otherwise”. The Court stated that State of Tamil Nadu
claims that the terms “or otherwise” and “unnecessary pain or suffering”, are to be read
applying the doctrine of ejusdem generis. Primarily, nowhere in the arguments has the
Respondent counsel requested the application of this principle.

As one may note through the arguments set forth in the initial paragraphs of the judgement,
the Respondent states that the term “unnecessary pain or suffering” in section 11(1)(a), must
be read with the exceptions given under 11(3). This reasoning is not ejusdem generis. The
principle of ejusdem generis provides that where general words follow an enumeration of
persons or things, by words of a particular and specific meaning, such general words are not
to be construed in their widest extent, but are to be held as applying only to persons or things
of the same general kind or class as those specifically mentioned.9

Clearly, this principle, if applied to section 11(1)(a), will be against the case of the
Respondents, because the term “or otherwise” and “unnecessary pain or suffering”
immediately follow the term “torture”, which covers both physical and mental torture. In
light of the reports given in judgement, it won’t be a far stretch of imagination to conclude
that bulls are subjected to torture during Jallikattu, thus, bringing the sport in the ambit of the
acts listed under section 11(1)(a).

8
Krishnadas Rajagopal, SC refuses to stay TN’s new Jallikattu law, THE HINDU (January 31, 2017), available at
http://www.thehindu.com/news/national/SC-refuses-to-stay-TN%E2%80%99s-new-jallikattu-
law/article17123278.ece1 (Last visited on September 21, 2017).
9
BLACK’S LAW DICTIONARY (Bryan A. Garner ed., 8th edn., 2009).
Overlooking the fact that the Respondents was arguing the case over the interpretation of
“unnecessary pain or suffering” in light of the exceptions of section 11(3), the Court
substantiated its conviction by citing Lilavati Bai v. State of Bombay,10 where the term “or
otherwise” as used in the Indian Electricity Act was explained. Even if the term “or
otherwise” had to be analysed, the Hon’ble Court could have used the principle of ejusdem
generis in such analysis, as exemplified above. Interpretation using the case of Lilavati Bai
was rather out of context and absurd. Furthermore, as a major overlooking, the Court has
failed to point out a crucial fallacy in the argument of the learned senior counsel for the
Respondent, who contended that, section 11(1)(a) does not use the expression “unnecessary
pain or suffering” and hence Jallikattu cannot be prohibited.11 This argument is blatantly
misleading, as section 11(1)(a) does consist of the terms “unnecessary pain or suffering”.

B. The expansion of Article 21- Anthropocentrism under the masks of Eco-

centrism

The extension of right to life to animals was perhaps the most contentious issue in debate,
unfortunately, after the judgement was pronounced. The Hon’ble Bench noted that:

“Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the
word “life” has been given an expanded definition and any disturbance from the basic
environment which includes all forms of life, including animal life, which are necessary for
human life, fall within the meaning of Article 21 of the Constitution.”12

The observation is contradictory when read in the context of certain excerpts from the
judgement mentioned hereinafter.

On one hand, throughout its judgement, the bench has propagated eco-centrism and the idea
of eco-centric legislations.13 On the other hand, the simple and plain interpretation of the
aforementioned extract is that animal life is included in the term ‘life’ as long as it is
necessary to sustain human life. It is submitted that this interpretation is intrinsically and
inherently anthropocentric in its approach, valuing animal life only in terms of human need.

10
Lilavati Bai v. State of Bombay, MANU/SC/0018/1957 (Supreme Court of India).
11
The Jallikattu Case, MANU/SC/0426/2014, 9.
12
Per K.S. Panicker Radhakrishnan, J., The Jallikattu Case, MANU/SC/0426/2014, 62.
13
The Jallikattu Case, MANU/SC/0426/2014, 48-49.
Contradicting itself in the following sentence, the Court stated that “life” in context of
animals, refers to “something more than mere survival or existence or instrumental value for
human-beings”,14 abruptly adopting a prima facie eco-centric interpretation. Unfortunately,
the ambiguity multiplies in the concluding remarks of the judgement. Instead of clarifying the
issue of right to life vis-à-vis animal life and giving a definite direction, the Court boiled
down the entire discussion to elevation of animals rights to constitutional rights.15 The issue
pertaining to Art. 21 was entirely omitted, rendering it open to interpretation.

Consequently, it has posed multiple questions. First, whether animal rights are proposed to be
included as fundamental rights or merely constitutional rights. This categorisation is vital for
determining their enforceability. Second, whether animal life is to be perceived under the
ambit of Art. 21. If yes, third, is the right to life of animals, dependant on their instrumental
value to sustaining human life and ensuring protection of the latter under Art. 21 or is animal
life independently protected irrespective of its utility to human beings? Presently, there are
only speculative answers to these questions and no concrete explanations.

C. Understanding the term ‘sale of tickets’

The major thrust of the PCA Act is on the regulated use of ‘performing animals’.
Unfortunately, the definition given to the term under the Performing Animal Rules of 1973, is
by and large ambiguous and vague. The term means any animal which is used at, or for the
purpose of any entertainment to which the public are admitted through sale of tickets.16
Therefore, any animal, which may be used for the purpose of the entertainment for a
consequent generation of revenue, is a performing animal. The Respondents argued that bulls
are performing animals but due to the absence of ‘sale of tickets’, section 22 will not apply.
The argument is logically and legally unsound.

Although the Court appropriately pointed out that there is no logic or substance in the
Respondents’ argument, but the reasoning behind the inference was misplaced. The Court
reasoned it by laying dependence on MoEF’s notification dated 11.07.2011, where bulls were
specifically prohibited from being exhibited or trained for performance.17 Ironically, the

14
Per K.S. Panicker Radhakrishnan, J., The Jallikattu Case, MANU/SC/0426/2014, 62.
15
The Jallikattu Case, MANU/SC/0426/2014, 77.
16
Rule 2(h), Performing Animals (Registration) Rules, 2001.
17
The Jallikattu Case, MANU/SC/0426/2014, 36.
Court had itself observed that MoEF had abruptly modified its stance, exempting bulls
participating in Jallikattu from the purview and protection of the notification. Nonetheless,
the Court used the notification as a justification.

There are three alternative arguments to reason the inference of unsoundness of the
Respondent’s aforesaid submission. First, as per the aforementioned definition, only when
there is a sale of tickets in the public exhibition of animal, does the said animal fall within the
ambit of ‘performing animals’. Therefore, if bulls have to be categorised as performing
animals, sale of tickets is a pre-requisite condition, which the Respondents have specifically
denied. Second, on a bare perusal of section 22, it is evident that the section applies only to
performing animals. The Respondents claim that bulls are performing animals but
contradicting their claim they also state that section 22 does not apply.

Third, the entire premise of the Respondents’ arguments stands on the ground that there is no
‘sale of tickets’ in Jallikattu. However, interestingly, the Respondents point out that
organisation of sports like Jallikattu, attracts large number of persons which generates
revenue for the State.18 At this juncture it becomes crucial to analyse whether generation of
revenue may be equated to sale of tickets. It is submitted by the author, that the term ‘sale of
tickets’ should be interpreted liberally rather than attributing a narrow interpretation to it. As
noted by the Hon’ble Supreme Court in a catena of cases, every social legislation should be
interpreted using the beneficial rule of construction i.e., if a section is capable of two
constructions, that construction which fulfils the policy of the Act and is more beneficial to
the persons in whose interest the Act has been passed, should be preferred.19

Consequently, in the instant case too, the words ‘sale of tickets’ should not be interpreted
literally, rather the underlying objective of the legislature must be taken into account. PCA is
an animal-oriented legislation; it is not unreasonable to presume that the legislature intended
to cover under this Act all those activities where animals are publically exhibited with the
ultimate purpose of generating income. Therefore, in Jallikattu, even though revenue is not
generated through the ‘sale of tickets’ per se, but as established by the Respondents there is
certainly generation of revenue for the State. Applying this interpretation, the argument of the
Respondents loses ground.

18
The Jallikattu Case, MANU/SC/0426/2014, 5.
19
Jeewanlal Ltd. v. The Appellate Authority Under the Payment of Gratuity Act, MANU/SC/0276/1984, 13.
 D. Unique interpretation of the term ‘performing animals’

The Court adopted a remarkable and unique approach while dealing with the ambiguity with
respect to the term ‘performing animals’. Staying abreast of judicial adventurism, it did not
amend the statutory definition of the term (that being the jurisdiction of the legislature),
rather it used the anatomy of bulls to determine whether or not it is a performing animal
rather than depending on the question of ‘sale of tickets’. While comparing and contrasting
the anatomy of bulls and horses, the Court pointed out that both the animals come within the
domain of ‘Draught and Pack’ animals but due to anatomical variations, horses are habituated
to performing in races and sports while bulls are forced and terrorized, which is a direct
violation of section 3 and 11(1) of the PCA Act.20 Thereby it was concluded that bulls do not
ideally fall under the ambit of performing animals.

The interpretation advanced by the Court hints to a potential amendment that the legislature
ought to bring into the definition of performing animals. The term must be interpreted
keeping in view the anatomical and instinctive ability of an animal to perform the act in
contention rather than basing it on the sale of tickets.

E. Acts protected by operation of the Doctrine of Necessity

The Respondents argued that the offence of doing an activity causing “unnecessary pain and
suffering” under section 11(1)(a) must be assessed in the light of the exceptions of section 11,
which expands the ambit of “unnecessary pain and suffering”, permitting the conduct of some
activities causing pain and suffering. Depending on this analogy, they claimed that Jallikatu
evaluated by the standard permitted under 11(3).

The Court managed to address the Respondents’ claim, which was rather complex in nature,
by adopting a very well established and accepted principle of jurisprudence i.e. the doctrine
of necessity. It explained that the use and killing of animals under section 11(3) are exempted
due to the operation of this doctrine. These activities were categorised as “essential” and
“unavoidable”.21 Though in the opinion of the author, certain activities under section 11(3)
may only be essential and unavoidable from an anthropocentric standpoint. Nonetheless, the
Bench categorically excluded the use of animals for the purpose of entertainment, exhibition
and amusement from the doctrine of necessity. It pointed out that activities like bull-racing

20
The Jallikattu Case, MANU/SC/0426/2014, 33-34.
21
The Jallikattu Case, MANU/SC/0426/2014, 60.
and Jallikattu are non-essential human activities, and thus do not qualify to be assessed in line
with the exceptions laid down under section 11(3).

F. Adopting a novel approach to justify repugnancy of the TNRJ Act

While dealing with constitutional validity of the TNRJ Act, the Court gave certain
fundamental arguments to declare it repugnant. Both the laws fall under Entry 17 of the
Concurrent List, i.e., Prevention of Cruelty to Animals. It is a settled principle that wherever
there is an irreconcilable inconsistency in the provisions of a Central act and a State act, the
Parliamentary legislation will prevail.22

Rather than abruptly ending the discussion, the Bench compared and contrasted the Statement
of Objects and Reasons of both the legislations and concluded that, first, the PCA Act is an
eco-centric legislation, defending the rights of animals whereas TNRJ is anthropocentric in
its approach,23 not enacted for the welfare of animals. Second, it delved into the history of
Jallikattu, satisfactorily dealing with the Respondents’ contention of Jallikattu being a part of
Tamil “culture and tradition”. They distinguished the present form of Jallikattu from its
traditional form prevalent in Tamil culture. Bulls were revered as vehicles of Lord Shiva and
embraced during Yeru Thazuvu (the older version of the modern Jallikattu) rather than being
tortured.24 The Court furthered this argument to prove that the TNRJ Act, which claims
“Jallikattu” to be a 400-year-old tradition is misleading. Therefore, TNRJ Act promoting
Jallikattu in present form, cannot be said to be an Act preventing cruelty against animals
rather, it is an act regulating cruelty against animals.

The most notable and novel observation by the Court while discussing the unconstitutionality
of the TNRJ Act was that, as per section 22 read with section 3, 11(1) and 11(3) of the PCA
Act, even “performing animals” can only be trained to perform in an exhibition. The sections
do not refer to training of animals to withstand the onslaught of tamers. Thus, even if bulls
are “performing animals”, the event of Jallikattu which revolves around bulls bearing assault
of tamers, and the TNRJ Act which sanctions it, are both ultra-vires to the provisions of
Constitution of India.

22
Vijay Kumar Sharma v. State of Karnataka, MANU/SC/0368/1990, 12 (Supreme Court of India).
23
The Jallikattu Case, MANU/SC/0426/2014, 73.
24
The Jallikattu Case, MANU/SC/0426/2014, 42.
III. CONCLUDING REMARKS OF THE AUTHOR

Indisputably, the judgement is breakthrough in the history of environmental studies,

specifically, animal rights. Although, it rendered some issues ambiguous, but it discussed the
concept of speciesism, which is a crucial aspect of anthropocentrism. Although the Court
defended speciesism on the doctrine of necessity, yet, the very mention of it in a judgement
that deals with the development of jurisprudence for protecting animal rights is praiseworthy.
Speciesism, read and understood in the context of the entire judgement, may prompt an
alternate argument challenging the very concept itself, especially with regards to exploitation
of animals for scientific and religious purposes. On a deeper reading of this issue, one may
come across numerous sources which state that Bhagwat Gita, the religious text of Hindus
does not validate animal sacrifice rather obligates mankind to protect animals.

Staying abreast of judicial adventurism, the Court did not modify any provision of PCA Act
or the PCA Rules. But fulfilling its responsibility, it made a suggestion that the Act must be
amended such that it acts as a deterrent. It did not specifically include animal rights as
fundamental rights under Part III of the Constitution of India. However, it termed the rights
under section 3 and section 11 of the PCA Act as uncurtailable rights of animals, subject to
“reasonable restrictions” under section 11(3) and section 28 of the said Act. The most crucial
achievement of this judgement, is that it prompted the induction of a bill in the Parliament to
amend the PCA Act (although prima facie, the bill has omitted certain important sections that
may need amendment).

The introduction of Art. 21 in context of animal rights was a unique approach. Although it
has been a source of much debate, yet, it has at least prompted people to discuss, brainstorm
and argue on a subject that questions anthropocentrism. Some may view the judgment as only
a miniscule beginning, but as a matter of fact it is a quantum leap towards achieving eco-
centrism.