ABSTRACT still consider it would be better for

ABSTRACT

“Whenever
there is a conflict between the customs and the law, there are two outcomes of
the conflict. One is where the law changes the custom and society and the other
is when the customs and society changes the law”. The purpose of making a case
commentary on this particular case is due to the after effects of the
postponement of the judgement on the public of south India and to study the
relevancy and compatibility of the judgement. The paper also aims in providing
an alternative Even though I stand by and support several view points of the
courts, I still consider it would be better for the court to have gone through
a harmonious approach. The judgement was solely based on the exhibits submitted
by the councils and the pervious. I have briefly explained the obnoxious
reactions from the public towards the judgement and the order of the government
in this paper. According to my observations the view point of the government
hasn’t been noted enough rather the validation of the Acts and Orders were
widely concentrated. The court was being too much stringent on the previous
judgement such a way that it fails to consider the sentimental feelings of the society
and the benefits to them thereof. Hence there were certain curable flows on
part of the court though the judgement cannot be said has completely
irrelevant. 

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INTRODUCTION

India is a country with vast divergence, culture, customs and
practices which has a direct influences on the eco-system. Though these customs
are sources of law many of the customs cannot be in conformity with statute. The
legislature and judiciary take steps in eradicating such practices from the
society. The judgement has proved to be a milestone in perseverance of culture
and the safety of the animals. The issues in consideration of the case includes
one, challenging the Madras High Court judgement on validating the Tamil Nadu
Regulation of Jallikattu Act (hereafter TNRJ Act) and challenging the
notification passed by the government and the other, challenging the Bombay
High Court Judgement validating the 2011 notification whereby bulls were added
in the prohibitory list of performing animals.

Jallikattu and Rekla race are represented as a sport for bravery
which uses trained bulls and participants. These bulls are subjected to immense
cruelty before sending them through the entrance which leads to their violent
behaviour on playground. The deaths and injuries during the game shows its
unhealthy nature. Thus Madras High Court in 2006 banned the practice
of Jallikattu and rekla racing, which was upheld by the Supreme Court
bench headed by Justice K.S. Radakrishnan in this case. An interim orders were
passed by the court since till 2014 permitting both the sports, until the judgement
which strictly banned the sports and held that the rights guaranteed under
Sections 3 and 11 of Prevention of Cruelty to Animals (hereafter PCA Act) and
Articles 51A (g) & (h) cannot be curtailed, except for procedures laid down
under Sections 22 of PCA Act, and instructed the government to protect and
safeguard the freedoms of animals. After the TNRJ Act came into force, the Act
was challenged under Art 32 of constitution. Where the Supreme Court set aside
the judgment of the Madras High Court which validated the Amended TNRJ Act,
2009 and held the Act as unconstitutional and violative to PCA Act and upheld
the judgment of Bombay High Court which validated the Ministry of Environment
and Forest (hereafter MoEF) notification of 2011 including bulls in the list of
animals prohibited from being trained.

 

PARTIES:

In the initial petition i.e., in the writ of Mandamus filed under
Art.226 of Indian Constitution, against Deputy Superintendent of Police of
2006, the parties were

1.     
Petitioner:   K. Muniasamy Thevar, then vice-president of
Karisalkulam panchayat for whom L. Shaji Chellan appeared before the court

2.     
Respondent:    Deputy Superintend of Police for whom
Government Advocate J. Viswanathan appeared

The judgement
was held by Madras High court bench headed by Justice R. Banumathi and Pinki
Chandra Ghose.

Later on, in
2014 in the SLP of Animal welfare board vs. A Nagaraja & other (2014) 7 SCC
547 the parties were

1.    Petitioner or Appallants:    Animal
Welfare Board of India (hereafter AWBI) and People for Ethical Treatment for
Animals (hereafter PETA). Sunil Kr. Jain, Aneesh Mittal, Sachin Sharma, A.K. Soni, G.
Sivabalamurugan, Anis Mohd, L.K. Pandey. Dr. Adish Agarwala appeared.

2.   
Respondents:   A. Nagaraja and other 11 petitions from 2011
to 2014 clubbed together for whom Additional
General, A. Mariarputham, Raj Panjwani were the counsel.

 

PROCEDURAL
FACTS:

The 2006 and
2014 petition was initally filed in Madras High Court as a writ of Mandamus2
under Art 226 and in 2007 the division bench consisting of Justices Elipe
Dharma Rao and P.P.S. Janarthana Raja reversed the previous judgement against
which several SLPs were filed in Supreme Court under Art.1363,
Art 1334,
Art 1425
and Art. 326
and the bench headed by Justice K.S. Radakrishnan granted the leave.

In the appealed case, the son of respondent who was a participant
in the game was killed during the game due to sustaining many injuries on his
body.

HISTORICAL FACTS:

Jallikattu of Tamil Nadu and Bullock cart racing of Maharashtra
were being practiced for over 2500 and 450 years respectively. The term Jallikattu
refers to silver or gold coins tied on the bulls’ horns. In Tamil Nadu, it is a
sports played on the third day of Pongal. On this day a running bull is
released into a crowd, where participants either, grab and ride on the bull to
stop it, or take the flag attached in the bull’s horn7. The
bulls which perform well in this game are used for breeding and they fetch high
price in the market. Similarly rekla race of Maharashtra is organised after
Makara Sankaranthi, on chaitra astami. On this day various cart owners
organises bullock cart race where bullock carts run miles and the winning team
are rewarded.

The roller coaster of the bull games controversy started in the
year 2004 with the petition filed by the South Indian Humanitarian League and
Blue Cross of India to the Petitions’ Committee of the TN state legislature to
ban Jallikattu and other sports using bulls. Though the judgement of the said
petitions held by Justice FM Ibrahim Kalifulla permitted the “sport” with a
rider, that the bulls used in the game should be unharmed.  In 2006 judgement held by Madras High Court by
Justice R. Banumathi and Pinki Chandra Ghose, by expanding the scope on a writ
of mandamus8
filed against a police officer for wilful omission in granting permission for
the condonations filed by villagers seeking permission for conducting the game
by Ramanathapuram Police the court along with dismissing the writ with
reference to the 1996 judgement of Panaji Bench, Bombay High Court, banned
conducting all games involving harsh training of animals like rekla race, oxen
race and jallikattu. This strengthened the then PCA Act, 1960. Whereas in 2007
the division bench9
consisting of Justices Elipe Dharma Rao and P.P.S. Janarthana Raja took a harmonious
construction and enabled regulatory measures to ensure safety of the animals
instead of previous complete restriction, this order was later on overruled by three
judges’ bench of Supreme Court.

The apex court in 2008 granted permission for conducting rekla race
by limiting the race field distance to 15m radius. The Tamil Nadu government
then passed TNRJ Act to do away with this judgement, against which AWBI and
PETA filed writ petition challenged in the Division Bench Judgment on the basis
of PCA Act, MoEF Notification 2011. Another set of SLPs were filed again the
Bombay High Court upholding the MoEF Notification 2011 and the corrigendum
issued by the Government prohibiting exhibition and training of animal, of
which A. Nagaraja father of a participant who died in the course of game and
others, and AWBI and other animal welfare organisation working for the
protection of the animals were parties, the court held the final judgement to
ban both the games stating that these games as violation to S. 5 to S.11 of the
PCA Act and fundamental duties, under Art 51A (g) and (h)10
of the Constitution.

RELIEF:

The relief claimed by the parties were to clarify whether

1.     
the TNRJ
Act was in repugnancy and in violation to PCA Act 1960,

2.     
Jallikatt
and rekla race promotes cruelty in the name of culture

3.     
The Bombay
High Court judgement was justified in upholding the 2011 notification of the
central government.

ARGUMENTS:

From the judgement, the appellants argued on the basis of physical
and mental cruelty faced by the bulls, repugnancy of the Act to PCA Act and many
reports, affidavits and photographs from certified authorities, which talks
about the animal behaviour prior and after the game highlighting the cruelty
over bulls during the games. It was also argued that TNRJ Act doesn’t have the
effect of a law since the President has not assented it. Furthermore forcing an
animal to take part in such game was against Art.51A (g) and Art. 2111
in addition to being in violation to S.3 and 11 of PCA Act.

Organizers of
Jallikattu and rekla race took a stand by stating that the game was conducted
during the days of festival which is being practised for years and proper care
has been taken by the committee members and the bull owners ensuring its safety
and no cruelty as mentioned under S.11(1)(a) is meted out. It was further
argued that the presence of collectors, doctors and police officials etc on
duty ensures such cruelty doesn’t take place and also requested to regulate the
event rather than stopping it. These apprehensions were meet by TNRJ Act. In
addition to this it was argued by the state that non applicability of tickets
for the event excludes them from being a part of S.22 of PCA Act.

The matter of
previous notifications of MoEF was also discussed with reference to N.R. Nair
& Others Vs U.O.I12,
where the court formed a committee to discuss the corrigendum of exclusion of
dogs from the initial list whereas the same was not done at the present
situation.

 

OUTCOME OF THE CASE:

The Special Leave petition was granted and the case was disposed,
setting aside the Madras High Court order of upholding the TNRJ Act, holding the
Act unconstitutional and void, upheld the Bombay High Court judgement
validating 2011 notification whereby bull were included in the list of animals
prohibited from being exhibited and trained.

APPLICATION:

The judgement
in this case strengthened the PCA Act, 1960 and elevated the rights of the
animals to that of Art 21 and imposed Art 51 of constitution as a strict
obligation upon the citizens. It also held that spectators would also be hurt,
since the requirement of 8 feet high barricades were not emulated and
guaranteed rights under S.3 and 11 of PCA Act r/w Art.51A (g) & (h) cannot
be curtailed, unless as per S. 11(3) and 28 of PCA Act. Also recommended the
state and other authorities to take reasonable steps to ensure the protection
of the freedoms. The TNRJ Act 2009 was held violative to Art. 254(1).

ANALYSIS

The judgement starts with a brief summary of the case followed by
arguments and the holding. The decision of Supreme Court though was appropriate
there were alternative methods available which could have been much more
harmonious in nature. The judgement might have strengthened the animal
protection workers and raised the status of animal right to the level of
fundamental rights in the constitution. But it has also lead to public unrest in
the state for three days which ended in passing of an ordinance. The logical
reasoning in the judgement was irrational and it was pleaded by the prosecutor
that “if the court can grant permission for slaughtering animals for religious
then why not grand permission to conduct a game which doesn’t poses any threat
to the life of the animals. The objections contradicts the protection of the
animals”.

REGARDING THE REPUGNANCY NATURE OF THE TNRJ ACT WITH RESPECT TO PCA
ACT, 1960:

It has to be noted that Entry 1713 of
List 3 guarantees the right to frame laws on the said subject to both State and
Union government. The PCA Act was enacted in 1960 for this purpose. In 2009 the
TN State government passed TNRJ Act which was argued to be repugnant to the
1960 Act. This entry indirectly implies that such laws cannot be made which
could be hazardous with respect to purpose of the entry. The evidences submitted
by the AWBI and PETA where cruelty on animals are shown cannot be left blind.
The animal which is being taken care so well and trained require an external
pressure to force them behave in such a manner as in the games, which is
certainly in direct conflict with the Act. The repugnancy arises only when
there is any conflict between both acts and when there is an overlap between
the provisions of the Acts. But here the 2009 Act cannot be repugnant to 1960 because
the 2009 Act can be viewed as an extension to that of 1960 Act. Although the
recent act permits the exhibition and training of animal, prohibited in the
1960 Act. But the Act provides strict regulation over the rules and health of
the bulls.

WITH REGARDS TO PROMOTION OF CRUELTY:

The game is a cruelty not only towards the animals but also towards
participants and spectators. The increase in the number of deaths and injured
while conducting the game cannot be ignored. The responsibility of State is
much wider. Public health being a matter under State list have equal importance
as ensuring public interest. Thus the Act which has a direct impact over the
health and safety of the public cannot be encouraged. Art 19 (1) (g) has given
the right to practice, profess and carry any occupation trade or business and
also forbids to force any citizen to practice profession hence the State cannot
force the citizen to engage in non-profit trade in the name of Agriculture. Though
banning the sports could end the physical and mental torments faced by the
bulls it could also affect in slaughtering of them and leads to their
extinction. This is against the Biodiversity Act 2002.

 

CONCLUSION

The Court laid down the aspects of Article 51-A (g)
and (h), Fundamental Duties on the part of the citizens and extended the scope
of Art. 21 to the animals. It is indeed a ‘dangerous sport’. Considering the
number of people being injured and died and the cruelty and harassment faced.
As said by Mahatma Gandhi “The greatness of a
nation and its moral progress can be judged by the way its animals are treated”.
Treating an animal with cruelty for it’s existence doesn’t make an ideal
methodology. But instead of banishing regulating is better.

1Civil appeal no
5389 of 2014, (2014) 7 SCC 547

2 Shukla VN,
2015,Constitution of India EBC, Lucknow , K. Muniasamy Thevar V/S Deputy
Superintendent Of Police

3 VN  Shukla,2015,p. 534

4 VN Shukla,
2015, p.524

5 JN Pandey, 2015, p. 554

6 Bakshi, 2016,
Constitution of India, Lexis Nexis, Gurgaon

7 Mohamed, n.d,
behist, Available from:

https://www.behist.com/history-jallikattu-tamil-nadu/

8 K. Muniasamy Thevar V/S Deputy Superintendent Of Police

9 Mohamed
Imranullah, n.d, Hindu, Available from:

http://www.thehindu.com/news/national/tamil-nadu/A-tussle-between-judges-and-jallikattu-supporters-on-who-cares-more-for-bulls/article17078293.ece

10 VN  Shukla,2015,p. 387

11 VN  Shukla,2015,p. 227

12 SCI, n.d,
Khanoon India, Available from:

https://www.ecolex.org/details/court-decision/nr-nair-and-ors-vs-union-of-india-and-ors-1016af55-5956-4cf5-9bb3-00033c3304e3/

AIR 2000 Ker 340, (2001) 6 SCC 84

13 Schedule 7 List 3