Jallikattu violates the dignity and civil liberties of non-human animals
By Alok Hisarwala
On May 18th 2023, a five judge Constitutional Bench of the Indian Supreme Court reversed Nagaraja (2014) and with it nullified the nine year ban on the controversial bull sport of Jallikattu, played in a few districts of Tamil Nadu during Pongal in January every year.
Many across the political spectrum, sceptical of the animal rights movement as an essentially elitist movement, have welcomed this decision as a final resolution of a long-standing dispute, that now protects and possibly insulates the cultural realm from animal activists. Barely a few have actually criticized it. Most don’t even know who Nagaraja was, or the tragic story of his son Marimuthu.
Yet their story should not be silenced. It matters that the first real citizen opposition to Jallikattu came from a Dalit farmer from Madurai, who in standing up for his late son, was speaking for many who saw that Jallikattu was just too dangerous and not a real representation of the pillars of compassion and justice integral to Tamil society.
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One early January morning in 2004, N Marimuthu, a highly gifted, 18 year Dalit artist set out to watch and sketch the Jallikattu event at Alanganallur in Madurai. At around 10am while sketching, seated in the spectator’s gallery, he was attacked by a frightened and tortured Jallikattu bull whose horns pierced Marimuthu’s body.
It took them almost six hours to admit Marimuthu to the nearest government hospital, but it was all too late. His father, the eponymous Nagaraja, was devastated, not just at his son’s death, but the implicit indifference with which it was received. Deaths happened at Jallikattu events all the time. There was nothing to be done.
Two years later in 2006, Justice R. Banumathi at the Madras High Court on a separate special application seeking permission and protection for a Rekla event (bullock cart races), mindful of the risk to human and non-human lives, placed a ban on both Jallikattu and Rekla.
It was a watershed moment, but consistent with a quietly growing, secular, judicial trend where High Courts across India – in Goa, Kerala, Delhi, Bangalore and Madras – protected animals from suffering for human entertainment. This infuriated the entire ecosystem of Jallikattu organisers who launched multiple appeals before a Division Bench of the Madras High Court.
Learning about this, Nagaraja wanted to ensure that what happened to his son should not be repeated, but was also deeply concerned that the single judge ban could be reversed. The statutory Animal Welfare Board of India, which at that time was also headquartered in Chennai, had already filed an intervention before the Division Bench Proceedings. But Nagaraja also intervened and became the first private citizen who through his lawyer opposed the sport of Jallikattu in the Court.
Ever since then, Jallikattu has been a subject of consistent litigation in the Madurai and Madras benches in Tamil Nadu and the Supreme Court. It has gone back and forth, with interim and final bans that have stopped and reinstated the sport, on and off since the year 2006, till its ultimate ban by the Supreme Court in 2014 (Nagaraja).
The 2014 Nagaraja judgment was not without its imperfections but is widely recognized as a watershed moment within the limited space of animal-centric jurisprudence. It developed an animal-centric inquiry to conclude that Jallikattu was inherently cruel, creating the possibility of taking animals out of the closed trap of animal welfare.
Unfortunately, its finite and fact-based finding about the torture to bulls and fatal risk to human and animal lives, was widely misunderstood as a hegemonic attack on Tamil culture. It triggered a state wide culture-protectionist movement, only paralleled by the anti-Hindi protests from the early 1950s.
The counter-cultural argument in defence of Jallikattu pioneered initially by the BJP and the AIDMK became “the Shah Bano moment of Animal Rights” – a clear progressive victory that was practically difficult to defend across the political spectrum.
The primal, self-interested arguments, which conjured a caricatured opponent of the foreign animal rights agent, began to find favour with the progressive liberal elite. But how does one reconcile a conflict between human culture and non-human suffering? The answer was simple: a false reassurance of animal welfare was floated, that through new guidelines, and checks and balances appeared to make the sport less cruel.
Between 2016 and 2017, Jallikattu was exempted from the scope of the very definition of animal cruelty, first by a central ordinance and then by a TN State Amendment Act in 2017, with an alleged set of additional guidelines to ensure both safety and welfare.
But was it really less cruel now? Can a “blood” sport that necessitates extreme torture of a bull before its release in an open arena for a direct (lethal) combat with a human, be made less cruel, or more safe?
Elsa Foundation from Tamil Nadu has documented 105 human and 28 bull deaths at Jallikattu events between February 2017 to March 2023. Of these 84 were spectators and 21 bull tamers, poor, largely Dalit, villagers who come for entertainment (or maybe like Marimuthtu to sketch) without any guarantees of safety or compensation, for that matter.
Animal Rights integral to the project of transformative social justice
The 21st century has been marked by staunch judicial activism and constitutional amendments, taking the animal welfare narrative to a rights-centric argument. This period began a significant contribution in validating animals as separate legal entities, worthy of protection under our Constitution.
Nagaraja is one of the most important constitutional court decisions, both in India and internationally (it inspired a 2020 Islamabad High Court decision to rescue a zoo elephant Kaavan), that recognized a claim of equal consideration in disputes concerning the welfare of animals. This would mean that interest of the non-human animal is relevant and must be weighed and considered against the competing human interests in a constitutional dispute over rights and duties.
Through various judicial pronouncements and animal welfare legislations, we have seen the law elevate the status of animals from being mere ‘things’ and ‘properties’ to being entitled to a ‘dignified existence’ to being accorded fundamental rights under the Indian Constitution.
The Supreme Court held that animal welfare laws have to be interpreted keeping in mind the best interest of the species subject to exceptions of human necessity. The Court held that life under Article 21 of the Indian Constitution extends to ‘animal life’ and that our duty to protect animals from suffering has to be elevated to a status of a fundamental right:
“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… Right to dignity and fair treatment is, therefore, not confined to human beings alone, but to animals as well.”
What was the basis for this historic and cross-species leap made by Justice Radhakrishna, who authored the famous 2014 judgement, in including animals under the purview of Article 21? I set out three core reasonings from the judgement.
Nagaraja did this by acknowledging that there are certain types of behaviour that are natural to animals, which are manipulated by humans for their own purposes – entertainment, in this case. In this loss of animal autonomy lies their loss of their right to their natural ways of living and their dignity.
“Jallikattu demonstrates a link between actions of humans and the fear, distress and pain experienced by bulls….Bulls (Bos Indicus) are herbivores, prey by nature adopted to protest themselves when threatened engaging in a flight response, that is run away stimulus, which they find when threatening. Bulls, in that process, use their horns, legs, or brute force to protect themselves from threat or harm. Bulls are often considered to be herd animals. Bulls move in a relaxed manner if they are within a herd or even with other Bulls. Individual Bull exhibits immense anxiety if it is sorted away from the herd. Bulls vocalize when they are forced away from the rest of the herd and vocalization is an indicator of stress. Bulls exhibit a fight or flight response when exposed to a perceived threat.”
Secondly, the judgment noted that through the 42nd Amendment Act to the Indian Constitution, 1976, Article 51(A)(g) was inserted in Part IV of the Constitution, which is today considered the ‘magna carta of animal rights jurisprudence in India’. The amendment casts a fundamental duty on all citizens to protect and improve the natural environment and to have compassion for all living creatures.
And finally, Nagaraja mandated the five internationally recognised freedoms under Chapter 7.1.2. of the Guidelines of World Organisation for Animal Health, in which India is a member, namely
(i) Freedom from hunger, thirst and malnutrition;
(ii) Freedom from fear and distress
(iii) Freedom from physical and thermal discomfort
(iv) Freedom from pain, injury and disease, and
(v) Freedom to express normal patterns of behaviour, have now been read into the provisions of Section 11 of the PCA.
With a recognition of animal autonomy as the animal’s desire to live a natural life, the abject lack of each of the five freedoms in the sport and a constitutional duty to show compassion, Nagaraja paved a constitutional path through Article 21 to put a stop to Jallikattu, as inherently cruel.
The Constitutional Bench’s Rejection and Reversal (2022/2023)
The specific issue in the constitutional review before the five judge bench was a technical query, whether the 2017 Tamil Nadu amendment to Prevention of Cruelty to Animals Act, to preclude Jallikattu from Nagaraja, was in fact a colourable legislation. Let me give you an illustration that might be more relatable. Suppose the state of UP, soon after Navtej, passed a state amendment, under the concurrent federal powers from the Constitution, to retain the application of section 377 of the Indian Penal Code to consenting homosexuals. This is precisely what Tamil Nadu, buckling under political pressure, did.
To truly appreciate the correct context behind the Constitutional Bench ruling from May 2023, it seems evident that judicial concern must have prevailed over the political strife that was sure to ensue if the ban on the sport was confirmed. The Nagaraja reversal was our Shah Bano and Ram Mandir moments combined, where state and judiciary both yielded to popular morality.
Writing unanimously for the entire bench, Justice Aniruddha Bose, has respectfully rejected Nagaraja without a fair or even an adequate engagement with its reasoning:
- Court refused to engage with the cultural argument, stating it did not have enough material.
- It dismissed any scope for constitutional engagement with non-human animals.
- It agreed that the 2017 amendment had substantially changed the sport, making it safer.
In a politically convenient manner, with deeply inadequate reasoning, the judgement does not even do Nagaraja the justice of a fair engagement.
Through its plain, unreasoned disagreement, the Court wriggled out of the larger political worry. It reinstated the sport as a legal event, dismissing all concerns of animal welfare and risk to human life. Soon after the judgement was reserved between Jan-Feb 2023 over 75 people were injured in Jallikattu events with 10 human deaths.
The sport has not changed, because torture to animals and risk to human life are its hallmark. Without this violence, there is no Jallikattu.
When, as in Nagaraja, expert, objective facts determine that a certain practice is based upon torture as its key, non-negotiable ingredient, and that this is for “entertainment”, then this finding must be the driving force to re-examine the cultural exception argument.
Nagaraja is a decision about bodily integrity and autonomy of non-human animals to live natural, free lives. Any deviation to that natural right of the animal must come with many conditions. Culture and entertainment should not be allowed to trump animal autonomy.
Here unfortunately we have two camps. One believes in a narrow reading of the Constitution with no scope for inclusion of animals. The other – to which I belong – believes that our Constitution was always meant to cure, address and respond to every kind of suffering, whether of humans, non-human animals, or nature itself.
The making of the animal interest as a relevant consideration in a Constitutional deliberation is a progression of our Article 21 jurisprudence on socio-economic rights and environmental justice.
It is important here to note that Justice Radhakrishnan, aside from Nagaraja, gave us the principle of eco-centricity as a counter to an anthropocentric view in environment jurisprudence in TN Godavarman 2012 and declared long before Navtej, and despite Suresh Koushal, that transgender people had dignity in the widely celebrated NALSA (2014) judgement.
Nagaraja has gone on to inspire a plethora of secular decisions from different High Courts protecting animal interests. These decisions have come in incremental steps, carefully balancing constitutional imperatives, sometimes to help stray dogs, or an elephant or a horse in need.
The powerful transformative and positive impact of Nagaraja in our jurisprudence, has been erroneously undermined. We need to work towards restoring this.
Finally, we owe the late Nagaraja and our fellow non-human animals, a fraternal, constitutional duty to continue the struggle and movement he so bravely heralded.