Jallikattu Case: Supreme Court Constitution Bench Reserves Judgment

A 5 judge Constitutional bench headed by Justice KM Joseph and comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravi Kumar, today concluded hearing the batch of petitions challenging constitutionality of laws permitting Jalikattu, Kambala and bull-cart race in states like Tamil Nadu, Karnataka and Maharashtra. Senior Advocate Shyam Divan, appearing for one of the petitioners, continued his submissions today by answering Justice Rastogi's question from yesterday's hearing wherein Justice Rastogi had specifically asked that how could the court rely on photographs to test the Constitutional validity of a statute? Justice Rastogi had said, "Can we draw any impression based on these reports/photographs? There may be stray incidents. But we are testing the Act in the context of the constitution. Impression based on photographs will be a dangerous situation. We cannot record a finding based on them." Mr. Divan replied to the question today by saying, "In PIL's, it is a settled law based on judgments of this court that, firstly, facts have to be established on affidavit and then those facts can be ascertained via newspaper reports, etc." He further said, "Once satisfied with facts, then there is a need for a counter affidavit. In the facts of the present case right from 2017 we have placed on record several reports prepared year after year. They have been prepared by eye-witnesses who have gone there on the ground. These reports have not been countered by the state at all." At this point Senior Advocate Kapil Sibal rose and said, "They have not served us the reports". To which Mr. Divan replied and said, "Too late in the day for you to say that. We have filed these affidavits since 2017. You chose not to file a reply - too bad!" The next argument that Mr. Divan focussed on was that the experience of the law in question is an important metrix to test its constitutional validity. He said, "What has to be seen is the effect and consequence of the law and not the phraseology of the law to test the vires of these statutes. Several Constitution benches of this court have again and again held that we need to look at the effect and consequence of the law and not the phraseology of the law…It is the effect of the law that is decisive." Connecting it to the instant case, he further argued, "Reports year after year have shown and documented the deaths and the continuing cruelty in the practise of Jallikattu. It is hazardous to ignore the facts established through these reports for five continuous years. So the effect of the law becomes important." He further submitted before the court, "Now, how were these reports prepared? To answer that, we have now filed an affidavit today in addition to the reports where we have stated clearly the entire process in which the reports were prepared by ground investigators." Mr. Divan today also focussed on the practice of Jallikattu being a blood sport. He said, "We have also defined what is a blood sport. Jallikattu is a blood sport." Justice Roy stopped Mr. Divan right there and inquired, "Mr. Divan please explain what you mean by blood sport. How are you describing this as a blood sport? Nobody is using any weapon. What is your understanding of the concept of blood sport? Here people are bare handed. There could be cruelty. Don't show us definitions. Tell us how?" Mr. Divan replied by relying on several scholastic materials put on record to show the nature of blood sports. He said, "Blood sport in the generic sense means inflicting cruelty on the animal through bating. Now that can happen in different manners on different occasions." Justice Roy again inquired from Mr. Divan and said, "Because there is death does not mean it is a blood sport. I have not yet got my answer. People there are not going to kill the animal. Blood may be an incidental thing." Mr. Divan also focussed on the Nagaraja judgment today, to show the cruel nature of Jallikattu that was concluded as a finding of fact by the Supreme Court in that judgment. At this point Justice Joseph asked an interesting question. He said, "Mountaineering is also dangerous. So do we stop that?" Mr. Divan's reply was, "I believe in mountaineering, there is an aspect of agency. In our understanding, animals don't have that. They can't give their consent." On the reports placed before the court by the Petitioners, Mr. Divan specifically said, "These are not random media reports. They have been documented by reliable media houses. Spectators are dying, spectators outside the bull run area are dying, bulls are killing people to death, etc. Your lordships should consider this." Mr. Divan also submitted before the court that post the Nagraja judgment of the SC there has been no change in the practice of conducting Jallikattu. He said, "We have also given a comparison between the older and the newer...

Jallikattu Case: Supreme Court Constitution Bench Reserves Judgment

Anurag Tiwary

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