Animals Have No Rights Under Constitution; Jallikattu Not A Mere Sport, Has A Societal Purpose : TN Govt Tells Supreme Court

Update: 2022-12-01 14:10 GMT

A 5 judge Constitutional bench headed by Justice KM Joseph and comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravi Kumar, is hearing a batch of petitions challenging constitutionality of laws permitting Jalikattu, Kambala and bull-cart race in states like Tamil Nadu, Karnataka and Maharashtra.

Senior Advocate Kapil Sibal representing the State of Tamil Nadu started his submissions today. Before laying down the premise of his argument, Mr. Sibal said, "No gain saying that we live in an interdependent world. While we are dependent on animals, their preservation is also important for our own livelihood. There is a food chain that is necessary for survival of both animals and man. There are animals of two kinds wild and domesticated. In the present petition we are dealing with domesticated animals. The Act deals with both kinds of animals."

He further said, "To domesticate an animal is not an easy task. It causes a lot of pain and suffering. But you still domesticate. Any act of domesticating an animal involves pain and suffering. Is it necessary, unnecessary? I don't know? There are animals who don't see the light of the day. They are only on our tables. Is it necessary, unnecessary? I don't know?"

Mr. Sibal then pointed out to the bench three key elements that are going to be the basis of his submissions. He said, "First, is it necessary pain or unnecessary in the present context. Second element, we are dealing with the rights of private individuals who own these animals. Third, when you have legislation called "prevention of cruelty" there is a legislative presumption. It is to prevent cruelty that the law has been enacted."

Mr. Sibal conceded right at the start of his submissions that it is natural for animals do suffer pain in the process of being domesticated or otherwise. However, he said that the real test for the court to see was whether such pain or suffering was "unnecessary". He also said, "I agree that animals are sentient beings. They suffer pain. No doubt about it. All animals suffer pain. In the olden days, I remember, tongas would be used. Horses would be in pain trying to pull humans. Was it necessary or unnecessary? I don't know."

On the argument of the petitioners that animals have rights, Mr. Sibal argued that just because compassion for living creatures is specified as a fundamental duty under Article 51A, it cannot be argued that animals have rights under the Constitution.

"Not every duty results in a concomitant right or a corresponding right as a matter of law. My duty is to respect the national flag. There is no right involved. Several of those duties in 51A. No right involved. Judgment in Nagaraj presumes that because there is a duty to preserve the well being of the animal, the animal has a right to demand it. There is no right involved. It is just that we don't cause a moral wrong in our dealing with animals. To not cause unnecessary pain."

Responding further on the Nagaraj judgment and its findings, that were heavily relied upon by the petitioners, Mr. Sibal argued, "The Nagaraj judgment proceeded on a regime that was prevalent at that time. In Nagaraj, the Animal Welfare Board presented three reports of 2013 pursuant to directions by this court to go and investigate as to what's happening on the ground. The court took them as the factual basis of what was happening on the ground. But now the nature of the regime has changed…The regime of 2013 based on which reports were made and presented in Nagaraj, that entire regime is gone by a new regime that has been brought in via new rules, etc."

On the issue of legislative competence Mr Sibal's reply was, "Can parliament or legislature change the regime - the answer is Yes. Section 3 has been amended. Can the legislature do that - the answer is, Yes. Section 11, 22, 27 all have been amended. Can the legislature do that - the answer is Yes."

He said that the act cannot be a colourable legislation because there was a legislative presumption. He said, "They are saying it is a colourable legislation because it perpetuates cruelty. But there is a presumption. The new regime seeks to prevent it. If it seeks to prevent it, it cannot be a colourable exercise of power."

Justice Bose then inquired, "So the execution is the problem. So if a law contains preventive measures, and in real life if it is found that the law is not implemented in toto, then the law can be struck down because it is not practical."

At this point, taking note of the latest reports showing cruelty in Jallikattu that was relied upon and cited by the Petitioners, Mr. Sibal argued, "I would submit that your lords do that in another case and not in this. This is because the new report relied on by my learned friend was filed a day before this hearing took place."

Justice Bose inquired, "So this report has no probity?"

Mr. Sibal replied None at all.

During the hearing today when Justice Rastogi asked Mr. Sibal if the changes brought in by the rules were merely cosmetic as had been argued by the petitioners, Mr. Sibal replied and said, "I will demonstrate that is not the case. This is a 32 petition. There is no basis to say that the changes are cosmetic. This is no process of adjudication. From 2017-2022, there is no FIR, no complaints. Suddenly one day before the hearing, you present a report of an international organisation and say that in a 32 petition that this should be adjudicated. If you have a grievance, go to the Central Government and ask them to send the animal welfare board to seek redressal. The second way of doing it is to file a suit and say that the State has framed these rules and private persons are conducting Jallikattu and it is not in accordance with rules."

Mr. Sibal also countered the basis of the reports submitted by the petitioners before the court. He said, "These statistics are based on newspaper reports. No basis. No investigation. No evidence. This complete regime change deals with all the problems in the previous regime and cures them. There are obviously going to be violations. Under UAPA, CrPC, there are violations. The law is not followed in letter and spirit always. But, in absence of any determination, this petition does not lie. This report presented by the petitioners cannot be looked at. And other than this report they have no argument at all."

On the format of the sport, Justice Joseph raised an important question with regards to the rules. He said that under the new state rules 'participants' are allowed to embrace the bull. The judge asked if there is any safeguard that only one participant will be allowed to embrace the animal.

Mr. Sibal appreciated the concern coming from the bench and said, "Only one person is allowed to embrace and there are committees and authorities to monitor that. If your lordships want, we can put it in the rules. You can record my statements under instructions. Only one person approaches the bull. Participants are not allowed to touch the bull. It is 'participants and bulls' and not 'participant and bull' because there are several participants and several bulls. If your lordships want I'll out the procedure on affidavit."

The bench was not satisfied with Mr. Sibal's reassurance.

Justice Roy remarked, "We see that a lot of effort is being put by you to fill the gaps in the rules." Later in the day, Justice Joseph would also remark, "So many silences in the impugned legislations. We find it disturbing. You should have taken care."

On the aspect of whether the basis for the sport is pure entertainment, Mr. Sibal argued, "This is an extremely expensive proposition my lords. There is a person who domesticates the animal for months. Not just entertainment my lords. The price of the bull increases in the market . He gets money for it. He also showcases the bull which he has brought up with all compassion and care. What I am talking of now is that there will be some element of discomfort in the practise. But, ofcourse cruelty will not be allowed. Entertainment is only a by product. Here it is to show the vigor of your bull. It is not at all solely for the purpose of entertainment."

On the several photographs presented before the court by the petitioners, Mr. Sibal argued that they were presented in a different context before the bench and are also false.

On the aspect of animal rights being recognised in Nagaraja, Mr. Sibal said, "What is the basis of the conclusion that every duty has a concomitant right? That's the basic flaw in the judgment."

Justice Joseph then remarked, "So, you say the animals don't have rights?"

Mr. Sibal responded by saying, "There has to be a right granted either under the Constitution or the statute. Here there's none"

During the course of the hearing today, Justice Joseph also remarked, "In whatever form you are alive in this world you are entitled to live in dignity. You should not infuse an animal with fear - mental or physical. You cannot use the animal as a toy? This is not compassion."

On the aspect of the breed of bulls that are specifically part of Jalikattu and how the continuance of the practice protects them, Mr. Sibal submitted, "Many of these bulls are part of the domestic breed. Because of cross-fertilisation, the bulls don't have any economic value for the farmer. We need to allow the domestic breed to survive. They are immune from diseases. Otherwise we will be taken over by international breeds. One of the reasons why this is encouraged is to ensure that the domestic breed survives. There is a societal purpose too. When you have a circus, it's purely for entertainment. A cock fight is purely for entertainment. There is a difference between activities purely for entertainment and others that have a societal purpose."

Mr. Sibal further elucidated his point on extinction of the native breed of bulls and said, "The point is that both the Government of India as well as the state of Tamil Nadu are concerned about protecting these breeds. If the domestic bull becomes extinct, it is very dangerous. They will ultimately go to the slaughter house. The ban was there from 2013-2017. The number went down. If you ban it, then it will go underground or numbers of the bulls will go down. It will become an obnoxious activity, and corruption will increase." He further submitted, "The State had two choices. One, ban it. Two, don't ban but regulate it. The state decided to regulate it. Now in Article 32 one cannot adjudicate that the statute is not being executed. There needs to be a finding of fact. That exercise also cannot be done by the court. On one hand, It's a policy matter. And on the other hand, it also cannot be adjudicated by the court."

Countering the findings in Nagaraja, Mr. Sibal argued, "There is no basis for Nagaraja's conclusion. This has been happening for 5000 years. I will show to your lordships that this is the only bull that can perform. And then Nagaraja says that it is unfit. That is why courts should not go into areas that are best left for the legislature."

On the argument of the petitioners that human beings die too during Jallikattu, Justice Joseph inquired from Mr. Sibal, "What about 21. That people die too."

He responded by saying, "My lords, it is a choice that people take. For that matter, people go to the Himalayas, etc. What right does the state have to say that you can't go because you may die."

During the last hearing, the petitioners had argued that bulls are not structured to fight and that converting them into fighting animals amounts to cruelty.

In an earlier hearing, the petitioners had argued that Article 21 rights are attracted in the petition because human beings die too during Jallikattu.

In the hearing before that, Justice Joseph had remarked, "If animals don't have rights, can they have liberty?"

The matter will now be heard on Tuesday i.e. 06-12-2022.

It is important to point out that the present batch of petitions were initially filed to quash and set aside a notification issued by the Union of India on 07.01.2016 and to direct the concerned States to comply with the judgment of the Apex Court in Animal Welfare Board of India v. A. Nagaraja And Ors. (2014) 7 SCC 547. While the matter was pending, the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 was passed. Thereafter, the writ petitions were modified to seek quashing of the said Amendment Act. The Supreme Court had then referred the matter to a constitution bench on whether Tamil Nadu can conserve Jallikattu as its cultural right under Article 29(1) of the Constitution which guarantees protection to cultural rights of citizens. A Division bench of Chief Justice Dipak Misra and Justice Rohinton Nariman had felt the writ petition revolving around Jallikattu involved substantial questions relating to interpretation of the Constitution and referred the matter to the constitution bench with five questions to decide on besides those raised in the writ petitions.

Case Title : Animal Welfare Board of India versus Union of India and others W.P.(C) No. 23/2016 and connected cases

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