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 regime. Roles of authorities remain the same, penalties have been removed, animal welfare authorities presence has been omitted, etc."
Justice Joseph specifically asked Mr. Divan during the hearing, "In the event that we are upholding these rules, what would you like to be put in place which would improve the condition. Also, can you give us your position on rights vested in the animal in a jurisprudential sense."
Mr. Divan declined to suggest safeguards and insisted that he would rather argue the case on principle. He said, "We are arguing here on principle. If it goes against us, we will pursue it before a different forum, etc." Answering to the second question, Mr. Divan replied, "But, your lordship's second question is important on the rights of animals. On that, Nagaraja articulates, very carefully and well calibrated, the rights of animals. It reflects: firstly, On the duty imposed on individuals. Secondly, Assimilation of five freedoms that are universally recognised which is a minimum requirement. Finally, That there is an evolution in terms of our understanding of rights of animals as sentient beings, etc."
Senior Advocate Sidharth Luthra, appearing for one of the petitioners, made his submissions after Mr. Divan. Countering the argument that Jallikattu is part of the tamilian culture, Mr. Luthra said, "Merely saying that it is a culture cannot be held to be a culture. And assuming that it is a culture, should all cultures be allowed in today's day."
On the issue of arbitrariness, Mr. Luthra argued, "An activity for amusement cannot be brought in the exception of doctrine of necessity because that doctrine is rooted in reasonableness. He further said, "Nagaraja said these animals are unfit for this sport. Even if it has continued for years, doesn't mean we allowed it."
On whether animals have personhood or not, Mr. Luthra made a two point submission. He said as follows:
"1. Ahimsa was one of the founding bases of this nation. We cannot do away with the principle of a non-violent environment.
2. Animals may not be entitled to personhood to the extent of human beings - but they have a limited right to live with dignity and not be treated with cruelty."
Senior Advocate Anand Grover, appearing for one of the petitioners, also made his submissions today. On the issue of presidential assent and whether it is tenable in law, he said, "On presidential assent this is a peculiar case. Rules have been framed. They are the nub of this case. When assent was sought, there were no rules. Now, if you don't have the rules, how can you, as a president, give your assent. Therefore the President could not have given assent."
Mr. Grover also cited the US Supreme Court judgment of Brown vs. Board of Education to state that the actual impact of the law needs to be taken into consideration while deciding the constitutionality of any statute.
One of the important arguments put forth by Mr. Grover today was on dignity. He said, "There is a crisis today of climate change. Children are protesting - what will happen to our future. In that context, the relationship of human beings with animals is seminal. We have reached this state today because we have not accorded respect to animals and plants. Nagaraja tried to cover up for that. It saw the problems confronting humanity as a whole. We still see sentient beings and animals as serving us. That idea is changing now. We should situate our judgment in that context. If we say through this judgment that animals don't have dignity, we will be doing grave injustice to the legal jurisprudence."
Senior Advocate K Venugopal, appearing for the petitioners, then proceeded with his concluding submissions. He said, "Women were also considered as chattels once. Philosophical basis for animal rights is that animals who are sentient beings are eligible to have rights. The five freedoms come from International Law. Mr. Divan talked about blood sport. In ancient Rome there used to be a circus - where animals would fight people and animals. There the crowds enjoyed fighting each other and that blood was spilled. I am asking my lords whether this sort of primitive urge that there are spectators who go to watch bulls with sharp horns being grappled by people should be permissible. Does this practice today do not take us 2000 years ago?"
On legislative competence, Mr. Venugopal argued, "They have talked of this as if it has been passed by a legislature on a tabula rasa or a blank slate. They have failed to see that it is brought in the background of a central act and the Nagaraja judgment. Nagaraja concludes this is not a part of Tamil culture. There are several other findings of fact. When you have five years of data on the implementation of the act that has never been refuted. This law has been implemented with an evil eye and an unequal hat."
Distinguishing his Article 21 argument from Mr. Grover, Mr. Venugopal argued, "I am relying on the right to a safe and wholesome environment and animals are a part of my environment and I don't want an animal to be treated cruelly."
Lastly, Senior Advocate V Giri, appearing for one of the petitioners, then made his submissions before the court. He said, "This is a case where the state has legislated the conduct of Jallikattu out of the purview of animal rights itself. That is why this is colourable. Is this an amendment to the PCA Act by taking Jallikattu out of the act itself. This is an enactment of a law which completely takes one sport out of the purview of prevention of cruelty to animals. This is not a legislation. Rules can never be elevated to the status of a plenary legislation. Rules cannot plug the holes."
Countering the argument that Jallikattu is a part of culture, Mr. Giri submitted, "If Jallikattu is part of culture, Nagaraja considers and holds against it. Now if your lordships, who are sitting in a larger bench, are to hold against it - what is the material placed before this court? In my submission there is a total dearth of material before this court."
The bench reserved the judgment in the case today.
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.
Other Reports on the Jallikattu Hearings:
Animals Have No Rights Under Constitution; Jallikattu Not A Mere Sport, Has A Societal Purpose : TN Govt Tells Supreme Court
Bulls Not Structured To Fight, Converting Them Into Fighting Animals Is Cruelty : Petitioners Argue In Supreme Court Against Jallikattu
"Human Beings Die In Jallikattu Too" : Petitioners Argue Before Supreme Court In Pleas Against Jallikattu And Similar Activities
"If Animals Don't Have Choice, Can They Have Liberty?", Supreme Court Commences Hearing Pleas Against Jallikattu & Similar Activities
Jallikattu | 'Nagaraja Judgment Is On A Wrong Premise That Animals Have Rights' : TN Govt Argues Before Supreme Court
Case Title: Animal Welfare Board of India v. Union of India and others