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Jallikattu Case| Legislature Entitled To Exempt Incidental Pain From Animal Cruelty : TN Govt Argues Before Supreme Court
The Supreme Court on Tuesday resumed hearing on the challenge to the constitutionality of laws permitting Jalikattu, Kambala and bull-cart race in states like Tamil Nadu, Karnataka and Maharashtra
The 5-judge bench of Justices K. M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C. T. Ravi Kumar is hearing the matter. 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. 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 The Supreme Court had then referred the matter to a constitution bench
The court-room exchange as it transpired on Tuesday is as follows-
'Once legislature exempts an activity as valid, then the fear or pain or suffering which is inevitable, incidental is taken care of by the exemption'- Senior Advocate Rakesh Dwivedi, for the state of Tamil Nadu
Mr. Dwivedi: "How do we construe the expression 'unnecessary pain or suffering' which runs through various provisions of the Act like section 3, section 7 and even the preamble? The term 'unnecessary' will qualify both 'pain' and 'suffering'. 'Unnecessary pain' or 'unnecessary suffering'- it should be looked at like this. When it says that infliction of unnecessary pain or unnecessary suffering is to be prevented, it contemplates that some necessary pain or necessary suffering is going to result on account of the activities which are permitted by the Act. For example, 11(1) says overloading should not be there, but that does not mean that when you load, there is no pain or suffering. The activity of loading for transport is permitted. The rules specify how much can be carried, how many people can be carried, so if you are compliant with the rules which are regulatory rules and delimiting yourself to that, the pain is there, the suffering is there, but that is necessary because that activity was permissible. Likewise, overdriving or overriding. Driving or riding is permitted"
Bench: "How does the Act proceed? Animal is taken as an independent entity or some human has ownership of the animals and his activities in relation to the animal are regulated? Section 11 (on what amounts to treating animals cruelly) begins with 'if any person', so it can only be by a human being. There has to be some mens rea also since it is a criminal activity- so you are so lacking in compassion that you do this..."
Mr. Dwivedi: "Entry 17 of the concurrent list indicates that it is in relation to human beings because somebody is being prevented from doing cruelty. These are ethics of compassion which human beings have realised in context of environment, in context of other living beings..."
Bench: "11(1)(c) also. It says 'wilfully and unreasonably administers any injurious drug or injurious substance to any animal'. There is no question of an animal administering it to another animal. It is in connection to human beings only"
Mr. Dwivedi: "It is not that if a farmer, while driving his bullock cart to his farm for tilling, gives a kick to the bullock, that will amount to cruelty. There has to be unnecessary pain or suffering. This is a very significant aspect of this Act because there are permitted acts which cause some pain or suffering per se"
Bench: "If you look at the perspective of essential human activities and non-essential human activities- if you domesticate the animal for some purpose, it is different, but when you come to sporting events or entertainment...?"
Mr. Dwivedi: "The legislature is entitled to exempt activities on some justifiable reasoning. That justifiable reason could be based on religion, could be based on safety considerations, could be based on experimentation, for curing diseases etc, there are a variety of factors. For example, killing for food. There, the food culture comes in. One can't imagine- if we banned fish, then there goes the 'machhor jhol'. Every state in India has some culture. It is a multicultural country. Somewhere you need biryani. So when the clause says that you can kill any animal for food, that is culture-based. It is not an unavoidable thing, it is not something without which we cannot exist. Everybody can survive, after all the vegetarians and vegans are surviving. It is not that if we don't eat fish, mutton etc, you will die. It is only the culture. The food habit. The choice. Large number of people are eating this, how do you prevent it straightaway and say 'banned'? Muslims may say that our religion says that you will have halal, so section 28 (of the 1960 Act) comes in- not only killing, but killing in a specific manner which may cause extreme suffering...11(3)(e) exempts 'the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering'. So even if you are killing, don't do it in a manner which would cause extreme suffering- Stun the buffalo and then kill it, Don't kill it in front of another buffalo, give anaesthesia. So since killing is permitted, that much pain or suffering they will tolerate, but not unnecessary pain or suffering. If that was the scheme, then halal would not have been possible. There comes 28. Then there is a religious basis for this extreme pain justification. 28 says 'Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community'- so the whole Act is overridden for extreme pain, Religion is a value which the legislature keeps to even permit extreme pain"
Bench: "(a) to (e) [of section 11(3)] deal with aspects either relating to safety of the human beings- for example, destruction of stray dogs, research for the real benefit of human beings- and (e) is food which is considered to be virtually essential. As I discovered when I went to Nainital, contrary to the practice in Kerala where Brahmins don't eat meat, I was in for a shock when I found out that in hilly areas, they eat it. Because of the weather, the culture is so . When you go to the Arctic, can you survive on vegetarian food? The conditions are so, you need the protein"
Mr. Dwivedi: "That is how culture is born- People living in a particular environment over a period of time, the necessity of the habitat, when we are born in a family which is eating..."
Bench: "Human beings started as meat eaters"
Mr. Dwivedi: "Yes, they were hunters, then there was food gathering, then agriculture. Things have evolved"
Bench: "Your taste buds actually dictate. When you find cooked food on the table, it is your taste buds which send a signal to your brain. You are used to a particular taste which makes you comfortable"
Mr. Dwivedi: "From taste-neutral when we are born, we go on to acquiring taste. The point which I am making is that it is for the legislature to decide which value judgment to attach and to respect. Once they decide that on account of religion we will tolerate extreme pain, it is a value judgment, though religion has evolved and should evolve. We cannot keep saying that the age-old practices would continue- initially, they may have been good but which today, from our understanding, are evil. Religion also must evolve. But are we at a stage where we can say that 28 needs to be deleted? That is for the legislature to decide if we have reached that stage or not, the whole complex life is to be considered for that purpose, the meat industry is there, the employment is there, it is a huge complex"
Bench: "Whether something is avoidable cannot alone decide it. Because vegetarians survive, so if you say that without meat you can survive, that cannot be the basis for deciding"
Mr. Dwivedi: "It is for the legislature to make a value judgment with regard to a particular activity, look at the people's habits, their culture, their lifestyle, the pattern of living"
Bench: "But this value judgment theory is bound to change with the efflux of time, it would never be static"
Mr. Dwivedi: "I'm saying even religion must evolve. But in exercise of judicial review, in view of all these imponderable complex factors, is it possible to put it on the balance?"
Bench: "So when Nagaraja was pronounced, the value judgment which prevailed at that time may be alright, but with better understanding, it has come to change? But what is the change, you must tell us"
Mr. Dwivedi: "I am saying Nagaraja was wrong in drawing this distinction of avoidable, unavoidable, essential, non-essential in judicial review. We human beings subscribe to a religion and we have chosen to subscribe to it, which mandates that you must kill in this manner, and so 28 comes in. Now Nagaraja says that this 1960 Act is eco-centric, whereas the state Act is anthropocentric. I don't see how this Prevention of Cruelty to Animals Act is eco-centric. The whole 11(3), 14, 17, 28, all of them are anthropocentric. But it tries to balance in its own way the duty of compassion. Whether we extract this duty of compassion from the animal being sentient, or the environment, or the fact that we are living with animals and they are our resources, whichever way we derive it, whatever comes out is not a right but a duty of compassion. So when the legislature does the balancing and permits an act, the pain and suffering which is per se involved in that, that which is inevitable, incidental, that is exempted. The cruel aspect remains"
Bench: "11(1)(b) says 'employs in any work or labour or for any purpose any animal which, by reason of its age or any disease, infirmity, wound, sore or other cause, is unfit to be so employed or, being the owner, permits any such unfit animal to be so employed'...What we would like to highlight is 'unfit to be so employed'. 'Other cause' may mean that is naturally not suited for something"
Mr. Dwivedi: "That would take its colour from the preceding expressions of disease, wound etc, by way of ejusdem generis"
Bench: "If you want to put a dynamic interpretation on it for the benefit of the animal, you could also say that when it is inflicted with gross fear. From your previous experience, you have seen how the animal reacts- there is cheering crowd, you let loose an animal, it is surrounded by 14 men- the substratum of fear remains"
Mr. Dwivedi: "But once the legislature exempts an activity as valid, then the fear or pain or suffering which is inevitable, that is what the exemption is taking care of"
Justice Joseph: "There is a post-traumatic stress syndrome. If you have gone through a harrowing experience, even the hint or the semblance of a repeat happening, it can trigger that stress syndrome. In London, a person committed murder and then he set it up as a defence that I went back to that experience"
Mr. Dwivedi: "But that is pain which is incidental, inevitable with regard to an activity which has been decriminalised. Under 28, Jallikattu is no longer an offence, now it is upto the legislature to criminalise it or not. In 11(3), the non-obstante clause is also limited to the activity permitted, it does not totally override 11(1). When I am taking for dehorning, branding, nose roping, I cannot keep kicking or brutalising. In 11(1), the very fact that Jallikattu was included as (f) (by the state amendment), it does not permit anybody to torture. Once this interpretation is accepted, everything falls into place. Veterinary experts are there, the running area and the runway is there, Jallikattu is permitted according to the culture, taking care of the well-being"
Bench: "But making an act an offence does not by itself create a right in favour of the animal. If the law is used jurisprudentially, there can be no obstacle to creating rights for animals"
Mr. Dwivedi: "Unnecessary pain or suffering cannot be there, that has been given"
Bench: "But that is not a right. That is the duty of the human being which otherwise would lead to him being punished. That is different from a right"
Mr. Dwivedi: "That is for the legislature to decide if we have reached that stage where that right needs to be given. Under Entry 17, both legislatures are to define what is cruelty and tell which cruelty is to be prevented and say which aspects of cruelty are those which are merely to be regulated and which of them have to be left untouched like section 28. So if the Parliament decides not to regulate a particular activity which is covered by 28, then it cannot be said that the Parliament is perpetuating cruelty, it is just that that cruelty is based on religion and Parliament does not want to regulate it. So this Entry 17, when it talks of prevention, it is necessarily implicit that the legislature would have all this power. For example, if the Parliament had not made Prevention of Cruelty Act so all this cruelty would have continued"
Bench: "Come to section 428 and 429 of Indian Penal Code. If you come to section 11(1)(l) [of the 1960 Act], it speaks of mutilating any animal or killing any animal in a cruel manner. What we are concerned with is that it shall be punishable, in the case of a first offence, with a fine not to extend Rs.10. So if he does it for the first time, ironically, the Act which is supposed to take care of animals, it punishes them with Rs.10. And then under 428 and 429, you can punish them for five years. If you have the choice of applying 428 or 429, which will survive? Both are by the central government. Look at the irony of it, if you do in a very cruel manner, you will be punished by a lighter sentence, but if you kill in the manner provided in 429, you can go up to 5 years. We find it very..."
Mr. Dwivedi: "But that is based on mischief"
Bench: "But animals have always been regarded as chattels and property in English law. So 428 and 429, does it gel well with the scheme of the Act? Because if you do it with your own animal, then it is not mischief. And then they took more care of it because animal was basically treated as having value, as chattel, as a thing"
Mr. Dwivedi: "Entry 17 does not take away the power of the legislature to provide exemptions and it is for the legislature to provide which cruelty is to be prevented, regulated, and which is to be allowed to remain as such. Suppose if the Parliament had not made the Act at all, then whatever was going on would have gone on"
Bench: "Then possibly 428 and 429 would have applied"
Mr. Dwivedi: "429 and 428 proceed on the basis of mischief under 425. This is a throwback to the bygone era when animals were regarded as property, it is reflection of that sentiment that they are property, you cause destruction of somebody's property, then the section comes in. The sentiment was in 1890 that this is property"
Justice Aniruddha Bose: "What is the tax treatment for accounting purposes If somebody is owning a prize-winning horse. Is it reflected in the balance sheet as an asset?"
Bench: "By making law under Entry 17, if it is not an essential activity for human beings, if it is for entertainment or culture, and you subject to brutality...?"
Mr. Dwivedi: "If culture is an essential part of Article 29, why can't it be made the basis for exemption under article 29(1) if the activity has been going on for a very long time in a particular season, without any variation? There is research also done by Jawaharlal University which indicates that it is very old. There are rock paintings depicting that this is going on. See entry 33 of list II. Even if we take it as sport or entertainment, there are sports which are pure and simple sports like cricket and there are sports which are meant for rural people. It is not about us, we have to see if the people of Tamil Nadu consider Jallikattu as a part of their culture. It has been celebrated in the Pongal season every year to celebrate a good harvest. Earlier, it was also used for finding a suitable groom for young girls in villages. Sporting event can also be a cultural event. Especially in rural areas, 70% of the bulls are owned by small and marginal farmers. They don't go to cinema halls, how do they entertain if they can't participate?...80% of the bulls are not caught by anybody. They just come out and dash. For 5000 years, we have had Jallikattu and the bulls have been running and now somebody is arguing that bulls are not naturally-running animals? It is not that we are expecting the bulls to run like horses!"
'Without Presidential assent also, what Maharashtra, Tamil Nadu, Karnataka state amendments have done is cull out another exception to section 11 of Prevention of Cruelty to Animals Act which permits exemptions for more severe things like killing also; We may not travel into whether there is any repugnancy or not'- SG Tushar Mehta
SG: "Broadly, the Act provides for two things- firstly, no cruelty, and secondly, even if there is an act which may involve cruelty, no unnecessary pain or suffering. The legislative scheme goes to the extent of permitting not just cruelty but killing, either for food or for sacrifice or any other purposes. The limited purpose within which your lordships may consider exercising judicial review is when a state legislature enacts an enactment carving out yet another exception, would it Per se be repugnant? Because in my submission, even the state would be exercising powers under entry 17 of list three, the concurrent list. In my respectful submission, I do not think it can be seriously disputed that there is legislative incompetence. My submission is that in law, there is no repugnancy at the outset because it is only carving out one more exception with the very same condition which the statute stipulates"
Bench: "But the state amendments in their own right would be repugnant"
SG: "I am conscious of that. We may not travel into whether there is any repugnancy or not. As a proposition, without Presidential assent also, what they have done is culling out another exception to section 11 which permits exceptions for more severe things like killing also. If there is a statutory provision in place, your lordships would only examine the particular provision and hold whether the provision is arbitrary, if the classification is reasonable, if it is discriminatory, if there is legislative competence. Your lordships may say that Jallikattu or any race is not permissible only in the absence of a statute. Once the statute is in force, your lordships would examine the validity of the statute. We are not in the era of Vishakha judgment that there is a lacuna and your lordships are trying to fill it up...I support the stand of all three states-Tamil Nadu, Karnataka and Maharashtra. In Maharashtra, the impression which is intentionally or unintentionally being communicated on the petitioners' side is that any bull is picked up and he takes part in either Jallikattu or the race. That is not the case- Training takes place, veterinary care is taken, practice takes place and that is what happens in the state of Maharashtra. The Bulls which are participating only in racing are a separate breed of bulls also. They're not employed in agricultural activities or as a transport. Like a race-running horse will not be in a horse carriage. We in the state of Maharashtra constituted an expert committee and there is an elaborate, detailed report on this which we have placed on record- what happens is this specially trained and protected breed, they run the race, the general racing arena is 200 to 300 m but the law permits maximum 1000 m. Last year, I am told, a bull of this breed was sold for 31 lakhs. They get trained like horses. They are trained around the year"
Bench: "The government of Maharashtra prohibited bullock cart races"
SG: "But they did not prohibit it on the grounds that there is some pain or tail twisting etc. Even that has gone now, now we have a separate regime the validity of which is in question"
Bench: "In 2011, state of Maharashtra issued a corrigendum and imposed a total prohibition. Then the High Court actually upheld the ban. The Review was dismissed. Then came the SLP. The government was defending its ban. In Nagaraja, it is said that Maharashtra has accepted the judgment of the High Court. So unlike Tamil Nadu, here the government actually imposed a ban. If it is a part of your culture, would you ban it? Little contradiction is there"
SG: "That was because there was no provision to ensure prevention of pain and suffering..."
Bench: "Section 3 says 'unnecessary pain or suffering'. The hammer in the substantive Act is 'unnecessary'. But now you're saying no pain or suffering (by the Maharashtra state amendment). State of Maharashtra deliberately deleted the word 'unnecessary' which is there under the Tamil Nadu regime"
SG: "It means No pain or suffering as envisaged under the Act is caused"
Bench: "If the bull does not want to run the race, just stands there, how do you get into action, how do you activate it?"
SG: "It is a situation where a horse which is not fit is sent for participating in the race. That is exactly what this is. A separate breed, separately trained, people send it to win. We don't send it to lose. If it doesn't want to participate, it doesn't want to participate"
Bench: "So you don't hit it, kick it?"
SG: "It is prohibited in the rules"
Bench: "Does it really work on the ground? Do you have a videograph of how the races are run?"
SG: "Yes, we have the videography. Even every horse needs a little kicking. That is why it is 'unnecessary pain or suffering'. It is not a cruel kick, it is only an indication that you have to start. It is not a punch which causes suffering. The rules provide for a pre-race check up by the veterinarian doctor and the collector will give you permission only if he is satisfied of the full compliance with the rules. Possibility of a breach of law may not be a ground for declaration of the entire law as bad. That is where the penal provision comes in in that individual case. In Tamil Nadu, this tradition is of thousands of years back. It is nobody's case that it is not a part of culture, it is not a part of custom. The only argument essentially is that there is some pain, whether you have taken care of it by way of statutory mechanism, and if it is repugnant, whether there is any assent. Even the assent is not under challenge. The arguments are more on compassion than on law. The bull race culture dates back to the Harappa civilisation. Forget the race, the relationship between humans and Bulls dates back to the Harappa civilisation"
Bench: "How did the state of Maharashtra at one point of time assiduously ban and vigorously defend the ban that it is not a part of culture? Tamil Nadu is very consistent"
SG: "There was a ban. Some of us had said that it is not part of culture. Thereafter an expert committee is appointed. The report said it is part of tradition and culture.
The distinction between earlier stand and present stand is committee report, reconsideration by the government, the entitlement of the government to reconsider a decision based upon the report of the expert committee"
'Concerned that it will become a precedent that the decision of the President was called upon in judicial review even absent a challenge and without a prima facie satisfaction that the presidential assent is bad'- SG
SG: "We are concerned that since your lordships are sitting in a 5-judge bench, it will become a precedent that the decision of the President was called upon and the court sat in judicial review. That too in the absence of a challenge. Even if there was a challenge, your lordships have to be prima facie satisfied that the assent is bad and then call for the files, not on account of intellectual curiosity. It is my request that your lordships may peruse the file, but please don't record in the order"
Bench: "In a country which is governed by the Constitution and the rule of law..."
SG: "There is no question of lowering the dignity. There is the question of constitutional sacrosanctity"
Senior Advocate Anand Grover, for one of the petitioners: "There can be no assumption of general presidential assent. President has to be informed of the repugnancy. Your Lordships are continuously being told there is no foundation (to question the assent)"
SG: "Whenever there is a decision, which is not even in question, the rule of law, that Your Lordships said, would follow- A factual foundation is needed that this is bad because of 'A', 'B', 'C' reasons, and Your lordships' prima facie opinion that 'yes, it appears to be bad because of A-B-C reason'. Only then would the court call for the files. Whether the file can be gone into without any factual foundation case being made? I am concerned with the rule of law prevailing on both sides..."
Mr. Grover: "When the assent papers are not even present in court, how do I make a factual foundation out?"
Senior Advocate Kapil Sibal, for the state of Tamil Nadu: "So every presidential assent will be challenged because it is bad and therefore, the file should be shown?"
'There is no warrant, either in our Constitution or in the 1960 Act, to say that the duties on humans lead to corresponding rights of animals'- Senior Advocate Mukul Rohatgi, for the state of Tamil Nadu
Mr. Rohatgi: "With regard to Nagaraja, it is my submission that Nagaraja does not lay down correct law. Nagaraja has three pillars- repugnancy; three reports of the board showing the prevailing position then; and thirdly, that animals have statutory rights which have been raised virtually through constitutional rights. With regard to repugnancy and the scenario, repugnancy is met by virtue of assent, and the scenario then prevailing is taken over by the scenario now prevailing which is based on the rules that your lordships saw and the stand of the board that for the years 2018, 19, 20, 21, 22, there is a change in the scenario and by virtue of the rules which have been strictly implemented by the state of Tamil Nadu, the position then obtaining does not obtain today. We are left with the issue of rights of animals. And I submit that the judgment proceeds on the premise that they have rights, animals have rights, because humans have duties. If humans have duties, animals have rights and those rights are under 3 and 11 (of the 1960 Act) and those rights have to be protected. This is the basis of that judgment. I submit that there is no warrant, either in our Constitution or in this Act, to say that the duties on humans lead to corresponding rights of animals. And those rights, the rights under this Act have been intermingled by the judgment as flowing from Article 51A and the 'Five Freedoms' (of animal welfare), and 3 and 11 have been mixed up to say that this is the compendium of rights in the judgment. I submit there is no warrant in our Constitution. These are legal duties on the pain of sanction, that if you don't do this, you will be disorderly"
Bench: "Can an animal enforce its legal rights?"
Mr. Rohatgi: "No, not in our Constitution. Perhaps in certain constitutions across the world or under some covenant. The Parliament can create legal rights, but the Parliament has not. Let us contrast it with fundamental duties and directive principles. Both are not enforceable, though they are for humans, they exist for citizens. So even citizens of this country cannot enforce fundamental duties or directive principles against the State. So how is it that rights are contemplated of animals which are intermingled and interspersed with the fundamental duties under article 51A?...This country is struggling for enforcement of fundamental rights even. We come under 32, which itself is a fundamental right, then your lordships say go to the high court. These are things not contemplated by Constitution"
Bench: "Are you saying the animals don't have any enforceable rights and therefore, nobody can come forth to enforce them?"
Mr. Rohatgi: "I am saying they have no rights, so enforceability is..."
Bench: "Are you saying that because an animal cannot come to court?"
Mr. Rohatgi: "I'm saying there has to be some foundation in law"
Bench: "There are laws which prevent cutting of trees. Trees also have life. Can it be said that trees have rights? Does the ocean have rights? The nature?"
Mr. Rohatgi: "You have the Chipko movement (for trees)...It is the ingredient of an offence. If you spoil the environment, the soil and the ocean, there is sanction of law. Otherwise, it will be an anathema to the way we think- humans have to live in orderly form, there are rules, there is a society. There is no right in the tree, or the grass that you're cutting it at a particular time...Take the example of a horse. I have a horse, I use it for riding, not like a donkey, not for agricultural purposes. That is clearly for my amusement. That is allowed. Even if Jallikattu was to be pure amusement, without falling in the clutches of any offences, it is permissible in 11(1)(m). None of those acts as mentioned in (m) are done, then even solely for amusement it is permitted"
Bench: "Whatever limited mental faculties a bull has, based on past experience, when you put it in the spot for Jallikattu with 10-14 men, it starts anticipating, there is fear?"
Mr. Rohatgi: "If Jallikattu is properly done in the form of traditions that they had, with strict supervision of the collector, then even if it is for amusement, rather than a tradition, it is permitted under the law..."
Case Title: Animal Welfare Board of India v. Union of India and others