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Jallikattu | 'Nagaraja Judgment Is On A Wrong Premise That Animals Have Rights' : TN Govt Argues Before Supreme Court
The Supreme Court on Wednesday 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 are 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 Wednesday is as follows-
Senior Advocate Mukul Rohatgi, for the state of Tamil Nadu, had argued on Tuesday, "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"
Mr. Rohatgi continued his submissions on Wednesday.
Justice Aniruddha Bose: "When the humans have a duty to do or not to do something, as far as the litigation, the judgment is concerned, it will have the same effect, whether you hold that the animal has rights or that the humans have obligations"
Mr. Rohatgi: "The entire judgment, from the beginning, proceeds on this premise that in this case, the Supreme Court says that we are concerned only with the right granted to animals and nothing to do with humans. How can you have an approach only of animals and not humans?...No dictionary has the meaning of 'humanism', as used in Article 51A, as given by the judges in the Nagaraja judgment. Your Lordships were thinking of 'humane'. 'Humane' and 'humanism' are completely different. Former is having a human, merciful, compassionate approach. Humanism has nothing to do with it, humanism means a rationalist who doesn't believe either religion or some supernatural power...How does the court decide that Jallikattu or bullock cart races are essential or not essential, that it is avoidable and still causing pain? It is a part of culture, amusement or religion, whatever it is. The court is not the arbiter of deciding whether it is non-essential or not. Can you say that walking in the park for a human being is not essential? He need not walk, he need not run, he need not do this, he need not do that? I told your lordships 11(1)(m) (of the 1960 Act) permits an activity which can be totally for amusement. After domesticating a horse, if you ride a horse, it is only for amusement"
Justice K. M. Joseph: "Suppose the officers of a local body are ill-treating some animals, say dogs. They are treating them in a very cruel manner. Can a writ be filed by somebody saying that don't do it and a mandamus is issued to the officers or the chairperson of the authority to ensure that duty under section 3 (of the 1960 Act) is imposed?"
Mr. Rohatgi: "It is being enforced against a human but at the instance of an animal"
Bench: "But it is on the behalf of an animal"
Mr. Rohatgi: "How do we get that 'behalf'? Some law may say that there is an obligation on you to not inflict extra pain, if you do so then there will be sanction. Fine. It stops there. It doesn't say that there is a corresponding right on the animal to take this action"
Bench: "Take the example of degradation of forest or wildlife conservation. The Preservation of Trees Act, you have in every state, the trees cannot be cut. Can a human not come and say that this has been happening, that a lot of people are violating the law? Your duty to not do a certain act can be enforced by a mandamus?"
Mr. Rohatgi: "Could be. The only difference seems to be that this is the case of animals versus humans, as opposed to the environment which is for humans, by humans"
Bench: "Whether the preservation of a culture can be for the benefit of human beings?"
Mr. Rohatgi: "Culture would be a part of the human beings' well-being. This would take its colour from Article 29. 29 says that the people will have the right to 'conserve'. It doesn't say 'protection' or 'promotion', it says that any citizen residing in India, having a different language, script or culture, shall have the right to 'conserve' it. It's a very peculiar expression- 'conserve'. Just like you have a right of farming, you have a right of conservation...When you domesticate an animal, you have to subject the animal to what I call a carrot-and-stick policy. If you catch a horse which is running around in the wild, you put him in an arena, then you slowly try to tame him, you sit on him, he throws you off, then you whip the horse, you don't give him food for half a day, you force them into submission. If the horse becomes submissive, then you give him a carrot. If the dog does a good job, you give him a biscuit. This is the carrot-and-stick policy"
Bench: (in a lighter vein) "This not confined to animals"
Mr. Rohatgi: "Yes, I was going to say that. It was said that 'spare the rod, spoil the child'. Of course, now there is no corporal punishment...So a delicate balance is to be ensured by virtue of rules, by virtue of ensuring that unnecessary things (pain or suffering) don't occur"
Bench: "So instead of 'unnecessary', can you say it is 'unavoidable' for the purpose?"
Mr. Rohatgi: "Yes, 'unavoidable' is also a phrase. Technically speaking, it was not for the donkey to be a beast of burden, or for the horse to have somebody sitting on it. Even today in several parts of the country, several mountainous areas, these donkeys carry 50 kg of weight, day in and day out. In Kerala and other places, animals carry lumber. Are they supposed to carry lumber?...Even if you use a bull for ploughing the field or as a beast of burden, will you not tame it, will you not domesticate it (in the light of observations in the Nagaraja judgment regarding bull-tamers)? So these conclusions are reached without precedent, without discussion and therefore, they are susceptible to the principal of per incuriam"
Bench: "In addition to animals being at the receiving end of cruelty in Jallikattu, the other dimension is that a lot of humans are also losing their lives and having injuries- Article 21 through the conduit of life being lost. What do you say to that?"
Mr. Rohatgi: "In every field of activity, people lose their lives. Driving on the road, you may not be driving rashly, somebody else may do it, some truck may overturn, some bridge may fall, a building may fall, and you die"
Bench: "But here, you are enabling it to take place. The state is permitting it to happen. What is more, the state is actively promoting it"
Mr. Rohatgi: "Here also, the state is encouraging people to drive hundred miles an hour...a minister is saying it is a great road to Agra so drive at 120 miles an hour. It is like stretching 21 in the same way the judgment (Nagaraja) has stretched 51A in 3 and 11. It's not like many people will die, like in a famine...What the court is doing in this judgment amounts to legislation. Courts don't legislate. You read everything together like one has gone and welded into the other?"
Arguments on Kambala
Advocate Nikhil Goel, for the respondent-state of Karnataka: "Kambala is different from Jallikattu. It is a race for about 100- 135 m. It happens only in coastal regions of Karnataka. The buffaloes are also found only in the coastal regions of Karnataka. The race takes place in slushy water fields, for about 15 to 20 seconds. It is also a separate breed of buffalo. It is attended by local villagers. The petitioners have alleged that inherently it is torturous. A committee was directed to be appointed by the High Court to conduct an enquiry as to what happens on the ground after your lordships' Nagaraja judgment. There is no data, other than photographs, as regards whipping etc...The propensity of an act being misused, an apprehension that an act may be misused, cannot be the basis for legislative action...Also, here is something which would amount to removing the basis of the judgment (in Nagaraja). If you go to 11(3), some exceptions are there which the legislature provides. One exception is for nose roping. If nose roping is permitted under 11(3) by a central legislation as an exception, then we have amended that 11(3) and added Kambala..."
Senior Advocate Shyam Diwan, for the petitioner against the state of Tamil Nadu, in rejoinder: "Since 2017 when the writ petition was filed, in the subsequent years, there are subsequent interlocutory applications which have been prepared and filed on the record of this court. Those IAs bring before this court detailed reports which are based essentially on two sources- the first source is an eyewitness investigation of people who attended the event, they took photographs, they compiled their notes and they made it into a report. The second element of the report is based on various reliable media reports. You have situations where deaths have taken place and injuries have taken place across several districts in the state. If deaths and injuries have taken place across several districts in the state, we have compiled on the basis of media reports from various reliable sources and put them in the report. Media reports are coming year after year, reporting deaths, atrocities, surely the state government should have contradicted those reports and said 'sorry, this is false and you are spreading incorrect news'. These are not paper news reports which we have bundled together and brought to the court. But there was no response from the state government. What the state is projecting, according to us, is humbug. How can you argue with this material on the record? You don't file an affidavit contradicting it, and when this was pointed out you say 'no, no, no, please issue prolific directions'? Your Lordships, with your wide experience, would not be gullible as the state of Tamil Nadu wishes you to be. You will have to examine the material on record- Many tamers pounce on the bull, the bull falls on the tamers in the arena, panicked bull charges back...The whole idea of cruelty was not just deprivation, but the sensation, the noise, the fight-or-flight response. Here, there is a flight response...There are field investigators who went there and on that basis they have prepared this report..."
Bench: "Did you lodge a complaint with the authorities?"
Mr. Diwan: "Yes, we did initially. There were some FIRs"
Bench: "Can we draw any impression based on the photographs that you have shown us? There may be stray instances in any year but we are testing on the anvil of the Constitution, of the scheme in place, as to whether after the assent has been granted by the President to the statutory amendments applicable in the states in question, how far it is valid or not? If we draw the impression based on photographs, it will be a very dangerous situation for us. We cannot hold that a provision enacted in the 1960 Act by the state amendment is bad in law because the photograph is there. Can we record a finding based on these photographs that the legislation is bad?"
Mr. Diwan will respond on Thursday.
Case Title: Animal Welfare Board of India v. Union of India and others