Thread by @lawbarandbench

#SupremeCourt Constitution Bench led by Justice KM Joseph to continue hearing pleas challenging the laws legalising bull-taming sport Jallikatu and others.

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Sr Adv Kapil Sibal brings arguments for the State of Tamil Nadu government.

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*Correction: begins arguments

Sibal: Domestication of animal itself is painful, but what is prohibited is unnecessary pain. We are dealing with the rights of all these animals, the Act is to regulate the conduct not of the animal but humans towards them.

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Sibal: I agree with them that animals are sentient beings and feel pain.

Justice Joseph: What causes the pain?

Sibal: Any external ...
SC: Stimuli?

Sibal: Yes.

Justice Joseph speaks of an animal rights judgment from Ecuador, involving a monkey that died of cardiac arrest within a month of being released into the wild.

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Sibal: They are terming it colourable legislation because it perpetuates cruelty, but there is a presumption. The new regime seeks to prevent that. If it seeks to prevent, it cannot be a colourable exercise of power. It is covered under custom as well

[Sibal reads from pleadings

Justice Bose: Would it be open for the Court to hold that the provisions to prevent cruelty are unimplementable and so the Act is inherently allowing cruelty?

Sibal: Leave that for another case. That was a private report filed one day before, Tamil Nadu was not heard. Have...

Sibal: filed a single FIR in Tamil Nadu?

Justice Bose: So this report has no probative value according to you?

Sibal: Yes.

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Justice Ravikumar: So PETA who filed the report is not before us in any writ?

Sibal: Yes they are a private body who also pressed. But they have not withdrawn their writ.

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SC: So it is a petitioner's report.

Sibal: Yes, who remains quiet from 2017-2022 and asks this Court to decide on facts without being here. It should be dismissed.

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Justice Ravikumar: So this report contains material collected by the petitioner? And then produced without Affidavit?

Sibal: Collated from newspapers one day before.

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Sibal: Participants are not allowed to touch the bulls. They are in the holding area. Then, when the bull goes into the arena.. only one person goes.

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Sibal: I will put an affidavit on procedure.

Court: 5(2) says participantS be permitted. Suppose a group of them stands up and says how can a monitory committee stop us?

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Sibal explains rules and procedure.

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Sibal: All participants cannot be embracing one bull!

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Court: If they had said only "one" participant allowed, it would have been different. It should be found in the rule.

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Court: Take it in a lighter vein, each of participating men would be targetting a particular bull.

Sibal: But the mechanics is that, three people at the same time don't go. In practice.

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Court: The CCTV camera will clearly show this.

Sibal: We'll show it.

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Court: In some of the images, there is more than one participant.

Sibal: No, participants are more than one but only one can approach the bull!

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Sibal: According to me, in the absence of facts these issues cannot be gone into under 32. They have remedies under the law.

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Sibal: Every activity is videographed. Theres also a compliance report to be given. We could be not be stating anything different from what we are presenting.

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Court: What the court said that a bull is not inherently meant for this. Secondly, even if it's for a limited period of 2 minutes.. the fear.. it is the worst kind of pain is putting someone in fear.

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Court: for the entertainment of human beings.. should we subject animals, for whom we are supposed to have compassion as a constitutional value.. can a state allow on the basis of perception of cultural rights..

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Court: What is the basis of perpetuating cruelty and seeking shelter under entry 17.

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Sibal: What's the basis for saying this is pure entertainment? Please look at historical perspective.

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Sibal: This whole concept that it's only for entertainment, that's not the case at all.

Court: What is the evidence of it being a cultural practice?

Sibal: I'll show that.

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Sibal: The State itself takes frozen semen from this bull.. to preserve and use it. There are several uses put to it.

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Sibal: He showcases this bull with great love and compassion he has brought it up. He doesn't want to cause it pain. What does happen is, in the process of that performance there is an element of discomfort. If you cause injury: Unacceptable.

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Court: You have to answer whether animals have personhood. In Europe, they actually treat animals as things. Now, they are slowly being recognised as sentient beings. Now, if they are.. we are dealing with a completely new area

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Sibal: They are sentient beings.. it is our duty to protect them. Show compassion. I agree entirely.

Shows Section 11.

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Sibal: There is an element of mens rea.

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Sibal: They key here is "unnecessary".

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Sibal: you keep a dog on a leash, they are at home while the woman goes to work. The moment you domesticate an animal, you cause them pain.

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Sibal: This is not entertainment according to me. It is to demonstrate the vigour of your bull!

Court: But the audience experiences entertainment.

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Sibal: Neither 11 (1) (a) or (m) apply in this case. There is no mens rea involved in this, and 11(m) doesn't apply at all.

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Sibal: One of the reason this is encouraged is that the domestic breed survives. There is a reason behind it. There is no question of unnecessary pain & entertainment.

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Sibal: When you have a circus, it's purely for entertainment. A cock fight is purely for entertainment. There's a difference between such activities and those that have societal purpose.

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Court rises for lunch. Hearing to continue at 2 pm.

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Hearing resumes.

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Sibal: This has been going on for 5k years, but the conclusion in Nagaraj is that the animal is unfit to do this.

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Sibal: Nagaraj says it is unfit. What's the basis of all this? This is when courts go into areas that normally should be left to the legislature.

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Sibal: This is a policy decision. & basically Nagaraj proceeded on the assumption of repugnancy. That was the underlying basis. That is completely gone now with the President's assent.

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Sibal: What are you left with?

Court: Article 21 and 14 (laughs).

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Sibal: When you are a participant you are going to show that you can actually embrace the bull.. if you take that risk..

Court: The State has a stake.

Sibal: Should the court say don't climb Mt Everest?

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Court: What do you say of the effect of noise?

Sibal: In marriage ceremonies, what happens to the horse? I have two points. Courts should not go into these matters. The legislature has a duty to enact a law consistent with rights.

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Sibal: The presumption of the Statue is that there are acts of cruelty to animals. If you start with that presumption.. all this is to prevent cruelty by this Act and rules.

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Court and Sibal discuss Nagaraj judgment.

indiankanoon.org/doc/39696860/

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Sibal cites an order that noted Jallikatu taking place in an orderly fashion.

Justice Bose: High Corts are monitoring.

Sibal: Yes, on what grounds are they saying norms not being followed.

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Sibal: 80% cases people are not able to touch the bull. Only in 20% cases they manage. Else they throw off persons and then nobody goes towards the bull. There is a team of 15-20 wearing the same clothes.

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Justice Joseph: Nobody asked the bull if it is ... One can only see its enlarged eyes.

Sibal: They are trained bulls who have done it year after year.

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Sibal: My lords, pleasure comes with pleasure that is a part of life. They are inseperable.

Justice Joseph: That is a masochistic approach. That need pain for pleasure. Here we are on unnecessary pain.

Sibal: Wellbeing of bull not grounds to challenge vires of a statute.

Sibal: If no one gets on the bull then it is the winner.

SC: Is there not a better way?

Sibal continues reading from pleadings.

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Sibal: how does Nagaraj say bulls are not capable of this. That is for the legislature.

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Justice Bose: Your point is factual position should not be interfered with, and it has been happening as per norms.

Sibal: Yes.

Counsel: A paper published in a journal is not a public document?

Sibal: But a newspaper clipping is?

Divan: Let me clear the air. I have reports from my investigators since 2017-now about how it is being carried out. Till now he did not contradict them. Persons went there.

Sibal: I am protected from State action in exercising my fundamental rights. Now to say that the rights of the animal through Nagaraja ... Qua whom?
Union and TN govts state concerned about protecting these breeds. If the domestic bull becomes extinct, it is very dangerous.

Sibal: They will go to slaughter house.
We can always choose to not watch the videos on YouTube. Here a PIL is being filed in behalf of an animal. Whose responsibility is it, the States? If he is not protected, he should ask the States, else challenge the laws.

Justice Joseph: If you had not brought the amendment, all of it till now would have been offences.

Sibal: It would have gone underground, corruption would have ensued.

SC: That is the realm of policy not validity of the Statues then.

Sibal: Yes.

SC: There must be some norms.

Sibal: Yes, but is Jallikatu in all forms impermissible?

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Sibal: Captivity is allowed for, for its protection. Domestication is legitimised, it is only taking an animal.

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Justice Joseph: What will you do if after 30 seconds the bull goes beyond the boundary area?

Sibal: it is taken away.

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Justice Roy points out that within 30 seconds there are 30 odd persons ambushing the bull as every next person does not begin from the sidelines.

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Justice Bose asks that a diagram be submitted of a stage by stage process of the game.

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Justice Joseph gives example of a minor and Hindu idol, if they cannot themselves call for the exercise of their rights then Courts can seek enforcement.

Sibal: it is for the States to enforce. Here there is a statute.

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Justice Joseph: It is a little disturbing that you have not mentioned how many prosecutions you have made under the Sections.

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Sibal - Nagaraja lays down completely wrong law. It is not borne out by statute. Penal provision does not confer a right.

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Hearing to continue on Tuesday.