Thread by @lawbarandbench

#SupremeCourt Constitution Bench led by Justice KM Joseph to continue hearing pleas relating to legality of bull-taming sport Jallikatu.

#jallikattu #Constitution #AnimalRights

Hearing begins.
State of Tamil Nadu to make submissions.

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Sr Adv Rakesh Dwivedi for Tamil Nadu says the court must first consider the term "unnecessary pain"
Dwivedi: The implication of unnecessary pain and sufferings needs to be prevent as it posits that there will be some necessary pain which is permitted under the Act

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Dwivedi: For example, loading of animals in a truck, which is allowed by the Act. In loading them in a vehicle, the pain is there but it is a necessary activity, which is permitted.

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Dwivedi: Just like riding is permitted but that too has pain. In short, what I want to say is the expression unnecessary pain and suffering has to be construed in relation to the activities permitted. What is necessary and unnecessary pain

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Justice Bose asks if the ownership of an animal by an individual is taken as an independent entity.

Dwivedi: The law itself is to prevent any form of cruelty to animals by humans.

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Dwivedi: The legislature has the power to decide what is cruelty, how much pain and suffering can be permitted. It is all in their domain. The legislature needs to and will define cruelty.

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Justice Joseph points out that even if a human beats an animal that would be a criminal act.
Joseph J: But in that there is a need to have mens rea. That you are deliberately doing this and are lacking compassion.

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Dwivedi: Thus, Milords, there are certain activities which are permitted, some are prohibited and some are totally kept out.

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Joseph J: Why can't it be looked from essential and non-essential activities? For instance, if you need an animal for domestic proposes, you domesticate it but using them for entertainment and sporting events is altogether a different thing.

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Dwivedi: Legislature has powers to grant exemption in name of religion, culture, etc. Then the food culture comes in. India being a multi-cultural country, in some part we need Biryani, others need Macchli Josh etc. In Kerala a meal is cooked in banana leaves

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Dwivedi: The law allows killing animals for food. That is the culture. It's not that people won't survive if they don't eat non-veg. The Vegetarians and even Vegans are surviving. But eating mutton etc is the culture a food habit.

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Dwivedi: Like if Muslims say that in our religion we are allowed to have only Halal then that comes under extreme killing as envisaged under the law.

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Dwivedi: The law says you kill but ensure there is no unnecessary pain. But in Halal, there is. Law says don't kill an animal in front of other but how do not know how it matters to a buffalo if killed in front of fellow buffaloes.

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Dwivedi: Religion is the value which the Legislation has kept in mind while allowing even the extreme pain to animals.

Justice Joseph points out that eating culture is a habit and even essential sometimes.

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J Joseph: When I was in Uttarakhand, I went to Nainital, and was shocked to see that Brahmins there in the hilly areas eat non-veg, which is contrary to the Brahmins in Kerala. This is not only the culture but even eating habit.

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J Jospeh: In Artic region, you cannot survive without non-veg food. Of course, some who are Vegetarians, they can survive in their own way. Basically the protein need is what one sees.

Dwivedi: This is how culture is born Milords. We eat something because we are raise so.

Justice Bose points out that humans began eating non-veg from the very beginning.
J Bose: Humans hunted for animals.

Dwivedi: Yes milords. But now we have more options. Some eat Veg some non-veg. This is the food culture in our country.

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Dwivedi: Milords, even Religion needs to evolve. But have we reached a stage wherein religious killing of animals can be stopped? The legislation has to decide that.

Justice Ravikumar points out that if Vegetarians can survive without meat it cannot be reason to say that...

... even non-vegetarians can survive.

Dwivedi: Thus one has to decide what is avoidable, essential etc.

J Bose: All this can be categorised but it is for the legislation to do it.

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J Bose: So your argument is that the animals per se don't have any independent enforceable rights but it is a restriction imposed by the legislature on humans. Right?

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Dwivedi: Keeping in mind the Constitutional mandate, at one side there are human rights on the other there is duty of compassion, we need to balance everything keeping human rights at a higher pedestal.

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Justice Joseph points out the provisions of the Prevention of Cruelty to Animals Act, which deal with employing an animal for entertainment, work etc.

J Joseph: There is an element of fear in the animal, who in this sport of Jallikattu has to face yelling or cheering public

J Jospeh: Now that you have removed public but still the element of fear persists. A bull in front of 14 men will have a fear element.

Dwivedi: Thus, there is an exemption for inevitable pain or fear, incidental pain or fear etc.

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Justice Rastogi points out that there are Vets to check fitness of the Bulls before the sport.
However, Justice Joseph says there is a thing called Post Traumatic Stress Syndrome.
J Joseph: If one has faced a harrowing incident and then in future if s/he senses similar event...

..they might feel the stress again and react accordingly.

Dwivedi: But all this would again be inevitable pain or fear which would stand exempted. Also, Jallikattu is no more a criminal activity u/s 28 of the Act. It is for the Legislature to criminalise it or not

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Justice Joseph points out that using an animal or causing permissible pain etc is not a right of any human.

J Joseph: It isn't a right. It is a duty that a human shouldn't cause harm to an animal. And if such duty is breached, s/he can be punished as it would become an offence.

Justice Joseph points out sections 428 and 429 of the Indian Penal Code, which penalise any cruelty or killing or animals.

J Joseph: This means, animals have been treated like properties or chattel.

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J Joseph: Earlier, animals were adding values thus called as things. See section 428 and 429 come from section 425, which speaks of causing destruction of property. So it's a throwback to the bygone era wherein Animals were considered as properties.

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J Joseph: Jallikattu is not an essential activity but for you it might be entertainment, may be culturally...

Dwivedi: If culture is a fundamental right, why can't this activity be given an exemption under the Prevention of Cruelty to Animals Act? It has been going on since long

Petitioner's Adv intervenes and objects Dwivedi's submissions on Culture.

Adv: The judgment in Nagaraj's case has given a specific finding that Jallikattu isn't a cultural activity thus he cannot make these submissions now.

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Dwivedi: The season in which this sport would be conducted is fixed, which breed of bulls is fixed. It is a culture. Now even Mosques and Church have started organising this event. So this is beyond religion, caste, creed etc.

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Dwivedi: Jallikattu is a culture. It can be at the most regulated but cannot be banned. While regulating we can ensure that most possible cruelties are eliminated but we cannot eliminate the entire sport event.

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Dwivedi upon being asked informs the bench that from January till May, 396 such events are held in which roughly 1 lakh 17 thousand bulls participate. At least one such sports event is held in each village

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Dwivedi further informs that over a dozen or two of such sport events were conducted illegally.

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While Dwivedi points out certain sports at foreign countries, J Bose mentions Football being played in some states of India, like Goa, West Bengal and north eastern.

Dwivedi: The English didn't brought Football here.

J Bose: They did bring it.

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Dwivedi: The culture of cricket was followed. Football has now come up we hope in future it comes up. Such a big country not participating (in Fifa). It's an embarrassment. (Smiles).

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Bench rises for lunch.

Asks Dwivedi to try and conclude his arguments by 3pm.

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Hearing resumes.

Solicitor General Tushar Mehta appears for Central government and also for Maharashtra government.

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Mehta: My lordships will have see in this review jurisdiction if a State carves out some exception to the Statute, will it become repugnant? The State have carved out yet another exception to the law which allows even killing for religious or food purpose etc.

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Mehta: I fully support the States of Tamil Nadu, Maharashtra etc.
In horse races, not any and every horse is allowed to participate in it. There's a separate breed, separate care is taken, practice is given etc. Same thing happens in Maharashtra, where bull races are held.

J Joseph: Do you want to say that bulls are trained in Maharashtra?

Mehta: Yes. The Bulls for race are not doing anything else but only in races. Maximum permitted distance is 1 km but in Maharashtra, they are made to run only 100 to 200 metres.

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Mehta reads a report which states that Bull race is a custom and tradition in Maharashtra. A bull was sold for Rs 31 lakhs. These aren't bulls which pulls the carts or carry goods. These are like race horses.

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J Joseph asks where is the inflicting pain part in the race?

Mehta: Milords, the Nagaraja judgment doesn't look into any pain or inevitable suffering in Bulls race.

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Mehta: In this race, there is no pain inflicted upon the Bulls.

Now reads out some portion of the Nagaraja judgment, which states that bulls are blindfolded and brought to the venue, and they get terrified when unfolded as there is sudden light and huge crowd.

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Mehta reads out from the judgment that before the race, tails of the Bulls are twisted etc.

He argues that there is no material to support such a finding.

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Mehta: Bulls Race can be allowed in furtherance of culture and tradition and only with the permission of the District Collector.

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Justices Rastogi and Joseph point out that the Maharashtra government had banned the Bull Race in the State and thus it would have placed some material on record.
Mehta: Ban is not perennial.

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Mehta: If these breeds of bulls aren't made to participate in race or look after in a particular way then they might die. Because they aren't made to be pull carts.

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Mehta: Just like an unfit horse can't be sent to participate in a race similarly, bulls are sent to win. If he doesn't want to participate then he won't run.

J Joseph: So this would mean, you won't kick or inflict any of the Bulls?

Mehta: Yes. That's prohibited

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J Joseph: Have you videographed these races ever?

Mehta: No, Milords.

J Joseph: But what about the apprehension?

Mehta: Merely on that the sport cannot be banned. If there is a breach there are penal actions available.

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Bench asks if this isn't a summersault by the Maharashtra govt by first banning the sport and now seeking permission to hold Bulls Race.

Mehta: An expert committee went into the issue and thus the decision has been taken.

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Bench discusses something, Mehta points out that the mic is on.

J Joseph: Nothing. We were discussing this can be argued before Bombay High Court.

Mehta: Milords, I thought your privileged communication was being made public (smiles)

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Mehta points out that there are books about how the Bulls race is a part of the customs and traditions of the State.

J Rastogi points out that the amendment by the Maharashtra govt is nothing new.

J Rastogi: You only have added the word "bullock cart" and nothing else.

J Rastogi: The entire law which was earlier, based on which, you banned the sport is retained only that you have added "bullock cart."

Mehta: Milords, it isn't like this. Earlier ban was imposed. Then an expert committee filed its report so the new decision.

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J Joseph: We are on how the State can once rigorously ban the sport saying it is not a custom or tradition. And then suddenly come up with an amendment saying it is indeed a custom.

Sr Adv Anand Grover for petitioners: They have claimed it is religious event.

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Mehta: I will reiterate Milords, the State has reconsidered it's earlier decision based on the expert committee's reports.

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Mehta is now reading a judgment to support his case.

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Bench asks for the assent of the President of India given to the amendments carried out by the Maharashtra govt.

Mehta: I will give it for your perusal but please don't make it a precedent that every assent of the President is called in this court for scrutiny.

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Mehta requests the bench not to record in the order copy that the decision of the President as perused.
Mehta: Milords are in a five judge constitutional bench. Thus, my request please don't make it a precedent.

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J Joseph: Please be mindful that no one is lowering any dignity of the President's office.

Mehta: No Milords, I am not saying this. I am just saying that there is a constitutional sanctity which should be maintained.

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Bench questions if there's any factual challenge to the amendments.

Mehta vehemently opposes the query says the Bench shouldn't enter this arena.

Sr Adv Grover clarifies from the petition that the factual challenge is there

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Bench is discussing about the assent given by the President.

Bench: We don't want to put this query as it would give rise to some more constitutional issues... Again discusses.

Mehta: Please don't enter that arena. The rule is, if something is challenged the court has to give

...a finding that the said decision is arbitrary etc on abc points and then ask for the assent papers. But not like this.

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Mehta: Are your lordships proposing to take suo motu cognizance of this issue?

Bench still discussing.

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J Joseph: Do you want us to voice our mind? There is something which is troubles us that we found in these papers. See para 27 of the assent copy. It troubles us.

Mehta: Milords then let me first address you on the point whether court can go into this copy without there being..

..a challenge to it or there being no foundation laid down. This is not only for this one case but even for future.

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J Rastogi: Mr Mehta then give us a written note of your submissions on thism

Mehta: Milords please let all of us argue on this.

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Sr Adv Mukul Rohatgi appears for Tamil Nadu Government.

Rohatgi: The Nagaraja judgment is wrong. It had three pillars - Repugnancy, animals have independent rights, the prevalent scenario then.

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Rohatgi: There is a sea change in the scenario then and now. As per judgment, animals have rights and humans have duties. So if humans have duties animals have rights and are to be protected, which would mean they have to be enforced. There is no warrant in our Constitution...

...to say duties of humans creates rights of the animals.
The rights flowing from Article 51(A) and the five freedoms have been mixed in that judgment. There is no warrant to this in our Constitution.

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Rohatgi: The duties are nothing but ethics and morals individuals must practice in our society.

J Joseph: Mr Counsel, it's not morals it is legal duty.

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J Joseph: Can an animal have a legal right?

Rohatgi: No. Not in our country may be in some foreign countries.

J Joseph: But the Parliament can create such a right.

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Rohatgi: Fundamental duties and Directive Principles cannot be enforced by the courts. It is for the citizens follow it. You might strive for an ideal world but you cannot enforce fundamental duties.
These cannot be enforced by humans against humans.

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Rohatgi:An animal cannot go to a court?

J Bose: But can't someone come on their behalf?

J Ravikumar: Do you want to say that animals have no rights and no one can come on their behalf to the courts?

Rohatgi: Yes. They don't have rights.

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J Joseph: Mr Counsel, there are laws preventing cutting of trees. So do you want to say trees don't have rights? Or the ocean or nature don't have any right to be protected?

Rohatgi: But it should not be antithesis to humans.

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Rohatgi: Pure amusement is allowed under the law. Suppose I have an horse, which I am using only for riding. So that is pure amusement. Similarly, Jallikattu is pure amusement Milords.

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J Joseph: There is an emotion of fear due to the trauma or stress the bull goes through during the Jallikattu. We pet animals but we don't inflict any pain to them.

J Ravikumar: So u mean, if it is done properly without pain inflict..

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...infliction, then it would be pure amusement or entertainment? Is that your contention.

Rohatgi: Yes. Certainly.

J Roy: But you said animals don't have rights. Suppose, if one sees an animal keeper torturing his animal, can't s/he go to the court and tell it?

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Rohatgi: Yes in that case, the person can come and seek punishment for the wrong. But cannot go on to claim for rights of animals, fundamental duties etc. etc.

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Rohatgi is now reading some articles to support his contentions.

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J Rastogi: The duties under Art 51 do not have any punishment if breached but these duties (under Prevention of Cruelty to Animals) have a sanction.

Rohatgi: Yeah, so punish when there is a breach.

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Hearing ends.

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