Bulls Not Structured To Fight, Converting Them Into Fighting Animals Is Cruelty : Petitioners Argue In Supreme Court Against Jallikattu

The hearing which took place on Wednesday (November 30) started with Justice Rastogi posing a question to Senior Advocate Mr. Shyam Divan who was about to continue his submissions. he asked, "This court has observed that Jallikattu is brutal. So, the form in which the practice exists is cruel, not the practice itself. The reason why I ask this question is because in 2014 when Nagaraj came, the form was different. Now there is an amendment and rules have been brought in and things have changed. Now, once the mechanism is put in place, anyone who is not following the rules is violating it. Penal action is embedded in the statute. Now you've presented reports. Even if those reports are taken at face value it's the execution that's the problem. So, is the rule bad or the manner in which it is being followed is bad? We have to test the scheme and not the ground reality.

Mr. Divan replied and said, "Firstly, There is an expression called behavioural ethology - science of animal behaviour and, Secondly, There is biological integrity of the animal which comprises two elements - mental as well as physical."

He further argued, "Science tells us that a manner in which a bull is structured as an animal is that if you are going to engage them in a highly stressful situation, they will seek to flee. Now, when you keep them in an enclosure, it amounts to cruelty. Converting a bull into a fighting animal, making it fight in whatever manner, by compelling it through all sorts of obnoxious means, amounts to cruel treatment. Having regards to the behaviour of the bull; the anatomy of the bull; with all the safeguards, it will still amount to cruel treatment. Bulls are not structured to fight."

On the question of whether the practice could be protected under cultural and traditional rights of the people of Tamil Nadu, Mr. Divan argued,"Now there could be a tradition, a culture, but with all the protected measures, it would still amount to cruelty. These are not performing animals. It is one thing if the legislature felt that we have come to the conclusion that the scientific material relied on by the court in Nagaraj was wrong and so here is the material that is now the basis for us to change it or overturn it. But there is no such evidence on record placed by the legislature."

Mr. Divan then inquired from the court if Nagaraj decision could be overturned despite it having survived the Review. He said, "As far as final determination by this court is concerned, they ought not to be overturned. Except for a few narrow situations."

On the question of Article 21, Mr. Divan restricted his submissions to the apect of dignity and said that there is a whole new set of study pointing to the science of sentient creatures.

On the aspect of Article 14, 19 and 21 rights arising qua the petitioners, Justice Joseph asked Mr. Divan, "See how the law has developed as far as 14 is concerned. Milestone is Maneka Gandhi decision. All of this is founded on a triangular approach - 14, 19 & 21. They are interconnected. For that you will need to have a premise on Article 19 as well."

Mr. Divan replied and said, "Article 19 ofcourse will not be available to an animal because it is not a person in that sense."

Justice Joseph immediately asked, "So how do you bring in the theory of arbitrariness there in that context?"

Mr. Divan further fleshed out his argument and said, "Court has evolved the law by including aspects into it that were not there in the Constitution directly and explicitly. Such rights have been derived from the 1980s. Because the intrinsic value has always been there. For example, the right to a wholesome and clean environment."

On the question of Article 14 and reasonable classification, Mr. Divan argued, "Bulls form a homogenous class. You cannot create a sub-group or a subclass within that and treat them separately. The legislature ought to be alive to the distinction. This is an impermissible classification. In the context of classification under Article 14 - the object itself should be lawful. The object cannot be discriminatory. Here object is bad because you cannot subject certain animals to cruelty. Object is bad also because it is bad in separation of powers. Dimensions of 14 kick in here too. Because your statements and objects mention the SC judgment. How can you overrule? How is that permissible I ask myself. The legislature may have a deeming fiction in its plenary powers. But with the progression, we have situations where the court decides. This is the most crucial factor, and it decides on facts, it decides an aspect of the law, in this case as to whether there was a culture in this, the legislature could not have done this. Could they have done this? No they cannot. That violates separation of powers."

Answering to the question on the new rules framed by the state under the impugned Amendment Act, Mr. Divan argued, "with regard to the rules. In one line, It's all old wine in a new bottle. While there may be some particularisation, broadly we find they had already been captured earlier. Certain features present in 2009 have infact been diluted. The court took all the aspects in consideration in the form of reports and affidavits. The court found the whole thing illusory. The court found that the practice is contradictory to dignity, etc."

Senior Advocate V. Giri, appearing for one of the petitioners, also presented his submissions before the court yesterday. He started off by saying, "Nagaraj was delivered in 2014. Review was filed and dismissed on 16-11-2016. Ordinance was promulgated on 21-01-2017."

He then drew a clear distinction between legislated facts and adjudicated facts. He said, "Adjudicated facts have a sanctity when the adjudication is done by the highest forum in the land. ​​The 2009 Act was based on legislated facts. It was subsequently challenged. Finding of fact came in Nagaraj. It was reiterated in the review. Whether it is a legislated fact or an adjudicated fact and could the legislature have gone into it at all."

The thrust of the argument of Mr. Giri was that "Because this is an adjudicated fact, it cannot be in the realm of the legislature to treat it as a legislated fact and enter into it."

When Justice Joseph again went back to the rules that have been brought in by the State of Tamil Nadu granting several safeguards, Mr. Giri argued, "A subordinate legislation cannot be the basis to uphold the legislation. The test of repugnancy always arises in the context of the plenary legislation and not in the context of the subordinate legislation."

Mr. Giri further argued, "killing of an animal as part of Essential Religious Practice will also be protected under Article 25. If it is food, it gains protection under 21. How does a sport source it right from the Constitution? Now, since I am entitled to food in Art 21, the only cruelty permitted is slaughter for the purposes of food. How can a sport be allowed? Where can it be sourced from? Every exception carved in the principle Act can be rooted to some higher right in the Constitution. But, Jalikkattu, in this context, there is no such root. and there is no material on record either."

Mr. Giri repeatedly asked, "Where is the material to show that Jallikattu is part of the tradition and culture and it is there from time immemorial."

Senior Advocate Anand Grover appearing for one of the petitioners focussed on the aspect of Animal Rights in his submissions. He said, "An addition is the theory of progressive realisation of rights and non-retrogression. The notion of dignity in Art. 21. Nagaraj is an important base for animal rights. Nagaraj is a judgment of seminal importance. Article 21 is a classical negative right. That was prior to Francis Corallie's judgment. After that the concept of dignity came in. Dignity is the underlying notion of all fundamental rights. But it is not defined. So then, the court went on to give positive rights to Article 21. So therefore any interpretation to 21 now, the court has to progressively interpret the law and not go backwards. It has to fundamentally change the status quo. That is what Nagaraj does."

Mr. Grover also brought in an interesting factual aspect during his submissions. He said, "In the review they argued it was religious practice. Now they are arguing it is a cultural practice. My point is, First, they cannot shift their stand. Second, even otherwise, all fundamental rights have to be read harmoniously. If any fundamental right leads to a derogation of the right in other Part III rights, such as 21, that cannot be done."

Senior Advocate Krishnan Venugopal, appearing for one of the petitioners, argued on the aspect of legislative competence from a new perspective. He submitted, "There is no legislative competence to pass this amendment at all to the extent that this law cannot be traced to Entry 17 List 3. Presidential assent is therefore immaterial. It cannot be traced also to Entry 14 or 15 of List 2. Therefore there isn't legislative competence."

Mr. Venugopal further elucidated his argument by stating, "When the original law was passed in 2009, it could have been argued that because it is to regulate Jallikattu so it is in Entry 17 List 3, But when Justice Radhakrishnan, in Nagaraj, comes to a finding of fact on the practise being cruel, any law which permits the sport by making it less cruel, is no longer traceable to this Entry. This is because the said Entry is not "cruelty to animals", etc... The Entry is "Prevention of cruelty to animals". In pith and substance this is only an attempt to allow and permit cruelty to animals which cannot fit within Entry 17 Rule 3."

Counsel appearing for the petitioners from the State of Maharashtra where the impugned amendments brought in by the state government allowing bullock cart races to be held in the state are under challenge, started his submissions before the court today by first pointing to the differences between the Maharashtra impugned legislation vis-a-vis that of Tamil Nadu and Karnataka. He said, "I am going to tell your lordships what is the difference between the Maharashtra legislation and Jallikattu."

The differences he pointed out were namely;

1. The Tamil Nadu impugned legislation had been enacted in 2009. It was challenged subsequently. In Nagaraj it was declared unconstitutional. However, in Maharashtra there was no such act. The impugned Act first came in 2017.
2. The purpose of the Principle Act is that "unnecessary pain or suffering" needs to be prevented. That word "unnecessary" is missing in Section 3(2) of the Amendment Act - a mere "pain or suffering" phrase is used. Although 3(2) starts with a non-obstante clause, because of this phraseology, its effect is mellowed down by absence of the word "unnecessary". Amendment in Maharashtra reintroduces Section 11 of the principle Act because of the way it has been mellowed down by its absence of the word "unnecessary".

The matter will now be heard on 01-12-2022 when the counsels for the respondent states will start their submissions.

During the last hearing, the petitioners had argued that Article 21 rights are attracted in the petition because human beings die too during Jallikattu. In the hearing before that, Justice Joseph had remarked, "If animals don't have rights, can they have liberty?"

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.

Case Title : Animal Welfare Board of India versus Union of India and others W.P.(C) No. 23/2016 and connected cases

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