"Human Beings Die In Jallikattu Too" : Petitioners Argue Before Supreme Court In Pleas Against Jallikattu And Similar Activities

Representing the People for the Ethical Treatment of Animals(PETA),  Senior Advocate Siddharth Luthra started his submissions, on Tuesday, by reading out from the Supreme Court's judgment in Animal Welfare Board of India v. A. Nagaraja And Ors. (2014) 7 SCC 547. He pointed that the amendments passed by the States cannot undo the factual findings made by the Supreme Court that events like jallikattu result in cruelty to animals.

"Nagaraj and the review had determination on facts and they cannot be undone by a legislation…The point is that the impugned amendments do not take into consideration these scientific findings arrived at by the court in Nagaraj."

Justice Joseph initially questioned Mr. Luthra by saying, "We need to remember that these are Article 32 petitions where there should be a violation of a fundamental right."

Mr. Luthra responded by saying, "That's been the law in Nagaraj. It has recognised Personhood in animals."

On the issue of personhood of animals, Mr. Luthra argued, "When the Constitution itself recognises that cruelty to animals cannot be perpetrated, then that means the Constitution recognises the rights of animals. They have to be read with Part III. They cannot be read by de hors Part III."

At this point Justice Bose inquired, "In such a complex area of rights, would it not be best for the legislature to decide?"

Mr. Luthra responded by saying, "The rights have already been decided in Nagaraj."

Justice Bose then said, "But there are various amendments brought in to nullify the court order. That is a permissible activity for the legislature."

Mr. Luthra then clarified his position and said, "Distinction is that once there is a declaration, unless there is a basis to remove that declaration, mere bringing a legislation does not suffice. The declaration is the finding of fact by this court in Nagaraj."

Mr. Luthra further argued, "Today we are considering how to treat animals. We are not looking at the permissible limits that have been allowed within the legislation. Today, when the legislation contradicts the Constitution, acts contrary to the legislative entry, we need to consider it in that context. The basis of the principle legislation is compassion towards animals. The Constitution also follows that clearly."

Justice Rastogi then brought in the aspect of rules that have been brought in by the respective states within the amended legislations. He said, "The states have been very cautious. They prescribe certain rules to ensure that safety is there. So that safety is also there and culture can also be continued. Now, were these rules there when the Nagaraj judgment was pronounced. Did the court have the same rules?"

Mr. Luthra responded by saying that "What was dealt with in Nagaraj and what has been brought in now, it's not different. The only change is that there is a bit of sophistication."

On the issue of Presidential assent, Mr. Luthra argued, "The court has said again and again that when you send legislation for Presidential assent, they have to present everything before the President. All aspects. There is no information as to what was presented before the President."

He further argued, "Have these States placed any material before the President to show, firstly, how this is contradictory to the Prevention of Cruelty to Animals Act 1960; Secondly, if this has not been done, if the aspect of removal of cruelty has come through the rules and not in the Act, then assent could not have been given and finally, since this is not done and no material is placed, there is no question of protection under Art 254(2)"

On the question of whether the practise is a part of culture or not, Mr. Luthra argued and said, "Just because a group of citizens say it's a culture, it cannot be said so. Mere activity or an assertion cannot be said to be culture. Just because the legislature has adopted it."

Senior Advocate Shyam Divan appearing for the Petitioner started his submission post lunch. He said, "My challenge is limited to the Tamil Nadu Act. I will first state my thrust of the argument. I will also state what my argument is not going to be about."

Mr. Divan restricted his submissions on four arguments, namely:

1. The Impugned Act is contrary to the separation of powers as it overrides the decision attained in Nagaraj.

2. Issues regarding Jallikattu have attained finality in Nagaraj.

3. Non-retrogression or progressive realisation of rights wherein he argued that our law has evolved and our understanding for sentient creatures has also evolved and that the Supreme Court has recognised this as a constitutional principle. He argued that progressive realisation of rights has been held by this court by the fact that our constitution is a living document. Progressive realisation of rights means that doctrine of non-retrogression will come into motion. The state cannot retreat. It can only progress.

4. Subsequent findings on facts have been placed on record in regard to Jallikattu still being cruel to animals as well as humans.

Mr. Divan brought in the Article 21 argument from a new perspective during the hearing. He submitted that, "Human beings die in Jallikatu too. And we will show that. So there is a direct (Article) 21 interest. There is also an element of compassion, humanism and safety for the audience. These are dimensions your lordships will be alive to. That's where 21 comes in."

When Justice Joseph remarked, "You are pointing out the situation on the ground. But they have taken care of all of it in the rules", Mr. Divan replied by saying, "You will obviously be looking at the working of the Act. It has made no difference. There is no smokescreen here. It is nothing but a smokescreen. They are trying to say that now there is a new law so everything is hunky dory. If the rules had worked there is no question of any of the findings recorded in Nagaraj being rendered. Having regard to the facts if the court has already come to a conclusion, the legislature cannot enter into it. There is separation of powers."

On the issue of legislative competence, Mr. Divan differed from Mr. Divan said, "My understanding is it is under Entry 17 List 3. So I am not arguing against that."

In the last hearing, the court 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.