Jallikattu | 'Nagaraja Judgment Is On A Wrong Premise That Animals Have Rights' : TN Govt Argues Before Supreme Court

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?"

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..."