Jallikattu Judgment is a Setback for a new Accord Between Human Beings and Mother Nature: Senior Advocate Anand Grover

“Over a period of time, we have realised that the exploitative relationship between human beings and Mother Nature cannot allow homo sapiens, nay, the planet, to survive. There must be a change in their relationship, there must be a new balance— this is what the climate change movement is all about. The balance was partly tilted in the 1960 Act and when the concept of dignity for animals was elaborated and introduced in A. Nagaraja. Thus, the case was not only about bovine sports but much deeper— of how we treat animals, in particular sentient animals.”

ON May 16, a five-judge Constitution Bench of the Supreme Court, in the case of Animal Welfare Board of India & Ors versus Union of India & Ors, unanimously upheld the legislation passed by the three states of Tamil Nadu, Karnataka and Maharashtra that legitimise the bovine sports of jallikattu in Tamil Nadu, kambala in Karnataka and bullock-cart racing in Maharashtra.

The Constitution Bench, headed by Justice K.M. Joseph and comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravi Kumar, has held that the legislative instruments of the states substantially changed the manner in which these sports are conducted, where a large part of pain-inflicting practices have been “diluted”.

Background

In 2014, a Constitution Bench of the Supreme Court, in Animal Welfare Board of India (AWBI) versus A. Nagaraja & Ors (2014), (A. Nagaraja) banned jallikattu and bullock-cart racing in Maharashtra for being contrary to the provisions of Sections 3 (duties of persons having charge of animals), 11(1)(a) and (m) (treating animals cruelly), and 22 (restriction on exhibition and training of performing animals) of the Prevention of Cruelty to Animals Act, 1960. 

Over a period of time, we have realised that the exploitative relationship between human beings and Mother Nature cannot allow homo sapiens, nay, the planet to survive. There must be a change in their relationship, there must be a new balance— this is what the climate change movement is all about.

The Tamil Nadu government filed a review petition in Chief Secretary to the Government Chennai, Tamilnadu & Ors etc versus AWBI & Ors (2016), which was subsequently rejected.

In January 2017, in the backdrop of huge protests, the government of Tamil Nadu enacted the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017, which allowed jallikattu in the state under the 1960 Act. It also issued the Prevention of Cruelty to Animals (Conduct of Jallikattu) Rules, 2017. 

The Prevention of Cruelty to Animals (Karnataka Second Amendment) Bill, 2017 was passed in February 2017 that sought to exempt kambala and bullock-cart racing from the ambit of the 1960 Act. In Karnataka, a notification dated December 17, 2015, was issued to regulate the conduct of the sport.

In Maharashtra, the Prevention of Cruelty to Animals (Maharashtra Amendment) Bill, 2017, to allow bailgada sharyat or bullock-cart racing, and the Maharashtra Prevention of Cruelty to Animals (Conduct of Bullock Cart Race) Rules, 2017 were enacted for allowing the legal conduct of the sport.

Also read: Supreme Court reserves judgment on Jallikattu: What has happened so far?

Senior advocate Anand Grover appeared on behalf of the petitioners, the Federation of Indian Animal Protection Organisations, before the Constitution Bench. Grover contended that the Amendment Acts of the three states, Tamil Nadu, Karnataka and Maharashtra, permitting bovine sports to continue, were contrary to and in violation of Articles 14 and 21 of the Constitution. He also argued that the practice of jallikattu violated the provisions of the Prevention of Cruelty to Animals, 1960 Act. 

The judgment deals with issues including a focus on the “degree” of pain and suffering, bovine sports being a part of culture and tradition, the “substantial change” brought by the Amendment Acts and the legality of the Amendment Acts. 

Grover spoke with The Leaflet on these issues. 

Q: Can you share your views on the judgment pronounced by the Constitution Bench in the matter?

A: In my view, it is a deeply disappointing judgment. It has not dealt with important issues that were raised, including the notion of the dignity of animals, especially with respect to culture, and whether or not the issue of Presidential assent is valid. The judgment did not address the experience under the new regime after the Amendment Acts came into force, wherein, although the Amendment Acts were in force for a considerable time, they were not evaluated. On all aspects, the judgment negatived the arguments of the respondents without delving into their merits.

Also read: Investigative report reveals 102 persons and 20 bulls killed in jallikattu events since 2017

It must be noted that the court’s core dictum is that a new regime had come into force under the Amendment Acts which was different from the one that A. Nagaraja dealt with, and that the new regime does not allow acts of cruelty to be perpetrated, despite substantial evidence filed to the contrary.

Q: The judgment does not put animals under the protective umbrella of fundamental rights, leaving the decision to the legislature, for fear of opening a Pandora’s Box. It says: “We have our doubts as to whether detaining a stray bull from the street against its wish could give rise to the constitutional writ of habeas corpus or not”. What are your views on this?

A: Please appreciate that over a period of time, the relationship between Mother Earth, homo sapiens, the environment, flora and fauna, particularly sentient beings, has been changing. In the old days of the colonial past, the white man exploited every being, including humans and animals, as well as the environment and flora, and destroyed a lot of it. Everything was for his immediate and narrow needs. Human beings as slaves were the accepted norm. In fact, the Conquistadores justified the killing of Native Americans on the ground that they were not considered ‘human beings’. 

How would the President know what the actual regime on minimising cruelty is going to be when only the Amendment Acts are placed before the President and not the Rules? If the full information is manifestly not given to the President, the assent is not valid— this is a settled principle in law.

Significantly, the debate in Latin America in the colonial period, which opposed this notion, was articulated by, amongst others, Bartolomé de las Casas. De las Casas argued that Native Americans were “incipient human beings” like children and did not have the intellectual capacity of the white man— this is notwithstanding the fact that Native American civilizations were much superior to the Europeans in a number of respects, including the development of agriculture and architecture.  

Over a period of time, we have realised that the exploitative relationship between human beings and Mother Nature cannot allow homo sapiens, nay, the planet, to survive. There must be a change in their relationship, there must be a new balance— this is what the climate change movement is all about. The balance was partly tilted in the 1960 Act and when the concept of dignity for animals was elaborated and introduced in A. Nagaraja. 

Thus, the case was not only about bovine sports but much deeper— of how we treat animals, in particular sentient animals.

It was not the case of the petitioners that animals have fundamental rights. The 1960 Act, which mandates to prevent cruelty to animals, was re-interpreted by A. Nagaraja. At the hearing, I urged that dignity for animals needs to be explored to determine the notion of cruelty and its relationship with culture.

Unfortunately, the judgment fails to take note of the notion of dignity meted out in A. Nagaraja and the need to develop that concept in the context of culture or threshold of pain and therefore, cruelty. 

Q: The judgment opines that the state legislature had jurisdiction to pass the Amendment Acts and rationalises its opinion on the fact that the Acts received Presidential assent. What are your views on this?

A: Surprisingly, the judgment does not go into the merits of the Presidential assent. We had moved an amendment to that effect in the proceedings. The court asked the Union government to produce the files relating to Presidential assent, but we are not aware of what happened to these files. The issue does not figure in the judgment and has not been dealt with.

Presidential assent to the Amendment Acts was not lawful, since the President had only the Amendment Acts before them. The Amendment Acts fails to give any real indication of how cruelty is going to be minimised. If at all that was sought to be included in the Rules, they were not placed before the President. How would the President know what the actual regime on minimising cruelty is going to be when only the Amendment Acts are placed before the President and not the Rules? If the full information is manifestly not given to the President, the assent is not valid— this is a settled principle in law. Thus, on the face of it, the assent is illegal. 

The judgment says that with the new regime, that is, after the Amendment Acts were brought into force, there will not be any unnecessary pain or cruelty to animals. This is speculative in nature.

Parliament and state legislatures are entitled to pass a law to overcome a judgment if the underlying basis is changed. However, the underlying basis has not been changed by the Amendment Acts. The Amendment Acts are silent on the conduct of the actual practice in the new regime. 

Q: The judgment states that the Prevention of Cruelty to Animals Act, 1960 focuses on the ‘degree’ of pain and suffering caused to the animals. What are your views on the judgment stating that it is beyond the court’s jurisdiction to provide absolute protection to animals from any manner of pain and suffering?

A: The judgment says that with the new regime, that is, after the Amendment Acts were brought into force, there will not be any unnecessary pain or cruelty to animals. This is speculative in nature. Mr Shyam Divan, appearing for one of the petitioners, People for the Ethical Treatment of Animals (PETA), argued that after the new Rules came into force, the same practices that amounted to cruelty were continued. PETA demonstrated this through investigations carried out by them and the reports that were produced on the basis of the investigation. This data was placed before the court.

Also read: Tamil Nadu Act permitting jallikattu is a colourable exercise, petitioners tell the Supreme Court

It is surprising that the court did not consider the reports and the data supplied by PETA. It was not a question of the law being enacted with Rules later, without material being available to determine the implementation or non-implementation of the new regime. After PETA gave details of investigations and data on the deaths of animals and human beings, which prove that cruelty is being perpetrated even after the new regime had been brought into force, it was the bounden duty of the court to factor it in its verdict. The judgment has skipped addressing this issue. To say that it was beyond the court’s jurisdiction does not wash. 

Q: The Bench has said that A. Nagaraja had erred in holding that jallikattu is not a part of the cultural heritage in Tamil Nadu. What do you think will be the repercussions of this observation?

A: I find this to be the most confusing part of the judgment. While the court says that jallikattu is a game or sport that has been going on for three centuries, it proceeds to state that whether or not it is a part of culture is an exercise which cannot be undertaken by the judiciary. This is beyond comprehension as no reasons are proffered. 

Further, it says that this exercise has to be undertaken by the legislature, that is, by popular vote. But, more surprisingly, it concludes that as the exercise has already been undertaken by the state legislature, the court would not like to disturb it. 

What happens to Article 25 of the Constitution and the jurisprudence on that? Is the court bound by the will of the legislature? What happens to judicial review of legislation? 

Also, the judgment holds that A. Nagaraja did not have sufficient material before it came to the conclusion that jallikattu is not part of Tamil culture. This is arrived at without discussing the merits of the basis of that decision. It is bewildering, to say the least. 

Q: What are your views on the prohibition of sports involving animals, particularly bullock-cart racing, which could result in the extinction of an entire breed of cattle, which are otherwise useful for agricultural purposes?  Do you agree with the judgment that in pith and substance, the Amendment Acts seek to preserve, protect and improve livestock?

A: On the issue of the extinction of cattle, the court has rightly ruled that in pith and substance, the Amendment Acts were not to preserve the particular breed of bullocks. But, unfortunately, the matter has not been examined in the manner it should have been— an in-depth enquiry.

While the court says that jallikattu is a game or sport that has been going on for three centuries, it proceeds to state that whether or not it is a part of culture is an exercise which cannot be undertaken by the judiciary. This is beyond comprehension as no reasons are proffered.

The judgment rationalises its opinion on allowing a minimum threshold of pain based on meat-eating, while detractors might say slaughtering animals is not necessary to provide our bodies with the protein they need?

A: On the concerns of meat-eating, the 1960 Act itself recognises necessity as an exception. Meat is food and is seen as an exception under Section 11(3)(e) (treating animals cruelly) of the Act.

Also read: The what, why and how of the jallikattu judgment by the Supreme Court

However, the larger and deeper question is— should sentient animals be subordinate to the needs, or desires of human beings?  

Q: The judgment holds that the Amendment Acts are not colourable legislation. Do you think they have enough substantive merit to escape the doctrine of colourability?  

A: The doctrine of colourable legislation, in simple terms, is that the legislature seeks to pass a law indirectly, which it cannot do directly. In the present case, it sought to overreach A. Nagaraja by firstly, introducing the notion of culture, which had been rejected by A. Nagaraja and by the instant judgment; and secondly, by introducing the notion of preserving breeds of bullocks, which has also been rejected by the present judgment. 

However, on the third aspect, namely on lessening cruelty in the performance of jallikattu, kambala and bullock-cart racing, the court assumes that the new regime of the legislation coupled with the Rules tackles the underlying basis of A. Nagaraja. Although this can be a legitimate view to conclude that the new regime is not colourable legislation, the fatal flaw remains that the Rules had already been implemented and data was available but not evaluated by the Court. In my view, if the court had ventured into that, as it was bound to, it would come to the inescapable conclusion that the Amendment Acts are colourable pieces of legislation.