By- Anshul Dalmia
On May 18th, a five-judge constitutional bench handed down a unanimous judgment upholding the validity of the similar amendments made by the State of Tamil Nadu, Karnataka and Maharashtra to the Prevention of Cruelty to Animals Act, 1960 (hereinafter ‘PCA’). While the court went into a detailed analysis surrounding the competency of the states to enact these amendments along with the inability of the judiciary to adjudicate on the sport being an integral part of the culture, I attempt to specifically highlight the cowardly ways through which the court has shirked off its responsibilities (which it itself had automatically assumed).
OVERLOOKING THE NAGARAJA JUDGMENT
It is now a very well-known fact that when the Supreme Court is called upon to review either the effectiveness of its earlier judgment or evaluate subsequent compliance on the cornerstone of a precedent it already has established, the court is likely to shift away from the earlier paradigm and abdicate its judicial responsibility of following precedents. Here, a constitutional bench of an Apex Court was specifically set-up to examine the adherence of the current methods of bull racing with the observations rendered by a two-judge bench in A. Nagaraja. It is interesting to note that the five-judge bench could have moved away significantly or read down the Nagaraja position, since the two-judge bench decision was merely persuasive and not binding. However, prima facie, the court transposes language and paragraphs from the Nagaraja judgment into its decision but refuses to engage with its logic, reasoning and analysis. It seems that the court has tried to forcefully fit the present facts into the Nagaraja box and somehow just convince (only) itself, regarding any non-adherence.
Firstly, the failure to analyse the post-amendment bull racing methods with the Nagaraja decision is clear from the court’s engagement with the issue of Section 11(3) of the PCA.
Section 11(3) of the PCA provides for exceptions to the acts of human cruelty towards animals. This indicates that the fundamental duty of being compassionate to animals is not absolute in character and has been subjected to individualistic needs and human wants. In the case of People for Elimination of Stray Animals v. State of Goa, the Bombay High Court when confronted between the rights of the animals to live vis-à-vis the rights of humans to enjoy their life peacefully held the theory of ‘self-preservation’ highlighted the need to solely cater to individualistic needs and selfish objectives. The court herein focused on Section 11(3)(b) which in particular mentioned that stray animals could be ‘destructed’ in ‘lethal chambers’ and such an activity would not amount to cruelty. Hence, it was clear that the restriction backed by human necessity superseded the theory of constitutional compassion available to the animals. David Bilchitz recognises this issue and contends that such an imbroglio would not have arisen if the intrinsic worth of animals were universally recognised. The relegation to this approach is for the achievement of a ‘significant human objective’ which might either be for pleasure or profit. Hence, unfortunately, the killing of an animal for necessity will be based on a subjective adjudication by an individual for another individual.
While the Nagaraja judgment also espoused a similar view i.e., exceptions to Section 11 as enshrined in Section 11(3) were incorporated due to the doctrine of necessity. The bench attempted to strike a delicate balance between the doctrine of necessity and the non-compassion meted out to animals. The court read up the safeguards present in the exception under Section 11(3)(e) which provided that the destruction of an animal for food should not be accompanied by ‘unnecessarily’ inflicting pain and suffering on the animals. Thus, the court preserved the duty of imbibing compassion by invalidating the practice of Jallikattu on the basis that the bulls were intentionally being subjected to unnecessary stress and strain due to human pleasure.
While such a dictum is laudatory, it is plagued with the following issues. Firstly, that the Section 11(3)(e) standard itself is antithetical to compassion and would in some way or the other lead to suffering either necessarily or unnecessarily. For instance, destruction of a stray animal in any case would be anti-thesis to the theory of ‘compassion’. Secondly, it is extremely subjective and open to the judiciary and the executive to interpret and enforce these vague thresholds. Thirdly, the interpretation of ‘compassion within the Constitution’ as a theory was rendered into a general moral imperative and not a legal rights discourse. Hence, the question which arose now was whether even cruel acts borne out of necessity and against the duty of compassion were justified?
In the case of N.R. Nair, the answer to the above question was sought to be answered. The Kerala High Court (as subsequently upheld by the Supreme Court) stated that the cruelty meted out to animals cannot be evaluated quantitatively. Thus, the objective and the goal, which the said cruelty seeks to achieve becomes imperative. The court goes on to state that animal husbandry and research experimentation benefits the society at large and hence, even if there is cruelty inflicted, the impugned activity would be condoned. Hence, the Nagaraja threshold has now been eroded by the paradigm of animal rights being subservient to ‘human interest and well-being’. Thus, we see a dangerous trend of interpretation employed by the judiciary while adjudicating the contours of the theory of ‘compassion’ within the constitutional framework.
In the current case, the Constitution Bench could have used the N.R. Nair interpretation to disregard the standard set by Nagaraja. However, the court continued citing Nagaraja, while refusing to analyse whether the current bovine sports continue to inflict ‘unnecessary pain and suffering’ on bulls despite the newly inserted safeguards. The court merely referred to the amending statutory instruments and regulatory measures that solely prevent the prohibition of any physical disturbance to the bulls and held that the defects highlighted by Nagaraja were cured. Here, the court does not realize that the Nagaraja judgment had gone beyond mere physical disturbance to the bulls but had delved deep into the several ways in which bulls were stressed, injured, and exhausted. The court’s ignorance to evaluate the amending acts on the touchstone of necessity, is an indicator of both its abnegation towards the doctrine of stare decisis and its abdication towards effectively interpreting a substantial question of importance.
Secondly, the encounter of the court with their self-assumed parens patriae jurisdiction and the provision of fundamental rights to animals as per Nagaraja, is an underwhelming response by a larger bench which was singularly established to answer this very question.
Over the course of judicial interpretation, the word ‘compassion’ has been associated with ‘suffering’ and thus, the courts have adopted a similar analogy. The courts have only invoked their pity in cases where it has dealt with ‘weak, infirm animals’, ‘weak and the meek’ and ‘gruesome, cruel and heightened suffering’. Noted academicians and scholars have critiqued since courts justify their intervention only when animals are subjected to extreme cruelty. Courts have also protected animal rights through this emotive theory based on the common understanding that animals are ‘helpless and voiceless’. In absence of any possibility of expressions by animals who are mute spectators the courts ought to be their guardian through the exercise of their ‘parens patriae’ jurisdiction. Nagaraja specifically stated that:
“the Court has also a duty under the doctrine of parens patriae to take care of the rights of animals, since they are unable to take care of themselves as against human beings.”
Several high courts (Uttarakhand and the Punjab & Haryana High Court) in India, have considered animals to be legal persons and deserving of a legal recognition. Further, as animal rights have been read with fundamental rights such as Article 21 by courts which has ensured that not only a positive obligation of preserving their right to life, right to dignity and right to a fair treatment but a negative duty is placed such as the right to not hurt, cause suffering or deprive their liberties. These cases were accordingly cited before the five-judge bench along with additional legislative references within the international community that have recognized and asserted the rights of animals. However, in response to such an argument, the Court merely stated that it did not have a precedent.
It is alarming to note that the Apex Court failed to consider multiple high court judgments and certain international authorities to be ‘precedents’ and worthy of any persuasive nature. In a plethora of cases, the courts have accentuated the existing jurisprudence by using high court cases and international judgments as well. Here, the court’s absolute disregard towards these interpretative tools, highlights the power of the court to cherry-pick and support a particular narrative without offering any cogent reasons.
CONCLUSION
The Supreme Court could have categorically overruled or set-aside the Nagaraja judgment, which would still be understandable. However, continuously purporting to follow Nagaraja while refusing to holistically engage with its logic, seems to be an institutional façade. A judgment of the Supreme Court while ought to be strictly followed is also an expression of hope and optimism to prevent any subsequent prohibited actions in the future. The doctrine of stare decisis is the foundation of a judiciary especially in a common law country which is based on certainty, consistency and stability. The ignorance and utter disregard depicted by a larger constitutional bench towards a judgment of its own court, depicts severe judicial indiscipline. The future of animal rights vis-à-vis constitutional compassion lies in grave danger.
(Anshul Dalmia is a law undergraduate at National University of Juridical Sciences. The author may be contacted via email at anshuldalmia@nujs.edu).
Cite as: Anshul Dalmia, Attempting to Locate Compassion within the Constitution: Visiting the Jallikattu Judgment, 2023, 24 August 2023) <https://rmlnlulawreview.com/2023/08/24/attempting-to-locate-compassion-within-the-constitution-visiting-the-jallikattu-judgment/ > date of access.
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