Jurisprudence Rough Draft (Ba0140001)

ABHIJEET SINGH RATHORE (BA0140001)
JALLIKATTU
Jallikattu is a Tamil word, which comes from the term Callikattu, where Calli means
coins and Kattu means a package. Jallikattu refers to silver or gold coins tied on the bulls
horns. People, in the earlier time, used to fight to get at the money placed around the bulls
horns which depicted as an act of bravery. Later, it became a sport conducted for
entertainment and was called Yeruthu Kattu, in which a fast moving bull was corralled
with ropes around its neck. Started as a simple act of bravery, later, assumed different forms
and shapes like Jallikattu (in the present form), Bull Race etc., which is based on the concept
of flight or fight1.Basically the winner of the event used to marry the daughter of Bulls
owner2.
Supreme court recently banned the event of Jallikattu on the following arguments:
1) It is cruelty against animals and it violates Prevention of Cruelty to Animals
Act,1960. It violates section 4 of the Act which protects the Animals from being
subjected to unnecessary pain and suffering3. Bulls involved are physically and
mentally tortured for human pleasure and enjoyment.
2) Bulls involved in Jallikattu are not performing animals within the meaning of
Section 21 and 22 of the PCA Act4. All animals are not anatomically designed to be
performing animals. Bulls are basically Draught and Pack animals. They are live-
stock used for farming and agriculture purposes, like ploughing, transportation etc.
Bulls, it may be noted, have been recognized as Draught and Pack animals in the
Prevention of Cruelty to Draught and Pack Animals Rules, 1965. Draught means an
animal used for pulling heavy loads5.
3) Biting a Bulls Tail: On many occasions, bulls tails bitten by the organizers and
owners of the animals in the waiting area and inside the vadi vassal. The vadi vassal
is a chamber that is closed off from public view. Abuse runs rampant in vadi vasals.
Bulls are poked, beaten and deliberately agitated before they are forced into the
jallikattu arena, where more than 30 bull tamers are waiting6.
1
Animal Welfare Board of India VS A. Nagaraja & Ors. CIVIL APPEAL NO. 5387 OF 2014, (@ Special Leave
Petition (Civil) No.11686 of 2007), Para 16, Pg 12-13
2
Ibid, Pg 69, Para 42
3
Ibid, Para 4, Pg 3
4
Ibid, Para 4, Pg 4
5
Ibid, Para 33, Pg 60
6
Ibid, Pg 17, Heading III.1
4) Twisting a Bulls Tail: Owners routinely beat the bulls and twist their tails in order to
induce fear and pain while they are in the waiting area and the vadi vassal. Many
bulls had dislocated or even amputated tails7.
5) Poking Bulls with Knives and Sticks: Many bulls were poked with sticks by owners,
police officials and organizers inside the vadi vassal and near the collection yard.
People inside the vadi vassal often poked bulls on their hindquarters, aces and other
parts of their bodies with pointed wooden spears, tiny knives, sticks and sickle-shaped
knives used for cutting nose ropes8.
6) Using Irritants: Irritant solutions were rubbed into the eyes and noses of bulls inside
the vadi vassal in order to agitate them.
7) Using Nose Ropes: Nose ropes were frequently pulled, yanked or tightened in order to
control bulls before they were released into arenas and collection yards. Some animals
were even bleeding from the nose as a result of injuries caused by pulling the rope9.
8) Cramped Conditions: Bulls were packed so tightly into narrow waiting corridors that
they were unable to take a step forwards or backwards. Forced to stand for more than
eight hours in line at the waiting area for a health examination and in the vadi vassal,
bulls had no protection from the blistering sun and the crowds of people, who shouted
and hooted at them, harassed them and frightened them. Bull owners start lining up
the night before the jallikattu event, and they are given serial numbers. Some were in
line until the events ended at 2 pm the next day10.
9) Forcing Bulls to Move Sideways: The animals were forced to move sideways at a
slow pace for more than eight hours over a distance of approximately 500 to 1000
metres11.
10) Lack of Food and Water: All the bulls observed were not offered food, water or
shelter from 8 am, when they were forced to line up, until the jallikattu events ended
at 2.30 pm. Though concrete water troughs were available at the registration area and
collection yards, none of the animals were offered water. Bulls were so terrified and
focused on surviving at the collection yards in Palamedu and Alanganallur that they
did not drink water. Several bulls became recumbent and were unable to stand up
7
Ibid, Pg 18, Point 2
8
9
Ibid,Pg 20, Point 4
10
11
because of dehydration and exhaustion. Many people kicked, beat and bit the bulls in
order to force them back onto their feet12.
11) Forcing Bulls to Drink Liquids: On many occasions, bulls were forced to drink fluids
that were likely liquor. Animals heads were raised by pulling on the nose ropes, and
the fluids were forced into their mouths using a plastic bottle13.
12) Forcing Bulls to Stand in their Own Waste: In the waiting areas, bulls were forced to
wait for more than eight hours while standing in their own faeces and urine14.
13) Spectators Beating and Agitating Bulls: When collection yards were not present or not
used, injured, exhausted bulls were tormented by spectators as they exited. Parallel
jallikattu events happened at each venue as the aggressive crowds agitated the bulls
exiting the arena by shouting at them, beating them and jumping on them. Many
people, including police officials, beat exhausted bulls with sticks and jumped in front
of the bulls in an effort to frighten them. Running for their lives, terrified bulls ran
amok, stumbling into shops and houses and slamming into barricades and vehicles
parked nearby. Both the bull who died after a head-on collision with a passenger bus
in Avaniapuram and the bull who fractured his leg after jumping off a road in
Palamedu were running loose when their injuries occurred Parallel jallikattu is often
considered to be the real jallikattu, as the most risky action takes place during the
deliberate harassment by spectators15.
14) Restraining and Roping: When bulls entered the collection yard, they were caught
using looped rope that was attached to a long stick. At no point were the frightened
bulls allowed to calm down. After a long struggle, bulls were captured by handlers
who inserted two fingers into their noses and pulled them to the nearest tree while
three to four men held their horns and necks using multiple ropes. Once an animal
was tied to a tree, a new thick nose rope was forcefully inserted through the existing
hole in the nasal septum. Often the rope was very thick, and pulling it vigorously
caused injuries to the nasal septum, which led to profuse bleeding in many animals16.
15) Ear Cutting/Mutilation: At least 80 per cent of the bulls observed had their ears cut,
with three-fourths of the external ear pinna absent. When asked about the reason for
the mutilation, many bull owners explained that by cutting the ear, the animal would
12
Ibid, Pg 22-23, Point 8
13
14
15
16
be able to hear sounds even from the back, which they deemed to be very important
while the animals are in the jallikattu arena17.
16) Frequent Defecation and Urination: Ninety-five per cent of the bulls were soiled with
faeces from below the base of their tails and across the majority of their
hindquarters18.
17) Injuries and Deaths: Jallikattu is dangerous not only to bulls but also to humans.
Many participants and spectators sustained serious injuries at all three jallikattu
events. A total of 58 participants and 56 spectators were injured in the three jallikattu
events. One police constable was also injured in Avaniapuram.
In Avaniapuram, a total of 55 persons were injured during the jallikattu event. Of
the 26 people who were injured while trying to tame the charging bulls by
clinging to their backs, five were seriously injured. Twenty-four spectators,
including a police constable, were injured following a melee after some bulls ran
into the crowd. Five people were injured when a section of the gallery erected for
spectators collapsed because of severe crowing.
In Palamedu, 21 people, including 11 tamers, were injured during the jallikattu
event. Ten spectators were injured by bulls who escaped the fighting arena. The
21 people who suffered injuries were admitted to the Palamedu Primary Health
Centre. One onlooker, who was hit in the abdomen, was later moved to the
Government Rajaji Hospital in Madurai while others were treated as outpatients.
In Alanganallur, 38 people were injured during the jallikattu event. Twenty-one
were tamers, and others injured included onlookers and owners. Two people who
were seriously wounded were admitted to the government hospital in Madurai19.
CONCLUSION:
Bulls are prey animals. According to animal behavioural studies, bulls adopt a flight or fight
response when they feel frightened or threatened. This instinctual response to a perceived
threat is deliberately exploited by jallikattu organizers. During jallikatt, many animals are
observed to engage in a flight response as they run away from people when they experience
pain or fear. This flight response is not surprising, given the amount of pain and terror bulls
are subjected to before, during and after jallikattu. Bulls are beaten, poked, prodded, harassed
17
Ibid, Pg 15, Heading II.1
18
19
Ibid, Pg 27-28, Heading V
and jumped on by numerous people. They have their tails bitten and twisted and their eyes
and noses filled with irritating chemicals. Many peer-reviewed papers demonstrate a link
between the actions of humans and the fear, distress and pain experienced by animals.
Research has shown that rough or abusive handling of animals compromises welfare by
increasing an animals fear of humans. Bulls who are pushed, hit, prodded and abused in
jallikattu suffer mentally as well as physically20.
20
Ibid, Pg 29, Heading VIII
OBSERVATION:
The report is submitted by Manoj Oswal, Animal Welfare officer to board with regard to the
event witness at various places like Avanlapuram and Palamedu.
The operative portion of the report reads as under:
While it is not possible to conduct animal sport like Jallikattu without causing trauma and
cruelty to animals, it was anticipated that the guidelines and rules would ensure that the
cruelty is minimum.
The events at the surface looked very organized and orderly but scratching a little below the
surface showed that the abuse and violations now have been hidden away from the main
arena. The unruly people have been found their own place away from media glare and eyes of
Animal Welfare Officers.
The fundamental issue remains that a large section of people come to the events with a hope-
expectation that they are also a part of the action, which indeed has been a way of Jallikattu
always. Such people continue to handle bulls in crude fashion, continue to risk their own
lives and create hazard for themselves and others and they undo whatever the system has
built as check and balance21.
Therefore Supreme Court banned Jallikattu, holding that AWBI is right in its stand that
events like Jallikattu per se violate PCA Act. Bulls cannot be used as performing animals in
Jallikattu.
21
Ibid, Pg 37-38, Primary observation
CUSTOM:
Customs may be defined as legal rules
which are "unofficial" and "unenacted" inasmuch as they do not receive their sanction from a
statute adopted by a duly constituted legislature or from a decision handed down by a judge
of a court of competent jurisdiction. Custom is simply the practices and usages of distinctive
communities22.
In defining custom, the doctrine unanimously maintains that it is the constant and uniform
observance of a [rule of conduct] by the members of a social community, with the conviction
that custom responds to a legal necessity. In this sense, putting into evidence the comprising
elements that turn an act or omission into legally binding conduct, it is affirmed that a
"custom is the reiteration of spontaneous forms of conduct by members of a determined
societal group, with the conviction that it comply with a legal rule since it pertains to a legal
necessity. On the other hand, there is an important difference between customs and simple social
usages, with regard to the nature and intensity of sanctions. The simple social usage does not impose
sanctions or, in the case that it does, these are very slight They are a small malaise in the majority of
cases. In contrast, "a custom causes [major upheavals] in the community and imposes sanctions to
transgressors." It is not a difference in nature or genre, but merely of kind23.
Historical Evolution:
The importance of custom as a source of rights and obligations has varied significantly over
time, characterizing itself by its permanent tension with positive law." Thus, three historical
moments are recognized. In the first stage, marked by an absolute legislative decentralization,
custom was considered superior to the law. In the first societies, which were less evolved and
therefore more homogenous, custom appears as the exclusive source of the law accepting as
binding immemorial uses received by means of tradition. With the later cultural development
and outburst of written law in the Roman legal system with the Law of the XII Tables, the
transition from consuetudinary law to written law took place and custom and the law became
equals. Finally, as the interpersonal relations became more complex, heterogeneous and
numerous, it was necessary to determine, with more precision, the content and extent of
rights and obligations. This way, the lack of certainty and uniformity of customs made it
possible for the law to be considered the superior source. In addition, the peak of the
rationalist positivism inspired by the Napoleonic Code of the XIX Century and the German
22
David J Bederman, PUBLIC LAW AND CUSTOM, 61 Emory L.J. 949 2011-2012, Pg 2, Para I
23
German Savastano, CUSTOM AS A SOURCE OF LAW: ARGENTINEAN AND COMPARATIVE LEGAL SYSTEMS, 15
ILSA J. Int'l & Comp. L. 651 2008-2009, Pg 3-4, Heading III
Code of the XX Century, allowed the legislative technique to be perfected gradually, whereas
the field of custom continued narrowing down24.
CONSTITUENT ELEMENTS:
Scholars understand that not all customs are considered a source of law. A usage must
necessarily rely on specific elements that characterize a consuetudinary norm, otherwise it
will not be considered mandatory. The characteristic elements of custom are: material,
subjective and axiological.
Material:
1) Constant and Uniform Operations: Requiring a repetition of constant, homogenous
and uninterrupted actions. As such, it is important to follow a similar line of conduct
with respect to identical situations.
2) Generality: It is required that the usage be accepted by the greater number of people
in identical cases and not only by a determined sector.
3) Duration: The importance of this element has varied through time, becoming
indispensable when custom was considered to be under the realm of adverse
possession. Nevertheless, the modem approach does not require a fixed term,
upholding that it is not necessary, thus leaving this element open to judicial discretion
as a matter of fact.
4) Public: The law shall not be secretly applied. This arises in a parallel way to the
requirement of publication of written laws.
5) Patientia Principis: The Government tolerates the custom.
Subjective-Opinio Juris et Necessitatis:

It is the general conviction that the usage that is followed is a legal rule that must be
accepted as such, or otherwise would be mandated and coerced. This element allows for the
distinction between custom and mere usage or practice.
Axiological
Custom means exemplarity when it follows patterns of conduct considered rational and moral
by society. In this sense, all types of worthless behaviour must be discarded (for example,
24
Ibid, Pg 4-5, Para IV
non-payment of debts or taxes) and the absolute freedom of customs must be restrained
through diverse limits, such as through general principles of law and human dignity25.
THE LAW AND TYPES OF CUSTOM:

In general, three kinds of relationships between custom and law have been recognized.
1) Custom Secundum Legem: This is custom which is expressly recognized within the
law and which becomes valid as soon as the legislation allows it to operate.
2) Custom Praeter Legem: This type of custom arises spontaneously at the margin of
legal dispositions, completing the legal gaps in cases of unregulated matters or
matters deficiently regulated by the law.
3) Custom Contra Legem: It is defined as custom which negates a rule of law26.
Usages, customs, or practices cannot create rights, except when the laws specifically refer to
them27.
Custom acts as a relevant part of the culture. A custom can become a law if the
following circumstances concur:
1) That there be a repeated and uninterrupted usage for a considerable time.
2) That such usage be done with the consent of the parties
3) That the consensus be constituted as the governing norm in certain relations
4) That the usage does not contradict other legal or contractual dispositions28
SAVIGNY
He outlined his ideas on the theory of legislation as a part of his views on the role of
education in the formation of law. Savigny considered legislation to be one of the important
component in the development of law. Savigny did realize that additional components of law
formation were to be found in the customs and usages of people and in the science of law
itself. As he said, law is created first by usage and popular belief, then by jurisprudence29.
It is remarkable how Savigny viewed this process, and what means he used to demonstrate
the necessity of legislation and jurisprudence as the special organs of law formation30.
25
Ibid, Pg 5-6, Para V
26
Ibid, Pg 6-7, Para VI
27
Ibid, Pg 8-9, Para VII
28
Ibid, Pg 14-15, Para XI
29
KARL A. MOLLNAU, The Contributions of Savigny to the Theory of Legislation, American Society of
Comparative Law, http://www.jstor.org/stable/840442, Pg 8, Para III
30
Ibid, Pg 9, Para III
Savigny in his thesis substantiated the following passage :

If, through modified habits, views, and needs a change in the existing laws should become
necessary, or if in the progression of time quite new legal institutions should be needed, these
new elements could be inserted into existing law by the same internal invisible force that
originally created law. But it is here, especially, that the influence of legislation might be
extremely salutary, even indispensable. Since these exciting causes occur only gradually,
there necessarily is an intermediate period of uncertainty in the law, an uncertainty to be
ended by the demand for legislation. Savigny pleaded only for changes in the law, not for
changes of the law31.
In the absence of a state code on the subject, the space on family relations is occupied by
religious rules. These rules are supported or even displaced by custom and practice. Religion
and custom are not always distinguishable. Custom is even more amorphous, vague or
unformed than religion. It is also more localised. It is determined by small and local social
groups and depends on memory for its formulation. The high tradition of religion is vitalised
by little traditions of rituals, fasts, feasts and an intricate code of conduct. It includes rules for
what to wear, eat or do, even who can greet whom and in what manner. The great and the
little traditions together determine who can marry whom and by what rituals. Thus the high
tradition lays down certain broad principles, while the minutiae are generally determined by
the little tradition. For example, the great tradition has banned marriage within the gotra or
sapinda, that is, between close relatives. But surely it is the little tradition in Punjab that
prescribes that a widow must marry her husband's younger brother or male cousin32.
Governments remain content by enacting legislation. They take no trouble to publicise those
laws. Forty five years after the Hindu Succession Act 1956 was passed we have met widows
who did not know that they had a right in their husband's estate. We meet men and women
who do not know that since 1954 Hindus can no longer enter into a polygamous marriage.
The caste panchayat applies its own norms without ever knowing that the law has changed33.
Law and custom are forever locked in a dialectic of misinterpretation for two basic reasons:
first, because customs are essentially collective rituals, while law is essentially a synoptic
blueprint; second, because laws are essentially static while customs are essentially fluid.
When the individual legislator or judge interprets the relevant customs, he or she cannot
31
Ibid, Pg 10, Para III
32
VASUDHA DHAGAMWAR, Invasion of Criminal Law by Religion, Custom and Family Law, Economic and
Political Weekly, http://www.jstor.org/stable/4413432, Pg 2-3
33
Ibid, Pg 10
possibly grasp in a single rule the diversity and nuance of social usage any more than a
grammarian can grasp the diversity of linguistic usage. For the custom exists perfectly only in
the collectivity as a whole; thus every individual interpretation of social custom is a
misinterpretation. And because custom is always evolving in unforeseen directions, the legal
interpretation of custom is soon obsolete, just as a grammar is almost instantly out of date.
Once this obsolete misinterpretation of custom becomes law, it must be interpreted by
everyone who obeys it. Custom then misinterprets the law, as witnesses a crime, each person
seeing something a little different, or like the game of telephone, in which he intended
message at the start is transformed into a very different message at the end. Custom
misinterprets law only with respect to the intention of the law-maker34.
The Supreme court in N. Adithayan v. Thravancore Dewaswom Board and Others35 held that
Any custom or usage irrespective of even any proof of their existence in pre-constitutional
days cannot be countenanced as a source of law to claim any rights when it is found to violate
human rights, dignity, social equality and the specific mandate of the Constitution and law
made by Parliament. No usage which is found to be pernicious and considered to be in
derogation of the law of the land or opposed to public policy or social decency can be
accepted or upheld by courts in the country.
In a Bombay Regulation of 1827, it was laid down that "the law to be observed in the trial of
suits shall be . . . Acts of Parliament, and Regulations of Government applicable to the case.
In the absence of such Acts and Regulations, the usage of the country in which the suit arose.
If none such appears, the law of the defendant, and, in the absence of specific law and usage,
justice, equity, and good conscience alone36."
Turning to Lord Halsbury Law of England, volume x, pg 218, we find custom described as
A particular rule which has exicted either actually or presumptively from time immemorial,
and has obtained the force of Law in a particular locality, although contrary to, or not
consistent with, the general common law of the realm. And again : custom is unwritten law
peculiar to particular localities37.
34
Nature, Custom, and Stipulation in Law and Jurisprudence, Pg 39-40, Para V
35
(2002) 8 SCC 106
36
JAMES BERNARD MURPHY, Lindesay J. Robertson, The Judicial Recognition of Custom in India,
http://www.jstor.org/stable/753149, Cambridge University Press, Pg 2
37
Ibid, Pg 3
PUBLIC MORALITY:
Alongside the law, public morality forms the normative foundations of every society. It
constitutes the mutual justified demands of individuals and thus stabilises individual
expectations of conduct. For example, as truthfulness constitutes a valid moral obligation, it
enables individuals to place their trust in others. Furthermore, public morality serves as the
measure of normative correctness in law and in politics. Laws, judicial rulings and political
actions must be just. Were they not largely fair, they could not lay a legitimate claim to
acceptance or binding force. Despite the particular importance of public morality, it is often
unclear what the precise substance of moral norms is. The reason for this is that there is no
adequate validity concept for morality. Such a concept ought to distinguish between binding,
valid norms of public morality on the one hand, and both individual moral convictions and
moral criticism of public morality on the other38
Public morality must be perceived as freestanding. In short, this means that public morality
must not be directly dependant on the moral views of single individuals. The validity basis of
free standing public morality must therefore be conceptually distinct from claims to
correctness of individual moral convictions. This is founded in the following consideration:
The idea of reasonable consensus states that a conception of public morality cannot be
generally binding if it is not accepted by all discourse partners: I cannot morally demand of
other individuals that which I cannot justify to them. In the light of moral pluralism however,
it is unrealistic to expect that one participant will be able to convince his/her partners totally
of his/her personal moral views. For this reason, a moral consensus cannot rest on the idea
that all consider the same moral views to be correct. It must be seen as sufficient that all can
agree on a common conception. This does not necessarily mean that the consensus is a purely
pragmatic modus Operendi. It is of moral character, because it is morally founded through a
realisation that agreement on the norms of public morality is necessary and the recognition
that their validity is dependent on their general acceptance in rational discourse. It is in the
nature of such an agreement that it neither corresponds totally to the moral convictions of
individual discourse participants nor necessarily leads to a convergence of their opinions. For
this reason, each participant in public discourse must also accept norms which do not fully
embrace his/her own convictions. This implies a conceptual separation between public
morality and individual moral convictions. Public morality therefore forms an additional
38
Nils Jansen, The Validity of Public Morality, Franz Steiner Verlag, http://www.jstor.org/stable/23681242, Pg
3
normative level between these and generally binding law39. Nonetheless, in justifying a
freestanding conception all arguments deemed relevant during discourse, therefore also
ideological assertions, must be adequately taken into account: This is the only way for all
discourse participants to be able to assert a claim to moral correctness for the freestanding
conception. It is in fact a conceptual precondition that all relevant arguments must be taken
into account for claiming correctness in the solution of a moral problem. Therefore,
arguments can only then be excluded from the justification of public morality if they can
clearly be shown to be invalid or irrelevant40.
The principle is founded in the fact that individuals acquire their moral convictions through
upbringing in an established morality. Accordingly, they usually believe this morality to be
largely correct. They would therefore be unable to agree on a new conception that did not
correspond to existing principles to a great extent. If it is taken seriously, that individuals are
to decide on the validity of moral norms, this must not simply be viewed as a contingent
restriction of their ability to make correct moral judgements. It ought to be accepted as
relevant within the framework of public morality41
The relationship between Public morality and Private morality is complex. Sometimes they
are congruent, sometimes they diverge, and sometimes they conflict. To appreciate this is the
beginning of understanding when dealing with problems of public morality/immorality. To
illustrate: Developing countries have no greater problem than the official who uses his office
to advantage himself, his family, or tribe. Such a person is acting in morally in terms of the
Western conception of "the public," but his private morality is impeccable because to
advantage family or tribe is by his tradition and culture highly moral42.
According to E. T. Miller (1966: 54), the "concept public refers to the social-cultural
organization in which individuals are both the active agents and a phase of its constitution."
Following the lead of this definition, public morality is the set of standards prescribing right
conduct within social-cultural organization43.
In the study of Public morality three distinct methods of analysis are possible. The narrowest
approach to the study of public morality is strictly empirical, in the sense that the investigator
merely attempts to describe the general pattern of prescriptions of right conduct at given
39
Ibid, Pg 6-7, Para III
40
Ibid, Pg 8
41
Ibid, Pg 14
42
Dwight Waldo, Reflections on Public Morality, Wiley, http://www.jstor.org/stable/27547297, Pg 5
43
MICHAEL A. WEINSTEIN, THE SOCIOLOGY OF PUBLIC MORALITY: TALCOTT PARSONS AND PHENOMENOLOGY,
http://www.jstor.org/stable/20830854, Pg 2
places and times. Wider than the empirical approach is the logical approach, in which the
various prescriptions discovered in empirical research are tested by standards of formal
consistency. Here the question is whether the person, in his role performances, is required to
engage in contradictory activities. The logical approach is useful for finding obvious strains
within social cultural organization, and is, therefore, a necessary supplement to the empirical
approach. And is, therefore, a necessary supplement to the empirical approach. However,
beyond the logical approach is phenomenological analysis, in which the system of public
morality discovered in empirical research and tested for consistency in logical analysis is
evaluated in terms of its adequacy to the attainment of substantive human value44. Thus,
according to phenomenological analysis, the entire range of human experience (the quality, as
well as the quantity of life) is open to disciplined investigation45.
Public morality represents a reordering of priorities in the public domain, not an entirely new
discovery. Creativity, cooperation, appreciation and inquiry were present in the modern
world, but they were obscured by a public morality which made a virtue of growth for its own
sake.46
44
Ibid, Pg 2-3
45
Ibid, Pg 3-4
46
Ibid, Pg 21
ANIMALS RIGHT
As early as 1500-600 BC in Isha-Upanishads, it is professed as follows:
The universe along with its creatures belongs to the land. No creature is superior to any
other. Human beings should not be above nature. Let no one species encroach over the rights
and privileges of other species47.
INTERNATIONAL APPROACH TO ANIMALS WELFARE:
We may, at the outset, indicate unfortunately, there is no international agreement that ensures
the welfare and protection of animals. United Nations, all these years, safeguarded only the
rights of human beings, not the rights of other species like animals, ignoring the fact that
many of them, including Bulls, are sacrificing their lives to alleviate human suffering,
combating diseases and as food for human consumption48.
When we look at the rights of animals from the national and international perspective, what
emerges is that every species has an inherent right to live and shall be protected by law,
subject to the exception provided out of necessity. Animal has also honour and dignity which
cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected
from unlawful attacks49.
Chapter 7.1.2 of the guidelines of World Health Organization of Animal Health (OIE),
recognizes five internationally recognized freedoms for animals, such as:
(i) freedom from hunger, thirst and malnutrition;
(ii) freedom from fear and distress;
(iii) freedom from physical and thermal discomfort;
(iv) freedom from pain, injury and disease; and
(v) freedom to express normal patterns of behaviour50.
Article 51A(g) states that it shall be the duty of citizens to have compassion for living
creatures. In State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others (2005) 8
SCC 534, this Court held that by enacting Article 51A(g) and giving it the status of a
fundamental duty, one of the objects sought to be achieved by Parliament is to ensure that the
spirit and message of Articles 48 and 48-A are honoured as a fundamental duty of every
citizen. Article 51A(g), therefore, enjoins that it was a fundamental duty of every citizen to
have compassion for living creatures, which means concern for suffering, sympathy,
47
Petition (Civil) No.11686 of 2007), Pg 70, Para 44
48
49
50
kindliness etc., which has to be read along with Sections 3, 11(1)(a) & (m), 22 etc. of PCA
Act51.
HUMANISM: Article 51A(h) says that it shall be the duty of every citizen to develop the
scientific temper, humanism and the spirit of inquiry and reform. Particular emphasis has
been made to the expression humanism which has a number of meanings, but increasingly
Designates as an inclusive sensibility for our species. Humanism also means, understand
benevolence, compassion, mercy etc. Citizens should, therefore, develop a spirit of
compassion and humanism which is reflected in the Preamble of PCA Act as well as in
Sections 3 and 11 of the Act. To look after the welfare and well-being of the animals and the
duty to prevent the infliction of pain or suffering on animals highlights the principles of
humanism in Article 51A(h). Both Articles 51A(g) and (h) have to be read into the PCA Act,
especially into Section 3 and Section 11 of the PCA Act and be applied and enforced52.
Parliament has recognized the rights of animals, of course, without not sacrificing the interest
of human beings under the Doctrine of necessity, like experiments on animals for the purpose
of advancement by new discovery of physiological knowledge or of knowledge which will be
useful for saving or for prolonging life or alleviating suffering or for combating any disease,
whether of human beings, animals or plants and also destruction of animals for food under
Section 11(3) of the PCA Act. Legislature through Section 28 also saved the manner of
killing of animals in the manner prescribed by religions, those are, in our view, reasonable
restrictions on the rights enjoyed by the animals under Section 3 read with Section 11(1).
Evidently, those restrictions are the direct inevitable consequences or the effects which could
be said to have been in the contemplation of the legislature for human benefit, since they are
unavoidable53.
Temple Grandin and Catherine Johnson, in their work on Animals
in Translation say:
The single worst thing you can do to an animal emotionally is to make it feel afraid. Fear is
so bad for animals I think it is worse than pain. I always get surprised looks when I say this.
If you gave most people a choice between intense pain and intense fear,
Theyd probably pick fear. Both anxiety and fear, therefore, play an important role in animal
suffering54.
51
52
Ibid, Pg 79-80, Para 58
53
54
RIGHT TO LIFE: Every species has a right to life and security, subject to the law of the land,
which includes depriving its life, out of human necessity. Article 21 of the Constitution,
while safeguarding the rights of humans, protects life and the word life has been given an
expanded definition and any disturbance from the basic environment which includes all forms
of life, including animal life. So far as animals are concerned, in our view, life means
something more than mere survival or existence or instrumental value for human-beings, but
to lead a life with some intrinsic worth, honour and dignity55.
State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat & Ors56. In this the court held that
The State and every citizen of India must have compassion for living creatures.
Compassion, according to the Oxford Advanced Learner Dictionary means a strong feeling of
sympathy for those who are suffering and a desire to help them. According to the Chambers
20th Century Dictionary, compassion is fellow-feeling, or sorrow for the sufferings of
another; pity. Compassion is suggestive of sentiments, a soft feeling, emotions arising out of
sympathy, pity and kindness.
The Gujarat High Court (Division Bench) judgment when the Court declared against the ban
of meat for nine days during the Jain fasting season Paryushan. The court held that whether
the people eat vegetarian food or non-vegetarian food is their private affair and the Court
cannot make any pronouncement about it. People living in different parts of the country have
different eating habits. Even in a particular locality, village or town, there are some who are
vegetarian and others who are non-vegetarian. The Division Bench held that no restriction
can be placed on the slaughtering or eating of meat merely because it may hurt the sentiments
or the religious feelings of a particular community or a society57.
The Supreme Court reversed the judgment, this time with a greater logic saying that it is well
within the reasonable restrictions under Article 19 as the ban is only for 9 days. It must be
remembered that India is a multi-cultural pluralistic society with tremendous diversity. There
are a large number of religions, castes, languages, ethnic groups, cultures, etc. in our country.
Somebody is tall, somebody is short, somebody is fair, somebody is brown, somebody is dark
in complexion, someone has Caucasian features, someone has Mongoloid features, someone
has Negroid features, etc. Since India is a country of great diversity, it is absolutely
essential if we wish to keep our country united to have tolerance and respect for all
communities and sects. It was due to the wisdom of our founding fathers that we have a
55
56
2005(8) SCC 534
57
https://intheinterestofjustice.wordpress.com/tag/state-of-gujarat-vs-mirzapur-moti-kureshi-kassab-jamat-
ors-20058-scc-534/
Constitution which is secular in character, and which caters to the tremendous diversity in our
country58.
In Frontiers of Justice Nussbaum says when there is a plausible reason for the killing, no
entitlement based on justice has been violate. But 'useful' is surely very different from
'necessary.' When is meat useful? When eating it contributes to my health? But is it then not
necessary? Or is there a minimum of health for which meat could in some conditions be said
to be necessary, while above that minimum, it might be useful but not more than that? And
can meat still be said to be useful when there are alternatives of equal usefulness, and meat is
therefore clearly no longer necessary. The problem is even more complex if we compare the
above claim with the earlier one that "killing... is not to be chosen simply for the human's
convenience". We are also left to figure out the crucial difference between 'conveniences' and
'usefulness,' that makes the difference between unjustified and justified killing59.
The use of animals for food in general is a much more difficult case, since nobody really
knows what the impact on the world environment would be of a total switch to vegetarian
sources of protein, or the extent to which such a diet could be made compatible with the
health of all the world's children60.
It is difficult (if at all possible) to prove that life-long vegetarianism necessarily impairs a
person's health in any way, when alternatives to meat are used (like soy and certain nuts, for
instance). But there are many other matters that would have to be considered, therefore -
though I doubt whether it could definitively be proven that basic human entitlements would
be violated by a prohibition of killing animals for food61.
Animal rights lawyers do not argue that animals should be given the same rights as humans.
Rather, different animals require different rights depending on their needs and capabilities.6
The fundamental tenet of animal rights law is that the law should not treat animals as mere
things. This is based on the assumption that unless animals have rights, they will continue
to be treated by society as resources to satisfy human wants and needs62.
The laws relegation of animals to the category of property is arguably a key issue in their
abuse and exploitation. As such, many animal lawyers argue that animals should be given
legal personhood. Personhood for animals is not impossible; legal persons do not have to be
58
Ibid
59
Anders Schinkel, Martha Nussbaum on Animal Rights, Indiana University Press,
http://www.jstor.org/stable/40339148, Pg 13
60
Ibid, Pg 15
61
Ibid, Pg 16
62
The Animal Law Toolkit, December 2009, www.voiceless.org.au, Pg 4, Para 1.1
human. Furthermore, the fact that animals are already regarded as property would not prevent
them being reclassified63.
Based on eco-centric principles, rights of animals have been recognized in various countries.
Protection of animals has been guaranteed by the Constitution of Germany by way of an
amendment in 2002 when the words and the animals were added to the constitutional
clauses that obliges state to respect animal dignity. Therefore, the dignity of the animals is
constitutionally recognised in that country. German Animal Welfare Law, especially Article
3 provides far-reaching protections to animals including inter alia from animals fight and
other activities which may result in the pain, suffering and harm for the animals. Countries
like Switzerland, Austria, Slovenia have enacted legislations to include animal welfare in
their national Constitutions so as to balance the animal owners fundamental rights to
property and the animals interest in freedom from unnecessary suffering or pain, damage and
fear64.
Animals Welfare Act of 2006 (U.K.) also confers considerable protection to the animals from
pain and suffering. The Austrian Federal Animal Protection Act also recognises mans
responsibilities towards his fellow creatures and the subject Federal Act aims at the
protection of life and well being of the animals. The Animal Welfare Act, 2010 (Norway)
states animals have an intrinsic value which is irrespective of the usable value they may
have for man. Animals shall be treated well and be protected from the danger of unnecessary
stress and strain65.
63
Ibid, Pg 5, Para 2.1
64
Petition (Civil) No.11686 of 2007), Pg 74-75, Para 49
65

Jurisprudence Rough Draft (Ba0140001)

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Jurisprudence Rough Draft (Ba0140001)

Uploaded by

Copyright:

Available Formats

ABHIJEET SINGH RATHORE (BA0140001)

Subjective-Opinio Juris et Necessitatis:

THE LAW AND TYPES OF CUSTOM:

Savigny in his thesis substantiated the following passage :

You might also like