Desirability of Writing Judgment in Malayalam

(By V.K. Babu Prakash, Judge, Motor Accidents Claims Tribunal, Thalassery)

“If the entire Administrative work of the Government and its intellectual activities continue to be carried on in the language of the minority, then whose interests will such a Government and its institution defend? On which side will it lean? Out of 40 crores, English has touched a fringe of 10% Indians only. The ridiculous argument that Bengali, Hindi, Marathi, Tamil and several other native languages are undeveloped, therefore, cannot, give us uptodate idea and information, is nothing, but a fallacy”.

—'Ram Manohar Lohya in his essay titled ‘language’ published in 1950, quoted by Ramachandran Guha in his book ‘Makers of modern India.’-

A retired Professor of English who happened to be a friend of mine put few formidable questions while we were interacting each other on our leisurely talk, the other day. His question really put me aghast and I stumbled to find a suitable answer, therefore, the question is cut into pieces and arranged as follows:-

1. Why do Judges and Magistrates write judgment in English language?

2. When common people are the litigants before the court of law, who are mostly illiterate, why the English language is chosen?

3. Does it not trouble the litigant to read and understand the judgment as he wanted the help of a middle man called lawyer to read and understand the judgment?

4. Most of the judgments written in English are faulty in grammar, usage, sentence construction and what not, so that, they cannot be called wholesome. Then why indulge in such ridiculous exercise, the Professor points out.

5. What is the barricade of law in writing judgment in the language of the litigant?

6. As the judgment is for the litigant and not for the lawyer, Judges and Appellate Court, why is it not written in the language of the litigant?

7. If the judgment is written in an alien language, which cannot be read and understood by the litigant himself, then does the judgment really serve its purpose?

The questions disturbed my mind for a while. I could not give a satisfactory answer to the Professor who made a bitter smile on me, which cut me a sorry figure before him. I try to find out an answer and the article is an attempt on it.

Recently, the All India Junior Advocates’ Association has moved the Supreme Court for a direction to the Central Government to conduct a feasibility of using Tamil and other regional languages in the High Courts and Supreme Court with simultaneous translations through audio system as was being done in Parliament. It also wanted a direction to the Central Government to do complete justice to lawyers in Tamil Nadu for introducing Tamil as the court language. The Tamil Nadu government moved a resolution in its Assembly making Tamil as the Court language which was forwarded to the President of India which was pending consideration with the Union Home Ministry for over six months. It is pointed out that the Bar Council of India hadpermitted Law students to take their Degree examination in regional languages. While so, failure of Government to allow lawyers to argue their cases in their regional languages in the High Courts affected their fundamental rights. It is also said that in Parliament and in several other important international conferences, it was the common knowledge that participants and those who watch proceedings would be able to hear simultaneous translation through the audio system provided in the hall. A similar audio system could be introduced in the High Court and Supreme Court. When carefully analyzed, it appears that the two arms of the democracy namely ‘Legislature and Executive’ are trying to embrace regional language and Hindi as its governing language, whereas, the third arm, Judiciary is consciously or otherwise showing its palm to the regional language making it untouchable for its embrace. Why is Judiciary showing a cold shoulder or inertia to adapt to regional language instead of wearing the English grab and writing judgmentin English language? It really alienates the judicial institutions from the people and gives rise to a frowning comment that it is a sore on the democracy itself.

Article 348 of the Constitution deals with the languages to be used in the Supreme Court and the High Courts and for Acts, Bills, etc. Article 348 can be reproduced as follows:-

(1)             Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides—

(a) all proceedings in the Supreme Court and in every High Court,

(b) The authoritative texts—

(i)  of all bills to be introduced or amendments thereto be moved in either Houses of Parliament or in the House or either House of the Legislature of a State.

(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State and

(iii)            of all orders, rules, regulations and bye-laws issued under the Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.

(2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:

Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.

(3)Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.”

On a careful reading of the Article would shed light to the fact that it deals with the language to be used in the proceedings in the Supreme Court and every High Court. The language of the Supreme Court shall be English and the language of theHigh Courts for official purpose shall either be English or any other language including Hindi as authorised by the Governor with the consent of the President. The Article does not say anything about the language of the Subordinate Courts which makes it clear that the Constitution does not prescribe any embargo on the Subordinate Courts to use the regional language.

Now, let us look at the Civil Procedure Code and the Criminal Procedure Code with relevant Civil and Criminal Rules of Practice regarding the restriction to the use of regional language as the language of the Court. Order 20 of C.P.C. r/w S.33 of the C.P.C. says that:-

“The Court after the case has been heard shall pronounce the judgment in open court either at once or as soon as thereafter as may be practicable.”

Section 353 of Cr.P.C. says that:-

“The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders—

(a) by delivering the whole of the judgment; or

(b) or by reading out the whole of the judgment; or

(c)             by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.

The expression ‘language’ of the court occurring in the provision does not define the kind of language. The practice is that all courts including Civil and Criminal are permitting the parties to file plaint, written statement, private complaints, affidavit etc. in the language of the party, which is Malayalam. It allows the chief examination and cross examination to be conducted in Malayalam language. Iteven permits the lawyers to present the argument in Malayalam. But the pity is that it delivers the judgment in English language, which is quite paradoxical to the entire gamut of the system. Why is it so? It appears that Article 349 of the Constitution is also relevant which says that:-

“During the period of fifteen years from the commencement of this Constitution, no Bill or amendment making provision for the language to be used for any of the purposes mentioned in clause (1) of Article 348 shall be introduced or moved in either House of Parliament without the previous sanction of the President, and the President shall not give his sanction to the introduction of any such Bill or the moving of any such amendment except after he has taken into consideration the recommendations of the Commission constituted under clause (1) of Article 344 and the report of the Committee constituted under clause (4) of that Article.”

As any other language could not be introduced as stated under Article 348(1), the CentralGovernment appointed the Official Languages Commission in 1955. Its terms and reference were to make recommendation to—

(a) the progressive use of the Hindi language for the official purposes of the Union.

(b) restrictions on the use of the English language for all or any of the official purpose of the Union;

(c) the language to be used for all or any of the purposes mentioned in Article 348.”

The Commission regarding “Language of Law Courts” held that:-

“ In some States, like Madhya Bharat, Rajasthan, Hyderabad, etc., the use of Hindi/regional language has been authorised for proceedings, other than judgments, decrees or orders of the High Courts. The country’s judicialsystem used to function, for the last few decades, in languages other than English. The change-over to Indian language media from English may appear novel to the present generation which sees before it the English language proliferated over the entire judicial system. However, it is only natural that justice should be administered in a country in its indigenous languages and, provided the change is brought about systematically, the prospect should not provoke alarm or cause apprehension about its basic practicability.

The Commission further held that:-

“When the time comes for the change-over in the lower levels of the judiciary, that is to say, courts of panchayats, Civil and Criminal Courts at the Tehsil level etc., the language of the courts must be the language best understood by thepeople, which would be the regional language(s) of the different States.

Apart from the option of delivering judgments in English, there may be an option to High Court Judges to deliver judgments in their regional languages provided English or Hindi translations of such judgments are authenticated by them.”

Although there were categorical recommendations made by the Commission, just like, the fate of every other commission report, the report of the Language Commission also gathered dust in the coffers of the Government. Why the Subordinate Courts are using English language other than the language of litigant? It appears that there is no legal obstacle standing in the way of Malayalam to be used as the language of the judgment. There are certain lame excuses prevailing among the fraternity that law is taught in English and most of its Canons are from Roman, Latin and Anglo Saxon maxims and diktats, which are unamenable for suitable Malayalam translation. That apart, Malayalam is considered as a brash and razzmatazz language which cannot imbibe legal jargons and its metaphors. Whatever it is, the foremost purpose of the judgment is to communicate to the litigant as to what happened to his case and why is it so decided. It must be in the language of the litigant. If it is not possible to deliver the judgment in Malayalam, at least a true and correct translated copy should be delivered to the litigant. While considering the pros and cons of writing judgments in Malayalam, the competing points for and against the proposition, at the end of the day, it predominantly points out that the judgment should be delivered in the language of the litigant. It is a long and overdue demand of the litigant. Better be late than never.

Jurisdiction of the Human Rights Commission

(By J.B. Koshy, Chairperson, Kerala State Human Rights Commission,
 Former Chief Justice of Patna High Court)

Hon’ble High Court in Sajan Varghese v. Kerala State Human Rights Commission
 (2014 (3) KLT 869) held that Kerala State Human Rights Commission (Procedure)

Regulations, 2001 (hereinafter referred to as the ‘regulation’) cannot restrict powers of the Commission as provided under the Act. Following the above decision, several queries were raised regarding the ambit of the jurisdiction of the Commission.

2. Section 12 of the Protection of Human Rights Act, 1993 (hereinafter referred to as the ‘Act’) provides the functions of the Commission which reads as follows:

“12. Functions of the Commission:-- The Commission shall perform all or any of the following functions, namely;

     (a)        inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, or on a direction or order of any court into complaint of--

     (i)         violation of human rights or abetment thereof; or

     (ii)        negligence in the prevention of such violation, by a public servant;

     (b)        intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

     (c)        visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are                  detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to                       the Government.

  (d)          review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their                            effective implementation;

     (e)        review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

     (i)         study treaties and other international instruments on human rights and make recommendations for their effective implementation;

     (g)        undertake and promote research in the field of human rights;

     (h)        spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications,                       the media, seminars and other available means;

     (i)         encourage the efforts of non-governmental organizations and institutions working in the field of human rights;

     (j)         such other functions as it may consider necessary for the promotion of human rights.”

It is very clear from Section 12(a) (i) that the Commission can suo motu or on a petition by a victim or any person on his behalf consider complaints regarding violation of human rights or abetment thereof of any person. Sub-section (ii) of Section 12 (a) deals with the power of the Commission in entertaining complaints regarding negligence in the prevention of such violation by public servants. Section 13 of the Act deals with the powers of the Commission relating to inquiries. Section 13 (1) provides as follows:

“(1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular in respect of the following matters namely:-

     (a)         summoning and enforcing the attendance of witnesses and examining them on oath;

     (b)         discovery and production of any document;

     (c)         receiving evidence on affidavits;

     (d)         requisitioning any public record or copy thereof from any court or office;

     (e)         issuing commissions for the examination for witnesses or documents;

     (f)          any other matter which may be prescribed.”

The Commission can order payment of compensation or initiate proceedings for prosecution or take such further actions as it may think fit (Section 18). The Commission can also approach the Hon’ble Supreme Court or High Court. Further, under Section 18 (c) of the Act, the Commission can recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary. The Government is bound to file an action taken report within one month from the date of receipt of the recommendation of the Commission or in a further time as given by the Commission.

3. The Commission has passed Kerala State Human Rights Commission (Procedure) Regulations, 2001. Under Regulations 17, the Commission can dismiss, in limine, complaints of the following nature. Regulation 17 reads as follows:

“17. Complaints not ordinarily maintainable:-- The Commission may dismiss in limine complaints of the following nature:

     (a)        illegible;

     (b)        vague, anonymous or pseudonymous;

     (c)        trivial or frivolous;

     (d)        barred under sub-section (1) or (2) of Section 36 of the Act;

     (e)        allegations do not disclose involvement of any public servant;

     (f)         issue raised relates to civil disputes, service matters, labour or industrial dispute;

     (g)        allegations do not raise any violation of human rights;

     (h)        if the matter raised is subjudice before a Court or Tribunal;

     (i)         the matter is covered by a Judicial verdict/decision of the National Commission or a State Commission;

     (j)          where the complaint is only a copy of the petition addressed to some other authority;

     (k)        where the petition is not signed or where the original petition is not sent to the Commission;

(l) where the matter raised is outside the purview of the Commission or on any other ground.”

This Regulation gives power to the Commission for dismissing applications in limine. Therefore, if a matter is pending before a court or tribunal or the matter is covered by judicial verdict, the Commission will not usually interfere. But, in any proceedings in the Court or a Tribunal, if human rights violations are there, the Commission can implead itself in the proceedings. Further, in respect of service, labour or industrial disputes or in private disputes which does not disclose involvement of any public servant, the Commission has got power to dismiss the application in limine allowing the party to have recourse to civil court or authorities under the labour or respective enactments. It is not a prohibition or bar of jurisdiction. It is an enabling provision for dismissing a complaint in limine using judicial discretion depending upon the nature of the case. This is further clear from Regulation 26. Appendix II provided in Regulation 26 gives list of subject-wise incidents leading to the complaint or suo motu action which cannot be entertained by the Commission. For example, classification 400 reads as follows:

                              Code                Major              Sub-Code          Sub-Heads

                              Number            Heads             Number

                           (1)                    (2)                     (3)                        (4)

                          400                 Judiciary            400.01               Biased judiciary.

                                                                                                     Double jeopardy.

                           600                 Labour               600.01              Bonded Labour.

                                                                            600.02              Exploitation of Labour.

                                                                            600.03              Forced Labour.

                                                                            600.04              Hazardous employments.

                                                                            600.05              Slavery.

                                                                            600.06              Traffic on human labour.

                         1100                 Service             1100.01             Disparities in Employment

                                                  Matters                                        opportunities.           

                                                                            1100.02           Non-payment of pension/

                                                                                                    Compensation.                                               

                                                                             1100.03          Other service disputes.

                          1200                Women               1200.01          Abduction, rape and murder.

                                                                             1200.02          Discrimination against

                                                                                                     women.                                                                  

                                                                              1200.03          Dowry death or their attempt.

                                                                              1200.04          Dowry demand.

                                                                              1200.05          Exploitation of women.

                                                                              1200.06          Gang rape.

                                                                              1200.07          Indecent representation of

                                                                                                     women.                                                           

                                                                               200.08           Indignity of women.

                                                                               1200.09         Immoral traffic on women.

                                                                               1200.10         Rape.

                                                                               1200.11         Sexual Harassment.

                          1300               Miscellaneous       1300.01         Disappearance.

                                                                               1300.02         Land Disputes.

                                                                               1300.03         Hunger Strike.

                                                                               1300.04         Family disputes.

                                                                               1300.05         Matters not included in the

                                                                                                     Above mentioned items.                                                                                 

4. Thejurisdiction of the Commission was explained by the Hon’ble Supreme Court in Ramdeo Chauhan alias Rajnath Chauhan v. Bani Kant Das & Ors.(AIR 2011 SC 615).
 In the above case, it was held by the Hon’ble Apex Court that whether denial of human rights by private parties, public institutions, governments or even by courts, the Commission can interfere. It was held as follows:

“46. The NHRC has been constituted to inquire into cases of violation of and for protection and promotion of human rights. This power is an extensive one, which should not be narrowly viewed.

47. It must be jurisprudentialy accepted that human right is a broad concept and cannot be straitjacketed within narrow confines. Any attempt to do so would truncate its all embracing scope and reach, and denude it of its vigour and vitality. That is why, in seeking to define human rights, the Legislature has used such a wide expression in Section 2 (d) of the Act. It is also significant to note that while defining the powers and functions of NHRC under Section 12 of the Act, the said broad vision has been envisioned in the residuary clause in Section 12 (j).”

“52.................One must accept that human rights are not like edicts inscribed on a rock. They are made on the crucible of experience and through irreversible process of human struggle for freedom. They admit of a certain degree of fluidity. Categories of human rights, being of infinite variety, and never really closed. That is why the residuary clause in sub­section (j) has been widely worded to take care of situations not covered by sub-sections (a) to (i) of Section 12 of Act. The jurisdiction of NHRC thus stands enlarged by Section 12(j) of the 1993 Act, to take necessary action for the protection of human rights. Such action would include inquiring into cases where a party has been denied the protection of any law to which he was entitled, whether by a private party, a public institution, the government or even the Courts of law. We are of the opinion that if a person is entitled to benefit under the particular law, and benefits under that law have been denied to him, it will amount to violation of his human rights.”

The above Apex Court decision clearly shows that jurisdiction of the Human Rights Commission is very wide in dealing with human rights violationsp and there is no bar in taking action against private individuals if their acts constitute violation of human rights or abetment thereof as provided under Section 12(a) (i) of the Act. Regulations are framed by the Commission itself and it gives power to dismiss, in limine, certain kinds of petitions though it is not an absolute bar as the powers given under the Act are very wide and Regulations cannot restrict the powers given to the Commission by the Act of Parliament as held by the decision of the Hon’ble High Court in Sajan Varghese v. Kerala State Human Rights Commission (supra).

5. The observations of the Court in Sajan Varghese’s case is in conformity with the judgment of the Hon’ble Supreme Court and the Act.

Justice  Krishna  Iyer  Never  Dies

(By P.B. Sahasranaman, Advocate, High Court of Kerala)

Justice V.R. Krishna Iyer has left us on 4th December, 2014. His erudition in English language is reflected through his judgments, articles, forewords, and letters. He has written many books mainly on jurisprudence . But there is only one book which is not on law, Death and After, wherein he has written about life after death.

His wife expired in 1973. Then he started his investigation as to whether there is life after death. According to him life and death live together and in a sense, are even complementary to each other. In the book he has stated real experiences about his communication with her. The book was re-printed five times and the last edition came out in 2012. This time Justice Krishna Iyer wanted a foreword to the same to be written by the Late T.P.Kelu Nambiar whom Justice Krishna  Iyer  respected. When I approached Mr. Nambiar with a request, he immediately refused that he cannot accept the proposition that there is life after death and unlike other law books this book cannot be accepted. Finally I persuaded him to read the book. On the next day he called me over the telephone and stated that this is a different book that has touched his heart. The book according to Kelu Nambiar is not a dream story but live experience.

The judgment and writings of Justice Krishna Iyer are valuable to all. The views taken by him are still valuable, followed by the Courts. His concept about the independency of judiciary is recently followed by the Supreme Court of India in a judgment rendered on 25th September, 2014 (Madras Bar Association v. Union of India  ( 2014 (4) KLT Suppl. 92 (SC) = (2014) 10 SCC 1 at page 138) ), wherein a bench of five Judges , while following his judgment, stated that the necessity of judiciary which is in tune with the social philosophy of the Constitution has nowhere been better emphasized than in the words of Krishna Iyer, J.  and quoted the relevant portion. Again in the same judgment it has been stated that Krishna Iyer, J. goes on to say in his inimitable style :

 "Justice Cardozo approvingly quoted President Theodore Roosevelt’s stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing."                  (Mainstream, November 22, 1980)

The Court continued to rely on his eloquent words  quoting as follows:-

"Independence of the Judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither Judiciary made to Opposition measure nor Government’s pleasure.            (Mainstream, November 22, 1980)

The above judgment is another example of his acceptance of judicial vision to which there is no substitute. According to him death is a temporary phenomenon. In one of the recent book “Centenary Miscellany at Law” (2014) he has stated thus:-

When doctors say you are dead, they mean that the body is dead but spirit lives on and is reborn in appropriate womb. But your spiritual development enables you to realize your Universal Self and then you answer the great question, Who am I ?

In a very recent book, To work is a pleasure, there is an article titled “Death be Not Proud” states thus:-

So long as you are alive your five senses work and that causes pain. One great advantage of death is that the senses cease to function and that there is no pain, once you are dead ? Life exists through the senses but apart from the senses there are other pains of existence like moral and spiritual dimensions of stress and distress. So long as you are alive you are morally sensitive and the suffering of your neighbors makes you share it. This sense of sharing is because you are humane.

It was my dreaming coming true from 2001 onwards when such a great person starts discussing with me. To be idle without doing any work is to be unhappy to him. According to him to be in prison without doing any work is a punishment. He never was idle. When I met him on 29th November, 2014 at the room in the Medical Trust Hospital at about 8.15 a.m. he spoke to me stating that he is tired and told me that he wanted to sleep. That sleep never woke him. He was taken to the Cardiac Care Unit and I saw that he was breathing his last.

In his last book he has written thus:-

After all, I am tired and my limbs are so weak I cannot do my morning walk and my mind like my body refuses to think or write any more. I have written enough number of books, enough number of judgments and other writings that I will be remembered through them long after I am gone.

Sir, you cannot leave us. The people, not only bar and bench, will remember you forever. Your views have miles to reach and will never end. Your teachings will be used today, tomorrow and forever. You are on institution and it will survive as long as the mankind survives.

Good Bye Justice Iyer

(By V.K. Babu Prakash, Judge,

Motor Accidents Claims Tribunal, Thalassery)

Words, words

too many all around.

Like sand crystals,

dewdrops, stars in the sky

words flick around

spreading its blue wings.

I find it hard

to pick few words

suitable to describe him -

and I let down myself

unable to find any.

Silence is the best one

to express one’s

deepest feelings, perhaps.

But, to be sure,

the oldest among us

can recall nothing

to compare with him

and the younger one

among you, however

long you live,

will never see

like him again.

Good Bye Justice Iyer

Animal Rights and Compassion for other Living Beings:
Growing Dimensions of Right-to-life Concept under the Constitution

(By P. Leelakrishnan, Emeritus Fellow, Cochin University of Science and Technology)

THE DEFINITION of environment1 in the Environment (Protection) Act, 1986 looks at man and other living creatures as equal partners in the life on earth. This wider perspective of environment has received a constitutional projection in the recent judgment of the Supreme Court inAnimal Welfare Board of Indiav A. Nagaraja.2

The 42nd constitution amendment came into force on 3rd January 1977. Introducing principles of environment for good government3 and fundamental duties4 to protect and improve the environment, the amendment is a remarkable milestone in the constitutional history of India. Security of all living creatures is undoubtedly part of the duty to protect and improve the natural environment. “Compassion” to living creatures and development of “humanism” are specific Fundamental duties. Do these constitutional innovations in the directive principles and fundamental rights amount to creation and vesting of corresponding rights in animals?

Animal Welfare Boardv. Nagaraja addresses this wider question. Since environment includes all forms of life, disturbance to the basic environment posing threat to any form of life should fall within the scope of Article 21 of the Constitution. “Life” means more than mere survival or existence. It embraces within its fold the right to dignity and fair treatment. This extensive meaning of the concept of life should not be limited to human beings. It should in all fairness be extended to other forms of life. Basing its decision in Nagaraja on such an environmentally informed constitutional interpretation the court said,  “Right to dignity and fair treatment is, therefore, not confined to human beings alone, but to animals as well…. Animals have also a right against the human beings not to be tortured and against infliction of unnecessary pain or suffering.” 5

Reflections on compassion

Compassion to living creatures denotes that cruelty to any living creatures must be curbed. In the past the apex court looked at the concept from different angles. Way back in 1958 years before the 42nd amendment, in Mohd. Hanif Quareshi v. State of Bihar 6 the Supreme Court did not advert to the question of compassion when it took a stand against total prohibition of cow slaughter, saying that prohibition of slaughter took away the livelihood of the butchers. About thirty years after the 42nd amendment, inState of Gujarat v. Mirzapur Moti Kureshi Kessab Jamat 7 the court struck a different note where an animal preservation law was found valid. The majority noted that cattle were entitled to compassion in their old age even when they ceased to be milch or draught and that the bulls beyond the age of 16 are still useful as their excreta, hides and skins could produce biogas.8 The dissenting Judge did not accept this position. He seemed to have applied the proportionality principle and pointed out that the public benefits of the ban are very small in comparison with the denial of occupational rights of the butchers and that augmentation of the alternative energy source of bio-gas from hides and skins becomes unimportant as its use is considerably reduced for LPG gas.9 InAkhil Bharat Goseva Sangh(3) v State of A.P.10 the court took entirely different stance from Mirzapur and Quereshi. The courtconsidered heavy foreign exchange earnings from large slaughter houses as important when it supported slaughter of bovine animals in a massive scale. In Milkmen Colony Vikas Samathi v. State of Rajasthan11 the apex court had a humanistic attitude when it endorsed a direction to remove wandering cattle away from the city as they were found to be roaming in public places including the corridors of the High Court.

Concern of the judiciary

Compassion to animals did not strike to be a grave and solemn theme in the above mentioned cases probably because killing of animals for food without unnecessary pain or suffering is not forbidden under the Prevention of Cruelty to Animals Act, 1960 (PCA Act).12 The concept of compassion drew more intense attention and concern intheNagaraja case13 where the validity of jallikattu in Tamil Naduand bullock-cart races in Maharashtra were under challenge.

Can the practices of sheer torturing of bulls be allowed as sporting events and be justified in view of their historic, cultural and religious background? Started as a sporting event in the past in Tamil Nadu, jallikattu has assumed extremely cruel and inhuman dimensions. Bulls are beaten and driven into a screaming frenziedcrowd who in turn torture and try to overpower them.14 Bullock-cart races in Maharashtra are in no way different.15 A bull usually moves in a relaxed manner but if frightened, it adopts flight or fight responses which are exploited in both races. The court felt that it has a duty under the doctrine of parens patriae to take care of the animal rights.16 

Provisions in the Central Legislation

The P.C.A. Act, a central legislation enacted by Parliament, is conspicuous in embodying certain essential restrictions and prohibitions.17 It imposes on the persons-in-charge of animals the duties to ensure the well-being of the animals as well as to prevent infliction of unnecessary pain and suffering on them. Obviously, this provision recognizes the corresponding rights of the animals to get protection from any unnecessary pain or suffering.Penalty is provided on any person who ‘beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner, permits, any animals to be so treated.’ 18 The expressions ‘or otherwise,’ are used to cover all situations, where the animals are subjected to unnecessary pain or suffering. The acts of torturing bulls in jallikattu and bullock-cart races violate these statutory mandates. There are exceptions such as destruction of stray and dangerous dogs, use of animals for research and experiments and the preparation of animal food without unnecessary pain or suffering. In the court’s opinion, entertainment, exhibition or amusements by torturing animals do not fall under these exempted categories.19 On the other hand, these events are meant not for the well-being of the animal, but for the pleasure and enjoyment of human beings, particularly the organizers and spectators who render the bulls only an instrumental value and forget their intrinsic worth. Thus, sadism and perversity are writ large in the actions of the organizers and the spectators.

Humanism

Article 51A (h) added by the 42nd amendment imposes a fundamental duty on every citizen ‘to develop scientific temper, humanism and the spirit of inquiry and reform’. In Nagaraja, the Supreme Court read ‘humanism’ into P.C.A. Act and said that its provisions endow the animals with the intrinsic values and inherent dignity to live peacefully and cast a duty on the persons in charge to ensure well-being of the animals.20 The Court noted the anthropogenic bias - which forgets that animals also have intrinsic worth and value - hidden in the usual statement that human life is not like animal existence.21 

Conflict between centre-state laws

Bulls are basically draught and pack animals used for farming and other agricultural purposes. They are not anatomically designed as ‘performing animals’ for the purpose of any entertainment to which public are admitted through sale of tickets. Contrary to what was alleged by the appellants, the court noticed inNagaraja that Tamil culture and tradition ‘do not approve of infliction of any pain or suffering on the bulls but on the other hand, consider and worship the bull as the vehicle of Lord Shiva.’22 The court had to resolve the conflict between a state enactment, the Tamil Nadu Regulation of Jallikattu Act, 2009 and the P.C.A. Act, a central legislation. Prevention of cruelty to animals is an entry in the concurrent list in the constitution.23 When a central legislation has occupied the concurrent field the state law on the same subject has to yield to the central law. Differing views of culture and tradition, assuming they exist, should also give way to the central law. A welfare legislation based on eco-centric principles P.C.A. Act recognizes the intrinsic value and worth of animals and aims at preventing the infliction of unnecessary pain or suffering on them24 . Needless to say, that the central legislation should supersede the regional customs and practices inflicting cruelty to other living beings and replace any state law to the contrary.

A Paradigm Shift

In the development of international environmental law, there is a slow but definite shift from the anthropocentric approach to eco-centric perspective.25 The apex court noted that this change is taking place in the legal systems in Europe.26 Of recently our apex court has applied the eco-centric principles in a few landmark cases and recognized that every species has an inherent right to live and shall be protected by law.27 This approach of the court reflecting a deviation from anthropocentricism to eco-centrism proclaims the beginning of an era of juridical acceptance and application of the emerging new environmental philosophy.28 

The Guidelines of World Health Organization of Animal Health (OIE) recognized five freedoms for animals - freedom from hunger, thirst and malnutrition, from fear and distress, from physical and thermal discomfort, from pain, injury and disease and freedom to express normal patterns of behavior. According to Nagaraja, these freedoms are as fundamental to animals as the fundamental rights are to the citizens.29 Though they find a place in P.C.A. Act, these freedoms, by the decision in Nagaraja,stand elevated to the status of fundamental rights of animals. The court’s eco-centric approach that every species has a right to life and security symbolizes another significant addition to the array of rights under Article 21 the Constitution of India. Nagaraja is undoubtedly a guiding star in the ever growing frontiers of protection of environment and in the ever widening horizons of constitutional interpretation.

Foot Note:

1. Section 2(a). Environment  ‘includes water, air and land and the inter-relationship that exists among and between water, air and land, and human beings, other living creatures, plants, micro-organisms and property’.

2. Animal Welfare Board of India v  A. Nagaraja, (2014) 7 SCC 547 p 595; 2014(2) KLT 717 (SC) p.757.  

3. Constitution of India, Article 48A.  “The  State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.“

4. Ibid,  Article 51A  (g). “ it shall be the duty of every citizen of India - ...(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to compassion for living creatures ….(h) to develop the scientific temper, humanism, and the spirit of inquiry and reform”.

5 . Ibid.  (2014) 7 SCC 547 p 596.

6. AIR 1958 SC 731.  

7. AIR 2006 SC 212. 

8.     AIR 2006 SC 212pp  242,243.

9.     Ibid pp 248, 254.

10.   (2006) 4 SCC 162 p 196.

11.   AIR 2007 SC 1046.

12.   Section 11 (3), see n. 18 infra

13 .  Animal Welfare Board of India v  A. Nagaraja, (2014) 7 SCC 547; 2014(2) KLT 717 (SC). The Bombay High Court had upheld the prohibition of all such practices of torture in Maharashtra while the Madras High Court allowed  Jallikattu approving the Tamil Nadu Regulation of Jallikattu Act, 2009. In a special leave petition, the apex court went into the full gamut of the problems. 

14.   Ibid pp.562-578.  A bull ’s horns were tied around of silver or gold coins and the person who fought and got the money was considered to be brave. The practice is different now. Ear cutting, fracture and dislocation of tail bones by deliberate pulling and twisting, poking bulls with knives and sticks, rubbing irritants into the eyes and noses of bulls, packing them so tightly into narrow waiting corridors, forcing them to stand in their own waste are illustrations of cruelty practiced in  jellikattu in order to agitate the animals.

15.   Ibid p 578. In some races, a horse and a bull on the same cart are being held or in some others, a bigger bull is paired with a smaller one.  To make them run fast, bullocks are tortured by whipping, tail twisting, poking with spiked instruments and giving electric shock. Blind folded bullocks are brought through a ghat and let free suddenly after unfolding.  The sudden exposure to the light and the torture made by the people terrify bullocks  to run on the slope. 

16.  Ibid p 581.

17.  Sections  3,11(1) (a) and 11(3).

18.  Ibid.(s).  

19. Animal Welfare Board of India v  A. Nagaraja 2014 (2) KLT 717 (SC) =  (2014) 7 SCC 547 pp. 583,584.

20   Ibid pp. 584,585.

21   Ibid p.585. 

22.  Ibid p. 589.

23.  Entry 17, List III, Constitution of India.

24.  Ibid pp  589, 590.

25.  Ibid pp 590, 597. The court noted that this shift were in three stages - (1) Sovereign nations had unlimited right of to exploit natural resources. Declaration of the Protection of Birds Useful to Agriculture 1875, Convention Designed to Ensure the Protection of Various Species of Wild Animals which are Useful to Man or Inoffensive 1900 and Convention for the Regulation of Whaling  1931. (2) Recognition of International equity – a shift from anthropocentrism. The Whaling Convention 1946 is  ‘to safeguard for future generations the great natural resource represented by the whale stocks’.  The Stockholm Declaration 1972 states that man bears a solemn responsibility to protect and improve the environment for present and future generation. (3) Biodiversity Convention 1992 lays stress on the intrinsic value of biological diversity and of the ecological, genetic, social, economic, educational, cultural, recreational and aesthetic values of biological diversity and its components.  

26.  Ibid p 592. The amendment in 2002 to the German Constitution recognized the dignity of the animals. German animal welfare law provides protection to animals from animals fight and other activities resulting in the pain, suffering and harm for the animals. Laws in UK, Austria, Switzerland, Austria, Slovenia and Norway confer considerable protection so as to balance the animal owners’ fundamental rights to property and the animals ’ interest in freedom from unnecessary suffering or pain, damage and fear.

 27. Ibid p.591.  T.N. Godavarman Thirumulpad v. Union Of India  (2012) 3 SCC 277, T.N. Godavarman Thirumulpad v. Union of India (2012) 4 SCC 362 and  Centre for Environmental Law World Wide Fund - India v. Union of India & Ors. (2013) 8 SCC 234.

28.  See  Satsh C. Shastri, “Environmental Ethics Anthropocentric to Eco-centric Approach: a Paradigm Shift “,  55 Journal of the India Law Institute (2013), 522 p 530 and P. Leelakrishnan, “ Protecting Environment: the Anthropocentric and Eco-centric Approaches”, 2012 (4) KLT Journal,  pp.6-10.

29.     Animal Welfare Board of India  v.  A. Nagaraja (2014 (2) KLT 717 (SC) =  (2014) 7 SCC 547 p 593