Jallikattu returns with an expiry date?

The people of Tamil Nadu deserve praise over the way in which they protested against the ban on Jallikattu. It was not mass hysteria, as dubbed by a few. Going by the size and spectrum of participation, from Viswanathan Anand, the chess champion, to music maestro A.R. Rahman and Rajinikanth, it was truly a mass movement irrespective of caste, religion or political affiliations. The people finally succeeded in persuading the Centre to urge the President to give his assent to an ordinance — which takes years in some cases, but was achieved within days here.

The ordinance reportedly amended several clauses of the Prevention of Cruelty to Animals Act 1960, a law passed by Parliament. “Prevention of cruelty to animals” being in the Concurrent List, the Tamil Nadu legislature can pass a law amending the Central law — such amendments that require presidential assent will apply only to the limits of Tamil Nadu state. Therefore, the governor can promulgate an ordinance on the same subject that will be valid for a limited period. The Tamil Nadu government would have taken care to ensure the ordinance is within the legally permissible limits, as it should not in any way overrule the law declared by the Supreme Court on Jallikattu. The ordinance reportedly carved out exceptions to provisions of the PCA Act interpreted by the SC earlier, making it clear Jallikattu done in a humane way would not amount to cruelty.

Jallikattu was practised in the area that forms the state of Tamil Nadu for centuries — not the whole of the erstwhile Madras Presidency, that included the present state of Andhra Pradesh, Malabar of Kerala and South Canara district in Karnataka; so much so there it has acquired the status of a religious practice. The PCA Act was enacted in 1960 to replace an 1890 law enacted by British legislators. However, the new law also remained dormant many years without affecting Jallikattu.

The Tamil Nadu Assembly passed the Tamil Nadu Regulation of Jallikattu Act 2009, that set conditions under which Jallikattu could be held, possibly to pre-empt questioning by animal rights activists. The validity of this law was challenged before the Madras high court, which on March 9, 2007 rejected the writ petition, upholding the practice of Jallikattu, subject to the conditions laid down in the Tamil Nadu Act.

In July 2011, the Centre published a notification under Section 22 PCA Act, where bulls were notified as one among “performing animals” along with bears, monkeys, tigers, panthers and lions. Bulls thus couldn’t be exhibited or trained except as prescribed. Once an animal is deemed a performing animal, the statute comes into play and it makes it virtually impossible to hold Jallikattu, which was essentially a rural sport.

The Centre’s 2011 notification and the Madras high court ruling came up for consideration in the Supreme Court in Animal Welfare Board of India vs A. Nagaraja in 2014. A two-judge bench took up the “issue of seminal importance (on) the rights of animals under our Constitution”.

It may be noted that Article 145(3) mandates that the minimum number of judges on the bench to decide any case involving a substantial question of law on the interpretation of the Constitution shall be five.

Despite this, the two-judge bench in Nagaraja’s case took upon itself to decide the seminal question and also to interpret Article 51A dealing with “fundamental duties”.

It is worth recalling that Article 51A was added as a cosmetic item by the notorious Constitution (42nd Amendment) Act passed during the 1975-77 Emergency that made obnoxious distortions to the Constitution, almost all of which were reversed by the 44th Amendment Act soon after the Emergency ended. Article 51A was a notable survivor.

The court pressed in to service clauses of Article 51A that recommends “compassion for living creatures” and “humanism” in support of the view that our Constitution guarantees right to life with dignity to all species of living beings. There is no precedent to support this proposition — precedents say Article 51-A is not enforceable. Consequently, Jallikattu was banned. The court also declared the 2009 Tamil Nadu law allowing Jallikattu as repugnant to the PCA Act, and hence bad. A review petition against this decision was also rejected in November 2016.

On January 7, 2016, the Centre passed an order under the PCA Act permitting Jallikattu subject to certain conditions, the validity of which was also challenged, and on January 12, 2016 a two-judge bench following Nagaraja’s case (2014) stayed the operation of the government order. Jallikattu therefore couldn’t be held. While a decision on the validity of the 2016 government order was still pending, the Centre withdrew the order on January 24, thus aborting the issue.

The popular agitation in Tamil Nadu, which was peaceful, would have turned ugly if allowed to continue for long. The state government therefore decided on the ordinance route, obviously with the Centre’s concurrence.

It is often asked whether it is lawful to promulgate an ordinance on a subject that is pending before the courts. The answer is yes. The exercise of a legislative power, under which an ordinance is promulgated, can’t be pre-empted over the “sub judice” factor. Since the parameters of passing a law on something on which the court had pronounced have all been settled, one presumes enough care was taken in drafting a non-offensive but effective ordinance.

The example of banning Sati is often cited in the context of the Jallikattu ban. Sati was banned in 1861 by royal edict, not by a court interpreting a law. The order by the Crown (in British-ruled India) was widely welcomed as Sati was regarded as repulsive in many quarters. If at any time Jallikattu is seen as loathsome by society, the legislature will have to act.

An Act has been passed by the Tamil Nadu Assembly to replace the ordinance — the needed presidential assent will follow. The validity of this is certain to be questioned, and that may be the occasion for a competent bench of five or more judges to decide the “seminal issues” involved.

In any case, the agitators who threatened to remain on Chennai’s Marina Beach till a “permanent solution” is found had better rush back homes with their heads high, before the politicians on the prowl hijack the movement.