Can the Tamil Nadu government pass an Ordinance to allow Jallikattu to go on?
Can the Tamil Nadu government pass an Ordinance to allow Jallikattu to go on?
On January 12, the Supreme Court shut down a move by the Bharatiya Janata Party (BJP) government at the Centre to override its own 2014 verdict and issuing a notification allowing Jallikattu (the traditional Tamil bull-taming sport) to go on. The BJP had issued a notification on January 7, citing culture and tradition as a reason to allow Jallikattu and cart racing in Maharashtra and Haryana, while continuing to keep the bull on the list of animals prohibited for use as performing animals. Five days later, the Supreme Court imposed an interim stay on Jallikattu, asking for responses from all parties concerned.
A red-faced BJP has now thrown the ball back into the Tamil Nadu government’s court. “Since the Supreme Court stay is interim in nature, there is no possibility of a new Ordinance on Jallikattu,” said Nirmal Seetharaman, Minister of State for Commerce and Industry. “When the state government brings such an Ordinance, we will support it,” she added.
Seetharaman’s response is to Tamil Nadu Chief Minister Jayalalithaa’s letter to the Prime Minister on January 12 – “With the Pongal festivities commencing from 14.1.2016, the public in the rural areas of Tamil Nadu have made all arrangements and preparations and are eagerly looking forward to the conduct of Jallikattu as part of the traditional festivities ingrained in the hoary cultural heritage of Tamil Nadu,” she wrote in her letter. “It is very important that the sentiments of the people of Tamil Nadu, who have a deep attachment to the conduct of the traditional event of Jallikattu, are respected.
Hence, considering the urgency of the issue, I strongly reiterate my earlier request to the Government of India to promulgate an Ordinance forthwith to enable the conduct of Jallikattu. On behalf of the people of Tamil Nadu I urge you to take immediate action in this regard,” her letter stated. All other parties were quick to put the onus on the Centre, asking them to bring in appropriate legislation.
But can the State government actually bring in an Ordinance?
To understand the issue, one needs to go a little deeper into the legal aspects. Take the 2014 Supreme Court verdict which banned Jallikattu (Link to judgement: http://supremecourtofindia.nic.in/outtoday/sc1168607.pdf). The Supreme Court has taken up in detail, the various arguments of culture and tradition and relied on three sections of the Prevention of Cruelty to Animals Act 1960, to pronounce its verdict. The key points for banning Jallikattu are that cruelty in inherent in the sport and that culture and tradition cannot mean that we can condone cruelty to animals.
The three sections under the Prevention of Cruelty Act 1960 (Link to PCA Act:http://www.envfor.nic.in/legis/awbi/awbi01.pdf) which have been cited by the Supreme Court are as follows:
1) Section 3 of PCA Act: “Duties of persons having charge of animals : It shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering.”
2) Section 11 of PCA Act: “Treating animals cruelly : (1) If any person (a) 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 animal to be so treated…”
3) Section 22 of PCA Act: “Restriction on exhibition and training of performing animals : No person shall exhibit or train (i) any performing animal unless he is registered in accordance with the provisions of this Chapter; (ii) as a performing animal, any animal which the Central Government may, by notification in the official gazette, specify as an animal which shall not be exhibited or trained as a performing animal.”
Legal experts say that the January 7 notification of the Ministry of Environment and Forests (Link to notification: http://egazette.nic.in/WriteReadData/2016/167482.pdf) tackled only Section 22 of the PCA Act, but not the other two key Sections which spoke about cruelty to the animal. “Of the three sections cited by the Supreme Court, Sections 3 and 11 deal with general cruelty to the bull,” said KM Vijayan, senior lawyer at the Madras High Court and a constitutional expert. “Neither the Centre nor the State has room to manouevre. They have to repeal the whole Act to allow Jallikattu,” he said.
Since the subject is under the Concurrent List, meaning both the Centre and the State can legislate on it, Vijayan feels the legalese becomes much more complex. “The difficulty in this case is that the subject is under the Concurrent List,” said Vijayan. “Due to this the State government has to get prior instructions from the President to pass an Ordinance and after the Ordinance is passed, the President has to give his assent. It will not go to the Governor for assent in this case, because this is on the Concurrent list. Neither of these two things are possible,” he said.
Former Solicitor General of India Mohan Parasaran rubbished Nirmala Seetharaman’s claims of the State being able to pass an Ordinance while the Centre cannot. “It is on the Concurrent List but even if the State government does promulgate an Ordinance, it still needs to get Presidential assent,” explained Parasaran. “That is going to take time. And if Nirmala Seetharaman says it is sub-judice and therefore Centre cannot pass an Ordinance, how can the President sign a state Ordinance on the same subject when it is still sub-judice?” he questioned. Another issue is that even an Ordinance can be struck down by the courts, leaving the government embarrassed.
Senior Supreme Court lawyers in Delhi though feel that it is still possible for the State government to promulgate an Ordinance, although it would depend on what the wording is. “There is a possibility that they can say that Jallikattu alone can be held and that it should adhere to very stringent rules to ensure no cruelty to the animal,” said a senior lawyer in Delhi who did not wish to be quoted. “I do not wish to speculate until any such Ordinance actually comes,” he added.
The BJP though is stuck in a hole as far as Tamil Nadu politics is concerned. “We were hoping to get a good name by bringing in that notification,” said a senior BJP leader on condition of anonymity. “We knew it would not stand up in court but we had to do something because there was so much demand from the people. Now they are saying we have made matters worse,” he rued.
Sources in Delhi say that an enormous amount of lobbying went on behind the scenes in the power corridors to ensure that the January 7 Jallikattu notification could be issued without a hitch. Women and Child Empowerment Minister Maneka Gandhi, founder of the People for Ethical Treatment of Animals (PETA) and a dedicated animal rights campaigner of decades, was the first to be reigned in, according to a source. “She was told to remain silent,” said the source. “When the notification came, Maneka was furious. She is the person who called up the petitioners and asked them to file the case challenging the notification in Supreme Court,” she said.
Pressure too was put on the officials at the Animal Welfare Board of India to ensure that they did not challenge the notification in the Supreme Court. When the Board did not bow down to pressure, an Under Secretary at the Ministry of Environment and Forests asked the Chairman General Kharb and the Vice Chairman Chinny Krishna to resign from their posts, according to informed sources.
As Pongal nears, protests are on in Madurai and Alanganallur, demanding that Jallikattu be held. It is now clear that the Centre has thrown up its hands and refused to antagonise the judiciary any further. The BJP has firmly lobbed the political ball back in the ruling All India Anna Dravida Munnetra Kazhagam’s (AIADMK) court. In an election year, will the State government dare to take on the judiciary in order to appease the electorate? Only Chief Minister Jayalalithaa has the answer to that question.
- Sandhya Ravishankar, (@sandhyaravishan)