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 (hereafter PCA Act), a law passed by Parliament. "Prevention of cruelty to animals" being in the Concurrent List, the Tamil Nade 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 Supreme Court 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 Nady 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 09th March, 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 Supreme Court in Animal Welfare Board of India v. 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 acse 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. 51-A dealing with 'fundamental duties'. It is worth recalling that Article. 51-A 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. 51-A was a notable survivor.
The Court pressed into service clauses of Article. 51-A 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 07th January, 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 12th January, 2016, a two-judge bench following Nagaraja's case (2014) stayedthe 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 24th January, 2016, 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 bannedin 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.
Situating the wider jallikattu conundrum: The raging controversy regarding jallikattu, a sport popular in rural Tamil Nadu but now gradually making inroads into urban spaces, is rooted in certain enormous conceptual confusions regarding two modern institutions, state and nation. States and nations have existed for a long time, but they came to be linked only in the year 1648 through the Treaty of Westphalia giving birth to the institution of the nation-state. The yoking together of the two institutions that pull in opposite directions gave birth to perennial conflicts. The nation-state wants to count and label citizens, for the fewer the number of socio-cultural categories the easier it is to govern them. That is, the state is a culture-destroying institution and a uniform legal system is an important device that it invokes in order to create a homogenous citizenship. In cotrast, the nation is incessantly in search of its cultrual roots; it is a culture-affirming institution. Thus viewed, conflicts between law and culture are a logical corollary in a polity in which cultured diversity is aplenty.
Even in Western Europe where the idea of the nation-state surfaced, the co-terminality between political (state) and cultural (national) boundaries were assumed but rarely accomplished. In the case of the Indian Republic, the co-terminality between state and nation is not assumed but the divergence between the two is explicitly acknowledged. The first sentence of the Indian Constitution reads" "India, that is Bharat, is a union of states".
But unwittingly or deliberately, a reversion has creapt in. The states referred to are linguistic states (although they were constituted after the promulgation of the Constitution) and are 'nations' in the European sense of the term. These nations of India with their specific cultures co-exist under one political roof - the sovereign state of India.
Sovereignty is the distinctive characteristic of the state (here, the Indian Republic) but the states referred to in the first sentence of the Constitution are linguistic entities, that is, 'nations'. Thus understood, Tamil Nadu is a 'nation' with its own distinct culture as other linguistic states. That is, the Indian Republic is a state and the provincial states of India are nations. But in our everyday conversations as well as scholarly writings we refer to India as a nation and the nations of India as states; confusion confounded. To avoid this confusion we must clearly distinguish between state-ways (legal system) and folk-ways (cultural systems).
Given India's socio-cultural complexity there is need for three legal systems: the State Legal System (SLS), Religious Legal Systems (RLS) and the Folk Legal Systems (FLS), each having its own specific spheres of concerns. The SLS is applicable to all citizens of the state with regard to criminal behaviour and welfare entitlements. In contrast, RLS is applicable to all believers spatially spread across the globe. Thus canonical rituals and beliefs are common to all fellow believers irrespective of their locations in different sovereign states. That is, a Uniform Civil Code is inapplicable to a multi-religious polity, although the state can and should intervene when and if any religious community indulges and practices violence within and across faith communities. Generally speaking, FLS is deeply embedded in local cultures and customs. In the case of India, all the linguistic groups have their specific cultural practices, be it the Kali pooja of Bengalis, the Ganesh pooja of Maharashtrians or the Pongal festival of Tamils. And jallikattu is part and parcel of Pongal.
The objections that are raised against Jallikattu relate to the violence and cruelty it inflicts on the bulls and men involved. Indeed, preventing violence is a legitimate concern of the appropriate level of the state and in the present case it is the state of Tamil Nadu. This understanding goes well with the much-heralded concept of cooperative federalism.
On the other hand, if indeed violence generated in the course of jallikattu is the real concern of the Supreme Court, it should intervene to stop slaughtering of all living creatures for human consumption. But the concern of the court cannot stop even there because not only animals but plants too have life. And if humans are prevented from committing violence against and plants, human life itself will come to a standstill and ebentually disappear! Are we prepared for that?
Situating the wider jallikattu conundrum: The raging controversy regarding jallikattu, a sport popular in rural Tamil Nadu but now gradually making inroads into urban spaces, is rooted in certain enormous conceptual confusions regarding two modern institutions, state and nation. States and nations have existed for a long time, but they came to be linked only in the year 1648 through the Treaty of Westphalia giving birth to the institution of the nation-state. The yoking together of the two institutions that pull in opposite directions gave birth to perennial conflicts. The nation-state wants to count and label citizens, for the fewer the number of socio-cultural categories the easier it is to govern them. That is, the state is a culture-destroying institution and a uniform legal system is an important device that it invokes in order to create a homogenous citizenship. In cotrast, the nation is incessantly in search of its cultrual roots; it is a culture-affirming institution. Thus viewed, conflicts between law and culture are a logical corollary in a polity in which cultured diversity is aplenty.
Even in Western Europe where the idea of the nation-state surfaced, the co-terminality between political (state) and cultural (national) boundaries were assumed but rarely accomplished. In the case of the Indian Republic, the co-terminality between state and nation is not assumed but the divergence between the two is explicitly acknowledged. The first sentence of the Indian Constitution reads" "India, that is Bharat, is a union of states".
But unwittingly or deliberately, a reversion has creapt in. The states referred to are linguistic states (although they were constituted after the promulgation of the Constitution) and are 'nations' in the European sense of the term. These nations of India with their specific cultures co-exist under one political roof - the sovereign state of India.
Sovereignty is the distinctive characteristic of the state (here, the Indian Republic) but the states referred to in the first sentence of the Constitution are linguistic entities, that is, 'nations'. Thus understood, Tamil Nadu is a 'nation' with its own distinct culture as other linguistic states. That is, the Indian Republic is a state and the provincial states of India are nations. But in our everyday conversations as well as scholarly writings we refer to India as a nation and the nations of India as states; confusion confounded. To avoid this confusion we must clearly distinguish between state-ways (legal system) and folk-ways (cultural systems).
Given India's socio-cultural complexity there is need for three legal systems: the State Legal System (SLS), Religious Legal Systems (RLS) and the Folk Legal Systems (FLS), each having its own specific spheres of concerns. The SLS is applicable to all citizens of the state with regard to criminal behaviour and welfare entitlements. In contrast, RLS is applicable to all believers spatially spread across the globe. Thus canonical rituals and beliefs are common to all fellow believers irrespective of their locations in different sovereign states. That is, a Uniform Civil Code is inapplicable to a multi-religious polity, although the state can and should intervene when and if any religious community indulges and practices violence within and across faith communities. Generally speaking, FLS is deeply embedded in local cultures and customs. In the case of India, all the linguistic groups have their specific cultural practices, be it the Kali pooja of Bengalis, the Ganesh pooja of Maharashtrians or the Pongal festival of Tamils. And jallikattu is part and parcel of Pongal.
The objections that are raised against Jallikattu relate to the violence and cruelty it inflicts on the bulls and men involved. Indeed, preventing violence is a legitimate concern of the appropriate level of the state and in the present case it is the state of Tamil Nadu. This understanding goes well with the much-heralded concept of cooperative federalism.
On the other hand, if indeed violence generated in the course of jallikattu is the real concern of the Supreme Court, it should intervene to stop slaughtering of all living creatures for human consumption. But the concern of the court cannot stop even there because not only animals but plants too have life. And if humans are prevented from committing violence against and plants, human life itself will come to a standstill and ebentually disappear! Are we prepared for that?
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