There is a widely prevalent canard that jallikattu has been banned by the Supreme Court again last week. Like many canards, this too is largely untrue. Jallikattu has in effect been prohibited by a combined reading of the Prevention of Cruelty to Animals Act, 1960 (PCA) and a notification issued by the Ministry of Environment and Forests of the Government of India in 2011 preventing bulls from performing as animals. Though the practice continued by virtue of a state legislation that regulated it, the Supreme Court in 2014 held the law unconstitutional. As a result the effect of the notification revived and jallikattu was prohibited.
Last week, in a poorly conceptualised measure to undo the effects of the judgment, the Central Government carved out an exception for certain traditional practices including jallikattu. However it failed to address the core legal issue— existing restrictions on such practices are contained in the PCA. Since the PCA was not amended, it thus came as no surprise that this notification was stayed by the Supreme Court and the ban continued.
The political brouhaha surrounding jallikattu has meant that two key questions that lie at the heart of the dispute remain unanswered— First, what is the scope of animal rights under the Constitution and the PCA? Second, to what extent should an animal protection law create an exception for traditional practices? If the political noise surrounding the issue were proportionate to the precision in law-making, the Parliament and Tamil Nadu State Legislature could have resolved both questions. However their ill-considered moves have not only meant that jallikattu remains banned but also that a question of local sentiment is converted into an abstruse question of constitutional law.
Animal Rights in Law
The 2014 judgment of the Supreme Court asserts that animals as sentient beings have a fundamental right to life under Article 21 of the Constitution. Further, the Court reads in five freedoms for animals from the Universal Declaration of Animal Welfare (UDAW), a declaration currently not adopted by the United Nations and with no legally binding effect.
Whether animals have rights or not, and if so how they should be conceptualised in law is a deep philosophical question that can scarcely be dealt with in such an axiomatic manner as the Court has done. Even without entering this philosophical debate, two inferences about the Court’s treatment of animal rights in the Constitution are apparent: first, it was illegitimate for the Court to read in such rights into the Constitution from a text such as the UDAW that is essentially an advocacy document without any legal weight. Second, and in any event, the Court misapplied its understanding of animal rights in order to uphold the prohibition on jallikattu. Even if it is assumed for argument that animals have a right to life under Article 21, by the same token animals have a right to personal liberty, also contained in Article 21. If that were so, establishing zoos as well as domesticating animals of all kinds, would be equally unconstitutional, presumably violating personal liberty of animals. While this may appear absurd, it is an entirely logical consequence of the Court wrongly treating the right to life for animals under Article 21 as creating a positive obligation on the state to protect, rather than merely an obligation to respect, animal life. If a right to life for animals under Article 21 is pressed into service to require the state to protect bulls used in jallikattu from any inhuman treatment, it should equally be used to protect goats, lamb and chicken from slaughter. There cannot be one constitutional right for bulls and another for animals commonly eaten as meat.
Insofar as animal rights under the PCA are concerned, the Court read criminal prohibitions on subjecting animals to unnecessary pain or suffering as vesting a right in animals not to be so subjected. This is a curious legal formulation. As an analogy, there is a criminal prohibition against murder in India— to say on this basis that there is a general right belonging to every person to not be murdered would be odd. The provisions of the PCA criminalise particular actions causing unnecessary pain and suffering to animals, or at the extreme, vests the power to prohibit an exhibition of performing animals for the said local area in a local Magistrate. Given this, the Supreme Court, while erroneous in its reasoning, could not, on the basis of such reasoning alone, have validly prohibited jallikattu. Successive governments have been complicit in not making law to match their actions, thereby allowing the Supreme Court the latitude to do so.
No exception for tradition
The legal battle over jallikattu also masks a deeper fault-line in Indian democracy and law-making, that of the contested intersection of the secular and the traditional. From independence, the Government of India and the judiciary have had an uneasy relationship with traditional and religious practices on the one hand and general law enforcement on the other. Personal laws were insulated from constitutional challenge by the Bombay High Court, the rights of the Dongria Kondh over their land in Niyamgiri Hills were first brushed aside and then recognised by the Government of India and the rights of Muslim women to maintenance under the Criminal Procedure Code was recognised by the Supreme Court and subsequently reversed by the Government of India. The PCA too demonstrates this continuing history of ambivalence. Certain cruel but common practices— dehorning of cattle, castration of any animal, culling of dogs— are expressly permitted. At the same time there is a carte blanche exemption for any killing of an animal ‘required by the religion of a community’. However, no traditional practice, no matter how non-barbaric it may be considered according to social mores, is exempted.
This formulation represents a curious cognitive dissonance on the part of a majority of elected representatives. On the one hand, several political leaders have emphasised the importance of jallikattu to local tradition and customs during the harvest season. On the other, they have failed to protect such tradition in law, as is their prerogative. As a result not only have they given the courts free rein over a question that can be settled by careful legislation exempting specific traditional practices, but also allowed the interface of animal rights vis-à-vis traditional practices to be hijacked by abstract policy documents and selective data gathering. Put simply, if jallikattu is not considered an inhuman practice by the people participating in it as well as the more disinterested audience observing it, law-makers must say so.
Next Steps
It appears that a law of this nature may be in the offing. If news reports are to be believed, both the Tamil Nadu Chief Minister J Jayalalithaa and the former Chief Minister, M Karunanidhi, have urged the Prime Minister to issue an ordinance to restore the practice of jallikattu. Passing a national ordinance for jallikattu would make a mockery of the ordinance-making power under Article 123 of the Constitution—it is simply not a matter that demands urgent action in the interest of the entire country.
A far simpler option exists— the State Legislature of Tamil Nadu, with the assent of the President, should pass a law declaring certain key sections of the PCA inapplicable to the State of Tamil Nadu. A trifecta of purposes will be served by this action— first, it will preserve the constitutional sanctity of the ordinance-making power of the Union Government, which in the last decade has become a plaything of the majority; second, a precedent is set by which the PCA does not trump traditional practices as a matter of principle but allows a nuanced, case-by-case determination of any conflict, at least in Tamil Nadu; third, the federal democratic features of the Constitution are bolstered with a decision on a local matter being taken by a proximate and representative local institution, instead of a remote one, or worse still, an unelected and unaccountable one. The jallikattu debate is not merely about animal welfare, but also about institutional division of powers and responsibilities. It is time for local leaders in Tamil Nadu to walk their talk.
[Arghya Sengupta is the Research Director of Vidhi Centre for Legal Policy, a New Delhi based legal think-tank. The author is grateful to Nipasha Mahanta for research assistance.]
