Following widespread protests in Tamil Nadu, the state government seems to have decided to amend the Prevention of Cruelty to Animals Act to make way for the conduct of jallikattu, the bull-taming sport banned by the Supreme Court in 2014.

Chief Minister O Panneerselvam said on Friday that the state has drawn a draft of the ordinance that would allow bulls to be used for jallikattu. This ordinance, the contents of which have still not been revealed, is set to be passed by the cabinet on Friday and will be sent to the President of India for approval.

The move came a day after Panneerselvam met Prime Minister Narendra Modi in New Delhi, when he was assured of all support from the Centre to hold jallikattu. But at the same time, Modi did not fail to remind the chief minister that the matter was in court and the options before the Centre to intervene were none. The Supreme Court has reserved judgment in the case that challenged a 2016 notification issued by the Ministry of Environment and Forests that provided an exemption for the bull to be used in jallikattu while retaining it in the list of animals barred from being used for performances. Bulls had been included in this list in 2011.

But on the request of the attorney general on Friday, the court agreed to defer passing the verdict by a week given the tense situation prevailing in Tamil Nadu.

While appreciating the cultural significance of Jallikattu, the Prime Minister observed that the matter is presently sub-judice. — PMO India (@PMOIndia) January 19, 2017

Can an ordinance amending the Prevention of Cruelty Act provide a permanent solution and lift the ban on jallikattu? The important factor to consider here is that the ban imposed by the Supreme Court in 2014 had multiple elements to it and not just the fact that the sport merely violated the Prevention of Cruelty to Animals Act. The ban was based on constitutional provisions with the argument against the sport built on the foundation of fundamental rights and India’s international obligations.

Ordinance route

It is clear from the remarks of the prime minister that ordinance was not a watertight solution to end the ban permanently. If it were, the Centre would have used this weapon long ago and the Bharatiya Janata Party would have earned significant political points in Tamil Nadu for making jallikattu possible. Its reluctance stems from the fear that passing an ordinance when the Supreme Court is seized of the matter would lead to a confrontation with the judiciary. The Centre had a strained relationship with former Chief Justice TS Thakur in matters like appointment of judges. Thakur was openly critical of the Centre on the issue. Therefore, it would certainly not want to escalate the matter with Justice JS Khehar, who took over as chief justice only weeks ago, in particular after the Supreme Court’s recent verdict that changed the law of ordinances in powerful ways, making them face constitutional fire in ways they never have.

For Panneerselvam and the ruling Anna Dravida Munnetra Kazhagam in Tamil Nadu, ending the massive protests currently taking place in the state was a bigger priority than its relationship with the Supreme Court. At the Marina beach in Chennai, thousands of young agitators have been particularly acerbic against Panneerselvam, who has been caricatured as a ruler “snacking on mixture” when the state was burning – a Nero playing the fiddle when Rome burnt. The sport is also a crucial cultural aspect of the powerful Thevar community to which Panneerselvam belongs. Thus, acting on jallikattu is also important to sustain his political base.

The idea about Tamil Nadu passing an ordinance appears to have come from Attorney General Mukhul Rahotgi. The Centre’s role now would be to forward the state ordinance to the president as soon as possible and lob the ball into the Rashtrapathi Bhavan’s court, leaving it for Pranab Mukherjee to take a call. Once the president approves, the governor will promulgate the ordinance.

The Prevention of Cruelty Act is a central law passed by Parliament in 1968. Usually, a central law could be amended only by Parliament which passed it. If the amendment is not through a money bill, it would need approval of both houses of Parliament.

However, in case the subject of the legislation is on the “concurrent list”, it means both the Centre and the state have jurisdiction over it. Schedule VII of the Constitution elaborates on the subjects that are under the union, state and concurrent lists. Prevention of cruelty to animals is the 17th item on the concurrent list.

The state ordinance would amend the PCA Act in such a way that jallikattu could be conducted with strict regulations. Officials in Tamil Nadu said that the draft law contains strict penal provisions carrying harsh punishment in case the bull is subjected to cruelty.

When a state government amends a central law, the procedure is that it should be forwarded to the union home ministry, which would then send it to the president for approval. The president is by no means bound to give his assent immediately and could even send it back to the Centre to seek clarifications.

The ordinance route is clearly a political ploy rather than a sound legal move. It is no coincidence that the ordinance is being passed on a Friday, when the Supreme Court will close for the week. If approved on Saturday, the state hopes to allow the event on Sunday without an immediate judicial intervention. This would satisfy the protestors and end the impasse.

Fundamental rights

What has been clearly missed in this entire debate is how the Supreme Court argued its judgment to ban the sport in 2014. The bench drew heavily on constitutional principles and international jurisprudence.

One of the primary arguments made by Justice Radhakrishnan was that the world as a whole was moving away from “anthropocentric laws” which treated animals as mere tools to further human comfort. The court observed:

“International community should hang their head in shame, for not recognizing their [animals] rights all these ages, a species which served the humanity from the time of Adam and Eve. Of course, there has been a slow but observable shift from the anthropocentric approach to a more nature’s right centric approach in International Environmental Law, Animal Welfare Laws etc...When we look at the rights of animals from the national and international perspective, what emerges is that every species has an inherent right to live and shall be protected by law, subject to the exception provided out of necessity. Animal has also honour and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attacks.”

The judgment pointed to developments across the world, such as in Germany, where animal welfare has been guaranteed in the Constitution through an amendment in 2002.

It did not stop there. The Supreme Court gave an expansive reading to Article 21 of the Indian Constitution, which guarantees citizens the right to life. Article 21 is what ensures that there was no disturbance to the environment which would in turn affect the quality of life. The bench said animals are an integral part of the environment and cruelty to them directly affects the dignified life of a human.

In this respect, the court, based on extensive documentary evidence provided by the Animal Welfare Board of India, concluded that jallikattu, during the conduct of which the bull is forced to do something that is not part of its innate nature, was “inherently cruel”. The evidence provided showed how the animal was tortured just before it leaped out of the “Vaadi Vaasal”, the entrance of the jallikattu arena where hundreds of men stand to jump on the bull and hold its hump. The bulls were fed alcohol, chilli powder was rubbed into their genitals and they were constantly poked with sharp weapons. This forces the bull to “take flight [leap out and run]”, which in nature happens only when it is extremely agitated.

Jallikattu is also “unnecessary suffering”, as against killing an animal for meat which is an essential act.

The court was not ready to accept the argument that jallikattu could be conducted with regulations. The bench observed that regulating cruelty was akin to legitimising it, which was repugnant to constitutional values. This was why it struck down the Tamil Nadu Regulation of Jallikattu Act, 2009. Therefore, how the court deals with an amendment to the PCA Act that seeks to regulate jallikattu could decide the fate of the sport.

K Chandru, former judge of the Madras High Court, said the 2014 verdict went well beyond the Prevention of Cruelty Act to establish why animals should be protected from cruelty. “Once constitutional provisions and international laws are used, a mere amendment to the PCA Act may not hold under judicial scrutiny,” he added.

There is also the question of human lives lost as a result of jallikattu. Justice Radhakrishnan quoted a past judgment of the SC in N Adithan case to drive home the point on human rights:

“Any custom or usage irrespective of even any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament.”

The Supreme Court also refused to accept that jallikattu was Tamil tradition.

“Even the ancient culture and tradition do not support the conduct of Jallikattu or Bullock cart race, in the form in which they are being conducted at present. Welfare and the well-being of the bull is Tamil culture and tradition, they do not approve of infliction of any pain or suffering on the bulls, on the other hand, Tamil tradition and culture are to worship the bull and the bull is always considered as the vehicle of Lord Shiva. Yeru Thazhuvu, in Tamil tradition, is to embrace bulls and not over-powering the bull, to show human bravery. Jallikattu means, silver or gold coins tied to the bulls horns and in olden days those who get at the money to the bulls horns would marry the daughter of the owner. Jallikattu or the bullock cart race, as practised now, has never been the tradition or culture of Tamil Nadu.”

While the state ordinance might provide the AIADMK government a small opening to conduct the sport this year, overcoming the argument of “inherent cruelty” to the bull will take much more.