[CA/Pol] Jallikattu Ordinance

Why was an ordinance promulgated by the Tamil Nadu government to facilitate the conduct of jallikattu in Tamil Nadu?

Jallikattu was under a judicial ban in Tamil Nadu following the Supreme Court’s verdict in May 2014. An amendment to the relevant law, the Prevention of Cruelty to Animals Act, 1960, was needed to remove the basis on which the judgment was passed. As the Assembly was not in session and a volatile atmosphere prevailed in the State because of the strident demand for legal protection to the conduct of jallikattu, the State government promulgated an ordinance.

Why did the Union government not amend the Act for the same purpose?

The Union government is currently defending a January 2016 notification it had issued to enable the conduct of jallikattu, subject to some regulations, despite bulls being barred from use as performing animals under the PCA. The Supreme Court has reserved its judgment on the validity of the notification. As the matter was sub judice, the Centre did not want to promulgate an ordinance for the same purpose.

What is the legal status of the ordinance?

The ordinance is a ‘State amendment’ to the Central Act. This means that in its application to Tamil Nadu, some provisions will be different from what they are for the rest of the country. PCA falls under Entry 17 (Prevention of Cruelty to Animals) in the Concurrent List of the Constitution. This means both the Centre and the States have concurrent power to enact laws on the subject. Subject to some restrictions and a prescribed procedure, State governments may amend central laws or have their own laws on the same subject in which the Union government has its own law. This may be done by the Legislative Assembly in its usual course or it may be promulgated as an ordinance if circumstances warrant such recourse.

What was the procedure adopted by the Tamil Nadu government to bring this ordinance?

This ordinance to amend the PCA was brought after prior ‘instructions’ from the President under Article 213 of the Constitution. The draft of the ordinance was sent to the Union government, which examined it and gave its consent on behalf of the President to its promulgation by the Governor.

Why is the President’s prior approval necessary?

This is necessary because the Constitution says that where there is ‘repugnancy’ or ‘conflict’ between a Central law and a State law, the provisions of the Central law will prevail. However, if the State law obtains the President’s assent, it will prevail over the Central law.

What are the key aspects of the ordinance?

The ordinance defines jallikattu, and amends some sections to the effect that those provisions do not apply to the conduct of jallikattu. Its overall purpose in protecting jallikattu from legal challenge is to promote and follow tradition and culture, and to ensure survival and continuance of native breeds of bulls. In particular,

a) It defines ‘jallikattu’ as an event involving bulls conducted with a view to following tradition and culture between January and May every year in Tamil Nadu, and which includes ‘manju virattu’, ‘vadamadu’ and ‘eruthu vidum vizha’.

b) It amends Section 3 of PCA so that notwithstanding its provisions, jallikattu may be held subject to rules and regulations.

c) It amends Section 11 to add ‘the conduct of jallikattu’ as another exception to the list of actions that do not amount to cruelty.

d) It amends Section 22, which relates to restrictions on some animals being used for performances, to make this clause inapplicable to jallikattu.

e) It adds jallikattu as another item in a list of ‘exemptions’ from the rule against using some animals as performing animals. The original list contained use of animals by the police and military after training them and for use for scientific and educational purposes.

f) It adds Section 28A to say nothing in the Act would apply to jallikattu.

How does the ordinance seek to undo the effect of the Supreme Court judgment?

The ordinance seeks to address the specific grounds on which the Supreme Court held jallikattu illegal. In particular, the court had held jallikattu to be violative of Sections 3, 11 and 22 of the PCA. So, the new law amends or adds to the relevant sections. In addition, it seeks to overcome the objection that the State law is not in conformity with the relevant central law. An earlier Act, , the Tamil Nadu Jallikattu Regulation Act, 2009 was struck down by the Supreme Court on this ground. The present ordinance seeks to eliminate the elements of conflict with the Centre’s prior permission.

Is the ordinance enough to safeguard jallikattu events from a future ban?

In the event of a legal challenge, this new law is also subject to judicial review. In particular, it may be questioned on the ground a) that jallikattu is inherently cruel and cannot be given an exemption from the PCA b) that it violates animal rights and dignity and c) it is contrary to the Fundamental Duties enjoined by the Constitution and fundamental freedoms that animals are entitled to enjoy under international principles laid down by the World Health Organisation for Animals.

Is the ordinance a permanent solution or a temporary fix?

There is a wrong impression that the ordinance is not a permanent solution. Any ordinance comes into effect immediately. It has to be laid before the legislature within six weeks of the legislature being convened. As the Tamil Nadu Assembly passed the Bill to replace the Ordinance on Jan 23, 2017, the question of its longevity is irrelevant. Unless stayed, suspended or set aside by a court of law, this law will prevail in Tamil Nadu.