An international treaty ratified by India in 2005 may hold the key.

Does the solution to the jallikattu legal tangle lie with UNESCO PTI
Voices Jallikattu Friday, January 20, 2017 - 16:05

The jallikattu protests are currently making waves across Tamil Nadu, the reverbs are being felt elsewhere in India too. The main demand of the protestors is to amend the Prevention of Cruelty to Animals Act (PCA Act) and bring back the bull taming sport. But even after four days there continues to be a stalemate to the entire issue. The Centre on Thursday washed its hands off the issue, with the Prime Minister telling the Tamil Nadu Chief Minister that the matter is sub-judice.

The PCA Act is the biggest hinderance to the conduct of jallikattu since the sport is considered to a blatant violation of the standards of protection under the Act.  The Attorney General of India has passed the buck back to the State government, to amend the Act or pass a fresh Act to bring back the sport but any amendments made by the State or Centre may not prove to be effective in reviving the practice. Prevention of cruelty to animals falls under the concurrent list and hence both the State and Centre can legislate on the issue.

The Supreme Court’s 2014 judgement states that jallikattu is inherently cruel and it is of no relevance whether the Bull is on the list of performing animals or not nor will any fresh act stand the litmus test of the Supreme Court. So where does the solution lie to the Mexican stand-off between the Centre-State and the Supreme Court?

One opinion is that it lies beyond our borders, in the realm of the United Nations and International Law.

UNESCO and Public International Law

A solution to the current jallikattu stalemate in my opinion is “Public International Law and UNESCO”, both of which can work in tandem to protect jallikattu as a cultural right of the people.  For the uninitiated Public International Law and International obligations are broader fields of protection made in the form of nation-based practice or through special treaties, laws and agreements between nations. These obligations bind nations beyond borders or their highest domestic courts of law. That is the reason one nation invading another without just cause or reason is considered a violation of International Law. However Public International Law doesn’t just apply between nations. It also applies between sovereign nations and its citizens, human rights conventions and laws, such as Universal Declaration on Human Rights are binding upon signatory sovereign nations (including India) to protect their citizens and their rights. It is in this way other rights of citizens can be protected, including their cultural and heritage based practices (such as jallikattu) and their right to continue with the same.

UNESCO has been popular on social media circles for giving out fictitious awards to both our National Anthem and our Prime Minister (both not true). UNESCO, a UN body, protected by International Law, has traditionally been associated with culture and protection of heritage based structures, monuments and sites, however, a 2003 treaty broadened the scope of protection. This treaty known as  â€śConvention for the Safeguarding of the Intangible Cultural Heritage” aims to protect the traditional practices of various communities which UNESCO considers important. India ratified the convention in 2005 and since then over 10 practices originating in India, including Sanskrit Theatre and Yoga have already found their place. This intangible heritage protection system aims to protect those important practices that communities within nations consider their cultural heritage. It is in this list that jallikattu or Eru thazhuvuthal can find a place.

Under this Convention animal-based practices of various nations such as Chovqan (a polo style event in Azerbaijan), Sericulture in China, Argungu fishing festival of Nigeria, Cherreira (horse riding, rope jumping and cattle handling) of Mexico, falcon hunting or falconry in over 10 nations, have been deemed to be protected to "help demonstrate the diversity of [cultural] heritage and raise awareness about its importance".

So how do supporters get jallikattu on the list? That must be done through recommendations made by the signatories to the treaty or in this case the Indian government to the UNESCO core committee in Paris during an annual conference.  For its current status jallikattu must find its place in the Intangible Cultural heritage which needs urgent safeguarding (a special list under the UNESCO act), becoming the first such practice on the special list from India.

How it can work in India

While this may seem like a long shot it is perhaps the most concrete - the main reason being that Public International Law and International Obligations shall bind the Union to preserve the sport and continue its practice in Tamil Nadu. The process is, however, two-fold since international obligations don’t always become part of municipal law in India directly unlike many western nations.  As Justice Krishna Iyer had famously said in the Jolly Verghese v. Bank of Cochin (1980 (2) SCC 360) for an international convention or law to become binding in India it requires a special act of Parliament or the legislature. But if included in the UNESCO list law =makers in the centre or Tamil Nadu can pass a law protecting the “Sport” following obligations under International Law.

The Supreme Court at that stage cannot interfere or strike down the law since Art. 51(c) of the Constitution obligates the States to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. This principle was upheld in various cases such as Visaka vs State or Rajasthan and the DK Basu vs State of West Bengal; in the Vellore Citizens forum case the court held that any international obligation shall automatically be binding under Indian municipal law as long as the obligations don’t go against principles enshrined within the Indian Constitution.

This would be the best solution possible if the Supreme Court once again decides to not allow jallikattu. It would involve the State, however, convincing the Centre to recommend the inclusion of the sport into the UNESCO List. This however, needs political dialogue and the Supreme Court cannot stop the Centre from any recommendations it makes to UNESCO since it is a purely a policy decision concerning international relations.

Even if the critics are right and the stalemate cannot be resolved unless the Supreme Court decides to allow any new amendments to the present structure of the Prevention of Cruelty to Animals Act, there is still a political solution which can go beyond borders and the Supreme Court. All it needs is strong cooperation and dialogue on the part of the State and the Centre. The end solution is to turn the Centre's tokenism into a binding legal diplomatic obligation. 

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