Tamil Nadu Chief Minister O Paneerselvam announced early Friday morning that the state will promulgate an ordinance on jallikattu. The draft of this ordinance has been sent to the Home Ministry for consultation before being sent to the President for his assent, but will such an ordinance be legally valid?
Under Article 213 of the Constitution of India, a state government is allowed to promulgate an ordinance when the Legislative Assembly is not in session, if the Governor of the state is satisfied of the need for such an ordinance.
Article 213 (1): If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.
The ordinance will have to be approved by the state legislature within 6 months of being passed.
But here’s the glitch: According to Article 251, in case of a concurrent list subject, a law passed by the Parliament will automatically prevail over a law made by the state government.
In simple terms, a central law takes precedence over a state law, in case it's on the same subject. (In this case, the central law is the Prevention of Cruelty against Animals Act, 1960.)
This is exactly what happened when the Tamil Nadu government under M Karunanidhi passed the Tamil Nadu Regulation of Jallikattu Act in 2009. While the law provided for the conduct of jallikattu in the state, it was automatically weaker than PCA.
The provisions of the 2009 State law were struck down by the Supreme Court in 2014, as per the provisions of Article 254(1) of the Constitution, and the Central law prevailed.
Subash Kashyap, constitutional expert told TNM, “So long as state's ordinance is not contrary to PCA Act, it can prevail. But it is subject to judicial review. Court can examine if it is challenged in court.”
So, what can Tamil Nadu do to ensure that history doesn’t repeat itself in the case of this new ordinance?
Legal experts say that the state ordinance should have strict provisions to ensure no cruelty to animals. For instance, the ordinance could say that before conduct of the event, an intimation shall be made to the Animal Welfare Board of India, and a representative of the AWBI will be present during the event. It could also provide that if conditions are violated in a particular village, jallikattu will be banned in the village for the next five years or that people can be penalized or even imprisoned.
As per the Constitution, a state government ordinance which goes against provisions provided by the Central government can be promulgated if the President sanctions it. Such an ordinance can stand the court's scrutiny, as per the provisions of the Article 254 (2) of the Constitution of India.
Senior lawyer PS Raman told TNM, “Theoretically speaking it's worth a try for Tamil Nadu. It is plausible for the state to convince the court that the state government, in passing the ordinance, has not incidentally occupied the legal authority of the central govt, if it chooses to pass the ordinance clearly stating that jallikattu is a sport,” he said.
Since sports come under the state list in Schedule 7 of the Constitution, the state government has exclusive power to make laws for the subject.
But either way, any ordinance or Act passed by any government - Centre of State - can be challenged in court. Since this has been the strategy of the petitioners against jallikattu, we can be sure that, if such an ordinance is passed, a legal case will ensue.
In fact, one of the top lawyers who fought to ban jallikattu told TNM that the TN government ordinance is likely to fail, since the Supreme Court has pronounced that jallikattu is intrinsically cruel to the bull.
“While the state can pass the ordinance, legally speaking, it would not be right for them to do so since the matter is sub judice,” he said. “Either way, it won’t stand legal scrutiny. It is likely to be challenged and is likely to fail.”
What the ordinance can clearly achieve right now is to end the impasse in Tamil Nadu where protesters continue to agitate against the ban.
But whether they will be able to make a watertight law that can stand the scrutiny of the Supreme Court, is anyone’s guess.