Government notification on Jallikattu may not withstand legal scrutiny, here’s why
The Ministry of Environment and Forests has come out with a notification permitting Jallikattu (Bull taming) and Bullock Cart races subject to certain conditions being followed.
The GOI-MOEF notification appears to have several contradictions and whether this will stand legal scrutiny will be known soon as Animal Welfare organizations are all set to take the matter to the Supreme Court on Monday.
The key issues are below.
1. The most glaring contradiction appears to be in the stipulations laid down in the notification. One of the conditions for Jallikattu mentioned in the Govt.'s notification yesterday is that the Organizers of Jallikattu must "ensure that the rights conferred upon the animals under section 3 and clause (a) and clause (m) of sub-section (1) of section 11 of the Prevention of Cruelty to Animals Act, 1960 (59 of 1960) and five freedoms declared by the Hon’ble Supreme Court in its order dated 7th May, 2014 in Civil Appeal No. 5387 of 2014 are fully protected during such events."
Now read this part of the ruling in the SC Judgement of May 2014.
"We, therefore, hold that AWBI is right in its stand that Jallikattu, Bullock-cart Race and such events per se violate Sections 3, 11(1)(a) and 11(1)(m)(ii) of PCA Act and hence we uphold the notification dated 11.7.2011 issued by the Central Government,"
So SC says that Jallikattu violates these sections of the PCA Act and the Govt. notification says that Jallikattu can be held subject to no violation of these sections of the PCA Act.
Thus this part of the notification makes very little sense. If the sport itself violates the PCA Act, how does one conduct the sport without violating the Act?
Former Judge of the Madras High Court Justice K.Chandru is of the opinion that this notification would be struck down. “Going by the extensive direction of elevating animal welfare to international norms as well as the fundamental duty imposed under Article 51-A, it will be difficult to uphold the central government’s notification. Mere amendment to a notification under the PCA Act is neither proper nor will save its constitutionality.”
2. In the notification 'bulls' have not been removed from the list of banned performing animals. However they have been permitted to be used for Jallikattu and Bullock cart races. No reason has been given except that culture and tradition have been mentioned. This same argument was already put up to the Supreme Court several times, most recently in 2013 and the Court rejected the MOEF contention then. So what has changed now?
3.The SC has stated that if there was to be a change to the MOEF notification of 2011 that added Bulls to the list of banned performing animals it had to be done in consultation with the Animal Welfare Board. This has not been done in this instance.
4. The SC has also said that the PCA Act is welfare legislation and indicated that in cases where there is a conflict between culture and tradition and welfare legislation then the welfare legislation shall hold sway.
If the Govt. wanted to ensure that Jallikattu took place they could have amended the Prevention of Cruelty to Animals Act. However there is no political consensus on this with most major parties being divided internally on the issue. Within the BJP itself Ministers like Maneka Gandhi are known to be strong campaigners for animal rights and within the Congress the likes of Jairam Ramesh have openly argued for the cause of animals.
Justice Chandru adds that the Govt. should not have resorted to the notification route after its top legal officer, Attorney General Mukul Rohatgi apparently opined against an ordinance saying that such an ordinance would be in violation of the Supreme Court order of May 2014.
Animal rights activists and PETA appear confident of getting the SC to rule in their favor. Whether that would happen early enough to stop next week’s Jallikattu events is a moot point. There is always the possibility of the Court giving its final order after a few weeks which would mean that this year’s Jallikattu event would have been held by then. This is what the BJP is possibly hoping for. However govt. sources say they have the reasoning and the material to produce before the Court in support of their stand.
With only a week to go for the Jallikattu to be held, the eyes of political parties and the public in Tamil Nadu are firmly on the Supreme Court. Will we see the bulls charge this Pongal?