Jallikattu Ordinance: Federalism Or Cultural Nationalism?

Is Tamil Nadu's ordinance and the subsequent bill paving the way for Jallikattu a cause to celebrate flexible federalism of India or should Indians be worried about cultural nationalism challenging nation building in a multi-ethnic state?

‘I See No Reason For The Ordinance’

Both the state and the Centre can legislate on the subject of cruelty to animals. The state law, however, cannot be repugnant to the central law unless the assent of the President is attained. An earlier enactment passed by Tamil Nadu permitting Jallikattu was declared void by the Supreme Court for not obtaining the assent of the President.

An ordinance was earlier passed permitting Jallikattu. Unlike ordinary legislation which needs to be "reserved for consideration of the President", an ordinance is promulgated "in pursuance of the instructions of the President." Thus, in the instant case, assent of the President was first obtained for the ordinance promulgated by the state of Tamil Nadu.

Mere repugnance of the state law with the central law alone is not sufficient for the President's assent unless there is reason for the President to permit a repugnant state law on the same subject matter as has been made by Parliament. I see no reason for the ordinance.

The Tamil Nadu Assembly has now unanimously passed a Bill replacing the ordinance. Its passage is a foregone conclusion and the haste with which it was passed shows that a deliberative body like the Assembly was in fact hustled into passing it. Assent of the President to the Bill will now only be a formality which itself will be a fraud on the Constitution.

‘The Practice Lost Legitimacy For Falling Foul Of Constitutional Values’

Dealing first with the issue of ordinance, custom, tradition or culture could not have been the basis for the President’s assent. This is because the Supreme Court has repeatedly held that custom can create no rights where it is contrary to the mandate of the Constitution or the law enacted by Parliament. The apex court has already held that welfare and well-being of bulls is Tamil tradition; not infliction of pain and suffering. Presuming such infliction was part of the practice, it lost legitimacy for falling foul of constitutional values. The Bill, which would rely upon tradition and culture again, will suffer from the same vice.

Unless the President felt that constitutional mandate can be disregarded and constitutional values can be justifiably abandoned in enacting laws, he could not have given the ordinance his assent. In doing so, he facilitated the passage of the Bill in the Assembly.

Simply exempting bulls from participating in Jallikattu could not validly be made into an ordinance or the Bill which replaced it. This is because the Supreme Court has already held against such exclusion by rejecting speciesism and reading the requirement of compassion for animals, stipulated in Article 51 of the Constitution, into the enactments concerning cruelty to animals; thus holding that bulls cannot be called performing animals and in any event cannot be seen to have only instrumental value as they have inherent rights in themselves. If Jallikattu continues as it is practised and any change in it is opposed on the ground of conflict with tradition, the defects which led to it being banned will remain and mere permission to bulls to participate will not make the law, allowing the participation, valid.ܼ Who will decide upon the Rules about safety and security of the bulls, as also the participants, to be framed under the law if the emphasis remains on preserving culture and tradition?

‘Post-Nationalist Ideology Is Being Threatened Now’

Did the President consider how the ordinance would impact the institutional integrity of the Supreme Court? The Supreme Court which had reserved challenge to the Centre's notification permitting bulls to be exhibited or trained as performing animals in events like Jallikattu (which is what the State of Tamil Nadu is now permitted to do under the ordinance) was requested by the Attorney General to delay its judgment by a week. Within a day of the request, while the matter was still under judicial consideration, the ordinance was passed allowing the state government to acquire a right in advance of its even being declared by the court and the Assembly replaced the ordinance with a Bill two days later! There has been a unilateral appropriation by Tamil Nadu of an imaginary favourable result by the Supreme Court.

India did create linguistic states as territorial solution to cultural aspirations, a demarcated territory being provided for governance by those linked by bonds of language but its ultimate objective was creating a post nationalist ideology with commitment to values of the Constitution. This post-nationalist ideology is being threatened now.

What George Orwell called "competitive prestige" will bring about a divisive mindset and with the consequential prejudice holding sway, all laws would be set aside should they come into conflict with the agenda of cultural nationalism. What is disturbing is that this protest is for a sport, which is limited to pockets. Its defenders rely on facts of dubious authenticity;

• The reliance on antiquity is misplaced as the sport in its current form is of a more recent origin.
• The argument that it will protect native breeds is as dubious - not only because of lack of proper data but because there are other better and scientific ways of protecting breeds.

With social media as the tool for propagation, reasoned arguments are replaced by fable writing. When appeal to emotion replaces appeal to reason, order is displaced by tumult. It is suggested killing of animals is cruel too; indeed, it is. But what is wrong with the issue of Jallikattu is that the issue of cruelty is defended on the ground of Tamil pride!

‘People Will Internalise Protest Over Compliance With Law’

Jallikattu should not have been made an issue of Tamil pride. Loyalty in a multicultural state must move beyond ethno-cultural foundations. Instead of having a narrow sectarian view of the controversy, unreceptive to a contrary point of view, a more broad-minded approach should have been taken in the spirit of adjustment and compromise. An agreement and solidarity could have been fostered without necessarily forsaking the freedom which is so aggressively being proclaimed by the defenders of Jallikattu. Culture, after all, can have no hostility to ethics and morality.

The use of law in the situation such as that suggested by Jallikattu (placating of Tamil pride) will also impact society in a profoundly adverse manner. It will create a precedent for dealing with the category of ethnic unrest and permit future interactions in the style now mandated. And this will lead to people internalising protest over compliance with law, only creating further occasions of disorder.

Indeed, neither side has distinguished itself. And the norms and values of a liberal democratic constitution can never grow in such an environment. If law can be hustled as has happened in Tamil Nadu, what will guarantee protection?

Aman Lekhi is a senior advocate at the Supreme Court of India and writes on constitutional and commercial law issues.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.