Jallikattu & Ramar Setu: understanding Supreme Court’s confusion

The Supreme Court’s reversal of its own order refusing to vacate the stay on the holding of the traditional village sport in Tamil Nadu, Jallikattu has caused quite a consternation. (Animal Welfare Board vs. A.Nagaraja) A sample of readers reactions as carried in The Hindu is here, here and here. The three Judge Bench first refused to vacate the stay on the ground that the sport is barbaric, and later when pointed out by the Tamil Nadu Government, that the sport is part of religious festival of Pongal, the Bench relented, on certain conditions, to rule out cruelty to the bulls, and injuries to participants and spectators. The SC’s refusal to vacate the stay was greeted by The Hindu, but criticised by Mail Today.

The Supreme Court also orally expressed its surprise that Tamil Nadu Government invoked the religious ground. The Court, according to reports, alluded (as mentioned in The Times of India) that the State opined in the Ramar Setu case, following its ideology of rationalism, that the religious feelings did not matter in the construction of the Sethusamudram project. The Bench said it did not agree with all the reasons cited by the State for lifting the stay. But the Supreme Court’s lack of explanation for reversing its own decision is astounding. Does the Supreme Court signal that religious ground is sufficient enough a reason for review of its decisions? The implications are ominous, even if the vacation of the stay is only for this year, till the Supreme Court hears the appeal against the Madras High Court’s verdict permitting Jallikattu.

There is an inescapable feeling that the Supreme Court came under pressure to review its decision not to vacate the stay, faced with the prospect of defiance of its order by a determined local population in Madurai district. True, people’s sentiments rooted in culture and tradition were involved, and would have been hurt, if the SC refused to vacate its stay. But religion? Did the TN Government confuse religion with the local culture and tradition? Does the SC suggest that while religious sentiments cannot be hurt by a Court-inspired ban on a rural sport, similar immunity cannot be bestowed on local culture and tradition, ableit followed by a small minority of villagers in Madurai?

It may be worthwhile to read the Madras High Court’s Division Bench’s judgment in the case of K.Muniasamy Thevar vs. Deputy Superintendent of Police (MANU TN/8256/2007) delivered by Justices Dharma Rao Elipe and P.P.S.Janarthana Raja on March 9, 2007.

The case had its origin when the appellant felt aggrieved by the interference by the police in the holding of the traditional sports events, such as jallikattu, manjuvirattu, Rekla Race (bullock cart race)and sought an end to such interference. The Single Judge, Justice R.Banumathi, not only rejected his petition, but went beyond the scope of the petition, by imposing a ban on all the three village sports events, including Jallikattu, assuming that there was cruelty to the animals. (MANU/TN/9319/2006). The appeal was heard by the Division Bench. The Animal Welfare Board impleaded as a party.

The Additional Advocate General appearing for the State, told the Division Bench that not only the Hindus, but also persons belonging to other religious faiths take part in these sports-events, which indirectly promote religious harmony in the State. He appealed to the Bench to consider the religious, cultural rights involved, giving due respect to the feelings, sentiment and religious practices of the people. The sport events are part and parcel of Tamil Culture and religion, he said. Here, you may notice that the Tamil Nadu Government used Tamil Culture and religion almost synonymously, that is, religion ought to be understood in the cultural sense, and not in the sense of organised religion – a phenomenon of contemporary times. The petitioner in the Sethusamudram case, Subramanian Swamy has already drawn the Court’s attention to the Tamil Nadu Government’s plea in the Jallikattu case.

Therefore, for the Supreme Court to read in the Tamil Nadu Government’s claim that religious sentiments would be hurt if the stay was not vacated, something similar to the claim of those opposing the Sethusamudram Project would be a distortion of Tamil Nadu Government’s intent and its declaration before the Madras High Court Division Bench. True, the Tamil Nadu Government may not have had the opportunity to explain its stand better, as it was thrust with the responsibility of vacating the stay to avoid a law and order problem, but should the SC ignore the Madras High Court’s judgment, before refusing to vacate the stay, and later doing so, by seemingly imposing some conditions? The Madras High Court judgment, in fact, lays down similar conditions. But these conditions could not be tried, because of the SC’s stay.

The Madras High Court did not even consider the “religious sentiment” as the core issue in this case, despite the clarification of the AAG. The core issue, according to it, was only with reference to the “treatment of the animals” during the said events, and whether such treatment would amount to “cruelty” within the meaning of S.11 of the Prevention of Cruelty to the Animals Act, 1960. The Bench had noted in its judgment: “It is more or the less the exhibition of the performance of a trained bull by its owner before the villagers. The exhibition of performance of trained animals is permitted under Chapter V of the Act, of course, subject to certain restrictions mentioned therein.”

The Bench further noted: “There can be no second opinion of the fact that the said sport-events are part and parcel of the Tamil village culture and are closely wedded to the life-style of the villagers. The imagination or visualisation of the harvest season of villages in the State of Tamil Nadu would be imcomplete without “Jallikattu”, “Manjuvirattu”, “Reklarace”, etc. When our traditional and cultural life-style of India, more particularly the life-style of the villagers, is being rabbidly effaced by the influence of the Western culture, it is imperative that our village traditional and cultural events are preserved and maintained.”

To conclude, the SC’s refusal to vacate the stay on Jan.11 was flawed. Its insufficient explanation for vacating it on Jan.15 is even more flawed than the previous one.

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  • To conclude, the SC’s refusal to vacate the stay on Jan.11 was flawed. Its insufficient explanation for later vacating it on Jan.15 is even more flawed than the previous one.

    Prima facie I agree with you.Religion need not be a organised religion. But Jallkattu is more a cultural phenomenon than
    a religious one. There was no need to invoke religion there as it is a sport, not a religious ritual and
    is not widespread all over tamil nadu.Can courts use cruelty to animal as a reason to ban/place limits on jallikattu and if so can the same concept be used in other circumstances. I hope we may get some clear answers when the case
    is finally disposed of. A related case is that of the ban on offerring animals as sacrifice in temples etc. ADMK government brought an ordinance to enforce a law only to withdraw it later. In both the question of cruelty and
    culture have been raised.

  • Thank you for a thought provoking post. Just wanted to make 2 points:

    1. Most Hindu festivals like “ram leela”, “holi” or “navratri gharbha” are local community (rather than private) celebrations but that does not mean they are not “religious”, and therefore subject to flippant state/judicial interference. Jalikattu is played to celebrate the Hindu Tamil festival of “pongal” and in the context of rural Tamil Nadu, is a religious practice just like navratri gharba is in Gujarat.

    I think the answer to why the court used the “religious beliefs” as a justification to vacate the stay is simple – it is because the right to “freedom of conscience and the right freely to profess, practise and propagate religion” is a fundamental right enshrined in Article 25 of the constitution and cannot easily be trumped. So, “religious rights” and “cultural rights” are not on the same plane (although they overlap and while “cultural rights” are granted in Article 29, it is pretty narrow). That’s why state interference with a religious belief or practice requires a much more compelling justification than a state interference with a “cultural right” and the Supreme Court is also careful not to trample on a religious practice without adequate justification and reasoning.

    The initial ban imposed by the SC was gross overstepping of judicial power, which interfered with a fundamental right without any compelling justification or legal reasoning. As the Madras Division Bench has rightly pointed out, jallikattu merely involves exhibiting the animal and holding it by its horns, and, unlike Spanish bullfighting where the bull’s head is cut off after the fight, Jallikattu does not involve any cruelty to animals (on the contrary, the bulls are worshipped and pampered all year through).

    I am glad that the SC was sensible enough to withdraw the ban – this shows that courts are also, at some level, accountable to the public and cannot just take a moral high ground without any legal basis.

    2. As regards the Ram Setu issue, I am baffled by your interpretation of “secularism” as so-called “rationalism” – where does this interpretation stem from? As a plain reading of the constitution shows, the essence of secularism is two-fold in our constitution-

    • The State does not have an official religion – by implication, the state should neither promote nor suppress religion and treats all religions equally; and
    • The state will not interfere with an individual’s right to religious belief and freedom of conscience.

    It is clear from a plain reading of the constitution that by stating that Lord Rama never existed, the state (which includes the ASI) blatantly disregarded the constitutional dictum of non-interference – our founding fathers plainly intended that it was not the state’s business to pronounce on the validity or otherwise of a religious belief! The state can base their arguments on legal and policy imperatives and justifications, but the moment they take on the mantle of judging religious beliefs of one religion and pronouncing on their validity, they step into territory forbidden by the Constitution and however rational they might be, they begin to violate the principles of secularism.

  • Dear Jyotsna,
    I have not interpreted secularism as so-called rationalism. In fact, the Times of India of Jan.16 (I could not provide the link) reported that the Court alluded to TN Government’s submission in the Ramar Setu case, wherein it said (the Bench appears to have said the DMK Govt was wedded to rational philosophy) that there were no religious beliefs involved in going ahead with the SS project. I agree with your definition of secularism as used in our Constitution.

    However, in the Ramar Setu case, the petitioner raised the issue of religious beliefs coming in the way of the SSP. So, the Government was expected to answer this in its affidavit. So, the Government said that the petitioner’s reliance on the mythological texts to sustain his ground of religious beliefs being violated was not acceptable.

    Paragraph 20 of the affidavit said:
    Paragraph 20 of the affidavit. This paragraph read:

    “The Petitioners, while seeking relief have primarily relied upon the contents of the Valmiki Ramayana, the Ramcharitmanas Tulasidas, and other mythological texts, which admittedly form an important part of ancient Indian literature, but which cannot be said to be historical record to incontrovertibly prove the existence of the characters, or the occurrence of the events, depicted therein. Whereas it is submitted that the ASI is aware of, and duly respects the deep religious import bestowed upon these texts by the Hindu community across the globe, it is also submitted that the study of human history, which is the primary object of the ASI, like other sciences, and fields of study, must be carried out in a scientific manner, using available technological aids, and its findings must be based on tangible material evidence.”

    Now, where did the State pronounce on the validity or otherwise of a religious belief? It only said Valmiki Ramayana, Ramacharitamanas, and other mythological texts cannot be said to be historical record. What follows from this is that the existence of characters or events mentioned in these texts cannot, therefore, be proved.

    A belief is a belief. It need not be proved, that is, it need not be shown that there is a basis to the belief, or that the belief is valid. I may still hold some beliefs, that is religious beliefs, even though I am conscious that such beliefs cannot be proved or validated. I cannot be hurt by this contradiction being expressed by someone.

    In my view Paragraph 20 of the ASI affidavit was necessary to answer the Petitioner’s claims. Unfortunately, it was given a political colour, and the Govt. had to withdraw it.

  • Thanks once again for your response – it’s very good food for thought. Just one more point about the ramar sethu case.

    Prima facie, what is the legal issue in the case? It involves balancing 2 conflicting interests: The religious belief of many about the ram sethu (it is irrelevant, as per the constitution whether or not the sincere religious belief has truth in it) v. “public interest” (if at all). How does the court approach the issue? Since the project will target and destroy the structure which has religious sentiments around it, by seeing if there is justification offered by the govt. which can trump the fundamental right and can the govt. show that there are no lesser restrictive alternatives.

    In the context of the above legal analytic framework, where does the question of whether Lord Rama existed, come in? This question is irrelevant to the legal issue. Arguendo, I can understand it if the ASI actually did some archaeological survey by deep sea diving or photography and then doing a scientific analysis to ascertain what the probabilities are of it being a man-made v. natural structure. But, they have not done or attempted to do any such thing. On the other hand, to cover up their intellectual lethargy, they have taken the short-cut and made an arrogant, sweeping statement that the Ramayana is bunkum and since there was no Rama, there cannot be any ram sethu.

    The ASI says that there isn’t any “incontrovertible proof” that Rama existed around 9200 years ago – seems like they want a photograph or DNA sample! Their supposed “rational, scientific” statement is based on what 2 Germans wrote way back in the 1800s. In contrast to the ASI’s bookish, non-archaeological, colonial, hand-me-down approach to historical study, anyone who has lived and traveled around the subcontinent knows how deeply the Ramayana is embedded and has left imprints in the geography, history and collective consciousness of the people. From the villages of Uttar Pradesh and the shores of Rameswaram in Tamil Nadu, to the Ashoka Vanam which to this day exists and is preserved in Sri Lanka, it is remarkable how this “living history mixed with legend” has survived for thousands of years across the subcontinent. But of course, the ASI chose to ignore all of it. If confronted, the ASI would in most probability attack and dismiss it all as a collective delusional hallucination or “communal conspiracy” hatched across generations, geographies, countries and linguistic lines!!

  • Dear Jyotsna,
    You have asked why ASI didn’t do an archaeological survey to determine whether the formation is man-made or natural formation.

    The petitioners referred to the “ancient history of India”, and the “epic, Ramayana” in support of their demand that Adam’s Bridge be considered an ancient monument. Therefore, it was important for the government to explain why it could not, on the face of it, accept the claims of the petitioners in this regard.

    The government found that there was no concrete evidence for the claims of the petitioners and that they just wanted a “fishing enquiry” into the history of Adam’s Bridge to determine their claims that it was historic and ancient.

    Therefore, the ASI analysed the ingredients of the definition of “ancient monument” under Section 2(a) of the Ancient Monument and Archaeological Sites and Remains Act, 1958. Under this law, to qualify as an ancient monument, the “monument” must be of historical, archaeological or artistic interest.

    In paragraph 32 of the affidavit, the ASI concluded: “In the light of the scientific study conducted, the said formation cannot, therefore, be said to be a man-made structure. The same is merely a sand and coral formation which cannot be said to be of historical, archaeological or artistic interest or importance.”

    The ASI was categorical that its obligation under Article 49 of the Constitution must be fulfilled on the basis of scientific study and analysis with total objectivity. Excavations of sites and analysis of physical remains form an essential part of this scientific inquiry, and the ASI has so far not found any evidence to suggest that Adam’s Bridge is a man-made bridge. It concluded that there was no merit whatsoever in the claim to warrant any action on its part under the Act.