In 1985, the Supreme Court of India gave a landmark judgment — Mohd. Ahmed Khan v. Shah Bano Begum. It is now known simply as the “Shah Bano” judgment. This case emanated from Indore where a prosperous lawyer threw out his wife (Shah Bano, aged 65 years) and refused to give her any maintenance, citing a conflict with Muslim personal law. She challenged this and claimed maintenance under section 125 Code of Criminal Procedure, 1973 (CrPC). The case went all the way to the Supreme Court. The SC rightly held that any religion’s personal law aside, CrPC is a secular law and that she was indeed entitled to maintenance. This was heralded as a progressive judgment and with Shah Bano getting her due, one would imagine that things would have ended there. Wrong. They had just begun.
The Muslim orthodoxy went ballistic. They said this was an interference in their personal laws and the practice of their religion and culture. There were widespread protests in the country. Eventually, the then prime minister, Rajiv Gandhi, buckled. He passed the Muslim Women Protection Act, 1986 which essentially nullified the landmark and progressive Shah Bano judgment. What is even more interesting is that the then Congress government had won a brute majority in Parliament after the 1984 elections with 414 seats and yet, Rajiv Gandhi, whose government represented a new India with the talk of computerisation and referred to as “Camelot”, succumbed to the pressure of vote-bank politics.
With respect to Jallikattu, the situation is not very different. What we are seeing now is the making of the Shah Bano of animal rights.
Jallikattu is a traditional sport, played in mostly rural Tamil Nadu by farmers during Pongal celebrations in early January. This “sport” was banned by the Supreme Court in 2014 in the judgment Animal Welfare Board of India v. A. Nagaraja. The court held that the sport is inherently cruel towards bulls and hence violative of sections 3 and 11 of the Prevention of Cruelty to Animals Act, 1960. The judgment categorically held that the bull’s body is not anatomically designed to be running like this and no matter what you do (be it putting chilli powder in the animal’s
private parts, poking it with spears or biting/breaking its tail), the cruelty is inescapable since the bull has to be scared out of its mind to run as it is made to. Such running is essential for the bull to be “tamed”, which is the literal definition of Jallikattu.
This obviously caused a lot of consternation in Tamil Nadu and in January last year, to make the sport legal again, the Central government (with the BJP having a strong 282-seat majority, not unlike the Rajiv Gandhi government of 1984) passed an executive order allowing Jallikattu.
Needless to say, it was challenged in the Supreme Court and the notification was stayed on the very first hearing. The review to the 2014 Nagaraja judgment by the government of Tamil Nadu was dismissed by the Supreme Court in November last year and in December, the challenge to the notification was also reserved for judgment. So, that meant, at least till January 1, 2017, Jallikattu was banned.
Like the Shah Bano judgment, this should also have ended right here.
But alas, this year again in early January, around Pongal, there was a huge hue and cry to make Jallikattu legal again. There was even talk of the Centre coming out with an ordinance to this end, but it rightfully decided against such a misadventure for the matter was sub-judice.
So,when that move did not pan out, the Jallikattu protesters took to the streets and took over Marina Beach, in an extraordinary and commendably peaceful protest. The BJP at the Centre, seeing the right opportunity to make inroads in Tamil Nadu, said that it will not pass an ordinance but support the state of Tamil Nadu in every other way.
The pro-Jallikattu camp’s defence is that the sport is an essential practice for the preservation of Tamil culture. This argument does not hold weight because the march of civilisation leads to the abandoning/banning of many inhuman and regressive practices like Sati, child marriage and untouchability, which were once considered essential cultural practices, inextricable from tradition.
The latest chapter in the saga is that the state of Tamil Nadu purportedly issued an ordinance allowing the outlawed sport; on January 23, it passed an amendment to the PCA Act 1960 in an emergency session of the Tamil Nadu assembly to make the game legal again. This “regulation” of Jallikattu has been tried and has failed. There was a specific law brought in earlier for this purpose, called the State of Tamil Nadu Regulation of Jallikattu Act 2009. For five-odd years from 2009 to 2014, the SC did try to regulate the sport, but when nothing worked and the expert reports showed blatant cruelty, the court was left with no option but to ban the sport in its entirety.
Such cowing down by the government has had a domino effect, with other states jumping into the fray and demanding that their banned traditional sports also be legalised. These include bulbul fighting in Assam and cock fighting in Andhra Pradesh. One can only wish that the government had shown the same level of alacrity in amending the PCA Act 1960 to increasing the punishment for killing animals from a mere Rs 50 fine to at least some time in jail. But unfortunately, the mute cannot speak, let alone vote, and no legion of stray dogs or animals will ever descend on Jantar Mantar in Delhi to ask for protection.
The cowing down by the BJP and AIADMK to vote-bank pressures, especially when the rights of the mute, who can’t come out to the beach to protest are at stake, is the making of another Shah Bano. Nagaraja is one of the most progressive judgments of our times and redefines how we give effect to the dictum of Mahatma Gandhi: The progress of a society is measured by how it treats its animals. It is the embodiment of Article 51A(g) which confers the fundamental duty on us to have “compassion for all living beings”, and not just humans.