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Monday, July 23, 2018

What are cultural rights?

"No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by Courts in the country."

Written by Sonakshi Awasthi | New Delhi | Published: December 15, 2017 3:12:57 pm
jallikattu tamil nadu, jallikattu order reserved, jallikattu cultural right, what are cultural rights, jallikattu customary, jallikattu custom and culture, indian express news Jallikattu is a traditional sport where a bull is released in the crowd and people have to grab the hump of the bull in order to tame the animal. (A work from the series, Jallikattu; Elanchezhiyan Pichaikannu)

Earlier this week, the Supreme Court reserved its judgment on Jallikattu, the bullock cart racing conducted in Tamil Nadu, and pointed out the importance of questions put by the petitioner. One of the questions was whether Jallikattu can be a cultural right. While the court will clarify if the race could be termed as a cultural right, it is pertinent to understand what a cultural right is.

Jallikattu is a traditional sport played in Tamil Nadu, where a bull is released in the crowd and people have to grab the hump of the bull in order to tame the animal.

The Indian Constitution does not state a black and white definition of a cultural right. However, Article 29 states that minorities residing in India have a right to conserve their language, script and culture. Article 29 is usually interpreted as minority rights and Article 51A mentions the value and preservation of the composite culture as a fundamental duty.

The Constitution adopted different approach to tribal communities due to the diversity and scattered communities residing in India. Article 371 and its sub clauses read with Schedule 6 of the Indian Constitution permits self-governance in accordance to the customary laws of certain states. States not mentioned under Schedule 6 are covered under Schedule 5 instead, where scheduled areas could be created to protect the interest of communities.

The Supreme Court had passed the judgment on the matter earlier, protecting the bulls from violence and stated that they cannot be treated as “performing animals”. This ruling was however, challenged and the question of culture and custom re-opened the case to a judicial review.

The Jallikattu ruling laid down the precedent of a judgment passed in 2002, N. Adithayan vs The Travancore Devaswom Board. The 2002 ruling dealt with the appointment of a Malyala brahmin, as a priest in a temple in Kerala. The questions of culture and customs arose and the top court ruled that, “No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by Courts in the country.”

Following the precedent laid down in the Jallikattu judgment in 2016, the Andhra Pradesh High Court passed a ruling prohibiting cockfight in the state. The court held, “Tradition is not a justification for cruelty towards animals. A cruel tradition should never be allowed to define a culture. Traditions, can and must- evolve. Traditions, such as cockfights, have no religious sanction or significance as it is a pursuit for economic gain to reap maximum monetary benefits through animal exploitation inflicting unnecessary pain on them. It is nothing but an evil practice.”

A nation is influenced by its history, literature and fine arts and these factors mould the laws and law-making process.

In the words of Justice Mukul Mudgal, “The influence may not be immediately tangible, discernible, or direct, but it exists. For instance, an outcry against excessive violence and sex in films leading to stricter censorship laws is just an expression of culture prevailing upon the laws. The changes in law are, however, slow and generally lag behind the social and cultural responses. Manifestation of culture in this way is a fairly accurate barometer of the social response to a situation which has become intolerable or overbearing.”

Due to lack of a concrete definition, the term ‘cultural right’ is open to various interpretations and India is strongly driven by societal norms and culture.

 

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