A Critical Analysis of Fundamental Rights Granted to Non-Human Animals
In Gandhi's words, "the grandeur of a country may be evaluated by the treatment of its animals." Humans have long had a strong belief that they are the superior or more "advanced" race on the planet. They've established a government and, for the most part, a state of their own. Societies that value civility and compassion extend these values to their animals in the same way that they do to their inhabitants. One of the most significant developments in the field of animal rights has been the extension of fundamental rights to non-human animals. This article analyses the role of judicial pronouncements in recent years in declaring and upholding fundamental rights for non-human animals. The inclusion of non-human animals under the ambit of Article 21 of the Constitution of India is not justified for several reasons, including the fact that rights cannot exist in isolation from duties and that non-human animals cannot be entitled to “personhood”. Granting fundamental rights to animals has a plethora of social, religious and legal implications. The need to protect animal rights and prevent animal cruelty is duly acknowledged, but the means to do this would be by strengthening existing legislation and provisions rather than guaranteeing them fundamental rights under the Constitution of India.
I. Introduction
To fulfil the goals of a welfare state as well as the goals and objectives of environmental protection policies, the Indian judiciary has been actively striving to achieve and protect the rights and welfare of animals. In recent years, the Courts have gone to the extent of extending fundamental rights to non-human animals in several cases. Non-human animals have been included under the ambit of Article 21 of the Constitution of India and afforded protection. However, there is a lack of substantiation by the judiciary for arriving at such a conclusion of granting fundamental rights to animals.
The extension and interpretation of the definition and scope of “person” under Part III of the Constitution so widely so as to include non-human animals is a violation of well-established jurisprudence and rules of interpretation. There is a lacuna in terms of interpretation and the rights-based approach.
India has enacted a plethora of legislation and policies for the welfare of animals. The need of the hour is to enforce these laws that are in place and to amend them to keep up with the changing times rather than granting them the status of a person under Article 21.
The adoption of a rights-based approach in bringing non-human animals within the ambit of Article 21 is not justified. Although the need for the protection of animals from cruelty and welfare of animals is acknowledged from a humanitarian and ecological perspective, extending fundamental rights to non-human animals is not the medium to achieve the said goal.
II. Pronouncements by the Indian judiciary on fundamental rights for animals
The last few decades have seen ascend in the number of petitions seeking to guarantee the rights of non-human animals and birds in India. The primary issues settled by it are the slaughter of animals, freedoms of performing animals, use of animals for religious rituals and how it places in the context of the Constitution of India. The Apex Court, as well as the various High Courts across India, have interpreted legal provisions in such a way so as to extend legal and even fundamental rights to non-human animals.
1. Abdul Hakim Quraishi v. State of Bihar2
The Court delved into the constitutionality of the statutes banning cow slaughter in Bihar. By prohibiting Muslims from freely engaging in religious practises like slaughtering cows on Bakr-Id Day, the petitioner claimed the regulations infringed on their basic right to freedom of religion which is guaranteed by Article 25 of the Indian Constitution. The Court concluded that a complete prohibition on the slaughter of cows did not violate the religious freedom of Muslims. According to the Court's interpretation of Article 48, the instruction only applies to cows, calves, and other animals capable of producing milk or serving as drought workers. As a result, the killing of any and all cows or cattle is not prohibited under Article 48.
2. Animal Welfare Board of India v. A. Nagaraja & Ors.3
The case dealt with the centuries-old tradition of Jallikattu practised in Tamil Nadu and some other parts of the country. This tradition raised severe concerns over the life of humans and animal welfare. Animal Welfare Board of India filed a petition before the Supreme Court of India praying to ban Jallikattu. In 2011, the Ministry of Environment and Forests banned Jallikattu. This case led to one of the most monumental judgments given by the Supreme Court. The ban on Jallikattu was upheld. The Supreme Court recognized 5 freedoms that are implicitly bestowed on all animals, such as freedom from discomfort, hunger and thirst and these freedoms are considered analogous to fundamental rights granted under Part III of the Constitution of India.
Despite the ruling of the Supreme Court, there were several protests which led to the Governor of Tamil Nadu issuing an ordinance allowing for Jallikattu to continue. There was also a bill passed by the Tamil Nadu legislature that received assent from the President, which provided for exemption of Jallikattu from the Prevention of Cruelty to Animals Act, 1960.
3. Karnail Singh and others v. the State of Haryana4
The case dealt with the transportation of cows to contravene the provisions of the statute banning the export of cows for slaughter. The High Court of Punjab and Haryana bestowed the status of “legal entity” to all animals. The citizens of the states are recognized as loco parentis, which means that they would be required to act as a guardian for non-human animals. In the judgment, the Court stated, “The entire animal kingdom, including avian and aquatic, are declared legal entities have a distinct persona with corresponding rights, duties and liabilities of a living person.” The Court stated that there is a moral and legal duty cast upon every individual to protect the rights of animals. The Court also gave a set of 28 detailed guidelines, the compliance of which was made mandatory, keeping in mind the welfare of animals.
4. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat5
The judgment, in this case, is contrary to the judgment in the Adbul Hakim case, as the Supreme Court held that Article 48 envisages a total ban on cow and calf slaughter. The Court held that in light of Article 48 and 51-A(g), citizens must be compassionate towards animals and protect them and animals are conferred with fundamental rights.
5. N.R. Nair v. Union of India6
The High Court of Kerala dealt with the plight of animals in circuses and the undignified life they are forced to live. The Court held that despite them not being humans, they are entitled to a life with dignity bereft of cruelty. The Court opined that it is our fundamental duty to protect their rights. Fundamental rights were extended to non-human animals.
6. People for Animals v.Md Mohazzim & Anr.7
The Delhi High Court held that birds have the fundamental right to live with dignity and fly. Capturing and containing birds in small cages amounts to cruelty and is a violation of these rights. The Court further held that “running the trade of birds in violation of the right of birds and they deserve sympathy” and torturing them for business is cruelty.
The adoption of a rights-based approach in bringing non-human animals within the ambit of Article 21 is not justified. Although the need for the protection of animals from cruelty and welfare of animals is acknowledged from a humanitarian and ecological perspective, extending fundamental rights to non-human animals is not the medium to achieve the said goal.
III. “Personhood” under article 21
Article 21 states that everyone has the right to life and cannot be deprived of life or personal liberty unless established by law. For animals to be granted the status of a person under Article 21, they must be entitled to “personhood”. This essentially means that non-human animals should have the capacity to be brought under the ambit and scope of “person” as laid down in Part III of the Constitution of India. The concept of person has to be understood in consonance with rights and duties associated with the rights in the context of Part III of the Constitution. The term “person” is derived from the Latin term persona. Black’s Law Dictionary defines persona as in the context of civil law as a character, “in virtue of which certain rights belong to a man, and certain duties are imposed upon him”. In the modern interpretation, a person would be any entity that holds rights and obligations under the legal framework of the State.
The provisions under Article 21 of the Constitution of India8 has not only been extended to the various nuances of life but also to entities other than humans. The term “person” under Article 21 has been extended to include rivers, legal entities, companies, idols of deities and the like. Apart from humans, the protection under Article 21 is extended to juristic persons as well. The concept of personhood includes under its ambit natural as well as legal persons.
Traditionally, jurisprudence does not recognize beasts or lower animals. The reason behind this is that they are regarded as things rather than persons, and they do not inherit any natural or legal rights. According to Salmond, animals are merely objects of legal rights and duties and can never be subjects of them.9 Non-human animals do not have the capacity and competence to possess rights and duties, and therefore, they cannot be legal persons.
Extension of Article 21 to animals would mean that the killing of animals without the sanction of law or other than an authority of law would be prohibited. This would lead to several other problems in a country like India, where the social structure is such in which the sacrifice of animals and rituals involving animals is widely accepted and practised across many religions and sects. Granting the status of “person” under Article 21 would entitle non-human animals to sue and be sued, to hold property and to enjoy other rights as a human would.
Rights have to correspond to a certain duty. Rights can neither be granted nor enjoyed in isolation from duties. Rights also cannot correspond to a duty that is the case upon another individual. To ascertain whether non-human animals are eligible to enjoy fundamental rights, the rights-based approach alone cannot be employed. This subject requires a more holistic approach to arrive at the conclusion of granting rights.
IV. Hohfeld analysis
The rights analysis and analysis of jural relations of Hohfeld is essential to further substantiate the subject matter. It gives a clearer picture as to who is entitled to enjoy rights. According to his analysis, if a right is enshrined upon an entity, it must correspond to a duty to be performed. Rights and duties must coexist, and therefore, rights can only be granted to a person who can be competent to perform duties as well as enjoy rights. Briefly, what this analysis would translate into in terms of rights for animals is that rights can be enjoyed by those who can discharge the corresponding duties that the right is associated with.
It is argued that animals cannot possess legal rights on the ground that the capacity for holding rights is inevitably associated with the capacity for bearing duties.10 Non-human animals can neither understand nor perform any duties that might correspond to the rights they are granted.
The Will Theory and Interest theory are two contrasting theories of rights that help understand the rationale behind rights and who is potentially entitled to enjoy rights. Hart regards that according to the will theory, the ultimate rationale behind granting rights is to promote and protect an individual’s autonomy and self-realization. 11 Thus, this theory advocates that only those who possess agency and the legal capacity can be holders of rights, which essentially mean that non-human animals are excluded. The Will Theory does not accept the idea of non-human animals possessing rights.
V. The conundrum in granting fundamental rights to non-human animals
Granting fundamental rights under the Constitution to non-human animals would put them and human beings on an equal footing. Thus, the conflict as to whose right would be predominant and whose right must be given preferential protection would arise. For example, in the case of an animal attack, humans are exempted from liability for killing or harming animals for self-defence. When humans and animals are put under equal protection under Article 21, a conflict would then arise as to whose interest must be protected in such situations. Would it still be justifiable to kill an animal whose life is protected under Article 21? Non-human animals and humans would then be equally protected under the Constitution of India.
Further bestowing fundamental rights on non-human animals would bestow the corresponding right to enforce these rights. Another argument against extending fundamental rights to non-human animals is that it would not be justified or reasonable to extend it only to certain species. If it were extended to all avian and aquatic species, then even consumption of meat would result in a violation of fundamental rights.
There are several methods by which non-human animals' legal rights might be established. Re-interpreting or amending state or federal legislation, as well as international treaties, seem to be the most effective measure for reform. For the most part, people feel that passing legislation rather than amending the Constitution is the most likely path to achieving personhood. While deciding a case, a change in the law may be the most probable of all occurrences.
Judges, unlike lawmakers, are legally obligated to uphold the rule of law. As long as the common law is read in the right way, it is committed to being flexible, adaptive, and responsive to changes in public morals and scientific discoveries.
VI. Conclusion
Animals have always played an important role in human culture and will continue to do so. Consideration of human interactions with other animals must begin with respect for the dignity of all animals' lives. The subject of animal rights protection requires a multi-pronged approach that involves social, economic, religious and political aspects. In conclusion, this paper asserts that affording protection to non-human animals is justified but not through the means of protecting fundamental rights. Any welfare and protection measures must be in conformity with and within the tenets of well-established rules of jurisprudence and the rules of interpretation.
The means to achieve this goal would be to actively enforce the abundant statutes and provisions that are already in place in India, such as the Prevention of Cruelty to Animals Act, 1960. Effective enforcement along with enhanced punishments would deter and prevent cruelty against animals. Casting a “duty” on humans to protect non-human animals would be more effective is protecting animal rights rather than merely entitling animals with “fundamental rights”.
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Footnotes
1. Author is a LLM student at CHRIST (Deemed to be University), India.
9. Salmond, J. and Fitzgerald, P., 1966. Jurisprudence. 12th ed. London: Sweet & Maxwell. ↩
10. Cupp, R., 2021. Children, Chimps, and Rights Arguments from 'Marginal' Cases. [online] Papers.ssrn.com. Available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038063> [Accessed 25 December 2021]. ↩
11. Hart, H., 1982. Essays on Bentham. Oxford: Clarendon Press. ↩
- Salmond, J. and Fitzgerald, P., 1966. Jurisprudence . 12th ed. London: Sweet & Maxwell.
- Cupp, R., 2021. Children, Chimps, and Rights Arguments from 'Marginal' Cases . [online] Papers.ssrn.com. Available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038063> [Accessed 25 December 2021].
- Hart, H., 1982. Essays on Bentham . Oxford: Clarendon Press.