Dr Shabana
Recently, while flipping through the pages of the newspaper I came across one news report about Rohingya Muslims in Jammu. The Chief Minister Omar Abdullah stated that “as long as Rohingya Muslims are here, we cannot treat them like animals. They are humans and they should be treated as such.” I appreciate Chief Minister for looking at this issue through the prism of compassion but this statement gave me food for thought especially the clauses ‘we can’t treat them like animals’ and ‘they are humans and should be treated like humans’ which whetted my appetite to know about the personality of these critters. If the Plain Reading rule or literal interpretation is applied then it can be inferred from the statement that non-human animals are inherently inferior to human beings which is a general perception and human beings must not be treated like them. But if interpreting natural meaning of the words used in the statement leads to unintended consequence or conclusion then that interpretation has to be avoided. Reading between the lines, I would say that intention was good though his statement is capable of more than one meaning but the intention is at variance with plain meaning of these clauses.
This statement of Chief Minister takes me back to May 2018, when U.S. President Donald Trump while speaking about illegal border crossings stated that “We have people coming into the country, or trying to come in. You wouldn’t believe how bad these people are. These aren’t people. These are animals.” Anyways, let’s move on and discuss another vital subject that is legal personality of animals. The term personality is wider than humanity as it includes even inanimate objects, a mass of property, an institution, a group of human beings also and there are many entities to which law attributes personality i.e. law treats them right and duty bearing units like natural persons. They are regarded as persons by fiction of law for sufficient reasons and certain purposes and this “extension of the conception of personality is one of the significant feats of the legal imagination.” The authorities on Jurisprudence and Courts of various countries have confirmed that for socio-political scientific development, it became inevitable to confer fictitious personality upon Juristic persons. This write up gives an account of current legal status of nonhuman animals in India i.e. whether animals are persons in the eyes of law? In modern times, not all legal systems recognise animals as legal persons. In our country animals are still not considered subjects of rights and duties and are often the objects of legal rights and duties i.e. they are not considered legal persons though there are ancient Indian stories which are abound with recognition of rights and duties of animals. The fascination and affinity of Mughal emperor Jahangir for animals is recounted in ‘Tuzk-e-Jahangir’, ‘Jahangir: An intimate Portrait of a Great Mughal’, etc. There is one peculiar story about Jahangir’s order to bring to his court the bullock which pulled the chain by chance and that chain was hung and supposed to be pulled by natural persons i.e. human beings who wanted justice from the Emperor.
After inquiry, it was found that bullock was being used by its master to carry heavy load and he was prohibited from doing it. Isn’t it an example of the fact that he treated an animal as capable of owning right not to be treated cruelly by making it to carry the load beyond its carrying capacity. Animals were considered legal things (right less entities) that can be owned but not legal persons having rights and duties. There has been paradigm shift in the approach towards animals from being considered commodity or an inanimate object that can be owned to more than commodity and from there to global concern to sign an international agreement for the protection of animals. It comes after years of mounting pressure from animal rights groups. Recently, Spain has passed a new law which treats domesticated (Pets) as well as wild species as ‘sentient beings’ with rights and interests and as such will have a different legal status than an inanimate objects. They can no longer be considered as objects. As per Sentience Institute, sentience is simply the ability to have both positive and negative experiences or it is the capacity to have feelings, including pain, distress, suffering and pleasure. This write up would be incomplete without mentioning Ruth Harrison’s book Animal Machines: the New Factory Farming Industry which exposed the suffering inflicted on farm animals i.e. how animals were raised, confined and killed on factory farms. This publication had a huge impact on public opinion, so much so that British government appointed a committee chaired by Francis William Rogers Brambell to investigate into the factory farming practices. In 1965, the “Brambell Report” was published which outlined five freedoms, viz. freedom from hunger or thirst, Freedom from discomfort, Freedom from pain, injury or disease, Freedom to express most normal behaviour, Freedom from fear and distress. Farm Animal Welfare Council which was an independent advisory body was established in 1979 in United Kingdom for animal welfare. This book became an inspiration for European Convention for the Protection of Animals kept for Farming Purposes, 1978 also known as the Farm Animal Convention which laid down minimum common standards for the protection of animals kept for farming purposes in the signatory countries. In addition to this, the 20th century saw a number of international measures supporting animal rights and welfare.
The Universal Declaration of Animal Rights was solemnly proclaimed in Paris on 15 October 1978 and Article 9 of the Declaration states that the specifc legal status of animals and their rights must be recognised by law. Article 2 clause (2) puts an obligation that a Man as an animal species shall not arrogate to himself the right to exterminate or inhumanely exploit other animals. It is his duty to use his knowledge for the welfare of animals, whereas Article 14 categorically states that the rights of animals, like human rights, should enjoy the protection of law. Also, Universal Declaration of Animal welfare was proposed to be adopted by United Nations to recognise that animals are sentient, to prevent cruelty against them and reduce their suffering, and to promote standards for their welfare but it could not become reality as yet. If it gets adopted by United Nations, it would be nonbinding set of principles like Universal Declaration of Human Right. The five freedoms mentioned above have also been incorporated in this Declaration and the four principles underlined the sentience of animals and responsibilities of human beings towards them. These Principles encourage the national governments to introduce animal protection and welfare legislation and other initiatives or improve the existing domestic laws keeping in view this Declaration. Moreover, there is also a movement advocating signing of legally binding Convention on Animal Protection for Public Health, Well-Being, and the Environment. One of the fundamental Principles of the Convention is , “As sentient beings, animals have intrinsic value. Humans have an ethical obligation to act responsibly toward animals.
No animal should be subjected to cruel acts or unnecessary suffering.” Further, a few animal protection and welfare legislations came into effect after independence and one such legislation is POCTA (Prevention of Cruelty to Animals) Act, 1960 which was a first animal welfare law which criminalised cruelty to animals and in exercise of the powers conferred by this legislation, the Central Government framed the Prevention of Cruelty to Draught and Pack Animal Rules in 1965 which amongst other things regulates the weights that draught and certain Pack animals can draw i.e. maximum load for draught and Pack animals was fixed. Besides this Protection of animals is enshrined as fundamental duty in the Indian Constitution and the repealed Indian Penal Code also had specific provisions to obviate cruelty towards animals. However, recent landmark rulings of a few High Courts have gone beyond traditional theories and given new explanation on legal status of animals. The Courts shifted their focus from anthropocentric approach that places human beings at the center of the universe and subordinates everything else to their needs and interests to Eco- Centric approach which means “respecting ecosystems that recognize the intrinsic value in all life forms and ecosystems and equally respect both humans and non-humans irrespective of any instrumental value.” In Narayan Dutt Bhatt case ,it was reiterated by the Uttarakhand High Court in 2018 that Human beings protected animals to advance their self-interest and later on for international equity but never recognised the intrinsic value and worth of animals. The United Nations ,all these years safeguarded the rights of human beings through various declarations and conventions but not the rights of other species like animals as there is no international agreement that ensures the welfare and protection of animals. The section 3 of the Prevention of cruelty to Animals Act, 1960 states that It shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the wellbeing of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering. Thus section 3 deals with duties of persons having the charge of animals and hence confer corresponding rights on animals. The rights conferred on animals are antithesis of a duty imposed on the persons having the charge and if those rights are violated ,law will enforce those rights with legal sanctions. The Court has also a duty under the doctrine of Parens Patriae to take care the rights of animals as they are unable to take care of themselves as against the human beings. The human acts which were considered wrongful acts against animals under various statutes were not wrongs against the animals but are wrongs either against the owner of that animal or against the society or the state. But section 11 of 1960 Act enumerates acts which qualify as animal cruelty and prescribe the punishment for these acts. Though these cruel acts are wrongs against the animals but even this section could not escape from the shadow of speciesism as punishment is less. The most important mandatory direction of High Court in Narayan Dutt case which is contrary to status quo is , “the entire animal kingdom including avian and aquatic are declared as legal entities having a distinct persona with corresponding rights ,duties and liabilities of a living person. All the citizens throughout the state of Uttarakhand are hereby declared persons in loco parentis as the human face for the welfare /protection of animals. No doubt there are legal barriers to the extension of legal personality to animals but it has taken centuries to reach the point where the law considers all human beings as legal persons as slaves, insane etc. were natural persons only and not legal persons and now even non- human entities like corporations ,idols , etc. are considered legal persons. It is understandable that animals cannot have the same rights as human beings and it is also not important that every legal entity possess a complete set of legal rights and obligations. There can be attribution of single right to legal entity or wide variety of rights and obligations as within human community also not all enjoy same rights and liabilities but are still legal persons. It is for the legislature to decide which rights and obligations would be extended to particular animals while conferring legal personality to them.
Thus the inclusion of animals in the community of legal persons will press the humans to treat animals with dignity as conferment of legal personality on these beings would give them legal recognition that these beings have worth and dignity in their own right and humans can no longer treat them as objects of property rights which are in existence for human use and abuse. Lastly, Supreme Court has not granted personhood status to any animal and along with that there is no countrywide legal personhood law for animals. But the winds of change have begun to blow in the academic and legal landscape in our country as Punjab and Haryana High Court also declared animals as legal persons but the Court is silent on many other issues. These rulings and declarations at the international level like ‘He Whakaputanga Moana treaty’ which granted whales and Dolphins legal personhood, mark significant and positive step forward in the movement to confer legal personhood on animals. Tucked away in the inside pages of ‘Animal Farm’ authored by George Orwell and published in 1945 are seven Commandments. The first two commandments are as follows; 1. Whatever goes upon two legs is an enemy. 2. Whatever goes upon four legs, or has wings, is a friend. These commandments are distilled into the maxim ‘Four legs good, two legs bad. This might be relevant when the approach was anthropocentric when human beings considered themselves superior to all other life forms in the world but modern Human thinking has evolved and values the intrinsic value of nature. The relentless campaign by animal rights groups at the national and international level for better measures for animal welfare and protection bring me to the conclusion that whatever goes upon two legs(Humans) is not an enemy always as there are hundreds of them fighting for the rights of those who have four legs, or have wings. Therefore, the revised maxim ‘Four legs good, two legs better’ is relevant in today’s contex to.
( The author is Jamia Millia Islamia)
Follow our WhatsApp channel
