By Prof Upendra Baxi

The status of the rights of “animals” and entities in nature (in my words, respectively, NHAP—non-human Animal persons—and EIN—entities in nature) has been addressed by law primarily by legislative law and judicial interpretation. In 1960, to its great credit, the Indian Parliament decided to prohibit and punish the imposition of “unnecessary pain and suffering” for ownership and use of NHAP. Even so, it decided to draw a distinction between preparation and destruction of NHAP for food, and use of NHAP for sports, always subject to this threshold prohibition and punishment.¹

The Act does not prescribe ethical or spiritual vegetarian or even vegan cuisine and diet for all Indians, who are and remain religiously, culturally and ethnically diverse. Further, Part IV of Fundamental Duties require respect for “composite culture”, but even otherwise, a duty of toleration and respect for difference has been embedded in the Constitution since the time of its adoption.

A new constitutional Directive Principle of State policy, paramount in the making of laws and policies, is also added by the 42 Amendment, by Article 48-A which states: “The state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”

In 1987², Justice O Chinampa Reddy addressed all courts by saying profoundly that the Supreme Court is “bound” whenever a problem of ecology is brought before it. He said that Article 48A of the Constitution and Article 51A(g) prescribed the fundamental duty of every citizen of India “to protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures”. It will not do to “shrug its shoulders and say that priorities are a matter of policy and so it is matter for the policy making authority” when “called upon to give effect to the Directive Principle and the fundamental duty”. The “least” it can do is to “examine whether appropriate considerations are borne in mind”; indeed, it may “go further, depending on the circumstances of the case and give necessary directions”. However, an “attempt to nicely balance relevant considerations” must remain the primary job of “the concerned authority”, who must act bona fide and attend to all “relevant considerations”.

The Supreme Court in Nagaraja,³ did not shrug its constitutional shoulders and outlawed two common sports practised in Tamil Nadu and Maharashtra, popularly referred to as “Jallikattu” and “Bullock Cart Race”, saying they were contrary to the provisions of the Act. At that point of time (May 7, 2014), a Tamil Nadu Regulation of Jallikattu Act, 2009, which regulated the sport, was held void on the ground of doctrine of repugnancy, in view of Article 254 (1) of the Constitution.

The Court squarely addressed the issue whether bulls might continue to be trained as performing animals at events such as Jallikattu in Tamil Nadu and bullock cart races in Maharashtra, Karnataka, Punjab, Haryana, Kerala and Gujarat in the manner ordained by “the customs of common community or practice traditionally under the customs or as part of culture in any part of the country”. The Court concentrated on the unnecessary pain and suffering of bulls, and NAHP generally, in such sports.

Astonishingly, the Jallikattu-II decision, rendered on May 18, 2023⁴, holds otherwise. Justice M Joseph, wrote for the unanimous Court that bulls can be regarded as “performing animals”, but also upheld the “concept of ownership of animal by an individual and such individual’s right to employ these animals in the aforesaid sports”. Emphatically, its “jurisdiction, however, does not extend to provide an absolute protection to the animals from any manner of infliction of pain and suffering”. But the Court also seems to affirm that “it has been broadly held that animals have inherent right in natural law to live a dignified life without infliction of cruelty and this principle is sought to extended to proscribe Jallikattu, Kambala and Bullock Cart Race” (from Para. 36). I say “seems” because the Constitution Bench does not ultimately recognise “animal” rights as fundamental, constitutional or “natural” and holds that “such rights would be in a nature as determined by the appropriate law-making body and not by judicial interpretation” (Para 22). Deeply puzzling is the statement on “the question of conferring fundamental right on animals we do not have any precedent”.⁵

The Court, of course, recognises that certain fundamental rights extend to “persons”, not only to citizens.⁶ But the fact is that NHAP are not endowed with full personhood; only HAP may have the right (the Court casts this as an “obligation”) to represent them in law. But suppose Parliament abolishes the Act, or dilutes it or the jurisdiction conferred upon the Animal Welfare Board of India, and the citizens ignore the Fundamental Duties in this regard, will there be any constitutional obligation to avoid unnecessary pain and suffering to NHAP?

The Court may be justified in holding that Nagaraja II faced a wholly different situation because state amendments to the Act now ensured full compliance with its principal objective that owners of “animals”, co-citizens, and other persons must and thus the amendments did not render the “the provisions of Sections 3, 11(1) (a) and (m) of the 1960 Act… otiose” (Para 32), repelling thus the indictment that the amendments were only “cosmetic changes”.

Is the Court justified saying that whether Jallikattu has become “integral part of Tamil culture or not requires religious, cultural and social analysis in greater detail, which…is an exercise that cannot be undertaken by the Judiciary”? We may note here that in many a landmark case (like Vishaka which issued directions regarding sexual harassments proclaiming the law and policy till Parliament enacted a law on the subject or the indefinite stay order issued by the Supreme Court putting in abeyance the three farm laws recently enacted by Parliament), the Court did not allow a “debateable” issue to generate a judicial hands-off stance. Is it not an example of judicial abdication to say that “cultural heritage” of a particular state is best “concluded in the House of the People”? (Para 40).
It is also, at times, constitutionally sinister to even think that dominant or even overwhelming legislative majorities can decide, in a one-size-fits-all-manner, the nature, content and scope of cultural heritage. Destruction of diversity, even if it were possible, is impermissible in the Indian constitutional order. Chief Justice (Dr) DY Chandrachud recently rightly hailed the Constitution as an “essay in plurality”.

“Culture” is difficult to define, but the Court may not rely on legislative finality. The Court has, rightly, held steadfast constitutional judicial review (CJR). CJR enables disciplined articulation of essential features. No doubt, there are many social cultures to which the development of CJR must pay heed, but paying heed does not always signify bowing in reverence to the policymakers or the legislature. The presumption of constitutionality of an Act is a classic example of deference to legislative cultures, but one must always recall that it is basically a presumption that the court makes to shift the burden on the other side. The requirement of constitutional validity of a statute is always and as a matter of the Third Schedule oath, to be reasonably and responsibly adjudicated by the Court.

Constitutional elites may do well to recall UNESCO’s statement: “The protection and promotion of culture is a human rights imperative”, the “right to take part in cultural life guarantees the right of everyone to access, participate in and enjoy culture, cultural heritage and encouraging cultural pluralism.” It calls for a “human-centred approach” to development based on mutual respect and open dialogue among cultures “which is a key to safeguarding heritage, strengthening creative industries, and encouraging cultural pluralism”. Entirely eliminating all speciesism from the above quoted observation, it remains true to say that the full realisation of this right depends on concrete steps for the conservation, development, and diffusion of culture.⁷ As I have stated in my Future of Human Rights,⁸ human rights are not a culture of no cultures but a culture of many cultures and to its tasks and challenges all nations come to as equal strangers.

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

Footnotes

1 Sections 3, 11(1)(a) and (m) of the Prevention of Cruelty to Animals Act, 1960 (hereafter referred to as an Act).
2 Sachidanand Pandey vs State of West Bengal, AIR 1987 SC 1109.
3 (2014) 7 SCC 547 (per Justices K. Radhakrishnan and Pinaki Chandra Ghosh with the former writing the opinion of the Court). The case will hereafter be referred to as Nagaraja I and Animal Welfare Board of India will be abbreviated as AWBI.
4 Writ Petition (Civil) No. 23 of 2016, decided by Justices M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar.
5 See as to this the authoritative work of Partha P. Mitra, Animals and the Law (Delhi, Thompson Press, n, 2019).
6 Space constraints prevent any analysis of the arguments based on Article 14, to which the Court gives brief attention only to hold the state amendments ‘reasonable’ [Para 5] and considerations of relevant laws being arbitrary [Para 31].
7 https://en.unesco.org/human-rights/cultural-life
And Article 27 of the Universal Declaration of Human Right stipulates that: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”.
8 3rd edition, Chapter 5, (1013; Delhi, Oxford University Press 14; 2014; 4th edition now in press, 2023). I deal there with many related matters, including multiculturalism and the right to invent a culture.

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