Do animals have a legal persona?

Naveen R Nath | Updated on October 08, 2020 GeorgePeters   -  Mlenny

A writ petition in the Supreme Court argues that animals have legal entitlements. A look at the Constitution and the judiciary’s progressive animal rights record

Kochi resident Narayanan Prakash did the unthinkable. In April, during the initial stages of the lockdown, he approached the Kerala High Court seeking a vehicle pass to ensure that his cats got their favourite biscuits. Not only did the court direct that the pass be issued, it also opened its doors to legal redress for four-legged beings. The court traced the right of the petitioner and, incidentally, of his cats to Article 21 — a facet of the citizen’s right to life, liberty and privacy. It also relied upon the Supreme Court’s (SC) landmark judgment in the 2014 Jallikattu case which declared that an animal’s right to humane treatment was part of “life”, defined expansively to include the lives of animals. The court bolstered its conclusion by invoking Article 51-A[g] — a fundamental duty that obliges citizens to show compassion towards living creatures.

Last month, the SC Bench headed by the Chief Justice SA Bobde entertained a writ petition seeking to declare animals as having a legal persona. Rarely does the top court entertain a writ petition directly and its inclination to explore this facet of animal rights will be watched closely. Do animals then really have a right to claim a legal personality?

Last year a division bench of the High Court of Punjab and Haryana declared that all animals, birds and aquatic creatures were legal persons. The court passed its 104-page judgement while hearing a case where two trucks were confiscated after they were found packed with 29 cows.

Indian society essentially views animals as economic assets. But improved standards of living and education have shown a rise in levels of sensitivity on animal issues.

Take India’s huge population of stray dogs. The SC and high courts in Delhi, Allahabad, Mumbai, Karnataka and others have consistently protected the rights of strays. At present, codified laws ban the relocation of strays from their home territories. This is a significant evolution in the development of the legal persona of animals — the right to their social and physical habitat. Other aspects include the right of humans to feed strays in a public space, which has also been protected by court judgments.

In July this year, the Nagaland government banned the sale of dog meat, a popular and traditional source of dietary protein in the state. Strangely this politically sensitive issue evoked only mild opposition. What about the protection of our social customs, which are guaranteed by the Constitution under Article 371 A, many Naga people asked. This — the so-called clash between human and animal rights — is an ongoing debate. But the underlying message appears to be a call for a more compassionate society.

The performance of big cats and other wildlife in circuses was banned in 1998 by the government, which amended the Prevention of Cruelty to Animals Act. The amendment was upheld by the SC in 2001, repelling arguments about the effect on livelihoods and unreasonableness of the ban. Gradually, the list of animals banned from circuses was expanded. In 2015, the SC made it mandatory for all captive elephants to be registered nationwide. Directions were issued to ensure that temple elephants were not subjected to cruelty.

Civil society in India has been quick to adopt animals as social companions. A look at the mushrooming pet salons, pet cafes and the easy availability of pet foods is telling. Recently, Prime Minister Narendra Modi even urged Indians in his monthly broadcast to adopt local dog breeds. The appeal is an endorsement of animals being a part of society.

In India, pets aren’t allowed on public transport, inside most restaurants and malls, unlike in Europe, where pets enjoy almost unrestricted access to public spaces and facilities. Should pets then not have an equal right to travel with their pet parents ? Whether such questions get resolved through court interventions, only time will tell.

Wildlife protection is another legally distinct debate. The considerations here are purely ecological and aim to conserve the diversity of species, gene pool and habitats. Despite raging debates on whether animals should be given such importance in a society with significant human deprivation, the record of the Indian judiciary on animal rights has been consistently progressive and liberal, indeed some would say path-breaking. A Constitution compassionate towards living creatures has ensured this stance.

But there is more distance to cover. For instance, several countries have ratified the European Convention for Protection of Pet Animals, which came into being in 1992. The convention prevents pet abuse, stipulates their right to food and water and regulates breeding, sale and related matters. Such charters set out broad guidelines defining pet rights.

In developed countries adjudicating custody arrangements for pets can be as intense as custody battles for children in matrimonial disputes. Pet custody legislations in the US embrace the concept of a ‘companion animal’. Though the primary basis of this arrangement is treating pets as property, the courts have evolved human-like standards in awarding custody reckoning the preferences of pets, ordering “petimony”, visitation rights, etc. In the West pet rights have even been tested, albeit negatively, in inheritance laws. Many American state legislations, however, provide for establishing a trust to care for pets named in the owner’s will. Even though India does not have any such special legislations, existing legal frameworks in matters of matrimonial disputes allow for claiming pet custody.

There is a steady evolution towards defining animal rights beyond mere existence. The Indian society and judiciary have been progressive in this evolutionary process. Animals will definitely come to be clothed in a legal persona. And it will be an evolution not the kind Darwin theorised but one made entirely by man himself.

Naveen R Nath is a Supreme Court advocate

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Published on October 08, 2020
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