By Suhrith Parthasarathy
Tamil Nadu’s new jallikattu law presents complex constitutional issues on how we treat animals. It raises more questions than answers, some of which are likely to be at the core of the Supreme Court’s consideration.
Do animals have rights? If so, how are these rights to be administered, and against whom can they be enforced? If not, do human beings nonetheless owe an obligation to treat animals with care and compassion? Are any of these responsibilities inalienable, and to what extent can our Constitution be extended to include within its mandate a binding duty to ensure the safety and security of animals?
Some of these questions are likely to be at the core of the Supreme Court’s consideration, when it hears arguments on the validity of Tamil Nadu’s new law that permits the practice of jallikattu in the State. Despite the court’s judgment in 2014, in Animal Welfare Board of India v A. Nagaraja, where it struck down an earlier effort to legalise jallikattu, its verdict on the fresh challenge is anything but inevitable. The new law presents distinct and complex constitutional problems, and the questions it raises don’t have easy answers.
To overcome these hurdles, the Supreme Court may well have to resort to making substantial incursions into a law-making role, at the potential cost of endangering its proper place in India’s constitutional structure. But whichever way the decision goes, if the present dispute shows us anything, it is this: that the existing legal regime governing animal welfare in India is woefully inadequate and too easily malleable to accord animals even a reasonable guarantee of dignity and respect. What we need today, therefore, is a more sustained and more intellectually rigorous debate on how best to improve the welfare of our animals.
Rukmini Arundale’s efforts
The movement in India for better animal protection laws began soon after Independence. Influenced by the ideologies of the Theosophical Society, the acclaimed dancer Rukmini Devi Arundale, then a nominated member of the Rajya Sabha, introduced a private bill in 1952 that intended to replace the existing colonial era statute of 1890. “Of course, it is as well for us, absolutely right for us, to consider the question of preventing any cruelty to animals, not only because of the animals themselves but much more so… because of the human beings involved in it,” said Prime Minister Jawaharlal Nehru, in response to her bill. “…I entirely agree…that one test of civilisation — a very major test — is the growth of this feeling and practice of compassion.”
Ultimately Nehru requested Arundale to withdraw her bill, assuring her that his government would establish a committee to study the subject thoroughly, promising to introduce appropriate legislation at a future date. However, in 1960, when the Prevention of Cruelty to Animals Act (PCA Act) was enacted, some of the fundamental tenets of Arundale’s bill were missing — for example, the law created a blanket exception for experiments conducted on animals with a view to securing medical advancement. But notwithstanding those misgivings, the PCA Act, owing largely to Arundale, was still ahead of its times, in that it was based on an underlying belief that it was morally wrong for humans to inflict unnecessary pain on animals.
When, 15 years later, the Australian utilitarian philosopher Peter Singer first published his seminal book, Animal Liberation, generally considered the foundational work behind the modern animal welfare movement, his arguments were built on a similar thesis: that basic principles of ethical behaviour called for an end to the causing of avoidable suffering to animals. Singer argues against what he describes as speciesism, or the idea that human animals, simply by virtue of being human, possess a greater claim over moral rights than non-human animals do. Animals too, much like human beings, can suffer and feel pain, and, therefore, to treat humans as somehow special is akin, he says, to making classifications based on, say, race or sex.
Singer’s arguments can be best understood through an example he provides. “If I give a horse a hard slap across its rump with my open hand, the horse may start, but it presumably feels little pain,” he writes in his book. “…If I slap a baby in the same way, however, the baby will cry and presumably does feel pain, for its skin is more sensitive. So it is worse to slap a baby than a horse, if both slaps are administered with equal force. But there must be some kind of blow…that would cause the horse as much pain as we cause a baby by slapping it with our hand.”
If it’s wrong to inflict that much pain on a baby, Singer says, there’s simply no good reason to inflict an equivalent amount of pain on a horse. To consider otherwise is, in his belief, to act as a speciesist. Now, his interpretations have opponents at both ends of the spectrum. At one extreme end are arguments that treat animals as property, as capable of being freely exploited by humans for selfish purposes; at the other — and these represent more compelling arguments — are the writings of those such as the American philosopher Tom Regan. In his definitive 1983 book, The Case for Animal Rights, Regan argues that animals, at least sentient ones, possess basic moral rights, since they possess an inherent value, much like humans.
Therefore, a recognition of their rights requires us to fundamentally change the way we treat them. Some might view Regan’s arguments as taking things a step too far. If we were to see rights as concomitant with responsibilities, for instance, the question that begs asking is this: how do we impose duties on animals?
This conflict, on the true nature of animal rights, will likely be at the heart of the arguments to be advanced by both those for and against the new jallikattu law. Although the Supreme Court, in A. Nagaraja, appeared to suggest that animals possess a right to life, much like that guaranteed to human beings under Article 21 of the Constitution, the primary reason for the court striking down Tamil Nadu’s 2009 law regulating jallikattu was because the statute was repugnant to the PCA Act.
State vs Centre
Under India’s constitutional structure, both the Central and State governments can make laws on animal cruelty, but if the latter’s statute is contrary to the former’s, such an act must secure the President’s assent. And this is precisely the approach adopted by Tamil Nadu in enacting its law last month. This statute, which secured the President’s assent on January 31, amends the PCA Act and creates a specific exception for jallikattu. This means that the petitioners in the Supreme Court have to do more than just show that the PCA Act stands violated by jallikattu; they would have to prove that its practice infracts at least one of the fundamental rights guaranteed by the Constitution.
This threshold ought to prove hard to meet. The Constitution’s framers, after all, never intended to guarantee to animals any fundamental rights, and, what’s more, the bare text of the document hardly permits such a reading. To follow the path set in A. Nagaraja would require, therefore, a gargantuan leap in constitutional interpretation; it would necessitate a specific holding that an animal is a legal person.
Such a conclusion may be philosophically justifiable. Indeed, some scholars such as Steven Wise, an American lawyer, have made precisely such an argument. In his book, Rattling the Cage, Wise enlists a whole list of artificial entities that are considered legal persons: corporations, ships, partnerships, governments, and so forth. He also points to Indian examples, including a Supreme Court decision that held that the holy book of the Sikhs, the Guru Granth Sahib, was a juristic person, as too to the example of Hindu idols that are considered juristic entities. But if Wise’s argument were to be extended to the level of constitutional interpretation, were we to treat animals as our equals under Article 14, for instance, the anomalies that this would result in are enormous: not only would this render the jallikattu law unconstitutional, it would also open a Pandora’s box where a whole host of otherwise acceptable activities may come under challenge. But, equally, were the court to reject the petitioner’s argument, it would only serve to highlight the hollowness of the present animal welfare regime, where a simple legislative amendment is sufficient to topple the core values that ought to underpin a moral society, in which animals are treated with care and compassion.
Best practices elsewhere
The German example might provide us with some solutions. In 2002, Germany amended its Constitution to specifically mandate the state to legislate and protect animal rights within the framework of the constitutional order. This has meant that the federal constitutional court in Germany now has to weigh the dignity of animals against other liberties such as the right to freely practise religion or the right to conduct of medical research. Therefore, now, any legislative exception to animal rights — whether this involves slaughtering for food, or the use of animals for producing dairy — would have to be narrowly tailored, ensuring that animals’ welfare is protected to the greatest extent possible.
It’s clear that we need something similar in India to make rights of animals more unassailable. For a long time, as Martha Nussbaum, an American philosopher, has observed, the pursuit of global justice has required the inclusion of many people that were previously excluded as “fully equal subjects of justice”: the poor, ethnic, religious and racial minorities, women, the disabled, and immigrants, among others. There is, as she says, no obvious reason why we ought not to look beyond these barriers of our own species. For to continue to subject animals to the disdainful whims of human behaviour is to ignore the basic entitlements of justice.
Suhrith Parthasarathy is an advocate practising at the Madras High Court.