Justice that also makes space for the animal world Premium

There must be a collective obligation to extend our commitment to justice not only to human beings but to animals too

Consider this example, from the philosopher Martha Nussbaum’s book, Justice for Animals: Our Collective Responsibility. An animal, Susan, goes about her life, doing all the things that an animal of Susan’s sort would. But while pursuing her goals, she runs into various hurdles, a few frivolous, and unimportant to her life, and a few that are more serious — an illness, a storm that wrecks her home, and so forth. So far, it is clear that while Susan has met with problems, she has not suffered injustice. But, say, just as Susan is going about her business, another creature encroaches on her space, stops her from reaching her goals. We might still not have entered the realm of injustice. What, though, if Susan’s home was destroyed deliberately by a creature that ought to have known better? Suppose Susan was kept captive in unsanitary conditions, was not allowed to walk about, and suffered violence at the hands of the other creature. Nussbaum says, if Susan were a human being, it would be apparent to us that she had suffered injustice. Should the fact that she is a non-human animal matter? Should not our conception of justice make space for Susan?

If we were to see the law as a way of achieving justice, one would think that our ideation of constitutional rights will partake a commitment to welfare not just of human beings, but of other animals too. No doubt the text of the Constitution, the rights that it guarantees, are aimed at “persons”. To confer personhood on animals will unquestionably bring with it various vexing quandaries. Should this, though, stop us from seeing the Constitution as a tool for ensuring justice for animals? Is there not enough room available within the abstract guarantees of the Constitution for a more enlightened approach to animal welfare?

These were some of the questions that were at stake before the Supreme Court of India in The Animal Welfare Board of India vs Union of India, where, among other things, the validity of a Tamil Nadu law permitting the practice of jallikattu was put to challenge. The case offered a signal opportunity for the Court to usher India’s animal welfare code onto a fairer path. But, regrettably, the judgment delivered by a five-judge Constitution Bench on Thursday, May 18, 2023, not only falls short on delivering a robust jurisprudence for the future but also represents a retrograde effort at resolving the conflict. The sport of jallikattu involves men competing against each other by holding on to the humps of agitated bulls that are released into an open arena. The Supreme Court, in 2014, had previously declared the practice illegal. There, in A. Nagaraja, a two-judge Bench held that bulls could never be performing animals, that they were anatomically ill-suited for competition, and were effectively being forced into participating in a practice that caused them unnecessary pain and suffering. Therefore, in the Court’s belief, any conduct of jallikattu breached the Prevention of Cruelty to Animals Act, 1960.

To overcome the judgment, the Government of Tamil Nadu, in 2017, introduced a series of amendments to the 1960 Union law. Through these changes, the State ensured that jallikattu was altogether exempted from the protections that the statute offered. The government said the law (which later received the President of India’s assent) was made with a view to preserving the State’s tradition and culture. A raft of arguments was made in assailing the amendment. First, petitioners claimed that the law had failed to overcome the verdict in A. Nagaraja, where jallikattu had categorically been found unlawful. Second, they argued that the Government of Tamil Nadu lacked the legislative competence to amend the Prevention of Cruelty to Animals Act in a manner that diluted its safeguards. Third, they asserted that animals too must be treated as persons, and to that end, jallikattu must be seen as impinging on the right to life, guaranteed by Article 21 of the Constitution.

The Court’s response to these arguments is not only deeply dissatisfactory but is also often contradictory. This is especially true in its approach to claims of personhood. The Court begins by holding that there is no precedent bestowing fundamental rights on animals in India. It would, it says, be an act of judicial adventurism to confer rights on animals that have otherwise been bestowed on human beings. But having said this, the Court then claims that the amending law can still be tested on an anvil of reasonableness that is contained in Article 14 of the Constitution. But that right too, it says, cannot be invoked by any animal as a person, but only “at the instance of a human being or a juridical person who may espouse the cause of animal welfare”.

It is difficult to understand the rationale for this distinction. The right to equality guaranteed in Article 14 too, much like Article 21, is conferred only on persons. It reads as follows: “The State shall not deny to any person equality before the law or the equal protection of the laws.” Now, if animals are not persons, as the Court holds, then surely the law cannot at the same time be tested on Article 14, since the right to equality can only be asserted by juristic entities. In any event, as it happens, despite these assertions, the judgment contains no ensuing analysis on whether the Tamil Nadu amendments infringe upon the various requirements of equal treatment.

To be sure, on a reading of the Constitution, the view that animals are not persons and therefore do not enjoy fundamental rights is not implausible. But should such an interpretation mean that a law, which fails to foster animal welfare, or encourages cruelty to animals, be treated as beyond judicial review? Envisage the following: should the Union government repeal the 1960 law, leaving us with no statute governing animal welfare, would the courts hold the repeal to be a fair exercise of power? If fundamental rights are not invoked, our courts might have no option but to hold so.