FREE AS AN (INDIAN) BIRD

640px-Raja_Ravi_Varma,_Lord_GarudaThree weeks ago, the high court of Delhi at New Delhi (India) proclaimed the following:

“This court is of the view that running trade of birds is in violation of the rights of the birds. They deserve sympathy (…). Birds have fundamental rights to fly in the sky and all human beings have no right to keep them in small cages for the purpose of their business or otherwise”(Decision, para. 4.).

It should not be assumed that this decision is an isolated act performed by an eccentric judge. While in New York lawyers are currently fighting to impose the very idea that animals have rights, Indian courts and tribunals seem to be at peace with the notion.

The above-mentioned judgement is in fact resting on earlier and similar jurisprudence. Among these decisions, the 2014 Supreme Court Judgement in the case of Animal Welfare Board of India vs A. Nagaraja & Ors is considered a landmark. In this post, I would like to take the time to study this 2014 decision which – I think – is of great interest for lawyers because it offers a good example of how animal rights can be articulated with human needs through a simple test of necessity. International lawyers will be particularly interested in the fact that this test was partially inspired by international norms and regulations.

Arbitrating animal and human needs through a necessity test

Before going any further, it has to be underlined that India is a country where the well being of animals has had a legal importance for quite some time. Symptomatic is art 51 A (g) of the Constitution of India:

“It shall be the duty of every citizen of India (…) to have compassion for living creatures (Indian Constitution, Art. 51, A. (g)) ».

That being said, in India as in most part of the world, animals are slaughtered on a daily basis and cruelty towards them or ill treatments are common, as the facts before the Supreme Court proves. Indeed, the Animal Welfare Board of India vs A. Nagaraja & Ors case did not concerned some random or isolated events but two well established Indian traditions: the Jallikatu and the Bullock-cart race. The following videos are self-explaining as to what these practices entail for the animals involved.

Bullock-cart race

Jallikatu

The court could have handled this matter as a simple case of animal mistreatment (which in India is punishable under the Prevention of Cruelty to Animals Act (1960)). Instead, it decided to develop a whole legal construction centred on the idea of a necessity test.

The construction is based on the conviction that animals should benefit from a general presumption in favour of their well-being. The Supreme Court states it from the very beginning of the judgement:

« We have to examine the various issues raised in these cases, primarily keeping in mind the welfare and the well-being of the animals and not from the stand point of the Organizers, Bull tamers, Bull Racers, spectators, participants or the respective States or the Central Government, since we are dealing with a welfare legislation of a sentient- being, over which human-beings have domination and the standard we have to apply in deciding the issue on hand is the Species Best Interest, subject to just exceptions, out of human necessity (Decision, para. 12).

The logic is set. The “weakest species best interest” should take precedence over any other consideration. This logic is further reinforced by the declaration of the court that: “In the matter of welfare legislation, the provisions of law should be liberally construed in favour of the weak and infirm (Decision, para. 26).” And as if it was not clear enough, the courts further states that:

“The court has also the duty under the doctrine of the parents patriae to take care of the rights of the animals, since they are unable to take care of themselves as against human beings (Decision, para. 26).”(This article will help if you are unfamiliar with the notion of parens patriae).

Once this general principle is settled, the Court moves on to the demonstration of its core rule: Expect when they pass a necessity test, human actions must respect animals fundamental rights.

The statement rests on the idea that animals do have fundamental rights. According to the court these rights at least include the right of life defined not only as the right to exist but as the right to “live a life with some intrinsic worth, honour and dignity” (Decision, para. 62).” The court also recognizes the right of animals to be free from human torture. This latter right is simply seen as a corollary of the interdiction for humans to harm animals unnecessarily (Decision, para. 62).

As to the necessity test, the court listed the valid grounds on which a human could rest to justify the violation of an animal’s fundamental rights. Aside from the “religion exception”, the court only recognizes:

“the purpose of advancement by new discovery of physiological knowledge or of knowledge which will be useful for saving or for prolonging life or alleviating suffering or for combating any disease, whether of human beings, animals or plants and also destruction of animals for food (Decision, para. 60).”

Some will say that these exceptions are still quite large. And to a certain extend they are. But one should not underestimate what the Court did which is to turn the anthropocentric logic on its head by making “animal respect” the rule and “human necessity” the exception.

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Unsurprisingly, the court concluded that the Jallikatu and Bullock-cart race traditions were illegal partly because of the contradiction with the Prevention of Cruelty to Animals Act and partly because these traditions were not covered by the doctrine of necessity that the court built during the case.

As mentioned in introduction, the case is of particular interest for international lawyers as the court partially based its judgment (and in particular its doctrine of necessity) on international norms and regulations, including the Whaling Convention, the UNEP Biodiversity Convention (1992) and the World Charter for Nature (UNGA, A/RES/37/7). The court concludes from the study of these norms and other domestic texts that:

“(…) what emerges is that every species has an inherent right to live and shall be protected by law, subject to the exception provided out of necessity. Animal has also honour and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attacks” (Decision, para. 60).”

Another interesting detail, is that the court took the opportunity of this case make a statement regarding the “five freedoms” laid out by the World Organisation for Animal Health (Decision, para. 60):

  1.  freedom from hunger, thirst and malnutrition;
  2.  freedom from fear and distress;
  3. freedom from physical and thermal discomfort;
  4. freedom from pain, injury and disease; and
  5. freedom to express normal patterns of behaviour.

The court declared that those freedoms (that are originally only guidelines!) should be respected by the states, Central Government and other Indian public entities of India. The Court went actually as far as saying that these five freedoms were for the animal equivalent of the fundamental rights provided to humans by the Indian constitution (Decision, para. 54).

*              *

Because of its simple yet  comprehensive way of arbitrating between animals and human needs and because of it use of international standards, I think this decision was worth a post. It will at least give hope to all the animal defenders (especially those waiting for the New York judgement) to know that the Supreme Court of India is definitively on their side.

Vincent Chapaux – juin 2015

Images :  Garuda (< wikipedia) and “Free as a bird” from Florence Robbiano.

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