By Dr. Sohini Mahapatra*

Animals have been one of the most deprived classes among living beings, not only in India, but in several countries across the world. The inter-dependence of humans and animals is a known fact. However, the worth of animals is seldom acknowledged. India, in particular, displays one of the most diverse portraits of animals – from being worshiped to being sacrificed, from being viewed as property to being subjects of welfare. For example, under the Indian Penal Code offences against animals are placed under the category of ‘Offences against Property’, which still holds well with no amendment to it. At the same time, India has welfare legislation for animals, the Prevention of Cruelty to Animals Act, 1960. Furthermore, with recent judicial decisions the courts are moving towards a rights-based approach for animals. Thus, there exists not only an enormous gap but also an obvious dichotomy in the status of animals in India.

This paper analyzes the evolution of animals in India viz-a-viz Kautilya’s Arthashasta, Gandhian philosophy, Justice Krishna Iyer’s Animal Citizens as well as significant judicial decisions, such as A.Nagaraja[1]and Narayan Dutt Bhatt[2]. In addition, the paper also delves into how the Indian terrain is making a tectonic shift from a welfare-oriented approach to a rights-based approach. The author conjectures that a grey area of animal jurisprudence, between welfare and rights is gradually growing in India, which requires more focus in order to enhance the status of animals.

Keywords: Animal law, the evolution of animals, offences, animal rights, animal jurisprudence, judicial decisions.

Introduction

“The time will come when men such as I will look upon the murder of animals as they now look upon the murder of men.”

– Leonardo Da Vinci

This quote by Leonardo Da Vinci encapsulates, perhaps, the highest possible status for animals. While it is true that it might seem quite Utopian now, but nonetheless it cannot be denied that there has been definite progress in the status of animals in India, at least in theory and principle. The perception of humans towards animals has its genesis in many factors, such as religion, customs, culture, personal experience, etc. These factors and more have shaped the jurisprudence of animal law since ancient times and consequently shaped the laws and status of animals as we witness today. The animal jurisprudence can broadly be categorized into a rights-based approach and a welfare approach. The status of animals and whether they deserve rights or not, have been quite a debatable subject with equally conflicting arguments arising to and for the same. India, through its legislation, Prevention of Cruelty to Animals Act 1960 (PCA Act), follows a welfare-based approach as opposed to an extremist right-based approach. However, in recent times, there has been a rather reformist shift from a purely welfare based approach to a moderately rights-based approach.

The status of animals in India is fairly dichotomous in nature. For the longest time, animals have been viewed and treated as property with its welfare legislation being in existence at the same time. For example, under the Indian Penal Code, offences against animals are placed under the chapter ‘Offences against Property’. On one hand, animals are considered sacred and worshiped, and on the other hand they are subjected to cruelty and suffering. While there is a profusion of foreign jurisprudence on animal law, the corresponding Indian terrain remains minimal. The trajectory growth or fall, whatever the case may be, has primarily been through judicial discourse rather than jurisprudential contribution. However, the evolution of the status of animals can clearly be understood from different timelines in history, ranging from Kautilya to Justice Krishna Iyer and to modern day judgments. Within the scarce Indian jurisprudence on the subject, Kautilya, Mahatma Gandhi and Justice Krishna Iyer, in fact reflect a gradual progression. While Kautilya views animals as property and objectifies them, Gandhi’s philosophy is more compassion-driven, and Krishna Iyer gives them a citizen status. The author in this paper theorizes that the status of animals in India is undergoing a slow yet impactful change. Through significant judicial decisions, animals are now being recognized as legal entities capable of being bestowed with rights. The practicality of it all certainly remains to be tested, but there is a hopeful shift from human-property relation to human-legal person relation.

Kautilya’s Arthshastra

The philosophies pertaining to animals, in India, can be traced back to ancient history in Kautilya’s Arthashastra. One of the ancient texts offering a viewpoint on animals, Arthashastra[3] is principally an exhaustive literature on economic policies, military strategies and political artifice of running a kingdom. Hence, the position and references of non-human animals within the same, has been incorporated from the perspective of enabling better governance of a kingdom. The reference to animals is neither from a welfare-based approach nor from a rights-based approach, but more in the context of objects or property. Under his policy for the Creation of Ministers, Kautilya refers to animals as ‘dumb animals’ from whom the attribute of faithfulness should be adopted.[4] He gives the example of cows, who stick to their herd no matter what. It indicates that there is a recognition of cognitive ability in animals to be faithful. Hence, although there is no forthright discussion or acknowledgment of their mental faculties, indirectly attributing them with qualities that require a minimum mental status may suffice as a deduction.

Nonetheless, having said that, the author does not argue that Kautilya perceives animals as anything more than objects. For instance, under the chapter for the Division of Land, Kautilya talks about demarcating forest land for the purpose of royal sports. Such land should be full of ‘harmless animals’, and others such as tigers, elephants and bisons.[5] It may be understood that Kautilya either perceives animals as objects for beautification or as targets of royal sports, such as hunting. This is asserted by the fact that he subsequently refers to animals as ‘game beasts’.[6] Animals are also included under property for an inheritance, where specific animals, such as goats, are considered as ‘special shares’ during the division of property for inheritance.[7]

On the other hand, irrespective of the status of animals, Kautilya prescribed some of the harshest punishments for crimes against certain specific animals, such as elephants. Any person guilty of killing an elephant shall be punished with the death sentence. There are also other dictates, recurring throughout the text, specifically prescribed for elephants, elephant stables, elephant forests, etc. perhaps owing to their relevance in the royal kingdom.

It can also be implied from the Arthashastra that Kautilya approved of the slaughtering of animals. In his dictate of collection of revenues, he specifically mentions about revenue to be collected from slaughter-houses.[8] Apart from slaughtering, there was also due recognition of usage of animals and their parts, such as skin, wool, tusks, horns, teeth, hoofs and so on. However, there are punishments prescribed for committing crimes, such as killing, entrapment or molestation, of protected animals.[9] Any person guilty of such offence shall be punished with ‘highest amercement’.[10] Likewise, for offences against other animals, different grades of punishments are listed.

The Arthashastra also has a specific chapter on Superintendent of Cows,[11] for supervision maintenance and protection of cattle. He also deals with remedies to be applied to cows and other cattle in case of diseases.[12] Likewise, Kautilya dedicates a separate chapter for Superintendent of Horses[13] and Superintendent of Elephants,[14] wherein training, maintenance, upkeep of these animals are provided.

Kautilya’s Arthashastra, as an ancient reference of Indian legal discourse, can be inferred to be far away from the rights-based approach, yet not close enough to the Welfarist ideology either. The focus is mainly on the efficacious economic welfare of the kingdom, rather than the well-being of animals per se. Animals with substantial economic value to the kingdom, have been given more importance as opposed to animal welfare in general. However, what may be understood is that he was certainly not a rights oriented approach.

Gandhian Philosophy

Mahatma Gandhi, an ethical leader in world history, is known for his teachings for compassion, non-violence and ahimsa. However, his teachings and ideals are not restricted to human beings alone. Mahatma Gandhi’s famous quote “The greatness of a nation and its moral progress can be judged by the way its animals are treated”, suggests that Gandhi held compassion and humane treatment towards animals as an essential component for the moral growth of any country.

This philosophy of Gandhi can be traced from his available writings, which run into a total of hundred volumes.[15] Gandhi does not propound a particular theory for animal well-being as such, but emphasizes more on their importance and need for compassion towards them, through letters and speeches. He expounds these concepts by dealing with issues of animal husbandry, agriculture, animal sacrifice and so on. He was also a chief patron of vegetarianism.[16] Apart from the general well-being of animals, Gandhi was also more concerned about cattle-problem.[17]

Gandhi endorsed compassion for the ‘lower animal world’ and urged for kindness towards them.[18] He emphasizes that “more helpless the lower life, the greater should be our pity.”[19] The choice of words by Gandhi, imply that his philosophy was based more on mercy and sympathy, rather than on equal or similar rights of non-human animals with that of humans. The burden is more on the duty of a human to ensure the well-being of an animal, rather than the animal’s right to demand such duty. Thus, even Gandhi did not propound a rights-based approach, but rather a welfare approach. Although he did not support the killing of animals for meat, he did support their use in activities like animal husbandry. This further implies that he was not an abolitionist approach.

In one of his writings, he has specifically dealt with the issue of stray dogs, under misplaced kindness, where he condemns the practice of giving sweetmeat balls to them.[20] He rather stresses that all dogs should be kept as pets and that catching dogs from one place and releasing them in unfamiliar surroundings elsewhere is actually an act of violence.[21] He, in fact, predicts the destruction of stray dogs in the future and urges for a solution based on ethical principles.[22] Furthermore, he also explicitly addresses the issue of cruelty to animals as a crime, which needs to be dealt with expeditiously.[23]

Much like Australian philosopher Peter Singer, even Gandhi urges for compassion towards animals on the ground of speciesism, although not using the term in particular. Gandhi expresses that sympathy should not be restricted to our own species only, since there is nothing admirable about this quality.[24] It should extend beyond our own species especially for the weak, helpless and dumb animals.[25] Referring to animals as ‘brothers and sisters’, Gandhi highlights the similarities between humans and non-humans, particularly on the ability to feel happiness and suffering, which he asserts should be the basis of treating them humanely.[26]Much alike to Bentham’s utilitarian philosophy, focusing on the ability to experience suffering, Gandhi also urges humans to be more duty-oriented towards animals and be their ‘elder brethren’.[27]

Gandhi repeatedly presses for compassion, by citing several incidents and instances that he had witnessed. He draws a parallel with human rights, wherein striking a human being is considered as abuse but the same is not thought to be applicable for non-human animals.[28] Unlike humans, animals lack the ability to express their suffering or free themselves from it, hence it imposes a corresponding two-fold duty on humans to ensure the same.[29]

Gandhi expresses that ahimsa does not mean only refraining from killing an animal, but also includes acts of injury and endorsement of such acts as well.[30] Adding further, he states that refraining from non-violence against animals, ‘wherever prevention’ is possible, also amounts to a breach of ahimsa.[31] The phrase ‘wherever possible’ implies that it is accepted that animals are or will be subjected to suffering in certain forms; however, what should be kept in mind is to refrain from inflicting those harms where possible. Therefore, it may be inferred that the Gandhian philosophy is also inclined towards the doctrine of necessity, as adapted under the PCA Act, focusing on not inflicting ‘unnecessary harm and suffering’.

Gandhi was extremely critical of the practice of offering animals as a sacrifice before deities. He condemned it expressing that such obnoxious practices portray a combination of both knowledge and ignorance in the country.[32] He states that the practice of sacrifice, even if justified with the intention of the public good, should not entail the suffering of animals. It is like an anti-thesis, where for the good of one living creature, the other has to undergo suffering. [33] He further compares animal sacrifice to be abominable as practices of untouchability and Devdasi institution.[34] He repeatedly urged people to relinquish the practice of sacrificing animals as a mode of appeasing the deities.[35]

Gandhian philosophy is demonstrative of not two distinct divisions of welfare and rights, but more of ahimsa as the foundation. It may also be argued that Gandhi’s philosophy of ahimsa is actually what the Western schools of jurisprudence, whether welfare or rights, intend to achieve. However, in modern times, whether or not Gandhian ideals and writings with respect to animals have permeated into the legal landscape remains debatable. It perhaps remains more of an idealistic notion, than being subsumed into actual legal literature as such.

Justice Krishna Iyer’s Animal Citizens

Post-Gandhi there has been a long and lamentable gap in Indian scholarly discourse on animal jurisprudence. It is only with Justice Krishna Iyer’s contribution to the realm that there has been some sort of redemption. Justice V.R. Krishna Iyer, a visionary of modern Indian legal jurisprudence, has addressed the issue of animals in his work ‘Towards a Natural World’.

Justice Iyer propounds a new school of thought by referring to animals as ‘Animal Citizens’.[36] Besides a philosophical stand, Iyer advances an argument based on the legal rationale. He explicitly states that a duty has been cast on the State and human citizens through Articles 48A and 51A of the Constitution, which makes “justice to animal citizens is as fundamental as social justice is to exploited people.”[37]Iyer’s idea is to focus on a symbiotic relationship between humans and non-human animals, by creating a Universal Animal Order similar to the World Human Order.[38] He asserts a “new pluralism of human and animal mutuality”, which can be achieved through mass awakening and consciousness.[39] Without which the legislation, the PCA Act would be a dead letter.

Furthermore, he ascertains that ‘compassion to all living creatures’ as enshrined in Article 51A (g), is the foundation for animal welfare and recognition of animal citizenship.[40] This path-breaking and profound idea, however, has not been elucidated or deliberated further by Iyer. He has not delved into the legal nuances that can actually extend Article 51A(g) to animals in order to grant them citizenship status. Perhaps, due to this, Iyer’s concept of ‘animal citizens’ has remained rather uncelebrated. Even the judiciary, in its plethora of cases pertaining to this field of law, has remained rather oblivious to it. The concept of ‘animal citizens’ or Krishna Iyer’s contribution to the same has hardly been referred or acknowledged by the courts. The reliance is more on foreign jurisprudence and Singer’s idea of speciesism than Iyer’s concept of animal citizenship. While it is appreciated that the Courts have applied foreign jurisprudence, perhaps, if this concept is further deliberated upon in the judicial discourse, it can open new dimensions in the field of animal law.

‘Personhood’ Through Judicial Discourse

Adding further to Gandhi and Iyer, the contribution of the judiciary in enhancing the status of animals has been rather significant. The path-breaking judgment that sent a wave across the entire nation, and globally, opening a new dimension of animal law jurisprudence in India is that of Animal Welfare Board of India v. A. Nagaraja and ors.[41]It is pertinent to discuss the nuances of the decision delivered by the Apex Court at length to understand the astuteness of the ratio.The case encountered a collision between “rights of animals” under the Indian Constitution with “culture, tradition, religion and ethology.” The petition was a set of two cases pertaining to Jallikattu and bull/bullock cart races held in Tamil Nadu and Maharashtra, respectively. The AWBI had moved the Court seeking a total ban on the practice of Jallikattu and bullock cart races in both the States on two grounds – firstly, the practices being violative of Sections “3, 11(1) (a) and (m) of the PCA Act,” as bulls were not ‘performing animals’ within the meaning of the Act. They also challenged the “Tamil Nadu Regulation of Jallikattu Act, 2009” (TNRJ Act) for not being in consonance with the primary legislations, i.e. the PCA Act.

In 2011, “the Ministry of Environment and Forests,” issued a notification prohibiting exhibition and training of bulls. However, eventually the Ministry decided to “exempt bulls participating in Jallikattu from the purview of the notification” in order to balance the interest of animals as well as the “historical, cultural and religious significance of the event.” Hence, the Court at the outset, before delving into the questions of law and facts, gives a silhouette of its approach in the present case – that the decision has to be made keeping in mind welfare legislation intended for sentient beings and the standard to be applied is the ‘species best interest’.

The Court examining the PCA Act at length, held that the statute being welfare legislation should not only be interpreted in furtherance of the objective of the Act but also to be ensured that the benefits under it are not defeated. The Court further emphasizes that any regulation or guideline, which dilutes or defeats the welfare legislation, can be rightly struck down by the Court to achieve the object of the Act. Furthermore, since animals are incapable of taking care of their rights against humans themselves, it is “the duty of the Court” under parenspatriae to ensure the same. This is also reflective of Gandhi’s philosophy of humans being ‘elder brethren’ of animals.

The duty imposed, under Section 3 of the PCA Act, on persons in charge of animals being mandatory in nature assumes the nature of a corresponding right of animals. The duty enshrined therein is twofold – to ensure the well-being of the animal as well as “prevent the infliction of unnecessary pain and suffering.” ‘Well-being’ has been defined by the Court as the state of being comfortable, happy and healthy. Hence, when speaking of the well-being of an animal all three states have to be kept in mind. Therefore, the Court held, condition of bulls prior to and during Jallikattu is clearly in violation of Section 3, since it dissatisfies both the features of the provision and deprives the bulls of their rights mandated by the statute.

Acknowledging pain and suffering responses of animals being similar to that of humans, the Court deliberated over Section 11, and observed that “it is a beneficial provision, enacted for the welfare and protection of animals.” Being penal in nature, Section 11 simultaneously confers rights upon animals not to be inflicted with unnecessary pain and suffering, as well as an obligation upon others, whether the AWBI, persons in charge, or others to secure their well-being and welfare. Thus, both the provisions have been given a broad interpretation by the Court to have a dual effect – right on the animal and a corresponding duty on the humans.

The Court further addresses the question of ‘doctrine of necessity’ in relation to the exceptions listed under Section 11(3). It held that entertainment, exhibition or amusement cannot be “claimed as a right under the doctrine of necessity.” Reiterating the fundamental duty under Article 51A (g) the Court re-emphasized the right of all living creatures, including animals, to have a peaceful life with dignity and right to well-being by being protected against cruelty. Criticizing the anthropocentric view held in several judgments, that humans cannot have mere animal existence, the Court stated that one should not be oblivious to the fact that animals too have intrinsic value, like humans.

The Court also reiterated the approach of the World Organization for Animal Health (OIE), and recognized the Five Freedoms to be fundamental principles of animal welfare. It extends the ambit of “Section 3 and 11 of PCA Act 1960” to having imbibed the Five Freedoms, therefore making the Sections analogous to Part III of the Constitution. Thus, for the first time, the highest Court of the land recognized and upheld the ‘fundamental rights’ of animals. According to Sections 3 and 11, the same status as fundamental rights for humans under the Constitution, in itself grants a greater degree of protection to the animal, under the judicial discourse. Furthermore, the Court held that Sections 3 and 11 cannot be read in isolation from Article 51A (g) and (h); they have to be read” in consonance with each other since, the said Articles are the magna carta of animal rights in India.

‘Compassion’ and ‘humanism’ under Articles 51A (g) and (h), respectively are not restricted to our own species alone. The Court extends the duty beyond one’s own species and directs that it “shall be the duty of every person” to safeguard the welfare of animals and be benevolent, compassionate and merciful towards them. Additionally, for the first time the Court recognizes and elaborates upon the concept of ‘speciesism’ and condemns discrimination against animals on the basis of superiority of species. At the same time, reiterating again on the doctrine of necessity, the Court expressly states that ‘avoidable non-essential human activities solely for human pleasure’ is violative of animal rights guaranteed under Sections 3 and 11.

It may be important to pause here and appreciate the relevance of this approach. Propelling the idea of the doctrine of necessity may to a large extent relieve animals of their suffering in many sectors. The Court has channelized the words ‘unnecessary pain and suffering’ used in the legislature into more comprehensive terms ‘avoidable’ and ‘non-essential’. If more emphasis is laid on ‘avoidable’ acts, then the ambit of animal cruelty would be thrown wide open. Prima facie both phrases intend the same thing and may be understood as synonymous. However, while ‘unnecessary’ relies more on the essentiality of an act, ‘avoidable’ may be that which is avertable. The Court in the A.Nagaraja judgment has also repeatedly used words like ‘stress’, ‘humiliation’, etc. which are indicators of mental agony and not just physical distress. Thus, it may be implied that animals undergo mental pain and suffering as well, and thereby requisite protection against mental cruelty is necessary as well. However, the law does not have any provision expressly entailing the same.

Furthermore, the Court amplifies the “Right to Life as enshrined under Article 21 of the Constitution.” It gives an expansive meaning to the word ‘life’ to include not just human life but animal life as well.[42] In a plethora of decisions, the Court has affirmatively “held that right to life for humans is more than mere survival or animal existence.[43]” Using the phrase ‘animal existence’ in this context implies that the life of animals is miserable and hence, humans’ right to life essentially needs to be better than that. Does this indicate that the Court has, prior to this decision, in even its most path-breaking judgments adopted a speciesist approach? Has the judiciary in a way normalized that animal life is not a life worth living? Is it worth pondering upon? Hence, departing from this approach the Court in the A. Nagaraja decision has held that the right to life for animals is “more than mere survival or existence or instrumental value for human beings”.[44]

The analogy has been drawn between the right to life of humans and that of animals, bringing both on the same platform of being more than mere survival and existence. Extending the analogy, just as right to life for humans includes numerous ancillary rights, the Court expressly held right to life for animals also includes – “right to live in a healthy and clean atmosphere”, “right to get protection from humans against inflicting unnecessary pain and suffering”, “right to get food and shelter especially when they are domesticated”, “right to dignity and fair treatment”, “right not to be tortured”.[45] Thus, it can be unequivocally inferred that these rights are not confined only to humans, rather are extended to animals as well.

It may be criticized by some that the Court has incorrectly digressed in extending “right to life under Article 21” to animals because it clearly uses the words “No person shall be denied of his right to life and personal liberty”. Thus, it is applicable only to ‘person’ and not otherwise. Notwithstanding the language of the provision, it is important to note that the Constitution does not define the word ‘person’ anywhere. Under Article 367, it has been expressly provided that unless that context otherwise requires, for interpretation of the Constitution, the General Clauses Act 1897 shall be referred to. The word ‘person’ used in the Constitution has to be therefore understood as per “Section 3(42) of the General Clauses Act 1897.[46] The definition is given states that “a person shall include company, association and body of individuals, incorporated or not.[47]”The definition of ‘person’ under the “General Clauses Act is illustrative and not exhaustive.[48]

Under general rules of interpretation, the purpose of an illustrative or inclusive definition is to include those entities, who are otherwise strictly left out of the definition.[49] “Definition of ‘person’ given under the General Clauses Act” is not to be treated as a restriction or obstruction in conferring a different meaning to it.[50] Hence, it would not be wrong to say that ‘person’ is not restricted only to human beings alone, and if it may be extended to non-human entities like corporations, there is no reason to deny the same to non-human animals as well. If the context requires, then the meaning of ‘person’ may be understood to go beyond the ordinary or usual meaning.

A. Nagaraja paved the way for expanding the scope of animal rights in the Indian context, giving an impetus to other Courts in the country also to begin thinking on those lines. Recently, the Uttarakhand High Court in Narayan Dutt Bhatt v. Union of India and ors.[51] widened the ambit of ‘personhood’ beyond human beings to non-human animals. The High Court recognizes that rights can be enjoyed only by ‘persons’; however, the meaning of ‘person’ is not confined to human beings alone and extends to other juristic persons as well. Hence, rights cannot become the exclusive domain of humans. Companies and corporations are recognized as legal persons, capable of holding rights. Furthermore, there have been decisions wherein a Hindu idol has been granted personhood, with the right to hold property and human beings have been entrusted a managerial role.[52] Thus, it is evident that the essence of personhood in itself is flexible and there is sufficient scope for a trustee-trusted relation to existing. The court further recognizes that as opposed to natural persons, legal and juristic persons act through an external agent, who is designated to act on their behalf for their benefit. Whether it is Gandhi’s ‘elder brethren’ ideal or doctrine of parenspatriae, or the idea of humans being entrusted as managers, all find their genesis in the idea of humans or State being caretakers for those who cannot take care of themselves.

The High Court, further observed that persons may be either natural, legal or artificial, with legal persons being created under the law capable of bearing rights and duties. Hence, rights do not belong only to natural persons, such as humans, but can be enjoyed by any entity having a legal personality as recognized under the law. This ratio of the Court complements the rationale laid down in A. Nagaraja, thereby concluding that not only do animals have a right to life and dignity but in fact have the legal standing as ‘person’ to be bestowed with rights. The flexibility of law is intrinsic to extend its arms to all deprived sections of the society, be it humans or non-humans. Narayan Dutt Bhatt reiterates the rationale of the Supreme Court observed in A.Nagaraja emphasizing on animals’ intrinsic value is more than mere instruments for human use.

However, the one flaw in the two-judge bench decision is its basis for granting legal personality. The Court’s reasoning for granting legal personality is based upon the ‘emotional valuation ‘of the entity in question. Thus, it may be implied that the legal personality of animals or animals’ right of being granted with legal personhood is reliant on how society perceives them or values them. Therefore, the status of animals hinges on the level of importance man accords them with. This essentially might defeat the purpose of what the judgment intends to achieve, making legal personhood of animals a subjective concept. Hence, it leaves a possibility for ‘emotional valuation’ going either in favor of animals or otherwise.

Nonetheless, in the end the court grants the entire animal kingdom with the legal entity with rights, duties and liabilities corresponding to that of living persons. It further emphasizes the doctrine of “persons in loco parentis”, making State the guardian of animals and animal welfare. Thus, there has been a marked shift from a master-servant relation between human-animal to a guardian-ward relation. Furthermore, recently, in IN RE Effective Implementation of Prevention of Cruelty to Animal Act, 1960 and its Rules v. The State Government through its Chief Secretary &ors.,[53] the High Court of Imphal has reiterated the right to life of animals under Article 21 as laid down in A. Nagaraja. This is indicative of the growing recognition of the rights of animals as an enhanced status of animals as right-holders per se.

Conclusion

The approach of the Supreme Court as well as High Courts is demonstrative not only of the growing importance of animal rights and animal welfare, but also of the fact that they have not placed both the concepts in exclusive water-tight compartments. There has been an attempt rather arrive at a middle-path or commonplace where the ultimate well-being of animals can be attained. The compelling stand of the highest Court of the country is, hopefully, a reflection of the change that animal law jurisprudence in the nation is going to witness in the forthcoming times. Additionally, these judicial pronouncements move farther away from Kautilya’s view of animals as property and incorporate elements of both Gandhi and Krishna Iyer’s philosophies.

The expansion of one of the most powerful provisions in the Indian constitution, Article 21, to cover under its aegis the rights of animals, gives the non-human living beings an implied status of being right-holders and enjoying those rights for a better living. Even though there are no statutory provisions expressly granting ‘rights’ per se to animals, this interpretation of Article 21 by the Court increases chances for higher accountability of people in how they treat animals and, hopefully, opens the door for the improved status of animals in this country. While the legislative approach has remained pro-welfare, this approach of the court in fact accommodates the ‘subject-of-life’ theory by Tom Regan, stressing not just on welfare but also on the inherent value of animals, which must be duly respected.

Animals as persons capable of holding rights might seem like a volatile idea to many. Yet the judiciary’s deviation from a strict welfare approach to conceding animals with rights and personhood is suggestive of a new dimension to rights altogether, which is not restricted only to humans. Furthermore, the emergence of a new area of jurisprudence between rights and welfare, perhaps, is gradually developing. The author perceives this grey area as ‘rightful welfare’, wherein animals are granted welfare as a right. The endorsement of rights to animals by courts with a corresponding duty on humans to ensure their welfare, perhaps, is the connotation of ‘rightful welfare’, which seems to be a more pragmatic approach. The gravity of human’s duty to ensure the welfare of animals, in order to protect their rights, covers all elements to uplift the status of animals. Propelling this theory further, along with the likes of Animal Citizens, will render the opening of new avenues for animals as right-holders.


About the Author

*Dr. Sohini Mahapatra is a faculty of law at National Law University Odisha. She is the faculty advisor of Friends Beyond Species: Society for Animal and Environmental Welfare. Being associated with the Society since its inception, she has a very keen interest in Animal Law. She also holds her PhD in the field of Animal Law.


[1] Animal Welfare Board of India v A. Nagaraja (2014) 7 SCC 547.

[2] Writ Petition (PIL) No. 43 of 2014 High Court of Uttarakhand; Date of Judgment – 04.07.2018.

[3] Usually translated as The Science of Material Gain or Science of Politics or Science of Political Economy.

[4] R. Shamasastry, Kautilya’s Arthashastra 19 (Bangalore Government Press, 1915).

[5] Id. at64.

[6] Id. at65.

[7] Id. at 233.

[8] Id. at 78.

[9] Id. at 173.

[10] Id.

[11] Id. atch XXIX.

[12] Id. at 185.

[13] Id. atch XXX.

[14] Id. at ch XXXI.

[15] The Collected Works of Mahatma Gandhi’ (1869 – 1948), available at: <https://www.gandhiheritageportal.org/the-collected-works-of-mahatma-gandhi&gt; (last visited on July 30, 2018).

[16] Id. at vol 77, 6 (1942).

[17] Id. at vol 33, 476 (1927).

[18] Id. at vol 19, 395 (1921).

[19] Id.

[20] Id. at vol 28, 5-6.

[21] Id. at vol 28, 6.

[22] Id.

[23] Id. at vol 27, 139.

[24] Id. at vol 19, 517. 

[25] Id.

[26] Id. at 518.

[27] Id.

[28] Id. at vol 13, 199 (1916).

[29] Id. at vol 27, 237 (1925).

[30] Id. at vol 37, 219.

[31] Id.

[32] Id. at vol 12, 155.

[33] Id. at vol 32, 153.

[34] Id. at vol 35, 327 (1927).

[35] Id. at vol 57, 106 (1934).

[36] Justice V.R. Krishna Iyer, Towards a Natural World: The Rights of Nature, Animal Citizens and Other Essays (Hope India Publications, 2004).

[37] Id. at part II ch 3.

[38] Id.

[39] Id.

[40] Id.

[41] (2014) 7 SCC 547.

[42] Id.

[43] Francis Coralie Mullin v. The Administrator, Union AIR 1981 SC 746; Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545; Delhi Transport Corporation v. D.T.C. Mazdoor AIR 1991 SC 101; Kharak Singh v. The State Of U. P. & Others AIR 1963 SC 1295.”

[44] Supra note 41.

[45] Id.

[46] Karnataka Bank Ltd v. State of A.P. &Ors.,21/01/2008.

[47] The General Clauses Act, 1897(Act 10 of 1897), s. 3(42).

[48] Supra note 46.

[49] Id.

[50] Id.

[51] 2018(3) RCR (Civil) 544.

[52] Yogendra Nath Naskar v. Commission of Income-Tax, Calcutta [1969 (1) SCC 555].

[53] PIL No. 41 of 2017, High Court of Imphal, 25-07-2018.

2 thoughts on “EVOLUTION OF ANIMAL RIGHTS IN INDIA: FROM PROPERTY TO PERSON (Analysis)

  1. Dr. Sohini Mohapatra’s article reflects an in-depth study of not only animal protection laws but also projects her compassion towards the animal world which will certainly create an awareness in Mankind to prevent violence against the same. Very well depicted.

    Liked by 1 person

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