Sreelakshmi C.

(Second Semester LLM Student, NUALS, Kochi)

“Human Rights vs. Animal Rights: A Critique”

INTRODUCTION
“The greatness of a nation and its moral progress can be judged by the way its animals are
treated...”-Mahatma Gandhi
Human beings are considered as the most powerful species in the world as they have
rooted in the belief that they are unique, superior and distinct from other creatures. They are
endowed with the capacity to reason and free will.These distinctive powers enabled them in
exercising a disproportionate control over the nature and improve upon rather than to accept
our condition on mother earth which can even lead to destruction of the future of mankind.
Though it is enshrined under Article 51 (g) of the Constitution of India, "It shall be the duty
of every citizen of India to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures." But in realitythe
people are less concerned about existence of other creatures and exploit nature for meeting
his demands. But a new idea, of "animal rights," coined by the judiciary and animal rights
activists recognises that the animals too enjoy natural rights equivalent to those of humans,
subverts the belief that human beings are unique in nature, peculiarly endowed with reason
and free will.
Recently thejudiciary’s intervention on the issue of animal welfare and protection has
increased the debate related to the agitations on cow slaughter, stray dog menace,parading of
caparisoned elephants in connection with festivals,cruelty towardsanimals used in scientific
research and animals performing for entertainment.The Supreme Court has upheld the rights
of animals and birds to lead a life of “intrinsic worth, honour and dignity,” even at the cost
of popular faith and practices of human beings.1This has brought a shift from anthropocentric
approach which gives preference to the interest of human beings to an Eco-centric approach
that recognises non-humans also have intrinsic value and human interest does not take
paramount interest over animal rights.By protecting non-human animal life through Article
21 the Supreme Court defied earlier notions wherein it has been consistently upheld that

1
Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547
Article 21 of the Constitution of India is a source of protection of Human rights and Human
dignity.2
But how far the inclusion of animal rights within the ambit of Article 21 just and
proper? This research paper is an attempt to answer this question and to critically evaluate the
right based interpretation of animal welfare in the context of judicial decisions. Also to
analyse the problems and consequences of this approach on human rights. Further this paper
intends to examine the effectiveness of right based approach towards animal protection and to
suggest any alternative approaches that secures the welfare of humans as well as non-humans.

INCLUSION OF ANIMAL RIGHTS UNDER ARTICLE 21

Amongst all the fundamental rights, Article 21 has influenced the development of
landscape of human rights in India, the most. In order to draw the content of ‘life’ under
Article 21, the court identifies every basic requirement for guaranteeing dignified life of
human being as part of the celebrated provision of the Constitution and made it integral part
of the rights framework. A new dimension has been added to the interpretation of ‘right to
life and personal liberty’ by introducing ‘negative’ as well as ‘positive’ obligation on the state
which covers not only ‘duty to restraint’ but also of ‘duty to facilitate entitlements. For
determining the constituent of the ‘right’, the judiciary has always looked for such facets of
‘life’ which is essential for humane existence in contrast with animal.
In N.R. Nair v. Union of India3, the Kerala High court considered the question of
extending fundamental rights to animals and emphasised that legal rights should not be “the
exclusive preserve of humans which has to be extended beyond people thereby dismantling
the thick legal wall with humans all on one side and all non-human animals on the other
side.” This view was further developed by the Supreme Court in Animal Welfare Board of
India v. A. Nagaraja.4
In Animal Welfare Board of India case, an issue of seminal importance with regards
to rights of animals under the IndianConstitution, with reference to the Prevention of Cruelty
to Animals Act, 1960, in connection with Jallikattu/Bullock-cart race has been raised. The
appellant, Animal Welfare Board, was a statutory body established under the Prevention of
Cruelty to Animals Act, 1960 for the promotion of welfare and protecting the animals from
being subjected to unnecessary sufferings and pains made a submission for the ban of the

2
Maneka Gandhi v. Union of India, AIR 1978 SC 597
3
AIR 2000 Ker. 340
4
Ibid
practice of Jallikattu, inter alia, on the ground of violation of Sections 3 and 11(1) (a) and (m)
of the Act read with 51A(g) and 21 of the Constitution. The court opined the practice of
Jallikattuas against the provisions of the Act and was clearly found that the conduct of human
beings towards the animal was contrary to the scheme of the Act. The court has refused
permission to inflict pain and suffering to the animals in the name of religious or traditional
practices. The idea of ‘species best interest’ underlying in the Act guided the court to provide
complete protection to the animals from torturous practices employed by human beings.
In response to the submission on constitutional provisions, the court emphatically
relied Article 51A(g) of the Constitution which cast fundamental duties on every citizen to
have ‘compassion for living creatures’. Citizens of the country are duty bound to show
respect for animate world.5 The duties impose an obligation upon the legislature to keep them
in mind while framing laws for welfare of ‘living creatures’ for regulating the conduct of
human beings. Also, a similar obligation is cast on the judiciary to read these duties to give
purposeful meaning to laws enacted for welfare of living creatures.
However, whether a duty upon a citizen corresponds to any right on ‘living creature under
Article 21 of the Indian Constitution’? The court, in reference to ‘right to life’, held that:
“Every species has a right to life and security, subject to the law of the land, which
includes depriving its life, out of human necessity. Article 21 of the Constitution, while
safeguarding the rights of humans, protects life and the word ‘life’ has been given an
expanded definition and any disturbance from the basic environment which includes all
forms of life, including animal life, which are necessary for human life, fall within the
meaning of Article 21 of the Constitution. So far as animals are concerned, in our view,
‘life’ means something more than mere survival or existence or instrumental value for
humanbeings, but to lead a life with some intrinsic worth, honour and dignity…Right to
dignity and fair treatment is, therefore, not confined to human beings alone, but to
animals as well…Animals have also a right against the human beings not to be tortured
and against infliction of unnecessary pain or suffering. Penalty for violation of those
rights is insignificant, since laws are made by humans.”
Justice Radhakrishnan stressed the point that until now the rights that we as a nation
bestowed upon animals were merely statutory rights and the time had come for animal rights
to be elevated to the status of fundamental rights in the Indian constitution. All animals, all
living beings have the right to five freedoms:

5
State of Gujarat v. MirzapurMotiKureshiKassabJamat and Ors.2005(8) SCC 534
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.
If animals are given ‘right’ under ‘right to life’ provision, then how it will be enforced
against the other right-holder viz., human beings. The interpretation raises tongue-tied
proposition of ‘right v. right’ instead of ‘right v. duty’ which is inevitable for realization of
the right. It is also a well-settled position that the guarantee of fundamental rights under Part
III of the Constitution is only as against ‘the state’ as defined under Article 12.

THE LEGAL CAPACITY TO POSSESS RIGHTS

While applying rights to entities under the State, it is seen that they are not universally
applied to every object or entity that exists but are restricted to those which possess certain
characteristics. The existence of these characteristics form the basis for what has been defined
as capacity for rights by Joseph Raz6. In his analysis of the same, he specifically refers to the
idea of granting animal’s rights. According to him, rights can only be accorded to beings
which have an ultimate, non-derivative value rather than an instrumental value. The value of
non-human animals to humans is merely instrumental as they are largely only brought into
human society for their use and not for their intrinsic value. He goes on to propose that as
animals have no individual interests in the manner that humans do, i.e., interests which have
an ultimate, non-derivative value in themselves. By virtue of their lack of mental
development as compared to humans, they are incapable of forming interests which would
then constitute the basis for rights.
The most obvious qualifiers for legal personhood in a rightsbased context can be
found within the analysis of the nature of rights itself, particularly within a Hohfeldian
analysis in jural relations.7 In his matrix, the correlative of a right would be a duty and a
person s right would be satisfied only by another person s duty to not infringe upon that right.
As a right requires a correlated duty, the natural inference that follows is that every person
whoseeks to claim a right must also be able to perform the corresponding duty that a right
entails. This, in part, relates to the capacity of the entity in question to perform this duty.

6
Joseph Raz, 0n the Nature of Rights, 93 (370) Mm 194, 204 (1984)
7
Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 (l)
YALE L]. 16 (1917
Thus, in a Hohfeldian sense, a person is an entity who is able to perform the correlated duty
to a right and ensure the protection of another person’s right. In a practical sense, it would be
impossible to expect non-human animals that possess a lower level of human defined intellect
and rationality to perform these duties. While as humans we may try to protect the lives of
different species, it is not expected of a snake not to bite or for a tiger not to hunt. Further, the
claimant of a right must also be able to have rights claimed against them, i.e., rights must be
able to be enforced against a person for them to truly be entitled to them.8
This means that the non- performance of a duty by a person may be punishable if it
violates the right of another person. It is obvious that no non-human animal will ever satisfy
or be expected to satisfy this requirement. Although, there were once courts which allowed
cases against beetles for causing crop failure or which exiled a ram to Siberia for goring a
man to death,9 it is highly unlikely that modern day judicial systems would allow such claims
or enforcing such punishments. This thought was echoed in a New York Appellate Court
decision to dismiss a petition demanding the human right of bodily liberty for a captive
chimpanzee. The Court held that rights could belong only to persons because only they could
be held legally accountable for their actions.10 Therefore, an analysis purely based on the
nature of rights and the concept of personhood related to rights, renders animals incapable of
possessing them.
Aside from an analysis originating from the nature of rights, a three-pronged test has been
laid down to determine the capacity of an entity to possess legal rights under the State.11 The
first prong is that the entity must be able to institute legal action on its behalf. Second, the
court must take the entity s injury into account while deciding upon relief. Third, any relief
granted by the court must prove to be beneficial to the entity. Under our current legal system,
it cannot be said that any of these three criteria is satisfied towards granting personhood to
animals.

PROBLEM WITH RIGHT BASED APPROACH ON ANIMAL WELFARE AND

PROTECTION

8
Ibid
9
The People of the State of New York ex rel. The Nonhuman Rights Project, Inc., on Behalf of Tommy v.
Patrick C. Lavery, No. 518336, 2014 WL 6802767 (N.Y. App. Div. Dec. 4, 2014); See also David Grimm,
Chimpanzee personhood fails on appeal, SCIENCE MAG, December 4, 2015, available at
http://news.sciencemag.org/plants-animals/ZO14/12/chimpanzee-person hood-fails-appeal (Last visited on
February 26, 2015).
10
See Cristina Pelayo, Uncommon Law: The Trial of OliorhynchusSulcatus, 26 (2) LITIGATION 59 (1999).
11
Christopher D. Stone, Should Trees Have Standing? - Toward Legal Rights for Natural Objects, 45 S. CAL.
L. Rev. 450, 458 (1968).
 Recognising non-human animals as legal persons and granting them rights would
result in several problems and conflicts within the existing rights regime. The primary
problem with such an approach is that a conflict between human rights and animal rights
would automatically arise. Granting animals rights, especially under the Constitution, would
entitle them to a range of benefits.Rights are important only in the context of the benefits that
may be claimed through their existence. Once they are granted, rights are rarely irrevocable
and unchangeable and often expand to include elements that were never initially intended. 12
But the question to be answered is whether the right will be an effective means to this
end.?If the desired end is unanimously agreed to be the protection of animals, there is more
than one method of achieving this end. Granting rights to animals, rather than legislating
towards their welfare would be an impractical means of achieving the final goal as it is
impossible for animals to ever identify a rights violation and seek their own protection.
Therefore, creating rights for them will not be the most effective means of securing and
enforcing their protection. A rights-based approach would not lay down the exact manner in
which animals are to be protected and, and for the reasons listed above, it would create a
system of entitlements that would be almost impossible to adequately address.
At its core, all laws relating to animal welfare and protection seek only to better their
status and reduce the capacity of humans to harm them. With such an objective underlying
the legislative framework relating to nonhuman animals and taking the nature of animals as
less rational beings (as judged by humans) into consideration, a rights-based approach would
not aid in the same. The focus must not be shifted by creating an unstable system of forced
entitlements backed by the force of law. To sustainably protect animals, there is a need to
shift the approach to animal welfare from a rights-based to approach to a duty-based
approach.

SHIFT FROM RIGHT BASED APPROACH TO DUTY BASED APPROACH

As stated above since animals cannot possess rights in a legal sense and hence negates
the viability of the rights-based approach.
A duty-based approach rests on the premise that human beings owe a duty towards
non-human animals. Within the Indian context itself, The PCA Act, the primary legislation

12
An example of this would be how Art. 21 of the Indian Constitution has been expanded far beyond the mere
right to life.
for animal protection, codifies certain acts that are obligations that humans owe to non-
human animals."13
Therefore, it seems to propose a duty-based approach towards the issue of animal
welfare. A duty-based approach will create a positive and direct obligation upon humans and
the State to protect non-human animals and as such, will be a more sustainable model upon
which animals may be granted protection. As opposed to the rights based approach, which
relies on the possessor’s ability to ask for their rights and make various State and non-state
actors accountable, a duty-based approach has no such requirement.
Granting rights to animals is unlikely to have the desired effect as questions of
standing as well as conflicts with existing human rights are likely to arise. Thus, the correct
approach is one which is already exists in Indian jurisprudence and constitutional law, that
which creates a direct and positive duty upon humans. This approach ensures that courts are
able to interpret animal welfare and protection laws in the language of compassion and
dignity as well as avoid addressing clashes between animal and human rights.
The Indian Constitution uniquely recreates the idea of a duty with no corresponding
right through the insertion of the Directive Principles of State Policy14 and Fundamental
Duties15. Though not enforceable in the way that a right is enforceable, they provide guiding
principles for governance, jurisprudence and legislation.
Evidently, there is theoretical, historical and even constitutional consensus that human
beings owe a duly to non-human animal, due to their co-existence with a common ecosystem
and mutual benefit derived from our surroundings16 Further, as an intellectually evolved
species, human beings also owe a duty to act towards the holistic welfare of non-human
animals."
Therefore, the source of the duty that human beings owe to non-human animals must
be viewed as arising not from what we give non-human animals through charity. but as what
we one to these species because of their inherent faculty.It is consequently concluded that the
source of human duty towards non-human animals is the commitment to ensure the dignified
existence of animals The emphasis should not be on the inconsistent concept of the right or
entitlement of the animal but on the concrete duty of human beings.

13
The Prevention of Cruelty to Animals Act, 1960
14
Art. 48A
15
Art. 51A
CONCLUSION
To conclude in theA. Nagaraja, judgment, the Apex court has gone to the extent to
use Article 21 to give life to animals, equivalent to that of humans. It has brought the rights of
animals to be protected like a fundamental right. Therefore, it has reflected that the animals
also have fundamental right under the Constitution of India. The Supreme Court still held the
interest of the human beings to supersede the interest of animals.
Not only will adopting a rights-based approach towards securing animal welfare be
inconsistent with basic notions of who the possessors of rights are but it is also an impractical
way of addressing the problem at hand, i.e., the protection of animals under the law. Granting
rights to animals is unlikely to have the desired effect as questions of standing as well as
conflicts with existing human rights are likely to arise. Thus, the correct approach is one
which is already exists in Indian jurisprudence and constitutional law, that which creates a
direct and positive duty upon humans. This approach ensures that courts are able to interpret
animal welfare and protection laws in the language of compassion and dignity as well as
avoid addressing clashes between animal and human rights.