Welfare to Rights

1. Welfare to Rights Status of Animals in Indian Law FIAPO Bootcamp Kochi October 2019

2. Themes of this talk Activist Litigation+Brave Judges + (Animal Interest )x Welfare Laws = Animal Rights in India • Animal Sentience (Intrinsic Value OR Animal interest) • Animal Dignity • Constitutional Transformation • Constitutional Morality • Judicial Pronouncements are ‘catalysts’ of change if not an automatic transformation themselves • No right is absolute and always exists on a balance.

3. Illustration I Victoria Horse Carriages Case - No animal interest in reporting. “The police say that we’re a traffic hazard but tell me, at nine in the morning, when there are only cars on the road, is there no traffic?” According to Lohat, not only will carriage drivers suffer from the ban but tourists as well. “When someone comes from outside Mumbai, they want to see things like the Gateway of India and the Taj Hotel. Horse carriages provide them with a fun way to go sightseeing but now it’s been taken away. They’ve ruined so many lives with this decision.” https://scroll.in/article/734522/a-mumbai-victoria-horse-carriage-builder-sees-the-end-of-the-road-for-him-in-the-high-court-ban

4. Horse Carriage Case (Bombay High Court ) The report above completely misses one of the main points; • Cruelty to animals • The Deep inquiry led by Court on how cruel the carriages are on hot tar roads • The detailed affidavits by AWBI, Dr Valliyate and Dr. Barucha on how cruel horse carriages are • Records of numbers of horses and ponies getting injured and dying every month riding the carriages • And a deep reliance by the Court on the ‘interest’ of animals which is a basis of a new idea of Animal Rights.

5. Relationship with Animals • To love, as pets and companion animals (but still owned) • Entertain, as captive animals in zoos, circuses etc • Play, as horses and other animals for sports • Farm animals for slaughter and eating • And Fear, the dangerous wild animals and sometimes even the strays • No Animal Interest considered, only functionality

6. RIGHTS: A right is something a person has which people think should not be taken away.  • Human Rights:Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death. ... These basic rights are based on shared values like dignity, fairness, equality, respect and independence. These values are defined and protected by law. (inherent)

7. Framework of Animal laws in India Activist Litigation+Brave Judges + Animal Interest x Welfare Laws = Animal Rights in India • PCA 1890 (unnecessary suffering) • PCA 1960 (unnecessary suffering, all animals, penalty Rs. 50) • Constitution Chapter V Fundamental Duties 1976 • Art 48 A and 51 A (g) (1976) (compassion

8. Human Rights and Dignity in the Indian context • 1950, Indian Constitution: All Indians are ‘politically’ equal (post-colonial India) • Among all Indians, we recognised the injustices of the past and brought forward: • Dalits, SC/ST • Women • Tribals • Religious minorities • And now…we are trying the same with animals • Collective and Individual rights • Dignity is the right of a person to be valued and respected for their own sake, and to be treated ethically (Art 21) (this the intrinsic value and interest of every living human being) (can we extend it to every living being?) • But rights are never absolute and always on a scale of balance • Judicial Pronouncements are ‘catalysts’ of change if not an automatic transformation themselves

9. Animal Rights in India • Animal Rights: is the idea in which some, or all, non-human animals are entitled to the possession of their own existence and that their most basic interests - such as the need to avoid suffering - should be afforded the same consideration as similar interests of human beings. • “…we need to recognise that animals do have their rights… A salutary principle..is to uphold the rights of the animals to say “Leave us Alone”. “(Nitin Singhvi, Chhattisgarh HC, 2017).

10. A right of trade cannot continue on the backs of suffering of animals. All constitutional rights are decided on a scale of balance against competing rights. Courts in India are increasingly balancing the interests of animals against other fundamental rights of trade, tradition, religion - in favour of animals. “Court decisions are major catalyst of change and especially when they recognise Animal Interest” • Horse Carriage Case(Bom HC) 2015 • Ivory Trade Ban Case (Delhi High Court) (1997) • Ban on five animals in circuses (NR Nair - Kerala High Court) (2000)

11. Ivory Trade Ban (Delhi High Court) (1997) • “Assuming trade in ivory to be a fundamental right granted under Article 19 (1) (g), the prohibition imposed thereon by the impugned Act is in public interest and in consonance with the moral claims embodied in Article 48A of the Constitution; and the ban on trade in imported ivory and articles made therefrom is not violative of Article 14 of the Constitution and does not suffer from of the mala fides namely, unreasonableness, unfairness and arbitrariness.”

12. N R Nair (Bears, Monkeys, Tigers, Panthers and Dogs) • (Kerala High Court 2000) • “In Article 19(1) (g) do not permit carrying on of an activity whether commercial or otherwise, if it results in infliction of unnecessary pain and suffering on the specified animals.” • “Even the rights guaranteed under the Constitutions of other civilized countries are not absolute but are read subject to the implied limitations on them.”  • “In conclusion, we hold that circus animals are being forced to perform unnatural tricks, are housed in cramped cages. subjected to fear, hunger, pain, not to mention the undignified way of life they have to live with no respite and the impugned notification has been issued in conformity with the changing scenario, values of human life, philosophy of the Constitution, prevailing conditions and the surrounding circumstances to prevent the infliction of unnecessary pain or suffering on animals. Though not homosapiens. they are also beings entitled to dignified existences and humane treatment sans cruelty and torture.” • Courts are creating a logical line between pain, suffering, Animan sentience and dignity.

13. Animal Sentience, Dignity and Jallikatu (2014) • “ Bulls (Bos Indicus) are herbivores, prey by nature adopted to protest themselves when threatened engaging in a ‘flight response’, that is run away stimulus, which they find when threatening. • “Frustration of the Bulls is noticeable in their vocalization and, looking at the facial expression of the bulls, ethologist or an ordinary man can easily sense their suffering. …..Bulls are also intentionally subjected to fear, injury – both mentally and physically – and put to unnecessary stress and strain for human pleasure and enjoyment” • Through the account of ‘flight response’ the Supreme Court of India, or Justice Radhakrishnan created a language of Animal Sentience. • Jallikatu recognised that the pain and suffering of animals tells us something more, that animals FEEL; they experience; and if the DONT like or WANT something they reject it.

14. Meaning and significance of Article 21 in our country- under the right to life. • “Sadism and perversity is writ large in the actions of the organizers of Jallikattu and the event is meant not for the well-being of the animal, but for the pleasure and enjoyment of human beings, particularly the organizers and spectators. Organizers of Jallikattu feel that their bulls have only instrumental value to them, forgetting their intrinsic worth.” • 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. • “Life” for animals means something more than mere survival or existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity. • Shift in Moral Compass on Animal Rights.

15. ANIMAL PERSONHOOD DOLPHINS AND CETACEANS (2010) • Personhood is a very compelling framework for us to treat animals equally only because we can only provide what we as humans no best. Thus making animals share similar rights with us, can be one of the long term goals of animal liberation. • The Minister of the Environment and Forests abolished dolphinariums but also stated: • “Whereas cetaceans in general are highly intelligent and sensitive,..dolphins should be seen as ‘non-human persons’ and as such should have their own specific rights and is morally unacceptable to keep them captive for entertainment purpose.” An idea of equality or parity based on animal sentience and dignity.

16. FIAPO ELEPHANT DECLARATION (2018) Excercise:Please imagine you are a kid, the forest department captures you from home, takes you away from your family forever, chains all your limbs, beats you through the day, and makes you work, and then sells you after you obtained a perfect position of fear and obeisance to a private owner who parades you outside temples for the rest of your life. With this in mind, please think about captive elephants and think about which rights are breached? • Elephants possess the right to a dignified life • Right to bodily liberty, integrity, and autonomy • Right against commercial exploitation, torture, cruel and degrading treatment • Right to the physical and mental well-being • Right to interact and socialize with other elephants • Right to equal consideration of interests

17. CONSTITUTIONAL MORALITY, ANIMAL SACRIFICE (2019) • Origin of Constitutional Morality: Ambedkar, Gay Rights and Sabrimala • “Whether an Act of loud screaming of animals, severing of heads by sharp cutting ―daosl (Ram Dao); flowing of live blood in the precincts of the temple also all along the drain; handing over the severed head of slaughtered animal to the priest for chanting mantras, etc. in the name of sacrifice, perhaps causing serious panic, touching human conscience and shocking the mind of certain devotees visiting the temple, is an essential part of religion or not?” • “Unless it being essential, sacrifice of an animal for religion cannot be considered to be a moral act. … Sacrifice of animal in the temple with which we are concerned, is seriously morally wrong, for it is an act of illegally taking away of life. Animals are also made of flesh and blood; they also breathe as humans; and when hurt suffer pain which would be no less than what humans suffer. • Sacrificing innocent, helpless and voiceless animals does not conquer constitutional morality…majoritarian view confined to the people of the region cannot be allowed to prevail upon the principle of constitutional morality--[Navtej Singh (supra)]. • The Tripura decision, adds animal rights into our language of a new society: of a new constitutional morality. Thus it recognises that animal rights or protection of animals from suffering is embedded in our constitution, and we do not want to live in a society that permits that continued suffering - thus making animal rights (in a way) a new constitutional goal.