The Supreme Court of India has recently stated that it will decide the validity of the Gujarat High Court order which mandated that birds had a fundamental right to fly.[i] Likewise, The Delhi High Court went ahead and declared the same through an order in People for Animals v. Md Mohazzim[ii]. The order is remarkable because it provides a new angle to animal rights discussion and is confounding as it does not shed much light on the stated proposition in the said order that it was a settled law that birds have a fundamental right to fly as well as the right to live with dignity.[iii] The order wasn’t accompanied with a detailed explanation about the constitutional provisions in question. Instead, the court relied on A. Nagaraja v. Animal Welfare of India[iv] as the ‘settled law’. This in turn has raised several questions about the implications of appropriating constitutional rights to animals.
The scope of the essay has been confined to fundamental rights and thereby, in this essay, we will try to bring out two such implications of appropriating fundamental rights to animals. Section I elucidates on the settled law of animals having fundamental rights. Following which, Section II covers the concept of application of horizontal law in the context of fundamental rights; Section III discusses the implications of horizontal application of law when fundamental rights are given to animals. Lastly, Section IV talks about the conclusions which have been derived from the analysis of implications of giving fundamental rights to animals.
II. SETTLED LAW
The Delhi High Court cited A. Nagaraja when it referred to the ‘settled law’ of birds having a fundamental right to fly.[v] Therefore, it is pertinent to discuss the principles of the settled law. In A. Nagaraja[vi], the Supreme Court observed that, Article 21 of the Constitution protects the fundamental right of “right to life” of human beings and the word “life” encapsulated the animal life which was necessary for human survival.[vii] The court further concluded that the life of an animal was worth more than mere survival and it came along with honour and dignity which was protected by the Section 3 and 11(1) of the Prevention of Cruelty (Act) read along with Article 51A(g) of the Constitution.[viii] The court then took note of the five fundamental freedoms[ix] for animals as provided by the guidelines of World Organisation for Animal Health and concluded that these freedoms, which are enshrined in Section 3 and 11 of the PCA, were like the rights guaranteed to the citizens of this country under Part III of the Constitution.[x]
This settled law shows that the case was adjudicated on constitutional grounds and thus it raised several questions about the implications of appropriating constitutional rights to animals which will enable the animals to safeguard their rights under the horizontal application of law.
III. HORIZONTAL APPLICATION OF LAW
The concept of Horizontal Application of Law refers to application of rights in transactions which involve private persons or the ones who do not come under the ambit of ‘State’ as illustrated under Article 12 of the Indian Constitution.[xi] Horizontal Application of Law is divided primarily into two categories which are direct and indirect in nature.[xii] Direct horizontal application of law refers to a situation where a private party’s private act is challenged on the grounds of constitutional provisions.[xiii]. Likewise, In case of Indirect Horizontal application of law, instead of challenging the private acts of the private party, the law on which the private actor is relying is under challenge which indirectly holds the state responsible.[xiv] Thus, when fundamental rights are given to animals, it becomes inevitable that in order to safeguard them, usage of horizontal application of law will take place against the citizens of the state.
IV. IMPLICATIONS OF ASSIGINING FUNDAMENTAL RIGHTS TO ANIMALS
In A. Nagraja, the court didn’t interpret the term ‘animal’. Thus, this term is to be given widest of amplitudes while giving fundamental rights to animals as one can’t differentiate between animals by the virtue of one being an owned animal and the other being an unowned animal. This leads to the inevitable conclusion that irrespective of the ownership, all animals will be provided equal set of fundamental rights. Following this line of argument, the implications can be divided into two parts:
A. OWNED ANIMALS
The first case is with regard to those instances where the animal is owned by a private person. Now, if the fundamental rights of the animals are violated by the private owner, the most probable implication is that an action will be taken against the owner of the animal even though he was working as a private actor in his private capacity. This leads to the horizontal application of law against the owner on behalf of the animal, under the five fundamental freedoms assigned to them by the Supreme Court in the case of A. Nagaraja. The reason behind the horizontal applicability of law is that the five fundamental freedoms enunciated by the court can be broadly categorised under the sphere of fundamental right of animals against their exploitation and therefore, a parallel can be drawn to Article 23 of the Constitution, which provides right against exploitation to humans, because the objective of giving fundamental rights to birds is to minimize the gap between the status of animal rights and human rights. Since, Article 23 allows horizontal application of law[xv] it becomes natural that a similar law which prohibits the exploitation of birds would be providing the same.
The authors propose a model for imputing certain rights to animals. For change, the model provides a step by step approach. The first step imposes a responsibility on the State. The State is expected to enforce certain fundamental rights of animals by establishing welfare houses for animals. Currently, the Animal Welfare Board of India is responsible for the care of animals although its responsibilities are considered to be vague. It is ideally supposed to issue grants to animal welfare organizations- a duty which faces several implementational obstacles. The first step according to the authors’ functional model therefore holds the State responsible in line with the vertical application of fundamental rights.
The second rung of this model incentivises existing animal welfare organisations to provide help and care to stray animals. This predominantly includes tax exemptions given to these organizations for better functioning. As a policy this is kept as the second rung as it distributes the responsibility of the government. Unlike a purely inverse horizontal application of fundamental rights, this step lies in the middle ground and fills the void between vertical and horizontal application of rights.
The third step of the model imposes liability on the aforementioned welfare organizations such that, the animals’ rights are to be enforced against these institutions. They are funded for the same purpose and therefore are to fulfil their responsibilities. Any third party may enforce these rights on behalf of animals under the care of the welfare organisation.
The final step of this model elaborates on the implications of violating fundamental rights of animals which are not under anyone’s ownership. In this case, if the fundamental rights of the animals are violated under natural circumstances, that is to say if a stray animal’s fundamental right to freedom from thirst, hunger and malnutrition is violated, then a person can move against the government on behalf of the animal. This will lead to an increased duty of care of the government towards the plight of animals, which in turn will help nurture an environment conducive to animal rights.
In contrast to the above situation, the fourth step proposes a reversal of roles. When an unowned animal’s fundamental right to freedom, from thirst, hunger and malnutrition, is violated, the government can move against the citizens for the violation of fundamental rights of the animal because of their passive stance towards the plight of the suffering animal by usage of indirect application of horizontal law. This can be done by the government by the application of indirect horizontal law where the passive private act of the citizen done in his private capacity won’t be challenged but the law on which he is relying will be altered. Here the law which is being relied upon by the private person is the law of ‘duty of care’ which was discussed in Donoghue v. Stevenson[xvi]. The law states that a person’s duty of care exists towards another person if both of them are closely connected that one’s act affects the other.[xvii] Going by the interpretation of the above discussed law, the private person doesn’t owe a duty of care towards the distraught animal as the private person and the animal are not closely connected that the act of the person, which in this case is his passive stance, will directly affect the animal. Therefore, in order to impose a duty of care on the citizens, the government can apply the indirect horizontal application of law and alter the settled law by enacting a statute enforcing a duty of care towards such animals which will imbibe the essence of Article 51A(g) into the statute.
The Supreme Court Judgement in A. Nagaraja has been hailed by many as the landmark moment in the history of animal rights as it paid heed to animal dignity and honour accorded fundamental rights to animals.[xviii] The one facet which the Supreme Court failed to discuss was about the implications which the judgement would have on the constitution and essentially the rights of humans. From the above analysis, it is clear that implications can only have a positive effect on animal rights especially regarding the stringency of penalising the violation of fundamental rights of animals. This enhanced stringency, which is ensured by the safeguarding of fundamental rights, will also act as a deterrent against the same violations in the near future. On the other hand, these positive implications for animal rights will come at the cost of incorporating duties, such as Article 51A(g) of the Indian Constitution, into statutes for the citizens. These implications will move towards bringing animal rights and human rights closer but will succeed only till the time there is a proper balance struck between animal rights and human rights. Lastly, it is up to the Supreme Court to work on its existing foundation built in A.Nagraja and provide a clearer interpretation and implications of appropriating fundamental rights to animals.
This post was authored by Aaditya Dighe and Sharada Rajam, students at the West Bengal National University of Juridical Sciences and members of NUJS Constitutional Law Society with special inputs from Mr. Shameek Sen, Assistant Professor (Law) at the West Bengal National University of Juridical Sciences and Faculty Advisor- Constitutional Law Society.
[ii] 2015 SCC OnLine Del 9508.
[iii] Id., 2.
[iv] 2014 7 SCC 547.
[v] See supra note 1.
[vi] See supra note 3.
[vii] Id., 84.
[viii] Id., 84.
[ix] Id., 98. (Five fundamental freedoms for animals include: (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and disease; and (v) freedom to express normal patterns of behaviour).
[x] Id., 78.
[xi] Stephen Gardbaum, The “Horizontal Effect” of Constitutional Rights”, Mich. L. Rev. 102, No. 3 (Dec., 2003).
[xii] Danwood Mzikenge Chirwa, The Horizontal Application of Constitutional Rights In a Comparative Perspective, 10 Law Democracy & Dev. 21 2006.
[xiii] Id., 22.
[xiv] Id., 24.
[xv] PUDR v. Union of India, 1982 AIR 1473. (While interpreting Article 23 of the Indian Constitution, the Supreme Court held that ‘begar’ was not confined to ‘bonded labour’ but it was applicable to ‘every form of forced labour’, thus giving it an extended meaning).
[xvi] (1932) AC 562.
[xvii] Id., 4.
[xviii] The Hindu, Animal Rights Bodies Welcome ‘Jallikattu’ Ban, May 8, 2014, available at
http://www.thehindu.com/news/national/tamil-nadu/animal-rights-bodies-welcome-jallikattu-ban/article5986103.ece (Last visited on July 28, 2015).