Preventing animal cruelty is a duty of the state 

Preventing animal cruelty is a duty of the state 

• Soon, a Constitution Bench of the Supreme Court of India will deliver its verdict on the validity of Tamil Nadu’s law permitting the practice of Jallikattu in the State. 

Jallikattu

• Usually held during the Pongal season, Jallikattu is a sport where men compete against each other to hold on to the humps of agitated bulls that are released into an open arena. 
• In 2014, in Animal Welfare Board of India v. A. Nagaraja, a two­judge Bench of the Supreme Court declared Jallikattu illegitimate. The court found that the practice was cruel and caused the animal unnecessary pain and suffering. 
• Since then, Tamil Nadu has made efforts to resurrect the sport’s legality. It is that act of revival which is now at stake.

Deficiencies in the constitution regarding animal welfare

• Oral arguments made in the case showed us just how complicated some of the issues involved in the dispute are. 
• In some ways, the hearings also underlined the deficiencies inherent in the Constitution when it comes to addressing questions of animal welfare. 
• Therefore, how the court chooses to resolve the questions posed to it could come to have a deep bearing on the future of animal rights and safety in our country.
• None of the guarantees contained in Part III of the Constitution, which deals with fundamental rights, are explicitly conferred on animals. Article 14 (right to equality) and Article 21 (right to life and personal liberty) are bestowed on persons.
• Until now, we have generally understood “persons” to mean human beings, or, in some cases, associations of human beings, such as corporations, partnerships, trusts, and the like.
• No doubt, some of the Directive Principles of State Policy and the Fundamental Duties, contained respectively in Parts IV and IVA of the Constitution, reflect a responsibility placed on the state and on human beings to protect and improve the natural environment. But these are unenforceable obligations.

Enacting PCA act, 1960

• When efforts to legislate on animal welfare were first made, they did not emanate as much out of a belief that animals were vested with rights as they did from a more elementary ethical precept that our collective conscience ought to make it clear that it was morally wrong to inflict unnecessary pain and suffering on animals. 
• It was with this vision in mind that Parliament enacted the Prevention of Cruelty to Animals Act (PCA Act), in 1960.

Shortcomings of PCA

• The PCA Act isn’t without its shortcomings. While it criminalises several types of actions that cause cruelty to animals, it exempts, for example, from its coverage the use of animals for experiments with a view to securing medical advancement. 
• But as the Supreme Court previously affirmed in A. Nagaraja is that Jallikattu falls within the boundaries of the actions forbidden by the PCA Act. It is for this reason that the present effort at regulating the practice seeks to create a blanket exemption.
• When Tamil Nadu amended the PCA Act in 2017— it did so on the basis that both the state and the Union government have the power to legislate on issues concerning cruelty to animals — it specifically excluded Jallikattu from the confines of the statute’s various protections. It also secured the President’s imprimatur for the law, and thus attempted to save the legislation from any accusation that it was repugnant to the PCA Act and therefore illegal.

Arguments for petitioners

• Judicial review of legislation can broadly be made on two grounds. One, on whether the legislature possesses the competence to enact the law; and two, on whether the law violates one or the other of the fundamental rights delineated in Part III of the Constitution. 
• Tamil Nadu’s amendments, the petitioners claimed, failed on both grounds. First, the petitioners recognised that both the Union and the State legislatures have equal power to make laws on ‘prevention of animal cruelty’ — relatable as it is to Entry 17 of the Concurrent List of Schedule VII to the Constitution. But the law regulating Jallikattu, according to them, by excluding the practice from the PCA Act, has the effect of condoning cruelty on animals and hence must be seen as a colourable action that bears no nexus to Entry 17. 
• Second, the petitioners submitted that the Supreme Court arrived at clear findings of fact and law in 2014. In A. Nagaraja, the court had held that Jallikatu, in and by itself, amounted to a violation of the existing provisions of the PCA Act, and the fundamental duty contained in Article 51A(g), which requires citizens “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.” The effect of this violation, the court held, had a direct bearing on the right to life contained in Article 21. The Bench was conscious that the right in Article 21 is conferred only on human beings. But the expanded meaning of the word “life” over the years, which now included a right against disturbance to the basic environment ought to mean that animal life must also be treated with “intrinsic worth, honour and dignity,” the court found.
• Both sets of arguments made by the petitioners call for deep reflection. But the latter argument — on infraction of fundamental rights — raises several allied questions: Do animals have personhood? Does our idea of justice include a guarantee of animal rights? If not, do we still owe a duty of care towards our fellow creatures? What does that duty entail? How does it balance with other rights guaranteed to human beings?

Care towards animals

• On any reasonable reading of the Constitution, it might be difficult to hold that animals are promised rights to life and personal liberty under Article 21 and equality under Article 14 — a conclusion to that effect could well lead to bizarre consequences. 
• Arguments in favour of personhood invariably spring out of a belief that animals, especially certain kinds of animals such as apes, elephants, and whales, share much in common with human beings. But as the philosopher, Martha Nussbaum says, our duty of care towards animals must hardly originate from our similarities to them. We must instead see “each form of animal life in all its beauty and strangeness.”
• The better approach to the dispute would be rather than focusing on personhood, the approach that maintains a greater fidelity to our Constitution’s text and values, is to see it in the context of our own right to live in a world that treats animals with equal concern. 
• The judgment in A. Nagaraja hinted at this approach but stopped short of fleshing it out. Article 21, Justice K.S. Radhakrishnan held, no doubt safeguards only the rights of human beings, but the word “life” is today understood to mean something more than mere existence; it means an existence that allows us, among other things, to live in a clean and healthy environment. 
• Indeed, it is possible to argue that a human right to a healthy environment would include a human right to animal welfare. Viewed thus, our governments would be constitutionally obligated to take measures to help the flourishing of our fellow creatures. 
• In this conception, legislating to prevent animal cruelty is no longer an option; it transforms into a binding duty cast on the state.