The palpable dichotomy between animal cruelty laws and implementation – Is there a way forward for Indian jurisprudence?

Abstract

Keywords

Animal cruelty laws, Legal rights of animals, Judicial precedents, Inadequacy of legislation, Animal protection jurisprudence

Suggested Citation Style

Johari, Bhavya (2024). The palpable dichotomy between animal cruelty laws and implementation – Is there a way forward for Indian jurisprudence? Journal of Animal Law, Ethics and One Health (LEOH), 122-134. DOI: 10.58590/leoh.2024.009

* Completed the B.A. LL.B. (Hons.) degree from NALSAR University of Law, Hyderabad, and is currently a LL.M. candidate at the University of Melbourne.

Content

• I. Introduction
• II. Existing Anthropocentric Legislation and Jurisprudence
• III. The Judiciary’s Progressive but Vague Grand Narratives
• IV. Navigating the Murky Waters
• 1. A Panacea for the Legislative Level
• 2. A Panacea for the Judicial Level
• V. Conclusion

I. Introduction

"Parasparograha Jeevanam" – the core aphorism in Jainism, one of India's oldest and most revered religions, mandates that every living being, from a microbe to humans, has a soul and deserves due respect for their intrinsic worth. As a result, inevitably, there should be co-habitation without hierarchizing one living being over another.[1] "Ahimsa Paramo Dharma" is another sanctimonious, inviolable precept that requires adherence to the principle of non-violence, be it towards humans or animals, as no segregation between different living beings has been carved per se.[2] Many such impugned old cannons persist, demonstrating the need to perceive and simultaneously respect all animals and human beings on the same pedestal.[3]

The Legislative developments, not dissociated from the socioeconomic background, inevitably corresponded to the said religious premises, and there emanated the comprehensive Animal Cruelty Law of India, which was not only progressive but was broader in the ambit as well. Likewise, Juridical discourse became the torchbearer for animal rights and used the legislative avenue further to alleviate the existing status quo of the animal welfare regime. Hence, the problem concerning animal rights legal discourse persists not necessarily due to the absence of such laws but rather to the potential conflict between animal rights and human rights. This challenge is not unique to India, as the balance between protecting animal welfare and upholding human rights is an ongoing global dilemma.

And though not the intended effect, it has poked holes in the progressive avenues, paving the way for blatant animal abuse rather than curbing it. In this paper, by and large, the author will endeavor to show that the existing jurisprudence in India, be it legislative or juridical, perceives animals on the one hand as commodities or property and as having intrinsic worth, and on the other hand, owing to the clutches of anthropocentrism or speciesism, rendering the entire discourse merely symbolic, although the primary legislation defines cruelty[4] and animals[5] broadly and comprehensively. However, regarding the consequences, the enforcement measures are not based on the proportionality threshold but on the human convenience threshold. The maximum liability under the Prevention of Cruelty to Animals Act of 1960 is a mere fifty rupees for the first offence and a hundred rupees, coupled with three months’ imprisonment, if the offence is committed within three years of the first offence.[6]

The trivial consequences manifest that though the legislative intentions were progressive, owing to anthropocentrism, the legislators ended up privileging humans and required animal protection only to the extent that it caused no inconvenience to humans. As a result, despite the existence of comprehensive legislation, there has been an exorbitant increase in animal cruelty cases, such as the ruthless beating and burning of dogs alive,[7] the inhuman infusion of alcoholic substances,[8] and so on.

On the other hand, the judiciary has played a crucial role in transcending the boundaries of speciesism by placing human and non-human dignity on the same pedestal. Yet, the contested enunciation of animal rights lacked the necessary force, as the discourse remained completely unsupported by justifiable, coherent, and normative evidence. There were discrepancies within the verdicts, as in one place, animal rights were established as an end in themselves, thus recognizing the intrinsic dignity and value of animals, whilst, in another place, the same rights were grounded as a means to human ends, that is, as required to be protected by humans as trustees, in line with the welfarist regime.[9] The questionable back and forth, coupled with the lack of a substantiated argumentation, inevitably forged the vagueness and reversed the progression.

This paper will address the shortcomings mentioned above. It will navigate through the murky waters towards a new dawn by outlining the avenues that could help overcome the mentioned shortcomings and how animal rights could be concretized, not just symbolically but authentically and substantively. This paper is divided into five chapters. Chapter II discusses the constitutional jurisprudence that privileges human rights over animal rights and the subsequent legislative developments. In Chapter III, we discuss the narratives stitched together by the judiciary, which prima facie look promising but, in reality, set back development. Chapter IV discusses the solutions that could help overcome the obstacles to realizing animal rights. Lastly, Chapter V draws all the threads together and concludes with optimistic hope.

II. Existing Anthropocentric Legislation and Jurisprudence

The Indian Constitution, forged after the historical partition between India and Pakistan, was primarily focused on ensuring unity, stability, and the protection of human rights in the country. While the Constitution does not explicitly enshrine a comprehensive framework of "animal rights," it does include specific provisions that reflect the cultural and religious significance of certain animals, particularly cows, within the Hindu community. Article 48[10] of the Directive Principles of State Policy calls upon the state to "prohibit the slaughter of cows, calves and other milch and draught cattle". However, the intent behind this provision was not to establish animal rights per se but rather to protect the religious and cultural reverence attributed to cows in Hinduism. The interpretation and application of Article 48 have also been influenced by underlying economic considerations, as evidenced by the Hanif Quareshi judgment, where the Supreme Court highlighted the importance of cattle as a vital agricultural resource.[11]

Similarly, Article 48A,[12] which mandates the state to "protect and improve the environment and to safeguard the forests and wildlife of the country", cannot be construed as an aspect of animal rights. While this provision reflects a concern for wildlife and environmental protection, it does not establish the inherent worth of animals or a framework for animal rights. Furthermore, the Fundamental Duties chapter, Article 51A(g) and (h),[13] requires citizens to have "compassion for living creatures" and "develop the scientific temper, humanism and the spirit of inquiry and reform". However, these provisions do not confer justiciable animal rights, as the fundamental rights have been interpreted as applying only to human beings and not to animals.

Paradoxically, the contested constitutional articulations might suggest an unequivocal commitment to animal welfare. However, a closer look reveals a contrasting reality.

The Constituent Assembly Debates pertaining to Article 48 show that the intention was not to extend the protection to all animals but to protect only cows because of the deeply entrenched unique historical-religious significance held in the Hindu Community.[14] Furthermore, since neither the Fundamental Duties nor the Directive Principles of State Policy were justiciable, an amendment was proposed to incorporate the protections afforded to cows as justiciable Fundamental Rights. However, this was inevitably rejected as the Fundamental Rights were interpreted as being solely and exclusively available to humans and not to animals per se, further underlining the absence of an actual animal rights paradigm in the Constitution.[15]

As a result, such constitutional provisions have been repeatedly juxtaposed with legislative provisions to avoid absurd interpretations and to resolve ambiguities and vagueness, as the provisions, while appearing progressive, did not enshrine broader animal rights.[16] Inevitably, although the constitutional clauses dealt with animals, the constitutional rights were granted only to humans. The animals were merely perceived as objects to be protected to further human well-being. Human desires and needs have inevitably overshadowed the overarching goal of animal protection, which has unfortunately overshadowed further progressive developments.

The Prevention of Cruelty to Animals Act 1960 was introduced to replace the older 1890 version. The newer version went beyond the limited application by interpreting animals and cruelty in a broader sense. While the 1890 version defined animals merely as domestic or captured,[17] the latter defined animals as living beings other than human beings.[18] The amendment was essential as cruelty is predominantly inflicted not on domestic animals but on stray animals. Similarly, while the earlier version failed to capture cruelty in terms of the deliberate administration of harmful substances and failed to enunciate the positive duty to provide animals with adequate food, the latter version duly incorporated the same.[19]

Although the stated intentions were pro-animal welfare, the blockades stemmed from anthropocentrism. The proponents, most notably Rukhmini Arundale, who campaigned for the Bill, focused solely on the inhumane use of animals and not on the use of animals for human needs.[20] This gave rise to the phrase "unnecessary pain or suffering", which, in turn, completely excluded from the legislative mandate the cruelty inflicted on animals for scientific experimentation, education, training, and so on, under the guise of necessity.[21] The challenged necessity doctrine was further supplemented by the broad discretion given to the judiciary to determine unnecessary pain or suffering on a case-by-case basis.[22] The problem is that the judges’ discretion is not guided by any illustrative reference points that could help to limit the privileging of human needs. Without this, the struggle between human needs and animal protection inevitably paves the way for the former to prevail. A case in point is People for Elimination of Stray Troubles vs State of Goa & Ors.,[23] where even euthanasia was approved as a humane way to regulate the stray dog population. However, this decision was later overturned by the Supreme Court in Animal Welfare Board of India vs People for Elimination of Stray Troubles & Ors.[24]

Meanwhile, at the enforcement level, the situation worsened. The primary provision enunciating the ensuing consequences vis-à-vis cruelty instances is Section 11 of the Prevention of Cruelty to Animals Act.[25] Section 11 comprehensively outlines cruelty instances such as the beating of animals,[26] the willful and unreasonable administration of any injurious drug or substance,[27] the confinement depriving the animal of reasonable freedom of movement,[28] etcetera. However, the imminent consequences for the offences as enunciated under Section 11(1) (a) to (o) attract only the fifty rupees liability for the first offence and may attract up to a hundred rupees liability or three months imprisonment or both for the second or subsequent offence within the ambit of three years from the first offence.[29] The disproportionate penalties in relation to the gravity of the offences fail to create the required deterrent effect, thereby rendering the entire legislative discourse merely symbolic as it is completely ineffective in deterring the recurring incidents of animal cruelty per se.

On the one hand, one could even cause the death of an animal and pay a meagre fifty rupees and procure the get-out-of-jail-free card without suffering any proportionate consequences. This has an uncanny resonance with Kantian philosophy, which sees the protection of animals as a duty humans owe to themselves.[30] The Kantian philosophy excludes animals from the scope of morality, rendering them incapable of demanding any obligations from humans and exercising any rights of participation in the system.[31] Following this way of thinking, animal interests deserve to be protected only to the extent necessary to fulfil overarching human interests.[32] This philosophical premise underlies the enforcement measures in India, as the ensuing penalties have been trivially incorporated to preclude any inconvenience to the human perpetrators in the first place, rendering the entire progressive evolution impotent.

III. The Judiciary’s Progressive but Vague Grand Narratives

The Indian judiciary transcended the speciesism and anthropocentrism that inevitably crept into the legislative discourse to facilitate animal welfare jurisprudence. Animal rights were declared at par with human rights by grounding them in intrinsic worth or dignity rather than in any superficial abstract duty owed by humans. However, owing to the lingering anthropocentric baggage, even the judiciary has been unable to concretize the animal welfare regime into a specific, grounded theoretical framework. As a result, the juridical discourse produced a promising animal rights jurisprudence but stood on weaker ground, lacking the necessary normative force. In order to highlight the above assertion, it would be useful to refer to the two prominent cases where the Indian judiciary failed to provide an anchor while enunciating the intensifying animal rights regime and forging more vagueness in the already persistent toothless regime.

The Animal Welfare Board of India v. Nagaraj & Ors., is the epitome.[33] The case is considered the landmark judgment in the field of animal rights, as it ended up vindicating the dignity rights of animals. The facts involved the struggle between the historically revered communal tradition of Tamil Nadu, known as Jallikatu, and the interests of animals. The practice in question involved the manifestation of "bravery", in which the person who managed to get coins tied to a bull's horn was considered the winner. The problem was that the bull was intentionally driven frantic in order to agitate it; its eyes were rubbed with irritant substances, and the bulls were force-fed with harmful alcoholic substances.

It is worth reiterating here that while the legislation made unnecessary pain or suffering illegal, it failed to articulate the required standards by which the infliction of pain could be categorized as unnecessary. As a result, while there was a general consensus that animals should not suffer unnecessarily, there was a complex wrangling over what did and did not constitute necessary and unnecessary pain or suffering.[34] The Supreme Court put an end to this protracted debate in the present case. It defined unnecessary pain as the pain that could reasonably be avoided or reduced or, in other words, allowed the infliction of pain only if and when it served a legitimate purpose, which could be the benefit of the animal or the human as such.[35] This reasoning resonates with the claim of the renowned animal rights scholar Cass Sunstein, who similarly argues that animals should not be subjected to more suffering than is absolutely necessary.[36]

Animals have repeatedly been utilized for human needs, and even the Supreme Court has rightly refrained from ruling in favour of absolute abstention. What is essential is a balance between human and non-human needs and interests, as even David Favre, another revered scholar in the animal rights field, advocates.[37] Furthermore, the Supreme Court banned Jallikattu, as it involves pain or suffering that is not based on necessary grounds but instead on selfish human gain.[38]

The Court ruled in favour of the animal rights activists,[39] holding that the challenged community tradition violated not only Section 3,[40] but also Sections 11(1)(a)[41], (c)[42], (f)[43], (m)[44], and (n)[45] as well as Section 22.[46] However, the Supreme Court became indecisive when the need arose to outline the underlying, substantiated, concrete framework to which such a progressive animal rights regime could be anchored. The legislative mandate was anchored in the broader constitutional framework; however, it inevitably struggled to ground the animal rights regime, oscillating between fundamental duties and fundamental rights to provide a normative force for animal protection. The court acknowledged that the aforementioned statutory rights under the Act, which sought to prevent unnecessary animal suffering, needed to be elevated to the level of fundamental rights in order to recognize the inherent dignity of animals truly. Yet, due to the conspicuous absence of a comprehensive animal rights regime within the Indian Constitution, the court found it challenging to firmly anchor the statutory protections to the constitutional provisions. As a result, the court first referred to the fundamental duties by invoking Article 51(A)(g)[47] and (h).[48] It highlighted that the duties in question were the Magna Carta of animal rights.[49]

Through the impugned rooting, the animal rights regime was enunciated as a means to human ends, as the fundamental duties encapsulate anthropocentric characteristics, where human beings are expected to protect and have compassion for living creatures per se. In contrast, on the other hand, animal rights were later articulated as an end in themselves and thus not protected as a duty humans owe to themselves. Instead, animals are entitled to respect due to their intrinsic value. The link with Article 21[50] was established to weave animal rights into the nuanced dignity framework as the case vis-à-vis human rights persisted.[51] The Supreme Court clarified that animals have a right to life that is not limited to mere survival or existence but instead includes a life of intrinsic worth, dignity, and honour.[52] In doing so, the animal rights regime was tempered and rooted in the framework of fundamental rights, which, unlike fundamental duties, is justiciable, creating a higher normative force. The grounding thus manifested itself in the antithetical premises of the same judgement. Although animal rights were recognized as rights of dignity, there remained a lack of clarity regarding the extent to which they could take precedence over human rights. The result was a theoretically promising jurisprudence but, in reality, a discourse that failed to outline the applicable standards, making realistic implementation difficult.

Secondly, we refer to the case Animals and Birds Charitable Trust v. Municipal Corporation of Greater Mumbai to outline further how the judiciary remains irresolute.[53] The facts of the case involved the usage of horses and ponies for driving carriages across Mumbai city, solely for the purpose of tourism and recreation.

The Bombay High Court ruled in favour of animal rights activists and banned the challenged joyrides as being beyond the mandate of necessity, which was an avoidable activity.[54] Relying on the landmark Nagaraja Case, it was held that the impugned activity infracted Sections 3[55] and 11[56] of the Prevention of Cruelty to Animals Act of 1960.[57] The judiciary accepted the contentions of the animal rights activists. It acknowledged the pain caused by being confined to a cramped space, deprivation of reasonable movement opportunities, and being forced to lay on concrete and tar floors.[58]

Once again, however, the Bombay High Court caught up in the precedent of the Nagaraja case, inevitably followed the same back and forth between fundamental duties and fundamental rights. The entrenchment began with the rooting of animal rights in the progressive discourse of Article 21 and was immediately followed by the rooting of the discourse in Article 51(A) (g) and (h).[59] Thus, the vagueness created by the Nagaraja Case is being perpetuated in other progressive cases. Decisions are being made in favour of animal rights advocates; nonetheless, the stark contrast remains unresolved. On the one hand, the judiciary supports the idea that humans are perceived as trustees who owe a duty to animals. On the other hand, animals are understood as being independent and distinct bearers of rights, entitled to dignity by virtue of their intrinsic worth.

IV. Navigating the Murky Waters

This chapter will attempt to outline the ways in which the gaps and loopholes are prevalent in the existing legislative and jurisprudential discourse. The solutions will be outlined at two levels: legislative and judicial. Firstly, it is imperative to overcome the perceived gaps prevalent at the legislative level, as the judiciary at the secondary level inevitably adheres to the four corners of the legislative mandate, and thus, the progression has to start from the very beginning. In many cases, the judiciary has read the statutory provisions alongside the constitutional provisions,[60] thereby duly demonstrating the concrete intention to protect animal rights;[61] however, the legislation's toothless penal provisions hinder achieving the overarching goal.

1. A Panacea for the Legislative Level

The comprehensive legislation, the Prevention of Cruelty to Animals Act 1960, severely lacks the adequate penalties required to hegemonize the deterrent effect to prevent the recurrence of animal abuse.[62] The lack of substantive penal provisions inevitably leads to the absence of the requisite social stigma attached to animal cruelty offences, creating a vacuum in the existing legislative structure.

Overcoming Speciesism by incorporating proportionality: To overcome the inadequacy, it is necessary to move from speciesism[63] to proportionality. Speciesism is the root cause of the trivial and inadequate penalties as policymakers inevitably hierarchize humans over animals, giving the former more rights than the latter, sometimes even at the expense of the animal.[64] The renowned animal rights scholar Peter Singer advocates that we need to overcome entrenched speciesism by establishing a link between humans and non-humans based on their capacity to suffer.[65] The theoretical premise is the fact that both species, human or non-human, have the same capacity to suffer and, therefore, command equal protection of their rights rather than privileging one species' rights over another.[66]

These assertions resonate with Bentham’s ideological position,[67] who, like Singer, supports sentience and rejects rationality as a bar to confer protection to animals per se. Thus, to ensure that animal rights remain no longer subordinated to human interests and that they are not only protected to the extent that they do not cause inconvenience to the former, there remains the need to incorporate proportionate penalties. Proportionality in the criminal justice system implies fairness to the offender and society[68] since the crimes committed are interpreted as having been committed against society.[69] Unfortunately, existing penalties inevitably fail on both counts. Fairness to the offender requires that the resulting punishment should not be harsher than the crime in question; however, the fifty-rupee punishment could not even be construed as harsh. Thus, the issue of the unfairness of punishment could not even be discussed. The second head, fairness to society, requires analysis in terms of the legislation's objective.[70] The Statement of Objects and Reasons for Prevention of Cruelty to Animals Act, 1960, unequivocally outlines the objective – to prevent unnecessary pain or suffering.[71] Moreover, even the constitutional provisions support the impugned objective, as Article 51 (A)(g) and (h)[72] mandate the duty to ensure the welfare of animals. In the Nagaraja case,[73] the Supreme Court summarized the underlying objective as a positive duty to ensure the welfare and prevent unnecessary pain or suffering.

While not establishing the inherent rights of animals, the manifest articulation elevated protections beyond traditional welfare approaches within the judicial corners.[74] This decision bridged welfare considerations with more progressive animal protection philosophies by incorporating elements of rights-based thinking, such as acknowledging the rights of animals to live with dignity and be free from unnecessary suffering while stopping short of granting full legal personhood. Hence, fairness to society mandated that legislation should preclude the infliction of unnecessary pain or suffering; however, recurrent animal cruelty remains prevalent, highlighting the discrepancy between judicial articulation and practical implementation.

Achieving Deterrence by Increasing Existing Penalties: In order to prevent the infliction of cruelty to animals, it is inevitable that penalties will need to be reviewed and substantially increased to ensure that they remain proportionate to the seriousness of the offence. Penalties in the criminal justice system require the allocation of resources with the underlying motive of discouraging the commission of crimes, thus exerting a deterrent effect.[75] At this point, American jurisprudence could be used to determine the extent to which the fine should be increased. According to the laws of the State of California, for example, animal cruelty can lead to a fine of up to twenty thousand dollars, up to one year in jail, or both.[76] The social conditions are very different, of course, and the equivalent transposition would be rather antithetical. Nevertheless, the underlying need to incorporate deterrence could not be ignored.

In addition, the penalties prescribed in the Animal Welfare Act 2011, which unfortunately was not passed due to the increased penalties, could be implemented: For the first offence, the provisions provided for a fine of up to twenty-five thousand rupees or imprisonment for up to two years, or both.[77] In contrast, for the second or subsequent offences, a fine of up to one lakh rupees or imprisonment of up to three years was provided.[78] Though the penalties may seem severe due to hegemonized anthropocentrism, it is the need of the hour to prevent periodic incidents of animal abuse.

Embrace Differential Punishments by Reciprocating to the Severity of the Offence: Further, there remains a due need to separate offences rather than interpreting all offences irrespective of severity under one pigeonhole coverage. The articulation is not far-fetched, as the same is already prevalent in the existing criminal justice system.[79] An epitome of the same could be found in the Indian Penal Code, the primary criminal law of India, which duly employs the differential punishment standard, inevitably categorizing the resulting punishment and the status of the offences differently according to the gravity of the offence. The Code, for instance, distinguishes between simple[80] and serious injury,[81] the former being less serious than the latter and thus resulting in a lesser punishment. This categorization is essential as otherwise, the resulting consequence would remain the same, irrespective of the severity of the injury. For instance, in one example, the beating could result in minor injury; in the other, the beating could result in death, yet the same punishment would follow. Differentiation is, therefore, essential to ensure proportionate punishment. The foregoing has focused primarily on circumventing the loopholes in the legislation; however, unless the identified gaps at the secondary level are not overcome, a concrete animal rights discourse cannot emerge.

2. A Panacea for the Judicial Level

The Supreme Court in the Nagaraja case unequivocally granted animals the five freedoms, that is, freedom from – 1) pain, injury, and disease; 2) heat stress or physical discomfort; 3) hunger, thirst, and malnutrition; 4) fear and distress; and finally, 5) freedom to manifest standard behavioural patterns.[82] The freedoms in question had hitherto existed only in the international forum, for example, in the Terrestrial Animal Health Code, formulated by the World Health Organization of Animal Health,[83] of which India is a member, but the corresponding invocation was invisible in the domestic forum.

The Indian judiciary, particularly in the case of the Animal Welfare Board of India v. Union of India,[84] demonstrated a progressive understanding of animal rights in line with international standards. However, the court exercised judicial restraint despite recognizing animals as sentient beings and recognizing the legislative vacuum in conferring inherent rights to animals. Citing the doctrine of separation of powers, it refrained from judicially interpreting the existence of such rights, instead deferring to the power of the legislature to enact appropriate legislation. This stance underscores the tension between evolving animal welfare discourse and constitutional principles and highlights the pressing need for legislative action to harmonize domestic animal rights with international norms.

To this end, though the role of the Indian judiciary in shaping the animal rights discourse cannot be undermined, there remains an imperative to overcome the existing vagueness. 

Building Strong Precedents through Selective and Gradual Extension of Dignity Rights: The challenged pronouncements could inevitably not be progressively applied due to the broad vagueness that the judgements have constructed while carving out the justifications for the promising animal rights discourse. The judiciary has progressively extended the applicability of Article 21[85] to animals but has not soundly expounded the limitations and nuances of its application. The judiciary has moved away from the conventional anthropocentric premises; however, it is still indecisive in constructing the underlying normative framework.[86] Dignity rights have been granted to animals, but the dignity of animals has not been enunciated.

In this regard, comparative jurisprudence could be used as a reference to circumvent the perceived loopholes persisting in the Indian judicial discourse. The Swiss Federal Court, the highest Swiss court, has invoked the dignity rights pertaining to animals in a case concerning animal testing but simultaneously limited it to non-human primates.[87] The impugned articulation prioritizes the genetic proximity to humans, which completely contradicts the recognition of the intrinsic value of animals, which requires protection regardless of their similarity to humans.[88] In this respect, the Indian Supreme Court's articulation is more consistent with the animal rights regime, as rights are not limited to animals with a close genealogical relationship to humans.

However, this enunciation remains problematic because of the fundamental discrepancy between theory and practice in the Indian social structure. The rights of dignity accorded to all animals would require the prohibition of their use for food since recognizing their intrinsic value would inevitably preclude their slaughter for human purposes. Since absolute abstention is not provided for either at the legislative or judicial level or in factual reality, such an advanced articulation undoubtedly remains a paradox. To this end, Swiss jurisprudence adopts a more pragmatic approach to animal dignity. Interpreting Article 120(2) of the Constitution[89] alongside Article 3(a) of the Animal Welfare Act[90] establishes animal dignity as a non-absolute principle: incorporating a weighing of interests test reconciles the constitutional recognition of animal dignity with societal realities. This creates a flexible framework that acknowledges animals' intrinsic value while permitting certain overriding human interests to be under scrutiny.[91] It thus balances absolute animal rights and unrestricted human exploitation, facilitating gradual progress in animal welfare. Hence, although Swiss jurisprudence has its shortcomings, the underlying idea of granting rights of dignity gradually is more effective than the empty rhetoric that constructs vagueness, uncertainty, and a dichotomy between theory and reality.

The renowned animal rights scholar Professor David Favre has similarly argued and articulated the need to grant the rights to selected animals entirely based on the prevailing socio-political considerations of the jurisdiction concerned.[92]An epitome of this was seen in Nepal’s jurisprudence, in a case called Advocate Padam Bahadur Shrestha v. Government of Nepal and Others,[93] wherein the dignity rights were selectively accorded to cows, thereby prohibiting their slaughter for human purposes. However, dignity rights were not extended to all animals whose lives remained subject to the whims and caprices of humans. The Indian judiciary should cautiously and moderately extend dignity rights based on the existing socio-economic-political consensus prevailing in the jurisdiction. Otherwise, while the theoretical premise would recognize the intrinsic value of animals, it would be conveniently traded to serve the overarching human interests. 

Articulation of Indisputable Standards for Decisive Applicability of the Animal Rights Regime: There is a continuing need to address the vagueness regarding animal rights when they come into conflict with diverse, deeply rooted cultural traditions. The Supreme Court, in the Nagaraja case,[94] privileged animal rights over cultural rights but failed to articulate the underlying premise that could delineate the extent to which animal rights could be allowed to prevail over cultural rights. Similarly, it failed to outline how the conflicting rights at issue were to be balanced, leaving ambiguity and room for human-side advocates to use the same precedent in other conflicting cases to cement their side. Indian jurisprudence, as mentioned above, incorporates various religious and cultural traditions that govern human life. They often come into conflict with other prevailing rights, making it imperative to avoid privileging one over the other and to ensure harmony and balance. The same becomes even more imperative when the conflicting rights relate to minority communities, as the marginalized within the minority community are inevitably seconded.[95] Animals cannot invoke the law to ensure the protection of their rights and capabilities.

Unless a normative framework is put in place, the conflict between animal rights, on the one hand, and human cultural rights, on the other, could inevitably lead to the victory of the latter.

V. Conclusion

In this article, the synopsis vis-à-vis the animal rights discourse as prevalent at the legislative and judicial levels in India has been outlined to show how, despite the entrenched anthropocentrism and speciesism, a discourse has emerged that does indeed place animals at the centre. However, despite the clear departure and progressive intentions, the anthropocentric shadows inevitably overshadowed the legislative developments and judicial pronouncements.

The article looked into the comprehensive legislation on animal cruelty in India and examined how the Constituent Assembly debates and the resulting constitutional provisions obstructed further progressive efforts. The anthropocentric provision of the Constitution proclaims the protection of animal rights as a duty owed by humans to themselves rather than based on the intrinsic value of animals. Inevitably, the Indian legislature followed this path and, as a result, failed to include substantive penalties because of the constructed narrative that animals are a means to human ends. In contrast, in the modern Indian context, the judiciary has successfully transcended the evil clutches of speciesism by extending dignity rights to animals. However, each judgement has failed to articulate the imperative constitutional issues, including the articulation of dignity rights to animals and, more importantly, the applicability of animal dignity rights vis-à-vis human needs and cultural rights.

As a result of the above shortcomings, recurrent animal abuses are widespread and increasing in scale and intensity. A necessary change at the legislative and juridical levels is required to prevent the occurrence of animal cruelty. The need to incorporate proportional penalties according to the various offences and their respective intensities remains at the legislative level. The proposed progression would inevitably hegemonize the deterrent effect towards animal cruelty offences, precluding such cases. On the other hand, at the level of the judiciary, it is necessary to delineate the well-articulated reasoning vis-à-vis the underlying normative framework in which the animal rights regime could be successfully anchored. Dignity rights could only be applied in a substantive way if their application and limitations are concretely delineated. At the same time, the judiciary should gradually extend the rights; otherwise, animals would continue to be used for human needs despite the fact that they are theoretically endowed with dignity rights.

Unless the gaps and loopholes identified are not filled, animals will be relegated to a position of inferiority and will inevitably remain subservient to human interests.

Copyright (c) 2024 Bhavya Johari

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