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Constitutional Rights to Animals: An Analysis on Its Effectiveness

The most sensational judgment revolving around animal welfare in India is AWBI vs A. Nagaraj[1], which banned Jallikattu in Tamilnadu and bullock-cart races in Maharashtra and Punjab. The Court, in its analysis, sought to bring animals under the protection of the rights discourse by stating that Article 21 of the Constitution of India could be applied to animal life. The Court stated that the term ‘life’ must be expansively interpreted. As animals form a crucial part of human beings’ environment, their rights must also be protected under Article 21.

A rights-based interpretation of animal welfare legislation is misplaced and does not rightly serve the purpose of animal welfare.

Article 21 of the Constitution of India revolves around human life and human dignity. By protecting non-human animal life through Article 21, the Supreme Court has defied earlier notions of who the possessors of this right are.

However, the larger question revolves around the effectiveness of a rights-based approach towards animal protection. Recognising non-human animals as legal persons and according them rights would result in several problems and conflicts within the existing rights regime.

An apprehend-able problem is rise of conflict between human rights and animal rights. Granting animals’ rights, especially under the Constitution, would entitle them to a range of benefits. These benefits could possibly damage the way in which human life is benefitted through the ascription of rights to humans, ultimately our whole way of life we are used to. There may be a conflict between human religious rights and animal rights; Animal sacrifices are not new in India.

However, the language of rights has evolved such that the word itself can evoke feelings of “moral and metaphysical meaning” and have been used in a largely rhetorical sense.[2] 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. Any creation of rights for animals would automatically create a duty on the part of humans to protect the rights of animals in an absolute sense, even to the extent that human welfare itself may be neglected, and not just to improve the treatment or welfare of animals. It has been said that a conflict of rights can only result in the prevailing of human rights,[3]but the possibility of the effects of the evolution of such jurisprudence could prove worrisome to human welfare and social order.

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Why not grant animals “rights in a weak sense” under benefit theory of rights[4] where the right exists only to the extent of the benefit that humans choose to extend unto animals.[5]However, it is practically impossible to precisely distinguish between what a ‘strong’ and a ‘weak’ right intends to protect, especially in the event of a conflict between human rights and animal rights.[6] Even if this could be done, it would possibly defeat the concept of a right as universally applicable and enforceable entitlements.

Along with the possibility of conflict, the primary drawback of adopting a rights-based approach towards animal welfare lies in the possibility of it never taking effect in the manner intended. It must not be forgotten that rights are, in essence, only instruments to realise the actualization of human want or for the attainment of a further human goal. Rights are, therefore, more of a functional characteristic than an inherent characteristic of existence and governance. Any right that is created or sanctioned by the State is done so as to allow people to develop to their full potential and to enhance their lives. The inference that may be drawn from this is that every right, whether a claim, a privilege, an immunity or a power is only granted to a person for the purpose of furthering their own good. Rights are valued only when they effectively accomplish the reason for which they were created. In this light, a test was proposed in N.R. Nair v. Union of India [7]

The first is whether the end that is envisaged by this right is a “real and legitimate human value”. Second, he asks whether the right will be an effective means to this end. Finally, will the implementation of the claimed right further good rather than harm?

When the subjects on which the rights are conferred are animals, these questions form a substantial part of whether rights should be granted to animals or not. The first question itself refers to a legitimate human value, as the only end to conferring any right. There has been much discourse on whether the protection of animals is a matter of human concern and we believe that it is and it will continue to be so, either for as long as humans and non-humans share an ecosystem and environment or until humans cease to use animals for their collective or individual benefit. This point is elaborated further in the following sections of the paper. However, just because it is a legitimate human value, it does not mean that the value can only be placed on a rights pedestal or that a rights-based view will enable humans to better realise that value. This is where the second question becomes important.

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The second question refers to the most suitable means to arrive at a particular 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.

Finally, if the harms and benefits of granting animals rights were to be analyzed, it would be difficult to conclude that adopting such an approach would further animal welfare. This is partly due to the possibility of conflict between human and animal rights, the result of which will almost always be the victory of human rights and a subjugation of the ‘rights’ of animals. As will be explained in the subsequent section, there are more effective ways of protecting animals rather than forcibly bringing them within the domain of rights.

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 non-human 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.

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[1] (2014) 7 SCC 547

[2] Iredell Jenkins, The Concept of Rights and the Competence of Courts, 18 Am. J. Juris. 1, 7 (1973).

[3]  P.J. Fitzgerald, Salmond on Jurisprudence 63 (2004).

[4]  Jeremy Bentham, Of Laws in General in The Works of Jeremy Bentham (1970)

[5] Michael Wilkinson, Animal Rights: A Test Case for Theories of Rights, 1998 Ucl Jurisprudence Rev. 144, 145 (1998).

[6] Andrew Johnson, A Blind Eye to Animal Rights?, 64 (248) Philosophy 255, 258 (1989).

[7] AIR 2000 Ker 340.

Cite this article (The Bluebook 20th ed.)-

Sindhanaa Andavan, Constitutional Rights to Animals: An Analysis on Its Effectiveness, Ex Gratia Law Journal, (September 26, 2020),

This BLawG won the Best Paper (1st Runner-up) in First Edition of Article Writing Competition, 2020 conducted on August 29, 2020.

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Sindhanaa Andavan
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.