The Constitution of India is the supreme law of India which lays down the fundamental political code, rights and duties of citizens, directive principles of state policy, procedures, structures and powers of governmental institutions. It is widely regarded to be a “living document”- dynamic and constantly evolving with changing times. It is the longest written constitution in any country on earth and is divided into 395 articles (demarcated into 22 parts) and 12 schedules. The document establishes constitutional supremacy, i.e., the Indian Parliament cannot override the basic structure of the Constitution.
The Indian Constitution recognizes the sanctity of animal life and lays down the protection and treatment of animals with dignity as a fundamental duty of its citizens. The Constitutional Framework of animal protection in India is encompassed in the following parts:
- Fundamental Rights (Part III)
- Directive Principles of State Policy (Part IV)
- Fundamental Duties (Part IV-A)
- Allocation of powers between the Union and the States (the 7th Schedule) (discussed further in Overview of Animal Laws)
- Judicial Authority of Courts (Articles 141 and 144) (discussed further in Introduction to the Indian Judicial System)
The Fundamental Rights of India are enshrined in Part III (Articles 12 to 35) of the Constitution. They lay down universal, constitutionally-guaranteed rights essential for the existence and development of all individuals such as the Right to Equality, Right to Freedom, Right against Exploitation, etc. Any breach of Fundamental Rights is considered severe and the Supreme Court of India can be approached directly under Article 32 for constitutional remedies.
Relevant to animal welfare is the fundamental Right to Life under Article 21.
Article 21 lays down the Right to Life, stating that:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The Article has been characterized as the “procedural magna carta protective of life and liberty.” The Supreme Court of India has undertaken an expansive reading of the right to life, including under it the right to food and shelter, right to education, etc.
In the context of animal rights, the Supreme Court has brought some animal rights under the ambit of the right to life through an expansive reading in the case of Animal Welfare Board of India v. A. Nagaraja & Ors. (the Jallikattu case).
Animal Welfare Board of India v. A. Nagaraja & Ors.
Jallikattu is a traditional sport practiced in the Indian state of Tamil Nadu where a bull is released into a crowd of people who then attempt to grab onto the hump on the bull’s back and hang onto it while the bull attempts to escape. The tradition has seen several human deaths over the years alongside animal welfare concerns. Before the bulls are released, they are prodded with sharp sticks or scythes, their tails are bent to extreme lengths so as to fracture the vertebrae and even bitten. There are reports of the bulls being forced to drink alcohol or chilli peppers being rubbed into their eyes for disorientation and aggravation. During the event, the bulls are stabbed by knives and sticks, punched, jumped on and dragged to the ground. If not enclosed, the bulls may run into ongoing traffic resulting in broken bones or death.
A case was filed in the Supreme Court of India by the Animal Welfare Board of India (AWBI) in 2010 to ban Jallikattu due to concerns of animal cruelty and public safety. Jallikattu was banned in 2011 by the Ministry of Environment and Forests which issued a notification banning the use of bulls as performing animals. However, the practice continued to be held under certain conditions the Tamil Nadu Regulation of Jallikattu Act (2007).
This case was an appeal filed by the AWBI against a High Court decision allowing for Jallikattu to be conducted upon compliance with the Tamil Nadu Act. The AWBI sought to enforce the government notification barring bulls from being exhibited or being trained as performing animals.
The Supreme Court ruled in favour of the AWBI and upheld the enforcement of the ban on Jallikattu. It held that Article 51 A (g) of the Constitution is the “magna carta of animal rights” and made several observations to safeguard the “life” of animals under Article 21.
The Right to Life of Animals
With regard to Article 21, the Supreme Court notably held:
Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. 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. So far as animals are concerned, in our view “life” means something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honor and dignity.”
The Directive Principles of State Policy (DPSP) are 15 principles enshrined in Part IV (Article 36-51) of the Constitution forming the basis on which States frame laws and policies. Unlike the Fundamental Rights, the DPSP aren’t enforceable in any court. However, it is the duty of States to apply them in making laws for the constitution of a just society. Three directive principles form the foundation of state policies on animal welfare in India, enshrined in the following articles:
- Article 48
- Article 48A
Article 48 lays down that:
The State shall endeavor to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
Cattle slaughter, especially cow slaughter, is a deeply contentious issue in India because of the sacred value held by cows to sects of Hindus, Jains, Zoroastrians, and Buddhist. There was debate amongst the Constituent Assembly of the Constitution regarding whether Article 48 ought to be included as a Fundamental Right. In order to prevent forcing non-Hindus from accepting a certain thing against their will and stating that fundamental rights deal with human beings only and not animals, the Constituent Assembly ultimately accepted the provision as a DPSP instead.
Judicial developments in cow slaughter
In the case of Abdul Hakim Qureshi v. State of Bihar (1961), the Supreme Court heard a petition regarding the constitutionality of cow slaughter ban laws in Bihar. The Petitioner contended that the laws breached the fundamental right to freedom of religion (under Article 25) of Muslims by preventing them from freely practicing traditions of their religion such as sacrificing cows on Bakr-Id Day. The Supreme Court of India upheld that none of the Islamic texts like the Hidaya or the Quran mandated cow slaughter and they allowed for a goat or camel to be sacrificed instead. Therefore, according to the Court a total ban on cow slaughter did not infringe on the religious freedom of Muslims. In the context of Article 48, the Court held that directive only applies to cows, calves and other animals which have the potential of yielding milk or have the capacity to work as drought. Therefore, Article 48 does not envisage a prohibition on the slaughter of all cows or cattle.
A similar position was taken in the case of Mohd. Hanif Qureshi v. State of Bihar (1959) where the Supreme Court held that “A total ban [on cattle slaughter] was not permissible if, under economic conditions, keeping useless bull or bullock be a burden on the society and therefore not in the public interest." (See "Report of the National Commission on Cattle - Chapter I (8. The genesis of cow slaughter in India)". Department of Animal Husbandry, Dairying & Fisheries (DAHD)).
The position was overruled in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005) where the Supreme Court held that Article 48 envisions a total ban on the slaughter of cows and their progeny. It observed that cattle which has served the human species must be treated with compassion in its old age even though it is useless. The Court also ruled that "it was evident from the combined reading of Articles 48 and 51- A(g) of the [Indian] Constitution that citizens must show compassion to the animal kingdom. The animals have their own fundamental rights. Article 48 specifically lays down that the state shall endeavour to prohibit the slaughter of cows and calves, other milch and draught cattle".
Article 48A lays down the directive principle for protection and improvement of environment and safeguarding of forests and wildlife. It reads as:
The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.
This Article was added by the 42nd Amendment, 1976 and places an obligation on the State to protect the environment and wildlife. While not judicially enforceable, Article 48A may become enforceable under the ambit of the right to life under Article 21.
In M.C. Mehta v. Union of India (2002), the Supreme Court heard a public interest litigation in the matter of air pollution in Delhi. The Court made the following observations regarding Article 48A and public health:
Articles 39, 47 and 48A by themselves and collectively cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment.
In Sachidanand Pandey & Ors. v. The State of West Bengal & Ors. (1987), the Supreme Court held that Article 48A must be kept in mind whenever a matter regarding maintenance of the ecology is brought before the Court.
The Fundamental Duties of the citizens of India are enshrined in Article 51A (Part IV-A) of the Constitution. The Article was brought in by way of the 42nd Amendment of 1976 to bring the Indian Constitution in accordance with Article 29(1) of the Universal Declaration of Human Rights. While Fundamental Duties are unenforceable in courts, they are often resorted to in the interpretation of constitutional and other matters.
In the context of animal rights, the relevant clauses of Article 51A read as follows:
It shall be the duty of every citizen of India:
. . . (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform . . .
Article 51A (g) places a duty on the citizens of India to protect and improve the natural environment and have compassion for all living creatures. As interpreted in Animal Welfare Board of India v. A. Nagaraja & Ors. (2014), compassion for all living creatures includes concern for their suffering and well-being. In the case, the Supreme Court regarded 51A (g) alongside the duty to develop scientific temperament under 51A (h) as the magna carta of animal rights jurisprudence in India.
In State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Ors. (2005), the Supreme Court held that the intention of the Parliament in enacting Article 51A was for it to be read with Articles 48 and 48A, ensuring that the spirit of all provisions are honoured.