Section Two - Updates on new cases and new legislation
In this section, you can find short summaries of recent cases and legislation that have appeared after January 2023, when the textbook went to print. The section only contains briefs of the most important such materials, and only where they are relevant for animal rights law. If you wish to recommend cases or legislation to add to this page, please email Sean Butler or Raffael Fasel.
Please note that not all references are available for free. You can enquire with your university or city library whether they provide access to these sources.
Animal Welfare Board of India v Union of India (2023)
On 18 May 2023, the Indian Supreme Court issued its decision in Animal Welfare Board of India v Union of India, a case that allowed the Court to revisit its Animal Welfare Board of India v Nagaraja division bench ruling from 2014 and to clarify its stance on whether animals have thick rights under the Indian Constitution.
As we discussed in Chapter 6, Nagaraja concerned the legal status of Jallikattu races – events involving the chasing and pulling down of bulls that can result in harm or even death to the bulls. To declare these races illegal, the Supreme Court not only found a breach of the national Prevention of Cruelty to Animals Act 1960, but it also invoked the right to life and to personal liberty protected under Article 21 of the Indian Constitution, holding that ‘every species has a right to life and security’ (para 62).
In response to the Nagaraja decision, the states of Tamil Nadu, Maharashtra, and Karnataka passed legislation to re-legalise activities such as Jallikattu and similar bullock cart races, albeit now governed by stricter regulations. Challenges to this legislation formed the basis of Animal Welfare Board of India v Union of India, which made its way to the Supreme Court. The question the Supreme Court faced was: is this legislation compatible with Nagaraja, or does it violate the Prevention of Cruelty to Animals Act and animals’ constitutional protections?
The five judge-bench deciding the case was unconvinced by the petitioners’ argument that, despite the stricter regulations, the Jallikattu and other races still violated the Prevention of Cruelty to Animals Act 1960. Finding that the new legislation brought about a ‘substantial change’ (para 30) in the manner such races are conducted, the Court held that they no longer violate that Act. In contrast to Nagaraja, where the division bench argued that animals’ protection against cruelty overrides any claims to tradition or culture, the five judge-bench Court was open to considering especially Jallikattu races as a cultural tradition deserving of protection.
Most importantly for our purposes, the Court also addressed the question of whether animals have a right to life and personal liberty under the Constitution. To answer this question, the Court distinguished between statutory rights and fundamental (ie constitutional) rights – a distinction that echoes that of thin and thick rights, which we introduced in Chapter 4. Animals, the Court found, possess statutory rights in virtue of benefitting from laws such as the Prevention of Cruelty to Animals Act that impose restrictions on what humans are allowed to do to them. However, the Court emphasised, there is no precedent for saying that animals have fundamental rights.
In contrast to how some commentators have interpreted Nagaraja, the Court held that that decision ‘does not lay down that animals have Fundamental Rights’ (para 24). Rather, the Court clarified, Nagaraja’s pronouncements about animals’ rights under the Constitution had merely been made ‘at the advisory level’ or ‘framed as a judicial suggestion’ (para 24). Repeating an argument that we have seen in other courts faced with animal rights cases, the Court held that it is a matter for the legislator, and not the courts, to decide whether animal rights should be promoted from statutory rights to fundamental, constitutional rights.
Still, that deference to the legislator did not prevent the Court from adding sceptical observations regarding writs of habeas corpus in respect of animals, as well as regarding legal personhood. It noted that ‘[w]e have our doubt as to whether detaining a stray bull from the street against its wish could give rise to the constitutional writ of habeas corpus or not’ (para 14), and that ‘[w]e do not think Article 14 of the Constitution [which enshrines equality before the law] can also be invoked by any animal as a person’ (para 14).
Animal Welfare Board of India v Union of India did not, strictly speaking, overturn Nagaraja. However, the Court took a decidedly more conservative approach that may prove an obstacle to future constitutional rights litigation for animals in India.
