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Legal identity of flora and fauna in India

July 20, 2021
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This article is written by Tarannum Vashisht, a student of the Rajiv Gandhi National University of Law, Punjab. This article is written to understand the laws about the rights of Flora and Fauna in India. Particularly this article deals with the question of whether Flora and Fauna are regarded as legal entities in India. 

Introduction

A week ago, my 10-year-old niece asked me, “Is that monkey a person?” That is when I got into thinking of the status of an animal or plant in law. More importantly, who can be called a person? How can personhood be extended to non-human entities? This article aims to investigate these questions, elaborating on the legal status of flora and Fauna, specifically in India. 

Concept of person 

Interestingly, the word person has been derived from the Latin word persona, which means the mask worn by a person. Until the sixty century, this term was used to refer to the role played by a man on stage. It was only after some time that this term started to be used in terms of someone having rights and duties.

It has to be noted here that writers often limit the word personality to humans. However in law, the connotations are different, idols, company, gods, etc all are given the status of juristic persons, and hence have rights as any other human being would have. 

This word has now acquired multiple meanings. According to the famous jurist Litelmana, the essence of a legal personality is its “will”, the bodiliness of man being a completely different and unrelated attribute. 

According to Salmond, a person can be anyone capable in law to acquire rights and duties. Similarly, Hindu law treats idols as personality. Therefore this is evident that personality and humanity are not synonyms. 

Persons in law have two categories, natural and legal. Natural persons are human beings, legal persons, on the other hand, may be called artificial persons. They are imaginary persons who have rights and duties in law and in whom law vests personality by way of fiction. Then, who is a person under the Indian Laws?

The General Clauses Act under Section 3(42) defines who is a person. According to this definition, it includes a company or an association of individuals irrespective of the fact that it is incorporated or not. Henceforth, a person as per this definition would have rights and duties and would be treated as a legal entity under the law. 

The Indian Penal Code, 1860 also defines a person under Section 11, and it includes a company, an association of a group of individuals irrespective of the fact that they are incorporated or not. 

Now, the question that we are going to ponder upon in this article is: are animals and plants to be regarded as persons, juristic persons, or none of them?

Environment personhood

Environment personhood is a concept of the grant of rights to components of the environment like plants, rivers, glaciers etc to a person. This concept is inherent in ancient Indian environmental jurisprudence. Ecosystems have been considered sacred by Indians from times immemorial. The most common examples being river Ganga, Yamuna, Krishna, etc. They are attributed as gods by people and are hence revered.

Environmental units should be treated as distinct legal persons because they have not been protected from the constant exploitation of humans. The voice of nature is not heard and it is made to silently suffer from human’s constant exploitation without protection. Therefore the recognition of the environment personhood is imperative. 

Are animals persons – a philosophical enquiry

According to Salmond, a famous jurist, lower animals and beasts are not to be regarded as persons, rather be treated as mere things. The reasoning behind this notion is that animals are not capable of performing any legal duties or having any legal rights, therefore they cannot be treated as persons in the eyes of law and hence they cannot be provided with any legal rights.

However, the question that creeps in is that if animals were not considered worthy enough to have rights or duties, why does the archaic literature have a mention of animals being punished for the crime of homicide. Even if we proceed in time, we see multiple cases where animals are detained and taken into custody for their acts of trespassing into someone else’s property. 

Adding to the previous point, history has witnessed the trial of rats, where rats were treated as clients and a case was filed against them. Not just this, the rats were found guilty and awarded punishment by the court. 

However, in modern laws of most countries, a master is held liable if some animal in his custody harms any other person. It should be noted here that this doesn’t happen because the master is held vicariously liable for the acts of his animals. This happens because the master is held liable for his negligence in keeping his animals under control.

The next point that should be taken into consideration is that though animals are not treated as animals in modern law, they are provided with certain safeguards in law. The most common example is an animal’s right against cruelty. 

Many important judgements have recently been passed by courts throughout the world giving rights to animals. The most important Indian judgement in this regard being the Jallikattu judgement, which would be elaborated on further in this article. Similarly, US and European courts have accorded status to dolphins. In New Zealand, the Whanganui river was accorded the status of a person. 

Let’s understand this concept of legal status to animals in depth. 

Changing trends globally

Coming back to the present times, it is evident that in this age of modernity, the trends in environmental jurisprudence are also changing. This change has been witnessed throughout the world.

The first country to provide rights to nature was Ecuador. It provided nature with the right to persist, exist, function, regenerate and evolve its vital cycles. Similarly, laws on the rights of Mother Nature were made by Bolivia in 2010. These included rights are given to the environment for protection degradation and monetary exploitation. 

Te Urewera National park of New Zealand was given the status of a legal entity in 2014 by the New Zealand legislature. This national park now possesses all rights, duties and liabilities like a legal person. Whanganui River of New Zealand was also recognized as a legal person having all rights and duties. Over a 140 year-long litigation, it was proved by the Maori Tribe that this river is their ancestor and hence to be protected as other members of the tribe. 

Can animals be regarded as person – perspective of the Indian judiciary

The Indian judiciary has witnessed several cases, which has led to the development of the jurisprudence concerning animal rights and their status as a person. The following is an enumeration of all the important judgements of the Indian courts, marking the evolution in animal rights in the country-

Animal Welfare Board of India v. A. Nagaraja and Others

This case, often known as the Jallikattu case, initiated debates in the whole country. This case dates back to 2011, when the Ministry of Environment and Forest amended section 22 of the Prevention of Cruelty to Animals Act, to include bulls and hence banning their taming, training and exhibition. However, the government proposed to create an exception for the bulls participating in Jallikattu.

Jallikattu is a collection of events which aim at taming bulls. Animal Welfare Board of India investigators had reported that PCA Act is violated in almost all steps of this “ Bull Training” event. The animals are subjected to inhumane conditions and brutal taming practices. This includes beating, putting irritants in their eyes, making them drink alcoholic fluids, use of painful and brutal rectaring methods etc. 

Animal Welfare Board of India contended that there were no justifiable grounds on which this exception was made. It was contended that this was no unavoidable activity, rather it only causes graver pain and suffering to innocent animals. 

In this case, the court gave a judgement in favour of the Animal Welfare Board of India, holding that this activity of bull-taming was not at all necessary, rather it added to pain, anxiety and suffering of animals. This event, held solely for human pleasure, has to be avoided. 

The court, in this case, made an important observation that Article 21 of the Constitution of India, ensures the right to life and liberty not just to human beings, but to animals also. 

Karnail Singh and Others v. the State Of Haryana

This case was brought before the high court of Punjab and Haryana, by individuals who were convicted for illegal trade of cows from Haryana. The conviction was upheld by the court, however, the prison sentence was not meted out. 

The court pronounced the following important points in this case-

  1. It was ruled that all species of the animal kingdom are to be accorded with rights and duties. Each animal has a distinct legal identity with all rights and liabilities as are possessed by any other person. It was also held in this case that the duty that people have towards the protection of minor children extends to animals as well.
  2. It was held that all animal species were to be treated with respect. They have an inherent right to live which is to be protected by law. Also, the privacy of animals is to be protected from unlawful attacks. 
  3. Certain mandatory directions were also issued by the court for the welfare of animals. 
  4. The government of Haryana was directed to ensure that animals should not carry more weight than what was the prescribed limit. This weight was to be changed with the change in terrain, where these animals are carrying this weight. For example, the weight is to be reduced by 50 per cent, if there is an ascent route. 
  5. It was also made clear that a total of four people excluding the driver and children below six years of age could ride an animal-driven vehicle. 
  6. It was ruled that the use of shard things over animals was banned throughout the state of Haryana. 
  7. Lastly, various directions about veterinary care, housing, and food for animals were issued by the court in its detailed judgement. 

Recognized of plants as legal persons under law

Animal’s right to be recognised as a legal person has been given much more emphasis than the grant of a similar right to plants. This is true for the whole world and specifically for India. However, a recent judgement by the Uttarakhand high court has granted this much-needed right to the whole of the ecosystem.

In the case of Lalit Miglani v. State of Uttarakhand, the High Court of Uttarakhand gave the legal status of a person to river Ganga and its tributary Yamuna. This was pronounced in a short judgment which was followed by a detailed order specifying the intricacies of rights granted to the whole ecosystem. In the subsequent order, it was stated that it would be impossible to protect one aspect of the environment without protecting the other and hence the whole ecosystem was granted the status of a legal person. 

This judgement has some major lacunas. The foremost question that crops up is who shall be held responsible in case the rights of ecosystems are affected? Also, the judgement does not provide specifications regarding which components of the ecosystem are protected. This broad order has attracted much ambiguity. However, this has to be taken into consideration that this is the only judgement which addresses the issue of the providence of the legal status of a person to plants. There is no legislation in India on this issue. Therefore it is evident that much legal research is required to address this issue, the Uttarakhand judgement is only a baby step towards the achievement of this objective. 

Conclusion 

There is an urgent need for integration of the concept of environmental personhood into the constitutional set up of our country. However, with these various questions crop up. The first one being, even if they are provided with a legal statue of a person, who will represent and protect their rights? More importantly what would be the norms or rules with which these representatives would be bound. One solution proposed is the reservation of seats in the national and state legislature of each ecosystem. These could be represented by communities specific to that ecosystem. This is only a farfetched solution before these rules and regulations have to be formulated by the Indian legislature for the protection of nature. 

References 


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