Rights without institutions are no rights at all

On the 4^th of July the High Court of the state of Uttarakhand in India delivered a judgement in which it recognised all members of the animal kingdom as legal persons. This follows a series of judgments by the same High Court, each of which included Justice Rajiv Sharma, on the rights of nature. These judgements first recognised the rivers of the Ganga and Yamuna as legal persons, then went on to ascribing rights to all of nature. The previous judgements dealt with issues such as pollution and the menace of illegal sandmining, and looked at the creation of legal personhood as a way to combat these ills.

See: Can rivers be legal entities?

See: Indian regional court gives rights to nature

The current judgment is in response to a Public Interest Litigation on the health of donkeys and other transport animals used along the 14 kilometre route from route starts from the town of Banbasa in Uttarakhand, India, to Mahendra Nagar in Nepal. Its mandate has been expanded with the consent of the petitioner to consider the wider ramifications of the issue.

The 57 page judgement makes for very interesting reading. There are 50 pages of legal reasoning and context, most of it – from page 16 onward – is devoted to looking at the issue of whether it is possible to extend the idea of legal personhood to animals. This is followed by 7 pages of instructions incorporating 30 points. The first one is the only one that deals with the question of rights, stating:

The entire animal kingdom including avian and aquatic are declared as legal entities having a distinct persona with corresponding rights, duties and liabilities of a living person. All the citizens throughout the State of Uttarakhand are hereby declared persons in loco parentis as the human face for the welfare/protection of animals.

The other 29 points deal with the maintenance of the medical health of transport animals, and prohibiting cruelty to animals. None of them give any advice on how the first point relates to the other 29, or how it should play out in practice. For example, if all citizens throughout Uttarakhand are declared loco parentis, does this mean that one person can take another to task for how they treat animals? Given that a spate of lynchings throughout India, many happening under the rubric of “cow protection”, has led to the Supreme Court ordering the government to pass a law to deal with the crimes, this judgement could easily be misapplied.

In fact it was precisely because of this vagueness that led to the previous orders giving rights to nature to be set aside. There is no clarity in responsibility when it comes to owned livestock and wild animals, no precision in how responsibility is to be shared, or who would decide in case there is a clash of rights. If a leopard killed a goat, would the goatherd sue herself, all the citizens of the state, or the state administration?

The very unworkability of the rights leads to their meaninglessness when applied to the animal kingdom. This is a shame because this judgement is far more closely argued than the previous ones. It makes the very valid point that legal personhood is an outcome of social growth, there is nothing ‘natural’ or ‘obvious’ about who or what can be judged a legal person. For example in Roman law a slave was not a legal person, only a citizen was. The judgment also referenced the striking Indian Supreme Court judgment in the case of the Animal Welfare Board of India vs A. Nagaraja & Ors on 7 May, 2014.

The idea of ‘Species’ Best Interest’

In the 2014 case, the Supreme Court had struck down the practice of Jallikattu (bull-wrestling) and bullock cart racing in the Indian states of Tamil Nadu and Maharashtra, respectively. More importantly it looked at the evolution of the rights of animals in the international context, giving examples from Germany, the UK, and a host of other countries. The SC stated, and the new HC judgment quotes this, “that since we are dealing with a welfare legislation of a sentient being, over which human beings have domination and the standard we have to apply in deciding the issue on hand is the ‘Species’ Best Interest’, subject to just exceptions, out of human necessity.”

This is an intensely important legal point. In the first legal proceeding to note that the environment may need representation by itself, and not just as property, the US Supreme Court Justice William Douglas had observed in his dissent in the Sierra Club v. Morton case of 1972 that, “The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water — whether it be a fisherman, a canoeist, a zoologist, or a logger — must be able to speak for the values which the river represents, and which are threatened with destruction.”

The judgement of the Uttarakhand High Court of 4^th July 2018 cites this dissent, and builds on it, as well as on the Indian Supreme Court judgement of 2014, to state, “Animals breathe like us and have emotions. The animals require food, water, shelter, normal behavior, medical care, self-determination (emphasis added).”

By moving the conversation forward in this radical direction, the judgement asks us to look at animals as having their own inherent value, and a wish to conduct their lives on their own terms. This makes obvious something that the 2014 Supreme Court judgment seems to imply when it states that bullocks are not performing animals, and not all animals are. Animals are not simply meant to do what humans wish to do with them, unnecessary cruelty and distress used to push animals to perform tasks that are contrary to their design and way of life are, the SC held, banned.

This, of course, begs the question of who would represent the rights of the animal or the ecosystem being considered. Who gets to decide what they want to do, how they pursue their “self-determination”? Justice Douglas had suggested people that “have a meaningful relation” to the ecosystem. On 20 March 2017 the Whanganui river and its specified protected areas, in New Zealand was given the status of a legal person through legislation, with the representation of the area vested among the Maori tribe that had long considered the area sacred. The recent Uttarakhand HC judgement, in contrast, vests the responsibility in all citizens of Uttarakhand, which effectively is so broad as to vest it in nobody. Previous judgments of the Uttarakhand HC in giving the representation to bureaucrats in the Uttarakhand state government for the legal persons of the Ganga and Yamuna had also come to naught, as the bureaucrats had said the task was beyond them, and at what point would the responsibility stop? For example, one had said, if the river is a legal person, does bathing in it violate the river, and if so, how could he order everybody to stop bathing in it?

By leaving these key questions unanswered, the judgment might have brought the thinking about law on eco-systems forward, but also to a place with no clarity on how such law may apply. Oddly enough the judgment is extraordinarily precise in the rest of the 29 directions it gives, putting responsibility and duty for the well-being of draught animals upon specific organisations and bodies – although it is hard to see how one of its instructions (that animal-driven carts be given right of way) will be monitored. Nevertheless this points to how the process may move forward.

In the case of New Zealand, or the SC judgment on banning Jallikattu and bullock cart racing, the rights given to an ecosystem, and the rights to be free from unnecessary cruelty, there were specific institutions speaking on behalf of the ecosystem and the animals. Not only that, the orders that were passed vested responsibility about implementation into specific institutions, with discrete duties. It seems that the theoretical framework exists for rights to animals and ecosystems to be expanded in India or elsewhere, but the institutional framework is nowhere to be seen. And like all rights without institutions to implement and monitor their implementations, such rights will remain only words, impossible to verify whether they are workable or not.