Varda Mehrotra on Personhood: The Principle and the Practice

PERSONHOOD: THE PRINCIPLE AND THE PRACTICE 

Varda Mehrotra, Executive Director of Federation of Indian Animal Protection Organisations (FIAPO)

  1. CONCEPT OF PERSONHOOD OF ANIMALS

There is a growing debate as to what the legal classification of animals should be. Presently, within most cruelty prevention statutes across the world, animals are defined as property, (with limited instances of some rights being granted) and laws are designed to prohibit the ‘unnecessary suffering of animals’[1] (this is true even in India as per its cruelty prevention statute – the Prevention of Cruelty to Animals Act, 1960).

For over 10,000 years, since when animal agriculture, or the domestication of animals was started, animals have been consistently used and bred selectively for traits desirable to humans. It is through this that humans developed a use-based relationship with animals, where animals were kept for their material value, and not for their intrinsic value.[2] The fact that animals were only valued for what they could provide (including companionship) created an owner-property relationship between humans and animals. Animals by virtue of this property status, were considered as objects under law.

When the first practices of animal friendly legislation in the modern world came about in the 19th century, they took the form of welfarist legislations – or legislations that dictated how much harm could be inflicted on animals. Law governs relationship only between subjects of law, but as animals are treated as an object, law doesn’t recognise a relationship between us and  animals.[3]  This objectification takes “personhood” out of how we regard animals, allowing humans to use animals contrary to animals’ interests.

With no legal recognition of their intrinsic right to a dignified life, billions of animals lead miserable and degraded lives with constant suffering. Like humans, animals are sentient beings, and they feel pain and suffer when they are hurt or deprived of their lives, freedom and families. Apart from intelligence and cognitive capacities, they have social behaviours and interactions similar to humans, such as nurturing young ones, building kinship, hierarchies, and even emotions such as grief.[4]

The definition of rights excludes animals on the claim that only natural persons or legal personalities have rights, protections, privileges, responsibilities, and legal liability. However, this distinction must be questioned in view of the following arguments that call for key fundamental rights for animals:

  • Animals are sentient beings capable of feeling pain and suffering
  • Animals have inherent or intrinsic value
  • Speciesism[5], which is “a prejudice or attitude of bias in favour of the interest of members of one’s own species, and against those of members of another species”, is an anthropocentric view and doesn’t embody the richness and diversity of life on earth.

Furthermore, a closer look at the lives of animals reveals that many of the activities that are thought to be distinct to humans occur in animals as well.  These indicate, among other things, a growing need to recognise fundamental rights for animals.

  1. LIMITATIONS OF THE CURRENT ANIMAL PROTECTION FRAMEWORK AND THE NEED FOR A NEW FRAMEWORK TENDING TOWARDS PERSONHOOD

The law gives no recognition to the animal’s inherent value and any animal protection offered in the legal system caters to human interest instead of the animal’s independent interests. Even animals with the highest protection in our land (eg: tigers, elephants) are ultimately legally only viewed as property. Ultimately, a cow is owned by a dairy farmer, and if the dairy farmer feels the cow should be tied all day, and if the law allows it, there is little recourse or debate around it.

The property status of animals frustrates any significant improvement in their conditions. Animal law in its current form will continue to allow incremental but insignificant improvements to the welfare of animals. Most importantly, these incremental improvements will never come at the cost of sacrificing a competing human interest that is to be gained in exploiting that animal. Since humans exploit animals, and since humans create laws that govern animals’ wellbeing, rational lawmaking will never allow for a scenario where the wellbeing of animals’ truly trumps competing human interests. The reason this is true is because of nonhumans’ property status under the law. [6]

The current definition of personhood, and therefore rights, excludes animals in the claim that only natural persons or legal personalities have rights, protections, privileges, responsibilities, and legal liability. But the reality is that animals are sentient beings who can think and feel, very unlike other kinds of property – a table, chair or a pen.

The existing framework of anti-cruelty statutes across the world criminalizes only those acts that inflict suffering on animals “unnecessarily.” ‘Unnecessary suffering’ is a standard used by most anti-cruelty statutes across the world, and is of course subjective and designed by those causing the suffering itself (humans). As long as an individual or entity can justify that the infliction of suffering on animals is necessary, that infliction of suffering is exempted from the anti-cruelty laws, regardless of the type and degree of suffering animals experience.[7]  The anti-cruelty statutes protect only few kinds of animals, and those animals are protected only from certain acts of gratuitous violence too shocking for prosecutors to ignore.

Whether infliction of pain or suffering on animals is necessary or not is subject to human interests and interpretation.

For example, the Bombay High Court in a 2003 judgment[8], held that the elimination of stray dogs is necessary in light of the alleged danger posed to human life. Therefore, the capturing and killing of stray dogs is necessary and exempt from the Prevention of Cruelty to Animals Act 1960. It was noted that actions like culling of street dogs “are the need and necessity of time if the seriousness of the problem is considered in a dispassionate manner and is not being influenced by the emotional issue involved.”

Another example is The Wildlife Protection Act 1972. It has a provision, Section 62, for declaring certain wild animals, which have become a nuisance for humans, as ‘vermin’. These animals can be killed on sight by anyone. There is absolutely no consideration given to the fact that one of the biggest causes of human-wildlife conflict is the rapid destruction of natural habitat of animals. Consideration would have been given to the animals’ interest in protection of their natural habitat if they had legal personhood and hence rights.

Because of the current property status of animals, their interests are not considered while making laws and policy. Clearly, the current legal framework is anthropocentric. As animals do not have legally recognised rights because they lack the legal capacity of personhood, Courts do not address the question of whether it is necessary to use animals; they instead address questions about the necessity of particular acts in relation to the presumed entitlement of humans to use animals.

The term “person” is a legal concept. It is an entity capable of bearing rights and duties. Rights do not have any meaning or effect without having the capacity to possess rights. Steven M. Wise, a lawyer for animal rights, who now fights personhood battles for nonhumans in US courts, equates a legal person to a “rights container”.[9]  Only legal persons are visible in a court of law and have a standing. Legal things or property exist only for the sake of legal persons and have no independent standing or visibility.

There is widespread agreement amongst people educated about animals that animals are sentient, that animals suffer horribly from devastating human-inflicted injuries, and that the current legal protection framework is currently grossly inadequate. The idea of “legal personhood” is a means for protecting animals because, regardless of the particular theory of legal personhood, the combination of words, at least, implies respect for animals as individuals who should receive more protection under the law than they currently receive.

III. RIGHTS OF NATURE – A PARADIGM SHIFT SIMILAR TO ANIMAL RIGHTS

The closest movement to animal rights is the environmental rights movement which also aims at recognition of the inherent value and rights of a non-human entity i.e. nature. Like the animal rights movement, it roots for a paradigm shift in the way we see these non-human entities – i.e., a shift from our current anthropocentric approach.

This approach seeks to recognise and honour that nature has rights.[10] It is the recognition that our ecosystems – including trees, oceans, animals, mountains – have rights just as humans have rights.  Animal rights are in synchronization with the rights of nature, as nature covers all living non-human entities.

Rights of nature involves balancing what is good for human beings against what is good for other species by giving and equal and holistic consideration to the rights of all. It is also in recognizing that all life, all ecosystems on our planet are deeply intertwined.

Recognition of rights of nature involves a paradigm shift for recognition of inherent value of ecosystems, valuing nature for its utility to humans – as resources, property or natural capital – rather than seeing it as the source of life.  It places value in recognizing that nature exists for herself – and has intrinsic value, separate from the instrumental manner in which we view her.[11]

Environment protection laws legalize environmental harm by regulating how much pollution or destruction of nature can occur within the law. The current regulatory structure permits certain harm and legalizes activities of corporations and businesses.  Due to their property status, nature and non-human elements have no standing – they are not “seen” in Courts as they are objects and not subjects of law.

Recognition of legal rights of nature independent of humans will also empower communities to reject governmental action which permit unwanted and damaging development to occur by enabling communities to assert the rights of those ecosystems that would otherwise be destroyed.  Rights of ecosystems and natural communities will be enforceable independently of the rights of people who use them.

Following are the rights of nature being asserted by the environmental rights movement:

  • Nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles
  • Right of people to defend, protect, and enforce these rights and for payment of recovered damages to government to provide for restoration of those ecosystems (Humans should have the legal authority and responsibility to enforce/defend these rights on behalf of ecosystems ).

Some developments have taken place in the area of environmental rights:

  1. Ecuador Constitution:[12]

In 2008, Eucador became the first country to give constitutional recognition to rights of nature by introducing a separate chapter in the Constitution with the title “Rights of Nature”.

  1. Universal Declaration on the Rights of Mother Earth: [13]

In April 2010, Bolivia hosted the World People’s Conference on Climate Change and the Rights of Mother Earth. The Universal Declaration of the Rights of Mother Earth was drafted and approved by the conference. This was modelled on the Universal Declaration of Human Rights and was taken to the United Nations for UN General Assembly’s consideration.

  1. Harmony with nature – United Nations General Assembly:

In 2009, UN General Assembly proclaimed 22nd April as International Mother Earth Day and Member States acknowledged the necessity to promote harmony with nature in order to achieve a just balance among economic, social and environmental needs of present and future generations. The Resolution on Harmony with Nature was also adopted by the General Assembly. There are 9 resolutions by UN General Assembly (since 2009) and defines the newly found non-anthropocentric relationship with Nature. Multiple interactive dialogues of the General Assembly on Harmony with Nature have been held since 2009.

  1. Outcome Document of the United Nations Conference on Sustainable Development (2012, Rio):

The document reads as follows: “We recognise that planet Earth and its ecosystems are our home and that “Mother Earth” is a common expression in a number of countries and regions, and we note that some countries recognise the rights of nature in the context of the promotion of sustainable development.”

  1. New Zealand recognised Te Urewera National Park and Whanganui River as persons:[14]

New Zealand has granted legal personhood to the Te Urewera National Park and Whanganui River and its tributaries. In 2013, the Tūhoe people and the New Zealand government agreed upon the Te Urewera Act, giving the Te Urewera National Park “all the rights, powers, duties, and liabilities of a legal person.” A Board was then established to serve as “guardians” of Te Urewera and to protect its interests. The stated purpose of the Act was to protect Te Urewera “for its intrinsic worth,” including its biodiversity and indigenous ecological systems. As a result, the government gave up ownership of Te Urewera, and all decisions must serve the interests of and preserve the relationship of the Te Urewera and the Tuhoe people.

Under the Tutohu Whakatupua Treaty Agreement, the river is given legal status under the name Te Awa Tupua. Te Awa Tupua is recognized as “an indivisible and living whole” and “declared to be a legal person.” This treaty is especially important because it “recognizes the intrinsic interconnection between the Whanganui River and the people of the River. In March 2017, the Treaty settlement passed into law.

  1. CHALLENGING ARGUMENTS AGAINST PERSONHOOD OF ANIMALS

Some of the arguments raised against granting personhood status to animals are as follows. The arguments that quell these have also been elaborated on:

  1. Greater protections for animals instead of legal personhood: It is argued by many that the complex ‘personhood paradigm’ is just not needed, when we can simply promote a higher degree of responsibility and accountability for humans towards animals. The problem with this is that no rational being will willingly sacrifice its own interests, in favour of the interests of the beings/objects it exploits – i.e., humans will not willingly give up their rights (their rights to animals as food, clothing, sport, entertainment), to their own detriment. Further, since it is humans that have the exclusive prerogative over laws and policies relating to human-animal relationships, they will never altruistically give these up in favour of animals’ interests.[15]
  2. Social contract, rights and duties: Another common argument against the personhood of animals is that humans have entered into a voluntary social contract with each other, where each individual has certain rights, and corresponding obligations or duties. This means that while they are conferred rights, they also have corresponding liabilities or responsibilities, and this is order of the contract. This argument suggests that even if animals haven’t consented to being a part of this social contract with us, and even if we do somehow confer rights of personhood on them, they still must have duties and obligations towards us and towards each other. This argument ignores the fact that not all beings in our society that have rights have corresponding duties. Infants and adults who are unequipped with certain mental faculties are examples of humans who have rights, but do not have corresponding obligations. [16]
  3. CASE STUDIES RELATING TO PERSONHOOD

One of the first cases of its kind in the United States of America was that of Tommy the Chimpanzee. Tommy had been forced to perform as a ‘star’ chimpanzee through the 1980s. He was beaten on several occasions, was left alone, his only company was himself, and any entertainment he could derive from the television set that was given to him.[17]

It was in 2013 that the Nonhuman Rights Project (hereinafter “NhRP”) brought a habeas corpus claim to release Tommy from captivity. It was the first such kind of claim brought in front of a court for a non-human. Suits for the protection of animals were typically brought under the anti-cruelty statute of that jurisdiction. So to seek the release of a nonhuman animal through the habeas corpus writ was indeed revolutionary, and was based on the first case for the emancipation of a black slave – Somerset v Stuart.[18]

Steven Wise, Founder and Executive Director of the Nonhuman Rights Project, shared his initial motivations and the legalese for using a habeas corpus petition to help free nonhuman animals to be the Somerset v Stuart case[19]. In this case, a white slave owner named Stuart had purchased a black slave in Boston, Massachusetts, and brought him over to Great Britain. The slave escaped, and 3 of his godparents brought a case of habeas of corpus in front of the Court of the King’s Bench in England, asking for the slave to be set free.

Lord Mansfield, the presiding judge on the case stated that nowhere in English statutory law was it expressly stated that there was any permissibility of slavery. Additionally, Mansfield pointed out that morally, slavery could not be derived from natural law either, and accordingly set the slave free. Mansfield however did not broaden the judgment and extend the logic to all slaves, as that would have profound political and economic consequences. Nevertheless, it was one of the landmark decisions of the abolitionist movement, and eventually set the ball rolling when it came to people questioning the inherent moral worth of slavery.[20]

NhRP shared this case as having inspired him in using the habeas corpus writ in all future cases for nonhumans. The parallel they drew was that Blacks were unrecognized as ‘persons’ at the time, and though slavery wasn’t mandated anywhere in English statute, the foundational basis for it couldn’t be justified through natural law either. Similarly, when it came to nonhuman persons, the idea was to allow common law to take precedence, and declare them as ‘legal persons’. Once they were legal persons, it became easier to grant them bodily autonomy, liberty and freedom from captivity on the basis of their legal personhood. This legal logic and history gave NHRP their legal reasoning for asking for the release of Tommy on the basis of a habeas corpus writ. Attached to this case were hundreds of pages of documents by ethologists and primate experts detailing the cognitive, social and emotional nature of chimpanzees. However, the Court, while strongly appreciating their reasoning, did not grant Tommy personhood – presumably because they were (like in Somerset) unwilling to upset the political and economic status quo.

Another case was that of Hercules and Leo[21], two male chimpanzees, who were being held captive for cruel physical and psychological experiments in the New Iberia Research Centre, University of Louisiana. The NhRP filed a petition to recognize the legal personhood of these two chimpanzees, and therefore release them on the basis of the habeas corpus petition, and keep them in a sanctuary.

On appeal, Judge Jaffa in this case granted the ‘personhood rights’ – which was interpreted by NhRP and the media as having tacitly granted the chimpanzees personhood. This was the first time in the world that courts had recognized the legal personhood of animals.[22] However, on further appeal, the judge sought to take up a conservative stand and denied personhood presumably as she did not want to be the first judge to do so. Nevertheless, her earlier stand still portrayed the direction in which the law was likely to move.

The first court in the world to actually grant an animal legal personhood rights is in Argentina, where “Judge María Alejandra Mauricio’s Nov. 3 ruling that a captive chimpanzee named Cecilia at the Mendoza Zoo is a ‘non-human legal person’ with ‘inherent rights.’”[23]

ROAD TO PERSONHOOD IN INDIA

The path in India for legal personhood of animals is relatively different. Like elsewhere, the habeas corpus writ in India is reserved for ‘human persons’. Additionally, as per the Indian Prevention of Cruelty to Animals Act, 1960, and latest case law, animals already have some rights – differing by species categories.

In the landmark AWBI v Nagaraja[24] case, novel points about animals’ ‘rights’ were put forth that recognize the inherent dignity of an animal. It also re-emphasized the five Brambell freedoms[25] that animals have – (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and disease; and (v) freedom to express normal patterns of behaviour. These five freedoms have to be read into Sections 3 and 11 of PCA Act and have to be protected and safeguarded by the States, Central Government, Union Territories, MoEF and AWBI. Even the meaning of ‘pain and suffering’ under the PCA was dealt with in detail. Pain informs an animal in terms of which stimuli it needs to avoid, and suffering informs it about which situations to avoid. It was also held that 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, within the meaning of Article 21 of the Constitution. So far as animals are concerned, “life” means something more than mere survival or existence or instrumental value for human beings; it means leading a life with some intrinsic worth, honour and dignity.[26]

This judgment did not use the ‘language of personhood’, but it did use the language of rights. The judge seemed to argue that animals do indeed have some rights – what exactly these were and how they would transfer in terms of practice was less clear. Countless petitions have used this judgment as a basis to secure different kinds of rights for suffering animals. It was this judgment that laid the theoretical notions of animal rights in the Indian judicial space.

Another recent case in the Uttarakhand High Court[27] gained prominence due to the fact that the ‘all members of the animal kingdom’ have ‘rights’. It is still unclear as to how this will translate practically, but it is clear that Courts are moving in the direction of introducing these revolutionary ideas in the public domain, without claiming to have all the answers in terms of practice.

The first case that was made for personhood in India was that of Masini the elephant, who was sold to a temple in Tamil Nadu when she was very young, and kept chained for several years. A petition to declare her as a ‘legal person’ is pending before the Madurai bench of the Madras High Court. In an interim order put forth by the Court, the respondents (the government) is required to put forth a detailed explanation as to why the petitioner’s arguments are unfounded. The outcome of this and other cases in the future will lead to the shaping of dialogue on legal personhood of nonhumans in India.

VII. CONCLUSION

This paper sought to clarify the moral and legal concept of legal personhood for nonhumans. It also sought to explain the need for such a concept in improving frameworks for animal protection across the world. Even in such a time, it is poignant to realize that the vast improvements in anti-cruelty statutes cannot guarantee the safety of nonhumans against human needs and wants. It is only the rights paradigm that seeks to give nonhumans meaningful protection against human use and abuse. This is because no amount of incremental protections for nonhumans will give them rights against being violated by humans or to live an autonomous life. This paper has sought to examine the personhood framework in some detail – with cases studies from across the world, as well as of the foundational cases in India. How the cases proceed in India is likely to affect billions of animals – given India’s large population, and given that India’s animal use is only going to increase with the years. The personhood conversation will surely affect this.

* * * * *

Varda Mehrotra is the Executive Director of Federation of Indian Animal Protection Organisations (FIAPO), which now has over 120 members across India.  She has extensive experience of working with activists and organisations in both India and Scotland. She is passionate about empowering grassroots animal rights and encouraging collectives and collaboration – in India she designed and and set up a host of local and national thematic networks for many animal issues including the largest vegan advocacy network in India – now spanning over 70 cities. Varda has also spearheaded efforts to make the Indian animal protection movement more robust and resilient – by setting up services in India to provide coaching, mentoring to hundreds of activists, along with dozens of workshops, seminars, conferences and bootcamps. As an advocate of strategic campaigning, she has designed and run several pilots and projects to innovate on new people-powered and alliance-based approaches to solve problems relating to animals – many of which are rolled out as national campaigns. Varda has also worked in areas of social enterprises and international development and has been trained in cognitive science, philosophy, computer science and bioinformatics.

[1] Francione, G. L. (1996). Animals as property. Animal L., 2, i.

[2] Russell, N. (2002). The wild side of animal domestication. Society & Animals10(3), 290.

[3] Francione, G. L. (2004). Animals–Property or Persons?.

[4] Rollin, B. E. (1986). Animal pain. In Advances in Animal Welfare Science 1985 (pp. 100), Springer, Dordrecht.

[5] Singer, P. (1977). Animal liberation. Towards an end to man’s inhumanity to animals. Granada Publishing Ltd.

[6] Francione, G. (1995). Animals property & the law. Temple University Press.

[7] Ibid.

[8] People for Elimination of Stray Troubles v State of Goa, 2003 (4) BomCR 588.

[9] Wise, S. M. (2012). Nonhuman rights to personhood. Pace Envtl. L. Rev., 30, i.

[10] Stone, C. D. (1972). Should Trees Have Standing–Toward Legal Rights for Natural Objects. S. CAl. l. rev., 45, 450.

[11] Vilkka, L. (1997). The intrinsic value of nature (Vol. 59). Rodopi.

[12] Greene, N. (2011). The first successful case of the Rights of Nature implementation in Ecuador. The Global Alliance for the Rights of Nature. Available: http://therightsofnature. org/first-ron-case-ecuador.

[13] Earth, M. (2010). Universal declaration of the rights of mother earth. World.

[14] Gordon, G. J. (2018). Environmental Personhood. Colum. J. Envtl. L., 45.

[15] Supra n. 3.

[16] Singer, P. (1977). Animal liberation. Towards an end to man’s inhumanity to animals. Granada Publishing Ltd.

[17] Available here: https://www.nonhumanrights.org/client-tommy/

[18] (1772) 98 ER 499

[19] Id.

[20] Cotter, W. R. (1994). The Somerset Case and the Abolition of Slavery in England. History, 79(255), 31-56.

[21] Available here: https://www.nonhumanrights.org/hercules-leo/

[22] Id.

[23] Available here: https://www.nonhumanrights.org/media-center/12-5-16-media-release-nhrp-praises-argentine-court-on-legal-personhood-for-chimpanzee/

[24] 2014 (7) SCC 547.

[25] Ohl, F., & Van der Staay, F. J. (2012). Animal welfare: At the interface between science and society. The Veterinary Journal, 192(1), 16.

[26] Supra n. 23.

[27] Narayan Dutt Bhat v Union of India

 

 

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