Author- Yashashvini Singh Jodha
The junction of animal laws with human rights is interesting and now more closely intertwined in matters of human needs and animal needs together. Especially with the impact of the Coronavirus pandemic, it becomes even more important to consider these questions as we try to treat our ecosystem better. The most interesting and relevant is the interplay of trade and profession with animal welfare. Inevitably, in India, this involves religion as well.
My previous article supported Singer and Bentham’s utilitarian argument in support of animal welfare. I will now use this stand to analyse the judgement given in the Om Prakash case. The Court in this judgement ruled in favour of the respondents which meant they upheld the ban of eggs in and around the pilgrimage areas of Uttarakhand. To analyse this from a maximum preference satisfied vs. a minimum preferences frustrated equation, we must consider the stakeholders. The first is the pilgrims and residents who are largely Hindu and devout practitioners. The second is the traders and shopkeepers for whom work entails selling of non-vegetarian food. The preference of the former is to pray in peace and purity and the for the latter, to earn their livelihood. It is possible the empirical facts declare that this livelihood may not depend on the sale of these eggs however, in any case, the wider possibility must still be considered.
The reasoning of the Court justified that the right to trade under Article 19 (1) (g) and 19 (6) must be interpreted, in the context of this case, in light of Article 51 A (e) and (f) which essentially say it is the duty of every citizen to practice harmony and brotherhood that transcends religion and other differentiae. The court further reasoned that the vegetarianism is a consistent, age-old majoritarian practice of the area which is important for tourists and pilgrims alike. It confidently states that the ban would not cause any significant harm to the hoteliers and shopkeepers without citing any survey and, upholds the ban by calling reasonable restrictions as a colourable term derived by looking at ‘balancing of interests’ and ‘social engineering’. Essentially, the Court supported the preference of the majority Hindus on pilgrimage over the economic preference of the traders. Numerically this seems to fit well, however, if we were to consider how deeply such a ban may affect the lives of cattle breeders, egg farmers, cooks and hoteliers and a number of customers who are not necessarily devout tourists, the losses (suffering) could be stretched to significant losses. More importantly, economics aside, the fact that citizens are being forced to change their trade and being isolated ( no matter how few) on the ground of religion is suffering perhaps more acute than crossing an egg shop. This is where Singer’s solution fails us.
Further, in the Hinsa Virodhak case, the Court allowed for a 9-day ban on cattle butchery on account of the Jain festival. This was the second time the Court considered the religious preferences of a community over the economic preference. Interestingly, the flip side of this reasoning is available in the Hanif Qureshi case were after great deliberation, the Court concluded that slaughter of animals was not an essential practice for the practice of Islam under Article 25 of the Constitution. This religious reason was not enough by itself to revoke the ban on cattle slaughter and the Court preferred a more economic reason when it justified that the prevention of slaughter of ‘useless’ cattle would be a drain on resources.
In all three cases, what becomes most visible is the lack of consistency in the Courts opinion on a citizens religious preference over both the human preference to trade and the animal preference to live. There is also a clear double standard involved in the reasoning especially considering a) eggs were banned despite being scientifically vegetarian and, b) that in both cases, animal preference was inevitably chosen without that being the direct goal and without any satisfaction of the rule of ‘essential religious practice’. This line of reasoning that the courts seem to describe as context-based and in the merits of brotherhood and compassion, in reality, has little to do with animal welfare or even concern for the animals. It is largely anthropocentric and hypocritical. Even the Marketplace Rules, 2017 seem to circumvent the rights of traders under Article 19 and Article 300 (right to trade and right to trade all over the country) despite slaughter being legal under the PCA, 1960. The larger point here is that the Courts have not been able to strike a clear and justified balance between the indirect right to slaughter animals which indirectly impacts right to religion as well as life and liberty by involving a choice of food, as against the welfare of the animal. Currently, it is a battle between the human right to animal use and abuse against the human preference to control, without consensus this use and abuse.
At this point, a philosophical approach such as a utilitarian one does not offer much help here. Singer’s equation would not be able to clearly balance a load of preferences because of the lack of universalizability of religion- there is no clear marker of whose suffering is frustrated more and whose less because, religion itself is a subjective, emotionally charged feeling rather than a distinct code of conduct. It is here that I would concede and conclude that Singer’s approach is perhaps not the ideal solution for a country like India. Instead, if one were to apply Tom Regan’s absolute belief and provide rights to animals instead of simply welfare, it may compel courts to look at matters involving the very lives of animals as more than just means for human offence and profession.
Navigating such legislation may indeed be complex because if there are those practices that must be held stopped through Animal Rights, there are also those considerations that must be considered important for human survival at the cost of the animal. Perhaps, Martha Nussbaum’s Capabilities Approach could be taken into account when providing an animal with rights; the rights could be negative and specific to some objective aspects of their relationship with humans that would create a significant balance. It is also a fact that there will always be some slaughter, some killing of animals for some purpose or another, and the law itself can only go so far. The Court was right about brotherhood and compassion, however, perhaps it was wrong about the recipient of such emotion. If more people began looking at animals as more than just living cash cows (literally) and if dead as offensive, perhaps the problem might even solve itself.
About The Law 