Legal Provisions Encompassing Animal Welfare - A Comparative Analysis Of Global Constitutional Frameworks

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Category: Constitutional & Human Rights

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LEGAL PROVISIONS ENCOMPASSING ANIMAL

WELFARE: A COMPARATIVE ANALYSIS OF GLOBAL

CONSTITUTIONAL FRAMEWORKS

Priya Goel, Campus Law Centre, Faculty of Law, University of Delhi

ABSTRACT

This research paper aims to conduct a comparative analysis of constitutional frameworks for animal welfare in several countries of developing or developed world. Moreover, this analysis will be based on the most relevant provisions of statutory law, their interpretation as well as the enforcement of the relevant constitutional guarantees regarding animal welfare. This study will also seek to address the concern as to what extent the animal welfare is provided for by the Constitutions in a normative sense. This paper will also discuss the general trends and some differences as well as new problems faced with regard to constitutional provisions which protect animals.

In due course, this study will shed some light on the interaction between animal welfare and constitutional law and suggest ways that this can be taken forward in law and policy, in order to achieve the primary aim of animal welfare.

INTRODUCTION

The notion of animal welfare is deeply rooted in the understanding of animals as sentient entities capable of enduring pain and suffering. This concept has undergone significant developments over the centuries. At the very beginning it was confined only to philosophical and ethical issues. However, with time, the subject has begun to enter into legal and constitutional discourse. Though the debate whether animals should be considered as ‘beings’ gains public traction; in recent decades, an increasing number of states have included certain animal welfare provisions into their constitutions, as well as provided for the enactment of laws, indicating a societal readiness for animal rights protections.

METHODOLOGY

The research paper has been prepared from data that has been collected from secondary resources. To enrich the content of paper various scholarly articles, debates, journals and researches on the internet have been examined. These sources contributed in providing valuable information about the facts and matter related to the research paper topic. Additionally, the constitutional provisions of several countries and their judicial rulings have been considered to provide a comprehensive outlook to the paper.

HISTORICAL CONTEXT

The idea of animal welfare dates back to ancient philosophical and theological traditions before it was even brought up in discussions. Early civilizations like India and Greece acknowledged the consciousness and sentience of animals and the moral ramifications of human-animal interactions, despite the fact that this concept is relatively new in legal discourse. It can be gathered from Aristotle’s famous works that though animals lacked reason and humans were placed at the top of the natural world, yet the respect for animals in ancient Greece was not looked down upon. Some animals like dolphins were considered divine. However, a more structured and methodical approach to animal welfare did not start to take shape until the 18th and 19th centuries. The growth of animal rights and welfare in society is explained in this segment of the paper.

Ancient History The tapestry of ancient Indian civilization is intricately woven with threads of reverence for all

living beings. Prior to Vedic period, there have been significant sources from the Indus Valley Civilisation in form of excavated seals and terracotta figurines suggesting the compassion homo sapiens ensued towards animals. Some seals depict picture of animals with parts of human body like the reverend Narasimha avtar. They worshipped Pashupati Shiva, who is famously known as the lord of animals. The dove was the sacred animal of Harappans. Evidently, this reverence was not merely pious but was translated into concrete practices and institutional mechanisms. From the Vedic era until the Mauryan Empire, the Indian sub-territory's intellectual and cultural environment was deeply infused with an ethos of compassion for animals. The conceptual foundation for animal welfare was established by the Vedic scriptures, which are the core teachings of Hinduism and Sanatana Dharma.

According to Rigveda 10. 22, the core idea of Vedic philosophy was ahimsa, or non-violence, which applied to all living things. According to the earliest Hindu text, the Rig Veda, which was written between 1500 and 1200 BCE, cows are sacred, heavenly, and deserving of protection. In Yajur Veda, another sacred text, there is a wish for universal friendliness including the importance of protecting animals from harm. Thus, these early texts collected and preserved by great saints established a moral framework that shall shape subsequent attitudes towards animals, in Indian territory and beyond. In essence, the Vedic period laid the seeds of compassion. Following the Vedic era, the Mauryan Empire was no less than a golden age for animal welfare. Under the reign of Emperor Ashoka, a significant advancement in animal welfare was witnessed.

The Arthashastra of Kautilya, under the patronage of Ashoka the Great, established rules for protecting animals and the wildlife. Following his devotion to Buddhism, Ashoka adopted the non-violent precepts and integrated them into his rule. A deep concern for animal welfare is evident in his edicts, which are inscribed on pillars and rocks dispersed throughout his enormous empire. The necessity of constructing veterinary facilities, offering medical care to both humans and animals, and preventing injury to animals was stressed in Ashoka's edicts. As part of his efforts to lessen animal suffering, he also outlawed hunting and several types of animal sacrifice. India's history of animal welfare reached a pinnacle during the Mauryan era, which established a standard for subsequent kings and communities.

The earliest known reference to a legal ban on cow slaughter is an engraving on a stupa in Sanchi, Madhya Pradesh, dated to 412 CE, during the reign of Chandragupta II of the Gupta dynasty. Furthermore, there is a popular tale about how a Chola king executed his son when he accidentally killed a cow. And also we have stories telling that it was a capital offence under the Gupta rulers. The principles for animal welfare didn’t stop there rather escalated with Jainism and Buddhism, the two major Indian and world’s oldest traceable religions, further reinforced the principles of non-violence and compassion towards animals. Extreme non-violence, even toward the tiniest species, is promoted by Jainism in particular, which in fact became a cause of its decline and failure to attract the upcoming generations.

As known, Jains follow a strict vegetarian diet and take extreme care to prevent injury to any living being. To prevent accidentally eating flies or the tiniest animals in the dark, they even observe the custom of eating before nightfall. Buddhists, who emphasize the interdependence of all life, also adhere to the non-violent concept. The evolution of animal welfare policies in India has been greatly influenced by both religions. Thus, compassion and reverence devoted to animals today is a continuation of legacy of ancient India, a testament to the profound respect and compassion that Indians have traditionally accorded to animals. From the daily practices of Indus Valley Civilisation to philosophical insights of the Vedic period and to the practical implementations of the Mauryan Empire, the concept of animal welfare has been deeply ingrained in Indian culture.

While challenges ensue in the modern world, Indian subcontinent's ancient heritage provides a valuable framework for promoting animal welfare and ensuring a compassionate future for all beings. The Rise of Animal Welfare Movements Famous English writer and animal rights advocate Richard D. Ryder mentioned that the first known animal protection legislation in Europe was passed in Ireland in 1635. It gave recognition to immoral and cruel activities like extracting wool off sheep, attaching of ploughs to horses' tails etc.. In the late 18th century, Saint Swaminarayan aimed to bring a reform to the society and preached the old age principles of ahimsa, dharma and non-violence. He was against the vices

which were subjugated in the society following the invasion of foreign invaders like consumption of meat and animal sacrifices. Simultaneously, Dayanand Saraswati, the founder of Arya Samaj was practicing the similar principles of ahimsa and dharma, reprimanding the consumption of meat and animal sacrifices as sin and derogation of Vedas. In the West, the 18th century witnessed a significant shift in societal attitudes towards animals. The recognition of welfare of non humans was primarily based on the different interpretations extracted by the various renowned scholars like Thomas Aquinas, Immanuel Kant, Jeremy Bentham, John Locke and others. With the emergence of Enlightenment era, characterized by reason and humanism, there seemed to be a growing awareness of animal suffering.

Philosophers such as Jeremy Bentham and Immanuel Kant began to question the traditional anthropocentric view and to recognize the moral significance of animal life. The philosophers began raising voices regarding the rational nature of animals, which until then was considered as the distinguishing factor between humans and animals. But the reasons for giving recognition to animal welfare were varying too. German philosopher Kant believed that animal cruelty is bad not because humans owe a duty towards non humans but because it is bad for the humankind per se. Whereas Genevan philosopher Jean Jacques Rousseau wanted to include animals in the theory of natural law on the grounds of sentience, so much so that in his famous treatise on education Emile, he sensitised parents about adherence of vegetarian diets for their children.

On the contrary, this century also witnessed the growing consumption of natural resources, including animals which was considered pertinent for human development and their culture. The later 19th century saw the emergence of organized animal welfare movements. Henry Bergh, disturbed by the mistreatment of animals during his diplomatic mission in Russia founded the first animal protection group in the United States, the American Society for the Prevention of Cruelty to Animals (ASPCA), in April 1866. Other societies such as the Royal Society for the Prevention of Cruelty to Animals (RSPCA), founded in 1824, played a pivotal role in advocating for animal protection laws. These early animal welfare laws primarily focused on preventing cruelty to animals, such as the infliction of pain or suffering.

19th and 20th century: Era of Jus Animalium In the 20th century, animal protection saw an expansion in the scope which extended beyond the prevention of cruelty to encompass broader issues such as animal experimentation, wildlife

conservation, and factory farming. The development of scientific knowledge about animal behavior and cognition further fueled the movement for animal rights. A significant milestone in the evolution of animal rights was "Animal Liberation: A New Ethics

for our Treatment of Animals", the publication of renowned Australian philosopher Peter Singer in 1975. Singer protested for the ethical equality of animals and humans, arguing that the discrimination against animals just because they are non-humans is not ethical discarding the traditional view of animals as mere property. He popularised the term ‘speciesism’ in his influential work leading to spark of a global debate on animal rights which later immensely contributed to the growth of the animal rights movement. It is noteworthy that majority of legal systems have primarily prioritized human rights, however, today an increasing amount of nations are acknowledging the significance of animal welfare within their constitutions, owing to the enriching history.

Such constitutional provisions generally include a common responsibility towards animals or provides specific safeguards for particular species like endangered wildlife. India has included regulations for the well-being of animals in its Constitution, as an example. Article 48A of the Indian Constitution imposes on state a duty to safeguard forests and wildlife along with protecting and enhancing the environment. The Prevention of Cruelty to Animals Act enacted in 1960 provides distinct legal safeguards to animals, particularly aimed for their welfare. With the onset of later 20th century, courts in India have interpreted laws and their corollaries to acknowledge the rights of animals, namely, the right to life and the right to dignity.

Likewise, Germany and Switzerland have both incorporated clauses for animal welfare in their constitutions, which are discussed in the later part of the paper. Such advancement in regulations thereby demonstrate a larger dedication to protecting the environment and promoting sustainable growth.

CONSTITUTIONAL PROVISIONS FOR ANIMAL WELFARE: A COMPARATIVE

ANALYSIS BETWEEN THE DIFFERENT APPROACHES:

A) Constitutions with Explicit Constitutional Protections

In recent decades, the recognition given to the concept of animal welfare as a constitutional scheme has gained significant development. In pursuance to this, many countries have incorporated explicit provisions for animal welfare into their constitutions, which acts as an

indicator of growing societal awareness concerning the ethical implications of human-animal interactions. This segment of the paper will examine the constitutional provisions concerned with animal welfare in selected countries, highlighting their intent and associated implications in a journey to propagate animal welfare.

1. India: A Trailblazer in the Realm of Animal Welfare Legislation

India is known for its role, in upholding the welfare of animals through its constitution provisions, deriving their existence from the country’s ancient practices of worshipping animals and giving them due rights. Article 51A(g) of the Indian Constitution, a Fundamental Duty, lays down the responsibility of each citizen to safeguard and enhance the well-being of surrounding environment including forests, lakes, rivers and wildlife. It states: “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures. ”1 Although this directive does not directly address animal welfare but the Indian judiciary has construed it to include the protection of animals.

This rule has played a role in advancing the eleven Bill of Rights with an impact on environmental preservation and animal welfare campaigns, in India. Nevertheless it has its own lacunas discussed below. Furthermore, Article 51A(g) is not directly justiciable, as it is only a fundamental duty. This means that a person cannot go to court and say my rights have been violated under this provision. Secondly, while it creates a duty, there is a lack of specific enforcement mechanisms or penalties for noncompliance. Thirdly, the implementation of 51A(g) is also heavily reliant on judicial activism. This could result in inconsistent enforcement of the law and slow delivery of justice.

Furthermore, even though judicial activism has had some effect on ground-level implementation of rights, especially in rural India, the challenge remains that judicial orders do not easily translate into practical action. In essence, this Right became a strong weapon, which one can use to fight for the environment and animal protection in India under Article 51A(g). However, that will be successful solely due to judicial willpower, legislative action and the public. However, to ensure that this provision can be fully leveraged, there is a need to bolster enforcement mechanisms, and public

1 Art. 51-A(g), the Constitution of India, 1950

participation and improve the enabling environment for implementation. This way, India can do its bit in continuing to be a global leader in environmental and animal welfare Several laws like the Wildlife Protection Act of 1972 and the Prevention of Cruelty to Animals Act of 1960 have been consciously enacted to give effect to the principles enshrined in Article 51A(g). The Prevention of Cruelty to Animals Act of 1960, was enacted by the Parliament as a legislation governing animal welfare in India. It includes both acts of commission and omission. The Act is backed by state level regulations and local laws that offer extensive safeguards for animals welfare, care, treatment and measures of transportation and care activities as well. The Indian Judiciary has vigilantly through its court rulings stressed the significance of treating animals with kindness.

The provisions therein cover an array of animal welfare issues and can be applied in various situations. It encourages individuals to get involved in safeguarding the environment and animals. A feature that has seen the Indian courts gain prominence is the engagement of this provision by the Indian courts in delivering some unprecedented judgements on behalf of the environment and animals. For instance, the famous cases of M. C. Mehta v. Union of India,

1991 SC2 and Animal Welfare Board of India & Ors. v. A. Nagaraja, 2023 SC3 wherein the

Supreme Court invoked Article 51A(g) to protect the environment & animal rights within its reach. The Supreme Court in the latter case recognised that not all cultural practices interfere with animal protection. With the coming of 1960 Act, the acts which inflict pain and harm on the animals have been given due recognition and Jallikattu has evolved over time, thus not covered within the ambit of restricted activities. Despite a robust legal framework and constitutional ethos, several challenges still impinge the society in realising true essence of the animal welfare schemes. Firstly, cultural sensitivities like animal sacrifices often complicate the enforcement process. Secondly, the slaughterhouses in the countries are on a surge and the conditions there are inhumane.

Thirdly, despite the Wildlife Protection Act in existence, transition is wildlife trafficking is still far from its objective. Other reasons include the outgrowing population of stray animals and cattle, transportation of livestock with animals crammed into overcrowded spaces and subject to long

2 M C Mehta v. Union of India & ors. (1991) Supreme Court, SCR (1) 866

3 Animal Welfare Board of India & Ors. v. A. Nagaraja, (2023), Supreme Court, 2023 INSC 548

journeys without basic necessities conflict with the animal welfare principles.

2. Germany: A Constitutional Commitment to Animal Welfare

The Basic Law for the Federal Republic of Germany, also known as Das Grundgesetz für die Bundesrepublik Deutschland (GG), is Germany's constitution. It was amended in 2002 to inculcate provisions on the protection of animals, aimed to recognize the sentience of animals. Article 20a of the Basic Law is usually translated as: "the state shall protect animals through legislation and by taking other appropriate measures. 4" This provision, designed as a state objective, acknowledges the moral and ethical significance of animal welfare and imposes a duty on all the three branches of the government to ensure effective enforcement of laws to protect animals from cruelty and suffering. However, the scholars have over the decades tried to analyse the conflict this article poses with three fundamental rights, viz.

freedom of religion; freedom of teaching, science and research; and freedom of artistic expression. Though it is pertinent to note that the provision does not give rights to animals rather per se. Article 20a provides a direct constitutional mandate for animal protection, elevating it to a fundamental constitutional value. This explicit recognition has led to increased public awareness and societal acceptance of animal welfare as a legitimate concern. German courts have actively interpreted and applied Article 20a in consonance with the legislative intent i. e. to protect animal welfare. For instance, in various cases, courts have ordered animal welfare violations on illegal use of electric shock devices, kicking or physically hurting animals, dragging injured or weak animals, non-milking of lactating dairy cattle every 12 hours, among many others.

The judicial decisions have also posed stricter regulations on animal husbandry, transportation, and slaughter. Consequently, the provision Article 20a has spurred the enactment of animal welfare legislation, such as the Animal Protection Act (TierSchG). This statute intended to be a comprehensive legislation provides detailed regulations for the care, housing, and treatment of animals, covering a wide range of species, including domestic animals, farm animals, and laboratory animals. TierSchG is the primary legislation implementing the constitutional

4 Art. 20a of the German Basic Law

mandate. A praiseworthy component of this Act is the systemization of animal welfare inspectors to monitor the intended objectives and directions, in compliance with the law. Other recent amendments to the Act include prohibition of tethering animals, admission of anesthesia before dehorning calves, mandatory video surveillance in slaughterhouses etc. Though this provision has been instrumental in shaping the German animal welfare laws and policies, however, its interpretation and implementation have also raised certain concerns and challenges, as follows. Primarily, Article 20a does not provide specific enforcement mechanisms or sanctions for violations of animal welfare laws. This has in the past led to inconsistent enforcement and difficulties in ensuring compliance.

While the protection of animal welfare often needs to be balanced with other important interests, such as economic considerations and food security, the same remains an undercurrent leading to tensions and compromises that may undermine the effectiveness of animal welfare regulations. Furthermore, the wide and open-ended nature of Article 20a can lead to differing interpretations and applications. This can create uncertainty and inconsistency in the implementation of animal welfare laws unless a crystallized specific statement of objects and reasons is not released or informed to the masses. However, it can also be concluded that the German courts have considered various animal welfare issues and given directives accordingly, including the transportation of livestock, the slaughter of animals, and the use of animals in research.

These cases have helped to clarify the scope and limitations of Article 20a. Simultaneously, Parliamentary committees have discussed and debated animal welfare issues, providing valuable insights into the legislative intent behind Article 20a. In a nutshell, it is not wrong to conclude that Article 20a of the Basic Law has been a powerful tool for advancing animal welfare in the subcontinent. However, its limitations and the need for continued vigilance and advocacy highlight the importance of ongoing efforts to strengthen animal protection laws and policies.

3. Switzerland: Upholding the Dignity of all Living Creatures

The Swiss Federal Constitution includes a provision for the respect and the dignity of all the living creatures. Article 120 of the Constitution states that "the dignity of living creatures shall

be respected. " This particular provision is rather broad, open-ended and vague in nature, implying that it can be interpreted and applied in various ways. The Swiss Animal Protection Act (TSchG) is the primary legislation implementing the constitutional obligation. This Act offers extensive protective measures for the animals, including rules on animal care, accommodation and transportation. The Act also prohibits certain activities, such as rearing animals for fighting and unnecessary slaughter. Article 120 of the Swiss Federal Constitution is a unique provision that has amounted to significant debates and interpretations. It states: "Human beings and their environment shall be protected against the misuse of gene technology. The Confederation shall legislate on the use of reproductive and genetic material from animals, plants and other organisms.

In doing it, it shall take account of the dignity of living beings as well as the safety of human beings, animals and the environment, and shall protect the genetic diversity of animal and plant species. "5 Article 120 has been well-received for its progressive attitude towards the regulation of new technologies. By looking at the potential merits and risks of gene technology, it has made a case for ethical advancement. The expression 'dignity of living beings' is a radical shift from most legal theories, which see law as primarily concerned with humans. This appreciation of other forms of life has affirmative implications in the context of animal protection and the protection of the environment. Article 120 effectively protects population health while taking into consideration the necessary protection of the environment.

It makes a conviction toward protection of both people and the natural environment against gene technology dangers. Though the provision is not without its drawbacks, the meaning of “dignity of living beings” is rather vague and therefore has sparked discussions on its understanding and application. Such lack of clarity has its disadvantages like machine implementation of the law becomes almost impossible. The provision is also controversial in that critics assert this Article 120 can cause overregulation of biotechnology and hence inhibit the advancement of science. This is especially true in agricultural biotechnology, which involves the modification of genes for greater advantages. While Article 120 is underpinned by very compelling ethics, it fails to

5 Art. 120 of the Swiss Federal Constitution

include mechanisms of how the Article should be operationalized. As a result, enforcement of this provision may become an uphill task for a person or a society. There are no historic cases which directly address the interpretation of Article 120 and the implementation of this article; however, there have been many committee papers and reports, as well as discussions in the legislature on this issue. It is important to note that the interpretation and implementation of Article 120 will keep on developing with the change in scientific knowledge and societal values. This is principally because people and science are dynamic processes. It shall also be necessary to come back to the provision as new technologies are introduced in order to ensure that the provision is able to effectively protect everyone and everything.

4. Costa Rica: The Right of All Living Beings to Exist and Develop.

Article 50 of the Costa Rican Constitution is a progressive one-of-its-kind legislation that recognizes the right to a healthy and ecologically balanced environment. Like other nations, it also poses duty and responsibility on both citizens and the government to safeguard natural resources. The article is renowned because not only does it recognizes the right to a healthy environment but it also empowers its individuals to denounce environmental damage and seek reparations. This broad scope ensures that environmental concerns are taken seriously and addressed effectively. It is even more important as the provision places an obligation on the state to protect the environment meaning all the policies adopted will take into consideration the environment.

The article stresses on the responsibility of every citizen in protecting the environment as they are given the right to report any environmental harm and seek for solutions. This creates a feeling of collective responsibility towards these issues among the citizens. The fact that environmental rights are recognized as human rights means that courts can be approached in matters arising from state actions which are harmful to the environment. As such, courts are in the best position to ensure implementation of the provisions of chapter 50, as well as environmental protection in general. The article acknowledges the existence of environmental rights, but does not offer any concrete means of implementation to them. This might result in the difficulties in punishing perpetrators of environmental offenses. The entire scope of abuse of power set forth in the Article is so wide

that it may be subject to various interpretations and hence impractical in actual instances. This is likely to create confusion and complicate efforts to enforce the provisions effectively. Enforcing mechanisms for environmental conservation may require extensive human and financial resources. Like various other countries that are still developing, Costa Rica may experience similar challenges, which may restrict the extent to which Article 50 obligations are observed. Though some Costa Rican case laws have emerged around environmental rights, but the development of the jurisprudence concerning Article 50 is at its early stages. More case law is required to define the scope and boundaries of this provision. Conclusively, Section 50 of the Constitution of Costa Rica is one of the most practical legal inventions as far as environmental concerns are treated.

Nonetheless, its practical impact relies on the optimal legal mechanisms for implementation, effective understanding of the law and its resources. By addressing these weaknesses and leveraging the strengths of the provision, Costa Rica can further enhance its commitment to environmental sustainability.

5. Article 79 of the Colombian Constitution

Article 79 of the Colombian Constitution provides, among others, the right to a healthy environment, which has been understood to include the safeguarding of animals. Such provision has proved to be fundamentally useful in promoting the protection of animals in Colombia but it has its own demerits. The broad language of statutory provisions can be a boon or a bane but in Colombia, it has panned well as Article 79 allows for flexible interpretation and application to a wide range of animal welfare issues. This has led the courts to recognize the rights of animals, even in the absence of expressly defined legislation. The Constitutional Court of Colombia has not shied away from applying Article 79 of their Constitution in in favor of the rights of animals.

And in different endangered species protection cases the Court has construed the environment right as alongside animals and free from cruelty and abuse. Article 79 has raised concern for animal welfare in Colombia. It has also helped animal rights proponents to push for better policies regarding animal welfare. Akin to other nations, Colombia too lacks specific enforcement mechanisms. This makes it difficult to hold individuals and organizations accountable for animal cruelty and neglect. The effectiveness of Article 79 is determined by what the judiciary interprets which can vary on a

case to case basis. Yes, the constitutional court of Colombia has been supportive of the rights of animals at all times, but it is subject to possible lack of uniformity in certain decisions. It is possible that animal welfare issues may at times detract from the realization of other social and economic pursuits. For example, the advancement of construction activities could prove detrimental to the habitats of certain species. Balancing such competing interests can be challenging, and Article 79 may not always provide convincing solutions. Even though specific cases focusing on Article 79 with regard to animal rights may not exist in Columbia over the years, it has been cited as the primary provision for animal protection in many cases. For instance, the Colombian Constitutional Court has taken certain measures and rendered decisions against inhumane actions including practices.

Such cruel practices include bullfighting or cockfighting. In addition to that, a number of committees and organizations in the country of Colombia have published findings or made recommendations on the subject of animal welfare. Many of these reports refer to Article 79 of the Colombian Constitution in the previous and current campaigns for the promotion of better legal protection for animals.

5. Other Countries with Constitutional Provisions

Several other countries have incorporated animal welfare provisions into their constitutions, albeit to varying degrees. These countries include: i. Austria: The Austrian Federal Constitutional Act on Sustainable Development and Animal Welfare acknowledges the relevance of animal welfare and obliges the state to protect and safeguard animals. ii. Luxembourg: Article 11bis of the Constitution of the Luxembourg has been enhanced over the years to promote protection and welfare of animals. B) Constitutions with Implicit Protections

A number of countries have constitutions with direct provisions regarding animal welfare while

others provide safeguards to animals indirectly through broader constitutional principles such as right to life, right to dignity and environmental protection. This segment will look into the ways in which these implicit provisions can be utilized so as to advance animal welfare with the help of some examples from different countries.

1. United States: Balancing Human Rights with Animal Welfare

The U. S. Constitution does not mention animals or their welfare. This is because animals there were generally considered as property. However, the Ninth and Tenth Amendments have been interpreted as providing animals with the unenumerated right not to be excluded by the people or the states from their enjoyment. Indeed, these amendments have been relied upon to invalidate statutes that allow for the infliction of cruelty or extreme treatment on animals. Moreover, the Animal Welfare Act is the only federal law in the United States that regulates the treatment of animals in different sectors like research, testing, exhibition and others. One prominent example is the case of Nonhuman Rights Project, Inc. v. Breheny6. In this case, NhRP brought a habeas corpus petition in the Court against the Bronx Zoo, on behalf of Happy, the Elephant.

The Federal Court rejected the petition, denoting the unwilling culture to include non-human animals within the meaning of “person” in order to afford them legal rights and protection that a person is subjected to. The Judicial System in USA has been very cautious to articulate that changes in the law as it affects society must necessarily emanate from the legislature and not the judiciary, adding that consequences of societal and ethical changes may arise with the grant of legal rights and protections to animals similar to that of human beings. This ruling does give an insight that the progress regard animals can be made via the legal framework only within the United States.

2. Canada: A Charter-Based Approach to Animal Welfare

Animal welfare is not explicitly included into the Canadian Charter of Rights and Freedoms. Yet some of its provisions, for example the right to life, liberty and security of the person, are at times made applicable to animals. For that matter, section 446 of the Canadian Criminal Code forbids acts of cruelty to animals and several animal protection acts found in the provinces offer more provisions. In a family law case of Bayat v. Mavedati (2024)7, the ruling made by the judge of the British Columbia Supreme Court awarded joint custody of the former couple's golden retriever, Stella, to Sahar Bayat and Omid Mavedati. This ruling, which is in line with changes in the provincial family law enacted in 2024, recognizes how companion animals are no longer treated merely

6 Nonhuman Rights Project, Inc. v. Breheny, (2022), New York, No. 52, 2022 WL 2122141

7 Bayat v. Mavedati (2024) British Columbia Supreme Court, BCSC 619

as possessions. Even with disputes concerning ownership and claims of abuse and abandonment, Justice Scott Nielson spoke to the love both parties have for Stella and their efforts towards her care. Therefore, the court issued a fair custody arrangement in this case explaining that the welfare of the animal should also be taken into account in such issues.

3. Australia: A Common Law Approach to Animal Welfare

Australia does not have a separate provision in the constitution for animal rights. Surprisingly, the Constitution doesn’t even refer to animals except for fish. Still, due to certain common law principles such as the prevention of cruelty to animals, animals have also been protected. Being a federal system of governance, its laws including those for animals are made at different tiers of governance, the Federal, State and local levels. Due to the power given in Section 51 of the constitution, this commonwealth country has been able to implement international treaty as part of their domestic law. Some of them concerned with animals are Convention on Biological Diversity 1992, the Convention on the Conservation of Migratory Species and Wild Animals 1979 (‘the Bonn Convention’), and the Convention on the Conservation of Nature in the South Pacific 1976 (‘the Apia Convention’).

The High Court of Australia has endorsed the cause of animal welfare as an area deserving of protection under freedom of expression.

4. Europe: A Harmonized Approach to Animal Welfare

While the Treaty on the Functioning of the European Union (TFEU) does not directly refer to the issue of animal welfare, Article 13 of the TFEU provides a legal basis for the EU adopting measures for ensuring animal health and welfare. It stipulates that being sentient creatures, due regard should be made to animals’ welfare requirements. This provision has been successfully utilized in the adoption of several legislations, including provisions regulating animal transport, animal slaughter, and use of animals in laboratories. The European Council, based in Strasbourg (France) virtually covers the entire European continent, with 46 countries as its members. Over the years, it has issues various directive in interest of different animals which the humans interact with on a daily basis.

For instance, Council Directive 2008/119/EC lays down standards for protection of calves, Directive 2008/120/EC for protection of pigs and various others.

FUNDAMENTALS ENSHRINED IN ANIMAL WELFARE PROVISIONS AND

SCHEMES

a. Recognition to sentient nature One of the most fundamental human rights is the right to life. While this right is mostly associated to favour human beings, however, some others suggest extending it to animals especially to those which are sentient. This interpretation stemmed from the belief that every sentient being has a right to life and unnecessary pains should be avoided to them. Many key industries, such as agriculture and research, have developed moral guidelines and ethical codes of practice to ensure humane treatment of animals. For instance, in India, the right to life under Article 21 of the Constitution has been extended by the Supreme over the animal rights. The dignity of animals has been upheld by the court and judgments have been given to ensure their humane treatment. b.

Extension of Environmental Protection schemes Many constitutions contain provisions for environmental protection which can lay ground for animal welfare laws. Environmental laws often include provisions for the conservation of wildlife and biodiversity, which can indirectly protect animal welfare. Take for instance, the Canadian Charter that provides for the rights of every person the right to life, liberty and security of the person, and has been interpreted to include wildlife protection. The Constitution of Australia does not provide for any provisions addressing animal welfare but does provide for protection of environments. The Environment Protection and Biodiversity Conservation Act 1999 is a Law that is applicable all over Australia. This Act enables the listing of wildlife species and ecosystems which are at risk.

This Act has been effective in preventing many species of animals from extinction, most notably the koala, kangaroo and even certain types of dolphins. c. Public Trust Doctrine The public trust doctrine is a legal principle that obliges the government to oversee the sustainable use of certain natural resources and wildlife for the benefit of the people. In addition

to governments, even the NGOs often undertake public awareness campaigns to educate people about animal welfare issues and promote responsible pet ownership. This principle has been embraced in many nations, such as the USA and Australia, to safeguard animals from endangerment. In America, the public trust doctrine has also been extended to include some species of marine mammals and other animals. For instance, the Marine Mammal Protection Act of 1972 which serves the public trust doctrine makes it illegal to kill, capture, or harass marine mammals. d. International obligations Animal welfare can also be derived from international laws and treaties in providing implicit protection. As seen above, in the case of Australia, such obligations pose heavy duty on governments rather than their domestic liabilities towards fulfilment of regulations.

One may consider the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which addresses international trade in wild animal and plant species like those of endangered ones. This helps in controlling the ill effects of exploitation and trade on few endangered species of animals. The World Organisation for Animal Health (OIE) and the Food and Agriculture Organization (FAO) are among the organizations that have an active role in animal welfare standard setting at the global level. Thus, it is prudent to conclude that in the absence of explicit constitutional provisions, many countries provide implicit protections for animal welfare through broader constitutional principles and international law.

Acknowledging the worth of animals and giving these provisions liberal interpretation, the courts and legislatures have been making impactful contribution towards the enhancement of animal welfare.

POTENTIAL REFORMS AND WAY FORWARD: CONCLUSION

While many steps have been taken, the issue of recognizing and protecting animal rights is still complicated and difficult. The legal systems still grapple with the challenges of the status of animals, the extent of their rights, and the appropriate mechanism for enforcing these rights. One of the major quarrel is between animal rights and human interests. In most situations, the interests of the animals come into conflict with the economic or social interests of humans. For

instance, in the course of scientific progresses including the medicine and agriculture, and even in the entertainment sector, ethical issues on the welfare of animals play a major role. Such challenges however can be addressed with a multi-pronged strategy. This encompasses improving the already existing animal protection legislation, increasing the public awareness and education on animal rights issues, and enhancing the studies on cognition and behaviour of animalia. Furthermore, global problems like international wildlife trade and animal agriculture related pollution also require international equal efforts. Possible attempts for the same can be made at International conventions and summits where the leading countries involved in such practices stark an appearance.

As the scope of knowledge concerning animals’ cognition and conscious awareness expands, it seems evitable that the status of animals in law will change further, as also suggested by the USA court. It is also worth noting however that how far the recognition of animal rights goes in any society is a good indicator of justice, compassion and environmentalism within that society. Implicit constitutional protections raise quite a number of powerful channels meant to address animal rights violations, however, they too face various challenges and limitations. One challenge can be pointed out in the interpretation of such provisions by courts and the legislatures. Courts may very well interpret these provisions in rather restrictive approach giving an edge to human rights and environmental protection as opposed to animal protection.

In addition, there is the issue of animal welfare laws being poorly enforced. Many countries do not have sufficient funds and structures in place that can adequately protect animals and comply with their policies, especially the developing world. A major problem with complete animal rights is that it only deals with anthropocentricanimalia interaction. Whilst there are many indirect human activities which have a direct and profound impact on the animal life, like throwing of plastic in water bodies, mismanagement of waste disposal on roads and in water bodies which ultimately leads to the pollution of rivers, lakes, oceans, atmosphere, consequently increasing global warming etc. , have not garnered much public attention. Even daily life human activities like building roads, laying pipelines, and growing crops can have adverse effects on their welfare.

How can these indirect effects of human activities be studied properly if we are constrained in discussion whether the animals deserve to be treated as “humans” or not?

For instance, cattle slaughter has been an evident practice in the world. It has been tumultuous in India as cow is precious to a particular community, it involves a necessity to understand the behavior of the community and its people which indirectly leads to the study of mob behavior. Therefore, the theory seeking attention is that of Le Bon. According to Le Bon, the earliest and main exponent of crowd behavior, the individual yields ‘to instincts which had he be alone, he would perforce have kept under restraint’. He is no longer himself, its acts are less rational and more emotional. He acts as per the will of the mob and not as per his owns. The person becomes hyper excited and that is why acts irrationally in a crowd rather than in an individual sense.

This theory doesn’t only helps us understand the cases of mob lynching or the way the political parties act when supported by the dominant group in the country, but also that if the majority section of society is informed, even those who are not will follow them in interest of morals and values. Additionally, different cultures and even religions hold some beliefs and practices that are at variance with animal welfare principles making it hard to form strong animal law policies and even more difficult to enforce them. Nevertheless, for the time being, there exist practical modes of prevention of violations of animal rights and provisions in penology that contribute to the development of a more civilized society. However, to sum up the discussion, at this juncture of 21st century, the major role which any institution can play in the enforcement of these provisions is the society itself.

The society consisting of people whether bourgeoisie or proletariats, whether students or teachers, whether the high-income group or low-income group. The only social stratification justified here is that notwithstanding one group makes the policies, it is combined effort and responsibility of all the groups divided in whatever category to come together and enhance the level of knowledge for the provisions to have any impact.

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