The Province and Primacy of Law -- VI

(By Dr. K.B. Mohamedkutty, Senior Advocate and Former Law Dean)

Few people think of what law is, though it follows them as their shadow. Fewer people think what it was. As the way of law is hard and steep, it is not easy to follow its pursuit. Therefore the defiance of law is as old as Adam’s wife! People began to defy the law as a barrier to freedom and an instrument of coercion in the hands of those who had power. The resistance against the oppression of law as mass movement developed later. The laissez faire which stood for non-interference with industrial freedom and its acceptance in some countries came into being in this way. Such freedom appeared to be the need for the expanding industrial economy of the nineteenth century. Those who believed in it thought that every law is an evil or infraction of liberty. The Anarchists who opposed all kinds of laws went a step further and thought that people were imprisoned in the cage of law. Today nobody would support Anarchism as it represented the ethos of a by-gone age. Or, perhaps, as Jawaharlal Nehru says in his Glimpses of World History, we have not grown to think upto such eminence for living in harmony and co-operation without the coercion of law! The Anarchist philosophers stood for such an ideal society, but they were grossly misunderstood as peace-breakers, while in fact they were not. Most of them were peaceful and philosophical and did everything for eschewing violence. Of course, there were exceptions.

Experience however shows that Law is not strong enough to put an end to tears falling the wrinkling face of the common man and remove his worries and anxieties. Vaikom Mohamed Basheer, the renowned novelist, observed that life is a strange mixture of physical and mental forces; we find in it many things such as downright foolishness, extreme cruelty, horrible enmity and bitterness, sublime spirituality, great kindness and immeasurable love and affection. Law deals with them all. When we look back we realize that law is memory of countless things in the life of the nation and the people; it records a long running conversation between the people and their rulers. The U.S. President Obama, who was a Law Professor, observes that a nation argues its conscience through her laws. Law is not a monologue. 

 Law extends rights and imposes duties on the people. However, law fails to cover all needs. It is just like a train of people cannot travel on a bicycle or an auto-rickshaw or a car. However, by the second half of the twentieth century Constitutions and the laws sprang up in various countries. But today we find that more and more laws breed more and more corruption. If people are honest there is no need for too many laws. Moreover the unpleasant fact is that laws count for nothing when Government, Ministers and Officials are the worst offenders. Though we sow enough seeds of law, only a few out of them reap. Some laws are like sowing the wind and reaping the whirl-wind. There are secrets of the day and secrets of the night in the administration of law. For its misuse law is not at fault. About laws of yesterday and laws of today we are free to express our views in a democracy, but about laws of tomorrow none can say as it is a dream. 

In teaching the law and applying the law our leanings are towards western jurisprudence. We follow western concepts blindly. But in many parts of Asia and Africa there were legal systems much earlier to western legal system and they flourished and met the exigencies they faced. The western jurisprudence, according to some authors, cannot have a better claim than the jurisprudence of Eastern Civilizations. The West has in fact absorbed immensely from the Eastern Legal Systems.

Ancient vs. Modern

We had stone carving of laws during the days of Budha (600 BC). Ancient western law carved on a slab is kept in Paris Museum. The ancient laws were not amenable to change. They were static. For example, the writings of Jewish law were originally kept in a wooden chest named “arch”. Things changed later, but not the law kept in the chest. In all legal systems, sometimes laws shape events and sometimes events shape law. This goes on as an unending process. In India after independence, there have been hectic law-making by the Union and the States. During the British, Mughal and ancient periods of history the law was distanced from the people. Law then served the rulers and their interests. Later, we find the great march of law in India which resembles an orchestra, whose players are the people. But we find too much regimentation of law in some areas or complete lawlessness in certain other areas. Those who oppose the rigour of the law say that they are at the beating end of the law without enjoying any benefit. When the law-makers break the law themselves with impunity, as we witness today, the question is “who is to watch the watch –man himself?

 Changing  Momentum

Today the need for law chiefly arises out of economic slow-down and scarce resources.  Laws enacted however are not sufficient enough to meet all contingencies.  The proclamation of law alone does not bring about peace and prosperity.  Daniel Defoe who has tasted both sides of life and who had been “thirteen times rich and thirteen times poor” said that law and liberty do not consist in open doors and free egress and ingress of locomotion.  It must meet changing needs of man and the society.  Change in life is fantastic today; refrigerators mail us when they run out of milk.  Computer does miraculous things and they occupy pockets of men and handbags of women.  The change in life style leads to making new laws or changing existing laws. The growth of law is not confined to frontiers of nations. 

 Law’s growth resembles germination of a seed in a congenial atmosphere and its development through different stages, namely, budding, flowering, fruit-bearing and keeping in its stump hardwood for future generation.   The fragrance of its flowers reaches far and wide. The law grows like that.  It is not only for the present but for the future as well.   Its vastness is obvious.  Numerous ideas are shaped into law from time to time. To express the vastness of the law, we say law is oceanic.   The expression ‘oceanic’ indicates that law is wide-spread and the same thing with the same identity, whereever it is.  About seventy-five present of the earth’s surface is surrounded by ocean.  The ocean lies between continents. The demarcation and naming of ocean as Pacific Ocean, Atlantic Ocean, Indian Ocean and the like is just to indicate particular area on earth surrounded by water. Likewise, no legal system stands in isolation as no country is an island.  Inter-action and inter-mingling of laws take place in abundant measure.  Science does not claim that there is pure stock of blood.   In the same manner, there is no pure stock of law, except perhaps personal law, like the Hindu Law, the Muslim Law of inheritance etc.

A large chunk of Indian laws are taken from England, the U.S.A, Canada, and Australia.  But blind adoption of law from other counties without taking into account the socio-legal climate of the country may not be workable.  For example, the U.S.A.  developed concepts like ‘Compelling Reasons’ ‘Strict Scrutiny’, ‘Affirmative Action’, ‘Narrow-Tailoring’ and other concepts. They were developed in that country as a helping hand to Afro-Americans, Ameri-Indians etc.  In India such concepts have no relevance.   The English law, however, imbibed many legal norms from Rome.  The principle that king must temper his power by the law and the principles of equity were in existence in ancient societies.  Such a measure was necessary to bridle power and to insist that kings and emperors too may have to live according to law.  It is the people who conferred upon them the sovereign power.  But history tells us that law could do very little to regulate such potential power centers.

Vast  horizon

The law has past, present and future. Journeying through sometimes turbulent and sometimes peaceful path of law, man has become not only a tool-making animal but also a law-making organism.  We find many a legal system.  Each one of them has its own background, culture and tradition.   To learn them all is not just possible. You cannot learn the law as you learn other disciplines.  There is a saying that “you can make even a parrot into a learned political economist” – all that you must learn are the two words, ‘supply’ and ‘demand’.  Law is different.    A life time study of law takes you only to the fringe of its vast horizon which is ever expanding. Law, like life, is vibrant and full of change and not the same in the next moment.  It has a tendency to expand itself as it interacts with people and their issues.  Every case coming up for decision before law courts is a page torn out from the book of life.   We find in it the blood-stain of life.   We find in it victories of man, his ambition, evil design, treachery, rise and fall.  The stream of law flows searching for a dawn.  The future of law like future of life is not predictable.   But future cannot disown yesterdays with all their failures and success.

The  Primacy  of  Law

One can experience the beauty, liveliness and dynamism of law only when it is enforced or put into action.  Law enacted and kept in statutes without enforcement is like dead wood.  Voluntary compliance of law regulating human conduct and interest is few and far between.  As Bertrand Russell observed, “a stupid child will only pay attention to what has to be learned while the teacher is there to insist upon the subject matter of the lesson.  Today violence, terror, terrible and scandalous corruption and fraud exhibit distressing trend.  In such a society the primacy of law is to establish order in the society first by force, if necessary.  You cannot enjoy the beauty of a flower if the same is kept in a hidden place.  Law in statute-form is like that.   Attempt to implement law may have to face resistance.  Like infant leaves of a plant must be protected from attack of insect, law too needs protection when there is sharp fall in human conduct.   It is a pre-requisite for economic growth and development.  The political parties must resolve problems facing the country without adopting too much negative attitude in order to safeguard national interest, with unity and gentle spirit of accommodation.  Khalil  Gibran’s  little story spells out the horror of disunity. 

“Said the Eye one day, “I see beyond these valleys a mountain veiled with blue mist.  Is it not beautiful?”

 The Ear listened, and after listening intensity awhile, said, “But where is any mountain? I do not hear it.”

Then the Hand spoke and said, “I am trying in vain to feel it or touch it, and I can find no mountain.”

And the Nose said, “There is no mountain, I cannot smell it.”

Then the Eye turned the other way, and they all began to talk together about the Eye’s strange delusion.” 

We must remember that great civilizations perished in the absence of gentle spirit of accommodation.   In modern times, want of unity led to the downfall of Iraq, the wonderland of civilization, where the magic city of Arabian Nights flourished.  What happened to the stupendous Indus Valley Civilization?  Where is the glory and wonder of ancient Greece today?  Certainly the decline of legal system and intolerance of conflicting factions might have weakened world civilizations one way or the other.   For dawn of the rising sun, the lamp of law must be kept  unextinguished  along with other sublime social forces.

Judging the Judges: Debating Judicial Conduct

(By Kaleeswaram Raj, Advocate, Supreme Court of India and Kerala High Court)

The Supreme Court Bar Association had proposed a resolution demanding “fair treatment of lawyers” by judges.  The notice issued recently by the Association, which consists of members from almost all the States in the country, says that the lawyers must receive respect “irrespective of their standing and seniority”.  It also protests against the “hurried and selected manner” in which some Supreme Court Benches hear the cases (The Hindu, 3.3.2015).  The subsequent circular issued by the Association on 10th March, however says that “the emergent general body meeting (scheduled to 10th March) is deferred” on the basis of the assurance given by the Chief Justice to consider the grievances of the bar.

The unusual motion by the body of lawyers at the Apex Court level poses significant questions which transcend the legal profession.  The internal democracy within the court is a condition precedent for democracy outside.  Without justice within, no institution of justice could meaningfully exist.  The status quo doctrine is bound to be reactionary when reformation is an imperative.  True, that Kafka in The Trial was pessimistic when he said -  “(I)t never occurred to the advocates that they should suggest or insist on any improvements in the system, while …almost every accused man, even quite ordinary people among them, discovered from the earliest stages a passion for suggesting reforms."

Exposure is the first step towards any radical reformation, for sunlight is the best disinfectant. Max Boot, the former Associate Editor of Wall Street Journal   authored a classic work on “the injudicious judiciary” in the U.S. with a striking title – “Out of order – arrogance, corruption and incompetence on the bench” (Basic Books, 1998).   Boot was supported by a confessional foreword written by Robert Bork, a former federal appeals court judge who said – “Our courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform, a reform that must be structural as well as intellectual and moral”.

The judicial misbehavior and misconduct are not generally discussed in the Indian media, though there is nothing improper or illegal in dealing with them.  Again, in the words of Max Boot, “any one who wants decent democratic Government ought to be concerned about judges who misbehave or exceed their authority or issue unjust decision”.  Therefore, there is a need for “unlimited discussions” on the topic.

The conduct of the judges in India is not guided by any statute or even the Constitution.  However, move for the best practice within the judiciary at a global level has been on full swing over the years and India continues to be a party to it. After the Bangalore declarations on judicial conduct (1998-99) and the international round table meeting of the Chief Justices from various jurisdictions at The Hague (2002), judicial morality is no more uncertain or abstract.    The resolution “Restatement of values of judicial life” (1998-1999) was adopted and ratified by the Indian judiciary as well.

Article III Section 1 of the U.S. Constitution, says that the judges shall hold their offices “during good behavior”.   The U.S. has a highly politicized judiciary.   Justice Frankfurter was active in President Roosevelt’s election campaign (1940).  Justice Brandeis was the designer of President Woodrow Wilson’s ‘New Freedom Platform’ which thrived for economic and political development.   Justice Joseph Story sought active support from Congressman Daniel Webster for a few Bills connected with judiciary.   (See: Drew E. Edwards: California Law Review Vol. 75 Issue 3. Article 18).

In India, even during the pre-collegium phase, the judicial appointments were not as political as   in the U.S.  After the invention of the collegium system in 1993, the process was relatively more ‘apolitical’, though it always remained opaque and even undemocratic.   Paradoxically, the country was fortunate enough to have a system which was not akin to that in the U.S. 

 But that does not erase the need for evolving a more egalitarian judicial culture within and outside the courts in India.  In Tarak Singh ( 2004) the Supreme Court held that the “integrity  (of the Judges) is the hallmark of judicial discipline” and cautioned that “wood peckers inside pose a larger  threat (to the system)  than  the storm outside” .  In Remesh Chand Paliwal (1998) the Court wanted the judges to be “hermits”, who have “no desire or aspiration, having shed it through penance”.   In Daya Shankar (1987), the apex court clarified that judicial officers cannot have two standards, one in the court and another outside the court. Anil Rai
(2001) was an introspective verdict on delay in pronouncing judgments. 

In- house  Procedure

Regulating judicial conduct by legislative measures is a difficult task.  It also runs the risk of impairing judicial independence, which again is a basic feature of the constitution.   However, the Supreme Court has evolved an ‘in-house procedure’ to deal with the complaints related to misbehavior of the judges of the Supreme Court and the High Courts.  A five judge committee appointed by the Supreme Court formulated a mechanism for suitable remedial actions when there are “proved instances of misconduct or misbehavior” against the judges in the higher judiciary.  The report on this ‘in-house procedure’ was submitted by the committee on 31.9.1997 and was adopted with minor changes by the full court meeting of the Supreme Court on 15.12.1999.

As per the in-house procedure the complaints which are “not frivolous” and are “unconnected with the decision in a matter of adjudication”, could be enquired into by a fact finding commission consisting of judges only.  On finding that there is serious misconduct, the Chief Justice of India (CJI) can even ask the judge concerned to resign or seek voluntary retirement.  Also there could be “advice” to the concerned judge which would form part of records.

But the in-house arrangement has become dysfunctional by lapse of time.  Even while it functioned, the activities were in the oblivion and as such no instances of institutional corrections were known outside.  I would plead for a regular mechanism that organically tries to avert even the possibilities for genuine complaints or allegations from the members of the bar or from the public.  A permanent committee consisting of the representatives of the bench and the bar at the Supreme Court and High Courts level would go long way in tackling the issues.

Bar Associations cannot pass resolutions against the conduct of the Judges for the same would amount to contempt, as indicated by the Supreme Court in  Ravichandra  Iyer (1995).  Therefore, the corrective mechanism should be one that is able to meaningfully avert a situation in which the Associations   go for such resolution.  A preventive strategy is more useful and contempt action is no solution.   A fault-free system for judicial appointment marked by openness, fairness, objectivity and transparency may lead to fundamental changes.    There is a further need for continuing education in legal, social and moral facets. 

Publicity, the soul of justice

There are better scientific devices to ensure egalitarian behavior on the bench.  An open court system needs to be truly open in the digital age. Even in the sixties, the Supreme Court has extracted the decision in Scott v. Scott that quoted Bentham on administration of justice -  

“In the darkness of secrecy sinister interest and evil in every shape have full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate.  Where there is no publicity, there is no justice.  Publicity is the very soul of justice.  It is the keenest spur to exertion and the surest of all guards against improbity.  It keeps the judge himself while trying, under trial”. ( Naresh Sridhar,1966)

A live recording of the court proceedings may go a long way in ensuring proper judicial conduct in an open adversarial judiciary.  By ensuring visibility, accountability is ensured.  While John Leo complains that “(the court) remains invisible to most Americans”, in the U.K., live telecast of proceedings in important constitutional cases is quite common. There is a need to emulate and expand the U.K model in our country.

Senior  syndrome

The demand in the Bar Association’s notice for accommodation in court “irrespective of standing and seniority” and the protest against “selective hearing” call for  more serious debates.  Marc Galanter and Nick Robinson in a Harvard Law School paper demonstrate that a few senior lawyers in India constitute “a legal elite flourishing in the era of globalization”.    The Galanter-Robinson study inter alia says that “Grand Advocates in India are known for securing hearing for their clients”.  According to them in India “seniority works differently for Judges than lawyers” and “the Grant Advocates enjoy esteem of the Judges who give them more face time”.  The study adds that a few advocates in India “enjoy incomes that rival the most highly remunerated lawyers anywhere in the world”.  They are also “notoriously inaccessible”, according to the paper. The authors also quote a lawyer saying that “the face value matters” in admission matters before the Supreme Court.

The judicial system is too serious a matter to be left to lawyers or judges alone.     It is high time to have an institutional introspection on the question of seniority and right to   pre-audience or any other privileges for any category for that matter.   The conventionally perceived equality among the bar members has to be revived for maintaining institutional fairness.  Not the face, but the submissions should matter. Not the person, but the content should determine the outcome of litigation.  The admixture of feudalist and the capitalist traits which imposed upon the system should wither away.  The equality clauses in the constitution should begin with the constitutional courts and the legal profession.  The notice issued by the Supreme Court Bar Association is therefore an eye opener to those who run the show, since we need at least the shows for the sake of democracy and also for its future.

Man's  Relentless  Pursuit  of  Happiness

(By V.K. Babu Prakash, Judge, M.A.C.T., Thalassery)

Now a days, mind is wandering into spiritual thoughts. Perhaps, illness of the body might have led into it. There was an egoistic youth time which made the mind to the proposition that everything can be questioned and answered with the help of sheer logic. Now, when the garb of youth has withered, the logical strength of youth has also waned. During the cocoon time to regain body health, two books were read with much relish. One was SriM’s ‘Jewel in the lotus’ and the other Ramachandra Guha’s latest one ‘A corner in a foreign field’. SriM’s book tells about what is Hinduism with its vast, ancient literature and deep metaphysics like the lotus that grows in water, whose leaves and petals remain dry, the spiritual seeker derives nourishment from the material world, but remains undefiled and untouched by its seductions. In this way, one who wishes to lead a spiritual life can simultaneously perform the role of a responsible member of society without compromising his spiritual searching, SriM tells in a most attractive format in the book. Ramachandra Guha’s book is the Indian history of the British Sport Cricket which came to India as a British pastime and later dominated the native in a gripping manner. It is a pioneering work, essentially for any one interested in either of those vast themes, Cricket and India. A corner of a foreign field is also a beautifully written meditation on the ramification of sport in society at large.

Man is the highest living being on the earth among the species that evolved in the process of natural selection. The word ‘intelligent’ is used upon the mankind only. The world across, mankind is savagely aiming at to becoming developed in all spheres. India is also on its hooves to leap forward to achieving mega development. When African countries and its women and children are crushing in poverty, illness, malnourisment and all sorts of maladies, it really is an irony, that developed countries are stealthily flaunting their economic pomp and posh, lavishness and ostentation-like an impatient horse which wanted to runoff far, India is also turning and twisting on its tether to attain unbridled material development. But the big question is, will physical and material development bring the mankind internal happiness and contentment? Is he in inner equilibrium with the material achievement? Are we not losing humanity and humaneness in its true sense? When all is checked on the basis of material wealth and development, we tend to annex the Nature by doing atrocious developmental activities on it in a mindless callous manner. Will it render us good or bad in the ultimate? Is the nature and its environment only for mankind, the highest evolved species and its sustenance? The scientific community of the world around, began to think about it skeptically. Do not the other species like animals, birds, insects, reptiles, plants and vegetations have rights to live on this earth other than mankind? Does not the wild life and its bio diversity have relevance at all? By cutting and felling the trees and forest, handing over the earth to the industrial and commercial world to bring up huge concrete forest in the form of mammoth flats, townships and industrial parks instead, will the mankind be able to find solution to the eternal problem of his life? Will our next generation in the near future have to look at the Google map and Internet to see and understand what really is nature and its bio diversity?

Dinosaur ruled the earth with its unmatched might for about fifteen million years. That species did not become extinct due to any behavioral fault of its own. One huge meteor hit the earth and due to its impact the atmosphere became crude and thick which led to the gradual extinction of Dinosaur. Ants, honey bees and cockroaches have come to the earth much prior to the evolution of mankind crores and crores of years ago. Mankind evolved about twenty orso million years ago only. The modern man has been evolved about two to ten million years only. But to be sure, within this period, how much had he been able to destroy the Nature and its environment? Not satisfied with it, he has even started to destroy the beautiful habitat of earth and its supply source of Oxygen. It is a paradox that the other species are not destroying the Nature like the mankind. On the other hand, they are living in accordance with the rules of Nature. Man alone is acting against the Nature and its rules and trying to impose his own society and rules of law on it. Look around, what one sees is a modern man with material wealth, arrogant, brash and egoistic, but with a face that is not happy, blissful and contented but greedy and disgustful. Life has become a competition between one man and man. Even the sacrament of marriage between a man and woman has become an extravagant event filled with melodrama, wealth exhibition and distribution. After marriage, man and woman struggle to compete with each other to satiate their egoistic needs. Look at the house constructed by one. Every man strives to construct a house which should be an item of envy to others. As Emerson lamented,

“House is a hearth where one lives to become happy,

not mere a structure, made of wood and mortar alone”

Modern man constructs his house as a concrete giant not to make it a hearth, but to exhibit one’s social status before others.

Whether mankind is able to achieve salvation and happiness in the material giant alter world which he built in the Natural world? Is material wealth and its accumulation, his ultimate aim and essence?  When the society loses its core ethos and moral values, can mankind embrace the outer shell for escape? Too many questions and too little answers! The question gazes every mankind like a riddle wrapped in a mystery inside an enigma. May be, mankind would be the only species which would become extinct in the future due to its own behavioral default and intellectual pride. William Shakesphere’s words in Macbeth are more prophetic about the plight of modern man.

“Tomorrow and tomorrow and tomorrow

Creeps in the petty pace from day to day

of the last syllable of recorded time.

And all our yesterdays have lighted fools

The way to dusty death.

Out, out brief candle

Life’s but a walking shadow

a poor player.

That struts and frets

his hour upon the stage.

And then is heard no more

it is a tale

told by an idiot

full of sound and fury

signifying nothing”.

Rights  and  Fundamental  Rights  for  Animals

(By Dr. E.R. Jayaram, Associate Professor, Co-operative School of Law, Thodupuzha &

Albin Anto, Ist Year BB.A LL.B. Student, Co-operative School of Law)

In Animal Welfare Board v. Nagaraja1 the division bench2 of the Supreme Court held that Jallikattu (Jallikkettu is traditional sports in Tamil Nadu involving confining of bulls)3 was violative of several provisions of The Prevention of Cruelty to Animals Act, 1960. Therefore the court held that Tamil Nadu Regulation of Jallikattu (TNRJ) Act, 2009, which allowed Jallikattu, as invalid. The P.C.A. Act, 1960 is a Central Act in the concurrent field and the Ministry of Environment & Forests (MoEF) notification dated 11.7.2011 had also banned the bulls as performing animals. So the Tamil Nadu Act became repugnant to Central legislation. This was also made a ground for invalidating Tamil Nadu Act.

In the reasoning for the above decision, the judgment elaborately discuses “the rights of animals in India”. It refers to the protection to animals in international environmental law and the laws of some countries. It also refers to Indian cultural tradition which forbids cruelty to animals. And also to Article 51 A (g) of the Fundamental Duties in the Constitution of India, “to protect and to improve natural environment including forest, lakes, rivers and wild life and to have compassion for living creatures”. This provision is noted as the Magna Carta of “animal rights” and it is observed that there is need to raise statutory rights under sections 3 and 11 of P.C.A. Act to be elevated to the status of fundamental rights. The judgement ends with a series of directions to the Animal Welfare Board of India and the government for the better protection of the animals guaranteed under the P.C.A. Act. Direction 9 says “Parliament, it is expected, would elevate rights of animal to that of constitutional right, as done by many of the countries around the world, so as to protect their dignity and honour”.

For deciding the issue before the Supreme Court, namely, the validity of the Tamil Nadu Act, a very clear legal ground, namely, the invalidity of a State Act being repugnant to the Union Law, was available and was relied upon by the Supreme Court. It seems to be generally accepted principle that judiciary will not decide what is more than necessary for the disposal of the case before it. However if the Court chooses, in its wisdom, to rely on additional grounds they cannot be found fault with; for, in due course, it may help the future development of the law.

In the article “Animal Rights and Compassion for Other Living Beings: Growing Dimensions of Right to Life Concept Under the Constitution,” P. Leelakrishnan4, Emeritus Fellow, Cochin University of Science and Technology, commenting on the Supreme Court’s decision, notes that the decision is in keeping with the developments of international environmental law, where there has been a shift from ‘anthropocentric’ approach to ‘ecocetric’ approach. The learned writer concludes that the freedoms of animals protected under P.C.A. Act by Nagaraja decision “Stand elevated to the status of Fundamental Rights of animals.”5

Rights of Animals; Legal Rights or Moral Rights?

While there is need to protect “animal rights” more efficiently, it would appear that even after this judgement animal rights would only be moral rights. Only a legal person can have legal rights. The owner of a legal right can insist the enforcement of it with the help of law. The interest recognised as the interest of the owner of the right can be the basis of corresponding duty in relation to that interest. The legal person owning the right can enforce the duty either by his own will or by the intermediary of some other human will which can enforce the duty. Since animals have no legal personality they cannot also have legal rights.

In this connection it is relevant to refer to what Salmond says:

A beast is as incapable of legal rights as of legal duties, for its interest receives no recognition from the law, Hominum causa omnejus constitutum. The law is made for men, and allows no fellowship or bonds of obligation between them and the lower animals. If these last possess moral rights - as utilitarian ethics at least need not scruple to admit- those rights are not recognised by any legal system.6 “Interest and rights of beasts are moral not legal rights.”7

In a similar vein, Paton also says:

“So far as duties towards animals are concerned, I have no legal duty towards them. If the law prohibits cruelty, then I may owe a duty to the State; so far as the law of tort is concerned, I may owe a duty to the owner of the dog. But I cannot owe a legal duty to something that is not a legal person”.8

Though the Judgement and the article refer to increasing recognition of animal right in several Countries and in International Law, it is not clear if such increasing recognition has been the result of conferring legal personality on animals. It would be interesting to refer to a five Judge bench Judgment of the New York State Supreme Court rendered in December, 2014. In that case an animal rights group sought a writ of Habeas Corpus for a chimpanzee. Refusing the writ on the ground that the chimpanzee has no legal personality, the court observed:

“Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer up on chimpanzees the legal rights - such as the fundamental rights to liberty protected by the writ of habeas corpus - that have been afforded to human beings”.9

Do all rights recognised in the context of a fundamental rights become the general fundamental rights?

The fundamental rights represent the basic interests recognised as a part of human dignity and worth. These receive protection against State action. Sometimes while giving meaning to one such fundamental right, it may be necessary to consider some ancillary interests, which may also have to be recognised against State action, for the fuller protection of the fundamental right. Thus, right to privacy, to health, to education (before it has been recognised as a fundamental right), some rights to environment development etc., have been interpreted as fundamental rights in particular cases. But it would appear that such recognition given in particular cases do not make such interest a general part of the hard core of fundamental rights. The recognition would seem to be contextual.

Conclusion

In the light of the above discussion it is respectfully submitted that until the personality of animal is legally recognised and legal provisions are made for the enforcement of the rights, the “animal rights” in India would seem to be only moral rights and not legal rights, much less a fundamental right.

Foot Note:

1.   Animal Welfare Board v. Nagaraja (2014 (2) KLT 717 (SC)).

2.   K.S. Radhakrishnan and Pinaki Chandra Ghose JJ, Judgement by K.S. Radhakrishnan, J.

3.   Ibid para. 16.

4.   P. Leelakrishnan “Animal Rights and Compassion for Other Living Beings: Growing Dimensions of Right to Life Concept Under the Constitution” (2014(4) KLT Journal P.85-88).

5.   Ibid., at p. 88.

6.   P.J. Fitzgerald “Salmond on Jurisprudence" 12th Edition, Indian Economy reprint, Universal Publishing Co. Pvt. Ltd, New Delhi, p.300.

7.   lbid at p. 218

8.   G.W. Paton, “Text Book of Jurisprudence” 4th Edition, Oxford University Press, New Delhi p.294

9.  THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE HUMAN RIGHTS PROJECT INC. On behalf of Tommy v. Patrick C. Lavery, et,al p.6 available at http://www.nonhumanrightsproiect.org/wp-content/uploads/2014/12/Appellate-Decision-in-Tommy-Case-12.4.14.pdf last accessed on 24.2.

Unregistered  Agreement  for  Sale  and 

Proviso  to  Section 49 of the Registration Act

(By V.K. Sathyavan Nair, Advocate, Kottayam)

Notwithstanding the amendment (Kerala Amendment Act 31 of 2013) enjoining Compulsory Registration of Agreement for sale of immovable property such unregistered agreements can be received in evidence in a suit for specific performance, so long as the proviso to Section 49 of the Registration Act stands unamended. In other words the object of the Registration (Kerala Amendment)Act, 2013 remains enigmatic.

Section 2 of the Amendment Act inserts clause (f) and it reads:

“Instrument purporting or operating to effect a contract for the sale of immovable property of the value of one hundred rupees and upwards”.

As per Clause (ii) of Section 2 of the Amendment Act; in sub-section (2) of the Registration Act the Explanation is omitted. The Explanation says that a document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such documents contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. The consequence of insertion of clause (f) and omission of Explanation in sub-section (2) of  Section 17 of the Registration Act is that all agreements for the sale of immovable property are compulsorily registrable whether or not the agreement contains recital of the payment of purchase money or earnest money.

But it is highly significant to note that there is a proviso to Section 49 which deals with the effect of non-registration of documents required to be registered. The proviso to Section 49 of the Registration Act is given below:

“Provided that an unregistered document effecting immovable property by the Act or Transfer of Property Act 1882 (4 of 1882) to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument”. There can be no doubt that an unregistered document purporting or operating to effect a contract for the sale of immovable property can be received in evidence in a suit for specific performance so long as the Proviso is in force. There is no provision in the Amended Act 31 of 2013 which says the proviso to Section 49 shall be omitted and hence the proviso is still in force."

In this context it is pertinent to examine the law laid down by our High Court in Bhaskaran v. George Joseph (1988 (1) KLT 107) while interpreting the scope of S. 17(2)(v) and the proviso to S.49 of the Registration Act. The court found that in view of  S.17(2)(v) and the proviso to S.49 of the Registration Act it has to be held that an agreement for sale of immovable property eventhough not registered can form the basis for specific  performance”. The said decision even after the Amendment Act 31 of 2013 holds good. The omission of Explanation to Section 17(2) is not enough to warrant a conclusion that unregistered contract for sale of immovable property cannot form the basis of Specific Performance. Then the question, regarding the object of Amendment Act 31 of 2003, remains unanswered. Is it an accidental omission, in drafting the legislation amending the Registration Act ?