Chaitanya M. Hegde and Aalokaa J. Verma
Introduction
The state of Tamil Nadu in India recently sought to legally defend the celebration of Jallikattu, a festival involving taming of bulls. While defending the festival before the Supreme Court of India, the state of Tamil Nadu submitted that merely because humans have a duty to protect animals, does not lead to the corresponding rights of animals. In doing so the state criticised the previous decision in Animal Welfare Board of India v A. Nagaraja (Nagaraja) for holding that “animals have statutory rights which have been raised virtually through constitutional rights.”
This case is important as it shows that the Indian legal system fails to conceptualise violence and cruelty towards animals as a crime and instead views them as an environmental and animal welfare issue. While considering issues of animal welfare, attention has tended to be towards the protection of wildlife, domestic animals are only safeguarded if doing so serves human interests. Nagaraja acknowledged (para 74) the rights of domestic animals under article 21, but said that this right is against unnecessary pain or suffering. It allowed necessary pains such as that caused by emasculation, tradition, branding, and dehorning. Interestingly, the Supreme Court of India criticized taming domestic animals for entertainment but acknowledged taming animals for domestic use. We believe this demonstrates how anthropocentric the Indian legal system is. A right is recognised, as long as it coincides with our rights. This article argues that considered through the lens of green criminology, along with non-speciesism, one can see how our objectification and treatment of domestic animals should come under the purview of crime, and we argue that the solution to protect animals is liberation from domestication.
Arguments from a non-speciesist green criminological viewpoint
Interdisciplinarity from both a legalistic and a non-legalistic approach has been a vital aspect of green criminology, and it is the rights-based thinkers and utilitarians who have provided the main arguments for animal rights and developed green criminology. We will consider some of these arguments and go on to propose a non-speciesist argument.
The rights-based approach argues that humans are guided by their moral compass and act as moral agents (See Regan, 1984). The moral rights they have is due to them possessing cognitive abilities. Moreover, humans with mental disabilities, children, and ‘certain’ non-human animals should be treated as moral patients for they have an intrinsic value as subjects-of-life. These moral patients cannot determine right or wrong because they cannot create and understand morality. But, merely because of this disability, their right to be treated equally and avoid suffering at the hands of others cannot be denied. So, it is necessary on the part of the agents to respect, protect and fulfil a patient’s rights, which would involve the right to be free and not suffer. However, not all species could be protected by this approach because only ‘certain’ non-human animals are considered by Regan to be ‘subjects-of-life”.
Utilitarianism recognises the moral status of animals and offers an approach that no ethical or rational justification exists for not giving equal consideration to the interests of humans and other sentient beings. Singer (1990) argues that the possibility of suffering is the sole determinant of interests. So, equality in terms of harm, would not depend on facts like intelligence, moral capability, or strength, but on one’s ability to experience pain. Since animals and humans suffer pain equally, their interests require equal consideration. However, it should be noted that Singer did not necessarily believe in equal treatment for everyone who shares equal interest.
The approaches of these two philosophies, and the boundary created by them in protecting ‘recognised’ sentient beings finds its place in the current green criminological thinking. As noted in the Nagaraja case, there is a difference between “humane” treatment and cruel treatment, and it protects the recognised sentient species, those which are considered by the state to be ‘subjects-of-life’. However, such a position as taken by both rights-based thinkers and utilitarians stems from the understanding that we humans know what is good for everyone, including non-human animals.
To counter these views we would suggest that a non-speciesist argument is required. Unlike Speciesism, which presumes that animals are inherently inferior to humans and live to meet our needs (and hence, it is reasonable to prioritise human interests over those of other species), a non-speciesist argument says that harms against animals are as crucial as harms against humans. A non-speciesist perspective not only acknowledges the fundamental equality between humans and non-human beings, but goes beyond this by advocating for a uniform recognition of equality, without any one group imposing their beliefs about what is best for all. This notion of equality, which for humans, for instance, includes a prohibition of bonded labour or slavery as it breaches the principle of equality, would also be applied to the treatment of animals, and suggests that animals should not be domesticated in the first place. In reference to speciesism, David Nilbert (Nibert, 2002) says that it is the same oppressive system that enables racism, sexism, ableism that legitimises and perpetuates prejudice towards some kinds of animals which are inferior than others. This legitimisation leads to abusive deeds and exploitative practices. So, the end goal of non-speciesism, in order to challenge this system, would be liberation of domesticated animals from human domestication in itself, a position also supported by other abolitionists.
Many abolitionists argue that the right to be free of human ownership is the only right that animals require. Francione (1995) argues that “although everywhere mistreatment of animals is condemned through the law, in practice, the legal system allows any use of animals, however abhorrent.” To look at this from an Indian perspective, the law requires any suffering to be unnecessary as noted in Nagaraja, and yet, the needs of an animal are not considered when decisions on what is unnecessary are made. Francoine likens this to the way Caucasians enslaved people in the United States. Even while legislation theoretically protected them, judges routinely disregarded it, and slavery rendered the legislation unenforceable. He argues that the problem will only worsen if we continue to prioritise animal welfare over animal rights because it normalises people’s treatment of animals as commodities.
Nagaraja by drawing a line between using animals for domestic purpose and for entertainment purpose violates animals’ rights. It becomes a very thin line, where it is difficult to determine the threshold for each of these purposes. For instance, ownership of pet cats might not offer any domestic use in the conventional sense, but would their companionship amount to entertainment which the Supreme Court criticised? This fog of uncertainty puts domestic animals at risk.
For a non-speciesist, animals, like humans, have a right to a life free from cruelty. Animals too deserve to live as per their own nature and instincts, free from human domination and control. It is also unfair to prioritise some species of wildlife above others regarding conservation efforts. Yual Noah Harari argues that the worst crime committed by humanity is the cruel treatment of domesticated animals in industrial farms. They have suffered unimaginable individual suffering. He writes that humans take care of animals’ objective needs like food, shelter, health, and reproduction, but their subjective needs are hampered. The desire of a calf to be with its mother, to play in the open with other calves, of mature cattle or chickens, for example, to reproduce naturally, are supressed. We must recogonise that all animals go through the same experiences as we do: pain, anxiety, and loneliness.
While traditional critical criminology revolves around humans, in an age of environmental disaster it is necessary to broaden the moral circle to include the natural world and animals. This requires challenging long-held beliefs and customs that serve as the foundation of society, such as the widespread use of animals for food, clothing, study, and other purposes, as well as the wildlife trade. Recognition of the victimisation of animals, who share the capacity to suffer, is urgently needed within a non-speciesist criminological approach. Speciesism like racism should be stopped. This would benefit not only other species but also the natural environment, as well as the ecosystems on which our own survival depends. Green criminology must, therefore, include victims like domestic animals. From the viewpoint of a non-speciesist green criminology, abuse and cruelty towards domesticated animals, even if considered legal by the courts and legislators, must be considered a crime.
References
Benton T, ‘Rights and justice on a shared planet: More rights or new relations?’ in George B. Et. Al, Theoretical Criminology (OUP 1998), at 149–175.
Best, S. and Nocella A., Terrorists or Freedom Fighters? Reflections on the Liberation of Animals (Herndon, VA: Lantern Books, 2004).
Francione, G., Animals, Property, and the Law, (Temple University Press, 1995).
Lynch MJ, Stretesky PB, Exploring green criminology: Toward a green criminological revolution (Ashgate, Farnham 2014).
Maher, J., Pierpoint, H. and Beirne, P., The Palgrave International Handbook of Animal Abuse Studies, (Springer, 2017).
Nibert, D., Animal Rights/Human Rights: Entanglements of Oppression and Liberation, (Rowman & Littlefield, 2002).
Nurse A. ‘Privatising the green police: The role of NGOs in wildlife law enforcement’ (2013) 59 Crime Law and Social Change 305.
Nurse A., An Introduction to Green Criminology and Environmental Justice (Sage Pub. 2016), pg. 165.
Regan, T., The Case for Animal Rights. (University of California Press, 1984).
Rollin, B.E., Animal Rights and Human Morality (Promethus Books, 2010). Singer, P. Animal Liberation (Review Books, 1990), at 111.
About the authors
Chaitanya M. Hegde is a final-year student pursuing B.A. LL.B (Hons.) at Gujarat National Law University, India, and an incoming MSc in Criminal Justice Policy student at the London School of Economics.
Aalokaa J. Verma is a third-year student pursuing B.A. LL.B (Hons.) at Gujarat National Law University, India.
This article gives the views of the authors, not the position of the British Society of Criminology or the institution they work for.
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