ABSTRACT

Will animals always be treated as replaceable “objects”? Is there no respite of theirs from the confinements of tiny cages or metal catheters seven inches up into their abdomens? Animals being marginalized under the umbrella of “aloga”, humans drew a moral conclusion of being the most superior. Humans, too occupied by their air of superiority, have failed to acknowledge the probability that the animals might have the capability to give consent. Homo Sapiens have assumed that animals are incapable of giving consent just because they communicate in such languages and symbols which we are not cognizant of. Many philosophers like John Locke, on one hand, argued that animals have feelings while on the other hand, philosophers like Aquinas and Immanuel Kant refuted the notion of duties of humans towards non-humans because they believed that animals failed to give consent or exude feelings. In contemporary times as well, the various legislations, cases and most animal rights activists have inherent in them the idea that brutality towards non-humans is wrong only because of its cynical effects on humans. The punitive punishments and/or imprisonment tenure for committing cruelty against animals is much less in comparison to punishments for the commission of any other crimes. This brings us to the question which will intrigue us throughout this paper: Is the care for animal consent and rights all superficial? The answer which is been sought is whether animal consent is respected and whether it is not about animal rights. The scholar shall, throughout the paper, scrutinize the various Indian legislations to protect animals from cruelty, recent conditions of animal affairs and animal psychological developments, abuse of animal consent and the contrast among them. It will be an effort to bring to light the hypocritical treatment faced by the animals in “the world of humans”.

KEYWORDS: Animals and Homo Sapiens, Moral Superiority, Consent, Psychological Developments, Animal Rights, Hypocritical Treatment

INTRODUCTION

It has been correctly said by Victor Hugo, the eminent French writer that a nation’s greatness can only be adjudicated by the way of treatment of its animals. To grasp the situation of animal welfare in India, we won’t enquire about the legislation only but its actual efficacy in the field of animal welfare, its effect on animal psychology and whether these are enough to prevent the abuse of their consent which has been going on for time immemorial. There have been many animals who, from cradle to grave, are subjected to torture in this human-dominated world. Many grey-bearded intellectuals have defended such appalling exploitation by saying that these non-humans are nothing but mere tools in the hands of humans, therefore, the question of their welfare, let alone whether the non-humans can be pronounced to have rights, feelings or capability to give consent, simply does not arise [1]. It is postulated by them that, to be a bearer of rights, the sentience of the animals is insufficient and there is some need for “cognitive ability”[2]. Rene Descartes had been gravely mistaken when he had regarded the non-humans as mere biological contrivances lacking subjective awareness. It is imperative to understand that animals are sentient creatures, proficient enough of showing consent, and hence relish subjective welfare, advantage and satisfaction warranted by a grant of certain rights and respect for their feelings. It is both arbitrary and not following the modern rights theory and respect for consent theory to limit rights to those who have the advantage of cognitive capacities. Positive law, though having the maximum importance, should not infringe upon the natural law concept of morality, consent and egalitarianism in this de rigueur. It is important for the welfare of the nation and the world as a whole, to stop the practice of ‘speciesism’[3]. In the present scenario, if it’s not possible to treat the animal equally, we should at least make an effort to give them equal consideration. It is the need of the hour to treat animals with the four proposed ethical principles—relevance, impartiality, welfare and consent [4]. This paper will make an effort to discuss the concept of animal consent, the paradox in the world of animal affairs and state machinery and the hypocritical habitat they survive in.

RESEARCH METHODOLOGY

The author of this paper has undertaken doctrinal research to formulate this paper, as follows: Firstly, secondary sources of information such as reports by international bodies and psychological institutions, writings of several natural law and utilitarian proponents, articles, and papers authored by eminent authors on this subject in India and abroad, newspapers, journals and website, and secondly, other secondary sources such as statutes and case laws are used to ascertain and analyze current scenarios and whether these can cater to the welfare of animals are gathered and analyzed.

REVIEW OF LITERATURE

India has “championed” the animal rights movement by enacting various legislations like the Prevention of Cruelty to Animals Act, 1960; The Wildlife Protection Act,1972; the Indian Penal Code,1860 etc. Despite these acts and provisions which promise to provide safety and cater to the welfare of animals, the condition of these fellow non-humans is distressful. These laws against animal cruelty prescribe extremely low fines for the offenders rendering the state machinery incapable of deterring such delinquents from the harm they cause to these creatures[5]. After such acts had been enacted by the Union Parliament, there is hardly any debates about these, keeping the entire scenario of animal welfare, consent, feelings and rights stagnant and shrouded with darkness.

‘Animal Liberation’[6], a phenomenal work by Peter Singer, brings forth an act-utilitarian stance on animal welfare. He questions the very practice of ‘speciesism’ and how humans are committing the grave mistake of assuming animals to be morally inferior. For the philosopher, Arthur Schopenhauer, to assume that animals lack rights, feelings, and ability to consent and that the mirage that our treatment of them lacks moral significance is a positively abominable specimen of “Western crudity and barbarity”[7]. Morality can only be guaranteed by compassion for all[8].

When we speak about humans indulging in sexual activities with one another, there is a plethora of discussion on consent. Has consent been asked for when these creatures suffer the unimaginable pain of bestiality or when pet owners wish their pets should mate, breed and reproduce? Speaking about bestiality, Kant claimed it to be a sin for having unnatural sex and opposes the notion of intercourse between a human and a non-human[9]. He believed that such practice degraded people “below the level of animals”[10].

Now catering to the most important issue: Can animals give consent? This was found by one of the lynchpins in the arena of equine-assisted practice, Barbara Rector, who understood the phenomenon of consent concerning horses[11]. This work brought to light that animals have the neurobiological construct to convey consent. An animal, to show dissent, might not depart but show other indications of “not wanting to be involved” which are often missed or deliberately dismissed[12] by us. Because we don’t understand what they are trying to convey to us doesn’t give us the power to disrespect their assent and/or dissent.

PHILOSOPHERS’ AND UTILITARIANISTS’ IDEAS OF ANIMAL CONSENT, RIGHTS AND MORALITY

The proponents of worldview/religious theories like Aristotle and the Stoics believed that there is a natural and innate hierarchy of living creatures in which humans occupy the topmost position because we have the advantage of being capable of using reason to guide our comportment, while others lack this cognitive and constructive ability. For similar reasons, Aquinas believes that animals are instruments in the hands of humans therefore, non-humans are the means and humans are the ends. Kantian theory is similar to the religious views where it is believed that in the circumstances, those actions willed by all rational individuals could be morally permissible[13]. While both non-humans and humans have desires that can impel them to action, only humans are capable of introspecting and choosing which modus operandi to undertake. Descartes held the view that all animal conduct was capable of being explained in purely mechanical terms and that no reference to conscious episodes was needed for such an elucidation. Since only humans ‘appear’ to enjoy the privilege of possessing rationality and cognitive ability, they are at liberty to exploit those who aren’t facilitated by the same.

The utilitarian objection to the killing of or cruelty against conscious being rests on the ruination of the prospect of future enjoyment. Killing a non-human is wrong, not because it impairs the animals killed, but because their death reduces the aggregate total of utilitarian calculus[14]. In Animal Liberation[15], Singer’s main argument is that in calculating the repercussions of our acts, the grief suffered or gratification enjoyed by these animals boils down to no less than our own. Animals have moral worth; their lives are not simply expendable or to be exploited for meeting our needs. Animals needn’t be treated equally, but they are accredited to equal consideration on account of having equal worth as that of humans[16].

ANIMAL CONSENT AND RECENT PSYCHOLOGICAL DISCOVERIES

Why does the pet owner get to decide when the pet shall reproduce? Why is the consent of the animal not talked about when a human indulges in sex with it? One fine morning, if a human decides to marry a non-human and eventually gets “married”, will anyone ever make an effort to know whether the non-human consented to it? When an animal is “sold” at a pet market to its potential caring owner, why is it not asked for its consent? Those who defend the ideology of animals being treated as objects would find such questions to be flimsy and baseless. Walking down the lane of history, “slaves” were treated the same way because those futile “superior” people felt that they lack cognitive ability. Eventually, they championed such mistreatment and got the rights which they had been deprived of.

The word “consent” still has a political undertone, too tendentious or too far of a psychological curvet to make, then using “assent and dissent” still conveys the rudimentary point. ‘Con SuPermiso’[17], meaning “with your permission” in Spanish, propounds that animals can liaise consent or approval by way of their body language and that robust relationships are built on an underpinning of respect reciprocated towards each other. A “no” or a “yes” can be expressed in any other way than just with words, and there are many who have championed the idea that animals, generally, can express authorization or objection through their body language[18].

It might be asked by the defenders: If the non-humans dissent to such a stay, why don’t they move away? However, what is the exegesis if they do not move away? Is it always because these creatures are selecting to stay willingly and without duress? An animal might not depart but it might exude other indications of “not willing to stay” which are often missed or deliberately dismissed. It is the ignorance of humans that renders them incapable of understanding various signs given by these non-humans. Bringing “going along with” and “consent” inequality is a very gloomy and threatening proposition. Evolutionary biologist, 2009, Marc Bekoff states that he had noticed a curious phenomenon: If a scientist pronounces that non-human is untroubled, no one debates about it, but if a scientist says that an animal is disconsolate, then indictments of anthropomorphism are immediately raised. Such ‘anthropomorphic double-talk’ seems mostly directed at letting humans feel better about themselves”[19].

BESTIALITY AND ANIMAL CONSENT

US-based sex therapist, Dr Hani Miletski at the 26^th National Conference of Sexology held at Chennai[20], pronounced that sexual contact with male dogs has been engaged upon by males (90.2%) more often than female dogs (72%)[21]. Speaking about bestiality, Kant claimed it to be a sin for having unnatural sex and opposes the notion of intercourse between a human and a non-human. He believed that such practice degraded people “below the level of animals”[22]. Just like this inhumane practice has not been debated much in philosophy, it hasn’t touched the lines of society, and on being discussed, the common reactions of humans are disgust, and ridicule, as it is regarded as being of little importance and prevalence[23].

It is paramount to understand that animals have feelings and can give consent therefore, maintaining their dignity is imperative. If any exertion is imposed on the animal which can’t be justified by overriding interests, it would constitute a disregard for the animal’s dignity. The paramount phenomenon of the dignity of non-humans is its sexual integrity and sovereignty, recognized in the modern criminal law jurisprudence as a lawfully guarded right, which includes unbridled sexual sensation and development, the protection from the blemishing sexual exploitation of dependencies, and the protection from sexual abuse. It can be inferred that the dignity of non-humans is not only transgressed by violent sexual acts but any zoophilic act which does not respect the intentions of an animal and therefore, is affected by using some duress[24].

Sexual activities with animals might seem to be a lack of resistance but, it is the ignorance of humans and the imbalance of power which lead humans to dismiss the assent and/or dissent of animals. Even if the animal promulgates protest by biting, scratching, or making sounds, usually the animal will be incapable of effectively resisting. Bestiality must be condemned as animals fail to convey consent in a way humans can readily understand, nor can they resist humans in any pronounced way due to human-bred features or the docile nature they sometimes showcase[25].

EFFICACY OF THE PREVAILING LEGAL PROVISIONS IN INDIA

There have been various legislations enacted and various cases heard but, neither could better the sad state of animal rights, welfare and respecting their consent. After such enactments, animal welfare is something which is hardly debated upon. If any cruelty takes place against the animals, the police are very much reluctant to take FIRs and the society will only “hear” (not listen) this with raised eyebrows but won’t make any effort to better the condition.S.428 of IPC[26] states that those who kill, poison, maim, or render useless any animal will be punished for a value of ten rupees or upwards are simple or rigorous imprisonment for up to two years, or with a fine, or with both. S.429 IPC[27] states that those who kill, poison, maim, or render useless any animal will be punished for the value of fifty rupees or upwards (which automatically includes all sorts of beasts of burden) are simple or rigorous imprisonment for up to five years, or with a fine, or with both”. WPA,1972[28]prevents injury to any wild creature or plants u/s.39.If the animal owned by the offender is incited upon by cruelty. If the non-human is a wild creature not defined as “vermin” by the legislature, or if the person injures or kill a creature defined as vermin in a barbaric way, WPA and PCA are looked into. These are a few of the various legislations enacted in India to protect animals.

In Animal Welfare Board of India v. A. Nagaraja and Ors.[29], it was held that life is not mere existence or survival or only applicable to humans but leading a life with honour, intrinsic worth and dignity is the right of all. As dignity and fair treatment are not constricted just to humans, animals should also enjoy these.

One of the main pillars in modern animal welfare jurisprudence is to recognize the dignity of animals in the gradual legal dissociation. The mere status of being an object or a thing transcends the mere prevention from suffering, pain, damage and fear and denotes a general respect for the physical and mental integrity of every individual animal. For instance, it includes the concern and respect that needs to be shown to other animal interests by mankind, to enter into a cherished relationship with a person. This exposes the fact that the laws have miserably failed to protect the dignity of animals[30].

In Nair Service Society v. State of Kerala[31], it was held that circus animals are shackled and confined in cages, tormented, and living in the most unimaginable and undignified circumstances, which is contrary to the philosophy and values of life mentioned in the Constitution. Although not humans, animals deserve to receive humane treatment and have a dignified existence void of barbarity and torment. Therefore, it is the fundamental duty of humans to not only show compassion to animals but also to protect their rights. If humans are entitled to fundamental rights, why not animals?[32]

Art.51 of the Constitution of India[33], entrusts us with the fundamental duty to protect our wildlife which is of course, not enforceable. If humans have the Right to Life and Personal Liberty, why not non-humans? If both have feelings, morality and neurobiological construct to convey consent, both should have the right of not just mere existence but the right to live with dignity. According to reports published by the All Creatures Great and Small (ACGS) and the Federation of Indian Animal Protection Organizations (FIAPO), between 2010-2020, a total of 4,93,910 animals were involved in various incidents. The report accounts for crime cases against:

Stray animals- 720,
Working animals- 741,
Companion animals- 588,
Farm animals- 88,
Wild creatures- 258.

Among documented, 1000 were assault cases which included cases:

Sexual harassment- 82,
Cold-blooded murder- 266, and
Violent attacks ranging over 400 cases of torture, throwing of acid, kicking, beating, or pouring of boiling water, maiming a body part, attacking with a blunt object or a knife, and
20 cases were assaulted by children[34].

A draft bill cleped the Animal Welfare Act,2011 was proposed in 2011 to replace the previous redundant laws but could not make much headway. Further, numerous private member bills were introduced in the Central Legislature including an amendment to increase the fine and tenure of punishment. Just as normally, none of them were taken up. Is this just because they don’t vote and can’t protest, rebel or communicate in a language understood by humans? This makes the situation clear: The already established law to protect animals against cruelty has been rendered ineffective. The animal protection laws have failed to be a reality and misguide the vulnerable into believing this utopia.

HYPOCRITICAL SITUATION WORLDWIDE

Spain is said to have championed in animal rights movement but, it is also the country that has legalized “corrida de toros” (bullfighting). The pet owners, who boast loving animals, are those who are shackling their “loved” creatures inside the four walls of their houses. The hypocrisy has reached such unfathomable depth and the extent to which humans have lost humanity that the “animal lovers” take pleasure in devouring meat. How do humans decide among the animals: which is a pet and which is food? Slaughtering animals in the name of religion and fun exposes how pathetic conditions of life, the animals are living under. How feigned can those religious propagandists be when they slaughter animals along with propagating and preaching egalitarianism, love, respect and care? Do pet owners love their pets in actuality if they decide when to get their pets to breed and mate remaining oblivious to the feelings of those vulnerable creatures? When there are some natural calamities, humans are the first to be rehabilitated and airlifted but the animals later (when damage is already done) or never. Don’t their lives have value? Don’t they have a right to live? Animals are caged in laboratories in those nations where the clamour about human rights is very strong and the “State cares about the feelings and consent of animals”. Few countries have banned the slaughtering of just a few animals and not the rest. How does the state machinery decide the cost of lives of a few animals over the rest? Even in those countries where hunting is illegal, people relish meat just because “these animals are produced to be eaten (poultry)”.

SUGGESTIONS AND CONCLUSION

It is crucial to inculcate the quality of compassion and kindness in students right from the early days of their lives. Stricter laws and their efficacious execution in preventing barbarity against animals are necessary. Seriousness should be asserted while taking reports of cruelty against animals. People who operate under the guise of shelter providers or ‘rescuers’ should be kept under frequent raids animals aren’t safe even in ‘pet shelters’[35]. To promote egalitarianism and to climb the hierarchy, just as Aristotle believed, we should think the animals to be part of our society. Besides teaching to give respect to fellow humans, kids should be taught to respect animals as well so that we can achieve animal liberation, respect for animals’ dignity and consent in the truest sense in the times to come. Humans should not imbibe their hypocrisy and a double-standard mentality and should start treating animals so that we truly become beings having the most superior morality.

NAME: SAMRAGGI DUTTA

ST. XAVIER’S UNIVERSITY, KOLKATA

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[2](ibid) at 1.

[3](supra) at 1.

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[14](supra) n.1.

[15](supra)n.1.

[16](supra)n.6.

[17](supra)n.11.

[18](supra)n.11.

[19](supra)n.11.

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[22](supra) n.7.