Article 21 and Non-human Animals: A Fallacy?

By: Priyashi Chhajer and Paras Ahuja

Article 21 of the Constitution of India guarantees the fundamental right to life to every person. The contours of this right have been expanding ever since to include not only the various ramifications of ‘life’ but also to include species other than humans within its scope. The word life has been interpreted to include the standards of a clean environment, right to health, right to education, right against custodial torture etc. The judiciary has also been parallelly expanding the scope of ‘person’. The word person has been interpreted to include within its scope non-human animals, alongside human beings. The purpose of this article is to contest against such understanding of the term as it violates several constitutional and jurisprudential standards and also falls short of a pragmatic approach capable of effective implementation. 

The Supreme Court in the case of Animal Welfare Board v Nagraj and Others held that the bull-taming sport of Jallikattu should be banned as it violates the ‘right to life’ of the bull. The case accorded the non-human animals with the status of right-holders under Article 21 of the Constitution. More recently, the Tripura High Court in the case of Subhas Bhattacharjee v State of Tripura ordered the ban on the sacrifices of animals and birds in the temple. The Court, here too, reasoned its decision on the ground of Article 21 of the Constitution and its applicability to the class of non-human animals. Although the end sought to be achieved by these judgements suits the idealistic standards of ecological preservation, the means used therein are riddled with several infirmities.


In order to ascertain the correctness of such an approach, it is of extreme pertinence to fathom the eligibility of an entity for the endowment of a right. A major tenet to be observed while exercising any right is that it comes along with a duty. The existence of a right, in isolation, without any corresponding duty, is antithetical to the notion of a civilised society. To understand this, reliance can be sought on Hohfeld’s analysis of rights. According to him, the endowment of a right is accompanied by a corresponding obligation to perform a duty. He argued that ‘right’ and ‘duty’ are correlative concepts and therefore the boundaries of ‘person’ were restricted to those entities which have the capability to perform the corresponding duty which a right carries. The conference of right to life upon non-human animals would derail from this jurisprudential understanding, as they do not possess the rationality to understand obligations and perform the corresponding duties that arise from such conference. Non-human animals do have a certain interest in the protection provided to them as they have the ability to feel pain and sufferings, but granting them the rights on that basis is flawed as human rights are not placed solely on the notion of the ability to suffer and its mitigation.

Similar reasoning was found in a New York judgement, where the court held that chimpanzees don’t have the same rights as humans do because the linguistic and cognitive capabilities of chimpanzees do not translate to their ability to bear legal duties or be held legally accountable for their actions.


One of the most important challenges to the conference of right to life upon a non-human animal is the violation of the separation of powers. In the landmark judgement of Keshvananda Bharti v State of Kerala, separation of powers was held to be constitutive of the basic structure of the Constitution of India. The legislature is endowed with the task of law-making, and the judiciary with the task of interpretation of that law. The contours of judicial interpretation are therefore set by the laws made by the legislature. Where the law clearly specifies the extension of Article 21 to every ‘person’, the judicial task is to interpret what constitutes a person. The various instruments reflective of the legislature’s intention as to the scope of a ‘person’ under Article 21 would show that word person connotes to a human-animal, and no further. For instance, the Constituent Assembly debates concerning Article 21 are woven in the perspective of the life of a human and use the word ‘human’ liberty to denote personal liberty, at many places.  The intent behind using the word ‘person’ was to bring within the fold of the Article, the class of non-citizens/foreigners, as opposed to certain other Articles (e.g. Articles 19, 25, 26 etc) which confer rights only upon citizens and not any further.

In this context, to extend the scope of the word ‘person’ to include the entire animal kingdom is not to interpret a law, but is tantamount to making a law, a task reserved for the solitary exercise of the legislature. The interpretation of the real intention of the legislative framework should not be loosely expanded by the court to go beyond the purpose of the legislation lest there is a gross violation of the separation of powers.


Although we oppose the idea of expansion of rights to non-human animals, we do believe that humans should have certain obligations towards non-human animals. Having explored the various challenges posed by the conference of constitutional rights to animals, it is suggested that we move from a rights-based approach to a duty-based approach. A rights-based approach advocates the conference of rights upon non-human animals, whereas the duty-based approach governs that an obligation should be imposed on human animals to meet the same end. To succinctly summarise the difference between the two:

Rights-based approach would govern the relationship between non-human animals and the law; whereas the duty-based approach would govern the dynamo between human animals and the law.”

The suitability of the latter over the former would be palpable, since only human animals possess the rationality, understanding and competence to fathom the law, and thereby be conscious of the rights/obligations that flow from the same. No other animal, except for humans, possesses the ability to reason; make conscious choices/decisions; morph their environment in order to grow, or collaborate consciously in society. Non-human animals are unaware of the right being conferred upon them, and therefore are incapable of enforcing the same without any external assistance of a human element. A more appropriate path thus would be to secure such protection by imposing a duty on humans, rather than conferring a right upon animals.

It is necessary to provide a conducive environment to non-human animals so as to prohibit any kind of beating, injury and brutality, but that should be done with the aid of Prevention of Cruelty to Animals Act, 1960, which primarily imposes a duty on humans rather than conferring any right upon animals.

Such an approach would serve a bi-partite purpose: (i) protection of non-human animals; (ii) adherence to the constitutional and jurisprudential strictures and limits, and therefore we suggest its use in the current context.

(Priyashi and Paras are currently law undergraduates at National Law University, Jodhpur. They may be contacted at

Cite as: Priyashi Chhajer and Paras Ahuja, ‘Article 21 and Non-human Animals: A Fallacy?’ (The RMLNLU Law Review Blog, 12 March 2020) < > date of access.

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