Constitutional protection of animal “rights” in South Africa and India: A legal comparison

Abstract

The human-animal relationship has several inconsistencies. This is because of the contradictions on how human beings treat animals. In certain instances, human beings have shown love and affection towards animals, while in some instances, there has been a highest level of cruelty towards animals. Animal cruelty has long been a concern; however, society has occasionally accepted this behaviour as usual. This is because humans have power over animals and view them as property. A number of anti-cruelty Acts have been passed in South Africa in response to the current trend in the plight of animals. However, South Africa's anti-cruelty laws are insufficient, incoherent, and disjointed. Their anthropocentric as opposed to the ecocentric nature raises ethical and legal concern relating to the adequacy of legal protection of animals. Yet, ecocentric focus has emerged as a feature of legal protection in several legal systems; including India, which has used progressive interpretation of its Constitution for legal protection of animals. Using a doctrinal methodology, this study interrogates the various ethical and legal approaches that support the protection of animal rights. It then determines whether the legal protections for animals under South African law are adequate, and whether there are any lessons to be learned from India's constitutional protection of animals. It was found that Courts in South Africa prefer anthropocentric arguments to protect animals, while Courts in India prefer ecocentric viewpoints. Various provisions in the South African Constitution have been used to protect animals. There are, however, some constitutional provisions that can be used to protect animals, taking into account lessons in India, where Courts have readily extended constitutional provisions that protect humans to cover animals as well.