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TODAY’S TALK ON EDITORIALS CIVILS360

SEPTEMBER 19, 2017

The legal status of animals

  • In 2015, a lawsuit brought by People for the Ethical Treatment of Animals (PETA) claimed that Naruto, an Indonesian crested black macaque, should be entitled to the rights of a self-portrait which the animal had accidentally clicked with the camera of David Slater, a nature photographer. In 2016, a federal court in San Francisco held that while protection under the law may be extended to animals, the same could not be said of copyright laws in which lie vested rights and ownership. PETA’s legal team said it would appeal the decision. Fortunately, on September 12, 2017, both the parties decided to settle the matter, with Mr. Slater agreeing to donate 25% of any future revenue from Naruto’s images to charities dedicated to the conservation of crested macaques in Indonesia.

This dispute once again gave rise to questions about the legal personality of non-humans.

  • The 21st century has seen many attempts to recognise animals as legal subjects — from granting them protection from cruel treatment, to arguments for recognising them as legal persons and granting them property rights — but there has been discomfort in giving them a plenary membership within the human legal community. Scholars like Benjamin Berger have argued that it is the contrived attempt to treat humans and animals similarly that has obscured our understanding of animals as legal subjects, while moral philosopher Peter Singer contends that the idea of the species divide itself is feigned, and so the moral and legal distinction irrelevant.
  • A legal personality is usually defined as a subject vested with rights and duties. However, within the parameters of law, it has never been confined to human beings and has even included idols and companies. Strangely, though, the same rationale has failed in courts in its application to animals because of the imaginary distinction between the multitude of species, and their inability to carry on legal duties.
  • Conversations around ‘legal personhood’ have often been marred by the uncharacteristic merging of ‘justice’ with ‘rights’. The moral and ethical undertones of ‘animal justice’ are largely absent in the arguments around ‘animal rights’. Further, rights can be broken down into formal and substantive rights. The right to appear before the court and plead is different from the right to integrity and equal protection under the law. It is not to say that one has to choose between the two; both are integral to the definition of rights.
  • The federal court in the Naruto case has merely mirrored the premise that animals can only be objects or properties, but questions regarding the legal standing or legal personality of non-human persons remain unanswered. Ironically, the imperative of granting legal recognition through legal personality reveals both the obscurity and absurdity of extending identities to animals. Even if the courts were to accept limited personhood, we are still left with the reality that the process of recognition is confined to our communities and legal structures. The notion of autonomy and agency of animals will continue to fail. However, the case has pushed us to think over uncharted territories of human/non-human subjectivity in law.

Reimagining the OBC quota

  • Regardless of the political impulse that led the government to announce creation of a committee to look into sub-categorisation of Other Backward Classes (OBC), it provides an opening to ensure social justice in an efficient manner. The biggest challenge India faces is that the groups perceived to be disadvantaged consist of a very large segment of Indian society, while public policies are highly limited in scope.

The jobs-claimants mismatch

  • A vast proportion of the population eligible for reservations must still compete for a tiny number of reserved and non-reserved category jobs. It is not surprising that there is tremendous internal competition within groups.
  • If we want reservations to make a significant difference in the lives of the marginalised groups, there are only two options.
  • Either the government must drastically increase availability of government jobs and college seats or it must reduce the size of the population eligible for these benefits. While the Supreme Court would not allow reservations to exceed 50%, frankly it does not matter. Whether available public sector jobs cover 1.5% of the population or 3%, these will only offer opportunities to a minuscule fraction of individuals in reserved categories. Hence, the only viable option is to reduce the size of the eligible population, possibly along the lines of sub-categorisation proposed by the government.

Lack of credible data

  • The Socio-Economic Caste Census (SECC) of 2011 was supposed to provide up-to-date comprehensive data. However, the results remain shrouded in mystery. When releasing poverty and deprivation data from the SECC in 2015, it was found that about 4.6 million distinct caste names, including names of gotra, surname and phonetic variations were returned, making the results almost impossible to interpret. For nearly 80 million individuals, caste data were believed to be erroneous. Since then we have heard little about the quality of caste data in SECC and even less about its results.
  • It is not surprising that SECC data have not been able to shed light on socio-economic disadvantages faced by different caste groups: addition of caste information was an ill-conceived graft on what was supposed to be a Below Poverty Line (BPL) survey. This patchwork solution had to be adopted because in spite of widespread demands to include caste data in the Census of 2001 and 2011, the Office of the Registrar General was reluctant to add this burden to the decennial exercise. As a way of appeasing the OBC lobby, it was decided that the BPL census would incorporate caste information. After the probable failure of this effort, it would make sense to rethink collection of caste data in Census. Preparations for Census 2021 are ongoing. There is still time to create an expert group to evaluate the methodology for collecting caste data and include it in the Census forms. Losing this opportunity would leave us hanging for another 10 years without good data for undertaking sub-categorisation of OBC quota or evaluating claims to OBC status by groups like Jats and Patels.

Address caste-based inequalities

  • A two-pronged approach that focusses on eliminating discrimination and expanding the proportion of population among the disadvantaged groups that benefits from affirmative action policies could be a solution.
  • The present policies focus on preferential admission to colleges and coveted institutions like IITs and IIMs. But these benefits may come too late in the life of a Kurmi or Gujjar child. Their disadvantage begins in early childhood and grows progressively at higher levels of education. The India Human Development Survey of 2011-12 found that among families where no adult has completed more than Class X, 59% children from the forward castes are able to read a simple paragraph while the proportion is only 48% for OBCs, 41% for Dalits and 35% for Adivasis. We know little about what goes on in schools to create these disadvantages but improving quality of education for all, including those from marginalised groups, must be a first step in addressing caste-based inequalities.
  • The second line of attack must focus on ensuring that benefits of reservations are widely spread. It makes little sense for a young man to obtain admission to a prestigious college, get admitted to a postgraduate course, get a job as an assistant professor, and be promoted to the position of a professor using the same caste certificate. It would make even less sense if his children are also able to obtain preferential treatment using the same caste certificate. Thus, use of the OBC quota must be limited to once in a person’s lifetime, allowing for a churn in the population benefitting from reservations. Linking the Aadhaar card to use of benefits makes it possible that individuals use their caste certificates only once, spreading the benefits of reservations over a wider population.
  • The present move by the government to rethink OBC quota creates a wedge that could potentially be used to ensure that we have better data on caste-based disadvantages for future discourse.It also indicates a mood that wants to ensure that the benefits of reservation are widely spread. Increased attempts at linking benefits to Aadhaar allow us with an option to ensure that reservation benefits are not captured by a few.

Gauging the status quo

  • The Brazil, Russia, India, China and South Africa grouping (BRICS) has since long ceased to be of material significance as multilateral institutions go. The recent BRICS Summit in Xiamen (China) only seemed to confirm this. It suggests that BRICS may be going the way of quite a few other organisations.

Inconsequential declaration

  • Little of consequence appears to have happened, or to have emerged, from the latest summit. The Xiamen Declaration is proof of this. Considering that this meeting was taking place in the shadow of significant global events, notably North Korea’s nuclear provocations and the U.S. response, other serious developments in Asia, including Afghanistan and West Asia, apart from issues of consequence elsewhere, the absence of any reference to these events in the Summit Declaration suggests that BRICS is clearly out of sync with current realities.
  • The Heart of Asia declaration had highlighted the ‘gravity of the security situation in Afghanistan and in the region, drawing attention to the high levels of violence caused by the Taliban, terrorist groups including the Islamic State, al-Qaeda and its affiliates, the Haqqani network, Islamic Movement of Uzbekistan, East Turkestan Islamic Movement (ETIM), Lashkar-e-Taiba, Jaish-e-Mohammed, Tehreek-e-Taliban Pakistan, Jamaat-ul-Ahrar, Jundullah and other foreign terrorist groups’. To attach special significance to the inclusion of this passage in the Xiamen Declaration, and view it as China administering a resounding slap on its ally, would be a profound mistake.
  • The BRICS declaration is perhaps more significant for what it did not include. Absence of any mention of China’s Belt and Road Initiative (BRI) — even though Beijing sets such great store by it — is one. At this point one can only speculate on the reason. It is possible that China may not have wanted to introduce a discordant note into the proceedings — knowing India’s reservations regarding the project — of a conference that it was presiding over. Or perhaps, China does not think that BRICS could make a material contribution to the achievement of its objective.

BRICS’ limited scope

  • One takeaway from the conference also could be that China sees little use of BRICS to achieve its geopolitical and geo-economic objectives across Asia and beyond. BRICS as a body can hardly help China in dealing with a knotty problem like North Korea. It has no need for BRICS to deal with problems such as the South China Sea and freedom of navigation on the seas. From its point of view, BRICS is an outlier as far as pressing problems in the region and beyond are concerned.
  • BRICS suffers from other infirmities as well. Brazil and South Africa are increasingly becoming peripheral to BRICS’ aims and objectives. Russia is currently more preoccupied with establishing its supremacy in Eurasia, and its interest in BRICS is not of the same order as in the past. This leaves only India, and limits the scope of BRICS to issues and regions such as Afghanistan that have featured in previous BRICS meetings.
  • The summit, however, provided an opportunity for leaders to meet and conduct business. For instance, Prime Minister Narendra Modi’s intervention at the BRICS Business Council helped highlight India’s emergence as one of the most open economies on the globe.

The road after Doklam

  • It would take much longer for trust to return; as it is, trust between the two countries had begun to be affected as India moved closer to the U.S., strengthened its relations with countries like Japan and Vietnam that were not too well disposed towards China, and participated in multilateral defence exercises which appeared to have an anti-China slant. In the circumstances, restoring trust is not going to be easy.
  • In Astana in June this year, when the Indian and Chinese leaders met on the sidelines of the Shanghai Cooperation Organisation Summit, the emphasis was on not allowing “differences to become disputes”. This was reflected in the so-called Astana Understanding. Doklam effectively put paid to this. While Mr. Modi is possibly willing to put Doklam behind him, the Chinese are unlikely to do so and are more likely to moderate their response keeping the Doklam incident in mind. China may continue to reiterate the obvious and talk of ‘peaceful co-existence and mutually beneficial cooperation to strengthen bilateral relations’, but India needs to be cautious. China is likely to view India’s actions with even greater suspicion than hitherto.
  • Evidently, the China-centric world view will continue to prevail.
  • China also faces an ever widening arc of threats from terrorists of different categories such as the ETIM, the Islamic Movement of Uzbekistan and Uighur separatists to its West. With the critical 19th Party Congress set to take place soon, peace and tranquillity on its periphery has thus become an imperative necessity.