Photo via Hilts UK/Flickr
India has become the world's fourth country to ban the keeping of captive dolphins. To anyone that has ever seen The Cove or read the growing mountain of evidence demonstrating the ills of cetacean captivity, this will come as a relief. But the ban is notable not simply for the fact that it takes a stand against marine mammal parks (something the United States has not done), but also because it is yet another sign of India’s legal commitment to animals.
The Ministry of Forests and Environment released its “Policy on establishment of dolphinarium” amidst proposals to build marine mammal parks within the country. The Ministry's wording reveals a considerable respect for dolphins as “highly intelligent and sensitive” creatures and argues that they should be seen as non-human persons with rights. As the Ministry argues, captivity for entertainment purposes is a moral violation of those rights.
From almost the very beginning of independent India, the government has recognized the need for animal protection. In 1960, the Prevention of Cruelty to Animals Act was enacted, which established the Animal Welfare Board of India to oversee animal related issues within the country.
The biggest legal commitments to the animal world, however, came in 1976 via two additions to the country’s constitution. In Article 48A, the State is instructed “to protect and improve the environment and to safeguard the forests and wild life of the country.” Article 51A(g) says Indian citizens are also responsible for that safeguard, but goes one remarkable step further, instructing the public to “have compassion for living creatures.” This is significant: the only other country in the world that has such a strongly worded constitutional commitment to animals is Germany.
These two articles are part of a section of the Indian constitution called the Directive Principles of State Policy. They're non-justiciable, which means people who break these laws cannot be taken to court. But that doesn’t mean they don’t have an impact.
The Principles are meant to help guide the courts in making decisions in line with the character of the country. Combined with widening access to courts beginning in the 1980s, they've allowed a wide variety of animal protection issues, covering everything from cow slaughter to circus animals to stray dogs, to be heard by the High Courts and the Supreme Court of India.
In fact, the courts not only hear the cases, but sometimes go so far as to offer compelling screeds on the validity of animals having rights, something you haven’t heard and probably won’t hear anytime soon from a powerful court in the US.
In a bullfighting case in the High Court of Bombay, the judges decided in favor of animals, arguing point blank that bullfighting is inherently cruel and that preventative measures to stop bullfighting events are legal and necessary. The language of the ruling was telling: The court stated that all animals are born with a right to life without cruelty and that is why bullfighting cannot be tolerated.
If a country's courts are openly referring to animals having rights, then it shouldn't be surprising that it would also ban dolphin captivity.
In another particularly famous case regarding circus animals, the High Court of Kerala confirmed a ban on certain performing animals and asked, “If humans are entitled to fundamental rights, why not animals?” The court responded to its own question by claiming that the denial of rights to animals is an “anachronism." Even India's Supreme Court has weighed in, lending gravity to the notion of compassion presented in Article 51A(g).
This isn’t to say that everything is just peachy for animals in India. Large gaps between the law and enforcement absolutely exist, as they do everywhere, and animals on the ground are not doing as well as legal sentiments might suggest. Poaching is a problem as conservationists struggle to keep the tiger population from plummeting. Stray dogs face off against people, often ending in the former’s death. Animal sacrifice happens.
But diction matters. Affirmative statements on behalf of animals, enforced or not, change the substance of a conversation. If a country's courts are openly referring to animals having rights, then it shouldn't be all that surprising that such a country would ban the undue suffering inherent in dolphin captivity.
By contrast, in the United States the idea of animal rights invokes images of red paint and militant vegans. I could go on for days about why that perception is misinformed, but that’s not the point here. The point is that India has taken steps to better the lives of animals using the law and some very potent language.
In a country where cetacean entertainment is so normalized that Shamu vitamins were actually a thing, perhaps we in the US can take a cue from India on how to invoke ideas of rights-holding animals without simultaneously dredging up fears of animals in a voting booth. Cetaceans belong in an ocean, not in a swimming pool, and India has done the right thing by recognizing a dolphin’s right to life trumps our desire to be entertained.