CHANGING THE DIMENSION OF PERSON UNDER DIFFERENT LAW: VINITA KUMARI

ISSN: 2581-8465

Changing the Dimension of Person under Law

Author: Vinita kumari

Central University of South Bihar

Abstract

The dynamic nature of law could not be explained better than in the current scenario when the Indian judicial system has seen a clear shift in concepts as well-settled as the theory of personality. With the recent judgment by the Tripura High Court, it is very evident that the evaluative nature of law has not left even the jurisprudential theories untouched. There have been other instances when the term ‘person’ was interpreted ‘widely’ and ‘in context’, however, the stance of the Supreme Court is still unclear. The paper is a study on such changes and interpretations while examining how welcome a step it would be if those changes were to be accepted as a valid interpretation. This paper tries to analyze the meaning of the term ‘person’ through an examination of questions such as who a person is and what the rights and duties of a person are, while also drawing a relation and/or distinction between natural, juristic and legal persons. Over time, many scholars have come up with different theories of personality; however, when interpreting the word ‘person’ in the context of the Constitution, the interpretation has to be a more cautious one. Any interpretation by the courts would lead to certain consequences which could also develop as a lacuna in existing principles of interpretation and pose difficulty for the judicial system itself. The paper comes up with a critical study of the recent developments in the Indian judicial system with regard to the theory of personality while delineating observatory remarks of how and to what extent the current stance of the courts should be amended.

INTRODUCTION

Society is dynamic in nature and it goes with the concept of “change is the rule of nature”. Every time when society is need of some changes, a new law came into existence. Every rule is based on a person’s need and greed. In layman, a language person has some rights and can sue against violation of their right and duty of the state to protect the right of the person. A person comes from the word personality which means rights and duties bearing unit. The definition of a person has not been changed but many times it has been interpreted and amended. In Indian jurisprudence, the word personality has an exclusive and widened meaning. Humanity and personality have coincided sometime but not the same both have a different meaning. The idea of humanity has been restricted only to human beings whereas personality has technical sense. Personality includes human beings as well as another inanimate object like an animal, trees, etc. Personality has a widened meaning than humanity, it includes human beings, the sense of human, natural person. Scholars have been given the definition of a person; a person can be called as subject and object of rights and liabilities. The paper basically deals with the person includes animals and rights and duties of animals. Tripura High Court and Uttarakhand High Court judgment wore a remarkable presence in the rights and duties of animals. But here, an important question is that animals are a legal person or a natural person. Animals also have fundamental right such as the right to life. Is an animal is a juristic person, a natural person or a legal person. Natural person means human beings, and legal person means beings and things which are treated as persons by law, whereas a juristic person is entities other than human beings on which the law confer as legal subjectivity. But the intrinsic feature of all kinds of person is having rights and duties. Here, I would like to exaggerate the animal’s right and duties. In the Law of Torts human beings are prosecuted for the wrongful act done against the animal but not vice versa. But there is one exception; master has been prosecuted for the wrongful act done by animals under strict liability. Judicial development spot the light in widening the scope of personality. In the cases of the animal where High Court considers the animal as a person and they have right to life whereas to follow the religious beliefs and faith animals were sacrificed on the name of Freedom of conscience and free profession, practice, and propagation of religion (Article:25).

OBJECTIVES OF THE STUDY

The objective of this paper includes:-

It helps to find out the contextual meaning of the term ’Person’.
To give a clear definition of ‘person’ and what includes person?
It helps to highlight the crime against animals and is an animal’s right to life has been violated or not?
Right to life v/s freedom to profess religious beliefs.

METHODOLOGY

My study has been based on primary and secondary data. Primary data has been collected after, my recent visit of the temple in my locality where animal sacrifice is considered to be the primary religious belief and rituals follows since time immemorial and the sacrifice of an animal in ‘Islam’. I have collected the secondary data from the Books, internet, Acts, and judgments of the honorable courts.

ORIGIN AND BACKGROUND

The concept of personality has been given in the historical laws such as Roman law, Greek law, and Hindu law. ‘Personality’ is a vague and wide term and it has been derived from the Greek word persona. Persona means a mask worn by actors while playing a different role in a drama. Under Roman law ‘personality’ has not much significant because the family was considered to be
In Roman law, the term had a specialized meaning, and it was synonymous with ‘caput’ means status. [i]Thus, a slave had an imperfect persona. In a later period, it was denoted as a being or an entity capable of sustaining legal rights and duties. In ancient Roman society, there was no problem of personality as the ‘family’ was the basic unit of society and not the individual. The family consisted of a number of individuals, but all the powers were concentrated with ‘pater- familias’ means the head of the family. If a head of the family dies, and there is an interval between his death and devolution of property on the heir who accepted an inheritance, the property will vest in a person during the interval. [1]This was called hereditas jacens which was developed by the Romans. The hereditas jacens is considered by some scholars as similar to legal personality. Hereditas jacens means the inheritance during the interval between the death of the ancestor and the acceptance of the inheritance by the heir. Some scholars are not ready to agree with the views that it has some connection with the present doctrine of legal personality, even if it is there, it may be in a very limited sense. There was a provision in Roman law that other institutions or groups who had certain rights and duties were capable to exercise their legal rights through a representative.

Under Greek law, an animal or tree was tried in court for harm or death did to a human being. It can be said on the basis of this practice that these objects were subject to duties even though they may not possesses rights. This is an element of the attribution of personality.

Under early English law, there are some incidences in it had found that an animal or tress or inanimate objects had been tried in Court under law. The trees and animals were subject to duty but not rights. After 1846, this system has modified and it was made clear that animals or tresses are capable of possessing rights and duties; therefore, there is no question of personality.[2]

WHO IS A PERSON?

A person has been defined that a body that is corporate with rights and duties. Many scholars came with the theory of personality. Some definitions are as such:

Salmond: – A person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person whether a human being or not, and no being that is so capable is a person even though be a man.

Savigny: – A person as the subject or bearer of right.

Gray: – A person is an entity to which rights and duties may be attributed.

Austin: – according to Austin, the term “person” includes physical or natural person including every being which can be deemed human.[3]

The definition given by the scholars was satisfactory or not. Is it satisfying the demand for the term ‘personality’? It must be a situation of conflict. But after the recent development in the Indian judicial system, the definition of person has been changed. One side on the philosophic sense personality means the rational foundation of a human being whereas on the other hand the personality of a human being means possession of certain rights and duties. If any human beings have no right at all then they cannot be considered as a person in the eyes of law. The animal has the right to life which is embodied under Article 21 of the Indian Constitution (Shubhas Bhattarjee v/s State of Tripura). These rights are expressly given for the person. Person construes animals, corporate sole, trees, and other things. This widened scope of personality is the result of the modern trend of the judicial system. Personality starts with birth the birth of the person. It means that when a person takes birth, he is considered to be a person in the eyes of law. The company is a juristic person having a separate legal entity (Soloman v/s Soloman).[4] A company has been considered to be born since the date of the registration of the company.

KINDS OF PERSON

Natural Person: – A natural person is living human beings such as men, women, impotent, etc. natural person are human beings on whom the law gives the personality of the basis of reality. It means that not all the natural people are legal people because in ancient times where there was a concept of slavery but that time period salves were not considered to be legal persons.
Legal person: – legal persons are artificial beings to whom law attributes personality by way of fiction which does not exist in fact. In other words, a legal person is any subject matter other than a human being to which law attributes personality. For example corporate, university, schools, etc. legal persons are the rights and duties bearing units or bodies.
Juristic Person: – A juristic person is a bearer of rights and duties that is not a natural person but which is given legal personality by the law. The concept of juristic personality is not absolute. Juristic persons are bodies other than the human being which is the matter of legal subjectivity. [5]

Difference between Natural Person and Legal Person

Natural Person means human being whereas; Legal Person can be a being – real or imaginary.
Natural Person has the characteristics of the power of thought, speech, and choice. A legal person is any being whom the law regards as capable of rights and duties.
Natural Person is a real and living person. Legal persons can be ‘fictitious’, ‘juristic’, ‘artificial’ or ‘moral’. Slaves are considered natural persons. In ancient law, slaves are not recognized as persons.
A layman does not recognize idiot, company, corporation, idol etc as persons. According to Law, idiots, dead men, unborn persons, corporations, companies, idols etc are treated as legal persons.
The only natural persons are human beings. But, there are several categories of legal persons recognized by law.
Natural Person is also a Legal person. “Although all legal personality involves personification, the converse is not true”. Natural Persons perform their functions and also perform the functions of legal persons. The legal persons perform their functions through natural persons only.
Man is the only natural person. There are different varieties of legal persons viz. Corporations, Companies, Universities, Societies, and President etc.
There is division in regard to types of natural persons. There are two classes of corporations – Corporate Sole and Corporate Aggregate.
A natural person can live for a limited period of time. i.e Till his death. Legal persons can life [ii]an eternal life. For example, the post of the President of the United States of America is a corporation, which was created some three hundred years ago.[6]

Relation between natural person, legal and juristic person: – Natural person is human beings they have certain rights which incorporated with the human from the birth and duties to protect the right of others. A legal person is a person who is the unit of legal subjectivity whereas juristic persons are the person in the eyes of law it means that they are incorporated bodies. The concept of a person based on the legal maxim ‘actio personalis moritur cum persona’ it means ‘a personal right of a person dies with the person’. A natural person right has been called as a human right, whereas legal person right are right given under the eyes of the law. Origin of legal and juristic person is almost similar that is, both are created by human beings. Juristic person is basically the creation of judicial interpretation. The relation between legal, natural and juristic person is the unit of right and duties. For example natural person and legal person both have right to freedom of speech and expression like new papers newspaper have right to publish and write anything even though its coincide against the thought of the government but the press is organization made by human being and group of individual. Legal person and natural person both have the right to life and freedom of speech and expression.

Laws interpreted in various cases for the finding of the definition of person.
Article 21, of the deals with the right to life:-

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”[7]

Here a person does mean only human beings or natural person. A person includes animals, trees, temples, unborn children and the mosque, etc. The right to life has not been amended but interpreted by the court. In the recent judgment of Tripura and Uttarakhand High court it would, evident that animals have also the right to life and their right to life cannot be violated due to exercise of someone’s right to freedom of professing religious beliefs. Shubhas Bhattatjee V/s State of Tripura, High Court examined and interprets the article 21 and 25 of Indian constitution. Under this case, the leading contention of the plaintiff is that the two biggest temples of Tripura that, Tripureshwari Devi temple and Chatur devata temple were a sacrifice of animals construe primary religious belief of people in the name of freedom to profess their religious freedom (Article 25(1)).

Article 25(1) of the Indian constitution states that Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.[8]

When we go with, the literal interpretation of Article 25(1) of the Indian Constitution, freedom to profess religious beliefs and rituals but subject to certain kinds of restrictions or exceptions such as health, morality and public order. Is that satisfying the act of Tripura people or the people who follow the religious belief to sacrifice the animal? On the one aspect, it has been declared that the person includes animal and person have the right to life and other side sacrifices of an animal on the name of freedom of religious belief. As we know that the article21 is applicable to the person and 25 deals with the right of people whereas the concept of person widened than people. A person deals with human beings as well as artificial beings and other living creatures. Article 25(1) of the Indian constitution have subject to certain exception such as public order, morality, and health. The animal has been sacrificing many of the temples in India in the name of freedom of religious belief and which would contain the people right. When we sacrifice an animal it would be the violation of the right to life of the animal. Is that kind of activity of human beings would contain morality and public order. Here morality means the distinction between right and wrong, which would constitute the right and wrong behavior of a person. We cannot ignore the basis of legislation that is morality. Intact in all the school of jurisprudence morality must be contained and almost in the theory of legal personality morality is essential. So, only on the name of exercising the fundamental right of ownership, it will not give the license to violate the right of others. The doctrine of legal personality has been based on the concept of ‘Ubi jus ibi remedium means where there is right there is remedy’.

Article 48 of the Indian constitution dealt with the Directive Principle of state policy of the state and it states that “The State shall endeavor to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milchand draught cattle”.[9] Agriculture and animal husbandry are not narrow concepts but a widened meaning. Here, agriculture help by an animal not only oxen which used in traditional agricultural concepts but also other animals.
Article 48(A) of the constitution deals with the directive principle of state policy. It has also the duty of the citizen to protect the interest of others such as it shall be the duty of every citizen of India to protect the natural environment like the forest, wildlife, etc. It states that:-

g) to protect and improve the natural to have compassion for the living creature ; (h) to develop the scientific temper, humanism and the spirit of inquiry).[10] Illustration: – let’s take about another state temple such as Jharkhand, Bihar, U.P and other places temples also follows the tradition of animal sacrifice.

Rights and duties of person

In India, privilege has been given to every citizen to live with liberty. But these rights are enforceable only when another person has some act which he does want to do. Also, the citizens have the duty to protect the rights of another person living in society. Therefore, duty and rights go hand in hand with each other. When there is a breach of duty from one person, there is a breach of the right of another person. In this article, I would like to discuss the jurisprudence of rights and duty and their relationship with each other. The Constitution of India has guaranteed certain rights to the citizens of India which are known as Fundamental Right which is considered to be the most important right. If these rights get violated then the person has the right to move to the Supreme Court of India or The High Court for enforcing rights. Following rights are guaranteed by the Court:-

Right to Equality (Article 14)
Right to freedom (Article 19)
Right against Exploitation (Article 23 and 24)
Right to Freedom of Religion(Article 25)
Right to Life (Article 21)
Right to Constitutional Remedies (Article 32).[11]

As per the definition of a person right of the person is to sue and being sued. This is the basic right of a person.

State of Rajasthan V Union of India[12]:– “In the strict sense, legal rights are correlatives of legal duties and are defined as interests whom the law protects by imposing corresponding duties on others. But in a generic sense, the word ‘right’ is used to mean immunity from the legal power of another, immunity is an exemption from the power of another in the same way as liberty is an exemption from the right of another, Immunity, in short, is no subjection.

Duty: – A duty is an obligatory act a person has to perform in favour of another person. If the person has breached his duty and infringed anyone right then he has to suffer consequences that arise from breaching the rights.

Article 51A of the constitution of India guarantees certain duties to every citizen of India. Article 51 A of the Indian constitution states that “it shall be the duty of every citizen of India”

To respect the provisions of Constitution and respect the National Flag and National Anthem;
To safeguard the sovereignty and integrity of India;
To follow the noble ideals of a national struggle
To defend the country and contribute to national service when called
To preserve the national heritage of the country ;
To promote and maintain the harmony of brotherhood amongst people of India.
To protect the dignity of women
To protect the natural habitat and including forests, lakes, rivers, and wildlife;
To protect public property and to avoid violence;
To contribute to the development of the nation in all spheres.[13]
The relation between rights and duties of person.
A Fundamental right is guaranteed to all citizens and is enforceable by the law if any of the Fundamental rights of an individual is violated then the person has the right to move in the court. Therefore, an individual right to free speech, education, shelter et al are your fundamental rights – impregnable, untouchable and unfettered (subject to reasonable restraints in the interest of national security, public order, decency, morality, etc). Therefore, in the concept of rights, it can be said that they are legally recognized.
Fundamental duties, on the other hand, are not legally enforceable. It the duty of the states and individuals to perform their part of duty for the welfare of the society. So the duty to preserve your heritage, to respect national symbols, to keep your surroundings clean is a duty which one cannot have redress against in the Courts but in good faith is expected to follow to ensure a well-functioning society. Therefore, it can be said that the duty is moral in nature, they are no sanction if one does not perform their duty but if the rights are violated then there is the legal sanction of infringing one right of enjoying.[14]

1. Sri Subhas Bhattacharjee V/s State of Tripura: – Uttarakhand High Court declared that “The entire animal kingdom, including, avian and aquatic animals are hereby declared ‘Legal entities’, having corresponding rights, duties, and liabilities of a living person”.[15]

2. Animal Welfare Board of India V/s Nagaraja & Ors:- When the Supreme Court banned the practice of Jallikattu in 2014, it alluded to various sections of the PCA Act, 1960, which addresses unnecessary suffering of animals. Alluding to Section 3 and Section 11, the Hon’ble Court declared that all animal fights incited by humans are illegal, even those carried out under the guise of tradition and culture. The Court also listed various recommendations, among them an overhaul of the penalties and punishments in the PCA Act, 1960, so as to allow it to function effectively as a deterrent in cases related to animal cruelty.[16]

All of these judgments’ have helped to some extent alleviate the suffering endured by hapless animals. However, the recent maiming of Shaktiman the horse, as well as other heinous instances of animal cruelty necessitates the need for urgent reforms to the PCA Act, 1960.

CONCLUSION & SUGGESTIONS

After the study of changing the dimension of the person, I reached a conclusion that a person includes human beings, animals, trees, and other beings. A person includes a natural, legal and juristic person. A person does not mean only, those who are born but it includes an incorporated body. Every incorporated body is created by an individual or group of individuals. A person has legal rights and duties. A person has basic rights that are right to sue and be sued. The animal has the right to be protected and also the duty of the state to protect the animal and agricultural husbandry. Recent developments in the Indian judicial system are being evident for the development in the protection of wildlife and animals. But, these developments are not absolutely. The Apex Court of India rejected the contention of an animal activist who filled PIL against the animal sacrifice on religious beliefs. We cannot say that animals have got the right to life absolutely. According to, my study, I would go with certain suggestions such as:-

There is needed to come with certain effective law to protection of animal rights.
1. Education regarding the protection of animal rights has to be included.
1. There must be a clear contention that is animal under the preview of person?
1. State has to make strict law against the cruelty of animals.

[1] Manishranjan, meaning and kind of person, http://www.legalservicesindia.com/article/2316.

[2] 4^th ed, G.W.Paton,A textbook of Jurisprudence,p.n.302

[3].definition and kind of person,https://www.srdlawnotes.com,on29sep.2019

[4] [1896]UKHL 1,[1897]AC22

[5].supranote1.

[6].article on definition,origin and meaning of person,http://www.lawnotes.com

[7].constitution of india,1950,article21

[8] Supranote7

[9].bare act,constitutional law of india,1950

[10] Supra note 9

[11].article on fundamental right and duties,http://www.shodhganga.com.

[12]. State of Rajasthan v/s UOI,AIR1977,SC1361

[13].fundamental duties under the indian constitution and different statutes,http://www.legalservicesindia.com

[14] Comprehensive study on right and duties of person,http://www.lawnotes.com

[15].WP(C)(PIL)No.02/2018

[16]Civilappealno.5387,2014

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