Legal personality: natural and legal persons, the unborn, the dead, animals, and the theories

1. The concept of a person

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 not so capable is a person, even though he be a man. The word comes from the Latin persona, the mask an actor wore; it signifies a role in law, not a human essence.

• Natural persons: human beings. Not every human being has always been a full person (slaves in Roman law were things; married women at common law had restricted capacity; outcastes and civilly dead persons under earlier systems lost rights).
• Legal (juristic, artificial) persons: entities to which law attributes personality: corporations, the State, idols, trusts in some systems, universities.

Personality is not the same as capacity. A minor or a person of unsound mind is a person but lacks capacity to contract (sections 11 and 12 of the Indian Contract Act, 1872).

2. The unborn

• Property: an interest may be created for the benefit of an unborn person, subject to a prior interest and to the rule against perpetuities (sections 13, 14 and 20 of the Transfer of Property Act, 1882). Under section 20 of the Hindu Succession Act, 1956 a child in the womb at the intestate’s death who is later born alive inherits as if born before the death.
• Criminal law: causing miscarriage and injury to an unborn child are offences under the BNS (formerly sections 312 to 316 IPC).
• Tort: in England the Congenital Disabilities (Civil Liability) Act, 1976 gives a child born alive a claim for prenatal injury.
• Abortion and the foetus: Indian law does not treat the foetus as a full person. The Medical Termination of Pregnancy Act, 1971 (amended in 2021) permits termination on stated grounds, and the Court has treated reproductive choice as part of Article 21 (Suchita Srivastava v. Chandigarh Administration, 2009 INSC 1086). Compare Roe v. Wade (1973) and its overruling in Dobbs v. Jackson Women’s Health Organization (US Supreme Court, 2022), and Article 2 ECHR, under which the European Court left the beginning of life to states’ margin of appreciation (Vo v. France, 2004).

3. The dead

Personality ends with death, but the law protects three interests connected with the dead: the body (offences relating to burial places and dead bodies; the right of a dead person to a decent burial), reputation (defaming a deceased person is an offence if it would have harmed his reputation if living and is intended to hurt the family), and estate (wills, succession). The Supreme Court has held that the right to dignity and fair treatment under Article 21 extends to a person’s dead body (Parmanand Katara v. Union of India, 1995, on the treatment of bodies after execution). These protections are best explained as duties owed to the living (family, community), not as rights of the dead.

4. Animals

Animals are traditionally objects of rights, not subjects. Statutes such as the Prevention of Cruelty to Animals Act, 1960 impose duties to animals without making them persons. In Animal Welfare Board of India v. A. Nagaraja, 2014 INSC 370, the Court held that jallikattu and bullock-cart races violated the Act, read the Act with Article 51A(g) and (h), and recognised five freedoms for animals; it spoke of animals’ right to live with dignity. The Punjab and Haryana and Uttarakhand High Courts later declared the animal kingdom a legal entity with corresponding rights (2018–19). In Animal Welfare Board of India v. Union of India, 2023 INSC 548, a Constitution Bench upheld State amendments permitting jallikattu, so the 2014 pronouncement on dignity sits beside a legislative choice to allow the sport.

5. Idols, religious texts, rivers and nature

• Hindu idols are juristic persons capable of holding property, acting through the shebait: Pramatha Nath Mullick v. Pradyumna Kumar Mullick (Privy Council, 1925); Yogendra Nath Naskar v. CIT, Calcutta, 1969 INSC 47 (an idol is a unit of assessment for income tax).
• The Guru Granth Sahib is a juristic person: Shiromani Gurdwara Prabandhak Committee v. Som Nath Dass, 2000 INSC 166. The Court explained that juristic personality is conferred to meet the needs of society, and a mosque or church as such had not been treated as one.
• The Ayodhya judgment (M. Siddiq v. Mahant Suresh Das, Supreme Court, 2019) held that the idol Bhagwan Sri Ram Virajman was a juristic person but refused to treat the land (Ram Janmasthan) itself as one, because that would make immovable property immune from claims of adverse possession and limitation.
• Rivers and nature: the Uttarakhand High Court in 2017 declared the Ganga and Yamuna living legal entities; the Supreme Court stayed that order. New Zealand’s Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017 gives the Whanganui River legal personality, and Ecuador’s Constitution (2008) recognises rights of nature.

6. Theories of corporate personality

Assessment. No single theory explains everything. Indian law shows elements of each: incorporation by registration (concession), separate entity (fiction), lifting of the veil (bracket), and idols with real community significance (realist). The practical question in each case is which result the policy behind personality requires. Corporations and transnational personality are in the next note.

How this is examined

For “concept of person and theories”: definition, natural and legal persons, the unborn, the dead, animals and idols briefly, then the table in detail with an assessment. For the judicial-pronouncements question, use sections 2 to 5 and end with the theories in one paragraph.