This article is written by Wardah Beg, from Faculty of Law, Aligarh Muslim University, and Kirti Bhushan and Rohan Pathania, from Campus Law Centre, University of Delhi.
The greatness of a nation and its moral progress can be judged by the way its animals are treated.
– Mahatma Gandhi
India is a land where animals have been worshipped and sacrificed to deities, all the same, since time immemorial. It raises a question as to what kind of culture this nation has: Pro-animals or killings of animals in the name of religion? The answer to this lies in the rich heritage and cultural diversity of this land. Its origin can be seen in the Vedas and Upanishads whereby these texts might have been misinterpreted by the followers as it is rightly pointed out in the State of Karnataka and anr. v. Dr. Praveen Bhai Thogadia (see here) that:
“The chore of religion based upon spiritual values, which the Vedas, Upanishad and Puranas were said to reveal to mankind seem to be -“Love others, serve others, help ever, hurt never” and “Sarvae Jana Sukhino Bhavantoo”. One-upmanship in the name of religion, whichever it be or at whomsoever’s instance it be, would render constitutional designs countermanded and chaos, claiming its heavy toll on society and humanity as a whole, may be the inevitable evil consequences, whereof.”
Humanity, as a concept, is really hard to define and so does it seem to follow it: resulting thereby in causing attacks on animals in an inhumane manner. It is certainly shocking to one’s conscience when the civilisation has moved from one barbaric society to present-day civilised society and yet the civility of man seems to be moving backward. However, it would be unfair to say that humans develop irrational animosity towards wildlife because the wild animals devastate their lives by destroying their crops. Rather it is a vicious cycle whereby: humans, due to their various activities, have decreased the natural habitat of these animals and as a result of it, animals approach the human settlements and humans develop a harsh attitude towards such animals.
There have been growing circumstances in the nation where the inhumanity of human beings has been brought forth under the guise of tradition or mere adventure. On a contrary note, no doubt, there exists Animal Rights but along with it one cannot ignore Human Rights. An effective plan needs to be devised holistically focussing at short-term and long-term solutions.
This points out to the fact that despite there being legislations, their improper implementation has diluted their deterrent effects and that something needs to be done at the earliest to save those who cannot speak up for their rights. However, that does not negate the fact that numerous legislations pertaining to animal rights exist in our country.
Legislations for protecting animal rights
A recent Writ Petition (see here) has been filed in the Supreme Court of India regarding the mishaps in the State of Kerala viz. the killings of elephants in Palakkad whereby the petitioner has suggested framing of a Special Investigation Team under retired Supreme Court judge or CBI to probe into the matter and take out the investigation expeditiously.
The point here to be noted is why one has the need to file a PIL where there are already many legislations enacted for such purpose. It aims, surely, at the lack of implementation of these laws or the applicability of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter referred as “FRA, 2006” and see here) which has done more harm than good.
This human-animal conflict gives rise to a number of problems, such as, sometimes innocent people are killed at the hands of these wild animals and vice-versa. This human-animal conflict began as an effect of the depletion of forest cover or natural habitat of wild animals due to increase in various industrialist activities as well as population burst.
It is a fundamental duty of every citizen under Article 51-A (g) of the Constitution of India, 1950 to protect wildlife and have compassion for all living creatures. Moreover, Article 48A poses a duty on state to protect, safeguard and improve the forests and wildlife of the country. There are various powers, authorities and duties granted to centre, state and panchayats under the scheme of wildlife protection.
If animals could scream would we be so cavalier about hurting them?
The point is there are abundant laws in the country which are made for protection of wild animals, domestic animals, street animals etc. but the same lacks implementation. The Wildlife Protection Act, 1972 (see here) is a stricter legislation than the Prevention of Cruelty to Animals Act, 1960 yet there have been recent incidents of killing of an Elephant in Kerala and as per various government reports there are plenty of elephants killed in almost all the deccan states. As per the said reports, maximum killings of 136 elephants have been reported from Kerala, followed by West Bengal (48), Karnataka (46), Tamil Nadu (44) and Odisha (41) during the period from 2008 to 2018.
In the recent PIL(see here) filed in the Supreme Court, it points out how we have failed as humans since a group of people recently killed an elephant by feeding her a pineapple filled with crackers which had burst in her mouth and as per the autopsy, the animal suffered for two weeks before succumbing to death while being pregnant. An outburst was there in the entire country asking for justice to be delivered in heinous cases like these. Various NGOs came forward to protest on social media and soon the people joined and supported them on Social Media too.
The elephant is a protected wildlife animal listed at item No. 12-B in the name of ‘Indian Elephant (Elephas maximus)’ in schedule-I of the Wildlife Protection Act, 1972 (see here) and as such killing as well as trade in its any of the articles/organs is an offense punishable strictly.
What needs to be noted here is that a Schedule-I animal has been killed brutally which reflects that the laws are not able to achieve the purpose for which they have been enacted. Most of the wild animal killings are attributed to self-defence or protection of property and cattle. However, a systematic and sympathetic approach to strike a balance between human and animal rights needs to be devised.
The Prevention of Cruelty to Animals Act, 1960 is the first legislation made in post-independence India for welfare of animals. But the same seems to be not reviewed and updated as the fines prescribed are meagre in the Act ranging from Rs. 10- 500 where offences have been committed in violation of Sections 11, 20 or 26 of the aforementioned Act.
The laws under the sections 428 and 429 of the Indian Penal Code, 1860 do no justice to the animal lives and prescribe meagre fines for killing and maiming of such animals. As compared to these laws, the Wildlife Protection Act, 1972 is a better equipped legislation along with appropriate fines and imprisonments and at the same time has a requisite framework to carry out its enshrined purpose.
The main hamper in enforcement of these laws has been the claim of forest-dwellers over their land and other people who depend on forest produce for livelihood. With such circumscribing interests of both humans and animals, the face-offs are bound to happen. In this regard, FRA, 2006 has been legislated but over the years it has proven to be a missed opportunity.
The FRA, 2006 is one of the most discussed issues since over a year now and the reasons for it range from increasing protests in rural India against its poor implementation and dilution and impending elections in some of the tribal dominated states like Chhattisgarh and Odisha. Over a decade after its introduction, FRA’s poor performance in terms of its implementation and poor quality of forest rights recognition has been a huge loss of opportunity.
Laws relating to street animals
- Killing, maiming, poisoning or rendering useless of any animal is punishable by imprisonment for up to two years or with fine or with both, under Section 428 of the Indian Penal Code, 1860. Under Section 429 of the Code, the term is 5 years and is applicable when the cost of the animal is above 50 Rs.
- Section 11 of the Prevention of Cruelty to Animals Act provides that if any person allows, or himself beats, kicks or tortures, in any way, any animal subjecting it to unnecessary pain and suffering will be liable to pay a fine of upto 50 Rs. In case of repetition of the offence, the fine will increase or an imprisonment for 3 months will be granted.
- The Animal Protection (Dogs) Rules, 2001 provide for rules relating to pet and street dogs.
Laws relating to work animals/cattle
Chapter III of the Prevention of Cruelty to Animals Act deals with “Cruelty to animals generally” According to Section 11, the following acts are punishable by fine upto Rs. 25-100 and a maximum of three months of imprisonment on repetition of the said acts.
- anybody who employs any unfit animal, suffering from wound, infirmity, sores or an animal of an old age, to work. -Section 11 (b)
- anybody who carries any animal subjecting it to pain or suffering. – Section 11 (d)
- keeps an animal in a cage or any other such confinement which is not sufficiently big enough as to let the animal move freely. -Section 11 (e)
- any owner of an animal who allows his animal, affected with a contagious or infectious disease to die in any street. -Section 11 (j)
- any person who offers for sale an animal that is suffering from pain due to mutilation, starvation, thirst, overcrowding or ill-treatment. -Section 11 (k)
- In October 2014, non binding guidelines called National Code of Practices for Management of Dairy Animals in India were released by the government in consultation with an NGO named World Animal Protection.
Laws relating to wild animals
The chief laws relating to wildlife in India are found in the Wildlife Protection Act, 1972. The Act prohibits the killing, poaching, trapping, poisoning, or harming in any other way, of any wild animal or bird. It also provides for establishment of Wildlife Advisory Boards in every State.
- According to Section 2 (37) of the act, wildlife includes any animal, aquatic or land vegetation which forms part of any habitat, thus making the definition a wide and inclusive one.
- Section 9 of the Act prohibits the hunting of any wild animal (animals specified in Schedule 1, 2, 3 and 4) and punishes the offense with imprisonment for a term which may extend to 3 years or with fine which may extend to Rs. 25,000/- or with both.
- The Act allows the Central and State Government to declare any area ‘restricted’ as a wildlife sanctuary, national park etc. Carrying out any industrial activity in these areas is prohibited under the Act.
- Section 48A of the Act prohibits transportation of any wild animal, bird or plants except with the permission of the Chief Wildlife Warden or any other official authorised by the State Government.
- Section 49 prohibits the purchase without license of wild animals from dealers.
Laws relating to aquatic animals
The Wildlife Protection Act is applicable to aquatic animals too. Protection of marine species in India is done through creation of Marine Protected Areas (MPA).
- Schedule 1-4 of the Wildlife Protection Act provides a list of all the protected marine species, for e.g seahorse, giant grouper, hermatypic corals, organ pipe, fire coral, sea fans, etc.
- Schedule III protects all species of sponges and Schedule IV comprises of a wide variety of mollusks.
- Dolphins have been recognized as the national aquatic animal of India and find themselves placed in Schedule I. India has banned use of dolphins for commercial entertainment, thereby placing a ban on establishment of any ‘dolphinarium’ in the country.
Laws relating to birds
Birds, too, are protected under the Wildlife Protection Act, 1972 (WLPA) and in Prevention of Cruelty to Animals Act (PCAA), alongwith land and aquatic animals.
- Section 11 (o) of the PCAA provides for punishment of any person who promotes or himself takes part in any shooting match/competition where animals are released from captivity for shooting.
- Under Section 16 (c) of the WLPA, it is unlawful to injure or destroy wild birds, reptiles, etc. or damaging or disturbing their eggs or nests. The person who is found guilty of any of this can be punished for upto 7 years in jail and be made to pay a fine of upto Rs 25,000.
Laws relating to zoo animals
Laws relating to zoo animals are also found in The Wildlife Protection Act.
- Section 38A of the Act provides for establishment of a Central Zoo Authority by the Central Government, which has the following functions:
– specifying the minimum standards for keeping of animals inside the zoo.
-recognize or derecognize zoos.
-recognize endangered species and assign responsibilities to zoos for their captive breeding, etc.
- According to Section 38 H, no zoo is allowed to function in India without recognition of the Central Zoo Authority.
- The CZA provides the guidelines that are necessary for Establishment & Scientific Management of Zoos in India. These include rules like providing sufficient area, healthcare, freedom of movement, a naturalistic environment to the animals, etc.
Laws relating to pets
A lot of laws relating to pets are found in Section 11 of the Prevention of Cruelty to Animals Act. The punishment, as mentioned above, for any of these offences is upto Rs 100, and three months imprisonment in case of repetition of the offence.
- Any person, who is the owner of an animal, negligently or intentionally chains a dog in close confinement, habitually
- Any owner who fails to provide his animal with sufficient food, drink or shelter- Section 11 (h)
- Any person who, without any reasonable cause, abandons an animal in such a situation where the animal is bound to suffer pain due to starvation or thirst- Section 11 (i)
- Any owner of an animal who consciously allows an infected, diseased or disabled animal to go into any street without any permit or leave the animal to die in any street- Section 11 (j)
- Any person intimidating another person and preventing him/her, who is the owner of a pet, from keeping or taking care of his/her pet can be held liable under Section 503 of the IPC.
Laws relating to animals used for the purpose of entertainment
- No animal can be used for the purpose of entertainment except without registering under The Performing Animals Rules, 1973.
- Chapter V of the PCAA deals with performing animals.
- Section 26 of the PCAA provides for punishment for any person who uses any animal for the purposes of entertainment/performance with a fine of upto Rs 500 or with an imprisonment of upto three months or with both.
Laws relating to testing or experiment on animals
Millions of animals, especially white mice, guinea pigs, rabbits, monkeys, etc. are used for experimentation all over the world, and suffer and die with great pain in this process. Use of animals for experimentation in the cosmetic industry amounts to grave cruelty.
- Through the Drugs and Cosmetics Rules (Second Amendment) 2014, animal testing for cosmetic products was prohibited all over India.
- Any person who violates the Act is liable for punishment for a term which may extend from 3 to 10 years or shall be liable to a fine which could be Rs.500 to Rs.10,000, or both.
- According to Rule 135B of the Drugs and Cosmetic (Fifth Amendment) Rules 2014, no cosmetic that has been tested on animals shall be imported into the country.
- A committee, established under the provisions of Prevention of Cruelty to Animals Act–The Committee for the Purpose of Control and Supervision of Experiments on Animals (CPCSEA) released the Breeding of and Experiments on Animals (Control and Supervision) Rules, 1998 (amended in 2001 and 2006) that regulate the experimentation on animals.
- Dissecting and experimenting on animals in schools and colleges is banned in India, under the PCCA.
Certain barriers which impede the realisation of forest rights
- Want of Political Will to implement this act as the forest dwelling communities assert their powers which comes in a direct conflict with the agenda of ease of doing business. Moreover, in recent times, various policies and orders have provisions to either challenge or dilute the FRA viz. the Compensatory Afforestation Act, draft forest policy.
- Various Systemic issues are also there. Namely, the lack of coordination between various departments such as tribal, revenue and forest, numerous laws which are contradictory to the FRA which act as impediments to its implementation. Also, the way the Government is approaching this issue is reflected in the recently developed draft forest policy as it leads to forest commercialisation and the forest communities have no say in the decision-making as it is dominated by technocrats.
- Functional or implementation Challenges: the number of claims of people being rejected or are pending is huge. The guidelines given by Ministry of Tribal Affairs to State Governments regarding reasons be given to the complainants in case any claim is rejected are hardly being followed.
How can the government tackle such a situation?
It is certainly the duty of the govt. to make effective laws, update them timely and at the same time ensure that they are widely publicised and abided by the people. The govt. should keep a check on the way people respond to any legislation and what can be done to create a balance between animal and human rights.
Various projects have been carried out and the results though not remarkably great but are showing some improvement in conservation of wildlife in the country. In rural areas where the majority of these conflicts happen, the government reach and visibility are often limited. Moreover, the land-owners whose crops or cattle are often attacked by these animals take very minimum efforts to report such incidents to the authorities and seek to deal with the animals by their own brawn. Numerous videos surface on social media where mobs of villagers have been seen thrashing tigers and leopards while forest authorities stand by them as mere spectators. It could have been better if the govt. had worked vigorously in the past and fostered a sense of respect in the people towards these authorities as well as rights of the animals.
How can you take action?
Now that we have a quiver full of laws in our hands to shoot, let us look at how we can use them and make a formal complaint against violation of animal rights, and where:
Sending a Legal Notice: You can either send a legal notice to the individual/group of animal abusers yourself through a lawyer, or report the matter to an NGO which would do that for you. In case no action is being taken by the abuser even after sending the notice, you can file an official complaint.
Getting a Wildlife Case Registered: An offence report is known by different names in different states, such as Preliminary Offence Report (POR), Offence Report, First Information Report (FIR), Seizure Intimation, etc. However, to make the reports uniform, it is advised that the report be called Wildlife Offence Report (WLOR). It is prepared under Section 50(4) of the Wild Life (Protection) Act, 1972. This can be filed by anyone generally.
Though, to file a ‘complaint’, one needs to approach a magistrate and make an allegation orally or in writing. One can approach a forest officer, who can further file a complaint to the magistrate. According to Section 55 of the WLPA, the following persons can file a complaint to the magistrate:
- The Director of Wildlife Preservation or any other officer authorized on his behalf, who is authorised by the Central Government, Members of Central Zoo Authority or Member-Secretary of Tiger Conservation Authority, Director of the concerned Tiger Reserve.
- Chief Wildlife Warden
- Any person who has given another person/group a notice of at least sixty days, of his intention to make a complaint.
Arrest by an individual: Offences under the Wildlife Protection Act are non-bailable and cognizable offences. Under Section 43 of the CrPC, an individual can arrest an offender who has committed a non-bailable and cognizable offence or is a habitual offender, and hand him/her over to the police.
Getting the authorities to actually take action
It is very possible that a person may be very passionate about reporting a certain incident or just generally about animal welfare, and may want to take action, but the concerned authorities may not cooperate with them. This gets very demotivating, which is why a lot of people think of exercising animal welfare as a very futile job. To get the authorities to actually take action, make sure you do the following:
- Make friends with lawyers and journalists: both of them, sometimes in exchange of money and sometimes pro bono, will help you get your case through.
- Meet people in NGOs and try to help the aggrieved animal or get an abuser reprimanded with the help of established NGOs. Previously, NGOs have fought and won many cases in courts, and are a powerful force altogether.
- If the authorities are not taking action when it is urgent, try to call or write to higher authorities, politicians, etc.
- Gather people. Organize a peaceful protest or demonstration.
- File a grievance on the website of Animal Welfare Board of India.
Judiciary’s attitude and approach
In any nation the role of judiciary cannot be undermined because it suggests the govt. to be progressive while framing laws as well as keep a check on the offenders. When the histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to archives, reflective of what was, but should not have been. The pioneering case in this regard was in 1954 when the Supreme Court observed that animals’ sacrifices made due to religious purposes is necessary to practice one’s religion and thereby it is protected under Article 25 of the Constitution of India and further elaborated the same in its judgment viz. Ratilal Panachand Gandhi and ors. v. State of Bombay and ors (see here):
“A religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well…. Religious practices or performances of acts, in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines.”
However, in Sardar Syedna Taher Saifuddin Sahib v. State of Bombay (see here) the SC observed that:
“…there may be religious practices of sacrifice of human beings, or sacrifice of animals in a way deleterious to the well-being of the community at large. It is open to the State to intervene, by legislation, to restrict or to regulate to the extent of completely stopping such deleterious practices.”
Then in 2014, the Supreme Court delivered a landmark judgment on the subject of animals’ cruelty. In Animal Welfare Board of India v. A. Nagaraja & Ors (see here) the SC held that animals too have the right to live with honour and dignity.
Recently Punjab and Haryana High Court has held animals to be legal persons. This is a welcome step in the Indian jurisprudence. While delivering the judgment Justice Rajiv Sharma, in his order (see here) said, “All the animals have honour and dignity. Every species[s] has an inherent right to live and is required to be protected by law. The rights and privacy of animals are to be respected and protected from unlawful attacks.”
Being a problem of massive impact, no straightjacket formula would fulfil the voids in all dimensions. Therefore, we shall discuss the solutions in light of what can be done at earliest and what can be evolved over time to develop a more sustainable approach. Increasing the fines and punishments may seem a formidable option. However, these would not fulfil the goal in the long run and the enforceability of these rules would still remain a matter of efficiency. The solution to this problem requires a mix of short-term and long-term solutions in equal proportion so that the future can be secured without compromising with the present. These measures include
- The mode of compensation to the people harmed or wronged by animals shall receive Crop Compensation rather than Cash Compensation as the primary need of such communities is that of their grains because of them being primitive or carrying primitive trade.
- Another thing which can be helpful is to demarcate clearly the areas for humans and that of animals around the forests and all this should be strictly regulated.
- The corridors of various protected areas should be connected so that the animals can move freely and their population is in check too from being extinct.
- Most people are unaware about the legal implications of killing certain animals. However, the principle of ignorantia juris non excusat would still apply and therefore the people need to be better educated about the predicaments that may arise from certain avoidable killings.
- The bio-fences shall be installed with a ‘living perimeter’ to keep wild animals away along with creation of supplementary income e.g. bee hives which help in keeping wild animals such as elephants away.
- The recent case of elephants being killed as well as the PIL filed in the SC also mentioned that such animals in distress don’t get timely help from the Forest Department’s teams. Therefore, the veterinary services should be made mobile enough so as to treat the injured animal well in time rather than as late as two to three weeks.
- The cash crops should be grown where feasible as well as crops of chillies other than fruits and bamboo which keeps animals like elephants away.
Although a lot of very elaborate and specific animal protection laws have been passed in India, they are often not properly implemented. It is so because concerned citizens and NGOs do not often emphasize on taking the legal pathway to accomplish results. At the same time, it is imperative to realize that the legislation that we currently have in India is not sufficiently strong and reasonable so as to make great change. The general anti-cruelty parts in Section 11 of the PCAA can be made a lot more effective by increasing the punishment and fine to some extent.
The laws can be made more stringent and all-encompassing so that animals of all kinds, be it street animals, wild animals and animals residing in all types of habitat are protected and preserved.
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