animal cruelty

This article is written by  Disha Pareek, from RGNUL, Srajan Kapil, from Symbiosis Law School, Hyderabad, and Shobhna Aggarwal, from Banasthali Vidyapith.

Introduction

Before I could write anything or familiarise you with the topic, I just want to mention one incident that shook the entire world. This instance is so dreadful, so loathsome that whosoever came to know about it was just wondering if it really happened. A pregnant elephant in Palakkad district of Kerala was given a pineapple laced with explosives. Her jaw was grievously damaged due to which she roamed around hungry. It is very painful to even realise the enormous amount of pain which she went through and above all the pain of a mother for her unborn child. Even in such extreme distress, she did not damage a single property or attacked a single person. This incident really shows the distinction between Humans & Animals. Yes, we are the humans, the HOMO SAPIENS, classified as the highest ranking in the entire animal kingdom living in the world of development, thrived in almost all assorted tasks, whether it be pertaining to -information technology, medical field, space & technology etc.

No doubt we developed a lot but at what cost? Is it really a success for the human race when we have lost our basic moral values? Does the impression of the artificial environment has grown so strong that the roots of humans with nature are just for namesake? These are not just simple questions but hints to the loopholes in our society which are hindering the overall growth of our country which need to be taken into consideration. One of the most debatable issues and maybe a highly underrated topic in today’s scenario is ‘ANIMAL RIGHTS’. In our day to day life, it is not very surprising to come across the events of stoning and hurting homeless pooches, shooting blameless winged creatures and leaving totally innocuous animals to starvation and demise, or seen organizations unlawfully testing on animals, animals being abused and hurt for amusement in zoos and parks, men transporting a large number of cows or other animals in trucks in inhumane conditions, beating them and over-burdening them, and thought about whether there is a conclusion to this pitilessness system.

In Hindu mythology, various gods & goddesses are associated with the various animals which is evident from the celebration of festivals like Nag Panchami or worshipping of Nandi bull in Lord Shiva temple. This animal lover is not just restricted to Hindus but is the central theme of Buddhism & Jainism as well. But it all comes to a halt and looks very hollow when experienced in ground reality. The sentiments towards animal kingdom are not just limited to the religious books or saints but are also taken in serious consideration by national leaders like Mahatma Gandhi, which can be seen in his own words as The greatness of a nation and its moral progress can be judged by the way its animals are treated.” The idea of deserving policy to the animals of having a dignified life without any cruel attitude towards them is not just developed from recent times but can be seen earlier in history as well. We also come across Chetak, the horse of Maharana Pratap Singh. Various poems and write-ups are there telling about the love of the king to his horse. There is just so much that an individual can accomplish for assurance of animals without laws. India has a reasonable collection of animal protection laws, not free from loopholes arising as the mission of a peaceful environment for our animals is still not achieved.

What are Rights?

In our daily lives, we come across the term ‘rights’ many times. The concept of rights is very dynamic, its meaning changes with its use. If we try to understand the meaning of rights in an abstract sense, we can say that ‘right’ means just, ethical correctness or something consistent with morals [4]. If we talk about ‘rights’ in a political sense it means the conflicting claims between the state and the individual which restricts the power of the state and is protected by law. This brings us to the meaning of rights as understood in law. In law, ‘right’ is an interest that is protected by moral or legal rules. If the protection of statute is removed right will cease to exist, thus right is nothing but legally protected interest.

There is no doubt about the fact we humans have certain rights, but the question that “do animals have rights?” has been a debatable question for a very long time. Before we discuss animal rights it is important for us to understand who are animals? Two main Central Laws for the protection of animals in India give us the answer to this question. According to Section 2(1) of the Wildlife (Protection) Act, 1972 animal includes “amphibians, birds, mammals, and reptiles, and their young, and also includes the eggs of birds and reptiles” And Section 2(a) of the Prevention of Cruelty to Animals Act, 1960 gives a much broader definition of the animals as, “any living creature other than a human being.”

In ancient times, before the invention of money animals were exchanged for goods. Even today their status as goods has not changed much, animals under law occupy the status of the property, they are considered as the moveable property of human beings. The common law system recognizes two broad categories: ‘juristic persons’ and ‘property’. Therefore, laws concerning animals are based on the premise that animals are property. The best example of this can be found in the Indian Penal Code, 1860. Section 378 describes theft as moving a moveable property out of the possession of any person without the person’s consent and with dishonest intention. Explanation 4 of the same section explains that moving animals is the same as moving a movable property, and thus, brings it under the ambit of theft. Similar to a property, they can be bought, sold, destroyed, or transferred. There is no principle in our current framework of animal protection, animal welfare that differentiate animals from the inanimate property. Rather, the law only focuses on the protection of animal property by protecting them from suffering or being killed with no legitimate reason.

Do Animals Have Rights?

Now, coming back to the question of animal rights, there are various codes and conventions at the international level that work towards the protection of animals. Example: The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),  The Terrestrial Animal Health Code (TAHC) which is overseen by the World Organisation for Animal Health (OIE), The European Convention for the Protection of Animals During International Transport (the European Convention), , etc. Thus, Animal rights are recognized all over the world.

Development of Animal Law

The laws for protecting animals can be traced back to the 17th century. In 1641, puritans of the Massachusetts Bay colony enacted ‘The Body of Liberties’, the first anti-cruelty provision for animals. Several countries like Brazil, China, Egypt, Ecuador, Germany, Serbia, Switzerland,etc. recognize animal rights under their constitution. The animal law in India dates back to the enactment of The Constitution of India, which also recognizes the rights of animals but in an indirect manner. The proper development of Animal law in India was marked by the enactment of ‘The Prevention of Cruelty to Animals Act, 1960’. Another major enactment in India is ‘The Wildlife (Protection) Act, 1972. We will discuss the provisions of these two legislations along with the constitution of India in the next Section. Apart from these acts, there are other laws in the form of rules, dealing with specific areas of animal law for the protection and welfare of animals. For example The Prevention of cruelty (capture of Animals) Rules, 1979; Performing Animals (Registration) Amendment Rules, 2001; Transport of Animals (Amendment) Rules, 2009; Prevention of Cruelty to Animals (Slaughter House) Rules, 2010; The Prevention of Cruelty to Animals (Care and Maintenance of Case Property Animals) Rules, 2017, etc. The government has also prepared a draft Animal Welfare Act, 2011,[17] with an intention to replace the Prevention of Cruelty Act, 1960, but it has not been enacted yet.

The Constitution of India and The Animal Law

In a civilized society like ours, it is the duty of everyone to treat each with care and an essence of humanity. This care and humanity should not only be limited against humans but should also extend to the way we treat animals. It is not only our moral duty to treat animals with care and show compassion towards them but it is also our fundamental duty under the Constitution of India. Part IV A of the constitution of India deals with fundamental duties, under which Article 51A(g)  provides that “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.” Thus, it is our fundamental duty to have compassion towards living creatures, including animals. In-State of Gujarat vs. Mirzapur Moti KureshiKassabJamat , the Hon’ble Supreme Court explained the meaning of ‘compassion’ under Article 51(A)(g) as an emotion or soft feeling that arises out of sympathy, love and kindness.

Additionally, Part IV of the Constitution of India and deals with Directive Principles of State Policy (DPSP),  under Article 48[13] and Article 48A[14] provide that the state shall endeavor to organize animal husbandry and to safeguard and protect the wildlife of the country. Thus, the constitution not only declares the protection and welfare of animals as the duty of citizens but also promotes the government to work towards their welfare. Though none of these provisions are the grounds for challenging any act against animals in the court of law, they are taken into consideration by the court while interpreting animal laws. As already discussed above in this article the Animal Welfare Board of India vs. A. Nagaraja supreme court gave wider meaning to the term ‘life’ under Article 21 and extended the ‘right to dignity and fair treatment’ to animals.

The Prevention of Cruelty to Animals Act, 1960

When we talk about the laws for prevention of animals against cruelty and suffering, ‘The Prevention of Cruelty Act, 1960’ is one of the strongest laws in this field. It was enacted to replace the ‘Prevention of Cruelty to Animals Act, 1890’. The purpose of this act is to prevent animals from unnecessary suffering and pain inflicted on them. This Act provides for the establishment of the Animal Welfare Board of India under the Central Government for the purpose of animal welfare. Since its establishment in 1962, the board has been working very actively along with the Ministry of Fisheries, Animal Husbandry and Dairying (Department of Animal Husbandry and Dairying) towards the welfare of animals in India. This act also confers duty on the owner of any animal under Section 3, to ensure their well-being by taking reasonable care. Section 11 of the act is one of the most important sections of this act as it specifies the activities or actions that will be considered as cruelty against animals. 

The Supreme Court of India has held that “Sections 3 and 11 only confers duties, responsibilities and obligations on the owners and corresponding rights on animals. Moreover, Sections 3, 11(1)(a) & (o) and other related provisions have to be understood and read along with Article 51A(g) of the Constitution.” Section 11(o)  of the act provides the punishment in case of first offense as a fine of not less than ten-rupees and a maximum fine of fifty rupees. And if the same person commits the offense again within the period of three years, the fine of not less than twenty-five rupees will be imposed on him, which may be extended to one-hundred rupees or with imprisonment of maximum three-months or both.

 

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Judicial approach

The jurisprudence that has developed in recent times in the field of animal protection is a very positive sign as it shows the shifting of perception from the anthropocentric approach towards the eco-centric approach. The case laws that have been decided by the Honourable courts over a decade in this matter show the scope, emergence & importance of environmental law in the present scenario. The very landmark case of Karnal Singh and Ors. v. State of Haryana is a breakthrough judgement in which the judiciary touched the matter of animal rights in the purview of Fundamental Rights. The case before the court was not just a regular civil case of breaking the laws or doing any act which is abstinent to be done by the law but was involving the major issue of animal rights that are being subdued by nearly everyone without any guilt towards mankind or law.

The landmark judgement very reliably stood up to the expectations of making this case a landmark in the jurisprudence and history of animal rights. The beauty of judgement is seen as it goes beyond the question of the welfare of cows as concentrated in the case but also talks about all animals, birds and aquatic species as well.  Justice Rajiv Sharma clearly mentions in his judgement “The entire animal kingdom including avian and aquatic are declared as legal entities having a distinct persona with corresponding rights, duties and liabilities of a living person. All the citizens throughout the State of Haryana are hereby declared persons in loco parentis as the human face for the welfare/protection of animals.” The doctrine of ‘parens patriae’ which refers to the duty of the state to provide protection for those who are unable to protect themselves which was earlier restricted to humans, now has also included non-humans in the scope of this doctrine.

As the judiciary is approaching this issue very diligently it has also raised the issue of the lack of role of the legislature in participating in the enactment of new rules and regulations and modification in the present scenario is a matter of concern. In another landmark case of Animal welfare board of India v A.Nagaraja &Ors, the Honourable Supreme Court held that “Parliament was expected to make a proper amendment of the PCA Act to provide an effective deterrent to achieve the object and purpose of the Act and for violation of Section 11, adequate penalties and punishments should be imposed. Parliament, it was expected, would elevate rights of animals to that of constitutional rights, as done by many of the countries around the world, so as to protect their dignity and honour.” 

Another leading case law is of Narayan Dutt Bhatt v. Union of India & Ors. in this subject matter in which it is clearly stated: “We may, therefore, define a person for the purpose of jurisprudence as any entity (not necessarily a human being) to which rights or duties may be attributed.”

Available legal actions

Each state has an Animal Husbandry Department, which is committed to giving its assets to veterinary human services and other united administrations, in every situation. The execution of the Prevention of Cruelty to Animals Act 1960 and Rules thereunder, additionally lies with the Animal Husbandry Department. Hence, they are authorised in assisting the concerned animal welfare associations. But as a responsible citizen of the country, it is very important to be aware of the application of laws and the ways by which an individual can take legal action against the required person/association. There are some of the ways which are being discussed.

The very first thing that one can do to stop animal abuse is to send a legal notice to the individual/group of animal abusers or report the matter to an NGO which would do that for you. In case of no progress being noticed, the provision of filing an official complaint is available. The report by name of the Wildlife Offence Report (WLOR) is prepared under Section 50(4) of the Wild Life (Protection) Act, 1972. This can be filed by anyone generally. Though, the complainant needs to approach a magistrate and make an allegation orally or in writing by approaching a forest officer, who can further file a complaint to the magistrate. 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.

Conclusion

In the present scenario of COVID-19, when every country is doing research for making Vaccine to end this pandemic simultaneously millions of mice, cats, dogs, rabbits etc are the ones on whom the trial is being done. The kind of horrible environment exposed to the animals in which they had to go is very terrifying. After suffering a lot of pain& experiencing torture almost all of them will be killed. Through the Drugs and Cosmetics Rules (Second Amendment) 2014, animal testing for cosmetic products was prohibited all over India. But this subject needs more attention in today’s time, it will not be wrong to say that not much has been contributed by the legislation or judiciary in this matter. The present legislation in India needs to be modified by making more stringent laws.

We can see a ray of hope from the judiciary side as all the decisions given by the honourable courts are in itself magnificent steps taken towards the nonhuman rights. The judgements that are being delivered support the arguments of animal personhood and the declaration of legal rights to them. The liberal judgements coming in recent times should be considered as a strong start to strengthen animal rights but the inclusion of animals on a broader term has kept the scope for further litigation in the subject. Undoubtedly a great deal of exceptionally intricate and explicit animal protection laws have been passed in India, they are regularly not appropriately taken into the ground level. The need of the hour is to sensitize with this serious issue and work for the development of it without leaving its traces on future generations.

References 

  • John Davis (16 March 2011). “Gandhi – and the Launching of Veganism”. Retrieved 26 April 2016.
  • Parliament of India (1982). “The Prevention of Cruelty to Animals Act, 1960, as amended by Central Act 26 of 1982” (PDF). Retrieved 24 April 2016.
  • “Central Laws”. Retrieved 24 April 2016.
  • “India Legislation & Animal Welfare Oversight”. 25 January 2016. Retrieved 26 April 2016.

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