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Animal Rights, What Is It?

India, the seventh largest country in the world, is one of the most bio-diverse regions of the world containing four of the world’s 36 biodiversity hotspots. It is home to animals ranging from the Bengal Tigers to the Great Indian Rhinoceros and animal protection and welfare in in the country has taken a prominent position over the recent years. Protection of animals is enshrined as a fundamental duty in the Indian Constitution and there exist several animal welfare legislations in India such as the Prevention of Cruelty to Animals Act 1960 and the Wildlife Protection Act 1972 at the Central level and cattle protection and cow slaughter prohibition legislations at the State levels.

The Indian Penal Code (IPC) 1860 is the official criminal code of India which covers all substantive aspects of criminal law. Section 428 and 429 of the IPC provides for punishment of all acts of cruelty such as killing, poisoning, maiming or rendering useless of animals. The aforementioned legislations have been enacted to obviate unnecessary pain and suffering of animals and similar legislations continue to be enacted according to changing circumstances. Notwithstanding specific statutes, further protections for animals lie under general concepts such as tort law, constitutional law, etc.
  1. The Constitution of India

    The Constitution of India makes it 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 all living creatures.” This Constitutional duty of animal protection is supplemented by the Directive Principle of State Policy under Article 48A that:
    The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.

    Both the above constitutional provisions were introduced by the 42nd Amendment in 1976. While they are not directly enforceable in Indian courts, they lay down the groundwork for legislations, policies and state directives in furtherance of animal protection at the Central and State levels. Moreover, they may be enforced in courts by taking an expansive judicial interpretation and bringing them within the ambit of the fundamental Right to Life and Liberty under Article 21 which is judicially enforceable.

  2. Sources of Law

    The primary sources of law in India are the Constitution, statutes (legislations), customary law and case laws. India is a federal union divided into 28 States and 8 Union Territories. The respective States are administered by their own State governments while the Union Territories are federal territories directly governed by the central Government of India. The Parliament of India is the supreme legislative body of the country while Indian States have their respective State Legislatures.

    Statutes are enacted by the Parliament for the entire country, by the State legislatures for respective States and by the Union Territory legislatures for respective Union Territories. Central laws enacted by the Parliament can be checked and controlled only by the Constitution of India. State laws may be overridden.

    Addition to these primary legislations, there also exists a vast body of subordinate legislation like rules, regulations and by-laws enacted by Central/State governments and local authorities such as municipal corporations and gram panchayats (local village bodies). Given the separation of powers in India between the Legislature, Executive and Judiciary branches of government, the three branches are vested with different functions.

    While the primary responsibility of drafting legislations lies with the legislature, sometimes the responsibility is given to the Executive branch in order to draft legislations known as delegated legislation.

    India follows the common law system based on recorded judicial precedents handed down by the British colony. Therefore, it places significant reliance on precedents and case laws in the development of law and jurisprudence. Judicial decisions of higher courts such as the Supreme Court of India and High Courts of different States carry significant legal weight and are binding on lower courts.

    India is a land of wide religious and cultural diversity. Therefore, some personal laws, local customs, religious texts and conventions which are not against statute, morality, public policy and larger social welfare are also recognized to have a legal character and are taken into account by courts in the administration of justice.

  3. Allocation of Powers between the Centre and the States:

    Article 246 lays down the subject-matter of laws made by the Parliament and the State Legislatures. This subject-matter is allocated into three lists contained in the Seventh Schedule:
    The Union List: the Parliament has exclusive power to make laws with respect to the matters enumerated within this list.

    The State List: State Legislatures have the exclusive power to make laws with respect to the matters enumerated within this list.

    Concurrent List: both the Parliament and State Legislatures have the power to make laws with respect to the matters enumerated within this list.

    In the context of animal rights, the following matters have been allocated in the State and Concurrent List.

    Item 14 of the State List provides that the States have the power to “[p]reserve, protect and improve stock and prevent animal diseases and enforce veterinary training and practice.”

    In the Concurrent List, both the Centre and the States have the power to legislate on:
    Item 17: “Prevention of cruelty to animals.”
    Item 17B: “Protection of wild animals and birds.”

  4. The Prevention of Cruelty to Animals Act, 1960

    The basic cruelty law of India is contained in the Prevention of Cruelty to Animals Act 1960. The objective of the Act is to prevent the infliction of unnecessary pain or suffering on animals and to amend the laws relating to the prevention of cruelty to animals. The Act defines “animal” as any living creature other than a human being.

In accordance with Chapter II of the Act, the Government of India established the Animal Welfare Board of India (AWBI) with some of the following functions:

  • Advising the central government regarding amendments and rules to prevent unnecessary pain while transporting animals, performing experiments on animals or storing animals in captivity.
  • Encouragement of financial assistance, rescue homes and animal shelters for old animals.
  • Advising the government on medical care and regulations for animal hospitals.
  • Imparting education and awareness on humane treatment of animals.
  • Advising the central government regarding general matters of animal welfare.

The Act enumerates different variants of cruelty to animals under Section 11 as the following actions:

  1. Beating, kicking, overriding, overloading, torturing and causing unnecessary pain to any animal.
  2. Using an old or injured or unfit animal for work (the punishment applies to the owner as well as the user).
  3. Administering an injurious drug/medicine to any animal.
  4. Carrying an animal in any vehicle in a way that causes it pain and discomfort.
  5. Keeping any animal in a cage where it doesn’t have reasonable opportunity of movement.
  6. Keeping an animal on an unreasonably heavy or short chain for an unreasonable period of time
  7. Keeping an animal in total and habitual confinement with no reasonable opportunity to exercise.
  8. Being an owner failing to provide the animal with sufficient food, drink or shelter.
  9. Abandoning an animal without reasonable cause.
  10. Willfully permitting an owned animal to roam on streets or leaving it on the streets to die of disease, old age or disability.
  11. Offering for sale an animal which is suffering pain due to mutilation, starvation, thirst, overcrowding or other ill-treatment.
  12. Mutilating or killing animals through cruel manners such as using strychnine injections.
  13. Using an animal as bait for another animal solely for entertainment.
  14. Organizing, keeping, using or managing any place for animal fighting.
  15. Shooting an animal when it is released from captivity for such purpose.

However, the Act does not consider as cruelty the dehorning/castration of cattle in the prescribed manner, destruction of stray dogs in lethal chambers in prescribed manner and extermination of any animal under the authority of law. This Section provides somewhat of a leeway.

Part IV of the Act covers Experimentation of animals. The Act does not render unlawful experimentation on animals for the purpose of advancement by new discovery of physiological knowledge or knowledge to combat disease, whether of human beings, animals or plants. It envisages the creation of a Committee for control and supervision of experiments on animals by the central government which even has the power to prohibit experimentation if so required.

Chapter V covers the area of performing animals. Section 22 prohibits exhibiting or training an animal without registration with the AWBI. The Section prohibits animals such as monkeys, bears, lions, tigers, panthers and bulls from being utilized as performing animals.

An additional leeway provided by the Act is that under Section 28, nothing contained in the Act shall render it an offence to kill any animal in a manner required by the religion of any community.

Considering the diversity of religions and traditions in India, this Section was considered imperative.

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 Rs.50

Treating animals cruelly is punishable with a fine of Rs. 10 which may extend to Rs. 50 on first conviction. On subsequent conviction within three years of a previous offence, it is punishable with a fine of Rs. 25 which may extend to Rs. 100 or imprisonment of three months or with both. Performing operations like Phooka or any other operations to improve lactation which is injurious to the health of the animal is punishable with a fine of Rs. 1000 or imprisonment up to 2 years or both. The government further has the power to forfeit or seize or destroy the animal. Contravention of any order of the committee regarding experimentation on animals is punishable with a fine up to Rs. 200.

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.

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.

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:
“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. 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- said:
“All the animals have honour and dignity. Every species 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.

The international protection of animal welfare

Animal welfare is not currently regulated by a single, comprehensive international law instrument. ... Currently there is a significant gap in the international protection of animal welfare.
Emerging frameworks that might fill the gap in global animal welfare protection include a universal declaration on animal welfare, the entrenchment of World Organisation for Animal Health (OIE) animal health standards and an international convention for the protection of animal welfare.

While the prospects of any of these models succeeding in the short term are uncertain at best, the challenge now is to think carefully about what legal form an international framework for animal protection might take.

Currently there is a significant gap in the international protection of animal welfare.

New frameworks for global animal protection are being developed, but may still fall short of providing a comprehensive and enforceable global protection regime.

While the short-term prospects for the adoption of a new international framework are not good, now is the time for citizens and their political representatives, policy makers, lawyers and scientists to think carefully about the form international protection should take, so as to be ready when a suitable political opportunity for advancement arises.

International Convention For The Protection Of Animals

Operating Principles
  1. Humans and animals co-exist within an interdependent ecosystem. Humans and animals share an evolutionary heritage. Humans, as moral beings, have an obligation to act responsibly toward animals.
  2. Life has intrinsic value. No animal should be killed unnecessarily or be subjected to cruel acts or to unnecessary suffering.
  3. When humans have control over specific animals they have a positive obligation to provide these animals with an environment and care appropriate for the species.

Companion Animal Protocol

Operating Principles:
  1. No person shall cause a companion animal unnecessary pain, suffering or distress. No person shall abandon a companion animal.
  2. Any person who is the keeper of a companion animal shall have the affirmative obligation to provide the companion animal with adequate food, water, shelter and veterinary care.
  3. Wildlife, particularly captured wildlife, should not be utilized as companion animals.
  4. The keeper of a companion animal shall be responsible for the animal's health and welfare.
     
  5. The keeper of a companion animal shall provide the care and attention required by the species and breed of the animal, and in particular shall:
    1. give it suitable and sufficient food and water;
    2. provide it with adequate shelter from adverse environmental conditions;
    3. provide it with adequate opportunities for exercise; and
    4. take all reasonable measures to prevent escape.
       
  6. The keeper of a companion animal shall not:
    1. subject the animal to cruel acts or conditions;
    2. restrain an animal so as to preclude it from obtaining adequate food, water and shelter;
    3. train an animal in a way which is detrimental to its health or cause unnecessary pain or suffering;
    4. use an animal by forcing it to exceed its natural capacities or strengths.
       
  7. No person shall be allowed to keep or own wildlife if any of the following conditions are present:
    1. the animal is of an endangered species protected under domestic or international law;
    2. the animal, as an adult, represents a physical danger to the keeper of the animal or others who might be expected to be in contact with the animal; or
    3. the animal is unlikely to ever adjust to the confinement expected of a companion animal because of the sociological, physiological or ecological needs of the animal.


Protocol for the Taking of Wild Animals

Operating Principles
  1. The taking of wildlife is permissible only when necessary and then only to the extent necessary to accomplish the purpose desired.
  2. Any taking shall be accomplished in the most humane manner possible, and only by a licensed or otherwise authorized person or agency.
  3. Any taking shall be accomplished by the method which is least disruptive to animals, species and the ecosystem.

Protocol for the International Transportation of Animals

Operating Principles
  1. The transportation of animals shall not be done in a manner or under such conditions as is likely to cause injury, damage to health, unnecessary suffering or death.
  2. During the transportation process, those transportation agents with physical possession of animals shall have the legal obligation for their well-being and shall care for them in the event of any breakdown, delay or other emergency.
  3. No transportation agent shall accept for shipment animals inadequately prepared for shipment, given the needs of the animal and the method of transportation.
  4. During the legal formalities of custom control requirements, priority shall be given to the speedy inspection and clearance of live animal shipments.
  5. The most direct, safe route of transportation of shortest duration shall be utilized in order to reduce stress and risk of injury or illness.
     
Conclusion
The 42nd Amendment to the Indian Constitution in 1976 was a progressive step towards laying the groundwork for animal protection in India. The constitutional provisions establishing the duty of animal protection have resulted in the enactment of animal protection legislations both at the central and state level, most notable of which being the Prevention of Cruelty to Animals Act 1960. Furthermore, over the years Indian courts have developed a growing legal jurisprudence in animal law.

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.

However, there is a still a long ways to go in truly developing a solid foundation for animal law in India. The provisions for animal protection in the Indian Constitution remain principles instead of concrete law enforceable in courts. The penalties under the Prevention of Cruelty to Animals Act 1960 for cruelty against animals are simply not strict enough to truly deter crimes against animals. The law is not strictly enforced and contains several provisions which provide leeway through which liability can be escaped. Extensive reforms need to take place in this regard to provide a stronger animal protection law for India.

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