Aadesh
Renowned Greek philosopher Pythagoras once quoted – “Animals share with us the privilege of having a soul.” India’s diversity is not just a result of the variety of people residing across the country, but the multitude of animal species that live in harmony with these people as well as each other. Over the years, judicial and social activism has led to the creation of various animal protection statutes like the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as The PCA), Animal Protection Act, 1962, Wildlife Protection Act, 1972 and so on. The ambits of several Constitutional provisions have also been expanded to include animals under their scope.
Rights-based approach versus animal welfarism
Every right we enjoy is accompanied with a duty. That is, the protection we enjoy from law is accompanied with legal responsibilities towards one another as well as the State. It is not possible to grant animals these rights in the same manner, as they cannot be expected to adhere to the duties that come with them. To an extent, fundamental rights can be granted to animals, but they cannot be conferred upon with most statutory rights that have an ingrained duty associated with them. Such rights would include the right to not be hunted down, which is inevitably accompanied with the duty to not hunt down other animals. Such a duty cannot be imposed on several carnivorous species. Another example would be the right to undestroyed public property which would axiomatically come with duties to not tamper with any trees. It would be rather preposterous to impose such duties on birds and herbivores that rely on these trees for shelter and food respectively.
Furthermore, it isn’t pragmatic to grant just the above mentioned statutory rights to animals without the duties associated with them as rights and duties are complementary to each other and are not severable. Thus, a ‘rights – based’ approach of animal protection is not a feasible one. Modern animal protection laws are inclined towards what is known as a ‘welfare – based’ approach of animal protection. According to this method, animals have no explicit rights per se and humans are imposed with duties to ensure their wellbeing. Therefore, animals may be domesticated for their products and reared for their meat as long as they are treated with respect and not cruelty. Moreover, citizens of India are entrusted with the duties to preserve their natural environment, carrying out agriculture and animal husbandry in a humane and organized (i.e. productive and not wasteful) manner as well as improving and safeguarding the environment and wildlife. This position of ‘new welfarism’ has been endorsed by several philosophers and animal rights movements. Even the Indian Legislature has adopted the animal welfarism perspective in framing The PCA, India’s most prominent animal welfare legislation. That is, The PCA is a welfare – based legislation and doesn’t deliberate any explicit rights.
Tom Regan’s approach and implied animal rights
Tom Regan, an American Philosopher concocted a system of animal protection which has been accepted across the globe. The same has been advocated by the Indian Government and several animal – welfare groups in the country. In this system, Regan lays down five principles that balance the rights of animals and human utilization of the resources obtained from them –
Respect Principle – State that animals having inherent value should not be treated as mere receptacles of experience and one must not value them solely on the basis of their utility relative to other animals. In other words, animals are sentient beings whose intrinsic value should be respected with integrity and one must not view them for just instrumental value.
Harm Principle: Human beings have a primary duty to not treat animals in a manner that diminishes their welfare and causes unnecessary pain and suffering.
Mini-ride Principle: When we must choose between overriding the rights of the innocent many or the innocent few, and each individual will be harmed in a prima facie comparable way, then we ought to choose to override the rights of the few, not the many.
Worse Off Principle: when we must decide to override the right of the innocent many or the innocent few, and the harm experienced by the few would make them worse-off than any of the many would be if any other option were chosen, then we ought to override the rights of the many.
Liberty Principle: If all involved are treated with respect, any innocent individual may act to avoid being made worse-off even if doing so harms other innocents.
Regan further explains that harming wild animals as an act of self – defence or even killing them to save one’s life is acceptable, but he vehemently denounces commercial hunting/ poaching.
Doctrines of parens patriae and public trust
The notion of Parens patriae, or ‘parent of the country’ originated as the king's ability to exercise power in certain instances to protect his subjects. He was the guardian of his people who would exercise his prerogative to care for those legally unable to care from themselves and/ or their property. In India, this doctrine entrusts the State in its sovereign capacity to provide protection for those unable to care of themselves (i.e. those who are non – sui juris, i.e. lack the capacity or power to uphold their legal rights). This an extended application of the above discussed duty-based welfare approach to where not only the citizens but also the Government of India are conferred upon duties to protect the interest of animals.
In spite of the increase in flagrant unkind acts towards animals, the majority of society conveniently lives in ignorance. Additionally, there are a myriad of reasons as to why people do not/ are unable to exercise their duty towards animals. Thus, it is the role of the Government to increase its protection of animals in adherence to the said doctrine. In 2018, the Uttarakhand High Court declared itself the guardian of all cows in the territory of Uttarakhand. It highlighted the fact that the parens patriae duties are not to be borne by just the Executive but by all three organs of the Government.
Recently, the High Court of Punjab and Haryana clarified that all creatures in the animal kingdom as ‘legal entities.’ A legal entity is one which is recognized by law as a real and distinct thing with its own qualities and attributes. There can be suits initiated on its behalf. The Court further held that all citizens in the State of Haryana are persons in loco parentis in relation to animals. This enables them to carry out their duties towards animals by allowing them to act as their guardians. Even the Delhi High Court has implemented this doctrine in its order directing the Animal Welfare Board of India to ensure that all stray dogs in the territory of the NCT of Delhi are to be fed reasonably. The Court also reached out to the residents in that region to help achieve this purpose. The Court further directed the Board to identify strategic feeding sites that would attract maximum stray dogs as well as made the Board in charge of their vaccination.
The doctrine of ‘Public Trust’ gives the Government title over all public and natural territory, property and resources. It also imposes upon the obligation to maintain and take due care of the same. Under this doctrine, the state must: (1) consider the potential adverse impacts of any proposed activity over which it has administrative authority; (2) allow only activities that do not substantially impair the state's wildlife resources; (3) continually monitor the impacts of an approved activity on the wildlife to ensure preservation of the corpus of the trust; and (4) bring suit under the parens patriae doctrine to enjoin harmful activities and/or to recover for damages to wildlife. Thus, animal welfare is ensured by imposing duties upon the Government in relation to the maintenance of animal habitats.
Right to life and personal liberty
The fundamental right to life and personal liberty is an absolute right granted by Article 21 of the Constitution of India. This right is exceptionally granted to animals as well without the imposition of any corresponding duties. However, the right to life enjoyed by animals is not an absolute right, unlike the right granted to human beings. This is to allow animals to be utilized for satisfying important human needs provided they aren’t made to endure unnecessary pain and suffering. Moreover, animals also have a right to a decent habitat which is upheld by imposing duties on the Government through the above elaborated doctrine of public trust. Thus, it can be understood that the corresponding duties associated with the right to life enjoyed by animals is in fact imposed upon the State instead of the animals themselves. An established principle in law is that this doctrine is a part and parcel of Article 21.
An intensely debated upon topic is whether the fundamental right to life and personal liberty enjoyed by a pet can be overridden by the owners right to property over it. This is because pets are the property of their owners in the eyes of law, and that animals are legal things/ entities rather than legal beings. However, with the conversion of the right to property from a fundamental right to a statutory right, the Legislature has made it clear that the right to life enjoyed by animals is superior to their owners right to property. This can be comprehended from the fact that their right to life is a fundamental right and their owners right to property is a statutory right, owing to which the former inexorably supersedes the latter.
Prevention of Cruelty to Animals Act, 1960
The PCA is India’s primary legislation pertaining to animal rights and previously mentioned, it is a welfare-based legislation and not a right based legislation. Section 11 of The PCA criminalizes several offences against animals. Some of these offences include failure to provide enough food, drink or shelter to pet and confinement in a small area (such as a cage) which doesn’t provide them with a reasonable opportunity for movement. Carrying in a vehicle or any other manner which subjects it to unnecessary pain or suffering is also an offence. To come under the ambit of this section, an offence must subject an animal to unnecessary pain or suffering.
The Supreme Court of India after interpreting this criterion has delineated that it was important to see whether the suffering caused to the animal, could have been reasonably avoided or reduced or whether the conduct causing the suffering was for a ‘legitimate purpose’, i.e. for instance, to benefit the animal, protect the another animal, a human being or property, etc. This brings us back to Regan’s approach as elaborated earlier. If decent treatment can be given to animals, even those who for instance are going to be used for food, animals may then justifiably be used for food, but if an activity calls for unacceptable levels of suffering then it should be prohibited.
An example would be that the use of horse-driven carriages for joyrides was solely for human pleasure and was an avoidable human activity. Such non-essential, avoidable human activities thus, violate the basic rights granted to animals, under the Constitution and the concerned statutes. The above concept has been employed in the Drugs and Cosmetics Rules that protects animals from harsh consequences associated with testing of products on them.
Inefficiency of the PCA and Recommended Changes
Lack of Proportionality between offences and consequential penalties
Wrongdoers who have violated the law laid down by The PCA are punished with meagre fines like Rs. 50/-, even for offences of serious nature. Proportionality specifically in cases of imposition of punishment needs to satisfy a two-fold purpose, viz. fairness towards the offender and fairness towards the society. An efficient change has been previously recommended by the Legislature itself through Section 17 of the Animal Welfare Bill, 2011. This involves fines amounting up to Rs. 25,000/- with imprisonment up to 2 years in case of a first offence and fines amounting to Rs. 1,00,000/- with imprisonment up to 3 years in the instance of a second offence. Unfortunately, the bill has not been passed due to public opposition.
American law permits penalties to the tune of $20,000/-. Although India’s societal conditions make such heavy fines unaffordable to the common man, the current quantum of fines should still be increased to an extent that satisfies the gravity of the crime and accordingly substantially reduces the number of offences committed in violation of Sec. 11.
Non-cognizance of Most offences:
Apart from a few exceptions, most offences under The PCA are non-cognizable, i.e. police officers cannot arrest an offender without a warrant that requires complicated procedures to secure. This leads to the creation of several procedural barriers and inevitable delays due to which it is difficult for one to file a suit on behalf of an aggrieved animal. It is also a major hurdle that prevents people from exercising their duties towards animals as per the Doctrine of Parens Patriae.
Imposition of civil liability in addition to criminal punishment
Civil liability should be imposed simultaneously, and not as a substitute for criminal liability, which shall be imposed by the same Act. Civil liability is generally recognised in the field of tort law, which is related, yet distinct from criminal law. Due to this feature of civil liability, it is often imposed along with the penal sanctions applicable.
Along with fines being paid to the State, the imposition of civil liability entails that the violators will have to pay damages as well. This money received in damages, can be used to alleviate the suffering of animals. This will not only help in recognizing the rights of animals, as they will have access to remedies when there is violation of their rights, but also, increase general awareness about the rights animals possess as sentient beings.
In conclusion, India has various laws and legal mechanisms that address crimes against animals, but most of them appropriately tailored to meet the issue of animal protection. To further elucidate, the quantity of Indian laws on animal protection is high, but most of them lack the quality needed to protect animals efficiently. With persistent pressure from animal welfare organizations and the public, it is possible to expect a new set of laws governing animal welfare in the country that would make India a safer and kinder place for all non – human beings.
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