The Prevention of Cruelty to Animals Act, 1960 (Herein after referred to as PCA), is one of the earliest legislations in India, not passed by Englishmen, yet it remains antiquated and non-effective due to its outdated intent and leniency. Much has changed around the world since this act was opposed, in terms of animal protection but the act fails to follow up. However, owing to the lack of effectiveness and blatant disregard of constitutional and legislative intent of this act, judiciary has stepped up to ensure India is not lagging behind in granting proper treatment rights to those who deserve.
This article will analyse how the judiciary has helped to alleviate the standard of animal protection framework in India, with little help from legislators. It will explain how Judiciary is taking the turn from welfare approach towards a right-based approach and analyse the critique of the approach taken by judiciary briefly.
Taking the Animal turn: Judiciary behind the wheel
Judiciary in India has thrown upon itself the task of taking the animal turn. Animal turn is basically revisiting the human-animal relationship, and making qualitative shift towards embracing animals as “selves” with own legal, social and political significance[i], and not properties only. In recent years, it has delivered judgements that have changed the dimension of human animal relationship of owner and property to two sentimental, capable beings, where humans possess a higher standard of moral obligation towards non-human beings. The Supreme court in A.Nagaraj, recently recognized the inherent dignity of non-human animals, guaranteeing them certain rights[ii]. Reflecting on “life”, the Court held that it does not merely include surviving or existence but life has an under-lying element of dignity and honor associated with it even for animals. The judiciary granted major rights to non-human beings, protecting them under the constitutional principle of life and dignity. This judgement also paved way for a further step of granting the status of “legal persons” to non-humans, in the judgements of Karnail Singh Vs State of Harayana and Narayan Dutt vs. State of Uttarakhand, discussed further below.
The earliest step: Preventing unnecessary slaughter and abuse
the enthusiasm of Judiciary in protection of animals, is not a new phenomenon. Efforts have been made since 1959 i.e. before the official enactment of PCA, in different ways to protect cattle, cows and other domesticated animals from being killed and abused unreasonable and unnecessarily, especially for religious and cultural purposes. In Hanif Quareshi, It has gone to the extent of prioritizing animal rights over certain religious beliefs, stating sacrificing of cows is not an overt act exhibiting religious beliefs of Islam.[iii]Similarly, in the case of Moti Qureshi, judiciary shifted from looking into human interests (affirmatively the majority religious priorities) to concern for the feelings of cows and milch cattle at old age, reaffirming the moral duty we owe to animals, after we use them[iv]. The much-celebrated judgement of A. Nagaraj also prioritized animal dignity over cruel traditional practice of bull-racing. Recently, Animal sacrifices in temples have been overtly banned by multiple states like Tripura [v] and Himachal Pradesh [vi], with the most recent ban being in Odisha in 2020.[vii]
Widening the field for other non-human species
If restricting the sacrificed abusee of animals for religious and cultural purposes was one step of the turn, the other step was to prevent cruelty inflicted upon other animals that are not the focus of religious and political debate in the country. One of the earliest step was taken by the Kerala High Court, which said bears, tigers, panthers, lions, monkeys cannot be used as performing artists in circuses and made to go training which inflicts injury and abuse on them.[viii] Recently, the Delhi High Court recognized that certain animals are not meant to be trapped among humans but to stay in their habitat as previously stated.[ix] It is the rights of the birds to fly in the sky and not living trapped in cages and thus criminalizing the act of caging the birds.[x] Rajasthan High Court recognizing that for a horse to run on hard concrete roads full of cars and humans is both a mental as well as physical torture[xi], illustrates that Indian Judiciary is full-fledged ready to provide animals with long-due recognition, which the legislation has failed up till now.
Witnessing a sharp turn: Animal granted the status of Legal Persons
The paucity of stronger legal protection granted to animals was mainly due to the result of their classification as properties than legal persons and granting them rights[xii]. A major breakthrough that happened in the animal protection law is credited to two very similar judgements delivered by same judge in two different states, in the cases of Karnail Singh vs. State of Haryana and Narayan Dutt Bhatt vs Union of India and Others. The single Judge bench in the High Court granted Animals the status of a “Legal Person”, and all residents of the state of Haryana in loco parentis as the human face for welfare and protection of animals[xiii]. Prior to this, similar stance was adopted in the Uttarakhand High Court as well[xiv]. The detailed judgements discuss the changing dimension of “legal persons” and grave necessity to grant non-humans this status. The judgements deflected from the old criteria of awarding the status, to something/someone who has an intellectual and rational existence, and accommodated principles of “emotional value”, “sentiment”, “feeling of pain and suffering” to be considered in order to give them some basic rights against humans. The main benefit of this judgement will be against those acts of cruelty, which might not be against the law per se, but having a status of legal person would compel the judiciary to weigh actions against animals not from human-centric frame but with a standard of possible right to dignity, life and liberty of these animals.
Why Animals deserve basic rights
Human beings do not treat animals harshly because they are classified as property; animals are classified as property so that human beings canlegally treat them harshly.[xv]. This theory has inspired the animal rights movement all over the world, which is significantly different from the theory of animal welfare[xvi]. Often scholars of welfarism have criticised this approach for lacking a reciprocal duty or obligation which should ideally follow from the other party, if rights are granted to them, and advocated for more human-centric approach to it.[xvii]
Mostly all the judgements mentioned above are based on certain visible and invisible notion of rights to animals, which the judges have applied in iterating principles for their better protection. Only few judgements like A Nagaraj, or Karnail Singh etc directly talk about them. The basic principle of rights being extended to animals can be criticized, if Hohfeildian Analysis of rights and duties is applied in the recent judgements of A. Nagaraj, Karnail Singh or Narayan Dutt,It may seem that without reciprocal obligations and duties fulfilment by them, non-humans cannot be granted rights. However, the objection on extending rights to non-humans for the want of reciprocity requirement of duties and rights entail that only those who are strong enough against humans are entitled to have rights against them[xviii]. The reciprocity requirement should be used when the question of two equally powerful parties arise, and not when one party is inherently weaker than the other[xix].For Eg. A and B both have equal power, but B gives up power against A which is not reciprocated by A. This will make B disadvantaged in the competition of fulfilling interests. However, if A is not equally powerful as B, giving up of power in form of rights to A by B will not hinder B’s interest in the competition. Extending rights to weak (non-humans) by the powerful (humans) does not need reciprocity requirement, because the principle is essentially made for equal parties and granting them rights will not hinder the powerful (humans) interest.However, it will ensure that the interests of weaker parties are protected in the court of law, without a striking unbalance of powers between the two parties. If this logic is applied, it leads to an unwarranted support to the judgements mentioned above, and provide a basis on which the current legislative framework should model itself. It is our moral duty to protect the weakest members of the society, without expecting any reciprocal duty from them when it is apparent that they do not possess the capability to owe us any obligation.
Since PCA is highly human-centric, and grants no rights to animals. the legislative intent of the act is only to curtail the activities of owners and possessors of Non-humans, in order to ensure smooth functioning of process of animal productivity businesses. Judiciary has stepped up and shown the path towards a better approach to animals, and now it is the duty of legislators to imbibe the spirit of judiciary through the precedents set by it, and grant basic rights to all animals, so that they are not just used as means to our ends, but as individuals with dignity and value inherent in them.
[i] Anne Peters, Saskia Stucki, & Livia Boscardin, ‘The Animal Turn—What Is It and Why Now?’
(Verfassungsblog, 14 April ,2014).
[ii]Animal Welfare Bd. of India v. A. Nagaraja & Ors,, (2014) 7 SCC 547.
[iii]Mohd. Hanif Quareshi and others v. State of Bihar, 1959 SCR 629.
[iv]State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534, ¶
[v] Subhas bhattachrjee v. State of Tripura on 25th July 2018WP(C)(PIL) No.02/2018.
[vi]Ramesh sharma and ors.v. State of H.P. & Ors. on 26th October 2018 CWP No. 2545/2018-E.
[vii]Smt. Jayanti Das vs State Of Odisha And Others on 17th November 2014 W.P(C) No.11180 of 2014.
[viii]N.R. Nair And Ors., Etc. Etc. vs Union Of India & Ors., AIR 2000 Ker 340.
[ix]People for Animals v. MD Mohazzim & another 58, 2015 SCC OnLine Del 9508.
[xi]Mahaveer Bishnoi v. State of Rajasthan & Ors on 11th August 2015, CWP No.2204/2015.
[xii]Gary L. Francione, ‘Animal Rights and Animal Welfare’ (1996) 48 Rutgers L. Rev. 397.
[xiii] Karnail Singh v. State of Haryana, 2019 SCC OnLine P&H 704.
[xiv]Narayan Dutt Bhatt v. Union of India and Others on 4 July 2018, Writ Petition (PIL) No. 43 of 2014
[xv] Wendy A. Adams, ‘Human Subjects and Animal Objects: Animals as Other in law’ (2009) 3 J. Animal Law. & Ethics 29.
[xvi]Gary L. Francione, ‘Animal Rights and Animal Welfare’ (1996) 48 Rutgers L. Rev. 397.
[xvii] Richard L. Cupp Jr., ‘Focusing on Human responsibility rather than Legal Personhood for Non-human Animals’, (2016) 33 Pace Envtl. L. Rev. 517.
[xviii] Steve F. Sapontzis, ‘Moral Community and Animal Rights’ (1985) 22. American Phil. Quat. 252
ABOUT THE AUTHOR(S)
Sumedha Tewari is currently a Second year B.A.LLB Student from National Law University, Jodhpur with a keen interest in Animal Law, Environmental Law and Policies related to it
Sandarbh Vikram Singh is currently a Second year B.A.LLB Student from National Law University, Jodhpur. He is interested in Constitutional Law and Public Policy
In content Picture Credits: sulekha.com