Open Access Research Article

EFFECTIVENESS OF LEGAL FRAMEWORK AND JURISPRUDENTIAL APPROACH TO ANIMAL PROTECTION IN INDIA: AN INTERNATIONAL PERSPECTIVE

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DEBJANI OJHA
Journal IJLRA
ISSN 2582-6433
Published 2023/12/16
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Issue 7
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EFFECTIVENESS OF LEGAL FRAMEWORK AND JURISPRUDENTIAL APPROACH TO ANIMAL PROTECTION IN INDIA: AN INTERNATIONAL PERSPECTIVE
 
AUTHORED BY - DEBJANI OJHA
 
 
 
Abstract
The decline in the animal population in India can be attributed to a multitude of factors, emphasizing the critical need for concerted efforts in animal protection to preserve ecological equilibrium. This article delves into the legislative landscape of ancient and pre-independent India, shedding light on various legal frameworks established for animal protection. A comprehensive exploration of constitutional provisions dedicated to safeguarding animals in India is also presented. The article systematically examines the pivotal role played by different organizations dedicated to the protection and welfare of animals in the country. In a comparative analysis, the article juxtaposes India's animal welfare legislations with those of select countries. Furthermore, the article provides a nuanced exploration of animal protection and rights from jurisprudential perspectives. Recognizing the judiciary's significant role in upholding animal rights, the article delves into pertinent judicial observations. Culminating with insightful suggestions, the article aims to enhance its effectiveness in promoting animal welfare. By encapsulating a broad spectrum of historical, legal, and judicial dimensions, this comprehensive exploration seeks to contribute to the ongoing discourse on the protection and well-being of animals in India and beyond.
 
Keywords
Animal rights, Animal protection, Wildlife, Cruelty to animals
 
 
 
 
1.    Introduction
In India non-violence towards animals was familiar to us when the ‘Kapisthala Katha Samhita’ of ‘Yajurveda’ was written in the 8th century BCE[1]. The animal population is being reduced day by day. Many animal species are already gone extinct.
 
A) Threats to Wild Animals:
There are multiple threats. Those are –
1.      Illegal trading of wildlife and their body parts.[2]
2.      Illegal hunting or poaching of animals[3]
3.      Intentionally introduced invasive species destroy the natural balance of the ecosystem.[4]
4.      Deficiency of cognizance amongst people regarding the importance of the conservation of animals.
5.      Weak enforcement of a law or the mismanagement of the wildlife that can also be treated as threats to the animals.
 
B) Why Wild Animals Need Protection:
Humans possess superior cognitive abilities compared to other creatures, enabling them to engage in complex thought processes. Hence it is duty to us to think about animals. Some of the important reasons for the protection of animals –
1.      Some of the Scientific development like studying wild animals can provide us with great information regarding human psychology, Medicinal value is another important reason.
2.      Without wildlife, the beauty of nature will not be beautiful.
3.      We know that most of the diseases come from animals to us. Hence protecting wild animals will help us make distance from them.[5]
4.      Animals should also have the right to live as we all do by Article 21 of our constitution. India, following the 42nd Amendment of its constitution in 1976, demonstrated a significant commitment to environmental protection, including wildlife conservation. This amendment marked a crucial step towards recognizing the importance of jurisprudential considerations for animal interests within the constitutional framework. While Switzerland has also been notable for its progressive animal welfare laws, it is important to note that the historical development of such legal frameworks varies among countries. India's initiative, though commendable, does not necessarily position it as the second country globally to include the jurisprudential context of animal interest in constitutional texts. The global landscape of legal provisions for animal welfare is diverse and shaped by the evolving priorities and values of individual nations.[6]
 
2.    Animal Protection Laws in Pre-Independent India
A)    Laws in Pre-Independent India:
The British came to India in the year 1600 as traders but even after capturing India as their own, there was no development for protecting Wildlife until mid to late 1800.
 
1.      Indian Penal Code, 1860: Section 428 & 429 of IPC, 1860 deals with the penalties for crimes against Animal. It mentions penalty of Monetary or Imprisonment or Both for Mischief by killing or maiming animal, cattle etc[7]. But we do need to remember three facts, one – Section 428 & 429 falls under the chapter ‘of offences against property’ assuming animals are property of humans. Second – these sections only say about domestic animals which has some valuation as property and does not deal with wild animals. and third – the intention has to be proved to punish someone under section 428 or 429 otherwise the offence would fall under section 426[8]. 
2.      Madras Wild Elephant Preservation Act, 1873[9]: The first step towards wild animal protection was to give state protection to the wild elephants. This act makes provisions for Monetary penalty or simple/rigorous imprisonment or both for killing an elephant. This act was applicable in Madras Province of British Colonial India.
3.      British Cruelty to Animals Act, 1876[10]: This act is the amended version of The Cruelty to Animals Act 1849. This act is introduced to restrict experiments on animals and also started a permission system.
4.      Elephant Preservation Act, 1879[11]: This Act was enacted to protect the wild elephants. According to section 3 of this act killing, injuring, capturing and also any attempt of killing, injuring, capturing wild elephant is forbidden. Section 7 of this act defines fine for violation. Later this act was amended by Act No 8 of 1930.
5.      Wild Birds Protection Act, 1887[12]: This Act was implemented for the protection of wild birds. According to this act, no person can have ownership or can sale of any kind of listed wild birds which were captured or killed during their mating season. Apparently, there was some flaws in this act as this is not protecting the wild animals entirely as this act was only limited to the municipalities and cantonments. Also, the enforcement of this act was limited to seasonal breeding times only and was not applicable to the entire territory other than the above-mentioned controlled areas.
6.      The Mysore Games and Fish Preservation Regulations, 1901[13]: To stop indiscriminate destruction of the Wild animals, Birds & Fish the Government passed The Mysore Games and Fish Preservation Act 1901 which creates animal preserves in the state of Mysore.
7.      Wild Birds and Animal Protection Act, 1912[14]: By the power of this act, government may declare close time for all forests and during that time capturing, killing, sale or buying or plumage for any of it is prohibited by failing which for any person would be punishable under this act by monetary or imprisonment or both except for if the State Government has issued license to do so for scientific research or similar purpose.
8.      The United Provinces National Parks Act, 1935[15]: This act gives power to declare any government forest as National Parks where the control, maintain and manage can be done by the Chief conservator of forest and within the national park the rules and regulations imposed by The Indian Forest Act 1927 or Indian Arms Act 1878 are valid and can’t be changed unless authorized by the proper authority.
9.      Hailey National Park Act, 1936: This was the result of The United Provinces National Parks Act 1935. Hailey National Park was the first National Park established in India in then Garhwal district now present Uttarakhand currently known as Jim Corbet National Park[16].
 
3.    Constitutional & Other Legal Frameworks for Protection of Animals in Post-Independent India
A)    Laws in Post-Independent India:
1.      The Constitution of India & Directive Principles of State Policy: Indian Constitution mandates the protection and treatment with dignity of the voiceless as a fundamental duty of Indian citizen[17].
During the adaptation of the Indian Constitution, the Animal, bird, wildlife, forest protection was kept under the State list but later after 1976 the 42nd amendment, these are moved to the Concurrent list under seventh schedule (Article 246) of the constitution which now empowers both State and Central Government to enact Acts, Laws for the protection of Wildlife and forest but the Central Government Created Act will overpower if any inconsistencies found between the State & Central Government Act[18].
 
                                      i.            Fundamental Rights (Part III): No section under the fundamental rights directly deals with wildlife protection apart from Article 21 which did partially. But many sections under fundamental rights indirectly protects or helps protecting wildlife which are –
 
a.       Article 19(1)(a)[19] guarantees the freedom of speech so by using this any Animal Rights Activists or any person can raise their voices for the voiceless and mention their opinion for protecting the wildlife[20].
b.      Article 19(1)(b)[21] guarantees the right to assemble peacefully and without arms so by using this any Animal lover or group can do protests in support of wildlife protection or even if any government policies go against it, they can also protest[22].
c.       Article 19(1)(c)[23] gives us power to form associations so by using this power any group of persons with intention of Wildlife protection or Animal Protection can form Society or Association for their movement for Animal Protection[24].
d.      Article 19(1)(e)[25] guarantees the right to reside and settle anywhere in the country hence someone can choose to move from a protected area to any other places to protect the Wildlife[26].
e.       Article 21[27] guarantees the right to life as a fundamental right which means every person has a right to live with dignity and honour which also includes the protection and preservation of environment, ecological balance which is free from air or water pollution. Life can’t be enjoyed without these[28]. The Supreme court of India has given ‘life’ an expanded definition while article 21 protects the life where life means all kind of life including animal life as they are also necessary for the survival of human species[29].
 
                                    ii.            Directive Principles of State Policies (Part IV): There are mainly two sections which are for the protection of wildlife those are-
a.       Article 48[30] instructs every state to ensure modern and scientific animal husbandry and to ensure positive steps to improve and preserve animals also to prohibit slaughter of cows, calves, other milch and draught cattle[31]. Which means a complete ban on the slaughter of cows and their offspring because article 48 read with article 51 A(g) means all animals have their own fundamental rights[32].
b.      Article 48A[33] says that every state should protect, improve and safeguard its forests and wildlife within. The supreme court, during an air pollution case observed that if Article 48A read with article 39 and 47 imposes a duty on the state that the state should ensure and secure public health and it must protect and improve its environment[34]. The Supreme court also mentions that whenever there is a case related to the ecology, we must keep in mind about article 48A[35].
 
                                  iii.            Fundamental Duties (Part IV-A): To bring Indian Constitution in accordance to the Article 29(1) of the Universal Declaration of Human Rights, 42nd Amendment in 1976 includes Article 51A in The Indian Constitution, referred as fundamental duties[36]. Article 51A(g) & 51A(h) are to be read with Article 48 & 48A of the Indian Constitution and Article 51A(g) & 51A(h) are considered as the magna carta of the Animal Rights Jurisprudence in India[37]. The sections related to wildlife protection are –
a.       Article 51A(g)[38] delegates fundamental duty of every citizen to protect and improve the natural environment including Forest, Water bodies, Wildlife and must have empathy for all living creatures.
b.      Article 51A(h)[39] delegates fundamental duty of every citizen to develop the scientific temper, humanism and the spirit of inquiry and reform.
  
                                  iv.            Allocation of Powers Between the Central and State (7th Schedule): According to Article 245 of The Indian Constitution, The Indian Parliament can make laws for entire Indian Territory including States, Union territory and other territory[40]. Article 246 allocates the subject matter of laws in three lists under the seventh schedule of The Indian Constitution which are The Union List, The State List & The Concurrent List[41]. 
Item 14 of the state list empowers state to preserve, protect, improve, prevent animal diseases and administer veterinary training whereas Both the Center & State have powers to pass laws on prevention of cruelty to animal as per Item 17 and protection of wild animals and birds as per Item 17B of the concurrent list[42].
  
                                    v.            Judicial Authority of Courts (Article 141 & 144): The supreme court have some binding force for its judgements which empowers on the supreme court by Article 141 & 144 of The Indian Constitution[43].
a.       Inspired by the English concept of ‘Stare Decisis’, i.e., the decisions of the Supreme court should be binding for all lower courts and tribunals, article 141 says that the “Law declared by the supreme court of India shall be binding on all courts within the Territory of India”[44].
b.      Article 144 says that “all authorities, civil and judicial, in the territory of Indian shall act in aid of Supreme court”[45]. 
 
2.      The PCA Act, 1960[46]: The purpose of this act was to replace The Prevention of Cruelty to Animals Act, 1890. Creation of Animal Welfare Board of India was one of the key features of this act. Among the major functions of the Board supervising the laws related to prevention of cruelty to animals and informing the government if any amendment needed to improve such laws where necessary is important[47]. According to Section 10 of The PCA Act, 1960, the board also has regulatory powers which means the board, with taking approval from the government, can pass necessary rules and regulations for its functions[48].
Second important thing of this Act was to properly define the cruelty to animals in section 11, subsection 1, clause ‘a’ to ‘o’[49] & also defining the duty of every person towards wellbeing of animals in section 3 so that the animals do not suffer unnecessary pain[50] but also, we have to remember that clause ‘a’ to ‘o’ of subsection 1 of section 11 must be read with Article 51A(g) of The Indian Constitution. Clause ‘o’ of subsection 1 of section 11 & section 12 of The PCA Act, 1960 also gives us the penalties monetary or imprisonment or both. To make certain of this Section 31 makes the offences cognizable if they are under clause (1) or clause (n) or clause (o) of subsection 1 of section 11 & section 12[51].     
 
3.      The Wildlife Protection Act, 1972[52]: By the power of this act the central government appoints the Director & assistant directors of Wildlife Preservation and the state government appoints Chief Wildlife Warden & wildlife wardens. Hunting of the animals listed in its first to fourth schedule is prohibited and also cutting and uprooting any plant from a forest or any protected area is prohibited except it is permitted by CWLW (Chief Wild Life Warden). The central government can declare any area as a sanctuary if it has sufficient significance to do so. Also, government can establish bodies like National & Sate Board for Wildlife, Central Zoo Authority, National Tiger Conservation Authority and Wildlife Crime Control Bureau.
 
4.      The performing animals' rules, 1973: In accordance with the power given by Section 37 & 38 of The PCA Act, 1960, the government enacted these rules for the performing animals. As per these rules, if any person wishes to train or exhibit any animal prescribed in its schedules, has to register with registration fees to the appropriate authority to obtain a certificate and one copy of the said certificate to be sent to the Animal welfare board by that authority.
 
5.      Transport of Animals Rules, 1978: Rules and regulations for transporting animals via rail, road, air or sea is mentioned in this rule. This is also prescribed that before transporting the health of the animals has to be checked if those animals are fit to travel and for non-compliance to these rules, transport permit and authorisation can be revoked.
 
6.      The Wildlife (Protection) Amendment Act, 1982[53]: The amendment of 1982 bought a provision which allows capture and transportation of animals for scientific research.
 
7.      National Wildlife Action Plan: In 1983 The Indian Board for Wildlife in its 15th meeting released its first plan from 1983 to 2001, The second plan was from 2002 to 2016. Later the Ministry of Environment, Forest and Climate Change of India declared that the third plan from 2017 to 2031. The NWAP3 recognises how wildlife is impacted by climate change and participating climate change mitigation actions. It has set focus on coastal, marine life. The plan also thinks about the human-animal conflict and its impact.
 
8.      The Environment Protection Act, 1986[54]: The EPA Act, 1986 was enacted after the Bhopal gas tragedy. The main objectives were to implement the decisions of Stockholm conference. The act can specify environmental quality standards, can restrict discharging of environmental pollutants, can put restriction of the location of industry. This act can also enact regular environmental laws. There is provision for heavy monetary fine or rigorous imprisonment of both for endangering the environment.
 
9.      The Wildlife (Protection) Amendment Act, 1991[55]: The MoEFCC and the WBI suggested this amendment to reduce poaching and illegal trade of wildlife. The amendment bars any person of hunting wild animals apart from vermins with exceptions for education, research and scientific study. This act was further amended in 2002[56] which amends Section 2 of the WLPA 1972 and Section 3,4,5a to 5c, 8 & 11 of The Indian Forest Act, 1927, further amended in 2006[57] which inserts Chapter IVB & IVC in the WLPA 1972 for the formation of National Tiger Conservation Authority & Tiger and Other Endangered Species Crime Control Bureau by inserting Section 38K to 38Z for further stringent the protection rules and regulations.
 
10.  The Breeding of and experiment on Animals (Control and Supervision) rules, 1998[58]: In accordance with the PCA Act, 1960, these rules were formed. This rule forms an Institutional Animal Ethics Committee and this committee will look after all the research related activity on animals so that the pain of animal can be minimized, breeders must have a certificate of registration etc. This rule was further amended in 2001[59] where in Rule 2 Clause (e) was amended for more clearer definition of experiment And Rule 5,6,7 & 9 were also modified & further amended in 2006[60] by which a new definition of experiment was inserted in rule 2 and rule 9, 10,12 & 14 was also amended.
 
B)    Laws in Contemporary & Future India:
The Wildlife (Protection) Amendment Bill, 2021[61]: This bill is passed in Indian Lok Sabha on 2nd August, 2022. The purpose of this bill is to further amend Wildlife (Protection) Act, 1972 so that a greater number of species can be protected and to implement the recommendations of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which is an international agreement between multiple governments who are to ensure survival of species. It also has provisions for declaring area adjacent to national park as conservation reserve to protect flora and fauna. Penalties for general violations are increased from INR 25000 to INR 100000.
 
4.    Various Organisations & Their Role for Animal
Welfare in India
A.    Animal Welfare Board of India (AWBI): This is a legal advisory committee who endorses animal welfare in India. Established in 1962 by the power under section 4 of The PCA Act, 1960. AWBI was under the Ministry of Food and Agriculture but later after 1990 it is under the Ministry of Environment, Forest and Climate Change. Among the major functions, AWBI is the recogniser of all animal welfare organisations across nation and provides financial assistance to the welfare organisations. The Board suggests if any changes required in existing laws and rules regarding any animal welfare issues. Another responsibility of AWBI is to raise awareness for animal welfare.
B.     People For Ethical Treatment of Animals (PETA): This is an international organisation founded in 1980 at Virginia. PETA INDIA was founded in the year of 2000 in Mumbai and is looking after welfare of animals in laboratories, food industry etc. PETA INDIA is looking after stopping abusive treatment to animals in India. 
 
C.    Indian Board for Wildlife (IBWL), 1952: The government has established IBLW in 1952 which is an advisory committee to the government. After 2002 amendment of the WLPA, National Board for Wildlife (NBWL) formed in 2003 replacing IBWL. This board is responsible for promotion and development for wildlife, defining areas of the protected areas, advising the government on wildlife matters.
 
D.    Department of Animal Husbandry and Dairying (DAHD): This is a subsidiary department of the Ministry of Animal Husbandry, Dairying and Fisheries, established in 1991 by merging multiple separate departments. This department is responsible for increasing livestock, dairy infrastructure development etc. 
 
E.     Committee For the Purpose of Control and Supervision on Experiments on Animals (CPCSEA): This is a legal committee which is formed under The PCA Act, 1960, initially formed in 1964 and further reformed in 1998 under the chairmanship of Maneka Gandhi whose primary responsibility is to scrutinize and approve the research projects conducted on animals. This committee has further multiple sub-committees like Institutional Animals Ethical Committee (IAEC) and Institutional Bio Safety Ethical Committee (IBSC) etc.
 
F.     Federation of Indian Animal Protection Organisations (FIAPO): Founded in 2010, this organisation is the collective of multiple animal welfare organisations in India who fights for basic freedoms for animals like freedom from hunger and thirst, Freedom for shelter, Freedom from pain, disease, freedom from fear etc. In recent times we saw that FIAPO has filed a petition for the dilution of section 43 from the Wildlife Protection Amendment Act.
 
 
 
5.    Animal Welfare Legislations in Different Countries
According to the American researcher Matthew H Nash who has done study of ‘Animal Rights Index’ of sixty-seven countries based on criteria like, i) animal sentience recognition, ii) animal suffering recognition, iii) laws against animal cruelty, iv) protected areas, v) consumption per capita, vi) environment protection etc and indexed studied countries where Luxembourg, United Kingdom and Austria ranked 1st, 2nd & 3rd respectively whereas Indian ranked 37th and China is the last where it is also noticeable that India performed better than countries like United States, Australia[62].
 
According to the ‘Animal Protection Index’, survey done on fifty countries by World Animal Protection Organization based on the country’s legislation and policy commitments for animal protection, recognition of animal sentience, prohibition of animal suffering, establishment of supportive government bodies, following of international standards, etc., where all the countries are graded between ‘A’ to ‘G’ where ‘G’ being the worst and ‘A’ being the best but according to the results no country receives grade ‘A’ and countries like Sweden, United Kingdom, Austria given the highest grade ‘B’ and India here receives grade ‘C’[63].
 
Austria: According to Article 13[64] of The Treaty on the Functioning of the European Union (TFEU), Austria has to give full attention towards the animal welfare requirement and considers animals as ‘Sentient Beings’. Article 1 of The Austrian Animal Welfare Act 2004 (Amended in 2017)[65] recognises animals as human’s fellow creatures and thus protection of life and wellbeing of those are our special responsibilities. Article 13 of the AAWA 2004 (Amended in 2017)[66] mandates. The Austrian Constitution (Amended in 2013) also accepts the mandates of Article 13 of TFEU. Article 222 of Austrian Criminal Code recognise cruelty to animal is an offence. Unnecessary pain, suffering, injury or even exposing animals to extreme anxiety is prohibited by the article 5(1) of the AAWA 2004. Article 32(3) allows religious killing but before killing stunning is mandatory so that animals do not suffer unnecessary pain. They also have better rules and regulations for animals which are used for scientific research, treating companion animals or pets[67].
 
Sweden: The Laws against Cruelty to animals are far better than any other countries in Sweden. Swedish penal code recognizes unintentional or harm caused due to human negligence beside regular intentional cruelty through Section 13 of Chapter 16 of The Swedish Penal code. Swedish government also considers mental suffering of animals beside physical suffering through their governmental bill to the Animal Welfare Act 2017/18:147[68].
 
United Kingdom: United Kingdom is the First country in the world to enact Animal Welfare Legislations. It has a very old history for animal protection. UK partially accepts animal sentience. The world’s first animal welfare legislation was Prevention of Cruelty and Improper Treatment of Cattle Act, 1822 for the protection of the domesticated animals in UK[69].
 
Denmark: Denmark passed New Animal Welfare Act in 2020 which came into effect from 2021 which accepts and recognises animal sentience. In 2015 Denmark also banned sexual intercourse with animals. Apart from this in accordance with the directives of the EU, the animal protection regulations for scientific research are also very strong in Denmark[70].   
 
Switzerland: Switzerland is famous for its wide reaching and detailed animal welfare legislations. Swish government clearly sets behavioural expectations from animal owners by the powers of The Swish Animal Welfare Ordinance (2020). Laws against animal cruelty is also very strong as beside unnecessary pain and suffering, or harm or unnecessary fear or anxiety they also recognise disregarding animal dignity in any way is also considered as cruelty to animals & thereby punishable[71].
 
6.    Jurisprudential Perspective About Animal Rights
Jurisprudential perspectives of Animal right jurisprudence began in the mid to end seventeenth century in Britain. Jeremy Bentham, not satisfied by the then-British laws, has started campaigning for his new theory now known as the Utilitarian Theory[72].
 
We find in Fitzgerald’s “Salmond on Jurisprudence” that Laws are men and law does not allow any bond or companionship with animals. Animals are treated as legal things and not as legal persons because law is for those who are capable of rights & duties. According to Salmond we, humans have duties towards animals but animals do not have private rights[73].
 
According to Bentham’s Utilitarian theory, humans should act for the greater goods and for the greater numbers. Bentham’s theory was that we as humans are superior to all animals due to our intelligences, hence we should not only chase pleasures for ourselves but also as many sentients being as possible[74]. But this theory faced many critics even personalities like Karl Marx, Pope John Paul II etc[75].
 
Animal rights jurisprudence was started spreading to the world during eighteen and nineteenth century onwards. Among Bentham’s supporters J.S. Mill, G. E. Moore, R. M. Hare carried on his work. In modern days Utilitarianism has huge impact on our society and laws. Awareness against cruelty to animals is increasing day by day and abusing animals is punishable in many countries including India.
 
Wesley Newcomb Hohfeld an American jurist famous for his jural corelation theories. According to his Jural relation concept Right & Duty are corelative which means every right has a corresponding duty[76]. We human can understand the value of ‘right to life’ and has a duty to not harm animals but we cannot expect animals to do the same to us. In another instance we humans, failing to do our duty, held punishable but we cannot sue an animal for not doing its duty. Hence by this logic if animals can’t perform duties vis-à-vis cannot have legal rights equivalent to humans[77].
 
On another point on which both Salmond or Hohfeld or many other agrees that is Power – Liability corelation. As per Salmond Power is the ability given upon a person by the Law to modify the existing legal condition for the betterment for not only him but also for the mass populace. Now as per Hohfeld, liability is corelative to power which may go in favour or as disadvantages to us. Hence humans do have power to create rights for lower animals as we do have a corelative liability even that is for our own interest[78].
 
Rights for animals were on its peak when before the ‘World Congress of Animal Welfare Societies’ W. J. Piggott presented his ‘International Animals Charter’ in London 1954. This was the most structured and promoted animal rights documents till date. This document is the basis of most of the animal right laws of today. The PCA Act, 1960 & the formation of Animals Welfare Board of India in 1960 was a result of partial acceptance of Piggott’s Animals Charter[79]. The animal’s charter was so famous that there has been a target for animal welfare was included in the declarations of the 1957 Rome Treaty and which eventually formed the first legal framework in the European community[80].
 
Another view of understanding animal rights via reasonableness found on the works of Martha C. Nussbaum. Her point of view was to recognize animals for their capabilities and theorizes that they should not be treated like the need of human and killing of animals should only be justified via plausible reasonableness[81].
 
7.    Indian Judiciary on Protection of Animals
Emperor vs. Ibrahim Meer Shikari (1917)[82]: Here the convicted was set free as again there was flaw in the Section 3(b) of The PCA Act, 1890 (Act no XI of 1890). The section does not punish any form of cruelty but punish if animal is bound or carried in such a manner that it causes them pain or suffering. Here the hon’ble judge of The High Court of Judicator at Bombay was clearly of the opinion that the legislature was not wide enough to cover the cruelty.
 
Emperor vs. Nasir Wazir (1919)[83]: Due to a flaw in The PCA Act, 1890 (Act no XI of 1890), the convicted was set free. The convicted has abandoned his horse on the streets and due to nearly twenty-five days starvation it died. The magistrate convicted him as per section 3(a) due to the ground of ‘ill treatment’ but the hon’ble judge of The High Court of Judicator at Bombay was clearly of the opinion that the legislature was not wide enough to cover the cruelty as when the convicted abandoned the horse, the horse was no longer under his control or ownership. There was no section in The PCA Act, 1890 that recognizes abandonment as a crime. 
 
Emperor vs. Bhawan Surji (1935)[84]: In this case the accused was convicted under Section 379 & 429 of The Indian Penal Code for stealing and killing of a calf for the purpose of eating. The district magistrate punished him for monetary & imprisonment separately for each of the sections. The Hon’ble judges of The High Court of Judicator at Bombay was of the same opinion as the two crimes are distinct in nature and both crimes can be defined distinctly.
 
Mohd. Hanif Quareshi & Others vs. State of Bihar (And Connected petition) (1958)[85]: This case was brought to supreme court due to The Bihar Preservation and Improvement of Animals Act, 1956[86] has imposed a total ban on cattle slaughter of all categories and also ban on sale for slaughtering cattle. The petitioner’s argument was that this ban violates Article 19, Clause 1(g) – freedom of trade, Article 14 – Right to equality and Article 25 – Right to profess, practice and propagates any religion of The Indian Constitution. The Hon’ble Supreme court ruled that the Ban in this case was valid and in harmony with the directive principle of state policy mentioned in Article 48 of The Indian Constitution. 
 
Tilok Bahadur Rai vs. State of Arunachal Pradesh, (1979)[87]: This case was a criminal revision application because the accused was prosecuted under section 9(1) by the deputy commissioner under section 51(1) of The Wildlife Protection Act, 1972, punished him imprisonment by six months. However, the Hon’ble Court ruled the accused free by the power bestowed by Sub Section (2) of Section 11 of the aforesaid Act and it was clear evident that the accused has acted on defence of himself and any other person.
 
State of Bihar vs. Murad Ali Baig (1989)[88]: This case was regarding elephant hunting under the provisions of The Wildlife Protection Act, 1972. The definition of hunting is defined under section 2(16). Also, Section 9 restricts hunting of animals specified in schedule I, II, III & IV and the exceptions are mentioned in Section 11 & 12 of the act. The Hon’ble court is of the opinion that as elephant is mentioned in the Schedule I and hence hunting of elephant was prohibited. But the court was also of the opinion that the offences committed under section 429 of the Indian Penal Code & the offences committed under The Wildlife Protection Act, 1972 are different.
 
Tarun Bharat Sangh, Alwar vs. Union of India (1992)[89]: In this case a private voluntary organization filed a PIL in Supreme Court that the Rajasthan Government has issued many licenses for illegal mining activity within the territory of Sariska Tiger Park even after declaring it a sanctuary.  The Hon’ble Supreme the honourable Supreme Court ordered that there should be a committee lead by a retired judge who will look after this matter and there should not be any illegal mining activity in the reserve area.
 
Naveen M. Raheja vs. Union of India (2001)[90]: This is a case regarding ill treatment of tigers at Nandankanan Zoo of Odisha & an incident of skinning an alive tigress at Nehru Zoological Park of Hyderabad. The supreme court asked the Member Secretary of The Central Zoo Authority to take cognizance of these incidents and elucidate that steps need to be taken to take care the captive animals in the zoos also beside wildlife protection and also asked to form proper guidelines and take necessary steps further to prevent this type of incident.
 
N.R. Nair and Ors. vs. Union of India and Ors (2001)[91]: This case before The Supreme court was challenging a decision of Kerala High Court regarding a notification issued by the government under section 22 of The PCA Act 1960 that no one can train or exhibit animals like bears, monkey, tigers, panthers and lions because there can be unnecessary pain and suffering during training of those poor beasts. Kerala High Court was in the favour of the notification; hence it was challenged before the Supreme court. The Supreme court was also with the same opinion keeping in mind the preamble and section 24 of the aforementioned act & dismissed the appeal therefore.
 
People for Ethical Treatment of Animals vs. Union of India (2004)[92]: In this case People for Ethical Treatment of Animals a.k.a. PETA filed a petition at the Bombay High Court against the censorship certification against release of a film ‘Taj Mahal’ accusing that the animals which were used in making of the film were ill-treated which violates Article 51A(g) of the Indian Constitution as well as various provisions of The Prevention of Cruelty to Animals Act 1960 and various sections of Performing Animals Registration Rules 2001. They also suggested that before using any animals in the film, the filmmaker has to take necessary NOC from the AWBI. The High accepted this proposal and ruled in favour of PETA.
 
State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat (2005)[93]: According to section 5 of The Bombay Animal Preservation Act, 1954 allowed slaughter of bulls and bullocks above age 16 years considering economic unbeneficiality of those aged animals. But an amendment introduced in The Bombay Animal Preservation (Gujarat Amendment) Act, 1994 to remove the age bar from the said section 5 meaning a complete ban on slaughter of cow progeny. The petitioner challenged this amendment by referring Article 19(1)(g) of the Indian Constitution which guaranties fundamental right to carry on any business. But the higher court ruled that the protection imposed by the amendment was necessary for securing nation’s economy thus protecting the cow progeny for greater good.  
Gauri Maulekhi vs. Union of India (2010)[94]: Here the petitioner pointed out an important fact the due to the slaughtering of cattle in the famous ‘Gadhimai’ festival, which is considered as the world’s largest animal sacrifice, happens in every five years in bara district of Nepal, huge no of cattle is illegally exported to Nepal from India. The supreme court of India in 2014 ruled that the central government should look in the matter with purview of The Foreign Trade (Development & Regulation) Act, 1992. The court also mentioned the provisions of section 11(3)(e) of the PCA Act, 1960 in this regard and also ruled that no animals can be put through unnecessary pain and suffering for satisfying human desires. The court also in the view of making strict rules and regulations for the animal and cattle market.
 
Animal Welfare Board of India vs. A Nagaraja and Ors. (2014)[95]: In this famous case which a.k.a. The Jallikattu Case, perhaps being the most important animal welfare case in history first started in the year 2004 when South Indian Humanitarian league & Blue Cross of India petitioned to the Petition’s committee of Tamil Nadu State Legislature for imposing a ban on Jallikattu but justice FM Ibrahim Kalifulla allowed to continue Jallikattu[96] mentioning that the organizers of the events should look after that no bull should be harmed. In the year 2006 when the Hon’ble Justice R. Banumathi of Madras High Court first banned Jallikattu event by referring section 11 of the PCA Act, 1960[97]. In 2007 when re-appealed this ban was set aside and jallikattu was again allowed considering bull as a performing animal. But the AWBI took the matter in Supreme Court and the Supreme Court banned Jallikattu but a few months later the same bench allowed Jallikattu once again after hearing the revision filed by the state government. Later the Legislative Assembly of Tamil Nadu enacted Tamil Nadu Regulation of Jallikattu Act, 2009[98] in august 2009, allowing the Jallikattu with including mere conditions like prior permission is necessary from the District Collector etc.  According to this the Supreme Court once again allowed Jallikattu in November 2010 with a clause that all the animals to be used in the event should be registered with AWBI and there must be AWBI representative be present to monitor if there are any ill treatment happening to the animals or not. In July 2011 the ministry of environment and forest has issued a notification declaring bulls should not be deemed as performing animals and therefore restricting training, exhibiting and use in sports which indirectly extending ban on jallikattu again. Again, multiple animal right activists filed multiple petitions and also by PETA and FIAPO. Now the supreme court in May 2014 banned jallikattu again in a landmark judgement and also struck down the Tamil Nadu Regulation of Jallikattu Act, 2009 and also said that the necessary amendments need to be done in The Prevention of Cruelty to Animals Act regarding bulls.
 
Varaaki vs. Union of India and others (2016)[99]: In this case a PIL filed before the Supreme Court of India by a journalist Varaaki seeking ban on animal sacrifice for enjoying religious belief explaining the fact that in normal slaughter houses, the slaughtering done by trained and licensed persons but in case of religious sacrifices the killing is done by the untrained people hence may be causing unnecessary pain and suffering to the poor animals. The supreme court rejected the PIL on the ground that section 28 of the Prevention of Cruelty to Animals Act allows killing of animals in a religious matter.
 
Narayan Dutt Bhatt vs. Union of India & Ors. (2018)[100]: In this case before the Uttarakhand High court, the petitioner brought an urgent matter in front of the court of the movement of Horse driven carts or Tonga between India and Nepal which are unregulated and uncontrolled and the horses are ill-treated and the carts are not licensed and the horses are unvaccinated and sometimes left abandoned on the roads. The Hon’ble justice declared the entire animal kingdom as ‘legal persons’ including avian and aquatic animals also and also ruled that every citizen should be considered in loco parentis of the animals and should protect and take care of the animals.
 
National Green Tribunal …. vs. Ministry of Environment …. (2020)[101]: This case is Suo Motu filed by National Green Tribunal is regarding the Kerala Elephant Tragedy where a pregnant elephant was killed by an inhuman act of keeping explosives in a pineapple which was eaten by the aforesaid elephant and the elephant with her unborn child died on 27th may 2020 due to severe injury caused by the explosion happens in her mouth. The court held different measures to stop this human-elephant conflict.
 
8.    Conclusion & Suggestion
Animal protection in India is gradually decreasing from its former glory of ‘Ahimsa’ during Vedic period and cruelty on animals is increasing day-by-day significantly specially in very recent times (e.g., Kerala Elephant Tragedy). At times, the judiciary finds itself constrained by legal precedents, as seen in cases like Varaaki, while in other instances, the Acts, rules, and regulations in place prove adequate, as exemplified by the PCA Act granting the right of animal sacrifice for religious beliefs, as observed in The KCI 2013 case. Moreover, the persistence of age-old religious traditions involving animal cruelty or instances influenced by political power, such as the Jallikattu case, can also impact legal considerations. The dynamics between legal obligations, established norms, and societal factors contribute to the complex landscape within which judicial decisions are made.
 
The reasons behind that might be we still think animals as our lower than us, we are creating rules, regulations, acts to protect them but somehow, we are doing it for our needs and not for thinking that it is their rights. There is no argument that India is getting behind than other developed countries like UK, Germany, Austria etc., in the matter of Animal and wildlife protection and welfare but we are also ahead of countries like USA, Australia, China etc.
 
If we think practically, we will see that if a situation comes where the conflict of interest is between human and animals, the Human interest will get prioritised for obvious reasons of superiority of humans over animals. Hence, we should not think about ‘right-based approach’ about animal welfare but we should think of some ‘duty-based approach’ for reduction of the legal lacunae.
 
The first step should be that we need to give the animals i.e., the entire animal kingdom including avian or aquatic animals a ‘Quasi Legal Persona’ status and we humans should be looking after them as we do similar to our minors as guardians. All the citizens should be considered as their ‘Loco Parentis’. At least we can give them the status of ‘fellow creature’ or ‘sentient beings’ of us similar like the European nations. This is possible as we have seen that in India also, we are giving ‘personhood’ status to our idols, mosques, and also to corporation, ships, institution etc. who are also no-human legal person and enjoying perpetual succession.
 
The Second Step should be that Prevention of Cruelty to animals needs to be much stricter. Beside considering or recognising only unnecessary pain and suffering or harm, our legislations also need to capture things like unintentional harm due to human negligence, direct or indirect human acts which will cause unnecessary fear or anxiety to animals or interrupts their behavioural freedom, mental harm etc.
 
The Third Step should be that Ground level monitoring of the protection of all animals including farming animals is required. AWBI or NBWL like boards should form ground level small scale teams even from the Panchayat level to do weekly / bi-weekly inspection i.e., inspection on regular interval of the farming animals to see if there are any violations of the animal protection or if there are any cruelty happening or not in their vicinity area.
 
The Fourth Step should be to make a robust upgradation of Wildlife Protection Act and or Prevention of Cruelty to Animals Act and or Constitutional Amendments and or Penal Code and or Criminal Procedure Code so that for inclusion of the below suggested norms like –
 
·         Freedom of movement for animals
·         Recognition of some basic animal rights like right of animals from Hunger and thirst, right to live without fear, right for shelter
·         Implementation of Act or rules and regulation for exposing animals to unnecessary fear or anxiety
·         At-least minimal 1 to 2% of agricultural production should be preserved for animals
·         The penalties related to animal cruelty or wildlife protection by means of monetary & imprisonment are very low in India which has to be increased.
·         Even in the time of religious animal slaughtering Pre-killing stunning of animal is required so that they do not feel pain.
·         Scientifical development of the slaughter houses with electrical stunning process is required.
·         Considerable upgradation of Animal census is required to see the improvement of livestock.
·         We need to think beyond economical value of the animal but we need to give ethical values to them also.
·         Crimes against animals are still not recorded by the National Crime records bureau. A New system has to be implemented for keep records of animal crimes and cruelty.

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[12] Act no X of 1887
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[15] United Province Act no 1 of 1935
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[19] Article 19(1)(a) of The Indian Constitution
[20] Supra note 19
[21] Article 19(1)(b) of The Indian Constitution
[22] Supra note 19
[23] Article 19(1)(c) of The Indian Constitution
[24] Supra note 19
[25] Article 19(1)(e) of The Indian Constitution
[26] Supra note 19
[27] Article 21 of The Indian Constitution
[28] K.M. Chinnappa, T.N. Godavarman … vs Union of India and Ors; (Civil Writ Petition 202 of 1995)
[29] Animal Welfare Board of India vs A. Nagaraja & Ors.; (Civil Appeal No 5387 of 2014)
[30] Article 48 of The Indian Constitution
[31] Supra Note 18
[32] State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat & Ors.; (Civil appeal no 4937-4940 of 1998)
[33] Article 48A of The Indian Constitution
[34] M.C. Mehta vs. Union of India; (AIR 2002 SC 1696) (CNG Vehicles Case)
[35] Sachidananda Pandey vs State of West Bengal & Ors.; (1987 AIR 1109, 1987 SCR (2) 223)
[36] Supra Note 18
[37] Supra Note 18
[38] Article 51A(g) of The Indian Constitution
[39] Article 51A(h) of The Indian Constitution
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[41] Ibid.
[42] Ibid.
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[44] Article 141 of The Indian Constitution
[45] Article 144 of The Indian Constitution
[46] Act no 59 of 1960
[47] Section 9 of The PCA Act, 1960
[48] Section 10 of The PCA Act, 1960
[49] Section 11 of The PCA Act, 1960
[50] Section 3 of The PCA Act, 1960
[51] Section 31 of The PCA Act, 1960
[52] Act No 53 of 1972
[53] Act No 23 of 1982
[54] Act No 29 of 1986
[55] Act No 44 of 1991
[56] Act No 16 of 2003
[57] Act No 39 of 2006
[58] G.S.R. 1074(E), Dated 15th December, 1998
[59] S.O. 134(E), Dated 15th February, 2001
[60] S.O. 1818(E), Dated 23rd October, 2006
[61] Bill No 159 of 2021
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[64] Article 13 of The Treaty on the Functioning of the European Union.
[65] The Austrian Animal Welfare Act 2004 (Amended in 2017)
[66] Ibid.
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[74] Supra note 73
[75] Supra note 73
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[78] Supra note 77
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[81] Nussbaum, Martha C.; “Frontiers of Justice Disability, Nationality, Species Membership”; The Harvard University Press; (2006)
[82] (1917) ILR 41 BOM 654; Criminal Application for Revision No 24 of 1917
[83] (1919) 21 BOMLR 1096
[84] (1936) 38 BOMLR 164
[85] 1958 AIR 731; 1959 SCR 629
[86] Bihar Act no II of 1956
[87] 1979 Cr. L. J 1404
[88] AIR 1989 SC 1
[89] 1992 Supp (2) SCC 448
[90] (2001) 9 SCC 762; 2000 (6) SCALE 574; Writ Petition no 47 of 1998
[91] Civil Appeal Nos. 3609-3620 of 2001; AIR 2001 SC 2337; 2001 (4) SCALE 20; (2001) 6 SCC 84
[92] Writ Petition (PIL) (Lodging) No. 2490 of 2004
[93] (2005) 8 SCC 534
[94] Writ Petition (PIL) No. 77 of 2010
[95] 595 (2014) 7 SCC; Special Leave Petition (Civil) No. 11686 of 2007; Civil Appeal no 5387 of 2014
[96] Haran, B. R.; “Jallikattu fallout and future course of action”; Voice of India; BHARATA BHARATI; Available at:  https://bharatabharati.in/2014/07/04/jallikattu-fallout-and-future-course-of-action-b-r-haran/; Last visited at 15:35 PM IST on 04th September, 2022;
[97] K. Muniasamy Thevar vs. Deputy Superintendent of Police and another; Writ Petition No 2966 of 2006
[98] Tamil Nadu Act No 27 of 2009
[99] Writ Petition (C) No. 689 of 2015, decided on 28th September, 2016
[100] Writ Petition (PIL) No. 43 of 2014
[101] Kerala Elephant Tragedy; Original Application No 77 of 2020 (SZ)

Article Information

EFFECTIVENESS OF LEGAL FRAMEWORK AND JURISPRUDENTIAL APPROACH TO ANIMAL PROTECTION IN INDIA: AN INTERNATIONAL PERSPECTIVE

Authors: DEBJANI OJHA

  • Journal IJLRA
  • ISSN 2582-6433
  • Published 2023/12/16
  • Issue 7
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