Open Access Research Article
ANIMAL PROTECTION: A STUDY OF A RIGHTS-DUTIES BASED APPROACH.
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Article Details
ANIMAL
PROTECTION: A STUDY OF A RIGHTS-DUTIES BASED APPROACH.
AUTHORED BY
- ASHISH MATHALY,
TIA SIKKA
& MIHIR N SINGH
Abstract:
For years on end, animals have been
mistreated, exploited, and deliberately harmed by humans for sadistic and
economic pleasure and humans have remained unscathed or paid negligible
penalties for the same. Such instances highlight the ineffectual nature of the
legislation in our country. The protection of animals is a fundamental duty of
citizens which is enshrined in the constitution of India under Article 51A (g).
People enjoy the fundamental rights vested to them to the fullest to live a
dignified life that has legal backing. In contrast, duties imposed in the
Constitution are not enforceable in a court of law. Despite numerous
legislations that impose a legal duty on the people for the protection of
animals, cruelty remains prevalent in many forms and the implementation
continues to fall short. This inadequacy places animals in a vulnerable
position, defeating the legislation's purpose.
The moral standing of animals in
society should derive itself from the egalitarian principle of having equal
rights. The existence of these animals is fundamentally dependent on humans
through subjugation and requires the understanding of the common good of
interrelated species. This paper aims to conceptualize the legal position for a
right-based statutory provision and provide a more stringent framework for the
welfare of animals. The research attempts to scrutinise efficient methods for
effective law enforcement which is formulated by the adoption of a doctrinal
method of study. The research inculcates a solution-based approach to enhance
animal rights that are to be accorded in a way that ensures animals get to live
a dignified and peaceful life.
KEYWORDS: Animal Rights, fundamental
duty, stringent framework, law enforcement & legal backing.
Introduction
“The greatness of a
nation and its moral progress can be judged by the way its animals are
treated”. – Mahatma Gandhi
The constitution of India under Article 51A (g) places
duties on the citizens of India to preserve and safeguard animals. This duty of
the people also inculcates improving the general habitat, including forests,
lakes, rivers, and forest wildlife. This list is not exhaustive and describes
the rights of domesticated animals and pets. The Prevention of Cruelty To
Animals Act, 1960, under section 11 states that:
“(1) If any person? (a) beats, kicks, over-rides, over-drives, over-loads,
tortures or otherwise treats any animal so as to subject it to unnecessary pain
or suffering or causes or, being the owner permits, any animal to be so
treated; or
(b) 1 [employs in any work or labour or for any purpose any animal which,
by reason of its age or any disease], infirmity, wound, sore or other cause, is
unfit to be so employed or, being the owner, permits any such unfit animal to
be so employed; or
(c) wilfully and unreasonably administers any injurious drug or injurious
substance to 2 [any animal] or wilfully and unreasonably causes or attempts to
cause any such drug or substance to be taken by 2 [any animal]; or
(d) conveys or carries, whether in
or upon any vehicle or not, any animal in such a manner or position as to
subject it to unnecessary pain or suffering; or
(e) keeps or confines any animal in any cage or other receptacle which
does not measure sufficiently in height, length and breadth to permit the
animal a reasonable opportunity for movement; or
(f) keeps for an unreasonable time any animal chained or tethered upon an
unreasonably short or unreasonably heavy chain or cord; or
(g) being the owner, neglects to exercise or cause to be exercised
reasonably any dog habitually chained up or kept in close confinement; or
(h) being the owner of 3 [any
animal] fails to provide such animal with sufficient food, drink or shelter; or
(i) without reasonable cause,
abandons any animal in circumstances which render it likely that it will suffer
pain by reason of starvation or thirst; or
(j) wilfully permits any animal,
of which he is the owner, to go at large in any street while the animal is
affected with contagious or infectious disease or, without reasonable excuse
permits any diseased or disabled animal, of which he is the owner, to die in
any street; or
(k) offers for sale or, without
reasonable cause, has in his possession any animal which is suffering pain by
reason of mutilation, starvation, thirst, overcrowding or other ill-treatment;
or
[(l) Mutilates any animal or kills any animal (including stray dogs) by
using the method of strychnine injections in the heart or in any other
unnecessarily cruel manner; or],
[(m) solely with a view to providing entertainment— (i) confines or
causes to be confined any animal (including tying of an animal as a bait in a
tiger or other sanctuary) so as to make it an object of prey for any other
animal; or (ii) incites any animal to fight or bait any other animal; or]
(n) 3 *** organises, keeps, uses
or acts in the management of, any place for animal fighting or for the purpose
of baiting any animal or permits or offers any place to be so used or receives
money for the admission of any other person to any place kept or used for any
such purposes; or
(o) promotes or takes part in any
shooting match or competition wherein animals are released from captivity for
the purpose of such shooting; he shall be punishable.”[1]
despite such a vast definition of
animal cruelty cases of the same continue to occur and go unnoticed. Various
states define animal cruelty differently but a general perspective of the same
includes three types of forms that exist, which are:
Hoarding: hoarding typically refers
to the excessive collection of goods, in this case, animals, and ill-treatment
of these animals. This occurs when the owner is unable to provide minimal
standards of care and nutrition, which also inculcates sanitation, shelter, and
veterinary care for the animals.
Neglect: the owner's basic duty is to
provide adequate food and water for these animals and give shelter if they are
to possess them. Neglect by the owner is the most common kind of cruelty due to
the substandard living conditions of these animals.
Physical abuse: physical abuse is the
physical act of causing harm, pain, and suffering, in some cases even death.
Abusive behaviour incorporates kicking, beating, dragging, drowning, stabbing,
throwing, hanging, stomping, mutilating, burning as well as choking. It may
also comprise vaginal or anal penetration, or ligature or lacerations to the
animals' genitalia.
The annual report of the Department
of Animal Husbandry and Dairying Ministry of Fisheries, Animal Husbandry, and
Dairying Government of India states the following:
“Cruelty matters and action taken on the complaints: The Board has
received many complaints regarding cruelty to animals from various parts of the
country and the same were forwarded to the concerned officers of the State
Governments, District Collectors / Magistrates / District Superintendent of
Police for conducting an enquiry and forwarding action taken report on the
complaints. During the year 2022-23, the Board has issued 970 nos. of letters
to the concerned law enforcement authorities for taking necessary action”
While the central government is
taking action for the betterment of these animals, law enforcement in the form
of District Collectors / Magistrates / District Superintendent of Police, the
welfare of animal legislation is routinely underenforced. There are less
obvious constitutional implications, that undermine the concept of the rule of
law. This is a constitutional problem that requires immediate attention.
As aforementioned Article 51(A) (g)
of the constitution makes it our fundamental duty to protect the animals.
Further Article 48A, a directive principle of state policy also obligates the
state itself to protect the animals and provide them with a basic humane
environment to live in. This paper attempts to highlight the Constitutional
aspects of animal welfare in India and introduce a rights-oriented/ based
statute or amendments that retain the duties of the citizens of the country and
similarly the duties of the state under directive principles of state policy.
The Problem: Why a Duties-Based Approach
Falls Short in Securing Animal Rights
India, a land known for its rich
biodiversity and cultural reverence for animals, grapples with a harsh reality
– rampant animal cruelty. From neglect on the streets to intentional abuse,
countless animals suffer every day. While legislation exists to deter such
acts, a crucial question arises: are the current penalties in the Bharatiya
Nyaya Sanhita (BNS) and the Animal Protection Act (APA) effective deterrents?
Section 291 of the BNS deals with
"negligent conduct with respect to animals."[2]
Herein lies the first limitation. The term "neglect" suggests a
passive act of omission, not encompassing deliberate cruelty. This restricts
the BNS's reach to address the full spectrum of animal abuse.
Furthermore, the penalties outlined
in Section 291 are underwhelming. The maximum punishment is a mere six months
imprisonment, a fine, or both. This
leniency weakens the deterrent effect. A
six-month sentence hardly seems a significant consequence for inflicting pain
and suffering on a sentient being.[3] It
fails to reflect the seriousness of the crime or act as a strong disincentive.
The limitations of these penalties
become apparent when considering the challenges in enforcement. Resource
constraints within law enforcement agencies and a lack of clear guidelines for
animal cruelty investigations hinder effective action. Additionally, potential
corruption within the system further weakens enforcement. This weak deterrent
effect is concerning. Lenient penalties trivialize the seriousness of animal
cruelty. Cases of beatings, starvation, and deliberate harm become mere
misdemeanors with negligible consequences. The message sent is disheartening:
harming animals doesn't come with a significant price tag.
Proponents of stricter penalties
argue that harsher punishments could be a stronger deterrent. Increased jail
time and substantial fines might make individuals think twice before abusing
animals. Additionally, more significant penalties could serve as a symbolic
gesture, reflecting the gravity of these crimes and demonstrating the state's
commitment to animal welfare. However, focusing solely on penalties presents a
limited view. A multi-pronged approach
is crucial.
Firstly, strengthening enforcement
mechanisms is essential. This includes adequate resource allocation for animal
welfare units within law enforcement agencies, specialized training for
officers handling animal cruelty cases, and clear protocols for investigation
and prosecution. Secondly, public education campaigns play a vital role.
Educating the public about animal rights and the existing laws empowers them to
report cruelty and increases societal pressure against such acts.
Looking beyond India, case studies
from other countries offer insights. Countries like Germany and the United
Kingdom have implemented stricter penalties for animal cruelty, often coupled
with public awareness campaigns. While establishing a definitive
cause-and-effect relationship is complex, these countries have seen a decrease
in reported animal cruelty cases.
While strengthening penalties in the
BNS and APA could be a step forward, it's just one piece of the puzzle. India needs a comprehensive strategy that
combines stronger penalties with improved enforcement and public education
efforts. Only then can the nation indeed deter animal cruelty and ensure a
future where respect for all living beings takes root.
The Indian legal landscape regarding
animal rights presents a fascinating interplay between constitutional
principles, statutory frameworks, and judicial pronouncements. While the
Constitution of India doesn't explicitly grant animals fundamental rights, it
does establish a foundation for their welfare through duties and directives.
Through this paper, we explore the enforceability of animal welfare laws in
India from a constitutional law perspective, exploring the limitations of the
duty argument and the potential of a rights-based approach.
At its core, the rights-based
approach recognizes animals as sentient beings with intrinsic value,
independent of their usefulness to humans. This challenges the traditional view
of animals as mere property or resources. Animals gain moral standing,
deserving respect and protection simply for who they are.
Rights shift the conversation from what
humans shouldn't do (duties) to what animals deserve (rights). The focus moves
to consider animal interests – their capacity to feel pain, fear, and desire
for a fulfilling life. This reframing leads to stronger legal protections
against practices that inflict unnecessary suffering. Rights provide a legal
framework for holding violators accountable. When animals have legal rights,
harming them becomes a crime, not just a moral failing. This empowers legal
action against animal cruelty and exploitation in industries like factory
farming, research labs, and entertainment.
While a duties-based approach can
improve animal welfare practices, it has vital limitations. Defining what
constitutes a "duty" can be subjective and open to interpretation.
This ambiguity weakens legal arguments and enforcement. Additionally, duties
are often framed as human obligations towards animals, reinforcing the notion
that animals deserve care only because of a human-centric moral framework.
The Constitutional Framework-
The Indian Constitution sets the
stage for animal welfare through two key provisions, the first being Article
51A(g), which talks about fundamental duties that mandate every citizen to
"protect and improve the natural environment including forests, lakes, rivers,
and wildlife, and to have compassion for all living creatures."[4]
This provision establishes a moral obligation towards animal welfare, but its
enforceability as a stand-alone duty remains limited. Secondly Article 48A,
this Directive Principle of State Policy directs the state to "endeavour
to protect and improve the environment and to safeguard the forests and
wildlife of the country." This provision imposes a positive obligation on
the state to enact and enforce laws for animal protection.
The Duty Argument and its
Limitations-
India's Prevention of Cruelty to
Animals (PCA) Act, the primary animal welfare legislation, relies on the duty
argument. While this criminalizes cruelty, it faces limitations. The Act's
scope focuses narrowly on deliberate cruelty, neglecting the suffering inherent
in practices like intensive farming. Additionally, vague terms like
"adequate food" create loopholes and inconsistent enforcement.
Finally, weak penalties like fines make violations a cheap price to pay. These
limitations highlight the need for a broader approach. Expanding the Act's
scope, defining terms objectively, increasing penalties, and recognizing
inherent animal value could strengthen animal welfare protections in India.
The limitations of the duty argument
in animal welfare law call for a rights-based approach. This framework elevates
animals from subjects with needs to rights holders. Recognizing their inherent
rights could lead to stricter legal protections and more robust enforcement
mechanisms. India's judiciary offers a
promising glimpse into this potential. Landmark judgments have interpreted
existing laws to promote animal welfare, acknowledging animal dignity and
expanding the scope of the PCA Act. This willingness to evolve legal
interpretations suggests a rights-based approach could be a powerful tool for
strengthening animal welfare protections in India.
Indian legal scholars have actively
debated the role of animal rights in the legal landscape. "The Constitutional Scheme of Animal
Rights in India" by the Animal Legal & Historical Center explores how
the right to life under Article 21, interpreted expansively, could encompass
the right to life and security of animals, subject to reasonable restrictions.[5]
This approach suggests that existing constitutional principles can be leveraged
to advance animal rights. Implementing a rights-based approach for animals in
India will not be without challenges. Balancing animal rights with legitimate
human interests requires a nuanced approach.
Shifting societal attitudes will require sustained public education and
discourse.
However, these challenges can be
overcome through a collaborative effort involving the legislature, judiciary,
and civil society. By recognizing animal rights, India can ensure a legal
framework that truly upholds all creatures' inherent dignity and well-being.
This aligns with the nation's rich cultural heritage and constitutional values.
By strengthening legislation, encouraging judicial activism, and promoting
public awareness, India can take its rightful place as a leader in the global
movement for animal rights.
THE WAY FORWARD:
There are many legislations that are
prevailing in India that are to be looked upon. The Wildlife protection act,
1972, the prevention of cruelty towards animals, 1960 and many more act as a
backbone of animal jurisprudence wherein they tend to imposes certain duty on
the people to protect the animals. Animals like dogs are considered as human’s
best friend, horses are used for sporting events, elephants and Cows are
considered as holy animals but why humans tend to give more thought and
attention when a person is a victim to an attrocious act but
animals in the past have been a victim to an atrocious act too. The
recent legislations like the Bharatiya Nyaya Sanhita, 2024 that is yet to be
enforced has specified under Section 291 that any animal that is being taken
care of or has the possession of the animal attacks any person will be held
responsible. (elaborate)
The question underlying with this
problem is the laws that have been legislated in the past, in fact the recent
past, in a way leads to deterioration of
animal’s life. The fundamental duties and directive principles of State policy
as mentioned under Article 48A and Article 51A(g) tend to impose unenforceable
duty on the state and the people of India to protect and preserve the animal
species in India. The recent judgement on the Jalikattu case in 2023 has
overturned the 2014 judgement wherein it has overruled the previous decision
and has upheld the Tamil Nadu legislation that allows the practice of jalikattu
that includes bulls in a religious activities. The right to religion are
prioritised over the lives of the animal.
The way forward and to ensure
reducing the derogation of animal rights is to ensure that there is an
amendment in the existing laws and to accord legal personality to animals. In
the ancient past there have been many
instances wherein the animals are held responsible for their acts and the
crimes that have been committed. This paper aims at providing both rights and
duties to be accorded to animals and place strict duty on the people who
possess the animals. Duty has to be imposed on
the municipality board in cases of stray animals so the forest
authorities in cases of forest animals. The unborn children in India are
accorded with legal personality wherein the abortion laws come into play, the
unborn child is accorded with basic rights like right to life and possess will
rights such as possessing property rights through a will. These rights that are
accorded to unborn child and places duties on the guardians to ensure their rights
are not violated and are legal representatives for their unborn child.
Similarly the animals are to be accorded with rights and the duties to be
placed on the guardians or the appropriate authorities. Animals should be
accorded with basic rights such as right to life, right to legal remedy and
right to move around across the country freely. Anyhow reasonable restrictions
are to be placed like the humans which will ensure in reducing the ongoing
cruelty against animals. The animals are to be advocated accordingly and should
be produced before the courts for instances wherein they’re mistreated or have
been held liable for cruel acts.
The ultimate objective for animals is
to get the greatest position possible, regardless of whether one is a staunch
advocate for animal rights or favours the welfare status of animals. Some
advocates who have spoken out in favour of giving animals more status contend
that the rights-welfare controversy is unimportant since the two approaches are
not inherently mutually exclusive. They contend that supporting the outright
elimination of animal usage, or at the very least a significant decrease in it,
is neither unclear or inconsistent. On the other side, a social movement
centred on animal ethics may promote both animal care and animal rights
simultaneously.[6]
As Justice Kaul stated precisely,
"Law needs to evolve with time. “It is evident that the restrictions now
in effect are out of date. People who profit millions of rupees or even crores
from the sale of animal carcasses or their offspring do not seem to be deterred
by fines of 250, 2100, or even 21000. Both vegetation and animals are reported
to be abundant in India. However, it looks like we could lose both soon. Humans
are destroying the plant kingdom in the name of progress. The idea of
sustainable development is completely ignored. This will have a devastating
effect on the animal kingdom. However, people frequently overlook the fact that
we cause their homes to be destroyed. We bear accountability. We have depleted
every last one of our finite non-renewable resources in the sake of
advancement. Everyone talks when it comes to protecting the environment, but
when it comes time to make changes, like being more energy efficient, everyone
has an explanation. Don't fix what isn't broken, from the inane stage to not
having the money. [7]However,
one must acknowledge that animals do not understand human language; if they
could, their voices would be heard at these summits. They would be able to
explain how, in order to satisfy their own egotistical demands, humans have
tragically ruined their natural home. Therefore, it is acknowledged that
rescuing animals may be the first step towards mending the environment. Animals
must be rescued if we want to bring back the environment to its ideal state.
But, this cannot be accomplished by haphazardly applying antiquated
legislation. Complete effort is expected in this regard.
The legal status that has been
accorded to animals in India is indeed unsatisfactory and disheartening, it’s
high time that we take stringent steps and impose higher punishments and
penalties for violation of the animal rights. Merely imposing Rs.500 to Rs.5000
fine and letting these criminals that have committed a crime against the
animals scot-free. Through this paper we seek offences against animals to be
non bailable and to have a minimum of 5 years of imprisonment and to ensure the
implementation of these rights are effective and efficient.
Conclusion:
To conclude the same, the aim of this
paper remains to orient the legal system towards a rights based approach in
order to protect animals. This has been established through various means in
the paper. It is rather similar to the process of that of an unborn child and
the protection accorded to them by their legal guardians. By acknowledging the
intrinsic worth of animals and their capacity to feel pain and suffering, we
can move towards a more ethical and compassionate future. Through individual
choices and collective action, we can advocate for stronger animal welfare
protections and impose a larger duty on the government to advocate for
them. The current legal framework in
India is built upon the notion of animals as property, which falls short of
safeguarding their well-being. Acts like the PCA, 1960, lacks enforcement.
Granting legal personhood would elevate their status allowing them to be
represented in courts and have their rights enforced.
Bibliography:
1. Ashish
Sharma, Laws and Judicial Contribution for Animal Rights in India, 5 Issue 1
Indian J.L. & Legal Rsch. 1 (2023).
2. Margarida
Narciso & Yassir Ahmed, Animal Rights, 1 Ct. Uncourt 14 (2014).
3. The Story
of ‘Cruelty to Animals’ cases in India - Lack of Data & Minimal Penalties, https://factly.in/the-story-of-cruelty-to-animals-cases-in-india-lack-of-data-minimal-penalties/
(last visited Oct 8, 2023).
4. Hariom
Tiwari, Sanjeevani Sethi & Vedanti Gharat, Regulations Governing Animal
Rights in India, 3 Indian J. Integrated Rsch. L. 1 (2023).
5. Legal
Thirst, Exploring the Conflict between Animal Cruelty and Religious Sacrifice,
Legal Thirst (Mar. 19, 2023), https://legalthirst.com/exploring-the-conflict-between-animal-cruelty-and-religious-sacrifice/
(last visited Oct 20, 2023).
6. Tarunya S.,
Jurisprudence of Animal Rights: Present Day Relevance and Application in India,
5 Issue 1 Indian J.L. & Legal Rsch. 1 (2023).
[1] Prevention of Cruelty to Animals
Act, 1960, Section 11.
[3] Martha Nussbaum (2003)
CAPABILITIES AS FUNDAMENTAL ENTITLEMENTS: SEN AND SOCIAL JUSTICE, Feminist
Economics, 9:2-3, 33-59
[5] Margarida Narciso & Yassir
Ahmed, Animal Rights, 1 Ct. Uncourt
14 (2014).
[6] Ashish Sharma, Laws and
Judicial Contribution for Animal Rights in India, 5 Issue 1 Indian J.L. & Legal Rsch. 1
(2023).
[7] Hariom Tiwari, Sanjeevani Sethi
& Vedanti Gharat, Regulations Governing Animal Rights in India, 3 Indian J. Integrated Rsch. L. 1 (2023).
Article Information
ANIMAL PROTECTION: A STUDY OF A RIGHTS-DUTIES BASED APPROACH.
Authors: ASHISH MATHALY, TIA SIKKA, MIHIR N SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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