Abstract
The Indian ancient religions like Hinduism, Buddhism, and Jainism are based on the ancient Indian principle of ‘Ahimsa’ which means non-violence. Mahatma Gandhi used it to fight against the British raj to get independence from them. The same concept is reflected in our Constitution. Articles 48 and 48-A of Indian Constitution impose a duty upon the state to protect and improve the environment. In M.C. Mehta v. Kamal Nath, court developed the “doctrine of public trust.” Similarly, the court observed that the citizens of India must be sympathetic to all living beings as per our constitution it is a fundamental duty of Indian citizen’s under part 1V- A of Indian constitution; The Chipko movement is a good example of this.
In the Landmark case of Animal welfare board of India v. A. Nagaraja & others, the doctrine of parents patriae were evolved by the court, the court took the responsibility of animals upon themselves as they cannot do so by themselves. Usually, animals do not acquire legal personality; however, the Indian judiciary through its judicial activism provided some legal entities to animals. They interpreted the term ‘life’ used in article 21 and provided it with a wider meaning of the right to life.
Under the concurrent list of seventh schedule of constitution contains protection of wildlife and birds and to prevent the cruelty to animals. The apex court of India through various judgements tried to balance or harmonize between animal rights and human rights such as in Jallikattu case, the ivory traders case, Abdul Hakim v. State of Bihar, etc. The Indian legislature makes laws to protect and preserve animal rights. The Wildlife (Protection) Act, 1972, and the Prevention of Cruelty to Animals Act, 1960 Play an important role in the promotion of Animal welfare in India.
This paper will explore how the Indian Constitution is protecting animal welfare in India.
Keywords
Judiciary, judicial activism, animal rights, legal personality, and human rights.
Introduction
Constitutional provisions and Legislative framework
Article 51A(g) and 48A impose the duty on both the state and the citizens to protect and conserve the environment and wildlife of our country. The Indian legislature makes several laws to promote animal welfare such as prevention of cruelty to animals act, 1960, and the Animal Welfare board of India was also established under it. Wildlife (Protection) act , 1972 was enacted, and by 42nd constitutional amendment act,1976, article 51A (g) and 48A were included in the constitution. Nevertheless, Indian judiciary plays the most important role in the promotion of Animal welfare through their judicial activism.
In welfare board of India v. A. Nagaraja & others, court interpreted the word ‘life’ used in the article 21 of the constitution of India. The word ‘life’ was given an expanded definition; “it not only includes the human life but also includes all forms of life, including animal life which are necessary for human existence falls within the meaning of article 21”.
The Supreme court in T.N. Godavarman Thirumulpad v. Union of India stated that article 51A (g) puts duty on the citizens, and Article 48A puts duty on the state to protect and improve the environment and to safeguard the forest and wildlife of the country. In Abdul Hakim v. State of Bihar, the complete ban on slaughter of cows and buffaloes imposed via states of Bihar, U.P, and Madhya Pradesh was declared partially valid. The Court observed that each individual statute should go through the test of reasonableness. Article 48A is the discharge of state’s obligation, and Article 19(1)(g) is the right of the individual, so with the help of test of the reasonableness, the court held that “prohibition on the slaughter of buffaloes, breeding bulls, or working bullocks as long as they are milch or draught cattle is reasonable and valid, but a total ban on the slaughter of buffaloes, bulls, and bullocks after they ceases to be capable of fielding draught animals cannot be supported as reasonable in the interest of the general public”. The Supreme court also clarified that whenever there is a clash between fundamental rights and directive principles of state policy, an attempt must be made to harmonize between them, but if not possible, then the larger public interest will be preferred.
Research Methodology
The research Methodology used in this research paper is based on the secondary data collection from various online sources such as websites, articles, and research papers, including newspapers and statutes.
A descriptive method is used in this paper to explore the background of animal welfare in India, how the Indian culture which promotes the concept of ‘Ahimsa’ and how the Indian Constitution adopted this concept in our constitution to put into effect.
After scrutinizing all the sources of secondary data and by the help of descriptive methods, a comprehensive overview of Animal welfare in India is provided in this paper.
Review of literature
Peter Albert David Singer, the father of animal rights in the contemporary world, in his book “Animal Liberation” stated that animals also have rights as humans , no animal should be used and exploited by humankind because they also bear some natural rights. India is a religious nation where religions like Hinduism, Buddhism, and Jainism disavow the animal sacrifice and suffering. However , Hinduism allows animal sacrifice in some cases, but Buddhism and Jainism emphasize vegetarianism and kindness to all living beings. This concept of kindness is preserved by our constitution and judiciary. The Prevention of cruelty to animals act, 1960, Wildlife Protection act, 1972, section 428 of the Indian Penal Code, and Concurrent list of the Constitution of India are some other ways through which animal rights in India is protected.
Anthropocentric vs. Eco-centric perspective
In Environmental law, world wide fund of India v. Union of India, the Supreme Court discussed the Anthropocentric v. Eco-centric concept in respect of protection of nature and wildlife, in light of sustainable development. Sustainable development is based on an Anthropocentric approach. It is least concerned about other species. Anthropocentrism forms that humans alone possess intrinsic value whereas Eco-centrism is a nature centered where humans are a part of nature and non-humans have intrinsic value. Therefore, Eco-centric is life centered where both human and non-human are part of nature. Supreme Court supported Eco-centric approach in place of anthropocentric approach as article 21 of the constitution of India protects not only human life but also the animal life.
In Narayan Dutt Bhatt v. Union of India, the court stated that “the entire animal kingdom including avian and aquatic are declared as legal entities having a distinct persona with corresponding rights, duties, and liabilities of a living person”. The Court recognized the animals’ right to dignity and fair treatment under article 21. “Even keeping birds in cage is illegal confinement of the birds, infringes their right to live in free air and sky”.
Evolution of animal welfare in India
Historical context and Legislative developments
In 1824, a society for the prevention of cruelty to animals was established in England to prevent the abuse of carriage horses. At that time, technology was not advanced and animals were the only source of transportation. Horses were the main source of transportation.. The carriage drivers did not take care of their health; they just used them to make money, forcing horses to work the whole day and in bad weather as well, without proper food, water, or rest. With the help of the SPCA, the business of carriage horses was regulated by making laws. Thereafter, the SPCA was expanded to include dogs and other animals as well. In 1861, Colesworthy established the Indian Society for the prevention of cruelty to animals (SPCA). The reasoning behind setting up the SPCA in India was to regulate the Britishers from using stray animals for experimentation.
After Independence, the prevention of cruelty to Animals Act, 1960 was enacted and by virtue of its section 38(1), the prevention of cruelty to animals (Establishment and Regulation of societies for prevention of cruelty to animals) Rules, 2001 was enacted. Its objective was to establish such a society in every district of India,and an Animal Welfare board of India was established in 1962, which plays a crucial role in providing Animal welfare, policy drafting, and legal proceedings related to animal rights. In 1972, a wildlife protection act of 1972 was enacted to protect endangered species by banning hunting, restricting wildlife trade, and provide them a legal protection.
In 2011, a draft of animal welfare act, 2011 was prepared by the animal welfare board of India to repeal the prevention of cruelty to animals act, 1960. The main objective was to increase penalties and broaden the definition of animal abuse; however, it still needs approval from parliament.
Accordingly, in 2016, a new bill was drafted by the animal welfare board of India, namely, the prevention of cruelty to animals amendment bill, 2016. Unfortunately, this bill is also pending approval from parliament. However, various rules have been enacted to protect animal rights under this act:
Notable rules and regulations –
Draught and pack animals rules , 1965
This rule deals with the animals who are used to carry loads, they are known as pack animals. This rule was made to protect packing animals from unnecessary pain and overwork. Animals such as camels, horses, bulls, etc. are used as carrying loads. They are made to work in inhuman condition sometimes, without proper food, water and rest they work in the chilly winter’s and boiling summers. Therefore, some rules made to provide them humane working condition .
Performing animals rules, 1973
Performing animals such as monkeys, lions, bears, etc. Are used in the circus or sometime on the road show. The owner of these performing animals sometimes use torture to made them perform. In Indian circus federation v. Union of India, court banned the bears, tigers, Panthers monkeys and dog exhibition or as performing animals. In Animal welfare board of India v. A. Nagaraja case a guideline came on performing animals.
Transport of animals rules , 1978
This rule deals with the transportation of animals should be humane. In 2001 it was amended. It issues some guidelines for the transportation of pregnant animals, with bad health, new born, etc.
Slaughter house rules ,2001
According to this rule no one can do slaughter without the license of FSSAI and a health certificate of the animal must be issued and no slaughter house can slaughter a new born, animals under three months and pregnant animal. The slaughter must be quick and cause into death, no pain should be effected on them.
Animal birth control (dog) rules, 2001
In 2001, Animal birth control (dog) rules, 2001 was made to control the population of dogs. However, it was not very effective and had some provisions which are against the animal rights, therefore in 2023, the Ministry of fisheries, animal husbandry & dairying has issued a new rule namely, Animal birth control rules, 2023. It was issued under the prevention of cruelty to animals act,1960 instead of Animal birth control (dog) rules, 2001. This is made to sterilization and immunization of stray dogs from rabies. As supreme court ordered that “relocation of dogs cannot be permitted it is a cruelty to dogs.”
Cases highlighting concern towards animal rights
Some Landmark Judicial decisions are:
•Tarun Bharat sangh, Alwar v. Union of India
Facts: Tarun Bharat sangh is a non-profit organization for environmental protection. They filed a PIL under article 32, complaining about illegal mining activities which is taking place in an area which is a tiger reserve. The Rajasthan government have declared it a protected area under the Rajasthan wildlife animal and birds protection act, 1951 as a sanctuary and a national park under wildlife ( Protection) act , 1972 and it is also a protected forest under the Rajasthan forest act, 1953. Government of Rajasthan is providing them license to do mining activities there.
When this petition was filed court constituted a committee to investigate on that matter and makes report. The investigation committee was formed under the chairmanship of Justice M L Jain; therefore it is known as Justice M. L. Jain committee. It reported that 215 mines are completely under the protected forest and 47 mines are partially inside and partially outside the protection forest.
Held: Court held that all mining activities under the protected forest mentioned under appendix A to committee be stopped immediately and other 47 mines which are mentioned under Appendix B also immediately stop the mining to the extent the mines were inside the protected forest, however, that mine which is falling outside the protected forest can continue the mining for four months and within these four months the owner of mining have to take permission of central government.
•M/S Ivory traders manufacturers v. Union of India
Fact: Indian legislature passed an amendment act in 1991 namely, wildlife (Protection) amendment act, 1991 in which it banned the trade of ivory in India. The petitioner challenged the amendment. They claimed that this act violates their article 14 and article 19(1)(g).
Held: court observed that this act is not unconstitutional. The impugned legislation falls within the power of the parliament as under article 48A of Constitution of India which empowers the state to make any law to protect and safeguard the environment and wildlife of country and through this amendment act state is protecting the Indian elephants.
•Narahari Jagdish Kumar v. State of Andhra Pradesh, 2016 ( Cock Fighting case)
Facts: Animal rescue organization, Kakinada and other filed PIL against the state of Andhra Pradesh for not taking action to implement the prevention of cruelty to animals act,1960. In Andhra Pradesh gaming act, 1974 cock- fighting with gambling , betting and selling illicit liquor was allowed during the Sankranti festival. Which includes cruelty against animals and birds. Cock fighting violates the section 3, 11, and 28 of the PCA act, 1960 and Article 21 of the constitution.
Held: Supreme court observed that cock fight not only violates the section 3, 11 and 28 and Article 21 of the constitution but also violating the article 51A (h) and (g) of the constitution. Article 51A (h) and (g) is the fundamental duty of the citizens of India to protect and have compassion towards all living creatures.
•Jallikattu case
In 2006 an appeal was made to ban the ‘jallikattu’, a traditional sport of Tamil Nadu, on the occasion of Pongal the Men’s of Tamil Nadu plays this sport. Petitioners challenged it on the ground that it is violating section 3 and 11(a) of the prevention of cruelty to animals act, 1960 and the Article 51A(g) and 48A of the constitution of India. But before court pass any judgement the central government released a notification in which they included the bulls in the category of prohibited animals for performing or training for entertainment. Accordingly, supreme court in 2014 passed their judgement on this case. They completely banned ‘ Jallikattu’ and other sports like kambala and bailgada sharyat. Court observed that animals rights are more important than the culture of any state.
However, in 2017 the Tamil Nadu Government to nullify the supreme court’s decision pass a law namely, prevention of cruelty to animals (Tamil Nadu amendment) act, 2017. It’s section 3(2) permitted the ‘Jallikattu’ and introduce the guidelines to govern it.
Once again this issue was raised in the supreme court. The supporters of ‘jallikattu’ pleaded that it is a part of their culture and it is protected under article 29(1) of constitution. It’s final verdict came in 2023.
Held : court upheld the validity of prevention of cruelty to animals ( Tamil Nadu amendment) act,2017. However, stated that the disputed issue is still not solved. Supreme court put that duty on the parliament to make any law regarding it.
•Great Indian Bustard case
On 21 March, Supreme court observed that ‘ right against the adverse effects of climate change ‘ is a part of article 21 and 14 of Indian constitution.
A writ petition was filed by the Ranjitsinh, a retired government official who shows his concern the decreasing number of Great Indian Bustard. In 2021 court had delivered some directions to the government for setting up transmission lines in Rajasthan in which they restricted the setting up of transmission lines nearby conservation areas for the Great Indian Bustard. However, it was not as effective and government was not paying attention to the adverse effects of climate change on both humans and animals.
Hence, Supreme Court widen the scope of article 21 and 14 by including a new right under it. The Apex court observed that environmental – related aspects which is a part of directive principles of state policy have to be read together with the right to life and personal liberty that is article 21.
Suggestions
India is a member of Universal declaration on Animal welfare(UDAW), therefore, they tried to put into effect the objective of UDAW in India. An Animal welfare board of India was set up for the implementation of UDAW and by the 42nd constitutional amendment act of 1976, Art. 48A and Art. 51A(g) and (h) was inserted in the constitution of India and various statutes made to protect the animals and provide them more rights, however, we are still lacking for supplying animal welfare in our country. In India many stray dogs and cats are prone to the animal abuse. They are inhumanly left without food, shelter and water. Many animals who are used for meat they are slaughter in brutal manner, still halal meat is not prohibited in India. Indian legislative measures are still inefficient, India need an effective measures to ensure Animal rights in our country.
Conclusion
The concept of animal welfare in India is not a new conception, in our country religions like Hinduism, Buddhism, and Jainism always ensures the “Ahimsa” which promotes non-violence. The same notion carried by the Indian Constitution under Art. 48A and Art. 51A(g) of the constitution of India. On the one hand Prevention of cruelty to animals act, 1960 and Wildlife Protection act, 1972 are legislative measures which accompanied the constitution of India and on the other hand our judiciary plays vital role in preservation and promotion of Animal welfare.
The efforts which our judiciary is putting in the field of animal welfare can be track down from their recent judgements. In the case of Great Indian Bustard, Supreme court created a new right in our fundamental rights. They observed that right to life is nothing without a clean environment in which both human and animal lead happy and healthy life.
“The basis of all animal rights should be the Golden rule – we should treat them as we would wish them to treat us were any other species in our dominant position” – Christine Stevens
References
Sweta Pathak
S.S. Khanna Girls’ Degree College, Prayagraj