Ayushi Budholia
Published on: 12 August 2022 at 11:27 IST
Introduction
India, known as the ‘largest democracy’ in the world, also has the title of being one of the ‘megadiverse countries’ among the 195 countries. It accounts for 7-8% of the species of the world, including about 91,000 species of animals and 45,000 species of plants. Of these animal species, 12.6% of mammals, 4.5% of birds, 45.8% of reptiles, 55.8% of amphibians are endemic and are found only in India.
Subsequently, India also has three, unique and biologically rich hotspots among the existing 34 global biological hotspots and is able to maintain so with the sustainable use of biodiversity, which is engrained in the very culture of India.
Jainism culture in India has developed animal hospitals to care for injured and abandoned animals. Similarly, animals like cow, tiger and elephant are considered sacred and are worshiped under the Hindu culture that advocates against animal cruelty and teaches reverence towards animals.
However, India, which was predominantly an agrarian society is now being shaped into a diverse society due to which the land is being used for non-natural purposes, thus negatively affecting the natural habitat of various species of animals. Consequently, animals are being poached on a large scale for their commercial use in the industry.
Though, there are various legislations and projects that ensure that the wildlife diversity is protected from all these developmental activities, nevertheless, these legislations are not able to keep pace with the changing India and needs timely amendments to protect and conserve the wildlife.
This Article will focus on the pre-existing legislations and judicial interpretations on animal protection and why and what are the areas of these legislations that need to be changed in order to ensure better and effective conservation of wildlife species and to prevent their exploitation from human activities.
Background of Animal Protection Laws in India
Traditionally in India, before colonialism, there was no requirement for killing wild animals or classifying them as ‘dangerous’. Harmony between humans and animals existed and animals were part of the spiritual life of humans, who worshipped, domesticated and cherished them.
However, with the beginning of the colonial era, hunting became a sport for British officials, not only for their entertainment but also to showcase their superiority and build political relationships with the existing kings. As per the home department records around 50,000 tigers, lakhs of elephants, cheetahs, leopards, rhinoceros and other wild animals were slain during this era.
Soon, there was a genuine concern under the British Raj, to conserve wildlife. For the first time in India, a society was founded by Briton Colesworthy for the prevention of cruelty to animals in 1861 in Calcutta. This society got the ball rolling and soon various movements against slaughter of animals started arising during the 1800s.
Legislations on Animal Welfare in India
Post-colonial era, the first specific legislation for animal rights was laid down in 1960 which criminalised cruelty against animals and shortly, various other legislations came into force to advance animal welfare laws. The various legislations to protect wildlife are discussed below:
- The Constitution of India, 1960
- The Indian Penal Code, 1860
- The Prevention of Cruelty to Animals Act, 1960
- The Wildlife Protection Act, 1972
The Constitution of India, 1950
The Constitution of India, 1950, under Article 48A, which provides direction to make State policy states that, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”
Subsequently, Article 51A(g) makes it the fundamental duty of every citizen of India to, “protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for all living creatures.”
The respective legislations, provide for safeguarding of the wildlife and to show compassion for them. Though, they are not justiciable and cannot be claimed as a right in the court, nevertheless, they give validity and authority to the actions taken by the government in furtherance of animal protection and welfare at the Central and State levels.
The Indian Penal Code, 1860
The India Penal Code, 1860 under Section 428 states that, “Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of the ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Consequently, Section 429 of the relevant Act provides that, “Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”
Both the aforementioned Sections lays down a criminal liability on an individual that tries to kill, poison or maim any animal of the given value or beyond and accordingly, the individual will be punished.
The Prevention of Cruelty to Animals Act , 1960
The Prevention of Cruelty to Animals Act, 1960 is the very first legislation directed specifically towards animal welfare and their protection. The objective of this act is, “to prevent the infliction of unnecessary pain or suffering on animals and for that purpose to amend the law relating to the prevention of cruelty to animals.” Under this Act, any living creature who is not a human being is considered an ‘animal’. Following are the relevant Sections that are considered as ‘imperative’ under this Act:
Section 4 of the relevant Act, provides for establishment of Animals Welfare Board of India, consequently, Section 9 empowers the Board with functions like:
- To keep the law in force in India for the prevention of cruelty to animals under constant study and advise the Government on the amendments to be undertaken in any such law from time to time;
- To advise the Government on matters relating to the medical care and attention which may be provided in animal, hospitals and to give financial and other assistance to animal hospitals whenever the Board thinks it necessary to do so, etc;
Section 11 of the Act states what acts are considered to be ‘cruelty against animals’, the acts are as follows:
- 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;
- 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;
- keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord;
- being the owner of [any animal] fails to provide such animal with sufficient food, drink or shelter, etc;
Section 12, imposes punishment on an individual if he “performs upon any cow or other milk animal the operation called phooka or doom dev or any other operation (including injection of any substance) to improve lactation which is injurious to the health of the animal] or permits such operation being performed upon any such animal in his possession or under his control, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to two years, or with both, and the animal on which the operation was performed shall be forfeited to the Government”.
Section 14, provides that experimentation on animals is lawful if it is “for the purpose of advancement by new discovery of physiological knowledge or of knowledge which will be useful for saving or for prolonging life or alleviating suffering or for combating any disease, whether of human beings, animals or plants.”
However, Section 19 of the Act grants powers to the established Committee under this Act to prohibit experimentation if it is not done in a prescribed manner as per the instructions laid down under Section 17.
Further, Section 28 is drafted by the legislature in respect to the religious traditions prevalent in India, that provides that “nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.”
Cumulatively, Section 35 states that “the State government may order to appoint infirmaries for the treatment and care of animals in respect of which offences against this Act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate”.
The Wildlife Protection Act, 1972
The objective of this Act is “to provide for the protection of wild animals, birds and plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country”.
Unlike the Prevention of Cruelty against Animal Act, 1960, this Act under Section 2(1) provides a more exhaustive definition of ‘animal’ along with a separate definition of ‘wildlife’ under Section 2(37) leading. Under this Act, following are the significant Sections for wildlife protection:
Section 11 of the Act provides that hunting is permitted by an order in writing by Chief Wildlife Warden in when “any wild animal specified in Schedule I has become dangerous to human life or is so disabled or diseased as to be beyond recovery”.
Section 49 provides that “no person shall purchase, receive or acquire any captive animal, wild animal, other than vermin, or any animal article, trophy, uncured trophy or meat derived therefrom otherwise than from a dealer or from a person authorised to sell or otherwise transfer the same under this Act”.
Judgement on Animal Welfare in India
Sometimes legislations are rigid, that they do not leave space for any flexibility and once the society changes these legislations become redundant due to them not being able to adjust to the dynamic nature of society. Then comes into picture judiciary, to give a ‘breathing space’ to the legislation and increase the ambit of the text of the legislation through its interpretation.
Similarly, the judiciary has given wider scope to the provisions of the relevant Animal Welfare Acts in order to ensure better safety and well-being of the animals. The same can be observed through the below mentioned case law:
Animal Welfare Board vs. A. Nagaraja & Ors, Civil appeal no. 5387 of 2014
In this case, the Hon’ble Supreme under Section 3 of the Prevention of Cruelty to Animals Act, 1960 Act, a statutory duty has been cast on the person who is in-charge or care of the animal to ensure the well-being of such animal and to prevent infliction on the animal of unnecessary pain or suffering. Prevention of Cruelty to Animals Act, 1960 Act, therefore, casts not only duties on human beings, but also confers corresponding rights on animals.
Therefore, Rights and freedoms guaranteed to the animals under Sections 3 and 11 have to be read along with Article 51A(g)(h) of the Constitution, which is the magna carta of animal rights.
Though, this is evidence that animals also have Rights under the Constitution of India, but, there are still practices and acts of human beings that deprive them of their Rights and cause extreme unnecessary pain to them. We cannot have a judiciary at every place to uphold the Rights of the animals but we can implement legislation at every place to secure their Rights. Therefore, we need to have strict and effective legislation that is worth implementing.
Need for Amendment under the Existing Legislations
Since Independence there have been various legislations and rules that have been drafted to ensure Wildlife Protection. However, even after 74 years of independence the texts of these legislations have remained the same despite the fact that the society has changed a lot.
Therefore, these legislations are now not able to impose liability on certain gruesome and cruel acts developed by humans against animals. For example, acts like dehorning and castration of animals are not considered as cruelty under this Act. There is a need to amend the text under the legislation to keep it up to day with the advancements of the society.
Where is the amendment required?
We have two legislations that targets specifically towards wildlife and ensures their protection against human cruelty. Therefore, there is a need to amend these specific legislations. Following are the amendments that are suggested to be made under the relevant Acts:
The Prevention of Cruelty to Animals Act, 1960
Under this Act, four major amendments have been suggested, they are as follows:
- First, the Centre’s Animal Husbandry department has suggested that under Section 11 the quantum of penalty for first time offenders must increase from “minimum of Rs 10 to maximum of Rs 50” to “not less than Rs 750 extended up to Rs 3,750 per animal”.
- Second, penalty under Section 12, phookha, or the injection of any substance to improve lactation must be raised from “Rs 1,000, two years in prison or both” to “Rs 75,000 as the penalty with imprisonment of three years which may be extended to five. The current penalty is Rs 1,000, two years in prison or both”.
- Third, the Federation of Indian Animal Protection Organisations (FIAPO), has suggested to delete Section 28 which provides safeguard to the acts done under the name of religion, as killing of an animal that aggravates its suffering cannot be protected under law.
- Fourth, FIAPO has also suggested a new Section to be added, that provides punishment of imprisonment of up to five years and fine up to Rs 75,000 for the killing of animals and “gruesome cruelty” towards them. Additionally, it is also proposed that all the Provisions under this Act must be made cognizable.
The Wildlife Protection Act, 1972
In order to amend this Act, The Wild Life (Protection) Amendment Bill, 2021 was introduced in Lok Sabha by the Minister of Environment, Forest and Climate Change. Under this, four major amendments have been proposed, namely:
- First, CITES is an international agreement between governments to ensure that international trade in specimens of wild animals and plants does not threaten the survival of the species. The Bill seeks to implement relevant provisions of CITES.
- Second, invasive alien species must be seized and disposed of. These species means plant or animal species which are not native to India and whose introduction may adversely impact wildlife or its habitat.
- Third, the Bill provides for any person to voluntarily surrender any captive animals or animal products to the Chief WildLife Warden. No compensation will be paid to the person for surrendering such items and these items become property of the state government.
- Fourth, this Act prescribes punishment under which imprisonment terms and fines are mentioned. This bill increases the amount of the fine to cause a deterrent effect
Conclusion
India is a country that always had the tradition to venerate animals and show compassion towards them. There are several projects launched by the Indian government like Project Tiger, Elephant and Rhino to conserve the endangered endemic species. However, every animal species must have equal protection, therefore, there are legislation that ensure protection of each and every wildlife species across the country.
In the contemporary time, it can be seen that, what the existing legislation are not able to provide to animals, is being provided to them through the decisions of the judiciary, as it can be observed from this Article that there have been judicial interpretations that ensure utmost protection towards animal cruelty and held that animal protection and welfare can indeed be traced to fundamental rights.
However, judicial decisions can be a cumbersome process at times and may not give as speedy remedy and relief as one might require at that moment.
Therefore, certain amendments are suggested to be considered, so that the legislation itself provides a better remedy and relief and the individual who is advocating for the rights of the animals, their welfare and protection, would not be required to approach the judiciary and the matter can be disposed of at the earliest.
Further, some of the amendments suggested will not only lead to speedy justice to the animal in pain but will also act as an deterrent to individuals who commits the offence of animal cruelty.
Reference:
- The Constitution of India, 1950
- The India Penal Code, 1860
- The Prevention of Cruelty to Animals Act, 1960
- The Wildlife Protection Act, 1972
- The Wild Life (Protection) Amendment Bill, 2021
ABOUT THE AUTHOR
Ayushi Budholia is a third year B.A.LL.B student form Lloyd Law College, Greater Noida.