By V. Nityanand
Published On: October 28, 2021 at 12:40 IST
Introduction
“Animal Rights” is a concept according to which animals, regardless of their species, are entitled to the ”Right to Life” and ”Freedom from Exploitation”. They should be treated with the same level of dignity that is afforded to human beings. Furthermore, the delegation of their status from ”lifeforms” to ”property” should be actively discouraged.
Several academicians, including Steven Wise and Gary Francione, suggest that personhood and legal rights should be afforded to non – humans. Opponents of ‘Animal Rights’ suggest that non – human animals should not be afforded rights exercised by human beings as they are unable to enter a social contract. Social Contract concerns the relationship between individuals and a nominated authority that provides individuals with protection in exchange for their resources. Peter Singer suggests that the principle of equality requires equal consideration.
Utilitarianists suggest that animals can be used as resources as long as suffering is avoided. Animal Rights has various facets, such as opposition to animal laboratories and fur farms. Fur farms involve breeding certain species of animals in order to collect their fur, while animal laboratories involve experimenting on non – human animals to observe the results or effects of certain stimuli.
Being the seventh-largest country in the world, Indian is a bio-diverse region that is home to almost four biodiversity hotspots.[i]
Torts – Explained
The term ”tort” has its origin in the Latin word ”tortum”, which means ”twisted”. As per Salmond, Tort is deemed to be a civil wrong for which the remedy is unliquidated damages. It is also not a breach of contract, breach of trust or other equitable obligations.
In Tort, the actions of one-party harm another party. The actions can be a result of negligence, carelessness by another party. In a lawsuit involving civil wrongs, the one who initiates it is referred to as ”plaintiff” and ”defendant”. The ”defendant”, if found guilty, shall be liable to pay damages to the ”plaintiff”.
The Act is a tort that can be either positive or negative, and breach of duty is also needed to constitute omission.[ii]
In relation to the development of Tort Law in India, the following statement was made in the case of M.C Mehta Vs Union of India[iii] –
“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”
Legal damage in torts is best understood with reference to two legal maxims, namely – Injuria Sine Damnum and Damnum Sine Injuria.
”Injuria”, as the word suggests, means ”injury” or unauthorized interference in the plaintiff’s rights. ”Damnum” means damages or the loss suffered by the plaintiff in terms of money, comfort, health, etc. In this case, harm is inflicted on the plaintiff’s legal rights, but no damage takes place as such. Ashby Vs White[iv] was the case in which this common law principle was upheld.
While in the case of ”Damnum Sine Injuria’, there is the presence of harm but no injury to the legal right. Some examples of Tort include battery, assault, false imprisonment, trespass to the person, trespass to land, etc.
A keeper of an animal can be held liable regardless of the fact whether he had knowledge of the creature’s hostile nature. He has a duty to keep the animal under his control so as to prevent injury to others. Animals falling in the first category include lions, bears, elephants, wolves and so on, while animals falling in the second category have dogs, horses, cows, rams and so on.
Strict liability is applicable in three circumstances:
- When the animal in question escaped the defendant’s confinement and caused damage to another person’s rights.
- When the animal in question engages in dangerous activities which places the plaintiff at the risk of being harmed.
- Defendant can also be held liable in certain product liability actions such as manufacturing defects and breach of warranty.
While negligence or wrongful act done with a a malicious intention in mind is generally crucial for the attachment of liability, No-Fault Liability can also be applied.
In the case of May Vs Burdett[v], the defendant was found to be guilty by the court for not keeping his monkey, which bit the plaintiff, under control.
In the case of Hudson Vs Roberts[vi], the defendant was found to be guilty of not keeping his bull, which injured the plaintiff under control despite having knowledge of the bull’s vicious nature.
In the case of Read Vs Edwards[vii], the defendant was held liable for not keeping his dog, which attacked the pheasants, under control despite having knowledge of the dog’s vicious nature.
”Ferae Naturae” is inclusive of those animals which are not aggressive by nature or animals which are not man-made or domesticated. Such animals are presumed to have such tendencies so that there is no need for ”Scienter” to be proved. Second category animals or ‘Mansutae Natureae’ are inclusive of animals that are presumed to be harmless.
But when they have manifested a vicious tendency and scientific proof of manifestation and transfer of the animal from the first category to the second category is provided, scienter has to be proved. If the plaintiff is able to prove that the defendant had knowledge of the animal’s vicious tendency, that is, scienter; then the defendant can be held liable.
Constitutional Provisions
Over the course of time, the Indian Judiciary has dedicated itself to wildlife protection, for instance, the inclusion of protection of animals in the fundamental duties guaranteed under the Indian Constitution. Legislations aimed at addressing animal rights in India include Prevention of Cruelty to Animals Act of 1960[viii] and the Wildlife Protection Act of 1972[ix]. In addition to the abovementioned statutes.
There are several state-level prohibitions aimed at curbing cow slaughter and enhancing cattle protection. Under the Indian Constitution, the State imposes a “duty on 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 duty, as mentioned earlier, is also supplemented by the Directive Principles of State Policy under Article 48A[x], according to which “the state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” Such constitutional provisions can be enforced in the court of law by interpreting.
Item 14 of the State List under Article 246 of the Indian Constitution obligates the State to “preserve, protect and improve stock and prevent animal diseases and enforce veterinary training and practice.” Item 17 of the Concurrent List under Article 246[xi] of the Indian Constitution authorizes the State to formulate legislation on ”Prevention of Cruelty to Animals (as given in Item 17) and ”Protection of Wild Animals and Bird” (Item 17B).[xii]
Statutory Provisions
The Prevention of Cruelty to Animals Act, 1960, which aims to prevent the infliction of pain and suffering on animals, defines ”animals” as living creatures other than human beings. The Act is not completely strict as it does not prohibit the castration of cattle and the killing of stray dogs in lethal chambers. Furthermore, experimentation on animals to gain scientific insight to combat diseases is not deemed to be unlawful.
As per the Cattle Trespass Act of 1871, cattle which roam around freely can be taken to cattle pounds in various places to confine them. The owner of cattle who wishes to take his cattle out of the pound is allowed to do so provided he pays the pound fees. However, he cannot be held liable to pay compensation to the land owner. The owner of a pig which roams around is liable to pay fine if ithe pig in question inflicts harm to the land of the owner.
As per the Cattle Trespass Act of 1871 includes – Elephants, Camels, Buffaloes, Horses, Ponies, Mares, Geldings, Colts, Mules, Asses, Pigs, Rams, Ewes, Sheep, Lambs, Goats, Fillies, Birds.
The cultivator/occupier of the land or vendee or mortgagee of the crop has the ability to seize cattle roaming on the land in question and causing damage to the resources on land, including crops, produce, etc. He is obligated to send the cattle to the pound within 24 hours of the seizure. The Act also provides provisions for the following:
- Delivery of Cattle,
- Sale of Cattle,
- Illegal Seizure,
- Detention,
- Payment of Penalties.
Defences
There are several defences available to the defendant in the face of a lawsuit, such as:
- Act of the Third Party – When it is proved that the damage was caused by a third party other than the defendant, liability can be escaped.
- Default of the Plaintiff – An example is that of a plaintiff who fails to fence a haystack that he is obligated to put upon the defendant’s land, which in turn causes the defendant’s cattle to consume the food. Failure to fence the property on the part of the plaintiff will make him ineligible to claim compensation from the defendant.
- Volenti-Non-Fit-Injuria – literally translates to mean that “to a willing person, injury is not done”. It is a common law doctrine, according to which those who voluntarily put themselves in harm’s path shall not be entitled to damages of any kind.
- Act of God – refers to those situations which are out of human control. These include natural disasters such as floods, earthquakes and other natural disasters.
- Inevitable Accidents – include those circumstances which could not be avoided even when due diligence has been exercised by the defendant. Thus, the plaintiff cannot be held liable for damages and asked to pay compensation to the plaintiff.
Conclusion
The Cattle Trespass Act of 1871 is the main legislation dealing with damages incurred as a result animal activity. There exist several certain states – oriented legislations as well dealing with trespass with minute modifications such as:
- Cattle Trespass Act, 1956
- Cattle Trespass Act, 1959
- Madhya Pradesh Act, 1958
- Tamil Nadu Act, 1959
- Kerala Cattle Trespass Act, 1961
- Mysore Cattle Trespass Act, 1966
Uniformity in laws across the nation will solve the problem of trespass in a more efficient manner. Several reports suggest that the obligations under statutory provisions are hardly followed. There is a dire need to make obligations under such provisions more binding.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
[i] Why Animal Rights (Last visited on 22nd October, 2021)
[ii] Law of Torts (Last visited 22nd October, 20210
[iii] M.C. Mehta Vs Union of India, 1987 SCR (1) 819.
[iv] Ashby Vs White, (1703) 92 ER 126
[v] May Vs Burdett, [1846] 9 QB 101
[vi] Hudson Vs Roberts, 132 A. 404, 104 Conn. 126
[vii] Read Vs Edwards, [1996] 1 SCR 128
[viii] The Prevention of Cruelty to Animals Act, 1960 (Act 59 of 1960)
[ix] The Wild Life (Protection) Act, 1972. (Act 53 of 19720
[x] The Constitution of India, Art. 48A
[xi] The Constitution of India, Art. 246
[xii] Distress Damages Feasant (Last visited on 22nd October, 2021)