THE (UN) DIGNIFIED ANIMAL EXISTENCE: THE GLOOMY FATE OF ANIMAL RIGHTS
– OMKAR UPADHYAY
“The greatness of a nation and its moral progress can be judged by the way its animals are treated”
The history, as we know of it, has always been the history of man. Naturally, humans have always been the focal point of attraction in every issue, be it his well being or his rights in the world, the inherent natural rights which have been subsequently labelled as the human rights. Surprisingly, the debate of honing the inherent rights of humans have been a concern since time immemorial with the earliest traceable to Magna Carta. But less has been talked of about the other component of our environment, the fauna. The animals have been treated as something which the humans own and may use at their will either to satisfy their hunger, have their load carried off, to transport them and their goods or even to amuse and entertain them by sitting in a cage. Though the fauna has been described as ‘animal kingdom’ but it is merely a misnomer because even in their kingdom they are the slaves of their masters, the humans, who are denuded of basic rights of life and liberty, the right which every human hold so dear to them and struggled centuries and decades to possess. Therefore, the author through this paper seeks to analyse the intricacies attached with the question of animal rights, an oft- ignored area, while presenting instances where they have been violated blatantly while the State, who claims as the protector of all within its jurisdiction has failed its duty as Parens Patriae, with eyes blinded and hand folded. The author here also seeks to bring forth the fallacies of the legal framework in ensuring a dignified life for the animals and thereafter present the possible solutions to fill the legal void. The ultimate aim of this research is, therefore, to serve as a cause for the upliftment of animal rights to a higher pedestal and ensure a dignified animal existence, one which has hitherto been denied.
KEYWORDS: Animal Rights, Fauna, Parens Patriae, Dignity, Law.
Our world is populated by the fair mixture of animals and humans, the flora having a mute existence. Largely the kingdoms of men and animals have coexisted with each benefiting the other in one way or the other. However, given the natural tendency of man to consider him as superior, while all other as inferiors, has often led to derogatory treatment being meted out to the animals.
Considered as the secondary beings, allotting them or recognising their rights was thus locked down upon as something unnecessary and futile. However, with the activist magnitude of certain individuals and limited policymakers, the rights of the animals were recognised and some kind of protection offered to them. However, the reality turned out to be a quite different from what it was intended.
The status, or, the content of animal rights have always loomed in the void which denuded them of the basics which would entail them an exalted life. The statement by the so-called champions of human rights and freedoms, working for the cause of the inherent human rights have often sought to describe a dignified human life as, “not mere animal existence”. This statement itself makes it quite clear that animal existence does not have dignity as one of its characteristics.
Such neglect of the rights and the resulting non-protection has led to multifarious of crimes being committed against the animals with the perpetrators often escaping liability or even when held accountable, is punished less severely if compared with punishments for crimes against the humans. Despite various legal frameworks aimed at protecting the animals and ensuring they are not subjected to cruelty, the status quo has largely remained the same. Therefore, if an animal is raped, maimed or even killed, the crime would be considered to be less serious than if the victim had been a human.
Moreover, even when they are kept as pets, where one can legitimately expect them to live with human love and affection, the reality often presents otherwise with their owners leaving them when their purpose is fulfilled or they are no longer required. Being mute and considered a good which the humans have full ownership on, they are often made test subjects in inherently dangerous experiments which adds to their misery.
With the above background, this paper would thus focus on the inherent intricacies and issues revolving around the question of animal rights, their protection, their content and status in the Indian legal system. In doing so, the author here argues that the animals are denied a life of dignity and liberty, which are constitutionally guaranteed rights to the citizens, which consequently leads the animals to lead a life filled with cruelty and subjugation. The author also argues that it is the failure of the legal framework and ultimately the government which has inadequately dealt with this issue and thus have allowed to worsen.
THE FAUNA BEING DENIED DIGNITY: ISSUES AND CONCERNS
The Constitution of India imposes upon, or at least directs its citizens, to protect and have compassion for the wildlife and other living creatures vide the part dealing with Fundamental Duties. Nonetheless, the events that we witness present a whole different picture than what was the intent of inclusion of such a duty so fundamental for our nation. In a country like India, whose mythology is overpouring with depictions of animals in one way or other, sometimes as the carrier of gods and sometimes as Gods themselves, the nastiness meted out against them is horrifying.
Hitherto, dignity has been known to be the borderline which distinguishes human from animal, apart from the ability to speak. Thus naturally, the perception has been made that the animals are not worthy of being treated as a creature with some dignity. Even such a philosopher as Immanuel Kant has, in his works, has iterated that those beings who are rational and have the capacity to deliberate are the ones who can have dignity. This precondition effectively ousts the animals from it, but the question arises that whether such preconditions themselves are valid?
The association of the word dignity with the humans has gone to the extent that ‘human dignity’ in itself has become a separate phrase. It is the humans and humans alone which have the worthiness of being treated with respect and morality. This philosophical standing, that there exists a gulf between humans, who proudly call themselves social animals, and the actual animals, has have impacted the framing of laws and policies.
India, like other countries, has witnessed a plethora of inhuman acts being committed against the meek animals, the most recent being where a pregnant elephant was fed with a fruit filled with an explosive which led to an injury so fatal she succumbed to death. Not only this, in these trying times, where the pandemic has taken a toll on everyone, the worst sufferers have been the animal who are being completely neglected. Fearing contracting the infection and believing that their pets may cause make them ill, several pet owners have stranded their pets leaving them to die.
However, such instances of cruelty are not of recent times, animals, particularly domestic animals like the cows, goats and even stary dogs have often be subjected to bestiality or in more sophisticated terms, zoophilia, which is regarded as unnatural sexual intercourse. Slaughtering of animals, particularly of livestock; cows, buffaloes etc, has always been a matter of serious concern often tainted with religious and political ideologies instead of being seen as a blatant violation of animal dignity.
Maiming, detaining, keeping them under inhuman conditions, testing cosmetic or medical products on them are just a few of the instances where they are subjected to a treatment which a human would never be subjected to, him possessing dignity.
Another flaring issue in this regard is the employment of animals for entertainment or sports purposes, which are fatal. The situation worsens if an element of religion enters the issue. To better illustrate this point, reference may be made to the infamous practice of “Jallikattu” which are traditional centuries-old bullfights held in the southern state of Tamil Nadu. The brazen fights result in innumerable acts of cruelty being cast upon the animals resulting in physical as well as mental harm, such as mutilation, fractures, injuries and sometimes even death. As per the data, about 4 bulls lost their lives in these games in the year 2014. However, the proponents of this practice have justified it on the basis of age-old customs and traditions.
Nonetheless, the Apex Court in Animal Welfare Board v. A. Nagaraja & Ors. banned the said practice only to have their judgment being essentially overruled by the Tamil Nadu Government who permitted the carrying on of Jallikattu. Thus, the dignity of animals here has been kept at bay and unjustified cruelty is being rained upon them. Going by the definitions of what constitutes animal cruelty, such as, any act which intentionally causes pain or suffering or even death to animals or a behaviour aimed at causing hurt to the animals , more crimes are being committed against the animals than against humans.
The issue of Jallikattu brings out the hypocrisy of our lawmakers as on one side, the traditional and religious practices which were derogatory to humans, such as Sati, triple talaq and such alike were held as Constitutional as well as immoral, similar treatment has not been attributed to practices which involve animals. Such cultural practices resulting in cruelty to animals is not unique to Indian domain, various other traditions too have similar practices, such as “cultural cleansing ceremony” of South Africa wherein bull is killed by a spear.
Similarly, in Nepal, there exists a festival where animals and even birds such as pigeons, ducks, buffaloes, are slaughtered and decapacitated. Hypocrisy is also highlighted by the fact that while eating humans or “cannibalism” has been outlawed and declared illegal and as an act against humanity almost everywhere, however, eating the animals have failed to receive similar seriousness.
Therefore, it is evidently clear that animals are denied a dignified existence and the practices against them are inherently violative of all the ethical and moral codes.
ANIMAL RIGHTS: ON WHICH PEDESTAL DO THEY STAND?
The question that whether animals, who are sometimes referred to as non-humans, possess certain rights or not has always presented the world community with a moral as well as a political and sometimes legal dilemma. The dichotomy of being human and non-human has been the criteria adopted hitherto to categorise who are right-holders. This division points out to the distinguishing feature of rationality, that since humans are rational and capable of decision making, they are entitled to possess rights.
However, Tom Regan in his book has elaborated on the fact that the animals too have certain inherent values and some moral standing which allows them to possess certain rights at par with humans which includes the basic rights of life, integrity and considerate treatment. The issues concerning animal rights have existed because of the infallible link which has traditionally been developed between the concept of rights and humans.
Being human have been made a precondition for acquiring rights and thus animals are automatically left out of the folder of right holders. The issue’s graveness further deepens because of this philosophy that animals do not possess rights, they are mere property of humans. The fact, that animals are mere property of their owners, is further evinced by the fact that they are openly sold in the market to whosoever pays the price, whether living or as dead meat.
The inferior status being meted out to the animals has led to the coining of this discrimination as ‘Speciesism’ wherein inequality in treatment exists due to difference in species. This form of discrimination has remained out of mainstream discussion just as other debates on animal rights have. Nonetheless, with the efforts of various animal welfare activists and organisations, the perception regarding animal rights has taken a whirlwind, with many legal systems acknowledging and thereafter protecting certain rights of the animals.
In the Indian legal system, the Courts have taken a rather positive stand on the issue of animal rights. Nevertheless, the Court has too placed animal rights and human rights on two different pedestals, with human rights being placed on a higher pedestal than animal rights. This fact is corroborated by the wordings of the courts such as “right to life under Constitution cannot be restricted to mere animal existence” , which clearly shows that human life is animal existence with the addition of dignity or animal existence is one which lacks dignity.
Nonetheless, the High Courts have seemingly upheld animal rights in various instances. In the Jallikattu judgment, as is discussed in the preceding sections, the lordships have therein recognised various of animal rights such as the right to life, freedom from physical and mental discomforts such as fear and distress. Other concomitant rights such as those of right to health, protection against sufferings, and such alike were also acknowledged. The point of contention in the given case was the use of bulls for the traditional festival of Jallikattu. The Court opined that such practice inflicts “unnecessary pain and sufferings” and thus must not be followed.
Following similar lines, The Uttarakhand High Court declared the entire animal kingdom, the land as well as aquatic animals as a legal entity and thus holder of rights as also duties and liabilities. The Court arrived at this reasoning on the basis of the dictum that even corporations, idols and scriptures have been bequeathed with legal personality and thus animals are also equally entitled for the same.
It also held that “the animals should be healthy, comfortable, well-nourished, safe, able to express innate behaviour without pain, fear and distress. They are entitled to justice.” A similar stance was witnessed in the ruling of Punjab and Haryana High Court wherein the Court has aptly put that, “All the animals have honour and dignity. Every species has an inherent right to live and is required to be protected by law. The rights and privacy of animals are to be respected and protected from unlawful attacks” .
On animal sacrifice, the Tripura High Court’s observation that “sacrifice of an animal in a temple, not being an essential part of religion, is also .violative of Article 21 of the Constitution of India.” Thus it is quite clear that the right to life is not only limited to humans and the term “persons” is broad enough to include within its ambit animals too. The Delhi High Court in Mr. Saddam v. Union of India was to decide upon the writ of habeas corpus filed by Mahout (a person who works with elephants) demanding the release of an elephant from Elephant Rehabilitation Centre. Acknowledging that the elephant was better off with the rehabilitation centre than the Mahout, the Court held that they have a duty to protect the rights of an animal.
Thus, it is quite clear that the Indian judicial side has been able to break the shackles of the traditional repugnancy which has till now disentitled the animals form possessing rights.
WHERE THE PROTECTION LIES: STATE FAILING AS ‘PARENS PATRIAE’
Parens patriae is a Latin maxim which translates to parent of the country or the nation. A state is enjoined with the duty to protect its citizens from inside as well as outward threats. The doctrine of parens patriae is an English common law doctrine wherein the Crown was to protect the interests of those who were unable to protect for themselves. The doctrine has traditionally been employed in the case of infants left alone whose guardianship is then being taken over by the State who then acts as the child’s parents. Such jurisdiction was further extended to those with a feeble mind, as they fall under the same category as that of minors; unable to protect their own interests. The doctrine thus protects the weak and gives a shield to the unshielded.
This doctrine can be effectively be put to use in case of violation of animal rights. Animals too like children and feeble-minded individuals lack the capability to make decisions which would effectively protect their interests. Therefore, the State can enter the picture as guardian of these rights. One wing of the State, the judiciary has already accepted its role as parens patriae and stated that, “Court has also a duty under the doctrine of parents patriae to take care of the rights of animals since they are unable to take care of themselves as against human beings.” Therefore it is evidentially clear and settled that the State has a duty as an enforcer as well as protector of human rights.
THE REDUNDANCY OF LEGAL INSTRUMENTS
The legal framework governing the issue of animal rights and their protection is embedded in primarily two legislations; The Prevention of Cruelty to Animals Act (1960) and The Wildlife Protection Act of 1972 . The Constitution has put the matter of prevention of cruelty in the Concurrent list (List III) and has thus enabled both the Centre and the State to make in this regard.
THE PREVENTION OF CRUELTY TO ANIMALS ACT, 1960:
The enactment, brought in the year 1960 aims to prevent, “infliction of unnecessary pain or suffering on animals”. Vide section 11 , the Act has named numerous activities which can be construed as cruelty upon the animals. This includes killing, maiming, administering injurious drugs, unreasonably chaining up, and such alike. However, nowhere has it mentioned the crime of bestiality as constituting an act of cruelty. Bestiality only finds mention in Sec. 377 of Indian Penal Code and terms it as an unnatural offence prescribing the punishment of term expandable up to 10 years. As regards other acts of cruelty, the Act of 1960 prescribes meek punishments. The issue with such low level of punishment is its implication upon the deterrence effect on the perpetrators and other potential offenders. The Act has never been amended since its inception ad thus the fine that was decided at that time (Rs. 10 for first time offender and Rs. 25 for subsequent offender) still remains operative. It has been an established fact that the level of fine and term of imprisonment stands in direct relation with the level of deterrence.
Setting such a low level of penalty would dampen the deterrence level and thus the whole purpose of the enactment becomes defeated. The lawmakers have treated the cruelty to animals quite lightly which has resulted in hefty numbers of offences against the animals. Moreover, this further shows the disparities which arise due to unequal treatment being given to animals in comparison to humans and is a concrete evidence of “speciesism”. The enactment thus lacks proportionality in the sense that the punishment prescribed and the nature of offence is disproportionate. It is disproportionate in the sense that it prescribes different level of punishment for same offences if they would have been committed against a human.
THE WILDLIFE PROTECTION ACT, 1972:
The mentioned enactment seeks to protect the wild animals, birds, as well as plants and thus seemingly appear to be a comprehensive legislation. The objective of the legislation was to outroot the practice of illegal hunting and poaching, which it has been quite successful to achieve. However, instead of providing a substantive remedy to the victim animals, the legislation has merely prescribed for various procedure to be adopted and has thus left a void in law which has been since exploited by the perpetrators. Also, it has prescribed for creation of a Wildlife Advisory Board in each tribunal.
The situation would have been much better and the vision of the enactment would have been fulfilled much effectively if instead of an advisory board, there would have been a ‘Tribunal’ in place. The tribunal, akin to the National Green Tribunal, would have been an efficient way for ensuring effective wildlife protection. This is because of the fact that the court of competent jurisdiction in these cases would be the usual courts and thus an unnecessary burden is added to the already overloaded judiciary. Moreover, this would further add to the delay in winding up of the issue.
Though the lawmakers have time to time have come up with various rules and regulations under the Acts such as Performing Animal Rules(1973), Drugs and Cosmetics Rules (Second Amendment) (2014), and such, but still, the issue persists, that is, the protection sought for the animal rights have been ineffective under Indian legal system.
The above analysis has shown that there exists a disparity in the manner humans and animals are treated, both philosophically as well as legally. Though there has been activism witnessed in the field of animal rights individually as well as by the judicial side, there exist various lacunae in the legal framework. Until and unless these lacunae are addressed and subsequently remedied, the inequality and cruelty reined on the voiceless would never be cured. ‘Tribunalising’ the justice delivery mechanism for the fauna is one such effective way as it would expedite the process.
Moreover, immediate attention is required to raise the deterrence level for crimes of cruelty against the animals as only an optimal level of deterrence can curb such acts. Furthermore, State intervention is also required in issue such as Jallikattu and cockfights, a source of entertainment for numerous. These issues have been effectively dealt by the judiciary only to have them reversed by the State legislature. Therefore, stringent measures in this regard is the need of the hour. The fight for animal rights is not only on the legal side but also on the moral side. The mandate of the Constitution, that is, inbreeding of compassion for the other living beings, has become of the prime importance in these times.