Author: Rushika Rabha
Campus Law Centre, Delhi University
As videos of animal cruelty disturb our collective psyche time and again, one hardly sees justice being done to the offenders for their despicable acts of cruelty. This article explores the animal welfare legislations that exist in our country and brings forth the impediments in achieving justice due to the loopholes in the laws. The jurisprudence on animal cruelty in India has also been discussed to indicate a positive growth towards honouring the rights of animals.
The Supreme Court of India opined in Centre for Environmental Law, WWF v. Union of India[i] “Ecocentrism” not “Anthropocentrism” should be the norm for foresting a sustainable future for both humans and other species. “Anthropocentrism” is the idea that humans are the most important species and consider other species instrumental to humans. This concept is in direct conflict with “Ecocentrism” which considers humans and non-humans as part of nature and both have “intrinsic value”. Therefore, humans should consider other species as having the same value as them in order to maintain a balance in nature. Yet, animal exploitation and brutality continue unabated across the country . From illegal ivory trade from wildlife reserves to torturing animals for sadistic gratification, the spectrum of animal abuse portrays a picture of abominable cruelty. This behaviour stems from the belief that since humans have evolved cognitively much more than other species thereby elevating humans to the most superior position in the food chain. However, several studies have shown that animals are capable of cognitive thought and possess intelligence[ii]. Furthermore, irrespective of empirical studies on animal emotions and intelligence the human race’s delusions of grandeur need to be ceased. The statutory provisions which are in place to protect animals, especially The Prevention of Cruelty to Animals Act,1960, have been criticised by many for being too lenient towards the perpetrators of animal abuse. The punishment meted out in most cases of animal cruelty is merely a petty fine, as a consequence animal abusers’ do not fear the repercussions of hurting animals.
Constitutional Provisions for Protection of Animals
As per Article 48 A of the Constitution, the state is under a duty to “protect and improve the environment” as well as “safeguard the forests and wildlife of the country”.
The citizens of this country have a fundamental duty under Article 51A to be compassionate towards animals and “protect and improve the environment including forests, lakes and rivers”
As per List II or the State list of the Seventh schedule of the Indian Constitution, the state legislature has the power to make laws to “Preserve, protect and improve stock and prevent animal diseases, and enforce veterinary training and practice.”
As per List III or the Concurrent list of the Seventh schedule of the Indian Constitution, both the parliament and the state legislature can make laws to prevent animal cruelty, “protection of wild animals and birds”.
Animal Cruelty in The Indian Penal Code
According to Section 428 of the IPC, committing “mischief by killing, poisoning maiming or rendering useless animals any animal or animals of the value of 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.”
Section 429 of the IPC, provides that committing mischief by killing or maiming animals like camel, horse, bull, ox or any animal with a value of fifty rupees or upwards is punishable for a term which can extend to five years, or a fine or both.
These offences are bailable, cognizable offences and non-compoundable offences.
The most comprehensive section under this Act is Section 11 which defines cruelty towards animals and provides penalties for the same. Some acts of cruelty defined in this section, inter-alia, are beating, kicking or overloading an animal, wilfully administering injurious drugs or harmful substances, keeping the animal in a cage that is not proportional to the animal’s dimensions, keeping an animal chained for an unreasonable period, mutilating or killing an animal in a cruel manner and promoting or taking part in a shooting competition of animals.
Section 12 of the Act penalises “phooka” or “doom dev” which is performing or allowing to any operation ( including giving injections) to any cow or milch animal to increase their lactating which deteriorates the animal’s health.
Section 22 of the Act restricts the training or exhibition of any “performing animal”.
The Animal Welfare Board of India was established under Section 4 of the aforementioned Act and is a “statutory advisory body on Animal Welfare Laws.
This was enacted to protect and preserve the wildlife of India. It is important to note that this is not the sole Act enacted for the protection of wildlife, other wildlife protection legislation includes The Wild Life (Transactions and Taxidermy) Rules, 1973; The Wild Life (Stock Declaration) Central Rules, 1973; The Wildlife (Protection) Licensing (Additional Matters for Consideration) Rules, 1983; The Wild Life (Protection) Rules, 1995 [iii] . Under this Act, a wildlife advisory board is to be constituted in every State and Union territory, and this advisory board is under an obligation to declare areas as Sanctuaries, National Parks and Closed Areas and administer them, formulate policies for protection and conservation of wildlife and to harmonise the needs of tribals and forest dwellers with preservation of wildlife. Section 9 of the Act prohibits hunting of animals mentioned in schedule I, II, II and IV. However, this Section is subject to Sections 11 and 12 which allows hunting in some cases. The penalties under this Act are imprisonment which can extend to seven years and fine up to twenty-five thousand rupees.
Other legislation relating welfare of animals include The Animal Birth Control (Dogs) Rules (2001), Slaughter House Rules (2001) and 148-C and 135-B of Drugs and Cosmetic Rules,1945[iv].
Judgments on Welfare of Animals
The Supreme Court has reiterated in many judgments that animals are not be treated in a exploitative manner that causes suffering and trauma. Animals possess certain rights that must be preserved by humans. In Animal Welfare Board of India V. Nagaraja and Ors[v], the Apex Court of India explained the nature of Prevention of Cruelty to Animals Act, it is a welfare legislation and “the provisions of law should be liberally construed in favour of the weak and infirm.....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”. In N.R Nair And Ors. V. Union of India And Ors [vi] the Court held that legal rights are not exclusive to humans and “thick legal wall” between animals and humans should be broken. In Gauri Maulekhi v. State of Uttarkhand And Ors[vii] the Court observed that even for consumption “unnecessary pain or suffering cannot be inflicted” on an animal as per section 11(3) (e) of the Prevention of Cruelty to Animals Act. Concerning animal sacrifices for religious purposes, the Supreme Court observed in Mohd. Hanif Quareshi & Others vs The State Of Bihar[viii] that for Article 25 of the Constitution, a practice has to be “an obligatory overt act... to exhibit his religious belief and idea”. Thereby, the Court held that sacrifice of cows on the day of Bakr-Eid is not an essential practice of Islam. Similarly, in Durgah Committee, Ajmer and anr. Vs. Syed Hussain Ali and others[ix] the Court held that religious practice has to be an essential and integral part to be protected under Article 26 of the Constitution . In 2019, the Tripura High Court in Sri Shubhas Bhhattacharjee v. The State of Tripura[x] held that animal sacrifice in temples was not an essential practice of Hinduism. Therefore, it was not protected under Article 25 of the Constitution. As per rule 3 of the Prevention of Cruelty to Animals (Slaughterhouse) Rules, 2001 it is illegal to slaughter any animal outside a slaughterhouse in Municipal Corporation limits of any Indian state.
According to the economic theory of deterrence, an increase in the cost for committing a crime should deter people from committing it; this is further dependent on the certainty of being caught, the swiftness of imposition of punishment and the severity of the punishment[xi]
In the context of The Prevention of Cruelty to Animals Act,1960 (PCA) the penalty is not severe enough to deter many as evidenced by abysmal rates of conviction[xii] .
The infirmities in Prevention of Cruelty to Animals Act are as follows:
Firstly, the fine under the PCA is merciful towards the perpetrators. Shashi Tharoor, Member of Parliament (Lok Sabha), had remarked “Despite the increased rate of inflation and other socio-cultural changes, the penalty has not been upwardly reviewed in over five decades, nor has the disturbing number of incidents of maltreatment of animals been, apparently, a good enough reason to revise this figure in the direction of greater stringency”[xiii] . Indeed, many animal welfare organisations like PETA and activists have protested against this leniency. The fine ranges from ten rupees to hundred rupees, which is a paltry sum of money in today’s time.
Secondly, committing an offence under this act for the first time does not even attract imprisonment. It is only for a second or subsequent offences imprisonment for a term which can extend up to three months is attracted. Even when the crime is heinous, the punishment is merciful . According to the doctrine of proportionality, the punishment should be proportional to the crime committed or means used by the administration to fulfil the object of an act should not be more restrictive than is required[xiv] . The objective of the act is “to prevent the infliction of unnecessary pain or suffering on animals”, however, one of the means of achieving this is through the penalties provided in this act which is not adequate[xv] . Hence, the penalties in this act need to be revised.
Thirdly, only section 11 (1) (l), (n), (o) and section 12 are cognizable offences. All other offences under section 11 are non-cognizable. Due to non-cognizable offence, there are procedural barriers coupled with an easy grant of bail while taking Action against the accused which leads to non-action in cases of animal cruelty that are registered with the police[xvi] .
As a result of the aforementioned weaknesses in the Act, the perpetrators hardly see justice. Animal abusers become emboldened if the law does not punish offenders.
The IPC sections 428 and 429 make the killing or hurting an animal a cognizable offence. These sections nonetheless apply only to those animals that are the property of a human being. For stray animals, the Prevention of Cruelty to Animals Act will apply[xvii] .
Wildlife crime control Bureau's wildlife inspector, A. Madhivannan said in 2019 that the rate of conviction for crimes related to wildlife is as low as 2%[xviii]. There are several implementation problems in the law laid down in the Wildlife Protection Act,1972. There are insufficient staff to petrol the entire nook and corner of the wildlife reserves, thereby when a crime occurs, it mostly occurs in a remote area which gives perpetrators enough time to escape [xix]. Consequently, it becomes difficult to trace the perpetrators without evidence and eyewitness. Another prominent hurdle in conviction is that judges often deal with wildlife related crime with leniency and the benefit of lack of witnesses go to the accused[xx] .
A law that was enacted decades ago has not been amended as per the changing socio-economic circumstances of the society. Throughout the years several animal rights organisations and activists have lambasted the penalties of The Prevention of Cruelty Act,1960 but there has been no step taken by the legislature to bring the penalties of the crime in consonance with the objective the Act seeks to achieve. Furthermore, it would be an oversight to not reiterate the fundamental duties of an Indian citizen which as per Article 51 A includes showing compassion to animals.The jurisprudence on the cruelty towards animals has evolved substantially over the years. Courts have recognised the inherent value of animals and not merely their instrumentality to humans. Making animals fight for sport or sacrificing them for religious purposes has come under heavy scrutiny both from animal welfare boards, courts and non-governmental organisations. Supreme Court notes in Durga Committee, Ajmer case held that some religious practices which have sprung from superstitions may be “extraneous and unessential accretions to religion itself”. Animal lives are not at the mercy of humans and we must co-exist in peace.
[i] (2013) 8 SCC 234 [ii] http://www.bbc.com/earth/story/20150706-humans-are-not-unique-or-special ; https://www.animalsasia.org/us/media/news/news-archive/yes-humans-are-unique-in-the-animal-kingdom-but-not-superior.html [iii] http://www.legalserviceindia.com/articles/wlife.htm [iv] https://qrius.com/banning-animal-tested-cosmetics-in-india/ [v] (2014) 7 SCC 547 [vi] (2001) 6 SCC 84 [vii] Writ Petition (PIL) No. 77 of 2010 [viii] 1959 SCR 629 [ix] AIR 1961 SC 1402 [x] https://indiankanoon.org/doc/58095629/ [xi] Raymond Paternoster, “How Much Do We Really Know About Criminal Deterrence,” Journal of Criminal Law and Criminology 100, no. 765 (2010). [xii] https://www.hindustantimes.com/mumbai-news/cruelty-to-animals-low-conviction-numbers-meagre-fines-to-blame/story-zg5uVrw8MPHKIEtyjdluiO.html ; https://indianexpress.com/article/explained/why-some-can-get-away-with-throwing-dogs-from-roofs-2975590/ [xiii] https://www.bloombergquint.com/opinion/time-to-end-animal-abuse-in-india-can-stringent-laws-help-shaktiman-horse-cruelty-to-animals-act-1960-animal-testing [xiv] http://racolblegal.com/doctrine-of-proportionality-an-analysis-of-supreme-court-cases/ [xv] Abha Nadkarni & Adrija Ghosh, Broadening the Scope of Liabilities for Cruelty against Animals: Gauging the Legal Adequacy of Penal Sanctions Imposed [xvi] Ibid [xvii] https://dogexpress.in/supreme-court-to-give-strict-punishment-for-killing-strays/ [xviii] https://www.thehindu.com/news/cities/Coimbatore/rate-of-conviction-in-wildlife-crimes-is-2/article29588184.ece [xix] https://www.wildlifeconservationtrust.org/wildlife-crime-prosecution-hurdles/ [xx] Ibid