Animal Rights and Role of Judiciary

Introduction and Meaning

Animals have the sense of belonging in this world. True to that, there should be framework to aid them in their living. The ever increasing slaughter of animals for their skins, meat, fur etc. has an impact of causing unnecessary harm and pain to those creature. These non-human creatures too have the right to live peacefully and in harmony in the society. The concept of animal welfare and their rights in the society arises when animals are given unfair treatment and are left to suffer pain and torture for that. They are beaten brutally and are abused extensively.

The justification for the animal rights can be seen that animals too have a sense of feeling and they too are the living creatures who have the belonging in this environment and to live their life not being in torment and constant strain. That is the reason that these laws become obligatory part to ensure that the rights of these animals are maintained. The concept that emerges in respect animals and their justification in the society is at first personhood, speciesism, and sentience. The constitutional rights and the statutory rights given to animals are of extreme significance as well. But the most magnitude of substance is given to the judicial decision given by the Supreme Court of India as well as High Court of various states in furthering and broadening the concept and justification for animal rights and its applicability in reality.

Speciesism

Speciesism is a theory that talks about the distinction or discrimination shown towards one or more of the species in the society. Richard Ryder was the person who came up with speciesism where he talked and wrote extensively about the culture where unnecessary harm is inflicted on one genus or category of living organism while other lives with unabashed comfort abuse the other creature. This is said is equivalent to the same as racism or sexism in the world where preference is given to a certain race or sex over the other. He propounded that to work through the rights of the species it is necessary that this bias behaviour has to stop completely.

Humans are often considered as the more evolved creatures in the world. But that does not take away the rights of the animals in the society. The humans or Homo Sapiens are one of the specie in this world while animals are also very much part of this and they too are the specie having their place and stature. The fact that it is considered to put the need of the humans over the animals, i.e., needs of single specie above the other, is the very essence of the evolvement of the concept of speciesism. The constant torture and destruction of the species of animal and the inferior attitude shown towards them will put the society in jeopardy. Thus, speciesism is an important phenomenon which is why the animal rights are justified in the working.

Sentience

Sentience is the ability to sense things or to perceive or endure the existence of instrumental life materials giving way to emotions. It basically relates to animal having the potential of perceiving a feeling. This feeling relates to the sense of having the pain and suffering endure. When a human being beat an animal with a stick, he has the capability of understanding that notion of hurt being exerted towards him. He can feel the pain inflicted on him. It can thus be said that they too have a developed sentience level to identify these material emotions. These emotions are the reason that makes them a living being with emotional capabilities. The development and existence of sentience proves that animals’ rights are a necessary measure to ensure that the unnecessary pain and hurt put on these creatures is unjustified and is the wrongful treatment on the part of human.

Sentience is the capability of a person to experience happiness, pain or any kind of emotional feeling persistent. Animals are conscious and familiar of these emotions and they know their connection, co-relation and association with both other animals and humans together. It is aware of and responsive to its own experience of any suffering which he is put under. Thus, it has developed ability of sentience.

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Personhood

Personhood is the putting of humans and animals in the same upfront and giving them equal treatment and rights. The legal personality of an animal is not given significance as the animals are not as evolved as humans. But over the years, corporate, rivers, and deity are given the status of legal personality having the ability to enforce their rights and to sue in court of law, and to be sued as well. Thus, it is necessary to give animal the legal status where they have the rights and they are not shown passive behaviour. Providing laws for animal and their well being is different from animals have existent rights and prerogative in the society and in law. They should be given the personhood legal status where the cruelty and unfair treatment done on them should not be overlooked. That is the very reason that animals should be considered as a necessary legal personality having their own individual right to sue and they can also be sued in law.

Personhood is necessary for animals as they too have the rights and obligations in the society. Animals co-exist in the society with human beings they have a sense of feeling, i.e., sentience that put them in the same parameter as human beings. The distinction and the issue of speciesism are there and the laws are made for the benefit of animals but not for the animal and their rights. Therefore, defining the personality of animals in law is of paramount significance and they should be given the same prerogative as humans and recognised in law.

Statutory and Constitutional Rights of Animals

The constitutional rights given to animal rights make it of high reasoning and stature given to animals in the law of the land itself. Article 48 of the Constitution of India, expressly provides for Directive Principle of State Policy, and specifically states that the state shall take efforts in the animal for farming and their care. It should stop the slaughter and killing of certain animals like cows etc. It is also the fundamental duty of every individual under Article 51 to show sympathy towards animals and all living things. Under concurrent list in the Constitution, the power is given to both state and central government for making laws in case of animals.

Under the Wildlife Protection Act, 1972, it provides rules for the protection of wild animals; it curbs the illegal killing of animals and of endangered species. It specially provides penalties and fine for the non-obligation of the procedures and law given in the act. The Prevention of Cruelty to Animals Act, 1960 deals with the unnecessary abuse and harm shown towards animals and their inhumane treatment in the society. It states for the creation of Animal Welfare Board in every state and it is a welfare law keeping in check the harm on animals and ensuring good treatment on them. The Indian Penal Code, 1860 also provides for punishment and fine for the killing or injuring or wounding any animal under Section 428 and prescribes imprisonment of two years. Similarly, Section 429 also talks about the killing or injuring of cow, elephant, etc. where imprisonment can be of five years though it is a bailable offence.

 

 

Judicial View on Animal Rights

In the case of Mohd. Hanif Quareshi & ors. V. State of Bihar (1958) AIR 731; the court gave the view that the slaughter of the goat for the religious purposes in Muslim culture is not a mandatory part of their religion. The court looked under Article 25 of the Constitution where the freedom to practice and profess religion is not overlooked. The sacrifice of the goat in the Muslim festivities cannot be seen as an obligatory act nor can it be said that it violates the fundamental rights. Thus, the ban on such butchering of animals is not against Constitution and also not against Fundamental Right grated to people under Article 25 as well.

In the case of Mohd. Faruk V. State of Madhya Pradesh & ors. (1970) AIR 93, a notification by the government was issued with total prohibition on killing of bulls and bullocks. The court upheld that the state can impose restriction under Article 19 of the Constitution but it has to be justified. The justification that it was against public policy as it hurt sentiments of a religion and total ban is not correct. The court held that the notification is definitely against the Constitution of India and is void in nature.

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In the case of Haji Usmanbhai Hasanbhai Qureshi V. State of Gujarat (1986) AIR 1213, the issue arose whether the restriction by the state act of Bombay which imposed that the butchering of the bulls below the age of sixteen years is forbidden by the law is a valid one or not. It also invoked Article 19 of the Constitution of the freedom of trade of butchers for slaughter of animals and restriction placed upon their trade. The court upheld that the bulls which are below  the age of sixteen years and other have the restriction or ban that is completely justified were bulls are required for agricultural work and thus, the ban is justified and does not violate Article 19 of the Constitution as reasonable restriction is placed.

In the important judgement of State of West Bengal V. Ashutosh Lahiri AIR (1995) SC 464, the Supreme Court gave the decision that the sacrifice of a cow is not a part of religious activity among Muslim festivities. No constitutional right is infringed and the sacrifice for the professing of religion and its freedom are intact which does not hold the butchering of cows in the culture of Muslims as imperative.

In the case of N. R. Nair & ors. V. Union of India & ors. AIR (2000) Ker 340, the court declared that the animals that are performing in circuses and other activities where they are brutally kept and are mistreated. Some of these animals like monkeys; lions etc. are put in a cage away from their home and suffer severely. That is why the court said that these activities by performing animals put them in acute pain and affects their right as part in the society and violates and infringes the rights of the animals.

In the case of State of Gujarat V. Mirzapur Moti Kureshi Kassab (2005) SC, Appeal (Civil) No. 4937-4940 of 1998, it was contented that the legislation enacted in  several states which completely banned the slaughter of cows and other bovine animals was violating the fundamental rights. The sacrifice of cow is considered as a part of religion in Islam and the ban on the slaughter was contented to be against their rights. The butchers’ right of trade and profession under the Constitution was infringed by this complete ban on the cows and other animals’ slaughter and sale.

The Supreme Court held that the arguments in the first instance was baseless as the sacrifice of the cows is not considered as a necessary part of their custom or religion nor was it supported by any holy scriptures. Thus, the ban on the slaughter in that instance was completely and correctly justified and does not violate any religious rights of any community. In the second issue, the court said that under Article 19 of the Constitution, the fundamental right of freedom of trade and profession is not unrestricted. There are certain impositions which can be imposed by the government if the practice goes against the morality or Constitution itself. The slaughtering of cows takes away the animal rights of it and renders it helpless. Cow contributes through its milk produce in the country and is to be preserved and protected for that welfare.

In the case of Gauri Maulekhi V. Union of India & ors. (2014) SC, Writ Petition (C) No. 881/2014, the Supreme Court held by its order that no animal can be passed overseas to Nepal which will be unlawful. The court said that this is indirect violation of export policy of India and cattle cannot thus be transported across the border without a license. The action of cattle going to Nepal illegally needs to be stopped. The sacrifice of animal in the Festival in Nepal is in complete infringement and the order provided for the welfare of cattle in the country.

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In the case of Laxmi Narain Modi V. Union of India & ors. (2014) 1 SCC 612, the Supreme Court issued the order that the regular and observed investigation and examination of the slaughterhouses are necessary. The issuing of license for the slaughter of animals is a must requirement which ensures safeguard of the animals and no illegal activities but the slaughterhouses are still operating without licenses which are unlawful in nature. The State Committees made in this matter have to enforce and do their work with diligence under Prevention of Cruelty to Animals Rules, 2000 and also have submit regular reports of any slaughterhouse not working within the lawful means and inhumane treatment of animals.

In the case of Wildlife Rescue and Rehabilitation Centre & ors. V. Union of India & ors. (2014) SC, Writ Petition (C) No. 743 of 2014, the issue involved where elephants are owned by people in Kerala and these have to be declared to the State under the Wildlife Protection Act and consequently the certificate is to be issued. The declaration of owning of animals is not done by many people along with it the cruelty is shown on them. The animals that are injured and sick are forced to participate in the festivities. The Supreme Court held that the registration is necessary as well as declaration. The regulations which relate to animals being used in festivities have to be followed completely with no exception.

In the recent case of Animal Welfare Board of India V. A. Nagaraja & ors. (2014) SC (Jallikattu Case), Civil Appeal No. 5387 of 2014, the Hon’ble Supreme Court of India took a stern step forward in declaring that the activities like Jallikattu, Bullock-cart races and other such activities need to be stopped as they violate the legislation created for the animal welfare, i.e., Prevention of Cruelty to Animal Act, 1960. This legislation is specifically enacted to look over the rights of the animals and its violation. These activities are harmful to the bulls, where they are beaten brutally. The torture and trauma to these animals are severe were their right to live with freedom is violated. They are forced to participate in them. Bulls are mutilated through this act, their limbs are torn, and dislocation of body parts, severe injuries and sometimes death takes place as well.

The court gave its decision holding that these activities do not form the necessary part of the religion or any custom in State of Tamil Nadu or Maharashtra, or anywhere in the country. It is basically done for entertainment purpose. In lieu of the entertainment, the cruelties inflicted on these animals are extreme. Thus, the plea cannot be supported for the reason of being an essential part of any tradition of a community. The court provided that the animals have dignity and right to life as well which is being protected through constitutional measures as well as statutory acts. Thus, the court upheld the lower court’s decision that bulls are banned to be used for entertainment purposes and issued several directions for taking reasonable care of them.

Conclusion

 It can thus be concluded that the protection and the preservation of animal rights in the society are a necessary requirement. The judiciary and legislature has taken steps so as to ensure that the rights of animals are maintained. The court makes it possible to keep in check the cruelty, the damage and destruction of the rights of animals are not done; that they are given the status in the society. This is why the rights of animals are justified throughout the country.

Author: Arushi Anand,
Vivekananda Institute of Professional Studies, 4th Year

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