Rights of Birds to “Fly”
Before beginning to talk about the „Rights‟ of „Birds‟, I should better start with a question of “What is Bird”? According to the Oxford dictionary, it means “A warm-blooded egg-laying vertebrate animal distinguished by the possession of feathers, wings, a beak, and typically by being able to fly”.
Animals have been playing a very crucial part in human‟s life since time immemorial, if you look into the history then people come to know that not only ‘Animals’ like Elephant or Horses, but also ‘Birds’ played a very crucial role in the day to day life. Since; there was a lack of transportation system, one of the fast ways of communication was through „Birds‟ to send and receive messages on important issues. Moreover, they are also used in the growth of “Crops and Trees”, because it has been proved by the scientist that Pollen grains (Seeds) get attached to the claws of birds when they sit on flowers and this way once they get over to other lands, they end up by transferring pollen grains to that area; which ultimately help in the growth of trees in that area.
Do Birds have a fundamental right to “Fly”?
Now the Supreme Court will examine whether birds have a “fundamental right to fly”, as the Gujarat High Court said. It is a question not only of philosophical importance but it can directly impact the business of buying and selling of birds and animals.
HISTORY BEHIND THE CASES:
Now we have an issue of “do birds have a right to fly”? A petition had filled in November 2015, at the Supreme Court of India over the “Do Birds have Fundamental right fly”?
The history behind this case is that two pet shops in Gujarat, on the ground of “Prevention of Cruelty to Animals Act, 1960”, which were operating without the license was shut down by the Police authorities and the Pet shop owners have filed a case in the lower court for the recovery of the equivalent amount as against their pet, which was confiscated by the police authority. The defence later approached the Higher Court on the ground of “Cruelty against Animals”.
On the similar concern the case had also filled in the Delhi district court and the judgement have been delivered by the Delhi High Court which alike the Gujarat High Court Judgement on the same issue.
Hearing several Special Criminal Applications in May 2011, Justice M.R. Shah of Gujarat High Court had observed, “When everybody is talking about fundamental rights of the citizen, such as, right to live freely, right to food, right to move freely etc. a day has come to think about the rights of the birds and animals, because of such act even the birds have vanished and their numbers are in decrease.”. The Honourable Gujarat High Court had also passed judgement over the same above issue and stated that „Keeping of Birds in cages was tantamount to “Illegal” confinement‟.
The Gujarat High Court observed that:
“Nobody has a right to inflict pain or suffering to others inclusive of the animals and birds. Even birds cannot be kept in cages by which they suffer. To keep birds in cages would tantamount to illegal confinement of the birds which violates the right of the birds to live in free air/sky. For the aforesaid, a specific law might not be required. It is the fundamental right of the bird to live freely in the open sky,”
Delhi High Court had observed that birds should be allowed to fly free and not be kept in cages or subjected to cruelty. “I am clear in mind that all birds have Fundamental Rights to fly in the sky and all human beings have no right to keep them in small cages for their business or otherwise,” Justice Manmohan had observed.
Now the petition has been challenged in the apex court i.e., Supreme Court of India, through a separate petition by a body of pet lovers and some bird sellers, who argued that safeguards under the Prevention of Cruelty to Animals Act, 1960 and the Wildlife Protection Act, 1972 were sufficient to birds and animals. The petitioners also argued that birds and animals provided happiness and companionship to humans, which was therapeutic.
Rights-Duty Relation (You Ought)
Hohfeld believe that the nature of claim and duty was sufficiently clear. This was perhaps rather a facile assumption. He did, however, point out that the clue to claim to lie in the duty, which is the prescriptive pattern of behaviour. A claim is, therefore, simply a sign that some people ought to behave in a certain way. Sometimes the party benefited by the pattern of conduct can bring an action to recover compensation for its non-observance, or he may be able to avail himself of more indirect consequences. At other times he can do nothing.
The correlation of claim and duty is not perfect; nor did Hohfeld assert that it was. Every claim implies the existence of a correlative duty since it has no content apart from the duty. The statement, “X” has a claim, is vacuous; but the statement; ‘X has a claim that Y ought to pay him ₹100’, is meaningful because its content derives from Y’s duty.
|Rights (Claims)||Liberty (Privilege)|
In the same manner, if we look at the Judgements which were passed by the two different High courts, stated that: “Birds do have a fundamental Right to fly”. This according to Hohfeld analysis is the Rights of Birds to fly, which came with a corresponding duty upon Humans, not to kill them or not confine them into cages, even though human beings are giving them proper food, every time, but still flying is the Fundamental Rights of the birds and if we are not doing our duty, then we are somewhere breaking someone else rights, for which the Laws have been made like “Protection of Animals from Cruelty Act, 1960” and “Wildlife Protection Act, 1972”; which comes with punishment, fine or with both. In this way, we are implementing the Hohfeld “Jural Correlative” analysis, in the present issue. But still, people are waiting for the apex court judgement on the said concern.
In my personal opinion, I am also standing with the different high Court’s judgement, because „Birds or animals, don’t speak for themselves‟. We ended up by empowering them with force, which makes them not less than a robot and all this happen, just to satisfy our desires and comfort. When will we understand the pain suffered by these animals or birds, which I think these courts were successful and reflected through their judgements.
During the research, I came across, with many reports which depict that “Life in captivity is frequently a death sentence for birds, who are often lonely and malnourished and suffer from the stress of confinement”. Confinement causes birds to have temper tantrums and mood swings. The Los Angeles Times reported that parrots “quickly become frustrated „perch potatoes‟ in captivity. … Many end up obese and with serious behavioural problems such as screaming, biting and self-mutilation by plucking out their feathers.” James Serpell, director of the Centre for the Interaction of Animals and Society at the University of Pennsylvania, says, “Parrots are the primates of the bird world. They aren’t content to sit on a perch and sing.”
- Oxford dictionary
- Dias book on Jurisprudence
- Supreme court online and www.peta.org
Author: Yuvraj Ranolia,
School of Law, Christ (deemed to be) University, Bengaluru, Karnataka, India.