Citation: 2019 SCC ONLINE P&H 704
Court: High Court of Punjab And Haryana At Chandigarh
Judge: Justice Rajiv Sharma
Theme- Animal Rights
Subject: Constitutional law
“The universe along with it creatures belongs to the land. No creature is superior to any other being. Human beings should not be above nature. Let no one species encroach over the rights and privileges of other species.”
The beauty of the Indian Constitution is that it includes I, you and we. Such a magnificent monumental and social document embodies the emphatic inclusion which is nurtured by judicial sensitivity into the golden triangle of Fundamental Rights. It is the fundamental duty prescribed under Article 51-A of Part IV-A of the Indian Constitution to have compassion for living creatures. It should be the endeavour of the state under Article 48 of the Indian Constitution to organise agriculture and animal husbandry in the line of modern and scientific techniques for preserving and improving the breeds. The state government is under the obligation to protect and improve environment and to safeguard the forests and wildlife of the country as per Article 48 –A of the Indian Constitution.
BACKGROUND OF THE CASE:
“Unit we extend the circle of compassion to all living things we will not find peace. No man shall exercise any kind of tyranny or cruelties towards any creature which are usually kept for man’s use.”
The fact of the case arose in the year 2004 when a case related to the transportation of cows from one province to another was made in relation to the violation of restriction on the export of cows for meat slaughter. The learned Judicial Magistrate 1ST Class Karnal in this particular case has sentenced the accused persons for an imprisonment of two years along with fine of Rs 1500 each for the offence under Section 4-b/8 of The Punjab Prohibition of Cow Slaughter Act and in the default of payment the accused person has to undergo imprisonment of period of 15 days more. The petitioners thereafter filed an appeal. It was dismissed by appellate court but the sentence was reduced from two years to six months. Thereafter, a petition was filed in the Honourable High Court of Punjab and Haryana, where High Court in an exceptional judgement declared that animal and birds have legal rights just like other human beings. The court has further declared citizens as the guardian of the animal kingdom with the duty to ensure their welfare and protection. Justice Rajiv Sharma in his judgement has stated that, “All the animals have the honour and dignity. Every species has inherent right to live and to be protected by law. The right to life and privacy of animals are subjected to be protected from personal and unlawful attacks. The Corporation, Hindu Idols, rivers and scriptures have been declared as legal entities and thus in order to protect and promote greater welfare of animals it is required that animals of all species be conferred with the status of legal entity or legal person. The animals should be healthy, comfortable, well nourished, safe and able to express innate behaviour without pain, fear and distress. They are entitled to all rights as guaranteed in the preamble of the Indian Constitution and animals cannot be treated as object or property which is to be exploited.”
“Extending rights to the new entities always appears unthinkable until the change is actually effected as we tend to suppose the rightlessness of rightless things to be the decree of nature not a legal convention acting in support of status quo”-
DO ANIMALS FALL WITHIN THE CATEGORY OF JURISTIC PERSON
“The very word “juristic person” connotes the recognition of an entity to be in law a person which otherwise it is not. In other words juristic person is not an individual natural person but an artificially created person which is to be recognised to be in law as much.”
In the case of Yogendra Nath Naskar v. Commissioner of Income Tax Calcutta the Honourable Supreme Court of India was of opinion that “a Hindu Idol is a juristic entity capable of holding property and of being taxed who are entrusted with the possession and management of the property.”
In the another case of “Ram Jankijee Deities & Others v. State of Bihar and Others it was held by the apex court that images according to Hindu authorities are of two kinds. First is known as Sayambhu or self existent while the second one is Pratisthita or established. A Sayambhu is a product of nature while Pratisthita is manmade image which is painted on walls or on canvas. God is omnipotent and omniscient and its presence is felt not by reason of a particular form but being the reason that it is omnipotent. It was further held that the deity is the juridical person entitled to hold property.
In the case of Moorti Shree Behari Ji v Prem Dass others it was held that a deity can sue a pauper. It was held that when the question arises as to why a deity who is a juristic person and can sue or be sued as through its pujari. It was held that by the court that a deity can be sue as pauper, which describes the juristic nature of deity.
In the case of Shiromani Gurudwara Prabandhak Committee Amritsar v. Shri Som Nath Dass & Others the Honourable Supreme Court held that the concept of juristic person, arouse out of the necessities in the human development. Recognition of entity as juristic person- is for sub serving the needs and faith of the society. The endowment of being the juristic person may be given for the various purposes may be for idol, church or gurudwara or such other things that the human faculty may conceive of out of faith and conscience but it gains the status of juristic person when it is recognised by the society.
Inanimate objects are sometimes parties in litigation. A ship has the legal personality a fiction found useful for maritime purposes. The voice of inanimate objects therefore should not be stilled. That does not mean that the judiciary will take over the managerial function of the federal agency.
DOES THE TERM LIFE AND PERSONAL LIBERTY UNDER ARTICLE 21 BELONG TO HUMAN BEINGS ONLY?
“By the term “life” means more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any organ of the body through which soul communicates with the outer world” – Field J.
In the new and wider interpretations of Article 21 of Indian constitution the Honourable Supreme Court of India held that “Right to live” does not mean the confinement to physical existence but it includes within the ambit the right to live with Human dignity. While expanding and widening the ambit of Article 21, the Supreme Court of India held that the word “life” may include all those things which are the bare necessities of life such as food, shelter, clothing and adequate nutrition. The Supreme Court also extended the concept of life and held that “Life” is not limited to “death” but, when a person is executed with death penalty and doctor gave the death certificate and dead body was not lowered down for half an hour after the certificate of death, is thus violation of Right to life under Article 21 of Indian Constitution. It is thus only because of wider interpretation of Article 21 which has guaranteed every human being outside or behind the bars certain basic rights and not even the State has the authority to violate those rights.
In the another case of Bharat Amratlal Kothari & another v. Dosukhan Samadkhan Sindhi &Others it was held by the apex court that animals filled in the trucks in a cruel manner and being transported, seized by the police on the complainant report and sent to pinjrapole and the owner of animals claiming custody of animals. In such circumstances normal cost of maintenance of treatment of animals under section 35(4) would be payable by person claiming the custody and not be complainant.
In the case of Animal Welfare Board of India v. A Nagaraja & Others have held that animal welfare laws have to be interpreted keeping in mind the welfare of animals and species best interest subject to just exceptions out of human necessity. The court further held that there recognised freedoms of animals under
(i) Freedom from hunger, thirst and malnutrition
(ii) Freedom from fear and distress
(iii) Freedom from physical and thermal discomfort.
(iv) Freedom from pain, injury and disease.
(v) Freedom to express normal patterns of behaviour
Every species has a right to life and security subject to the law of the land which includes in its ambit the right under Article 21. The term life under Article 21 of the Indian Constitution has been given expanded definition which includes in its ambit all forms of life, including human life, which are necessary for human life within the meaning of life. So far as the term life is concerned, life means something more than mere survival or existence or instrumental value of human being but to lead a life with some intrinsic worth, honour and dignity. The court with regard to the animals has the duty of parens patriae to take care the rights of animals since they are unable to take care of themselves as against human beings.
The most beautiful thing that has been provided by the Constitution to the citizens of India is the “Life”. The word life has its significance since the beginning of human civilization and it can be seen in the ancient times that the prime concern of the King is to protect the life of the people. With the advent of the concept of the welfare state “Protection of life” has been guaranteed in the constitution in different forms as the most important natural rights, human rights, basic rights, fundamental rights or constitutional rights. Every person as well as animal requires certain essential rights for their survival without which the life would be impossible to live. Therefore, for me the Constitution of India is “HARBINGER OF LIFE”
WHETHER THE DOCTRINE OF PARENS PATRIAE COULD BE APPLIED WITH REGARD TO THE RIGHTS OF ANIMAL’S PROTECTION?
Black’s Law Dictionary define “Parens Patriae”
- The State is regarded as a sovereign: the state in its capacity as provider of protection to those who are unable to care for themselves.
- A doctrine by which a government has standing to prosecute a lawsuit on behalf of citizen especially on behalf of someone who is under a legal disability to prosecute the suit. The state ordinarily has no standing to sue on behalf of its citizens, unless a separate sovereign interest will be served by the suit.
In the case of Charan Lal Sahu v. Union of India the Constitution Bench while developing the concept of Parens Patriae stated that:
“Parens Patriae jurisdiction is the right of the sovereign and imposes a duty on sovereign, in public interest to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differ from country to country, for instance in England it is the king, in the America it is the people.” Thus the government is within the duty to protect and control persons under disability. Conceptually the theory of parens patriae is the obligation of the state to protect and takes into the custody the rights and the privileges of its citizens for discharging its obligations. Our constitution makes it imperative for the state to secure to all its citizens the rights guaranteed by the Constitution and where the citizen are not in the position to assert and secure their rights the state must come into picture and protect and fight for the rights of citizen.
It shall be the duty of every individual having the care or charge of any animal to take all reasonable measures to ensure the well being of such animal and to prevent any kind of infliction upon any animal which causes pain and sufferings.
IS THERE ANY INTERNATIONAL APPROACH WITH REGARD TO ANIMAL WELFARE AND PROTECTION?
It is very unfortunate that till date there is no international agreement that ensures the welfare and protection of animals. The United Nation Organisation all these years have safeguarded only the rights of human being not the rights of other species like animals and totally ignoring the fact that many of these animals and species have sacrificed their lives to alleviate human suffering combating diseases and as a food for human consumption. It is the matter of utter shame that the International community have not recognised the rights of animals which has served the humanity from the time of Adam and Eve. Environmentalist has noticed three stages in the development of international environment law which is as follows:
- FIRST STAGE: HUMAN SELF INTEREST
The first stage was fuelled by the recognition and conservation of nature was in the common interest of all mankind. The instrument that was executed during this time included the Declaration of the Protection of Birds useful to Agriculture (1875), Convention designed to ensure the protection of various species of wild animals (1900), and Convention for the Regulation of Whaling (1931).
- SECOND STAGE: INTERNATIONAL EQUITY
The second stage saw the extension of treaties beyond the requirement of the present generation to meet the ends of the future generation. Thus the second stage leads to the shift from pure tenets of anthropocentrism. The Stockholm Declaration of the United Nations Organisation embodies the shift in thinking stating that the man bears the solemn responsibility to protect and improve the environment for the present and future generations. Subsequently this declaration asserts that the natural resources of the earth must be safeguarded for the benefit of human beings only. Thus this stage leads to the shift in the sustainable development.
- THIRD STAGE: NATURE OWNS RIGHT
In the third stage where the mankind has become so eager to exploit the natural resources there felt a need to have some multinational instruments which bears upon the intrinsic value of nature. United Nations Biodiversity Convention (1992) has made emphasis on the intrinsic value of the nature and it asserts to have, “Conscious of the intrinsic value of the biological diversity and of the ecological genetic, social, economic, educational, cultural, recreational and aesthetic value of biological diversity and its components”.
The world charter for the nature proclaims that “every form of life is unique, warranting respect regardless of its worth to man.” The charter uses the term in the preference to environment with a view to shifting to non- anthropocentric human dependent terminology.
Based on these eccentric circles rights of the animals have been recognised in various other countries. The Constitution of Germany by way of amendment made in the year 2002 have added the word “Animals” and obliges the state to have respect towards “animal dignity”. The dignity of animal is now constitutionally recognised in countries like Switzerland, Austria and Slovenia. These countries have enacted legislations to include animal welfare in their national constitutions so as to balance the interest of animals with regard to their own freedom from unnecessary sufferings, pain, damage and fear.
HUMANISM V. ANIMALISM
“On the frontier of legal change there is growing global movement to recognise non human animal as the legal persons, a radical change that would endow them with variety of legal rights. Animal rights advocates are not saying primates, cetaceans or elephants as people. A legal person is not necessarily a human being but rather an entity to which the law grants specific rights.”
Article 51- A (h) under Part IV-A of the Constitution of India states that it shall be the duty of every citizen of the nation to develop scientific temper, humanism and the spirit of enquiry and reform. Thus, under this part emphasis has been made to the specific term i.e. humanism which has a number of meanings. Humanism means to understand benevolence, compassion, mercy etc. To look after the welfare and well being of the animals it is the prime duty of every citizen to prevent the infliction of pain, suffering on animals which highlight the principle of humanism in Article 51-A . it is the fundamental duty of all citizens to have the compassion for the living creatures. It is also the endeavour of the state under Article 48 of the Indian constitution to protect and improve the environment and to safeguard the forest and wildlife of the country as per Article 48-A of the Indian constitution.
Animals and various other species have the honour and dignity which cannot be arbitrarily deprived of rights and privacy has to be respected and protected from unlawful attacks. The time has come where each and every individual has to show compassion towards all living creatures. Animals may be mute or voiceless but we as society as to speak on their behalf. No pain or agony should be caused to the animals. Any kind of cruelty to animal may cause physiological pain to them. In the context of Hindu Mythology every animal is associated with God. Animal breathe like us and o have the emotions like other human beings. Due to the exploitation on the part of human beings we are facing with the harsher time. Due to the damage that is caused to the ecology and the environment the life of the avian and aquatic animals are now at stake. Aquatic species cannot survive without water and toxic pollution in the atmosphere has made life to live as harsh in the modern era of 2020. Many species are now on the way to extinct many of them having become extinct. The loss of one species affects the whole ecosystem and food chain. Global warming with the passing days is now showing its effects. Thus the time has come to think about the law which greater effect in order to protect the ecology and the environment.
“The greatness of the nation can be judged by the way its animals are treated”- Mahatma Gandhi
The shelter of the legal umbrella would also provide more effective protection of animal interest than is available under the current animal welfare law. As legal persons, animals could be recognised as parties to the legal action because they would have the independent standing that is lacking currently in the modern time. There is no conceptual problem with regard to the fact that animals have inability to speak which means that they would require human legal persons to represent themselves. The concept of the legal personality is construction of law. Thus the same concept can be extended to animals. The multiplicities of animal beings with which they share the world deserve to be treated not as a means to human end but as ends in themselves. Thus in the nutshell the rights and privacy of animals are to be respected and protected from unlawful attacks. The corporation, Hindu idols, scriptures and rivers has been declared legal entities and thus in order to protect and promote the welfare of the animal including the avian and aquatic animals are required to be conferred with status of legal personality. The animals should be comfortable, healthy, safe, well nourished and able to express innate behaviour without pain, fear and distress.
“Environmental damage is often gradual not easily apparent and by the time we become aware of it, it is generally too late.”
“The entire animal kingdom including the avian and aquatic is declared as legal entities having distinct persona with corresponding rights, duties and liabilities of the living person. All the citizens are in loco parentis as the human face for the welfare/ protection of animals.”
“Live and let Live”
 (1969) 1 SCC 555.
 1999 (5) SCC 50.
 AIR 1972 All 287.
 AIR 2000 SC 1421.
 Observation by Field J in Munn v.Illinois, 94 US 11.
 Maneka Gandhi v. Union o f India, AIR 1978 SC 597, and followed m Francis Coralie v. Delhi Administration, AIR 1981 SC 746
 Francis Coralie v Delhi Administration, AIR 1981 SC 746
 Pandit Parmanand v Union o f India, (1995) 3 SCC 248
 (2010) 1 SCC 234.
 (2014) 7 SCC 547
 (1990) 1 SCC 613
Contributed By: Pranav Kaushal (Students, Bahra University)