Rights and Liberty of animals and birds

Submitted in partial fulfillment of the requirements

For the award of the degree B.Com. LL.B. (Hons)

Submitted by

M.ARAVINDAN
BC0140010
Submitted to

MS. Nikitha

TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPPALLI – 620 009

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INTRODUCTION

Article 21 reads as:

“No person shall be deprived of his life or personal liberty except according to a procedure
established by law.”

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in

a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta
protective of life and liberty.

This right has been held to be the heart of the Constitution, the most organic and progressive
provision in our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by
the “State” as defined in Article 12. Violation of the right by private individuals is not within the
preview of Article 21.

Article 21 secures two rights:

1) Right to life

2) Right to personal liberty

The Article prohibits the deprivation of the above rights except according to a procedure
established by law .Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to
the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI of
the Constitution of Japan, 1946.

Article 21 applies to natural persons. The right is available to every person, citizen or alien.
Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to
reside and settle in India, as mentioned in Article 19 (1) (e).

MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

‘Everyone has the right to life, liberty and the security of person.’ The right to life is undoubtedly
the most fundamental of all rights. All other rights add quality to the life in question and depend

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on the pre-existence of life itself for their operation. As human rights can only attach to living
beings, one might expect the right to life itself to be in some sense primary, since none of the
other rights would have any value or utility without it. There would have been no Fundamental
Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will
examine the right to life as interpreted and applied by the Supreme Court of India.

Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his
life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of
the Constitution is not merely the physical act of breathing. It does not connote mere animal
existence or continued drudgery through life. It has a much wider meaning which includes right
to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.
Right to life is fundamental to our very existence without which we cannot live as human being
and includes all those aspects of life, which go to make a man’s life meaningful, complete, and
worth living. It is the only article in the Constitution that has received the widest possible
interpretation. Under the canopy of Article 21 so many rights have found shelter, growth and
nourishment. Thus, the bare necessities, minimum and basic requirements that is essential and
unavoidable for a person is the core concept of right to life

Finest provisions to safeguard animals in India:

India has some of the finest provisions to safeguard animals in the world. For example, did you
know it is illegal to relocate stray dogs that have been spayed? Or that it is illegal to incite or
organize animal fights? Many people may be unaware of the laws compassionate lawmakers
have passed to safeguard animals.

Here, Humane Society International/India gives you the lowdown on legislation in relation to
animal welfare in India so you can be informed of what protections are available to animals.

1. It is the fundamental duty of every citizen of India to have compassion for all living creatures.
Article 51A(g).

2. To kill or maim any animal, including stray animals, is a punishable offence. IPC Sections 428
and 429.

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3. Abandoning any animal for any reason can land you in prison for up to three months. Section
11(1)(i) and Section 11(1)(j), PCA Act, 1960.

4. No animal (including chickens) can be slaughtered in any place other than a slaughterhouse.
Sick or pregnant animals shall not be slaughtered. Rule 3, of Prevention of Cruelty to Animals,
(Slaughterhouse) Rules, 2001 and Chapter 4, Food Safety and Standards Regulations, 2011.

5. Stray dogs that have been operated for birth control cannot be captured or relocated by
anybody including any authority. ABC Rules, 2001.

6. Neglecting an animal by denying her sufficient food, water, shelter and exercise or by keeping
him chained/confined for long hours is punishable by a fine or imprisonment of up to 3 months
or both. Section 11(1)(h), PCA Act, 1960.

7. Monkeys are protected under the Wildlife (Protection)Act, 1972 and cannot be displayed or
owned.

8. Bears, monkeys, tigers, panthers, lions and bulls are prohibited from being trained and used
for entertainment purposes, either in circuses or streets. Section 22(ii), PCA Act, 1960.

9. Animal sacrifice is illegal in every part of the country. Rule 3, Slaughterhouse Rules, 2001.

10. Organizing of or participating in or inciting any animal fight is a cognizable offence. Section
11(1)(m)(ii) and Section 11(1)(n), PCA Act, 1960.

Indians watch a traditional buffalo fight in progress at Ahatguri, some 80 kms away from
Guwahati, the capital city of India’ s northeastern state of Assam on 15 January 2014. The age-
old buffalo fight is organised on the occasion of the harvest festival 'Bhogali Bihu' in Assam.
PHOTO/ Biju BORO

11. Cosmetics tested on animals and the import of cosmetics tested on animals is banned. Rules
148-C and 135-B of Drugs & Cosmetics Rules, 1945.

12. Teasing, feeding or disturbing the animals in a zoo and littering the zoo premises is an
offence punishable by a fine of Rs. 25000 or imprisonment of up to three years or both. Section
38J, Wildlife (Protection) Act, 1972.

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13. Capturing, trapping, poisoning or baiting of any wild animal or even attempting to do so is
punishable by law, with a fine of up to Rs. 25000 or imprisonment of up to seven years or both.
Section 9, Wildlife (Protection) Act, 1972.

14. Disturbing or destroying eggs or nests of birds and reptiles or chopping a tree having nests of
such birds and reptiles or even attempting to do so constitutes to hunting and attracts a
punishment of a fine of up to Rs. 25000, or imprisonment of up to seven years or both. Section 9,
Wildlife (Protection) Act, 1972.

15. Conveying or carrying animals whether in or upon any vehicle, in any manner or position
which causes discomfort, pain or suffering is a punishable offence under two Central Acts.
Section 11(1)(d) Prevention of Cruelty to Animals, (Transport of Animal) Rules, 2001 and
Motor Vehicles Act 1978.

Article 51A(g) in The Constitution Of India 1949

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life,
and to have compassion for living creatures

A few days ago the Delhi High Court delivered an oral order in People for Animals v Md.
Mohazzim (birds’ case). The case was initiated back in October 2004, when the police seized the
birds and animals ‘belonging’ to the respondent and registered an FIR due to violation of the
Prevention of Cruelty (Capture of Animals) Rules, 1979. The rules state that birds and animals
cannot be captured except by specific methods as prescribed under the said rule. The rules are
framed under subsection (2) of Section 38 of the Prevention of Cruelty to Animals Act, 1960
(PCA Act). Subsection (3) states that any contravention of the rules would leave the respective
person liable to a fine and/or imprisonment.

The owner of the animals (and respondent in this case) then filed an application to release the
birds on ‘superdari’ – i.e., conditional return of possession of ‘property’ connected with an
offence. The application was allowed. A revision petition was unsuccessfully filed for release of
the birds. Then the petition in this case was filed, along with “colour photographs” which
showed that birds were being kept in small cages. The Court was then informed that this is

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common practice; and that thousands of birds are being treated in a similar manner, being sold in
‘commercial’ markets.

The Court then held that running the trade of birds was in violation of their rights; and that they
“deserve sympathy”. As was widely reported across print and electronic media, the Delhi High
Court held that it is “settled law” that “all the birds have fundamental rights to fly in the sky”.
Instead, the Court observed, they are being exported illegally to foreign countries. Opining that
human beings have no right to keep birds in small cages for the purpose of their business or
otherwise, the Court issued notice.

Having not referred to any constitutional provision, the Court approvingly cited the A. Nagaraja
v Animal Welfare Board case (popularly called the Jalikattu case). It was observed that the
Jalikattu case recognized ‘five fundamental rights’ of animals, including the right to live with
dignity.

It is thus instructive to briefly discuss the Jalikattu case as well. In a landmark case last year, the
Court was called upon to decide the legality of events such as Bullock Cart races, Jalikattu, etc.
The Court examined the facts and decided that the practices violate the statutory mandate under
Section 3 and Section 11 of the PCA Act. Section 3 prescribes duties of persons in charge in
animals (taking reasonable measures to ensure well-being; and preventing unnecessary pain or
suffering). Section 11 criminalizes cruel treatment of animals, and lists various activities which
count as ‘cruel’.

Having found so, the Court further held that the PCA Act must be read in conjunction with
Article 51A(g) and 51A(h) – the ‘magna carta’ of animal rights. Moreover, the Court held that
“all forms of life, including animal life … fall within the meaning of Article 21 of the
Constitution”. It was also observed, “Rights guaranteed to the animals under Sections 3, 11, etc.
are only statutory rights. The same have to be elevated to the status of fundamental rights, as has
been done by few countries around the world, so as to secure their honour and dignity.” Having
listed the five freedoms for animals as per the guidelines of the World Organization for Animal
Health, the Court held that “[t]hese five freedoms, as already indicated, are considered to be the
fundamental principles of animal welfare and we can say that these freedoms find a place in

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Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens
of this country under Part III of the Constitution of India.”

The Jalikattu case was considered landmark, and many activists hailed it as a case watershed
moment for animal rights adjudication. However, for constitutional scholars, these cases raise
more questions than they answer. The recognition of constitutional rights are not accompanied
by a discussion of the full implications of such recognition. Questions of seminal importance for
constitutional rights adjudication arise – including but not limited to questions of horizontal
application of rights, conflict of rights, locating the duty holders, etc. – none of which the Court
(both in Jalikattu and birds’ case) clarifies. These issue arise precisely due to the nature and
method of adjudication by the Court. As I will illustrate below, the cases are decided on grounds
of constitutional law even when the dispute could have been sufficiently resolved by means of
recourse to clearly provided statutory law.

I would like to argue for a restraintivist approach to animal rights adjudication, drawing upon the
doctrine of ‘constitutional avoidance’ (Note I am not advocating for or against animal rights, but
only for a particular method of adjudication). This thought is best captured in Justice Brandeis’
concurrence in Ashworth v TVA, although there are plenty of documents tracing the
development of the idea over the years. Justice Brandeis laid down seven facets of constitutional
avoidance:

The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary,
proceeding.

The Court will not “anticipate a question of constitutional law in advance of the necessity of
deciding it.”

The Court will not “formulate a rule of constitutional law broader than is required by the precise
facts to which it is to be applied.”

The Court will not pass upon a constitutional question, although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of …
Thus, if a case can be decided on either of two grounds, one involving a constitutional question,
the other a question of statutory construction or general law, the Court will decide only the latter.

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The Court will not pass upon the validity of a statute upon complaint of one who fails to show
that he is injured by its operation.

The Court will not pass upon the constitutionality of a statute at the instance of one who has
availed himself of its benefits.

When the validity of an act of the Congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided.

Of particular importance to this essay are facets 2, 3 and 4. Keeping in mind the fallibility of
human judgment, it is advocated that Courts, as far as possible, avoid judgment on grounds of
constitutional law. This is a policy of judicial minimalism in adjudication. Constitutional
avoidance proposes that when remedial options are both statute – based and constitution – based,
the court must prefer the former.

The issue before the Delhi High Court in the birds’ case was the caging of birds. This is squarely
covered by S. 11(e) of the PCA Act, which bars keeping any animal in any cage which does not
permit reasonable opportunity for movement. Instead, the Court simply states that birds cannot
be kept in small cages for any purpose, since they have a fundamental right to fly in the sky! The
jalikattu issue was, of course, found to be covered by the contours of S. 11 of the PCA Act. Thus
there was no need to ‘constitutionalize’ the issue when statute based adjudication was sufficient.
It is clear that a whole host of doctrinal puzzles and clash of constitutional principles could have
been avoided. Apart from all the theoretical puzzles opened up (and left unanswered), there is
always the possibility of misinterpretation. For example, the ‘five freedoms’ read into S. 11 of
the PCA Act has been described as the five fundamental rights of animals in the birds case.

The doctrine of constitutional avoidance has been given recent scholarly attention in cases
involving social rights. Scholars have claimed that many of the social rights cases in India could
have been adjudicated on statutory or administrative law grounds, rather than on constitutional
law grounds. The critical advantage is that it gives the legislature flexibility and discretion. The
same argument follows for contested concepts like animal rights.

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ARTICLE 21 AND THE EMERGENCY

In A.D.M. Jabalpur v. S. Shukla, Popularly known as habeas corpus case, the supreme court held
that article 21 was the sole repository of the right to life and personal liberty and therefore, if the
right to move any court for the enforcement of that right was suspended by the presidential order
under article 359, the detune would have no locus standi to a writ petition for challenging the
legality of his detention.

Such a wider connotation given to article 359, resulted in the denial of the cherished right to
personal liberty guaranteed to the citizens. Experience established that during emergence of
1975, the fundamental freedom of the people had lost all meanings.
In order that it must not occur again, the constitution act, 1978, amended article 359 to the effect
that during the operation of proclamation of emergency, the remedy for the enforcement of the
fundamental right guaranteed by article 21 would not be suspended under a presidential order.

Conclusion:

If we can encourage people, young and old, to respect this world and all its wonderful natural
resources - then we might have the opportunity of saving at least some of the endangered species
and wild places for the benefit of those who follow us.

Unfortunately, each one of the subjects fleetingly covered in these notes would take pages and
pages in order to present all the views and evidence. In the end however, it all comes down to
careful consideration and common sense.

If we are to achieve a greater degree of conservation in the future we will achieve it as a result of
common sense and understanding shown by young people.

In all these cases there are two sides to the story. If we are going to be good, sensible
conservationists, we must be ready to understand those opposing viewpoints even if we do
disagree with one side or the other.