Do animals have rights?

By Rajeev Dhavan

IT WAS while arguing the Narayan Sarovar Sanctuary matter before the Supreme Court in February 2000 that the Bench confronted me with the question as to whether the earth and all which it inherits belonged to human beings to do with as they like. Does it? In a choice between human development and animal welfare, which should prevail? Apart from the cinkaras, flora and fauna of Western Gujarat, for me this led to a further line of questions on whether animals have any rights at all? And, if so, of what kind? This question looms large in the wake of the death of 11 Bengal tigers in the Nandankanan zoo in Orissa. Can a legal system accord rights to `animals' - whether in or out of captivity? How can such rights be enforced? If so, by whom? What should be the scope of these rights? Should they just cover the pain inflicted on animals? Should there be a right against captivity in zoos for the purpose of human curiosity? Are zoos antiquated imperial legacies from Victorian England? Should zoos be abolished?

Ancient legal cultures accepted animals as fundamental to human lives but ambiguated dilemmas about animal rights. India's shastras venerated animals, but permitted slaughtering them to propitiate the gods. If cows were protected, there are also provisions which permit their consumption. Greek law constantly permitted the trials of animals and trees for offences towards human beings. Roman law denied rights to human slaves but granted some protection to animals. An English jurist recounts `trials of animals' in the Middle Ages. A cock was tried, found guilty and sentenced to death for contumacious crowing in Germany. In 1508, caterpillars in Provence and in 1545 the beetles of St. Julien-de-Maurienne were executed after legal trials. Animal trials were popular. In 1688, Gaspard Bailly of Savoy published a detailed book on animal trials. Whether animals have rights or not is not certain. They certainly appear to have duties, and, there was a due process. This vexed question troubled English law which in a leading decision of 1889 permitted an annuity by way of trust for the testator's hounds and horses. Indeed, an earlier case of 1842 created a trust for a person's favourite mare. Trusts for the benefits of animals are permitted. But, who can enforce these trusts? Surely, not the animals themselves. George Bernard Shaw's trust to create a 40-letter alphabet and for the translation of Androcles and the Lion in that alphabet failed for want of a person to enforce it. However, the English love for domestic animals seems to have deliberately overlooked this problem for trusts for animals. India's Constitution protects cows through its Directive Principles and the Supreme Court protected milch cows from needless slaughter. But, Indian law is generally in the air in its quest for a basis for animal rights.

Do animals have rights? How are their rights to be enforced? Like English law, Indian law does not give animals a legal personality. They are the objects rather than the subject of human rights. Trusts can be created in their benefit. They have no rights. But they can be beneficial objects under a beneficent regime designed to protect them. Such regimes are usually criminal in nature and enforced through penalties.

Apart from social humanity, the only protection which animals get in India is from statutes. The Macaulay-inspired Indian Penal Code of 1860 continues to provide even today some protection to animals under the general rubric of `mischief' offences. It is an offence punishable with imprisonment up to two years and/or fine for ``killing, poisoning, maiming or rendering useless'' any animal of value of Rs. 10 upwards (Section 428). Since a value was attached to valuable beasts of burden, in the case of a similar offence to ``any elephant, camel, horse, mule, buffalo, bull, cow or ox'' of whatever value or any animal of a value over Rs. 50 the imprisonment awarded could be five years (Sec. 429). The approach was anthropocentric. The test was ``use to humans'' not animal welfare. The Prevention of Cruelty to Animals Act, 1960, (which repealed a similar Act of 1890) has a similar approach even though an `animal' was defined to mean ``any living creature other than a human being''. One sub-section makes it an offence if any person ``beats, kicks, overdrives, overloads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or... causes it to be so treated'' (Sec. 11). The penalty for first offenders was a fine up to Rs. 50, which could be increased to Rs. 100 and/ or a sentence of three months on the third offence. Even though the Act of 1960 deals with `experiments with animals', performing animals and special subjects and establishes a Animal Welfare Board of India, this statute has been used sparingly and lacks teeth. A lot of the peripheral State legislation deals with cattle, cow slaughter, cattle trespass. Some legislation - as in Karnataka - criminalises animal sacrifices; others deal with animal diseases. Assam specifically protects the rhino; and Goa and other States certain birds and animals.

After some kind of national consensus, the Wildlife Protection Act, 1971, along with later amendments, placed protecting plant species, wild and other animal life within a broader ecological perspective. It enabled creating sanctuaries and national parks, dealt with zoos, the trade in wild animals and gave specific protection to some species, including, perforce, the Tiger or the Panthera Tigris. The Wildlife Act, 1971, has only invited trouble without any effective enforcement. The Act failed to frighten poachers and miners, but was used against animal and environment friendly tribals. In the Rajaji Park, Dehradun, tribals were asked to move out. Some tribals in Madhya Pradesh were denied fishing rights. But, marble mining in Sariska continued with impunity even though a struggle by tribals in Nagarhole in Karnataka prevented Tata's from making a hotel inside the sanctuary. Animals remain relatively unprotected.

The provisions dealing with zoos are pitiable. Why do we have zoos? Is it to protect endangered species? Or, to regulate the creation of any endless number of zoos? Are zoos like non- performing circuses - for the amusement of children and others on social outings? And, is it just enough to provide a few veterinary doctors?

Despite being the home of Buddhism, Jainism, Hinduism and many other humane faiths that a place a premium on the protection of all living beings, Indian society is both cruel and careless towards animals. The legal regime is mostly for the benefit of humans; and only minimally to protect animals. The animals more useful to humans are given protection in a sea of indifference which, as pointed out by the Delhi High Court Stray Dogs case of 1992, countenances cruelty at all places and all levels. India has a bio and animal diversity comparable to the Amazon or any country in any continent. Unfortunately, our law and legislation proceeds on the basis that only those animals useful or amusing to humans are to be protected with diminishing care.

The death of the tigers in Orissa is a cruel reminder of the indifferent cruelty with which we view animals. The very basis of our law needs to be reviewed. Animals should be the subject not just the object of rights. The legal regime to protect them needs to be more proactive. Caging animals in zoos for our amusement is a travesty. It is a legacy from the 19th century to celebrate the Empire. Animals should be sent to protected habitats. Zoos should be abolished. Those guilty of the gross negligence towards the now-dead Orissa tigers should be brought to book.

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