Based On Judge's Letter, Kerala High Court Takes Suo Moto PIL To Control Animal Cruelty

The development comes after Justice AK Jayasankaran Nambiar of the Kerala High Court wrote to a letter to the Chief Justice, urging him to take cognizance of news reports of cruel and inhuman killing of a dog by three minors on Adimalathura beach in Trivandrum.

The Judge wrote that though a case has been registered by the local Police against alleged perpetrators, he said it is common knowledge that prosecution in such matters is seldom purposive and expeditious.

He further wrote that the Indian laws for protection of animals—Prevention of Cruelty to Animals Act, 1960 and the Wildlife Protection Act, 1972— are founded on the basic premise of superiority of the human species over all others and of restrictions/control of human action as the basis for protection of animal rights.

"As a people, our approach to animal rights has been far from desirable. Our enacted laws are largely in the nature of prescription of duties that we owe to animals with exceptions carved out for human necessities.

This approach virtually makes animal rights a bi-product of human compassion or benevolence. The question that we should ask ourselves now is: Are we to continue on this path or are we to recognize the inherent worth of all living beings and respect their claims to inheritance of nature and planet earth?" the Judge wrote.

The High Court has now issued notices to the Union of India, State Government, and Animal Welfare Board of India. A Division Bench of Justices Jayasankaran Nambiar and P Gopinath will hear the matter tomorrow.

The letter also stated that humans, who enjoy a dominant position on Earth, should concede certain rights to other species on the planet and take "affirmative action" to protect the same.

"It is only then that we can truly claim to be a civilized society. Just as the worth of a constitution lies in its ability to uphold minority rights, so too does a planetary order demand a recognition of rights inherent in other living beings," the Judge wrote.

The letter heavily relies on the DPSPs contained in Chapter IV of the Constitution, which contemplates protection of and compassion towards animals.

For instance, Art.48A of the Constitution speaks about protection and improvement of environment and safeguarding of forests and wildlife, Art.51 (g) obliges every citizen to protect and improve natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. Art.51A (h) obliges us to develop scientific temper, humanism and the spirit of inquiry and reform.

"Although the Directive Principles and the Fundamental Duties are not legally enforceable, they are to be taken note of by the State while making laws," the Judge emphasized.

He further wrote that the Supreme Court has breathed life into these constitutional provisions by interpreting restrictions imposed in furtherance of the said provisions as "reasonable" vis-à-vis the freedoms guaranteed to citizens under Art.19.

Reference is made to the case of Animal Welfare Board of India v A. Nagaraja & Ors – 2014 (7) SCC 547, where the Supreme Court interpreted the provisions of the PCA Act in the backdrop of the fundamental duties prescribed under our Constitution and held that Animals should now be seen as having certain rights, corresponding to the duties that were prescribed for human beings.

The Supreme Court also entrusted the protection of animal rights to the State by invoking the doctrine of parens patriae.

In this backdrop, Justice Nambiar wrote,

"Ideally, the State should now bring in changes to the legislation so as to make it in conformity with the new approach. Unfortunately, there is no action forthcoming from the legislature. The Animal Welfare Bills of 2011 and 2014 were not passed and remain a dead letter."

The Supreme Court had also held that the PCA Act recognizes five freedoms as inherent in all animals viz.:

• Freedom from hunger, thirst and malnutrition
• Freedom from fear and distress
• Freedom from physical and thermal discomfort
• Freedom from pain, injury and disease
• Freedom to express normal patterns of behavior

It was further held that, for animals, the above five freedoms were akin to the rights guaranteed to the citizens of our country under Part III of our Constitution.

"This shift in approach- from viewing protection of animal rights as achieved through affirmative action to protect rights inherent in animals and not merely through control of human action is reminiscent of the shift that was noticed in protection of fundamental rights of our people during the period between Gopalan and RC Cooper. We now have to look at the effect of human action on the rights of animals and not merely on control of human action," the letter stated.

He stated that the time has now come to goad the State and its instrumentalities into taking affirmative action to safeguard the rights of Animals.

"In a democratic republic such as ours, the judiciary cannot afford to remain a passive spectator to executive and legislative inaction in the matter of protection of animal rights. We need to step into the arena, and the institution of a suo moto public interest litigation would be an ideal step in that direction," the Judge had urged.

Last year, when the entire nation was under lockdown due to Covid-19, a Bench led by Justice Nambiar had allowed a cat owner's plea to allow him to move out and buy pet-food. The Court took note of the fact that "animal food and fodder" are covered under essential items.

In another significant decision pertaining to animal rights, the Delhi High Court issued a set of guidelines for feeding and treatment of community dogs. The Court held that every dog is a territorial being, and therefore, the street dogs have to be fed and tended to at places within their territory which are not frequented, or less frequented, and sparingly used by the general public and residents.

"Street Dogs Have Right To Food And Citizens Have Right To Feed Them Without Impinging Upon The Rights Of Others: Delhi High Court

"Animals have a right under law to be treated with compassion, respect and dignity. Animals are sentient creatures with an intrinsic value. Therefore, protection of such beings is the moral responsibility of each and every citizen including the governmental and non-governmental organisations," the Court has observed.

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