The Right to Health for Animals

By Harsh Patidar, National Law Institute University, Bhopal, and Shreepurna Dasgupta, Institute of Law, Nirma University, Ahmedabad

Abstract

The legal status of animals has always been considered from the welfare point of view and not based on rights. They do have a fundamental right to life. However, the question is whether a right to health is a part as well. This blog shall attempt to provide a critical analysis on the right to health of animals in India with a comparative review of various legislations of other nations.

Introduction

As per the Indian Constitution, fundamental rights are considered to be sacrosanct rights that attract punishment if violated. All citizens have a fundamental right to life under Article 21 of the Constitution which includes the right to health as stated under the landmark case of Bandhua Mukti Morcha v. Union of India.[1] However, it is important to note that the right to health for animals is not a well-recognized right in India. The Prevention of Cruelty to Animals Act, which was enacted in 1960, covers the welfare of domesticated animals but does not extend to wild and stray ones.[2] The concept of animal rights has been recognized by law in other countries such as Norway, Canada and Switzerland that have passed specific laws on protecting certain animal rights.[3]

Under the Indian Constitution, the right to health of animals has been recognized as a fundamental duty. Hence, Art 51A(g) under Part IV-A states that as part of duty of every citizen: “…(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform …”.[4]

Therefore, the State has put an obligation on the citizens to protect animals and the natural environment. Further, the Supreme Court has stated that Art. 51A(g) and 51A(h) as the ‘Magna Carta’ of animal rights in India in the case of Animal Welfare Board of India v. A. Nagaraja & Ors. This case becomes important for animal rights in India because it emphasized the protection and welfare of animals.[5] Also, in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Ors., the apex court held that Art. 51A is to be read together with Art. 48 and 48A to honor the provisions.[6] Hence, with respect to Art. 48 and 48A, these provisions are under the Part IV of the Constitution as DPSPs. These are not enforceable in a court of law but they are to be followed by the States. Therefore, Art. 48 and 48A state the prohibition of cow slaughter and that the protection and safeguarding of the environment includes forests and wildlife. [7] However, the question persists as to whether animals have a fundamental right to health in India.

International Comparison in Animal Cruelty Laws

USA

  • The Animal Welfare Act, 1966

In the USA, The Animal Welfare Act was signed into law in 1966. It is the only Federal law in the United States that regulates the treatment of animals in research, exhibition, transport, and by dealers. There was a discussion in Congress, in the early 1960s, concerning the issue of the use of animals in science and research, in consequence of which, there was a mass promotion of the AWA, which was approved in 1966. Other laws, policies, and guidelines may include additional species coverage or specifications for animal care and use, but all refer to the Animal Welfare Act as the minimum acceptable standard. 

In the original text of the AWA, there were not many animals included, because this law was the response to a need of the moment (cats and dogs which were stolen and animal experimentation). However, the definition of “animal” was expanded in the 1970 amendments of the AWA.

David Favre,[8] has widely analyzed the AWA and has concluded that there is a wide assortment of issues with which the AWA is concerned. The theft of pet dogs and cats that were being sold to research and testing facilities ; Animals in zoos & exhibitions; Animal fighting (dogs and bird cocks primarily); The breeding and wholesale distribution of some mammals; Animals in research labs (universities and private industry); and, the transportation of listed animals by other than common carriers.

After having seen some fragments of the AWA, the 1966 Senate Report number 1280, which talks about the illegal or stolen animals, is a topic that is very important in the AWA.

The Senate Report also explains which the main purposes of the AWA are:

  1. To protect the owners of pet dogs and cats from the theft of their pets;
  2.  To prevent the use or sale of stolen dogs or cats for purposes of research or
    experimentation; and,
  3. To establish humane standards for the treatment of dogs, cats, and certain other
    animals by animal dealers and research facilities.

The Animal Welfare Act sets only the minimum standards for the care, housing, sale, and transport of dogs, cats, primates, rabbits, hamsters, guinea pigs, and other animals held on the premises of animal dealers or laboratories. These minimal standards are more than anything we can find in any other legislation.

UK

The UK has consistently led the way on sentience; indeed, the UK was one of the key members that lobbied for the recognition of animal sentience in Article 13 of the Lisbon Treaty in 2009. The UK’s Animal Welfare Act (2006) recognized in law that animals can feel pain and undergo suffering.

  • The Animal Welfare Act, 2006

The Animal Welfare Act 2006 (‘the Act’),[9] which came into force in April 2007, is the starting point in respect of the legal protection of vertebrate animals in England and Wales. Certain provisions of the Act extend to Scotland (Sections 46-50), and separate, similar, legislations cover Scotland and Northern Ireland as discussed below. Additional legislations are in place to address animals outside the scope of the Act, namely animals used in research and the majority of wild living animals. A significant amount of animal welfare legislation is directly applied to the UK from the EU, particularly legislation surrounding farm animals, however, this is outside the scope of this discussion.

The Act replaced the Protection of Animals Act, 1911,[10] nearly 100 years prior. It combined over 20 pieces of legislation and leading case laws relating to animal protection, in an attempt to provide a comprehensive legislation.

The Act’s focus is on responsible animal ownership and the prevention of harm to animals by way of ‘unnecessary suffering.’ It encompasses what have been coined the ‘five freedoms’ as the duties for the promotion of animal welfare. In addition to prohibited acts of cruelty, the Act created a welfare offence for failing to provide adequate care for an animal. This covers instances of neglect and for companion animals in particular. Previously this duty had extended to farm animals only. Additional responsibilities, or duties of care, were introduced for those responsible for animals, and the Act expanded the definition of those legally responsible.

Categories of Animals Protected Under the Act

Then categories of animals protected under the Act depend on the activity and offence in question. For example, animals ‘lawfully’ used in research facilities, and animals involved in the regular practice of fishing, are excluded from protection. Further, the duty to ensure an animal’s welfare (Section 9) applies only to animals for which someone is responsible (e.g., an owner, although the responsibility in this particular case extends further). Cruelty and fighting offences have a wider application.

“Animal” has been defined as a ‘vertebrate other than man’ pursuant to Section 1 of the Act.[11] An animal is excluded if in fetal or embryonic form. Section 1 does however provide for this definition to be extended via secondary legislations (or Regulations). This definition could include invertebrates and fetuses in the future if the appropriate national authority is satisfied, on the basis of scientific evidence, that certain types of animals are ‘capable of experiencing pain or suffering’ (s.1(3) & (4)). The appropriate national authority is the Secretary of State in England, and the National Assembly for Wales. It is noted that, whilst the Act provides a basic definition for ‘suffering’ there is no definition for ‘pain.’

By virtue of Section 2 of the Act, the key offences are more limited in scope, applying to “protected animals” only. Specifically, the relevant provisions cover the primary offences of: unnecessary suffering (s.4(1)); mutilation (s.5); poisoning (s.7); and, animal fighting (s.8). Although, non-protected animals may also come under these sections. Further, a local authority inspector has various powers only in respect of “protected animals” (s.18 and s.19).

The Act also cover situations such as a dog being held in a kennel or animal sanctuary or veterinary clinic overnight, or, by a friend whilst a dog’s owner is in hospital for several weeks. It also applies to a police officer who seizes a dog. Acting as a temporary carer for an animal equates to legal responsibility. Further, as pointed out by Sweeney, the case of Gray v. RSPCA,[12] confirmed that this section is to be clearly interpreted as extending responsibility for any animal looked after by a child under 16 to those responsible for that child. This means that a number of individuals can be legally responsible for an animal at any one time.

INDIA

India first embarked on its endeavors to promote animal welfare and ensure animal safety with the enactment of the Prevention of Cruelty to Animals Act in 1960 (‘the PCA Act’). Since then, there has been a sustained movement towards animal welfare in the country. This is evidenced by the setting up of the Animal Welfare Board in 1962 and the rising prominence of animal welfare organizations. There has been significant progress as a result of these events, which is seen in the development of various laws and policies like those on the treatment of performing animals,[13] and the ban on animal testing of cosmetics.[14] The judiciary’s intervention with regard to the issue of animal welfare and protection has also increased with the expansion and evolution of debate. In general, Indian courts have adopted liberal and welfare-oriented stances towards these issues. In 2000, the Kerala High Court, in N.R. Nair v. Union of India,[15] considered the question of extending fundamental rights to animals and emphasized that legal rights should not be “the exclusive preserve of humans which has to be extended beyond people thereby dismantling the thick legal wall with humans all on one side and all non-human animals on the other side”.[16] This view was further developed by the Supreme Court in the case of Animal Welfare Board of India v. A. Nagaraja.[17]

  • Animals Welfare & Protection in India

The worsening condition of animals in India continues to prevail in spite of the existing legislative framework dealing with animals. Hundreds of animals are sacrificed and used as performing animals in various religious cultural events throughout the country. The decision of the Government of India to invoke Section 62 of the Wildlife Protection Act, 1972 for the first time since its commencement has invited criticism. Those dying are wild boars, nilgai antelopes, monkeys or any animal considered “vermin” by state governments and approved for culling by India’s Ministry (MoEFCC). Even peacocks, often used as a symbol for the country, are being considered by the state of Goa for classification as vermin. The position of animals (whether domestic or wild) is alarming and they are fighting a losing battle for survival. In early June 2016, over 200 nilgais were culled by two professional shooters hired from Hyderabad in the riverine areas of Mokama, some 90 km east of Patna. India’s animal market has been growing every year, with pet stores cropping up in nearly every city and town.

However, fortunately, change is underway across. The animal rights activists; policymakers and the higher judiciary in India have been pushing the Government towards ensuring better living conditions of animals. India introduced a ban on the capture of River Dolphins for entertainment in May 2013; Rajasthan launched a separate Department dedicated to cows in 2013; Haryana started an animal adoption scheme in 2015; and Guwahati declared River dolphins as its city animal in 2016 etc. On 28thAugust 2015, the Law Commission of India, under the Chairmanship of Justice AP Shah, submitted its Report No. 261 on the “Need to Regulate Pet Shops and Dog and Aquarium Fish Breeding” to the Union Minister of Law and Justice.

Is the Right to Health of Animals a fundamental right in India?

In a recent 2019 Punjab and Haryana High Court judgement, animals had been given the requisite legal identity. This included all citizens in the state to be declared in loco parentis meaning to act as guardians.[18] In other landmark judgements like the Animal Welfare Board of India case as well, the right to life of animals has been considered to be a fundamental right that included life with dignity, honour and worth. Also, this right also included right against cruelty and torture.[19]

Hence, as per Indian laws, animal protection and treatment with dignity is of utmost importance. Hence, they have been termed a fundamental duty for their welfare and hence, it puts a duty on citizens and States to treat animals with respect. Furthermore, the Prevention of Cruelty to Animals Act aims to protect the animals against torture.[20] Expert Joseph Raz states that animals cannot decide upon their rights because of their lack of mental development which is essential to formulate the basis of these rights.[21] Hence, they are put in a position of welfare wherein their wellbeing is decided by humans. Although the Apex court has held the right to life with dignity for the animals, it is imperative to note that animals cannot decide upon their welfare when co-existing with humans and hence, it becomes a responsibility of humans to care for and decide on the welfare of these voiceless creatures, to protect them from cruelty and torture and to give them a life with liberty and dignity. Hence, the Karnal Singh judgement was a breakthrough judgement that touched upon the issue of animal rights to its very core. The decision was much awaited because it gave a separate legal identity to the animals but also put humans in the position of guardians to safeguard the wellbeing of the animals.[22]

However, concerning  fundamental right to health, nowhere has the Supreme Court interpreted right to health as a right to life under Art. 21. There is a need for detailed interpretation required from the legal system to understand a clear position of right to health of animals as a fundamental right in India.

Conclusion and Recommendations

Animals have always formed and will always form a central feature of the human world. Animals are not resources or pieces of property to be used, tortured, and worn on human backs. Respect for the dignity of all animals’ lives needs an underlying consideration of how human beings interact with other animals. Internationally, the five freedoms of animals are being recognized and conferred to them by way of legislations. The Constitutions around the world also have provisions to ensure the protection of nature and the rights of animals. Various legislative provisions in India deal with appropriate frameworks for protecting the rights of animals. India is one of the first countries to have a modern animal welfare legislation since 1960. The trend that is clear from the study is that in the last few years, animal activism has gained momentum in India due to the efforts of animal activists and the judiciary. Pro-animal Bills are under consideration to raise the penal provisions in cases of animal abuse. Nationwide campaigns are being held to augment awareness on the rights of animals. As a result, the Courts have been reiterating the rights of animals and birds. Unfortunately, the law of 1960 on preventing cruelty against animals has not been amended even once in nearly the last fifty years. The presence of numerous weak and ineffective legislative provisions in favor of animals is continuously leading to the violation of their rights in various forms. It is saddening to note that it often goes unnoticed how the lives of animals are compromised and how animals are abused. The negative trends can be observed through the addition of Endangered Species in IUCN Red List; the two anti- animal notifications issued by MoEFCC in 2015-16; the deaths of companion animals; the liberal attitude of judiciary etc. There certainly exists a gap between legislative policies and the practical situation as far as the  rights of animals are concerned.

In the light of the above discussions and conclusions are drawn, the following recommendations are being made to address the deteriorating state of animal rights in India:

  • Future studies should investigate the factors responsible for encroachment by humans over nature.
  • The recent debatable decision of permitting culling of animals in few States must be reconsidered. There exist better solutions for tackling animal menace- neutering/sterilization should be spread out. Even if culling is allowed in special cases, there is a need for better-trained culling officers, to allow the process to be done in a more humane manner.
  • A comprehensive law should come into force. The legal regime to protect them needs to be more proactive. It would be an achievement for the animal rights activists and organizations if both Animal Welfare Bills get clearance by the Parliament.
  • Against the rising incidents of animal abuse, a comprehensive study should be made of the contemporary state of tendencies of development of the natural environment and its components (plants, animals and human beings).
  • The enforcement mechanism must be made stronger in India. The enactment of the law to prevent cruelty to animals is not an end in itself but merely a means to an end.

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.


[1] Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

[2] Prevention of Cruelty to Animals Act, 1960, No. 59, Acts of Parliament,1960.

[3] Paige M. Tomaselli, Overview of International Comparative Animal Cruelty Laws, ANIMAL LEGAL AND HISTORICAL CENTER (2003), https://www.animallaw.info/article/overview-international-comparative-animal-cruelty-laws.

[4] INDIA. CONST. art. 51, cl (g); INDIA CONST. art. 51, cl. (h).

[5] Animal Welfare Board of India v. A. Nagaraja & Ors., (2014) 7 SCC 547.

[6] State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Ors., (2005) 8 SCC 534.

[7] INDIA CONST. art 48; INDIA CONST. art 48A.

[8] DAVID FAVRE, ANIMAL LAW: WELFARE, INTERESTS AND RIGHTS, Aspen Publishers, 2008.

[9] The Animal Welfare Act of 2006 (England).

[10] The Protection of Animals Act 1911 (England).

[11] Supra note 9.

[12] Gray v. RSPCA [2013] EWHC 500.

[13] The Performing Animals Rules, 2005.

[14] Govt. of India, Ministry of Health and Family Welfare, F. No. – X.11014/11/2013-DFQC (October 13, 2014).

[15] N.R. Nair v. Union of India, AIR 2000 Ker 340.

[16] Id., ¶13.

[17] Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547.

[18] Karnal Singh & Ors. V State of Haryana, CRR-533-2013 (2019).

[19] Supra note 5.

[20] Supra note 2.

[21] Jessamine Therese Mathew & Ira Chadha-Sridhar, Granting Animals Rights Under The Constitution: A Misplaced Approach? An Analysis In Light Of Animal Welfare Board Of India V. A. Nagaraja,7NUJS LAW REV 349, 353-354 (2014).

[22] Rebecca Furtado, Animal rights in India: The most underrated topic of environment law, IPLEADERS (July 27, 2019), https://blog.ipleaders.in/cruelty-animals-india/#Do_Animals_Have_Rights.

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