On May 30th, a section forest officer in Mannarkkad in the Palakkad district posted a heartfelt post regarding the death of an injured elephant in the Palakkad district of Kerala. In his post, he reported that a female elephant succumbed to death on the 27th of May, while standing in a river. The cause of the injury was a firecracker which exploded in her mouth. Later during the autopsy, it was revealed that the elephant was badly injured in its jaws area making it incapable of eating or drinking, rendering it very weak. It was also found that the elephant was pregnant. The incident was of such grave nature that people from every nook and cranny were shocked and collectively condemned this cowardly incident.
The Indian states proscribe cruelty against animals. Various articles enshrined in the constitution of India shed light on the importance and value we as a nation impart to the protection of the forests and wildlife. Article 51A (g) prescribes a fundamental duty on the citizens of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. Though the duty is not enforceable, it goes a long way to show what our resolve is and what our country expects from us. The incident in Kerala may seem trivial at a glance but actually puts a blot on the face of our traditions, history and the constitution.
Further, the article 51A (h) of the Indian Constitution creates a national duty on the citizens of the country to develop the scientific temper, humanism and the spirit of inquiry and reform. The SC defined Humanism as, “Understanding benevolence, compassion, mercy etc. Developing a spirit of compassion and humanism.” The brutal death of an animal actually destroys the meaning and consciousness of the word “humanism” mentioned in Article 51A(h).
The guiding principles for the formation of policies and practices in India are based on the Directive Principles of the State. Article 48A of the constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Elephants are the national heritage animal of India and if they are rampantly killed, then it raises a major question on the seriousness of the protection of wildlife in India.
One of the bulwarks against animal cruelty in India is the Prevention of Animals to cruelty Act of 1960. Section 11 and its various subsections prohibit cruelty against animals. Subsection 1 (a) of the act proscribes animals being subjected to unnecessary pain or suffering. Subsection 1 (l) prohibits mutilation or killing of animals by using any unnecessary cruel manner. In the matter at hand, the elephant was driven to a debilitated state due to the injury in its jaw and was subjected to the constant pain.
But it is very lamenting that even after causing such heinous and brutal death of an animal there is very light punishment for the offence. There is fine of ₹50 for the first offence and the second offence yields a fine of ₹100 or imprisonment of 3 months. In 2020 terms, these punishments are rather negligible and in no way apposite to the pain and suffering which the animal went through.
The Section 428 of the IPC, 1860 stipulates that any person who commits mischief by killing, poisoning, maiming or rendering useless any animal of the value of ₹10 or above, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. This section could be applied against the perpetrators who caused this incident by keeping fruits stuffed with firecrackers but it is worth to note that this section would be applicable only when the intention of Mischief could be proven. This condition serves as a major obstacle in the application of this section not just in the present case at hand but against all the cases of animal cruelty.
Another recourse available in this case is through the Wild Life (Protection) Act, 1972 because the elephant killed in this lamentable incident was a wild animal, strayed from the Silent Valley National Park. The action of the killing of a wild Asian elephant falls under the definition of hunting as defined in Section 2 of the act. Section 9 prohibits hunting of animals mentioned in schedule I to IV. Asian elephants come under Schedule I of the act. Section 51 provides a penalty for the killing of a schedule I animal. It specifies that the perpetrators of such offence shall be punished with an imprisonment term not less than 3 years which may extend to 7 years and will also include fine, not less than ₹25000.
But the conundrum regarding this law is the fact that this law applies only to the animals present in the wild. It must be noted that this law essentially provides no protection what so ever to the domesticated animals. Even animals who are present in Schedule 1 but are privately owned are not provided protection. Many Asian elephants in Kerala are owned by temples and are treated ruthlessly. There is no scope for protection of these animals under this law.
The SC’s decision in the case of Animal Welfare Board v A. Nagrajan &Ors. is a landmark decision in the direction of protection of animal rights in India. The court in its decision supported various rights of animals and condemned practices like Jallikattu which were inherently cruel and repugnant to animals. The court also declared itself to be the “parens patriae” for animals.
The SC in its decision recognised and provided legitimacy to the five freedom for animals formed by the Organisation for Animal Health. These rights consist of:
- 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 behaviour;
The pregnant elephant in Kerala was provided with none of these rights. It had a severe jaw injury caused due to the exploding firecrackers violating its freedom from pain and injury. Because of these injuries, it wasn’t able to eat for weeks and became malnourished violating its freedom from hunger, thirst and malnutrition.
The SC recognised that some of the inherent rights shouldn’t be limited to humans but should be passed on to other creatures. According to it, all living creatures have inherent dignity and a right to live peacefully and right to protect their well-being which encompasses protection from beating, kicking, tortures, pain and suffering etc. But it is a reality that the right to life is often not provided to animals and they are constantly subjected to much harm and cruelty.
The SC also provided credibility to the PCA act in this decision. It regarded the PCA acts as a welfare legislation formulated for the welfare of animals and is of utmost importance since it provides protection to animals and also serves to fulfil the DPSP and the fundamental duties of the citizens. The incident in Kerala raises a big question on the efficacy of the act especially regarding the fulfilment of the objectives of the act. To ensure that such welfare legislation remains relevant, it is important to punish those who flagrantly violate it.
The SC also recognised that the punishment mentioned in section 11(1) of the PCA ACT is not commensurate with the gravity of the offence committed by the offenders and therefore is one of the biggest reasons for the rampant cruelty against the animals. In its decision, it expected that the parliament would amend the PCA Act and would provide adequate punishments to the offenders of these acts.
Relying on the SC decision in Animal Welfare Board v A. Nagrajan, two of the HC also took a positive step towards empowering animals. In Narayan Dutt Bhatt v. Union of India, the Uttarakhand HC stated that “The entire animal kingdom, including avian and aquatic animals, are hereby declared ‘Legal entities’, having corresponding rights, duties and liabilities of a living person.” HC of Haryana and Punjab in Karnail Singh v State of Haryana, rightly recognized that it’s a moral duty and legal obligation under the doctrine of Parens Patriae (the power of the state to act as guardian for those who are unable to care for themselves, such as children or disabled individuals) to protect the rights of animals.
The Courts in India have actually been progressive regarding animal rights. But the serious lack of awareness regarding animal rights among the masses coupled with weak laws protecting animal rights renders such progressive stance useless resulting in numerous heinous offences against animals.
Steps have been taken towards protecting the rights of animals but there is still a long way to go. The barbaric incident which traumatised the entire country is just the tip of the iceberg. There have been several other inhuman cases such as when pregnant goats were gang-raped by 8 men in Haryana in 2018 and around 100 carcasses of dogs were found in the forest area of Kongara, Hyderabad. To add to this, inconsiderate usage of animals at weddings, festivals and as a mode of transportation has been brought to notice. In many cases, these animals are illegally owned and are exploited even when they are physically hurt or unwell. Such incidents occur at a very high rate but neither do they get media attention nor justice.
There is a dire need to understand that to put an end to such incidents of cruelty in the future and provide justice to all the animals in India, an amendment to the Prevention of Cruelty to the animals seems inevitable. Laws against such crimes should be made stricter so that people are unnerved to perform such an act. The path, for sure will not be easy and change won’t happen over a day but even one small step can make a difference to the lives of animals who can’t speak up for themselves.
 Animal Welfare Board of India v. A Nagaraja, (2014) 7 SCC 547 .
ABOUT THE AUTHORS
Aman Raj is a first-year student at Dr. Ram Manohar Lohia National Law University. A chuunibyou and a history nerd at heart. His interest in law lies towards criminal and International law.
Simone Jain is a first-year student at Dr. Ram Manohar Lohia National Law University.