Animal Law in India

November 3, 2020Aiswarya Murali & Padma Venkataraman*

India’s history speaks of a rich relationship with animals – from cultural and religious ties with particular animals to the unique wildlife. However, today, animal lives face difficult challenges due to growing urbanisation, capitalistic interests, and an inadequate legal regime. Through this article, we will aim to introduce the reader to the broad areas of animal law in India and the legal and social issues they are facing. We will discuss animals and religion; wildlife; and, finally, domesticated animals through dietary practices.

Animals and religion

Communities in India are, by and large, strongly driven by religion and traditions. These have a huge influence on an individual’s relationship with nature, including animals, and are both a reason to respect animal rights and a way to justify animal suffering. This double-edged sword has created deep moral ramifications for, and religious divides in, the lives of people, with many turning to religion to understand the worth of animal lives. These religions even prescribe what dietary habits are to be followed. For instance, in most of the Abrahamic religions, it is believed that God created animals for the use of humans (You derive warmth and other benefits from them: you get food from them- The Quran, Surah 40:79). Even early religions in India, like Hinduism, emphasise on respect for animals, creating a cultural and spiritual basis for worshipping various animals, and, more recently, a way into environmental conversations in Indian jurisprudence (The living entities in this conditioned world are my eternal, fragmental parts. - Bhagavad Gita; Chapter 15, Verse 7[1]).

At the same time, animal sacrifice has also been an integral part of several communities’ identities and practices, across India, such as during the muslim festival of Bakrid, or in the Hindu Kalighat temple. Laws relating to the protection of animal rights in India have been framed so as to accommodate religious and cultural practices in India. Deeming animals as ‘holy’ has led to many unsustainable practices such as the usage of elephants in temples and for festivals, who are separated from their natural habitats; hundreds of goats being sacrificed in the Kalighat temple on a daily basis; and cruelty to cobras on the day of Nag Panchami (snake festival), which is celebrated across India to worship the Snake god - to name a few.

An important and difficult conversation to have is how communities can preserve their cultural legacies and identities, and, at the same time, attempt to respond to the needs of the animal world. One way to build this conversation is to recognise the evolution of practices that prioritise cultural traditions, and also the avoidance of animal cruelty – pointing out that communities can make culturally relevant decisions for themselves. One example is that of the Nyishi tribals of Arunachal Pradesh (a North-Eastern state in India), who now use artificial fibreglass casque for their headgear, instead of hunting the endangered hornbills.

While some philosophies across religions found in the Indian subcontinent speak of humans being kind to animals, compassion and non-violence towards animals were emphasised by Buddhism and Jainism. This cultural and spiritual grounding in the practice of compassion towards other sentient beings has influenced many landmark judgments on animal rights, in the past few decades. Traces of this approach can also be found in India’s constitutional provisions, such as the usage of the word “compassion for living creatures” in relation to Art. 51A(g). During the early years, courts had taken a back seat when it came to religious reasons for killing animals especially for sacrifice. Reliance was placed on the exception carved out in section 28, Prevention of Cruelty to Animals Act, 1960 (“PCA”), wherein killing an animal for religious purposes is permitted. However, recently, several High Courts in India have banned animal sacrifice, holding it to be cruel and barbaric, and, at the same time, have expanded the fundamental right to life to animals as well.

Animal rights and wildlife

India has an extremely diverse set of habitats, which is home to millions of wildlife species – around 8% of the world’s recorded species. Unfortunately, the protections afforded by law to wildlife in India, both flora and fauna, are nowhere close to sufficient. Our colonial history, among other periods, shows us how wildlife species were excessively and brutally hunted for sport. Viewing this in context of the capitalistic regulation of forests and tribal communities introduced during British rule, such as The Indian Forest Act, 1927, we can see how lawful methods of controlling and commercially exploiting our wild animals and environments, and tribal communities, were introduced. In an attempt to address the growing need for conservation, the Wildlife Protection Act, 1972, came into being. This is facilitated by other laws including Article 51A of the Indian Constitution; the Indian Penal Code, 1860; the Customs Act, 1962; the Indian Forest Act, 1927; the Forest Conservation Act, 1981; and the Biological Diversity Act, 2002. Additionally, India has also ratified several international conventions such as the Ramsar Convention, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention on Migratory Species, 1979; Convention on Biological Diversity, 1992, etc. Several projects, such as Project Tiger and Project Elephant, are specific to the protection of certain species. It is important to remember that, like any other country, multiple factors have historically influenced (and continue to do so) the degree of protection a wild animal merits – including visibility, tourism, political motivations, commercial interests in land/wood, lobbying, etc. There are also several national parks, wildlife sanctuaries and reserves to ensure a protected environment for the wildlife.

Under the Wildlife Protection Act, 1972, no living organisms listed in the schedule can be hunted. If found in breach of these provisions, the penalty imposed is quite high - amounting to imprisonment for a period ranging from a minimum of three to a maximum of seven years with a fine not less than Rs. 10,000. However, there are several loopholes in this Act. Hunting is permitted under broad exceptions under sections 11 and 12 of the Act, for which a special permit is issued. The Chief Wildlife Warden is also entrusted with broad powers when it comes to granting this permission to hunt, which is said to be misused often. Moreover, in most instances, when the Indian government is posed with the dilemma of choosing between economic development and the conservation of biodiversity, it has chosen economic development, reducing the forest cover in India and destruction of wildlife.

A consequence of inadequate enforcement and weak laws is that India now tops the list of illegal wildlife trade and the smuggling of high-end, high-value species and products. Furthermore, merely 5% of the total area is officially protected area, which, by itself, is a great threat to habitats, and, consequently, the long-term interests of many species. Illegal poaching, hunting and other human-caused deaths have also pushed certain species to extinction in India in the past 5 decades, such as the Asiatic cheetah and the Malabar large-spotted civet (it is debated whether this is extinct). At the same time, conservation efforts are hopeful for the health of a few species of animals, such as the Great Indian bustard, Greater One-horned Rhinoceros (only found in the Indian subcontinent), etc.

Recent case law indicates an attempt to push authorities to regulate and protect wildlife in a more stringent manner. In Sansar Chand v. State of Rajasthan, [(2010) 10 SCC 604], the Supreme Court held that preservation of wildlife is important for maintaining the ecological balance in the environment and sustaining the ecological chain. In M.C.Mehta v Union of India (II), [(1991) 2 SCC 353] as well as in Vijay Singh Punia v. RSBPCWP, [AIR 2003 Raj 286], it was held that it is the constitutional duty of the State as well as of every citizen to protect and preserve wildlife. However, all these protections must also be seen alongside developments in environmental law in India, specifically, the continuing dilution of the Environmental Impact Survey (EIS) under the Environment Act, 1986. In 2020, the Central Government put out a notification allowing post-facto environmental clearances for projects. A mandatory EIS prior to construction, at least on paper, would force companies and institutions to assess the impact on threatened and endangered species in the area prior to development, and if a high negative impact is found, the appropriate authority would ideally disallow the construction. Doing away with this requirement further encourages commercial interests, greatly affecting the effectiveness of other existing wildlife protections and the interests’ of communities who rely on forests for their livelihood, and has been criticised for the same.

Animals and diets

Recent official statistics indicate India’s heavy (and rapidly increasing) reliance on animals. India’s milk production for 2019 was around 187.75 million tonnes - a 6.5% increase from the previous year - approximately 49% of which came from buffaloes. There was also an increase in milk production from these cattle of over 5-8% from 2018, with the average yield per animal being 7.95 kg for exotic breeds and 3.01 kg for indigenous breeds. 103.32 billion eggs were produced in 2019, an increase of 8.5% from 2018. The total meat production for 2019 was 8.11 million tonnes, an increase of 6% from the previous year. Importantly, 50% of this meat comes from poultry, 19.05 % from buffaloes, 13.53% from goats, 8.36% from sheep, and 4.98% from pigs, and 4.02% from cattle. As of 2018-19, there were 192.52 million cows, 109 million buffaloes, 148 million goats, 74 million sheep, and 9 million pigs. The Gross Value Added from the livestock and fishing sector for 2017-18 was Rs. 4,93,676 crores and Rs. 1,11,018 crores respectively. All such available data leads to one conclusion - with heavy emphasis on increasing animal productivity, and related dairy and meat production, the Indian government is pursuing rapid industrialization of the livestock industry.

The Prevention of Cruelty to Animals Act, 1960 (“PCA”), specifically exempts cruel techniques used in the livestock industry under section 11 – including dehorning, castration, ‘the extermination of any animal under the authority of any law … in force’, and, crucially, ‘the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering’. In effect, the PCA has no teeth; with its highly inadequate penal consequences, and broad exemptions, most of India’s animals fall outside its radar. However, it is of note that the Central Government is currently in the process of formulating rules under the PCA regarding the use of battery cages by poultry farms.

Although India is home to millions of animals above, most existing legal protections address only the treatment of cows in India. These include a Constitutional provision (Art. 48) prohibiting slaughter of cows and cattle, special laws prohibiting and criminalizing cow slaughter in most Indian states, and judicial decisions upholding beef bans. One might think that, as a result of such protections, at least cattle must end up being protected/treated better in India. Yet, India remains one of the world’s largest exporters of beef, which is officially mostly ‘buff’, with 11,52,547.32 million tonnes exported in 2019-20. To note, other farmed and domestic animals have little to no comparable legal protections.

In India, cattle seem to be at the centre of a larger political, social and cultural debate – the consumption of beef and treatment of cows, with which come difficult and important questions of religious freedom and the rights of different communities. In the legal world too, from the landmark decision in Animal Welfare Board of India v. A. Nagaraja & Ors. in 2014, to an interesting decision in Karnail Singh v. State of Haryana in 2019, advancements in jurisprudence on animal rights, for the most part, seem to cluster around issues involving cattle. Mohd. Hanif Qureshi & Ors. v. State of Bihar [AIR 1958 SC 731] was one of the first such decisions. In 1958, the Supreme Court addressed the validity of a total ban on the slaughter of cattle. It upheld a total ban on slaughter of cows and calves, but concluded that such was not reasonable regarding the slaughter of draught/milch animals such as buffaloes, especially once the animals ceased to be productive (a distinction in the legal treatment of cows and buffaloes should be noted here). In A. Nagaraja [(2014) 7 SCC 547], the Supreme Court addressed the validity of a legislation that sought to regulate the conduct of Jallikattu, a cultural event or sport that takes place during Pongal, a harvest festival, in the southern state of Tamil Nadu every year, where people attempt to tame bulls. The legislation had been challenged under the Prevention of Cruelty to Animals, 1960. The court noted that, as they were dealing with a welfare legislation of a sentient being, the applicable standard in deciding the issue at hand was the ‘Species’ Best Interest’. The court extended the right to life to animals, under Art. 21 of the Constitution, an interpretation of great significance, while referring to the five freedoms of animals. Though the judgment went on to hold the legislation unconstitutional for a few reasons, including the extensive suffering faced by bulls, the sport continues to be observed legally today, due to allowances made by the Central and State Governments due to political and societal pressure.

While addressing a Public Interest Litigation (PIL) in Narayan Dutt Bhatt v. Union of India [2018 SCC OnLine Utt 645], protesting the treatment of donkeys and other transport animals, the Uttarakhand High Court applied the Species’ Best Interest standard. It declared the entire animal kingdom (including aquatic and avian kingdoms) distinct legal entities, and citizens in loco parentis. In 2019, in Karnail Singh v. State of Haryana [2019 SCC OnLine P&H 704], where cows were being illegally transported across state lines for slaughter, the Punjab & Haryana High Court relied again on Species’ Best Interest. The court analysed, in detail, the need to recognise that animals suffer, possess rights, and deserve compassion, as well as the need to extend legal personality to animals in India. It relied on A. Nagaraja’s interpretation of the word ‘life’ in Art. 21 – that such should be expanded to include the lives of animals, and that their lives, too, have honour and dignity under the Constitution.

Though these are important legal developments in the moral worth to be accorded to animals, no judgments of significance address the welfare of other farmed animals such as hens, goats, buffaloes and pigs. India’s policies on cows are highly contradictory, with an apparent focus on protection, and, at the same time, increased efforts towards an industrialised animal agriculture sector. A recent example of this inconsistent approach is the banning of slaughterhouses in the northern state of Uttarakhand for cow protection, and the approval of a sexed sorted semen laboratory to further increase milk production of the same animals. Rooting animal protection in religion or culture, as has been done with the cow in India, and simultaneously promoting mechanized processes that increase milk productivity of the individual cow, is detrimental to an ethical approach to animal suffering – and ignores the needs of the sentient being.

India’s dependence on animals

In India, political, social, cultural and religious factors decide how animals are to be treated, and which animals are to be protected from suffering certain forms of cruelty. Our dependence on animals, however, merits examination – both as a standalone issue with focus on animal suffering, and in correlation to other seemingly conflicting rights. Yet, this issue has, till date, been characterized as a conflict between meat eaters and non-meat eaters, or between urban and forest dwellers, bringing with it issues of moral superiority, caste and class supremacism, and religion. By characterizing the conflict as solely one between humans, it is, however, possible to miss the elephant in the room (pun intended). Do animal lives merit consideration? We need to distance today’s animal rights conversations from notions of Brahmanical vegetarianism, caste supremacy, religious domination, etc., and centre it around modern science, with a focus on proven animal suffering. Accounting for growing industrialization and ethical food concerns could also help ensure that the sentient beings we are talking about do not get lost in the noise. At the same time, acknowledging that human and animal rights appear to conflict, whether under Art. 14 (right to equality) or Art. 19 (right to freedom), and giving thoughtful and respectful consideration to such conflicts is crucial for engagement. Such conversations could help us further reflect on existing systems of oppression – along the caste, class, or religion axes. A critical look at different dietary customs and practices could also be of great significance for food security and quality.

The difficulty in seriously reflecting on our treatment of animals is that, in doing so, it exposes past and present oppressions and other societal divides, forcing us to grapple with deep trauma and guilt, regarding our treatment of animals and fellow humans – as Jallikattu and the beef ban controversies have shown. Our refusal to talk about animal rights, in a secular manner, does not merely speak of our resistance to animal rights – it shows that we are still, as a society, very uncomfortable talking about our treatment of fellow humans.

[Note: Unique to many developing countries is the growing population of ‘stray’ dogs, often of mixed/indigenous breeds, which has not been discussed in this article. While illegal mass killings continue to take place, the government is attempting to control the population through the Animal Birth Control Rules, 2001 and the related ABC program.]

*About the Authors

Aiswarya Murali and Padma Venkataraman graduated from National Law University (NLU), Jodhpur, in 2019, and NLU Delhi in 2020, respectively. They are practising lawyers based in Delhi, India, and are very interested in and passionate about animal rights and the environment.

Padma Venkataraman was also an exchange student at Lewis & Clark School and attended such classes as Environmental Law and Animal Law Fundamentals, in addition to Federal Indian Law, Energy Law, Immigration Law.

➦ Share