Animals in India occupy a non-human status, wherein they are treated as a commodity or property. The property status is indicative of a lower position occupied by animals, as a result of which sufficient liability is not imposed in instances involving harm and infliction of cruelty upon them. This is reflected in the penal sanctions available under the Prevention of Cruelty to Animals Act, 1960 (‘the PCA’ or ‘the Act’) which deals with cases of animal cruelty. However, the PCA only imposes a maximum criminal liability of fifty rupees on the perpetrators based on its current application.
The rise in the number of cruelty incidents towards animals, such as throwing a dog from the rooftop, burning animals alive, etc., have compelled animal rights activists and the judiciary alike, to question the adequacy of the meagre criminal liability imposed for such acts. This legal introspection has also led to the #nomore50 movement on social media, which challenges the present status of fifty rupees being the highest possible punishment for acts of cruelty towards animals. But this challenge has been only through various media platforms.
Object of PCA Act
For a legal challenge, the current liability imposed under the PCA needs to be questioned in light of its flaws, so as to adopt viable alternative legal solutions. The PCA was enacted with the aim to prevent the infliction of unnecessary pain or suffering on animals. It came into force in 1960 and its penal provisions have not been amended since.
The PCA has been heavily criticised for being inadequate and for lacking the necessary force to prevent atrocities towards animals.
Important provisions of the Act
Section 11. Treating animals cruelly
(1) If any person-
(a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated; or
(b) employs in any work or labour or for any purpose any animal which, by reason of its age or any disease, infirmity, wound, sore or other cause, is unfit to be so employed or, being the owner, permits any such unfit animal to be so employed;
(c) wilfully and unreasonably administers any injurious drug or injurious substance to any animal or wilfully and unreasonably causes or attempts to cause any such drug or substance to be taken by any animal; or
(d) conveys or carries, whether in or upon any vehicle or not, any animal in such a manner or position as to subject it to unnecessary pain or suffering; or
(e) keeps or confines any animal in any cage or other receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement; or
(f) keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord; or
(g) being the owner, neglects to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement; or
(h) being the owner of any animal fails to provide such animal with sufficient food, drink or shelter; or
(i) without reasonable cause, abandons any animal in circumstances which render it likely that it will suffer pain by reason of starvation or thirst; or
(j) wilfully permits any animal, of which he is the owner, to go at large in any street while the animal is affected with contagious or infectious disease or, without reasonable excuse permits any diseased or disabled animal, of which he is the owner, to die in any street; or
(k) offers for sale or, without reasonable cause, has in his possession any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill-treatment; or
(l) multilates any animal or kills any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner; or
(m) solely with a view to providing entertainment–
(i) confines or causes to be confined any animal (including tying of an animal as a bait in a tiger or other sanctuary) so as to make it an object of prey for any other animal; or
(ii) incites any animal to fight or bait any other animal; or
(n) organises, keeps, uses or acts in the management of, any place for animal fighting or for the purpose of baiting any animal or permits or offers any place to be so used or receives money for the admission of any other person to any place kept or used for any such purposes; or
(o) promotes or takes part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting;
he shall be punishable, in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.
(2) For the purposes of sub-section (1), an owner shall be deemed to have committed an offence if he has failed to exercise reasonable care and supervision with a view to the prevention of such offence:
Provided that where an owner is convicted of permitting cruelty by reason only of having failed to exercise such care and supervision, he shall not be liable to imprisonment without the option of a fine.
(3) Nothing in this section shall apply to–
(a) the dehorning of cattle, or the castration or branding or nose-roping of any animal, in the prescribed manner; or
(b) the destruction of stray dogs in lethal chambers or 8[by such other methods as may be prescribed; or
(c) the extermination or destruction of any animal under the authority of any law for the time being in force; or
(d) any matter dealt with in Chapter IV; or
(e) 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.
Section 12. Penalty for practising phooka or doom dev.
If any person performs upon any cow or other milch animal the operation called phooka or doom dev or any other operation (including injection of any substance) to improve lactation which is injurious to the health of the animal] or permits such operation being performed upon any such animal in his possession or under his control, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to two years, or with both, and the animal on which the operation was performed shall be forfeited to the Government.
As per Section 2 (g) “phooka” or “doom dev” includes any process of introducing air or any substance into the female organ of a milch animal with the object of drawing off from the animal any secretion of milk;
Section 13. Destruction of suffering animals
(1) Where the owner of an animal is convicted of an offence under section 11, it shall be lawful for the court, if the court is satisfied that it would be cruel to keep the animal alive, to direct that the animal be destroyed and to assign the animal to any suitable person for that purpose, and the person to whom such animal is so assigned shall, as soon as possible, destroy such animal or cause such animal to be destroyed in his presence without unnecessary suffering, and any reasonable expense incurred in destroying the animal may be ordered by the court to be recovered from the owner as if it were a fine:
Provided that unless the owner assents thereto, no order shall be made under this section except upon the evidence of a veterinary officer in charge of the area.
(2) When any magistrate, commissioner of police or district superintendent of police has reason to believe that an offence under section 11 has been committed in respect of any animal, he may direct the immediate destruction of the animal, if in his opinion, it would be cruel to keep the animal alive.
(3) Any police officer above the rank of a constable or any person authorised by the State Government in this behalf who finds any animal so diseased or so severely injured or in such a physical condition that in his opinion it cannot be removed without cruelty, may, if the owner is absent or refuses his consent to the destruction of the animal, forthwith summon the veterinary officer in charge of the area in which the animal is found, and if the veterinary office certifies that the animal is mortally injured or so severely injured or in such a physical condition that it would be cruel to keep it alive, the police officer or the person authorised, as the case may be may, after obtaining orders from a magistrate, destroy the animal injured or cause it to be destroyed in such manner as may be prescribed.
(4) No appeal shall lie from any order of a magistrate for the destruction of an animal.
Section 14. Experiments on animals.
Nothing contained in this Act shall render unlawful the performance of experiments (including experiments involving operations) on animals for the purpose of advancement by new discovery of physiological knowledge or of knowledge which will be useful for saving or for prolonging life or alleviating suffering or for combating any disease, whether of human beings, animals or plants.
Section 15. Committee for control and supervision of experiments on animals
(1) If at any time, on the advice of the Board, the Central Government is of opinion that it is necessary so to do for the purpose of controlling and supervising experiments on animals, it may, by notification in the Official Gazette, constitute a Committee consisting of such number of officials and non-officials, as it may think fit to appoint thereto.
(2) The Central Government shall nominate one of the members of the Committee to be its Chairman.
(3) The Committee shall have power to regulate its own procedure in relation to the performance of its duties.
(4) The funds of the Committee shall consist of grants made to it from time to time by the Government and of contributions, donations, subscriptions, bequests, gifts and the like made to it by any person.
Section 19. Power to prohibit experiments on animals
If the Committee is satisfied, on the report of any officer or other person made to it as a result of any inspection under section 18 or otherwise, that the rules made by it under section 17 are not being complied with by any person or institution carrying on experiments on animals, the Committee may, after giving an opportunity to the person or institution of being heard in the matter, by order, prohibit the person or institution from carrying on any such experiments either for a specified period or indefinitely, or may allow the person or institution to carry on such experiments subject to such special conditions as the Committee may think fit to impose.
Section 20. Penalties
If any person-
(a) contravenes any order made by the Committee under section 19; or
(b) commits a breach of any condition imposed by the Committee under that section;
he shall be punishable with fine which may extend to two hundred rupees, and, when the contravention or breach of condition has taken place in any institution, the person in charge of the institution shall be deemed to be guilty of the offence and shall be punishable accordingly.
Section 22. Restriction on exhibition and training of performing animals
No person shall exhibit or train-
(i) any performing animal unless he is registered in accordance with the provisions of this Chapter;
(ii) as a performing animal, any animal which the Central Government may, by notification in the Official Gazette, specify as an animal which shall not be exhibited or trained as a performing animal.
Section 23. Procedure for registration
(1) Every person desirous of exhibiting or training any performing animal shall, on making an application in the prescribed form to the prescribed authority and on payment of the prescribed fee, be registered under this Act unless he is a person who, by reason of an order made by the court under this Chapter, is not entitled to be so registered.
(2) An application for registration under this Chapter shall contain such particulars as to the animals and as to the general nature of the performances in which the animals are to be exhibited or for which they are to be trained as may be prescribed, and the particulars so given shall be entered in the register maintained by the prescribed authority.
(3) The prescribed authority shall give to every person whose name appears on the register kept by them, a certificate of registration in the prescribed form containing the particulars entered in the register.
(4) Every register kept under this Chapter shall at all reasonable times be open for inspection on payment of the prescribed fee, and any person shall, on payment of the prescribed fee, be entitled to obtain copies thereof or make extracts therefrom.
(5) Any person whose name is entered in the register shall, subject to the provisions of any order made under this Act by any court, be entitled, on making an application for the purpose, to have the particulars entered in the register with respect to him varied, and where any such particulars are so varied, the existing certificate shall be cancelled and a new certificate issued.
Section 35. Treatment and care of animals
(1) The State Government may, by general or special order, appoint infirmaries for the treatment and care of animals in respect of which offences against this Act have been committed, and may authorise the detention therein of any animal pending its production before a magistrate.
(2) The magistrate before whom a prosecution for an offence against this Act has been instituted may direct that the animal concerned shall be treated and cared for in an infirmary, until it is fit to perform its usual work or is otherwise fit for discharge, or that it shall be sent to a pinjrapole, or, if the veterinary officer in charge of the area in which the animal is found or such other veterinary officer as may be authorised in this behalf by rules made under this Act certifies that it is incurable or cannot be removed without cruelty, that it shall be destroyed.
(3) An animal sent for care and treatment to an infirmary shall not, unless the magistrate directs that it shall be sent to a pinjrapole, or that it shall be destroyed, be released from such place except upon a certificate of its fitness for discharge issued by the veterinary officer in charge of the area in which the infirmary is situated or such other veterinary officer as may be authorised in this behalf by rules made under this Act.
(4) The cost of transporting the animal to an infirmary or pinjrapole, and of its maintenance and treatment in an infirmary, shall be payable by the owner of the animal in accordance with a scale of rates to be prescribed by the district magistrate, or, in presidency-towns, by the commissioner of police:
Provided that when the magistrate so orders on account of the poverty of the owner of the animal no charge shall be payable for the treatment of the animal.
(5) Any amount, payable by an owner of an animal under sub-section (4) may be recovered in the same manner as an arrear of land revenue.
(6) If the owner refuses or neglects to remove the animal within such time as a magistrate may specify, the magistrate may direct that the animal be sold and that the proceeds of the sale be applied to the payment of such cost.
(7) The surplus, if any, of the proceeds of such sale shall, on application made by the owner within two months from the date of the sale, be paid to him.
In N.R. Nair v. Union of India, the Supreme Court opined that legal rights must be granted to animals and should not be restricted to humans alone. The courts have subsequently reiterated the idea that animals must be protected as they have an intrinsic value themselves.
On the basis of this justification, the Supreme Court, in Nagaraja case, accorded animals, certain rights, such as, the right to live with dignity; freedom from hunger, thirst and malnutrition; freedom from fear and distress; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and freedom to express normal patterns of behaviour. These rights were recognised by the Court, as the five internationally recognised rights of animals, referred to in the Universal Declaration of Animal Welfare, the Guidelines of the World Health Organisation of Animal Health, of which India is a member and in the Food and Agricultural Organisation’s (FAO) ‘Legislative and Regulatory Options for Animal Welfare’.
The Supreme Court linked these freedoms to the rights enjoyed by citizens of India under Part III of the Indian Constitution, that is, the Fundamental Rights guaranteed by the Indian State. It also said that these five freedoms were ‘fundamental principles of animal welfare’, and read them into Section 3 and 11 of the PCA.
Similarly, on the basis of the premise that animals have intrinsic worth and the right to live with dignity, it was held in the case of Animals and Birds Charitable Trust v. Municipal Corporation of Greater Mumbai, that the use of horse-driven carriages for joyrides was solely for human pleasure and was an avoidable human activity as it is non- essential
In People for Animals v. Md. Mohazzim, the Delhi High Court recognised the fundamental right of birds to fly in the sky as against the right of humans to keep them in small cages for the purpose of their trade or business. However, most importantly, in a radical decision, the Supreme Court, in Nagaraja recognised the fundamental right of animals to live with dignity and honour, by expanding the definition and scope of Article 21 of the Constitution of India, so to include within its ambit animal life as well. The Court laid down that ‘life’ meant more than “mere survival or existence or instrumental value for human beings.” The Court insisted that animals have the right under Article 21 to live a life with some intrinsic worth, honour and dignity.93In the said case, the Court said that the right of animals to live in a healthy and clean atmosphere and their right to be protected from unnecessary pain and suffering, were guaranteed under Section 3 and 11 of the PCA and Article 51A(g). Their right to be fed, nourished and properly housed are also protected by Section 3 and 11 of the PCA.
Due to the inadequacy of the legislations, which seek to protect animals’ rights and the Parliament’s inefficacy to recognise the rights of animals and prescribe any effective measures to protect basic rights; change in the law is necessary. Three amendments to the PCA have already been proposed. However, they are yet to be passed by the parliament. Every day, there are new cases of animal cruelty being written about and spoken of. In light of the situation, solutions to mitigate the suffering of animals have to be found. Therefore, proposed changes are required to the PCA, such as civil liability being imposed on those who violate the rights of animals, for their failure to perform their duty of protecting the rights of animals. The provision for imposing civil liability, can be included in the PCA, because of the intrinsic worth of animals and their ability to feel pain as sentient beings. Animals do not merely exist for human benefit. Thus, we must stop denigrating them to an inferior position and must offer them adequate safeguards and rights, since it is our duty to do so.