AN ANALYSIS OF THE CASES ON ANIMAL RIGHTS

Dulki Seethawaka80

Even though animal rights are not expressly recognised in the Constitution of Sri Lanka, the Court of Appeal recently recognised the rights of elephants in the country.81 In 2015, a policy was implemented that only persons who have obtained valid licences can keep elephants.82 As a result, 38 elephants were given to the four national zoological gardens.83

However, on 6 September 2021, a court order was issued to return 14 elephants to the previous owners, which was subject to heavy criticism by conservationists and animal welfare activists.84 The Centre for Environmental Justice challenged this order and filed a case against the release of the elephants and the regulations of tamed elephants' registration.85 Accordingly, the Court of Appeal recognised the rights and sentience of the elephants for the first time in Sri Lanka and suspended the release of elephants to the previous owners.86 Therefore, this can be considered as one of the landmark cases emphasising the necessity of recognising animal rights in Sri Lanka.

There are several judgements in India which recognise animal rights. In the case of N.R.Nair&Others v. Unionof India &Others87, the Kerala High Court upheld a notification issued by the Ministry of Environment and Forests, prohibiting the training of bears, monkeys, tigers, panthers, and lions as performing animals. When the case reached the Supreme Court, an exhaustive judgement was pronounced, which referred to the behavioural patterns of wild animals, thereby recognising the mental distress of an animal if it is captivated and kept in zoos and circuses.

80 M.Phil. (Reading) (Colombo), LL.M. (Colombo), BA in Interior Design (Hons) (Northumbria), LL.B. (Hons) (London), Postgraduate Diploma in Animal Welfare (Reading) (India) Senior Executive Researcher, Centre for Environmental Law and Policy (CELP), Faculty of Law, University of Colombo. Attorney-at-Law of the Supreme Court of Sri Lanka.

81 Lakmal Sooriyagoda, ‘Releasing of elephants to claimants suspended: CA says court is mindful of cruelty to elephants’ (Daily Mirror, 27 November 2022) <https://www.dailymirror.lk/breaking_news/Releasing-ofelephants-to-claimants-suspended-CA-says-court-is-mindful-of-cruelty-to-elephants/108249410?fbclid=IwAR1W1ouqxFgGVWND44ldpneRzB-aw7yorzjImRgdT_F2roGlcdVrnciF_L4> accessed 09 February 2023; see also ‘CA WRT 423/21 – The case against the releasing of elephants and the regulations of tamed elephants registration’ (Ejustice, 03 October 2021) <https://ejustice.lk/ca-wrt-423-21-the-case-againstthe-releasing-of-elephants-and-the-regulations-of-tamed-elephants-registration/> accessed 09 February 2023.

82 Dulki Seethawaka, ‘Tamed Giants in Chains’ (The Morning, 07 April 2021) <https://www.themorning.lk/tamed-giants-in-chains/> accessed 12 May 2022.

83 ibid.

84 Malaka Rodrigo, ‘Outcry in Sri Lanka as suspected elephant kidnappers get to keep the animals’ (Mongabay, 18 November 2021) <https://news.mongabay.com/2021/11/outcry-in-sri-lanka-as-suspected-elephantkidnappers-get-to-keep-the-animals/> accessed 12 May 2022.

85 ‘CA WRT 423/21 – The case against the releasing of elephants and the regulations of tamed elephants’ registration – EJustice’ (n 1).

86 Sooriyagoda (n 1).

87 N.R. Nair & Others v. Union of India & Others AIR (2000) Ker 340.

The court stated, “…weholdthatcircusanimalsarebeingforcedtoperformunnaturaltricks,arehoused incrampedcagessubjectedtofear,hunger,pain,nottomentiontheundignifiedwayoflifetheyhaveto livewithnorespiteandtheimpugnednotificationhasbeenissuedinconformitywiththechanging scenario,valuesofhumanlife,philosophyoftheConstitution,prevailingconditionsandthesurrounding circumstancestopreventtheinflictionofunnecessarypainorsufferingonanimals.Thoughnothomo sapiens,theyarealsobeingsentitledtodignifiedexistencesandhumanetreatmentsanscrueltyand torture…”

The Court expressed that humans have a fundamental duty to show compassion to animals and recognise and protect their rights. Furthermore, the Court suggested the educational institutions to offer an “Animal Rights Law” programme, emphasising fundamental rights similar to the Harvard Law School.

Yet another landmark judgement relating to the protection of animals is AnimalWelfareBoardofIndia v.A.Nagaraja&Others88 (also known as the Jallikattu Case). The issue was whether an ancient practice called Jallikattu in the State of Tamil Nadu must be prohibited on the grounds of animal cruelty. The Supreme Court held that the practice should be permitted subject to certain conditions, which were prescribed by the Court and thereby, ordered the AWBI to closely monitor the event and ensure that the bulls are not mistreated by the participants of the sport. Several important declarations made by the Court, in this case, are summarised as follows:

“

1. The rights guaranteed to the Bulls under Sections 3 and 11 of the PCA Act, read with Articles 51A(g) & (h), cannot be taken away or curtailed, except under Sections 11(3) and 28 of the PCA Act.

2. The five freedoms referred to earlier must be read into Sections 3 and 11 of the PCA Act, be protected and safeguarded by the States, Central Government, Union Territories (in short “Governments”), MoEF and AWBI.

3. The AWBI and Governments must take appropriate steps to see that the person-in-charge or care of animals takes reasonable measures to ensure the well-being of animals.

4. The AWBI and Governments must take steps to prevent the infliction of unnecessary pain or suffering on the animals since their rights have been statutorily protected under Sections 3 and 11 of the PCA Act.

5. The AWBI must ensure that the provisions of Section 11(1) (m) (ii) are scrupulously followed, meaning that the person-in-charge or care of the animal shall not incite any animal to fight against a human being or another animal.

6. The AWBI and the Governments would also see that even in cases where Section 11(3) is involved, the animals should not be put through unnecessary pain and suffering, and adequate and scientific methods be adopted to achieve the same.

7. The AWBI and the Governments should take steps to impart education about the humane treatment of animals in accordance with Section 9(k), inculcating the spirit of Articles 51A(g) & (h) of the Constitution.

8. The Parliament is expected to make a proper amendment to the PCA Act to provide an effective deterrent to achieve the object and purpose of the Act, and adequate penalties and punishments should be imposed for the violation of Section 11.

9. The Parliament, it is expected, would elevate animal rights to constitutional rights, as done by many countries around the world, to protect their dignity and honour.

10. The Government would see that if the provisions of the PCA Act and the declarations and the directions issued by this Court are not properly and effectively complied with, disciplinary action be taken against the erring officials so that the purpose and object of PCA Act could be achieved.

11. The Tamil Nadu Regulation of Jallikattu Act is found repugnant to PCA Act, which is welfare legislation, hence held constitutionally void, being violative of Article 254(1) of the Constitution of India.

12. The AWBI must take effective and speedy steps to implement the provisions of the PCA Act in consultation with the Society for Prevention of Cruelty to Animals and make periodical reports to the Governments and if any violation is noticed, the Governments should take steps to remedy the same, including appropriate follow-up action.”89

Therefore, it is evident how the Court intervenes to strike a balance between human rights and animal rights and direct the authorities to take essential steps to avoid cruelty to animals and ensure their protection. The case also provides several significant interpretations of constitutional provisions which validate the safety of animals in India. The Court interpreted the term “compassion for all living creatures” mentioned in the Article 51A of the Constitution as ‘concern for the suffering and wellbeing of animals.’ It also held that the fundamental right, the ‘right to life’ as stated in Article 21, consists of the right to life for animals. Thereby, constitutional protection is guaranteed for any animal in India against any type of cruelty, neglect, and mistreatment caused by any person under any situation, provided that it affects the honour and dignity of the animal.

In the recent case of Dr.MayaD.Chablaniv.RadhaMittalandOthers90, the New Delhi High Court held, “stray dogs have the right to food and the citizens have the right to feed while ensuring that such feeding does not cause nuisance or harassment to the general public.” This historic judgement permitted individuals and animal welfare organisations to feed stray dogs amidst lockdown restrictions during the COVID-19 pandemic and, thereby, helped many homeless animals. The Court went so far as to emphasise that the right to life provided in Article 21 of the Indian Constitution includes the protection of the life of animals.

On 27January 2022, in delivering the final judgement of the ‘Estrellita Monkey’ case, the Ecuador High Court granted legal rights to wild animals, including the ‘right to exist, develop their innate instincts, and be free from disproportionate cruelty, fear and distress.’91 In this case, a chorongo monkey named ‘Estrellita ’ had lived in a human home for 18 years, and the authorities had filed a habeas corpus action to grant the custody of Estrellita to a Management Centre authorised by the National Environment Authority as a wildlife specimen.

89 Upasana Borah, Monika Bharati, ‘Role of Judiciary in Protection of Animal’s Rights’ (SSRN, 2021)

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3814646> accessed 15 May 2022.

90 Dr. Maya D. Chablani v. Radha Mittal and Others (2021) I.A. No. 4164/2021, In CS (OS) 277/2020.

91 Estrellita Monkey Case (2022) Case No.253-20-JH

Elizabeth Gamillo, ‘Ecuador’s High Court rules wild animals have legal rights’ (Smithsonian Magazine, 08 April 2022) <https://www.smithsonianmag.com/smart-news/ecuadors-high-court-recognizes-that-wild-animalshave-legal-rights-180979862/> accessed 15 May 2022.