SERVICE ANIMAL RIGHTS AND LAW

Abstract

This article delves into the intricate realm of service animal rights and the legal framework governing their inclusion in society. The analysis explores key legislation, defining the evolving roles of service animals and the rights they afford individuals with disabilities. Amidst challenges and controversies, a balance between access and public interests is crucial. By examining the intersection of service animal rights and the law, this article aims to contribute to a comprehensive understanding of the evolving landscape in this critical area.

Keywords

Service, Animal Rights, Law, Indian Penal Code, Rhinoceros, Animal Protection, Protection, India, Animal Act, 1960, Wildlife Protection Act 1972, Indian Constitution, Criminal Code of India, Section 428 of Indian Penal Code, Section 429 of Indian Penal Code, Legislations, Article 21 of Indian Constitution, 42^nd Amendment of Constitution of India, Sources of Law.

Introduction

India, the seventh largest country in the world, is one of the most bio-diverse regions of the world containing four of the world’s 36 biodiversity hotspots. It is home to animals ranging from the Bengal Tigers to the Great Indian Rhinoceros and animal protection and welfare in in the country has taken a prominent position over the recent years. Protection of animals is enshrined as a fundamental duty in the Indian Constitution and there exist several animal welfare legislations in India such as the Prevention of Cruelty to Animals Act 1960 and the Wildlife Protection Act 1972 at the Central level and cattle protection and cow slaughter prohibition legislations at the State levels.

The Indian Penal Code (IPC) 1860 is the official criminal code of India which covers all substantive aspects of criminal law. Section 428 and 429 [1] provides for punishment of all acts of cruelty such as killing, poisoning, maiming or rendering useless of animals. The aforementioned legislations have been enacted to obviate unnecessary pain and suffering of animals and similar legislations continue to be enacted according to changing circumstances. Notwithstanding specific statutes, further protections for animals lie under general concepts such as tort law, constitutional law, etc.

The Constitution of India 1960

The Constitution of India 1960 makes it the “duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for all living creatures.” This Constitutional duty of animal protection is supplemented by the Directive Principle of State Policy under Article 48A that:

The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.

Both the above constitutional provisions were introduced by the 42^nd Amendment in 1976. While they are not directly enforceable in Indian courts, they lay down the groundwork for legislations, policies and state directives in furtherance of animal protection at the Central and State levels. Moreover, they may be enforced in courts by taking an expansive judicial interpretation and bringing them within the ambit of the fundamental Right to Life and Liberty under Article 21 which is judicially enforceable.

Sources of Law

The primary sources of law in India are the Constitution, statutes (legislations), customary law and case laws. India is a federal union divided into 28 States and 8 Union Territories. The respective States are administered by their own State governments while the Union Territories are federal territories directly governed by the central Government of India. The Parliament of India is the supreme legislative body of the country while Indian States have their respective State Legislatures. Statutes are enacted by the Parliament for the entire country, by the State legislatures for respective States and by the Union Territory legislatures for respective Union Territories. Central laws enacted by the Parliament can be checked and controlled only by the Constitution of India. State laws may be overridden.

And addition to these primary legislations, there also exists a vast body of subordinate legislation like rules, regulations and by-laws enacted by Central/State governments and local authorities such as municipal corporations and gram panchayats (local village bodies). Given the separation of powers in India between the Legislature, Executive and Judiciary branches of government, the three branches are vested with different functions. While the primary responsibility of drafting legislations lies with the legislature, sometimes the responsibility is given to the Executive branch in order to draft legislations known as delegated legislation.

India follows the common law system based on recorded judicial precedents handed down by the British colony. Therefore, it places significant reliance on precedents and case laws in the development of law and jurisprudence. Judicial decisions of higher courts such as the Supreme Court of India and High Courts of different States carry significant legal weight and are binding on lower courts.

India is a land of wide religious and cultural diversity. Therefore, some personal laws, local customs, religious texts and conventions which are not against statute, morality, public policy and larger social welfare are also recognized to have a legal character and are taken into account by courts in the administration of justice.

Allocation of Powers Between the Centre and the States

Article 245 of the Indian Constitution holds that subject to the Constitution, the Indian Parliament can make laws for the whole or part of territory of India. Territory of India includes States, Union Territories and other territories such as enclaves within India.

Article 246 lays down the subject-matter of laws made by the Parliament and the State Legislatures. This subject-matter is allocated into three lists contained in the Seventh Schedule:

The Union List: the Parliament has exclusive power to make laws with respect to the matters enumerated within this list.
The State List: State Legislatures have the exclusive power to make laws with respect to the matters enumerated within this list.
Concurrent List: both the Parliament and State Legislatures have the power to make laws with respect to the matters enumerated within this list.

In the context of animal rights, the following matters have been allocated in the State and Concurrent List.

Item 14 of the State List provides that the States have the power to “[p]reserve, protect and improve stock and prevent animal diseases and enforce veterinary training and practice.”

In the Concurrent List, both the Centre and the States have the power to legislate on:

1-Item 17: “Prevention of cruelty to animals.”

2-Item 17B: “Protection of wild animals and birds.”

The Prevention of Cruelty to Animals Act, 1960

The basic cruelty law of India is contained in the Prevention of Cruelty to Animals Act 1960. The objective of the Act is to prevent the infliction of unnecessary pain or suffering on animals and to amend the laws relating to the prevention of cruelty to animals. The Act defines “animal” as any living creature other than a human being.

In accordance with Chapter II of the Act, the Government of India established the Animal Welfare Board of India (AWBI) with some of the following functions:

Advising the central government regarding amendments and rules to prevent unnecessary pain while transporting animals, performing experiments on animals or storing animals in captivity.
Encouragement of financial assistance, rescue homes and animal shelters for old animals.
Advising the government on medical care and regulations for animal hospitals.
Imparting education and awareness on humane treatment of animals.
Advising the central government regarding general matters of animal welfare.

The Act enumerates different variants of cruelty to animals under Section 11 as the following actions:

Beating, kicking, overriding, overloading, torturing and causing unnecessary pain to any animal.
Using an old or injured or unfit animal for work (the punishment applies to the owner as well as the user).
Administering an injurious drug/medicine to any animal.
Carrying an animal in any vehicle in a way that causes it pain and discomfort.
Keeping any animal in a cage where it doesn’t have reasonable opportunity of movement.
Keeping an animal on an unreasonably heavy or short chain for an unreasonable period of time.
Keeping an animal in total and habitual confinement with no reasonable opportunity to exercise.
Being an owner failing to provide the animal with sufficient food, drink or shelter.
Abandoning an animal without reasonable cause.
Willfully permitting an owned animal to roam on streets or leaving it on the streets to die of disease, old age or disability.
Offering for sale an animal which is suffering pain due to mutilation, starvation, thirst, overcrowding or other ill-treatment.
Mutilating or killing animals through cruel manners such as using strychnine injections.
Using an animal as bait for another animal solely for entertainment.
Organizing, keeping, using or managing any place for animal fighting.
Shooting an animal when it is released from captivity for such purpose.

However, the Act does not consider as cruelty the dehorning/castration of cattle in the prescribed manner, destruction of stray dogs in lethal chambers in prescribed manner and extermination of any animal under the authority of law. This Section provides somewhat of a leeway.

Part IV of the Act covers Experimentation of animals. The Act does not render unlawful experimentation on animals for the purpose of advancement by new discovery of physiological knowledge or knowledge to combat disease, whether of human beings, animals or plants. It envisages the creation of a Committee for control and supervision of experiments on animals by the central government which even has the power to prohibit experimentation if so required.

Chapter V covers the area of performing animals. Section 22 prohibits exhibiting or training an animal without registration with the AWBI. The Section prohibits animals such as monkeys, bears, lions, tigers, panthers and bulls from being utilized as performing animals.

An additional leeway provided by the Act is that under Section 28, nothing contained in the Act shall render it an offence to kill any animal in a manner required by the religion of any community.

Considering the diversity of religions and traditions in India, this Section was considered imperative.

Treating animals cruelly is punishable with a fine of Rs. 10 which may extend to Rs. 50 on first conviction. On subsequent conviction within three years of a previous offence, it is punishable with a fine of Rs. 25 which may extend to Rs. 100 or imprisonment of three months or with both. Performing operations like Phooka or any other operations to improve lactation which is injurious to the health of the animal is punishable with a fine of Rs. 1000 or imprisonment up to 2 years or both. The government further has the power to forfeit or seize or destroy the animal. Contravention of any order of the committee regarding experimentation on animals is punishable with a fine up to Rs. 200.

New Law for Service Animals for the Disabled

The proposed legislation for recognising the rights of the disabled people has suggested setting up of a National Disability Rights Authority to formulate regulations for service animal training facilities so as to ensure that persons with disabilities are provided suitable service animals.

The appropriate governments and establishments shall permit and facilitate the use of service animals by persons with disabilities on roads, buildings, all transport systems, public facility or service, according to the Rights of Persons with Disabilities Bill, 2011.

A person with disability, needing assistance, shall have a right to be accompanied by a service animal without being required to pay an extra charge for the animal. This provision is being implemented in the United States.

Replacing the existing practice of plenary guardianship with limited guardianship, once the Bill is passed by the Parliament, all plenary guardians shall operate as limited guardians and will have to act in close consultation with the person with disability to arrive at legally binding decisions.

A limited guardianship is a system of joint decision-making, which operates on mutual understanding and trust between the guardian and the person with disability, as against the plenary guardianship where the guardian took all the decisions on the presumption that a disabled person was incapable to taking decision. The plenary guardian is under no legal obligation to consult with the person with disabilities or determine his will or preference whilst taking decisions for him or her.

The proposed law for recognising the rights of the disabled people has recommended six per cent seats to be reserved for the disabled people in all courses of higher education and setting up an Education Reform Commission for advancement of disability rights.

This reservation will be in addition to those who manage to get admission through competitive examinations.

The Commission shall, to the maximum extent possible, involve an effective participation of all stakeholders in the process of formulation, implementation and monitoring of the curriculum and related programmes and policies, including the disabled and non-disabled children, teachers and parents, according the Rights of the Persons with Disabilities Bill, 2011.

The Commission will review the existing curriculum being adopted in schools from the standpoint of persons with disabilities and their lived experiences, to develop an inclusive curriculum based on the principles of non discrimination and appreciation of diversity and tolerance, and make recommendations on the pedagogical methodology to be adopted for the teaching and learning by persons with disabilities in the creation of such inclusive curriculum.

In addition to establishing a National Disability Rights Authority and similar authorities at the State level to making regulations and policies for the disabled persons, the proposed law also suggests creating a National Fund for Person with Disabilities for the welfare of such people. To resolve any disputes, the National Disability Rights Tribunal would be set up.

Landmark Cases on Animal Rights in India

State of Bihar v. Murad Ali Baig[2]–

This case relates to the sections of the Wildlife Protection Act, 1972. It dealt with whether the hunting of elephants is justified under the provisions of the Indian Penal Code and the necessary provisions of the Wildlife Protection Act. The word “hunting” has been defined under Section 2(16) of the Wildlife Protection Act, 1972 The Supreme court held that since the elephant was an animal that fell under the scope and list of animals provided under Schedule I, it can be assumed that the hunting of elephants is prohibited.

Ivory Traders and Manufacturers Association v. Union of India [3]

The petitioners, in this case, challenged the ban which was imposed upon them by the authorities for them having possession of mammoth ivory and articles & they also challenged certain amendments which were made in the Wildlife Protection Act, 1972 whereby the trade of imported ivory articles was banned on the ground that it violated their right to practice any profession or to carry on any occupation, trade, or business as guaranteed under Article 19(1)(g) of the Constitution. The Court held that such a law could not be regarded as in violation of the provisions guaranteed under Article 19(1)(g) of the Constitution of India.

Naveen Raheja v. Union of India [4]

In this case, the Supreme Court dealt with a gruesome issue. The issue was with regards to the skinning of a tiger in a zoo in Andhra Pradesh. The Supreme Court was in utter shock and dismay when it first heard the facts of the case. The Court was utterly tormented at the fact that such a gruesome act was indulged into by humans, rendering the voiceless animal helpless and in sheer pain and agony. The tiger received no protection from those whose duty it was to protect it and look after its well-being.

Conclusion

The 42^nd Amendment to the Indian Constitution in 1976 was a progressive step towards laying the groundwork for animal protection in India. The constitutional provisions establishing the duty of animal protection have resulted in the enactment of animal protection legislations both at the central and state level, most notable of which being the Prevention of Cruelty to Animals Act 1960. Furthermore, over the years Indian courts have developed a growing legal jurisprudence in animal law.

However, there is a still a long way to go in truly developing a solid foundation for animal law in India. The provisions for animal protection in the Indian Constitution remain principles instead of concrete law enforceable in courts. The penalties under the Prevention of Cruelty to Animals Act 1960 for cruelty against animals are simply not strict enough to truly deter crimes against animals. The law is not strictly enforced and contains several provisions which provide leeway through which liability can be escaped. Extensive reforms need to take place in this regard to provide a stronger animal protection law for India.

References

[1] Indian Penal Code ,1860

[2] AIR 1989 SC 1

[3] AIR 1997 DEL 267

[4] (2001) 9 SCC 762

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