Today's Editorial

20 August 2018

Yet another ‘legislative judgment’

Source: By Suparna Jain: The Financial Express

Recently, the Uttarakhand High Court declared that the “entire animal kingdom including avian and aquatic” have a distinct persona and corresponding rights, duties and liabilities of a living person. In a petition seeking directions from the court restricting movement of horse carts/tongas between Nepal and India, the petitioner requested that horses be vaccinated and checked for infections before being allowed into Indian Territory from Nepal. However, during the course of hearing, the court enlarged the scope of the petition to cover protection and welfare of all animals using the Prevention of Cruelty to Animals Act (PCA), and held that animals have a right to “lead a life with some intrinsic worth, honour and dignity”. Accordingly, all Uttarakhand citizens have been declared as “persons in loco parentis”, i.e. the human face for the welfare/protection of animals.

Interestingly, the order has been passed by a bench with the same judge who last year had declared the rivers Ganga and Yamuna, all their tributaries, streams as juristic/legal persons/living entities with the chief secretary, Uttarakhand, and the advocate general as their “legal parents”. In this case, the petitioner had sought the high court to direct the government of the state of Uttarakhand to remove illegal construction along the banks of the Yamuna, as well as to order the central government to properly manage land and water resources. However, here as well the court had expanded the scope of the petition and, on the basis of a similar status given by the New Zealand Parliament to Whanganui River, argued that “to protect the recognition and the faith of society”, rivers should be declared as “legal person” invoking Directive Principles under Articles 48-A and Fundamental duties of citizens under 51A (g) of the Constitution.

What is critical is that the above order of the high court had been stayed by the Supreme Court last July. Despite that, the Uttarakhand High Court went ahead and even broadened the scope giving orders vesting similar rights to all animals. As in the case of rivers, the current order also raises some critical issues which are likely to lead to serious complications.

First and foremost, the precedent that the court has used to establish rivers (and now animals) as legal entities was by the legislature of New Zealand and not by the judiciary. Now, with the judiciary taking up the decision of another country’s Parliament and directing its enforcement in own country, isn’t the court foraying into legislative domain?

Principally, Indian judiciary’s role as one of the pillars of governance of the country has been the application and interpretation of the Constitution to ensure justice. In fact, during Constituent Assembly debates, BR Ambedkar had categorically stated “there are barriers they [Courts] cannot pass, definite assignments of power they cannot reallocate. They can give a broadening construction of existing powers, but they cannot assign to one authority the powers explicitly granted to another”.

In the current case, the court has not only suo motu expanded the scope of the petition (which was asking for a specific relief), but also passed a sweeping law. The problem that arises for such judicial decisions is their binding nature like legislation. While a law passed by the legislature can be repealed or amended, court decisions cannot be changed unless stayed by a higher court. In the current case, the impact of the judgment may long be felt before it is challenged before the Supreme Court.

Second, the ramifications of vesting such a wide “right” in itself seem to be unassessed. For instance, being a legal entity, would the river be liable for being sued if it dries, floods or gets polluted? Would the legal parent—the government officials—be responsible for paying damages in such cases? In case the government wants to undertake a project for river development or water management, would the “parent’s” approval be needed by the Centre or the state promoting the project?

Third, with the entire animal kingdom having been declared as legal entities, would people have the right to have pet animals? With all legal entities having a legal capacity to enter into contracts, assume obligations, incur and pay debts, sue and be sued, and held responsible for their actions, how would animals be held responsible?

Since laws are made by humans, till date they regulate only humans and human entities. By extending the rights entailed by humans to animals and rivers, by default the duties would also automatically extend to them. This, obviously, would not be possible. So would extending such blanket “rights” be sustainable? It seems unlikely. Ideally, and rightly so, since laws are meant to regulate humans, for safeguarding animals and natural resources, the laws should prohibit and regulate human actions rather than vesting rights with animals and natural resources. And in India, they do.

Neglecting an animal by denying her sufficient food, water, shelter and exercise or by keeping him chained/confined for long hours is punishable under the PCA. Similarly, conveying or carrying animals whether in or upon any vehicle, which causes discomfort, pain or suffering, is a punishable under both the Prevention of Cruelty to Animals, (Transport of Animals) Rules, 2001, and the Motor Vehicles Act, 1988. And this is not all—last year, rules were passed under the PCA to regulate dog breeders, animal markets, and aquarium and “pet” fish shop owners. Specific rules for safeguarding different animals are in place.

Ideally, since the case that was brought before the court was to protect and safeguard animals from cruelty, directions towards the implementation of the PCA, the Wildlife Protection Act, 1972, would have been more appropriate. By passing such a strong blanket statement, the court has not only stepped out of its domain, but also thrusts open a black box with implications that are unknown and whose implementation would only lead to a host of complications.



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