VIVEK MUKHERJEE | 9 JULY, 2020
No law in India recognises animal individuality
A pregnant elephant was tragically killed in Palakkad, Kerala, her mouth badly injured, with claims yet to be confirmed that she may have consumed a pineapple stuffed with crackers. She couldn’t eat due to the injuries and harrowing pain, surviving solely on water for a few days until she died.
This morbid, condemnable act has seen people register their anger through various media. But the elephant’s awful demise is only the tip of the iceberg, of the brutality faced by animals in India. This is evident from the fact that the wild elephant population in India decreased from 10,00,000 to merely 27,000 individuals in just ten years from 2009–19.
This fall is part of a larger problem, of human-animal conflict, which we have often addressed inefficiently merely by enacting laws, leading to the immense loss of fauna, rich and sentient beings.
In 2019 the state of Kerala created a rehabilitation centre for elephants who were being tortured in captivity. In a similar move earlier in 2018 the Supreme Court had ordered the closure of 39 hotels and resorts constructed on elephant corridors in Tamil Nadu.
Elephants are further protected under Schedule I of the Wildlife (Protection) Act of 1972, which implies that any form of hunting or trading involving elephants will amount to a minimum fine of Rs.25,000 and three to seven years’ imprisonment.
However, offenders are mostly booked under the Prevention of Cruelty to Animals (PCA) Act where the offence is non-cognisable and bailable, or under Sections 428 and 429 of the IPC with imprisonment of less than seven years.
The PCA Act is centered on the ‘doctrine of necessity’ which denotes that an act of cruelty is not punishable if the cruelty is in furtherance of human necessity.
Similarly, Sections 428 and 429 of the IPC recognise cruelty by monetising animals. For instance, cruelty towards an animal will only be recognised if it is “of the value of 10 rupees”.
These laws in the garb of granting justice to animals clearly prioritise human needs, reducing the existence of animals to a monetary value.
No law in India recognises animal individuality. The premise behind these laws instead is that animals are property meant for human use.
Due to this, speciesism against elephants and other animals has not decreased despite these laws. The prioritising of humans, or anthropocentrism, is the force that drives the framework of these laws.
One of the ways to make these laws less anthropocentric (which may be difficult to implement, yet desirable) is to approach animal cruelty through the concept of personhood.
Studies have shown that elephants are sentient beings, which means they are aware of their “self” and can feel pain, torture, happiness, loneliness and mourning.
Personhood does not denote that animals have the same rights as human beings, because every specie has its own experience which may not overlap with human experience. It is an encapsulation of the civil rights which should be guaranteed to any sentient being, in recognition of their bodily liberty and integrity.
The Nonhuman Rights Project has been working for years to get personhood for an Asiatic elephant, Happy in the USA. In India too, a remarkable judgment was authored by the Delhi High Court in favour of an elephant called Lakshmi, whose possession was claimed by a mahout. The court ruled that Laxmi should not be forced to live in an “uncomfortable environment against her rights”.
However, the statutory rights guaranteed to animals often come in conflict with fundamental rights enjoyed by humans, as in the Kerala incident.
The pineapple eaten by the pregnant elephant in Kerala was one of the many pineapples that farmers generally fabricate with crackers to keep wild animals away from their farms. This shows that human-animal encounters in many rural regions of India are frequent and cruel. The residents often resort to cruelty which results in the death of animals.
A choice cannot and should not be made between the human livelihood and the lives of animals, discounting one over the other. It is the duty of the state to ensure that no animals or humans are killed or hurt.
For this, we have a series of possible solutions. The foremost is to create sanctuaries and rehabilitate animals there. This will restore natural habitat to animals which was snatched away from them by human projects. It will also prevent crop-raiding.
The second mitigating step is to introduce community-based wildlife management. This will be the most useful in buffer zones: areas which cannot discontinue the cohabitation of animals and humans. In these areas the government should ensure that people are sensitised and their capacities built: for instance a deliberation over growing crops less palatable to the target animal specie, since crop-raiding is mostly driven by the nutrition the crops provide to that animal.
The third step is to prepare an ever-ready taskforce or wildlife rescue team to mitigate damage. A medical team with vaccines, medicines and other operational gears would be quintessential. In the Kerala incident the wildlife officers and natives were aware that the elephant was unwell because she could not eat. But they had to wait for days before she could be given medical attention, by which time she unfortunately passed away.
The fourth and most important step is to guarantee enforceable rights to animals by recognising their personhood. Cases like Lakshmi’s have paved a way for securing rights to animals. If cruelty towards animals continues with the same intensity, our Parliament should look into the possibility of recognising the fundamental rights of animals, as was recommended by the Supreme Court in the Jallikattu judgment.
As a society we need an attitudinal shift, away from the belief that humans are superior to other species. It is time we asked ourselves how many animals must die before their lives begin to matter.
Vivek Mukherjee is assistant professor at the Animal Law Centre, NALSAR University of Law, Hyderabad