(This post is by Vasujith Ram, a student at NUJS Kolkata)
A few days ago the Delhi High Court delivered an oral order in People for Animals v Md. Mohazzim (birds’ case). The case was initiated back in October 2004, when the police seized the birds and animals ‘belonging’ to the respondent and registered an FIR due to violation of the Prevention of Cruelty (Capture of Animals) Rules, 1979. The rules state that birds and animals cannot be captured except by specific methods as prescribed under the said rule. The rules are framed under subsection (2) of Section 38 of the Prevention of Cruelty to Animals Act, 1960 (PCA Act). Subsection (3) states that any contravention of the rules would leave the respective person liable to a fine and/or imprisonment.
The owner of the animals (and respondent in this case) then filed an application to release the birds on ‘superdari’ – i.e., conditional return of possession of ‘property’ connected with an offence. The application was allowed. A revision petition was unsuccessfully filed for release of the birds. Then the petition in this case was filed, along with “colour photographs” which showed that birds were being kept in small cages. The Court was then informed that this is common practice; and that thousands of birds are being treated in a similar manner, being sold in ‘commercial’ markets.
The Court then held that running the trade of birds was in violation of their rights; and that they “deserve sympathy”. As was widely reported across print and electronic media, the Delhi High Court held that it is “settled law” that “all the birds have fundamental rights to fly in the sky”. Instead, the Court observed, they are being exported illegally to foreign countries. Opining that human beings have no right to keep birds in small cages for the purpose of their business or otherwise, the Court issued notice.
Having not referred to any constitutional provision, the Court approvingly cited the A. Nagaraja v Animal Welfare Board case (popularly called the Jalikattu case). It was observed that the Jalikattu case recognized ‘five fundamental rights’ of animals, including the right to live with dignity.
It is thus instructive to briefly discuss the Jalikattu case as well. In a landmark case last year, the Court was called upon to decide the legality of events such as Bullock Cart races, Jalikattu, etc. The Court examined the facts and decided that the practices violate the statutory mandate under Section 3 and Section 11 of the PCA Act. Section 3 prescribes duties of persons in charge in animals (taking reasonable measures to ensure well-being; and preventing unnecessary pain or suffering). Section 11 criminalizes cruel treatment of animals, and lists various activities which count as ‘cruel’.
Having found so, the Court further held that the PCA Act must be read in conjunction with Article 51A(g) and 51A(h) – the ‘magna carta’ of animal rights. Moreover, the Court held that “all forms of life, including animal life … fall within the meaning of Article 21 of the Constitution”. It was also observed, “Rights guaranteed to the animals under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity.” Having listed the five freedoms for animals as per the guidelines of the World Organization for Animal Health, the Court held that “[t]hese five freedoms, as already indicated, are considered to be the fundamental principles of animal welfare and we can say that these freedoms find a place in Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens of this country under Part III of the Constitution of India.”
The Jalikattu case was considered landmark, and many activists hailed it as a case watershed moment for animal rights adjudication. However, for constitutional scholars, these cases raise more questions than they answer. The recognition of constitutional rights are not accompanied by a discussion of the full implications of such recognition. Questions of seminal importance for constitutional rights adjudication arise – including but not limited to questions of horizontal application of rights, conflict of rights, locating the duty holders, etc. – none of which the Court (both in Jalikattu and birds’ case) clarifies. These issue arise precisely due to the nature and method of adjudication by the Court. As I will illustrate below, the cases are decided on grounds of constitutional law even when the dispute could have been sufficiently resolved by means of recourse to clearly provided statutory law.
I would like to argue for a restraintivist approach to animal rights adjudication, drawing upon the doctrine of ‘constitutional avoidance’ (Note I am not advocating for or against animal rights, but only for a particular method of adjudication). This thought is best captured in Justice Brandeis’ concurrence in Ashworth v TVA, although there are plenty of documents tracing the development of the idea over the years. Justice Brandeis laid down seven facets of constitutional avoidance:
- The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding.
- The Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.”
- The Court will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
- The Court will not pass upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of … Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
- The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
- The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
- When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.
Of particular importance to this essay are facets 2, 3 and 4. Keeping in mind the fallibility of human judgment, it is advocated that Courts, as far as possible, avoid judgment on grounds of constitutional law. This is a policy of judicial minimalism in adjudication. Constitutional avoidance proposes that when remedial options are both statute – based and constitution – based, the court must prefer the former.
The issue before the Delhi High Court in the birds’ case was the caging of birds. This is squarely covered by S. 11(e) of the PCA Act, which bars keeping any animal in any cage which does not permit reasonable opportunity for movement. Instead, the Court simply states that birds cannot be kept in small cages for any purpose, since they have a fundamental right to fly in the sky! The jalikattu issue was, of course, found to be covered by the contours of S. 11 of the PCA Act. Thus there was no need to ‘constitutionalize’ the issue when statute based adjudication was sufficient. It is clear that a whole host of doctrinal puzzles and clash of constitutional principles could have been avoided. Apart from all the theoretical puzzles opened up (and left unanswered), there is always the possibility of misinterpretation. For example, the ‘five freedoms’ read into S. 11 of the PCA Act has been described as the five fundamental rights of animals in the birds case.
The doctrine of constitutional avoidance has been given recent scholarly attention in cases involving social rights. Scholars have claimed that many of the social rights cases in India could have been adjudicated on statutory or administrative law grounds, rather than on constitutional law grounds. The critical advantage is that it gives the legislature flexibility and discretion. The same argument follows for contested concepts like animal rights.