PRICING CRUELTY: HOW PROGRESSIVE IS THE PREVENTION OF CRUELTY TO ANIMALS ACT?

Pricing Cruelty: How progressive is the Prevention of Cruelty to Animals Act?

– Lianne Lucia D’Souza, Research Fellow, CEERA, NLSIU

The year 1953 marked the dawn of a new era for animal rights in India, when Rukmini Devi Arundale – a staunch animal rights activist – introduced a private member Bill in Parliament, pushing for a law that would address animal rights violations in the country more effectively. The said Bill was an attempt to revamp the erstwhile Prevention of Cruelty to Animals Act, 1890 which suffered on many counts. Little did she know that half a century down the lane the Prevention of Cruelty to Animals Act (‘PCA Act’), 1960, which was partly an outcome of her initiative, would more or less remain a toothless tiger. One may argue that such a sweeping description of the legislation is tantamount to the subversion of its value in the area of animal law and welfare. But given the rise in the number of animal rights violations in the country, this statement would only seem justified. From strangling puppies[1] and running over dogs with vehicles[2] to the recent frenzy over pregnant elephant succumbing to firecrackers[3], the enduring pattern of animal related atrocities has only taken a turn for the worse. This should not come as a surprise considering that a legislation enacted in 1960 has not seen significant amendments since its inception. The single greatest testament to a field of law that has witnessed remarkable advancement, is still lingering in the past with no progress.

In current times, much of the inequities that taint the Prevention of Cruelty to Animals Act, 1960 are ascribed to its archaic provisions, especially the penalty provisions. The PCA Act, 1960 was enacted with the objective of preventing the infliction of unnecessary pain and suffering on animals.[4] It does so by penalising certain activities that cause harm or injuries to animals – domestic or wild.  Section 11 of the Act is the substantial provision that outlaws certain acts constituting ‘animal cruelty’ by prescribing the punishment for the same. The Section provides that in the case of a first offence, the punishment attracted is a fine which shall not be less than 10 rupees but which may extend to 50 rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both.[5]

Considering the time at which the law was enacted, the penalty stipulated would have seemed appropriate. Animal rights, being a subject of limited legal advancement, was still in its nascent stage. And so, the drafters of the legislation incorporated penalty provisions in tandem with the socio-legal scenario prevalent at that time. But given the recent instances of barbaric animal cruelty, it is apparent that the penalty for animal abuse under the law is inadequate. The fines prescribed are disgracefully negligible and undermine the tenets of criminal justice. Imposition of such fines is but a farce, equivalent to letting the perpetrators go scot free.

Why are the penalties inadequate?

The deterrent theory of punishment postulates that the threat of punishment serves as a deterrent for the commission of crimes. People are likely to be dissuaded from committing a particular offence if the punishment is severe enough to instigate fear and repulsion from criminal activity. In other words, punishment, as an instrument of crime prevention, is effective when the cost of the punishment outweighs the benefit of committing the crime. Given the disturbing state of affairs across the country, it is no surprise that the PCA has not effectively imbibed the quality of deterrence. As a statute that was enacted to prevent animal cruelty, the provisions have turned out to be a slap on the wrist with no severe repercussions for violators. If anything, the penalties provided under the PCA Act are but a mockery of objective and intent underlying the statute. They not only undermine the dynamic nature of law but also render futile the decades’ worth of progress achieved in the realm of animal welfare.

Recognising this gaping hole in the law, even the Supreme Court has expressed the need to revamp the penalty provisions in the PCA Act. In the landmark case of Animal Welfare Board of India v. A. Nagaraj, while proposing that the Parliament is duty-bound to make proper amendments to render the Act an effective deterrent, the Court expressly stated that ‘the punishment prescribed in Section 11(1) is not commensurate with the gravity of the offence, hence being violated with impunity defeating the very object and purpose of the Act.”[6] Thus, it is the need of the hour for the legislature to reconsider the effectiveness of the law and bring it up to pace.

What amounts to an adequate penalty?

As a logical corollary to the deterrence theory, a penal law is said to be effective if the punishment proposed is commensurate to the crime it seeks to penalise. The element of proportionality between the nature and quantum of punishment and the nature and gravity of the crime is key to any penal law. This implies that the more serious the crime, the more severe the punishment. At this juncture, the question that therefore arises is what would be the appropriate punishment that would do complete justice for an act of animal cruelty. To answer this, an overview of other legislations would be pertinent.

At present, the PCA Act is not the only legislation in India that penalises offences pertaining to animals. A handful of laws, though not primarily concerned with animal cruelty, do outlaw certain acts that infringe upon animal welfare. For instance, under the Wildlife Protection Act, the punishment for contravention of the provisions of the Act includes imprisonment which may extend to a period of three years or fine which may extend to a maximum of 25,000 Rupees.[7]Under the Biological Diversity Act, 2002, contravention of provisions of the Act, which includes illegitimate use of biological resources, attracts imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees and where the damage caused exceeds tend lakh rupees, such fine as commensurate with the damage caused.[8] Similarly, under the Indian Penal Code, 1860Section 428 and 429 prescribe a punishment of imprisonment which may extend to two years and five years respectively for mischief caused to animals.[9]

A peripheral glance of the penal provisions under the above-mentioned laws highlights that the price for violating animal rights is clearly greater than that enumerated in the PCA Act. When misdemeanours such as transportation of wildlife without an appropriate license can attract imprisonment of three years, it is only proportionate that violations of higher gravity attract a higher penalty. Be that as it may, the design of Section 11 of the PCA Act is contrary to this notion. The impugned section not only fails to classify different acts of cruelty on the basis of their gravity but addresses them with a blanket application of unfitting penalties. This evidently calls for a revisit into the impact and effect of the law.

A Wake-up call for the legislature

In an age when countries are transforming laws with affirmative action for animals, the law in India is still stuck in a by-gone era. Several petitions have been placed before the courts seeking for an amendment to the PCA Act to increase the stipulated penalties so as to make them stringent. Despite constant reminders from the citizenry and interventions by the judiciary, the legislature has displayed a rather slothful approach in amending the PCA Act.  In 2016, a glimmer of hope was evident when a Bill was placed before the Lower House of Parliament whereby positive change in this regard was proposed.[10] The Bill proposed to raise the penalties under Section 11. But this move proved ineffective as the Bill lapsed.

If the spiralling rate of animal cruelty is not evidence enough for introducing stringent penalties under the PCA Act, the legislature should draw inspiration from the Constitution and parallel legislations. The Constitution of India places on all citizens the fundament duty to protect and improve the natural environment and to have compassion for living creatures.[11] This being the case, the duty to have compassion for animals would be fruitless without backing from an appropriate law. Since the Constitution itself is a dynamic document that ought to reflect the change in times, laws made in consonance with the principles of the Constitution should also ideally imbibe its spirit and essence. If the PCA Act has to progress in line with the constitutional notions of justice and equity, the first step forward is undoubtedly an amendment to the Act that revises the penal provisions.

Image Source – https://i0.wp.com/www.reddyandreddy.org/wp-content/uploads/2018/08/animals.jpg?fit=727%2C377&ssl=1

[1]Waiter strangles pup to death in Kutch Resort, makes videos of brutality, available at https://timesofindia.indiatimes.com/city/rajkot/resort-waiter-strangles-his-pet-puppy-to-death/articleshow/76652134.cms (last accessed on 9/9/20)

[2] Maneka Gandhi shares video of dog being run over; man booked in Kapurthala, available at, https://indianexpress.com/article/cities/chandigarh/maneka-gandhi-shares-video-of-dog-being-run-over-man-booked-in-kapurthala-6560113/   (last accessed on 9/9/20)

[3] Kerala: Pregnant elephant dies after consuming pineapple stuffed with firecrackers, available at https://economictimes.indiatimes.com/news/politics-and-nation/pregnant-elephant-dies-after-consuming-pineapple-stuffed-with-crackers-in-kerala/articleshow/76181693.cms(last accessed on 9/9/20)

[4] Prevention of Cruelty to Animals Act, 1960, Statement of Objects and Reasons.

[5] Prevention of Cruelty to Animals At, 1960, §11.

[6] Animal Welfare Board of India vs. A. Nagaraja and Ors. (2014) 7 SCC 547.

[7] Wildlife Protection Act, 1972, § Section 51.

[8] Biological Diversity Act, 2002, § 55.

[9] Indian Penal Code, 1860; Section 429, Indian Penal Code, 1860, § 428.

[10] The Prevention of Cruelty to Animals (Amendment) Bill, 2016, available at http://164.100.47.4/billstexts/lsbilltexts/asintroduced/33LS.pdf  (accessed on 9/09/2020)

[11] India Const. 1950, art. 51 A (g),