The Poisoned Arrow of Section 11, Prevention of Cruelty to Animals Act, 1960 and the Proposed Amendment

Abhay Raj

For decades, animal welfare sabotage has been a major concern for India’s liberation and animal rights movement. Animal welfare sabotage can be seen as a politically motivated action and a well-enumerated strategy of the empowered activists. It is a collection of actions that collapsed the Indian animal welfare regime. Using the paradigm of animal welfare in India, this post argues how ‘sabotage’ is now facilitating development. The growing concern indicated by the Supreme Court’s observation; academicians’ studies; and the proposal of the Prevention of Cruelty to Animals (Amendment) Bill, 2021, explains how sabotage is aiding reforms. Given these developments, this post solicits direct action from the Indian animal rights movement.

With that prelude, this article traces the journey of animal welfare, in particular, Section 11 of the Prevention of Cruelty Act, 1960 (‘PCA’),^[1] which has been subjected to amendment by the recent Prevention of Cruelty to Animals (Amendment) Bill, 2021 (‘Amendment Bill, 2021’). It was introduced as a private member’s Bill by Mr. Anubhav Mohanty, member of Parliament, Lok Sabha. The article examines further, in part II, the legal, epistemological, and moral questions evoked by such an amendment and looks into the lacunae left in Section 11.

Theoretical Understanding: Animal Welfare Regime

Although some 21^st century academicians and activists voiced concerns over the treatment of animals, it is not until recently that India has been able to take up anticruelty as a cause and bring the animal cruelty regime to a superlative end. The animal welfare movement, a movement that demands a higher level of aid, protection, education, and constitutional commitment towards animals, is based on the conviction of natural bias, referred to as speciesism. Animal rights activists are convinced that the rights of animals are equal and parallel to those of humans, and “to say one species [can] exploit others is to be guilty of speciesism”.^[2] These rights include the right to life, the right to five freedoms (including, freedom from thirst, hunger, and malnutrition; freedom from exposure and discomfort; freedom from injury and pain; freedom from distress and fear; freedom for expression of normal behaviour) and the like.

In India, PCA is the legislation that addresses animal welfare objectives, to ‘prevent infliction of any suffering on the animals’. The PCA mandates upon individuals a duty-bound procedure, legally, to ensure the animal’s well-being and denounces discreditable conduct towards them. Divided into 7 chapters, the Act contains 41 sections; with Chapter 3 Section 11, stipulating punishments for instances of ‘animal cruelty’. However, this very Section suffers from certain statutory flaws (for instance, limited applicability, inadequate punishment, and unvarying punishment) and the prejudice of speciesism, which shall be dealt with in the latter part of the article.

The Indian animal welfare movement has come a long way since the 1960s. For some, impatience with attaining the objectives, to ultimately meet the superlative end, has resulted in different types of action. These actions include the drafting of various Acts, Rules, Reports, studies, and Supreme Court’s (‘SC’) observation. For instance, the Central Government, in 2001, passed the Prevention of Cruelty to Animals (Establishment and Regulation of Societies for Prevention of Cruelty to Animals) Rules, 2001 in consonance with the PCA’s Section 38. These rules aim to establish societies for preventing animal cruelty. However, on the ground level, this didn’t have much impact; as observed in the Geeta Seshamani case and again, in the Narayan Dutt Bhatt case. Thereafter, in 2009, the 179^th Report was presented before the Rajya Sabha and certain clarifications were solicited from the Government. Regarding Section 11, it stated “[t]he feedback for increasing punishment for violation regarding enhancement of Punishment … can be considered, if found that existing punishments are not achieving the objectives…” However, to date, no such feedback has been acted upon.

This was followed by the Draft Bill entitled ‘Animal Welfare Act, 2011’ (‘Bill, 2011’) introduced to replace the PCA; however, the Bill was never passed. This Bill would have brought a much-needed change in the Indian animal welfare legislation, particularly, Section 11. For instance, while Section 11 of PCA did not specifically mention punishment for animal experimentation, Chapter V Section 21, Bill 2011, prohibited experimentation unless explicitly permitted. Another example is the provision for penalties, where the PCA’s Section 11(1)(o) stipulated a uniform amount of fine ranging from 10 – 100 rupees. The Bill, 2011, provided for different amounts of penalties for different acts ranging from 10,000 – 1 lakh rupees, and thus, moving from a reactive/ inadequate position to a proactive one. In 2014, the society (Animal Welfare Board of India) which brought up the Bill, 2011, outlined a fresh Bill – the Animal Welfare Bill, 2014 (not publicly available). This new Bill provided for stricter penalties in cases of animal cruelty. This too was never passed. And finally, in 2016 and 2019, a private members’ Bill was introduced, which looked upon Section 11, however, again, the Bill was never passed.

Lacunae in Section 11 and Amendment by 2021 Bill

Section 11 suffers from certain statutory flaws, subject to changes by the recent Amendment Bill, 2021. The present part shall deal with the suggested changes and current provisions, deliberating upon the legal, epistemological, and moral questions invoked.

1. Penalty and Punishment

Section 11 suffers from a major flaw of unvarying punishment, i.e., providing the same punishment despite the offence’s gravity. For instance, Section 11(1)(m)(ii) provides for inciting animals to fight with other animals, and Section 11(1)(l) provides for mutilating or killing any animal by using cruel methods, and are both prescribed with the same punishment and penalty. Also evident from Section 31, there is a differentiation of the acts from Section 11(1)(a)-(k) as non-cognizable and Section 11(1) clause (l), clause (n) or clause (o) as cognizable offences. While it is evident that both included acts are barbaric and punishable, Section 11 fails to differentiate them. Differentiation of acts based on their seriousness (in terms of offence) is imperative and failing to differentiate is problematic. This is primarily based upon the ‘equality’ principle, as presented by Jack Boeglin and Zachary Shapiro in their article entitled “[a] theory of differential treatment”. Wherein it was also observed that the equality principle and ‘victim facing’ theories call for a greater, and differentiated punishment for serious offences. Victim-facing theories argue that the dominance over a victim by the offender is based upon the dynamics of inequality between the two, and as such, the punishment should be brought in creating ‘equality’ by differentiating the punishment. 

Furthermore, Section 11, suffers from another major flaw of ineffective punishment, i.e., the punishment levied upon individuals performing animal cruelty is ineffective. The punishment imposed upon an offender ranges from 10 – 100 rupees, with a maximum imprisonment of three months (for second and subsequent offenders). While such punishment would have served its purpose in 1960, 60 years down the line, and per the Malimath Committee, these punishments are to be revised. Otherwise, they do not meet the purpose and become obsolete.

The SC, in several instances, observed this statutory flaw, accompanied by certain studies which were critical of Section 11. One such observation was made in the case of Animal Welfare Board of India v. A. Nagaraja and Ors.(‘AWBI case’), “Penalty … is insignificant … The punishment prescribed in Section 11(1) is not commensurate with the gravity … defeating the very object[ive] … Parliament [should] amend PCA…, adequate penalties and punishments should be imposed”.

The statutory flaw thus invoked both practical and theoretical challenges that exacerbated India’s animal welfare regime. Ultimately, leading to the drafting of the Amendment Bill, 2021. A major change that the Bill proposes is in terms of the penalty levied upon individuals – the Amendment Bill, 2021 (Section 11(2)(b)) increases the punishment, where first-time offenders were supposed to pay an amount ranging from 10 – 100 rupees, the new Bill provides for an amount ranging from 10,000 – 25,000 rupees, or imprisonment of up to one year. In subsequent offences, the amount increases up to 1 lakh rupees or imprisonment for a term (one year) extending up to three years. However, concomitantly the Amendment Bill does not cater to the proper classification of animal cruelty acts, and different punishments for different activities, which still makes it rendered middling punishment. Proper classification and different punishment is essential on the lines of the above mentioned ‘victim facing’ theories. This is also evident from George P. Fletcher’s understanding (based on retributivism- which promotes that when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence) that a harsher punishment is acceptable for more severe effects since the criminal in these cases is not in equality with the victim.

2. Limited Applicability

Section 11(1)(a)-(o) provides for certain circumstances that shall be termed as animal cruelty. However, the inherent flaw with the Section is that the exhaustive list provided under the Section does not cater to many other activities that should ideally be considered animal cruelty. Parliament has often depicted its intentions to protect animals from any form of cruelty. Examining its intent does little to prevent a precarious legal scenario. Indeed, the circumstances surrounding the creation of law, and discussions and scholarly papers, may be utilised to enhance interpretation. With that, even the cases during the formation of the law were a lot different from the current times. Today, judicial pronouncements (AWBI case; People’s Charioteer Organisation case) and surging journalists’ polemic serve to provide an outlook for the government to look upon and amend the laws.

This resulted in the Amendment Bill, 2021, being introduced. Further, it added certain clauses which provided for certain acts also being deemed to be animal cruelty (Section 11(1)(p)-(s)). This, indeed, widened the scope of acts that constitute animal cruelty, including cruelty emanating from animal training, involvement of animals in sports or activities leading to cruelty, killing of animals due to superstitious beliefs, extracting parts of animals, harming aquatic life, and electrifying fences in order to harm animals.

3. Human – Non-Human Relationship

Furthermore, another flaw aligns with the SC’s own observation. Some instances (AWBI case; Narayan Dutt Bhatt case) remarked on the natural bias of speciesism in India’s legislation for animal welfare. In the AWBI case, it was observed that,“… PCA should recognise and statutorily provide an absolute ‘Right to Life of Animals’ to live without any human cruelty… since laws are made by humans” and that currently animals are not provided with respect as provided to humans. However, even the Amendment Bill, 2021 does not provide, per se, any changes in balancing human and non-human interests.

Conclusion

Even with the animal welfare movement still going strong, the new legislation does not meet a satisfactory end. People for the Ethical Treatment of Animals’ Chief Executive Officer pointed out, “[j]ust as human sacrifice is treated as murder.., the archaic practice of animal sacrifice should be treated as punishable cruelty”. As an alternative proposal, the Parliament can focus and draft a bill on the lines of the 2011, Animal Welfare Board of India’s draft Bill. Section 11’s legislative flaws fail to prevent animal cruelty and obstruct the desired shift in society’s attitude toward animals. To protect the interests of animals, promote the Constitutional mandate, and assure the moral evolution of the public, it is vital to correct these legislative flaws.

The author is a 3rd Year Student of Jindal Global Law School, Haryana 

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[1] Prevention of Cruelty Act, 1960, Acts of Parliament, 1949 (India).

[2] R Ryder Speciesism, Pianism and Happiness: A Morality for the Twenty-First Century (Imprint Education United Kingdom 2011) 90.