That the government
of lndia in the Ministry of Social Justice and Empowerment has further
promulgated the requirement for the compulsory registration of the animals
performing entertainment to public under the provision performing animals (registration)Rules
2000. The definition of the performing
animals contemplated under rule 2 (h) prescribes that an animals which is used
at or for the purpose of any entertainment including a film or an equine event to which the public are admirer. Any person desirous of
training or exhibiting a performing
animal shall, within thirty days from the commencement of these rules, apply
for registration to the prescribed authority and shall not exhibit or train any
animal as a performing animal without being registered under these rules
The prescribed authority while granting registration may
impose such terms and conditions as it deems appropriate and shall impose the
following conditions in granting registration namely /- Every owner who has ten
or more such performing animals shall have a veterinarian as a regular employee
for their care treatment and transport.
The owner shall not transport such animals by road continuously for more
than 8 hours and except in cages admeasuring as specified in the fifth Schedule. The owner shall ensure proper watering and
feeding halts during such transportation.
The owner after transportation shall provide feeding and retiring
enclosures in respect of the animals specified in the Sixth Schedule. The owner shall ensure that any animal is not
inflicted unnecessary pain or suffering before or during or after its training
or exhibition. The owner shall not
deprive the animal of feed or water in order to compel the said animal to train
or perform any trick. The owner shall train
an animal as a performing animal to perform an act in accordance with its basic
natural instinct. The owner shall not
make a performing animal perform if it is sick or injured or pregnant. The owner shall ensure that no sudden loud
noise is deliberately created within the
vicinity of any performing animal or bring an animal close
to fire, which may frighten the animal.
The owner in case the performing animal is to be exhibited
under artificial light, the overall intensity of such light shall not be more
than 500 LUX. The owner shall not
subject the animals to any action, which may either kill or injure or use the
animal in scenes that may cause injury to the animals. The owner shall not use any tripping device,
wires, or pitfalls for such animals. The
animals shall not expose any animal to either burning fire or to fire
accidents. The owner shall not keep any
animal including horses in close proximity while shooting scenes involving
explosives or other loud noises. The
owner shall ensure that props such not cause injury to the animals during the
performance. The owner shall ensure that
the equines are not made to walk on hard surfaces without being shoed and shall
further ensure that the animals are not used in downhill slides or rodeo slide
stops without proper skid and hock boots.
The owner of any equine shall not use any whip other than an air
cushioned shock absorbing whip which has been scientifically tested to prove
that it will not cause wears, bruising or other damage to the horse and subject
to the conditions that- (a) the whip shall not have raised binding, stitching,
seam or flap, (b) the whip shall be used
by licensed jockeys only. (c) the owner shall also ensure that the whip is not
used other than either on the quarters in either the forehand or the backhand
position or down the shoulder in the backhand position or use the whip with the
arm above shoulder height (d) the whip shall not be used more than 3 times in a
race.
The owner shall ensure that the animal is not used on floors
that are very smooth without the use of non-skidding mats. The owner shall
ensure that large gathering of animals is not allowed in such a way which may
cause or result in stampede to the animals.
The owner shall ensure that the animal is not made or incited to fight
against other animals and shall further ensure that sedatives or tranquilizers
or steroids or any other artificial enhances are not administered to or
inserted in any animal except the anesthesia by a veterinary doctor for the
purpose of treatment of an injured or sick animal. The owner shall ensure that the animal shall
not be transported or be kept or confined in cages and receptacles which do not
measure in height, length or breadth as specified under the Transport of Animal
Rules, 1978, the Recognition of Zoo Rules, 1992 or under any other Act, rule or
order for this purpose. The owner shall
ensure that the animal is not continuously used for excessive number of takes
in shooting a film without providing adequate rest to the animal and in the
event of a snake being used it shall not be made to ingest any substances or
made to crawl across tarred or any other heatened surface and shall not be
contorted to wrestle. The owner shall ensure that while using an animal in
shooting a film, the fight sequence shall not be shot in any livestock holding
area including poultry area and shall further ensure that no birds are shown in
cages. The owner shall inform the prescribed authority at least four weeks in
advance informing the place, date and time of the actual making of the film
wherein the animal is to be used.
The provisions of
aforesaid rules banning the training and exhibitions of an animals formulated
under provision of sections 22 of prevention of cruelty animals Act were
challenged as violetive of article 14, 19 (1)(g) and 21 of constitution of
India before Hon’ble Kerela High Court in N.R. Nair vs. Union of India (AIR
2000 Kerela 340). The Hon’ble High Court
was pleased to observe that “It is a fallacy to think that under our Constitution
there are only rights and no duties. The
provisions in Part IV enable the Legislatures to impose various duties on the
citizens. The mandate of our
Constitution is to build a welfare society and that object may be achieved to
the extent the Directive principles are implemented by legislation.”
If so, in determining the constitutionality of such laws,
when enacted, the Court should have regard to the Directives as well as the
fundamental duties along with the fundamental rights. The Courts may also look at the duties while
interpreting equivocal status which, admit of two constructions and also uphold
the constitutionality of a statute the object of which is in consonance with a
provision in Article 51 A – vide Mohan v Union of India, 1992 Supp. (1) SCC 594
(AIR 1991 SC 1150). Viewed in the above perspective, the impugned notification
has to be upheld as one in furtherance of the object of the fundamental duty of
a citizen to have compassion for animals and to refrain from inflicting
unnecessary pain and suffering on them.
Progress and retrogression punctuate the story of mankind.
Empires have risen and crashed into the dust of history. Civilizations have
flourished, reached their peak and passed away. "and yet time has his
revolution, there must be a period and an end of all temporal things, an end of names and dignities, and whatsoever
is terrene."
The law exists to serve the needs of the society, which is
governed by it. If the law is to play its allotted role of serving the needs of
the society, it must reflect the ideas and ideologies of that society. It must
keep time with the heartbeats of the society and with the needs and aspirations
of the people. As the society changes, the law cannot remain immutable. Sydney
Smith, said, "When I hear any man talk of an unalterable law. I am
convinced that he is an unalterable fool." The law must, therefore, in a
changing society march in tune with the changed ideas and ideologies.
Legislatures are, however, not best fitted for the role of adapting the law to
the necessities of the time, for the legislative process is too slow and the
legislatures often divided by politics, slowed down by periodic elections and
overburdened with myriad other legislative activities. A constitutional
document is even less suited to this task, for the philosophy and the
ideologies underlying it must of necessity be expressed in broad and general
terms and the process of amending a Constitution is too cumbersome and
consuming to meet the immediate needs. This task must, therefore of necessity
fall upon the courts because the courts can by the process of judicial
interpretation adapt the law to suit the needs of the society.
The cycle of change and experiment, rise and fall, growth
and decay, and of progress and retrogression recurs endlessly in the history of
man and the history of civilization. T. S. Eliot in the First Chorus from
"The Rock" said :
"0 perpetual revolution of configured stars,
0 perpetual recurrence of determined seasons,
0 world of spring and autumn, birth and dying!
The endless cycle of idea and action,
Endless invention, endless experiment".
"It is something to show that the consistency of a
system requires a particular result, but it is not all. The life of the law has
not been logic: it has been experience. The felt necessities of the time, the
prevalent moral and political theories, intuitions of public policy, avowed or
unconscious, even the prejudices which judges share with their fellow-men, have
had a good deal more to do than the syllogism in determining the rules by which
men should be governed. The law embodies the story of a nation's development
through many centuries, and it cannot be dealt with as if it contained only the
axioms and corollaries of a book of mathematics. In order to know what it is,
we must know what it has been. and what it tends to become. We must alternately
consult history and existing theories of legislation. But the most difficult
labor will be to understand the combination of the two into new products at
every stage. The substance of the law at any given time pretty nearly
corresponds, so far as it goes, with what is then understood to be convenient;
but its form and machinery, and the degree to which it is able to work out
desired results, depend very much upon its past."
The framers of our Constitution were men of vision and
ideals, and many of them. had suffered in the cause of freedom. They wanted an
idealistic and philosophic base upon which to raise the administrative
superstructure of the Constitution., They, therefore, headed our Constitution
with a preamble which declared India's goal and inserted Parts III and IV in
the Constitution.
"It
may not be possible to frame an exhaustive definition of what executive
function means and implies. Ordinarily the executive power connotes the residue
of governmental functions that remain after legislative and judicial functions
are taken away. The Indian Constitution has not indeed recognized the doctrine
of separation of powers in its absolute rigidity but the functions of the different
parts or branches of the Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that
essentially belong to another. The executive indeed can exercise the powers of
departmental or subordinate legislation when such powers are delegated to it by
the legislature. It can also, when so empowered, exercise judicial functions in
a limited way. The executive Government, however, can never go against the
provisions of the Constitution or of any law. This is clear from the provisions
of Article 154 of the Constitution but, as we have already stated, it does not
follow from this that in order to enable the executive to function there must
be a law already in existence and that the powers of the executive are limited
merely to the carrying out of these laws."
The framers of our Constitution did not, however, want to frame for the
Sovereign Democratic Republic, which was to emerge from their labour, a
Constitution in the strict legal sense. They were aware that there were other
Constitutions that had given expression to certain ideals as the goal towards
which the country should strive and which had defined the principles considered
fundamental to the governance of the country. They were aware of the events
that had culminated in the Charter of the United Nations. They were aware that
the General Assembly of the United Nations had adopted the Universal
Declaration of Human Rights, for India was a signatory to it. They were aware
that the Universal Declaration of Human Rights contained certain basic and
fundamental rights, appertaining to all men. They were aware that these rights
were born of the philosophical speculations of the Greek and Roman Stoics and
nurtured by the jurists of ancient Rome. They were aware that these rights had
found expression in a limited form in the accords entered into between the
rulers and their powerful nobles. For instance, the accord of 1188 entered into
between King Alfonso IX and the Cortes of Leon, the Magna Carta of 1215 wrested
from King John of England by his barons on the Meadow of Runnymede . He was
compelled to- affix his Great Seal on a small island in the Thames in
Buckinghamshire - still called Magna Carta Island, and the guarantees which
King Andrew 11 of Hungary was forced to give by his Golden Bull of 1822. They
were aware of the international treaties of the mid-seventeenth century for
safeguarding the right of religious freedom and the rights of aliens.
They were aware of
the full blossoming of the concept of Human Rights in the writings of the
"philosophers" such as Voltaire, Rousseau, Diderot, Rayal, d'Alembert
and others, and of the concrete expression given to it in the various
Declarations of Rights of the American Colonies (particularly Virginia) and in
the American Declaration of Independence. They were aware that in 1789, during
the early years of the French Revolution, the French National Assembly had in
"The Declaration of the Rights of Man and of the Citizen" proclaimed
these rights in lofty words and that Revolutionary France had translated them
into practice with bloody deeds. They were aware of the treaties entered into
between various States in the nineteenth century providing protection for
religious and other minorities. They were aware that these rights had at last
found universal recognition in the Universal Declaration of Human Rights. They
were aware that the first ten Amendments to the Constitution of the United
States of America contained certain rights akin to Human Rights. They knew that
the Constitution of Eire contained a chapter headed "Fundamental
Rights" and another headed "Directive Principles of State Policy".
They were aware that the Constitution of Japan also contained a chapter headed
"Rights and Duties of the People". They were aware that the major
traditional functions of the State have been the defiance of its territory and
its inhabitants against external aggression, the maintenance of law and order,
the administration of justice, the levying of taxes and the collection of
revenue. They were also aware, that increasingly, and particularly in modem
times, several States have assumed numerous and wide-ranging functions, especially
in the fields of education, health, social security, control and maintenance of
natural resources and natural assets, transport and communication services, and
operation of certain industries considered basic to the economy and growth of
the nation.
No institution in the republic has a history so continuous
and so successful as that of judicial institution. The normative and the
factual aspect associated in legal system are closely interacting with each
other. A legal system is playing a role between social ideals and social
realities. Judicial institution is not born of a revaluation, but has been
evolved gradually by struggle and develop through epochs of toil and tears
contributed by the members of the Bar. This is like a transformation of a tree from
the seed.
Judicial review has I think developed to a stage today when
without reiterating any analysis of the steps by which the development has come
about, one can conveniently classify under three heads the grounds on which
administrative action is subject to would call ’illegality’ the second
‘irrationality’ and the third ‘procedural impropriety’ That is not, to say that
further development on a case by case basis may not in course of time add
further grounds. I have in mind
particularly the possible adoption in the future of the principle of
‘proportionality’ which is recognized in the administrative law of several of
our fellow members of the European Economic Community; but to dispose of the
instant case the three already well established heads that I have mention will
surface.”
“No citizen has a fundamental right to trade in ivory or
ivory articles, whether indigenous or imported.
Assuming trade in ivory to be
fundamental right granted under Article 19 (1) (g), the prohibition
imposed thereon by the impugned Act is in public interest and in consonance
with the moral claims embodied in Article 48 A of the Constitution; and the ban
on trade in imported ivory and articles made therefrom is not violative of
Article 14 of the Constitution and does not suffer from the mala fides namely,
unreasonableness, unfairness and arbitrariness.”
This judgement has been affirmed by the Hon’ble Supreme
Court in N.R. Nair and others v Union of India (2001) 6 S.C.C 84. The Hon’ble Supreme Court has helped that
keeping the Preamble of the Act and Section 24 in view it is clear it is the
welfare of the animals which is of paramount consideration and it is only if
the Government is satisfied on the basis of the materials on record that
unnecessary pain or suffering is inflicted on an animal during the course of
training or at the time when it is exhibited that a notification
under Section 22/(II) is issued.
Implicit in Section 22 is the necessity for the Government to come to
the conclusion that if a notification under the said section is not issued there would be unnecessary pain or
suffering in the training or exhibition of the animals. The existence of the said fact is
precondition to the issuance of the
notification. Therefore, the power contained in Section 22 cannot be said to be
unguided. In exercise of judicial
review, neither the High Court nor the Supreme Court can go into the
correctness of the decision of the Government in issuing the impugned
notification. The Govt. cannot be said
to have acted irresponsibly or have not taken into account all the evidence
which was placed before it and the High Court has referred to extracts thereof
which shows the manner in which the animals are trained or ill-trained. Thus the impugned notification is within the
parameters of the Prevention of Cruelty to Animals Act.
In the context of our national dimensions of human rights,
right to life, liberty, pollution, free air and water is guaranteed by the
Constitution under Articles 21, 48A and 51 (g), it is the duty of the State to
take effective steps to protect the guaranteed constitutional rights.
"Democratic and aristocratic States are not in their
own nature free. Political liberty is to be found only in moderate governments;
and even in these it is not always found. It is there only when there is no
abuse of power. But constant experience shows us that every man invested with
power is apt to abuse it, and to carry his authority as far as it will go. Is
it not strange, though true, to say that virtue itself has need of limits?. In
every government there are three sorts of powers : the legislative the
executive in respect of things dependent on the law of nations and the
executive in regard to matters that depend on the civil law..
No right is absolute in a welfare state. Man is a social animal . He cannot live without the cooperation of
large number of person. Thus when there
is a clash between two fundamental rights, the right which would advance the
public morality or the public interest would alone be enforced through the
process of Court. Moral consideration
can be kept at bay. Judges are not
excepted to sit at mute structures of clay in the hall known as Court Room, but
have to be sense that they must keep their finger firmly upon the pulse of the
accepted morality of the day.
"The functions of Government under our system are
apportioned. The legislative department has been committed the duty of making
laws; to the executive the duty of executing them : and to the judiciary, the
duty of interpreting and applying them in cases properly brought before the
Courts. The general rule is that neither department may invade the province of
the other, and neither may control, direct, or restrain the action of the
others." It is also well to remember that freedom depends upon the
separation of three organs of the State.,, Each must function within its own
domain and remain distinct.
. Judicial review of the administrative action or inaction
where there is an obligation for action should be with caution and not in
haste. Its sense of priority it has determined, there may have been certain
lethargy and inaction. It has been said by Adam Smith in his 'Wealth of Nation'
that whenever you see poverty widespread rest assured that either of the two
causes must have operated, either energy has not been applied or energy has
been misapplied.
"The judge, even when he is free, is still not wholly
free. He is not to innovate at pleasure. He is not a knight-errant roaming at
will in pursuit of his own ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and
subordinated to "the primordial necessity of order in the social
life." Wide enough in all conscience is the field of discretion that
remains."
The judicial system is based on the cooperation of the
administration. It is well settled
preposition of jurisprudence that every right has a corresponding duty upon the
enforcing agencies regulated by the sovereignty of the State Government. Thus
the enforcement of the provisions of the law and statutory provision is not
only the responsibility of the Hon’ble Courts meant for the enforcement of
constitutional right but it is an elementary duty of the official assigned with
the responsibility make the enforcement of the Public order. There is a comedy of error in our celebrated
principles that those person who are made accountable for the enforcement of
law, are themselves violative the public order for extraneous consideration.
Certainly judicial institutions must reflect the traditions,
ideals and assumptions, and in the end must respond to the needs, claims and
expectations of the social order in which they operate. They must not and
ultimately cannot, move too far ahead or lag too far behind. The problem for
the Supreme Court is one of finding of the proper degree of responsiveness and
leadership or perhaps better, of short-term and long-term responsiveness. Yet,
in seeking out this position the Court should not under-estimate the authority
and prestige it has achieved over the years. Representing the conscience of the
community" it has come to possess a very real power to keep alive and
vital the higher values and goals towards which our society imperfectly strives
Given its prestige, it would appear that the power of the Court to protect
freedom of expression is unlikely to be substantially curtailed unless the
whole structure of our democratic institutions is threatened"
The Court of law has
become the mute spectator of the melody prevalent in the society in absence of
fixing accountability of such officer who are guilty of violating the law. There is no fear in the mind of the
public. The invasion of law is common
phenomenon. The people have given up
there basic instinct for the enforcement of social obligation and rather they
have now dragged in the process of participating with such person who are the
offender and invaders to the society at large.
Thus the entire society has now become an association of dreaded
criminals. There is no frustration in
the mind of the public at large even to
go behind the bar of jail if the same is having the attractive venture for the
purposes of getting the predomination in the society.
The Constitution enshrines and guarantees the rule of law
and the power of the High Courts under Art. 226 (which is equally true of Art.
32) is designed to ensure that each and every authority in the State, including
the Government acts bona fide and within the limits of its powers and that when
a Court is satisfied that there is an abuse or misuse of power and its
jurisdiction is invoked, it is incumbent on the Court to afford justice to the
individual. The Court further observed that in such an event the fact that the
authority concerned denies the charge of mala fide, or asserts the absence of
oblique motives or of its having taken into consideration improper or
irrelevant matter, does not preclude the Court from inquiring into the truth of
the allegations made against the authority and affording appropriate relief to
the party aggrieved by such illegality or of use of power in the event of the
allegations being made out.
There is a growing body of authority, attributable in large
part to the efforts of Lord Denning, to the effect that in some circumstances
when public bodies and officers, in their dealings with a citizen, take it upon
themselves to assume authority on a matter concerning him, the citizen is
entitled to rely on their having the authority that they have asserted if he
cannot reasonably be expected to know the limits of that authority; and he
should not be required to suffer for his reliance if they lack the necessary
authority."
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