From the “Fundamental Right to Food” to the “Fundamental Duty to Feed”: The Development of Compassionate Jurisprudence in India

Partha Pratim Mitra (ppmitra1977@yahoo.com) is a professor at the School of Law, Woxsen University, Hyderabad.
3 December 2023

After getting the sanction from the Supreme Court of India, the judgment of the Delhi High Court by Justice J R Midha has not only taken a beating at the concept of animal law in this country but also widened the dimensions of the compassionate jurisprudence already inherent in the Indian Constitution as a fundamental duty. This case was initially based on a typical dispute between two sets of residents in society: one who feeds stray dogs in public places and another who feels such practice creates a nuisance in society. The most important part of this judgment is that the fundamental duty “to have compassion for living creatures” has also been extended to the “right to feed stray animals.” This judgment has followed several observations of the high courts and the Supreme Court to safeguard the “life” of animals under Article 21 and, most interestingly, applied the ratio of the Jallikattu case of the Court where it was held that Article 51A(g) of the Constitution is the “magna carta of animal rights.” The Court also constituted a committee to implement the directions and ordered the display of the judgment for future judges and to set a precedent.

Delhi High Court through Justice J R Midha in the Dr Maya D. Chablani v Radha Mittal (2021) case not only extended the domain of the animal law in India but also provided a new dimension to the compassionate jurisprudence mainly inherent in our Constitution as a fundamental duty. [1] The said order of the high court was stayed by a division bench of the Supreme Court of India. [2] However, the stay order was vacated by the three-judge bench of the apex court of the country. [3]

The Maya D Chablani case was originally instituted on the backdrop of the conflict between two sets of citizens within the society: one who feeds stray dogs or cattle and another who feels disturbed due to such type of feeding practices of the other. In such situations, municipal authorities generally resolve the issue by exercising their constitutional power and responsibilities as enumerated under Item 15, Schedule XI of the Constitution. Similarly, the Prevention of Cruelty to Animals Act, 1960 established the Animal Welfare Board of India (AWBI), which has been playing an important role in settling these types of conflicts as per their statutory duties. AWBI has also issued guidelines with respect to the harassment of citizens showing compassion towards other living creatures. [4] The said notification follows the dictates of Article 51A(g) and also reiterates the precedent stated in the Animal Welfare Board of India v A. Nagaraja (2014) case. However, such types of incidents are very common. The Maya D Chablani judgment is a milestone in the field of stray animal laws and a landmark trendsetter in the area of animal protection jurisprudence in India.  

Initially, this case originated as a dispute between two sets of residents in society: one who feeds stray dogs in public places and another who feels such a practice creates nuisance in the society. This type of dispute among citizens is a subject of debate for a long period. The Delhi High Court through the Urvashi Vashist v Residents Welfare Association (2021) case has passed an order concerning feeding of stray dogs.[5] On a similar note, AWBI also issued a notification and guidelines to identify enough “feeding spots” for stray dogs in every district and to properly implement its guidelines.

Later, the Supreme Court in the Animal Welfare Board of India v People For Elimination of Stray (2016) case held that it shall be the duty of the municipal corporation to provide the mandatory infrastructure as provided under the Prevention of Cruelty to Animals Act, 1960 and the Animal Birth Control (Dogs) Rules, 2001 to strike a balance between the compassion for dogs and the lives of the human beings, and thereafter, they can harmoniously co-exist in the same environment.

The law should resolve the conflict of interests of different sets of rights. In this sense, the Maya D Chablani judgment is a progressive example of balancing the two sets of rights. In the mentioned case, the high court decided that the Residents’ Welfare Association (RWA) members as well as the dog feeders must act in harmony with each other and not in a manner that shall lead to unpleasant circumstances in the colony.

Concept of Compassion in Fundamental Duties

The Delhi High Court has very affectionately taken the concept of compassion while dealing with this case. In its words, it stated:

Compassion lies at the heart of what makes us human. Compassion is an evolved part of human nature, rooted in our brain and biology, and ready to be cultivated for the greater good. One reason why we see lack of compassion in human being towards animals is “fear.” Fear that the animal will cause them harm or attack them. It is this fear that prohibits a human being from being compassionate towards animals including stray dogs. It is seen that most fears are based on one’s own internal perceptions - the way in which one perceives a situation in their mind is what triggers fear-based thoughts, which triggers fearful feelings. (Dr. Maya D. Chablani, Para 43)

The Supreme Court in the State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat (2006) case has interpreted “compassion” as suggestive of sentiments, a soft feeling, emotions arising out of sympathy, pity, and kindness. The Court stated that

The concept of compassion for living creatures enshrined in Article 51A(g) is based on the background of the rich cultural heritage of India, the land of Mahatma Gandhi, Vinoda Bhave, Mahaveer, Buddha, Guru Nanak and others. No religion or holy book in any part of the world teaches or encourages cruelty. Indian society is a pluralistic society. It has unity in diversity. The religions, cultures and people may be curbed and ceased. (Mirzapur Moti Kureshi Kassab Jamat, Para 67)

The Supreme Court also thinks that by incorporat­ing Article 51A(g), the Parliament has again reiterated and re-emphasised the fundamental duties of human beings towards every living creature after getting inspiration from so many international conventions during the 1970s on environment, ecology, and wild animals. In the Animal Welfare Board of India v A Nagaraja (2014, famously called the “Jalikattu” case) case, the court stated that

All living creatures have inherent dignity and a right to live peacefully and right to protect their well- being which encompasses protection from beating, kicking, over- driving, over- loading, tortures, pain and suffering and so on. Human life, we often say, is not like animal existence, a view having anthropocentric bias, forgetting the fact that animals have also got intrinsic worth and value. (Jalikattu case, Para 32)

The Maya D Chablani judgment of the Delhi High Court has very meticulously used this compassion for stray dogs. It observed that

Dogs have been part of human societies for more than 15,000 years, which is more than any other domestic species. A few isolated incidents of dog bites have made people paint all the stray dogs in the same colour. However, it is pertinent to point out that most of the dogs do not bite unless provoked or diseased. (Dr. Maya D. Chablani, Para 49)

Justice Midha’s creativity reminds us of the words of celebrated jurist, Justice V R Krishna Iyer who stated in his book, Constitutional Miscellany,[6] that

It is the duty of every citizen, be the minister or judge, legislator or administrator, corporate official or common man, to protect and improve the natural environment and to have compassion for living creatures. (Iyer 2007: 236)

Right to Food for Animals

The fountainhead of compassionate jurisprudence is Article 51A(g) of the Indian Constitution. In the Mirzapur Moti Kureshi Kassab case, the Supreme Court, for the very first time, explained how the wordings given under the Article directly portrays that it is the fundamental duty of each citizen to have compassion for the living creatures. Again, upholding the ban on the Jallikattu practice, the Supreme Court held that the Article 51A(g) of the Constitution is the “magna carta of animal rights” and made several observations to safeguard the “life” of animals under Article 21.

In Re: Ramlila Maidan Incident v Home Secretary, Union Of India & Ors (2012), it was held that the Indian Constitution does not exists exclusively for human right protection only. The catena of judgments also speaks of preservation and protection of man as well as animals, all creatures, plants, rivers, hills, and environment. Our Constitution professes for collective life and collective responsibility on the one hand and individual rights and responsibilities on the other.

In 2019, the High Court of Tripura, in the Subhas Bhattacharjee v State of Tripura (2018) case, banned animal sacrifice as the word “life” in Article 21 of the Indian Constitution is wide enough to include every living organism be it humans, animals, insects, or bird and taking away of their life also has to be in accordance with due process of law, and offering an animal for sacrifice is not an integral and essential part of the religion, as protected under Article 25(1) of the Constitution. Here the term “life” entailed the survival of “life” too, and the right to get food is also coming within the purview of the meaning life under the Constitution.

Coming back to the Maya D Chablani case, the Delhi High Court has extended the meaning of life. It stated that

Article 21 of the Constitution, while safeguarding the rights of humans, protects life of all species. The word “life” has been given an expanded definition. So far as animals are concerned, “life” means something more than mere survival or existence. (Dr. Maya D. Chablani, Para 110)

Right to Feed as a Fundamental Duty

The most significant element of this judgment is that the fundamental duty “to have compassion for living creatures” has been extended up to the “right to feed to stray animals” also. In providing the “guidelines,” the Delhi High Court here declared that

Community dogs (stray/street dogs) have the right to food and citizens have the right to feed community dogs but in exercising this right, care and caution should be taken to ensure that it does not impinge upon the rights of others or cause any harm, hinderance, harassment and nuisance to other individuals or members of the society. (Maya D. Chablani, Para 126)

Earlier, the Delhi High Court in the Citizens for the Welfare and Protection of Animals v State (2009) case dealt with the declaration that feeding of stray dogs was not an offence. On 18th December 2009, the court directed the framing of various guidelines for feeding stray dogs. In the Urwashi Vashist case, when a lady knocked the door of Delhi High Court for seeking relief on feeding stray dogs without any harassment, then the court reiterated and opined that the guidelines and freedom relating to feeding stray dogs is clear. However, to resolve the issue, the court ordered the AWBI, the RWA members, and the station house officer (SHO) to have a meeting in regard to feeding stray dogs and taking appropriate actions.

On the similar premise, the Kerala High Court in the People for Animals v State of Kerala (2021) case directed six municipal corporations to identify suitable locations within their territorial limits to be designated as feeding points for community dogs.[7] They also instructed to erect signposts at the said locations and an intimation of those locations should also be provided to the SHO of the jurisdictional police stations.

In the Maya D Chablani case, the Delhi High Court has very categorically protected the rights of those citizens who are feeding animals and at the same time very strongly directed that “no person can restrict the other from feeding of dogs, until and unless it is causing harm or harassment to that other person” (Maya D. Chablani, para 132). On the one hand, the animal’s right to food has been established and at the same, time citizen's right to feed community dogs have also been recognised.

Ratios of the High Courts on Animal Protection

In this case, the Delhi High Court had gone through the related jurisprudence of various high courts of the country. In 2015, the high court itself in the People for Animals v Mohazzim (2015) case held that birds had fundamental rights including the right to live with dignity and that they could not be subjected to cruelty by anyone including claims made by the respondent. All the birds have the fundamental right to fly in the sky, and human beings have no right to keep them in small cages for the purposes of their business or otherwise. According to the Uttarakhand High Court in the Narayan Dutt Bhatt v Union of India (2018) case, animals may be mute, but we have to speak on their behalf. No pain or agony should be caused to the animals. The animals, including avian and aquatics, have a right to life and bodily integrity, honour, and dignity. Animals cannot be treated merely as property. We must show compassion towards all living creatures. The High Court of Punjab and Haryana in the Karnail Singh and others v State of Haryana (2019) case declared the entire animal kingdom including avian and aquatic as legal entities having a distinct persona with corresponding rights, duties, and liabilities of a living person and also declared the citizens of Haryana as persons in Loco Parentis (in place of a parent) to the animals. The Manipur High Court in the In Re Effective Implementation of Prevention of Cruelty to Animal Act, 1960 and its Rules v The State Government through its Chief Secretary (2019) case held that the implementation of the Prevention of Cruelty to Animals Act, 1960 was not being done appropriately and directed the state government to implement the provisions of the Act and the Rules made there under, in letter and spirit, as directed by the Supreme Court and submit a compliance report.

Almost every high court of the nation is generating the animal protection laws and consequent animal personhood jurisprudence in the recent past. The High Court of Uttarakhand in the Alim v State of Uttarakhand (2017) case decided that the abandoning of animals by owners, including cows, oxen, bulls, and buffaloes would tantamount to cruelty. Earlier in interpreting the Cattle-Trespass Act, 1871, the Gujarat High Court in the Mahisagar Mataji Samaj Seva Trust v State of Gujarat (2012) realised that the cattle, like human beings, possess life in them. According to the court, even an animal has a right to say that its liberty cannot be deprived except in accordance with law. There are many enactments that have recognised the rights of animals. The Gujarat High Court in the Muhammadbhai Jalalbhai Serasiya v State of Gujarat (2015) case also held that keeping birds in cages would tantamount to illegal confinement, which is in violation of the right of birds to live in free air and sky. Thereby, the court also directed to release such illegally confined birds in the open sky or air.

Conclusions

In the mentioned Delhi High Court judgment, the court not only provided the “guidelines” but has also constituted a committee to implement them appropriately. The committee consists of the director or their nominee from Department of Animal Husbandry and Dairying, one senior officer to be nominated by all the municipal corporations, the Delhi Cantonment Board, and the AWBI along with its advocate(s) for the Animal Welfare Board of India. The Additional Central Government Standing Counsel, the Government of National Capital Territory of Delhi, would be convenor of this committee. The court has also directed that the committee shall hold its first meeting within four weeks from the date of judgment. It has also directed that the copy of the judgment be sent to the Delhi Judicial Academy to upload on their website as a good practice of that court.

 
Partha Pratim Mitra (ppmitra1977@yahoo.com) is a professor at the School of Law, Woxsen University, Hyderabad.
3 December 2023