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Wednesday, June 16, 2021

Do birds have a ‘fundamental right to fly’?

Two High Courts and the Supreme Court have been inclined to agree they do, and the matter is now before the apex court again.

Written by Aneesha Mathur , Satish Jha |
December 15, 2015 12:57:08 am
Illustration by C R Sasikumar Illustration by C R Sasikumar

What is the case on the rights of birds that the Supreme Court admitted for hearing last month? What is the fundamental question before the court?

On November 20, a Bench led by the then Chief Justice of India H L Dattu admitted a challenge to a Gujarat High Court ruling of May 2011, which had said that keeping birds in cages was tantamount to “illegal confinement”. The challenge was mounted through separate petitions by a body of pet lovers and some birdsellers from Surat, who argued that safeguards under the Prevention of Cruelty to Animals Act, 1960 and the Wildlife Protection Act, 1972 were sufficient to protect birds and animals. The petitioners also argued that birds and animals provided happiness and companionship to humans, which was therapeutic.

The Supreme Court will examine whether birds have a “fundamental right to fly”, as the Gujarat High Court said. It is a question not only of philosophical import, but which can directly impact the business of buying and selling birds and animals. The High Court order may be taken to mean that a complaint can be filed against birdsellers and pet shop owners by parties claiming a violation of the fundamental rights of these animals.

What was the Gujarat case on which the HC passed its order?

In 2010, police in Surat arrested three birdsellers for offences under the Prevention of Cruelty to Animals Act, 1960 and Section 12 of the Wildlife Protection Act, 1972. 494 birds and animals, including parrots, pigeons, lovebirds, sparrows, rabbits, mice and dogs, being sold in the open market, were seized. The accused did not have a licence for the trade, and had kept the birds in small cages, with wings and tails clipped and taped to prevent them flying.

The accused moved a lower court seeking the return of the birds — however, the magistrate not only rejected their plea, but also ordered the release of the caged birds and animals. The accused appealed, and the Sessions court ordered that the birds and animals be handed over to an NGO. The accused then went to Gujarat High Court. The NGO did the same, asking that the birds be freed.

And what did the Gujarat High Court say?

In his order passed on May 12, 2011, Justice M R Shah held that in not possessing a licence while dealing in birds notified as Scheduled, the petitioners were in violation of the Wildlife Protection Act. The judge went on to say that even if a licence were not required, it was inhuman to subject the birds to such cruelty. “Nobody has a right to inflict pain or suffering on others, inclusive of animals and birds. Even birds cannot be kept in cages by which they suffer pain. To keep birds in cages would tantamount to illegal confinement of the birds, which is in violation of the right of birds to live in free air/sky. For the aforesaid a specific law might not be required. It is the fundamental right of the bird to live freely in the open sky,” Justice Shah said.

Have other courts in India examined these questions earlier?

On May 15, 2015, the Delhi High Court in an interim order said that “all the birds have fundamental rights to fly in the sky and all human beings have no right to keep them in small cages for the purposes of their business or otherwise”. The court stayed a trial court order to return over 400 birds seized from a pet shop in Delhi. The NGO People for Animals had filed a plea challenging the trial court order on the ground that the pet shop owner was keeping the birds in small cages, and inflicting cruelty on them. The NGO had filed a police complaint, following which the birds had been “rescued”. The trial court had, however, ordered that the birds be returned.

“This court is of the view that running the trade of birds is in violation of the rights of the birds,” the High Court said. “Birds have fundamental rights including the right to live with dignity and they cannot be subjected to cruelty by anyone including claim made by the respondent.”

The matter will be heard again in February 2016.

Has the Supreme Court taken a view earlier on the “rights of birds”?

On May 7, 2014, while banning the traditional Tamil Nadu bull-taming sport of Jallikattu and bullock-cart racing, a Bench of Justices K S Radhakrishnan and Pinaki Chandra Ghose held 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 etc.” The Bench held that the Prevention of Cruelty to Animals Act had given statutory recognition to “five internationally recognised freedoms for animals, such as: i) freedom from hunger, thirst and malnutrition; ii) freedom from fear and distress; iii) freedom from physical and thermal discomfort; iv) freedom from pain, injury and disease; and v) freedom to express normal patterns of behaviour. The Bench had called for recognition of these statutory rights as “fundamental rights”, and observed that the “specieism” which denied rights to animals needed to be dealt with in a similar manner as racism and casteism among human beings. “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 Bench said.

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