India’s legal Doolittle

Amy Mansfield meets the lawyer giving animals a voice

The debate around whether New Zealand should have a written constitution, and if so, what its contents might be, tends to look as reference points to the United States, Canada, and individual states of Australia. But recently, New Zealand has been offered some food for thought by constitutional content deriving from as early as the third century BC, from the unlikely source of India, in the even more unlikely field of animal law.

Last week, a prominent Indian lawyer and advocate for the rights of wild and domesticated animals spoke at the University of Auckland’s Faculty of Law as part of a 10-day lecture series in law schools throughout Australasia organised and sponsored by Voiceless, the fund for animal rights and welfare.

Formerly a corporate lawyer, Raj Panjwani has dedicated the better part of his career (arguably, in both senses of the word ‘better’) to preventing cruelty to animals in India used for food production, entertainment, hunting, and research. Over the past 25 years, he has advocated on behalf of animals such as turtles, antelope, tigers, deer, goats, buffalo, and bears.

Panjwani’s notable Supreme and High Court successes in India include:
- Banning the use of tigers, lions, panthers, bears, and monkeys in circuses.
- Obtaining a right of choice for school students opposed to dissection and experiments on animals.
- Securing the imprisonment of Sansar Chand, one of India’s most notorious wildlife criminals.
- Acquiring the mandatory labelling of animal-derived food products.
- Defending a legal challenge by traders seeking to reinstate the trade in ivory and the fur and skins of endangered animals.

In 2002, the Supreme Court of India Bar Association acknowledged Panjwani’s efforts by awarding him a citation for “adding knowledge to the practice of law”.

Breaking new legal ground
India is a nation that is largely committed to the principle of non-violence, says Panjwani. “It also has possibly the largest vegetarian population. Despite this, animals in India continue to suffer enormously and in staggering numbers even though the Constitution mandates [in Article 51 A(g)] that every citizen have compassion towards all living creatures.”

Says Peter Sankoff, animal law lecturer at the University of Auckland’s Faculty of Law, “Relying on the notion of compassion for animals, Mr Panjwani has over the last two decades continually broken new ground for animals in the courtroom, working as legal counsel for India’s major environmental and animal protection organisations.”

The idea of the lecture series is not to preach, says Panjwani, but to showcase what is happening in other countries and exchange ideas. In this instance, it appears India has more to teach Australia and New Zealand than the other way round: both hosting countries lack the tools Panjwani has been able to invoke in India to bring about improvements in the treatment of animals.

In terms of legislation, the key provisions Panjwani has invoked during his career are contained within India’s Prevention of Cruelty to Animals Act 1960 (PCA), Chapter III of which prohibits a long list of ill treatments of, and behaviours towards, animals. Nevertheless, the punishment for the long list of offences in the Act is minimal, and the escalated punishment for repeated offences is dependent on a non-existent record of prior offences, says Panjwani.

India also has a raft of subordinate legislation regulating, amongst other things, the treatment, transport, registration, capture, and slaughter of animals. As many will be aware, cows are held to be sacred in India, and enjoy special ‘privileges’ as a result. Under section 429 of the country’s Penal Code 1895, mischief against a cow is punishable to imprisonment of up to five years or a fine or both, and under state legislation, only two out of 28 states permit the slaughter of cows.

A key role for the judiciary
Panjwani speaks in his Auckland lecture about the key role of an active judiciary in bringing about the changes for which he has advocated. But it’s not just any old judge he’ll cast. Panjwani says he has been known to fall sick where he suspects a judge is unsympathetic and not recover until a happier judge comes along. “I’ll be honest, I do avoid inconvenient judges,” he laughs. “We all do it. In every case, not just this [kind].” Judges are, he says, “all human beings… [they are] not a computer which is doling out justice”, and they bring to bear on a case their “thought processes, visions, likes and dislikes, past experience with animals”.

However, the real gems of the Indian animal lawyer’s toolkit lie in the Constitution and the power of the Court to issue a direction or order or writ where a legal wrong has been committed by violation of a constitutional or legal right. India’s Constitution has provisions upholding not just the duty of compassion but protecting the freedoms of conscience, speech, and life and liberty, which judges have to address one way or another, whoever they are and whatever their preferences. Says Panjwani, “There are no two ways about it. The power to become inconvenient gets limited because of these [constitutional] tools. [The unsympathetic judge] cannot become a troublesome or a bothersome judge – he has to limit himself to being an inconvenient judge.”

Law as a sword
Panjwani discussed a number of case law examples in which the various legal tools he outlines have come into play. In one case, which concerned a challenge to the government’s ban on the use of bears, monkeys, tigers, panthers, and lions as performing animals, the Court had to weigh the fundamental constitutional duty of citizens to show compassion with the challenging circus owners’ fundamental right to livelihood and to carry on a trade. The Court ruled that no person has a right to carry on a trade which results in infliction of unnecessary pain and suffering on animals; that exhibiting endangered animals for entertainment was such an obnoxious and pernicious activity which could not fall within the meaning of the word ‘trade’; that the government ban on the use of the animals in question under the PCA (Notification dt. 14.10.1998) was to enforce the fundamental duty to have compassion, and its impact on the right to trade was merely incidental; and that the right to life includes livelihood, but could not extend to a trade which is injurious to public interest or has an insidious effect on public morals. Obiter, the Court said, “It is not only our fundamental duty to show compassion to our animal friends but also to recognize and protect their rights.” (High Court of Kerala:  K.R. Nair Vs. U.O.I. O.P. No. 155 of 1999. Decided on 6.6.2000.)

In another case Panjwani successfully brought, the questions were whether consumers have a right of making an informed choice between the products made from animals and non-animal products, and whether non-disclosure violates their constitutional right to freedom of conscience. Panjwani sought a direction by the Court to the government and manufacturers of food, cosmetics, and drugs to protect the rights of conscientious consumers by disclosing the ingredients and by affixing a symbol on the packet. The Court ruled that the right to freedom of speech includes freedom to seek and receive information; the right to life and liberty includes the right to know including the right to sustain and nurture an opinion; and the right to freedom of conscience of consumers is violated by non-disclosing products as they may be unconsciously consuming a product against their faiths, beliefs, and opinions. Accordingly, the Court directed that all relevant products be labelled with a vegetarian symbol (in green) or a non-vegetarian symbol (in red). The food industry has already complied, says Panjwani, and he is awaiting the results of appeals from the cosmetic and drug industries respectively.

A question of locus standi
Another interesting feature of the Indian legal landscape which has allowed Panjwani to succeed in the various cases in which he has been involved is the dispensing of the requirement of locus standi (standing). In 1981, it was held that: “...any member of the public having sufficient interest can maintain an action for public injury arising from breach of public duty or from violation of some provision of the constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law…” (1981 (4) SCALE 1988 S.P. Gupta V. U.O.I).

The opening up of locus standi, says Panjwani, has worked in tandem with the developing notion of executive obligation, under which legal and constitutional provisions were held to “be understood not so much as conferring powers on the executive but as creating an obligation upon it to exercise those powers for achieving the objectives underlying the Act.” (St. of H.P. V. Ganesh Wood:  (1995) 6 SCC 363 (Para. 33)). Together with the dilution of a number of other “procedural fetters”, these developments have meant that Indian courts have “graduated” from awarding damages after the fact to an injured party with standing to directing preventative measures to address a public injury or grievance.

Commenting on the state of animal law in New Zealand, Sankoff says animal welfare advocates in New Zealand courts are “hamstrung” because of the lack of comparable tools: there is no equivalent duty of compassion in the New Zealand Bill of Rights Act 1990 and, at any rate, the legislation is not entrenched. While there is a freedom of conscience in the Act (section 13), it has been narrowly construed in contrast to the generous interpretation the Indian constitutional freedoms have been afforded. Furthermore, New Zealand is still stuck with issues of standing, and the efficacy of lobbying Parliament for individual law changes is limited by the disproportionate power of the agriculture industry lobbyists.

Should these issues ever come up for serious revision, New Zealand might do well to look to the Indian experience – there may be lessons there not just for aspiring Doolittles, but for constitutional lawyers generally.

NZLawyer, 13 June 2008