Introduction to the Indian Judicial System
The Indian judicial system follows the common law system based on recorded judicial precedents as inherited from the British colonial legacy. The court system of India comprises the Supreme Court of India, the High Courts and subordinate courts at district, municipal and village levels.
I. Hierarchy of courts
The Indian judiciary is divided into several levels in order to decentralize and address matters at the grassroots levels. The basic structure is as follows:
1. Supreme Court: It is the Apex court of the country and was constituted on 28th January 1950. It is the highest court of appeal and enjoys both original suits and appeals of High Court judgments. The Supreme Court is comprised of the Chief Justice of India and 25 other judges. Articles 124-147 of the Constitution of India lay down the authority of the Supreme Court.
2. High Courts: High Courts are the highest judicial body at the State level. Article 214 lays down the authority of High Courts. There are 25 High Courts in India. High Courts exercise civil or criminal jurisdiction only if the subordinate courts in the State are not competent to try the matters. High Courts may even take appeals from lower courts. High Court judges are appointed by the President of India upon consultation with the Chief Justice of India, the Chief Justice of the High Court and the Governor of the State.
3. District Courts: District Courts are established by the State Governments of India for every district or group of districts based on the caseload and population density. District Courts are under the direct administration of High Courts and are bound by High Court judgments. Every district generally has two kinds of courts:
a. Civil Courts
b. Criminal Courts
District Courts are presided over by District Judges. Additional District Judges and Assistant District Judges may be appointed based on the caseload. Appeals against District Court judgments lie in the High Court.
4. Lok Adalats/Village Courts: these are subordinate courts at the village level which provide a system for alternate dispute resolution in villages.
5. Tribunals: the Constitution provides the government with the power to set up special Tribunals for the administration of specific matters such as tax cases, land cases, consumer cases etc.
Appellate jurisdiction refers to the authority of a court to rehear/review a case decided by a lower court. In India, appellate jurisdiction is vested in both the Supreme Court and High Courts. They may either overrule or uphold the judgments of lower courts.
II. Civil Courts
Civil courts provide remedies for civil wrongs committed by individuals against other individuals and entities. Civil matters range from property disputes to breaches of contract to divorce cases. Civil courts follow the principle of ubi jus ibi remedium (for every wrong the law provides remedy). Unless expressly or impliedly barred by any other law in force, civil courts have the jurisdiction to try all suits of civil nature.
The Code of Civil Procedure (CPC) 1908 governs the procedures to be followed by civil courts in administering civil cases in India.
As a matter of fact, every suit must be instituted before the court of lowest jurisdiction (the Munsif court). Upon institution, it is decided whether the respective court has competence to try the case.
The Civil Court hierarchy in districts is as follows:
1. District Court: The court of district judges is the highest civil court in a district. It exercises both judicial and administrative functions. The District Judge combines the powers of trying both civil and criminal cases. Hence, they are designated the District and Sessions Judge.
2. Sub-judge Court: if the value of the subject-matter of the suit is worth more than Rs. 1 lakh, the Sub-judge and Additional Sub-judge courts may try the suit.
3. Additional Sub-judge Court: this is created based on the case-load.
4. Munsif Court: if the value of the subject-matter of the suit is worth Rs. 1 lakh or below, the Munsif court is competent to try the suit.
III. Criminal Courts
The power of the various criminal courts is mentioned under the Code of Criminal Procedure (CrPC).
According to Section 26 of the CrPC, any offence mentioned under the Indian Penal Code may be tried by:
- High Courts
- Courts of Session
- Any other Court as specified in the First Schedule of the Code of Criminal Procedure
IV. Judicial Authority of the Supreme Court
Articles 141 and 144 of the Constitution uphold the authority and jurisdiction given to the Supreme Court to make decisions and uphold the law of the land. These Articles give animal welfare judgments their binding force, ensuring that they are appropriately enforced and implemented by the respective authorities. They allow for the Supreme Court to issue directives and fill gaps in law until the legislature steps in.
Article 141 lays down that “the law declared by the Supreme Court shall be binding on all courts within the territory of India.”
This Article embodies the English principle of stare decisis which holds that law must be definite, fixed, known and consistent. Since the Supreme Court is the Apex court of the country and all courts and tribunals are bound by its decisions, Supreme Court judgments become a source of law in themselves.
The binding part is the operative part of the judgment or the ratio decidendi (“reason of decision) determined after reading the judgment in its entirety. It is the general principle derived from a judgment that is deduced by courts when deciding the case based on facts. Mere observations, or the obiter dicta (“said by the way”), on the other hand, refer to those parts of judicial decisions which are general observations of the judge in the case. Obiter dicta have only persuasive value, not binding authority.
Article 144 lays down that “all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.”
The Supreme Court has the power to hold any authority in contempt if they disregard or disobey the order of the court.
V. Binding value of Judicial Precedents
Since India is a common law country, previously decided judgments of higher courts such as the Supreme Court and High Courts are binding on subordinate and lower courts, i.e., subordinate courts are bound to follow the decisions and hold them to be the law. Precedents are an important source of law in India. The binding value of different courts in the court hierarchy is as follows:
- Decisions of the Supreme Court are binding on all courts in India. The Supreme Court is not bound by decisions of High Courts, lower courts or other judicial authorities.
- Decisions of a High Court are binding on all inferior courts (as long as they don’t conflict with Supreme Court decisions) within its jurisdiction but holds only persuasive value for courts outside its jurisdiction. In case the decisions of the High Court conflict with the decisions of a similar bench, the matter is referred to a higher bench.
- Lower courts are bound by decisions of higher courts in their own states. Decisions by High Courts of other states hold only persuasive value.
VI. Public Interest Litigation (PIL)
Public Interest Litigation (PIL) is an effective tool to advance social justice in India. Borrowed from the American tradition of Social Action Litigation, PILs have been widely used in India to advance the causes of disadvantaged and marginalized communities. The general rule to bring a cause of action in court is the rule of locus standi i.e. the party must possess sufficient connection or suffer particular harm in order to be a party to the case. In PILs, this rule is relaxed considerably as any citizen of India may bring an action in court to reduce a wrong if there has been a breach of Fundamental Rights. PILs are an effective tool in the furtherance of animal protection by allowing animal rights groups and activists to file PILs at the Supreme Court and give a voice to the voiceless.
Some landmark PILs related to animal welfare filed in the Supreme Court of India include the cases of People for Ethical Treatment of Animals v. Union of India (a case regarding the protection of animals against exploitation and ill-treatment during film-making) and Animal Welfare Board of India v. A. Nagaraja & Ors. (a case regarding the prohibition of a traditional bull-fighting practice called Jallikattu).
Overview of Animal Laws in India
Taruni Kavuri (2020)
India, the seventh largest country in the world, is one of the most bio-diverse regions of the world containing four of the world’s 36 biodiversity hotspots. It is home to animals ranging from the Bengal Tigers to the Great Indian Rhinoceros and animal protection and welfare in in the country has taken a prominent position over the recent years. Protection of animals is enshrined as a fundamental duty in the Indian Constitution and there exist several animal welfare legislations in India such as the Prevention of Cruelty to Animals Act 1960 and the Wildlife Protection Act 1972 at the Central level and cattle protection and cow slaughter prohibition legislations at the State levels.
The Indian Penal Code (IPC) 1860 is the official criminal code of India which covers all substantive aspects of criminal law. Section 428 and 429 of the IPC provides for punishment of all acts of cruelty such as killing, poisoning, maiming or rendering useless of animals. The aforementioned legislations have been enacted to obviate unnecessary pain and suffering of animals and similar legislations continue to be enacted according to changing circumstances. Notwithstanding specific statutes, further protections for animals lie under general concepts such as tort law, constitutional law, etc.
II. The Constitution of India 1960
The Constitution of India 1960 makes it the “duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for all living creatures.” This Constitutional duty of animal protection is supplemented by the Directive Principle of State Policy under Article 48A that:
The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.
Both the above constitutional provisions were introduced by the 42nd Amendment in 1976. While they are not directly enforceable in Indian courts, they lay down the groundwork for legislations, policies and state directives in furtherance of animal protection at the Central and State levels. Moreover, they may be enforced in courts by taking an expansive judicial interpretation and bringing them within the ambit of the fundamental Right to Life and Liberty under Article 21 which is judicially enforceable.
III. Sources of Law
The primary sources of law in India are the Constitution, statutes (legislations), customary law and case laws. India is a federal union divided into 28 States and 8 Union Territories. The respective States are administered by their own State governments while the Union Territories are federal territories directly governed by the central Government of India. The Parliament of India is the supreme legislative body of the country while Indian States have their respective State Legislatures. Statutes are enacted by the Parliament for the entire country, by the State legislatures for respective States and by the Union Territory legislatures for respective Union Territories. Central laws enacted by the Parliament can be checked and controlled only by the Constitution of India. State laws may be overridden.
n addition to these primary legislations, there also exists a vast body of subordinate legislation like rules, regulations and by-laws enacted by Central/State governments and local authorities such as municipal corporations and gram panchayats (local village bodies). Given the separation of powers in India between the Legislature, Executive and Judiciary branches of government, the three branches are vested with different functions. While the primary responsibility of drafting legislations lies with the legislature, sometimes the responsibility is given to the Executive branch in order to draft legislations known as delegated legislation.
India follows the common law system based on recorded judicial precedents handed down by the British colony. Therefore, it places significant reliance on precedents and case laws in the development of law and jurisprudence. Judicial decisions of higher courts such as the Supreme Court of India and High Courts of different States carry significant legal weight and are binding on lower courts.
India is a land of wide religious and cultural diversity. Therefore, some personal laws, local customs, religious texts and conventions which are not against statute, morality, public policy and larger social welfare are also recognized to have a legal character and are taken into account by courts in the administration of justice.
III. Allocation of Powers between the Centre and the States
Article 245 of the Indian Constitution holds that subject to the Constitution, the Indian Parliament can make laws for the whole or part of territory of India. Territory of India includes States, Union Territories and other territories such as enclaves within India.
Article 246 lays down the subject-matter of laws made by the Parliament and the State Legislatures. This subject-matter is allocated into three lists contained in the Seventh Schedule:
- The Union List: the Parliament has exclusive power to make laws with respect to the matters enumerated within this list.
- The State List: State Legislatures have the exclusive power to make laws with respect to the matters enumerated within this list.
- Concurrent List: both the Parliament and State Legislatures have the power to make laws with respect to the matters enumerated within this list.
In the context of animal rights, the following matters have been allocated in the State and Concurrent List.
Item 14 of the State List provides that the States have the power to “[p]reserve, protect and improve stock and prevent animal diseases and enforce veterinary training and practice.”
In the Concurrent List, both the Centre and the States have the power to legislate on:
- Item 17: “Prevention of cruelty to animals.”
- Item 17B: “Protection of wild animals and birds.”
IV. The Prevention of Cruelty to Animals Act, 1960
The basic cruelty law of India is contained in the Prevention of Cruelty to Animals Act 1960. The objective of the Act is to prevent the infliction of unnecessary pain or suffering on animals and to amend the laws relating to the prevention of cruelty to animals. The Act defines “animal” as any living creature other than a human being.
In accordance with Chapter II of the Act, the Government of India established the Animal Welfare Board of India (AWBI) with some of the following functions:
- Advising the central government regarding amendments and rules to prevent unnecessary pain while transporting animals, performing experiments on animals or storing animals in captivity.
- Encouragement of financial assistance, rescue homes and animal shelters for old animals.
- Advising the government on medical care and regulations for animal hospitals.
- Imparting education and awareness on humane treatment of animals.
- Advising the central government regarding general matters of animal welfare.
The Act enumerates different variants of cruelty to animals under Section 11 as the following actions:
a) Beating, kicking, overriding, overloading, torturing and causing unnecessary pain to any animal.
b) Using an old or injured or unfit animal for work (the punishment applies to the owner as well as the user).
c) Administering an injurious drug/medicine to any animal.
d) Carrying an animal in any vehicle in a way that causes it pain and discomfort.
e) Keeping any animal in a cage where it doesn’t have reasonable opportunity of movement.
f) Keeping an animal on an unreasonably heavy or short chain for an unreasonable period of time.
g) Keeping an animal in total and habitual confinement with no reasonable opportunity to exercise.
h) Being an owner failing to provide the animal with sufficient food, drink or shelter.
i) Abandoning an animal without reasonable cause.
j) Willfully permitting an owned animal to roam on streets or leaving it on the streets to die of disease, old age or disability.
k) Offering for sale an animal which is suffering pain due to mutilation, starvation, thirst, overcrowding or other ill-treatment.
l) Mutilating or killing animals through cruel manners such as using strychnine injections.
m) Using an animal as bait for another animal solely for entertainment.
n) Organizing, keeping, using or managing any place for animal fighting.
o) Shooting an animal when it is released from captivity for such purpose.
However, the Act does not consider as cruelty the dehorning/castration of cattle in the prescribed manner, destruction of stray dogs in lethal chambers in prescribed manner and extermination of any animal under the authority of law. This Section provides somewhat of a leeway.
Part IV of the Act covers Experimentation of animals. The Act does not render unlawful experimentation on animals for the purpose of advancement by new discovery of physiological knowledge or knowledge to combat disease, whether of human beings, animals or plants. It envisages the creation of a Committee for control and supervision of experiments on animals by the central government which even has the power to prohibit experimentation if so required.
Chapter V covers the area of performing animals. Section 22 prohibits exhibiting or training an animal without registration with the AWBI. The Section prohibits animals such as monkeys, bears, lions, tigers, panthers and bulls from being utilized as performing animals.
An additional leeway provided by the Act is that under Section 28, nothing contained in the Act shall render it an offence to kill any animal in a manner required by the religion of any community.
Considering the diversity of religions and traditions in India, this Section was considered imperative.
Treating animals cruelly is punishable with a fine of Rs. 10 which may extend to Rs. 50 on first conviction. On subsequent conviction within three years of a previous offence, it is punishable with a fine of Rs. 25 which may extend to Rs. 100 or imprisonment of three months or with both. Performing operations like Phooka or any other operations to improve lactation which is injurious to the health of the animal is punishable with a fine of Rs. 1000 or imprisonment up to 2 years or both. The government further has the power to forfeit or seize or destroy the animal. Contravention of any order of the committee regarding experimentation on animals is punishable with a fine up to Rs. 200.
The 42nd Amendment to the Indian Constitution in 1976 was a progressive step towards laying the groundwork for animal protection in India. The constitutional provisions establishing the duty of animal protection have resulted in the enactment of animal protection legislations both at the central and state level, most notable of which being the Prevention of Cruelty to Animals Act 1960. Furthermore, over the years Indian courts have developed a growing legal jurisprudence in animal law.
However, there is a still a long ways to go in truly developing a solid foundation for animal law in India. The provisions for animal protection in the Indian Constitution remain principles instead of concrete law enforceable in courts. The penalties under the Prevention of Cruelty to Animals Act 1960 for cruelty against animals are simply not strict enough to truly deter crimes against animals. The law is not strictly enforced and contains several provisions which provide leeway through which liability can be escaped. Extensive reforms need to take place in this regard to provide a stronger animal protection law for India.