Concept of the environment

 Concept of the environment:

Environment has everything to meet the needs of the individual and not the desire.  The writings in the Vedas and Upanishads clearly depict the idea of environment. Environment and development are two paradoxical situations which needs a balance from both the sides.

Sustainable development is the core concept in modern times for protection of environment and keeps up the pace of development. Environment in broader terms includes each and everything in the ecosystem and their relationship between each other.

Sustainable Development speaks the essence of balancing the needs of present and future generations, national and international perspectives clearly help us to understand the idea of protection of the environment and to give preference on development without altering the purpose and essence of which it is built.

IDEA OF ENVIRONMENT

Environment denotes totality of all extrinsic, physical and biotic factors effecting the life and behaviour of all living things. The word “Environment” is derived from the French word “Environmer”, means encircle and encompasses within it the land, water, flora, fauna, living creatures, forests and everything on the earth.

Industrialization and ever-growing technological development has caused damage to the environment to an alarming extent. The question of protection of environment is so important that it is regarded as a Human Right around the world.

The term “Environment” is sum of various phenomena the dynamism of this term defines its scope. A lot of attempt has been made to define Environment through various national and International instruments. Generally, environment comprises of natural resources, external conditions, stimuli etc., with which a living creature interrelates.

The Preamble of the UN Declaration on Human Environment states that: “Man is both creature and moulder of his environment, which gives him physical substance and affords him the opportunity for intellectual, moral, social and spiritual growth”.

Environment is clearly defined under Clause 1 of the Section 2 (a) of the Environment (Protection) Act 1986 as: “Environment includes water, air and land and the inter-relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property”.

While Clause  2 of the Section 2(a) of the Environment (Protection) Act 1986 gives the definitions for environmental pollution and environmental pollutants. “Environmental Pollution” means the presence in the environment of any environmental pollution. “Environmental pollutant” means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment.

ANCIENT & MEDIEVAL WRITTINGS

Ancient India and Environmental protection:

Environment protection has been 6000 years old tradition for the Indians. It was the “Dharma” for each individual in the society for protection of nature. The five important elements of nature called “Panchabhootas” were the divine incarnation for us. Natural resources management was given major importance in ancient India like conservation of water bodies, Protection of forests & wildlife were considered to be the important aspects of governance by the rulers and local people. Punishments were prescribed for causing injury to plants. According to evidences in Vedas and Kautilya’s Arthasasthra, different dynasties accorded top priority to environmental protection and sustainable use of its components. All of the tree parts were considered important and sacred and Kautilya fixed punishments based on the destruction of the specific part of the tree, some of the important trees were even elevated to the position of God.

The Rig-Veda establishes the symbolism of this close kinship when it says: ‘Heaven is my father; my mother is this vast earth, my close kin.’ Atharva-Veda contains the hymn - Bhumi Sukta – ‘in praise of the earth and invokes a balance: upon the immutable, vast earth supported by the law, the universal mother of the plants, peaceful and kind, may we ever walk for ever.’

In Mahabharata, in the Bhisma Parva, refers to the earth as an ‘ever-yielding cow’ provided its resources are developed and managed with balance and control: ‘If Earth is well looked after, it becomes the father, mother, children, firmament and heaven, of all creatures.’

The Rig Veda does mandates about Cow slaughter is a heinous crime equivalent to a human murder and those who commit this crime should be punished. Protection of animals and plants are clearly depicted in the ancient times. Forests, Wildlife and more particularly trees were held in high esteem and held a place of special reverence in Sanatan theology. The vedas, Puranas, Upanishads and other scriptures of the Sanatan religion gave a detailed description of trees, plants and wildlife and their importance to the people. The Rig Veda highlighted the potentialities of nature in controlling the climate, increasing fertility and improvement of human life emphasizing for intimate kinship with nature.

During the Vedic period, cutting of live trees was prohibited and punishment was prescribed for such acts. In Srimad Bhagavatam, it has been rightly pointed out that a man who with exclusive devotion offers respect to sky, water, earth, heavenly bodies, living beings, trees, rivers and seas and all created beings and considers them as a part of the body of the Lord attaints the state of supreme peace and God’s grace.

The Sages and Saints of India lived in forest. In the history, people’s attitude towards plants, trees, sky, air, water and animals was to keep a sympathetic attitude towards them. Sanatan Dharma instructed man to show reverence for presence of spirituality in nature. The flora and fauna, hills, mountains, rivers are worshiped as symbols of veneration. The cutting of trees, polluting air, water, and land were regarded as sins and they were to be respected as associated with gods and goddesses.

India possesses a great-diversified ecosystem including forests, wetlands, islands, estuaries, parks, landscapes, oceans and rich blend of variety of natural surroundings. Many customary or community practices were evolved by the ancestors to protect the environment. The efforts of the people in local community in conservation of natural resources quite deserve to eulogize.

In consequence to rapid industrialization, sophisticated science and technological advancement, increased population, urbanization, deforestation, indiscriminate utilization of natural resources etc., the traditional practices to preserve and conserve natural resources have not been taken seriously by the people in modern times which have resulted in environmental degradation. The phenomenon of environmental protection is not a new concept to the human civilization.

Hindutva said to be dealt with various aspects of nature and ways of worshipping the nature. It appears that the civilization of Mohenjodaro, Harappa and Dravidian civilization lived in consonance with its ecosystem and their small population and their needs maintained the harmony with the environment.

One who plant one pipal, one neem, one ber, ten flowering plants creepers, two pomegranates, two oranges and five mango trees will not go to hell. Similarly, several Hindu Gods and Goddesses have animals and birds as their associates.

Medieval India and Environment protection:

From the point of view of environment conservation, a significant contribution of various emperors of that time has been the establishment of magnificent gardens, fruit orchards and green parks, round about their places, central and provincial headquarters, public places, on the banks of rivers and in the valley and dales which they used as holiday resorts or places or temporary headquarters during the summer season.

Among the officials empowered for administration of justice by the kings and the emperors of India, Muhtasibs and Balutedars were vested with the duty of prevention of pollution. Main duty among others was to remove obstructions from the streets and to stop the commission of nuisance in public places. Also people were aware of tree plantations and lots of jungles were planted artificially during British era. During freedom struggle Gandhiji had given many ideas for recycling of the waste to produce organic fertilizers, papers which are still used by organisations such as Arbindo mission and even today’s Swachchha Bharat Abhiyan is based on the principles of recycling the waste given by Gandhiji. Gandhiji motivated many to consume vegan diet and only fruits diet.

Environmental protection during post-independence era:

The post-independence era witnessed a lot of changes in the policies and attitudes of the Governments with respect to environmental protection. Under the constitution various provisions directly or indirectly deals with environmental protection. Also there are many statutes enacted by the Parliament of India to achieve the goal of environment protection.

• Article 39(b), 47, 48, 49 of Constitution of India

• National Forest Policy, 1952

• Wild life Protection Act, 1972

• Project Tiger, 1973

• Under 42nd Amendment of the Constitution in 1976

• Forest conservation Act in 1980.

• Air (Prevention and control of pollution) Act, 1981

• Wild life (protection), 1983

• Environment (protection) Act, 1986

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Short Question and Answers: Part 1

 Vande Matram! These are some short questions and answers about environmental law. Please read and share them.

 ·         What is the environment?

o   The environment has been defined as that outer physical and biological system in which man and other organisms live as a whole.

·         What are the two main parts of the human environment?

o   Human environment consists of both the physical environment and biological environment.

·         What are the components of the physical environment?

o   Physical environment covers land, water, and air.

·         What are the components of the biological environment?

o   Biological environment includes plants, animals, and other organisms.

·         Which Section of the Environmental Protection Act, 1986 defines ‘environment’?

o   Section 2(a) of the Environmental Protection Act, 1986.

·         Which Section of the National Environmental Tribunal Act, 1995 defines ‘environment’?

Section 2(d) of the National Environmental Tribunal Act, 1995.

The approach of India towards environmental protection

Vande Matram friends! The environment is one of the science topics. But the environment and its protection is our implied duty as human beings. So it is necessary to create some laws, rules, and regulations for the protection of this very basic thing for our better life. This series will discuss all the things related to environmental laws in India.

The approach of India towards environmental protection:

India had an ancient tradition of paying constant attention to the protection of the environment. In India, the devices and rules for protecting the environment are discernible from ancient times. Many scriptures show how ancient Indians were thankful for Mother Nature and how they were protecting it by planting numerous trees which they used to worship occasionally. Including idol worshiping, tree plantation, animal protection, and worshiping trees and animals was incorporated in day-to-day life for sake of the protection of the environment and its various components.

Apart from ancient practices in Hinduism, Buddhism, Jainism, and Sikhism India had practiced the worship and protection of the environment during medieval and British Eras. After independence India had developed its own legislation for the protection of the environment which is in accordance with modern requirements and international environmental protection laws. Also, a great sense of concern has been shown by the legislature and even the Indian judiciary showed great concern regarding the environment with its landmark judgments.

During historical times Indians were aware of how to protect various components of the environment. They were planting trees to protect the biological environment. The planted trees were worshiped so that no one can chop them due to Godly respect for those trees. As trees were planted and grown other organisms and animals were sheltered properly. Indians were using organic fertilisers and hence the lands were free of chemical pollution caused by chemical fertilisers.

The cows were not just mothers in the spiritual sense, they were the main source of fertilisers and also used as medicine for many plant infections in agriculture. As cow dung is the best organic fertiliser even today. Also, cow urine is useful to treat various plant infections. Bulls were used in all agricultural operations and hence the air pollution which is due to mainly vehicles on the road and land was absent. Using animals for agricultural purposes which was the main source of earning and having a great impact on the economy of the nation was not cruel as described by today’s so-called animal lovers.

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Features of the Hindu Succession Act, 1956

Vande Matram! Succession is very confusing and complicated process if it is not governed by the laws. Hindu personal law comprises of special provisions for inheritance in the form of Hindu Succession Act, 1956 (for short HCA) and Hindu Succession (Amendment) Act, 2005 for short (HCAA). In this article, I am sharing some important points from the said Act.

Hindu Succession Act, 1956

Purpose of the Act:

HAS is enacted for codification laws related to intestate succession among Hindus. This is Act no. 30 of 1956 and came into force on 17^th June 1956 to the whole of India. This Act is applicable to

a) any person who is Hindu including Virashaiva, Lingayat, follower of Bramho, Prarthan and Arya Samaj, by religion, as well as

b) to any person who is Buddhist, Jain or Sikh by religion and

c) to any person who is not at all Muslim, Christian, Parsi or Jew by religion. (provided if that person proves that he or she is not governed by Hindu law)

Rules of succession:

As per the rules of succession the property of male Hindu dying intestate shall devolve

a) firstly among the legal heir being the relatives specified in Class I of the schedule,

b) secondly if there are no class I relatives then among the Class II relatives specified in the schedule being legal heirs,

c) thirdly if no relatives of both classes then agnates of the deceased

d) lastly if no agnates then cognates of the deceased will have the right of legal heir to the property of the male Hindu dying intestate.

Further rules for the division property of male Hindu dying intestate are given according to which

a) widow or widows of the deceased will have one part of the property – thus a Hindu widow is having right of ownership on one part of the property of her husband.

b) surviving sons, daughters and mother shall take one part each. Thus mother of a male Hindu dying intestate is having right of ownership on one part of the property of her deceased son.

c) If any heir of predeceased son or predeceased daughter is there then he or she shall have one part of the property of the intestate.

Further if no class I relatives mentioned above are there to claim the legal heir rights of intestate then any one entry of the Class II relatives will get the equal parts of the property.

Further if there are no class I or class II relatives to claim legal heir rights then the property of the intestate will be devolved in his agnates and then in his cognates. The order of agnates or cognates is decided on the degree of ascent or descent or both. One generation is equal to one degree.

Further provisions for succession of the female Hindu dying intestate are given according to which the property of the female Hindu dying interstate shall be inherited

a) firstly to her children and children of predeceased child and her husband.

b) secondly to legal heirs of husband

c) thirdly to her mother and father

d) fourthly to the legal heirs of her father

e) last to her mother

It is further mentioned that, if the intestate female has property inherited to her from her father, and there is absence of her children including children of predeceased child, then such property will be devolved to the legal heirs of her father. Thus husband will not have any right on the property inherited to his wife from her father.

If the intestate female has property inherited to her from her father-in-law, and there is absence of her children including children of predeceased child, then such property will be devolved to the legal heirs of her husband. Means part of Stridhan inherited to a woman from her father-in-law will be devolved back in her in-laws in absence of any son, daughter or any grand-child.

The Act provides that if an intestate dies and there is a child in the womb of mother, then he may have same rights of inheritance after his birth as if he was alive at the time of death of intestate.

Right of women under HSA or HSAA:

Section 6 provides for Devolution of interest in coparcenary property. After 2005 amendment daughters got the right to become coparceners in same manner as the son. The daughter is allotted same share as that of son. Also the daughter will also be subject to liabilities and disabilities as that of son.

Section 14 provides that ‘property of a female Hindu to be her absolute property’. It means that any property possessed by female Hindu, shall be held by her as full owner and not the limited owner. Such property may be movable or immovable and acquired by the female Hindu by inheritance, device, partition, in lieu of maintenance, arrears of maintenance, by gift from any person, by her own skills or exertion, by purchase, or by prescription etc shall be termed as ‘Stridhana’ and she shall be the full owner of such property.

Disqualification of the legal heirs:

If a person murders an intestate then he is disqualified from inheritance of property of deceased. If such murderer is having any children or descendants and are not involved in the murder of the intestate then they will devolve the property of Hindu intestate as if that murderer is pre-deceased.

If a person has ceased or ceases to be Hindu by conversion to another religion, then such converted person and children born to him after such conversion shall be disqualified from inheriting the property of a Hindu intestate. If such converted person is having any children or descendants who are Hindu at the time when succession opens then they will devolve the property of Hindu intestate as if that converted person is pre-deceased.

As per Section 29 of the HSA or HSAA Government will devolve all the property of Hindu intestate if he or she has not left any qualified legal heir.

Conclusion:

Thus this act provides for succession in Hindu family law. At the end as per this Act Government is the legal heir of deceased Hindu in case of absence of legal heirs, if he dies without executing his will. Murderers of intestate are not eligible for inheritance of his or her property. Any person converts to any other religion and ceases to be Hindu then he cannot be legal heir of any deceased.

#WomenWelfareLawsInIndia #HinduLaw #FamilyLaw #PersonalLaw #LawOfInheritance #LawofSuccession #HinduSuccessionLaw

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References

Hindu Succession Act, 1956.

Women welfare under labour laws

Vande Matram! As the law is evolving with the changing era of the time, various provisions were also given for the protection and welfare of women under labour laws. This article will provide a brief introduction regarding various provisions for women's welfare under various labour laws in India.

Introduction:

After the independence of the country the number of women to come out of their houses for work increased day by day. Although entering of women into work forced raised their economic and social status, it give rise to many problems and difficulties to them by way of exploitation, discrimination and dismal working conditions.

To undo the discrimination and exploitation, there arose a need to provide them with some security and protection through law i.e., Constitution of India (Article 14, 15, 16, 23, 39, 43 and 46) which are provided for protection and security to women workers. The constitution not only grants equality to women, it gives the measures and solutions for the problem of women and also empowers the state to adopt measures of positive approach in favour of women. Our Constitution also protects the rights of women workers by ensuring that their health and safety are duly protected in the course of employment, particularly those of pregnant women. The Constitution also safeguards the dignity of women workers and ensures that they are provided with a safe working environment free of sexual harassment.

The International Labour Organisation has stressed that the interests of women as workers are generally indistinguishable from those of men and it has gone further in emphasizing that women workers should be given special attention as they have special difficulties which drive from their functions in the family and social attitudes and customs.

The Government undertook various legislative measures for protection to women workers: 

The Factories Act, 1948, 

The Mines Act, 1952, 

The Maternity Benefit Act, 1961, 

The Equal Remuneration Act, 1976, 

The Payment of Wages Act, 1936, 

The Workmen's Compensation Act, 1923 etc.,

Women Rights under Indian Labour Laws

Labour law apply to that area of activity where workers are working under a contract of employment. Working women form a major thick peak of society. Women workers need special protection and equal treatment under the law. To protect women, many legislative provisions have been provided in almost all labour statutes that address problems of women labourers in their employment situation. The legislation relating to the regulation of employment in dangerous occupations, prohibition of night work, restrictions on the carriage of heavy loads, wages, health, gratuity, maternity relief, equal pay for equal work, social security, etc., 

Some of the important protective provisions for safeguarding the interests of working women are:

Safety/Health Measures

Section 22(2) of the Factories Act, 1948 provides that no woman shall be allowed to clean, lubricate or adjust any part of a prime mover or of any transmission machinery while the prime mover or transmission machinery is in motion, or to clean, lubricate or adjust any part of any machine if the cleaning, lubrication or adjustment thereof would expose the woman to risk of injury from any moving part either of that machine or of any adjacent machinery.

Pearson v Belgium Co LTD.(1896) 1 Q B 244:The question was whether stationary parts of a machine can be cleaned by women if the machine as a whole is in motion. It was held by the court that if machinery as a whole is in motion even stationary parts of the machine cannot be cleaned by a woman.

Richard Thomas and Baldwins Ltd. V Cummings(1955) 1 AII ER 285:The court observed that there would be no breach of statutory duty if an injury occurs while the machinery is unfenced if the power is cut off and the machinery is under repairs and the parts are not in motion but are moved by hand for purposes of repairs.

Section 27 of the Factories Act, 1948 prohibits the employment of women in any part of a factory for pressing cotton in which a cotton opener is at work.

Prohibition of Night Work

Section 66(1)(b) of the Factories Act, 1948 states that no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m.

Section 25 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 stipulates that no woman shall be required or allowed to work in any industrial premise except between 6 a.m. and 7 p.m.

Section 46(1)(b) of the Mines Act, 1952 prohibits employment of women in any mine above ground except between the hours of 6 a.m. and 7 p.m.

It includes the prohibition of night work which provides that women should be allowed to work between the hours 6 a.m. and 7 p.m. and there should be no less than eleven hours between the termination of employment on any one day and the commencement of the next period of employment.

Prohibition of Sub-terrain Work

Section 46(1)(b) of the Mines Act, 1952 prohibits the employment of women in any part of a mine that is below ground.

Maternity Benefit

The Maternity Benefit Act, 1961 regulates the employment of women in certain establishments for certain periods before and after childbirth and provides maternity benefits. The Building and Other Constructions (Regulation of Employment and Conditions of Service) Act, 1996 provides for maternity benefit to female beneficiaries of the Welfare Fund.

Municipal Corporation of Delhi v Female Workers (AIR 2000 SC 1275): The Supreme Court declared that the maternity benefit is applicable applies to casual workers and daily wage workers also. In this case, the question was whether the muster roll employees (which are casual and daily wage employees) of a municipal corporation are entitled to maternity benefit. There is nothing in the Maternity Benefit Act that entitles only regular women employees to the benefit of maternity leave and not to those who are engaged on a casual basis or on muster roll on a daily wage basis.

Air India v Nargesh Meerza (AIR 1981 SC 1829): The court held that the termination of service on pregnancy was unreasonable and arbitrary and was, therefore, clearly violative of fundamental right Under Article 14 of the Constitution. Having taken in service and after having utilised her services for four years to terminate her service if she becomes pregnant amounts to compelling the poor air hostess not to have any children and thus interfere with and divert the ordinary course of human nature.

Provisions for Separate Latrines and Urinals

Provision for separate latrines and urinals for female workers exist under the following:

Rule 53 of the Contract Labour (Regulation and Abolition) Act, 1970.

Section 19 of the Factories Act, 1948.

Rule 42 of the Inter-State Migrant Workmen (RECS) Central Rules, 1980.

Section 20 of the Mines Act, 1952.

Section 9 of the Plantations Labour Act, 1951.

Provisions for Separate Washing Facilities

Provision for separate washing facilities for female workers exists under the following:

Section 57 of the Contract Labour (Regulation and Abolition) Act, 1970.

Section 42 of the Factories Act.

Section 43 of the Inter-State Migrant Workmen (RECS) Act, 1979.

Provision for Crèches

Provision for crèches exists under the following:

Section 48 of the Factories Act, 1948.

Section 44 of the Inter-State Migrant Workmen (RECS) Act, 1979.

Section 12 of the Plantations Labour Act, 1951.

Section 14 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966.

Section 35 of the Building and other Constructions (Regulation of Employment and Conditions of Service) Act, 1996.

Sexual Harassment:

Sexual harassment is not only viewed as a discrimination problem related to safety and health, but also as a violation of fundamental rights and human rights. It is offensive at a very level and in a way undermines the right to equal opportunity and equal treatment of women at the workplace. Policies for the advancement of equality should therefore include measures to combat and prevent sexual harassment. 

Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013: The Sexual Harassment at workplace Act of 2013 is a special Legislation aiming towards providing a safe and hostile free environment at work to women. Effective implementation of the Act will contribute to the realization of their right to gender equality, life and liberty, equality in working conditions everywhere. The sense of security at the workplace will improve women's participation in work, resulting in their economic empowerment and inclusive growth. The Act is gender-specific to only women.

Payment of wages:

Minimum Wages Act, 1948: It is primarily designed for the protection of workers in the unorganised sector, where the majority of women work. It is to provide minimum statutory wages for the scheduled employments to obviate the chances of exploitation of labour through payment of very low and sweating wages. It also provides for the minimum daily working hours, weekly rest days and overtime.

Sanjit Roy v State of Rajasthan (236): The court held that every person who provides labour or service to another is entitled at least to the minimum wage and if anything less than the minimum wage is paid to him, he can complain of the violation of fundamental rights under Article 23 and ask the court to direct payment of minimum wages to him so that the breach of Article 23 may be abated.

Equal Remuneration Act Safeguard Women's Right, 1976: Part IV relating to the Directive Principles of State Policy Article 39 of the Constitution envisages that the state shall direct its policy, among other things and every employer is under a legal obligation to pay the same wages for men and women if they perform the same work or work of a similar nature. The Act is now applicable to almost every kind of establishment. Even if it is being performed at different places, the salary has to be the same. An employer cannot discriminate against women while recruiting unless the employment of women is prohibited or restricted by law. Thus, in matters of recruitment, promotions, training or transfer, the employer is prohibited from discriminating against women.

Sanjit Roy v State of Rajasthan (AIR 1988 SC 238): The Supreme court directed the State government not only to pay the minimum wages but also to pay wages by the principle of equal pay for equal work to both men and women workers engaged in famine relief work.

Bhagwan Das v State of Haryana (AIR 1987 SC 2040): The Supreme court was of the view that persons doing similar work cannot be denied equal pay on the ground that the mode of recruitment was different and a temporary or casual employee performing the same or similar duties and functions is entitled to the same pay as that of a regular or permanent employee.

Conclusion:

It can be concluded that there are many provisions available in the Indian laws which are framed in the view of women's welfare in all the areas of employment covering maximum problems related to women. Also, the judiciary had contributed a lot to various law reforms through landmark judgments.

#WomenWelfareLawsInIndia 

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References

1) About Women Labour

2) Women Rights Under Indian Labour Laws- A Socio-Economic Study

Section 1 of PCAA

Vande Matram friends! Welcome to the series on Animal Welfare in India. I am feeling proud of myself for presenting this series in front of you and I pray to Thy Almighty that I can share a maximum of information in this regard with you!

Those who want justice must knock on the doors of Courts!

Here is a brief introduction to the specific law which deals with cruelty to animals. This law is very helpful for the prevention of cruelty towards animals. But we need to implement this in a precise manner. So that no animal shall become the victim of cruelty. The animal lovers must know the provisions of the said Act. Those who want justice must knock on the doors of Courts. And there is a procedure to get justice.

THE PREVENTION OF CRUELTY TO ANIMALS ACT, 1960

This was Act no. 59 of 1960. It was passed by the Parliament of India. The Act was enacted on 26th December 1960.

Amendments by Central Act 26 of 1982 are also discussed in this series. Also, a 2021 Bill for amendment of this Act is discussed as and when needed.

It has six chapters I) Preliminary, II) Animal Welfare Board of India, III) Cruelty to animals generally, IV) Experimentation of animals, V) Performing animals, and VI) Miscellaneous

It is an Act to prevent the infliction of unnecessary pain or suffering on animals and for that purpose to amend the law relating to the prevention of cruelty to animals.

As the long title suggests, this act provides for

a) prevention of the infliction of unnecessary pain or suffering on animals by various acts of human beings in general such as circus performing, animals performing in Cinemas, experiments on animals, and others.

b) amendment of the law relating to the prevention of cruelty towards the animals.

CHAPTER I: PRELIMINARY

1. Short title, extent and commencement:

(1) This Act may be called the Prevention of Cruelty to Animals Act, 1960.

For short this Act is called the Prevention of Cruelty to Animals Act, 1960. In the whole series, we will refer to it as PCAA.

(2) It extends to the whole of India except the State of Jammu and Kashmir. ,

All the provisions of this Act are applicable to the whole of India except the State of Jammu and Kashmir, because of the enactment of Article 35A and 370 in the State of Jammu and Kashmir. After 2019 when Articles 35A and 370 were revoked by the Centre Government of India, provisions of this Act were also enacted in this area. Now, these words ‘except the State of Jammu and Kashmir’ are omitted by the Jammu and Kashmir Reorganisation Act, 2019.

(3) It shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint, and different dates may be appointed for different States and for the different provisions contained in this Act.

In fact, in various States, this Act was enacted on different dates.

(i) Came into force on 1-4-1961 for the State of Punjab and the Union territory of the Andaman and Nicobar Islands; vide S.O. 823, dated 1-4-1961, see Gazette of India, Pt. II, Sec. 3 (ii), p. 806 and in the State of Sikkim on 1-3-1993. tc" 1. Came into force on 1-4-1961 for the State of Punjab and the Union territory of the Andaman and Nicobar Islands; vide S.O. 823, dated 1-4-1961, see Gazette of India, Pt. II, Sec. 3 (ii), p. 806 and in the State of Sikkim on 1-3-1993.

Subsection (3) of Section 1 allows the Government of India to enact the said Act completely or partially to different States and Union Territories on different dates.

Note: Part in Red is reproduced as it is from the Bare Act.

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Mahisagar Mataji Samaj Seva Trust Vs State

Vande Matram friends! Welcome to the series on Animal Welfare in India. I am feeling proud of myself for presenting this series in front of you and I pray to Thy Almighty that I can share a maximum of information in this regard with you!

Those who want justice must knock on the doors of Courts!

Introduction:

In this article, you will know about a judgment of the Gujarat High Court in regards to Cattle Trespass. The judgment was written by Mr. Bhaskar Bhattacharya and J. B. Pardiwala. The case was decided on 12.03.2012.

Petitioner is a trust named Mahisagar Mataji Samaj Seva Trust through its President.

While there are three respondents: 1) State of Gujarat through Secretary Home Department, 2) Vadodara Municipal Corporation and 3) other.

Facts of the case:

The petitioner, a public charitable trust registered under the Bombay Trusts Act, at Vadodara has redressed a very serious grievance on behalf of the Maldharis (cattle owners) as regards a very highhanded and arbitrary action on the part of the respondents-authorities in not releasing a cattle impounded under the provisions of the Cattle Trespass Act, 1871 (for short, 'the Act').

The only source of livelihood for the Maldhari community is the income derived from the sale of milk and milk products. For this purpose, each and every Maldhari family has cattle. Each of the family is holding a valid permit issued by the Health Department of Vadodara Municipal Corporation for keeping cattle. As per the data provided, there are approximately 2000 families within the revenue limits of Vadodara settled at different places and the total number of cattle reared is more than 10000.

By provisions of the Act as and when the authority concerned seizes any cattle found straying on public roads, such cattle are sent to the nearest cattle pounds which are being managed by the Corporation. When the cattle owner approaches the authority for release of their cattle on payment of fine, the cattle are not being released on the ground that an important festival is on the way and they would be released only after the festival is over, justifying that during the period of an important festival such cattle would cause a lot of inconvenience and nuisance to the general public at large.

The present case is concerned, the fine which is being imposed is as per the notification issued by the Home Department of the State Government dated 15th October 2003. The said notification amends the rates of fine fixed for stray animals on the streets and roads of Municipal Corporations areas of the State under Government.

Dt. 22nd July 2011: hundreds of cattle were seized by the concerned department of the Vadodara Municipal Corporation and were sent to cattle pounds. Various applications were preferred by the respective cattle owners requesting for the release of their cattle on accepting the requisite amount of fine.

5th July 2010: a legal notice issued by an advocate to the Municipal Corporation in this regard to release the cattle. Representations were also made to the Collector, Vadodara Municipal Corporation. In spite of these, the respondents-authorities refused to release the cattle and kept them at cattle pounds in an unauthorised manner.

Hardly any fodder or water is being provided to them, as a result of which most of the cattle die and this again is nothing short of cruelty to the animals, which is otherwise also an offence under the provisions of Cruelty to Animals Act. If there is a procedure prescribed for the seizure of cattle and also for the release of such cattle, then the authorities are duty-bound to strictly comply with such procedure of law as prescribed under the Act.

Points raised by respondents:

A number of cattle are found straying on public roads and many cases of accidents have been reported. Due to such accidents occurring as a result of such cattle straying on public roads, the Corporation had to take steps for seizure of such cattle on daily basis. A separate independent department is monitoring the seizure of cattle which are found straying on the roads. The respondent Corporation has provided at least three cattle sheds; one is recognised as 'Khaswadi' cattle-shed having a capacity to accommodate around 190 cattle, the other two are recognised as 'Panigate' cattle-shed having a capacity to accommodate around 83 cattle, and 'Lalbaug' shed having a capacity to accommodate around 60 animals. For maintaining such cattle pounds, there is a provision for pure drinking water and fodder.

On seizure of the cattle by the Corporation, such cattle are handed over to local public charitable trusts after 15 days and such public charitable trusts would take care of such cattle. Such public charitable trusts are running 'Panjrapole' where cattle are being taken care of.

The Corporation received a number of representations from the citizens complaining about the nuisance being caused by straying cattle. Due to the festival of 'Janmashtmi' many cattle were seized and they were not released in spite of the fact that the owners of the cattle were ready and willing to deposit the fine.

Provisions of Cattle Trespass Act, 1871:

The Cattle Trespass Act, 1871 came to be enacted with the primary object to consolidate the law relating to cattle trespass. The said Act is a colonial law and is still enacted in independent India.

Section 11 of the Act empowers the authority concerned to seize cattle found straying on public roads, etc. Section 11 reads as under:

11. Cattle damaging public roads, canals and embankments. - Persons in charge of public roads, pleasure-grounds, plantations, canals, drainage-works, embankments and the like and officers of police, may seize or cause to be seized any cattle doing damage to such roads, grounds, plantations, canals, drainage-works, embankments and the like, or the sides or slopes of such roads, canals, drainage-works or embankments or found straying thereon, and shall send them or cause them to be sent within twenty-four hours to the nearest pound.

Section 4 of the Act provides for the establishment of pounds.

4. Establishment of pounds.- Pounds shall be established at such places as the Magistrate of the District, subject to the general control of the State Government, from time to time directs.

The village by which every pound is to be used shall be determined by the Magistrate of the District."

Section 5 provides for control of pounds.

5. Control of pounds. Rate of charge for feeding impounded cattle.- The pounds shall be under the control of the Magistrate of the District; and he shall fix, and may from time to time alter the rates of charge for feeding and watering impounded cattle.

Section 6 provides for appointment of pound-keepers.

6. Appointment of pound-keepers.- The State Government shall appoint a pound-keeper for every pound.

The duties of pound-keepers have been prescribed under Sections 7, 8 and 9 of the Act, which read as under:

7. To keep registers and furnish returns. - Every pound-keeper shall keep such registers and furnish such returns as the State Government from time to time directs.

8. To register seizures.- When cattle are brought to a pound, the pound-keeper shall enter in his registers,-

(a) the number and description of the animals,

(b) the day and hour on and at which they were so bought,

(c) the name and residence of the seizer, and

(d) the name and residence of the owner, if known, and shall give the seizer or his agent a copy of the entry.

9. To take charge of and feed cattle.- The pound-keeper shall take charge of, feed and water the cattle until they are disposed of as hereinafter directed.

Section 12 of the Act provides for the recovery of fines for cattle impounded.

12. Fines for cattle impounded.- For every head of cattle impounded as aforesaid, the pound-keepers shall levy a fine in accordance with the scale for the time being prescribed by the State Government in this behalf by notification in the Official Gazette. Different scales may be prescribed for different local areas. All fines so levied shall be sent to the Magistrate of the District through such officer as the State Government may direct.

List of fines and charges for feeding.- A list of the fines and of the rates of charge for feeding and watering cattle shall be posted in a conspicuous place on or near to every pound.

Section 13 provides for the procedure when the owner claims the cattle and pays fines and charges.

13. Procedure when owner claims the cattle and pays fines and charges. - If the owner of the impounded cattle or his agent appear and claim the cattle, the pound-keeper shall deliver them to him on payment of the fines and charges incurred in respect of such cattle.

The owner or his agent, on taking back the cattle, shall sign a receipt for them in the register kept by the pound-keeper.

Section 14 provides for the procedure if cattle be not claimed within a week.

14. Procedure if cattle be not claimed within a week.- If the cattle be not claimed within seven days from the date of their being impounded, the pound-keeper shall report the fact to the officer in charge of the nearest police-station, or to such other officer as the Magistrate of the District appoints in this behalf.

Such officer shall thereupon stick upon in a conspicuous part of his office a notice stating -

(a) the number and description of the cattle,

(b) the place where they were seized,

(c) the place where they are impounded, and shall cause proclamation of the same to be made by beat of drum in the village and at the market-place nearest to the place of seizure.

If the cattle be not claimed within seven days from the date of the notice, they shall be sold by public auction by the said officer, or an officer of his establishment deputed for that purpose, at such place and time and subject to such conditions as the Magistrate of the District by general or special order from time to time direct:

Provided that, if any such cattle are, in the opinion of the Magistrate of the District, not likely to fetch a fair price if sold as aforesaid, they may be disposed of in such manner as he thinks fit.

Section 15 is with regard to the delivery of cattle to the owner disputing the legality of the seizure.

15. Delivery to owner disputing legality of seizure but making deposit.- If the owner or his agent appear and refuse to pay the said fines and expenses, on the ground that the seizure was illegal and that the owner is about to make a complaint under section 20, then, upon deposit of the fines and charges incurred in respect of the cattle, the cattle shall be delivered to him.

Section 16 provides for the procedure when the owner refuses or omits to pay the fines and expenses.

16. Procedure when owner refuses or omits to pay the fines and expenses.- If the owner or his agent appears and refuses or omits to pay or (in the case mentioned in section 15) to deposit the said fines and expenses, the cattle, or as many of them as may be necessary, shall be sold by public auction by such officer at such place and time, and subject to such conditions, as are referred to in section 14.

Deduction of fines and expenses.- The fines leviable and the expenses of feeding and watering, together with the expenses of sale, if any, shall be deducted from the proceeds of the sale.

Delivery of unsold cattle and balance of proceeds.- The remaining cattle and the balance of the purchase-money, if any, shall be delivered to the owner or his agent, together with an account showing-

(a) the number of cattle seized,

(b) the time during which they have been impounded,

(c) the amount of fines and charges incurred,

(d) the number of cattle sold,

(e) the proceeds of sale, and

(f) the manner in which those proceeds have been disposed of.

Receipts.- The owner or his agent shall give a receipt for the cattle delivered to him and for the balance of the purchase-money (if any) paid to him according to such account.

Section 20 of the Act provides for power to make complaints.

20. Power to make complaints.- Any person whose cattle have been seized under this Act, or, having been so seized, have been detained in contravention of this Act, may, at any time within ten days from the date of the seizure, make a complaint to the Magistrate of the District or any Magistrate authorized to receive and try charges without reference by the Magistrate of the District.

Section 22 of the Act provides for compensation for illegal seizure or detention.

22.Compensation for illegal seizure or detention.- If the seizure or detention be adjudged illegal, the Magistrate shall award to the complainant, for the loss caused by the seizure or detention, reasonable compensation, not exceeding one hundred rupees, to be paid by the person who made the seizure or detained the cattle together with all fines paid and expenses incurred by the complainant in procuring the release of the cattle, Release of cattle.- And, if the cattle have not been released, the Magistrate shall, besides awarding such compensation, order their release and direct that the fines and expenses leviable under this Act shall be paid by the person who made the seizure or detained the cattle.

Section 27 is with regard to the penalty which can be imposed on the pound-keeper who failed to perform his duty under the Act.

27. Penalty on pounds-keeper failing to perform duties.- Any pound-keeper releasing or purchasing or delivering cattle contrary to the provisions of section 19, or omitting to provide any impounded cattle with sufficient food and water, or failing to perform any of the other duties imposed upon him by this Act, shall, over and above any other penalty to which he may be liable, be punished, on conviction before a Magistrate, with fine not exceeding fifty rupees. Such fines may be recovered by deductions from the pound-keeper's salary.

Section 29

29. Saving of right to sue for compensation.- Nothing herein contained prohibits any person whose crops or other produce of land have been damaged by trespass of cattle from suing for compensation in any competent court.

Provisions of PACC:

Section 2(a)

Section 2(a) of the Prevention of Cruelty to Animals Act, 1960 reads thus, 'animal' means any living creature other than a human being.

Section 3

3. Duties of persons having charge of any animals: It shall be the duty of every person having the care or charge of any animal to take all responsible measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering.

Thus, PCAA imposes an obligation upon all persons/authorities for caring for the animals providing all necessary facilities for their care and life. In the above referred provision the words "charge of any animal" are significant. It is the duty of the custodian of animals to take care of animals including saving its life.

Constitutional provisions:

Article 51A

Article 51-A of the Constitution of India also provides that it shall be the duty of every citizen to have compassion for living creatures. The Constitution has imposed fundamental duties to all citizens to have compassion towards living creatures. The words used here are "living creatures". Hence, all the citizens are required to have compassion towards all living creatures including animals, birds, reptiles, and even small insects also.

The Hon'ble Supreme Court has expressed a new dimension to the words "to have compassion for living creatures" of Article 51-A(g). A Constitution Bench of 7 Judges held in paragraph 58 as under:

“In AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428, a three-Judge Bench of this Court made it clear that fundamental duties, though not enforceable by writ of the court, yet provide valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case of doubt, peoples' wish as expressed through Article 51-A can serve as a guide not only for resolving the issue but also for constructing or moulding the relief to be given by the courts. The fundamental duties must be given their full meaning as expected by the enactment of the Forty-second Amendment. The Court further held that the State is, in a sense, 'all the citizens placed together' and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State.”

Now as per the ruling, fundamental duty under Article 51A(g) to have compassion towards living creatures is extended to State Government and Government authority. State is equally responsible for due care and protection of animals.

The universal declaration of animal rights

International League for Animal Rights has finally approved the declaration at London on 21st-23rd September 1977. Declaration proclaimed on 15th October 1978 United Nations and UNESCO has ratified the declaration Preamble "Considering that all living being possess natural rights and that any animal with a nervous system has specific rights."

Article 1: All animals are born equal and they have the same rights to existence.

Article 2: (a) Every animal has the right to be respected; (b) Man, like the animal species, cannot assume the right to exterminate other animals or to exploit them, thereby violating this right. He should use his conscience for the service of the animals; (c) Every animal has the right to consideration, good treatment and the protection of man.

Article 3: (a) No animal should be submitted to bad treatment or cruel actions; (b) If the death of an animal is necessary, this should be sudden and without fear or pain.

Article 4: (a) All animals belonging to a wild species have the right to live free in their natural environment, and have the right to reproduce; (b) Each deprivation of freedom, even for educational purposes, is in opposition to this right.

Article 5: (a) Every animal that usually lives in a domestic environment must live and grow to a rhythm natural to his species; (b) Any change to this rhythm and conditions dictated by man for mercantile purpose, is a contradiction of this law.

Article 6: (a) All animals selected by man, as companions must have a life corresponding to their natural longevity; (b) To abandon an animal is a cruel and degrading action.

Article 7: Working animals must only work for a limited period and must not be worked to exhaustion. They must have adequate food and rest.

Article 8: (a) Experiments on animals that cause physical and mental pain, are incompatible with animal rights, even if it is for medical, scientific, commercial or any other kind of experiment; (b) A substitute technique must be investigated and developed.

Article 9: In the eventuality of an animal bred for food, it must be fed, managed, transported and killed without it being in fear or pain.

Article 10: (a) No animal should be used for entertainment; (b) Animal exhibitions and shows that use animals are incompatible with an animal's dignity.

Article 11: Every action that causes the unnecessary death of an animal, is cruel which is a crime against life.

Article 12: (a) Every action that causes the death of a lot of wild animals is genocide, that is a crime against the species; (b) Pollution and destruction leads to the extinction of the species.

Article 13: (a) Dead animals must be treated with respect; (b) Violent scenes, where animals are the victims, must be forbidden at the cinema and on TV, unless they are for the demonstration of animal rights.

Article 14: (a) Protection and safeguarding associations must be represented at government level; (b) Animal rights must be defended by law as are human rights.

"The human species must consider itself an element of the terrestrial habitat and must respect co-existence and symbiosis. Any failure to respect these is an attack on nature, prejudicial to the whole ensemble of inanimate and animate beings." - Hon'ble Mr. Justice V. R. Krishna Iyer in an article named "The Rights of our Animal Brethren"

"The unity that runs thro' Creation is thus a basic truth. Nature has thus an integral relation with animalia and homo sapiens is an inseverable part of the evolutionary spirit the highest peak of ecological ascent. These great values are reflected in our constitution, a rare good fortune and a binding recognition. The State and the citizen are duty bound to promote and preserve ecology and environment as mandated by Articles 48A and 51A." ." - Hon'ble Mr. Justice V. R. Krishna Iyer in an article named "The Rights of our Animal Brethren"

Ancient beliefs:

The universality of divinity is a fundamental faith of Indian humanity rooted in the Rig Veda and manifest in the spiritual core of all religions.

The ancients have stated that God sleeps in the mineral, awakens in the vegetable, walks in the animals, and thinks in man.

The philosophical perspective of Animal Welfare is thus part parcel of our cultural heritage. Every time cruelty is practiced on man or beast or bird or insect, we do violence to the Buddha and Mahavira. Every torture on an animal and every export of animals is a sin to the memory of the founders of Bhartiya Sanskar.

Interpretation of provisions and analysis of facts by Court:

The Act undoubtedly empowers the authority concerned to seize or cause to be seized any cattle doing damage to such public roads, pleasure-grounds, plantations, canals, drainage-works, embankments, and the like, but at the same time, Section 13 of the Act also provides that if the owner of the impounded cattle or his agent appears and claims the cattle, the pound-keeper shall deliver such cattle to him on payment of fines and charges incurred in respect of such cattle. The mandate of the law is very clear. Once the owner of the cattle is ready and willing to pay the fine for getting his cattle released then the authority is duty-bound to release such cattle. If such cattle are once again found straying on public roads then it is always open for the authority to seize the same.

The court does not want to convey that public nuisance should be overlooked at the expense of animal rights. Public nuisance must be taken care of but the same must be taken care of only in accordance with law and not otherwise. It is always open for the authorities concerned to curb the menace of cattle straying on public roads and causing a nuisance, but when it decides to take steps under the law, then at that stage the authorities are expected and are duty-bound to treat such cattle with compassion even while keeping them at cattle-pound or at 'Panjrapole'.

We are constrained to observe this because over a period of time many cases have come to our notice that once cattle go to a cattle-pound or a 'Panjrapole', it is made to suffer and ultimately dies. Many cases have been reported where out of hundreds of seized cattle, hardly one cattle remains alive. The only reply to this so far has been that the cattle died due to some disease.

Directions given by the Court:

The authorities concerned shall strictly abide by the provisions of the Cattle Trespass Act, 1871;

The authorities concerned shall release the cattle seized under Section 11 of the Act, no sooner the owners of the cattle or their agent appear and claim the cattle, on payment of fines and charges incurred in respect of such cattle. At that stage, the authority shall not refuse release of the cattle on the ground of festival etc.;

The authorities concerned shall ensure that the pound-keepers appointed under Section 6 of the Act strictly comply with and abide by the provisions of the Act and perform their duty as prescribed under the Act;

The authorities concerned shall take care to see that if the cattle are not claimed by anyone within 7 days from the date of their being impounded, the authorities concerned shall comply with the provisions of Section 14 of the Act and take care to see that the cattle are kept in a good condition by providing water and fodder;

All District Magistrates of the State of Gujarat are hereby directed to ensure that the provisions of the Cattle Trespass Act, 1871 are scrupulously complied with and any violation of the same shall be dealt with strictly in accordance with the law.

Note: Part in Red is reproduced as it is from the Bare Act.

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