Human & Environment Alliance ... vs Mr. Debal Ray
2023 Latest Caselaw 1263 Cal

                   IN THE HIGH COURT AT CALCUTTA
                         SPECIAL JURISDICTION
                            APPELLATE SIDE

The Hon'ble Justice Arijit Banerjee
     And
The Hon'ble Justice Apurba Sinha Ray


                         C.P.A.N. No. 508 of 2022
                                    In
                            WPA 7022 of 2019
                Human & Environment Alliance League & Anr.

                                    Vs

         Mr. Debal Ray, Principal Chief Conservator of Forests,
                  Wildlife and Chief Wildlife Warden,
                     Department of Forests & Ors.

For the petitioners          : Mr. Siddhartha Mitra, Sr. Adv.,
                               Mr. Siddhartha Mitra, Adv.


For the Respondent no. 11    : Mr. Siddhartha Lahiri, Adv.,



For the State                : Mr. Sirsanya Bandopadhyay, Adv.,
                               Mr. Arka Kumar Nag, Adv.


Heard on                     : 08.09.2022, 16.11.2022, 06.12.2022,

                              14.12.2022, 22.12.2022, 01.02.2023,

                              16.02.2023

CAV on                       : 16.02.2023

Judgment on                  : 20.02.2023
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Arijit Banerjee, J.:


1.      This contempt application has been filed for alleged wilful violation of a

judgment and order dated April 18, 2019, whereby a coordinate Bench

disposed of a Public Interest Litigation which was registered as W.P. 7022(W) of

2019.

2.      The issue that was raised in the writ petition was with regard to

protection of environment, forests and wild life at large and in particular, the

indiscriminate killing of thousands of wild mammals, birds and reptiles, which

are protected under various Schedules to the Wild Life (Protection) Act, 1972

and other statutory provisions.

3.      The writ petitioners contended that such killing takes place by hunters

from Tribal and Non-tribal communities, especially during "Shikar Utsavs",

particularly in the Districts of Paschim Medinipur, Bakura, Purulia, Jhargram

and Mursidabad.

4.      The writ petition was disposed of by directing the Principle Chief

Conservator of Forests, Wild Life, who is also the Chief Wild Life Warden,

Department of Forests, Government of West Bengal, to take immediate steps in

the matter for effective prevention of atrocities against wild life during

Ritualistic Hunting Festivals.
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5.    Learned Senior Advocate appearing for the petitioners has submitted that


a lot of deliberations have taken place on the issue of protecting the wild life


but nothing effective has been done. There has been no real implementation of


the judgment and order dated April 18, 2019. He submitted that no arrests


have been made by the law enforcing agencies nor any criminal proceedings


initiated against the offenders.



6.    The State respondents and the Railways have filed separate affidavits


wherein they have detailed the steps that they claim to have taken at their end.



7.    We have heard learned Counsel for the parties at length. All the learned


Counsel have submitted that this is a matter in which we should be more


concerned about how to implement the judgment and order dated April 18,


2019, rather than to determine whether the respondents are guilty of contempt


of Court. We agree.



8.    It is of utmost importance that the environment, the forest and the wild


life at large are protected and preserved. This is not only because the humans
                                           4



must act with humanity. This is also necessary for maintaining the ecological


balance without which Mother Earth will not survive resulting in annihilation


of all kinds of life in the planet.



9.       The Protection of Cruelty to Animals Act, 1960 is a piece of welfare


legislation with an extremely laudable object and purpose. Various provisions


of the said statute have been discussed by the Hon'ble Supreme Court in the


case of Animal Welfare Board of India v. A. Nagaraja & Ors., (2014) 7 SCC


547. We may profitably extract a few paragraphs from the judgment in that


case:-



            "59. Based on ecocentric principles, rights of animals have been

            recognized in various countries. Protection of animals has been

            guaranteed by the Constitution of Germany by way of an amendment

            in 2002 when the words "and the animals" were added to the

            constitutional clauses that obliges "State" to respect "animal dignity".

            Therefore, the dignity of the animals is constitutionally recognised in

            that country. German Animal Welfare Law, especially Article 3 provides
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far-reaching protections to animals including inter alia from animals

fight and other activities which may result in the pain, suffering and

harm for the animals. Countries like Switzerland, Austria, Slovenia

have enacted legislations to include animal welfare in their national

Constitutions so as to balance the animal owners' fundamental rights

to property and the animals' interest in freedom from unnecessary

suffering or pain, damage and fear.

60. Animals Welfare Act of 2006 (U.K.) also confers considerable

protection to the animals from pain and suffering. The Austrian Federal

Animal Protection Act also recognises man's responsibilities towards

his fellow creatures and the subject "Federal Act" aims at the

protection of life and well being of the animals. The Animal Welfare Act,

2010 (Norway) states:-


"3. General requirement regarding the treatment of animals.-

Animals have an intrinsic value which is irrespective of the usable

value they may have for man. Animals shall be treated well and be

protected from the danger of unnecessary stress and strain."
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Section 26 of the legislation prohibits training and animal to fight with

people; the operative portion of the same reads as follows:-


     "26. Training, showing, entertaining and competition.- "Any


     person who trains animals and who uses animals which are used for


     showing,    entertainment and       competitions,   including   those   who


     organise such activities, shall ensure that the animals:



     (a) - (c)



     (d)    are not trained for or used in fights with other animals or people."



     61. When we look at the rights of animals from the national and


     international perspective, what emerges is that every species has an


     inherent right to live and shall be protected by law, subject to the


     exception provided out of necessity. Animal has also honour and


     dignity which cannot be arbitrarily deprived of and its rights and


     privacy have to be respected and protected from unlawful attacks.
                                      7



62. The Universal Declaration of Animal Welfare (UDAW) is a campaign


led by World Society for the Protection of Animals (WSPA) in an attempt


to secure international recognition for the principles of animal welfare.


UDAW has had considerable support from various countries, including


India. WSPA believes that the world should look to the success of the


Universal Declaration of Human Rights (UDHR) to set out what UDAW


can achieve for animals. Five freedoms referred to in UDAW, which we


will deal with in latter part of the judgment, find support in PCA


Act and the Rules framed thereunder to a great extent.



..........

64. Chapter 7.1.2 of the Guidelines of OIE, recognizes five

internationally recognized 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.

Food and Agricultural Organisation (FAO) in its "Legislative and

Regulatory Options for Animal Welfare" indicated that these five

freedoms found their place in Farm Welfare Council 2009 UK and is

also called "Brambell's Five Freedoms". These five freedoms, as

already indicated, are considered to be the fundamental principles of

animal welfare and we can say that these freedoms find a place

in Sections 3 and 11 of the 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.

66. Rights guaranteed to the animals under Sections 3, 11, etc. are

only statutory rights. The same have to be elevated to the status of

fundamental rights, as has been done by few countries around the

world, so as to secure their honour and dignity. Rights and freedoms

guaranteed to the animals under Sections 3 and 11 have to be read

along with Article 51-A(g) and (h) of the Constitution, which is the

magna carta of animal rights.

67. Article 51-A(g) states that it shall be the duty of citizens to have

compassion for living creatures. In State of Gujarat v. Mirzapur Moti

Kureshi Kassab Jamat, this Court held that by enacting Article 51-

A(g) and giving it the status of a fundamental duty, one of the objects

sought to be achieved by Parliament is to ensure that the spirit and

message of Articles 48 and 48-A are honoured as a fundamental duty

of every citizen. Article 51-A(g), therefore, enjoins that it was a

fundamental duty of every citizen "to have compassion for living

creatures", which means concern for suffering, sympathy, kindliness,

etc., which has to be read along with Sections 3, 11(1)(a) & (m), 22 etc.

of PCA Act.

68. Article 51-A(h) says that it shall be the duty of every citizen to

develop the scientific temper, humanism and the spirit of inquiry and

reform. Particular emphasis has been made to the expression

"humanism" which has a number of meanings, but increasingly

designates as an inclusive sensibility for our species. Humanism also

means, to understand benevolence, compassion, mercy etc. Citizens

should, therefore, develop a spirit of compassion and humanism which

is reflected in the Preamble of PCA Act as well as in Sections

3 and 11 of the Act. To look after the welfare and well- being of the

animals and the duty to prevent the infliction of pain or suffering on

animals highlights the principles of humanism in Article 51A (h). Both

Articles 51-A(g) and (h) have to be read into the PCA Act, especially

into Section 3 and Section 11 of the PCA Act and be applied and

enforced.

72. Every species has a right to life and security, subject to the law of

the land, which includes depriving its life, out of human

necessity. Article 21 of the Constitution, while safeguarding the rights

of humans, protects life and the word "life" has been given an

expanded definition and any disturbance from the basic environment

which includes all forms of life, including animal life, which are

necessary for human life, fall within the meaning of Article 21 of the

Constitution. So far as animals are concerned, in our view, "life" means

something more than mere survival or existence or instrumental value

for human-beings, but to lead a life with some intrinsic worth, honour

and dignity. Animals' well-being and welfare have been statutorily

recognised under Sections 3 and 11 of the Act and the rights framed

under the Act. Right to live in a healthy and clean atmosphere and

right to get protection from human beings against inflicting

unnecessary pain or suffering is a right guaranteed to the animals

under Sections 3 and 11 of the PCA Act read with Article 51-A(g) of the

Constitution. Right to get food, shelter is also a guaranteed right

under Sections 3 and 11 of the PCA Act and the Rules framed

thereunder, especially when they are domesticated. The right to dignity

and fair treatment is, therefore, not confined to human beings alone,

but to animals as well. The right, not to be beaten, kicked, overridden,

overloaded is also a right recognized by Section 11 read with Section

3 of the PCA Act. Animals also have a right against human beings not

to be tortured and against infliction of unnecessary pain or suffering.

Penalty for violation of those rights are insignificant, since laws are

made by humans. Punishment prescribed in Section 11(1) is not

commensurate with the gravity of the offence, hence being violated

with impunity defeating the very object and purpose of the Act, hence

the necessity of taking disciplinary action against those officers who

fail to discharge their duties to safeguard the statutory rights of

animals under the PCA Act."

10. We propose to form a committee which shall ensure implementation of

the judgment and order dated April 18, 2019, and in general shall takes steps

for protection and preservation of the animals in the forest and to see that the

animals are not killed indiscriminately whether during Hunting Festivals or

otherwise.

11. Accordingly, we constitute a committee which we shall call the "Humane

Committee" at the District level for 5 Districts, for the time being, as mentioned

above i.e. Paschim Medinipur, Bakura, Purulia, Jhargram, Murshidabad. The

members of the Committee will be:-

(1) District Judge who is also the Chairperson of the District Legal

Services Authority (Chairperson)

(2) District Magistrate

(3) Superintendent of police

(4) Divisional Forest Officer

(5) Chief Conservator of Forests/Conservator of Forests

(6) Member Secretary, District Legal Services Authority (Convenor)

(7) Public Prosecutor

(8) Wild Life Warden.

(9) One person from tribal community to be nominated by the

District Judge in consultation with other members of the Committee.

(10) Divisional Security Commissioner, Head Quarters, Railway

Protection Force of the concerned zone.

(11) Tiasa Adhya, Environmentalist and Conservationist, 11F New

Ballygunge Road Kolkata - 700039, Mobile : +918777678149.

12. The petitioner has suggested certain measures which the committee may

take. We find such suggestions be reasonable and we endorse the same. The

suggestions are as follows:-

"Hold bi-monthly meetings to discuss ways and means to take up

year-round pre-emptive measures against ritual hunting including:

(a) Constant awareness generation through programmes to send

a strong message against hunting of native species;

(b) Involvement of local resources to gather intelligence about

exact hunting date/time, place of gathering, size of crowd,

approach routes etc.;

(c) Distribution of handbills and miking in village markets and

other important places around the area (a) at regular intervals

during the year and (b) continuously for at least one week before

the hunting event;

(d) Signboards/posters to be put up at important places like

village markets and congregation points for hunting festivals,

clearly stating that hunting is a punishable offence.

(e) Conversations to be held with village heads (tribal majhis -

not only Panchayat heads) at regular intervals during the year

and also a few days before the hunt explaining that hunting is

illegal and has been banned.

(f) Clearly explain to the local communities through dialogue that

gathering of large number of people with weapons, or entering

inside forests with weapons violate various laws and are not

permitted.

(g) Meetings to be held amongst local administration, forest

department and RPF/GRP to discuss deployment strategies on the

hunt dates and protocols to arrest hunters, well in advance of the

hunting season.

A field report on the steps taken with regard to points (a)-(g) above

be placed before the committee at each meeting.

7. Adoption of punitive/legal measures and other measures to

prevent ritualistic hunting on D-day of the hunt fests.

A DAY BEFORE THE EVENT

(a) Establishing adequate number of check posts on the main

approach routes to the hunt congregation areas for checking the

hunters' vehicles and arms used for hunting (spears, bows,

spades, arrows, knives, etc.).

(b) If a group of more than 4/5 outsiders are encountered in a

vehicle, they should be questioned about their reasons to travel.

(c) Seizure of vehicles used by the hunters to reach hunt

destinations including trucks, motorbikes, etc.

(d) Confiscation of weapons if hunters are seen carrying them to

the hunt locations.

(e) If the area has nearby railway stations, then RPF/GRP need

to check incoming passengers for weapons, and disallow entry to

those carrying arms. For large festivals for which the hunters

extensively use the railways, this checking also needs to happen

at large junctions like Kharagpur where hunting parties change

trains.

(f) Extensive miking around the hunt locations to dissuade

hunters from gathering.

ON THE DAY OF THE EVENT

(g) District magistrates to invoke Section 144 of the Code of

Criminal Procedure and impose curfews to stop the hunters from

congregating/forming unlawful assemblies at the hunt locations.

(h) In addition to checkposts on major roads, wherever possible,

the smaller roads should be barricaded to prevent vehicles or

motorbikes from going to the hunting grounds.

(i) Ensure that there is enough manpower and police support to

turn away the hunters who slip in through the checkposts and

barricades. Usually there are specified locations where hunters

congregate before and after the hunt. It is critical to focus on such

areas to mitigate ritualistic hunting.

(j) All approach roads to the hunt locations should be closed off

to the hunters and monitored closely. Police personnel may be

deployed to patrol the hunt areas and go inside the forests on foot

to check for any illegal activity.

(k) Ensure that gatherings with weapons are not allowed inside

forest or in nearby areas. Weapons are to be seized wherever

armed hunters are found.

(l) If hunters are found hunting wildlife, they are to be arrested

immediately. The protocols of arresting the offenders should be

clear to all authorities (often there are complications like the

offender being apprehended in railway premises resulting in

confusion as to the roles of RPF/GRP, Forest Dept Staff, Police,

CRPF etc.)."

13. We, however, clarify that the aforesaid measures are merely indicative

and not exhaustive. The committee shall apply its mind independently and

decide what other steps can be taken so that the judgment and order dated

April 18, 2019, can be implemented in its true spirit and intent and generally

how the wild animals in the forests may be protected from being killed

indiscriminately.

14. The committee shall hold a preliminary meeting as soon as possible and

preferably within 2 weeks from date and shall place a report before us on the

next date indicating the measures that the committee intends to take and the

general plan of action to achieve the object for which the committee is being

constituted.

15. The committee shall keep the Member Secretary of the State Legal

Services Authority in the loop so that he is kept posted about the activities of

the Committee.

16. The Member Secretary, District Legal Services Authority shall act as the

Convenor of the Committee and shall coordinate amongst the other members of

the Committee. The meetings of the committee shall be held at the office of the

Chairperson of the Committee or such other place as the Chairperson may

decide.

17. We are keeping this contempt application pending as we intend to

supervise and keep track of how the Committee is functioning and also for the

purpose of passing further orders as may be necessary for effective

implementation of the judgment and order dated April 18, 2019. Let the matter

be listed once again on March 30, 2023, under the heading "for orders" marked

2 p.m. The Registry shall immediately communicate this order to all the

members of the Committee as also the Member Secretary of the State Legal

Services Authority.

18. Before parting we would like to say that senseless killing of animals

in the wild for pleasure and in purported show of false prowess is in our

opinion, as heinous and culpable a crime as the offence of murder under

Section 302 of the Indian Penal Code. The animals in the forests do not

interfere with the lives of human beings as long as they are left alone to

live their lives in their natural surroundings. They may retaliate in self-

defense and justifiably so, when humans unjustifiably intrude and

trespass into their territory and disrupt or destroy their habitat. They

have a right to peaceful co-existence with Homo Sapiens in this planet.

They don't have a voice to ventilate their pain and agony which they

suffer by reason of the torture they are subjected to. We deeply

appreciate the initiative taken by the petitioner to take up the cause of

the creatures in the wild by way of the present proceedings.

19. All parties shall act in terms of Server Copy of this order duly

downloaded from the official website of this Court.

20. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite formalities.

(Arijit Banerjee, J.)

I agree.

(Apurba Sinha Ray, J.)