Indian Circus Federation And Anr. vs Union Of India (Uoi) And Anr.
1998 Latest Caselaw 1116 Del

JUDGMENT

Anil Dev Singh, J.

1. In the main petition the petitioner challenges the notification of the Government of India, Ministry of Environment and Forests, Deptt. of Environment, Forests and Wild-life, dated 2nd March, 1991. This notification was issued under Section 22 of the Prevention of Cruelty to Animals Act, 1960. By this notification five animals, namely, bears, monkeys, tigers, panthers and dogs, were banned from being trained or exhibited. By a subsequent notification ban on training and exhibiting of dogs was withdrawn. On March 20, 1991 by means of an interim order the operation of the notification was stayed by this court. On August 21, 1997, during the course of hearing of the petition, the challenge to the vires of the notification was made, inter alia, mainly on the following grounds:-

"1. The ban has been imposed without there being adequate material available with the Government justifying the necessity of imposing the ban;

2. In order to achieve the object as spelled out by the Preamble of the Act, which is prevention of unnecessary pain or suffering on animals, the Government has failed to apply mind to and decide whether mere regulation or framing of the rules would have served the purpose without banning the training or exhibiting of the animals ;

3. The impugned notification seen in the light of the provisions of the Act is intended to ban circus only without bringing the zoos within its ken, which is discriminatory."

2. On the same date, during the hearing of the petition, it was suggested that the Government of India may have a fresh look at the notification dated March 2,1991. In the light of the suggestion, the following directions were made :-

"The hearing in this petition is adjourned for a period of 8 weeks. In the meantime, the Government may take up the Notification dated 2.3.1991 for consideration afresh. It may take into consideration such material as may be available with it or it may choose to collect through any of the authentic agencies or such other agency or committee of experts as it may choose to appoint. The petitioners, and such other organisations, as may volunteer them- selves, will be at liberty to place before the Government of India for its consideration such material as they may deem relevant and having bearing on the issue involved."

3. Pursuant to the order dated August 21, 1997, the Government of India appointed a Committee. The Committee was constituted of the Additional Inspector General of Forests and Wild Life as Chairman, and the Member Secretary, Central Zoo Authority; Director, Wildlife Institute of India and Sh. S.C. Dey, Retd. Additional IGF (WL), as members. The Committee invited certain Animal Welfare Organization besides the petitioner-Indian Circus Federation (I.C.F.) to place before the Committee such material as they may deem relevant and having bearing on the issue involved. The I.C.F., the Animal Board of India (A.W.B.) and various Animal Welfare Organisations (A.W.Os.) submitted the following material :-

1. A letter from the Royal Society for Prevention of Cruelty to Animals (RSPCA) stating that the book "Animal in Circuses and Zoos, Chiron's World" was neither sponsored nor published by the RSPCA by way of endorsing its conclusions. (Annexure-IX to the report).

2. Animal in Circuses, the RSPCA's conclusion from the Report. (Annexure-X to the report).

3. Animals in Circuses. (Annexure-XI to the report).

4. "Science to the Rescue", a critical analysis of Dr. Marthekiely Worthington Report. "Animal in Circuses" written and researched by Mr. William Johnson. (Annexure-XII to the report)

5. The Rose Tinted Menagerie by Mr. William John- son. (Annexure-XIII to the report).

6. Information compiled by 'Kindness to Animals and Respect for Animals'. (Annexure-XIV to the report).

7. Report on Circuses in India prepared by Beauty without Cruelty. (Annexure-XV to the report).

8. "Act of Cruelty" - an article written by Mr. William Johnson. (Annexure-XVI to the report).

9. 'Kingpole' Autumn Issue published by Circus Friends Association, June and September, 1977. (Annexure-XVII to the report).

10. Documents/books/paperes/reports referred in the affidavit filed on behalf of the respondents. (Annexure-XVIII to the report)

11. A letter from the World Society for Protection of Animals regarding "Animals suffering in Circuses". (Annexure-XIX to the report)

12. Video Cassettes provided by ICF & AWOs.

4. Besides ICF provided the Committee a copy of the book titled - "Animals in Circuses and Zoos, Chiron's World" by Dr. Marthekiley Worthington. The Committee not only examined the above said material but also heard the counsel for the ICF Ms. Geeta Mittal on 22.11.1997. After detailed deliberations and. on going through all the material placed before it the Committee felt that following issues are to be looked into :-

1. Basic objective of the circus and whether it helps to create conservation awareness or a feeling of living in harmony with nature or is merely a show of ricks to thrill and excite public?

2. Whether the claim put in the book "Animals in Circuses and Zoos, Chiron's World" by Dr. Marthekiley Worthington that the animals could be trained humanly is correct and logical?

3. Can circuses prevent sufferings during transport of animals from one place to another?

4. Whether the claim of the circuses that they are contributing towards conservation of endangered species is tenable.

5. The Committee while dealing with the issues observed served as follows :-

" After detailed deliberations and critically examining the material placed before it, the Committee is of the view that cruelty inflicted on animals cannot be evaluated and measured in quantitative terms. Therefore, the objective for which a particular activity is being under- taken is an important yardstick, eg., research for medical purposes and animal husbandry which benefits the society at large needs to be continued even if it involves some cruelty. However, activities which are not essential to the progress and welfare of the society but merely to subserve as entertainment or exhibiting spectacles, can easily be curtailed. The (un-natural) tricks or performances which are against the basic nature of animals, and which lead to abnormal behaviour, need to be discontinued.

The ICF has mainly put its reliance on the study titled "Animals in Circuses and Zoos, Chiron's World" by Dr. Marthekiley Worthington, said to be an animal behaviour expert, which was commissioned by RSPCA to carry out an independent, scientific study of circus animals in comparison with animals in zoos and other husbandry systems and in the wild. The results of the investigations are summarised in this book and the observations are mainly out of visits to circuses and zoos located in western countries and that too mostly in U.K. No circus/zoo in India appears to have been visited by Dr. Kiley. However, the RSPCA has categorically stated that they have not endorsed the conclusions made by the author and the views expressed in the book can at best be considered as the views of an individual and not as views of RSPCA. The "People for Animals" has provided a copy of the critical analysis of the Kiley-Worthington Report, "Animals in Circuses" commissioned by the Bellerive Foundation and Care for the Wild written and researched by William Johnson (Annexure-XII). The analysis has highlighted various omissions and contradictions. It has been brought out that show business and education are inherently incompatible, particularly since circuses are unlikely to give objective accounts of their animal keeping and training techniques, their involvement in animal dealing etc.

6. Dr. Kiley has dealt in the book at length about the unimpeachable credentials of the circus community in ensuring proper upkeep and maintenance of the animals under their charge. However, as has been rightly pointed out by RSPCA, it-has failed to appreciate that upkeep and maintenance are not confined merely to timely provision of adequate quantity and quality of appropriate food and water to the animals but also involves appropriate housing which provides the animals enough space for movement and exercise and also to meet their biological requirements and social interactions.

7. The report throughout its length has tried to keep the zoos at par with circuses but it has failed to appreciate the total change in the zoo ethics of late. Zoos play an important role in ex situ preservation of species particularly conservation of rare and endangered species. Contrasting differences in the case of zoos and circuses are that the latter have capture, transportation, training rehearsal and performance, whereas the former have capture/seizure & translocation ............... Also in case of circuses, the animals are constantly transported from one place to Another in varying climatic and other factors, which have an adverse impact on the animals on display mostly in unnatural environment.

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8. The Committee strongly felt that the circuses may never be able to achieve the standards of housing and upkeep of animals that the modern zoos provide and would have to provide even better standards in future.

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9. The report by Dr. Marthekiley Worthington also brings out that adequate running and exercise yards are necessary for keeping the animals fit and to avoid behavioural anomalies amongst animals kept in circuses. It is learnt that hardly any circus is maintaining such exercise yard in the country.

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10. The Committee is also not convinced that the circuses contribute to the conservation of endangered species. It is of the view that breeding in circuses is only accidental, or incidental, and in no way helps a national conservation programme. It needs to be pointed out that inbred stocks lose their heterogeneity and vigour.

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11. The history of human evolution reveals that tigers, panthers and bears are different from the animals which were domesticated by the mankind. The behaviour of these animals is not only unpredictable but they are also quite shy and try to keep away from the human beings. This fact has also been admitted to some extent by Dr. Marthekilely Worthington in her book. The bears love climbing trees and probe into the soil and develop stereotypic behaviour when they are kept in small and dingy cages. The Committee felt that it is not, possible to pro- vide such facilities in circuses. Monkeys are social animals "and there is no justification for keeping the isolated monkeys in captivity.

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12. The ICF placed reliance mainly on the fact that many European countries are allowing display of animals in the circuses. Even if their contention is accepted, the ethos and perception of the people of this country is much different from their Western counterparts. We, in our country, see the same soul being represented in all the living beings on this planet. It is because of this ideology that a provision has been made in the Constitution of India to have love and compassion for all the living beings. It may, therefore, not be appropriate to be guided by, or blindly follow, what is being practiced in other parts of the world, xx xx xx"

13. It was noted in the report that the Government of India have already decided to close the zoos that are not congenial to the health of animals and a number of ill-planned zoos (atleast 25%) have been derecognised as the cages are dingy and lack enough space for movement of animals to meet their biological requirements. It was also noted that the mobile Zoos have been refused permission keeping in view the stress that animals were subjected to during the transportation and the size of enclosures in which the animals have to be confined. At this stage, it will be convenient to refer to the relevant extracts of the material which was placed before it:-

1. RSPCA'S CONCLUSIONS FROM THE REPORT " Accommodation for the animals is clearly shown to be grossly inadequate, providing extremely cramped space and a highly impoverished environment. Despite the introduction of new codes of practice by the Association of Circus Proprietors early in the period of study, which re quire the provision of exercise areas, the data show that the big cats are still confined to their transport wagons for over 90% of the time, where they have between 0.17 and 0.45 cubic metres of space per animal - a frighteningly small figure. Elephants are shown to be leg-shackled fore and hind on boards for over 60% of the time, where "they are able to lie-

down with difficulty".

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The RSPCA can see no way in which suffering associated with the keeping of animals in circuses can be totally eliminated: the very nature of the circus business imposes such constraints on the way in which animals are kept that there must always be significant levels of stress. However, it is apparent from this study that there arc some aspects of animal husbandry in circuses where improvements can be made, which should to some degree reduce the levels of environmental deprivation and other stresses endured by the animals. In the interests of animal welfare, the RSPCA must pursue all possible means of achieving such improvements, until such time as animals are no longer used in circus entertainment.

2. Wildlife Department Briefing Animals in Circuses.

One study based on the principle of analysis of time budgets which has been under- taken in the circus environments was done in 1988-89 by Dr. Marthe Kiley-Worthington, then of Edinburgh University. She observed the behaviour of 275 animals of .14 different species in circuses over a total of more than 1200 hours, and noted the proportion of time spent in different activities, including abnormal and stereotypic behaviour. Some of the results of this research are given below, but the overall conclusion is that in all the animals studied there were significant levels of abnormal and/or stereotypic behaviour, indicative of boredom, frustration, or other causes of long-term stress.

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There have been no significant improvements in the captive environments of other species of animals, many of which continue to live within the small confines of the 'beast wagon', with only limited access to small, barren exercise areas,

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Travelling circuses are inherently restricted in the amount of space they can provide for animals. All the structures in which animals are housed or exercised have to be easily transportable, and fit within the confines of a standard lorry unit. In many cases, particularly with animals such as the; big cats and bears which are a potential danger to the public, the transport cage or 'beast wagon' is their permanent home, where a space of less than 2.5 metres square per animal is normally provided. Static circuses (of which there is currently one in the U.K.) are equally restricted by the space available in their permanent facilities.

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The Society believes the use of animals for any form of entertainment cannot be justified where distress or suffering is likely to be caused.

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3. Views of the Animal Welfare Society contained in their letter dt. 10.9.97.

14. As per Art 48A of the Constitution "The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. As per Art 51A (g), "it shall be 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.

15. The AWB1 is very much convinced that in course of training of animals used in Circuses, the animals are being subjected to intense suffering, both physical and mental, with the use of electric whips, beating, starvation and the like which actually breaks the spirit, disturbs the conditioning of its mind and subjucates it by an external force.

16. All forms of cruelty committed against circus animals very much violate different clauses under Sec. 11 of the PCA Act at every stage.

17. Circus using animals is a very perverse form of entertainment. The circus animal obeys the commands of the Ring Master only out of fear. Its performance is not a voluntary or a natural act of a free animal. It is neither happy nor does it enjoy doing it. The animals are starved till they listen to their masters whereby the animals are so conditioned that only when they obey to their master, they will be given some food and that too in circuses not sufficient amount of food is given, as otherwise it is felt that the animal may become either lazy or put up weight which would hamper the feats they are expected to perform. There- by the animals are made into docile robots.

4. Views of the Animal Welfare Board of India contained in their letter dt. 20.11.97:

The Circus Federation has claimed that their animals are better off than the Zoo Animals.

Wild animals are territory conscious and would like to settle down at one place; but circus animals are constantly on the move.

Wild animals dislike being started at. Sometimes if they are well fed and rested, they can be indifferent to the staring humans or they will retreat into the rear portion of the enclosures in the Zoos but circus animals have nowhere to retreat. Not only are they exposed to the gazing eyes, but three or four times a day before a shrieking arid clamouring audience, under hot dazzling lights, with noisy bands blaring and drums beating, they must perform the tricks they have been taught. Hence it cannot be gainsaid that circus animals are better off than Zoo Animals.

It may be a fact that veterinary attention is readily available to the circus animals. But this is not born out of love or concern for the animals but with an ulterior motive. The animal gets hurt and injured in the beatings/thrashings during the training and rehearsals and animals with outward signs of limping and bandages cannot be presented on to the stage as the truth will be out. Therefore, the animal must be treated immediately and healed as quickly as possible. Hence all the Veterinary care,

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It is made out that only positive reinforcement, love and affection in handling of Animals are involved in training. "You can't train animals by cruelty", they say.

If really all acts were done by kindness, then the animals world will have a free will in the circus ring. But no manager could possibly run his show unless he knows for certain the animals would perform their tricks to the perfect timing of the clock.

A trainer has to ensure that his animals will perform without hesitation, at the precise moment of command. He therefore, cannot rely on the animals co-operation, which may or may not be forthcoming. He has to use a more certain merciless method of compulsion. One trainer has been quoted as saying that there are only 3 weapons with which to enforce this viz. 1) fear, 2) hunger and 3) pain. There can be no doubt that all vertebrate creatures are capable of feeling these three sensations.

18. Therefore, inspite of all appearances to the contrary, not kindness but "Fear" is and must be the mainspring behind all performance.

19. Mild talk, the power of the human eye and gentle persuation will not convince the animal that it will be good to obey.

20. Here are some of the confessions from world famous Trainers:

Alfred Court, who became one of the most famous trainers of wild animals, published a book titled WILD CIRCUS ANIMALS.

"If an animal attacks, he must be given a severe enough correction for him to realise from the first encounter that he is not thee strongest. I clenched my hand round the club and struck at the head with all my strength...The bear had been struck where I had aimed, above the nostrils and between the eyes. Blood flowed from its mouth, its paws stiffened in a last convulsion and it collapsed.

I had twenty-six animals: in training I should eliminate the disappointing ones and there would be a replacement if an animal was killed or badly crippled.

A tiger immediately received four or five lashes....He got a whack whip are indispensable.

I seized one of the heavy stools and flung it with all my strength at the beast's head. It went sprawling, knocked out.

It was my turn to be brutal, terribly brutal and brutal I was. All the clubs I had left in the cage were broken one by one on the tiger's head; lashes came down like an avalanche, each cutting deep into the tiger's shining coat.

I landed a heavy blow on her hand with the whip-butt. The grip of this, reinforced by a double ring of copper, was like a mace.

The iron stool hit him harder than I had intended, snapping his leg."

Energetic and instant correction is indispensable. On page 61 we read, "For six months some black panthers tried to get the better of me. One was killed; the five others were finally tamed. So I persist in my claim that Javanese panthers are not to be tamed with lumps of sugar."

21. The subduing of wild beasts is merely the result of merciless thrashing when they are young - Van Amburgn (Trainer and Showman).

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22. Hunger is the trainer's strongest and meanest weapon. "A lion was kept for 5 days without food or drink during training" with trident and whip. - House of Commons Enquiry."

23. Based on the above said report of the Committee, the Central Government issued a Notification dated 14.10.98 banning that the following animals from being exhibited or trained as performing animals:-

1. Bears

2. Monkeys

3. Tigers

4. Panthers

5. Lions.

24. This Notification has also been impugned by the petitioners. By means of the instant application, the petitioners pray for stay of the operation of the impugned Notification.

25. We have heard learned counsel for the parties. The impugned Notification is based on relevant material as detailed above including the one that in the circuses animals are confined in cages and their transportation is also done in cages. It prima facie appears to us that when the Government, upon consideration, of the report, which is based on relevant material, has formed an opinion & issued the Notification dated 14.10.98 which bans the exhibition and training of the animals namely, Bears, Monkeys, Tigers, Panthers & Lions, there is hardly any justification to stay the operation of the Notification.

26. To hold a view other than this would amount to substituting the opinion of the Central Government on the subject with our own which we are not inclined to do.

27. The learned Additional Solicitor General stated that the Central Government shall bear the expenses for the upkeep of the animals of the petitioners covered by the Notification dated 14.10.98 for a period of two months provided the petitioners surrender the animals to the Central Government.

28. The question whether the petitioners would be liable to surrender the animals or not, can be considered at a later stage. In the meanwhile, the Govt. of India shall make payment for the upkeep of the animals of the petitioners covered by the Notification dated 14.10.98 for a period of two months.

29. The application is accordingly dismissed.

30. The observations made in the above order shall not be taken as an expression of opinion on the merits of the writ petition. Dasti.