Kerala High Court: The High Court of Kerala has once again advocated for animal rights and welfare as the Division Bench of A. K. Jayasankaran Nambiar and Gopinath P. JJ., held that stipulations in resident agreements prohibiting the residents from keeping pets of their choice in their individual apartments are unreasonable and unconstitutional. The Bench remarked,
“We believe the time has indeed come to nudge our citizenry into respecting the claims of other living beings that too have rights in our shared ecosystem. Compassion and empathy are the very essence of civilization and we must strive to preserve these values as part of our culture.”
The instant Public Interest Litigation was filed to challenge the stand of the office bearers of the resident association of the apartment complex of the petitioner. It was alleged that, by taking shelter under a clause in the bye-laws of the association that prohibits the residents from keeping pets of their choice in their individual apartments, the office bearers of the association had issued notices asking the residents to remove their pets from the premises.
The moot issue before the Bench was whether such stipulations in the bye-laws of resident associations or other agreements entered into by occupiers of residential apartments could withstand legal scrutiny under law?
Opining that the trajectory of animal rights jurisprudence in India had sadly been a retrograde one, the Bench stated that over the years we have virtually moved from an eco-centric worldview where animals, like humans were seen as living beings containing a life force and therefore morally worthy, to an anthropocentric one where humans alone are seen as morally worthy and privileged to enjoy the bounties that nature has to offer.
Prevention of Cruelty to Animals Act, 1960
In Animal Welfare Board of India v. A. Nagaraja,(2014) 7 SCC 547, the Supreme Court while deciding the legality of the practice of ‘Jallikattu’, had held that Prevention of Cruelty to Animals Act, 1960, is a welfare legislation, which has to be construed bearing in mind the purpose and object of the Act and the Directive Principles of State Policy. Since it is trite that welfare legislations have to be construed liberally in favour of the intended beneficiaries, it was found that any regulations or guidelines, whether statutory or otherwise, that purported to dilute or defeat the welfare legislation and the constitutional principles would need to be struck down by the courts so as to achieve the ultimate object and purpose of the welfare legislation. It was emphasized that the court has a duty under the doctrine of parens patriae to take care of the rights of animals, since they are unable to take care of themselves as against human beings.
In interpreting the provisions of the PCA Act, the Bench said,
“We have also to bear in mind the provisions of Article 48A of our Constitution that obliges the State to protect and make all endeavours to safeguard the forests and wildlife, as also Article 51A (g) of our Constitution that imposes a duty on every citizen of our country to protect and improve the natural environment and to have compassion for living creatures.”
Right to Rear Pets
Relying on Prakash v. State of Kerala, 2020 (2) KLT Online 1011, wherein the citizens’ choice to rear pets was held as traceable to their fundamental right to privacy under Article 21 of the Constitution, the Bench held that the impugned clauses in the bye-laws of resident associations, that seek to prevent owners/occupiers of residential apartments from keeping pet animals of their choice in the residential apartments owned/occupied by them, or accessing the elevators and common facilities in the apartment buildings, could not withstand legal and constitutional scrutiny.
Hence, holding that such clauses defeat the objectives of the PCA Act and the principles recognised under the Constitution, and have necessarily to be struck down as illegal and unconstitutional, the Bench expressed,
“Fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they may come into operation in considering individual rights. They have been put there, as a matter of public policy and the doctrine of waiver can have no application to provisions of law, which have been enacted as a matter of constitutional policy.”
Rights of Pet Owners and Competing Rights of Neighboring Residents
Opining that freedoms recognised in animals, and the co-relational right recognised in pet owners, is by no means absolute or unconditional and must necessarily be qualified by safeguards designed to protect the competing rights of others including the owners/residents of neighbouring apartments, the Bench clarified that to effectively prohibit the keeping and maintaining of pets in the residential apartments and appurtenant premises, the resident associations may stipulate reasonable conditions that must be adhered to by the owners/residents of individual apartments. The Bench also clarified that the judgment should be seen as one operating in rem.
In the backdrop of above, it was held that the impugned clauses should be treated as void and unenforceable in law. Consequently, resident owners’ associations and resident welfare associations were directed to desist from putting up notice boards and signposts prohibiting the keeping or entry of pets in their respective premises. [People for Animals v. State of Kerala, 2021 SCC OnLine Ker 4159, decided on 02-11-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioners: Sri.K.S. Hariharaputhran, Sri.S.R. Prasanth, Smt. Bhanu Thilak and Smt.Sruthi K.
For Animal Welfare Board of India: Sri.Asok M.Cherian, Addl. Advocate General,
For the State of Kerala: Sri.Shyam Prasanth, Govt. Pleader,
For Respondents: Sri.Jaishankar V.Nair, Cgc, Adv.Smt.Sayujya By Adv.Sri.K.R.Rajeev Krishnan
Amicus Curiae: By Sri.Keertivas Giri