INTRODUCTION
India is known for serving as a home to a rich heritage of flora and fauna. Its incredible variety of species of wildlife boasts and rings around the corners of the world. Animals are treated with love and affection and worshipped as deities. However, there is no denying that there certainly exists, a dark side of it. It is not rare to witness incidents such as stoning, wounding, or incapacitating street dogs, inflicting harm for consumption through the slaughter of animals, shooting winged creatures, or destroying their habitats and even abandoning innocuous domesticated animals and starving them to death.
Our Constitution of India enshrines the Gandhian philosophy of Ahimsa in Article 51A, stating that ‘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 living creatures.’ However, this duty is often breached and such violations prove to be a nail in the coffin. Thereby this raises a call for legal reforms and measures to ensure compliance.
The Indian Penal Code under Section 377 penalized voluntary “carnal intercourse against the order of nature with any man, woman or animal“, and thereby punished with life imprisonment, or for a term or imposed liability of fine. Recently, the new official criminal code, Bharatiya Nyaya Sanhita, passed and came into effect on July 1, 2024, ceases to maintain the status quo. The current prevailing law omits and excludes the provision of animal sexual abuse, bestiality, or sodomy and decriminalizes the same.
The omission of the provision under BNS creates a strong sense of prospects of hostility and brutality against these voiceless creatures. The basic idea of this article to be conveyed is, for the larger public to acknowledge animal rights as a serious issue, worthy of public discussion. The victory of humanity will not be achieved when there is harmony amongst humans, but also between humans and animals.
Aristotle argues that what distinguishes humans from animals is the rational faculty. Humans have a rational soul while animals don’t. Homo sapiens are designated the highest rank in the animal kingdom. On the other hand, the synonyms of ‘Animal’ include derogatory terms amongst humans and words like ‘beast’, a ‘wild thing’, or ‘devil.’ However, when we witness such acts of brutality of humans through Carnal intercourse, where the lust, anger, and cruel mens rea of humans are reflected upon the vulnerable creatures of nature, it is easy to say that the synonyms of humans among the animal community would justly be the same.
CONTEXT OF BESTIALITY AND SODOMY
The terms bestiality or sodomy evoke a profound sense of discomfort. The cases of rape such as Nirbhaya or RG Kar shook the nation and caused serious public condemnation and outrage. The rapists however do not limit these crimes to merely humans or excuse the animals.
Bestiality is animal sexual abuse, which implies the sexual molestation of animals by humans to satisfy their sexual gratifications. This may include a plethora of behaviours such as anal, vaginal, or oral penetration of sexual organs, penetration of objects, sexual fondling, oral-genital contact or even killing or causing physical injury or mutating the sexual organs of animals for sexual gratification. It is the eroticization of violence, authority, and exploitation.
Section 377 of the IPC criminalized such acts against animals. Later, a five-judge bench of the Supreme Court, in the case of Navtej Singh Johar v Union of India, partially struck down S. 377 of IPC decriminalizing same-sex relations between consensual adults, except all acts of carnal intercourse against minors and the acts of bestiality. This was a celebrated decision of the apex court, in the interest of all. However, this was overturned by the enacted law by the Parliament, the BNS which omitted the said provision.
A handful of voices have been elevated against the same. The animal rights body, PETA also raised concerns over the absence of the provision. With this, bestiality has now become legal in India.
THE IDEA OF ‘JUSTICE’ AND ‘RIGHTS’
Human rights are a part of fundamental rights. These rights are justifiable. But they are merely considered for human agency. Plants, animals and biodiversity are not protected by these rights. Animals are not deemed as ‘legal persons.’ Our Directive Principles of State Policy under Articles 48 and 48A, urge a duty upon the state to protect the environment and safeguard the country’s forest and wildlife. This is not legally binding and thereby animals do not have concrete rights. This calls for an urgent need to elevate animal rights to constitutional and fundamental rights. However, it is easy to say, and is not a secret that our politicians do not consider animals as a vote bank.
Kimberly C. Moore in the book, “The Case for the Legal Protection of Animals” outlines and explains nine areas of relation between human rights and animal rights. Studies show that there is a close link between domestic violence and animal sexual violence. 70% of animal abusers had criminal records. Moreover, men often inflict harm upon household pets to establish dominance, after beating their partner, or to show them their authority and power. 75% of animal abuse occurs in the presence of women, to control them. Additionally, 48% rapists and 30% of child molesters show a history of animal abuse in childhood or adolescence). Therefore, protecting our animals is a prerequisite and an extension to protecting our humans.
Justice in itself enumerates several factors, social, economic, political, etc. The question arises as to whether these factors were meant only for mankind. Here, the mention of a prominent political philosopher, who conceived the idea of social justice as “Justice as Fairness“, John Rawls, plays a critical role in this arena. Rawls asserts that even though we do have ‘duties of compassion and humanity’ towards animals and that we should refrain from oppressing them, nonetheless, they are ‘outside the scope of the theory of justice’.
I disagree with Rawl’s elimination of animals from the scope of justice. Animal rights must be thought of as a core social justice issue. That means the term “social justice” should evoke concerns about speciesism and the rights of nonhuman animals, along with issues like the caste system, racism, gender equality, and the like.
Justice for animals in India too fails to find its home. Horror stories of animal-sexual-abuse have cropped up in different parts of India where eight men gang-raped a pregnant goat in Haryana, a man raped a stray dog with its mouth tied, and four men gang-raped, killed and ate a protected lizard.
The Prevention of Cruelty to Animals Act (PCA) in Sec.11(1)(a) generally charges the accused for sexual assault of animals. However, it does not mention the word ‘sexual abuse’ against animals. The acts for the protection of animals are toothless and have meagre penalties. Similarly, the Wildlife Protection Act 1972 remains silent on the same.
CONCLUSION: THE WAY AHEAD
India stands among the top countries of animal welfare globally. However, the past few years have shown a hiatus. To improve and maintain the position, it is the urgent need of the hour to declare Bestiality a cognizable offence under BNS 2023. Considerable reforms and stricter punishments are needed to instil deterrence. The criminals and rapists of animals ought not to go unprosecuted.
After this, the identification of criminals is a tricky problem. Therefore, a systematic modus operandi should be laid to expedite the process. Veterinarians must have the skills to identify and treat the cases of rape against animals. Gross injuries, abrasions, and lesions may be observed in the animal victims, involving areas such as rectum, nipples, scrotum, anus, and vagina. Injuries might show the presence of external harm via foreign bodies. There might be other evidence of non-accidental injuries.
Therefore, there must be meticulous documentation and preservation of evidence in the said cases. The procedures carried out by veterinarians must include intensive examination of the victim animal, collection of swabs for DNA analysis, sampling of vaginal washes, anal washes, rectal washes, and toenails to trace evidence and biological analysis, as well as the use of radiographic studies. Veterinary pathologists should consider bestiality as a possible cause of genital trauma. As many victims are fatal, therefore animals that are killed due to rape must be presented for a complete forensic necropsy.
In Animal Welfare Board v A. Nagaraj, the Supreme Court held that animals too have the right to live with honour and dignity. Moreover, in Karnail Singh v State of Haryana, a revolutionary judgment, the judiciary elevated the matter of animal rights to the extent of fundamental rights.
Moreover, the doctrine of Parens Patriae now includes humans in its ambit, thereby endowing responsibility for those unable to care for themselves. Attention must be given by the state, the judiciary, and the public to these innocuous creatures. Only then would India prosper in its true sense!
Author(s) Name: Sana Alvi (Jamia Hamdard)
