Good legal article on Criminalization of Animal Rape

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• Archit Uniyal
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3rd Year Student at Jindal Global Law School

• Dehradun, Uttaranchal, India 

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    Why Animal Rape should be Criminalized

On 17^th November 2018 in Malwani area, Mumbai, 4 men who were reportedly drugged brutally gang raped a male dog, leaving him with mutilated genitalia. The dog was found the next day bleeding heavily and when a woman tried to offer him food, he started yelling and won’t let anyone touch him. The woman was informed by an auto driver that when he found the dog, his mouth was gagged, and front legs were tied while being sexually tortured. The dog succumbed to the injuries on 21^st November.

Cruelty against animals

Article 11(1)(a) of the Prevention of Cruelty to Animals (1960) defines animal cruelty as - When any person― (a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animal to be so treated.

Section 377 of the Indian Penal Code (1860) defines unnatural offences – a person shall be punished with imprisonment for life or for a term that may extend to 10 years if has voluntary carnal intercourse against an animal.

However, the intercourse here was not voluntary as clearly the private parts couldn’t have been mutilated in such a way unless someone forcibly did it. Also, it is visible that someone tried to fold its hind legs near the pelvis. Involuntary intercourse amounts to rape under section 375 but the section has no provision for rape of animals.

And this is not the 1^st case of bestiality in India as earlier in July 2018, in Haryana, eight men had raped a pregnant goat because of which the animal died. A 30 year old man was accused of sexually assaulting puppies in Chennai, and a 22 year old was arrested for raping and killing a female dog in Hyderabad. Such cases of cruelty to animals have signified the need for harsher penalties for crimes against animals and either section 377 of IPC or Section 11 of the PCA has to be modified.

Protection of animal rights in India

-          Article 51A of the Constitution of India (1950) places a fundamental duty on every citizen to “protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.”

-          Article 48A of the Constitution states that it’s the fundamental duty of the state to “endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”

-          The Government of India enacted Wildlife (Protection) Act 1972 was enacted for protection of animals and extends to the whole of India.

-          The IPC states that ‘Killing, maiming, poisoning or rendering useless of any animal is punishable by imprisonment for up to two years or with fine or with both, under Section 428 of the Indian Penal Code, 1860. Under Section 429 of the Code, the term is 5 years and is applicable when the cost of the animal is above 50 Rs.

Why Intercourse with an Animal should be considered rape?

Article 21 of the Constitution, while safeguarding the rights of humans, also protects life which has been given an expanded definition which includes all forms of life, including animal life, within the meaning of Article 21 of the Constitution. Regarding animals, “life” doesn’t mean mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity.

In recent judgements, the High Court of Uttarakhand, Punjab and Haryana High court said that animals the same rights as humans and granted the animals status of a ‘legal person or entity’ in order to protect them and improve their welfare. The Supreme Court in a case in 2014, held that animal welfare laws have to be interpreted keeping in mind the welfare of animals the best interest of the species subject to just exceptions out of human necessity.

Acts of cruelty against animals like this one indicate a deep mental disturbance and certain psychological and criminology reports have stated that such traits appear regularly in the records of people who commit acts like these and would later go on and inflict the same pain on humans, raping and murdering them.  In the case Muhammed Ameer-ul Islam vs State of Kerala, the accused Ameer was sentenced to death for murdering and raping Jisha, a law student in Kerala. It was found out that the accused has had history of raping and killing goats and dogs.

So as now animals enjoy the same basic rights as the human does, the rape of dogs etc like in the following case should be considered a crime similar to that of a rape of human and therefore should fall under section 375 IPC so that animals can be safe in the country. Changes should be made to PCA act and 5 internationally recognized freedom like (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, should be added to it and safeguarded by the state.

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