Bye-laws banning pets in apartments unconstitutional; compassion essence of civilisation: Kerala High Court

The Kerala High Court on Tuesday held that clauses in bye-laws or agreements of residential societies that absolutely prohibit persons from keeping a pet of their choice in their houses/ flats where they reside should be treated as void, unconstitutional and unenforceable in law. [People for Animals v State of Kerala].A Division Bench of Justices AK Jayasankaran Nambiar and Gopinath P passed the order on a public interest litigation petition filed by People for Animals, through advocate Bhanu Thilak, challenging the practice of bye-laws of residential societies prohibiting residents from keeping pets of their choice in their individual apartments.The Court ordered all residential associations to desist from putting up notices or signs prohibiting pets in their premises."We allow this writ petition by declaring that clauses in any bye-law or agreement, that have the effect of absolutely prohibiting a person from keeping a pet of his/her choice in a residential unit occupied by that person, should be treated as void and unenforceable in law. Consequently, resident owners’ associations and resident welfare associations shall desist from putting up notice boards and signposts prohibiting the keeping or entry of pets in their respective premises. This declaration shall be seen as one operating in rem and this judgment as one covered by Section 41 of the Indian Evidence Act, 1872," the order stated. The Court said that Kerala which calls itself God's own country should not be seen as denying privileges to animals."Our coastal State, that announces itself to be ‘Gods Own Country’ to the visitors who come calling to its shores, cannot be seen denying just privileges to its animal inhabitants," the Court said..The Court did, however, clarify that its order would not preclude such societies from laying down any reasonable condition that pet owners must adhere to while residing in their apartments. It did so with a view to strike a balance between the rights enuring to pet owners and the rights of their neighbours to a life free of any nuisance, which was pointed out as necessary by amicus curiae, advocate Keertivas Giri."While holding such clauses as illegal, unconstitutional and unenforceable, we have to observe that the aforesaid 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 Court said. .The Bench, which had previously taken up the matter of animal welfare suo motu In Re: Bruno, reiterated their stance that the long term goal of the State must be to improve the attitude of the citizenry towards animals by inculcating them with compassion and empathy for other beings from a young age."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 civilisation and we must strive to preserve these values as part of our culture. It is often an inadequate understanding of the subject that fuels one’s intolerance to that ‘other’ and hence the State and its institutions of governance must take appropriate measures to inculcate a spirit of accommodation towards animals amongst our people, preferably by introducing animal awareness programmes at the school level in the State," the judgment said..The Court also observed with disappointment that the animal rights jurisprudence in India has been a retrograde one.However, it noted that the Supreme Court in the 'jallikattu' judgement had held that the provisions of the Prevention of Cruelty to Animals Act (PCA) have to be interpreted in the backdrop of the fundamental duties prescribed under our Constitution and animals should, therefore, be seen as having certain rights, corresponding to the duties prescribed for human beings. .Sections 3 and 11 of the PCA Act recognises five freedoms as inherent in all animals Freedom from hunger, thirst and malnutritionFreedom from fear and distressFreedom from physical and thermal discomfortFreedom from pain, injury and diseaseFreedom to express normal patterns of behaviour.The Court opined that even within the limits of animal welfare recognised under the PCA Act, the duty cast on citizens to respect the five freedoms is of sufficiently wide ambit as to require them to refrain from interfering with another persons right to keep a pet of his choice..It also adverted to the decision of the Kerala High Court in Prakash v State of Kerala in which the Court had found that citizens’ choice to rear pets is traceable to their fundamental right to privacy under Article 21 of the Constitution..The Court, therefore, held that bye laws that contravene such provisions are illegal. "The clauses in bye-laws or agreements entered into with owners of residential apartments cannot have the effect of negating the fundamental rights of citizens of our country," the judgment emphasised..During the course of the case, advocate Jaishankar V Nair appearing for the Animal Welfare Board of India, submitted that the Board had, in 2015, issued certain guidelines on this subject.The Court suggested that the said guidelines, which have been extracted in the judgement, could be adopted by the resident associations while stipulating conditions for the maintenance of pets in apartments. .The Court also directed the State Government to take immediate steps to issue necessary instructions to the newly re-constituted State Animal Welfare Board, the administrative departments of the State, and to its law enforcement agencies, so that any complaints brought to their notice by citizens, as regards infringement of the rights declared in this judgment receive immediate attention and resolution. .[Read Judgment]