– Parth Maniktala*
Part I of the article introduces the changing judicial landscape of animal rights. It analyses the negative impact of zoos on the physical and mental well-being of animals. It then explores the anti-zoo philosophy espoused in a recent judgment of the Islamabad High Court. Part II of the article critiques the traditional justifications for animal captivity in zoos. It further juxtaposes these justifications with an emerging anti-captivity jurisprudence.
“The animals of the world exist for their own reasons. They were not made for humans any more than black people were made for white, or women created for men.”
– Alice Walker quoted in Marjorie Spiegel, The Dreaded Comparison: Human and Animal Slavery(1997).
Courts across the world are recognising – in varying degrees and contexts – that nonhuman animals[I] have rights that deserve legal protection. The New York State Supreme Court, Appellate Division, Fourth Judicial Department, recently declared, “it is common knowledge that personhood can and sometimes does attach to nonhuman entities like . . . animals.”[ii] Similarly, the Indian Supreme Court’s landmark judgment in Animal Welfare Board of India v. A. Nagaraja (‘Nagaraja’) held that “life” under Art. 21 of the Constitution was not just confined to human life, but also extended to animals.
These developments mark a significant shift in the legal status of animals. Across jurisdictions, entities are classified in a binary fashion: as either personsor things. Whereas persons have the capacity to have rights, things lack the capacity for any legal rights at all. Animals have traditionally been regarded as things — a classification that has severely inhibited the protection of their most foundational interests. However, the aforementioned judicial developments hint towards a re-characterisation of animals as beings with inherent value and rights.
This evolution in the judicial understanding of animal rights can be traced well through courts’ engagement with the issue of animal captivity in zoos. We see contrasting approaches to this issue in two judgments – separated by a gap of two decades. The first judgment, delivered by the Kerala High Court in 2000, sought to justify the existence of zoos by citing benefits of human education and species conservation. The second judgment, delivered by the Islamabad High Court this year, views zoos as antithetical to the very dignity and autonomy of animal lives.
This article seeks to build on the vision of the Islamabad High Court. But for any meaningful assessment of the compatibility of zoos with animal welfare, we must first observe certain crucial facets of animal life. Animals don’t just have the ability to feel physical pain, but also have rich emotional and mental lives– this means they have the capacity for complex thoughts and experiences. As a result, they have the ability to build friendships, the desire to stay with family, the willingness to lead fulfilling lives in their natural habitat, and so on. When subjected to captivity and isolation, animals experience fear, anxiety, frustration, loneliness, and grief. These features of animal life underlie the claims I build upon in this article.
I argue that by separating animals from their natural habitats, shattering their familial bonds, depriving them of bodily liberty, and forbidding their autonomous life choices, zoos contravene our ethical and legal commitments to safeguarding animal dignity and welfare.
I begin by analysing the functioning of zoos, and how they significantly undermine animal welfare (II). I proceed to examine the recent judgment delivered by the Islamabad High Court that challenges the legal and moral legitimacy of animal captivity in zoos (III). I then compare the anti-zoo philosophy espoused by the Islamabad High Court with the justifications previously offered by the Kerala High Court for keeping animals confined to zoos. Here, I evaluate the Kerala HC’s claim that zoos advance educational and conservational purposes (IV). I then subject these claims to the judicial doctrine of proportionality – to assess whether they provide a valid justification for the continued existence of zoos (V). Finally, I argue that zoos fall foul of the emerging anti-captivity jurisprudence, and must be outlawed soon (VI).
Zoos capture animals, often violently, from the wild to put them on display for the public. They are separated from their families as babies and subjected to a life of indefinite confinement. Zoos prevent animals from doing things that are most fundamental and natural to them, such as running, roaming, flying, climbing, foraging, choosing a partner, and being with others of their own kind. Many of these animals are prone to roam far and wide in the wild. In an average year, polar bears have a million times more space to roam in their natural habitat, than they do at zoos. Such intense confinement not only has significant psychological repercussions, but also impacts the life expectancy of animals. A survey of the records of 4,500 elephants both in the wild and in captivity found that the median life span for an African elephant in a zoo was 16.9 years, whereas African elephants on a nature preserve died of natural causes at a median age of 56 years.
Zoos function to lure crowds, and for that they often rely on young animals that are attractive and “cute”. On the other hand, animals that grow old, or are no longer useful for breeding purposes, are routinely traded, lent, or sold off by the zoo management. According to Carole Baskin, founder of Big Cat Rescue, a large number of these “surplus animals” end up with “private breeders, pet owners, circuses, roadside zoos, and canned hunting ranches.” Alternatively, these animals are euthanised (even though they may have several life-years left). In one such case, Marius, an 18-month-old giraffe, was shot in the head by a vet at the CopenhagenZoo – because they considered him “useless for breeding”.
The 2012 Cambridge Declaration on Animal Consciousness confirmed the scientific consensus that a wide range of animals are indeed sentient and experience their world consciously. Elephants have even passed the mirror self-recognition test, suggesting that they possess self-awareness.[iii] The fact of animal consciousness and self-awareness refutes any belief that animals are unthinking beings. Rather, as Tom Regan argues, “[A]nimals are not only in the world, but they are also aware of it—and of what happens to them. And what happens to them matters to them.” As a corollary, when animals are denied their behavioural needs in highly restrictive environments, like zoos, they develop neurotic and self-harming behaviours (such as ‘Stereotypies’ and ‘Zoochosis’) that are rarely, if ever, observed in the wild.
‘Stereotypies’ are characterised as movements that are abnormal, repetitive, and seemingly have no function or goal. Several zoo animals demonstrate this: elephants often sway back and forth, tigers pace incessantly, and polar bears are routinely seen swimming endless figure-eights. ‘Zoochosis’, or psychosis caused by confinement, is another form of atypical behaviour among zoo animals that manifests itself in bar biting, self-mutilation, eating and playing with faeces, and vomiting. Such behavioural abnormalities are viewed as signs of psychological distress in animals, andare a testament to the damaging effect zoos have on their mental health. Both these neurotic conditions arise as a result of boredom, depression, frustration, impaired brain function, a lack of mental or physical enrichment, and removal from the animal’s natural habitat and social structures.
In response to the coronavirus (COVID-19) outbreak, governments across the world imposed lockdowns and required their citizenry to self-isolate. One of the fallouts of individuals having to practice ‘social-distancing’ was a rise in mental health issues. Many quarantined individuals reported mental health concerns including depression, anxiety, insomnia, and emotional exhaustion. It is thus no surprise that animals, who enjoy a rich mental life, are equally capable of developing similar feelings of stress, anxiety, and grief — motivated by the life-long isolation and captivity they are subjected to.
On the whole, zoos have a profoundly negative impact on the physical, mental, and emotional well-being of animals.
The Islamabad High Court Judgment
On May 21, 2020, the Islamabad High Court in Pakistan passed a landmark judgment affirming the rights of nonhuman animals (Islamabad Wildlife Management Board v. Metropolitan Corporation Islamabad). The case originated on the basis of three petitions, filed on behalf of diverse species. The primary issue before the Court was the treatment and living conditions of captive animals at the Marghazar Zoo, in the Federal Territory of Islamabad. A specific prayer had been sought to relocate an Asian elephant named Kaavan to a sanctuary.
The judgment is significant since the Court “without any hesitation” extended legal rights to nonhuman animals. The Court equated legal rights with natural rights, and proceeded to hold that “Life… is the premise of the existence of a right.” Therefore, insofar as animals are living, sentient, and possess the capacity to feel pain or joy, the State had a positive obligation to protect their rights.
Based on the reports submitted by the amicus curiae, as well as the Wildlife Management Board, the Court observed that Kaavan had been kept chained in a small enclosure for over three decades. He was neglected, isolated, and suffering from profound loneliness and distress. The Court noted that other animals also suffered a similar plight. The marsh crocodile was confined in an area so small that she could hardly move. The lions were malnourished. The birds could not even perch because of the inadequately constructed cages. Two brown bears were kept in extremely small enclosures. Their health, hygiene, and food requirements were severely neglected. On the whole, the animals were kept in terrible conditions, and the Court found their treatment to be in contravention of Pakistan’s Prevention of Cruelty to Animals Act, 1890.[iv] Notably, Section 3 of the Act penalises causing “unnecessary pain or suffering” to animals. Further, the Court observed that the Act is a beneficial statute for animals, and its provisions must be interpreted widely – so as to safeguard animal interests.
However, the Court’s analysis was not just confined to the appalling condition of animals in the Marghazar Zoo; rather, the Court advanced an emphatic anti-zoo philosophy that questioned the legal and moral legitimacy of confining animals in zoos in the first place. The Court observed that “Zoos do not serve any purpose except to display their living inmates as exhibits to visitors.” It embarked on an ethological analysis to observe that several animals thrive in social structures and communities. Zoos deprive animals of their natural habitat, causing them “pain, distress and agony”. The Court noted that keeping animals in captivity “is not what has been contemplated by nature,” and “[h]umans cannot arrogate to themselves a right…of enslaving or subjugating an animal because the latter has been born free for some specific purposes.”
This analysis is crucial since it confronts the dominant assumption of animals being mere resources that can be instrumentalised for human pleasure or benefit. The recognition that animal enslavement is “unnatural” can pave way for future challenges to various forms of animal subjugation – including scientific experimentation on animals, factory farming, and the like.
Consistent with global animal protection jurisprudence (see Brazil and India), the Islamabad HC demonstrated sympathy for the lived experiences of nonhuman animals. In the context of elephants, the Court observed, “They feel pain, distress, happiness as well as sadness. The birth of a baby elephant is celebrated, while they cry and mourn the death of a member of the herd.” Significantly, it was noted that each species has their own natural habitat, which is essential for the fulfilment of their “behavioural, social and physiological needs”. Recognising that Kaavan was lonely and the extent of his suffering in the Zoo was “unimaginable”, the Court ordered that he be relocated to an elephant sanctuary. Additionally, the Court directed that all the remaining animals in the Zoo also be relocated to their respective sanctuaries; and no new animals be kept at the Zoo until a reputable international organization, specializing in matters relating to zoos, certifies that the facilities and resources at the Zoo are sufficient to cater to the needs of the animals.[v]
Since the legality of keeping animals in zoos was not in issue before the Court, the Court refrained from making any final pronouncement on that subject. Nevertheless, the judgment is a huge step forward in recognising the incompatibility of zoos with the most foundational instincts and needs of animals.
* Parth Maniktala is a III year LL.B. student at the Faculty of Law, University of Delhi. He is passionate about animal law, and has served as a research assistant on FIAPO’s Animal Cruelty Report.
[i]For the purpose of this article, the terms ‘animals’ and ‘nonhuman animals’ have been used interchangeably. The term ‘nonhuman animals’ is commonly used in animal rights discourse for its taxonomical correctness (since humans are, after all, a part of kingdom ‘Animalia’), and to challenge the speciesist assumption of animals being fundamentally different, and consequently inferior, to humans.
[ii]Personhood represents the capacity to possess legal rights. Current legal frameworks recognise personhood for both natural and juristic persons (for example, humans and companies, respectively). See, David Bilchitz, ‘Moving Beyond Arbitrariness: The Legal Personhood and Dignity of Non-Human Animals’ South African Journal on Human Rights(2009).
[iii]“Consciousness is awareness of your body and your environment; self-awareness is recognition of that consciousness—not only understanding that you exist but further comprehending that you are aware of your existence.” See, Ferris Jabr, ‘Self-Awareness with a Simple Brain’ Scientific American Mind (Nov. 1, 2012).
[iv]There is some ambiguity as to whether all animals at the Zoo were living in such poor conditions, or only those animals that were specifically mentioned by the Court. Nevertheless, since, in the final directions, the Court ordered the relocation of all the animals, it is reasonable to presume that the inadequate living conditions were applicable to all of them.
[v]This final direction, insofar as it permits the future reintroduction of animals to the Zoo, may seem at odds with the larger anti-zoo philosophy espoused by the Court. However, we must note that the Court wasn’t asked to adjudicate on the overall legality of zoos. Therefore, any direction against animal captivity in zoos – in toto – would have exceeded the Court’s jurisdiction.