– 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 N.R. Nair Rationale
Section 38A of the Indian Wildlife (Protection) Act, 1972 provides for the establishment of the Central Zoo Authority (CZA). As per Section 38H, no zoo shall operate in India without recognition of the CZA. Further, Section 27 of the Indian Prevention of Cruelty to Animals Act, 1960 exempts ‘zoological gardens’ from the application of the provisions that regulate the exhibition and training of animals.
Article 51A(g) of the Indian Constitution enjoins all citizens “to have compassion for living creatures”. Indian courts have not squarely been confronted with the question of whether the aforementioned provisions – that allow for the establishment and exoneration of zoos – fall foul of our constitutional commitment to have “compassion” for animals.[I] The closest an Indian court has come to examining the legality of zoos was in N.R. Nair v. Union of India.
In this case, the Kerala High Court had to adjudicate on the validity of the 1991 notification issued by the Government of India banning the training and exhibition of five circus animals, viz. bears, monkeys, tigers, panthers, and dogs. One of the contentions raised by the petitioners was that the notification is discriminatory insofar as it only bans the exhibition and training of animals in circuses, without applying similar restrictions on zoos.
Rejecting this contention, the Court argued that such a comparison was “unrealistic and inexpedient”. Whereas circuses are focused on monetary gain through entertainment, zoos “are meant for conservation and education purpose”. The Court further buttressed its position by claiming that captive breeding in zoos “helps animals to proliferate their species in protection…” Consequently, the Court held that “zoos help in preventing the extinction of the said species.”
The Kerala HC’s reasoning in support of zoos can be classified into two heads:
(a) Educational purpose; and
(b) Species conservation.
I shall examine the soundness of both these reasons.
(a) Educational Purpose
To argue that animals should be subject to captivity to satisfy human educational and informational needs is to relegate animals to the status of ‘things’, that may be utilised to meet human ends. This contravenes the growing legal consensus that animals do, in fact, possess intrinsic worth. Section 3 of the Animal Welfare Act, 2010 (Norway) states “Animals have an intrinsic value which is irrespective of the usable value they may have for man.” This position was affirmed by the Indian Supreme Court in Nagaraja, where it was held that “So far as animals are concerned… ‘life’ means something more than mere survival or existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity.” Given the acknowledgment that animals are not meant to be instrumentalised to serve human ends, it is patently unjust to keep them imprisoned for human educational benefits.
There has been some research that argues that such education is indirectly beneficial for animals, as zoos sensitise visitors about conservation issues. However, it has been admitted – in the same study – that there is a significant dearth of “peer-reviewed, published research that compares zoo visitors to non-visitors.” In the absence of specific studies that compare the two, it would be difficult to reach any well-founded conclusions about the effectiveness of zoos in promoting conservational attitudes.
Another study conducted by the American Zoo and Aquarium Association (AZA) claims that zoos produce long-term positive effects on people’s attitudes toward animals. However, this study has been debunked on grounds of several methodological fallacies. In particular, this study never analysed attitudes that might have worsened as a result of the zoo and aquarium experience. The authors, for instance, did not include questions assessing the extent to which zoo visitors viewed animals as objects of entertainment rather than conservation – a change that would indisputably be counted as negative.
Several scholars have challenged the argument that zoos promote conservational attitudes. The underlying premise of this argument is that zoos – through a combination of interaction and knowledge – help cultivate an appreciation for wildlife, which subsequently translates into conservation efforts. However, as Donaldson and Kymlicka posit, zoos rather entrench the human-animal divide – “They teach children that animals don’t have a right to freedom or privacy, or indeed any fundamental right to live their own lives. They teach children that the very people celebrated as animal experts and caregivers are the same people who casually divide captive animal families and friendships, kill animals who are ‘surplus to requirements’ and, in some cases, punish animals into…performing as desired.”
The above-mentioned analysis is important since it counters the fundamental assumption that zoos foster admiration and respect for animals. There is, admittedly, a lack of research examining the long-term impacts of viewing animals captive in zoos. However, we cannot overlook the possibility that zoos may – for several visitors – normalise the notion that animal captivity is justified to serve human ends. Such ideas are central in perpetuating an anthropocentric worldview, and may be counterproductive for conservational efforts in the long run. This is because conservational efforts require individuals to shed notions of human supremacy, and promote measures such as habitat conservation — even if they come at the cost of human development. By reiterating the human-animal hierarchy, zoos may in fact inhibit conservation efforts; additionally they may legitimise other forms of animal subjugation (for instance, scientific experiments on animals, using animals for entertainment and bloodsports, and so on).
The Islamabad HC, in Islamabad Wildlife Management Board, was similarly conscious of the perils of zoos. The Court observed that as opposed to providing “an opportunity to study the animals,” zoos adversely affect the psyche of the visitors. It further went on to hold that “[T]he Zoo does not make any positive contribution whatsoever to the society. With the advancement of technology there are far better and more informative opportunities to observe and gain knowledge about the animal species.”
Although the Court did not give examples, several alternatives are emerging – that impart valuable education about wild animals, without subscribing to the captivity-model of zoos. Many sanctuaries allow for educational tours, where visitors observe animals from a distance, while the animals stay in a habitat more natural to them. This prevents the animals from being teased, harassed, or tormented by visitors. There are also wildlife documentaries that convey essential knowledge about animal lives and behaviours, as seen in their natural homes. More recently, theatres have started offering films such as Born to Be Wild 3D– which document the lives of orphaned orangutans and elephants, and the remarkable efforts of those who rescue them.
(b) Species Conservation
The argument that zoos enable species conservation is increasingly losing ground. In the United States, it is estimated that accredited zoos allocate less than 3 percent of their budgets towards conservation efforts. On the other hand, they spend billions of dollars every year on high-tech exhibits and marketing efforts to lure visitors.
Even for the endangered animals, breeding programs are often unsuccessful due to the unnatural settings, as well as the stress that the animals are forced to reproduce in. A five-year, $2.3 million campaign by the AZA to establish a captive breeding programme for the Sumatran rhinoceros collapsed in 1993 without producing a single birth or protecting any wild rhinos.[ii] Conservationists point out that animals held at zoos are too inbred to be useful in maintaining a genetically diverse species. In some cases, lack of diversity in the mating pool has caused high levels of stillbirths and infant mortality. A report in the journal of Mammalian Biology analysed the effects of captive breeding in European zoos. It found that 35 of the 57 lion cubs born between 2007 and 2009 died within twenty days of birth.
Animals raised through captive breeding in zoos are rarely re-introduced back into the wild. As per Benjamin Beck, former Associate Director of Biological Programs at the National Zoo in Washington, D.C., only 16 of the 145 reintroduction programmes worldwide actually restored any animal populations to the wild. Of those, most were carried out by government agencies, not zoos.[iii]
Several factors make reintroduction difficult. Songbirds, for instance, are very difficult to reintroduce to their natural habitat because they are supposed to be taught the local “language” by their peers in the wild. They cannot learn this in captivity, and are therefore difficult to rehabilitate. Moreover, animals reared in zoos are denied the opportunity to develop survival skills, and can also transmit certain diseases to their wild counterparts. This means that instead of revitalising dying animal species in their natural habitat, zoos entrench systems of perpetual confinement for them.
Ultimately, rehabilitation through captive breeding is likely to be ineffectual if the natural habitats of animals are not preserved. The case of the Great Indian Bustard, a critically endangered species, serves as a good example. Owing to agricultural intensification, mining and quarrying, and hunting, their population had declined from an estimated 1260 in 1969 to 100–300 by 2010. However, as opposed to implementing in situconservation efforts, the Indian government decided to launch a ‘conservation breeding programme’ for the species. But as Dr. Dolman pointed out, “Ten years of effective habitat conservation measures, leaving eggs in the wild and not attempting captive breeding, would result in more adults in the wild than if those eggs were harvested to set up a captive breeding population.” Comparisons with similar birds released from zoos also suggest that captive-bred bustards would fare poorly upon reintroduction, dying young, and failing to reproduce.
To sum up, zoos rely on the captive breeding model of species conservation. However, captive breeding fails to create a robust animal population due to situational stressors and high rates of inbreeding. Even where captive breeding is successful, reintroducing animals back to their natural habitats often proves difficult. As opposed to directing resources towards captive breeding in zoos, we must invest in habitat conservation efforts – since those are more effective in ensuring species survival.
Applying the Proportionality Doctrine
The aforementioned analysis clearly demonstrates that zoos are inadequate at achieving the two purposes the Kerala HC had deemed them competent for. However, even if we were to assume that zoos help realise educational and conservational efforts, would that be sufficient to justify indefinite animal captivity? The Supreme Court of India has consistently adopted the proportionality doctrine as a standard of review for State action that encroaches on constitutionally recognised rights. In this case, such State action would be legislations that permit animal captivity in zoos. Animal rights scholar, David Bilchitz has also posited that when assessing the validity of measures that impose suffering on animals, or detract from their basic rights, we must employ the doctrine of proportionality.
But to correctly invoke the proportionality doctrine, we must first assess if animals have any constitutionally protected rights. The answer is in the affirmative; the Supreme Court in Nagaraja declared that “Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life which are necessary for human life, fall within the meaning of Article 21 of the Constitution.” The Uttarakhand High Court has also held that “The animals including avian and aquatics have a right to life and bodily integrity, honour and dignity.” Therefore, it cannot be gainsaid that animals possess certain foundational rights within our legal framework.
Applying the ‘proportionality’ doctrine to zoos, we must first determine whether there is a legitimate goal of sufficient importance to warrant overriding animal rights (‘legitimate goal’ stage). Second, whether zoos offer suitable means of furthering this goal (‘rational connection’ stage). Third, we must examine if there is any less restrictive but substantially effective alternative to achieving this goal (‘necessity’ stage). And lastly, we must evaluate if zoos have a disproportionate impact on the welfare and rights of captive animals (‘balancing’ stage).
I will separately subject the two traditional justifications for zoos – human education and species conservation – to the test of proportionality.
First, human education. I concede that humans learning about the animal world is ostensibly a legitimate goal. But we must refine our enquiry a bit; it is crucial to ask human education to what end? If it is education aimed at reinforcing a speciesist world view, then I would argue that it falls foul of the ‘legitimate goal’ prong (the same way that education that is racist or sexist would).[iv] However, if the education is intended for fostering positive attitudes towards nonhuman animals (for instance, instilling empathy or admiration, or promoting conservational attitudes and animal care), then it would satisfy the ‘legitimate goal’ stage. However, such education would fail the ‘rational connection’ and ‘necessity’ prongs. For reasons discussed above, there is “no compelling evidence for the claim that zoos and aquariums promote attitude change, education, or interest in conservation in visitors.” In fact, studies have found that the average visitor spends 30 seconds to two minutes at an enclosure, and that most visitors do not read the labels at exhibits. Therefore, it is unclear if there is a rational connection between zoos and the promotion of positive attitudes towards animals. Further, there are alternative measures that help impart positive education about animals, without subjecting them to stifling captivity. And hence, the ‘necessity’ prong is also not satisfied.
With respect to the second justification for zoos, admittedly, conserving endangered animal species is a legitimate goal. However, zoos fail the ‘rational connection’ stage, since they do not necessarily further the aim of species conservation (for previously discussed reasons). Further, there is an equally, if not more, effective alternative for conservation — in sanctuaries. Sanctuaries more accurately replicate the natural habitats of animals, providing them plenty of space, as well as the ability to become part of social groups. By creating a more organic environment, sanctuaries have helped stabilise dwindling animal populations. Zoos, therefore, fail to satisfy the ‘necessity’ stage as well. Moreover, if the purpose of zoos is conserving endangered animal species, then there is no reason to hold non-endangered species (which constitute a majority of the zoo population) captive.
Zoos deprive animals of their natural habitat and social structures, cause them to develop neurotic and self-harming behaviours, in many cases decrease animals’ life expectancy, and entrench the human-animal divide. In contrast, the benefits of zoos are minimal (in case of human education) or uncertain (with regard to species conservation). For these reasons, zoos fail the ‘balancing’ stage, and patently have a disproportionate impact on animal rights.
An Emerging Anti-Captivity Jurisprudence
Courts across the world are contributing to a significant anti-captivity jurisprudence. In November 2016, a court in Argentina ordered that Cecilia, a female chimpanzee, who had lived in captivity in the Ciudad de Mandoza Zoo, be freed. The Court acknowledged that animals “are living sentient beings, with legal personhood and that among other rights, they are assisted by the fundamental right to be born, to live, grow and die in the proper environment for their species.”
In 2017, the Colombian Supreme Court entertained a writ of habeas corpus filed on behalf of Chucho, a spectacled bear, and ordered his rehabilitation from the Barranquilla Zoo to a wildlife reserve. In doing so, the Court held that “nonhuman animals are entitled to freedom, to live a natural life, to prosper with the least possible pain and to lead a life with the standards that suit their status and condition, but essentially in a responsibly preserved habitat in the biotic chain.”[v]
In India, despite N.R. Nair’s limited exploration of the perils of animal captivity in zoos, policy-makers and the judiciary have shown traces of a progressive anti-captivity jurisprudence.[vi]
In a 2013 policy statement, the Indian Ministry of Environment and Forests declared that all cetaceans (this includes dolphins, porpoises and whales) are ‘non-human persons’. The statement stipulated that “cetaceans in general are highly intelligent and sensitive,” they “do not survive well in captivity,” and that confining them “can seriously compromise the welfare and survival of all types of cetaceans, by altering their behaviour and causing extreme distress”. It was ordered that any proposal to establish a dolphinarium should be rejected by the state governments.
In Nagaraja, the SC enumerated five freedoms that were described as the equivalent of Part III rights for animals. These included, inter alia, freedom from physical and thermal discomfort, and freedom to express normal patterns of behaviour. In People for Animals v. Md. Mohazzim, the Delhi HC was dealing with a case of confinement of birds in small cages and their sale in commercial markets. The Court held that “All the birds have fundamental rights to fly in the sky and all human beings have no right to keep them in small cages for the purposes of their business or otherwise.” More recently, in Mr. Saddam v. Union of India, the Delhi HC rejected the claim of a mahout to regain “possession” of elephant Lakshmi. The Court recognised that only the “jungle is the natural habitat of an elephant”. The Court further held that Lakshmi cannot be entrusted as a “slave” to the mahout and relegated to a life of “an uncomfortable environment against her rights and interests”.
There are several crucial takeaways from this jurisprudence. First, it is being acknowledged that animals are sentient, intelligent, and sensitive; and, as a result, captivity can seriously jeopardise their health and welfare. Second, this jurisprudence is founded on the key belief that animals have a right to belong in their natural environments and indulge in behaviours that are intrinsic to them. Finally, it is being recognised that human claims of pleasure, amusement, or even business are not sufficient to override these basic rights of animals. On a cumulative application of these propositions, we can conclude that zoos fall foul of the emerging anti-captivity jurisprudence – since they impose stifling captivity on animals, in blatant disregard of their sentience, natural inclinations, and basic rights. Therefore, the correct legal and moral course forward is to outlaw zoos.
Over 40 years ago, Carl Sagan had asked, why across the world – in almost every “civilised” nation – are innocent animals in prison? There was no good answer then, and there is none now.Things that we consider so fundamental to human life – autonomy, dignity, bodily liberty, the right to live with one’s family, and so on, are all denied to animals for no reason, except that they belong to a species different from ours.
Through this article, I have argued that zoos constitute a grave assault on the most basic rights and interests of animals. I have highlighted the lacunae in traditional justifications for animal captivity in zoos, namely the benefits of human education and species conservation. I have further demonstrated how these arguments fail to satisfy the proportionality doctrine. The continued existence of zoos contravenes our constitutional commitment “to have compassion for living creatures”. It is also inconsistent with an emerging jurisprudence that recognises the inherent dignity and rights of animals. For all these reasons, zoos must be outlawed. True appreciation of the magnificence of the animal world can never come about by keeping them captive. For that, they must be set free.
* 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] Although Part IVA of the Constitution is not legally enforceable, the Supreme Court has recognised it as placing a constitutional obligation upon the citizens and the State. Part IVA is to be used by courts to check “State action drifting away from constitutional values”. Further, courts must try and interpret Part III, IV, and IVA of the Constitution in light of each other. See, AIIMS Students’ Union v. AIIMS, (2002) 1 SCC 428; Ramlila Maidan Incident, re, (2012) 5 SCC 1.
[ii] For detailed analysis of the failures of this captive breeding programme, see ThomasFoose, Nico Van Strien, ‘Asian Rhinos – Status Survey and Conservation Action Plan’ IUCN(1997).
[iii] For a host of reasons discussed already, reintroduction programmes led by zoos are relatively unsuccessful. These include unnatural settings for mating, lack of diversity in the gene pool, zoo animals not possessing adequate survival skills, and so on.
[iv] The ‘legitimate goal’ stage requires an enquiry into the normative legitimacy of the objective. See, Tarunabh Khaitan, ‘Equality: Legislative Review under Article 14’ in Sujit Choudhry, Pratap Mehta, and Madhav Khosla (eds),The Oxford Handbook of Indian Constitutional Law (OUP 2016).
[v] This decision is in appeal and is being heard by a nine-judge bench of the Constitutional Court of Colombia.
[vi] Although the Kerala HC, in N.R. Nair, fails to meaningfully engage with animal captivity in zoos, the judgment is largely progressive in its analysis of the cruelty inflicted on animals in circuses.