Akshay Singh and Yatan Kwatra
How can India break the policy deadlock to phase out the use of battery cages?
In the wake of the recent discovery by China’s National Health Commission reporting the first case of human infection with the H10N3 strain of bird flu, the issue of the continued maltreatment of birds resulting in contraction of certain strains of bird flu is back into the spotlight yet again. Several researches have highlighted the possibility of stocking chickens in battery cages engendering clusters of pathogens leading to the spread of viruses like H5N1(Avian Influenza). Incidentally, the world has not been oblivious to cases where bird flu has led to the death of human beings, marking the importance of a considered and immediate relook at the issue especially when the world is facing a raging pandemic based on a virus which has the tendency to transmit itself from birds to humans.
Even so, there has been no expedient and sincere engagement to permanently ban the use of battery cages in India, despite the fact that it involves huge ethico-moral issues and has been already declared as illegal by the Animal Welfare Board of India. Hence, this piece is an attempt to analyse the problem in a comprehensive manner., for which, the authors begin by identifying the meaning of battery cages and the condition of poultry birds made to live therein; thereafter, an analysis of the legal developments in this area is presented alongside the international legal position on the practice of use of battery cages; and finally the piece scrutinizes the roots causes of the problem and concludes by proffering suggestions to break the impasse in order to effectively resolve the matter.
2. What is a “Battery cage”?
The Law Commission of India in its 269th report described “Battery Cages” as:
“The hens used for the production of eggs in the egg industry are reared in small, barren wire cages called ―battery cages, a name given due to the arrangement of cages placed side by side. The battery cages are so small that the animals are unable to stand up straight or spread their wings without touching the sides of the cage or other hens or turning in a complete circle without any impediment.”
The Law Commission further noted that, in India, a typical cage holds 5-10 birds and the space available to each bird in these battery cages is approximately 623.7 cm2 which is equivalent to an A4-sized sheet. This method of stocking hens is particularly alarming and merits active consideration as the cages are mostly overcrowded in India, ultimately leading to complications such as sore feet, minor-to-major abrasions, skin irritation, broken bones, and a high risk of diseases in birds. The worrying magnitude to which the problem can rise is highlighted by the fact that in Kerala the cases of bird flu had burgeoned to such a whopping high number in January that the government had to declare it as a state emergency. Evidently, the seriousness of the issue cannot be overstated as it poses big biosafety and biosecurity concerns in India.
3. Legal developments in past to deal with this issue
3.1 Animal Welfare Board of India’s Unheeded Advisories
The Animal Welfare Board of India, vide letter dated 16.02.2012, issued an advisory to the Central Government as well as the state governments wherein it was pointed out that the confinement of hens in battery cages violates provisions of Section 11(1)(e) of the PCA Act, and recommended the adoption of Draft Prevention of Cruelty to Animals (Egg Laying Hens) Rules, 2012. The relevant part of the letter read as:
“Considering the issue of well-being of egg laying birds as well as food safety, you may be aware that the EU has decided to phase out battery cages for egg laying hens with effect from 1 January, 2012. The AWBI advises the Government of India and the State Governments to issue suitable directions to poultry farmers to prohibit the use of battery cages in egg production, so that poultry farms keeping egg laying hens adhere to the provisions of the Prevention of Cruelty to Animals (PCA) Act, 1960 and not confine birds in cages. The existing cage facilities be phased out within the next 5 years i.e., 2017.
Subsequently, a number of petitions have been filed for the enforcement of the 2012 Rules released by the Board. In AWBI v. Union of India & Anr., by virtue of an order passed by the Hon’ble Supreme Court, on an application filed by the AWBI, all these petitions have been transferred to the Delhi High Court for an authoritative pronouncement on the subject to avoid multiplicity of the proceedings and conflict in judgments. However, despite the apprehensions expressed by the Supreme Court at the time of transferring the petition about the delay in finalizing the rules, the matter still remains pending before the Delhi High Court.
3.2 Law Commission Report
While the litigation over the matter is sub judice, the Law Commission of India, after thorough consultation with all the concerned stakeholders and after evaluating the best practices at the International level, released its 269th report titled “Transportation and House-keeping of Egg-laying hens (layers) and Broiler Chicken” on 31St July, 2017 (“Report”). The Report advocated an absolute and immediate ban on the use of battery cages on the grounds that it is not only in violation of the provisions of the PCA Act, but it also does not square well with the “compassionate approach” that the constitution envisages under Article 51(A)(g). The report concludes with the two sets of draft rules, the Prevention of Cruelty to Animals (Egg Laying Hens) Rules which is a modified version of the 2012 draft rules of the AWBI, and the Prevention of Cruelty to Animals (Broiler Chickens) Rules which is proposed to deal with the treatment of meat-producing chickens.
3.3 Noteworthy Supreme Court and High Court Judgements
In the case of Animal Welfare Board of India v. A. Nagaraja, the Supreme Court held that animals have a right to live with dignity, intrinsic worth and without unnecessary pain and suffering. The Court directed the AWBI and Governments ‘to take steps to prevent the infliction of unnecessary pain or suffering on the animals, since their rights have been statutorily protected under sections 3 and 11 of PCA Act.’
The Gujarat High Court in Abdulkadar Mohamad Azam Sheikh v. State of Gujarat observed that ‘it is the duty of every citizen to see that there is no unnecessary pain or suffering to any animal or bird’. Further, the court observed that every bird/animal has a right to move freely, thereby explicitly precludes the use of any cruel practices that unreasonably restrict such right, including the practice of containing them in battery cages. In addition to this, the Court in Muhammadbhai Jalalbhai Serasiya v. State of Gujarat, held that ‘to keep birds in cages would be tantamount to illegal confinement of the birds which is in violation of the right of the birds to live in free air/sky.’
In S. Kannan v. Commissioner of Police, the Madras High Court held that protection shall be granted to all kinds of birds including poultry against cruelty in any manner, observing that ‘the birds and animals are entitled to co-exist along with human beings’.
The Delhi High Court in the case of People for Animals v. M D Mohazzim & Anr went one step ahead by holding:
“Birds have fundamental rights including the right to live with dignity and they cannot be subjected to cruelty by anyone (…) human beings have no right to keep them in small cages for the purposes of their business or otherwise.”
4. Gauri Maulekhi Judgment
While the litigation is still pending before the Delhi High Court and the legislature is showing no real intent to act on the recommendation made by the Law Commission, the Uttarakhand High Court’s judgment in Mrs. Gauri Maulekhi v. State of Uttarakhand came as a blessing as well as a surprise for many as it, inter alia, banned the use of battery cages in the state with immediate effect. However, before the animal activists could even start celebrating the long-overdue decision, the Supreme Court in the SLP titled Dev Bhumi Poultry Operators Welfare Society v. Gauri Maulekhi & Ors. imposed a stay on it, and transferred and tagged the matter with the litigation pending before the Delhi High Court, taking us back to square one.
One of the arguments raised by the petitioner in the stay application was related to the right to livelihood of the poultry farmers. It was argued that banning battery cages would adversely affect the right to livelihood of such farmers, and therefore keeping their interest in mind, such a ban could not be imposed. However, recently, a similar argument was rejected by Delhi High Court in a matter related to the slaughtering of birds in the Ghazipur Murga Mandi observing that ‘the court cannot permit anything which is contrary to law and the activities are causing water pollution’.
5. Labyrinth of Legislative, Executive and Judicial Inaction
Parliament has enacted The Prevention of Cruelty to Animals Act, 1960 in order to harmonise the prevention of animal cruelty as well as the maintenance of food standards and safety. Since the protection, improvement of stock and prevention of animal diseases is mainly a State subject under the Entry 15 of List II of the Seventh Schedule, there are several state-specific statutes and rules with respect to housekeeping and transport of chickens, for example, the Bombay Diseases of Animals Act, 1948, Gujarat State Poultry Farm Registration and Regulatory Authority Act, 2007, Orissa Animal Contagious Diseases Act 1949, Punjab Livestock and Bird Diseases Act, 1948, Rajasthan Animal Diseases Act, 1959 etc.
However, there is still a requirement for a new law that puts an end to the woes of poultry birds because none of the above legislations is comprehensive enough to address the present issue in an effective manner. In spite of such a long-standing demand, the government has not been able to resolve the issue mainly because of the fact that shifting the poultry industry to other types of modes of stocking birds will involve substantial, if not massive, costs for the big players in the business. Consequently, the government seems to be quite reluctant to make any changes that might not be taken very well by corporates engaged in the business of poultry. The government has also incurred a reprimand from the court for such inaction, but to no avail.
It bears a telling testimony to the dictum that “all animals are equal but some animals are more equal than others” since India has witnessed an unprecedented rise in the efforts to protect cows in the past few years but a similar zeal is absent in issues related to other animals. One must evaluate this ‘animal-friendly but selective approach’ of the government in light of the observations made by Delhi High Court in its order dated 5.09.2018, which must be quoted in extenso here:
“Learned counsel representing the Union of India prays for six months’ time to finalize the draft rules after holding consultation with all the stakeholders. We are of the considered view that the Union of India has been granted sufficient time to finalize the rules. More than a year has passed and till date the rule has not been finalized. Apart from granting 6 weeks’ time to finalize the draft rules, we direct the Union of India to ensure that henceforth no new poultry farms or organizations indulge in using the battery operated cages.”
The 6 weeks’ time period given by the court is long gone as more than two years’ time period has passed since the order of the Delhi High Court, but nothing concrete has come in the form of the draft rules, nor has any further action been taken by the court in this regard. The callous attitude of the executive is an example of how anthropocentric tendencies and speciesism still trump the “compassionate approach” envisaged under the Constitution.
Though much of the responsibility for the prolonged inaction lies with the executive since the Constitution entrusts primary law-enforcement power with the executive, nevertheless, the courts cannot wriggle out of the hook, by shifting the entire blame on the governments, due to the inefficient and sometimes lax manner in which they have dealt with the matter. This is supported by the fact that while the Supreme Court stayed the Uttarakhand High Court’s decision in Gauri Maulekhi (supra) to immediately ban battery cages only because the same has been referred for a consolidated authoritative ruling to Delhi High Court, it overlooked the fact that despite the recommendation of Law Commission and Animal Welfare Board of India (on the basis of which Uttarakhand High court took a proactive role in banning battery cages in the state), the undue delay caused by the competent legislative authority in framing and implementing the guidelines is perpetuating pain, misery and injustice beyond measure.
Further, the order dated 05.09.2018 of the Delhi High Court wherein the court directed the Union of India to ensure that no new poultry farm should indulge in using battery cages is of little value in the absence of any compliance report whatsoever. Internationally also, the issue of compliance with the ban on the use of Battery cages effected in 1999 in Europe was a cause of concern, but serious actions were taken by the European Commission and the European Court of Justice against Greece and others who failed to adhere to the timeline for phasing out the use of battery cages. Evidently, the courts in India as well must turn towards a sterner and more expeditious approach to hold accountable the executive as well the perpetrators still indulging in the practice in order to put an end to the continued ordeal of the birds compelled to live in these battery cages.
6. International Position
World Organization for Animal Health (OIE) is an intergovernmental organization for supporting and promoting animal disease control. It has 182 members including India and works toward attainment of five fundamental freedoms for animal welfare: a) Freedom from hunger, malnutrition and thirst; b) Freedom from fear and distress; c) Freedom from physical and thermal discomfort; d) Freedom from pain, injury and disease; and e) Freedom to express normal patterns of behaviour.
These five rights have assumed special significance in India as well, since they have been accepted and affirmed by the Supreme Court in the Animal Welfare Case. In light of this, it is important to mention that at the international level, a number of countries have either banned the use of battery cages or forged a consensus between all the stakeholders to phase out the use of battery cages by setting up a target year. The following table shows the progress made at the international level with respect to this issue:
Country (Year of Ban)/ Target year to phase out the use
status of ban
It became the first such country to impose such a ban.
Directive 1999/74/EC is legislation passed by the European Union on the minimum standards for keeping egg laying hens which effectively bans conventional battery cages. The directive, passed in 1999, banned conventional battery cages in the EU from 1 January 2012 after a 13-year phase-out. Battery cages were already banned in Germany, Austria, the Netherlands and Sweden prior to 2012.
New Zealand’s Code of Welfare, 2012 imposed a complete ban on the construction of new battery cages. It put a 10-year phaseout of all battery cages in the country by 2022.
Outlawed the use of battery cages and imposed a ban effective from 2012.
As of March 2020, California, Massachusetts, Washington, Michigan, Ohio, and Rhode Island had passed laws banning the use of battery cages, and the former three additionally banned the sale of eggs produced in battery cages. Michigan’s ban of battery cages and the sale of non-cage-free eggs in the state, adopted in November 2019, will enter into force at the end of 2024.
7. Suggestions: Alternative Methods
In order to conclusively resolve the logjam in the matter, a multifaceted approach needs to be adopted that takes into account the rights of all the stakeholders involved in the poultry industry as well as the rights of the birds. Apropos this, under Article 19(1)(g) of the Constitution, all citizens have the right to practice any profession or carry out any occupation, trade or business, and any restriction imposed on this right must withstand the test of Article 19(6) which provides that, firstly, the restriction must be required “in the interest of general public” and secondly, it must be a “reasonable restriction”. Hence, before passing any definitive mandate, the government must make sure that the restriction imposed by it is not unreasonable or arbitrary.
To ensure that, the first and foremost step is to explore and promote alternative methods employed in other countries for stocking birds which do not impose any such restriction which unreasonably takes away the right to freedom of trade of people. The following methods are certainly viable alternatives to battery cages:
- Enriched cage: An enriched cage is also known as “furnished” or “modified” cage, is a wired cage with some fundamental design improvements to answer most of the major concerns associated with conventional battery cages at a slight extra marginal cost. Hens housed in enriched cages are provided with: provides a) Perches b) Dust- bathing area; c) Private nesting area d) Scratch pads, to overcome some of the welfare concerns identified in conventional battery cages.
- Free Run Housing System: Towards a complete cage-free approach, the next viable alternative to conventional battery cages is the free-run housing system. In this method, hens are housed together in a large bun without cages. Free-run systems commonly have the following provisions: a) Automated communal feeding systems; b) Litter flooring; c) Perches d) Dust-bathing areas; and e) Private nesting areas.
- Free-Range Housing System: This method is slightly different from the Free-run method only in the sense that the free-range housing system is a free run housing system that also provides birds with outdoor access when the climate permits.
While, most of the organizations working for this cause are pushing for a complete cage-free environment for birds, however, to break the current deadlock between the concerned stakeholders and for a start, a small step in the form of adopting enriched cages method seems a practically possible middle ground between the concerned stakeholders. Further, making it a mandatory bare-minimum practice in the Indian poultry industry can only be called a ‘reasonable restriction’ on the rights of the poultry farmers under Article 19 of the Constitution of India.
Hens are intelligent birds that demonstrate cognitive complexity and are capable of social empathy. The right of these birds against such cruelty has been recognized on various accounts. The Supreme Court, in the said Jalikattu case, emphasized each animal’s right to live with intrinsic worth, honour and dignity under Article 21 of the Constitution. Also, the Directive Principles of State Policy mandate the State to organise agriculture and animal husbandry on modern and scientific lines (Article 48). Additionally, the Constitution mandates the State to endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country (Article 48A). It is the Fundamental Duty of each citizen, under article 51A(g) of the Constitution, to ―protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
In the end, it is clear that even after a number of animal welfare laws have been enacted in furtherance of Indian Constitutional philosophy, a consensus on putting an end on the use of battery cages remained a sorry state of affairs. Needless to repeat, this has resulted in the perpetuation of pain beyond imagination to these birds. As discussed above, any single party is not to be blamed for this, rather all the three organs of the State have to share the responsibility for the prolonged inaction in this issue. The only way to address the problem is to fix a rigid deadline for phasing out the use of battery cages while introducing new methods and technologies to replace battery cages in the meantime. With this approach, the government would be able to effectively put a stop to this practice, while maintaining deference to the rights of the industry’s concerned stakeholders.
Akshay Singh and Yatan Kwatra are students at the National Law University, Patiala
Categories: Legislation and Government Policy