Authors: Dr. Partha Pratim Mitra and Dr. Prakash Sharma*
Recently in the backdrop of Indo-China border tension and boycott of Chinese product, a writ petitioner approached the Calcutta High Court by filing a Public Interest Litigation. The grievance was that kites were being flown with Chinese and nylon manjha which pose threat to both the pedestrians and motorcyclists particularly who used flyovers for commuting. Here, the High Court has reiterated the earlier order of the National Green Tribunal.
Chinese Manjha and Ecology
The traditional manjha is used in the entire country since ancient times. It is believed that kites and kite flying have been introduced in India by the Chinese traveller Fa Hein and Huein Tsang who had visited this country in 5thcentury BC and 7thcentury AD, respectively. The royals of Lucknow are famed for flying kites with a golden thread attached, as an incentive for people to cut them. With its growing popularity, manjha was industrially manufactured and is normally made of nylon, plastic and synthetic substances. In present times, it is used during festivals, across the length and breadth of the country.
In a petition filed by PETA India, the National Green Tribunal, Principal Bench, New Delhi took active step and directed all the State Governments to prohibit the manufacture, sale, store, purchase and use of synthetic manjha or nylon thread (known as Chinese manjha) and all other similar synthetic threads, used for kite flying and also directed to the respondents to ban import of any synthetic manjha or nylon thread in any part of the country. The Tribunal took note of the fact that thousands of birds have been frequently injured or killed by use of manjha, including rare endangered birds, like the Indian White Rumped Vulture, Great Indian Bustard, Amur Falcon,etc.
Bird’s Right to Fly in Indian Constitution
In People for Animals v. Mohazzim, the High Court of Delhi held that running the trade of birds is in violation of the rights of the birds. Expressing their anguish, the Court was worried as to why no one is caring about inflicting cruelty on birds, despite settled law that birds have a fundamental right to fly and cannot be caged and have to be set free in the sky. The horrific conditions under which birds are captured and exported illegally in foreign countries without availability of proper food, water, medical aid and other basic amenities required as per law depicts sad state of affairs.
Birds have fundamental rights including the right to live with dignity and they cannot be subjected to cruelty by anyone. Therefore, 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. In this regard, the Gujarat High Court in Muhammadbhai Jalalbhai Serasiyav. State of Gujarat, held that to keep birds in cages would tantamount to illegal confinement of the birds which is in violation of right of the birds to live in free air and sky and directed to release illegally confined birds in the open sky.
In Narahari Jagadish Kumar v. State of Andhra Pradesh, the Andhra Pradesh High Court issued directions to State Government as well as authorities to prevent organizing cock-fights with betting during festival of sankranthi. The Court further gave stringent steps to stop such bloody and gruesome sports throughout the year. Similarly, the Madras High Court in S. Kannan v. Commissioner of Police,held that protection shall be granted to all kind of birds including poultry against cruelty of any manner. The Court observed that the birds and animals are entitled to coexist along with human beings. The Court also issued orders prohibiting cock fight and any other bird or animal fight for the sake of enjoyment of spectators.
Eco-centric Role of the Indian Courts
The present trend of Indian judiciary is to widen the scope of the Constitution and to extend right to life beyond citizens. The impetus behind such observation comes from the judgment of the Animal Welfare Board of India v.A. Nagaraja , where in the Supreme Court observed that animals have a right not to be tortured by human beings, and from being inflicted with unnecessary pain or suffering. Earlier, in Ramlila Maidan case, the Supreme Court held that the Constitution also speaks of preservation and protection of man, animals, and includes other creatures, like plants, rivers, hills etc.—all collectively forming part of the environment. In addition, the Supreme Court has also applied the eco-centric principles and rejected the earlier notion of anthropocentric approach. In T.N. Godavarman Thirumulpadv. Union of India the Court argues how humans as part of nature must also accept the intrinsic value attached with the non-humans. In Centre for Environment Law, WWF-I v. Union of India, the Courtheld that human interest does not take automatic precedence and humans have obligations to non-humans independently of human interest. The need of hour is restructuring of efforts at multiple levels and a desire that human-beings must collectively act to prevent destruction of environment. This would demand creation of laws, measures and policies from an eco-centric perspective.
* Prakash Sharma, Assistant Professor of Law, Vivekananda Institute of Professional Studies.