Birds have right to fly in open sky

 

By Maneka Gandhi*

In Lucknow, recently, I decided to go and see the People for Animals shelter. On the way, I saw a road covered with cages . Thousands of parakeets, mynas, munias, bulbuls. I rang up the local district forest officer and asked him to send me a team to arrest the sellers and take the birds. By the time I returned from the shelter and picked up the forest department team they had already informed the sellers and the bird market had simply vanished!
Undeterred we went into the houses behind the market and found one with heavy padlocks on it. The chirping of birds could be heard inside. We called the police – the chowki was 50 yards away , shamefully – and they took an hour to come. The locks were broken and the munias, doves, baby parakeets were taken away. If I had not been there, the mob of seller would have lynched the forest officers. The DFO told me that that last time they raided the market, they were stripped off their clothes and beaten. No one was arrested. The man whose house we raided had a bold sign on top – Ram Autar (his real name is Sulaiman ), Bird and Animal Seller. Just out of jail after 10 months, it had not taken him one day to restart his criminal profession.
While the newspapers were full of the incident the next day, I know it is a useless gesture. The police and the forest department get weekly bribes and  even if they did not, they are scared of the physical violence they might encounter in this hardcore criminal Muslim basti called Nakhas. Not just birds are sold here. Bombs, guns and knives are made and every criminal on the run can hide out here.
The first thing the ranger said to me was: “How can we take these birds? They are all foreign.” They were not . They were all munias that had been dyed bizarre bright colours. That shows two things: the ignorance of the forest rangers who receive no training at all in wild species or articles. And their readiness to interpret the Wildlife Protection Act 1972 to say that people selling “ foreign” bird can do so legally. For years now, every time we catch a bird-seller, this is the excuse that the department makes. The seller has no import licence or selling licence; he has brought the birds from Kolkata which is the centre of the trade. But still his birds are “foreign”. As a result, whenever animal activists take away birds, the local courts order them to be given back under “custody” to the sellers themselves. Needless to say the case is never heard again and the “custodian” carries on selling them.
This useless Jairam Ramesh refuses to correct the error. At the end of his tenure, he will go down in history as the minister who talked the most and did the most damage to forests, animals and the environment.
However, now comes a major ray of hope in the form of a judgment from Gujarat. Every now and then God sends a judge with common sense and humanity. Honourable Justice M.R.Shah of The High Court, Ahmedabad has come as a gentle ray of sunlight through the clouds of forest department ignorance and corruption.
In 2010, Abdulkadar Mohamad Azam Sheikh was caught selling birds in Surat. A criminal complaint under Sections 11 of Prevention of Cruelty to Animals Act 1960 and Section 12 of the Wildlife Protection Act 1972 was filed against him. He had kept 494 birds in tiny cages with their wings and tails cut, cellotaped and with rings on their legs. These birds were confiscated by the police and given to an NGO.
The criminal appealed and typically asked for custody of the birds. Fortunately, the Additional Chief Judicial Magistrate dismissed the application and ordered the birds to be set free in the sky. The criminal made a revision application to the Additional Sessions Judge who asked for the birds not to be released but to be given to an NGO and costs to be paid to them by the criminals of Rs 1.05 lakhs.
The criminals then went to High Court in May 2011 and asked for the birds. Their lawyer N.A.Shaikh’s defence was that his clients had been in the business of selling birds and animals for a long time so should be allowed to carry on ! This is like catching a man with his 40th murder victim and being told that since he has killed 39 before that , he should be allowed to keep doing it. And , in the same breath, they said that they should be given the birds since it was their first offence! They further argued that no licences were needed for sale of birds. That is true – no licences can be given because the trade is illegal. They also argued that the birds would die with the NGO or the police and therefore should be returned to them.
The lawyers , including the Additional Public Prosecutor, argued that since the way they had been kept was cruel and atrocious, and that as most of them were birds banned for sale , they should not be given back.
The judge quoted a beautiful passage from the ruling by the Supreme Court in the case of Sansar Chand the tiger poacher. It is too long to reproduce here but I will give this judgment’s salient points:
The criminals had failed to prove their ownership. Possession of birds does not mean ownership.
The birds were all being sold without a licence. No licence could be given by any authority unless the applicants proved that they got the birds without hunting or trapping. Even the business of breeding birds could not be started without hunting or trapping them.
The manner that they were kept was inhuman and against the rules of nature and in violation of the right of birds to move freely in the air/sky
Not just the Prevention of Cruelty to Animal Act 1960 but Art 51 of the Constitution casts a fundamental duty on every citizen to have compassion for animals and to protect them from unnecessary pain.
Birds cannot be kept in cages because they suffer pain. To keep any birds in cages would be tantamount to illegal confinement of the birds and violative of their right to fly in the open sky.
The day has come to think of the fundamental rights of birds and animals: right to live freely, right to move freely . Violation of these rights has cause the decrease in birds and many have vanished.
To keep the birds in cages during the trial is unfair because this may take a long time. Therefore the only order that can be passed is to respect the rights of birds and free them in the sky. Section 451 of the Code of Criminal Procedure confers powers on the court for custody and disposal of property pending trial and if such property is subject to natural and speedy decay or if it is expedient to do so . Therefore the original order of the Additional Chief Judicial Magistrate to release the birds in the sky is restored.
This is the most important judgement for the animal welfare movement in a long time. It confers rights on birds. Please make a copy of this article and give it to the forest department. Start catching the bird sellers of any birds in your area. If you want copies of the judgement, I will send them to you. I have also put it on the site www.peopleforanimalsindia.org.
God bless Justice Shah !
 *Maneka Gandhi is a parliamentarian and leader of animal welfare movement in India. You may contact her at gandhim@nic.in