Right of Self defense against Endangered animals in India

Reading time : 10 minutes

Abstract

As the places to habitat for  Endangered animals are getting Fewer they are coming down to small villages, towns and to cities destroying the fields and hunting the cattle in way hurting people and their property. To properly understand we need to know what are the laws governing and protecting rights of endangered species in India Whether the Right of Self Defence or Private Defence can be exercised by the people against endangered animals in India. How to justify use of force against Endangered animals what if excessive force is applied, what are the laws governing  and protecting rights of endangered species in India. All this things are to be carefully read. This research contains researchers own views and perception.

Introduction

With the natural laws gaining prominence and as followed worldwide, It is clear that each and every person living in this world has certain basic rights and amenities provided by birth.  For Locke and Hobbes, right of self defence is foremost right which can be Exercised in case of threat to life”[1]

 For purpose of this research paper Endangered animals are the animals which are in risk of extinction because of the loss of the their natural habitat and also cause of the decrease in their population[2].

In India Right to private defence is Protected by section 96-106 of Indian Penal Code[3], It says “ Nothing is an offence which is done in exercise of right to Private defence”. Which means anything which causes imminent threat and danger to life of a person or to belongings of a person or some other innocent person, for which this right can be exercised.

Protection Provided to Endangered animals

The laws which deals with the protection of wild animals in India is fore mostly contained in the Wild Life Protection Act 1972. It is an Act which is brought for the Protection [wild animals, birds and plants][4]:-

  1. This act Prohibits hunting, killing. Poaching, trapping and hurting to the wild animals unless the act specifically states so.
  2. If violation of the act is done it provides for Fines and Penalties and even for the cancelation of the Licence.
  3. Every licence holder should be maintain the record of the no of animals killed, trapped etc as prescribed by the act.
  4. Under Section 16(1) of this act, it provides for declaration of ‘closed area’ by the state notification to a part for a whole year or for a time frame[5].

Man animal conflict

According to files of Tanzania Natural Resource Forum there has been much increase in Human wildlife Conflict which has now become a paramount problem faced by the whole world, which has now posed a grave danger for survival of the Endangered species[6].

As in Case of India due to over Population or an exorbitant increase in population which requires a shelter to live in, and a land to built shelter upon. With the curbing of land and habitats of different Endangered animals for human use it has now become a issue for Endangered animals and humans too. As there are very little places to  live on for Endangered animals due to which wild Endangered animals are coming down to small villages and towns nearby and damaging their crops, fields, homes, etc.  It has now become a major issue to deal with.

As such there are no cases involving killing of an Endangered animal by a person while exercising the right of Private defence, but it would be highly unreasonable if a person is allowed to kill another  person in good faith  by exercising his right of Private defence but not an animal. Most rules contain an exemption for wild creatures imperilling life. It appears to be profoundly improbable that an individual ensuring himself will be indicted for slaughtering an ensured creature. There might be an issue when this guard is utilized as a shield by a poacher, however the weight of setting up the necessities for the usage of the protection is upon such person[7].

As the incidences of man-animal Conflict are growing there are much chances of either party getting  hurt or even the chances of loosing life. As a recent case in Digida village in Dahegaon mandal in Kumarambheem Asifabad district on 11/11/2020 where a young boy around age of 22 was attacked by the tiger and lost his life( According to TOI Article- “Tiger Attack: Tribals on tenterhooks” Dated- 19/11/2020 04:48 IST)[8]. In Kerala alone a total of 23,182 instances of man animal conflict has caused death or injury, between 01/08/2016- 04/06/2020( According to The Hindu Article-“ 23,182 instances of man- animal conflict in state since August 2016” written by S.Anandan[9])

A landmark case dealing in this regard of man animal conflict is T.N GODAVARMAN THIRUMULPAD vs UNION OF INDIA AND OTHERS[10] where it was found that man-animal conflict not only takes place when the animals encroach the habitats but the Vice Versa and the man’s failed attempt in protecting the wildlife and the Environment and it was held that the Govt. should consult Wildlife boards authorities and form laws so to avoid the conflict to a large extent.

 Also  In the Case of A.R Gokulkrishnan vs The secretary to for …[11] which relates to the man animal conflict in wich it was stated that this conflicts are arising from the spreading of the humans in the areas or habitats of the animals.

Premises to Right of Private Defense

Section 11(2) Of The Wildlife Protection Act 1972:-

The killing or wounding in good faith of any wild animal in defence of oneself or of any other person shall not be an offence; Provided that nothing in this sub-section shall exonerate any person who, when such defence becomes necessary, was committing any act in contravention of any provision of this Act or any rule or order made there under[12]

This is the law which provides for the right of Private Defense against Endangered animals in India. It provides that when there is threat to a person by endangered animals or wild animal that person in good faith may go against or contravene the Laws which provides for the protection of Endangered animals in India.

The premises of the right can also be drawn from Section 96-106 of IPC, which defines the right to Private Defense. According to Sections 96-106 of IPC, a person can defend himself or property belonging to him, or any person’s body against any unlawful activity and in case of danger. According to a court case State vs Rathbone in Montana USA which held:-

“If one may kill a human being or attack him in defense of his property, it would be an unreasonable doctrine to hold that the right of defense of property as justification for the killing of wild beasts of the field and forest does not exist[13]

It can be inferred from this order that it is justified if a person kills or hurts an animal in case of any imminent danger i.e.  posed by the animal to the person or to any other person or to the belongings of the person.

Accessibility of the Right

Right of Private Defence  is one of the natural rights which is given to a person by birth i.e. the right to life and protection of one’s  life and property. In India right to private defence is protected by the sections 96-104 Of IPC, this right provides a person who is in danger or there is apprehension of Danger to the body of that person or any other person, or to the property.

In Darshan singh vs State of Punjab it was held by the Honrable Supreme Court that:-

“ Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits.

Those limits are dictated by two considerations :

(1) that the same right is claimed by all other members of the society and

(2) that it is the State which generally undertakes the responsibility for the maintenance of law and order.

The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression.[14]

It is the right which is for owners of properties and extend to non owners also for the protection of their own body and any others body or property.  The problem with this law can be that  poachers  finding loop holes in this law and will use as tool or defense for killing of Endangered animals. It should be recollected that the poacher who mediates such a guard isn’t naturally exculpated of the charge. He has the burden of demonstrating adequate realities and conditions to legitimize the right. It is presented that the option to murder wild creatures with regards to another’s property should be accessible as a legitimate defense[15].

Requisites of this Right:-

If the person wants to exercise this right of self defence and invoke legal justification he must fulfill certain requirements[16]:-

  • Wheather to know If there was sufficient time for recourse to public authorities or not.
  • If the harm caused was more than or exorbitant to what was necessary to be caused or not.
  • If there was a reasonable apprehension of death, grievous hurt or hurt to the body or property[17]
  •  Recourse to Public Authorities:-

It is duty of the state to provide protection to each and every person of the State. While exercising this right the person who is in danger should first check whether the danger is imminent and whether he have the option of calling for the help of state. If he have the option of calling the state for help he may choose that option rather than exercising this right against animals, and if not then the person should exercise this right.

  • Apprehension of Death, grievous hurt to body or Property:-

If a person wants to exercise the right of self defence against animals  then it should be checked by the person whether the apprehension of the danger by the animal is slight or grievous in nature, it is must cause  it will define, reasonable us of power by the person in danger. It is for the most part to be noticed that there should be an impending risk or annihilation by the creature, or it should be in the demonstration of genuine decimation before the right can be invoked.

Before the owner uses the right of self defense against animals it is vital to check whether all other reasonable alternatives have been used which would have not caused man-animal conflict or which would have avoided this conflict[18].

  • Reasonable use of Force:-

There is no straight jacket formula for term ‘reasonableness’ but it is what a prudent man would have done in similar case. What kind and how much harm is vital to comprise considerable harm is an issue of reality that relies upon the conditions of each case .

This situation or element requires for the Justification of killing a wild animal as it comprises and involves the use of the Prudent man’s reasonable standard. The determination of the force whether the force which is being applied or has been applied and the means which is employed measures equivalent up to the standard of a prudent Person[19].

What If excessive force is used?

As such In India there is no law which prescribes the punishment for the excessive use of Force against animals while excersing the right of Private defence. But the reasonableness is the criteria for deciding the excessive force.

The term reasonable is to be justified with the situation and circumstances by the Court of law and  if the excessive force or harm is done to the animals than required by the circumstances or caused death of the animal then it will be  the court of law that will decide the course of action and the sanction. This right can only be exercised against the aggressor and not as the aggressor. It means that a person can only exercise this right if he is the one who is apprehended  by the other party and in this case animal first, and he cannot use this right to harm others.

Conclusion

In today’s scenario whole world is facing the problem of Extinction of Species from their habitats, cause of the increasing population and the requirement of land to live on. With the growing needs of land and curbing of the habitats of animals it is not rare seeing a man animal conflict. It is very important for us to keep a check and regulate this conflicts cause this animals are on verge of Extinction and due to all this conflicts the rates of extinction only increases. Every person in the world is born with Right to live which encompasses the right of Private defence. This Right is defined in Statues in India under Section 11(2) of Wildlife Protection Act 1972 ‘which provides for right of self defense against Endangered animals in good faith in India

This law provides for justification of the use of the Right and taking the steps which measures upto the Prudent man’s standard, but this Law is very much prone to be misused by the poacher, because this can be used as a defence for killing Endangered animals, but it is very much needed to have a check and regulation on the use of Private defence against animals in India.


[1] Morgan, G. R. “LOCKE AND THE RIGHT OF SELF-DEFENCE.” The Indian Journal of Political Science, vol. 43, no. 2, 1982, pp. 67–85. JSTOR, http://www.jstor.org/stable/41855134. Accessed 15 March. 2021.

[2] CONTRIBUTOR: Holly Dublin TITLE Endangered species   PUBLISHER Encyclopædia Britannica DATE PUBLISHED November 22,2019, URL  https://www.britannica.com/science/endangered-species ACCESS DATE March15, 2021

[3] https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf

[4]  Wild life Protection Act 1972(http://legislative.gov.in/sites/default/files/A1972-53_0.pdf )

[5] by Wardah Beg, from Faculty of Law, Aligarh Muslim University, and Kirti Bhushan and Rohan Pathania, from Campus Law Centre, University of Delhi https://blog.ipleaders.in/animal-protection-laws-in-india/#Laws_relating_to_wild_animals

[6] Human-Wildlife Conflict worldwide: collection of case studies, analysis of management strategies and good practices( March 15.2020 At 5.PM)

[7] https://core.ac.uk/download/pdf/232674645.pdf

[8] TOI Article- “Tiger Attack: Tribals on tenterhooks” Dated- 19/11/2020 04:48 IST)http://timesofindia.indiatimes.com/articleshow/79291101.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[9] The Hindu Article-“ 23,182 instances of man- animal conflict in state since August 2016” written by S.Anandan)  https://www.thehindu.com/news/national/kerala/23182-instances-of-man-animal-conflict-in-state-since-august-2016/article31751878.ece(March 15.2021 At5.PM)

[10] T.N. Godavarman Thirumulpad v. Union of India & others, (2012) 3 SCC 277

[11]

[12]  The Wildlife Protection Act 1972 Section 11(2) http://legislative.gov.in/sites/default/files/A1972-53_0.pdf (March 15.2020 At 5.PM)

[13] State v. Rathbone, 110 Mont. 225, 100 P.2d 86 (Mont. 1940)

[14]  Darshan singh vs State of Punjab CRIMINAL APPEAL NO. 2099 O  2008 (March 15.2020 At 5.PM )(https://indiankanoon.org/doc/1748156/ )

[15] Ron A. Bender, The Right to Kill Wild Animals in Defense of Person or Property, 31 Mont. L. Rev. (1969). (March 15.2020 At 5.PM) Available at: https://scholarship.law.umt.edu/mlr/vol31/iss2/4 .

[16]   Anjali DhingraIInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA (March 15.2020 At 5.PM )https://blog.ipleaders.in/to-what-extent-can-you-exercise-your-right-of-private-defence/amp/

[17] Puran Singh v. state of Punjab, 1975 4 SCC 518

[18] Ron A. Bender, The Right to Kill Wild Animals in Defense of Person or Property, 31 Mont. L. Rev. (1969). Available at: https://scholarship.law.umt.edu/mlr/vol31/iss2/4

Author: Dheeraj Rathi

Editor: Kanishka VaishSenior Editor, LexLife India.

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