After the Kaavan Decision: A New Wave of Animal Law Litigation in Pakistan

In May 2020, Pakistan’s Islamabad High Court rendered an unprecedented decision in Islamabad Wildlife Management Board vs. Metropolitan Corporation Islamabad. Authored by the court’s Chief Justice, J. Minallah, the decision resulted in the shutting down of the Marghazar Zoo in Pakistan’s capital city, Islamabad. All of the zoo’s animals, among them an Asian elephant named Kaavan, were ordered to be relocated to appropriate sanctuaries either within Pakistan or abroad. The court’s judgment, hereinafter referred to as the ‘Kaavan decision,’ was groundbreaking in several important ways. Firstly, the court recognized that nonhuman animals have certain natural and legal rights, which are implied and protected by the relevant anti-cruelty legislation in Pakistan. Secondly, the decision linked the rights of animals with the right to life and liberty of human beings as enshrined in Article 9 of Pakistan’s Constitution, by concluding that animal maltreatment violates the fundamental right to life and that state authorities have a duty to prevent cruelty against animals. Lastly, the Kaavan decision set important precedent for animal protection litigation in Pakistan, setting up the judicial system as an avenue for those seeking to protect the interests of nonhuman animals. This article attempts to map and examine the ways in which the Kaavan decision contributed to the development of animal law jurisprudence in Pakistan.

I. The Kaavan Decision was the first in Pakistan to acknowledge the legal rights of animals.

Gifted to Pakistan by the Sri Lankan Government in 1985, Kaavan had resided in the Marghazar Zoo for the better part of four decades at the time of the court’s decision. After his sole elephant partner at the zoo, Saheli, died due to infection in 2012, Kaavan quickly became depressed and aggressive, resulting in him being kept chained. Kaavan also exhibited clear signs of psychological distress, including swaying and pressing his head into a wall. His plight resulted in him being referred to as the “world’s loneliest elephant.”

In 2019, a petition was filed before the Islamabad High Court, challenging the conditions in which animals were kept at the zoo and seeking that Kaavan be relocated to a sanctuary. Deciding this petition along with two others, the court posed two fundamental questions: Do nonhuman animals have legally enforceable rights? And does the Constitution impose duties on the State to safeguard the welfare of nonhuman animals? The court answered both these questions in the affirmative. In reaching its conclusions, the court examined international and domestic animal law jurisprudence, including, notably, efforts made by the Nonhuman Rights Project and PETA in the U.S.

With respect to the question of whether animals have legal rights, J. Minallah concluded that because nonhuman animals are the subject of a life and sentient beings, they possess certain natural rights, such as the right to live in an environment that meets their social, behavioral and physiological needs and the right to not be subjected to unnecessary pain and suffering. The court found these natural rights have been codified within the anti-cruelty law in Pakistan, specifically the Prevention of Cruelty to Animals Act 1890, which prohibits, among other things, subjecting animals to unnecessary pain and suffering. Hence, according to the court, since animals have certain natural rights recognized by law, they possess legal rights, which the court defined, relying on Black’s Law Dictionary as “a right related to or recognized by law.”

The Kaavan decision also created a link between the legal rights of nonhuman animals and the fundamental rights of humans contained in the Constitution of Pakistan, which the State has a duty to safeguard. The court discussed how the well-being and survival of animal species is directly linked to the survival of human beings. The court further relied on the link between cruelty to animals and violence against human beings to hold that animal mistreatment has a nexus with the right to life as guaranteed by and contained in article 9 of the Constitution. Hence, the court concluded that protecting animals against harm is a constitutional obligation of the State and its authorities.

Because the authorities managing the zoo were not fulfilling their obligations to its inhabitants and were subjecting the animals to unnecessary pain and suffering, the court ordered the zoo be shut down and the animals relocated to sanctuaries. By the end of 2020, all the animals from the zoo, including Kaavan, had been relocated to various sanctuaries.

II. The Kaavan principles have been expanded in animal protection cases concerning domestic animals.

Since the Kaavan decision was rendered, its principles have been relied on by lawyers, judges, and quasi-judicial bodies alike to advance protections for nonhuman animals in a variety of contexts. In April 2021, the Council of Complaints, a body tasked with receiving and reviewing complaints against television channels licensed by the Pakistan Electronic Media Regulatory Authority (PEMRA), rendered its decision in an animal cruelty related complaint. The complainant, a member of the public, alleged that a channel had aired a game show that involved piling rabbits and pigeons on the laps of contestants, causing unnecessary pain and suffering to them. The complainant relied on the Kaavan decision to argue that animals should not be treated as mere property and that animals too have inherent rights that need to be safeguarded. In its response, the channel attempted to distinguish the Kaavan judgement from the facts in the complaint by arguing that the Kaavan decision related to captive wild animals and did not apply to domestic animals such as rabbits and pigeons. However, the Council rejected the channel’s attempt to distinguish Kaavan and held that it had been established that subjecting animals to ill-treatment amounts to a violation of the right to life under Article 9 of the Constitution.

Additionally, the Council held the channel to be in violation of PEMRA’s Code of Conduct and the Prevention of Cruelty to Animals Act 1890. Ultimately, the Council recommended that a fine of Pak Rupees 500,000/- (approximately US $2100) be imposed on the channel. This holding expanded the Kaavan decision to a situation and a category of animals that Kaavan did not directly address—that is, domestic animals used in entertainment, and indicated a regulatory shift towards protecting animals in the media.

III. The Kaavan decision has been relied upon by other High Courts and its principles affirmed in other High Court decisions in Pakistan.

Being a High Court decision, the holding in Kaavan is not binding for other High Courts in Pakistan, since the Islamabad High Court is not superior to other High Courts. However, it has been relied upon by sister courts in other provinces to advance protections for animals. One such example can be seen in the case of Zawar Hussain v. Province of Punjab, decided by the Lahore High Court in 2022.

The case arose out of a notification issued by the Punjab Wildlife and Parks Department banning the use of electronic decoys, mojos, and pre-charged pneumatic airguns in hunting. The governing law, the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act 1974, already prohibited the use of live decoys in hunting. However, since the law did not expressly address the use of electronic decoys, hunters had increasingly been using these gadgets to hunt waterfowl, leading to a decline in the waterfowl population in the province of Punjab. The ban was challenged by the petitioner, a hunter, on the grounds that the department had exceeded its jurisdiction by imposing a ban the law did not expressly envision.

In ultimately upholding the ban, the Lahore High Court partially relied on the Kaavan decision to affirm that since animals are sentient beings, they have legal rights, including the right to life, and that it is the duty of the state to ensure these rights are not infringed upon. Since one of the core purposes of the Punjab Wildlife Act 1974 is to protect wildlife, the court held that the Wildlife Department has discretion to adopt measures to protect the lives of wild animals and birds.

Therefore, even though the Lahore High Court was not bound by the Kaavan decision, it adopted Kaavan’s principles and declared that animals have legal rights, further linking those rights to Article 9 of the Constitution. The adoption of the holding in Kaavan by the Lahore High Court, which is the High Court for Pakistan’s most populous province, indicates further entrenchment of animal rights within Pakistan’s jurisprudence.

IV. Kaavan continues to be cited and relied upon by petitioners and lawyers seeking to advance protections for nonhuman animals through the legal system.

In addition to the judicial pronouncements affirming or expanding the principles espoused by Kaavan, the decision has been used to bring additional legal challenges to the treatment of certain categories of animals, and to advance creative legal arguments for animals.

For example, in 2021, a public interest petition was brought before the Lahore High Court, challenging the Punjab Wildlife Department’s practice of allowing private individuals to keep exotic wildlife, most notably lions, as pets. Section 12 of the governing law in this case, the Punjab Wildlife Act 1974, allows the Wildlife Department to issue certificates of lawful possession to those individuals wishing to possess a wild animal. The petitioner challenged the constitutionality of section 12 of the Act on the grounds that the Kaavan decision held that animals have the legal right to live in an environment that meets their behavioral, social, and physiological needs. The petitioner argued that since keeping wild animals as pets inherently means that they cannot be kept in an environment that meets those core needs, the provision allowing for such possession is unconstitutional and should be declared as such by the Lahore High Court.

In its admitting note for this case (through which the court held that the case was maintainable and would be heard on merits), the Lahore High Court specifically noted that in Pakistan, after the Kaavan judgement, the link between the rights of animals and constitutional rights needs further elaboration. The court also observed that under Article 199 of the Pakistani Constitution, which establishes the writ jurisdiction of the High Courts, any “aggrieved party” can approach the High Court in its writ jurisdiction. Therefore, one of the questions the court might examine in this case is whether animals can be an “aggrieved party” and directly approach the High Court for violation of their fundamental rights. While a decision in this litigation is still pending, a detailed judgement on the point of whether animals can have standing to bring suit (without the need of an intervening human party to demonstrate injury or demonstrate maintainability) could have immense implications for animal personhood in Pakistan.

V. Conclusion.

Suffice it to say, the animals in the Marghazar Zoo were not the only beneficiaries of the holding in Kaavan. The decision paved the way for other successful animal law litigation in Pakistan and continues to be relied upon by lawyers and petitioners seeking to advance constitutional animal protections. Going forward, it remains to be seen how the Supreme Court of Pakistan, which is the highest court in the country and the only court with the power to uphold or overturn the Islamabad High Court’s judgments, approaches the principles laid down in the Kaavan decision. The Kaavan holding has put animal law on the map in Pakistan, and will hopefully continue to serve as the base upon which stronger legal protections for animals are built within the country.