Bestiality

DE-CRIMINALIZATION OF BESTIALITY IN INDIA

ABSTRACT
This paper aims to recognize bestiality as an acceptable physical act evolved through the concept of zoophilia and not a crime against nature as stated under the Article 377 of the Indian Penal Code, for all acts against human nature. The paper shall ponder upon the age-old question, of admissibility of bestiality as a sexual act by the society, which can be contended on the grounds of pre-historic practices derived from ancient Indian traditions, cultures and norms; which are noted in various Hindu texts. To further validate upon its more practical usage, it has been explained as a tradable commodity used for deriving pleasure/full use of the good.

KEYWORDS
Bestiality, Commodity, Morality, Consent

INTRODUCTION
In India, the status quo of bestiality is that, it is not accepted in society on grounds of morality. It has been legally banned and it is a punishable offence under the law. Before we dwell into this issue, as to whether indulging in these acts are righteous or not, let us first define bestiality, so that we can understand the subject better. Bestiality may be defined as, “Sexual relations between a human being and an animal.”1 As the the definition clearly states, bestiality basically means an intimate physical relationship between a person and an animal. Section 377 of the Indian Penal Code states that, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”2. This particular piece of legislation brings under its own umbrella, any such act which includes intimate physical relations between a person and an animal. By this interpretation of the word, bestiality stands a punishable offence. In this paper I will contest this section of the IPC, arguing that an animal that has been purchased, by a particular person, can be used to derive sexual pleasure and is morally entitled to do so. In addition, there will be other different supplementary arguments to also contest this section of the IPC, in favor of decriminalization of the bestiality.

ANIMALS AND BESTIALITY: THE COMMODITY PERSPECTIVE
The welfare of animals has been of great concern throughout the world. Therefore, countless organizations have been created to safeguard their interests. It is the aim of these organizations to protect animals from any form of cruelty. In the year 1975, a philosopher named Peter Singer re-ignited an already existing movement in favor of welfare of animals. This he did by writing a book called ‘Animal Liberation’3. He had stated in his book about the harsh realities as to how animals are subject to systematic and unnecessary atrocities which they often face in the fields of entertainment, agriculture, fashion and experimentation. He also stated that one major factor which allows human beings to carry on with their atrocities against animals is the fact that animals are broadly considered as mere economic commodities/goods. Non-human animals are legitimately brought under the umbrella of economic property and commodities. In accordance to legal theory as well as practice, a property owner is protected by rights of property. Therefore, in accordance to what he has said, if this paper can define an animal as a commodity, the user of a commodity, in this case the commodity being an animal, has the right to do what he/she pleases to do with that commodity. The definition of goods/commodities can be derived from ‘Section 2 of the Andhra Pradesh General Sales Tax Act, 1957’4. It defines goods as, “All kinds of movable property other than actionable claims, stocks, shares and securities, and includes all materials, articles and commodities 2(including the goods (as goods or in some other form), involved in the execution of a works contract or those goods used or to be used in the construction, fitting out, improvement or repair of movable or immovable property) and also includes all growing crops, grass and things attached to or forming part of the land which are agreed to be served before sale or under the contract of sale”5. If this above definition is kept in mind, we can conclude that anything which is ‘sold or bought’, through the transaction of money can be considered as a commodity. If this notion is followed, we can conclude that an animal is a commodity if it is purchased by its owner. Furthermore, in his book, ‘Animals, Property and the Law’6, Gary Francione stated and I shall paraphrase for the benefit of the reader, ‘Animals are accepted as property under legal welfare-ism. This status of property justifies animal treatment as a means to the different needs of human beings’. If the above premise is followed, we can successfully conclude that animals are commodities. Hence, animals that are owned by a particular master, may be subject to bestiality as it is the choice of the commodity owner as to what he/she would like to do with his/her commodity. It should be noted that this paper only aims to decriminalize the concept of bestiality regarding domitae naturae (domestic animals). This is because, only domestic animals can be purchased by a private citizen of India.

ANIMALS AND BESTIALITY: THE MORAL PERSPECTIVE
Now that we have successfully established that domestic animals are commodities and therefore may be subject to bestiality, the question of morality comes into play. Strong contentions have made against bestiality on moral grounds. Bestiality has ended up becoming criminalized because it is felt that the animal is being tortured or forcefully acted upon and there is no form of consent from the animal’s point of view. This paper shall take on these arguments head on to prove that bestiality is morally not wrong. Legality and morality are inalienably joined. If there is something which is morally correct, then it should be at the same time legally correct, and if something is legally correct, then it should be morally correct too. The distinction between the two is the contrast between what individuals think is correct and what is actually correct. Legally correct is what individuals think and morality is what is actually correct. This paper will prove that bestiality is morally correct and in turn legally correct. By this method, the point will be driven home that bestiality should be decriminalized. Instead of going into a complete derivation of a moral theory, we can prove morality through a mutual consent test between the animal and the human being. But, before we go into this test, it is advisable for the reader to understand that the thought that, ‘irrespective of the fact that bestiality is ethical, it is unsuited to social order and therefore it constitutes a legit reason for criminalizing it’7, will not be entertained. For those readers who consider this idea unreasonable, you should consider the various incidents which are carried out daily in society which are against the social order but are at the same time accepted and backed by the law as it allows individual freedom. It is also advisable for the reader to understand that the aim of this paper will be lost the moment the reader brings into play prejudices like personal opinions and careless whim. If bestiality is proved not wrong and you wish to resort to arguments bordering how it is unsafe or how it is a negative aspect of a person’s life, then the aim of this paper stands pointless. Moving on, like it was said earlier, we shall be testing whether consent is prevalent or not between an animal and its human partner through a mutual consent test. On the basis of this test, consent becomes the moral principle here. If there is no consent, then there is no question of morality and hence no legal backing. But, what happens if the animal is incapable of providing consent. Before we discuss this channel of thought, let us define the word consent. Consent may be defined as a, “Permission for something to happen or agreement to do something”8. Going by this definition, permission is required for consent. In cases where it is not possible to give consent, it is not required. For example, no person who owns an animal/commodity or derived products of an animal, has ever taken consent from an animal. It is not possible from a human being’s point of view, to seek permission from an animal to domesticate it. This drives home the point that, when there is no information which can be distributed by one party, it is not distributed. Similarly, if the other party is unable to receive information, then it is not considered a requirement to give information to this party. Let us understand this with an example. If an unconscious stranger is brought to a hospital by another man, the medical staff will treat the unconscious stranger on the assumption that this man wishes to be treated. There is no consent seeked for and no consent given. This makes the mutual consent test baseless. We can thus say that consent is not required from another party to make something morally correct. Sometimes, consent is not required if the other party is incapable of giving consent. Hence, if an animal is incapable of providing consent, it is not required. The question now at hand is whether an animal can actually give consent or not? If there is an absence of body language or vocal response and still an animal continues to take the course of action of bestiality, then it is understood that the animal has communicated its intention and assent to the course of action, implicitly. Since this course of action is a means of interaction, it must also be a consent to the said interaction. In summation to the concept of morality in bestiality, through the above said arguments, we can conclude that animals do show their consent when they carry out a course of action as demanded by their owner. In cases where they are incapable to do so, consent is not required and consent is assumed, following the arguments made in the above paragraphs. Thus, on the principle of morality, it can be said that it is moral to indulge in intimate physical relations with an animal, which a person owns. Since it is moral, it is therefore also legally correct. In case a particular reader is still in doubt whether consent can be assumed or not, I would like to leave him/her with a question to ponder over. In a case where a person rides a horse, do you think consent has been taken from that particular horse as to whether he/she can ride the horse? Do you know the answer?

ANIMALS AND BESTIALITY: A RELIGIOUS PERSPECTIVE
Bestiality as a phenomenon, has been existent in this world for centuries now. Pagan cults have practiced either bestiality or marriages with animals in hope that it will appease their various Gods, avert evil and even welcome good fortune. Though most of the cults have dissolved over the passage of time, one Pagan cult which is still existent and indulges in bestiality is Hinduism. Hinduism is often referred to as the oldest existent religion. It has stood the test of time. From the ancient past till modern times, bestiality is a reality in this religion. Having physical relations with animals is quite an acceptable part of Hinduism. An ancient Hindu temple, the temple of Khajuraho9, depicts numerous sculptors depicting human beings copulating with various animals. Bestiality in Hinduism can also be found in various scriptures, which talk about deities having sex with animals. Explicit hymns are found even in the Yajur Veda10. For example, a description is given where ‘a priest is over-looking a ritual, in which his own wife is indulging in coitus with a horse’11. Even till the modern present day, Hindus follow different acts of bestiality, believing it is a cure to many perils and diseases in a human life. Therefore, we can see, bestiality has also found a prominent presence in the oldest existing religion in the world. This shows that this particular practice too has stood the test of time and has been accepted across many centuries. Hence, bestiality should not be criminalized as it goes against the very basics of Indian heritage and culture. CONCLUSION
This paper has attempted to show the various reasons why bestiality should be legit and not be criminalized. It has been shown that domestic animals are mere commodities. By this logic, commodities (animals) may be subject to any behaviour as shown to them by their owners. As this theory might sound immoral to a few readers, it has also been proven in this paper that bestiality is not morally wrong. To further back this papers argument, it has been shown to the reader that bestiality is an age old practice which has been professed by the Hindus. In case we do not de-criminalize bestiality, we shall be losing out on one of the rich heritages of our Indian culture. It should be noted that bestiality is not only a part of Indian heritage, it is also widely practiced across the globe in certain countries, even till this modern day. It is legal and is accepted with open mindedness. It has been legalized in certain parts of the United States and Australia, Thailand, Finland, Denmark, Cambodia, Belgium, Japan, Hungary, Mexico and Sweden. This shows that developed countries like the United States and Japan, as well as the other European countries have measured the pros and cons of bestiality and accepted it as a harmless phenomenon. This is why, bestiality should be de-criminalized and Article 377 of the IPC should be challenged in relation to this topic as bestiality is not a crime or act against nature. Criminalization of this act shall be encroaching upon Article 21 of the Constitution which grants every citizen the ‘right to personal liberty’12 and Article 19 of the Constitution which grants every citizen the ‘freedom of expression’13. Every individual has the right to express one’s own will and it should be allowed with liberty. If the state wishes, there can be certain restrictions regarding bestiality, but complete criminalization of this phenomenon is absurd. The government should draw inspiration and guidelines from the nations which have already legalized bestiality. If not legalization, complete criminalization of this activity should be abolished. This paper has attempted to prove why bestiality should be accepted and the reasons shown here are probably the reasons why it is accepted in other nations. Therefore, bestiality should also be accepted and de- criminalized in India.

BIBLIOGRAPHY
Francione, Gary, Animals, Property and the Law, Pg. 26 www.butt-naked-hindu.blogspot.in www.gentleworld.org www.indiankanoon.org www.lawnotes.in www.legal-dictionary.thefreedictionary.com

Bibliography: Francione, Gary, Animals, Property and the Law, Pg. 26 www.butt-naked-hindu.blogspot.in www.gentleworld.org www.indiankanoon.org www.lawnotes.in  www.legal-dictionary.thefreedictionary.com