Karnataka High Court
Shri. King Solomon David vs Joint Secretary on 10 April, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 08.04.2024
Pronounced on :10.04.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.8409 OF 2024 (GM - RES)
BETWEEN:
1 . SHRI. KING SOLOMON DAVID
AGED ABOUT 38 YEARS
S/O VARAMANI DAVID
R/AT 183A, 7TH CROSS
RAMESH REDDY LAYOUT
MYLASANDRA ROAD,
BEGUR,
BENGALURU - 560 068.
2 . MARADONA JONES
AGED ABOUT 34 YEARS
S/O Y. JONES
R/AT 99/A, 4TH CROSS,
SINGAPURA GARDEN,
ABBIGERE MAIN ROAD,
BENGALURU - 560 090.
... PETITIONERS
(BY SRI SWAROOP ANAND R., ADVOCATE)
2
AND:
1. JOINT SECRETARY
GOVERNMENT OF INDIA,
MINISTRY OF FISHERIES,
ANIMAL HUSBANDRY AND DAIRYING,
DEPARTMENT OF ANIMAL
HUSBANDRY AND DAIRYING
KRISHI BHAWAN,
NEW DELHI - 110001
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA - 560 001.
2. CHIEF SECRETARY
GOVERNMENT OF KARNATAKA,
AMBEDKAR VEEDHI, VIDHANA SOUDHA,
BENGALURU - 560 001
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU- 560 001.
3. KENNEL CLUB OF INDIA
A SOCIETY REGISTERED
UNDER THE TAMIL NADU SOCIETY REGISTRATION ACT,
REPRESENTED BY ITS SECRETARY
HAVING ITS REGISTERED ADDRESS AT
NO.28/29, AA BLOCK,
FIRST STREET, ANNA NAGAR,
CHENNAI - 600 040.
... RESPONDENTS
(BY SRI K.ARVIND KAMATH, ADDL.S.G A/W
SRI H.SHANTHI BHUSHAN, DSGI, FOR R-1;
SMT.NAVYA SHEKHAR, AGA FOR R-2;
SMT.LAKSHMY IYENGAR, SR.ADVOCATE A/W
MS.NIKITHA SURABHI, ADVOCATE FOR INTERVENING
APPLICANT IN I.A.No.2/2024))
3
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH CIRCULAR DT.
12/03/2024 BEARING NO. D.O.V-11/1/2024-ANLM.DADF PASSED
BY R1 HEREIN, PRODUCED HEREIN AT ANNEXURE-A AS AGAINST
THE PETITIONERS.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 08.04.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners are before this Court calling in question a
Circular dated 12-03-2024 issued by the 1st respondent imposing
ban on certain breeds of dogs on the score that they belong to a
category of 'ferocious dogs'.
2. Shorn of unnecessary details, facts in brief germane, are as
follows:-
The 2nd petitioner claims to be the owner of German breed
Rottweiler male dogs and have a registration from the sole
registering agency, the Kennel Club of India, the 3rd respondent.
The 1st petitioner is said to be a licensed professional dog handler
recognized by the 3rd respondent and claims to have bred dogs like
Rottweiler, Cane Corso, Mastiffs etc. with regard to their behavior,
socialization, obedience inter alia. He is said to have trained the
Rottweiler of the 2nd respondent. What has driven these dog
owners/breeders to this Court, is a Circular issued by Government
of India through the Ministry of Fisheries, Animal Husbandry and
Dairying, in the Department of Animal Husbandry and Dairying
imposing a ban on several breeds of dogs including those that are
bred by the 1st petitioner. The reasons for issuance of the Circular
appear, to be upon an order, passed by the High Court of Delhi in a
Public Interest Litigation filed by the Legal Attorneys and Barristers
Law Firm. Since the circular imposes a ban and importing of the
said dogs, it travels a little further that the Government would
sterilize all the breeds of dogs in India to stop further breeding. It
is, therefore, the petitioners have rushed to this Court in the
subject petition.
3. This Court in terms of its order dated 19-03-2024 granted
an interim order of stay of the Circular insofar as it concerns the
State of Karnataka. It appears that the other High Courts have also
granted such stay after the interim order granted by this Court and
the matters are pending consideration in the hands of those Courts.
4. Heard Sri R. Swaroop Anand, learned counsel appearing for
the petitioners, Sri.K.Arvind Kamath, learned Additional Solicitor
General of India along with Sri.H.Shanthi Bhushan, learned Deputy
Solicitor General of India appearing for respondent No.1,
Smt.Navya.S.Shekar, learned Additional Government Advocate
appearing for respondent No.2 and Smt.Lakshmy Iyengar, learned
senior counsel along with Ms.Nikitha Surabhi, learned counsel
appearing for PETA/intervening applicant.
SUBMISSIONS:
PETITONERS:
5. The learned counsel appearing for the petitioners
Sri R. Swaroop Anand would vehemently contend that the Circular
that imposes a ban creates an embargo upon participation of Indian
breed of dogs which are equivalent to international breeds which
are now sought to be banned. He would quote an illustration of a
breed by name Raja Palyam, which the learned counsel for the
petitioners submits that it is equivalent to Rottweiler. He would
further contend that the Department of Animal Husbandry has no
power whatsoever to impose any ban of the kind that is now
imposed, that too by a Circular. It is his contention that the Delhi
High Court nowhere directed to impose a ban. It only directed
consideration of representation. In all, he would seek quashment of
the Circular.
THE UNION OF INDIA:
6. The learned Additional Solicitor General of India
Sri K. Arvind Kamath, along with the learned Deputy Solicitor
General of India Sri H. Shanthi Bhushan, would contend with
vehemence that the Union of India cannot be held to be having de
hors power to issue a circular. According to them, ferocious dogs
have become a menace in several places of the country. The dog
owners do not take responsibility of keeping dogs in control. It is
their admission that the entire issue has sprung from the judgment
of the High Court of Delhi directing consideration of the
representation. They would admit that no stakeholders as was
undertaken before the High Court of Delhi were heard in the
matter. Even to the constitution of Committee of Experts, the
learned Additional Solicitor General would submit, on instructions,
that the Union of India would not enforce the Circular unless they
redo the exercise of hearing all stakeholders in the matter and
drawing up an appropriate report from an appropriate Committee.
He would submit that the issue need not detain this Court for long
or delve deep into the matter. The Union of India would
undoubtedly take certain corrective measures, is his submission.
THE INTERVENER - P eTA :
7. An intervening application is filed by a Company named
People for Ethical Treatment of Animals India ('the Company' for
short). The impleading application was not allowed, as the
Company had no role to play in the challenge put forth by the
petitioners. But the learned senior counsel Smt. Lakshmy Iyengar
representing the Company was permitted to assist the Court. The
learned senior counsel would take a threshold objection to the
petitioners presenting the writ petition. It is her submission that the
petitioners are not even registered breed owners or dog owners.
Therefore, the writ petition itself is not maintainable. Apart from
the said submission, the learned senior counsel would take this
Court through the intervening application to demonstrate that
ferocious dogs have undoubtedly become a menace and it is the
dog owners or all breeders that are responsible for ill-treatment of
dogs, permitting dog fights and also making the dogs subject of
gambling by way of dog fights. It is her submission that the
Circular in fact tries to impose a ban on these dogs which are being
used for illegal purposes. The learned senior counsel would quote
several instances of dog bites all over the country, which have
either injured the victim or have caused death in certain
circumstances. She would further submit that except the interest of
animals in the vicinity, the Company has no interest in the petition
per se.
8. In the light of the submissions of the Union of India that it
would not enforce the Circular till appropriate compliance would
come about, by hearing necessary stake holders, as was
undertaken before the High Court of Delhi, this Court is of the
considered view that the petition should not be closed on the said
ground, as there is no withdrawal of the Circular by the Union of
India, but it is only deferment of implementation. In that light, I
deem it appropriate to answer the challenge, in the peculiar
circumstances.
9. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
10. The afore-narrated facts are not in dispute. The genesis of
the issue, is from an order passed by the High Court of Delhi in a
Public Interest Litigation in Writ Petition (C) No.15673 of 2023 &
C.M.Appl.No.62845 of 2023 decided on 06-12-2023. The Division
Bench passed the following order:
"1. Present Public Interest Litigation has been filed
seeking directions to the Respondents to ban and cancel
the licence to keep dangerous dogs such as Pitbull,
Terriers. American Bulldog, Rottweiler, Japanese Tosa,
Bandog (Bandog is a cross between American Pit Bull
Terrier or American Bulldog and a Neapolitan Mastiff or a
Mastiff), Neapolitan Mastiff, Wolf Dog, Boerboel, Presa
Canario, Fila Brasileiro, Tosa Inu, Cane Corso, Dogo
Argentino and the cross breeds of the above-mentioned
dogs.
2. A perusal of the paper book reveals that the
petitioner has filed a representation dated 5th
October, 2023 with the Secretary, Ministry of Home
Affairs is pending consideration.
3. Learned counsel for the Union of India, who
appears on advance notice, states that the
petitioner's representation dated 5th October, 2023
has been forwarded to Secretary, Department of
Animal Husbandry and Dairying by the Animal
Welfare Board of India on 31st October, 2023.
4. He states that after consulting all the
stakeholders, the Union of India shall decide
petitioner's representation dated 5th October, 2023
as expeditiously as possible, preferably, within three
months from today.
5. The said statement/undertaking given by the
learned counsel for the Union of India is accpeted by
this Court and the Union of India is held bound by
the same.
6. In the event, the petitioner is aggrieved by
the decision taken by the Union of India, the
petitioner shall be at liberty to file appropriate
proceedings in accordance with law.
7. With the aforesaid liberty, the present writ petition
in the form of public interest litigation is disposed of along
with pending application."
(Emphasis Supplied)
The Division Bench records dog breeds that were alleged to be
ferocious and directed consideration of the representation of the
petitioners therein dated 5-10-2023 which was forwarded to the
Secretary, Department of Animal Husbandry and Dairying. The
Division Bench records the submission of Union of India that all
stakeholders would be consulted and then the representation would
be considered. The said representation is appended to the
statement of objections. The representation reads as follows:
"Date: 05.10.2023
To
THE SECRETARY
ANIMAL WELFARE BOARD OF INDIA
NIAW Campus, 42 Mile Stone,
Delhi-Agra Highway
NH-2, Ballabhgarh, Haryana-121 004
From
THE LEGAL ATTORNEYS
& BARRISTERS LAW FIRM
Office at K-1, GF Birbal Road Jangpura
Extension New Delhi-110014
Mob:- 7078076786
"MOST URGENT"
SUBJECT: REGARDING TAKING IMMEDIATE STEPS TO BAN
AND CANCEL THE LICENSE TO KEEP PITBULL, TERRIERS,
AMERICAN BULLDOG, ROTTWEILER, JAPANESE TOSA,
BANDOG (BANDOG IS A CROSS BETWEEN AMERICAN PIT
BULL TERRIER OR AMERICAN BULLDOG AND A
NEAPOLITAN MASTIFF OR A MASTIFF.), NEAPOLITAN
MASTIFF, WOLF DOG, BOERBOEL, PRESA CANARIO, FILA
BRASILEIRO, TOSA INU, CANE CORSO, DOGO ARGENTINO
AND CROSS BREEDS THEREOF WHICH ARE DANGEROUS
AND HARMFUL TO THE LIFE OF THE PUBLIC AT LARGE.
SIR/MADAM,
We respectfully bring to your kind attention
making the request for concrete actions for including
above mentioned breeds and crossbreeds of dogs in
the list of dangerous dogs, implement regulations to
ban these dogs, revoke licenses for keeping these
breeds/ crossbreeds, and impose penalties for
breeding them. Bull and Terriers have been
categorized as "dog bred for fighting" under the UK's
Dangerous Dogs Act, 1991, due to concerns about
public safety. Statistic from Time Magazine suggests
that while Pitbull and terriers make up only 6% of
the dog population in the US, they are responsible
for 68% of dog attacks and 52% of dog-related
deaths since 1982.
Several legislatures in foreign countries have
expressed concerns about the nature of pitbulls,
citing factors like agility, stamina, strength, genetic
predisposition to aggressiveness, and powerful jaws
as reasons for their inclusion in dangerous dog bans
Public support for such bans also revolves around
the belief that pitbulls can be unpredictable and
cause severe harm due to their physical capabilities.
it's crucial to note that bull and terriers are generally
aggressive towards other dogs, and recent incidents
in Delhi, Ghaziabad have highlighted concerns about
attacks on humans.
These banned dogs can potentially be used as
weapons, but current penalties for owners are seen
as inadequate, especially when these dogs inflict
serious harms or fatalities There's also a lack of
government data or public records tracking the
increase in dangerous dog breeds and taking
necessary measures to control or prohibit them.
Other countries, including Australia, Canada, France,
Germany, and the USA have implemented bans on these
breeds by enacting laws/regulations keeping in view the
safety concern of the people.
The Dogs Act of 1871, which remains in force in England,
Scotland, and Ireland, empowers courts to control or even
destroy dogs. Meanwhile, the Animal Acts of 1971 in
England addresses liability for damage caused by
dangerous animals, holding keepers accountable with
exceptions for non-dangerous species.
Breed Specific Legislation (BSL) is a legal approach
in the USA and Canada that either bans or restricts
certain dog breeds based on their appearances.
Local governments typically enacts BSL, assuming
that specific physical characteristics make some
breeds more dangerous. This can involve complete
bans or regulations like licensing, muzzling and
insurance.
In England, the Dangerous Dogs Act 1991 prohibits breeds
like Pitbull - Terrier, Japanese Tosa, Dogo Argentina and
Fila Brasselirio. The Dangerous Dogs Act 1989
complements the 1871 Act, allowing appeals and
enforcement of control orders.
BSL Originated in the 1980s as a response to stereotypes
associating certain breeds with criminal activity,
particularly among Black individuals.
Breed specific legislation encompasses a range of
measures, from complete bans to various
restrictions, all of which often result in the
euthanasia of many pet dogs in want of concrete law
with regard to the above in this country.
Accordingly the applicant filed a writ petition 13011/2023
before the High Court of Delhi where after appreciating the
contents of the petition the court disposed-off the petition
on 5.10.23 by directing the petitioner/applicant to file the
representation to the authorities concerned, considering
the matter as being urgent and serious in the light of the
above order the applicant petitioner is filling the present
representation to you, to take required steps towards
banning and cancelling the licenses for such dogs and to
save the public from there dangerous actions which has
been noticed by several instances of attacking by such
dangerous dogs on the public by causing serious harms to
them.
In conclusion, we urge and request to make
stronger regulations and enforcement regarding the
ownership and breeding of dangerous dog breeds to
ensure public safety, in line with actions taken by
various other countries.
The request urges prompt compliance within 7
days in the interest of Indian Citizens and the
Nation."
(Emphasis added)
The representation is submitted by a law firm - the Legal Attorneys
and Barristers. It is submitted to the Secretary, Animal Welfare
Board of India. What is stated in the representation is several
legislations all over the globe like United Kingdom, United States of
America and other nations and also quoted certain instances of
United States of America. This is sought to be considered by the
Animal Welfare Board of India. The Animal Welfare Board of India
communicates it to the Department of Animal Husbandry and
Dairying on 31-10-2023. The communication reads as follows:
"F.No.17-36/2023-24/Legal Date 31.10.2023
To,
Mrs. Anamika Nigam
Under Secretary
Department of Animal Husbandry and Dairying
Ministry of Fisheries, Animal Husbandry and
Dairying.
Subject: Representation of Legal Attorneys &
Barristers Law Firm in regard to Writ Petition (C) No.
13011 of 2023 titled as "The Legal Attorneys & Barristers
Law Firm Vs. Union of India & Ors." before the Hon'ble
High Court of Delhi :- reg.
Madam,
With reference to the above-cited subject, it is stated
that Board is in receipt of representation from the
petitioner organisation for consideration of the banning
and cancelling the licenses for such dogs and to save the
public from there dangerous actions of attacking by such
dangerous dogs breeds on the public by causing serious
harms to the public.
2. In this regard, petition was filed by the
organisation for consideration of the banning and
cancelling the licenses for such dogs and to save the
public and has given a detail reasoning based on
which they are requesting make policy for stronger
regulation and enforcement of ownership an
breeding of dangerous dog breeds to ensure etch
public safety in line with the action taken by various
other countries. However, the aforesaid writ has
been dismissed by the Hon'ble High court vide its
order dated 05.10.2023 (copy enclosed) as
withdrawal with a liberty to prefer a representation
before ether appropriate authorities.
3. Further, petitioner organisation has
submitted its representation for consideration of the
banning and cancelling the licenses for such dogs
and to save the public from there dangerous actions
of attacking by such dangerous dogs breeds on the
public by causing serious harms to the public.
4. Therefore, in view of the above, the above
representation is being forwarded for your kind
consideration and necessary action."
(Emphasis supplied)
After the said communication, it appears, that a Committee is
constituted, though no proceedings of the Committee is placed
before the Court. The composition of the Committee is adverted in
the statement of objections. The composition is as follows:
".... .... ....
12. That it is respectfully submitted that, the
representation of the petitioner's organization in W.P. (C)
No. 13011/2023 and WP C No. 15673/2023 was placed
before technical expert committee comprised of the
following member:
(i) Dr. Abhijit Mitra, Animal Husbandry Commissioner,
Chairman,
(ii) Dr. Abhijit Pawde, Principal Scientist, IVRI, Bareilly.
(iii) Ex.Col. Dr. Surinder Saini, Remount Veterinary
Corps.
(iv) Representative of DGFT.
(v) Representative of Customs.
(vi) Representative of Central Zoo Authority.
(vii) Quarantine Officer, AQCS, Delhi.
(viii) Representative from of NLM Division, DAHD.
(ix) Representative from Trade Division, DAHD.
(x) Dr. Vijay Kumar, Joint Commissioner (LH), DAHD,
Member Secretary."
The composition of the Committee, which according to the 1st
respondent is the expert Committee consisted of Central Zoo
Authority and representatives from the Trade Division and Animal
Husbandry Commissioner, inter alia. There is no expert in the
Committee who would know about dogs. Bureaucrats have sat and
decided about banning of breeds of dogs. The recommendation of
the Committee is what is found in the impugned Circular. The
impugned Circular reads as follows:
"D.O.V-11/1/2024-Anlm_Dadf Dated, 12th March, 2024
Sir,
I would like to draw your kind attention on the
serious recent issues of death of human being due to dog
bites by some ferocious breeds of dogs kept as pet. The
Department of Animal Husbandry and Dairying,
Government of India has been receiving representation
from various citizens, citizen forum and Animal Welfare
Organization etc. to ban some of the breeds of dogs to
keep them as pet and other purpose. Further, a Writ
petition No. 15673/2023 titled as "The Legal Attorneys &
Barristers Law Firm vs UOI & Ors" filed before the Hon'ble
High Court of Delhi to ban some of the dog breeds. The
Hon'ble Court in its order dated 06.12.2023 directed "that
after consulting all stakeholders, the UOI shall decide
petitioner's representation dated 05.10.2023 as
expeditiously as possible, preferably, within 3 months from
today".
2. The Department of Animal Husbandry and
Dairying constituted an Expert Committee under the
Chairmanship of Animal husbandry Commissioner
with members from various stakeholder
organizations and experts. The Committee has
identified the following breeds of dogs as ferocious
which are dangerous for human life.
"breeds (including mixed and cross breeds) like
Pitbull Terrier, Tosa Inu, American Staffordshire
Terrier, Fila Brasileiro, Dogo Argentino, American
Bulldog, Boerboel, Kangal, Central Asian Shepherd
Dog (ovcharka), Caucasian Shepherd Dog
(ovcharka), South Russian Shepherd Dog
(ovcharka), Tornjak, Sarplaninac, Japanese Tosa and
Akita, Akbash dog Moscow Guard dog, Cane corso
and every dog of the type commonly known as a Ban
Dog (or Bandog)"
3. The Committee has recommended that the
aforementioned dog breeds including cross breeds
shall be prohibited for import, breeding, selling as
pet dogs and other purposes. Therefore, it is
requested that the local bodies, Department of
Animal Husbandry shall not issue any licenses or
permit for sale, breeding of dogs breeds as
mentioned above and keeping of these dog breeds
and shall be banned. The Local Bodies may also issue
necessary implementation guidelines in this regard.
However, the dogs which have already kept as a pet
shall be sterilized so that further breeding may not
happen.
4. I would further like to inform that the
Central Government has published Prevention of
Cruelty to Animal (Dog breeding and marketing)
Rules, 2017 and Prevention of Cruelty to Animal (Pet
Shop) Rules, 2018. The Implementation of the Rules
is vested on the Local Bodies and State Animal
Welfare Board as well as Department of Animal
Husbandry Department. It is requested to direct the
concerned authorities to implement the
aforementioned Rules.
With regards,
Yours sincerely,
Sd/-
(Dr.O.P.Chaudhary)"
(Emphasis added)
The impugned Circular has several breeds of dogs that would be the
subject matter of ban and Local Bodies have been directed to issue
necessary implementation guidelines with regard to import,
breeding, selling the dogs, that are found in the Circular as pet
dogs and their usage for other purposes. The dogs which have
already been kept as pet dogs have to be mandatorily sterilized. As
observed hereinabove, it is a Circular. Whether a Circular can bring
about such a sweeping effect, is what is necessary to be noticed,
for which I deem it appropriate to notice, breed ban or restrictions
imposed in other countries and the manner of such imposition.
LEGISLATION ELSEWHERE:
11. Dog ban is not alien to any country in the globe, but have
happened on promulgation of legislations. It could be breed
specific ban or breed specific restrictions. In the United Kingdom,
The Dangerous Dogs Act is a breed specific legislation. The Act is
notified to prohibit persons from having, in their possession or
custody, dogs belonging to certain types of breeds, initially for the
purpose of imposing restrictions on fighting. There are about 6
types of dogs in the said legislation and they are as follows:
(i) Pitbull terrier
(ii) Japanese tosa
(iii) Dogo Argentino
(iv) Fila Brasileiro
(v) American XL bully
(vi) Cross Breeds of abovementioned dogs.
(Emphasis supplied)
CANADA: In Canada the legislation is by way of bye-laws in
every province. In Ontario province, Dog Owners' Liability Act is
in place and the breeds are almost similar to what is found in the
Dangerous Dogs Act of the United Kingdom. Except permitted by
the Act or the Regulations, no person can own a pet/dog. In terms
of Bye-law No.6 of Ontario province, it is similar throughout all the
provinces.
AUSTRIA: In Austria, Vienna dog licence is in place by
regulating dog breeds. Dog owners of specific dog breeds are
required to take an examination, if the dog breeds fall under the
categories enumerated therein. Without taking licence examination,
no dog can be made a pet.
IRELAND: In Ireland, the Control of Dogs Regulation
1998, is in place. All the dogs that are now found in the impugned
circular find a place in the Control of Dogs Regulation 1988 of
Ireland. The Control of Dogs Regulation has emanated from the
Control of Dogs Act of Ireland in 1986. Therefore, it is controlled by
legislation.
DENMARK: In Denmark most of the dog breeds, which are
more or less similar to the ban imposed in the impugned circular,
are banned / restricted but they are banned by way of amendments
to the Dogs Act and the Animal Protection Act by bringing in
amendments in the years 2005 and 2006. Therefore, dog ban in
Denmark is regulated by legislation.
FRANCE: France has brought in French Rural Code since
01-06-1999. The dogs are classified into several categories
depending on ferociousness and dangerousness that the dogs
project. Most of the dogs that are found in the impugned circular
are found in the French Rural Code as well.
GERMANY: In Germany, restrictions on dog rearing,
transport and import is regulated by Dog Transfer and Import
Restrictions Act, which has classified several dogs to be
dangerous in several places of Germany. Most of the dogs classified
as dangerous found a place in the impugned circular. But, it is
regulated under the Dog Transfer and Import Restrictions Act.
NORWAY: In Norway, the banned specific dog breeds are
banned by way of legislation. Prohibition of dangerous dogs is what
is in place and it is forbidden to keep, breed or introduce dangerous
dogs or to import sperm or embryos from dangerous dogs. There
are five dogs classified as dangerous. Those are also found in the
impugned circular.
SPAIN: In Spain, specific dog breeds are restricted and
regulated by law right from the year 1999. Certain canine species
of potentially dangerous animals form a part of the law, depicting
them to be potentially dangerous dogs. Here again, the names of
the breeds are somewhat similar to what is found in the impugned
circular.
SINGAPORE: In Singapore, dog breeds are restricted and
regulated under the Animals and Birds Act of Singapore and
the Animal and Birds (Dog Licensing and Control) Rules,
2007. Specified dogs are found in the second Schedule to the said
Rules. Here again the breeds are similar.
AUSTRALIA: In Australia, specific dog breeds are regulated
and restricted under the Animal Management (Cats and Dogs)
Act, 2008. Specific dogs are found in different States of Australia
that are subject matter of Regulation or banning as the case would
be. Liberal procedure is laid down under the said Act.
NEW ZEALAND: In New Zealand, restriction of specific breed
is under the Dog Control Act. A chapter is dedicated to dangerous
dogs. The classification and its effect is also found in the statute
itself. Most of the dog breeds that are found in the said statute are
found in the impugned circular.
UNITED STATES OF AMERICA: Even in the United States of
America, separate States have separate laws regulating and
prohibiting dogs by classifying them as dangerous and potentially
dangerous dogs under different regulatory regime in different
States. Nonetheless, it is completely regulated by Regulations.
I have thought it appropriate to quote the aforesaid
regulatory regime of all the countries where dogs are banned only
to drive home that banning of dogs is not alien to law, but banning
of dogs everywhere has taken place only by legislations in a
manner known to law in those countries. Most of the dog breeds
that are now sought to be prohibited by the impugned circular find
place in every country's regulatory regime of banning those breeds.
As observed, it is by law. By law would mean, by legislation of
those countries. It is not that there are no legislations in this
country.
LEGISLATIONS IN INDIA:
12. The primary legislation in India is the Prevention of
Cruelty to Animals Act, 1960 ('the Act' for short). Under the Act,
there are several Rules notified. The reason for promulgation of the
Act and the Rules are specifically found in the Act and its regulation
in the Rules. Though it is not dog specific, agriculture and animal
husbandry are sought to be protected. In furtherance of prevention
of cruelty to animals, the Government of India has notified
Prevention of Cruelty to Animals Act, 1960. It is promulgated
as an Act to prevent infliction of unnecessary pain or suffering on
animals. Section 4 of the Act deals with establishment of Animal
Welfare Board. The Animal Welfare Board is to be established for
the promotion of animal welfare and protecting of animals from
being subjected to unnecessary pain and suffering. Section 5 deals
with the constitution of the Board. Sections 4 and 5 read as follows:
".... .... ....
4. Establishment of Animal Welfare Board of India :
(1) For the promotion of animal welfare generally and for the
purpose of protecting animals from being subjected to
unnecessary pain or suffering, in particular, there shall be
established by the Central Government, as soon as may be after
the commencement of this Act, a Board to be called the 3
(Animal Board of India.)
(2) The Board, shall be a body corporate having perpetual
succession and a common seal with power, subject to the
provisions of this Act, to acquire, hold and dispose of property
and may by its name sue and be sued.
5. Constitution of the Board : (1) The Board shall consist
of the following persons, namely:
(a) the Inspector General of Forests, Government of India,
ex-officio,
(b) the Animal Husbandry Commissioner to the Government
of India, ex-officio;
(ba) two persons to represent respectively the Ministries
of the Central Government dealing with Home Aff
airs and Education, to be appointed by the Central
Government;
(bb) one person to represent the Indian Board for Wild
Life, to be appointed by the Central Government;
(bc) three persons who, in the opinion of the Central
Government, are or have been actively engaged in
animal welfare work and are well-known
humanitarians, to be nominated by the Central
Government;)
(c) one person to represent such association of veterinary
practitioners as in the opinion of the Central
Government ought to be represented on the Board, to
be elected by that association in the prescribed manner;
(d) two persons to represent practitioners of modern and
indigenous systems of medicine, to be nominated by the
Central Government;
(e) one person to represent each of such two municipal
corporations as in the opinion of the Central
Government ought to be represented on the Board, to
be elected by each of the said corporations in the
prescribed manner
(f) one person to represent each of such three organisations
actively interested in animal welfare as in the opinion of
the Central Government ought to be represented on the
Board, to be chosen by each of the said organisations in
the prescribed manner;
(g) one person to represent each of such three societies
dealing with prevention of cruelty to animal as in the
opinion of the Central Government ought to be
represented on the Board, to be chosen, in the
prescribed manner;
(h) three persons to be nominated by the Central
Government,
(i) six Members of Parliament, four to be elected by the
House of the People (Lok Sabha) and two by the Council
of States (Rajya Sabha).
(2) Any of the persons referred to in clause 9a) or 6
[clause (b) or clause (ba) or clause (bb) of sub-section (1) may
depute any other person to attend any of the meetings of the
Board.
(3) The Central Government shall nominate one of the
members of the Board to be its Chairman and another member
of the Board to be its Vice-Chairman.)
5A. Reconstitution of the Board : [5.A (1) In order
that the Chairman and other members of the Board hold off ice
till the same date and that their terms of off ice come to an end
on the same date, the Central Government may, by notification
in the Official Gazette, reconstitute, as soon as may be after the
Prevention of Cruelty to Animals (Amendment) Act, 1982 comes
into force, the Board.
(2) The Board as reconstituted under sub-section (1) shall
be reconstituted from time to time on the expiration of every
third year, from the date of its reconstitution under sub-section
(1).
(3) There shall be included amongst the members of the
Board reconstituted under sub-section (1), all persons who
immediately before the date on which such reconstitution is to
take effect, are Members of the Board but such persons shall
hold office only for the unexpired portion of the term for which
they would have held office if such reconstitution had not been
made and the vacancies arising as a result of their ceasing to be
Members of the Board shall be filled up as casual vacancies for
the remaining period of the term of the Board as so
reconstituted:
Provided that nothing in this sub-section shall apply in
relation to any person who ceases to be member of the Board
by virtue of the amendment made in sub-section (1) of section
5 by sub-clause (ii) of clause (a) of section 5 of the Prevention
of Cruelty to Animals (Amendment) Act, 1982)."
There are many persons to be a part of the composition of the
Board in terms of Section 5. Two persons from the Ministry; one
person from the Indian Board for Wild Life; three persons who are
actively engaged in animal welfare work and well-known
humanitarians in the opinion of the Central Government; one
person to represent veterinary practitioners; two persons to
represent modern and indigenous system of medicine; one person
from the municipal corporation; one person from any organization
of the animal welfare, inter alia. Control of stray dogs also would
come within the functions of the Board. Section 10 of the Act
deals with the power of the Board to make regulations. Section 38
of the Act deals with power to make Rules. In furtherance of the
power conferred under Section 38, the Government of India has
promulgated from time to time three set of Rules. The first one to
come about was, Animal Birth Control (Dogs) Rules, 2001. The
second being, Prevention of Cruelty to Animals (Dog Breeding
and Marketing) Rules, 2017. The third one being, Prevention
of Cruelty to Animals (Pet Shop) Rules, 2018.
13. THE RULES:
I. The Animal Birth Control (Dogs) Rules, 2001 ('ABC' Rules
for short):
Certain provisions of the ABC Rules are required to be
noticed. Section 2 deals with definitions, 2(f) defines an 'owner', it
reads as follows:
"2. (f) "owner" means the owner of an animal and includes
any other person in possession or custody of such animal
whether with or without the consent of the owner;"
Rule 3 classifies dogs and their sterilization, it reads as
follows:
"3. Classification of dogs and their Sterilization:
(1) All dogs shall be classified in one of the following two
categories (i) pet dogs, (ii) street dogs.
(2) The owner of pet dogs shall be responsible for
the controlled breeding, immunization,
sterlization and licensing in accordance with
these rules and the law for the time being in
force within a specified local area.
(3) The street dogs shall be sterilized and immunized by
participation of animal welfare organizations, private
individuals and the local authority."
(Emphasis supplied)
Rule 3 deals with sterilization of two kinds of dogs - pet dogs and
street dogs. It directs that the owners of pet dogs would be
responsible for control, breeding, immunization and sterilization.
The street dogs would be sterilized by the Local Authority.
Rule-4 deals with composition of the Committee/formation of the
Committee and it reads as follows:
"4. Formation of Committee: A monitoring
committee consisting of the following persons shall
be constituted by the local authority namely:
(a) Commissioner/Chief of the local authority, who
shall be the ex-officio Chairman of the
Committee.
(b) A representative of the Public Health
Department of the local authority.
(c) A representative of the Animal Welfare
Department if any of the local authority.
(d) A veterinary doctor
(e) A representative of the district Society for
Prevention of Cruelty to Animals (SPCA)
(f) At least two representatives from the Animal
Welfare Organizations operating within the said
local authority.
(g) A Representative of the people who is a
humanitarian or a well known individual who
has experience in animal welfare in the locality.
(Emphasis supplied)
Rule-5 deals with functions of the Committee and it reads as
follows:
"5. Functions of the Committee: The committee
constituted under rule 4 shall be responsible for planning
and management of dog control programme in accordance
with these rules. The committee may:
(a) issue instructions for catching, transportation,
sheltering, sterilisation, vaccination, treatment and
release of sterilized vaccinated or treated dogs.
(b) authorize veterinary doctor to decide on case to
case basis the need to put to sleep critically ill
or fatally injured or rabid dogs in a painless
method by using sodium pentathol. Any other
method is strictly prohibited.
(c) create public awareness, solicit co-operation
and funding.
(d) provide guidelines to pet dog owners and
commercial breeders from time to time.
(e) get a survey done of the number of street dogs by
an independent agency.
(f) take such steps for monitoring the dog bite
cases to ascertain the reasons of dog bite, the
area where it took place and whether it was
from a stray or a pet dog.
(g) Keep a watch on the national and international
development in the field of research pertaining
to street dogs' control and management,
development of vaccines and cost effective
methods of sterilization, vaccination, etc."
(Emphasis supplied)
The Committee constituted under Rule 4 would be responsible for
planning and management of dog control programme. The
composition is a representative from the Public Health Department;
Animal Welfare Department; a District Society for Prevention of
Cruelty to Animals; two representatives from the Animal Welfare
Organizations within the local authority; a representative of the
people who is a humanitarian or a well known individual who has
experience in the animal welfare in the locality. Therefore, the
classification of dogs, formation of a committee and functions of the
Committee are all statutorily determined. If the composition of the
Committee found in the Act and the Rules supra are read in tandem
what would unmistakably emerge is, that the impugned circular has
emanated from an improperly constituted Committee, which is on
the face of it contrary to the Act and the Rules. Therefore, any
recommendation by a Committee which is improperly constituted
would be a nullity in law.
II. Prevention of Cruelty to Animals (Dog Breeding and
Marketing) Rules, 2017 (the 'Breeding Rules' for short):
These are Rules which are breeder specific, which are also
promulgated invoking the rule making power under Section 38 of
the Act. Rule 2(l) defines what is a 'pet shop' it reads as follows:
"2 (l) "pet shop" means a shop, place or premises, including any
shop, place or premises in a weekly or other market, where pet
animals are sold or housed, kept or exhibited for sale, or where
any retail or whole-sale business involving the selling or trading
of pet animals are carried out;"
Rule 3 deals with prohibition of breeding of dogs without
registration. Rule 13 mandates grant of licence for such
registration. Rules 5 and 6 append certain schedule. The Part -I of
the schedule deals with facilities provided by a breeder in an
establishment. There are about 4 schedules therein.
III. Prevention of Cruelty to Animals (Pet Shop) Rules, 2018
('Pet Shop Rules' for short):
These Rules deal with establishment, maintenance and care
of pet shops. These are narrated only to notice that, dog specific
and animal specific Rules have been in place by way of legislations
promulgated from time to time by the Government of India.
14. In the teeth of the statute, the Government of India could
not have imposed a sweeping ban - a breed specific ban by way of
a circular. The impugned circular narrates that it is pursuant to a
Committee constituted. The constitution of the Committee is as
observed hereinabove. It undoubtedly falls foul of the statute.
Therefore, the Circular insofar as it is contrary to the necessary
members of the Committee would tumble down like a pack of cards.
15. The High Court of Delhi recorded the undertaking of the
Union of India that the representation supra would be considered
after consulting all stakeholders. It is an admitted fact that no
stake holder is consulted. This Court is not of the opinion that
every dog owner should be consulted, but the stakeholder would
mean the organizations which deal with rights of animals or
prevention of cruelty to animals or even the breeding organizations
like the Kennel Club of India - the 3rd respondent, in the least,
these ought to have been consulted. The Circular falls foul of
necessary consultation of the stakeholder as was necessary in
terms of the undertaking before the High Court of Delhi. For the
aforesaid reasons, the circular is rendered unsustainable.
RESPONSIBLE PET OWNERSHIP:
16. Attacks by dogs hitherto other animals or even to the
human beings is not uncommon anywhere in the globe and not
even in this Nation. It is in public domain that every now and then
the PETA or individual citizen have raised concern about the dogs
which are ferocious or otherwise, indulging in inflicting harm upon
citizens. The intervener PETA has placed plethora of material to
demonstrate such instances, a few of them I deem it appropriate to
notice:
An incident on 20-01-2024 is reported that the dog breed
pitbull has attacked a toddler who received 3 fractures and
multiples stitches; an American Bulldog attacked a 7 years old girl
in Delhi; again, a German Shepherd attacked a 2 years old in Delhi
and a 70 years old women in Roorkee was mauled to death by
American Bulldog. It is not only the human beings that are
attacked, but 3 pitbull dogs in Bhondsi mauled down a cow. There
are several instances where dogs have indulged in biting the private
parts of man. All these factors are in public domain.
17. It is not that pitbull or American bulldog or any other pet
dog, is a dog that is roaming in the streets. It is a dog owned by
pet owners. Therefore, it is the pet owners would become
responsible for the safe keep of the citizens and other animals
around the area, in which they would own the pet from the jaws of
such pet. They are wanting to own the pet which is ferocious or
otherwise, it would be the responsibility of such pet owners to
oversee the safety of the citizens and animals around. They are to
be held to be accountable for any kind of irresponsible pet
ownership.
18. These are the factors that will have to be deliberated
upon by the Union of India, by bringing in any law to ban certain
breeds. It is not only those dogs which are branded ferocious that
can indulge in inflicting harm upon the human beings or animals in
the surrounding. Any dog can become ferocious. A dog bite is a
dog bite, be it from a branded ferocious dog or any other dog. The
appropriately constituted Committee should delve upon the concept
of responsible pet ownership to be protected, and irresponsible pet
ownership to be penalized.
19. In the considered view of this Court, breed bans have
never resulted in responsible pet ownership. Therefore, it is
necessary under the statute i.e., the Rules supra, to issue certain
guidelines with regard to responsible pet owners. The reason to
declare these breed of dogs, as dangerous is that, they are
ferocious and would pose a potential threat. A blanket psychological
thought process of this kind cannot and will not lead to any solution
to the problem. It is for the dog owners to act responsibly that their
pets would not harm any other citizen/other living beings in the
vicinity or anywhere. Thus, pet owners would become solely
responsible for the act of their dogs, if they are ferocious or
dangerous, and the pet owners have kept them despite their
characteristic being projected, they should act responsibly, and
responsible pet ownership must emerge as a sine qua non to pet
ownership, as it is in public domain that dogs are more likely to
become aggressive when they are unsupervised, un-nurtured and
not socially conditioned to live closely with human beings and other
dogs / animals. It is this that has to be emphasized on pet owners.
20. The Circular upon which the Government of India seeks to
bring in the ban would necessarily vanish, for it being completely
contrary to law and no stake holders being heard in the matter. As
observed in the interim order, it is not that every dog owner should
be heard in the matter. Therefore, their stakeholder, at least the
Kennel Club of India which is said to be the sole registering
Authority is to be heard in the matter. The hearing should not stop
with the Kennel Club of India, but PeTA who is also concerned with
the animal welfare, should also be heard in the matter. In the
circumstances, the impugned Circular runs counter to law and
defeats logic. The upshot of the preceding analysis is the following:
21. SUMMARY OF FINDINGS:
(i) The High Court of Delhi from which the entire impugned
action has sprung has recorded the undertaking of
Union of India that they would hear all the
stakeholders. It is an admitted fact that none of them
are heard.
(ii) The composition of the Committee is not in consonance
with the Rules framed under the Prevention of Cruelty
to Animals Act, 1960. The Union of India could not
have imposed the ban without an appropriate
recommendation from a properly constituted
Committee.
(iii) The Union of India by the impugned circular could not
have imposed a blanket ban, in the teeth of the Rules in
force. The Circular travels beyond what is found in the
Rules.
(iv) On all the aforesaid, the Circular cannot but be held to
be contrary to law and therefore, requires to be
obliterated.
(v) The obliteration will not come in the way of the Union of
India bringing in an amendment to any of the Rules
framed under the Prevention of Cruelty to Animals Act,
1960, after following due process of law, as observed in
the course of the order.
(vi) In the event of the re-birth of what is now obliterated,
the stakeholders shall be heard. Stakeholders would
not mean every pet owner. An organization certifying
the breeds being heard would suffice.
(vii) The Company- PeTA who has sought to intervene has
placed elaborate material rendering assistance to the
consideration of the lis. PeTA also shall be heard by
the Union of India, in the event the Union of India
would bring in a law, as is observed hereinabove.
(viii) Responsible pet ownership is what is necessary to be
considered by the Union of India to be brought in, to
make the pet owners accountable and responsible for
the acts of the dogs, ferocious or otherwise.
(ix) Responsibility of the pet owner would not be limited to
owning oral responsibility. The pet owner should be
made accountable for payment of the entire treatment
of the victim who comes to be injured by the dog,
including claim for damages.
22. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Circular dated 12-03-2024, issued by the 1st respondent
stands quashed.
(iii) The quashment of the Circular will not come in the way
of the Government acting in accordance with law,
bearing in mind the observations made in the course of
the order.
This Court places its appreciation for the able assistance
rendered by Ms. Sai Suvedhya R., Law Intern attached to this
Court.
Sd/-
JUDGE
bkp
CT:MJ
