Kerala High Court
People For Animals (Pfa) vs State Of Kerala on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE GOPINATH P.
TUESDAY, THE 2ND DAY OF NOVEMBER 2021/11TH KARTHIKA, 1943
W.P(C).NO.13603 OF 2021
PETITIONER:
PEOPLE FOR ANIMALS (PFA),
REPRESENTED BY ITS SECRETARY, KARTHIKA, ANAYARA,
THIRUVANANTHAPURAM-695029.
BY ADVS.SRI.K.S.HARIHARAPUTHRAN
SRI.S.R.PRASANTH
SMT.BHANU THILAK
SMT.SRUTHI K.
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY,
DEPARTMENT OF LOCAL SELG GOVERNMENT,
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 ANIMAL WELFARE BOARD OF INDIA,
(MINISTRY OF FISHERIES, ANIMAL HUSBANDRY AND DIARY,
GOVERNMENT OF INDIA).
REPRESENTED BY ITS CHAIRMAN, NATIONAL INSTITUTE OF
ANIMAL WELFARE CAMPUS P.O., 42 KM STONE, DELHI-AGRA
HIGHWAY, NH-2, SEEKRI VILLAGE, BALLAHBGARH,
FARIDABAD, HARYANA-121004.
3 PEOPLE FOR ETHICAL TREATMENT OF ANIMALS (PETA, INDIA),
REPRESENTED BY ITS CHAIRMAN, F-110, 1ST FLOOR,
JAGDAMBA, PLOT NO.13, COMMUNITY CENTRE, PREET VIHAR,
NEW DELHI-110092.
W.P.(C).No.13603/2021 :: 2 ::
ADDL. VINOD SANKAR
RESPONDENT AGED 56 YEARS, S/O SAROJA NAIR, RESIDING AT FLAT
NO.4 NO.1A, BEACON GREEN LILLIES APARTMENT, VETTAMUKKU,
THIRUMALA VILLAGE, TRIVANDRUM.
ADDL. 4TH RESPONDENT IS IMPLEADED AS PER ORDER DTD.
1/10/2021 IN IA.NO.2/21 IN WP(C).NO.13603/2021.
ADDL. DR.SREELATHA
RESPONDENT AGED 58 YEARS,
NO.5 W/O.SREENIVASAN ALIAS IMMANUEL, BETHEL, 11A, QUEENS,
JOSE ALUKKAS IMPERIAL TOWER, KUTTNELLUR P.O.,
THRISSUR - 680 014.
ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDER DTD.
2/11/2021 IN IA.NO.3/21 IN WP(C).NO.13603/2021.
ADDL. SREENIVASAN ALIAS IMMANUEL
RESPONDENT AGED 61 YEARS, S/O.SUBRAMONIAN, BETHEL, 11A, QUEENS,
NO.6 JOSE ALUKKAS IMPERIAL TOWER, KUTTNELLUR P.O.,
THRISSUR - 680 014.
ADDL. 6TH RESPONDENT IS IMPLEADED AS PER ORDER DTD.
2/11/2021 IN IA.NO.3/21 IN WP(C).NO.13603/2021.
BY SRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL
BY SRI.SHYAM PRASANTH, GOVT. PLEADER
BY SRI.JAISHANKAR V.NAIR, CGC
BY SRI.KEERTIVAS GIRI, AMICUS CURIAE
BY ADV.SMT.SAYUJYA
BY ADV.SRI.K.R.RAJEEV KRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.10.2021, THE COURT ON 02.11.2021 DELIVERED
THE FOLLOWING:
W.P.(C).No.13603/2021 :: 3 ::
'C.R.'
JUDGMENT
A.K. Jayasankaran Nambiar, J.
This writ petition, in the nature of a public interest litigation,
has been filed by a person aggrieved by the stand of the office
bearers of the resident association of the apartment complex in
which he resides. It is alleged that, by taking shelter under a clause
in the bye-laws of the association that prohibits the residents from
keeping pets of their choice in their individual apartments, the office
bearers of the association have issued notices to him asking him to
remove his pet from the premises. During the pendency of the writ
petition, other persons impleaded themselves as the additional fourth
to sixth respondents in the writ petition, faced with similar directives
from the office bearers of their respective resident associations. The
short issue that arises for consideration in this writ petition is
whether such stipulations in the bye-laws of resident associations or
W.P.(C).No.13603/2021 :: 4 ::
other agreements entered into by occupiers of residential apartments
can withstand legal scrutiny under our laws ?
2. The State Government has filed a statement indicating that
it does not consider such stipulations justified and that denying
permission to occupiers of residential apartments, to keep pets of
their choice, while infringing their fundamental rights would also
infringe the fundamental freedoms recognised in animals by the
decision of the Supreme Court in Animal Welfare Board of India
v. A. Nagaraja and Others - [2014 (7) SCC 547]. In the counter
affidavit filed on behalf of the Animal Welfare Board of India, the
stand taken is that the Board has been constituted in terms of the
Prevention of Cruelty to Animals Act, 1960 [hereinafter referred to as
the 'PCA Act'] with the object of ensuring that unnecessary pain or
suffering is not inflicted on animals. It is stated that the Board has
from time to time issued advisories and circulars to government
authorities and local authorities on various issues including the
feeding of community dogs and the keeping of pet animals. Pointed
reference is made to the guidelines dated 26.02.2015 issued for the
benefit of Residents' Welfare Associations and Apartment Owners
Associations.
W.P.(C).No.13603/2021 :: 5 ::
3. We have heard Ms. Bhanu Thilak, the learned counsel for
the petitioner, the Additional Advocate General Sri. Ashok M.
Cherian, assisted by the learned Government Pleader Sri. Shyam
Prasanth, for the State Government, Sri. Jaishankar V. Nair, the
learned counsel for the Animal Welfare Board of India, Ms. Sayujya,
the learned counsel for the additional 4 th to 6th respondents and Sri.
Keertivas Giri, the learned amicus curiae. In his written submissions
filed after the hearing, the learned amicus curiae emphasises the
necessity for striking a balance between the rights enuring to a pet
owner to keep a pet of his/her choice in his/her residential apartment
and the rights of his/her neighbours to a life free of any nuisance. He
suggests the imposition of conditions on the pet owners that would
safeguard the interests of their neighbours and further points out
that the legislative lacuna in the PCA Act & Rules in that regard can
be addressed by the Central Government by framing Rules in terms
of Section 38 of the PCA Act.
4. The trajectory of animal rights jurisprudence in India has
sadly been a retrograde one. Over the years we have virtually moved
from an eco-centric worldview where animals, like humans were seen
as living beings containing a life force and therefore morally worthy,
to an anthropocentric one where humans alone are seen as morally
W.P.(C).No.13603/2021 :: 6 ::
worthy and privileged to enjoy the bounties that nature has to offer.
E.Szucs, R.Geers, T. Jezierski, E.N.Sossidou and D.M.Broom, in
a paper on 'Animal Welfare in Different Human Cultures,
Traditions and Religious Faiths'- Asian-Aust.J.Anim.Sci. Vol.25,
No.11 (Nov.2012) pp.1499-1506, observe that the religions of the
east such as Jainism, Buddhism and Hinduism have always believed
in non-injury to living beings and a repeated, cyclical embodiment of
all living beings. Since according to the said religions, ancestors
return in animal form, animals have to be treated with the respect
that is due to humans. The vedas set out the code of 'sarva-bhuta-
hita' that exhorts people to see the same life in all creatures
regardless of their external manifestation. Those who cannot
understand this principle of life in lesser beings miss the meaning of
life altogether and risk losing their sense of humanity. Islam too
teaches that the almighty has given people power over animals, yet
to treat them badly is to disobey his will. The words of the prophet
state that animals should be killed only out of necessity and that
doing otherwise is a sin. Ancient Indian jurisprudence in the area of
animal welfare was therefore truly eco-centric for it recognised the
moral worth of life forms other than humans. The anthropocentric
shift was probably the result of over two centuries of British rule, and
W.P.(C).No.13603/2021 :: 7 ::
the Judeo-Christian concept of human dominion over animals that it
brought with it.
5. The above aspects have been noticed by our Supreme Court
while deciding the legality of the practice of 'Jallikattu' in Animal
Welfare Board of India v. A. Nagaraja and Ors - [(2014) 7 SCC
547]. Speaking on the scope and ambit of the PCA Act, it was
observed that the Act is a welfare legislation, which has to be
construed bearing in mind the purpose and object of the Act and the
Directive Principles of State Policy. Since it is trite that welfare
legislations have to be construed liberally in favour of the intended
beneficiaries, it was found that any regulations or guidelines,
whether statutory or otherwise, that purported to dilute or defeat the
welfare legislation and the constitutional principles would need to be
struck down by the courts so as to achieve the ultimate object and
purpose of the welfare legislation. It was emphasized that the court
has a duty under the doctrine of parens patriae to take care of the
rights of animals, since they are unable to take care of themselves as
against human beings. The court went on to hold that the provisions
of the PCA Act had to be interpreted in the backdrop of the
fundamental duties prescribed under our Constitution and
accordingly that animals should now be seen as having certain rights,
W.P.(C).No.13603/2021 :: 8 ::
corresponding to the duties that were prescribed for human beings.
Sections 3 and 11 of the PCA Act recognize five freedoms as inherent
in all animals viz.
1. Freedom from hunger, thirst and malnutrition
2. Freedom from fear and distress
3. Freedom from physical and thermal discomfort
4. Freedom from pain, injury and disease
5. Freedom to express normal patterns of behavior
and the above five freedoms are, for animals, akin to the rights
guaranteed to the citizens of our country under Part III of our
Constitution.
6. We must point out, however, that the PCA Act carves out
exceptions to the freedoms recognised in animals based on the
doctrine of necessity, the necessity being the sub-serving of the
needs of human beings. To this extent, the statute is essentially
welfarist in its approach and not abolitionist. It promotes an
anthropocentric view of animal welfare and does not advocate the
extremist point of view canvassed by abolitionists for whom
exploitation of animals in any form is taboo as it deprives animals of
W.P.(C).No.13603/2021 :: 9 ::
their individual autonomy and inherent dignity. While the latter view,
without doubt, provides an ideal that we must strive to attain as
compassionate and accommodative human beings, sharing our space
on this planet with other living species, it is the legislature that must
enact the law regulating human-animal relations in any society,
based on the policy adopted after ascertaining the views of the
citizenry. Courts can only effectuate the law enacted by the
legislature by giving a meaning to the words and concepts in a
statute that accord with the principles, text and spirit of our
Constitution.
7. Even within the limits of animal welfare recognised under
the PCA Act, we are of the view that the duty cast on the citizenry to
respect the five freedoms recognised in animals is of sufficiently wide
ambit as to require them to refrain from interfering with another
persons right to keep a pet of his choice. In interpreting the
provisions of the PCA Act, we have also to bear in mind the
provisions of Article 48A of our Constitution that obliges the State to
protect and make all endeavours to safeguard the forests and
wildlife, as also Article 51A (g) of our Constitution that imposes a
duty on every citizen of our country to protect and improve the
natural environment and to have compassion for living creatures.
W.P.(C).No.13603/2021 :: 10 ::
Further, in Prakash v. State of Kerala - [2020 (2) KLT Online
1011], a Division Bench of this Court has found the citizens' choice
to rear pets as traceable to their fundamental right to privacy under
Article 21 of our Constitution. It follows therefore that clauses in the
bye-laws of resident associations, such as the one impugned in this
writ petition, that seek to prevent owners/occupiers of residential
apartments from keeping pet animals of their choice in the
residential apartments owned/occupied by them, or accessing the
elevators and common facilities in the apartment buildings, cannot
withstand legal and constitutional scrutiny. Such clauses defeat the
objectives of the PCA Act and the principles recognised under our
Constitution, and have necessarily to be struck down as illegal and
unconstitutional.
8. The clauses in bye-laws or agreements entered into with
owners of residential apartments cannot have the effect of negating
the fundamental rights of citizens of our country. The decisions in
Basheshar Nath v. CIT & Anr. - [AIR 1959 SC 149] and the
review judgment in Behram Khurshed Pesikaka v. State of
Bombay - [(1955) 1 SCR 613] that it referred to, are authorities
for the proposition that fundamental rights cannot be waived by a
citizen, either expressly or by implication. This is because
W.P.(C).No.13603/2021 :: 11 ::
fundamental rights have not been put in the Constitution merely for
individual benefit, though ultimately they may come into operation in
considering individual rights. They have been put there, as a matter
of public policy and the doctrine of waiver can have no application to
provisions of law, which have been enacted as a matter of
constitutional policy. The said proposition applies with added vigour
when the particular fundamental right is seen as complementing or
augmenting the fundamental freedoms recognised in animals owned
or kept by that citizen. We have no hesitation, therefore, to hold that
those clauses in the bye-laws of resident associations, that seek to
prevent owners/occupiers of residential apartments from keeping pet
animals of their choice in the residential apartments owned by them,
or accessing the elevators and common facilities in the apartment
buildings, are illegal, unconstitutional and unenforceable in law. Our
coastal State, that announces itself to be 'Gods Own Country' to the
visitors who come calling to its shores, cannot be seen denying just
privileges to its animal inhabitants.
9. While holding such clauses as illegal, unconstitutional and
unenforceable, we have to observe that the aforesaid freedoms
recognised in animals, and the co-relational right recognised in pet
owners, is by no means absolute or unconditional and must
W.P.(C).No.13603/2021 :: 12 ::
necessarily be qualified by safeguards designed to protect the
competing rights of others including the owners/residents of
neighbouring apartments. Accordingly, we make it clear that, short of
effectively prohibiting the keeping and maintaining of pets in the
residential apartments and appurtenant premises, the resident
associations may stipulate reasonable conditions that must be
adhered to by the owners/residents of individual apartments while
keeping pets therein. We notice from the pleadings before us that the
Animal Welfare Board of India has through its letter dated
26.02.2015 issued certain guidelines on this subject and the said
guidelines could be adopted by the resident associations while
stipulating conditions for the keeping of pets in the apartment(s)
concerned. For ease of reference, the guidelines are extracted herein
below:
"Guidelines for Residents' Welfare Associations, Apartment Owners'
Associations, etc:
I. WITH RESPECT TO PET DOGS & PET OWNING
RESIDENTS:-
Banning pets:
a) Please bear in mind that even by obtaining consensus, or even
if the majority of residents and occupiers want it, residents
welfare associations & apartment owners associations cannot
legally introduce any sort of 'ban' on the keeping of pet dogs.
They cannot insist that 'small sized' dogs are acceptable, and
'large sized' dogs are not. They cannot cite dog barking as a
valid and compelling reason for any proposed ban or
restriction.
W.P.(C).No.13603/2021 :: 13 ::
b) If the residents or occupiers that have pets are not violating any
municipal or other laws, it is not permissible for residents
welfare associations & apartment owners associations to object
to their having pets as companions. The general body cannot
frame bye-laws or amend them in a manner that is at variance
with the laws of the country. Even by a complete majority, a
general body cannot adopt an illegality.
c) Please therefore bear in mind that even by amending bye-laws
or regulations or otherwise, such a 'ban' cannot be put into
place since it is illegal, and does not have the sanction of law.
In fact, in trying to 'ban' pets, or limit their number, residents'
welfare associations & apartment owners associations interfere
with a fundamental freedom guaranteed to the citizens of India,
i.e. the freedom to choose the life they wish to live, which
includes facets such as living with or without companion
animals.
Use of lifts by pets:
d) Residents welfare associations & apartment owners associations
cannot disallow pets from the use of lifts; and no charges can be
imposed by them either.
Use of parks by pets:
e) Seeking to ban pets from gardens or parks, is short-sighted.
Firstly, you may or may not have any manner of right over the
garden or park in question. Secondly, pets that are not
properly exercised may exhibit aggressive conduct in
frustration; and that cannot contribute to the benefit of the
residents. It may be better to arrive by consensus at timings
acceptable to all residents, when pets can be walked without
inconvenience to other residents. These timings can then be
intimated to the general body.
Use of leashes/muzzles by pet owners, defecation by pets in
community premises, imposition of fines and other similar
measures:
f) Pet owners are advised to and must leash their pets in all
common areas. However, residents welfare associations &
apartment owners associations cannot insist on the use of
muzzles. Please do remember, the law already provides for
penalties for negligent pet owners, which the aggrieved parties
can avail of.
W.P.(C).No.13603/2021 :: 14 ::
g) Please bear in mind that in the absence of central or state laws
requiring cleaning of pet excrete by pet owners, residents
welfare associations & apartment owners associations cannot
impose any rule, regulation or bye-law, with respect to the
same, or impose special charges or fines on pet owners. They
can, however, request them to do so. The Board also
recommends to and advises all pet owning residents to accept
reasonable and lawful requests to participate in solutions
aimed at peaceful community living.
h) Pet owners are advised to 'scoop the poop', or together with
residents welfare association & apartment owners associations,
and other residents, experiment with the creation of pet
defecation areas within community premises, or arrive at other
imaginative solutions through consensus. Residents welfare
associations & apartment owners associations cannot however
impose fines and special charges of any kind on pet owners,
because there is no mandate in law for the same.
Intimidation:
i) Lastly, please bear in mind that if any association succeeds in
intimidating a pet owner into 'giving up' or 'abandoning' a pet,
it will actually have abetted violation of law; and may well be
aggravating the menace of ownerless animals on the street,
that are not accustomed to living on the street and therefore
get involved in and lead to accidents, injuries and deaths.
Please also bear in mind that intimidation is an offence in law."
10. We believe the time has indeed come to nudge our
citizenry into respecting the claims of other living beings that too
have rights in our shared ecosystem. Compassion and empathy are
the very essence of civilization and we must strive to preserve these
values as part of our culture. It is often an inadequate understanding
of the subject that fuels one's intolerance to that 'other' and hence
the State and its institutions of governance must take appropriate
W.P.(C).No.13603/2021 :: 15 ::
measures to inculcate a spirit of accommodation towards animals
amongst our people, preferably by introducing animal awareness
programmes at the school level in the State.
11. We allow this writ petition by declaring that clauses in any
bye-law or agreement, that have the effect of absolutely prohibiting a
person from keeping a pet of his/her choice in a residential unit
occupied by that person, should be treated as void and unenforceable
in law. Consequently, resident owners' associations and resident
welfare associations shall desist from putting up notice boards and
signposts prohibiting the keeping or entry of pets in their respective
premises. This declaration shall be seen as one operating in rem and
this judgment as one covered by Section 41 of the Indian Evidence
Act, 1872. The Registry shall send a copy of this judgment to the
Chief Secretary of the State who shall, in turn, take immediate steps
to issue necessary instructions to the newly re-constituted State
Animal Welfare Board, the administrative departments of the State,
and to its law enforcement agencies, so that complaints brought to
their notice by the citizenry, as regards infringement of the rights
declared in this judgment receive immediate attention and resolution.
The State Government shall also take note of the suggestions in this
W.P.(C).No.13603/2021 :: 16 ::
judgment for the purposes of cultivating a healthy respect for animals
among the people in our State.
Before parting, we wish to acknowledge the able assistance
rendered by all counsel who appeared in this case as also the amicus
curiae Sri.Keerthivas Giri. The enthusiasm shown by them in
espousing the cause of animals has been truly encouraging. May
their tribe increase.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
GOPINATH P.
JUDGE
prp/
W.P.(C).No.13603/2021 :: 17 ::
APPENDIX OF W.P(C).NO.13603/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 04/09/2019
ISSUED BY THE SECRETARY OF ARTECH LAKE
PALACE OWNERS ASSOCIATION, KOLLAM WITH
ENGLISH TRANSLATION.
EXHIBIT P2 TRUE COPY OF THE LEGAL NOTICE ISSUED TO MR.
VINOD SNAKAR DATED 27/04/2020.
EXHIBIT P3 TRUE COPY OF THE E-MAIL DATED 01/12/2020
SEND ON BEHALF OF UNI APARTMENT ASSOCIATION
TO ONE HITESH M. KOTHARI.
EXHIBIT P4 TRUE COPY OF THE BYLAW OF BEACON GREEN
LILLIES APARTMENT OWNERS ASSOCIATION.
EXHIBIT P5 TRUE COPY OF THE GUIDELINES ISSUED BY 2ND
RESPONDENT DATED 26/02/2015.
EXHIBIT P5 TRUE COPY OF THE TRANSFER ORDER ISSUED BY
THE DIRECTOR, TECHNICAL EDUCATION
DIRECTORATE TO MR.SURESH B.K. DATED
19.01.2021.
RESPONDENTS EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF THE AWBI LETTER DATED
03.03.2021 TO IDENTIFY SUFFICIENT NUMBER OF
FEEDING SPOTS FOR STRAY DOGS IN EVERY
DISTRICT AND TO PROPER NOTICE DATED
04/09/2019 ISSUED BY THE SECRETARY OF
ARTECH LAKE PALACE OWNERS ASSOCIATION,
KOLLAM WITH ENGLISH TRANSLATION.
W.P.(C).No.13603/2021 :: 18 ::
EXHIBIT R2(B) TRUE COPY OF THE AWBI LETTER DATED
28.06.2021 TO ALL COMMUNITIES/RWA TO
IDENTIFY ANIMAL FEEDING SPOTS AND TO COMPLY
WITH THE AWBIS GUIDELINE'S DATED 26.05.2015
FOR RESIDENTS TO FEED STRAY DOGS.
EXHIBIT R2(C) TRUE COPY OF THE AWBI LETTER DATED
28.06.2021 TO THE DIRECTOR GENERAL OF
POLICE OF ALL THE STATES AND UT'S.
EXHIBIT R2(D) TRUE COPY OF THE AWBI LETTER DATED
23.03.2020 TO ALL THE CHIEF SECRETARIES OF
THE STATES/UT'S DIRECTED TO KEEP THE
FEED/FODDER OF LARGE ANIMAL AND FOOD.
EXHIBIT R2(E) TRUE COPY OF THE AWBI GUIDELINE DATED
26.02.2015 IN RELATION TO THE FFEDING OF
STRAY DOGS AND PET.
EXHIBIT R2(F) TRUE COPY OF THE AWBI GUIDELINES DATED
15.11.2016, FOR ALLOWING PET DOGS IN PUBLIC
PARKS.
EXHIBIT R2(G) TRUE COPY OF THE GOVERNMENT OF INDIA OFFICE
MEMORANDUM DATED 26.05.2006.
EXHIBIT R2(H) TRUE COPY OF THE HON'BLE HIGH COURT OF
DELHI ORDER DATED 24.06.2021 IN
I.A.NO.4164/2021 IN CS (OS) 277/2020,
DR.MAYA D. CHABLANI VS. RADHA MITTAL &
OTHERS.
ANNEXURE R1(A) TRUE COPY OF CIRCULAR NO.RC3/241/2021/LSGD
DATED 08/08/2021.
EXHIBIT R4(A) TRUE COPY OF THE PLAINT IN O.S.NO.658/2021
PENDING BEFORE THE MUNSIFF'S COURT,
THIRUVANANTHAPURAM.
EXHIBIT R4(B) TRUE COPY OF THE ORDER IN CMP NO.882 OF
2021 DATED 10.08.2021 OF THE CHIEF JUDICIAL
W.P.(C).No.13603/2021 :: 19 ::
MAGISTRATE COURT, TRIVANDRUM.
EXHIBIT R4(C) TRUE COPY OF THE FIR DATED 02.09.2021 IN
CRIME NO.1528/2021 OF POOJAPPURA POLICE
STATION.
//TRUE COPY//
P.S. TO JUDGE
