Posted On 22/08/2011 By In Investigation & Analysis With 1960 Views

Know your Animals’ rights: Mumbai High Court Judgement on elimination of ‘Nuisance’ Stray Dogs and Stay Order from the Supreme Court

“A dog cannot be exterminated because it barks. It is inhuman to kill street dogs. They to have a right to live.. and there are other animals on the street. The ability to procreate can be humanely targeted but killing is strictly prohibited” – Fali S Nariman was The Voice of Stray Dogs at the Supreme Court [S.L.P. (Civil) No. 691 / 2009, titled ‘AWBI vs P.E.S.T. & Ors’]

Mumbai High Court judgement on elimination of 'nuisance' stray dogs

There is a dichotomy between archaic municipal laws, and the ABC (Dogs) Rules, 2001, framed under Section 38 of the PCA, 1960. The former allow destruction of ‘unclaimed’ animals, but the latter do not; and there is no judgment yet, settling on which shall actually prevail? A three-judge bench of the Bombay High Court, comprising of Dr.S.Radhakrishnan, Chief Justice, and Dilip Bhosale, Smt.Vijaya Kaps.Tahilramani, Judges, pronounced 2 judgments on 19th December 2008 on the manner in which stray dogs could be dealt with by the Brihanmumbai Municipal Corporation (BMC) in the BMC administered areas. Justices Bhosale and Tahilramani wrote the majority judgment, and Justice Dr. Radhakrishnan wrote the dissenting judgment. These were pronounced in the following matters on the civil appellate jurisdiction side of the High Court at Bombay [See Bombay High Court Judgement on elimination of ‘nuisance’ Stray Dogs]

 

  1. Appellate side writ petition (PIL) NO.111 OF 2005; People for Elimination of Stray Troubles by its Convener Dr.Rosario Menezes & Anr. Petitioners V/s State of Goa by its Chief Secretary & Ors. .. Respondents
  2. WITH appellate side writ petition NO.8120 OF 2007; S.A.Mohite (Col.) & Others .. Petitioners V/s The Secretary, Union Department of Culture, Govt.of India, New Delhi & Others .. Respondents
  3. WITH appellate side writ petition NO.3069 OF 2007; Ayurvarta Prabodhini .. Petitioner State of Maharashtra & Ors. .. Respondents
  4. WITH appellate side writ petition NO.6257 OF 2006; People for Elimination of Stray Troubles Through its Convenor Dr.Rozario Menezes & Anr. .. Petitioners V/s Union of India & Ors. .. Respondents
  5. WITH ordinary original civil jurisdiction, original side writ petition NO.447 OF 2007; All India Animal Welfare Association .. Petitioner V/s Brihanmumbai Municipal Corporation & Anr. .. Respondents
  6. WITH original side writ petition (L) NO.1432 OF 2004; In Defence of Animals .. Petitioner V/s Union of India & Ors. .. Respondents
  7. WITH original side writ petition NO.1596 OF 1998; Viniyog Parivar Trust & Ors. .. Petitioners V/s Municipal Corporation of Gr.Bombay & Ors. .. Respondents

The majority judgement, i.e. the view propounded by Justices Bhosale and Tahilramani, ostensibly ‘accepted’ the Animal Birth Control (Dogs) Rules, 2001, but went beyond the same in that it vested discretion in the Municipal Commissioner to destroy ‘nuisance’ dogs, without specifically and unambiguously defining what ‘nuisance’ would be, in the context of dogs !

  • Justice S Radhakrishnan, who headed the bench, held that the discretionary power of the civic chief to destroy could of course be exercised if the dogs were rabid, mortally wounded or incurably ill, i.e. the three categories in which animals can be put down in accordance with the Prevention of Cruelty to Animals Act ; and also expanded the same, with the assent of animal activists, to include ‘perennially violent dogs’ within the term ‘incurably ill’, since these ‘pose danger to human beings’. He said dogs can’t be killed at discretion, as permitted under the BMC Act, merely because they cause a ‘nuisance’.
  • Justices Dilip Bhosale dealt at length with the term ‘nuisance’, he maintained that in the canine context, it would mean ‘anything which endangers human life or is injurious to public health’ and ‘a continuously barking dog at night could well be called a permanent source of nuisance’. Smt Vijaya Kapse Tahilramani ‘concurred with Justice Dilip Bhonsale’. Analysis of Justice Bhonsale’s dissenting judgement for Bombay High Court Judgement on Stray Dogs
  • So even though the majority view was that ‘no hard and fast rules can be laid down for what constitutes nuisance’, in the majority judgment they signed, they held that the civic chiefs of Mumbai and the municipalities in Maharashtra and Goa could use their discretionary powers to kill dogs which are found or reported to be a source of public ‘nuisance’.

This order was immediately challenged at the Supreme Court through the Special Leave Petition (Civil) No. 691 / 2009, titled ‘AWBI vs P.E.S.T. & Ors’. This was the lead of the following 5 petitions grouped together:

  1. Special Leave Petition (Civil) 691 OF 2009; ANIMAL WELFARE BOARD OF INDIA .Vs. PEOPLE FOR ELIMINATION.OF STRAY TROUBLE; Appealed Against: ASWP 6257/06 OF HIGH COURT OF BOMBAY
  2. Special Leave Petition(Civil) 11467 OF 2009; SEC.MINISTRY OF ENVIRONMENT & FORESTS .Vs. PEOPLE FOR ELIMINATION.OF STRAY TROUBLE .& ORS; Appealed Against: WP 111/05 OF HIGH COURT OF BOMBAY; This Case is connected to : Special Leave Petition (Civil) 691 OF 2009
  3. Special Leave Petition (Civil) 13004 OF 2009; WELFARE OF STRAY DOG(P.C.TRUST) .Vs. PEOPLE FOR ELIMINATION OF STRAY STRAY TROUBLE & ORS; Appealed Against: WP 111/05 OF HIGH COURT OF BOMBAY; This Case is connected to: Special Leave Petition (Civil) 691 OF 2009
  4. Special Leave Petition (Civil) 1627 OF 2009; VINIYOG PARIVAR TRUST .Vs. BRIHAN MUM.MUNICIPAL CORP.& ORS; Appealed Against: WP 1596/98 OF HIGH COURT OF BOMBAY; This Case is connected to: Special Leave Petition (Civil) 691 OF 2009
  5. Special Leave Petition (Civil) 1740 OF 2009; DEFENCE OF ANIMALS TR. PRES. FIZZAH SHAH .Vs. UNION OF INDIA & ORS.; Appealed Against: VPL 1432/04 OF HIGH COURT OF BOMBAY; This Case is connected to : Special Leave Petition (Civil) 691 OF 2009

In precedence of Municipal vs laws enacted by Parliament in similar context,

  • In ‘Maneka Gandhi vs. MCD & NDMC’, a subordinate judge had taken into account, the provisions of Section 399(2)(b) of the Delhi Municipal Corporation Act that allow for killing, but nevertheless approved of sterilization and vaccination of dogs as a method for controlling them, and also recommended that a scientific approach be adopted in this regard.
  • Thereafter, in the year 2002, a Delhi High Court bench comprising of Justices S.B. Sinha and A.K. Sikri, in the matter of ‘New Friends Colony Resident’s Welfare Association versus Union of India ors.’, approved of the subordinate judge’s judgment in the Maneka Gandhi matter, and followed the Bombay High Court judgment of 1998 in the matter of ‘Viniyog Parivar Trust vs Municipal Corporation of Greater Mumbai’, that prohibited killing (except of incurably ill, and mortally wounded dogs), and provided for sterilization and vaccination.

AWBI’s challenge of the Mumbai High Court judgement is along these lines:

  • Whether a law made by the Legislature of a State can be allowed to override a law enacted by Parliament, and interfere with the implementation of the scheme sought to be promoted, and undermine the objective sought to be achieved by the law enacted by Parliament?
  • Whether an interpretation that allows conflict between a law made by the Legislature of a State and a law enacted by Parliament, is to be preferred over an interpretation that provides for reading down the State Legislation to give effect to the Central Legislation that occupies the field?
  • Whether adopting the principle of harmonious construction in the present context would entail that the Commissioner exercise his discretion to destroy stray dogs under Section 191-BA (2) of Mumbai Municipal Corporation Act, 1888, only in the circumstances prescribed under, and in the manner, and after following the procedure set out for the purpose in the Central Rules, i.e. the Animal Birth Control (Dogs) Rules, 2001, enacted under the Prevention of Cruelty to Animals Act, 1960?
  • Whether an interpretation that allows for the conferring of arbitrary, whimsical, untrammeled, and unbridled powers upon the executive – in the present case, the Commissioner of the municipal authority – can be preferred over an interpretation that envisages that he exercise the discretion conferred upon him, in the circumstances prescribed, and in the manner, and after following the procedure set out in law?
  • Whether it is permissible for the Court, after holding that the discretion conferred upon a state functionary (in the present case, the Municipal Commissioner) cannot be unbridled, and despite noticing that a provision of law (in the present case, Section 191-BA of the Mumbai Municipal Corporation Act) does not lay down any parameters for the exercise of discretion by the said functionary, to nevertheless abstain from laying down parameters/guide-lines for the exercise of discretion by that functionary?
  • Whether the same functionary – in the present case, the Commissioner of the municipal authority – can be allowed arbitrary discretion to kill stray animals under a State enactment [such as Section 191-BA (2) of the Mumbai Municipal Corporation Act], when the Central law occupying the field [i.e. the Prevention of Cruelty to Animals Act, 1960, and the Rules framed thereunder] specifically prescribe the circumstances under which, and the manner in which, the said discretion is to be exercised by the very same functionary, i.e. Commissioner (as head of the Committee formed under Rule 4 of the Central Rules)?
  • Whether the Central Rules, which aim at curbing the ability of dogs to procreate (and thereby curb dog nuisance) in a systematic, area-wise fashion, and which permit destruction/removal of only the incurably ill (including perennially violent), mortally wounded, or rabid dogs, in fact serve to balance the right to life conferred on human beings under Article 21 of the Constitution, with their duty to show compassion to all living creatures under Article 51A (g)?
  • Whether Sections 9(f), 11(1), 11(3), and 13(3) of the Prevention of Cruelty to Animals Act, 1960, being the law enacted by Parliament under Entry 17 of List III in Schedule VII of the Constitution, i.e. ‘Prevention of cruelty to animals’, when read together and with each other, can allow for the random, indiscriminate killing of stray dogs?
  • Whether a scientific and holistic scheme to reduce dog population, and thereby curb dog nuisance, recommended after research by expert bodies such as the World Health Organization, which doesn’t, on the one hand, jeopardize human life since it allows for destruction/removal of incurably ill (including perennially violent), mortally wounded, and rabid dogs, and on the other hand, also achieves the purpose of treating animals with care, compassion, and in a humane manner, is to be preferred over a methodology that does not have scientific sanction, and is known to have failed to curb dog population and nuisance world-wide?
  • Whether the Central Legislative Scheme will have primacy over any contradicting State Law, and whether the general municipal law, which, incidentally, also deals with animals, will have to give way to the special Act of Parliament dealing with prevention of cruelty to animals?
  • Whether the Animal Birth Control (Dogs) Rules enacted under Section 38 of the Prevention of Cruelty to Animals Act in the year 2001, will prevail over the earlier law, i.e. the Mumbai Municipal Corporation Act, which also contains a section dealing with ‘Control and other provisions as to dogs’?

 

The Special Leave Petitions filed by the Animal Welfare Board of India, and others, including the Central Government, Ministry of Environment and Forests, are still pending. They have not yet been finally heard. However, on the first date itself, i.e. the 23rd of January, 2009, the Supreme Court had expressed a prima facie view in favor of the petitioners – the AWBI and the others – by staying the operation of the Bombay High Court order.