(IN) Bombay High Court upholds ABC programs

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From ANIMAL PEOPLE, January/February 2009:

 

 

Bombay High Court upholds ABC programs

 

MUMBAI--The Bombay High Court, in the most legally influential

judicial ruling yet on dog population control in India, on December

19, 2008 upheld the legal validity of the national Animal Birth

Control program, with two amendments to ensure that dogs whose

behavior imminently threatens human life will be killed.

The verdict was widely misreported. Wrote Swati Deshpande

for the Times of India, in one of the most broadly distributed

accounts, " The fate of lakhs [hundreds of thousands] of dogs was

sealed when the Bombay High Court ruled in a majority verdict that

stray canines who 'create a nuisance' by, say, barking too much,

can be killed. The verdict applies not only to an estimated 70,000

stray dogs in the city, but to canines in all of Maharashtra and

Goa. "

In truth, the Bombay High Court specifically stated that

barking is not a canine offense which may be legally punished by

execution.

" The verdict, however, has been stayed for six weeks, and

no dogs will be killed until then, " Deshpande added. The stay was

to allow time for the Animal Welfare Board of India and individual

animal welfare organizations to pursue an appeal intended to

establish definitions and procedural rules for deciding when a dog

can be killed.

" The ambiguity over what is a 'nuisance' dog is over as far

as the Brihanmumbai Municipal Corporation is concerned, " wrote

Sudhir Suryawanshi of the Mumbai Mirror. " The BMC, " as the Mumbai

government is officially known, " said that dogs who bark

continuously and create a disturbance will be termed 'nuisance dogs.'

So too will dogs who chase vehicles. Dr Jairaj Thanekar, chief

health executive, said that they have set a two-year target to end

the stray dog menace. "

" All complaints registered will be forwarded to a monitoring

committee to decide whether the dog should be killed or not. We will

not kill strays indiscriminately, " pledged BMC joint executive

health officer G.T. Ambe, MD. But Ambe believed that " The HC

decision will enable us to kill nuisance dogs without opposition from

animal activists. We will activate all seven dog-catching vans, " he

told Suryawanshi.

" Too many news reports have appeared in full ignorance of the

details of the judgement, with some suggesting that municipal

authorities can start culling or even shooting stray dogs. These

reports are wrong, " responded Animal Welfare Board of India member

and attorney Norma Alvares, who represented the animal welfare

organizations from Goa before Bombay High Court.

" For any municipal council or members of the public to

believe that the days of stray dogs are 'numbered,' or that culling

of stray dogs can commence shortly, as has been reported by some

sections of the press, is a gross misreading of the judgement, "

Alvares warned. " Such fallacious thinking will only land any

municipality that acts on such basis squarely in contempt of court.

" All three judges unanimously agreed that stray dogs cannot

be killed simply or merely because they are stray, i.e., homeless,

ownerless, " Alvares explained in a detailed written statement. " The

judges were also unanimous in their opinion that mass destruction of

stray dogs or random killing of stray dogs is neither permissible nor

acceptable. Such practices are in fact totally prohibited.

" The judges also took a common view that when the authorities

decide that they are required to kill a stray dog, it will have to

be done by humane methods, " Alvares continued. " Shooting and

poisoning dogs are strongly condemned in the judgement.

" All three judges have upheld the World Health

Organization-supported scientific and holistic scheme to reduce dog

population by sterilization and immunization through the

participation of animal welfare organizations, followed by

municipalities across the country as a sound long-term method for

controlling the dog population. Only in the case of specific

'nuisances' that may be caused by individual stray dogs have two out

of the three judges taken the view that such dogs may be eliminated,

if necessary, " Alvares stipulated.

" In short, " Alvares said, " stray dogs found a sympathetic

bench in the Bombay High Court, supremely conscious of the

fundamental duty cast on all citizens of this country by the

Constitution of India to show compassion to all living creatures.

The judgement firmly upholds the concept of animal welfare. It

recognizes that stray dogs too, like all other animals, must be

treated with compassion and it appreciates the progressive and

humanitarian Animal Birth Control rules that were introduced in 2000

by the central government.

 

PEST vs. street dogs

 

The Bombay High Court ruling originated out of a 1994 policy

decision by the Bombay Municipal Corporation to quit gassing dogs and

instead sterilize the street dog population. Rules governing the

street dog sterilization program, carried out by animal welfare

societies as subcontractors, were published in 1998.

The Goa bench of the Bombay High Court banned shooting

healthy stray dogs in 1999 and directed that the stray dog

sterilization program be emulated in Goa, a state south of Mumbai

which was formerly a Portuguese colony. The federal Animal Birth

Control rules introduced in 2000 extended similar programs

nationwide, in compliance with a December 1997 recommendation by the

Animal Welfare Board of India.

" In 2001, " recalled Alvares, " an organization called People

for the Elimination of Stray Troubles pleaded before the Goa Bench of

the Bombay High Court that municipalities should be permitted to

eliminate all stray dogs, and that animal welfare organisations

should be prohibited from assisting the municipal councils with

implementing the ABC Rules. As there was already a judgement of the

Bombay High Court on the issue, the court decided that this matter

ought to be considered afresh by a larger bench. Hence it was placed

before the 3-judge bench, " who issued the December 19, 2008 ruling,

based on five points of Indian constitutional law.

" PEST pleaded that all stray dogs should be killed, and that

the municipal authorities should be directed to do their duty of

eliminating dogs who have no owners, " summarized Alvarez. " PEST

also submitted that the ABC program could not help solve the stray

dog problem, and that the ABC Rules were unconstitutional.

" The Government of India, the Animal Welfare Board of India,

and the animal welfare organisations " whom Alvares represented

" submitted that euthanizing certain categories of stray dogs, " such

as those believed to be rabid or incurably suffering, " was

specifically permitted under the ABC Rules. However, all strays

could not be eliminated merely because they have no human owners. We

also produced statistics to show the efficacy of the ABC program in

areas where it had been adopted. "

" In their judgment, " wrote Alvares, " all three judges have

concurred that mass killing of stray dogs is not permitted under the

Municipal Acts. Neither the Prevention of Cruelty to Animals Act nor

the Municipal Acts cast any mandatory obligation on the authorities

to perforce kill stray dogs who are unclaimed, but only confer

discretionary powers on the respective authorities to kill animals if

it is found necessary to do so. Discretion is not unbridled

discretion, nor an absolute power to destroy stray dogs. The ABC

rules are valid and must be implemented. There is no conflict

between the ABC rules and the Prevention of Cruelty to Animals Act,

and between the PCA Act and the Municipalities Act.

" On the killing of individual stray dogs, the three judges

agreed up to a point, " Alvares explained. " In the ABC Rules only

three classes of stray dogs are permitted to be euthanized: those

who are incurably ill, mortally wounded, or rabid. Further, the

decision to euthanise such dogs has to be made by a qualified

veterinary doctor.

" While accepting these three categories, all three judges

agreed that habitually violent dogs may also need to be euthanized.

Hence, the term 'incurably ill' has been expanded in the judgement to

include dogs who are found to be 'perennially violent.' However, two

of the three judges were of the opinion that even with this

inclusion, the categories as enumerated in the ABC Rules are

insufficient to deal with all types of nuisance caused by dogs.

Hence it was necessary, " in their verdict, " that the municipal

authorities be permitted to exercise their powers to eliminate

individual dogs. "

 

Barking is not capital offense

 

The Bombay High Court verdict decrees that " No hard and fast

rule can be laid down as to the circumstances or the acts or the

omissions which could constitute nuisance. Every case is required

to be decided on its own peculiar facts. "

But the verdict adds, " Dog barking is common, whether by

stray or pet dogs. It may or may not cause nuisance, but

undoubtedly such nuisance cannot lead to destruction of the dog. " By

contrast, the verdict continues, " There are instances where dogs in

a particular locality or street invariably chase every two-wheeler, "

meaning bicycles or motorcycles, " which has resulted in fatal

accidents. Such nuisance of the dog cannot be ignored and will

have to be treated as public nuisance causing injury or damage to

human life. "

Assessed Alvares, " Thus, while leaving the decision to

eliminate nuisance dogs to the discretion of the municipal

authorities, the judges have made clear that " a public nuisance in

the context of stray dogs means anything that endangers life or is

injurious to the health of public at large. The expression

'nuisance' used in the municipal acts refers to nuisance of a public

nature, and not nuisance caused to an individual. "

Further, the Bombay High Court judgement explicitly states,

" The Commissioner [of a city] should exercise the discretion within

the four corners of conscience and it has to be just and proper. The

Commissioner cannot indiscriminately decide to destroy all the dogs.

He cannot enter any building or locality, indiscriminately capture

all the dogs, keep them in the municipal kennel, and then after

waiting for three days, kill all the dogs who are not claimed by

their owner. "

" The judgement is undoubtedly pro-animal welfare, " Alvares

concluded. " It has upheld the ABC Rules and the stray dogs control

program, both of which PEST wanted to kill. It has appreciated the

work of animal welfare organisations. It has rejected outright the

arguments of those who wished that all stray dogs be eliminated from

public places, and that the sterilized healthy dogs not be returned

to society. "

The Bombay High Court verdict is not binding beyond

Maharashtra and Goa, but has been cited as a precedent in Karnataka,

where the Bangalore charity Compassion Unlimited Plus Action is

reportedly pressing charges against the Hoskote Town Municipal

Corporation for allegedly killing hundreds of dogs and burying them

on a dry lake bed.

 

 

 

 

--

Merritt Clifton

Editor, ANIMAL PEOPLE

P.O. Box 960

Clinton, WA 98236

 

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Fax: 360-579-2575

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