Bombay High Court Questions Constitutionality of 2023 Animal Birth Control Rules; Asks Union Government to Respond

Nobody hates stray dogs, much less any other animals as portrayed by some. However, humans’ right to life and safety must prevail over everything as per the constitution of India, says Adv Satya Muley. 

The Writ Petition is filed challenging the constitutional validity of the Animal Birth Control Rules, 2023 (hereinafter called as the ABC Rules, 2023 for the sake of brevity and convenience) on the ground of being violative of the fundamental rights under Articles 14, Article 19 and 21 of the Constitution of India, 1950 and on the ground of legislative competence. The Petitioners also seek directions against the local authorities to frame guidelines and implement the same to curb the menace of stray dogs’ attacks on civilians. 

The Petitioners: The Petitioner No. 1 Seawoods Estate Private Limited (hereinafter called as “SEL”) is a Private Limited Company and has a residential area of around 50 acres of residential area for around 1500 residential units. The residents thereof are also the shareholders of the SEL. On account of the complaints made by the shareholders of SEL (being residents of the campus), the board of directors of the SEL were constrained to take steps to prevent stray dog feeders from using the campus of the SEL (which is privately owned premise of the SEL) to feed stray dogs. 

The aforesaid action of the Petitioner No. 1 was challenged by certain dog feeders by filing a Writ Petition No. 9513 of 2021 filed before the Hon’ble Bombay High Court. The Petitioner No.1 herein was arraigned as Respondent No. 17 in the said Writ Petition. 

The Hon’ble High Court by judgment dated 20.03.2023 was pleased to dispose of the said petition on the ground that the ABC Rules, 2023 have been notified now and the same are now in force and hence directed the present Petitioner to comply with the same. Petitioner No. 2 to No.7 are the residents of Brahma Cooperative Housing Society, which is a cooperative society situated in Pune, Maharashtra and is registered as per the Maharashtra Cooperative Societies Act, 1960 (State Act). The said society was also made a Respondent No. 6 in Writ Petition No. 2572 of 2023 filed before the Hon’ble Bombay High Court. 

The said Writ Petition sought for implementation of the ABC Rules, 2001 and certain other allied reliefs. By the latest order dated 24.04.2023 of the Hon’ble Bombay High Court whereby the Hon’ble Court directed the Pune Municipal Corporation to release the sixty stray dogs inside the society. The aforementioned order dated 24.04.2023 passed by the Hon’ble Bombay High Court was challenged in a special leave petition SLP (C) No. 10183/2023 before the Hon’ble Supreme Court of India. 

The Supreme Court of India vide order dated 15.05.2023 was pleased to issue notice returnable after six weeks and stayed the operation of the order dated 24.04.2023 until further orders. 

THE VIOLATION OF RIGHTS All the Petitioners herein are aggrieved by the ABC Rules, 2023 as the said rules have resulted into the violation of their fundamental rights on the ground that the said rules are not in conformity with the parent Act, The Companies Act, 2013 and the State Acts viz Maharashtra Municipal Corporation Act, 1949, Maharashtra Cooperative Society Act, 1960. The Petitioner states and submits that the ABC Rules, 2023 have clipped the wings of the Municipal Commissioners of the local authorities and have rendered them helpless in view of the provisions of the ABC Rules, 2023. 

THE RESPONDENTS: 

The Respondent No. 1 is the Union of India through the Principal Secretary, Department of Animal Husbandry & Dairying. 

Respondent No. 2 is the State of Maharashtra through the Principal Secretary, Ministry of Diary and Animal Husbandry, responsible for formulation and supervision of issues pertaining to the Animals. One such function of the said department is Animal Health Care and Disease Control. 

Respondent No. 3 is the Animal Welfare Board of India and 

Respondent No. 4 is the State Animal Welfare Board of Maharashtra. The primary function of the said boards is to protect the animals from unnecessary pain and suffering. 

The Respondent No. 5 & 6 are the Municipal Corporations who fall under the definition of “local authority” as defined in Section 2 (e) of the Prevention of Cruelty to Animals Act, 1960 (hereinafter called as the PCA Act, 1960 for the sake of brevity and convenance). 

THE PROVISIONS UNDER CHALLENGE: The ABC Rules, 2023 have brought in new provisions to the fore which are as under ➔ The said Rules have introduced a new concept by the name “community animal”. Section 2(i) of the ABC Rules 2023 states – “Community Animals means any animal born in a community for which no ownership has been claimed by any individual or an organization, excluding wild animals as defined under the wildlife Protection Act, 1972 (53 of 1972).” → Section 16 under the ABC Rules 2023 attempt to give extra judicial, legislative and executive powers to the AWBI and NGOs. These include the power to decide and adjudicate in matters of stray dog attacks and conflicts arising out of stray dog feeding. However, the AWBI does not have the authority to sidestep the rule of law and other relevant constitutional provisions and give either itself or NGOs the power to play judge and jury. 

Section 16 of the ABC Rules 2023 state, “Resolution of Complaints regarding dog bites or rabid dogs:- The local authority may establish an Animal Helpline. Either the Project In-Charge or the Animal Welfare Organization shall be responsible for recording and resolving conflict cases that may be reported.” There is no provision in the enabling PCA Act, 1960 for an NGO to “resolve” stray dog attack cases.

 These are matters relating to the safety and health of citizens and the government is mandated to enforce existing laws to protect the citizenry. →The Rule 16(6) requires dangerous, aggressive and biting stray dogs, that may have bitten or even killed a citizen, to be released after an observation that is limited to observing them for rabies only. The serious issue of stray dog attacks has been omitted completely in the ABC Rules, 2023. Rule16 (6) If the dog is found not to have rabies but some other disease or is furious in nature then it would be handed over to the Animal Welfare Organisation who shall take the necessary action to cure and release the dog after ten days of observation. →The ABC Rules have made it mandatory on “Association of Apartment” & “Resident Welfare Association” OR a Company to make space available for the feeding of community animals. The said Rule is reproduced as under for ready reference 20. Feeding of Community Animals:– (1) It shall be responsibility of the Resident Welfare Association or Apartment Owner Association or Local Body’s representative of that area to make necessary arrangement for feeding of community animals residing in the premises or that area involving the person residing in that area or premises as the case may be, who feeds those animals or intends to feed those animals and provides care to street animals as a compassionate gesture. 

The Resident Welfare Association or Apartment Owner Association or the Local Body’s representative shall ensure:- (i) to designate feed spots which are mutually agreed upon, keeping in mind the number of dog population and their respective territories and the feeding spots shall be far from children play areas, entry and exit points, staircase or in an area which is likely to be least frequented by children and senior citizen. (ii) to designate feeding time depending on the movement of children, senior citizens, sports which is likely to be least frequented by children and senior citizen. (iii) designated feeder shall ensure that there is no littering at the feeding location or violation of guidelines framed by the Resident Welfare Association or Apartment Owner Association or that areas. (iv) designated feeders are allowed to volunteer for the vaccination, catching and release of dogs to assist with the Animal Birth Control Program. 

(2) Where there is any conflict between the Resident Welfare Association or Apartment Owner Association and the animal caregivers or other residents, an Animal Welfare committee comprising of the following members shall be formed: (i) Chief Veterinary Officer or his representative; (ii) Representative of the Jurisdictional Police; (iii) Representative of the District Society for Prevention of Cruelty to Animal or State Board; (iv) Representative of any Recognized Animal Welfare Organization conducting Animal Birth Control; (v) Veterinary Officer deputed by the local authority; (vi) Complainant; (vii) Representative of the Resident Welfare Association or Apartment Owner Association or Local Body of that area. 

The decision of the Committee constituted under subrule (2) of rule 20 shall be the final decision with regard to the fixing of the feeding point and the Committee may also nominate a person from amongst the designated Colony CareTaker by the Board to feed those animals in that area. (3) Any local authority or animal welfare organisation or any feeder Resident Welfare Association or Apartment Owner Association or Local Body aggrieved by the decision of the Committee framed under sub-rule (2) of rule 20, the appeal shall be filed to the State Board and the decision of State Board shall be the final decision for feeding of animals in that area. (Emphasis Supplied) → Recently, the Hon’ble Bombay High Court in Writ Petition No. 9513 of 2021 has made observations that the Petitioner No. 1 which is a Private Limited Company will have to comply with the ABC Rules, 2023. → That the ABC Rules, 2023 are not in consonance with the fundamental rights given under Part III of the Constitution of India, 1950, State Laws and are also not in conformity with the parent act. ➔ That the Petitioners are challenging the constitutional validity of ABC, 2023 and are seeking directions against the local authorities for curbing the problem of stray dogs and are therefore invoking the extraordinary jurisdiction of this Hon’ble Court under Article 226 of the Constitution. 

Speaking on behalf of the Petitioners Adv Satya Muley Stated, “It is in the aforesaid facts and circumstance that the Petitioners have filed the present Writ Petition on the following grounds which are without prejudice to one another. A Private Statutory Entity like a Company or a Cooperative Housing society cannot be foisted with a duty to make special feeding area within their private premises for the community animals: (A) The Cooperative Housing Societies are governed by the State Laws as being covered by Entry No. 32 of the List II under the Seventh Schedule. The formation of the Cooperative Society is also a constitutional right in view of the 97th amendment. (B) The Rule 20 of the ABC Rules, 2023 is an encroachment upon the autonomy and powers of self-governance enjoyed by private entities like Cooperative Housing Societies & Private Limited Companies. (C) The said Rules are in direct contravention of Art. 43-B which directs the State to give autonomy and promote self- governance of cooperative societies. (D) Thus the attempt on part of the ABC Rules, 2023 which is a subordinate legislation of encroaching upon functioning and autonomy of Cooperative Housing Society & Private Limited Companies is bad in law. “

Adv Satya Muley also cited Conflict between the PCA Act, 1960 & ABC Rules, 2023 (E) The term “Community Animals” exists neither in the Prevention of Cruelty to Animals Act nor the municipal laws. It mischievously and deceptively attempts to imply that an entire community of people somehow own or want free roaming stray dogs in their areas. The fact is that there are only a few individuals in some residential colonies that want to feed stray dogs, but take no other legal or financial responsibility for them and are not in any way responsible for the behavior, damage or faecal pollution caused by the stray dogs and want to indulge in this private hobby at the cost of other citizens safety, well-being, health, right to sleep undisturbed, right to life, freedom of movement and livelihood in the case of people commuting/walking to work or who work in public places. (F) Moreover, there is no such concept of citizens collectively owning stray animals in any way or manner or any such term anywhere in the PCA Act nor in State Municipal Acts to imply the same. Such animals are by definition stray animals. 

The principal Act is not helped or enforced in any way by terming stray dogs as community dogs. “Community animals” or “community dogs” is not a legally defined term, does not exist in the Prevention of Cruelty to Animals Act and does not mean anything, especially since no one in the community is the actual legal owner of stray dogs nor are citizens living in a gated community responsible in any way for stray dogs in an area. (G) If stray dogs are considered “community animals” and citizens are forced to pay for their upkeep like pets, it removes the incentive for pet ownership and will encourage abandonment. 

Everyone should then just keep dogs outside their house and take no responsibility for them. This is in fact harmful and cruelty towards dogs and is thus violative of the PCA Act, 1960. (H) The Supreme Court has held in State of Tamil Nadu & Anr vs P. Krishnamurthy & Ors, (2006) SCC 517 that any subordinate legislation or part thereof, which does not conform to the object, scheme and provisions of the parent Act under which it is made, is invalid. Adv Satya Muley Pointed out Conflict between the Municipal Laws & the ABC Rules, 2023 (I) The parent Act & the rules framed under it cannot take away the Municipal Commissioner’s powers under the provisions of the MMC Act regarding destruction of dogs, certainly, the Animal Birth Control Rules, 2023 which is a subordinate legislation cannot impinge upon the Commissioner’s powers under the MMC Act, 1949. (J) The Section 64 of the Maharashtra Municipal Corporations Act, 1949 gives an unbridled power to the Municipal Commissioner to destroy stray dogs which are a nuisance. It is submitted that the scope of the said provision cannot be curtailed in view of Rule 15 & Rule 16 of the ABC Rules, 2023. (K) Public health is a subject falling within the purview of the State Legislatures. 

The State Governments and municipal authorities are mandated to protect both people and dogs. A dog control and management policy – dealing with dog population control, dog attacks, rabies and homeless dog management – must be in keeping with and in furtherance of, existing laws meant to protect people and stray dogs. (L) It is well settled law that the rules made under the Act are subordinate to the Act and cannot be elevated to the status of the parent Act, even if the statute provides that the rules will be treated as if enacted in the Act. (M) That the Municipal Commissioner could kill all the stray dogs, despite the ABC Rules, 2023, and also in view of Section 11(3) of the Prevention of Cruelty to Animals Act, 1960. 

Further, in the light of section 11(3) of the Prevention of Cruelty to Animals Act, the provisions of Maharashtra Municipal Corporations Act, 1949 will prevail. Further, the Section 11(3)(b) gives discretionary power on the State to kill stray dogs if they are a menace to the society. (N) Dogs which do not come within the scope of Rule 15 or 16 but which are a menace or cause nuisance irrespective of whether there is evidence of such dogs having mauled or bitten children or adults could be destroyed in the manner under the orders of the Commissioner of the any Commissioner or his representative authorized under the Maharashtra Municipal Corporation Act, 1949. (O) The ABC Rules, 2023 puts an unnecessary and unconstitutional burden on the Municipal Corporations by asking them to feed stray dogs. This is not the duty of the of Municipal corporations under State Municipal Acts. Contrarily, it is the statutory, civic duty of Municipal Authorities under State Municipal Acts to keep the streets free of straying animals and prevent public nuisance and danger to citizens. Adv Satya Muley states that The ABC Rules contravenes several provisions of the Indian Penal Code. (P) Under Section 268 of the Indian Penal Code, any act or omission that causes nuisance to the people who have a right to those places, is the definition of nuisance. A common nuisance is not excused on the ground that it causes some good or advantage. Therefore, it is irrelevant whether sterilization and feeding stray dogs in public places makes them easier to catch for sterilization and stroke or questionable whether it makes them less aggressive towards citizens. (Q) Under section 289 of the Indian Penal Code, it is an offence if one fails to guard against any probable danger to human life or danger of grievous hurt from an animal in his position. The PCA act defines owner of an animal as any person who is in position or custody of an animal, weather with or without consent of the owner. Releasing any stray animal or more specifically stray dogs straight of, weather sterilised or not on public road and private places is therefore an offence. (R) Thus the provisions of the said Rules are also not in consonance with the Indian Penal Code. According to Adv Satya Muley the ABC Rules, 2023 and the Inaction of the local authorities have resulted into violation of the Fundamental Rights. (S) That Hon’ble Supreme Court clearly makes the case that human and animal ‘life’ are both protected under relevant laws under the Constitution. (T) In Civil Appeal No. 5387 OF 2014 (Special Leave Petition (Civil) No.11686 of 2007) in the matter of Animal Welfare Board of India vs A. Nagaraja & Ors on 7 May, 2014, the Hon’ble Supreme Court elucidated the application of Right to Life for humans as well as animals in the following paragraph (62) – “Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. 

Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of life under Article 21 of the Constitution. So far as animals are concerned, in our view, “life” means something more than mere survival or existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity.” “Animals’ well-being and welfare have been statutorily recognised under Section 3 & Section 11 of the Act and the rights framed under the Act. Right to live in a healthy and clean atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under Section 3 & Section 11 of the PCA Act read with Article 51(A)(g) of the Constitution. Right to get food, shelter is also a guaranteed right under Section 3 & 11 of the PCA Act and the Rules framed thereunder, especially when they are domesticated.” (U) It can thus be gathered that the protection conferred on the animals are specific to not being inflicted with unnecessary pain and suffering. Unlike humans, animals implicitly derive their right to ‘life’ from the Prevention of Cruelty to Animals Act, 1960. The statutory rights in favour of animals cannot be construed to grant them the same rights given to humans under Article 21. Therefore, Article 21 is not applicable to animals as it is to citizens. 

(V) For, this Hon’ble court has always broadened the scope and applicability of Article 21 which includes the right to live in a healthy, hygienic, safe and disease-free environment, right to freedom of movement, right to safe and unobstructed public places, right to sleep peacefully at night. (W) The children and the old people residing withing the gated premises are afraid of moving outside the house due to the fear of dogs and is thus affecting their physical as well as psychological health. (X) Fundamental Rights of Individuals under Art. 19 & Art. 21 will have to be given primacy over the Fundamental Duties. (Y) The Hon’ble Supreme Court has dismissed the Special Leave Petition bearing number 23146 of 2016 filed by a bird feeder assailing the order passed by the City Civil Court, Mumbai as well as the Hon’ble Bombay High Court whereby the Hon’ble Courts had injuncted him from feeding birds in the society as it caused nuisance and annoyance to the public at large. (Z) That the ABC Rules, 2023 is violating Fundamental Rights under Art. 19 and Art. 21 of the Petitioners. 

Lastly it is pertinent to take a note about what the Father of the Nation, Mahatma Gandhi’s views were on stray dog feeding and true compassion. Writing about ‘ahimsa’ and the genuine welfare of animals in the 1920s in his paper Young India, he made it clear what he thought about straying dogs and their feeding, “Roving dogs do not indicate the civilization or compassion of the society; they betray on the contrary the ignorance and lethargy of its members.” “Even if those who feed stray dogs consented to pay a penalty for their misdirected compassion, we should be free from the curse of stray dogs.” 

“Humanity is a noble attribute of the soul. It is not exhausting to save a few dogs or a few fish; such saving may even be sinful. If I have a swarm of ants in my house, the man who proceeds to feed them will be guilty of a sin.” “Connivance or putting up with status quo is no ahimsa, there is no thought or discrimination in it…We offend against dogs as a class by suffering them to stray and live on crumbs or leavings from our plates that we throw at them and we injure our neighbors also by doing so.” 

Speaking on behalf of the Petitioners Adv Satya Muley & Adv Vaibhav Kulkarni state that the petition is seeking to declare the specific provisions of the ABC rules 2023 as unconstitutional and also seeking directions to the local authorities to form rules to curb the menace of the stray dogs. Satya Muley, assisted by Vaibhav Kulkarni.  

Seawoods Estates Ltd & Ors Vs. Union of India Writ Petition 11652-2023 Adv. Satya Muley along with Adv Vaibhav Kulkarni for Petitioners.