Comments On The Stray Dogs Judgement By Advocate Norma Alvares

On 19th December 2008, the Bombay High Court delivered a judgement on the subject of stray dogs. The judgement delivered by the Constitutional Bench comprising three judges was not unanimous. Two of the three judges, while concurring with the opinion of the presiding judge on most aspects, have recorded a separate judgement on one issue on which they differed. However, all three judges agreed on several important aspects concerning stray dogs and when their lives may be terminated.

Too many news reports have appeared in full ignorance of the details of the judgement, with some reports suggesting that municipal authorities can start culling or even shooting stray dogs. These reports are wrong.

All judges unanimously agreed that stray dogs cannot be killed simply or merely because they are stray, i.e., homeless, ownerless. The judges were also unanimous in their opinion that mass destruction of stray dogs or random killing of stray dogs is neither a permissible nor acceptable practice to deal with the problems that society may face owing to proliferation of stray dogs. 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 following humane methods. Shooting or poisoning of dogs, to name a few of the barbaric practices resorted to in the past, are all strongly condemned in the judgement.

In short, the stray dogs found a sympathetic bench in the Bombay High Court, one that was supremely conscious of the fundamental duty cast on all citizens of this country by the Constitution of India, namely, to show compassion to all living creatures.

All three judges have upheld the WHO-supported scientific and holistic scheme to reduce dog population by sterilization and immunization through the participation of Animal Welfare Organisations (AWOs) and others. This programme is currently being followed by municipalities across the country as a sound, long-term method for controlling the dog population and thereby greatly reducing the possibility of transmission of rabies to humans.

It is only in the case of specific "nuisances" that may be caused by individual stray dogs that two out of three judges have taken the view that such dogs may be eliminated, if necessary, but in accordance with procedures that are within the four corners of law.

The judgement thus 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 (Dog) Rules, 2000 that have been introduced by the Central Government to effectively solve the problems resulting from proliferation of large numbers of strays especially in towns and cities.

Therefore, 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 and such fallacious thinking will only land any municipality that acts on such basis squarely in contempt of court.

The stray dog problem is not new. In 1994, the Bombay Municipal Corporation took a policy decision to stop the killing of stray dogs. The BMC found mass elimination of such animals in gas chambers to be ineffective. The BMC commenced instead a programme of sterilization of strays to deal with the large number of stray dogs roaming in the city.

In 1998, the Bombay High Court passed a judgement with the consent of the Corporation and the animal welfare organisations, which spelt out in great detail the manner in which the sterilization programme would be carried out. NGOs were made a part of the programme as there were several animal welfare organisations who expressed interest in assisting the Corporation in this task. This judgement became the basis for the legislation that was introduced a few years later to deal with the stray dog problem.

In 1999, the Goa bench of the Bombay High Court banned the shooting of healthy stray dogs - a barbaric practice adopted not only by municipalities but by any person wanting to get rid of strays. The court also directed that a programme for the sterilization of strays be initiated in the State of Goa.

In 2000, the Central Government notified the Animal Birth Control (Dogs) Rules 2000 ("ABC Rules") thereby setting up Monitoring Committees headed by the Commissioner / chief officer of the municipality to respond to complaints from citizens regarding nuisance caused by dogs.

In 2001, an organization called People for the Elimination of Stray Troubles (PEST) filed a writ petition before the Goa Bench of the Bombay High Court pleading that the municipalities should be permitted to eliminate all stray dogs and that the animal welfare organisations should be prohibited from assisting the municipal councils with the implementation of 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 a 3-judge bench at the Bombay High Court.

The issues before the 3-judge Constitution bench were the following:

  1. Whether the killing of stray dogs has to be totally prohibited;
  2. Whether the Municipal Acts permit all unclaimed dogs, i.e., all stray dogs to be killed;
  3. Whether the ABC Rules are ultra vires the Prevention of Cruelty to Animals Act (PCA Act);
  4. Whether the PCA Act and the ABC rules prevail over the provisions of the Municipal Acts regarding killing of stray dogs or whether the provisions relating to dogs in the Municipal Acts can be exercised without consideration of similar provisions in the central statutes.
  5. Whether the ABC rules nullify the powers of the Commissioner to destroy stray dogs as per the Municipal Acts or render infructuous such provisions as may exist to destroy stray dogs.

PEST pleaded that all stray dogs should be killed and the municipal authorities should be directed to do their duty of eliminating those dogs that have no owners. It also submitted that the ABC programme could not help solve the stray dog problem and that the ABC Rules were unconstitutional.

The Govt of India, the Animal Welfare Board of India and the animal welfare organisations submitted that euthanasia (mercy-killing) of certain categories of stray dogs was specifically permitted under the ABC Rules. However, all strays could not be eliminated merely because they have no human owners. They also produced statistics to show the efficacy of the ABC programme in areas where it had been adopted and argued that this programme was supported worldwide by international agencies including WHO as being the only efficacious, humane and permanent solution to the problem of stray dogs.

In their judgment, all three judges have concurred on the following:

  1. Mass killing of stray dogs is not permitted under the Municipal Acts.
  2. Neither the PCA Act nor the Municipal Acts cast any mandatory obligation on the authorities to perforce kill the stray dogs that are unclaimed, but they only confer discretionary powers on the respective authorities to kill animals if it is found necessary to do so.
  3. Discretion is not unbridled discretion or an absolute power to destroy stray dogs.
  4. The ABC rules are valid & must be implemented.
  5. There is no conflict between the ABC rules and the PCA Act and between the PCA Act and the Municipalities Act. If there is conflict between Municipalities Act and the PCA Act / ABC rules, the central legislative scheme will have primacy over the Municipalities Act.

On the killing of individual stray dogs, the three judges agreed upto a point. In the ABC Rules only three classes of stray dogs are permitted to be euthanized: those that 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 which are found to be "perennially violent".

However, two of the three judges (majority bench) were of the opinion that even with this inclusion (i.e., perenially violent dogs) the categories as enumerated in the ABC Rules are insufficient to deal with all types of nuisance caused by dogs. Hence it was necessary that the municipal authorities be permitted to exercise their powers to eliminate individual dogs that have become a nuisance. Moreover, the ABC Rules do not dilute the powers of the municipal authorities and hence these authorities are required to deal with dog nuisances not covered under the ABC Rules.

What are these "nuisances"? The judgement states that "no hard and fast rule can be laid down as to the circumstances or the acts or the omissions which could constitute nuisance and every case is required to be decided on its own peculiar facts."

Elaborating a little on the types of dog nuisance that may be complained of, the judgment states: "Dog barking is common, whether it is by stray or pet dogs. It may or may not cause nuisance but undoubtedly such nuisance cannot lead to destruction of the dog."

However, "there are instances where dogs in a particular locality / street invariably chase every two wheeler which have resulted into fatal accidents. These dogs may not harm the local person or pedestrian, but such nuisance of the dog cannot be ignored and will have to be treated as public nuisance causing injury or damage to human life."

Thus, while leaving the decision to eliminate nuisance dogs to the discretion of the municipal authority, the judges have made it 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 resident of any building."

The judgment also explains what "discretionary" power really means. "Discretion undoubtedly means a judicial discretion and not whim, caprice or fancy of the authority. It does not empower the person (or commissioner) to do what he likes but what he ought to do. Discretion is governed by rule of law and must not be arbitrary, vague or fanciful. In other words, when any thing is left to any person to be done according to his discretion, the law intends it must be done with sound discretion, and according to law, when it is applied to public functionaries."

The judgement thus makes it clear that the discretion conferred on the municipal authority is not uncontrolled power to destroy stray dogs. "The Commissioner 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 and indiscriminately capture all the dogs and keep them in the municipal kennel and then after waiting for three days kill all the dogs which are not claimed by the owner."

The judgement thus casts a very heavy responsibility on the municipal authorities who may decide that they need to eliminate stray dogs which are a nuisance. The discretionary power will have to be exercised only on the basis of receipt of a complaint, the complaint must be investigated and finally an informed decision taken on a case to case basis justifying the need for euthanising a particular stray dog. Euthanasia of the animal will also have to be entirely in accordance with law: no shooting, no poisoning, no strychnine injecting.

The judgement is undoubtedly pro-animal welfare. It has upheld the ABC Rules and the stray dogs control programme, both of which PEST wanted to kill. It has appreciated the work of animal welfare organisations and made it imperative for all municipalities to enforce the programme for control of stray dog population. Finally, it has rejected outright the arguments of those who wished that all stray dogs be eliminated from public places and that the sterilised healthy dogs are not be returned to society.

(Adv. Norma Alvares represented the animal welfare organisations from Goa before the three-judge bench. She is also a member of the Animal Welfare Board of India.)