Bombay High Court upholds ABC programs

From ANIMAL PEOPLE, January/February 2009:
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.