Posted On 15/12/2012 By In Law for Animals With 1186 Views

Karnataka High Court Verdict on Stray Dogs (Part II): The first ‘analysis’ of the ‘unofficial’ order that the defendants will NOT take a stay against!!

An advocate who has read / obtained the judgment pronounced by the High Court of Karnataka at Bangalore on the 7th of December, 2012, in the matters that have come to be known as the Stray Dog matters, i.e. No .26996-27009/2003, 37197/2011 clubbed with WP(PIL)641/2007, WP(PIL)501/2007, WP(PIL)7642/2007, WP(PIL)7644/2007, WP (PIL)6229/2007,  WP(PIL) 4920/2007, WP (PIL)427/2007 AND WP No.4034/2007, shared with The Voice of Stray Dogs, the operative portions of the judgment. We have with us, Paragraphs 45 to 50 of the judgment, and Directions (5) and (6) contained in Paragraph 54; and in our view, these directions and the Court’s observations have the potential to spell doom for the Bangalore dogs, and in fact, for the ABC program as well. The highlight of the judgement is:

  • The judgment clearly says that dogs which are a menace or cause nuisance irrespective of whether there is evidence of such dogs having mauled or bitten children or adults, can be exterminated by the BBMP. 
  • The terms “menace” and “nuisance” have not been defined by the hon’ble court.
  • The lives of the stray dogs of Bangalore seem therefore to depend on BBMP definitions, with the AWPs specifically excluded from interfering. 
The full text of the judgment will also be available with us shortly, and shall be posted by us. A fuller analysis will then follow. 

Before the actual judgement, a brief backgrounder :

  1. A reading of the portions of the judgment with us (which follow), reveal that the Court seems to have commenced the writing of its judgment with the premise that dogs are, as a matter of rule and not exception, a “source of nuisance”, that can “maul and bite”, and be “otherwise hazardous to public safety”, without cause or provocation. Furthermore, that it is in the nature of dogs to be so.
  2. Perhaps glaringly absent from the portions of the judgment with us, is the spirit of ‘informed compassion’ that Article 51 A, Clauses (g) and (h) of the Constitution of India cast as a Fundamental Duty upon the citizens of India, and all agencies and instrumentalities of the State Clauses (g) and (h) read as follows: (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) to develop the scientific temper, humanism and the spirit of inquiry and reform;”
  3. So the position after the passing of this judgment is, that on the basis of calls / complaints made by citizens to the BBMP, that a dog is a “menace or causing “nuisance” irrespective of whether there is evidence of such dogs having mauled or bitten children or adultsthe BBMP can catch such dogs, even though the dogs may be “sterilized and vaccinated stray dogs”, and “exterminate” them. Animal Welfare Organizations, and their views, have been specifically excluded from the BBMP’s identification of dogs to be exterminated, and the BBMP’s rounding them up for extermination. SO WHAT THE BBMP WAS SEEKING TO ACHIEVE THROUGH THEIR IMPLEADMENT APPLICATION FILED BEFORE THE HON’BLE SUPREME COURT, AND THAT CAN BE SEEN HERE, IS NOW EASILY WITHIN THEIR REACH.
  4. The following rationale was clearly absent from the Court’s reckoning :
    • That Rule 7 of the Animal Birth Control (Dogs) Rules, 2001, mandates that stray dogs cannot be dislocated but can only be sterilized, vaccinated, and then returned back to their original locations, because for the area-wise sterilization program to be successful, this is an essential component of the scheme. Dogs being territorial in nature, tend to fight off other dogs, and keep them from entering their territories ; and in this manner, the dog population in each territory / within each locale or location, stabilizes.
    • Court has clearly stated that sterilized and vaccinated dogs can be “exterminated” by the BBMP, and that AWOs will have no say in their identification. This has the potential of doing serious damage to the ABC programme.
  5. When arriving at its conclusions, and directing that dogs which do not come within the scope of Rules 9 or 10 of the ABC (Dogs) Rules, 2001, but which are a menace or cause nuisance irrespective of whether there is evidence of such dogs having mauled or bitten children or adults, can be exterminated by the BBMP under the Karnataka Municipal Corporation Act, 1976, Rule 13 of the ABC (Dogs) Rules, 2001, seems obviously to have been disregarded by the Court. Rule 13 of the ABC (Dogs) Rules, 2001, reads as follows: “The Animal Birth Control (Dogs) Rules
    • Application of rules where local bye-laws etc., exist – If there is in force in any area to which these rules extend, any Act , rule, regulation or bye-low made under any law for the time being in force by the State or the Local Authority in respect of any of the matters for which provision is made in these rules, such rule, regulation or bye-law shall to the extent to which
      • it contains provisions less irksome to the animal than those contained in these rules, shall prevail;
      • it contains provisions more irksome to the animal than those contained in these rules, be of no effect.”
    • Rules 9 and 10 of these Rules allow the euthanizing of only incurably ill, or mortally wounded dogs, and specify the manner in which rabid dogs are to be dealt with. With the passing of this judgment by the Court, however, any, and every dog, if complained about, as being a menace, or causing nuisance, irrespective of whether there is evidence that it has mauled or bitten, can be exterminated. What is to be noted is that the terms “menace” and “nuisance” have not been defined by the Hon’ble Court.
  6. Perhaps the reasons that had weighed with the Hon’ble Supreme Court of India, when it had stayed a similar but perhaps less damaging order passed by the Hon’ble Bombay High Court, vide its order dated 23rd January, 2009, passed in S.L.P. (C) 691 of 2009 titled “AWBI Versus P.E.S.T. and Another”, and in 4 connected SLPs, one of which was filed by the Ministry of Environment and Forests, and 3 by 3 Mumbai based Animal Welfare Organizations, i.e. the Welfare of Stray Dogs, In Defense of Animals, and Viniyog Parivar Trust, were not present to the Hon’ble High Court of Karnataka. The AWBI arguments before the Supreme Court, contained in its SLP filed before the Supreme Court, and the Questions of Law which the AWBI had placed for the consideration of the Hon’ble Supreme Court of India, were however available with the lawyer who represented the AWBI before the High Court at Bangalore.

In this backdrop, please read the directions that the court passed, and operative portion of its judgment, relevant for the stray dogs of Bangalore:

 

NB: We are setting out below, the portion of the Judgment that is in our possession – set out in BLUE; the portions that in our opinion have the potential of sounding the death knell for the Bangalore dogs, are in RED. Read them for yourselves – the import is clear enough. These are extracted from the judgment (but italics added). 

54. Therefore, these writ petitions could be disposed of by issuing the following directions :-

………

(5) Dogs which do not come within the scope of Rule 9 or 10 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 exterminated in the manner specified in Rule 9 of the ABC Rules, 2001 under the orders of the Commissioner of the BBMP as per the provisions of KMC Act, 1976.

(6) The BBMP must take serious note of complaints with regard to unruly stray dogs by setting up a complaint cell in various zonal offices of the B.B.M.P.,and act in accordance with law and also having regard to the observations made herein above, particularly having regard to Section 11 of 1960 Act read with Rules 9 and 10 of the ABC Rules 2001 in the matter of culling of stray dogs.

………..

45. However, what is evident is that the Rules do not provide for, destruction of stray dogs/street dogs which are not incurably or mortally wounded or which do not suffer from furious or dumb rabidity. Sub-rule (5) of Rule 10 states that if a dog is found not to have rabies but some other disease, it would be handed over to the Animal Welfare Organisations, which would have to take necessary action to cure and rehabilitate the dog. But in these cases the bone of contention between the parties is with regard to the treatment to be accorded to dogs which do not suffer from any of the aforementioned diseases but are a source of nuisance, which maul and bite and which are otherwise hazardous to public safety. Though, the Rules refer to such dogs, in Rule 7 about which, complaints could be made, the Rules do not provide with regard to the manner in which such dogs which cause nuisance or menace which has to be dealt with. The Rules are therefore, non – exhaustive. There can thus, be situations where stray dogs/street dogs, which are vaccinated and sterilized and are also disease-free, are a source of nuisance or cause menace to the society. In such cases, also there can be destruction of such stray dogs. We think so because clause (b) of Section (3) of section 11 of the 1960 Act, permits culling of stray dogs in lethal chambers or by any other prescribed method but the prohibition prescribed in clause (l) of sub-section (1) of Section 11 must be borne in mind while culling such dogs. As stated above, the extermination of such dogs which cause nuisance or have bitten or have a tendency to maul is in exercise of not only the power but also in compliance with the duty obligated on the Municipal Corporation under the provisions of the KMC Act, 1976. But in the absence of there being any specific Rule with regard to the manner of culling such dogs in the KMC Act, 1976, Rule 9 of the ABC Rules, 2001, has to be taken as a prescribed method which is also in consonance with the provisions of the 1960 Act.

46. Therefore the contention that the 1960 Act and ABC Rules 2001 do not contemplate culling of dogs other than those mentioned in Rule 9 and 10 is not wholly correct. As far as culling of stray dogs is concerned the parent Act provides for the same but the Rules can be also read along with clauses (b) and (c) of sub-section 3 of Section 11 read with clause (ea) of sub-section 2 of Section 38 only to a limited extent. In fact these clauses of the Act have been inserted by the 1982 amendment but are not covered under the ABC Rules, 2001. However while exercising power under sub-section 3 of Section 11 of 1960 Act read with Section 58(12) and Section 345 of the KMC Act 1976, Rule 9 of the ABC Rules 2001 have to be complied. This would also be in consonance with Rule 13 of the aforesaid Rules.

47. What is significant to note is that the ABC Rules, 2001 essentially deal with the ‘Birth Control of Dogs’ and incidentally, also deal with culling of incurably ill, mortally wounded or rabid dogs which do not require sterilization and vaccination. These Rules which deal with Birth Control as stated above, are not exhaustive and do not take in to consideration the treatment to be given to complaint oriented dogs, i.e. diseased or normal dogs which cause nuisance or are in the habit of biting children or adults. When a complaint is made about such dogs and when the Municipal Authorities on their own capture such dogs, on the orders of the Commissioner, they can be exterminated in a humane manner, having regard to clause (l) of sub-section (1) of Section 11 of 1960 Act and Rule 9 of the ABC Rules. These prescriptions have to be kept in mind when the Municipal Commissioner performs his duties under sub-section (12) of Section 58 r/w Section 345 of the KMC Act.

48. The expression “stray” or “ownerless dogs” in sub-section (12) of Section 58 and the expression “straying” in section 345 must be read in the context of street dogs which are not incurably ill or mortally wounded or suffering from rabies as only such dogs are not contemplated under the ABC Rules, 2001 which can be exterminated. In other words, healthy dogs but causing nuisance or have a tendency to maul or bite people, particularly children or “complaint-oriented dogs” on account of their unruly behaviour, could be culled having regard to the method stated above on the authorization of the Municipal Commissioner. The complaints would have to be made to the authorized officer of the Municipal Corporation, respondent B.B.M.P. in the instant case. At this point, it would not be inappropriate to extract the statistics regarding the number of dog bites for the decade 2000-2010 within the jurisdiction of B.B.M.P. as submitted to the Hon’ble Supreme Court in the affidavit of B.B.M.P.

iii) Number of Dog bites is Bangalore Mahanagara Palike and Bruhath Bangalore Mahanagara Palike :

Year No. of Dog bites

2000-01 Not available

2001-02 Not available

2002-03 Not available

2003-04 22,912

2004-05 32,967

2005-06 28,006

2006-07 17,798

2007-08 20,893

2008-09 12,796

2009-10 21,586”

49. We hasten to add that where stray or street dogs do not give rise to any behavioural complaint or are disease-free, cannot en masse be destroyed under the provisions of KMC Act, 1976. Such dogs would have to be captured, vaccinated, sterilized and released at the same locality where they were captured, in terms of Rule 7 of the ABC Rules, 2001. Therefore, the provision of ABC Rules, 2001 have to be strictly implemented through the Monitoring Committee and the Animal Welfare Organisations, significantly, the Municipal Commissioner is the ex-officio Chairman of the Committee contemplated under Rule 3 of the ABC Rules, 2001. The Municipal Commissioner while exercising powers under the relevant provisions of the KMC Act, 1976, would have to also bear in mind the provisions of the 1960 Act and ABC Rules, 2001 for culling of dogs. Even with regard to sterilized and vaccinated stray dogs which are creating nuisance or biting children and adults, the local Authority, such as the respondent-BBMP, is empowered to exterminate such dogs in a humane manner as contemplated in Rule 9 of the ABC Rules, 2001. It is made clear that the Animal Welfare Organisations have no role to play in the decision with regard to culling of the complaint-oriented dogs except to ensure that they are destroyed in a humane manner on the orders of the Commissioner of the Municipal Corporation.

50. Indeed, if the Animal Welfare Organisations strictly implement the ABC Rules, 2001 and perform their duties by vaccinating and sterilizing the stray dogs/street dogs, the nuisance caused by such dogs would in a course of time, be automatically eradicated. Sterilization, in a due course of time, would bring down the health of the existing dogs and save people from adverse effects in the event of a dog bite. But unless sterilization programme is taken to its logical conclusion, the menace of stray dogs, their nuisance and dog bites would continue. It is in this context, that even Section 11 of the 1960 Act, permits extermination of such dogs by the local authorities but in a humane and not in a cruel manner. We are of the view that the destruction of such dogs, which are identified by the Municipal Corporation as per the method prescribed in Rule 9 of the ABC Rules, 2001, is a humane method.

THE LIVES OF THE STRAY DOGS OF BANGALORE SEEM THEREFORE TO DEPEND ON BBMP DEFINITIONS, WITH THE AWOS SPECIFICALLY EXCLUDED FROM INTERFERING.

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