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.
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.
No comments:
Post a Comment