Madras High Court: In awrit petition filed by the Kennel Club of India (‘KCI’) and the Madras Canine Club (‘MCC’) (‘petitioners’) for quashing the notification dated 25-04-2016 and further to direct the Union Government and Director General of Foreign Trade (‘DGFT’) to not prevent dog lovers from lawfully importing dogs into India for dog shows, as pets and for breeding, Dr. Anita Sumanth, J. held that the impugned Notifications have no legs to stand as it has been issued without necessary scientific study and due diligence as called for. Thus, the Cout set aside the same.
KCI is the only private authority dealing with the interests of canines in India. KCI issues registration certificates as well as effects proper transfer of registration from one owner to another. MCC holds membership in the KCI and conducts dog shows. The main aim of both KCI and MCC is to protect, preserve and promote the interests of distinct canine breeds by serving as a custodian of dog breeds and providing for their preservation, maintenance and improvement.
The grounds for filing this petition is that the impugned Notification is premised on a policy which is perverse, uninformed, incorrect and detrimental to the interests of the Country, particularly dog lovers. Secondly, it has been issued by Director General of Foreign Trade, who does not have the requisite power under Section 3 of the Foreign Trade Development and Regulation) Act, 1992 (‘FT (D&R) Act’) read with paragraphs 1.02 and 2.01 of the Foreign Trade Policy 2015-2020 (‘FTP’) to have issued the same, as only the Central Government that is competent in this regard.
The Court said that dogs are categorised as livestock and thus all matters relating to their importation including regulation, quarantine and others must be carried out by the Department Animal Husbandry and Dairy Farming (Pashupalan, Dairy Aur Matsyapalan Vibhag) (‘AHDF’) only, as per Rule 4 of the Allocation of Business Rules.
The Court noted that the unethical breeding practices followed by unscrupulous and commercially avaricious breeders including inbreeding, lead to abnormalities and malformation in dog litters. While the petitioners acquiesce to the dangers and unfortunate consequences of capricious and unfettered dog breeding, the impugned ban is not a remedy for the same. A total ban on import for commercial purposes, such as the present one, is a hasty move which is not well thought out, apart from not being based on any scientific study.
As per the Court there is no basis in the statement that foreign dogs contaminate Indian breeds, as Indian breeds have, over the years, been diluted to a great extent and native breeds of dogs today are vastly different from their ancestors with evolution over the years. The right to own as a pet for commercial purposes such as training or ethical breeding cannot be the matter of absolute ban, except if the dog is diseased or poses a threat to public health and safety. There are measures in place for quarantine of diseased dogs, and with this, there is no necessity for further regulation.
The Court took note of the letter dated 01-12-2015 from the then Minister for Women and Child Development, wherein it was explained the dangers of importation of foreign dogs, and it was urged that the Court cannot embark on an exercise of second guessing such valid concerns. However, the Court said that the Ministry has no choice but to accede to the position that the file produced by them is incomplete and does not contain any scrap of scientific data to validate those concerns even at the relevant point of time.
One primary concern expressed by the petitioner is that proper procedure has not been followed in the run-up to the issuance of the impugned Notification as there is no consensus expressed by the Ministry for Agriculture and Farmers Welfare.
Further, the Court after a combined reading of the Allocation of Business Rules and Transaction of Business Rules, said that this shows that any proposal that is to fructify into a policy decision of the Government must be one where all the Ministers have had occasion to deliberate and apply their minds. It is only the Minister holding the portfolio who has the final word on the issuance of Notification in this regard. However, the Court accepted the Union’s statement that the Minister of State (Independent Charge) of the Ministry of Commerce and Industry was holding additional charge of the portfolio of Agriculture and Farmers Welfare at the relevant point in time but allowed the petitioner to utilize the provisions of the Right to Information Act and seek and obtain necessary clarification.
After taking note of Section 6 of the FT (D&R) Act that deals with the appointment of a Director General and said that the Central Government has been statutorily endowed with the power of delegation of its authority under the Act, barring power under Sections 3, 5, 15, 16 and 19 to the DGFT, or any other officer as may be specified in the order of delegation. Thus, the Foreign Trade Policy as well as Orders/Notifications dealing with matters of import and export will have to be traceable to the Central Government only. However, it is the DGFT that would implement such decision by Notification and publication in the Gazette. Thus, it was held that the decision to issue the impugned Notification has emanated from the Central Government and there is no infirmity in Union Government having issued the impugned Notification.
The Court further said that any State policy has to be based on scientific and empirical data to authenticate and justify it. The absolute ban imposed is on the basis that import of dogs for commercial breeding will bring foreign diseases to India as well as contaminate native gene pool. As far as import of alien diseases is concerned, there are effective measures for quarantine and testing of the animals prior to permitting entry into India. Thus, this can be no reason to justify the ban.
The matter will next be taken up on 05-08-2023 to report compliance.
[The Kennel Club of India v Union of India, 2023 SCC OnLine Mad 4056, Order dated 06-06-2023]
Advocates who appeared in this case :
For Petitioners: Senior Counsel R.Srinivas, Senior Counsel V. Selvaraj;
For Respondents: Additional Solicitor General AR.L.Sundaresan, Senior Panel Counsel.V.Chandrasekaran, Government Advocate Alagu Goutham.
