2023 (6) TMI 475 - HC - Customs

Restriction on the import of dogs into the Country for commercial breeding or other commercial activities - Validity of Notification No.3/2015- 2020 dated 25.04.2016 - seeking direction to Secretary Department of Commerce and Industry and Director General of Foreign Trade (DGFT) not to prevent dog lovers from lawfully importing dogs into India for dog shows as pets and for breeding - HELD 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 DG or any other officer as may be specified in the order of delegation. While Section 3 of the Act deals with the powers of the Central Government to make provision relating to import and export Section 5 states that it is the Central Government that from time to time will formulate foreign policy. 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. This act of the DGFT is to authenticate the decision of the Central Government. In the present case the decision to issue the impugned Notification has emanated from the Central Government and thus in my considered view there is no infirmity in R1 having issued the impugned Notification. This issue is also decided adverse to the petitioners. Any State policy has to be based on scientific and empirical data to authenticate and justify it. The absolute ban now 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 impugned Notifications have no legs to stand. The cases relied upon by the respondents would come to their assistance if only there had been some/any material produced by them to establish the proper and scientific study made prior to issuance of the Notification. However the background material referred to in Office Memorandum dated 15.03.2016 being the alleged deliberations of the Ministry of Environment Forest Climate Change Animal Welfare Board of India and Ministry of Women Child Development on the basis of which the impugned ban has been imposed are stated to have been destroyed. A direction to R3 being the Secretary to Government Animal Husbandry Dairying Fisheries and Fishermen Welfare Department to formulate a breeding policy and rules for regulation of breeding in the State of Tamil Nadu for which eight (8) weeks is granted - List on 05.08.2023 to report compliance.

Summary

Issues Involved:
1. Challenge to Notification No.3/2015-2020 dated 25.04.2016.
2. Competence of R2 (DGFT) to issue the Notification under Section 3 of the FT(D&R) Act.
3. Adequacy of scientific and empirical data supporting the Notification.
4. Challenge to the Prevention of Cruelty to Animals (Dogs Breeding and Marketing) Rules, 2017.

Summary:

Issue 1: Challenge to Notification No.3/2015-2020 dated 25.04.2016:
The petitioners, including the Kennel Club of India (KCI) and Madras Canine Club (MCC), sought to quash the Notification restricting the import of dogs for commercial breeding. They argued that the policy was "perverse, uninformed, incorrect and detrimental to the interests of the Country, particularly dog lovers." The Notification was based on concerns from the Ministry of Women and Child Development about illegal breeding, health risks, and the impact on native breeds.

Issue 2: Competence of R2 (DGFT) to issue the Notification:
The petitioners contended that R2 lacked the authority under Section 3 of the FT(D&R) Act, which empowers only the Central Government to issue such Notifications. The court examined Section 6(3) of the FT(D&R) Act, which allows the Central Government to delegate powers to the DGFT. It concluded that the decision to issue the Notification had emanated from the Central Government, thus validating the DGFT's action.

Issue 3: Adequacy of scientific and empirical data supporting the Notification:
The court found that the Notification lacked scientific and empirical data to justify the absolute ban on the import of dogs for commercial breeding. The respondents failed to produce any material evidence or scientific study supporting the ban, and the file containing the background material was destroyed. The court held that a policy must be based on scientific and empirical data and that the impugned Notification was issued without necessary due diligence.

Issue 4: Challenge to the Prevention of Cruelty to Animals (Dogs Breeding and Marketing) Rules, 2017:
The KCI challenged the PCA Rules, arguing that 'breeding' was not part of the definition of 'cruelty' under Section 11 of the PCA Act, and thus the Central Government lacked competence to frame such Rules. The respondents countered that breeding in violation of norms could be considered cruelty, justifying the Rules under Entry 17 of List III. The court granted interim protection, preventing the physical seizure of dogs from their owners during the COVID-19 pandemic.

Conclusion:
The court set aside the impugned Notification for lack of scientific study and due diligence. It directed the Secretary to Government, Animal Husbandry, Dairying, Fisheries and Fishermen Welfare Department to formulate a breeding policy and rules for regulation of breeding in Tamil Nadu within eight weeks. The case was listed for compliance on 05.08.2023.