9911796707
TMI Blog2023 (6) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... .2016. They also seek a direction to R1 and R2, being the Secretary, Department of Commerce and Industry and Director General of Foreign Trade (DGFT) (hereinafter referred to as R1 and R2/DGFT respectively) not to prevent dog lovers from lawfully importing dogs into India for dog shows, as pets and for breeding. 2. Heard Mr.R.Srinivas and Mr.V.Selvaraj, learned Senior Counsel appearing for learned counsel on record for the petitioners, Mr.AR.L.Sundaresan, learned Additional Solicitor General assisted by Mr.V.Chandrasekaran, learned Senior Panel Counsel appearing for R1 and R2 and Mr.Alagu Gowtham, learned Government Advocate appearing for R3. In addition, I had consulted Dr.R.Karunakaran, Dean of the Madras Veterinary College, Chennai, and Dr.Sujatha, Deputy Librarian, who have been most helpful in supplying books and literature to aid my understanding of the subject of native Dogs. 3. KCI was founded in the year 1896 by the British. It is the only private authority dealing with the interests of canines in India. It maintains the pedigree and stud book of various recognised dog breeds and its records date back to more than a century. It holds an ISO certification and a full membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge of extinction. Indian dog breeds enjoy special status with the KCI, in that there is no charge for their registration or for the registration of their litter, and microchips are issued free. 6. MCC is a society which was found in 1980 and which has the following objects,: 'a). To promote membership of dog owners and dog lovers. b). To promote the keeping of pedigreed dogs and provide necessary information to its members. c). To conduct Dog Shows and Dog Trials at periodical intervals subject to the approval of the "Kennel Club of India". d). To render assistance to new dog owners in the maintenance and care of dogs and to encourage and assist its members in breeding different varieties of Dogs. e) To do all such other things as conducive or incidental to the attainment of these objects.' 7. It holds a membership in the KCI and conducts dog shows, recognised by both KCI and FCI. In all, the primary raison de etre 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. 8. W.P.No.23231 of 2016 is filed by an individual clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... animals imported from other countries cannot be completely screened out in quarantine centers. New and fatal diseases including various kinds of tick fevers and canine circovirus are being brought in with each consignment, substantially affecting the health of the existing animals. Imports of dogs in large numbers is also undermining and contaminating the genepool of the Indian breeds such as the Indian Pariah, Rajapalayam, Mudhol Hound, Rampur Greyhound etc. If commercial import of dogs is not immediately banned, the ramifications on the demographics and health of Indian dogs will be irreparably damaged, besides adding to the burden on the central and state governments to clean up the mess by providing neutering and vaccination services to the discarded animals left on the streets. The import of pet dogs has been banned because of similar reasons, but the purpose is being completely defeated if the import of dogs is allowed for commercial purposes. This channel is now being used to bring in pets as well. May I request you to strongly recommend a complete ban on the import of dogs so that the population of dogs in India can be stabilized and the demographics and health of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shi Bhawan, New Delhi Dated. 15th March, 2016 OFFICE MEMORANDUM Subject:- Ban on import of commercial dogs into India. The undersigned is directed to refer to the O.M. of even number dated 18.12.2015 seeking views/comments of Ministry of Environment, Forest & Climate Change, Animal Welfare Board of India and Director General of Foreign Trade (DGFT) regarding ban on import of commercial dogs. In this regard, Department received views/comments, suggestion and request from Ministry of Environment, Forest & Climate Change (MoEF&CC), Animal Welfare Board of India (AWBI) and Ministry of Women & Child Development (WCD) in favour of imposing ban on import of commercial dogs. 2. The matter has been re-examined and it has been observed that the import of dogs is a restricted item for which the DGFT issues license on recommendation of this Department. The proposals for import of dogs are examined in this Department from the sanitary and quarantine point of view for which the Department has framed import requirements for all categories of dogs. Further, the matter has been considered in view of the comments/views received from AWBI, MoEF&CC, WCD, and with the approval of the Competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cabinet and its Committees and the President, all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961 (in short 'Allocation of Business Rules') shall be disposed of by, or under the general or special directions of the Minister-in-charge. 18. Rules 2 and 3 of the Allocation of Business Rules deals with allocation of business and the distribution of subjects. Rule 4 deals with the allocation of Departments among Ministers. Rule 4(1) states that the business of the Government of India allocated to Cabinet Secretariat is and, shall always be deemed to have been, allotted to the Prime Minster. 19. Rule 4(2) states that the President, on the advice of the Prime Minister, will allocate the business of the Government of India among Ministers by assigning one or more departments to the charge of a Minister. This allocation is what one commonly refers to as the portfolio of a Minister. 20. Rule 4(3) refers to the sub-delegation of said business to another Minister or Deputy Minister or the entrusting of responsibility for specified items of business affecting any one or more than one Department to a Minister without portfolio. Part C of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in the case of Union of India (represented by Director-General, All India Radio), New Delhi and another v. K.S.Krishnaswamy and another [2005 (2) L.L.N. 890] dealing with Central Civil Services (Pension) Rules, 1972. 25. A Division Bench of this Court sitting in Madurai also had had occasion to consider the procedure to be followed by the Central Government in the issuance of Notifications in the context of the Conduct of Business Rules, in Union of India, represented by its Secretary, Ministry of Commerce and Industry and others V. Unik Traders [W.A.(MD) Nos.396 to 406 of 2009 dated 28.10.2022]. In that case, the Notification impugned had been quashed by the learned single Judge, whose decision had been reversed by the Division Bench that was of the view that it had been properly issued. 26. In State of Maharashtra and another v. Indian Hotel and Restaurants Association and others [(2013) 8 SCC 519], the Hon'ble Supreme Court considered the absolute ban that had been imposed on dance performances in eating houses, permit rooms and beer bars. The observations of the Court rendered in that context have been brought to my attention to say that such a total and absolute ban mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been detailed in the paragraphs above. R1 would stress that regulation of import and export, being a matter of policy and taken in the best interests of the Country must not be interfered with unless it is shown to be perverse. 34. In the present case, letter dated 01.12.2015 from the then Hon'ble Minister for Women and Child Development has explained the dangers of importation of foreign dogs and they would urge that this Court cannot embark on an exercise of second guessing such valid concerns. They have however 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. 35. In the initial hearings, and seeing as the matters related to the year 2016 and 2017, I wanted to ensure that the Notification had, in fact, been implemented. A copy of the tariff incorporating the import ban has been produced and the respondents confirm that the ban is, indeed, in place and operative as on date. The respondents rely on the judgment in the case of Parisons Agrotech Private Limited and another v. Union of India and others [(2015) 9 SCC 657] to say th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry of Commerce and Industry, who has responded stating that the expert to answer the query of Hon'ble Minister would be the Department of AHDF. The aforesaid events have transpired between the 1st and 15th of December, 2015. On the same day, an Office Memorandum has been issued by the Assistant Commissioner of AHDF Department. 42. This Court is given to understand that the then Hon'ble Commerce Minister was holding additional charge of the Ministry of Agriculture and Farmers Welfare, under which Ministry, the Department of AHDF falls. There is no written confirmation in this regard. The records do not indicate so and neither are there any pleadings to support this position. 43. Thereafter, that a file note has been prepared in F.No.01/89/180/00/AM-02/PC-2(A) with the subject 'Ban on import of commercial dogs into India'. A combined reading of the Allocation of Business Rules and Transaction of Business Rules would show that any proposal that is to fructify into a policy decision of the Government must be one where all the Hon'ble Ministers have had occasion to deliberate and apply their minds. The file note containing the proposal is said to have been so circulated to all the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import of dogs are examined in the Department from the sanitary and quarantine point of view for which the Department has framed import requirements for all categories of dogs. Further, the matter has been considered in view of the comments/views received from AWBI, M/o EF&CC, WCD and with the approval of the Competent Authority, it has been decided that the import of dogs may be allowed only for the following specific purposes:- i. Pet dog with valid pet book and relevant records/documents in the name of importer. ii. Dogs imported by the R&D Organisations for conducting research with the recommendation of CPCSEA. iii. For the internal security by the Defence and Police Force. However, import of commercial dogs for breeding or any other commercial activities other than the purposes mentioned above shall not be allowed. Accordingly, the DGFT is requested to issue necessary notification in this regard. Submitted please. Ft 20 (pc-2(a)) Currently, as per ITC (HS), 2012, Schedule -I (import policy), import of live animals (non-wild including the dogs in restricted. To bring changes in the import policy of dogs, it has to be assigned a specific separate Exim Code which can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sd/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected. 48. The provisions of the FT(D&R) Act and the FTP state that, generally exports and imports are free unless regulated by way of a prohibition, restriction or a provision for exclusive trading through the State Trading Enterprises. In the interests of completion, the impugned Notification is extracted below: To be published in the Gazette of India Extraordinary Part-II, Section 3, Sub-Section (ii) Government of India Ministry of Commerce & Industry Department of Commerce Directorate General of Foreign Trade Notification No. 3/2015-2020 New Delhi, Dated: 25 April, 2016 Subject: Introduction of policy conditions on import of dogs in Chapter 01 of ITC (HS), 2012-Schedule-1 (Import Policy). S.O. (E): In exercise of powers conferred by Section 3 of FT (D&R) Act, 1992, read with paragraph 1.02 and 2.01 of the Foreign Trade Policy, 2015-2020, as amended from time to time, the Central Government hereby introduces policy conditions on import of dogs under Chapter 01 of ITC (HS), 2012-Schedule-1 (Import Policy) as under: (7) Import of dogs is allowed only for the following specific purposes:- i. Pet dog with valid pet book and relevant records/documents in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised, in such cases and subject to such conditions, by the Director General or such other officer subordinate to the Director General, as may be specified in the Order. 51. 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. 52. 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, I have held that 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lub', the Indian National Kennel Club, perhaps the precursor of one of the petitioners in these Writ Petitions. He says that there that it was astonishing that though there were several entries for the dog show, there was no entry of any dog of Indian origin. Thus, even as early as in 1959, the interest shown and the attention devoted to Indian breeds appears to have been scant and rather poor. 57. At one time, there were several original native Indian breeds, such as, Taji, Bhutani, Banjari, Northern Dhole, Esquimaux dog, Southern Dhole, Saluki, Koochee, Bhotia (Himalayan Sheep dog and its varieties), Tripuri dog, Vaghari Hound, Maratha Mudhol or Pashmi Hound, Rajapalayam, Dhanagari, Poligar, Chippiparai - Thambai, Chippiarai - Raja, Patti dog, Bakharwal, Jonangi, Kombai, Sindhi, Pandikona, Lhasa, Alaknoori, Kaikadi, Kanni, Kurumalai. Today, it is moot as to how many of the aforesaid breeds survive. Even among those that do, the gene pool would surely have been diluted over the years. 58. While I have no doubt in my mind that all steps must be taken to protect and perpetrate original, native Indian breeds, this cannot be achieved by placing an embargo on the import of foreign do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Animals (Dogs Breeding and Marketing) Rules, 2017 (in short 'PCA Rules') have been challenged in W.P.No.16765 of 2017 by the Kennel Club of India. As seen from the interim order passed by the First Bench in that Writ Petition on 22.07.2020, the challenge by way of Declaration is premised on Section 38 of the Prevention of Cruelty to Animals Act, 1960 (in short 'PCA Act') contending that it amounted to incompetent exercise of framing a delegated legislation, constitutionally impermissible, keeping in view Entry 15 of List II of the Seventh Schedule of the Constitution of India, a subject exclusively in the State List. 64. The argument advanced was that 'breeding' was not part of the definition 'cruelty' under Section 11 of the PCA Act and thus the Central Government has no competence to frame such Rules. This flows from the position that Entry 17 of the Concurrent List, being List III of the Seventh Schedule deals specifically with prevention of cruelty of animals and it is only if breeding were understood to be a cruel act, that the Centre assume any authority in this regard. 65. This was countered by the respondents, who submitted that while breeding may not be cruelty per se, b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
