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TMI Blog2023 (6) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ean 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 membership of the Federation Cynologique International (FCI), the largest body in the world dealing with the interests of canines as well as the Asian Kennel Union and the Commonwealth Kennel Clubs as well as reciprocal arrangements with various major International Kennel Clubs. 4. KCI issues registration certificates as well as effects proper transfer of registration from one owner to another. Recently, it has also made it mandatory that all dogs registered with it be microchipped. The objects of the KCI are as follows: 1. The promotion of scientific breeding of dogs, issue of literature for the instruction and diffusion of scientific and useful knowledge for the general use of the mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssist 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 claiming to be an avid dog lover and a member of the KCI and several canine clubs affiliated to it. He claims to be passionate about a breed of dog called Fila Braselerio, a canine breed from Brazil, primarily strong and aggressive guard dogs, and he claims to have several as pets. 9. Their challenge in common is as regards Notification No.3/2015- 2020, dated 25.04.2016 ( impugned Notification ) which places a restriction on the import of dogs into the Country for commercial breeding or other commercial activities. All petitioners speak in one voice as regards the challenge to the Notification which is on two grounds. The first ground is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 existing animals can be preserved. With regards, Yours sincerely, Sd/- (Smt. Maneka Sanjay Gandhi) 12. In response, the Additional Director General of Foreign Trade (ADGFT) by letter dated 14.12.2015 states as follows: D.O. No.01/89/180/200/AM-02/PC-2 (A)/941 GOVERNMENT OF INDIA MINISTRY OF COMMERCE INDUSTRY DIRECTORATE GENERAL OF FOREIGN TRADE UDYOG BHAWAN, NEW DELHI-110011 Telefax:. . . . . . E-Mail: . . . . . . . . Date:14/15 December, 2015 Dear Sri Arora, This has reference to the D.O. letter No.535/14/2015 dated 1st De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistry 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 the Second Schedule which relates to Rule 3, being distribution of subjects, relates to the categorisation of subjects qua the Department of Animal Husbandry and Dairy Farming (Pashupalan, Dairy Aur Matsyapalan Vibhag) (in short AHDF). One of the subjects enumerated in Part I of Part C of the Second Schedule under serial number 6 is, Regulation of Livestock importation, Animal Quarantine and Certification . 21. Do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 must be based on empirical data. 27. In that case, the conclusion of the Court was that the State of Maharashtra had no material in its possession to come to a scientific and proper conclusion that dancing in public establishment leads to depravity and corruption of morals. 28. The petitioners attack the very basis on which the ban has been imposed, denying that the importation of dogs is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mportation 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 that even assuming that there was some collateral damage by way of public interest, in policy matters, it is always larger public interest that is sought to be addressed by the State. 36. According to them, this would justify prejudice, if any, caused to the petitioners and other dog lovers by way of the restrictions imposed. Such restrictions are necessary in larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 Hon ble Members for their endorsement. 44. The file note produced before this Court reads thus: F.No. 01/89/180/200/AM-02/PC-2 (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of commercial dogs into India. 2. Briefly, the Hon'ble Minister for Women Child Development had written to Deptt. of Animal Husbandry (D/o AHD F), with a copy to this Directorate, requesting for imposition of a ban on import of commercial dogs into India. DGFT's stand had been clarified to the Minister's office vide DO dated 15.1.2.2015. Subsequently, on comments being sought by D/o AHD F on the same issue, they were also informed accordingly. 3. Now, having examined the comments received from M/o EF CC as well the Animal welfare Board of India (AWBI), D/o AHD F with the approval of their Competent Authority, has decided that 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. 4. Further, as it has also been decided that import of commercial dogs for breeding or any other commercial activities other than the purposes mentioned above shall not be allowed, D/o AHD F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate in bold above are said to be the endorsement of the then Hon ble Minister holding additional charge of the Ministry of Agriculture and Farmers Welfare though there is no pleading available in this regard. My understanding of the Transaction of Business Rules read with Allocation of Business Rules is that it is only the concerned Minister holding portfolio who has the final word on the issuance of Notification in this regard. 47. In light of the categoric statement of the learned ASG to the effect 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, I accept that statement without question. If the petitioners believe that the statement requires probing, it is left open to them to utilize the provisions of the Right to Information Act and seek and obtain necessary clarification/information. With this, this objection of the petitioners is rejected. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (3) All goods to which any Order under sub-section (2) applies shall be deemed to be goods and import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. (4) without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods shall be prohibited for import or export except, as may be required under this Act, or rules or orders made thereunder. 50. To decide this issue, one needs to refer to section 6 of the FT (D R) Act that deals with appointment of a Director General. Section 6(3) in terms of which the Central Government delegates power to the DGFT reads thus: 6. Appointment of Director General and his functions (1) (2).......... (3) The Central Government may, by Order published in the Official Gazette, direct that any power exercisable by it under this Act (other than the powers under sections 3, 5, 15,16 and 19) may also be exercised, in such cases and subject to such conditions, by the Director General or such other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kg (50.5-90.5 lb) and has a thick coat with a variety of colours. 55. The Book of Indian Dogs (S.Theodore Baskaran, 2017 edition by Aleph Book Company) sets out the origins of the domestication of dogs and the history of dogs in India. The author refers to the results of research carried out in Sweden and published in a journal by name Current Biology in May, 2015, relating to an analysis of an old fragment of the jaw of a dog. Based on this, the researchers had come to the conclusion that the dog had been domesticated around 27000 to 40000 years ago. The bone fragment was attributed to around 35000 years ago and was said to be belong to the Timur wolf the most recent ancestor of wolves and modern dogs . There is an on-going project on the Indian dog (INDog Project) and I have had the benefit of a publication entitled The Indian Dog (Authored by WV Soman, digitized by the INDog Project with permission of Popular Prakashan) , made available on the internet. 56. Interestingly, the author refers to the role he played officiating as a Judge in 1959 at a dog show held in Bombay organized by a newly started Kennel Club , the Indian National Kennel Club, perhaps the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Women Child Development, on the basis of which the impugned ban has been imposed, are stated to have been destroyed. I am not inclined to assume the existence of such material which is fundamental and critical to justifying the impugned Notification. 61. These Writ Petitions were filed on the heels of the impugned Notifications and the learned Senior Panel Counsel for the Central Government has accepted notice on behalf of the respondents on 12.07.2016 in respect of W.P.Nos.23230 and 23231 of 2016 and notice has been directed to be issued vide order dated 26.04.2017 in respect of W.P.No.10496 of 2017, when it had come up for admission. 62. It was thus incumbent upon the respondents to have secured and retained all files in connection with the Notification, particularly since the affidavit discloses the grounds of challenge. Thus, I am persuaded to adopt the view and conclude that the impugned Notification has been issued without necessary scientific study and due diligence as called for. In light of the discussion as above the impugned Notification is set aside and these Writ Petitions are allowed. 63. The prevention of Cruelty to Animals (Dogs Breeding and Marketing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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