SUNDAY, JUNE 16, 2024
Norma Alvares
The continuing conflict between managements of apartment blocks, gated communities and people who are dedicated to the feeding of stray animals now has a legal resolution. The new ‘Animal Birth Control Rules (ABC), 2023’ notified under the Prevention of Cruelty to Animals Act declare ‘street strays’ as ‘community dogs’, having inalienable rights to being fed in both private and public areas.
This signals a clear and welcome improvement in the way people perceive strays and their rights.
The developments are reflected in two recent judgments of the Bombay High Court. These judgments arose in conflicts where animal activists and dog feeders have sometimes been restrained by members of housing societies from feeding stray dogs on the society premises, and in some cases, have been either stopped from feeding the animals or have had to feed them elsewhere.
In both judgments delivered independently of each other in March this year, the High Court has unequivocally held that stray dogs not only have an inherent right to live and not be subjected to cruelty, but like all other animals, also have a right to their basic needs of food and water. Relying on some earlier judgments of the Supreme Court and of different high courts in the country, as well as the Central Government’s recently notified ABC Rules, 2023, the Bombay High Court emphasized that compassion for all living creature is a fundamental duty of citizens, enshrined in Art 51-A (g) of the Constitution of India.
The circumstances which led to the filing of the petitions not only make interesting reading, but are fairly similar to situations in Goa as well, where managements of some gated communities have stopped dog feeding or delegated the activity outside their campus.
Let us briefly look at the facts in each case.
The first petition - filed by Sharmila Sankar and others against the Seawood Estates Ltd - had a history. The activists had earlier (in 2021) approached the High Court with a writ petition complaining that they were not being permitted to feed the stray dogs living within the complex. Some assurances were given by the management that places would be assigned for feeding the stray dogs. However, Seawoods – apparently unwilling to permit some portion of its property to be assigned for dog feeding – instead created sheds or temporary structures for feeding stray dogs at three stations on public land outside the Estates. This naturally upset the city corporations – CIDCO and Navi Mumbai Municipal Corporation – which have jurisdiction over these lands. They commenced to remove these unauthorised structures, but the activists were also aggrieved that the earlier promises were reneged upon. They therefore filed a contempt petition, which was decided on March 20, 2023, by a bench comprising Justices Gautam Patel and Neela Gokhale. In their judgment, the Court elaborately discussed the issue of whether resident welfare associations, under one excuse or another, can prevent dog feeders from caring for the strays resident within the campus.
The second case relates to a petition filed by Ms Paromita Purthan, a dog feeder who was taking care of around 18 dogs living within the cooperative housing society in which she resides. Her society comprises three buildings and the land available is around 15 acres, including that of neighbouring societies. Her grievance was that the management of the society refused to allow her to feed the dogs and care for them, including providing them with water. The society management rejected her requests to allot a designated area within the complex for feeding the animals. She was thus compelled to feed them outside the society gates which in turn made the dogs vulnerable to road accidents. Even this was apparently not liked by the management which now hired bouncers to prevent the petitioner from caring for these community dogs. Ms Purthan therefore filed WP No 702/2023 for relief. Judgment on her petition was delivered on March 27, 2023, by a division bench comprising Justices G S Kulkarni and R N Laddha.
In Sharmila Sankar & Ors v/s UOI, the Court framed the issue as follows: Whether a provision ought to be made – as M/s Seawoods suggested – for the care and feeding of stray dogs outside the private precincts, but on public land. These were community dogs living within the residential complex area.
The Court found answers to the issues raised in both petitions in the new ABC Rules 2023, which lay down special provisions for the care and upkeep of street/stray dogs. These Rules have been notified under Section 38 of the Prevention of Cruelty to Animals Act, 1960. They have received the approval of Parliament and were notified on 10 March 2023. They are now law.
At the outset one needs to notice one very significant feature of the ABC Rules 2023, which reflects changing the perception of law makers towards these ownerless, abandoned dogs which we see aplenty wandering our streets and market places. The ABC Rules 2023 renames these dogs as ‘community dogs’ – rather than stray or street dogs. With this single and simple change in terminology, the dogs have been given a sense of belonging, and with the same stroke of the pen, people residing in the areas in which the dogs have come to reside have automatically become their caregivers: they are now responsible for their upkeep and wellbeing.
The ABC Rules define a community animal as ‘any animal born in a community, for which no ownership has been claimed by any individual or organization and excludes wild animals as defined under the Wildlife Protection Act, 1972’.
It is the section on feeding and care of community dogs in the ABC Rules which has been highlighted and relied upon by the Bombay High Court to direct the residential societies to earmark dog feeding areas where animal activists/feeders can care for their needs. The relevant Rule 20 on feeding of Community Animals states that ‘it shall be responsibility of the Resident Welfare Association (RWA) or Apartment Owner Association (AOA) or Local Body’s representative of that area to make necessary arrangement for feeding of community animals residing in the premises or that area involving the person residing in that area or premises as the case may be’. It also states that the RWA/AOA/Local Body’s representative ‘shall ensure to designate feed spots which are mutually agreed upon’.
The Rules 2023 further ensure that in case of any conflict between the RWA/AOA and the animal caregivers or other residents, an Animal Welfare Committee comprising all stakeholders including the complainant shall be formed who shall take a decision on fixing of the feeding points as well as nominating the person/s from amongst the colony care takers to feed the animals in that area. There is also scope for an appeal.
Concluding its judgment the Court stated: “We must also note that the recognition of animal rights also speaks to the concept of standing or locus, thus permitting representative actions on behalf of other non-human living creatures. A recent trend even in this country in some High Courts has been to recognize the vesting of such rights. We mention this only to emphasize that the present 2023 Rules cannot be said to have been enacted in a vacuum. …… If this is the architecture of the 2023 Rules, then clearly there is no issue which remains for us to be decided. There is now a legislative framework which occupies the field…. The vexed question of whether a RWA can be obligated to provide a feeding station or feeding area no longer arises. What remains is the issue of management, which is also taken care of by the Rules because there is a defined procedure.”
The second judgment delivered a week later relied heavily on the Seawoods Estates case, with the judges firmly cautioning the members of the Society from conducting themselves in a manner contrary to the 2023 Rules. “We expect that a sense of belonging and responsibility on such issue needs to prevail between the members of the Society so as to cordially resolve these issues and no confrontation in this regard ought to happen” stated the judges, adding that “to hate the stray dogs and /or treat them with cruelty can never be an acceptable approach from persons of civil society …… such actions would not only be contrary to the provisions of law but also, amount to commission of an offence.”
The Court’s decisions in these two judgments are to be welcomed, as they provide a more inclusive interpretation of the rights of all living creatures on this planet.
(Norma Alvares is an advocate of the Bombay High Court and an activist and campaigner on social and environmental issues of public concern, especially in her home state of Goa)
