Gauhati High Court set aside order banning sale and consumption of Dog’s meat

Gauhati High Court set aside order banning sale and consumption of Dog’s meat

Recently Hon’ble Gauhati High Court has set aside and quash the order dated 04.07.2020 issued by the state respondents banning the commercial import, trading of dogs and dog markets as well as commercial sale of dog meat in markets and dine in restaurants.

BRIEF FACTS OF THE CASE

The petition filed under Article 226 of the Constitution was for issuance of the appropriate writ for violation of the petitioners’ Fundamental Rights under Article 14, 19 & 21 of the Constitution and for violation of principles of natural justice, which according to the petitioners have been violated by Notification No. CSO/CORRES-19/CAB/2017 dated 04.07.2020, banning the commercial import, trading of dogs and dog markets as well as commercial sale of dog meat in markets and dine in restaurants, while, the petitioners have an Import/Export permit, dated 03.06.2020, issued by the Kohima Municipal Council, which allows the petitioner to import dogs to Kohima and have been earning their livelihood by selling dog meat for the past many years.

CONTENTION OF PETITIONER

Learned Counsel for the petitioner submitted that impugned notification dated 04.07.2020 banning the commercial import, trading of dogs and dog markets as well as commercial sale of dog meat in markets and dine in restaurants was issued under the Food Safety Authority of India and under the Food Safety and Standards Act, 2006(Henceforth referred to as FSS Act,2006) and under Food Safety and Standards (Food Products Standards and Food Additives) Regulation, 2011 (Henceforth referred to as Regulation, 2011.

He further submitted that submits that a circular dated 06.08.2014 issued by the Food Safety and Standard Authority of India states that the Regulation 2.5 of the Food Safety and Standards (Food Product Standards and Food Additives) Regulation, 2011 has defined animals, carcass and meat and sub-regulation 2.5.1(a) has defined “animal” viz Ovines, Caprines, Suillines, Bovines and includes poultry and fish. The slaughtering of animals of any other species other than the one listed in sub-regulation 2.5.1(a) is not permissible under the FSS Act, 2006 and Regulation, 2011 and to strengthen the vigil and ensure the compliance of the provisions of FSS Act,2006. The impugned order was then notified by States Govt. stating that dog meat is not fit for human consumption and ban as necessary and Any person found violating this order shall be liable to be punished under Section 428 & 429 of the Indian Penal Code and Section 11 of the Prevention of Cruelty to Animals Act, 1960.

Learned counsel for the petitioners submitted that his first contention is that the Regulation, 2011 has not expressly or impliedly prohibited slaughter of any specific animals not mentioned in regulation 2.5.1(a) of Regulation, 2011 for human consumption. Likewise, the Food Safety and Standards Act, 2006 has also not prohibited the slaughter of animals not mentioned in regulation 2.5.1(a) However, the Regulation,2011, has been wrongly interpreted by the Food Safety Authority of India and the state respondents, therefore the impugned notification dated 04.02.2020isnot in consonance with the Food Safety and Standards Act, 2006/ FSS Act, 2006. Further to advance his first contention he stated that the petitioners have been dealing with supply and selling of dogs meat and have been earning their likelihood as such for the past many years. That is the culture and custom of the Nagas to eat dog’s meat which has been mentioned in some to the earliest ethnographical and anthropological accounts of the Nagas.

He further stated that the impugned notification dated 04.07.2020 was passed under regulation 2.5.1(a) of Regulation, 2011 and the Food Safety & Standard Authority of India. However, neither the FSS Act,2006 nor the Regulation, 2011, specified that animals not included in the definition of ‘animal’ under regulation 2.5.1(a) of the Regulation, 2011 are prohibited from being slaughtered for human consumption.

Learned counsel for the petitioner stated that the Regulation, 2011 is principally a delegated legislation and the parent FSS Act, 2006, has empowered the Food Authority to issue enactment to serve the purpose of the FSS Act, 2006. The learned counsel submits that in a principle of delegation, the delegate which is the Food Authority of India is not authorised to act beyond the powers conferred by the Act. If we are to accept the interpretation of the Food Authority of India and the State Government, it would amount to the narrowing of the definition of food and added that the impugned order dated 04.07.2020 has no legal backing and is in violation of the fundamental rights and legal right of the petitioner as enshrined under article 19 and 21 of the Constitution. The petitioners is being denied the right to consume the food of their choice and to earn their livelihood when Import /export permit dated 03.06.2020 has been issued by the Kohima Municipal council for the petitioner to trade in dog meat.

The learned counsel for the petitioner submitted that his second contention that the impugned Notification dated 04.07.2020 was issued by the Chief Secretary, who has no authority to issue the impugned notification under the FSS Act, 2006.

The learned counsel for the petitioners submitted that his third contention is that the impugned order, which was not issued in accordance with the procedures and principles prescribed in the Act, is a violation of the principle of natural justice.

The learned counsel for the petitioner while advancing his fourth contention submitted that the Executive branch of the Government is not competent to pass the impugned notification, without there being any law passed by the legislation in relation to trade and consumption of dog meat. The impugned notification is said to have been passed in accordance with a Cabinet decision taken on 04.07.2020. However, such a decision taken by Cabinet has no backing/basis of any law or legislation. The impugned notification dated 04.07.2020, as such, is illegal and violates the petitioner’s Fundamental Rights under Article 19(1)(g) and Article 21 of the Constitution. The learned counsel submits that it is a settled proposition of law that restrictions to the Fundamental Rights under Article 19 & 21 can be imposed only through a law passed by the Legislator. That the rights of the petitioners under Article 304(b), which is their Right to Freedom of trade has also been violated and this has also affected the livelihood of the petitioners. Further he also relied on several precedents to support his arguments.

CONTENTION OF THE STATE

The learned counsel for the respondent no. 6 & & vehemently opposed the contention of the petitioner and stated that notification is verbatim replica of the Act and regulation and it is not a interpretation of the same. She also stated that Regulations were made after Public consultation and at that time the petitioner have not challenged or objected the same and now, at this later stage the petitioners cannot object to the definition of animals which is given under regulation 2.5 of Regulation, 2011, which has narrowed down the definition of animals which are safe for human consumption. Any other animal not mentioned in the regulation is held not safe for human consumption and cannot be considered as food.

The learned counsel for respondent Nos.6 & 7 further submitted that the petitioners have not placed on record any licenses/registration for functioning as Food Business Operators under the FSS Act, 2006 as required under Section 31 of the FSS Act, 2006. The petitioners seek to rely on the FSS Act, 2006 while acting in direct contravention of the Act. Mere temporary trade licenses from the Municipal Corporations do not permit the Petitioners to carry out food business in meat trade, let alone dog meat trade. Furthermore, the temporary Import/Export Permit issued by the Kohima Municipal Council, permitting the petitioners to import dogs from all over India, has been wrongly issued as dog meat trade is not permissible all over India.

She further stated that petitioners’ fundamental rights are subject to certain reasonable restrictions. She further stated that Chief Secretary has a constitutional duty under Article 256 of the Constitution to ensure the public safety and the well being of the citizens and has the full authority to issue the impugned notification since the consumption of dog’s meat is against the interest of health of the people. Various scientific research papers/articles state that the dog meat trade endanger the human population due to risk of diseases like Rabies and Trichinella infection as well as increased antibiotic resistance. She, further, submitted that the dogs have been smuggled and brought into the market of Kohima/Nagaland in a pathetic state where dogs are tied and put in gunny bags with their mouth tied for long periods of time with no food or water to drink. In such light, the illegal killing of dogs and their import/export/running of dog farms/confining of dogs to kill them for dog meat trade is definitely cruel and amounts to infliction of unnecessary pain and suffering.

The learned Addl. AG appearing for State  further submitted that the power to ban commercial sale of dogs and dogs meat is with the Authority and dogs not being under the definition of meat food products has the authority to ban the commercial import and trading of dog, commercial sale of dogs meat in markets and dine in restaurant.

HON’BLE COURT’s OBSERVATIONS

The Hon’ble Mrs Justice Marli Vankung framed a question for consideration as

“30. The main issue for consideration is whether the Food Safety and Standards Authority of India had acted beyond its delegated powers by issuing the circular dated 06.08.2014, stating that the Regulation 2.5 of the FSS (Food Product Standards and Food Additives Regulation,2011 has defined animals, carcass and meat wherein sub-regulation 2.5.1(a) has defined “animal”. The slaughtering of animals of any other species other than the one listed in sub- regulation 2.5.1(a) is not permissible under the FSS Act, 2006 and Regulation, 2011 and whether in pursuance of the circular the State of Nagaland had rightly issued the impugned notification 14.07.2020 dated, banning the commercial import, trading of dogs and dog markets as well as commercial sale of dog meat in markets and dine in restaurants.”

The court while adjudicating the question and after delving into FSS Act and Regulation observed that :-

“Under the definition of ‘animals’, Canine or dogs have not been mentioned, which is not surprising since the meat of dogs is consumed only in some parts of the North Eastern states and the very idea of consuming dog meat is alien in other parts of the country. The thought of adding canine/dogs as an animal for human consumption under regulation 2.5.1(a) would be inconceivable, since consumption of dog meat would be considered unthinkable.”

The Hon’ble further while examining the customary practice of eating dog-meat among Nagaland Tribes observed that :-

“33. This court however, do not find any grounds not to accept the account of dog meat being consumed by different tribes in Nagaland recorded in the books authored by J.H Hutton in “The Angami Nagas, With Some Notes on Neighbouring Tribes” and J.P Mills, in his book, ‘The AO Nagas’ and ‘The Rengma Nagas’ published by Macmillan and Co., Limited St. Martin’s Street, London published in 1921,1926 and published in 1937 respectively. There is also a belief that dog meat is also to having medicinal value. The consumption of dog meat appears to be an accepted norm and food amongst the Nagas even in modern times, wherein the petitioners are able to earn their livelihood by transporting dogs and selling of dog meat. But, dog meat is not considered the standard of food for human consumption and excluded in the definition of animals safe for human consumption.”

Further while perusing the Regulation 2.5 the Hon’ble court stated that :-

“34. A perusal of regulation 2.5 of regulation.2011, shows that it provides for a detailed procedure as to how the meat of the animals defined under regulation 2.5.1(a)is to be processed scientifically to make the meat of the ‘animals’ safe and suitable for human consumption. Thus the regulation deals with only how to process the ‘animals’ mentioned and there is no provision in the regulation, prohibiting the slaughter of any other animal for human consumption, not mentioned in regulation 2.5.1(a) of the Regulation, 2011.”

The court while examining the contention of the petitioner that Chief Secretary is not empowered to issue an order under FSS Act observed that :-

“35. It is also noted that the impugned notification dated 04.07.2020 was issued by the Chief Secretary, however, it is noted that the State Government under section 30 of the FSS Act, 2006 had appointed the Commissioner& Secretary, the Department of Health & Family Welfare, Govt. of Nagaland as Commissioner of Food Safety for the State, to implement the provisions of the Act within the State. The Apex Court in Marathwada University v. Seshrao Balwant Rao Chavan (Supra) held that

“It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury’s Laws of England (Vol. I, 4th End., para 32) summarises these principles as follows:

“32. Sub-delegation of powers.— In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless subdelegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising subdelegation; and the same may be said of any power to the exercise of which the designated body should address its own mind.” (emphasis added)

Hon’ble Court also passed serious remarks against the cruelty while slaughtering the dogs and also observed that State should organize awareness programs to inform its subjects about the ill effects of consuming dog meat.

Further while examining the issue of petitioners’ right to trade and sell dog’s meat, the Hon’ble court observed that:-

“The impugned notification dated 04.07.2020, as such, can be said to affect the petitioner’s earning capacity. Fundamental Rights under Article 19(1)(g) and Article 21 of the Constitution to earn his livelihood and the freedom to consume food of his choice however can be restricted by reasonable restrictions prescribed by law. The prohibition of sale and consumption of dog meat, by the Executive branch of the Government, without there being any law passed by the legislation in relation to trade and consumption of dog meat is liable thus to be set aside even though the impugned notification dated 04.07.2020 is said to have been passed in accordance with a Cabinet decision.”

In view of the above, the Hon’ble single judge set aside the order passed by the State respondents banning the commercial import, trading of dogs and dog markets as well as commercial sale of dog meat in markets and dine in restaurants.

Case no. :- Writ Petition (C) 128/2020

Order date :- 02.06.2023