Report No. 261

A. Question 1.

2.4.1 In its response to MoEF on the issue, as discussed above, the MLJ suggested that, because pet shops, dog breeding, and aquarium fish breeding are not listed in section 38(2) of the PCA Act among the enumerated areas of regulation, the PCA Act does not confer authority on the Central Government to regulate them.

However, the AWBI's proposed rules appear to fall under section 38(2)(c) and 38(2)(1) of the PCA Act, which empower the Central Government to make rules concerning "the conditions to be observed for preventing the overcrowding of animals; the period during which, and the hours between which, any class of animals shall not be used for draught purposes" and "any other matter which has to be, or may be prescribed."

2.4.2 More importantly, section 38(1) confers general power on the Central Government to make rules to carry out the purposes of the PCA Act.16 Section 38(2) of the PCA Act lists specific areas that the Central Government may regulate, but these are merely non-exclusive examples, and this list cannot be read to limit the generality of the Central Government's authority.17

Thus, despite the fact that pet shops, dog breeding or aquarium fish breeding are not listed in section 38(2), the Central Government can make rules regulating these issues as long as the rules are intended to carry out the purposes of the Act.

16 See Prevention of Cruelty to Animals Act § 38(1): "The Central Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules to carry out the purposes of this Act."

17 See Prevention of Cruelty to Animals Act § 38(2): "In particular, and without prejudice to the generality of the foregoing power, the Central Government may make rules providing for all or any of the following matters, namely."

[emphasis added].

2.4.3 The purpose of the PCA Act, as stated in its preamble, is "to prevent the infliction of unnecessary pain or suffering on animals." The purpose of the PCA Act can be further ascertained from the various forms of "cruelty" listed under section 11(1). This section covers the following under the purview of cruelty:

(a) Beating, kicking, over-riding, over-driving, over-loading, torturing, causing unnecessary pain or suffering;

(b) Employing any animal which is unfit to be so employed;

(c) Wilfully and unreasonably administering any injurious drug or injurious substance;

(d) Conveying or carrying an animal in such a manner as to subject it to unnecessary pain or suffering;

(e) Keeping or confining any animal in any cage or receptacle which does not measure sufficiently in height, length and breadth to permit the animal a reasonable opportunity for movement;

(f) Keeping for an unreasonable time any animal chained or tethered upon an unreasonably heavy chain or chord;

(g) Neglecting to exercise or cause to be exercised reasonably any dog habitually chained up or kept in close confinement;

(h) Failing to provide an animal with sufficient food, drink or shelter;

(i) Abandoning any animal without reasonable cause in circumstances which render it likely that it will suffer pain by reason of starvation or thirst;

(j) Wilfully permitting any animal to go at large in any street while the animal is affected with a contagious or infectious disease, or without reasonable excuse permits any diseased or disabled animal to die in any street;

(k) Offering for sale or without reasonable cause, having any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill treatment;

(l) Mutilating any animal or killing any animal (including stray dogs) through strychnine injections in the heart or any other unnecessarily cruel method;

(m) Solely with a view to providing entertainment:

(i) confining or causing to be confined any animals (including tying an animal as bait in a tiger or other sanctuary) so as to make it an object of prey for any other animal; or

(ii) inciting any animal to fight or bait any other animal.

(n) Organizing, keeping, using or acting in the management of any place for animal fighting or for the purpose of baiting any animal or permitting or offering any place to be so used or receiving money for the admission of any other person to any place kept or used for any such purposes;

(o) Promoting or taking part in any shooting match or competition wherein animals are released from captivity for the purpose of such shooting.

2.4.4 The preamble of the AWBI's Draft Pet Shop Rules, 2010 makes clear that the proposed rules fall under the purposes of Act - "In the last decade, with the liberalization of the economy and the increase in purchasing power, several new trades have come into being. One of these is the mushrooming, and yet unregulated pet trade in live animals, that are capable of experiencing discomfiture, pain, hunger and thirst just as humans do. Live animals are exhibited and traded like commodities in pet and pet product shops.

These Rules are intended to ensure their humane handling, and to regulate this trade. Since the mute cannot complain, the responsibility to ensure compassionate and empathetic handling is greater. Since pet shops are commercial establishments, they have to be regulated with licenses, and parameters of operational standards. Uniform practices and procedures have to be prescribed, and adhered to by those partaking in the profits derived from this brand of commercial activity. Consequently, the Pet Shop Rules have been formulated."18

[emphasis added].

18 Animal Welfare Board of India, Draft Pet Shop Rules, 2010, available at
http://www.moef.nic.in/downloads/public-information/rev-draft-pet-shop-rules.pdf
(last accessed on August 12, 2015).

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