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Report No. 261

2.5.5 In the UK, courts have similarly held that the doctrine of ultra vires "ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires." Attorney General v. Fulham Corporation, [1921] 1 Ch. 440, 450 (Chancery Div. 1920).

A subsidiary body (like the MoEF) is empowered "to do not only that which is expressly authorized but that which is reasonably incidental to or consequential upon that which is in terms authorized."33 Other cases use similar language.

In Commissioners of Customs and Excise v. Cure & Deeley Ltd., [1962] 1 Q.B. 340 it was held that "a court is bound before reaching a decision on the question whether a regulation is intra vires to examine the nature, objects, and scheme of the piece of legislation as a whole, and in the light of that examination to consider exactly what is the area over which powers are given by the section under which the competent authority is purporting to act."

33 Id

2.5.6 Indian courts have also deliberated on the specific issue of the scope and meaning of the Prevention of Cruelty to Animals Act, 1960. In the case of Animal Welfare Board of India vs A Nagaraja & Others, (2014) 7 SCC 547 the Supreme Court considered whether Jallikattu and bullock-cart races in Tamil Nadu and Maharashtra violate the PCA Act. The Court noted that the Act is a welfare legislation and, as such, should be liberally construed in favour of the weak and infirm.36

The Court also stated Section 11 of the Act, which prohibits cruel treatment, "is a beneficial provision enacted for the welfare and protection of the animals and it is penal in nature. Being penal in nature, it confers rights on the animals and obligations on all persons, including those who are in-charge or care of the animals to look after their well-being and welfare."37

After considering in-depth reports of how animals are treated during these events, the Court held that the Jallikattu, bullock-cart races, and similar events per se violate Sections 3, 11(1)(a), and 11(1)(m)(ii) of the Act. The Court rejected arguments that these events were part of local culture and tradition because the PCA Act, being a welfare legislation, "over-shadows or overrides the so-called tradition and culture."38

The Court reiterated, "every species has an inherent right to live and shall be protected by law, subject to the exception provided out of necessity. Animal has also honour and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attacks."39

36 Id. at ¶ 33.

37 Id. at ¶ 37.

38 Id. at ¶ 54.

39 Id. at ¶ 61.

2.5.7 The Court also observed, among other things, that AWBI and state and central governments must take steps to (a) see that the persons-in-charge of the care of animals, take reasonable measures to ensure the well-being of animals; and (b) to prevent the infliction of unnecessary pain or suffering on the animals. The Court further noted that it expected that Parliament, "would elevate rights of animals to that of constitutional rights, as done by many of the countries around the world, so as to protect their dignity and honour."40

40 Id. at ¶ 91.9.

2.5.8 In the present case, rules regarding pet shops, dog breeding, and aquarium fish breeding clearly fall within and have a rational nexus to the object and purpose of the Prevention of Cruelty to Animals Act, i.e., they are intended to prevent cruelty and harm to animals. Neither are the rules inconsistent with the enabling Act, nor do they infringe any fundamental rights or constitutional provisions. Thus, the MoEF has authority to make these rules.

Need to Regulate Pet Shops and Dog and Aquarium Fish Breeding Back

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