Why the Gauhati HC quashed Nagaland govt’s notification banning dog meat’s sale and trade

What is the government notification in question?

The order had been issued on July 4, 2020, by the office of the Chief Secretary of Nagaland and it had banned the commercial import, trading of dogs, dog markets, as well as the commercial sale of dog meat in markets and in dine-in restaurants.

Any person found violating the order could be punished under Sections 428 and 429 of the Indian Penal Code (IPC), which punish acts of cruelty against animals, such as killing, poisoning, or maiming them. Violating the order could also attract punishment under Section 11 of the Prevention of Cruelty to Animals Act, 1960.

This order had come after a 2014 circular by the Food Safety and Standard Authority of India (FSSAI), stating that the slaughter of any species other than the ones listed in Food Safety and Standards (Food Products Standards and Food Additives) Regulation, 2011 is not permissible. The Nagaland government order had stated that the ban was necessary to “regulate the safety of food articles safe for human consumption”.

What powers does the FSSAI have?

The Food Safety and Standards Act (FSSA), 2006, was passed to “consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science-based standards” for it. It also aimed to regulate the “manufacture, storage, distribution, sale and import” of food articles to ensure the availability of “safe and wholesome food”. It led to the establishment of the FSSAI.

The duties and functions of the FSSAI were laid out in Section 16 of the FSSA. It is to regulate and monitor the manufacture, processing, distribution, sale, and import of food. It can also make regulations specifying the standards and guidelines for food articles.

Besides this, Section 92 also gives FSSAI the power to make regulations and rules consistent with the Act, with the Centre’s prior approval. This culminated in the FSS (Food Products Standards and Food Additives) Regulations, 2011, notifying standards and guidelines on food for human consumption.

What are the animals listed in the regulations?

Regulation 2.5.1(a) of the 2011 Regulations defines “animal” as any animal belonging to the species of ovines [sheep family], caprines [goat family], suillines [pig family], bovine [cattle], and including poultry and fish.

What were the court’s comments on this categorisation?

In its judgement, the court observed that the absence of dogs from the listed animals is “not surprising”, since the consumption of dog meat is limited to some parts of North Eastern states. As the idea is alien to other parts of the country, the inclusion of dogs in the list would be “inconceivable” because the consumption of dog meat “would be considered unthinkable”.

However, the court observed that dog meat “appears to be an accepted norm and food amongst the Nagas even in modern times.” Based on the petitioner’s submissions, the court noted that the long-standing consumption of dog meat by various tribes in Nagaland has been recorded in multiple texts such as ‘The Angami Nagas, With Some Notes on Neighbouring Tribes’ authored by J.H. Hutton in 1921; ‘The AO Nagas’ and ‘The Rengma Nagas’ authored by J.P. Mills in 1926 and 1937, respectively.

The court also underlined that the definition of ‘food’ in the FSSA as primarily meaning “any substance, whether processed, partially processed or unprocessed, which is intended for human consumption.” The court noted that this definition is “wide and liberal enough” to include dog meat.

Was there discussion on cruelty to animals as well?

The counsel for respondents People for Animals and Humane Society International/India had argued that dogs have been smuggled and brought into markets in 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”, and that their trade entails cruelty to dogs.

The court observed that while photographs submitted by the respondent show that dogs meant for slaughter appear to have been subjected to pain and suffering, this does not justify the ban. Instead, the court stated, there can be remedial measures to ensure the enforcement of the Prevention of Cruelty to Animals Act and the IPC.

What were the court’s observations on the power of the FSSAI to issue prohibition orders on food items?

The court observed that the authority has been delegated power to ensure the availability of safe and wholesome food for human consumption by making regulations consistent with the FSS Act. It also observed that the Duties and Functions of the authority listed in the act does not mention the power issue prohibition orders. It stated that the authority appeared to have acted beyond its duties.

Broadly looking at section 2.5 of the 2011 regulations, which mentions “meat and meat products”, the court said it provided a detailed procedure on how the meat of certain categories of animals can be processed scientifically to make it fit for human consumption. However, the court said that the regulation had no provision “prohibiting the slaughter of any other animal for human consumption.”

Although Sections 33 and 34 of the Act list circumstances in which courts or the Commissioner of Food Safety can issue prohibition notices or orders, the court said that none of these prohibits the slaughtering of animals outside the ambit of regulation 2.5.1(a).

Quashing the 2020 government order, the court said that the Chief Secretary was not the appropriate authority to issue it since Section 30 of the FSS Act provides for appointing a Commissioner of Food Safety by the state government to implement the food safety standard and other requirements laid down by the Act.

Referring to the 1989 decision of the Supreme Court in ‘Marathwada University v. Seshrao Balwant Rao Chavan’, the court held that “when the Act prescribes a particular body to exercise a power, it must be exercised only by that body” and not others, “unless it is delegated”.