ENVIRONMENTAL LAW

PROJECT

TRADE OR COMMERCE IN WILD ANIMALS, ANIMAL ARTICLES

AND TROPHIES: LEGISLATIVE AND JUDICIAL RESPONSE
(Term Paper towards partial fulfillment of the assessment in the subject of Environmental Law)

Submitted by: Submitted to:

SIBANI SAXENA Mrs. MONOMITA DAS

ROLL NO.:689 Faculty, Environmental Law

VII SEMESTER

B.B.A(hons) L.LB(hons)

National Law University, Jodhpur

Summer Semester

(July-November, 2012
 ACKNOWLEDGEMENT

I would like to take this opportunity to thank my Environmental Law guide and mentor Mrs.
Mononita Das for giving me the opportunity and the resources needed to complete this study. I
also would like to express my gratitude to the library staff for providing reference facilities. This
project has provided me with an ideal opportunity to express myself and I profusely thank all
those who have lent a helping hand.

1
 TABLE OF CONTENTS

Research Methodology....................................................................................................................3

Introduction......................................................................................................................................6

Wildlife and Trade...........................................................................................................................8

Legislative Response.....................................................................................................................10

Judicial Response...........................................................................................................................16

Conclusion.....................................................................................................................................19

2
 RESEARCH METHODOLOGY

Subject: Environmental Law

Topic: Trade or Commerce in Wild Animals, Animal Articles and Trophies: Legislative and
Judicial Response

Area: Wildlife Protection

Objectives:

a) To analyze the depth and the seriousness of the problem of trade and commerce in
wildlife.
b) To understand the current law in the country to check the problem of trade and commerce
in wildlife and animal articles.
c) To review the development of the law in the area by analyzing the case laws in the
subject.

Research Questions:

a) What is the gravity of the crimes involved in the trade and commerce in wild animals?
b) What is the domestic law with respect to the given problem?
c) What is the judicial response to the same?

Sources:
A number of sources have been used for the purpose of research for this project. Mainly
secondary sources have been used including websites, articles, Government reports and Research
reports.

Bibliography:

A. Websites
 www.freeland.org

3
 http://envfor.nic.in/legis/wildlife/wildlife1c6.pdf
 www.traffic.org
 www.worldwildlife.org

4
 INTRODUCTION

Wild life means the plants, animals, and insects etc., which are usually found in forests. The
multi-billion dollar illegal trade in protected species is one of the most lucrative illicit markets in
the world today. Combined with habitat loss, it is driving many wild animals and plants towards
extinction. Unsustainable poaching and wildlife trafficking is perpetrated globally, with less
developed countries often targeted in this theft. Controlled by organized international crime
syndicates, the value of the illegal wildlife trade is estimated at US$10-20 billion annually by
some experts.

Despite national and international laws designed to protect endangered species, almost all wild
species are traded. Big cats, pangolins, reptiles, birds, elephant ivory and illegal timber are traded
illegally in large quantities. This illegal trade is driven by demand for hardwoods and softwoods;
rare plants; bones, scales and other ingredients for traditional medicines; pets and zoo exhibits;
collectors’ trophies; decorations and luxury items; as well as wild meat and other products. Many
of those involved in the trade, including consumers, are unaware of the impact their actions.

With species being removed from the wild faster than they can repopulate, their inputs to critical
natural processes and ecosystem resilience are lost - a 'knock on' effect that causes other species
to disappear. Left unchecked, wildlife trafficking threatens to unravel entire ecosystems.1

India and Wildlife

India is richly endowed with a wide variety of flora and fauna. There is perhaps no other country
in the world that can rival it in biodiversity and natural wealth. With a forest cover of 19 per cent
of its total geographical area - of which as much as 11 per cent is good or dense forest. India is
home to 372 mammals, 1,228 birds, 428 reptiles, 204 amphibians, 2,546 fishes, 57,245 insects,
5,042 mollusces and several other species of invertebrates. It is the only country to have all the
five major vertebrates - the tiger, lion, panther, elephant and the rhino.2

1
www.freeland.org/eng/wildlife-trafficking/wildlife-trafficking-problem
2
Of the 81,000 species of animals recorded.

5
Out of the total eighteen bio-diversity hot spots in the world, India has two-one is the northeast
‘Himalayas’ and the other is the ‘Western Ghats’. At present, India is home to several animal
species that are threatened, which includes over 77 mammals, 22 reptiles and 55 birds and one
amphibian species. Threats vary from poaching and illegal trade to dwindling forest cover and
habitat thanks to development and population pressures. The ever-increasing demand for wildlife
products in the international markets, particularly in South-East Asia, Europe and North
America, poses a greater challenge to the Government and conservationists. Several species,
including the tiger, rhino and the elephant are being slaughtered to feed the lucrative illegal trade
in wildlife.

6
 WILDLIFE AND TRADE

Wildlife trade is perhaps the biggest threat to wildlife preservation. The rampant poaching, in
Wildlife and its products are primarily driven by a demands in the international markets. It is
widely believed that illegal trade in wildlife is second only to the narcotics trade. The High Court
of Delhi3 in a case relating to ivory trade remarked, ‘Courts have recognized that business in
intoxicating drugs and liquor is not a fundamental right as it is dangerous and noxious. Similarly,
on parity of reasoning, business in animal species which are on the verge of extinction being
dangerous and pernicious is, therefore, not covered by Art. 19(1)(g) of the Constitution. 4 Here it
is pertinent to mention that illicit trade has resulted in depletion of a large number of species of
wildlife. The prime motive behind such trade is monetary gains alone. It may be noted here that
the Parliament in November 1986 incorporated a complete new chapter in the WLPA, which
imposed an absolute prohibition on trade or commerce in trophies and animal articles derived
from protected scheduled species. Despite the existence of such mechanisms, trade in wildlife
continues to be the biggest challenge in wildlife conservation.

 Trade or commerce in wild animals, animal articles and trophies

The term trophy means the whole or any part of any captive animal or wild animal, other than
vermin, which has been kept or preserved by any means, whether artificial or natural, and
includes, rugs, skins, and specimens of such animals mounted in whole or in part through a
process of taxidermy, and antler, horn, rhinoceros horn, feather, nail, tooth, musk, eggs, and
nests. And uncured trophy means the whole or any part of any captive animal, other than vermin,
which has not undergone a process of taxidermy, and includes a [freshly killed wild animal
ambergris, musk and other animal products]

 Wildlife Trafficking Impacts

3
Ivory Traders Manufacturers Association v Union of India AIR 1997 Del. 267
4
Ibid

7
 Massive and irrevocable biodiversity loss: If trends continue, scientists predict 13-42% of
Southeast Asia’s animal and plant species could be wiped out this century. At least half those
losses would represent global extinctions.
 Unravelling of living ecosystems that underpin essential environmental services including fresh
water supply, food production, and climate stability.
 Human health is endangered by unregulated trade in wild animals that can spread and pass on
viruses and diseases. SARS and Avian Influenza, for example, were transferred from wild
animals to human beings.
 Organized Crime is strengthened by profits from illegal wildlife trade. Links are now being
detected between wildlife crime, drug trafficking and human trafficking.

8
 LEGISLATIVE RESPONSE

The Indian Constitution gives ample provisions to protect the wildlife in its territory. Though
there are many implied provisions on wildlife protection in the constitution like Art.21,Union ,
State and Concurrent list, the main Articles which specifically protects the wildlife are Art.48-A
and Art. 51-A(g). Art. 48-A says that the state shall endeavour to protect and improve the
environment and to safeguard the forest and wildlife of the country. Art. 51A (g) imposes
fundamental duty on the every citizen of India to protect and improve the environment and have
compassion for living creatures.

But the most significant legislation on wildlife protection, which is based on an ecosystem
approach and a regulatory regime of command and control is the Wildlife Protection Act 1972.
Prior to this central law there were numerous State Wildlife Acts such as The West Bengal
Wildlife Preservation Act 1959, The Gujarat Wild Animals and Wild Birds Protection Act 1963,
Assam Rhinocerous Act 1963, Punjab Wildlife Preservation Act 1959, Tamil Nadu Wild
Elephant Preservation Act 1873, The Goa Daman and Diu Wild Animals and Wild Birds
Protection Act 1965 and many others. The Act was necessitated as some wild animals & birds
had become already extinct while some others were on the verge of extinction. Further, the then
existing state legislations were felt inadequate in order to protect the wildlife of the country. The
Act provides for the establishment of Wildlife Advisory boards & the appointment of wildlife
wardens & other staff to implement the Act. In several states, the office of the Chief Wild Life
Warden & the Chief Conservator of Forests is united in a single post. The Act prohibits hunting
of animals listed in Schedule I, II, III & IV. Under the Act, the state government may declare any
area of adequate ecological, faunal, floral, natural or zoological importance as a sanctuary or a
national park. In both national parks & sanctuaries, public entry is restricted & the destruction of
any wildlife or habitat is prohibited.

Sec. 2(37) of the Wildlife Protection Act 1972 defines ‘Wildlife’ to include ‘any animal, bees,
butterflies, crustacean, fish and moths; aquatic or land vegetation which forms part of any
habitat’. Thus the WLPA includes within the definition both aquatic and land vegetation which
forms part of any habitat. The import of such a definition is significant as destruction of a habitat

9
would amount to destruction of wildlife itself. The definition is expanded, when wildlife would
mean any animal found wild in nature.

Hunting under the Act would mean every attempt of capturing, killing, poisoning, snaring and
trapping of wild animals. Sec. 2(16) further states that driving, injuring or destroying or taking
any part of the body of any such wild animals or in the case of a wild bird or reptile, damaging
the egg of such birds or reptiles or even disturbing the eggs or nests of such birds or reptiles
would amount to hunting.

Killing of a wild animal is permitted, in case the wounding is resulted in good faith and self
defence. However this exception would not include any defence in contravention of the provision
of the Act.

However, the working of 1972 Act was not satisfactory & hence, in 1986 the Act was suitably
amended. Under the 1972 Act, trade & commerce in wild animals, animal articles & trophies
was permissible within the country. But many traders smuggled the animal skins, animal articles
& trophies to foreign countries for getting huge profit. Hence, it became necessary to prohibit
trade in certain specified wild animals. Accordingly, by 1986 Amendment Act it was provided
that no one will be allowed to carry on trade in wild animals specified in Schedules I & II of the
Act. Further the then existing licenses for internal trade of animals & animal articles were
revoked. Further total ban was imposed on trade in Indian ivory.

In 1991 the Wild Life Act was further amended. This amendment was made on the basis of
recommendations of Indian Wildlife Board & Ministry of Environment & Forest. It was felt that
due to continuous poaching & illegal trade in animal articles, the wildlife population in India has
rapidly declined. Hence, in 1991 Amendment Act, hunting of all wild animals except vermin was
prohibited. But in certain exceptional circumstances such as for protection of life & property,
education, research, scientific management & captive breeding, hunting of wild animals was
permitted. Further to control the death rate of animals on account of communicable diseases,
compulsory immunization was provided for in national parks & sanctuaries. The provisions of
national park & sanctuary were extended to territorial waters without seriously affecting the
interests of local fishermen. Further, it was provided that without settling the rights of tribal
people, no area can be declared as a national park or a sanctuary.

10
 1991 Amendment Act recognized the importance of zoos in protection of wild animals in the
country & hence it was provided that the management of zoos will be monitored by the Central
Zoo Authority established under the Amendment Act. Further on the basis of Convention on
International Trade in Endangered Species of Wild Fauna & Flora (CITES), collection of
endangered species of animals & plants has been prohibited. But it will not affect the collection
of traditionally used plants for bona fide personal use of tribals.

The parties to CITES were worried about the declining population of African elephants & hence,
the import & export of African ivory for commercial purposes was prohibited. On the same lines,
the 1991 Amendment Act prohibits ivory trade for protecting Indian elephants. Further, the Act
prohibits the collection of snake venom for producing life saving drugs from snakes like Cobra
& Russel's Viper.

In 1973, a centrally sponsored scheme Project Tiger was also launched to ensure the
maintenance of the population of tigers in India. In 1991-92, The Project Elephant was launched
aiming at ensuring long term survival of identified viable population of Elephants and tackling
the problematic decrease of the elephant population. This is the comprehensive description on
the evolution and development of wildlife protection in India.

 Features of Wildlife Protection Act, 1972

 Sec. 2(16(a) (b) (c)) defines the word hunting as follows Hunting, with its grammatical
variations and cognate expressions, includes; capturing, killing, poisoning, snaring, and trapping
or any wild animal and every attempt to do so; driving any wild animal for any of purposes
specified in sub clause; injuring or destroying or taking any part of the body of any such animal,
or in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing
the eggs or nests of such birds or reptiles;
 Sec. 9 of the Act prohibits hunting of any wild animal specified in Schedules 1, 2, 3, and 4. Any
person who hunts any wild animal shall be punishable with imprisonment for a term which may
extend to 3 years or with fine which may extend to Rs. 25000/- or with both. However if any
person commits the offence in the sanctuary or national park, with respect any animal specified

11
 in Schedule 1, he shall be punishable with imprisonment which shall not be less than 1 year but
may extend to 6 years and also with fine which shall not be less than 5000/-.
 The Chief Wildlife Warden may permit hunting of wild animals in certain situations:
a) The Chief Wildlife Warden may, if he is satisfied that any wild animal specified in Schedule
1 has become dangerous to human life or is so disabled or diseased as to be beyond recovery,
by order in writing and stating the reasons therefore, permit any person to hunt such animal
or cause animal to be hunted;
b) The Chief Wildlife Warden or the authorized officer may, if he is satisfied that any wild
animal specified in Schedule. II or III or IV has become dangerous to human life or to
property (including standing crops on any land) or is so disabled or diseased as to be beyond
recovery, by order in writing and stating the reasons therefore, permit any person to hunt
such animal or cause such animal to be hunted.
c) The killing or wounding in good faith of any wild animal in defense of oneself or of any
other person shall not be an offence; Provided that nothing in this sub-section shall exonerate
any person who, when such defense becomes necessary, was committing any act in
contravention of any provision of this Act or any rule or order made there under.
d) Any wild animal killed or wounded in defense of any person shall be Government property.

 Grant of permission for hunting for special purposes- The Chief Wildlife Warden may permit,
by an order in writing stating the reasons therefore, to any person, on payment of such fee as
may be prescribed, which shall entitle the holder of such permit to hunt, subject to such
conditions as may be specified therein, any wild animal specified in such permit, for the
purpose of:
a) Education
b) Scientific research;
c) Scientific management; means and includes
d) translocation of any wild animal to an alternative suitable habitat; or
e) population management of wildlife, without killing or poisoning or destroying any wild
animals.
f) Collection of specimens
i. for recognised zoos subject to the permission under section 38-1 or

12
 ii. for museums and similar institutions;
g) derivation, collection or preparation of snake-venom for the manufacture of life saving
drugs.
 Sec. 39 of the Act declares that every wild animal other than vermin, which is hunted or kept or
bred in captivity or found dead or killed by mistake, shall be the property of the State
Government. Likewise, animal articles, trophy or uncured trophy, meat derived from any wild
animal, ivory imported to India, article made from such ivory, vehicle vessel weapon, trap or
tool that has used for committing an offence and has been seized shall be the property of the
state government. If any of the above is found in the sanctuary or a National Park declared by
the Central Government then it shall be property of the Central Government.

 Prevention and Detection of Offences- Sec. 50 of this Act confers power of entry, search, arrest
and detention on the Director or any other officer authorized by him or the chief wildlife warden
or Officer authorized by him or any Police Officer not below the rank of Sub-inspector. Officer
not below the rank of Assistant Director of Wildlife Preservation or Wildlife Warden shall have
the powers to issue a search warren, to enforce the attendance of witnesses, to compel the
discovery and production of documents and material objects and to receive and record evidence.

 Cognizance of Offence- Under Sec. 55 of the Act, no court shall take cognizance of any offence
against the Wildlife Protection Act except on a complaint by: The Director of wildlife
preservation or any other officer authorized in this behalf by the Central Government or; The
Chief Wildlife Warden or any other officer authorized by the State Government; or, any person
who has given notice of not less than 60 days, in the manner prescribed, of the alleged offence
and of his intention to make a complaint to the Central Government or the State Government or
the officer authorized as aforesaid.

 Punishments- Section 51 talks about the penalties that would be conferred on the violators. In
situations where the offence committed is in relation to any animal specified in Schedule I or
Part II of Schedule II, or meat of any such animal, animal article, trophy, or uncurled trophy
derived from such animal or where offence [relates to hunting in, or, altering the boundaries] of
a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term

13
which shall not be less than [one year] but may extend to six years and also with fine which
shall not be less than five thousand rupees. In case of a second or subsequent offence of the
nature mentioned in this sub-section, the term or imprisonment may extend to six years and
shall not be less than two years and the amount of fine shall not be less than ten thousand
rupees. Any person who contravenes any provisions of Chapter VA, [Prohibition of Trade or
Commerce in Trophies, Animal Articles, etc. derived from Certain Animals.] shall be
punishable with imprisonment for a7 term which shall not be less than one year but which may
extend to seven years and also with fine which shall not be less than five thousand rupees.

14
 JUDICIAL RESPONSE

The judiciary was called upon to decide important issues pertaining to protection of wild life.
Let us analyze the judicial response from the following cases:

 G.R. Simon vs. Union of India5

Facts: The petitioner who was the manufacturer of coats, caps, gloves blankets & snake skin
items like bags, shoes & brief cases challenged 1991 Amendment which prohibited trade in
animal articles. It was contended that the said Act is colourable legislation as it indirectly takes
away fundamental right to carry on any trade or business under Art. 19(1)(g), which cannot be
done directly. Further certain wild animals are harmful & serve no useful purpose. While
rejecting the contentions the Delhi High Court held that every animal is important in maintaining
ecological balance & it is the duty of every Indian citizen to protect & improve the wildlife in the
country. Further, no fundamental right is absolute & the same can be restricted in public interest.
Wildlife protection is very much in public interest. Hence the 1991 Amendment is constitutional.
Similar decision has been given in Ivory Traders & Manufacturers Association v. Union of
India.6

 Indian Handicrafts Emporium vs. Union of India7

Facts: In this case the petitioner had challenged the constitutional validity of 1991 Amendment,
which prohibited trade in imported ivory. The Supreme Court upheld the constitutional validity
of this amendment under Art.19 (6). The Court observed that a trade, which is dangerous to
ecology, may be regulated or totally prohibited. Balancing the social interest & the fundamental
rights, a total prohibition is reasonable.

5
AIR 1997 Del.301
6
AIR 1997 Delhi 267 b
7
AIR 2003 SC 3240

15
  Babran Kumawat vs. Union of India8

Facts: The petitioner was the manufacturer of Mammoth ivory. Mammoth animal had already
disappeared in Alaska & Siberia due to climatic conditions. The question was can it be
considered as an imported ivory under the 1991 Amendment Act. The Supreme Court held that
1991 Amendment prohibits trade of ivory of every description. It may be an elephant ivory or
mammoth ivory. Hence, the petitioner cannot carry on the trade in mammoth ivory.

 Pradeep Krishen vs. Union of India9

Facts: The petitioner challenged the order of M.P. government by which permission was given to
the villagers living near the sanctuaries & national parks to collect tendu leaves through
contractors. In state of M.P. 11 areas have been declared as sanctuaries & national parks
covering around 12.4% of total forest cover in M.P. The petitioner contended that a number of
trees in these areas have been destroyed due to the entry of villagers. The Supreme Court
directed the Madhya Pradesh government to take urgent steps to prohibit entry of villager &
tribals in national parks & sanctuaries.

 Tarun Bharat Sangh, Alwar vs. Union of India10

Facts: The petitioner Organization challenged the grant of 215 mining licenses in the area
declared as Tiger Reserve in Alwar district of Rajasthan. The Supreme Court cancelled all the
licenses as they were given in the tiger reserve area.

Conclusion: The legislature & judiciary in our country are both aware of significance of wild
life. With constantly shrinking forest cover, the survival of wild life has been jeopardized. Still
we have to do our best to protect the wild life. The recent conviction of Salman Khan by a
Jodhpur Court for killing a black bug has send a clear signal about the commitment of lower

8
. AIR 2003 SC 3268
9
AIR 1996 SC 2040
10
1993 SCR (3) 21

16
judiciary also for protection of wild life in our country & it has also proved that in our country
nobody is above the law

 Animal and Environment Legal Defense Fund v. Union of India11

Facts: In this writ petition to the Supreme Court, the petitioners filed the petition challenging the
validity of granting permits for fishing to 305 tribal families in reservoirs within the Pench
National Park (Madya Pradesh). But the Supreme Court adopted humanitarian approach keeping
in mind the economic sustainability and environment protection. The Supreme Court directed the
forest authorities and wildlife authorities to take adequate measures to protect the environment
and at the same time keep watch on the villagers. The villagers were also directed not to enter
other areas other than the reservoir.

11
AIR 1997 SC 1071

17
 CONCLUSION

The key environmental challenges that the country faces relate to the nexus of environmental
degradation with poverty in its many dimensions, and economic growth. These challenges are
intrinsically connected with the state of environmental resources, such as land, water, air, and
their flora and fauna. The proximate drivers of environmental degradation are population growth,
inappropriate technology and consumption choices, and poverty, leading to changes in relations
between people and ecosystems, and development activities such as intensive agriculture,
polluting industry, and unplanned urbanisation. The status of wildlife in a region is an accurate
index of the state of ecological resources, and thus of the natural resource base of human well-
being. This is because of the interdependent nature of ecological entities in which wildlife is a
vital link.

Moreover, several charismatic species of wildlife embody Incomparable Values, and at the same
time, comprise a major resource base for sustainable development. Conservation of wildlife,
accordingly, involves the protection of entire ecosystems.

We have to keep these perspectives in mind while going through the Wildlife (Protection) Act
1972. Since the wildlife is a vital link in the web of lives, it is our utmost duty to preserve and
protect the richness of wildlife as it can be made available to generations. So the endangered
species of flora and fauna should be protected. The Wildlife (protection) Act, with timely
amendments, facilitates the protection of wild life in India.

18