The infamous blackbuck poaching controversy associated with Bollywood super celebrity Salman Khan is still in minds of people of India.[2] Time has not passed much since the ‘Hum Saath Saath Hai’ star, along with his co-actors has faced the proceedings in front of a lower court in Jodhpur, Rajasthan. This particular controversy caught the attention of the nation on the law under which the matter was considered, i.e., The WildLife (Protection) Act, 1972.[3] Hence, an attempt is made here to provide a holistic overview of The Wild Life (Protection) Act 1972, along with certain important case laws.
Attempt to Protect India’s Wild life
The sustainable development that everyone is dreaming of cannot be obtained merely by guidance and restrictions provided to human actions. It needs active steps to be taken for the existence and development of each species on earth. An earlier consideration of this in the legal sense from Indian jurisdiction can be traced from the Madras Wild Elephants Preservation Act 1873.[4] Along with that there were certain other regulations that protected specific animals and marine life in selected territories.[5] As a major step, covering most of the territory of erstwhile British India, the Wild Birds and Animals (Protection) Act[6] was enacted 1912, from which the current Wildlife (Protection) Act, 1972 has taken the shape.
The new law was necessary, as there was a need for better protection of wildlife species and prevention of depletion of them through exploitation by vested interests. Wild life was considered to be an integral part of the cultural inheritance of India.[7] Hence, if we go through the above-mentioned laws, an attempt can be seen to be taken to protect and promote the wildlife population, as they are crucial for the ecological balance of the country.
Why Such Laws And Liabilities
India being a diverse geography, home to 7 to 8 percent of all recorded species[8] on earth, is a major concern in the eyes of world, when it comes to the matter of wildlife. Any change in the wildlife population can have an adverse impact on the ecology of the country as well as the globe. There is necessity of strict laws that not only preserves the habitat of such species but also provides an optimum situation for people who live near to the ecosystem of such species and is dependent on the same for livelihood.[9] At the same time decline of species will seriously affect the ecosystem of all living creatures, including humans. Recent reports point to the fact that decline in species population is contributing to increase vulnerability to environmental issues and even the spread of pandemics such as COVID-19.[10]
The global demand for certain species due to their nature and properties has led to increase in illegal trade of them.[11] Hence, strict statutory measures are necessary to control such acts of anti-social elements. However, certain trade and transportation of species is between countries for the academic developments as well as to find the best mode of preservation. The law tries to bring a balance in such situations.
Along with the statutory measures, the Constitution of India imposes a fundamental duty on citizens to protect wildlife and be compassionate to living creatures.[12] The State also has the duty to protect environment and wild life.[13]
The Supreme Court of India has accepted the existence of certain fundamental rights for animals too, including right to life.[14] Various High Courts has also admitted the same and provided certain guidance on such duties.[15] Hence, there is absolute necessity of law like The Wildlife (Protection) Act, 1972, in order to bring a condition, that will help us to obtain progress without exploiting the wildlife and creates a healthy balance in out ecosystem.
The Wildlife (Protection) Act, 1972
The Wildlife (Protection) Act, 1972 is the prime law in India, that provides protection to the wildlife species. The act was passed by the parliament on 21st August 1972 and enacted on 9th September 1972. Along with the rules,[16] it provides for the major steps to maintain the ‘environmental and ecological security of the country’. The Act is divided into VII Chapters with 66 sections. A brief look into the chapters in the Act reveals that the main objectives of the Act are prevention of hunting of wildlife, protect certain plants, establishment of zoos and protected area, restriction on the trade of wildlife, punishments for acts against wildlife and appointment of authorities for the execution of the provisions of Wildlife (Protection) Act 1972.
The Act also contains VI Schedules that categorises wildlife to determine the kind of protection needed to be provided. The Act was amended several times and the Central Government is planning to bring one more in the near future.[17]
Important definitions
Section 2 of the Wildlife (Protection) Act, 1972 provides with important definitions under which the provisions of the Act have to be considered. Here, ‘wild animal’ and ‘wild life’ is considered as different as former refers to specified animals in Schedule I to IV[18] and later refers to any animal that form part of any habitat.[19] The law has made a clear separation between wildlife and animals that can be domesticated.[20] The courts have tried to construct the true meaning of these clauses, in order to prevent the misuse by mere change in names of products from wild animals.[21]
Authorities
Chapter II (Section 3 to 8) of the Wildlife (Protection) Act, 1972 provides for appointment of various authorities in national and state level for conservation and protection of wildlife. Apart from such officers, it also provides for National and State Boards for effective execution of provisions of the act. They also determine the areas in which protection has to be provided as well as the level of it.
Prohibitions
Chapter III and IIIA (Sections 9 to 17H) can be considered as the heart of the Wildlife (Protection) Act 1972. Section 9 prohibits the hunting of any wild animal belonging to Schedule I to IV except in certain circumstance which necessitates it.[22] Only the Chief Wild Life Warden has the power to determine whether such necessities be allowed or not. Except in circumstances that are dangerous for humans[23] or for scientific study and preservation[24], no animal in wildlife can be hunted down. Even though the intention of the Act was to provide protection to fauna mainly, necessity of protection of certain flora was also equally considered. Hence, picking and destroying certain plants are also prohibited in the Act, with certain exception to scheduled tribes for personal use.[25] The plants specified are considered as government property.[26] No one without proper license can even cultivate these plants.[27] Exceptions are also provided for scientific study and preservation.[28]
Special Areas for Protection
The Wildlife (Protection) Act, 1972 also provides for creation and maintenance of specific areas for the protection and propagation wildlife and environment.[29] There is prohibition to cause fire,[30] enter with weapons[31]or injurious substances[32] to these areas. Restrictions on entry to such specific areas are given in the Act.[33] Special permission should be taken from Chief Wildlife Warden to enter such areas for photography, education, tourism etc.[34]
Section 18 to 34 deals with the creation and maintenance of sanctuaries. Section 35 to 38 talks about National Parks. Chapter IVA (Sections 38A to 38J) provides for the establishment and maintenance zoos. It has to be noted that teasing or disturbing animals in zoos is prohibited under that Act.[35] Due to special nature and importance of tigers to India, the law has special provisions for protection of tigers.[36] The law also set up a Wildlife Crime Control Bureau for collecting details and investigating the offences against wildlife.[37]
Trade
One of the major objectives of the Wildlife (Protection) Act, 1972 is to regulate the illegal trade and associated activates on wild animals. Chapter V and V A (Sections 39 to 49C) prohibits the trade on wild animals and trophies.[38] All such animals and parts of them are government property.[39] However, the Chief Wildlife Warden can issue certificates in specific cases for the possession of them.[40] It has to be kept in mind that Vermin animals[41] are exempted from all these prohibitions. Articles made of Peacock feather are also exempted specifically.[42]
Offences
For the prevention of offences, Chief Wildlife Warden, authorised officer, any forest officer and police officer is given power to enter, search, arrest or detain any person who has committed or likely to commit it.[43] Violation of provisions of this act will attract a punishment up to seven years imprisonment and rupees twenty five thousand fine.[44] Cancellation of licences or permits issued can also take place under certain cases. Cognizance can be taken [45]and bail will be allowed only after fulfilment of certain conditions.[46] Special provisions are made to consider matters related to the properties obtained as a result of illegal hunting or trade.[47]
Schedules
Another important part of the Wildlife (Protection) Act,1972 is the Schedules. There are six schedules in the Act, providing different degree of protection and determines gravity of offences associated with species listed in that. Schedule I animals are those that can be hunted down only in case of threat to human life or disabled or diseased and their trade is prohibited. Schedule II animals are only permitted to hunted down if they become threat to humans and trade on part II animals of it is prohibited. Schedule III and IV include animals, not in danger of becoming extinct but hunting them invokes penalties. Schedule V deals with Vermin animals and Schedule VI with plants, on which trade and possession are restricted.
Notable Cases On Wildlife Protection
In matter of Baburao vs. State of Maharashtra and Others[48] the Bombay High Court has observed that, the wild animals are the property of the government and hence, government has to provide compensation for the destruction caused by them to agricultural crops. In State of Rajasthan vs. Salman Khan and Others[49] Court observed that even a specific damage done to wildlife will qualify as loss to ecology. The term ‘other offence’ in Section 141 of CrPC will include offences committed under Wildlife (Protection) Act, 1972. In Indian Handicrafts Emporium & Ors vs Union Of India & Ors[50] the Court has closed the loopholes in the Act on trade on the imported parts of animals with the observation that the restrictions apply to that also. If the trade in imported parts is allowed, it may endanger Indian wildlife. In same manner, trade in remains of extinct species was banned by court in the matter of Balram Kumawat vs Union Of India & Ors.[51] In the matter between Moti Lal vs Central Bureau Of Investigation[52] court has provided for use of CrPC in investigation of wild life offences unless specifically contradicted.
International Wildlife Laws
It is equally beneficial to look into certain international laws, to have understanding about certain multi territorial obligations for protection of wildlife. The Convention on International Trade in Endangered Species[53] is one of the major laws, that attempts to provide protection of species from illegal trade. The Convention on Migratory Species[54] provides for conservation and sustainable use of migratory animals and their habitat. Convention on Biological Diversity[55] provides for sustainable use of earth’s resources and protection of species. The Convention on Wetlands of International Importance[56] focuses on conservation and sustainable use of wetlands and its resources. Even though there exist many other treaties, the above mentioned are considered one’s that plays the crucial role in protection and conservation of wild life.
Conclusion
There exists a fundamental duty on every citizen to be compassionate to all species that exists on earth. Even courts have recognized this with utmost importance.[57] As we go through the provisions of the Wildlife (Protection) Act 1972, it is clear to us that it provides proper guidance for the fulfilment of this fundamental and puts maximum effort to create an ecological balance in which humans and other species can live in tranquillity. Hence, the Wildlife (Protection) Act, 1972 is a major step that promotes sustainable development in its best form.
[1] Advocate, High Court of Kerala.
[2] The Economic Times. 2018. Blackbuck Poaching Case | 1998-2018: A Timeline Of The Blackbuck Poaching Case. [online] Available at: https://economictimes.indiatimes.com/magazines/panache/1998-2016-a-timeline-of-the-blackbuck-killing-case/articleshow/53377957.cms?from=mdr [Accessed 9 January 2021]
[3] See http://legislative.gov.in/sites/default/files/A1972-53_0.pdf
[4]https://mitocw.ups.edu.ec/courses/history/21h-380j-people-and-other-animals-fall-2013/readings/MIT21H_380F13_laws.pdf
[5] For example, The Nilgiris Game and Fish Preservation Act, 1879
[6] https://indiankanoon.org/doc/1702370/
[7] See World Wild Fund For Nature India vs Union Of India And Ors. 54 (1994) DLT 286 Available at : https://indiankanoon.org/doc/673546/. The court has looked into the reasons for enacting such a law and provided guidance for effective implementation of the same.
[8] IUCN. n.d. India. [online] Available at: https://www.iucn.org/asia/countries/india [Accessed 9 January 2021].
[9] See The Minster of State in the Ministry of Agriculture, Motion to Introduce Wildlife Protection Bill, 21 August 1972, Lok Sabha Debates. Available at: https://eparlib.nic.in/bitstream/123456789/1122/1/lsd_05_05_21-08-1972.pdf
[10] National Herald. 2020. Wildlife Population Declined By 68% Since 1970: WWF. [online] Available at: https://www.nationalheraldindia.com/environment/wildlife-population-declined-by-68-since-1970-wwf [Accessed 9 January 2021].
[11] Sinha, S., 2010. Handbook On Wildlife Law Enforcement In India. New Delhi: Nataraj Publishers. Available at: https://www.traffic.org/site/assets/files/6284/handbook-wildlife-law-enforcement-india.pdf
[12] Article 51A(g), The Constitution of India
[13] Article 48A, The Constitution of India
[14] Animal Welfare Board Of India vs A. Nagaraja & Ors (2014) 7 SCC 547 Available at: https://indiankanoon.org/doc/39696860/
[15]See Abdulkadar Mohamad Azam Sheikh V State of Gujarat Available at: http://awbi.in/awbi-pdf/caged_birds_order_gj_hc.pdf and People for Animals v MD Mohazzim and Anr CRL. M.C. NO.2051/2015 Available at: http://awbi.in/awbi-pdf/caged_birds_order_delhi_hc_15052015.pdf
[16] Major rules under the Wildlife (Protection) Act, 1972 are: The Wildlife (Stock Declaration) Central Rules, 1973, Wildlife (Transactions and Taxidermy) Rules, 1973, Wildlife (Protection) Licensing (Additional Matters for Consideration) Rules, 1983, The Wildlife (Protection) Rules, 1995, Wildlife (Specified Plants – Conditions for Possession by Licensee) Rules, 1995, The Recognition of Zoo Rules, 2009 and Guidelines for Appointment of HWLWs
[17] Nandi, J., 2020. In process of amending wildlife act: Centre. Hindustan Times, [online] Available at: https://www.hindustantimes.com/india-news/in-process-of-amending-wildlife-act-centre/story-mnFQlGvSh8dZnl8B70Vh6L.html [Accessed 10 January 2021].
[18] Section 2(36), The Wildlife (Protection) Act, 1972
[19] Section 2(37), The Wildlife (Protection) Act, 1972
[20] Section 2(18A), The Wildlife (Protection Act, 1972
[21] See Cottage Industries Exposition Limited and Another v. Union of India and Others 2007 (148) ECR 7 Delhi Available at: https://indiankanoon.org/doc/1484203/, where court has constructed meaning of ‘animal article’ in Section 2(2), The Wildlife (Protection) Act, 1972 to include ‘uncured trophy’, ‘trophy’ and ‘scheduled animal article’, which only will provide true meaning to the intentions of the law. See also C. Rathinavel vs The State Of Tamil Nadu W.P.(MD)No.3631 of 2005 Available at: https://indiankanoon.org/doc/136108/?type=print
[22] The charging provision under the Wildlife (Protection) Act, 1972 in the “blackbuck” was this. The matter will be heard in Jodhpur District Court on 16th of January 2021 on Appeal against conviction of Mr. Salman Khan. See Agarwal, N., 2020. Blackbuck poaching case: Salman Khan exempted from court appearance after counsel cites COVID risk. Zee News, [online] Available at: https://zeenews.india.com/india/blackbuck-poaching-case-salman-khan-exempted-from-court-appearance-after-counsel-cites-covid-risk-2328051.html [Accessed 10 January 2021].
[23] Section 11, The Wildlife (Protection) Act, 1972
[24] Section 12, The Wildlife (Protection) Act, 1972
[25] Section 17A, The Wildlife (Protection) Act, 1972
[26] Section 17H, The Wildlife (Protection) Act, 1972
[27] Section 17C, The Wildlife (Protection) Act, 1972
[28] Section 17B, The Wildlife (Protection) Act, 1972
[29] Section 18, The Wildlife (Protection) Act, 1972
[30] Section 30, The Wildlife (Protection) Act, 1972
[31] Section 31, The Wildlife (Protection) Act, 1972
[32] Section 32, The Wildlife (Protection) Act, 1972
[33] Section 27, The Wildlife (Protection) Act, 1972
[34] Section 28, The Wildlife (Protection) Act, 1972
[35] Section 39J, The Wildlife (Protection) Act, 1972
[36] Chapter IV B, The Wildlife (Protection) Act, 1972
[37] Chapter IV C, The Wildlife (Protection) Act, 1972
[38] Preserved parts or whole of animals as per Section 2(31), The Wildlife (Protection) Act, 1972
[39] Section 39, The Wildlife (Protection) Act, 1972
[40] Section 40, The Wildlife (Protection) Act, 1972
[41] Animals in Schedule V is known as Vermin animals. Currently only Common crow, Fruit Bats, Mice and Rats come under this.
[42] Section 43(3)(a), The Wildlife (Protection) Act, 1972
[43] Section 50, The Wildlife (Protection) Act, 1972
[44] Section 51, The Wildlife (Protection) Act, 1972
[45] Section 55, The Wildlife (Protection) Act, 1972
[46] Section 51A, The Wildlife (Protection) Act, 1972
[47] Chapter VI A, The Wildlife (Protection) Act, 1972
[48] WRIT PETITION NO. 5764 OF 2011, Available at: https://indiankanoon.org/doc/82843898/
[49] Criminal Revision Petition Nos.633 of 2006, 905 of 2006, 906 of 2006 & 907 of 2006 Available at: https://www.legitquest.com/case/state-of-rajasthan-v-salman-khan-others/EA534
[50] Appeal (civil) 7533 of 1997 Available at: https://indiankanoon.org/doc/1231613/
[51] Appeal (civil) 7536 of 1997 Available at: https://indiankanoon.org/doc/53127/
[52] Appeal (crl.) 476 of 2002 Available at: https://indiankanoon.org/doc/1765136/
[53] https://www.fws.gov/le/pdf/CITESTreaty.pdf
[54] https://www.cms.int/sites/default/files/instrument/CMS-text.en_.PDF
[55] https://www.cbd.int/doc/legal/cbd-en.pdf
[56] http://portal.unesco.org/en/ev.php-URL_ID=15398&URL_DO=DO_TOPIC&URL_SECTION=201.html
[57] See State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others (2005) 8 SCC 534 Available at: https://indiankanoon.org/doc/101278772/
This article has been written by Alvin Antony, Advocate at High Court of Kerala.
