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Prof. Vijay Oak  - Lecturer, VP Law College, Baramati

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Introduction:
 Wild life means the plants, animals, and insects etc., which are usually found in forests. In India, a long time back an attempt was made to save wildlife by way of enacting Indian Forest Act, 1927. It provided for hunting restrictions in protected & reserved forests. Before that also in order to protect wild birds, the Britishers had enacted Wild Birds Protection Act, 1887. Art. 51-A (g) of Indian Constitution imposes a fundamental duty on every Indian citizen to protect & improve wildlife in the country.

India is rich in it's wild life. According to Valmik Thapar, in 1997, there were 13,000 species of flowering plants & 65,000 species of fauna including fish, birds & mammals in India.

Legislative Response: In recent times, the wildlife in India is in danger due to poaching & trade in animal articles. To protect the
wildlife of the country the parliament of India passed Wild Life (Protection) Act, 1972 on the request made by eleven states. 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.

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.

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

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 India
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 vs. Union of India .

Indian Handicrafts Emporium vs. Union of India 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.

Babran Kumawat vs. Union of India
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 India
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 India
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 judiciary also for protection of wild life in our country & it has also proved that in our country nobody is above the law
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End Notes:
1. Cited in Divan, Rosencranz, ?Environmental Law & policy In India?, Oxford University press, 2nd edn. pp. 328-329
2. Art.252
3. AIR 1997 Del.301
4. AIR 1997 Del. 267
5. AIR 2003 SC 3240
6. AIR 2003 SC 3268
7. AIR 1996 SC 2040
8. 1993 supp. (3) SCC 115

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The  author can be reached at :
vijayoak@legalserviceindia.com

 

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