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Introduction:
The Wildlife
Protection Act, 1972, provides for protection to listed species of
flora and fauna and establishes a network of
ecologically-important protected areas. The Act consists of 60
Sections and VI Schedules- divided into Eight Chapters. The
Wildlife Protection Act, 1972 empowers the central and state
governments to declare any area a wildlife sanctuary, national
park or closed area. There is a blanket ban on carrying out any
industrial activity inside these protected areas. It provides for
authorities to administer and implement the Act; regulate the
hunting of wild animals; protect specified plants, sanctuaries,
national parks and closed areas; restrict trade or commerce in
wild animals or animal articles; and miscellaneous matters. The
Act prohibits hunting of animals except with permission of
authorized officer when an animal has become dangerous to human
life or property or as disabled or diseased as to be beyond
recovery.
The Act
underwent many amendments. An amendment to the Act in 1982,
introduced provisions permitting the capture and transportation of
wild animals for the scientific management of animal population.
An amendment in the year 1991 resulted in the insertion of the
special chapters dealing with the protection of specified plants
and the regulation of zoos. This also recognized the needs of
tribal and forest dwellers and changes were introduced to advance
their welfare. The near-total prohibition on hunting was made more
effective by the Amendment Act of 1991
Widespread
changes have been made by the Wildlife (Protection) Amendment Act,
2002 and a new chapter has been incorporated as Chapter VI-A to
deal with the forfeiture of property derived from illegal hunting
and trade. Further, this amendment Act also introduced the concept
of co-operative management through conservation reserve management
committee and community reserve committees.
With this
introduction now let us discuss the Wildlife (Protection) Act,
1972 in a detailed way.
1. Evolution
and Development of the concept of Wildlife Protection in India
India is endowed with an immense variety of natural resources in
its rich animal and plant heritage. Wildlife is one of our basic
and natural resources that satisfies the needs or wants of
civilization. Therefore, this resource must be conserved,
preserved and protected for the existence of mankind. Now let us
see the chronological development of wildlife protection in India
in different periods.
1.1 Wildlife
Protection in Ancient India
In ancient India the environmental protection was a moral duty
which is imposed on people by religious scriptures, seers, and
other agencies. The scriptures of Hindu religion emphasize the
protection of the environment and the living creatures. Some of
the animals were considered as the vehicles of gods.
Matsya
was considered as the go since it is the first living organism
existed in earth.
Cow
was considered as god. Certain birds and animals were considered
as the vehicle of gods. Certain trees like Banyan, Tulsi etc. were
considered as the dwelling place of the gods. Kautilya, one of the
great political philosophers and the author of The Arthasasthra,
prohibited and prescribed penalties for the killing of animals,
cutting of trees and the excess exploitation of the natural
resources. The great Maurya king Ashoka banned the killing of wild
animals, and later prohibited the killing of certain species of
animals.
In the words
of St. Thukharam, animals and plants are the kin and kith of human
beings. These are some specimens to show the manner in which the
ancient Indians took care for the protection of wildlife. Though
it was a moral duty in the beginning later the kings started to
impose it as a legal duty. In ancient India, as the moral duty,
the destruction of heritage and richness of environment and the
biodiversity was considered as an injury and insult to Gods. And
now the wildlife protection is a legal duty.
1.2 Wildlife
Protection in India during British period
In the pre-constitutional period, there were a few legislations
which are enacted to protect the wildlife from exploitation. The
Cattle Trespass Act, 1871; The Elephants Preservation Act, 1879;
some sections of Indian Penal Code, 1860; wild Birds and Animals
Protection Act, 1912, The Indian Forest Act, 1927 are some
pre-constitutional enactments on wildlife protection.
The Elephants
Preservation Act prohibited killing, injuring or capturing, or any
attempt at the same, unless it is in self-defense, permitted by a
license, or when the elephant is found damaging house or
cultivation, or immediate vicinity of public road, railway or
canal. The Indian Penal Code, 1860, though it has no specific
provision relating to wildlife, but it defines the term
animal
in Section 47 and declares maiming, killing of animals as an
offence and punishable under Sections 428 and 429.
The Indian
Forest Act, 1927 also included certain provisions for restricting
hunting in reserved and protected forests and other authorized
establishments or Sanctuaries. Under this Act, hunting, shooting,
fishing, poisoning water or setting traps, etc. is an offence.
These are the some of the wildlife protection legislations enacted
in the British period.
1.3 Wildlife
Protection in India after Independence
The Post- independence era witnessed a lot of changes in the
policies and attitudes of the Governments with respect to
environmental protection. There were many enactments to protect
the Forest, Environment, Water, Air and Bio-Diversity. All these
Acts are directly or indirectly give provisions to the protection
of the wildlife. But let me specifically emphasis on Wildlife
protection, since my topic is wildlife protection.
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.
The Wildlife
Protection Act, 1972 is the major legislation which specifically
enacted for the protection of the wildlife in India. We will
discuss this Act in detail in the following pages. Besides this,
there are much legislation enacted for the protection and
preservation of the wild life. Let us see them in a glance. They
are The Wildlife Protection Act, 1972; The Wild Life (Transactions
and Taxidermy) Rules, 1973; The Wild Life (Stock Declaration)
Central Rules, 1973; The Wild life (Protection) Licensing
(Additional Matters for Consideration) Rules, 1983; The Wild Life
(Protection) Rules, 1995; The Wild Life (Specified Plants -
Conditions for Possession by Licensee) Rules, 1995; Forest
Conservation Act, 1980; Forest (Conservation) Rules, 1981;
National Forest Policy, 1988; Biological Diversity Act, 2002;
Besides these Acts, there are many legislations on Air, Water,
Environment, Hazardous substance management, Solid waste
management, Noise Pollution prevention, and so on. Such laws also
have the provisions to protect the wildlife.
In 1973, a
centrally sponsored scheme
Project Tiger
was 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. Now let me to explain the Wildlife
(Protection) Act, 1972 in a detailed way. The major provisions of
the Wildlife (Protection) Act, 1972 are as following.
2. Territorial
Jurisdiction of Wildlife (Protection) Act, 1972
Wildlife (Protection) Act, 1972 has been accepted and adopted by
all the states except Jammu and Kashmir. This is the first
comprehensive legislation relating to protection of wild life was
passed by the Parliament and it was assented by the President on
9th September, 1972 and came to be known as The Wild Life
(Protection) Act, 1972 (53 of 1972).
3.
Definition of Wildlife
The Section 2(37) of the Act defines wildlife as
wildlife
includes any animal, bees butterflies, crustacean, fish and moths;
and aquatic or land vegetation which forms part of any habitat. So
the meaning of the
wildlife
in this Act is very wide and inclusive of all kinds of flora and
fauna.
4. Authorities
Constituted Under Wildlife (Protection) Act
As per the Sec. 3 of the Act, the Central Government may appoint a
Director of Wildlife Preservation, Assistant Directors of Wildlife
Preservation and such other officers and employees as may be
necessary. As per the Sec. 4, the State Government may, for the
purpose of this Act, appoint Chief Wildlife Warden, Wildlife
Warden, Honorary Wildlife Wardens and other officers and employees
as may be necessary. As per Sec. 6, the State Governments and the
Administrators in Union Territories shall constitute a Wildlife
Advisory Board.
5. The
Wildlife Advisory Board (Sec. 6)
The Sec. 6 of this Act enforces and enables the state governments
and the administrators of the Union Territories to constitute a
Wildlife Advisory Board in each states and union territories. In
WWF v. Union
of India,
Supreme Court directed the states which didn't�t constitute the
Wildlife Advisory Board, to constitute within 2 months.
5.1 The
members of the Wildlife Advisory Board
It shall consist of the Minister in charge of Forests in the State
or Union territory as the Chairman. If there is no such minister,
then the Chief Secretary will be the Chairman of the Board. The
other members are, two members of the State Legislature or
Legislature of Union Territory; Secretary to the state government
or the government of the union territory, in charge of forests;
the Forest Officer in charge of the State Forest Department; an
officer nominated by the Director of Wildlife Preservation; Chief
wildlife warden; officers of the state government not exceeding 5;
and such other persons, not exceeding 10, who in the opinion of
the state government, are interested in the protection of
wildlife, including the representatives of tribals not exceeding
3.
5.2 Duties
of Wildlife Advisory Board (Sec. 8)
The Wildlife Advisory Board mainly constituted to advise the state
government in the following matters.
a) In the selection of areas to be declared as Sanctuaries,
National Parks and Closed areas and the administration thereof;
b) In formulation of the policy for protection and conservation of
wildlife and specified plants;
c) In any matter relating to the amendment of any schedule;
d) In relation to the measure to be taken for harmonizing the
needs of the tribals and other dwellers of the forests with the
protection and conservation of wildlife;
e) In any other matter connected with the protection of wildlife
which may be referred to it by the state government.
6. Hunting
of Wild Animals (Sec. 9)
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 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/-.
6.1 Hunting
of Wild animals to be permitted in certain cases
The Chief Wildlife Warden may permit hunting of wild animals in
certain situations. They are;
(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.
6.2. Grant
of permission for hunting for special purposes.
The Chief Wildlife Warden, 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
(i) translocation of any wild animal to an alternative suitable
habitat; or
(ii) population management of wildlife, without killing or
poisoning or destroying any wild animals.
(d) Collection of specimens
(i) for recognised zoos subject to the permission under section
38-1 or
(ii) for museums and similar institutions;
(e) derivation, collection or preparation of snake-venom for the
manufacture of life saving drugs .
7.
Protection of Specified plants
Sec. 17A of the Act prohibits picking, uprooting, etc., of
specified plants. �as otherwise provided in this Chapter, no
person shall: (a) willfully pick, uproot, damage destroy, acquire
or collect any specified plant from any forestland and area
specified, by notification, by the Central Government,
(b) possess,
sell, other for sale, or transfer by way of gift or otherwise, or
transport any specified plant, whether alive or dead, or part or
derivative thereof:
Provided that nothing in this section shall prevent a member of a
scheduled tribe, subject to the provisions of Chapter IV, from
picking, collecting or possessing in the district he resides any
specified plant or part or derivative thereof for his bonafide
personal use.
The Chief Wild
Life Warden may with the previous permission of the State
Government, grant to any person a permit to pick, uproot, acquire
or collect from a forest land or the area specified under section
17A or transport, subject to such conditions as may be specified
therein, any specified plant for the purpose of education;
scientific research., collection, preservation and display in a
herbarium of any scientific institutions; or propagation by a
person or an institution approved by the Central Government in
this regard.
8. Sanctuaries
Section 18 provides that the State Government may, by
notification, declare its intention to constitute any area other
than area comprised with any reserve forest or the territorial
waters as a sanctuary if it considers that such area is of
adequate ecological, faunal, floral, geomorphological, natural or
zoological significance, for the purpose of protecting,
propagating or developing wildlife or its environment. For the
purposes of this section, it shall be sufficient to describe the
area by roads, rivers, ridges, or other well-known or readily
intelligible boundaries.
The Chief
Wildlife Warden may, on an application, grant to any person a
permit to enter or reside in a sanctuary for the following
purposes;
a) Investigation or study of wildlife and any purpose ancillary or
incidental thereto;
b) Photography
c) Scientific research
d) Tourism
e) Transaction of lawful business with any person in the sanctuary
Only a public
servant on duty or permit holder or a person having a right over
immovable property within the limits of a sanctuary, person
passing through pathway in the sanctuary and dependants of the
above can also enter or reside in the sanctuary.
In
Gujarat
Navodaya Mandal V. State , the Gujarat High Court
observed that
there is nothing illegal in giving permission to lay down pipeline
in and through the Marine National Park/ Sanctuary, Jamnagar.
Because all the possible measures are taken to protect the ecology
and environment. An more over there were conditions on permission
to proper management as well as for the improvement of wildlife.
9. National
Park
The state government, for the purpose of protecting, propagating
or developing wildlife may by a notification declare that an area,
by reason of its ecological, faunal, floral, geomorphological or
zoological association or importance, needed to be constituted as
a National Park. Once a National Park is declared, no alteration
of the boundaries shall be made except on the resolution passed by
the legislature of the state. In a National Park, the following
activities are strictly prohibited;
a) Destroying, exploring or removing any wildlife,
b) Destroying, damaging the habitat of any wild animal,
c) Deprive any wild animal of its habitat,
d) Grazing of any livestock
In
Animal and
Environment Legal Defence Fund V. Union of India
, which was a writ petition came to 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.
10. Central
Zoo Authority and Recognition of Zoos
The central government shall constitute the Central Zoo Authority,
consisting of a chair person, tem members and a member secretary.
They shall hold office for a period of three years. The Central
Zoo Authority shall perform the following functions
(a) Specify
the minimum standards for housing, unkeep and veterinary
care of the animals kept in a zoo;
(b) Evaluate and assess the functioning of zoos with respect to
the standards or the norms as may be prescribed;
(c) Recognize or derecognize zoos;
(d) Identify endangered species of wild animals for purposes of
captive breeding and assigning responsibility in this regard to a
zoo;
(e) Co-ordinate the acquisition, exchange and loaning of animals
for breeding purposes;
(f) Ensure maintenance of stud-books of endangered species of wild
animals bred in captivity;
(g) Identify priorities and themes with regard to display of
captive animals in a zoo;
(h) Co-ordinate training of zoo personnel in India and outside
India;
(i) Co-ordinate research in captive breeding and educational
programmes for the purposes of zoos;
(j) Provide technical and other assistance to zoos for their
proper management and development on scientific lines;
(k) Perform such other functions as may be necessary to carry out
the purposes of this Act with regard to zoos.
11. 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];
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. In
Rajendra Kumar
V. Union of India
, the petitioner challenged the vis of the above clause which
imposed a complete ban on import of ivory and articles made form
it. It affected his livelihood and freedom of trade and business
provided under Article 19(1). Moreover, he contended that ivory
derived from a mammoth was not ivory derived from a scheduled
animal, therefore, any article made out of such fossil ivory could
not be brought within the purview of the Act. But the Court
observed that, the Chapter V-A of this Act, is incorporated in
accordance with the direction of
Convention on
International Trade in Endangered Species of Wild Fauna and Flora
[CITES]. The
object and reasons of the Amendment Act, 1991 make it amply clear
that trade in African ivory is proposed to be banned after giving
due opportunity to traders to dispose of the existing stocks. So
this Section can not be void.
12. 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.
13.
Cognizance of Offence
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
authorised as aforesaid.
14.
Punishments
Provided that where the offence committed is in relation to any
animal specified inScheduled 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
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. Provided further that in the 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 then one
year but which may extend to seven years and also with fine which
shall not be less than five thousand rupees.
Any person who
contravenes the provisions of Section 38J [tease, molest, injure
or feed any animal or cause disturbance to the animals by noise or
otherwise, or litter the grounds in a zoo] shall be punishable
with imprisonment for a term which may extend to six months or
with fine which may extend to two thousand rupees, or with both.
Provided that in case of second or subsequent offence the term of
imprisonment may extend to one year or the fine may extend to five
thousand rupees As per section 52, whoever attempts to contravene,
or abets the contravention of, any of the provisions of this Act
or of any rule of order made hereunder shall be deemed to have
contravened that provision or rule or order, as the case may be.
If any person,
exercising powers under this Act, vexatiously and unnecessarily
seizes the property of any other person on the pretence of seizing
it for the reasons mentioned in sec. 50, he shall, on conviction,
be punishable with imprisonment for a term which may extend to six
months, or with fine which may extend to five hundred rupees, or
with both.
15.
Forfeiture of Property Derived from Illegal Hunting and Trade
A new chapter, Chapter VI-A, had been incorporated by the
Wildlife (Protection) Amendment Act of 2002 . According to this
new chapter, if any person or associate of persons or trust
acquires property from illegal hunting or trade of wildlife, it
shall be forfeited to the State Government by the competent
authority. Such property can be forfeited after taking all
necessary steps (inquiry, investigation or survey in respect of
any person, place, property, documents institution, etc.) and
after tracing and identifying any such property.
During the
investigation and proceeding of forfeit the property, if the
competent authority finds that only a part of the acquired
property is proved illegal, the authority shall make orders,
giving an opportunity to the person affected, to pay a fine equal
to the market value of such part of property in lieu of
forfeiture.
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, (�the
web of life�) 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. With these observations, I
conclude my topic on Wildlife (Protection) Act, 1972.
***
Chapter
Notes
AIR 1998 Guj 141
AIR 2000 Del 449
Sec. 38C, Wildlife Protection Act, 1972.
Sec.2(31), Wildlife Protection Act, 1972
Sec.2(32), Wildlife Protection Act, 1972
AIR 1998 Raj 165
Act received the assent of the President on 17-01-2003 and
published in Gazette of India on 20-01-2003.
Sec.58-M Wildlife (Protection) Amendment Act of 2002
|
The Wildlife (Protection) Act, 1972: An appraisal
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The
author can be reached at: jofinjohn@legalserviceindia.com /
