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Trade or Commerce in Wildlife Animals, Animal Articles, and Trophies; It’s Prohibition under Wildlife Life (Protection) Act, 1972.

This article is written by Shrasti Singh, a student of Shri Ramswaroop Memorial University, Lucknow

Introduction

 India is rich in its wild life. Wildlife means all animals living and plants growing in a natural environment or animals that means flora and fauna.  Wildlife is one the most basic of natural resources which plays major role in maintaining our ecosystem balanced and helps in fulfilling the needs of human being. Thus, it is our prime duty to protect and conserve this resources. Today, man, in the process of progress and development and to meets their selfish end is causing much damage to the forest and wildlife.

History related to Development of Wildlife Protection

From the ancient times, India play a very important role in the environmental protection and in conservation of wildlife. Hindu religion have linked some animals with specific god and Goddess as the best way of conservation of wildlife like snake with God Shiva, Lion with Goddess Durga etc. rendering the animals pious and protected. Many kings and rulers took measures to protect the wildlife. Indian mythology and books like Panchtrana and Ramayana is full of references and instances of our regard and love for wild animals. In ancient period, Wildlife was protected by using religious ideals and sentiments.

 In the third century, king Ashoka was the first who made a codified law in the matter of preservation of wildlife and environment, where he prohibited killing of certain species of animals such as parrots, ruddy geese, rhinoceros etc.

During Mughal period, we witnessed a steady decline in wildlife population due to lack of legal control on hunting. In this period, hunting was considered as a royal game. Elephants and horses were used in battles and killed in large numbers.

During 18th and 19th Centuries, the British rulers and some Indian rulers have caused ruthless destruction of Indian wildlife for food, recreation, hide, horn, musk, etc. and also the deforestation for the constructions of highways, railways, dams, human dwellings and many other similar purposes.  The British raj had heralded the death toll of India’s wildlife. High demands for goods made from tusks, skin and horns of animals including development of taxidermy contributed to faster pace of destruction of wildlife. There are some species which came to extinction for which new strategies were evolved for the protection. 

 After independence also, the destruction of wildlife everywhere and by everyone was continued. Extensive hunting by the British and Indian Rajas, large scale clearing of forests for agriculture, availability of guns, poaching, strong pesticides and the increasing population have had disastrous effects on India’s environment. For the urgent need to protect the wildlife, Parliament had passed the wildlife protection Act, 1972 with object to protect of the country’s wild animals, birds, and plant species, in order to ensure environmental and ecological security. It also deal with the trade or commerce in wild animals, animals’ articles and trophies. Government also has established over 103 national parks, 566 Wildlife Sanctuaries and 18 Biosphere Reserve to conserve and protect the scheduled wild animal.

Constitutional provision related to wildlife protection

• In the 42nd Amendment Act, 1976, the subject entry of Forests and Protection of Wild Animals and Birds was transferred from State to Concurrent List.
• It shall be the fundamental duty of every citizen to protect and improve the natural environment including forests and Wildlife.
•  The Directive Principles of State policy also mandates that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country under Article 48 A.

Chapter V OF WILDLIFE (PROTECTION) ACT, 1972 (SECTION 39-49) PROVIDE FOR THE TRADE OR COMMERCE IN WILD ANIMALS, ANIMAL ARTICLES AND TROPHIES. 

Before starting with the main point we should know the meaning of ‘ANIMALS’, ‘ANIMALS ARTICLE’ AND ‘TROPHIES’ given under this act-

SECTION 2 (1) defines “Animal” includes amphibians, birds, mammals and reptiles and their young, and also includes, in the cases of birds and reptiles, their eggs

SECTION 2(2) defines “animal article”. It means an article made from any captive animal or wild animal, also includes an article or object in which the whole or any part of such animal has been used, and ivory imported into India and an article made therefrom.

Section 2 (36) defines “wild animal” means any animal specified in Schedules I to IV and found wild in nature.

SECTION 2(31) defines “trophy” as means the whole or any part of any captive animal or wild animal, which has been kept or preserved by any means, whether artificial or natural. It also includes – rugs, skins and specimens of such animal mounted through a process of taxidermy, and antler, bone, carapace, shell, horn, rhinoceros horn, hair, feather, nail, tooth, tusk, musk, eggs, nests and honeycomb.

SECTION 2(32) “uncured trophy” means the whole or any part of any captive animal or wild animal, which has not undergone a process of taxidermy, and includes a freshly killed wild animal, musk and other animal products.

In the case of State of Tamil Nadu and Another v. M/s. Kaypee Industrial Chemicals Private Limited (2005) the collection of coral for commercial use in lime manufacture was allowed or not was questioned. The madras court held that Dead pieces or the outer skeleton of a protected marine living organism would not fall within the definition of animal article or wild animal and that therefore its collection was not banned. But this judgment was contrary to the Delhi High Court’s view in Cottage Industries Exposition Limited since as per that view, the dead coral would fall within the definitions of trophy or uncured trophy and would therefore be protected.  This judgment was appealed by the State to the Supreme Court where a stay was granted on such collection. Owing to the stay, the Madras High Court declined to allow collection of coral in the case of the C.Rathinavel v. State of Tamil Nadu & Ors. (2008).

In the case of Cottage Industries Exposition Limited and Another v. Union of India and Others (2007),  The Delhi high court held that the definitions of ‘uncured trophy’, ‘trophy’ and ‘Scheduled animal article’ are not separate or distinct compartments but are complementary to one another. 

Section 39. Wild animals to be government property.

The following shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat shall be the property of the Central Government. They are;

1. wild animal, except vermin, which is hunted under section 11 or kept or bred in captivity or hunted in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed or by mistake; and

2) Animal article, trophy or uncured trophy or meat derived from any wild animal:

3) Ivory imported into India and an article made from such ivory;

4) Vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized.

If any person who obtained the possession of Government property, should make a report as to the obtaining of such possession to the, nearest police station or the authorised officer within forty-eight hours and also hand over such property to the officer-in-charge of such police station or  authorised officer.

 No person shall be allowed to acquire or keep in his possession, custody or control, or to transfer to any person, whether by way of gift, sale or otherwise, or to destroy or damage, such Government property except with the previous written permission of the Chief Wild Life Warden or the authorised officer.

Section 40 – Declaration

Every person in possession or custody of any captive wildlife animal should compulsory make declaration to the Chief Wildlife Warden about the number and description of the animal, or article under his control, custody or possession within thirty day from the commencement of the Act.  Such person is exempted if he obtained the written permission from the Chief Wild Life Warden or the authorised officer. No person except one with a certificate of ownership can keep, acquire, and keep in control etc. any captive animal except by inheritance. Declaration of such inheritance should be made in ninety days to the Chief Wild Life Warden or the authorised officer.

Section 41- Inquiry and preparation of records.

The Chief Wild Life Warden or the authorised officer after receiving a receipt of declaration under section 40, have the power to enter upon the premises of a person, or may make inquiries and prepare records of animal articles, trophies, uncured trophies, salted and dried skins and captive animals listed in Schedule I and Part II of Schedule II and also tag an identification mark upon the animals, animal articles, trophies or uncured trophies.

 Section 42-Certificate of ownership.

The Chief Wild Life Warden issued a certificate of ownership to a person, who is in lawful possession and after guaranteeing that the applicant has adequate facilities for housing, maintenance and upkeep of the animal ownership.

Section 43- Regulation of transfer of animal, etc.

No person who has with him a captive animal with a certificate of ownership shall transfer by way of sale or offer for sale or any other commercial consideration. In case of such transfer, to or from another state, he has to report the same within 30 days to the Chief Wild Life Warden or the authorized officer within whose jurisdiction the matter falls except to tail feather of peacock and to transfer of captive animals between recognized zoos subject to the provisions of section 38-I and public museums.

SECTION 44. Dealings in trophy and animal articles without license is prohibited

It prohibits carrying on business as a manufacturer/ dealer of animal articles, a taxidermist, dealer in trophies or uncured trophies, dealer in meat and dealer in captive animals. And also to serving meat in any eating house. Nothing in this section applies to a person practicing such a business/ occupation before the commencement of this Act or has made an application for the grant of a license until such license has been granted/ denied.

Also, dealers in (tail) feathers of peacock and articles made thereof are exempted from this provision.

Every person engaging in above prohibited business  should declared his stocks of animals, trophies, etc. to the Chief Wild Life Warden or any authorized officer so they can place an unique identification marks on the animal.

An application for grant of license has to be made to the Chief Wild Life Warden or the authorized agent. The officers need to consider the previous experience of the applicant and need to hold into account the implications arising from the grant of such license to the status of wildlife. Only on their satisfaction shall such a license be granted.

Every license granted shall specify the premises and conditions in which the licensee shall carry on his/her business. Such license shall be valid for a year, be non-transferable and be renewable for a period not more than one year.

 The application for renewal must be rejected only if it is been made after the expiry of the prescribed period (unless there is sufficient cause for the same), or any statement made by the applicant at the time of grant’ renewal was false or incorrect in material particulars, or the application contravenes any term or condition of the provisions of the Act, or failure of behalf of the applicant to comply by the prescribed conditions.

Section 45: Suspension or cancellation of licenses

The Chief Wild Life Warden or authorized officer have the power to cancel or suspend any license granted/renewed upon reasonable ground, provided that the person whose license is being canceled/ suspended has been given a reasonable chance of being heard. This power is subject to the order of the State Government.

Section 46: Purchase

 If the order denying to renew/ grant license under Section 44 or suspending/cancelling licenses under Section 45 was given out by an authorized officer or by the Chief Wild Life Warden then an appeal can lie before the Chief Wild Life Warden or to the State Government. Time limit for filing an appeal is within thirty days from the day of order, however, the appellate authority may consider an appeal after thirty days if it is satisfied that the appellant had sufficient cause to delay.

Section 49: Purchase of captive animal by a someone apart from licensee

Under this Act, no person, apart from licensee, is permitted to buy, receive or hold any captive animal, wild animal, any animal article, and trophy. However, this is not often applicable to a recognized zoo subject to provisions of Section 38-I or a public museum.

CHAPTER VA Deals With The PROHIBITION OF TRADE OR COMMERCE IN TROPHIES, ANIMAL ARTICLES, ETC.

Section 49A provided Definitions for the word employed in this chapter

(a) “Scheduled animal” means an animal specified for the time being in Schedule I or Part II of Schedule II;

(b) “Scheduled animal article” means an article made from any Scheduled animal and includes an article or object in which the total or any part of such animal has been used except of tail feather of peacock and snake venom.

Section 49-B: Prohibition of dealings in trophies, animal articles, etc., which are a part of scheduled animals.

According to this provision, no person is permitted to begin or carry on business as-Manufacturer/ Dealer of scheduled animal articles, Taxidermist practicing on scheduled animals, or Dealer in trophy/ uncured trophy derived from a scheduled animal, or Dealer in captive animals being scheduled animals, or Dealer in meat obtained from a scheduled animal.

However, a person holding a license as a taxidermist under Section 44 may be allowed to perform taxidermy on a scheduled animal if it is for or on behalf of the Government, or with the previous authorization obtained in writing by the Chief Wild Life Warden, for and on behalf of any person for scientific/ educational purposes.

Cooking/ serving meat procured from scheduled animals in an eating-house is also prohibited.

The section 44 does not apply on this section.

Landmark Judgement

Tilak Bahadur Rai v. State of Arunachal Pradesh, 1979 Cr. L.J. 1404.

In this case, Tilak Bahudhar had shot and killed a Tiger. The issue raised before court was that whether accused acted in good faith or not when he killed a wild animal.  The court whereas deciding have to be compelled to perceive the nature and the dangers that lurked around the accused and beneath what circumstances did the accused kill the animal. After the arguments put forth by both the parties, the Court held that the accused shot the tiger in good faith in order to protect himself because if he does not shot the tiger, he would die. Thus killing tiger can be amounted as self-defense and was, therefore, justified. In this judgement the court observed that if any animal is killed or wounded as by an individual as a means to protect himself, then such animal is the property of the government. No claim should be made by any person who killed the wild animal.

2. Rajendra Kumar v. Union of India, AIR 1998 Raj. 165.

The petitioner had been issued a license by the state for running a business of Carver Ivory, i.e.; as Mammoth ivory. An act restricted trade with reference to ivory due to their declining population However, the list of Scheduled animals did not mention elephants, and Section 44 of the Wild Life Protection Act, 1972 provided for the license of the import of ivory. The petitioner in his favor put forward that the said amendment banned the trade of Asian and African elephants but he was trading in mammoth ivory. He should be allowed to resume free trade.

The court held that trade in Asian elephants was made under the cloak of trade of mammoth ivory, and that mammoth ivory was also included under the term “ivory”. The petition was rejected by the court.

3. Baburao v. State of Maharashtra and Others (2012) (Bombay High Court)

 A petition was filed to claim a compensation for damage done to crops since the petitioner was unable to take care of his agricultural land due to the presence of tigers. The High Court held that the petitioner was eligible for compensation, one of the reasons it gave for the same was Section 39 of the Act. And viewed that the wild animals should be treated as Government property for all purposes. 

4. Indian Handicrafts Emporium and Others v. Union of India and Others (2003)

In this case, The Supreme Court upheld the constitutional validity of the inclusion of “ivory imported into India” within the Act and observed that the restrictions imposed on the trade were reasonable, as the main reason was to avoid the escape done by laundering illegal ivory trade as legal ivory which result in endangering Indian elephants.

5. Wildlife vs. Mohd. Ishaq Baig (2010) 

In this case accused was charged for the offence under section 51 of the Act read with section 49 and section 49B (1) of the said Act. He was found in possession of 159 shawls which were suspected to be made from ‘Shahtoosh’ derived from Tibetan Antelopes, in different ratio with other wool. The court held that hair is part of animal article of scheduled animal and accused was found guilty of the offence.

Conclusion

It is our utmost duty to protect and preserve wildlife and keep on including measures to discourage trade and commerce of the same .wildlife protection is an urgent need of hour for maintaining the ecological balance in the environment and sustaining the ecological chain. Strict legal action should be taken against the illegal wildlife trade and commerce.