The most important legal system for protection of endangered animals in India is the Wildlife (Protection) Act, 1972. The more recent Biological Diversity Act and Biological Diversity Rules govern the use and protection of biodiversity, but both rely on the schedules of the Wildlife (Protection) Act as a guideline for protecting species. This Act was a laudable legal measure for its time and it has proven valuable in the past several decades, especially with respect to conservation of large mammals and other vertebrates. One criticism of the Act is the exclusion from the schedules of many species that are narrowly endemic to small geographic areas within the confines of the country. These species are highly endangered and do not have any special legal protection.
This Act is an umbrella legislation designed to provide a framework for the co-ordination of central and state authorities established under the Water (Prevention and Control) Act, 1974 and Air (Prevention and Control) Act, 1981. Under this Act, the central government is empowered to take measures necessary to protect and improve the quality of the environment by setting standards for emissions and discharges; regulating the location of industries; management of hazardous wastes, and protection of public.
An Act to provide for the protection of wild animals, birds and plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country.
A number of regulatory and conservation measures have been provided under the Act. Important measures in this regard are:
Section 2 of the Act definines certain terms. We have listed here some important definitions in the Act for your reference.
Section 2(2): “animal article” means an article made from any captive animal or wild animal, other than vermin, and 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.
In this case1) the Hon'ble Delhi High Court held that it is no more res Integra that shawls made of Sahtoosh derived from Tibetan Antelopes would be 'animal article' under The Wildlife Protection Act .
Section 2(16) Hunting, with its grammatical variations and cognate expressions, includes,
Section 2(31): 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—
Section 2(32): Uncured trophy means the whole or any part of any captive animal or wild 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.
The National Board for Wildlife (NBWL) is a statutory body created under India’s Wildlife (Protection) Act, 1972. It is a 47 member committee headed by the Prime Minister of the country and is tasked with promoting conservation and development of wildlife and forests. In addition to framing policies and advising Central Government on matters related to conservation, it is responsible for regulating activities within India’s Protected Areas i.e. National Parks (NPs), Wildlife Sanctuaries (WLSs) and Conservation Reserves (CRs) and Community Reserves (CMRs).
According to Section 5B of the Act the NBWL should constitute a Standing Committee for carrying out its various duties and functions. Having been delegated the powers of the NBWL, the standing committee is required to consider proposals which involve use of land from protected areas (NPs, WLSs and CRs) for activities such as mining, irrigation, roads, highways etc. It is the responsibility of the Standing Committee of National Board for Wildlife (SC NBWL) to screen these proposals, seek additional information or studies, order for site inspections and subsequently approve or reject the proposal2). Prior approval from SC NBWL is also mandatory for proposals involving alteration of boundaries of WLS and NPs.
As per the amendment made to the Wildlife (Protection) Act, 1972 in 2006, approval from SC NBWL is mandatory for projects which involve diversion of Tiger Reserves and areas which link one Protected Area or Tiger Reserve with another Protected Area or Tiger Reserve.
Section 8: It shall be the duty of State Board for Wild Life to advise the State Government (a) in the selection and management of areas to be declared as protected areas; (b) in formulation of the policy for protection and conservation of the wild life and specified plants; (c) in any matter relating to the amendment of any Schedule; (cc) in relation to the measures to be taken for harmonising the needs of the tribals and other dwellers of the forest with the protection and conservation of wild life; and (d) in any other matter connected with the protection of wild life, which may be referred to it by the State Government.
Section 9 of the WLPA seeks to protect wildlife by prohibiting hunting. The term ‘hunting’ has been defined under section 2(16) of the Act in a broad manner and it has already been explained. Prohibition of hunting under WLPA is not absolute. It is permitted under certain specified circumstances and subject to the prescribed procedure. Conditions under which hunting may be permitted vary according to the schedules. There are four schedules in WLPA and wild animals and birds have been included in these schedules according to the degree of protection required for such animals and birds. Hunting of wildlife included in Schedules I, II, III and IV requires the previous permission of the Chief Wildlife Warden appointed by the state government as per section 4 of the Act. WLPA requires that the Chief Wildlife Warden should make such order in writing and state the reasons for issuing the order. Stringent restrictions are applicable in the case of wildlife included in Schedule I. Permission to hunt Schedule I wildlife can be issued in two situations. They are:
In the case of wildlife included in Schedules II, III and IV, hunting may be allowed under the following circumstances:
It can be seen that hunting of wildlife included under Schedules II, III and IV may be allowed not only to protect human life but also property including crops.Killing or wounding of any wild animal to protect life is not an offence. However, in such cases, the killed or wounded wild animal shall be the property of the Government.
The Chief Wildlife Warden also has the power to permit hunting of an animal in the Schedules for limited purposes – education, scientific research, collection of specimens, for recognised zoos, for museums and similar institutions; derivation, collection or preparation of snake-venom for the manufacture of life saving drugs. In the case of wildlife included in Schedule I, such permission can be granted with the previous permission of the Central Government, and in respect of any other wild animal, previous permission of the State Government is required.
Similar restrictions are also laid down in the case of specified plants (specified by the Central Government through notification). The Act prohibits causing destruction or damage to plants specified by notification. However, it allows acquisition or collection of specified plants with the permission of the Chief Wildlife Warden including for educational and scientific research purposes. Trading in such plants is also not allowed. The Chief Wildlife Warden can also give permission to cultivate such plants subject to the conditions in the license. Purchasing such plants or any part thereof from unauthorized parties is also an offence under the Act.
In this case Madhya Pradesh High Court hled that “Merely by finding a person in possession of a leather of wild animal, it cannot be presumed that he hunted or killed the animal, especially in the absence of the evidence that the leather was of a recently killed animal… In the absence of evidence establishing the fact of hunting or killing the wild animal by the accused, he cannot be held guilty u/s. 9 read with Section 49A of the Act… It is true that the possession of any animal article, without license or making declaration to Chief Wild Life Warden, is punishable u/s. 39 of the Act, but, unfortunately, no charge for that offence was framed by the Trial Court, therefore, in my opinion, it would not be just and proper to remand the case for fresh trial after about 12-13 years of the commission of the offence.”
Section. 18- 34: “Protected area” means a National Park, a sanctuary, a conservation reserve or a community reserve. the State Government may declare any area of adequate ‘ecological, faunal, floral, geo morphological, natural or zoological significance’ as a Sanctuary3) or a National Park4).
The State Government is required to follow certain procedure to declare any area as a Sanctuary or a National Park. WLPA requires the government to determine existing rights of any person in or over the land comprised within the limits of such proposed protected area before it is finally declared as Protected Area. In cases where the rights of any person are confirmed by the concerned district collector, the State Government has three options:
Protected Areas are by law more restrictive, allowing virtually no human activity except that which is in the interest of wildlife conservation. For example, generally, entry to a Sanctuary is prohibited. Entry is permitted for a limited number of people for limited purposes such as a public servant on duty, a person who has any right over immovable property within the limits of the Sanctuary and a person passing through the Sanctuary along a public highway. Further, the Chief Wildlife Warden has the power to grant a permit to any person to enter or reside in a Sanctuary for purposes prescribed under WLPA, which include investigation or study of wildlife, photography, scientific research and tourism.
Grazing and private tenurial rights are not allowed in National Parks but can be allowed in Sanctuaries at the discretion of the Chief Wildlife Warden. WLPA does not allow any commercial exploitation of forest produce in both National Parks and Sanctuaries, and local communities can collect forest produce only for their bona fide needs. The establishment of Protected Areas is considered a major step forward in the conservation of India’s wildlife. However, the idea of Protected Areas as envisaged and implemented under WLPA has some limitations. A report of the Ministry of Environment and Forests cites the following lacunae in the present scheme:
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;
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.
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;
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.
The Supreme Court has held that any non-forest activity falling within sanctuaries, National Parks, and 10 kilometers of their boundaries now requires prior consultation with the Standing Committee of the National Board for Wild Life.
The Jharkhand High Court upheld the Chief Wild Life Warden’s order under Section 29 banning the movement of mineral loaded trucks through Betla Wild Life Sanctuary.
CITES is a multilateral environmental agreement aiming to ensure that international trade in specimens of wild animal and plant species does not threaten their survival. The initiative originated in a resolution adopted in 1963 at a meeting of members of The World Conservation Union. The text of the convention was agreed at a meeting of representatives from 80 countries in Washington DC, on 3 March, 1973 (hence, its alternative title of ‘the Washington Convention’). The Convention entered into force on 1 July, 1975. As of 2006, it had 169 member parties, on all five continents.
CITES’ mandate is to control the effects of international trade on the conservation status of threatened species of animals and plants. Its primary aim is the prevention of unsustainable trade, not the promotion of sustainable alternatives or attention to the livelihoods of those who depend on the trade5). The success of CITES must be measured against this remit. Although there are moves to give it regional and ecosystem ambitions, CITES currently has a species- and consignment-orientation, compatible with its focus on international trade.
CITES is legally binding on its members (state parties), providing a framework of conduct which they must meet by enacting appropriate national legislation. Successful implementation relies on co-operation between governments and effective enforcement of domestic law at the national level. Bringing domestic legislation up to international standards has been a major focus of CITES in recent years, and is one of its more positive aspects.
CITES regulates wildlife trade primarily through a system of permits and certificates that must be issued by national authorities before specimens can enter or leave countries involved in international trade. The permit system is applied to a three-tiered classification which accords varying degrees of protection to listed species. These listings lie at the heart of the CITES system of compliance. In accordance with Article IX of the Convention, each party is required to nominate a national ‘Management Authority’ which administers the licensing system and one or more Scientific Authorities to provide guidance to the Management Authority on the effects of trade on the conservation status of the species in question. The Management Authority is responsible for implementing the Convention in its country, and is the sole body which can grant import and export permits and re-export certificates on behalf of the Party. Trade permits must conform to the requirements of the official listing of the species in question. The official listings are agreed at the Conferences of the Parties (CoPs), held every two and a half years, and reviewed periodically. A two-thirds majority of the CoP is needed to agree a new listing or a change in them. Critics maintain that this imposes an excessive burden of responsibility on the proponents of a listing and works in opposition to the precautionary principle, which is otherwise central to the convention’s rationale 6). At the same time, it does permit a certain fl exibility and quicker responses than would the consensus-based decision-making favoured by other conventions.
WLPA does not permit trade in wildlife. The 1986 amendment prohibited trade in wildlife, wildlife articles and trophies within the country. The scope of prohibition was expanded through the 1991 amendment which went one step ahead and prohibited the import of ivory and ivory articles. The Act also prohibits, under section 17A, the collection or trade in specified plants (whether alive or dead or part or derivative), i.e., those listed in Schedule VI of the Act, from any forest land and any area specified by notification by the Central Government. Trade in scheduled animals/animal articles, i.e., animals/animal articles covered under Schedule I and Part II of Schedule II which also include some invertebrate such as insects, corals, and sea cucumber, are prohibited under the Act.
The Wild Life Crime Control Bureau (WCCB) was constituted by Government of India, under the Ministry of Environment & Forests, on 6th June, 2007, under Section 38 (Y) of the Wild Life (Protection) Act, 1972, to combat organized wildlife crime in the country. The Bureau has been envisaged as a multi-disciplinary body with officials from Police, Forest /WL,Customs and other agencies It became operational in the year 2008.
Wildlife Crime Control Bureau (WCCB) has been tasked with the following functions under Section 38 (Z), of the Wild Life Protection Act, 1972:
(i) Collect and collate intelligence related to organized wildlife crime activities and to disseminate the same to State and other enforcement agencies for immediate action so as to apprehend the criminals and to establish a centralized wildlife crime data bank;
(ii) Co-ordination of actions by various officers, State Governments and other authorities in connection with the enforcement of the provisions of this Act, either directly or through regional and border units set up by the Bureau;
(iii) Implementation of obligations under various international Conventions and protocols that are in force at present or which may be ratified or acceded to by India in future;
(iv) Assistance to concerned authorities in foreign countries and concerned international organizations to facilitate co-ordination and universal action for wildlife crime control;
(v) Develop infrastructure and capacity building for scientific and professional investigation into wildlife crimes and assist State Governments to ensure success in prosecutions related to wildlife crimes;
(vi) advice the Government of India on issues relating to wildlife crimes having national and international ramifications, and suggest changes required in relevant policy and laws from time to time.
Central Zoo authority is a statuary body under the Ministry of Environment and Forests, Government of India, established in 1992. Chapter IVA of WLPA provides for the establishment of the Central Zoo Authority.
To provide better upkeep and veterinary care to the wild animal housed in zoos in India to ensure their conservation through best practices of management and bringing education & awareness among the people.
To complement and strengthen the national efforts in conservation of the biodiversity of the country, particularly the fauna through the ex-situ conservation linked with in-situ practices.
To enforce minimum standards and norms for upkeep and healthcare of animals in Indian zoos and to control mushrooming of unplanned and ill-conceived zoos.
The National Tiger Conservation Authority came into existence in 2006. The functions of the NTCA as provided under section 38O of WLPA are:
(a) to approve the tiger conservation plan prepared by the State Government
(b) to evaluate and assess various aspects of sustainable ecology and disallow any ecologically unsustainable land use such as, mining, industry and other projects within the tiger reserves;
(c) to lay down normative standards for tourism activities and guidelines in core area of tiger reserves and ensure their due compliance;
(d) to provide scientific, information technology and legal support for better implementation of the tiger conservation plan.
Section 50 of WLPA 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.
In Pu. C. Thangma v. State of Mizoram and Others7), the Guahati High Court ordered the Chief Secretary of the Government of Mizoram to take appropriate steps for investigation of a matter in accordance with law when a writ petition revealed that prima facie some offence under the Act had been committed.
No court shall take cognizance of any offence against the Wildlife Protection Act except on a complaint by:
In this case8), the Supreme Court held that “For trial of offences, Code of Criminal Procedure is required to be followed and for that there is no other specific provision to the contrary. Special procedure prescribed is limited for taking cognizance of the offence as well as powers are given to other officers mentioned in S. 50 for inspection, arrest, search and seizure as well of recording statement. The power to compound offences is also conferred under S. 54. Secton 51 provides for penalties which would indicate that certain offences are cognizable offences meaning thereby police officer can arrest without warrant. Sub-section (5) of S. 51 provides that nothing contained in S. 360 of the Code of Criminal Procedure or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a national park or of an offence against any provision of Chapter 5-A unless such person is under 18 years of age. The aforesaid specific provisions are contrary to the provisions contained in Code of Criminal Procedure and that would prevail during the trial. However, from this, it cannot be said that operation of rest of the provisions of the Code of Criminal Procedure are excluded.”
Section 51 of the Act sets out the penalties for the violation of its provisions. Penalties vary depending on:
Under Section 52 of the Act, an attempt or an abetment of an offence under the Act is deemed to be equivalent to committing the offence itself.
Under Section 57 of the Act, once the prosecution has proved that an accused is in possession of a captive animal, animal article, meat, trophy, uncured trophy, specified plant, or part or derivative thereof, the burden of proving that he is in legal possession of such item shifts on to him.
By virtue of section 57 of the Act, as long as simple possession and recovery are proved by the prosecution, the burden would shift upon the accused to prove that he was not inconscious possession of the article and was not aware of its existence.