14 Wildlife Protection

Mr Sujith Koonan

1. Introduction

India is a country with rich wild life diversity. It is home to 7.6 per cent of all ma mmalian, 12.6 per cent of all avian, 6.2 per cent of all reptilian, 4.4 per cent of all amphibian, 11.7 per cent of all fish, and 6 per cent of all flowering plant speci es in the world. India constitutes only 2.4 per cen t of the total land area of the world and at the same time contributes 8 per cent to the known global biological diversity (MoEF, 2011: 5).

Wildlife species are very impor tant ecologically and economically. Given the close interrelationship between all living beings (and non-living beings), the extinction of one species will affect the whole ecological balance and consequ ently the survival of other species also. Wildlife is also very important from an economic point of view . Trade in wildlife and wildlife products play a n important role in the world economy as well as the national economy.

Unfortunately, wildlife in India is threatened, most significantly, by human act ions or environmental degradation induced by human actions. Many species are on the verge of ex tinction. A number of factors have contributed to this scenario. Wildlife may pose a threat to human be ings and crops. Illegal wildlife trade has emerged as a form of organised transnational crime leading to extinction of many species. Other emerging and rellatively poorly understood challenges to wildlif e conservation include the impacts of invasive alien s pecies and climate change (MoEF, 2011: 17). The Supreme Court of India has observed that ‘the larg est single factor in the depletion of the wealth o f animal life in nature has been the ‘civilized man’ operating directly through excessive commer cial hunting or, more disastrously, indirectly through invading or destroying natural habitats’ (see State of Bihar v. Murad Ali Khan, AIR 1989 SC 1). Human-wildlife conflict is a major concern for long term conservation of several species such as the elephant and the leopard.

There has been growing concern about the decline of wildlife population and the necessity of conservation and preservation of India’s wildlife at least since the 1970s. From a legal point of view, this growing concern culminate d in the enactment of the Wild Life (Protection) Act (WLPA) in 1972. In this context, this unit describes the salient features of the WLPA inclu ding the institutional mechanism envisaged under t he Act. This unit also critically analyse key regulatory provisions envisaged under the Act.

2. Learning Outcomes

This unit describes the salient f eatures of the WLPA including the institutional mechanism envisaged under the Act. This unit also critically analyse regulatory provisions envisaged under the Act. By the end of this module, students will be familiar with the framework envisaged unde r the WLPA including its historical context. Student wi ll also be familiar with some of the key cases and the contribution made by those cases to the legal framework on wildlife in India.

3. Wildlife Protection Laws in India: A Brief History

The enactment of laws for the p rotection and preservation of wildlife is not a recent trend in India. It has a very long history dating b ack to the pre-colonial period. One of the earlies t developments in this regard was Emperor Ashoka’s edicts (296-277 BC) that prohibited killing of animals such as parrot,swan, squirrel, rhinoceros and bats (Das, 2007: 4). The advent of Buddhism f rom the sixth century onwards has also contributed to the idea of wildlife conservation (Das, 2007: 6). Despite these developments, hunting and killing of wild animals continued throughout histor y for various purposes including trade, amusement and as a status symbol (Das, 2007: 7).

The colonial government introd uced laws for the protection of wildlife. However, they were of limited scope. Birds were the first to ge t the attention of the British in India. The first legislation in this regard was the Wild Birds Protection A ct, 1887. This Act prohibited the possession or sale of certain kind of wild birds during the breeding season. Killing of birds was not prohibited un der this Act. A more comprehensive law was enacte d in 1912 – the Wild Birds and Animals (Protection) Act, 1912. The Provincial Government was em powered to prohibit killing of wild animals or birds during a specified period. Another landmark devel opment was the amendment of the Wild Birds and Animals (Protection) Act in 1935 to introduce the concept of a sanctuary.

Legal developments since 1935 were few and this contributed to the rapid depl etion of wildlife. After Independence, since the subject of wildlife was in the State List of the Constitution, it was not possible for Parliament to enact a law for the protection and preservation of wildlife except by invoking the provisions of Article 252 of the Constitution.

4. Wildlife Protection Act, 1 972

The Wildlife (Protection) Act, 1972 (WLPA) was enacted by Parliament und er Article 252 of the Constitution, after eleven states passed the required resolution. These states are Andhra Pradesh, Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Manipur, Punjab, Rajast han, Uttar Pradesh and West Bengal. At the time when the Act was enacted, wildlife was within the exxclusive domain of the states. The situation changed in 1976 through the 42nd Constitutional amendment. Wildlife is currently in the Concurrent List of the Co nstitution. WLPA is applicable to the whole of In dia except the State of Jammu and Kashmir, which has its own wildlife law (the Jammu & Kashmir W ildlife Protection Act, 1978). WLPA has been amende d in 1982, 1986, 1991, 2002, and in 2006 to make the provisions of the Act more stringent. While WLPA was enacted originally for the protection of wi ld fauna, Chapter IIIA for the protection of endangered flora was introduced through the 1991 amendment.

4.1. Rationale

In State of Bihar v. Murad Ali Khan, AIR 1989 SC 1, at Para. 4, the Supre me Court of India has explained the rationale behind th e wildlife law in the following words:

The policy and object of the Wild life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological-imbalances introduced by the depredations inflicted on nature by man. The State to which the ecological-imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective s teps were taken the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate, has been a great and urgent necessity for the survival of humanity and these laws reflect a last-ditch battle for the restoratio n, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks m mankind that go with the deterioration of environment.

4.2. Objectives

Protection and preservation of w ildlife are the major objectives of WLPA. A nu mber of regulatory and conservation measures have be en provided under the Act. Protection of wil dlife and their natural habitat are the main strategies ad opted under WLPA. Key measures in this regard are:

• Prohibition of hunting o f all wild animals
• Protection of specified plants
• Protection and managem ent of wildlife habitats by declaring Sanctuaries and National Parks
• Regulation and control o f trade in wildlife and parts and products derived from wildlife
• Management of zoos

4.3. Prohibition of hunting

Section 9 of the WLPA seeks t o protect wildlife by prohibiting hunting. The term ‘hunting’ has been defined under section 2(16) of the Act in a broad manner and it includes captur ing, killing, poisoning,snaring, and trapping. 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, also come under the term ‘hunting’.

However, prohibition of huntin g 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 the se 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 p er section 4 of the Act. WLPA requires that the Chief W ildlife Warden should make such order in writing and state the reasons for issuing the order.

Stringent restrictions are applicaable in the case of wildlife included in Schedule  I. Permission to hunt

Schedule I wildlife can be issued in two situations. They are:

(1)   if any animal has become dangerous to human life; or

(2)   if any animal is so disabled or diseased as to be beyond recovery.

In the case of wildlife included in Schedules II, III and IV, hunting may be allowed under the following circumstances:

(1) if animals have become dangerous to human life or to property (includ ing standing crops on any land); or

(2) if an animal is so disable d or diseased as to be beyond recovery.

It can be seen that hunting of wildlife included under Schedules II, III and IV m ay be allowed not only to protect human life but also pr operty including crops.

Killing or wounding of any wil d animal to protect life is not an offence. However, in such cases, the killed or wounded wild animal s hall be the property of the Government.

The Chief Wildlife Warden als o 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 instituti ons; derivation, collection or preparation of snake-venom for the manufacture of life saving drugs. In the case of wildlife included in Schedule I, s uch permission can be granted with the previous perm ission of the Central Government, and in resp ect of any other wild animal, previous permission of t he State Government is required.

Similar restrictions are also laid down in the case of specified plants (specified by the Central Government through notificatio n). The Act prohibits causing destruction or damage to plants specified by notification. However, it allo ws acquisition or collection of specified plants with the permission of the Chief Wildlife Warden inclu ding for educational and scientific research pur poses. Trading in such plants is also not allowed. The C hief Wildlife Warden can also give permission t o cultivate such plants subject to the conditions in the license. Purchasing such plants or any part thereof from unauthorised parties is also an offence under the Act.

4.4. Protected Areas

Chapter IV of the WLPA provides for protected areas to protect the natural habitats of wildlife by identifying such habitats and declaring them as wildlife sanctuaries and national parks. The establishment of Protected Area s has been a major effort to secure wild species a nd their habitats across the country. Protected Areas in clude Sanctuaries and National Parks but follow ing an amendment to WLPA in 2006, the new categ ories of Conservation and Community Reserves are also included as Protected Areas. Under WLPA, the State Government may declare any area o f adequate ‘ecological, faunal, faural, geomorphological, natural or zoological significance’ as a Sanctuary (section 18) or a National Park (section 35).

The number of Protected Areas has increased in India over the years. In 1998 , the country had 426 Protected Areas including 54 Na tional Parks and 372 Wildlife Sanctuaries extendding over 3.34 per cent of the geographical area of the country. By 2009, this had grown to a network o f 661 Protected Areas comprising 100 National Parks, 514 Wildlife Sanctuaries, 43 Conservation Rese rves and 4 Community Reserves in different bio geographic zones, extending to about 4.9 per cent of th e geographical area of the country (MoEF, 2011: 11).

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 a Protected Area. In cases wher e the rights of any person are confirmed by the concerned district collector, the State Government has three options:

(a) declare the Protected Area after excluding such land;

(b) acquire such land by pay ing compensation; or

(c) allow continuance of rights within the Sanctuary.

The legal consequences of such a step mainly include restriction of human actio ns in such areas so that they do not disturb wildlife. This includes restriction of entry (sections 27 & 35(8)) and prohibition of activities that lead to destruction of wildlife or habitat (sections 29 and 35(6)). Fu rther, WLPA makes it difficult to alter the boundaries of a Sanctuary by requiring a resolution to be passed by the State Legislature for this purpose.

Protected Areas are by law more restrictive, allowing virtually no human activit y except that which is in the interest of wildlife conser vation. For example, generally, entry to a Sanctu ary is prohibited. Entry is permitted for a limited number of people for limited purposes such as a pu blic 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 pur poses prescribed under

WLPA, which include investigat ion or study of wildlife,photography,scientific research and tourism.

Grazing and private tenurial righhts 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 com mercial 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 c onservation of India’s wildlife. However, the idea of P rotected Areas as envisaged and implemented under WLPA has some limitations. A report of the Mi nistry of Environment and Forests cites the following lacunae in the present scheme:

Protected Areas are not drawn as per ecological boundaries;

Protected Areas are often too small in size to adequately sustain rich genetic resources and ecological processes;

commercial interests a nd imperatives of development continue to im pact many Protected Areas, leading to further habitat fragmentation and disjunction;

unreasonable delay in settlement of rights and final notification of Protected Areas;

legal framework does not recognise corridors even though they are vit al to the well-being of species;

very limited focus on special habitats such as mountains, wetlands, marin e areas and deserts;

inadequate funding (MoEF, 2011: 11-16).

4.5. Wildlife trade

Trading in wildlife is one of th e major reasons for the rapid extinction of man y wildlife species. The annual international wildlife trad e is estimated to be several billions of dollars and includes hundreds of millions of plants and animals.

CITES 1973

The issue of illegal trade in w ildlife has been a key focus of the international community at least since the 1960s and the proces s culminated in the adoption of the Convention on International Trade in Endangered Species, 1973 (CITES) which came into force on 1 July 1975. India is a signatory to CITES since 1976 and therefor e, legally obliged to take all measures to control international trade in wildlife.

Moreover, a lucrative foreign market for wildlife and articles made from wildlife is a major reason for illegal poaching and killing of wildlife in India. This situation necessitates strict legal measures to prevent hunting of wildlife with in India as well as measures to prevent international transportation of wildlife.

WLPA does not permit trade inn wildlife. The 1986 amendment prohibited tradde in wildlife, wildlife articles and trophies within the country. The scope of prohibition was expanded through the 1991 amendment which went one ste p ahead and prohibited the import of ivory and ivory articles. The Act also prohibits, under section 17 A, the collection or trade in specified plants (w hether 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 anima ls/animal articles, i.e., animals/animal articles covered under Schedule I and Part II of Schedule II wh ich also include some inverterbrate such as insects, corals, molluscs and sea cucumber, are prohibited u nder the Act.

Key Institutions for Protection of Wildlife

The WLPA provides for the establishment of a number of institutional mechanisms for the implementation of the Act. The institutional mechanisms address a range co ncerns such as crime against wildlife and regulation of zoo. It also specifies mechanisms.

These institutional mechanisms are discussed below.

5.1. National Wildlife Crime Control Bureau

The National Wildlife Crime Control Bureau (NWCB) was created in 2007 to combat organised wildlife crime in the country. The headquarters of the NWCB is in New Delhi and there are five regional offices at Delhi, Kol kata, Mumbai, Chennai and Jabalpur; three sub-regional offices at Guwahati, Amritsar and Cochin; and five border units at Ramanathapuram, Gorakhpur, Motihari, Nathula and Moreh.

The key functions of the NWCB are laid down in section 38 (Z) of WLPA. They are:

(a)to collect and collate in telligence related to organised wildlife crimes and to disseminate the same to state and otherr enforcement agencies for immediate action s o as to apprehend the criminals;

(b)to establish a centralised wildlife crime data bank;

(c)to co-ordinate actions by various agencies in connection with the enforce ment of the provisions of WLPA;

(d)to assist foreign authorities and international organizations concerned to facilitate co-ordination and universal action for wildlife crime control;

(e)to advise the Governmeent of India on issues relating to wildlife crime s having national and international ramifications, relevant policy and laws.

5.2. Central Zoo Authority

Chapter IVA of WLPA provides for the establishment of the Central Zoo Auth ority. The Central Zoo Authority is entrusted with the p ower to recognise or derecognise any zoo in the country. Laying down standards for keeping animals in a zoo also comes under the mandate of the Auth ority. It also identifies endangered species of wild anim als for purposes of captive breeding and assignin g responsibility in this regard to zoos.

5.3. National Tiger Conservation Authority

The National Tiger Conservati on Authority came into existence in 2006. The  key functions of the Authority as prescribed under section 38O of WLPA are:

(a)to approve the tiger cons ervation plan prepared by the State Government;

(b)to evaluate and assess various aspects of sustainable ecology and disa llow 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 theirr due compliance;

(d)to provide scientific, information technology and legal support for better implementation of the tiger conservation plan.

6.Implementation Challenges and the Role of the Judiciary

Implementation of WLPA faces a number of challenges. In many cases, the higher judiciary has played a crucial and active role to faccilitate the implementation of WLPA as well as to give progressive meaning to the provisions of the Act.

Centre for Environmental Law, WWF v. Union of India, WP (Civil) No. 337 of 1995, is a good example. The issue of inaction b y various state governments in implementing W LPA was discussed in this case. The Supreme Court directed state governments to establish Wildlife Advisory Boards. Further, the Court directed all states which had failed to appoint Wildlife Wardens to make the appointments. The Court also interfered when states failed to make the final notifications on Protected Areas.

It is to be noted that the active role of the judiciary has gone to the extent of rule-making also. The Supreme Court, in Centre for E nvironmental Law, WWF v. Union of India (1997), laid down rules for de-notification of Protected Areas. The Court directed the state governments to refer proposals for de-notification to the Indian Boar d for Wildlife (IBWL) and place the proposal and opinion of IBWL before the Legislative Assembly (Dutta, 2007: 475). The Supreme Court als o directed the Central Government and state governm ents to provide modern arms and communication facilities to forest guards in sanctuaries and nation al parks to control the menace of poaching (Dutta , 2007: 479).

The judiciary had also assumed a monitoring role and examined proposals for development activities in protected areas and decided/mon itored approvals (Dutta, 2007: 492).

Transportation of or trade in wi ldlife has been a contentious issue and the judiciary has taken a pro-environment, pro-wildlife appro ach in Ivory Traders and Manufacturers Association v. Union of India, 1994 (54) DLT 286. In this case , the constitutionality of the 1991 amendment of WLPA that prohibits trade in imported ivory was cha llenged before the Delhi High Court. It was argu ed that the prohibition violates the freedom of trade an d profession guaranteed under the Constitution. The High Court upheld the constitutional validity of the amendment and said ‘trade and business at the cost of disrupting life forms and linkages necessary f or the preservation of bio-diversity and ecology cannot be permitted’ (para 25).

7. Summary

The history of wildlife law in I ndia dates back to the precolonial era. Even though some laws were introduced during the colonia l period, they were limited in their scope and application. A comprehensive legal framework came into existence in India in 1972 with the en actment of the Wildlife (Protection) Act, 1972. This Ac t adopts an eco-centric approach towards wildlife by strictly regulating killing of wildlife, controlling trade in wild animals and plants. It also envisages measures for the conservation of wildlife mainly through protecting their natural habitats. It could be seen that the Indian judiciary has also contributed si gnificantly to the development of wildlife law by taking proactive roles sometimes and by adopting expansive interpretation some other times. While it is undeniable that wildlife needs to be protected and conserved, it needs to be noted that the implementation of the Wildlife (Protection) Act, 1972 has resulted in adverse implications for tribals an d forest dwellers.

References

• Das, Chhanda. A Treatis e on Wildlife Conservation in India. New Delhi: Daya Books, 2007.
• MoEF. Report of the W orking Group on Wildlife Ecotourism and Anima l Welfare. New Delhi: Ministry of Environment & Forests, 2011.
• Dutta, Ritwick. Comme ntaries on Wildlife Law: Cases, Statutes and No tifications. New Delhi: Wildlife Trust of India, 2007.