Trade and Commerce in Wild Animals
Authored by Tanya Singh
The Reverence for life has been part of India through the since of immoral and India is blessed with an immense variety and diversity in terms of the natural resources. Wildlife is one of the most basic of natural systems which keeps our ecosystem in balanced way and provides the needs of the human. Therefore it’s our responsibility to ensure that this resource is conserved. Hinduism used to give methodical importance to trees, nature and animals. The presence of thought on preservation of animal life since ancient time indicates the customary laws might mandate that appropriates steps is taken to protect the endangered species.
The importance of wild animals to human beings has been easily understood in India and which had been resulted in destruction and extinction of large variety of rare species of animals. In addition the wildlife is not having adequate food, habitat, water etc. which is detrimental to the existence of wildlife in India. Wild animals are an integral part of forest and important ingredient of environment and biodiversity.
Provision for Wildlife Protection
Indian wildlife has received isolated protection through numerous, species-specific-statutes for over a century. The Constitution of India was a bulky document which has no provision relating to safeguarding the wildlife. Therefore until subsequent amendments the Constitutional text was without any specific provision for the protection and promotion of the wildlife. The UN Conference on Human Environment was held in June, 1972 at Stockholm placed the issue of the protection of biosphere on the official agenda of International policy and law.
At the UN Conference on Human Environment at Stockholm, the then Prime Minister of India Mrs. Indira Gandhi for protection of Environment said that "the natural resources of the earth must be safeguarded for the benefit of present and future generations through careful planning and management, as appropriate nature conservation including wildlife must therefore receive importance planning for economical development."
Constitution of India
· Article 21: protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air, water, sanitation without which life cannot be enjoyed.
· 42nd Amendment Act, 1976: the 1 provision of wildlife protection was made in 42 amendment act, 1976 and Stockholm declaration adopted by the international conference on human environment in 1972. The 42nd Amendment also expanded the List of Concurrent Powers in the Constitution. 'Forests' and 'Protection of Wild Animals and Birds' were moved from the State List to Concurrent List. Under the DPSP Article, 48A declared that “State's responsibility to protect and improve the environment and safeguard the forests and Wildlife of the country. Another provision inserted for wildlife is under the Fundamental Duties are the Article 51A (g) stipulated the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have comparison for living creatures. Both imposed an obligation on the Government and the Courts to protect the environment for the people and the nation.
In case of Ivory Traders and Manufacturers Association v UOI1 the Apex Court held that:
1. No citizen has a fundamental right to trade in ivory or ivory articles, whether indigenous or imported.
2. Assuming trade in ivory to be a Fundamental Right granted under art. 19(1) (g), the prohibition imposed therein by the impugned Act is in public interest, and in consonance with the moral claims embodied in Art 48A of the constitution; and
3. The ban on trade in imported ivory and articles made there from is not violative of Art 14 of the constitution, and does not suffer from any of the maladies, namely, unreasonableness, unfairness and arbitrariness.
Wildlife Protection Act,1972
Section 39: Its states 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. In case of Rajendra Kumar V. Union of India2 the petitioner challenged the above clause which imposed a complete ban on import of ivory and articles made form it. It affected the rights 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 Supreme Court observed that, the Chapter V-A of this Act, is incorporated in accordance with the direction of CITES. The object was to make 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 cannot be void.
State of Bihar Vs Murali Ali Khan3 The respondents had allegedly shot an elephant and skinned it, and also removed its tusks. The issue was whether the magistrate is entitled to take cognizance of a case while its police investigation has not come to an end, then Court backed this by saying that in some cases, it might be necessary to do so as the ecological imbalance and harm to wildlife might be so great that in case such stringent steps are not taken, the overturning of the imbalance might be impossible
International Convention on Wildlife
Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES): This Convention regulates International trade in Wild animals and plants which are listed in the 3 Appendix to the Convention. The convention is a protectionist treaty which prohibits international commercial trade in species threatened with extinction. Secondly, it is trading treaty because it allows a controlled international trade in species whose survival is not yet threatened. Third, it provides a mechanism whereby a party which has domestic legislations regarding the export of species can seek the support of other parties in enforcing its own domestic legislations.
Berne Convention on the conservation of European wildlife and natural Habitats, 1979: The main objective is to conserve wild flora and fauna and their natural habitats, to promote cooperation between states and to give particular attention to endangered and vulnerable species
Including endangered and vulnerable migratory species
International Convention for the Protection of Birds, 1950: Article 1: Purpose of the Convention is to protect birds in the wild state.
Article 2: Protection shall be given to all birds, at least during their breeding season, during their return of flight to their nesting ground. .
Article 3: Prohibits the import, export, transport, sale, possession of any live or dead bird or any part of bird killed or captured in contravention of the provisions of this Convention.
Article 4: Prohibits the removal or destruction of nests under construction or in use and taking or damaging, transport, import or export, sale, purchase or destruction of eggs or their shells or young birds in wild state, particularly during breeding season.
Article 5: Prohibits or restrict the use of such methods which result to mass killing or capture of birds or to cause them unnecessary suffering.
Article 7: Necessary precautions are taken to prevent abuses.
Article 8: Each contracting party undertakes to prepare a list of birds, which may lawfully be killed or captured on its own territory.
Article 9: Contracting party shall have the right to draw up a list of species of indigenous and migratory birds which may be kept in captivity by individuals.
Article 10: undertake to consider and adopt measures to prevent the destruction of birds by hydrocarbons and other causes of water pollution.
Convention on the conservation of Migratory species of wild animals, 1979: The main object is to restore the migratory species concerned to a Favorable Conservation Status or to maintain it in such a statuses and to provide that each agreement should cover the whole range of the migratory species concerned and should be open to accession by all range states of that species.
The preservation of Wildlife is a matter of Public Interest. It is the duty of each and every citizen to protect the natural environment, including lakes rivers, and wild life, and to have compassion for all living creatures. Wild Life forms vital part in our ecosystem and main focus needs to be satisfy our aims of sustainable development. Moreover, charismatic species of wildlife embody Incomparable Values, and comprise a major resource base for sustainable development but it involves the protection of entire ecosystems.
Bare Acts Referred:
· The Wildlife Protection Act, 1972
· The Constitution of India
1. AIR 1977 Delhi 267
2. AIR 1988 Raj. 165
3. 1, 1988 SCR Supl. (3) 455
· Basu D.D “ The Constitution of India” 12th Edition
· Pandey. J.N “ The Constitution of India”13th Edition
· Kumar Prasanna “ The Wildlife Protection Act,1972” 2nd Edition