UNIVERSITY OF PETROLEUM & ENERGY STUDIES Dehradun College of legal studies

RESEARCH PAPER ENVIRONMENT LAW CONSTITUTIONAL PROTECTION TO WILDLIFE

Submitted To: MISS SHRADDHA BARNWAL

Submitted By Aditya Saxena Devansh Mishra Dishank Singh Jaideep Nehra Kush Agarwal

ACKNOWLEDGEMENT
We would like to take this opportunity to extend a word of my gratitude to our esteemed Law of environment teacher Miss Shraddha Barnwal, who had been a constant source of inspiration for us in the pursuance of this project. Mam has been gracious enough to guide us on the right path which has enabled us to strengthen our efforts. May we also take this opportunity to wish the reader of our project a knowledgeable experience. The project has been made with utmost care & with utmost finesse to see that the information mentioned is to the best of the accuracy and correctness.

TABLE OF CASES
A 1. Animal and Environment Legal vs. Union of India and Others, AIR 1997 SC 1071

G 1. GR Simon v. Union of India

P 1. Pradeep Kishen v. Union of India

I 1. Indian Emporium and Ors. v. Union of India & Ors.

S 1. State of Bihar v. Murad Ali Khan 2. Shri Sachidanand Pandey v. State of West Bengal

INDEX
Chapters Particulars 1 2 3 4 5
Introduction Scope Of Wildlife Protection In The Constitution History Of Inclusion Of Wildlife In The Constitution Constitutional Mandate To Protect Wildlife The Wild Life (Protection) Act, 1972

Pg No.
5 6 7 8 9 11 13 14

6 7 8

Present Position Conclusion Bibliography

Chapter 1 INTRODUCTION
Wildlife in India is considered sacred to the culture and heritage of the country. A great deal of effort were made in collaboration with

international environmental protection and wildlife conservation organizations to ensure the safety of the natural habitat of Indian wildlife.

Unfortunately agricultural land were given the priority and the natural habitat were eroded to make way for human occupation.

As the human encroachment and settlement increased across the Indian landscape, the wildlife was kept in specific areas. These areas were eventually declared as protected and endangered areas/species. Once the status of protected and endangered areas was awarded to a particular area or breed of animal or species of bird, a great efforts were maintained to prevent the trafficking, poaching, capturing and killing of wildlife. This helped in an increasing awareness which resulted in the awareness amongst people about the population of endangered and exotic species. On the promulgation of the Constitution, the right to safeguard forests and wildlife received constitutional sanction. Under Article 48-A of the Constitution of India, the State is to endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. Under Article 51-A (g) of the Constitution of India, it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife. In advancement of these objectives, the Wild Life (Protection) Act, 1972 was promulgated. It provides, inter alia, for declaration of sanctuary, national parks, games reserves and closed areas 1. Certain wild life animals are harmful to human life. The question, therefore, arises whether it will serve any useful purpose if they are protected and that whether the law should discourage or abolish trading in wildlife. In GR Simon v. Union of India2, the full bench of the Delhi High Court rejected this line of thinking. The Court said that it is a constitutional duty to protect and improve the natural environment, as well as to have compassion for living creatures.
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Animal and Environment Legal vs. Union of India and Others, AIR 1997 SC 1071. AIR 1997 Delhi 301

Chapter 2 SCOPE OF WILDLIFE PROTECTION IN THE CONSTITUTION

Art. 48 A obligates the state to endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. There is at present a growing consciousness and awareness that suitable measures be adopted to protect the environment, wildlife and forests have now been placed in the concurrent List so that the Central government may play a meaningful role in this increasingly significant area.3 The Supreme Court has clarified that whenever a problem of ecology is brought before the Court, it is bound to keep in mind Art. 48-A and 51 A (g) and cannot leave the matter entirely to the government and administration. The least that the Courts may do is to examine whether appropriate considerations are borne in mind and irrelevance excluded. In appropriate cases the Court may go further. 4 The object of the Wild Life Act has been very well explained by the Supreme Court in State of Bihar v. Murad Ali Khan,5 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 steps 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 grave situation emerging from a long history of callous insensitiveness to the enormity of the risks to mankind that go with the deterioration of environment.6

3 4

Supra. Ch. X Sec F Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 5 AIR 1989 SC 1 6 Id. 3-4

Chapter 3 HISTORY OF INCLUSION OF WILDLIFE IN THE CONSTITUTION

At the time of the commencement of the Constitution the protection of wild birds and wild animals was in Entry 20 of List II and thus permitted the State Legislature to legislate in this regards. However, the said entry was omitted by the Constitution (Forty-second Amendment) Act, 1976 and new Entries 17-A and 17-B were introduces in List III thus entitling both State Legislature as well as the Parliament to enact the laws in this regard. The wild Life (protection) Act, 1972 passed by the Parliament under Article 252 of the Constitution at the request of eleven States7 was intended to provide a comprehensive national legal framework for Wild Life protection. The Act adopts a two pronged conservation strategy: (i) Specified endangered species are protected regardless of location, and (ii) All species are protected in specified areas. After the introduction of Entries 17-A and 17-B in the List III by the Constitution (Forty-second Amendment) Act, 1976, the Parliament was empowered to enact laws relating to Wild Life Act, the Parliament has extended the Act to the whole of India except Jammu & Kashmir, which has its own Wild Life Protection Act similar to the national law.

Pradeep Kishen v. Union of India A.I.R 1996 SC 2040

Chapter 4
CONSITUTIONAL MANDATE TO PROTECT WILDLIFE
The Constitution (Forty-second Amendment), Act, 1976, has introduces a new Article 48-A, which imposes the environment including Wild Life. It provides as under: The State shall work to protect and improve the environment and to safeguard the forests and Wild Life of the country. Similarly, Article 51-A was also introduced by the Constitution (Forty-second Amendment), Act, 1976. Clause (g) of Article 51-A imposes a fundamental duty on every citizens to protect, inter alia, wild life and to have compassion for living creatures. It provides as under: It shall be the responsibilities of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. A scrutiny of the above provisions clearly shows that both State as well as citizens are under and obligation to protect the Wild Life and to have compassion for living creatures. List III of the Seventh Schedule contains the following entries under which both Centre and the State can make laws: Entry 17. Prevention of cruelty to animals. Entry 17-A. Forests Entry 17-B. Protection of Wild Life and Birds Entry 29. Prevention of the extension from one State to another of infectious or contagious disease of pests affecting men, animals or plants. Further, list II of the Seventh Schedule also contains the following entries under which the State can make laws to preserve, protect and improve the livestock and prevent animal diseases, and on fisheries. Entry 15. Preservation, protection and improvement of stock and prevention of animal diseases, and on fisheries. Entry 21. Fisheries 8

Chapter 5 THE WILD LIFE (PROTECTION) ACT, 1972

The wild Life (Protection) Act, 1972 passed by the Parliament under Article 252 of the Constitution at the request of eleven States8, was intended to provide a comprehensive national legal framework for Wild Life protection. The Act adopts a two pronged conservation strategy: (i) (ii) Specified endangered species are protected regardless of location, and All species are protected in specified areas.

The recent scenario regarding, the wildlife in India says it is in danger due to poaching & trade in animal articles. To protect the wildlife of the country the parliament of India passed Wild Life (Protection) Act, 1972 as some eleven states requested its enactment. This Act was imposed as some wild animals & birds had become already extinct while some others were on the verge of destruction. Further, the then existing state legislations were incapable in order to protect the wildlife of the country. Under the Act Wildlife Advisory boards & the appointment of wildlife wardens & other staff to implement the Act were established. In several states, the office of the Chief Wild Life Warden & the Chief Conservator of Forests were merged in a single post. The Act prohibits hunting of animals listed in Schedule I, II, III & IV. Under the Act, the state government may declare any area of adequate ecological, faunal, floral, natural or zoological importance as a sanctuary or a national park. In national parks & sanctuaries, public entry is restricted & the destruction of any wildlife or habitat is prohibited. However, the working of 1972 Act was not satisfactory & hence, in 1986 the Act was suitably amended. 9Under the 1972 Act, trade & commerce in wild animals, animal articles & trophies was permissible within the country. But many traders smuggled the animal skins, animal articles & trophies to foreign countries for getting huge profit. Hence, it became necessary to prohibit trade in certain specified wild animals.

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Pradeeep Krishen v. Union of India, AIR 1996 SC 2040 Cited in Divan, Rosencranz, Environmental Law & policy In India?, Oxford University press, 2nd edn. pp. 328-329

Accordingly, by 198610 Amendment Act it was provided that no one will be allowed to carry on trade in wild animals specified in Schedules I & II of the Act. Further the then existing licenses for internal trade of animals & animal articles were revoked. Further total ban was imposed on trade in Indian ivory. The Wild Life Act was further amended in the year 1991. On the basis of the recommendations of Indian Wildlife Board & Ministry of Environment & Forest the amendments were made. Due to continuous poaching & illegal trade in animal articles, the wildlife population in India has rapidly declined. Hence, in the year 1991 an Amendment Act was introduced, hunting of all wild animals except varmint was prohibited. But captive breeding, hunting of wild animals was permitted under some exceptional circumstances such as for protection of life & property, education, research, scientific management & Further to control the death rate of animals on account of communicable diseases, compulsory immunization was provided for in national parks & sanctuaries. The provisions regarding national park & sanctuary were extended to territorial waters without affecting the interests of local fishermen. Further, it was provided that without settling the rights of tribal people, no area can be declared as a national park or a sanctuary. 1991 Amendment recognized the importance of zoos in protection of wild animals in the country & hence it was provided that the management of zoos will be monitored by the Central Zoo Authority established under the Amendment Act. Further on the basis of Convention on International Trade in Endangered Species of Wild Fauna & Flora (CITES), collection of endangered species of animals & plants has been prohibited. But it will not affect the collection of traditionally used plants for bona fide personal use of tribal.

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Art.252

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Chapter 6 PRESENT POSITION

India has adopted a National Conservation Strategy and in 1984 it adopted a National Wildlife Action Plan (NWAP). A special task force called Eliciting Public Support for wildlife Conservation was set up as part of its National Conservation Strategy. The Government has implemented certain measures for conservation and development of wildlife in India. The measures are: Biosphere reserve Project tiger Project Elephant

For offences relating to wild animals (or their parts and products) included in schedule-I or part II of Schedule- II and those relating to hunting or altering the boundaries of a sanctuary or national park the punishment and penalty have been enhanced, the minimum imprisonment prescribed is three years which may extend to seven years, with a minimum fine of Rs. 10,000/-. For a subsequent offence of this nature, the term of imprisonment shall not be less than three years but may extend to seven years with a minimum fine of Rs. 25,000. Also a new section (51 - A) has been inserted in the Act, making certain conditions applicable while granting bail. In Indian Emporium and Ors. v. Union of India & Ors.,11 the court here observed that the prosecution and conservation of wild animal is essential for very existence of human life. A trade in wild animal which is sought to be prohibited with an object to oversee survival of human beings must be given its full effect. Dealing in imported ivory so long the law permits may be a fundamental right but if the statute prohibits it, it must be held to be a law within the meaning of Clause (6) of Article 19 of the Constitution of India in terms whereof reasonable restriction is imposed. A trade which is dangerous to ecology may be regulated or totally prohibited.

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AIR 2003 SC 3240

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The court opined that the primary object for which dealing in ivory imported from Africa had been prohibited was to see that while holding the stock, the people may not deal in Indian ivory which may be procured from illegal killings of Indian elephant as the amending Act indirectly seeks to protect Indian elephant and to arrest their further depletion. As such by reason of the amending Act of 2003, the possession of an ivory whether by a trader or a person is completely banned. The amendment have been brought for the purpose of saving the endangered species from extinction as also for arresting depletion in their numbers caused by callous exploitation thereof. However court took the stand that, A trader in terms of an amended statute is prohibited from carrying on any trade or business in respect of ivory and cannot remain in control over the animal article and the logical consequence wherefore would be that he must be deprived of the possession thereof. The possession of the animal article including imported ivory must, therefore be handed over to the competent authority- In a case of this nature where a statute has been enacted in public interest, restriction in the matter of possession of the property must be held to be implicit. As such the court held that the appellants have no right to possess the articles in question and as such dismissed the appeal.

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CONCLUSION
Laws relating to wildlife is contained in Article 48-A and 51- A (g) of the Constitution. Also it is included in the Concurrent List so that both the State as well as the Parliament can make laws on wild life. Both the Articles are embodied in the Directive Principles of State policy (DPSP). The DPSP is contained in Part IV of the Constitution and sets out the aims and objectives to be taken up by the States in the governance of the country. As such, the government is taking the problems relating to wildlife very seriously. It is showing concerns for the endangered species and it is making laws relating to it. But the problem is in the implementation of laws which has to be checked upon. Also, the legislature & judiciary in our country are both aware of wild lifes significance. With shrinking forest cover, the survival of wild life has been jeopardized. Still we have to give our best to protect the wild life. The conviction of Salman Khan by a Jodhpur Court for killing a black bug has send a clear signal about the commitment of lower judiciary also for protection of wild life in our country & it has also proved that in our country nobody is above the law.

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BIBLIOGRAPHY
BOOKS
S. Shanthakumars, Introduction to Environment Law, (2nd Edn., Wadhwa and Co. 2008). P. S. Jaiswal, Environment Law, (2nd Edn., Pioneer Publication 2006). P. Leelakrishnan, Environment Law in India, (3rd Edn., Lexis Nexis Butterworth Wadhwa 2010). Maneka Gandhi, Ozair Husain, Raj Panjwani; Animal Laws of India, (3rd Edn., Universal Law Publishers 2006). Roger Leroy Miller, Essentials of Legal Environment, (2005). Stuart Bell, Donald McGillivary, Environment Law, (7th Edn., Oxford University Press 2008). Dr. J.N. Pandey, Constitutional Law of India, (1th Edn., Central Law Agency) M.P. Jain, Indian Constituional Law, (5th Edn., Lexisnexis Butterworths)

WEBSITES
www.ecoindia.com/education/laws.html en.wikipedia.org/wiki/Indian_Wildlife_Act.html envfor.nic.in/legis/wildlife/wilflife2.html edugreen.teri.res.in/explore/laws.htm

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