ENVIRONMENTAL LAW

WRITTEN REPORT ON CASE LAW PRESENTATION

Presented on 18.05.2023
- Viswanath.K.P. (BCO200052)
Indian Handicrafts Emporium and Ors.Vs. Union of India (UOI) and Ors
AIR 2003 SC 3240
Outline of the Presentation:
The presentation of the case law has been divided into parts such as facts of the case,
issue, arguments and the decision of the court.

Facts of the Case:

 The Wild Life (Protection) Act, 1972 (hereinafter referred to as ‘the said Act’ for the sake of
brevity) was enacted to provide for the protection of wild animals, birds and plants and for
matters connected therewith or ancillary thereto or incidental therewith. Indian elephant was
brought within the purview of Schedule A of the Act on or about 5.10.1977. The Union of
India also banned export of ivory in the said year.

Chapter V of the said Act deals with trade or commerce in wild animals, animal articles and
trophies. By Act No. 28 of 1986 Chapter V-A was inserted therein whereby and restrictions
were imposed on trade or commerce in wild animals, cattle and trophies. By 1991
Amendment to the Act, Section 49C was inserted in Chapter V-A whereby and where-under a
total prohibition in trade of imported ivory was imposed. The appellants had imported ivory
from African countries between 1971 and 1986 and manufactured some articles out of it.
They were in possession of 756 kgs of ivory articles. The 1986 amendment to the Wildlife
Protection Act banned the trade of wild animals, animal articles, trophies etc. The 1991
amendment to the said act imposed a complete ban on the imported ivory trade and provided
a stipulated period of six months for the disposal of the ivory stocks. The appellants
contented that the act was unconstitutional and violated their right to property by not
provided appropriate compensation.

The appellants had filed writ petitions before the High Court of Delhi, challenging the
constitutionality and validity of the 1991 Amendment Act that led to the prohibition of ivory

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trade. The High court had put a stay on the operation of the act by an interim order for a
period of two months after which the court upheld the vires of the said act which gave rise to
the current set of appeals before the Supreme Court of India.

Issues:

According to one of the first issues raised by the appellants, the impugned provisions
of the act in question are violative of Article 19 (1) (g) where the right of appellants to
practice their profession of ivory trade was being curbed. The appellants also alleged that this
prohibition on traders was unreasonable and arbitrary under Article 14 of the Constitution.

Another issue faced by the court was whether the ivory imported into India before the
amendment could be sold by the traders, or on what conditions could the ivory be retained for
personal use. Additionally, there was another question that was faced by the Apex Court
where the right to property of the appellants was being violated as a result of the 1991
Amendment Act.

Argument and Analysis:

One of the major contentions of the Appellants was that the 1991 Amendment Act placed
arbitrary restrictions on their right to carry out their trade, under Article 19 (1) (g) of the
Constitution. Since ivory trade was not banned before the said 1991 Amendment, the
Appellants were indeed recognized as traders, but the Court was adept at providing
justifications for curbing this erstwhile legal trade. The Court held that this ban would not
constitute an unreasonable restriction since the safety of the ecology and a sharply dwindling
species was at stake. This reasoning is important considering the dynamic nature of the
environment, animals, objects, resources that once might have been an acceptable source of
income by way of a legitimate trade, might be prohibited or restricted as per the need of the
hour.

The major objective of the act, as mentioned in the judgment, was to protect the
illegal killing of the Indian Elephant. The import of ivory from Africa had been prohibited
since it was felt by the legislature that imported ivory trading might implicitly promote the
illegal sale of ivory obtained from the Indian Elephant. However, in the judgment, there

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seems to be no explicit discussion on the area where a clear nexus between the import of
ivory from Africa and the increase in sale of illegal ivory was reasonably concluded. There
exist several items that are restricted for import into India but could be imported in certain
circumstances. These include certain live birds and animals, semi-processed hides and skins,
endangered species of plants and animate, certain vintage products, amongst others. In many
of these scenarios, the production or making of these items is prohibited, but import under
special circumstances is permitted. There were also contentions by Appellants that they be
allowed to trade with the ivory of dead animals by way of a natural death and not poaching.

It was also argued with the assistance Supreme Court precedents that if the statute had
been vague in certain areas, then the amending should be ultra vires. This was supported with
certain modifications to CITIES, as elephants had been placed into Appendix II of the
convention from Appendix I. The former was a stricter category inviting more stringent bans,
whereas in the latter regulated trade could still continue. It was argued that the resurging
elephant number in Africa did not require stringent protection as envisaged by the Act, where
its nexus with the Indian Elephant's Population was weak. In this judgment, the Supreme
Court applied the reasoning of Indian Handicrafts Emporium to ban the trade of mammoth
ivory in spite of it being extinct. The Appellants had appealed against the judgment of a
division bench of the Delhi High Court and had urged that the Court had made an error since
mammoths were deceptively similar to elephants.

It was argued that the substance ivory and its chemical composition could be found in
whales, walruses, hippos, etc. and that the word ivory could not possibly cover all these
animals, when the intention was manifestly directed towards the Indian Elephant. In this case,
it was upon the Apex Court to adopt either a lenient or strict construction of the term ivory,
and whether it could be applied to mammoth tusks. In this judgment, the court did not look
favourably towards the perspective that would be against the intended social goals of the law
and would thus make the impugned legislation futile. The Court acknowledged the perils of
assigning any ordinary dictionary meaning to a word over its technical meaning but
differentiated the same by giving the justification that the impugned statute was not one like
tax statutes but was for the higher purpose of ecological protection.

It held that a purposive interpretation of a stature and its risks did not need to be
discussed in the case, and that the Parliament had enacted the 1986, 1991 and 2003
amendments not only to protect the Indian Elephant, but also to obstruct the activities of

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poachers with a goal of complete prohibition of ivory irrespective of its biological or
geographical source. The Court placed full reliance on the Indian Handicrafts Emporium case
in arriving to its conclusions, both in reasoning in relation to the ambit of the word ivory, and
in the powers of the administrative authorities regarding the power to use thin discretion.

Comment and conclusion:

In light of the above analysis of the Indian Handicrafts Emporium Case and its
aftereffects, it is clear that the Supreme Court had chosen an approach towards the protection
and conservations of wildlife. In providing its reasoning in the areas of exceeding the limits
of CITIES restrictions, expanding the ambit of ivory to not only include ivory from elephants,
but also from mammoths and other animals. The court has definitely taken an extremely strict
interpretation of the statute. The intentions and effects of this judgment undoubtedly seem to
be complementing the legislation, and they end up give more power to the state to restrict and
prohibit certain detrimental activities in relation to the environment and its conservation.

Learning Outcome:

The learning outcome form the case and its presentation would be the ambit of the
wildlife protection act and the amendments made to the act and the primary objective of these
amendments all with respect to ivory from animals. The Court has interpreted the act strictly
and has gone beyond the ivory of just Indian Elephants to cover ivory from animals under the
ambit if the act.