By Arpit Sanjar
4th Year Law Student at Dharmashastra National Law University, Jabalpur
This blog aims to track the emerging trends and legal developments in India and throughout the world. Furthermore, this blog identifies the shortcomings of the current system and makes recommendations for improving the effectiveness of criminal justice enforcement.
"The illegal wildlife trade has grown at an exponential rate over the last few decades, and it now ranks with human and drug trafficking offences in terms of both severity and monetary gains. These crimes are now at the forefront of international debates and conferences due to their transnational nature."
Introduction
Wildlife trafficking offences have recently increased dramatically, and they now rank with drug, human, and gun trafficking in terms of the amount of money made. These crimes, like other trafficking-related crimes, are both organised and transnational in nature. “India is one of the only countries which is guided by the principle of conservation…We kill animals only if it is the very last resort and there is no option left,” said Siddhanta Das, director-general of forests. “But that means that animals want more resources, and so do human beings, so this conflict is inevitable.”[1] Regulating and enforcing such offences has, regrettably, proven ineffectual in resolving the issues that have evolved. This necessitates a greater focus on the different factors that have contributed to the deterioration of such systems, as well as steps to ensure effective and realistic responses to impending crises.[2]
Wildlife trafficking has become so organised and global that it is now a serious crime. This is exacerbated by a combination of state corruption and a weak enforcement mechanism, particularly in developing nations with limited resources. This is also true in India, which is home to a number of endangered and heavily traded species, including rhinoceroses, tigers, and pangolins, among others. Because of the transnational nature of these crimes, international conventions against wildlife trafficking and robust domestic legal systems have become critical conditions for successfully combating the problem.
India is home to a number of species that are heavily trafficked around the world. Hunting became more accessible after independence, and it quickly became a lucrative alternative for many. The wildlife trafficking sector has grown in India over the years due to poor detection rates, fewer convictions, and insufficient sanctions. Despite the fact that India passed the Wildlife Protection Act in 1972 and ratified the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) in 1976, its effective implementation remains a challenge. Unfortunately, India, like many other developing countries, lacks the essential resources to secure the perimeters of its wildlife reserves. This problem is exacerbated by corruption on the ground, and the earnings from such smuggling pay well. This also begs the question of how the margin of appreciation to be given to India would be determined.
Legal Framework for Wildlife Conservation in India
Article 48A[3] of India's Constitution mandates that states take steps to maintain and improve the country's wildlife, while Article 51A (g)[4] binds citizens to a fundamental responsibility to protect the natural environment, including wildlife, as well as to show "compassion for living beings." We are all aware that nature is revered in our country in various forms and is an important component of our culture. There are a variety of art forms, folklore, and religious beliefs that are based on traditional practises of worshipping certain animals (such as sacred elephants) that portray the interaction between humans and wildlife in the concerned citizen. As a result, the framers of the Constitution included provisions to safeguard and improve the natural environment, particularly wildlife resources, in order to protect the rich nature and biodiversity. Further, eminent efforts have been made by both the Indian Legislature and Judiciary to curb the illegal trade in India.
The Wildlife Protection Act, 1972[5] prohibits persons from carrying on trade in the wildlife specified in Schedules I and II of the Act. Furthermore, the act provides for retrospective application of the laws and has rescinded all the subsisting licenses for the domestic trade of animals and animal articles. Numerous amendments have been made to the act since the enactment which imposes an absolute prohibition of hunting all wild animals except vermin. The constitutionality of such additional provisions to the act was upheld and adjudged reasonable by the court in purview that such hunting gravely harms the biodiversity and ecology and in the purpose of protecting animals and maintaining the ecological balance in the social and public interest. The law only allows such acts to further the purposes of saving life and property[6], captive breeding and scientific research and educational purposes.
Currently, the Wildlife Protection (Amendment) Bill, 2021, aims to expand the number of species protected by the law, as well as change its schedules and other provisions, to ensure compliance with CITES and subsequent decisions aimed at tightening regulation of illegal trade.[7]
India is a signatory to the Convention on Biological Diversity of the United Nations. The Biological Diversity Act's requirements are in addition to and not in conflict with any other law pertaining to forests or wildlife.
Since 1976, India has been a signatory to the CITES, a treaty aimed at prohibiting the trade in endangered species and regulating the trade in other commercially exploited species. The CITES was adopted with the specific intention of regulating the trade in endangered species of wildlife.[8] Article VIII(1)(a) of this Convention categorically calls for the penalization of any trade-in or possession of specimens that are done in violation of the Convention.[9]
The Trade Records Analysis of Flora and Fauna in Commerce (TRAFFIC) was formed by the IUCN's Species Survival Commission in 1976, a year after the CITES went into effect, to monitor wildlife trade and treaty implementation.
The TRAFFIC programme is designed to modify the behaviour (policy and practice) of specified target groups (individuals and organisations) who are in a position to ensure that the wildlife trade does not pose a threat to environmental conservation.[10] The first layer establishes the types of responses that TRAFFIC should attempt to elicit through its efforts. The reactions can be summarised as follows: effective regulation, positive economic incentives, sustainable consumption patterns, and mobilised knowledge.
The second key level of strategy establishes the types of interventions or actions that TRAFFIC will take to elicit such responses. This involves conducting market surveys, assessing trade procedures, routes, economics, and motivations, analysing official trade statistics, compiling observations and results of other academics, and conducting specific investigations into unlawful trade activities.
TRAFFIC India has actively involved in wildlife trade-related matters across the country and in the South Asian area as part of its mandate. It includes a variety of actions such as offering policy insights, supporting and increasing field-level implementation, and building capacity at various levels and organisations to deal with wildlife trade issues.[11]
The third National Wildlife Action Plan (2017-2031) is unique in that it lays out strategies and activities to meet the problems posed by climate change's impact on wildlife, with a focus on combining mitigation and adaptation measures into wildlife management planning processes.[12]
Judicial Developments
Legislative framework aside, the judicial development in this regard has also been progressive. In 2010, the Supreme Court in the Sanjar Chand case[13] made some critical observations and showed zero tolerance for such offences. It concluded its judgement by requesting the Central and State Governments “to make all efforts to preserve the wildlife of the country and take stringent actions against those who are violating the provisions of the Wildlife (Protection) Act, as this is necessary for maintaining the ecological balance in our country.”
The Court in the TN Godavaram case[14] observed that the object of the Act was to check deforestation which leads to ecological imbalance and several provisions have been made on the issue to ensure the conservation of forests and its related matters. This principle applies to every forest irrespective of the nature of ownership or classification. The court further added and described what all are included in ‘forest’ and ‘forest land’ - all statutorily recognized forests, designated as reserved, protected, or otherwise except in section 2(i) of the Act and any area recorded as forest in the Government record irrespective of the nature of ownership.
In a 2013 case[15], several precedents were used by the court to go into greater detail about the ecocentrism theory and the ramifications of this approach. Animals found in the wild are to be considered national assets for which no state can claim independent ownership. It is the state's authority to maintain and safeguard the wildlife to ensure the nation's ecological and environmental security.[16]
Need for the Contemporary
Notwithstanding these efforts, the trafficking of such animals and plants continues as many now face the threat of extinction. This owes largely to the dissonance that continues to exist between orders given by Courts and the attitude of the state executive in effecting the same.[17] Irrespective of the progressive laws related to such prohibition and pro-wildlife Judicial pronouncements, there is a need for a well-functioning Executive body to ensure adequate application of such measures.
It is important to remember that the future of wildlife conservation in India is entirely dependent on the ability of governments to preserve and administer TFs. This necessitates a methodical and scientific approach as well as adequate resources. All TF divisions in India should make it a requirement to work on wildlife conservation strategies, effective monitoring procedures, and human-animal conflict mitigation measures. An independent expert body at the national level that can assume primary responsibility for the protection of animal habitats is required for such efficient, effective, and comprehensive management. Such bodies should also provide advice to the federal and state governments on all issues including wildlife management and human-animal interactions. The creation of a national authority to regulate other wildlife species is urgently needed.
Zoonotic disease, or COVID-19 Coronavirus, is thought to be a group of coronaviruses typically identified in bats. Bats are the primary source of infection, which is then transmitted to humans, and rapid human-to-human transmission has been widely verified since then. This sickness began in a wet market in Wuhan, where a variety of common and exotic animals were sold for human consumption, both dead and living. Although the Chinese government announced a temporary ban on wildlife trafficking shortly after the onset of the pandemic, this cannot be a long-term solution to avoid future outbreaks of viruses that are likely to be spread by wildlife. Illegal wildlife trafficking and wildlife ingestion are the primary causes of zoonotic illnesses.
While the Act governs wild animal commerce, it does not apply to exotic wild animals imported into India.[18] Trade is restricted to native animals protected by the act's six schedules. The commodification and commercialisation of exotic species have surged as a result of this gulf.
It is pertinent to note that no legislation provides a distinct definition of “Exotic Animal”. Pertaining to this loophole, animals like monkeys and snakes could still be legally bought in accordance with the Pet Shop Rules of 2018. Law binds the pet store owners to keep up with all the approvals or licenses required from the Director-General of Foreign Trade. Moreover, the owners are required to keep import permits and permissions from authorities at all levels. Additionally, live animal importation is both legal and unethical.
Conclusions
While India still has a long way to go in totally eliminating these crimes, it looks that the government is moving in the right direction. However, if the above-mentioned flaws were given more attention, it would be extremely advantageous in combating the crimes with higher effectiveness.
Humanity and nature are becoming increasingly unbalanced as a result of the unrelenting murder of endangered wildlife. At this point, it is critical that the world's political forces unite to take universal and coordinated action to mitigate the risk that has been posted to the species that are now threatened with extinction. The illegal wildlife trade has also harmed sustainable development by depleting natural resources and displacing rural communities, as well as facilitating the generation of illegal income for transnational organised criminal gangs. In this case, a severe, zero-tolerance approach is required, and all governments must begin treating wildlife crimes as serious crimes inside their jurisdictions.
India must sustain and strengthen its efforts to combat this crime by enacting stronger regulations and increasing the number of people convicted of crimes. Cases involving high-profile celebrities, like as Salman Khan's 'Blackbuck' case, should not be treated lightly, and acquittals should not be issued lightly. In order to see a meaningful drop in crime rates, there needs to be more awareness and sensitivity among the many branches. As a result, the most pressing issue right now is a move from a casual to a more proactive mindset.
[1] Human-animal conflict is clear & present danger, and India can't afford to ignore it”, The Print, Link, accessed 30 May 2022. [2] “Alarming loss of habitat makes it difficult for wildlife to adapt.”, Hindustan Times, Link , accessed 30 May 2022. [3] Article 48A, The Constitution of India [4] Article 51(g), Constitution of India [5] The Wild Life (Protection) Act, 1972 [6] Chief Forest Conservator (Wildlife) v. Nisar Khan (2003) 4 SCC 595 [7] https://prsindia.org/billtrack/the-wild-life-protection-amendment-bill-2021 Last Accessed on 30 May 2022 [8] What is CITES?, Convention on International Trade in Endangered Species of Wild Flora and Fauna, https://cites.org/eng/disc/what.php Last accessed on 30th May 2022 [9] Convention on International Trade in Endangered Species of Wild Flora and Fauna, Art. VIII (1)(a), Mar. 3, 1973, 993 U.N.T.S. 243 [CITES] [10] https://www.worldwildlife.org/initiatives/traffic Last Accessed on 30th May 2022 [11] https://www.downtoearth.org.in/coverage/wild-and-unprotected-27643 Last accessed on 30th May 2022 [12] India unveils third National Wildlife Action Plan for 2017-2031, Economic Times, Link, accessed 30 May 2022. [13] Sansar Chand v. State Of Rajasthan, (2010) 10 SCC 604 [14] T.N. Godavarman Thirumulkpad v. Union of India (1997) 2 SCC 267. [15] Centre for Environment Law, WWF-I v. Union of India (UOI) [16] https://nlsenlaw.org/climate-change/domestic-legal-updates/supreme-court-cases/center-for-environment-law-wwf-v-union-of-india-and-ors-2013/ Last accessed on 30th May 2022 [17] Apoorva Joshi, India Steps Up Efforts to Combat Wildlife Trade, MONGABAY, (Oct. 9, 2015), https://news.mongabay.com/2015/10/india-steps-up-efforts-to-combat-wildlife-trade/ (last accessed on 30th May 2022 [18] https://www.thecitizen.in/index.php/en/newsdetail/index/13/20511/why-the-exotic-wildlife-trade-is-rising-steeply-in-india Last accessed on 30th May 2022
Comments