190
V
LEGISLATIVE FRAMEWORK FOR BIODIVERSITY
CONSERVATION AND JUDICIAL ACTIVSM
Conservation of biodiversity includes the preservation of all species, flora and
fauna, the enhancement of wildlife habitat, the control of wildlife problems and
the sustainable use of forests and wildlife. The rapid rate of extinction of many
species of animals is an increasing concern. Habitat preservation and enhancement
are critical to existence of wildlife in an area. Animals cannot live in an area that
does not provide proper food, cover, water and special needs. People's activities
alter many habitats, which acts as a detriment to wildlife. Conservation and
sustainable use of biological resources based on local knowledge systems and
practices is ingrained in the Indian ethos and way of life. Formal policies and
programmes for conservation and sustainable use of biodiversity resources date
back to several decades. The concept of conservation of biodiversity is enshrined
in the Indian Constitution in Article 48(A and 51A (g). Major Central Acts
relevant to biodiversity are: the Indian Forest Act, 1927; the Wildlife (Protection)
Act, 1972; the Forest (Conservation) Act, 1980; and the Environment (Protection)
Act, 1986. The various Central Acts are supported by a number of State Laws and
Statutes concerning forests and other natural resources.
191
A. Indian Forest Act, 1927
The first codification, which came on the statute book in relation to
administration of forest in India, was the Indian Forest Act. 1865. Thus, the
history of forest law in India is more than a century old. The Act of 1865 was
amended from time to time and ultimately it was repealed and replaced by the
Indian Forest Act 1927 which not only consolidated but also re-shaped the law
relating to forests. The said Act of 1927 was also amended from time to time.
To make forest laws more efficient and to improve the Forest Act 1875, a new
comprehensive Forest Act was passed in 1927 with the following objectives; to
consolidate the laws relating to forests; regulation of and the transit of forest
produce; to levy duty on timber and other forest produce.
The Indian Forest Act1927 contains 86 sections and it deals with four
categories of forests namely (i) Reserve Forests in Chapter II (ii) Village Forests
in -Chapter III (iii) Protected Forests in Chapter IV and (iv) Non-Government
Forests in Chapter V.
The Act empowers the State Government to constitute any forest-land or
waste-land as reserved forest and to issue notification in the official gazette.1 The
notification is required to be published in the official gazette and unless it is
published it is of no effect2. After the notification under section 4 of the Act, no
right shall be acquired in or over the land comprised in such notification and
previously recognized individual and community rights over the forest are
extinguished upon such a notification3 and access to forest and forest products
1 Section 3 and 4 of The Indian Forest Act, 1927.
2 Mahendra Lal vs. State of U.P., A.I.R. 1963 S.C. 1019.
3 Forests act, 1927, Sections 5 and 9.
192
becomes a matter of privilege subject to permission of forest officials acting under
governing laws and regulations4. The Act includes procedures for making claims
against the Government for the loss of legal rights over the forests.
The village forests are established when State assigns to a village community
rights over any land which has been constituted a reserve forest5. The State
Governments make rules for managing the village forests and prescribe conditions
under which the village community is provided with timber, other forest products
or pasture. The rules may also assign duties to the village for the protection and
improvement of the forests.6
The State Government has also been empowered to declare any forest-land or
waste-land which is not included in the reserve forest but in which the
Government has proprietary right or rights to any part of the forest products as
protected forests.7 Thus, protected forests cannot be created from reserve forests.
The Government must survey the rights and claims of private persons in forest
being considered for protection but may declare the forest area a protected forest
pending the completion of survey8. Under section 30 of the Act, the State
Governments can close portion of the forests, for such term not exceeding thirty
years, as long as the remainder of the forests is sufficient for individuals and
communities to exercise their existing legal rights to use forests. The State
Governments may prohibit certain activities such as grazing, cultivation, charcoal
burning and stone quarrying. The State Government may also regulate all rights
4 Section 15.
5 Section 28
6 Ibid.
7 Section 29.
8 Ibid
193
and privileges for the use of protected forests. State Governments have been
empowered to notify certain trees and forests to be protected forests and penalize
for cutting, converting, collecting or removing forest produce without license
being granted by the respective States9.
Chapter V of the Act deals with the control over forests and land not being 'the
property of the Government, The provisions of this Chapter show that the Act is
intended to be a piece of legislation not only in respect of government forest but
also in respect of forests and lands not belonging to government10
. In other words,
the Act covers non-government forest also. The State Government can, by
notification, regulate or prohibit the breaking up or clearing of land for cultivation,
the pasturing of cattle or the firing or clearing of the vegetation to protect against
storms, winds, rolling stones, floods and avalanches to preserve soil from erosion,
to maintain water supply in springs, rivers and tanks, to protect roads, bridges,
railways, lines of communication and to preserve public health, etc.11
The Act also
authorizes the State Government to acquire private land for public purposes under
the Land Acquisition Act 189412
.
State Governments have also been vested with powers to impose duty on
timber and other forest-produce and to control transit of timber and other forest
produce13
and to impose penalties for offences committed under the Act.14
Chapter
IX deals with penalties and procedure to be followed in case of seizure of
property. The Act enumerates certain offences and provides for punishment of
9 Sections 32, 33.
10 See Kashi Prasad v. State of Orissa, A.I.R. 1963 Ori. 24
11 Section 35.
12 Section 37.
13 Section 41.
14 Section 42.
194
imprisonment for a term which may extend to six months or with fine which may
extend to Rs 500/- or with both.15
The Act of course recognizes the concept of
„compensation‟ for damage done to the forest as the convicting court may direct to
be paid in addition to the sentence of imprisonment for a term which may extend
to six months or fine which may extend to Rs 500/- or both, for the acts prohibited
in the reserved forest.16
B. Forest (Conservation) Act, 1980
Deforestation causes ecological imbalance and leads to environmental
deterioration. Deforestation had been taking place on a large scale in the country
and it had caused widespread concern. The Government passed the Forest
(Conservation) Act, 1980 which is a landmark in the history of the protection of
Forests. The Act was passed to remove the difficulties of the Forest Act, 1927 and
to conserve the vegetation cover of the nation. This historical Act consists of five
sections but has proved very effective and successful in the conservation of the
forests.17
The main Objective of the Act is to provide for the conservation of forests and
for matters connected thereto. Conservation of forests is necessary as deforestation
cause ecological imbalance and leads to environmental deterioration.
Deforestation has been taking place on a large scale in the country and it has
caused widespread concern.
15 Section 33.
16 Section 26.
17 See generally, Shyam Divans and Armin Roscencranj, Environmental Law and Policy in India,
64 (2001); P. Leelakrishnan, Environment Law in India, 39 (2008); See also, P.B. Sahasranman,
Handbook of Environmental Law, 188 (2009); Gurdip Singh, Environmental Law in India,
332(2005).
195
The Act deals with restriction on the de-reservation of forests or use of forest-
land for non-forest purposes. It provides that notwithstanding anything contained
in any other law for the time being in force in a State, no State Government or
other authority shall make, except with prior approval of the Central Government,
any order directing18
:
1. that any reserved forest declared under any law for the time being in force
in that State or any portion thereof, shall cease to be reserved;
2. that any forest land or any portion thereof may be used for any non-forest
purpose; that any forest land any portion thereof may be assigned by way of
lease or otherwise to any private person or to any authority, corporation,
agency or any other organization not owned, managed or controlled by
Government;
3. that any forest land or any portion thereof may be cleared of trees which
have grown naturally in that land or portion, for the purpose of using it for
re-afforestation.
For the purposes of this section „non- forest purpose‟ means the breaking up or
clearing of any forest-land or portion thereof for ; the cultivation of tea, coffee,
spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants; or
any purpose other than reafforestation, but does not include any work relating or
ancillary to conservation, development and management of forests and wild-life,
namely, the establishment of check-posts, fire lines, wireless communications and
18 Forest (Conservation) Act, Section 2
196
construction of fencing, bridges and culverts, dams, waterholes, trench marks,
boundary marks, pipelines or other like purposes19
.
The Act provides that whoever contravenes or imprisonment for a period,
which may extend to fifteen days.20
A perusal of this section shows that the Act
contemplates only the punishment of simple imprisonment and it does not
contemplate any punishment in terms of fine.
The Act also provides that where any offence under this Act has been
committed21
by any department of Government, the head of the department or by
any authority, every person who, at the time the offence was Committed, was
directly in charge of, and was responsible to, the authority for the conduct of the
business of the authority as well as the authority, shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished accordingly.
However, the Head of the Department or any other person referred to above shall
not be liable to any punishment if he proves that; the offence was committed
without his knowledge; or he exercises all due diligence to prevent the
commission of such offence.
Where an offence under this Act has been committed by a Department of
Government or any authority referred to above and it is proved that the offence has
been committed with the consent or connivance of, or is attributable to any neglect
on the part of any officer other than the Head. of the Department, or in case of an
authority any person other than the persons referred to above, then such officer or
19 See explanation of section 2 of the Forest (Conservation) Act, 1980.
20 Section 3-A
21Section 3-B
197
person shall also be deemed to be guilty of that offence and shall be liable to be
proceeded against and punished accordingly.22
C. 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 States, was intended to provide a
comprehensive national legal framework for Wild Life protection. The Act adopts
a two pronged conservation strategy; Specified endangered species are protected
regardless of location, and all species are protected in specified areas. The Act has
been amended by amendment in 2002.23
The main objective of the Act is to provide protection to the wild animals,
birds and plants. The Act empowers the Central Government to declare certain
areas as Sanctuaries or National Parks. The object of the Wildlife Act has been
well explained by the Supreme Court 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
22 See, P. Leelakrishnan, Environment Law in India, 67 (2008); P. B. Sahasranaman, Handbook of
Environment Law, 222 (2009). 23
The Wildlife (Protection) Amendment Act, 2002 received the assent of the President on
January 17, 2003 and published in the Gazette of India, Extra., Part II, Section 1, dated 20th
January,1-21(2003), No. 17.
198
alarming rate, has been a great and urgent necessity for the survival of humanity
and these laws reflects….. a grave situation emerging from a long history of
callous insensitiveness to the enormity of the risk to mankind that go with the
deterioration of environment”.24
This Act has been enacted for the two main purposes: to provide for
protection of' wild animals, birds and plants and for matters connected there with
or ancillary or incidental there to and; to ensure the ecological .and environmental
security of the country.
For the purposes of this Act, the Central Government may appoint a Chief
Wild Life Warden and Such other officers and employees as may be necessary.25
Similarly, the State Government may appoint a Chief Wild Life Warden; Wild
Life Wardens; Honorary Wild Life Wardens; and such other officers and
employees as may be necessary.26
In the performance of their duties and exercise
of their powers under the Act, the Director shall be subject to the directions of
Central Government and Chief Wild Life Warden shall be subject to the directions
of the State Government, which may be given from time to time. The officers and
other employees are also required to assist the Director. The Director, with a
previous approval of the Central Government and the Chief Wild Life Warden
with a previous approval of the State Government, by order in writing delegate all
or any of their powers and duties under this Act to any other officer subordinate to
them and subject to such conditions which may be specified in the said order.27
24 State of Bihar v Murad Ali Khan, AIR 1989 SC 4.
25 Section 3
26 Section 4 vide Amendment Act, 2002.
27 Section 5 vide Amendment Act, 2002.
199
The Amendment Act28
of 2002 provides that the Central Government shall
constitute the National Board for Wild Life, with Prime Minister as Chairperson. It
shall be the duty of the National Board to promote the conservation and
development of wild life and forests by taking such measures as it thinks fit.29
Such measures may provide for framing policies and advising the Central
Government and the State Governments on the ways and means of promoting wild
life conservation and effectively controlling poaching and illegal trade of wildlife
and its products; making recommendations on the setting up of and management
of national parks, sanctuaries and other protected areas and on matters relating to
restriction of activities in those areas; carrying out or causing to be carried out
impact act assessment of various projects and activities on wild life or its habitat;
reviewing from time to time the progress in the field of wildlife conservation in
the country and suggesting measures for improvement thereto; and preparing and
publishing a status report at least once in two years on wild life in the country.
The State Government shall constitute a State Board for wild life with
Chief Minister of the State as the Chairperson; the Minister in charge of Forests
and Wild Life Vice- Chairperson; and other members as prescribed.30
The Board
shall meet at least twice a year and shall regulate its own procedure including
quorum. Any defect in the constitution of the Board or any irregularity in the
procedure of the Board shall not affect the merits of the case.31
Despite such clear provisions of the Act, many States in the country have
shown laxity in the enforcement of Wild Life Act. In the case of Centre for
28 Section 5-A
29 Section 5-C added by Amendment Act of 2002.
30 Section 6. This section was substituted by the Amendment Act of 2002.
31 Section 7.
200
Environmental Law, WWF v. Union of India,32
the Supreme Court directed the
States which had either, not constitute Wild Life Advisory Board or where the
term of the Board had expired, to constitute Boards within two months. The Court
also directed in this case that State Governments, which had failed to appoint Wild
Life Wardens, should appoint Wardens for all the areas within the State. It shall be
the duty of the Wild Life Advisory Board to advise the State Government in the
selection and management of areas to be declared as protected areas; in
formulation of the policy for protection and conservation of the wild life and
specified plants; in any matter relating to the amendment of any Schedule; in
relation to the measures to be taken for harmonizing the needs of the tribals and
other dwellers of the forest with the protection and conservation of wild life; and
in any other matter connected with the protection of wild life which may be
referred to it by the State Government.33
No person shall hunt any wild animal specified in Schedules I, II and III of
the Act. In the case of State of Bihar v. Murad Ali Baiq the Supreme Court held
that the elephant is included in Schedule I and hence hunting of elephants is
prohibited. However, if the Chief Wild Life Warden is satisfied that any wild
animal specified in Schedule I has become dangerous to human life; or is so
disabled; or diseased as to be beyond recovery; or any wild animal specified in
Schedules II, III or IV has become dangerous to human life or to property
including standing crops on any land; or is so disabled; or diseased as to be
beyond recovery; he may order in writing and stating the reasons permit person to
hunt such animals. It shall be lawful for the Chief Wild life Warden to grant
permission to hunt animals for the purposes of education, scientific research,
scientific management means, collection of specimen for recognized zoos or for
32 1997) (6) SCALE 8 (SP), See also A.I.R. 1999 S.C. 354; (1998) 9 SCC 623
33 Section 8
201
museums, derivation, collection or preparation of snake venom for the
manufacture of life saving drugs.34
The Act provides that every wild animal, other than vermin, which is
hunted with the permission of Wild Life Warden ;or kept or bred in captivity; or
hunted in contravention of any provision of this Act; or found dead or killed by
mistake, and animal article, trophy or uncured trophy.; or meat derived from any
wild animal ;or Ivory imported into India and any article made from such ivory, or
vehicle, vessel, weapon, trap or tool used for committing an offence under the
provisions of this act and which has been seized, shall be the property of the State
Government and where such animal is hunted in a Sanctuary or National Park
declared by the Central Government, it shall be the property of the Central
Government. Any person who obtains the possession of the Government property
by any means, he must inform the nearest police station within a period of forty-
eight hours of obtaining such possession. No person can acquire or keep in
possession, custody or control, or transfer to any person, whether by way of gift,
sale or otherwise, or destroy or damage such Government property without prior
permission of the Chief Wild Life Warden or the authorized officer. 35
In the case of B NatwaIl Vaid v. State of Tamil Nadu the Madras High
Court held that the wild animal, which are found dead in a private Land, the owner
of the land is entitled to claim the ownership of such dead animal. The body of the
wild animal becomes the absolute property of the owner of the soil even if killed
by a trespasser, unless the trespasser chased the animal on the land of one person
and killed it on the land of another. In the present case the forest authorities had
34 Section 12.
35 Section 39.
202
not chased the elephant but some unknown persons had shot it and it voluntarily
quit the reserved forest and entered the private land where it died.
No person shall except under a licence by the Chief wildlife warden or
other designated officer: commence or carry on the business as a manufacturer of
or dealer in, any animal article; or a taxidermist; or a dealer in trophy or uncured
trophy; or a dealer in captive animals; or a dealer in meat; or cook or serve meat
in any eating-house; derive, collect or prepare, or deal in, snake venom. However,
this shall not apply to the dealer in tail feathers of peacock and articles made
therefrom. Every person who intends to obtain a licence shall make an application
to the Chief Wild Life Warden or the authorized officer for the grant of a licence.
Every licence granted should specify conditions subject to which the licensee shall
carry on his business. Every licence granted shall be valid for one year from the
date of its grant and would be non-transferable. It can be renewed for a period not
exceeding one year at a time. No application for the renewal of a licence shall be
rejected without giving a reasonable opportunity of hearing to the concerned
person.36
The Chief Wild Life Warden or the authorized officer may, for reasons to
be recorded in writing, spend or cancel any licence granted or renewed under this
Act.37
An appeal from an order refusing to grant or renew a licence or an order
suspending or cancelling a licence shall lie to the Chief Wild Life Warden, if the
order is made by the authorized officer. And the second appeal shall lie to the
State Government; or to the State Government if the order is made by the Chief
36 Section 44
37 Section 45.
203
Wild Life Warden. And the order passed by the State Government shall be final.
An appeal shall be preferred within thirty days from the date of the
communication of the orders to the applicant. However, the appellate authority
may admit any appeal after the expiry of thirty days period if it is satisfied that the
appellant had sufficient cause for not filing an appeal in time.38
Transportation of
any wild animal, trophy, animal article, etc. (other than vermi) without a valid
license is also prohibited.39
The Act deals with penalties for contravening provisions of the Act40
. It
does not mention „mens rea‟ as one of the essential requirements for punishing a
person under the Act. It further provides in some cases maximum punishment,
which can be imposed and for other offences minimum as well as maximum
punishment has been provided.
Any person who contravenes any provision of this Act (except Chapter V-
A dealing with prohibition of trade or commerce in trophies, animal articles, etc.
derived from certain animals and section 38-J dealing with prohibition of teasing.
etc.. in a zoo) or any rule or order made there under or who commits a breach of
any of the conditions if any licence or permit granted under this Act, shall be
guilty of an offence against this Act, and shall, on conviction, be punishable with
imprisonment for a term which may extend to three years or with fine which may
extend to twenty- five thousand rupees or with both.
Provided that where the offence committed is in relation to any animal
specified in Schedule I or Part II of Schedule II or meat of any such animal or
animal article, trophy or uncured trophy derived from such animal or where the
38 Section 46.
39 Section 48- A.
40 Section 51.
204
offence relates to hunting in, a Sanctuary or a National Park or altering the
boundaries of a sanctuary or a National Park, such offence shall be punishable
with imprisonment for a term which shall not be less than three years but may
extend to seven years and also with fine which shall not be less than ten thousand
rupees.
Provided further that in the case of a second or subsequent offence of the
nature mentioned above, the term of imprisonment shall not be less than three
years but may extend to seven years and also with fine which shall not be less than
twenty five thousand rupees.
Any person who contravenes any provisions of Chapter V-A, (dealing with
prohibition of trade or commerce in trophies, animal articles, etc. derived from
certain animals), shall be punishable with imprisonment for a term which shall not
be less than three years but which may extend to seven years and also with fine
which shall not be less than ten thousand rupees.
Any person who contravenes the provisions of section 38-J, (dealing with
prohibition of teasing, etc., in a zoo) shall be punishable with imprisonment for a
term, which may extend to six months, or with fine, which may extend to two
thousand rupees, or with both. Provided that in the case of a second or subsequent
offence the term of imprisonment may extend to one year, or with fine which may
extend to five thousand rupees.
In addition to the above the animal, animal article, trophy or meat etc. and
the tool. Trap, vehicle, vessel or weapon used in the commission of the offence
shall be forfeited by the State Government; and licence or permit for hunting. etc.
and Arms Licence shall also be cancelled.
Further, Section 360 of the Code of Criminal Procedure, 1973 or the
probation of Offenders Act. 1958 shall not be made applicable to a person
205
convicted in respect of hunting in a Sanctuary or National Park unless such a
person is less than eighteen years of age.
In PyarelaI v. State (Delhi Admn.) 41
the accused was convicted for possession
of lion shaped trophies of Chinkara skins. meant for sale without licence. But there
was no evidence whatsoever as to when the accused came into possession of these
trophies. The Court held that in these circumstances proviso to section 51 of the
Act providing minimum sentence of six months is not attracted and thus the
accused was sentenced to two months imprisonment.
The Wildlife (Protection) Act, 2006 came into effect from September 4 of
2006, with the following features:42
1. The duration and value of the sentences for disturbing the tiger reserves
have been enhanced. Hence, the penalty for an offence relating to the core
area of a tiger reserve, in case of first conviction, the imprisonment for not
less than three years extended up to seven years. The imprisonment may be
along with that may extend from Rs. 50,000 to Rs. 2 lakh. Similarly, the
punishment at second subsequent conviction level has been increased to
imprisonment upto seven years along with fine that would be something
between Rs 5 lakh to 50 lakh.
2. The National Tiger Conservation Authority (NTCA) and the Wildlife
Crime Control Bureau are to be constituted within six months from the date
of commencement of the Act. These machineries are empowered to
investigate and check the poachers and other persons who interfere with
41 A.I.R 1995 S.C. 1159
42 http://envfor.nic.in/legis/wildlife
206
tiger and its natural habitat. The authorities are to work in coordination with
local law enforcement authorities and prosecute the criminals. In this regard
the Bureau is empowered to set up and gather intelligence information
relating to wildlife crime in assosication with the State Governments, and
develop scientific and professional investigation mechanism to check
wildlife crimes so that the prosecution of wildlife crime becomes easier.
Major functions of the National Tiger Conservation Authority would be
approving tiger conservation plans prepared by respective states; laying
down normative standards for tiger conservation; and providing
information about protection, census, patrolling and other activities.
The NTCA constituted under the Act is to be headed by the Minister of
Environment and Forests, whereas the minister of state will be the Vice-
Chairperson for a tenure of three years. The office of the Chairman is to be
supported by a team of 24 members body, out of which 18 members are to
represent various ministries and eight to be non-official experts. The main
Objectives of the Act ate to facilitate implementation of the recommendations of
the Tiger Task Force; to strengthen conservation of tigers and other endangered
species by consulting the Wildlife Crime Control Bureau; and to strengthen all the
ongoing initiatives and projects of tiger conservation.43
43 Lakshmi Lella, “Who Needs Protection: Tiger or Tribal?”The ICFAI Journal of
Environmental Law, volvi,no 4, 22(2007).
207
D. The Biological Diversity Act, 2002
The primary aim of the Act is to provide for Conservation of Biological
Diversity, sustainable use of its components and fair and equitable sharing of the
benefits arising out of the use of biological resources, knowledge and for matters,
connected therewith or incidental thereto.44
Moreover, India is a party to the UN
Convention on Biological Diversity signed at Rio de Janeiro on June, 1992.45
The
Act consists of 65 sections and is divided into twelve chapters. It is applicable to
whole of India. The Act aims to regulate the access to Biological diversity under
Sections 3 to 7. To achieve its aim the following prohibitions have been imposed:
No person (Citizen of India, NRI and body Corporate) shall undertake Bio
diversity related activities without the approval of the National Authority.46
No person shall transfer to a foreigner/NRI/body corporate not registered in
India, any result of any research relating to any biological resources.47
Application for intellectual property rights not to be made without the
approval of the National Biodiversity Authority inside India or outside
India.48
Prior intimation must be given to the State Biodiversity Board for obtaining
biological resource for commercial utilization.49
44 Act No.18 of 2003; online: http://www.envfro.nic.in.
45 CBD has come into force on Dec. 29, 1993
46 Section 3 , The Biological Diversity Act, 2002
47 Section 4
48 Section 6
49 Section 7
208
The Act has constituted a „National Biodiversity Authority‟ at the Centre
with its head office at Chennai, consisting of fifteen members and one Chairman
who shall be an eminent person in the' field of conservation and sustainable use of
Biological diversity.50
The National Bio- diversity Authority is authorized to
constitute other committee to deal with agro-biodiversity and other committees for
the efficient discharge of its duties.
The Board shall advise the Central Government in matters relating to
conservation of biodiversity, its sustainable use and equitable sharing of benefits.
It shall also advise the State Governments in the selection of areas of Bio-diversity
importance. It is also authorized to take any measures necessary to oppose the
grant of intellectual property rights in any country outside India.51
Prior approval
of the National Biodiversity Authority is necessary; to obtain any biological
resource occurring in India; to apply for patent or intellectual property protection
whether in India or outside India.
The Board has authority to approve or reject the application for such approval
after giving the applicant an opportunity of being heard. The National Biological
Authority shall give public notice of every approval granted by it.52
The State Government may also establish „State Biodiversity Boards‟
which shall be body corporate. The function of the State Boards shall be to; advise
the State Government on matters relating to the conservation of biodiversity,
sustainable use, and equitable sharing of benefits arising out of the utilization of
biological resources; regulate by granting of approvals or requests for commercial
50 Section 8
51 Section 18
52 Section 19
209
utilization or bio-survey and bio-utilization of any biological resources by Indians;
other necessary functions to carry out the provisions of the Act.53
Further, one has to seek prior approval of the State Board to obtain
Biological resources for commercial utilization after giving prior intimation. The
Board after making such enquires as it feels necessary, may approve, or, by order,
prohibit or restrict any such activity if it is detrimental or contrary to the objects of
conservation and sustainable use of biodiversity, etc., after giving the applicant an
opportunity of being heard.54
The State Governments are also authorized to notify the areas of
Biodiversity importance as biodiversity heritage site. State Governments shall also
frame schemes for compensating or rehabilitating any person or section of people
economically affected by the declaration.55
Every local body shall constitute a 'Biodiversity Management Committee'
within its area for the purpose of conservation, sustainable use and documentation
of biological diversity including preservation of habitat, conservation of landraces,
folk varieties and cultivators, domesticated stocks and breeds of animals and
micro-organism and chronicling of knowledge relating to biodiversity.56
The State
Government shall also provide local biodiversity funds
The duties of the Central Government shall be to develop national
strategies, plans, programs for sustainable use biological diversity, etc. The
Central Government shall also issue directions to the State Government to take
53 Section 23
54 Section 24
55 Section 37
56 Section 41
210
immediate measures to ameliorate the situation if any area rich in biological
diversity or resource and its habitat are being threatened by overuse, abuse or
neglect.57
It shall also undertake measures for assessment of environment impact
of the project which is likely to have adverse effect, and also, where appropriate,
provide public participation in such assessment. The Act also provides that the
Central Government shall also endeavor to respect and protect the knowledge of
local people relating to biological diversity as recommended by the National
Biodiversity Board. including the registration of such knowledge at local level.58
The Central Government is also empowered to notify any species which is on the
verge of extinction or likely to become extinct in the near future or regulate
collection thereof for any purpose and necessary steps to rehabilitate and preserve
these species.59
The Central Government may, in consultation with the National
Biodiversity Board, designate institutions as repository for different categories of
biological resources. Such repository shall keep in safe custody the biological
material including voucher specimens.60
The Biological Diversity Act also provides for penalties. According to the
present Act, whoever contravenes or attempts to contravene or abets the
contravention of Section 3 (to obtain biological resources with the permission of
the National Board), Section 4 (results of research not to be transferred to a
foreigner or NRI without the permission of the National Board), Section 6
(application of intellectual property right not be made without the approval of the
National Board) shall be punished with imprisonment which may extend to five
57 Section 36
58 Section 36(5)
59 Section 38.
60 Section 39.
211
years, or with fine up to ten lakh rupees, and where the damage caused exceeds ten
lakh rupees such fine-may commensurate with damage caused, or with both.
If a person obtains biological resources for commercial purpose without the
permission of the State Biodiversity Board, he will be punishable with
imprisonment which may extend to three year, or with fine up to five lakh rupees,
or with both.61
If any of the offences is committed by a company, or with the consent or
connivance of or is attributable to any neglect on the part of any manager,
secretary or other officer, they will be deemed guilty and punished as per
provisions mentioned above.62
The provisions of this Act shall be in addition to, and not in derogation of,
the provisions in any other Law, for time in force, relating to forests and wildlife.63
No court shall take cognizance of any offence under this Act except on complaint
made by the Central Government or any authority or officer authorized in this
behalf by the Government, or any benefit claimer who has given notice of not less
than thirty days in the prescribed manner of such offence and of intention to make
complaint, to the Central Government or the Authority or officer authorized as a
foresaid.64
61 Section 55.
62 Section 56.
63 Section 59
64 Section 61
212
E. The Scheduled Tribes and Other Forest Dwellers (Recognition of
Forest Rights) Act, 2006
After acrimonious public debate for more than a year since tabling in the
parliament on 13 December 2005, the Scheduled Tribes (Recognition of Forest
Rights) Bill, 2005 which was re-christened as “The Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was passed
in the parliament on 13 December 2006.
The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 faced
stiff opposition from two quarters. Few environmentalists advocate management
of forest, wildlife and other bio-diversity with complete exclusion of tribal people,
local communities or forest dwellers contrary to the Rio Declaration, decisions of
the Conference of Parties of the Convention on Biological Diversity and
recommendations of the United Nations Forum on Forest. The poaching of the
tigers in the Sariska sanctuary provided much needed excuse. Second, the Ministry
of Environment and Forest had opposed the Bill on the ground that
implementation of the bill will result in the depletion of the country's forest cover
by 16 per cent. This is despite the fact that over 60 percent of the country's forest
cover is found in 187 tribal districts where less than 8 percent of national
population lives. This reflects the culture of the tribal peoples to conserve forest.
On the other hand, the Ministry of Environment and Forest has diverted 73percent
(9.81 lakh hectares of forestland) of the total encroached areas for non-forest
activities such as industrial and development projects.65
65 Report of the National Consultation on the Draft Forest Rights Bill, 2005.AITPN,oct, 2005,
onlinaw http:/www.envnfor.nic.in; See, P. Leelakrishnan, Environment Law in India, (2008); and
P. B. Sahasranaman, Handbook of Environment Law, (2009).
213
The Forest (Rights) Act, 2006 consists of various Provisions. One of the
Provisions of the Act states, “Where the forest rights recognized and vested by
sub-section (1) are in respect of land mentioned in clause (a) of subsection (1) of
section 3 such land shall be under the occupation of an individual or family or
community on the date of commencement of this Act and shall be restricted to the
area under actual occupation and shall in no case exceed an area of four
hectares.”66
This provision hardly benefits the Scheduled Tribes. Rather than
empowering, this law seeks to dispossess the forest dwelling Scheduled Tribes of
their ancestral lands that they have in possession in excess of 4 hectares as
provided in Sub-section (6) of Section 4. Nor the Act provides for compensation to
those who will be forced to share their lands in excess of 4 hectares.
A large number of forests‟ dwelling Scheduled Tribes would have to
mandatorily part with large chunks of ancestral lands that they have been actually
occupying before the enactment of this Act. The provision is also inapplicable in
the northeast India. One of the most important rights in the Act is the right to
protect traditional forests.67
Under this right, whatever the Forest Department
might say, the community can “protect, regenerate, or conserve or manage” any
“community forest resource” and is also empowered to protect trees, biodiversity,
wildlife, water sources etc. in any forest . As soon as the Act came into force, this
right became a power of communities under section 5 of the Act.
This is the most powerful right under this Act. The community has the
following rights over community forest resources to protect and/or conserve them;
to manage them; to regenerate them (e.g. through planting of native
trees/shrubs/grasses or through natural regeneration); to sustainably use these
66 Sec 4(6) of The Forest (Rights)ct, 2006.
67 Sec 3(i) and 5 of the Act.
214
resources. In particular, the functions of the gram sabha (or any other village
institution, or even individual forest rights holders) are to protect wildlife, forest
and biodiversity; 68
protect adjoining water sources and “catchment areas”;69
protect
the habitat and “cultural and natural heritage” (e.g. sacred groves, religious sites,
mountains, water bodies etc) of their community from destruction;70
and finally,
the gram sabha can make rules for regulating access and protecting wild life,
forests or biodiversity of community forest resources, and it (or any forest rights
holder) has the power to ensure that these decisions are followed.71
This means
that, for the first time, whatever the Forest Department or government or forest
mafia may decide, a community can enforce its decisions and protect its forests.
The Act also provides certain rights under different sections like any land
claimed by an individual or a community under any part of this Act should have
been under their occupation since before December 13th, 2005, and should still be
in their possession at the time of making the claim.72
Forest dwellers can claim
rights over minor forest produce under the Act. Minor forest produce includes
“bamboo, brush wood, stumps, cane, tussar, cocoons, honey, wax, lac, tendu or
kendu leaves, medicinal plants and herbs, roots, tubers” and so on.73
The right to
minor forest produce includes those minor forest produce that have been
“traditionally collected” from within or outside village boundaries.74
Fish and
other produce of water bodies are covered under a separate right. These rights
68 Sec 5(a).
69 Sec 5(b).
70 Sec 5(c).
71 Sec 5(d).
72 Sec 4(3).
73 Sec 2(i).
74 Sec 3(1) (c & d).
215
should normally be claimed by the community as a whole or by a sub-group
within the community. In case the community as a whole is claiming, Rule 11(4)
requires that the Forest Rights Committee itself make the application for the right,
which is then passed by a resolution to the gram sabha. The Committee should
draw up this application during a meeting of the gram sabha. The resolution
should list the types of MFP collected and the areas from which they are collected.
Under the Act, “primitive tribal groups” (such as the Juangs, the Chenchus, the
Baigas etc.) and “pre agricultural communities” (such as shifting cultivators and
hunter/gatherers) have the right to “habitat and habitation.”75
This is a community
right, so the application for it should either be prepared by the Forest Rights
Committee (in case the village itself is claiming the right) or by a representative
body of the PTG / pre agricultural community concerned.
The application would include a map of the area being claimed as the habitat of
the community. Any unrecorded settlements or forest village on forest land has the
right to be converted into a revenue village.76
This is a community right, so the
Forest Rights Committee should prepare the application for this right, preferably
during a meeting of the gram sabha; the gram sabha of the village must pass a
resolution stating that this village must be converted into a revenue village. The
Forest Rights Act also provides for rights to in situ rehabilitation and alternative
land in case of illegal eviction or forced displacement.77
Section 3(1)(l) of the Act
provides that “any other traditional right” of forest dwelling communities can be
claimed as a right under the Act, excluding hunting. This section can be used to
claim rights such as shifting cultivation, both individual and collective; customary
individual or community claims over territory; right to use religious sites / burial
75 Sec 3(1) (e).
76 Sec 3 (1) (h).
77 Sec 3 (1) (m) and Sec 4 (8).
216
sites; right to collect timber for housing or types of produce not covered under
minor forest produce, etc. Each gram sabha is to elect a ten to fifteen member
Forest Rights Committee having duties ; receiving claims from people; for this,
the Forest Rights Committee is responsible for making out the application, which
has to be passed by the gram sabha as a resolution after modification if necessary.
Along with each claim, the person claiming the right attaches the evidence they
are submitting. The Committee can receive additional evidence from the claimant
or other witnesses. The Forest Rights Committee can also ask for additional help /
assistance from government officials, who are required to provide that help. On
any written request from the Committee, the government must provide documents
and explain them to the committee members. Also, whether the Committee asks
for it or not, the Sub-Divisional Level Committee has to provide forest and
revenue maps as well as voter lists of the area. The Committee can then decide
whether the claim is correct or not. Finally, the list and the maps prepared by the
committee will be presented before the full gram sabha. If the gram sabha agrees,
it will pass a resolution endorsing the list and the maps made by the Forest Rights
Committee. If it does not agree, it can make changes it feels appropriate and pass a
resolution recommending the modified list and maps. During these proceedings,
the secretary of the panchayat serves as the secretary of the gram sabha. In case of
smaller gram sabhas, the secretary should be summoned to the meetings of these
gram sabhas.78
If any claimant is not satisfied with the gram sabha‟s decision,
he/she can appeal to the Sub-Divisional Level Committee, 79
consisting of Sub
Divisional Officer, who is the Chairperson; Forest Officer in charge of a sub-
division; tribal Welfare Official at the sub-divisional level, or the official who
looks after that subject; representative of Block/Taluka Panchayat nominated by
78 Rule 11(6) of the Act.
79 Sec 6 (2).
217
the Zilla Parishad; representative of Block/Taluka Panchayat nominated by the
Zilla Parishad; representative of Block/Taluka Panchayat nominated by the Zilla
Parishad. Of the last three, two should be Scheduled Tribes and at least one should
be a woman. This Committee is supposed to put together the resolutions of
different gram sabha in its jurisdiction and reconcile them with the government
records; hear appeals made to it against gram sabha decisions and examine the
resolutions of the gram sabha, and then settle dispute between two gram sabhas. If
a claimant is not satisfied with the Sub-Divisional Level Committee‟s decision on
their appeal, he/she can appeal to the District Level Committee. However, he/she
cannot appeal directly to the District Level Committee after the gram sabha‟s
decision – they must appeal to the Sub-Divisional Level Committee first. The
committee consists of80
; District Collector or Deputy Commissioner, who is the
Chairperson; Divisional Forest Officer or Deputy Conservator of Forests; Official
in charge of tribal welfare at the district level; Representative chosen by Zilla
Parishad; Representative chosen by Zilla Parishad; Representative chosen by Zilla
Parishad. Of the last three, two should be ST‟s and at least one should be a
woman. The Committee takes the decisions made by the Sub-Divisional Level
Committees and “Considers and finally approves” them.81
This Committee may
change decisions of the gram sabhas (or the Sub-Divisional Level Committees) on
its own; hear appeals against orders of the Sub-Divisional Level Committee and
Settle disputes between Sub-Divisional Level Committees in the same manner that
disputes between gram sabhas are settled.
After this, the District Level Committee issues directions to the government
officials to make the necessary changes in the revenue and forest records. The Act
contains some special provisions for protected areas. The Act provides protection
80 Sec 6(8).
81 Sec 6 (6).
218
against forcible relocation of people living in protected areas. Notwithstanding the
claims by the government and the press, forest dwellers cannot be forced to move
out of even tiger reserves in the name of wildlife conservation except with the
free, informed consent of the gram sabha.82
The Act has not taken into account the fact that hundreds of forest dwelling
scheduled tribes face charges under different provisions of the draconian Forest
Conservation Act of 1980 for accessing minor produce. Although the Act ensures
tenurial security and legitimizes the scheduled tribes' ownership over the minor
forest produce and their role in the conservation of forest, it failed to address
charges/prosecution pending against the tribals under the Forest (Conservation)
Act of 1980 and Indian Forest Act of 1927 with retrospective effect.83
There is no
provision in the Forest Rights Act, 2006 providing that cases under the Forest
Conservation Act of 1980 against the forest dwelling scheduled tribes for
accessing minor forest produce would be dropped or closed.84
No doubt, the initiatives taken by the Central Government in safeguarding
the interests of the tribal and other local communities living in the area definitely
are praiseworthy. The Act gives more protection to the people living in forests,
and guarantees the forest-dwellers right to sell or occupy forest land, to the extent
that they can even set up hotels in reserves and parks. However conservationists of
wildlife allege that the major blow to the Wildlife (Protection) Amendment Act,
82 Sec 4 (2) (e).
83 R.B. Singh, Environmental Change and Biodiversity, 193(2009).
84 Report presented by AITPN (Asian Indigenous Tribal People Network) in a paper, “India‟s
Forest Right‟s Act: Illusion or solution?”(2006).
219
2006 has come from the Forest Rights Act, 2006, as its main objective is to
safeguard the interests of forests dwellers and not to safeguard the wildlife.85
F. Environment (Protection) Act, 1986
The Environment (Protection) Act, 1986 (hereinafter, EPA) was enacted
under Article 253 of the Constitution which empowers the Parliament to make any
law for the whole or any part of the territory of India for implementing any treaty,
agreement or convention or any decision made at any international conference,
association or other body.86
The purpose of EPA is to implement the decisions of
the United Nations Conference on the Human Environment, 1972 (Stockholm
Conference) in so far as they relate to the protection and improvement of the
human environment and the prevention of hazards to human beings, other living
creatures, plants and property. The statement of objects and reasons for the
enactment of this law amply demonstrates the anxiety of legislature to take
immediate action post Bhopal Gas Tragedy to prevent environmental harm and
protect the environment.
The EPA is a general and comprehensive legislation designed to provide a
framework for Central Government co-ordination of the activities of various
Central and State authorities established under previous laws such as Water and
Air Act. It is also an „enabling law‟, which articulates the essential legislative
policy on environment protection and delegates wide powers to the executive to
enable bureaucrats to frame necessary rules and regulations. Since the time it
85 Supra note 83 at 194.
86 See, Article 253,Constitution of India
220
entered the statute book, the Act has served to back a vast body of subordinate
environmental legislation in India.87
Some of the significant definitions under the EPA are as follows:
„Environment‟ includes water, air and land and the interrelationship, which
exists among and between water, air and land, and human beings, other living
creatures, plants microorganisms and property.88
„Environmental Pollutant‟ means
any solid, liquid or gaseous substance present in such concentration as may be, or
tend to be, injurious to environment.89
The mass of subordinate legislation framed under the EPA by the Ministry
of Environment and Forests falls under four broad categories: pollution control;
hazardous substance regulation, environment impact assessment; and the
protection of the coast and other ecologically fragile areas.90
The Act provides fairly severe penalties. Any person who fails to comply
with or contravenes any of the provisions of the Act, or the rules, orders, or
directions issued under the Act shall be punished, for each failure or
contravention, with a prison term of up to five years or a fine of up to Rs. 1 lakh or
both. The Act imposes an additional fine of upto Rs. 5000 for every day of
continuing violation.91
If the failure or contravention occurs for more than one
87 See generally, Shyam Divans and Armin Roscencranj, Environmental Law and Policy in India,
66 (2001); P. Leelakrishnan, Environment Law in India, 197 (2008); See also, P.B. Sahasranman,
Handbook of Environmental Law, 17(2009); Gurdip Singh, Environmental Law in India,
124(2005); D.S. Sengar, Environmental Law, 43(2007).
88 Environment (Protection) Act, 1986, Section 2(a).
89 Ibid, Section 2 (b).
90 See, Environmental (Protection) Rules, 1986.
91 Environment (Protection) Act, 1986, Section 15.
221
year after the date of conviction an offender may be punished a person term which
extend to seven years.92
Though the EPA is umbrella legislation, it still needs revamping and
thoughtful review in the light of newer problems, diseases, indirect adverse result
of pollutants, exponential growth of population, escalating poverty and
urbanization. For example, presence or absence of any particular organism in such
numbers as to destroy the eco-system or food-cycle is pollution. In these days of
genetic engineering, this can assume unexpected dimensions. EPA needs to take
these things also in to account.
4. Judicial Activism and Biodiversity Conservation
Like any other developing country, in India, there has been environmental
degradation due to over exploitation of resources, depletion of traditional
resources, industrialization, and urbanization and population explosion.
However, India has never been oblivious of this fact. Being acutely concerned
with the growing biodiversity degradation in the country and aware of
International developments in the field of the environmental law, the Indian
Judiciary has made significant contribution to the development of
environmental jurisprudence by resorting to international conventions and
agreement. The Indian judiciary many a times has taken recourse to the
principles regarding environmental protection to overcome administrative
indifferences and fix the lacunae in the existing legislation. The judiciary has
also sought the help of international laws and principles to reinforce strength
and widen the jurisprudence of environmentalism in India. Judiciary in India,
more precisely, the Supreme Court and the High courts has played a very
92 Ibid.
222
important role in the protection of environment and conservation of
biodiversity. Parliament has enacted various laws to deal with the problems of
biodiversity degradation. In such a situation, the superior courts have played a
pivotal role in interpreting the laws related to conservation of biodiversity.
There are numbers of cases on this point which is evident from the analysis of
some of the leading cases.
Also, one of the most important parts of the Indian Constitution is that
enforcement of the fundamental rights through writs and public interest
litigations. The growth of concept of environment protection and conservation
of biodiversity in India has been largely influenced and accelerated by Public
Interest litigation (PIL). PIL is a proceeding in which individual or social
groups seek relief in the interest of the general public and not for its own
purpose. It has generated tremendous awakening amongst people about
environment protection and biodiversity conservation, has ushered in the
evolution of innovative judicial techniques to arrest biodiversity degradation
and has transformed the jurisprudence of public law review. In a public interest
case, the subject matter of litigation is typically a grievance against the
violation of basic human rights, of the poor and helpless or about the contents
or conduct of government policy, where the petitioner seeks to champion a
public cause or the benefit of the entire society and the judge plays an activist
role in contrast to the passive umpire-ship traditionally associated with judicial
function.93
Public interest litigation represents an effective legal strategy to promote
biodiversity conservation. Public Interest litigation would ensure „interest
93 Abram Chayer, “The Role of the Judge in Public Law Litigation” 89. Harv. L. Rev
1281(1976)
223
representation‟ and „people‟ participation‟ for safeguarding the people‟s
resource i.e., forests, rivers, species etc, for example, when forests are
denuded, the court will not hear the forest officials who generally act in
collusion with vandals, but also tribal people who depend on forest resource
and other public-spirited citizens. Similarly, when protected species are shot at,
it is pointless to hear only the wardens, who may be conspiring with the
poachers. In other words PIL signifies broad-basing of nature and scope of
judicial process, which acquires a new dimensions of „enforcement‟
encompassing „right mobilisation‟ without which the rights and interests of
poor, illiterate and really concerned people would become sterile. The
relaxation to the classical doctrine of standing can be grouped as under:-
Representative standing -- which permits the poor and oppressed to be
represented by volunteers because of formers ignorance, poverty or
helplessness.94
Citizens standing -- which permits concerned citizens to sue not as a
representative of others but in his or her own right as a member of citizenry to
whom a public duty is owned. This relaxed standing is generally allowed in
cases of executive excesses, abuses and inaction, which may, for example,
harm the biodiversity.95
Most of the litigations on environment protection and conservation of
biodiversity are in the nature of PIL. It arises from a strong commitment to
fulfill a sense of urgency in preventing biodiversity degradation. PIL signifies
an innovative technique to represent people‟s initiatives in arresting
94 Cunningham, “Public Interest Litigation in Indian Supreme Court: A Study in the light of
American Express” 29 JILI 498
95 Id at 500
224
biodiversity degradation, a public interest most universal and common. The
awareness coupled with enthusiastic response from the common people
regarding conservation of biodiversity has assumed the dimension of a
movement, which will go a long way in promoting and sustaining popular
support for conservation of biodiversity. Biodiversity degradation will
invariably be caused due to lack of enforcement of public duty or non-redressal
of public inquiry. In order to redress such public duty preventing the
degradation of biodiversity, the law will have to devise a mechanism to protect
social, collective or „diffuse‟ rights and interest. PIL offers such mechanism.95
through which the fundamental rights contained in the constitution and some of
the enforceable obligations forming part of the directive principles of State
policy, have been creatively, imaginatively and expansively interpreted as
sanctuary of quintessential human values. Non implementation, non-
compliance and non enforcement will lead to deprivations, disadvantages and
public injury which must be redressed. To illustrate, maintenance of ecological
balance and protection of interests of tribals residing in or near by a national
park was held to be a public interest. Thus the legality of impugned grant of
lease-hold rights to some private individuals of certain properties situated in
Nagarhole National Park was successfully assailed as the grant of lease-hold
rights was in flagrant violation of Wildlife (Protection) Act, 1972 and Forest
(Conservation) Act, 1980.96
Thus, people‟s aspirations and assertiveness
spurred by judicial activism have moulded the policies regarding the
conservation of biodiversity into a dynamic and vibrant system of
jurisprudence of socio-economic interests transformed into legal rights.
95 S. P. Gupta v. President of India. AIR 1982 SC 214 – 15
96 Nagarhole Budakhattu Hakku Sthapna Samithi V State AIR 1997 Kar. 288
225
Enforcement machinery for Laws relating to conservation of biodiversity
has been inadequately equipped, because for quite some time it has been
primarily the Government‟s domain to enforce laws. Citizen‟s participation has
been absent with the result that there have been Problems about detection of
violations, supervision, monitoring and enforcement of laws. The emergence of
PIL has demonstrated that judicial process has been galvanized to evolve more
efficacious strategies to strengthen enforcement and control measures. The
main objective has been to broad-base the legal system Coinciding with the
same resurgence, certain more techniques have been developed, Citizen‟s suit
is one of such techniques. Environment (Protection) Act, 1986 brought about a
change: Section 19 of the Act provides that a citizen may prosecute an offender
by a complaint to a magistrate Prior to making a complaint, however, he or she
must give the Government 60 days notice of his/her intention to complain. This
notice, which is on the lines of code of Civil Procedure, is intended to alter the
Government to the offences so that it may itself take appropriate remedial
action.97
Public participation in matters relating to conservation of biodiversity
decision-making can be meaningful and effective only if people have a right to
know. This is imperative in environment matters because, for example,
government decisions to site dams and large projects may displace thousands
of people and deprive them of their life styles and livelihood. Right to know
strengthens participatory democracy also as armed with information on
Government programmes, citizens may influence decision – making through
representations, lobbying and public debate. Public assess to government
information enables citizens to exercise their political options purposefully.
97 Sec. 19(b), Environment Protection Act 1986
226
The Right to know is a basic democratic right. The Supreme Court has derived
this right from two Articles of Constitution – The Fundamental right to
freedom of speech and expression granted in Article 19(1)(a) and the
fundamental right to life and personal liberty enshrined in Article 21.
Fortunately in India, the people‟s response to ecological crises have been
very positive. The glaring examples of Public participation in Biodiversity
Conservation in India are: Chipko Movement and Narmada Bachao
Andolen
Chipko Movement 98
The forests of India are critical resource for the subsistence of rural peoples
throughout the country, but especially in hill and mountain areas, both because
of their direct provision of food, fuel, fodder and because of their role in
stabilizing soil and water resources. In the 1970‟s and 1980‟s the resistance to
the destruction of forests spread throughout India and became organized and
known as „Chipko Mmovement‟. The first Chipko action took place
spontaneously in April 1973 and over the next five years spread to many
districts of the Himalaya in Uttar Pradesh. The name of the movement comes
from a word meaning „embrace‟ the villagers hug the trees, saving them by
interposing their bodies between them and „the contractors‟ axes. The Chipko
movement protests in Uttar Pradesh achieved a major victory in 1980 with a 15
years ban on green felling in the Himalayan forests of that State by order of
India‟s the then Prime Minister, Indira Gandhi. The Chipko movement is the
result of hundreds of decentralized and locally autonomous initiatives. Its
leaders and activists are primarily village women who were illiterate, acting to
98 Thomas Weber, Thomas: Hugging the Trees, Mainstream, 2008.
227
save their means of subsistence and their communities. Men are involved too.
However, some of these have given wider leadership to the movement.
Prominent Chipko activists includes Sunderlal Bahuguna, a Gandhian activist
whose appeal to Mrs Gandhi results in the green felling ban and whose 5,000
kms trans-Himalaya foot-marked in 1981-83 was crucial in spreading the
Chipko message. Bahuguna coined the Chipko Slogan, „Ecology is Permanent
Economy.‟
Narmada Bachao Andolan99
The Narmada Bachao Andolan (NBA) is a people‟s movement formed from
local people‟s movements in Madhya Pradesh, Maharashtra and Gujarat. Through
peaceful means, the NBA has brought much media attention to the plight of the
native people along the river. Medha Patkar is a prominent leader of the group.
With activist Medha Patkar to lead them, the Narmada Bachao Andolen began
mobilizing massive marches, rallies against the Narmada Valley Development
Project and especially the largest, the Sardar Sarover, in 1985. Although the
protests were peaceful, Patkar and others were often beaten and arrested by Police.
Following the formation of NBA – a non-governmental organization in 1986,
50,000 people gathered in the valley from all over India to pledge to fight
“Destructive Development” in 1989. The aims of NBA are to educate those
directly affected by large development projects, such as tribals, on the social and
environmental impact of such projects; to protest against the construction of dams
99 “India: Peaceful Demonstrations Against the Narmada Dam Project Arrested, Beaten and
Intimidated by Police”. The Sierra Club: Human Rights Campaign. (1999)
228
in the Narmada Valley in general, struggling towards a right to information and
new environmentally sustainable water policy.
The NBA activists mainly educate, mobilize and organize residents of the
Narmada Valley on human rights and justice, alternative policies biodiversity
issues related to big dams in general and the Narmada Project in Particular. They
undertake surveys of the affected villages, protest against land and forest issues
and Government interference in this regard. They are fighting against
displacement and disregard of the rights of the people.
As aforesaid, the judiciary in India has shown deep concern for the
conservation of biodiversity. The Judiciary has not only played a pivotal role in a
manner to interpret the forest laws to protect the forest and environment but also it
has shown judicial activism by entertaining public interest litigations under articles
32 and 226 of the Constitution. The Supreme Court and High Courts while
protecting biodiversity have delivered many important judgments.
R.L. & E. Kendra, Dehradun v. State of U.P.100
(popularly known as
DoonValley Case) was the first case of its kind in the country involving issues
relating to environment and ecological balance, which brought into sharp focus the
conflict between development and conservation and the Court emphasized the
need for reconciling the two in the larger interest of the country. This case arose
from haphazard and dangerous limestone quarrying practices in the Mussoorie Hill
Range of Himalayas. The mines in the Doon Valley area denuded the Mussoorie
Hills of trees and forest cover and accelerated soil erosion. The Supreme Court
was cautious in its approach when it pointed that it is for the Government and the
Nation and not for the court, to decide whether the deposits should be exploited at
100 A.I.R. 1985 S.C. 652
229
the cost of ecology and environment or the industrial requirements should be
otherwise satisfied. But the concern of the Court for protecting the forest and
maintaining the ecological balance in the Doon Valley was evident when it
observed:
“We are not oblivious of the fact that natural resources have got to be tapped
for the purposes of the social development but one cannot forget at the same time
that tapping of resources have to be done with requisite attention and care so that
ecology and environment may not be affected in any serious way, there may not
be depletion of water resources and long term planning must be undertaken to
keep up the national wealth. It has always to be remembered that these are
permanent assets of mankind and are not intended to be exhausted in one
generation.”101
In Tarun Bharat Sangh v. Union of India, the state Government of Rajasthan,
though professing to protect the biodiversity by means of the notification and
declarations, was itself permitting the degradation of the biodiversity by
authorizing mining operations in the area declared as „reserve forest‟. In order to
protect the environment- and wildlife within the protected area, the Supreme Court
issued directions that no mining operation of whatever nature shall be carried on
within the protected area.
In T.N. Godavarman Thirumulkpad v Union of India,102
(popularly known as
Forest Conservation case), the Supreme Court Issued interim directions that all
the on-going activities within any forest in any State throughout the country
without the permission of the Central Government must be stopped forthwith.
101 Id at 364
102 (1997) 2 SCC 267; See also T.N.Godavarman Thirumulkpad v UOI (2006) SCC 413.
230
Running of saw mills including veneer or plywood mills within the forests was
also stopped. Felling of trees in the State of Arunachal Pradesh was totally banned
in certain forests whereas in other forests it was suspended in accordance with the
working plan of the State Government. Movement of cut trees and timber from
any of the seven North-Eastern States to any other State was completely banned.
The Court issued directions to stop felling of trees in other States such as the State
of J&K, Himachal Pradesh and Tamil Nadu, with a view to protect and preserve
the forests. The Supreme Court modified some of these directions subsequently.
The Court called for the comprehensive statement of all the States about their past
activity and their future program to tackle the problem of degradation and
degeneration of forests.103
The Court has also pointed out that industrial requirements had to be
subordinated to the maintenance of environment and ecology as well as bonafide
local needs. The Court has also stressed on the scientific management of the
forests. It has directed the States to identify ecologically sensitive areas, which are
totally excluded from any kind of exploitation. The minimum extent of such area
should be 10 per cent of the total forest area in the State.The State Governments
had been directed to identify all those forest divisions where illegal felling had
taken place and to initiate disciplinary/criminal proceedings against those found
responsible.104
It was brought to the notice of Supreme Court in T.N. Godavarman
Thirumulkpad v. Union of India105
, that under the garb of removing infected trees
in accordance with the order of Supreme Court, the trees having no disease were
103 See T.N. Godavarman Thirumulkpad v Union of India, (1997) 10 SCC 775
104 See Environment Awareness Forum v State of J &K; (1999) 1 SCC 210
105 (1998) 9 SCC 660
231
also cut. Thus, the Supreme Court in this case directed the State Government and
its functionaries restrain from cutting any trees till further orders, even if it was
found to be diseased tree. The Supreme Court has noticed on the basis of various
reports and affidavits that the deforestation and illicit mining has caused immense
damage to the environment and ecology. Accordingly, from time to time, the
Supreme Court has been issuing directions to stop illegal felling of the trees and to
protect and preserve the forests.106
The need for protection and conservation of forests and wildlife was
acknowledged by the Indian judiciary even in the 1960s. Since then a series of
judgments pronounced by various courts including the Supreme Court have
supported the protection of the wild animals and their habitats. However, the
administrative limitations and the highly technical legal jargon used by the legal
luminaries in the interpretation of law, have sometimes compelled the judiciary to
pronounce the judgments half-heartedly and thus acquitting the accused. Few such
instances are discussed here.
The first in this regard is Nabin Chandra vs. State,107
wherein the accused
was convicted by the Magistrate under Section 429 of the Indian Penal Code 1860,
for shooting and killing a rhinoceros, and the same was upheld by the Sessions
Judge on an appeal. However, the Supreme Court had to acquit the petitioner, who
argued that Section 429 of the Indian Penal Code 1860, based on which he was
convicted was neither applicable nor relevant to the present case, as the language
of the Section did not apply to the killing of wild animals but applied to domestic
animals only, rhinoceros being a wild animal.
106 See T.N. Godavarman Thirumulkpad v Union of India, (1998) 6 SCC 190
107 AIR 1961 ASS 18
232
In Trilok Bahadur vs. State of Arunachal Pradesh Case108
the Gauhati High
Court on a criminal revision petition filed by the accused had to decide whether
the killing of tiger by the accused, a home guard, on the orders of his Commander
amounted to hunting or killing in self-defense. As per the facts of the case, the
accused, a sentry on duty, found a tiger loitering in the camp area and reported to
the commander of the camp. Consequently, the commander ordered the sentry to
fire a few rounds in the air. However, the tiger instead of running away pounced
upon the sentry and assaulted him; scared, the sentry shot tile tiger to death. In
consequence for killing the tiger, the sentry was sentenced to six months simple
imprisonment under Section 51 of the Wildlife Protection Act. The Court took into
consideration the nature and ferocity of the animal, and stated that in such
situations, the victim was not expected to weigh the chances of his survival against
a golden scale. Hence, the act of accused would get protected under the defense of
self-defense and good faith.
In Babu Lal and Another vs. State (Delhi Administration),109
information
was received by the Chief Wildlife Warden's office that some persons were selling
leopard skins in a house at Kasav Pura in Delhi, and accordingly the accused, were
arrested. The accused, Babu Lal and his two sons, admitted to the offense, in the
presence of their employee, Mangal Sain. Hence a complaint was lodged against
the accused under Section 55 of the Wildlife Protection Act, 1972 read with
Sections 40 and 44. The learned Additional Chief Metropolitan Magistrate
sentenced the accused to rigorous imprisonment of three years and a fine of Rs.
2,000 and his servant was sentenced to six months rigorous imprisonment with a
fine of Rs. 500. On an appeal, the learned Additional Sessions Judge acquitted the
accused's sons and also reduced Babu Lal's punishment to one year, whereas
108 1979 CR. L. J. 1409
109 1982 CR. L. J. 41.
233
Mangal Sain‟s punishment remained the same. On a further appeal, the High Court
dismissed the revision petitions filed by the accused and set aside the acquittal
orders of arrest of Babu Lal's son and directed the Trial Court to reconduct the
trial.
In Jaladhar Chakma vs. Deputy Commissioner, Aizawl, Mizoram110
case,
the Development Commissioner of Aizwal declared the area mentioned in the
notification issued by the Administrative Officer as Dampa Wild Sanctuary. The
alleged eviction order of the administrative officer involved certain villages, and
the petitioners (villagers) contended that there was no publication of the
notification in the Official Gazette and hence, the order was not valid. The courts
had to interpret Section 18 of the Wildlife Protection Act, 1972, and made note of
the technical requirement and interpreted that orders passed by the administrative
officer lacked jurisdiction and hence the order must be set aside.
In Rafique Ramzan Ali vs. A A Jalgaonkar,111
Section 39 to 51 of the
Wildlife Protection Act, 1972 was challenged by the petitioner against the order of
the Additional Chief Metropolitan Magistrate. The Magistrate in this case
convicted the petitioner for offenses committed under Sections 39(3), 40(2), 42(1),
44(2), 49 read with Section 51 of the Wildlife Protection Act, 1972 for conducting
the sale of skins of snakes and lizards. The petitioners however, argued that the
Wildlife Protection Act, 1972, was intended to protect the species of wildlife as
listed in the Schedule of the said Act, and hence do not apply to all kinds of snakes
and1lizards. The court observed that as the complaint did not state that the articles
seized were made of the skins of species of lizard and snakes specified in the
110 AIR 1983 Gau. 18
111 1984 Cr. C. J. 1460
234
Schedule, the petitioner has not committed any offense under the Act; hence, the
conviction order of Magistrate was ordered to be set aside.
On a similar note, the Patna High Court in Jagdish Singh vs. State of
Bihar,112
awarded a meager amount of Rs. 50 as penalty for killing a Bison against
the order of Trial Court. As per the facts reported, the Wildlife Warden of Betla
Reserved Forest on his patrol duty along with his staff arrested the accused for
killing a Bison. A case was filed against the accused before the Sub-Divisional
Magistrate under Section 51 of the Wildlife Protection Act, wherein the Magistrate
ordered three months imprisonment as punishment. The accused appealed before
Sessions Judge, and contended that the wildlife warden had no jurisdiction to file a
complaint, and the Chief Wildlife Warden or any authorized person under the Act
appointed by the State Government alone had the power to do so whereas, the
respondent in turn contented that the complaint was filed only after obtaining
authorization from the Divisional Forests Officer. Although the High Court agreed
that the petitioners have no strength in their petition yet as the case occurred ten
years ago and as the accused had already been on bail since then, no purpose
would be served in putting them three months imprisonment. Therefore, instead of
three months imprisonment, a fine of Rs. 50 was ordered to be paid by each of
them.
Whereas, in State of Bihar vs. Murad Ali Khan113
case, the Apex Court had
to set aside the order of High Court and restore the order of Magistrate for the
issue of processes. The case came up before the Apex Court by way of a special
leave petition, from the Judicial Magistrate, First Class, Chibusa who took the
cognizance of offense against the present petitioners under Section 51 of the
112 1985 Cr. C. J. 1314
113 AIR 1989 SC 1.
235
Wildlife Protection Act, 1972 for killing an elephant and removing its tusks.
However, a case was already registered against the accused at the police station,
under Sections 447, 429 and 379 of the I.P.C read with Sections 54 and 39 of the
Wildlife Protection Act, 1972 and the matter was under investigation by the
police. Hence, the accused approached the High Court under Section 482 of the
Cr.P.C, and requested the Magistrate to qualify the order. The High Court
accepted the contention of the accused and ordered the stay of proceedings
initiated by the Magistrate on the ground that he acted without jurisdiction in
taking cognizance of the offence. On an appeal by the petitioner the Apex Court
held that the offense under Section 9(1) read with Sections 2(16) and 51 of the
Wildlife Protection Act, 1972, in its content and details, was not the same or
substantially the same as Section 429 of the Indian Penal Code, 1860. Therefore,
the report of police investigation, which made out that no offence was committed
under Section 429 of the Indian Penal Code 1860 would not bar the initiation of
such proceedings under Section 9(1) read with Section 51 of the wildlife
Protection Act, 1972.
In Forest Range Officer vs Aboobacker and Another114
case, the three
accused brothers engaged in poaching killed a bison in the 'vested' forest at
Munderi and sold it's extracted meat in the bazaar and buried the remaining
carcass. On being caught the accused admitted the offense and identified the spot
where they buried the carcass and other parts like skull and horns of the animal.
Thus, the Trial Court convicted the accused for hunting and killing a wild animal
in the forest area. However, on appeal the Sessions Court set aside the conviction
order of the Trial Court and ordered acquittal of the accused. On the other hand,
the Hon'ble Kerala High Court on an appeal made by the Forest Range Officer set
114 1990 FLT 22.
236
aside the acquittal order of the Sessions Court and restored the conviction order
pronounced by the trial Magistrate.
In Consumer Education Research Center and Center for Environmental
Law, WWF India vs. Union of India115
case, the Narayan Sarovar Sanctuary (NSS)
was declared a reserved area covering an area of 765.79 sq. km in the State of
Gujarat by a notification under Section 18(1) of the Wildlife Protection Act, 1972.
Subsequent to the Wildlife Protection (Amendment) Act, 1991 in 1993, the
Gujarat Government started permitting mining leases to industrial groups.
However the Narayan Sarovar Sanctuary was quashed by a notification in 1993,
under Section 21 of the General Clauses Act, 1897 and simultaneously another
notification was issued under Section 26-A(l) (b) of the Wildlife Protection Act,
1972 and declared an area comprising of reserve forests, as the 'Chinkara Wildlife
Sanctuary', and also reduced the area to a mere 94.87 sq. km. Aggrieved, the
petitioners challenged the Validity of both the notifications. The Hon‟ble High
Court of Gujarat held that the petitioners had locus standi as there was no personal
gain on their behalf, and had public interest as the environment had concern from
all especially, when the right to life was identified as a fundamental right and so
was the right to pollution free atmosphere and water. Thus, anything that impairs
the quality of environment is fit to raise public interest.
In Pradeep Krishnan vs. Union of India116
case, an order of the Department
of Forests passed by the State of Madhya Pradesh permitted the tribals to collect
tendu leaves in National Parks and Sanctuaries was challenged by the petitioner,
an environmentalist. The petitioner contended that the said order violated the
provisions of Wildlife (Protection) Act, 1972, and the Articles 14 and 21, 48-A
115 AIR 1995 Guj. 133.
116 AIR 1996 SC 2040
237
and 51 A (g) of the Indian Constitution as it amounted to commercial exploitation
of tendu leaves. The respondent, however, argued that there was no actual danger
or damage caused to the flora, fauna and wildlife in the National Parks and
Sanctuaries due to the said order. The tribals on the other hand argued that it had
been their privilege for ages to collect tendu leaves as they were the genuine users
of tendu leaves and as the collection of the tendu leaves was for their livelihood
and not for any commercial purposes. The Apex Court after hearing the arguments
of both sides, directed the State Government to take steps to issue the final
notification and conduct an enquiry concerning the acquisition of rights of tribals
over the land.
In G R Simon and Others vs. Union of India,117
the provisions of Chapter V
A of the Wildlife Protection of the Amendment Act, 1986 and the notifications
issued thereunder were challenged by the petitioners as violative of Article 19(1)
(g) read with Article 300 and Article 300 A of the Constitution. The petitioners
were a group of manufacturers, wholesalers and dealers engaged in the retail trade
of tanned, cured and finished skin of animals and engaged in the retail trade of
animal articles made of animal skin. The petitioners argued that by making
amendment to the Act and decreasing unlawful holding of stocks after the expiry
of the stipulated period, except when the stocks are kept for their personal use,
becomes unlawful and hence confiscatory and amounted to deprivation of
property. They further contended that the amendment Act made them jobless
without any compensation. The petitioners had lawfully acquired skin, and skin
articles of animals by investing huge amounts of money and hence were deprived
of the sources of livelihood and violated their rights under Art. 19(1)(g). However,
the court rejected the petitioner‟s contentions and stressed the importance of
117 AIR 1997 Del 301
238
passing the Wildlife Protection Act. In addition, the court stated that the
petitioners had all the opportunity of selling and disposing of their stocks to
authorized persons from the date of amendment till the date of the case but wasted
the time. Therefore, they were not entitled to any further time for the disposal of
stocks, and such stocks of the petitioners would be liable to be dealt in accordance
with the provisions of the Act. Hence, the amendment to the Act was valid and
intravires and not violative of the Article 19(1)(g).
Similarly in M/S Ivory Traders and Manufacturers Association and Others
vs. Union of India, WWF-I and Others,118
the petitioner contended that Sections
39(1) (c) and 49(c) (7) read with Section 5(12) of the Wildlife (Protection) Act,
1972 are void as they did not provide any compensation to the owners of ivory,
when their title on the imported ivory was extinguished. The court observed that,
the Constitution did not recognize trade in imported ivory as a fundamental right.
Further, there was a pressing need to preserve ecology and biodiversity, which
cannot be sacrificed to promote the interests of a few. In addition, the law enacted
by Parliament to protect the elephant in India, was in consonance with the
international convention, and the same could not be flawed for imposing
unreasonable restraints. Thus, the ban on trade in imported ivory and articles made
therefrom are not violative of Article 14 of the Constitution of India and hence
does not suffer from any of the malafides namely, unfairness and arbitrariness.
In Animal and Environment Legal Defense Fund vs. Union of India,119
the
petitioners, an association of lawyers along with others, filed a Public Interest
Litigation and challenged the order of the Chief Wildlife Warden, who granted
305 fishing permits to the tribals who were residing within the National Park for
118 AIR 1997 Del 267
119 (1997) 3 SCC 549
239
fishing. The Supreme Court observed that it had to protect the right to livelihood
of the tribal-villager and also had to protect the environment. Thus, efforts should
be made to ensure that the tribals are resettled in such a manner that they could eke
out their livelihood. Therefore, the tribals should be provided with suitable fishing
areas outside the National Park or land for cultivation.
In Center for Environmental Law, WWF-I v. Union of India120
case, the
petitioners, the Center for Environmental Law, WWF-India filed a petition seeking
directions to be issued to the concerned State Governments to complete legal
formalities for settlement of the rights in areas notified as parks and sanctuaries,
and if these rights are not provided to the locals, the protected areas would
continue to face threats of encroachment and large-scale destruction. Thus, the
Apex Court after listening the arguments of both sides, passed the following
interim orders against both the Central and State Governments: To constitute State
Wildlife Advisory Boards; To appoint Honorary Wildlife Wardens in Districts; To
settle rights as contemplated by the Act within a period of one year; Any proposal
for de-notification of a sanctuary or a national park must be placed before the
Legislative Assembly and the concerned state government so that the same would
be referred to the Indian Board for Wildlife for its information; To ensure that
forest guards in the sanctuaries and national parks are provided with modem arms,
communication facilities and other equipment in order to have effective control
over the increased poaching cases in sanctuaries and national parks; and To
establish a veterinary center in the Animal Husbandry Department in the
immediate vicinity of each national park/sanctuary that would undertake the
immunization of livestock that are being taken into the national park/sanctuary for
the purpose of grazing, etc.
120 AIR 1999 SC 354
240
In the AIl India Mobile Zoo Owners and Animal Welfare Association vs
Union of lndia121
case, the petitioners prayed to the court to issue a writ directing
the Wildlife Warden under the Wildlife Protection Act, 1972, to pay compensation
of Rs. 15 to 20 lakh for the closure of their zoo. However, the petitioner's
challenge for recognition of their mobile zoo failed, and they were asked to
surrender their animals before the Wildlife Warden. The court after hearing both
the parties, held that the petitioners were entitled to compensation with regard to
animals, only when the possession and holding of such animals was not illegal
under the Act of 1972, and were surrendered to the authorities. With regard to the
holding of animals expressly prohibited under the Act, no such compensation
would be paid. Hence, in this case too neither compensation nor any ex gratia
payment would be made to the petitioners as they were holding the animals
without the permission of the concerned authorities.
In State of Uttaranchal vs. Ram Kumar and Sansar Chand122
the accused
Ram Kumar was arrested by the Forest Department of the State of Uttaranchal for
possessing a Leopard skin. On examination, he disclosed that he was carrying the
skin for Sansar Chand, the main buyer of wild life articles all over India, and the
much sought after notorious trader in illegal wildlife goods. He has eight cases
pending against him in the Delhi Court, all involving endangered animals such as
tigers and leopards. Despite the Court issuing a second non-bailable warrant
against him in 2003 itself, he has not been arrested so far.
In State of Himachal Pradesh vs. Smt. Halli Devi,123
the court had to decide
whether the provisions of the Wildlife Protection Act, 1972 provided any
121 AIR 2000 Delhi 449
122 http://www.wpsi-india.org/projects/prosecution_cases.php
123 AIR 2000 H. P. 113
241
compensation of the damages sustained by the human beings either in person or in
property for the attacks caused by the wild animals. The issue was raised by the
petitioner as she was inflicted with severe injuries from the attacks caused by a
black bear that resulted in heavy damages. The injuries sustained by her were so
severe that it resulted in her permanent disablement. Hence, she claimed Rs.
1,00,000 in addition to Rs. 50,000 incurred towards her medical expenses from the
Divisional Forest Officer. She substantiated her claim by stating that the
Divisional Forest Officer was liable on behalf of the Government to pay her the
compensation as he had let loose the bear and other protected wild animals in the
jungle. The defendants however denied liability and stated that as per Section 60
of the Wildlife Protection Act, 1972, no suit, prosecution or other legal proceedinq
would lie against any officer or employee of the Central Government or State
Government for any act done by them in good faith. The court observed that in
order to claim damages under the tortuous liability of the defendant, the burden of
proof fell heavily on the plaintiff to show that damages were sustained by her due
to the acts of omission or commission of the defendants, whereas the plaintiff in
this case failed to discharge such onus. Further, there was no provision under the
Wildlife Protection Act, 1972 that provided relief to a victim attacked by wild
animals.
In Wild1ife Protection Society vs. State of Andhra Pradesh,124
two writ
petitions were clubbed together as the Issues and points of law involved and
discussed in both the writs were similar in nature. Thus, in the first writ petition
filed by the Wildlife Protection Society Andhra Pradesh, represented by its
Principal Secretary, Forests and Environment Department, Commissioner of
Police, Minister for Forests and Environment, Chief Conservator of Forests and
124 AIR 2003 A. P 59.
242
the Union of India represented by its Special Chief Secretary, Forests and
Environment, New Delhi were impleaded as respondents. The prayer of the
society was to issue writ of Mandamus, directing the respondents to constitute a
special vigilance and enforcement cell for conducting a detailed report about the
number of wild animals that were killed can be listed studies. The second Writ
petition was by Visakha, a Society for Prevention of Cruelty to Animals was
against the Government of Andhra Pradesh, Forest Department, the Chief
Conservator of Forests, Chief Wildlife Warden and Curator of the Nehru
Zoological Park with a prayer to issue a writ or a direction in the nature of
Mandamus: To enforce the provisions of the Wild life Protection Act, 1972 with
all precautions. preventing the poaching of animals within their wildlife habitat;
To conduct judicial enquiry into the killing of Tigress Sakhi in the Nehru
Zoological Park, by a Judicial Officer; To take effective and stringent steps to nab
the culprits who are responsible for the extinction of wildlife; To appoint
experienced and skilled veterinarians in all the sanctuaries, zoos and national parks
to look after the health and hygiene of the animals; To include wildlife courses in
the veterinary colleges and the appointment of staff after giving training to take
care of the animals and protect them from the mischievous, greedy and inhuman
elements; and To constitute a full-fledged Wildlife Advisory Board with more
non-officials as members who have interest in the protection of wildlife.
In response to the petitions, the 4th
respondent in the first writ petition filed
a counter affidavit that stated the various steps taken by it in improving the
security of the zoos. The court after looking into the averments mentioned in the
counter-affidavit and the additional counter-affidavit filed by the respondent,
opined that the measures are to be taken by the State Government to improve the
security system by employing ex-service men in all the zoos, round the clock, and
the initiation of lighting system to facilitate the free movement of security
personnel, improvement of the existing track and the introduction of an electronic
243
gate system in Nehru Zoological Park, Hyderabad. The Government's proposal to
set up a closed circuit television at the Nehru Zoological Park, Hyderabad for
monitoring endangered animals at the cost of Rs. 2.42 cr is noteworthy.
The court finally concluded that the State of Andhra Pradesh has taken all
precautionary measures to protect the wildlife and for the enforcement of the
provision; of the Wildlife Protection Act, 1972. Hence, no further directions were
felt to be necessary. Accordingly both the writ petitions were disposed.
In Ashok Kumar vs. State of Jammu and Kashmir and Others125
, a Public
Interest Litigation (PIL) was filed in the J&K High Court by the petitioner seeking
implementation of the provisions of J&K Wildlife (Protection) Act as well as
Convention on International Trade in Endangered Species (CITES) which
prohibits the import of 'shahtoosh' into India. The shahtoosh wool is derived from
the soft undercoat of the Tibetan antelope also known as Chiru. Three to four such
Chiru have to be killed to weave one shawl. Each shawl costs several thousand
dollars in the international market. In 1977, the Government of India declared the
said antelope as protected animal under Schedule I of the Wildlife (Protection) Act
of India, 1972. Thus hunting and trading in the products of all the Schedule I
species was deemed to be illegal and punishable with heavy fines and
imprisonment. In consequence of all this momentum to protect the said antelope
and the PIL filed in 2002, the manufacture of shahtoosh shawls was banned in the
state of Jammu and Kashmir (J&K). Further the J&K Assembly passed an act,
which placed the Tibetan antelope (Panthelops hodgsonii) in Schedule I of the
Jammu and Kashmir Wildlife (Protection) Act, the highest protection. The court
observed that the weavers of shawls could take up alternative livelihoods such as
125 Shahtoosh Case 2005
244
weaving of pashmina, as continuous shahtoosh weaving on large scale would
make the species extinct and thus ending the trade in shahtoosh permanently.
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