AN OVERVIEW OF WILDLIFE CONSERVATION IN INDIA BY - G. KAVYA REDDY
AN OVERVIEW OF WILDLIFE CONSERVATION
IN INDIA
AUTHORED BY - G. KAVYA REDDY
2nd year Law student from
Mahindra University School of Law
ABSTRACT
Wildlife is a heritage in which India
takes pride due to its variety and uniqueness. Wildlife and forests have always
played an important role in the culture, tradition and religion of India. Being
a natural resource on the verge of becoming extinct, it needs to be preserved.
The main legislation that provides for the conservation and protection of
wildlife in India is the Wildlife Protection Act, 1972. However, the road of
its enactment was rocky to say the least. To ensure better implementation of
wildlife protection laws, the Wildlife Protection Act must be included under
the jurisdiction of the National Green Tribunal, as the flaws in the Wildlife
Protection Act argues that local participation and needs cannot be ignored and
must be incorporated under the Wildlife Protection Act.
Keywords: conservation, implementation,
National Green Tribunal ,protection, Wildlife
INTRODUCTION
In ancient India, associating animals
with gods ensured their protection. Rulers such as king Ashok is also known for
strictly prohibiting the killing or hunting of animals. The shift from a moral
duty to a legal duty for preserving the environment and wildlife is pretty
evident in the ancient times.
However, when India was ruled by the
Mughal dynasty, there was a shift on how animals were viewed. Mughals were very
fond of hunting and poaching, and therefore there was an increase in hunting
during this period. This exploitation of wildlife animals continued even during
the reign of British rulers who were also very fascinated by hunting, which
they considered a sport.
During the later stage of the British
rule, it was evident that Indian fauna was going extinct due to such hunting
activities. As a result of concerns for such extinction as well as discussions
at the international level, the British adopted some wildlife conservation
policies in India such as the Wild Birds Protection Act, 1887 and the Wild Bird
and Animal (Protection) Act, 1912.[1]
This Act was amended in 1935,
introducing the concept of ‘sanctuary’ for the first time in India. The Indian
Forest Act, 1927 was also an important step towards conservation of wildlife,
because it ensured the protection of the natural habitat of the wildlife as
‘reserve’. Moreover, provisions regarding protection of certain wildlife were
also mentioned in the substantive criminal law of India i.e., the Indian Penal
Code, which prescribed punishment for the killing and maiming of animals.
After Independence, the Indian
government enacted provisions for the preservation and conservation of wildlife
resources. The Constitution of India provided that the forests and wildlife
would be under the State list. However, it was later realized that this was not
practical. Forests and wildlife were later brought under the Concurrent list
after Constitution (42nd Amendment) Act, 1976.
Modern wildlife laws were developed
and got recognition in India after the Stockholm Declaration in 1972. As a
result, Wildlife Protection Act came into force and provided comprehensive
provisions for protection, conservation, improvement of the wildlife resources.
The statute introduced some new concepts for protection through its various
amendments which includes restriction on hunting, protection of flora,
declaration of protected areas, regulation of trade in wildlife, etc. The
Wildlife Protection Act was amended in 1982, 1986, 1991, 1993, 2003 and 2006.
RESEARCH QUESTIONS
·
What is the present wildlife protection legal
framework?
·
Whether the wildlife protection laws are adequate?
·
What reforms are needed to ensure that the laws for
wildlife protection are more efficient?
LEGAL FRAMEWORK OF WILDLIFE PROTECTION IN INDIA: AN OVERVIEW
At present,
the Wildlife Protection Act, 1972 is the main legislation on wildlife
protection and conservation. It protects almost each and every wildlife
resource within its ambit and has classified the species into different
categories as per the risk posed onto them. It contains provisions for both the
state and central government to apply them at the respective levels for smooth
functioning under this legislation. Chapter II of the Wildlife Protection Act
prohibits the hunting of wild animals, and permits it only in special
circumstances. Chapter IIIA provides for the protection of specified plants by
prohibiting its picking, uprooting, possession, cultivation, trading without a
license. Chapter IV provides for the creation and rules regarding for sanctuaries,
national parks and closed areas. Chapter IVA provides for the law regarding
recognition of zoos and their functions and regulations. Chapter V provides
restricts the trading of wild animals, animal articles and trophies. Chapter VI
regulates the detection of offences to relating to Wildlife. It grants the
power of entry, searching, arresting and detention of the offenders to the
Chief Wildlife Warden or wildlife authorities and lays out penalties for
offenders. Chapter VII provides for rules for other matters related to wildlife
protection and management. The six Schedules under the Wildlife Protection Act
give a list of the wildlife species protected under the Wildlife Protection
Act.
Background of wildlife Protection in India
The
Wildlife Protection Act has undergone several changes since its inception to
cull out the errors that were present in it and to meet the requirements of
present time. The most important amendments in this regard are 42nd, 73rd and
74th Constitutional Amendments. The matters relating to “wildlife and forests”
were moved to the Concurrent List from the State List through 42nd
Constitutional Amendment. Moreover, Art. 48A was also inserted in the
Constitution which stated that “the State shall endeavour to protect and
improve the environment and to safeguard the forests and wildlife of the
country”.
Amendments
were made in the fundamental duties as well wherein Art 51A was inserted which
stated that “it shall be the duty of every citizen of India, to protect and
improve the natural environment including forests, lakes, rivers and wildlife,
and to have compassion for living creatures”. Moreover, the role played by the
73rd and 74th Constitutional Amendments cannot be forgotten as the
self-governmental institutions were given the constitutional status.
Inspiration
to enact the Wildlife Protection Act was mainly gained through 1952 Forest
Policy. But in 1988, New Forest Policy Resolution was enacted and its focus was
mainly on the management of the resources of forest, that too with the help of
local communities i.e. by engaging as much local community as possible to
preserve and manage the forest resources. Moreover, some impact of the
Convention on Biological Diversity is also evident in the present Wildlife
Protection Act.
Right after
the successful completion of Stockholm Conference, India adopted the Wildlife
Protection Act. The reasons provided for adopting it were “to arrest the rapid
deterioration of and preserve the wildlife population; with the realization
that the Wild Birds and Animal Protection Act of 1912 and current state laws on
the subject were outmoded, obsolete, and limited in outlook and approach; and
to make the laws on the subject more stringent.”[2]
The Wildlife Protection Act can be regarded as the first detailed statute at
national level which along with being comprehensive is also specific in its
objective. The objective is “providing the conservation of plants, birds and,
wild animals with a view to ensure the ecological and environmental security of
the country.” This law came into being on the request of the state governments
as they requested to consider wildlife a subject matter of the state.[3]
The Act
contains provisions regarding hunting and classifies the areas with proper
“flaura, fauna, ecological, zoological and natural significance.” In order to
provide assistance to the governments to make decision relating to the wildlife
matters some boards were constituted, named the Wildlife Advisory Boards. These
boards are now present as State Boards for Wildlife and National Board for
Wildlife.[4]
This law has barred the public from entering into the premises so as to
preserve the wildlife, habitat in the areas named as protected areas.
The
original legislation’s whole objective was to preserve the wild animals and to
put restrictions on trade as well as hunting. The plant species on the other
hand had to wait for almost a period of two long decades to get included in the
statute, they were included by the 1991 amendment. India had signed CITES way
back in 1973 and this inclusion was regarded a response to that only.
Sanctuaries enjoy less protection as compared to the national parks, his might
be due to the fact that grazing is permissible to a certain extent in the
sanctuaries but the same is not the case with the national parks.[5]
But, what about this distinction? Can it be regarded as superfluous? One thing
is certain that such distinction is far from the ground realities and is
artificial in nature.
As a
result, the demarcation of areas that are regarded as protected areas often
confuses the state government because of lack of proper policy under the
Wildlife Protection Act. Along with governing in the national parks and
wildlife sanctuaries, the Wildlife Protection Act also takes into account the
governance in biosphere reserves and corridors. Therefore, the Wildlife
Protection Act can be regarded as the only legal statute to govern the subject
matter of wildlife.
The
balancing of work and responsibility has been taken care of in this
legislation, and it is pretty evident from the fact that the central government
takes care of all the matters relating to the administration while the state
government looks after the matters of managing the protected areas. The
protected areas in the National Wildlife Action Plan have been recognized as
“reservoirs of precious biodiversity, providers of watershed resources, and a
buffer to counteract the impact of climatic change.”[6]
Therefore,
it can be clearly seen that the focus of Wildlife Protection Act is on
conservation only.
Authorities under the Wildlife
Protection Act
The Central Government appoints the
Director of wildlife preservation and Assistant Directors of wildlife
preservation who exercise their rights and powers in accordance with the
directions of the Central Government.[7]
The State Government appoints the Chief Wild Life Warder and Wilf Life Warders
with duties as directed by the State Government.
A National Board of Wild Life is
constituted by the Central Government through the Wild Life (Protection) Amendment
Act, 2002 with the Prime Minister as its Chairperson. It includes other members
such as the Minister In-Charge of Forests and Wildlife, Director General of
Forests, Director General of Tourism and all other stakeholders of the
government which influence and are involved in wildlife protection. It is the
duty of the Board to “promote the conservation and development of wild life and
forests by such measures as it thinks fit.”[8]
Similarly, a State Board for Wildlife in every state is also constituted.
Under the Wildlife Protection Act,
the Central Zoo Authority is also constituted by the Central Government with
the functions to “recognise or derecognise zoos”, “identify endangered species
of wild animals for purposes of captive breeding and assigning responsibility
in this regard to a zoo”, etc.[9] A
National Tiger Conservation Authority is also constituted[10]
with the mandate to approve the Tiger Conservation Plan prepared by the State
Governments.
The most important authority which is
tasked with “collecting and collating intelligence related to organized
wildlife crime activities and to disseminate the same to State and other
enforcement agencies for immediate action, so as to apprehend the criminals and
to establish a centralised wildlife crime data bank”[11]
under the Wildlife Protection
Act is the Wildlife Crime Control Bureau. It is pertinent to note that it not
only mitigates the wildlife crimes but also curbs trans-boundary wildlife
crimes. In spite of being constituted under the Wildlife Protection Act, it is
an independent body, possessing power to investigate independently against any
crime related to wildlife.
As far as the working of this bureau
is concerned, it is clear that it works independently, collects all the
required information relating to the crime, promotes awareness about the issues
being faced by the wildlife, punishes the violators i.e. the hunters, poachers
etc., provides proper infrastructure assistance to all the states who does not
have the required resources to combat the wildlife issues and also provides
security to the animals who are at the verge of getting extinct.
Moreover, in order to mitigate the
problem related to wildlife this bureau plays different roles and
responsibilities such as establishing a central crime data bank where all the
data related to the wildlife crimes is recorded, entering into agreements and
co-ordinate with other nations, implementing various protocols and conventions
related to wildlife conservation, keeping a check on the illegal trade, hunting
and poaching of wildlife animals.
Whenever a crime is reported to the
bureau, an officer is assigned a task to investigate the crime, he goes to the
place where the crime was committed, records the necessary information related
to the investigation in the diary kept by him. If the investigating officer
finds any material on the site where the crime was committed, he handovers the
same to the magistrate and should also send a sample for the purpose of
examination. Thereafter, the accused gives his confession, the same has to be
recorded within 6-12 hours of arrest. It is pertinent to note here that the
accused has to sign each and every page of his confession and he should not be
subjected to any duress or cruelty by the concerned officers. Thereafter, the officer
not below the rank of Assistant Conservator examines the witnesses, and the
process of collection of evidences also takes place. Each and every type of
evidence is recorded i.e. documentary, digital and forensic. All the evidences
collected are then examined and if they make a prima facie case against the
accused then a complaint is filed against him. The complaint contains the
facts, evidences etc. sufficient to prove the accused guilty of the offence.
Moreover, it is important to note here that the complaint should contain a
prayer and after the complaint is filed there remains no further scope of
investigation.
The provision relating to
investigation followed by the bureau might not seem problematic per se but
contains some lacunas. At first, the accused is required to sign his confession
which should not be done and needs immediate overhaul. Even in the Code of
Criminal Procedure the accused in not required to sign the statement that he
gives to the investigating officer as the same might be taken under coercion,
undue influence, etc. making the evidentiary value of such statement null and
void in the eyes of law. There are high chances that the investigating officer
in order to close the case immediately might influence the accused to give
certain specific type of confession and might use against him during the trail.
The accused is considered innocent until proven guilty and he should be given
fair chance to lead his case according to the principles of natural justice.
Even the Constitution of India guarantees some basic rights to the accused
under Article 14, 19 and 21, violation of which is impermissible in law.
Therefore, the provision needs to be changed and the accused shall not be
required to sign the statement.
Moreover, not allowing further investigation
after the filing of complaint is also one lacuna in the provisions. There might
arise a situation in which the investigation officer might not have conducted a
proper investigation and the witnesses and evidences are not sufficient to
convict the accused but the investing officer files the complaint and the judge
after going through all the evidences deems that the case requires further
investigation in order to adjudicate the case. But due to lack of provision
related to further investigation they won’t be able to exercise such power and
it may lead to conviction of an innocent person. Therefore, such provision also
needs immediate overhaul in the interest of law and justice.
THE
NEED TO EXPAND THE JURISDICTION OF THE NGT TO INCLUDE WILDLIFE PROTECTION ACT
The National Green Tribunal was
formed in 2010[12] to
specifically look into matters related to substantial questions of environment.
The Supreme Court recommended a system of specialised “Environmental Courts
having civil and criminal jurisdiction must be established to deal with the
environmental issues in a speedy manner.”[13]
This was due to “the overburdening of local courts with environment cases and
difficulty in dealing with these cases due to technical questions involved, the
apex court recommended a system of specialised courts for environment matters.”
Section 14 of the NGT Act defines the
subject matter jurisdiction of the NGT. It provides that “The Tribunal shall
have the jurisdiction over all civil cases where a substantial question
relating to environment (including enforcement of any legal right relating to
environment), is involved and such question arises out of the implementation of
the enactments specified in Schedule I.” The Enactments mentioned in Schedule 1
include the Environment (Protection) Act, 1986, the Biological Diversity Act,
2002, etc. However, NGT is not empowered to hear all issues related to
conservation of forest or wildlife because the Wildlife (Protection) Act is not
included in the list of enactments in Schedule 1 of the NGT Act.
However, in the case of Tribunal at
its Own Motion v. Ministry of Environment & Forests,[14]
it was held that “wildlife is a part of environment and any action that causes
damage or is likely to cause damage to wildlife, could not be excluded from the
purview of this tribunal.” In this case, the question was whether the mines in
dispute were allowed to operate in violation of the Environment (Protection)
Act, 1986. NGT stated that the term ‘environment’ under the Environment
Protection Act includes water, air and land and the inter relationship which exists
among and between water, air and land and human beings, other living creatures,
plants, micro-organisms and property. Wildlife as a part of the ecosystem has
to be considered as a part of environment and therefore the matters related to
wildlife are liable for adjudication before the NGT.
However, in other cases, the NGT has
been reluctant to assume jurisdiction over cases involving wildlife protection.
For example, in the case of Shivaji Suryabhan Sangle vs State Of Maharashtra,
it was held that “It is quite clear that only implementation of the seven
(7) Enactments enlisted in Schedule I, will be within the jurisdiction of the
NGT Act. Wild Life (Protection) Act is outside the list of those seven (7)
enactments and hence, the National Green Tribunal (NGT) has no jurisdiction to
decide any question relating to implementation of the provisions of that Act.”
Further, in the case of Sachin
& Others v. The State of Maharashtra, it was held that “A bare reading of
Section 14, will make it clear that jurisdiction available to this Tribunal, is
in respect of only the enactments, which are stated in Schedule-I, appended to
the NGT Act. Those seven (7) enactments mentioned in the Schedule-I, do not
cover the Wildlife (Protection) Act, 1972. It is explicit, therefore, that
question pertaining to Sanctuary of Great Indian Bustard, falls outside
jurisdiction of this Tribunal.”
Therefore, the position regarding the
jurisdiction of the NGT regarding cases involving wildlife protection is
unclear. Recently, the Supreme Court sought assistance from Advocate General KK
Venugopalan to consider if the jurisdiction of the NGT can be extended to the
Wildlife Protection Act. In this case, the question was regarding the
installation of bird diverters and underground cabling to protect endangered
birds. However, the matter is yet to be clarified.
Wildlife is a part of the ecosystem
and needs prompt protection. In fact, the Law Commission[15]
when it was considering the formation of a green court, recommended that, these
proposed courts should deal with matters concerning “The protection of natural
environment, forests, wild life, sea, lakes, rivers, streams, fauna and flora”
This includes wildlife as well. The NGT was created with aim of protecting the
environment, and therefore, limiting its powers by excluding the Wildlife
Protection Act does not make sense. The supposed reason why the Wildlife
Protection Act is excluded from the ambit of the NGT is that the NGT Act
applies only to civil cases, and excludes criminal offences. The United Nations
Environment Programme has recommended that while forming Environment Courts and
Tribunals, “inclusion of jurisdiction over criminal environmental laws, such as
illegal hunting and trafficking in wildlife and illegal fishing, is key to achieving
environmental justice and sustainable development.”33 In light of this
recommendation, it is our opinion that excluding Wildlife Protection Act from
the scope of the NGT is detrimental to the environment and conservation in
India. Therefore, the scope of the NGT must be expanded to include wildlife
protection under its ambit.
NEED
TO REFORM WILDLIFE PROTECTION ACT TO MAKE IT MORE LOCAL FRIENDLY
Top-down Approach under the Wildlife
Protection Act
The Wildlife Protection Act has
adopted a top-down approach. Thus, many critics argue that the Wildlife
Protection Act is divorced from the needs of the Indian people. Others argue
that the Wildlife Protection Act is based on international instruments, which
is ultimately influenced by western ideas. This is evident from the adoption of
the concept of ‘national parks’ and ‘sanctuaries. Traditional customs find no
recognition in the Wildlife Protection ACT.
The Wildlife (Protection) Amendment
Bill, 2013 incorporates some provisions which suits the Indian circumstances.
For example, “it allows certain activities such as grazing or movement of
livestock, bona fide use of drinking and household water by local communities,
and hunting under a permit”.[16]
Further, the T.S.R. Subramanian
Committee formed to review environmental laws in India, suggested the
implementation of an umbrella law on environment protection based on
inclusivity and public participation. However, these reforms have not been
implemented.
It may also be argued that due to
this lack of inclusion of local interests, India has violated its obligations
under Convention Concerning the Protection and Integration of Indigenous and
Other Tribal and Semi-Tribal Populations in Independent Countries[17]
as well as the objects of the
Biological Diversity Act of 2002 made in pursuance of the Convention on
Biological Diversity.
Further, the administrative structure
under the Wildlife Protection Act also lacks local participation. The Wildlife
Protection Act provides for a two-tier structure for administration, one at the
central level and other at the state level. At the central level there are Director and Assistant
Directors of Wildlife Preservation. And at the state level, there is a Chief
Wildlife Warden and several wildlife wardens under him or her. In this administrative
structure which is highly bureaucratic, there is no local participation
involved. Local participation is necessary in administration because it would
facilitate easier and more efficient tracking of criminals involved in wildlife
trafficking.
Land Acquisition under the WILDLIFE
PROTECTION ACT
Laws regarding National Parks and
Sanctuaries recognized under the Wildlife Protection Act are blind to the needs
of the local populace. For example, the collection has discretionary power to
allow “in consultation with the Chief Wildlife Warden, the continuance of any
right of any person in or over any land within the limits of the sanctuary”.
However, entry to the Sanctuary is only possible when one rights over the
immovable property in the within the Sanctuary.
The process of acquisition provided
in the Wildlife Protection Act is based on the Land Acquisition Act, 1894 which
does not recognise the traditional rights of inhabitants. These are may include
rights over resources from the land which is traditionally enjoyed by a certain
community of people. The Wildlife Protection Act does not recognize these
rights. Even though the Object of the Wildlife Advisory Board is to “suggest
ways and means to harmonise the needs of the tribals and the protection of the
wildlife”, this is not seen in practice. This is so because the District
Collector who decides the rights of the local populace has minimal to no
experience about the wildlife.
Environmentalist Ramachandra Guha has
argued that “the forests, wildlife and the human inhabitant therein share a
mutually dependent symbiotic relationship which is essential for their
existence, for instance controlling forest fire and managing forest produce.
Hence, such apprehension about the damage that local people can cause to
wildlife is unwarranted and is derived for an ill-conceived functioning of the
relations in environment” Therefore, as recommended by Sunita Narain Committee,
“wherever possible, communities of the forest dependent or the hunters
should become the first option to look to for recruitment and creation of
intelligent protection forces”. [18]
CONCLUSION
India has a strong legislation
regarding wildlife conservation in the Wildlife Protection Act, however it
requires reform focusing local participation and decentralization. Further, as
argued in the present protect, the National Green Tribunal must be provided
with the jurisdiction to try cases under the Wildlife Protection Act. This
would ensure efficient protection to the wildlife in India. Another area of
reform is the administrative structure which has too many bodies with little
powers. In adopting reforms, there is a need to look local traditions cultures
and practices to make a policy more suited to the Indian circumstances. Therefore,
the wildlife law reforms that are adopted, must be founded on decentralization,
administrative structures that are accountable, efficient and transparent,
wildlife prosecutions that are speedier and fairer, a more inclusive wild life
management approach and decision-making that is participatory There must be a
planned approach to safeguarding wildlife. Such planning must be made mandatory
to ensure higher degree of compliance requirements. This will further the
capability to make better informed and quality decisions especially on issues
wildlife. Therefore, the Wild Life Management Plans may help in effectively
regulating and managing protected areas.
REFERENCES
Ø Videh Upadhyay and Sanjay Upadhyay,
Forest Laws, Wildlife Laws and the Environment
Ø Arjya B. Majumdar, Debosmita Nandy
and Swayambhu Mukherjee, Environment and Wildlife Laws in India
Ø Nandan Nelivigi, ‘Bio-diversity,
Wildlife and Protected Area Management in India: A People-Centred Approach’
(1995) 37 JILI 145.
Ø Domenico
Amirante, ‘Environmental Courts in Comparative Perspective: Preliminary
Reflections on the National Green Tribunal of India’, (2012) 29 Pace Envtl. L.
Rev. 441
Ø M.K.
Ramesh, ‘The Wildlife Protection Act, 1972 of India: An Agenda for Reform’
(1999) 4 APJEL 271
Ø Himanshu Pabreja1 and Neelotpalam
Tiwari, “NGT's Jurisdiction in Controversy” (2015) 3 ELSJ 88
Ø Diva Rai, ‘An ultimate guide to
Wildlife Crime Control Bureau
[1] Wild Bird and Animal (Protection)
Act 1912, s 3
[2] Wildlife Protection Act 1972,
Statement of Objects and Reasons
[3] Pradeep Krishen v Union of India
AIR 1996 SC 2040
[4] Wildlife Protection Act 1972, s 5A
[5] Wildlife Protection Act 1972, s
35(7), s 29 and s 33(d)
[6] Report of the High-Level Committee
on Forest and Environment Related Laws, OM No. 22-15/2014-IA.III, 29 August
2014
[7] Wildlife Protection Act 1972, s 3
[8] Wildlife Protection Act 1972, s 5C
[9] Wildlife Protection Act 1972, s
38C
[10] Wildlife Protection Act 1972, s
38K
[11] Wildlife Protection Act 1972, s
38Z
[12] National Green Tribunal Act 2010
[13] Indian Council for Enviro-Legal Action
v. Union of India, 1996 SCC (3) 212
[14] 2014 SCC OnLine NGT 860
[15] Law Commission of India, 186th
Report (2003)
[16] Wildlife (Protection) Amendment
Bill 2013
[17] Convention Concerning the
Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries (1957) 328 UNTS 247
[18] Sunita Narain, ‘The Report of the
Tiger Task Force: Joining the Dots’ (2005)