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WILDLIFE (PROTECTION AND CONTROL OF POLLUTION) ACT, 2022 AMENDMENT ANALYSIS
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WILDLIFE (PROTECTION AND CONTROL OF
POLLUTION) ACT, 2022 AMENDMENT ANALYSIS
AUTHORED BY - SEERAT AGARWAL
ABSTRACT:
This paper based on the amendment of
the Wildlife (Protection and Control of Pollution) Act, 2022 amendment
familiarizes the reader with the topic related facts, changes brought in by the
government in the Wildlife Amendment Act 2022 as compared to the Wildlife
(Protection and Control of Pollution) Act,1972 and the theories about it. The
paper gives a detailed comparison amongst the amendments of 2002, 2006 and
2022.
The paper states the overview of
Wildlife(Protection and Control of Pollution) Act, 1972 and deals with the harshening of the fines with the amendment of
the act in 2002, 2006 and 2022. It states how the climate change issues were
addressed with the implementation of the further amendments. The obligations
under the CITES which were previously not covered were covered under the 2022
amendment. The paper states the changes brought in by the new 2022 amendment in
the Project Elephant launched by The Wildlife Act 1972 wherein the elephants
were allowed to be used for religious and ‘other purposes’. Therefore the paper
does a comparative analysis and gives conclusion about whether the new
amendments have been successful in covering the deficiencies of the Wildlife(Protection
and Control of Pollution) Act, 1972, helping for the further protection of the
endangered species and fulfilling of the government obligations under the act.
INTRODUCTION OF THE MAJOR AMENDMENTS-
Wildlife (Protection and Control of
Pollution) Act, 1972:
The act was passed on 21st
August 1972 and September 9, 1972 was its implementation date. This act was
enacted by the Indian Parliament which was an integral part of the environment
and the ecology and played a crucial role in the protection and safeguard of
the wildlife (flora, fauna and animals) in the country and prevent their trade.
Wide range of species like – birds, mammals, fisheries, plants, etc are
included in this act.
This act has six schedules included
which gives different degrees of protection and the offences committed under
these schedules attract the maximum penalties.
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SCHEDULE I
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Covering endangered species
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SCHEDULE II
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Covering animals having high
protection
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SCHEDULE III and IV
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Covering species that are not endangered.
It includes species that are protected but the penalty for any offence is
less than the first two schedules.
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SCHEDULE V
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Includes animals which can be
hunted
|
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SCHEDULE VI
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Includes plants that are forbidden
from cultivation
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The Act provides for the appointment
of the Wildlife Warden and other forest officials. The Wildlife Warden is
responsible for the wildlife protection and management in their respective
jurisdictions meanwhile the forest officials are empowered to arrest and prosecute
defaulters/offenders and to search for vehicles or premises suspected of being
used for wildlife crime.
For keeping up with the changing and
upcoming circumstances of the society, various new Wildlife Amendments have
been passed. The Wildlife act has been instrumental in the protection of
several endangered species like tigers, elephants and rhinoceros.
The Wildlife Protection Act, 1972
also provides for the implementation of the ‘CITES’ ( Convention on
International Trade in Endangered Species of Wild Fauna and Flora) in India.
Under this the trade in the specimens of species listed under the CITES are
regulated and controlled by the Central Government as they have been granted
the power for the same.
Under CITES, the species are
classified into appendices which are based on the level of protection required
by them. The three appendices are:
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APPENDIX
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The species that are threatened
with extinction and trade in specimens of these species are prohibited,
except in exceptional circumstances.
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APPENDIX 2
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The species that are not really
threatened with extinction, still their trade with the specimens is
controlled to avoid utilization incompatible with their survival.
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APPENDIX 3
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The species that are protected in
AT LEAST one country, which has other CITES parties for assisting in
controlling the trade.
|
Wildlife Protection Act, 2002
Amendment:
This amendment came into force in
January 2003 and it harshened the punishment for the defaulters under the
Wildlife (Protection and Control of Pollution) Act, 1972.
Earlier
the penalty for contravening the provisions of Chapter VA was imprisonment of
not less than a year which may extend to seven years and a fine of not less
than five thousand rupees. With the 2002 Amendment, the minimum imprisonment
prescribed is three years which may extend to seven years with a minimum fine
of rupees 10,000/-. Also a new section: 51-A, was inserted in the act which
made certain conditions applicable while granting bale: “When any person accused of the commission of
any offence relating to Schedule I or Part II of Schedule II or offences
relating to hunting inside the boundaries of National Park or Wildlife
Sanctuary or altering the boundaries of such parks and sanctuaries, is arrested
under the provisions of the Act, then not withstanding anything contained in
the Code of Criminal Procedure, 1973, no such person who had been previously
convicted of an offence under this Act shall be released on bail unless -
(a)
The
Public Prosecutor has been given an opportunity of opposing the release on
bail; and
(b) Where the Public Prosecutor opposes the
application, the Court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offences and that he is not likely to
commit any offence while on bail”.
Wildlife Protection Act, 2006
Amendment:
The purpose of this act amended in
2006 was to combat the crime against tigers and other endangered species
through the special Crime Control Bureau in order to strengthen their
conservation.
Wildlife Protection Act, 2022
Amendment:
The Rajya Sabha recently passed the
Wildlife (Protection) Amendment bill, 2022 which seeks to give effect to the
obligation of India under the Convention on International Trade on
Endangered Species of Wild Fauna and Flora ( ‘CITES’ ). The words “protection of wild animals, birds,
and plants” mentioned under the Wildlife (Protection) Act, 1972 have been
substituted by the words “conservation, protection and management of wildlife”.
OBJECTIVE OF THE BILL:
·
Protection of Endangered species- it seeks to enhance punishment for illegal wildlife trade.
·
Better Management of Protected Areas- it provides certain permitted activities by the
local authorities like grazing or movement of livestock and Bonafide use of
drinking and household water.
·
Protection of Forest Lands- the rights of the people living since ages in the forest
areas are protected under this.
A new schedule for species was proposed by this
Amendment listed in Appendices under CITES.
NEED FOR THE NEW AMENDMENT:
Threat of blacklisting- India has been blacklisted by the
CITES once, and if the same thing would have happened again, then India would
have not been able to trade in important plant specimens, affecting large
sections of Indian society dependent heavily on this trade.
Non-uniform listing- there was non uniform lisiting as
some species were listed under English names, some under families, others under
scientific names and others under orders.
Issues in implementation- such non-uniform listing was very
confusing for wildlife and forest officials on the ground to implement.
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S.NO
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TOPIC
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WILDLIFE
ACT 1972
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WILDLIFE
ACT 2022 AMENDMENT
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1.
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Penalty for
Offenses
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For General
offenses: maximum fine Rs.25,000
In case of
Specially Protected Animals: minimum fine Rs.10,000
Hunting, trading,
poaching of wildlife: maximum imprisonment 3 years
|
For General
offenses: maximum fine Rs. 1 lakh
In case of
Specially Protected Animals: minimum fine of Rs. 25,000
Hunting,
trading, poaching of wildlife: maximum imprisonment of 7 years
|
|
2.
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Rationalising
Schedules
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The act has
six schedules:
One for
Specially protected plants
Four for
Specially protected animals
One for
Vermin species
|
The act
reduced the schedules to four by:
Inserts a new schedule for specimens listed in
the Appendices under CITES (scheduled specimens).
Two for
specially protected animals (one for greater protection level)
Removes
schedule for Vermin species
|
|
3.
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Control of
Sanctuary
|
The Act
gives the power to the Chief Wildlife Warden appointed by the State Government
to control, manage and maintain all sanctuaries in the state
|
The Bill
specifies the actions of the Chief Wildlife Warden which should be in
accordance with the management plans for the sanctuary.
The plans
will be prepared as per the guidelines of the Central Government, and as
approved by the Chief Warden
|
|
4.
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Conservation
Reserves
|
Only the
State Government had the power to declare areas as a conservation reserve,
adjacent to national parks and sanctuaries, for protecting flora and fauna
and their habitat
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The new
Amendment Bill gives the powers to the Central Government as well to notify a
conservation reserve.
|
Constant threats to wildlife- the threats include: illegal
wildlife trade, habitat destruction, human-animal conflict, invasive species,
climate change, pollution, etc.
THE PROPOSED AMENDMENTS:
1. Section 6- it has been amended to constituted
Standing Committee to exercise delegated power by the State Board of Wildlife
to exercise such powers and duties.
2. Section 43- it was permitted the use of
elephants for ‘religious or any other purposes’ (wherein the words ‘any other
purposes’ has been vaguely defined)
3. Section 49E- to enable Central Government to
appoint a Management Authority.
4. The amendment allows the Central
Government to appoint a Scientific Authority to provide guidance on matters
relating to the impact on the survival of the specimens on being traded.
5.
The
bill also gives the power to the Central Government to regulate and stop the
import, trade or possession of invasive plant or animal alien species.
COMPARISON OF THE WILDLIFE ACT 1972
WITH THE 2022 AMENDMENT:
FURTHER PROVISIONS OF THE NEW BILL
WERE:
Scientific Authority: The advices on aspects related to
the survival of the specimens being traded are given by it.
The removal or modification of the
identification mark of the specimen is prohibited by the scientific authority.
It is mandatory to obtain a
registration certificate from the Management Authority for every person
possessing live specimens of scheduled animals.
Invasive alien species: The Central Government is empowered
to regulate or prohibit the import, trade, possession, or proliferation of
invasive alien species.
Surrender of captive animals: The bill provides for any person to
voluntarily surrender any captive animals or animal products to the Chief
Wildlife Warden. There will be no compensation given to such person and the
surrendered items will become property of the state government.
CONCLUSION
Overall,
the 2002 amendment strengthened the Wildlife (Protection) Act, 1972 and brought
it in line with international standards for the protection of wildlife. The
increased penalties, the establishment of the National Board for Wildlife, and
the Wildlife Crime Control Bureau have all contributed to better enforcement of
the Act.
Case studies:
Indian Handicrafts Emporium v. Union
of India
In this case the petitioner had
challenged the constitutional validity of Amendment Act 44, 1991, to the
Constitution of India, which prohibited trade in imported ivory.
The learned senior counsel appearing
for the appellants, urged that the impugned provisions of the Amendment Act
violate Article 19(1)(g) of the Constitution of India inasmuch as thereby the
right of the appellant to trade in ivory has unjustly been prohibited. The
learned counsel would submit that restrictions imposed by reason of the said
Amendment Act being excessive, the same must be held to be confiscatory in
nature. The Amending Act is also ultra vires Article 14 of the Constitution of
India, being irrational and arbitrary. The learned counsel has drawn attention
to the fact that the population of elephants has gone up in several countries,
e.g., Botswana, South Africa, Namibia and Zimbabwe, and these countries have
been permitted by Convention on International Trade in Endangered species of
Wild Fauna and Flora (CITES) to deal in ivory subject of course to certain
restrictions. Attention has further been drawn to the fact that ivory which was
placed in Appendix-I of the CITES has now been placed in Appendix-II thereof.
It was also submitted that ivory collected from dead animals should also be
permitted to be dealt in.
The Court reasoned, that trade in
imported ivory being dangerous to ecology has been regulated by imposing total
prohibition by Wildlife (Protection) Amending Act of 1991. Such Amending Act
indirectly seeks to protect Indian Elephant and to arrest their further
depletion. Traders and non-traders constitute two different classes and the
classification is founded on an intelligible difference clearly distinguishing
one from the other. "A machinery must be so construed as to effectuate the
liability imposed by the charging Section and to make the machinery
workable."
Court judgement:
The Supreme Court held that the
Wildlife (Protection) Act of 1991 indirectly seeks to protect Indian elephant
and to restrict its further depletion, and so, the appellant petition was
dismissed.
Mahaveer Nath v.
UOI (2019)
Facts: The
constitutional validity of Sections 9 and 11 was challenged on the ground that
the restrictions mentioned under those Sections deprived the petitioner of his
right to livelihood.
The
petitioner is a member of the Nath/Sapera community who is deprived to carry
out the vocation of snake charming for his livelihood except on certain days
where snakes are worshipped. This community was referred to as “barefoot
conservative educators” to highlight their vital role in sensitizing people to
reptiles.
Held: The petition was
challenged on the ground that Section 9 has resulted in the prohibition of
keeping of snakes and thus, it violates the fundamental right to trade under
Article 19(1)(g) and Article 21 of the
Constitution. The Court observed that Article 19(1)(g) is not an absolute right
but a qualified right and reasonable restrictions can be imposed on the same
for the general welfare of the public.
Tarun Bharat Sangh, Alwar v. Union of
India & Ors
This case dealt with illegal mining
activity in an area declared as Tiger Reserve. The petitioner, a voluntary
organization interested in protecting the environment, approached the court
complaining of the widespread illegal mining activity going on in the area
declared as a Tiger Reserve in the State of Rajasthan. It prayed that in the interest
of ecology, environment and rule of law, the activity should stop. It was
alleged that there were notifications prohibiting all mining activity, and yet
the State Government had granted hundreds of licences for mining marble,
dolomite and other materials and that such section was contrary to law.
The Court appointed a committee to
ensure due observance of the various Acts and Notifications that had been
issued in respect of the protected area. The committee stated that there were
215 mines completely falling within the areas declared as protected forest
while 47 mines fell partly inside and partly outside the areas declared as
protected forest.
The court emphasized that this was
not a case where the court was called upon to shut down an activity being
carried on lawfully, in the name of higher considerations of ecology and
environment. It was a simple case to ensure observance of enacted laws made by
the State to protect the environment and ecology of the area. In such a case,
there was no need to be oppressed by considerations of balancing the interest
of economy and ecology. That had already been done by the Legislature and
Parliament.
It observed that no mining lease
could have been granted or renewed within the forest without clearance from the
Central Government in accordance with the forest (Conservation) Act, 1980 and
the Rules made there-under. Admittedly, no such prior approval or clearance of
central Government was obtained. It concluded that the mining activity was
illegal and had to stop. Besides that, it was directed that the mining activity
in the mines situated outside the protected forest areas but within the tiger
reserve could continue for a period of four months. If no permission to
continue mining was obtained from the Central Government within the said period
of four months, the mining activity in the entire area declared as tiger
reserve had to stop.
MS Ivory Traders And Ors. v Union of
India And Ors.
Fact Summary
The petitioners are dealers and
artisans in ivory who carry on the business and trade in ivory including the
manufacture of articles derived from ivory lawfully imported into India prior
to the ban. They imported part of the stock of mammoth ivory from Russia and
part of it from Hong Kong for the purposes of the business.
It is further asserted that ivory
derived from mammoth, extinct species of wild animal, and ivory derived from
elephants cannot be treated at par or on the same footing as both are different
from each other and can be distinguished.
Therefore, they plead that they are
persons affected by the Amendment Act 44 of 1991. The Amendment Act has been
enacted to carry out the mandate of the directive principles enshrined in
Article 48A of the Constitution of India:
"Protection and improvement of
environment and safeguarding of forests and wild life: The State shall endeavor
to protect and improve the environment and to safeguard the forests and wild
life of the country."
The Court reasoned, that the
Amendment Act explicitly bans the use of ivory for commercial use: "No
person can commence or carry on business as a dealer in ivory imported into
India or articles made, there from, or as manufacturer of such articles."
The Court puts special emphasis on the words "ivory imported into India",
as being designed deliberately. The intention is to cover all descriptions of
ivory, including from mammoth.
Court judgement:
Impugned legislation falls within the
power and competence of the Parliament as the same is meant to protect the
Indian elephant. To achieve that purpose, the Parliament has undoubted power to
deal with matters which, effectuate the same. It can legislate with regard to
all ancillary and subsidiary subjects including the imposition of ban on trade
in imported ivory of all descriptions, whether drawn from mammoth or elephant,
for the salutary purpose of the preservation of the Indian elephant.
Based on the above reasoning, the
Court dismissed the appeal petition.
Article Information
WILDLIFE (PROTECTION AND CONTROL OF POLLUTION) ACT, 2022 AMENDMENT ANALYSIS
Authors: SEERAT AGARWAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/15
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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