The article is written by Harmanpreet Kaur, from Amity University, Kolkata. The article focuses on the protection of fauna in India, and steps taken by the Judiciary to protect it.

Introduction 

The protection of the environment is a global issue and it is not an isolated problem of any particular area or a nation. Today, the interaction of society with nature is so extensive that the environmental issues have assumed proportions which in turn has affected “humanity,  industrialization, urbanization, population explosion, over-exploitation of resources, depletion of traditional sources of energy, disruption of the natural ecosystem and the destruction of the multitude of animal and plant life species, and are the reasons that have led to the environmental degradation”.

Conservation of the living natural resources i.e., plants, animals, and microorganisms, and the non-living elements of the environment on which they depend is crucial for development. The conservation of wildlife is the most essential agenda of the government, and it has also taken various initiatives for its protection. Therefore 4 percent of the earth’s land area is required to conserve animal species in this way by establishing biosphere reserves, national parks, and sanctuaries.

Though, nowadays the challenge is not about conserving wildlife but how to succeed the mechanisms that have been made for implementation in the national interest. According to the report of the World Wildlife Fund (WWF), it has been estimated that about 52 percent of the world’s animals have vanished in the last 40 years. The Living Planet report of 2020 has stated that there has been an average decline of 68 percent of the global species in less than 50 years. Thus, the conservation of wildlife is of immense importance to mankind and in maintaining an equitable balance. The protection of wildlife should be of the utmost priority, and it is not only the responsibility of the government but also the citizens of the particular nation.

The article will deal with the factors that have led to the wildlife extinction in India, and are the legislations enough for protecting the wildlife? Or have the judgments passed by the Supreme Court acted as a good precedent in the protection and conservation of wildlife?

India and fauna – the ones towards extinction 

India has an immense variety of natural resources. The country is rich in plant and animal heritage, which sustains millions of people. However, the need of the hour is to protect the natural flora and fauna. The concern for the protection of wildlife can be traced back to the third century when King Ashoka issued a decree at the end of his reign stating that ‘twenty years after his coronation, he released that the animals are not meant to be killed, and should be conserved and protected prohibiting the forest fires”. 

The fauna should be protected and conserved as the animals and plants are of great economic importance to the humans in providing various products and byproducts; in maintaining the balance of nature; in conserving the biodiversity; are of great importance to the scientists as they can conduct various experiments; and contribute in aesthetic and cultural values.

In the present era, humans have been exploiting natural resources like plants and animals for their own economic and social benefits, which as a result has led to the extinction of wildlife. The extinction of wildlife will ultimately lead to the extinction of the human race. India has one of the richest and most varied faunas in the world. However, over the last several decades there has been a rapid decline of India’s wild animals and birds which is of grave concern. Some of the wild animals and birds have already become extinct e.g. cheetah, leopard, panda, and tigers. 

According to the report published by the Federation of Indian Animal Protection Organisation in 2021, it was estimated that about 5 lakh of the animals became victims of the crimes committed by humans which included poaching, sexual abuse, torturing, and killing them for economic purposes. There are various causes enlisted below that have led to the extinction of fauna in India. They are:- 

• The destruction of habitat is the most serious threat to wildlife. Deforestation, development of various developmental works like roads, railways, industries, and reservoirs have reduced the natural habitat of the wildlife.
• Environmental pollution is a major rising concern not only for humans but also has adversely affected plant and animal life.
• Population growth is an issue to conservation efforts in many developing nations because the increase in population threatens parks and biosphere reserves. The people with traditional rights on forests continue to destroy the flora and fauna and thus affect the wildlife
• Hunting of animals for food and safety has been in practice since the early 19th century. A large number of species of wildlife have vanished due to the hunting of animals. Even though poaching and hunting have been criminalized under the Indian legislation, people use them as sports and the tribes use them to sustain their lives.
• Forest fires are on a rise, whether intentional or by mistake has led to the extinction of several species of wildlife in the past.

Legislations for protecting wildlife in India – an overview

The Indian legislature has from time and again have taken various steps to protect the environment. If we look back into history, when the Indian Penal Code was enacted in 1860 it did not contain any provision related to the protection of wildlife, but the Act declared maiming and killing of animals as a punishable offence. Then there were various other acts by the British Parliament that made the killing of wild animals a punishable offence like the Elephants Preservation Act, 1879 that was introduced to provide protection to elephants. But the first direct codified law in India for the protection of wildlife was passed by the British Government in the year 1887 i.e the Wildlife Birds Protection Act, 1887 with the aim to prohibit the possession or sale of any kind of specified wild birds; but the Act initially was repealed as it proved to be inadequate and was replaced by The Wild Birds and Animals Protection Act, 1912. With the passage of time, the Indian parliament took effective measures to protect the environment by introducing The Indian Forest Act, 1927 which consolidated the law relating to the forests and forest produce; The Forest Conservation Act, 1980 which was made to keep a check on the activities that are being conducted which will result in the degradation of the environment.

As there was no law relating to the protection of wildlife, the parliament enacted the Prevention of Cruelty to Animals Act, 1960 and the Wildlife Protection Act, 1972 to preserve and improve the wildlife. 

The Wildlife Protection Act, 1972

The Wildlife Protection Act, 1972 was introduced by the Parliament under Article-252 of the Constitution of India on the request of the eleven states which contended that there should be a comprehensive national legal framework for wildlife protection. The Act was aimed to achieve the two objectives:-

1. Specified endangered species should be protected at all locations;
2. All species should be protected in the specified areas.

The Supreme Court has elucidated the objectives of the Wildlife Protection Act, 1972 in the case of State of Bihar v. Murad Ali Khan that the wildlife laws have a long history and which makes it necessary for the parliament and the judiciary to protect the wildlife. The judiciary was of the opinion that as the ecological imbalances and the degradation of the environment had reached a crest, and if effective steps were not taken this damage would become irreversible. 

The Wildlife Protection Act was amended in the year 2002, to introduce the necessary changes and inclusion in the act. The objectives were:-

1. To provide protection to the wild animals, plants, and birds and all the matters connected therewith,
2. To ensure the ecological and environmental security of the country.

Landmark judgments by the Supreme Court in protecting fauna 

“The greatness of a nation and its moral progress can be judged by the way its animals are treated- Mahatma Gandhi.”

The welfare of the animals and the rights of the animals have been given utmost importance and the judiciary has been taking steps to support animal rights. Animal rights should be protected, just the way human rights are protected. Animal welfare has though not reached its zenith i.e there has been no recognition of animal rights, but the judiciary is constantly striving to uphold the rights of the animals. If the animals are neglected or are subjected to any kind of violence by humans, then this will result in animal cruelty. Animal rights have been advocated and supported by the legislature and the judiciary to save them from any kind of oppression, violence, and maltreatment by humans.

There have been constant conflicts between humans and animals and thus it is the job of the judiciary to take decisions to forbid violence on animals. India is the only country that has precisely undertaken steps to provide protection to the wildlife by the enactment of the Wildlife Protection Act, 1972. It has also taken various decisions in providing justice to the animals and giving recognition to juxtaposing animal rights at the same level as that of human rights.

The Supreme Court has taken and passed various judgments for protecting the fauna in India. Some of the landmark judgments by the court are:

Tarun Bharat Singh Alwar v. Union of India, 1992

In this case, the petitioner, a social action group, was an organization concerned with the protection and conservation of wildlife. The group aggrieved by the actions of the state government filed public interest litigation under Article 32 of the Constitution of India for the purpose of certain statutory notifications issued by the government in the area, that was popularly known as the ‘Sariska Tiger park’, which was declared as a sanctuary under Section- 55 of the Wildlife Protection Act, 1972. It was alleged by the petitioners that certain mining operations were being carried out in the area on the pretext of the grant of licenses by the state government, which were acting as a hindrance to the environment and was affecting wildlife in the park, and stated that the state government by issuing licenses by notifications and declaration was itself permitting the degradation of the environment by authorizing the mining operations in the area.

The Supreme Court stated that:-

• Direction for the appointment of a committee headed by a retired judge to ensure the enforcement of the state notifications and other orders of the Supreme court and ensured that there should be the protection of the environment and wildlife within the protected area under Section 3 of the Environment Protection Act, 1986
• It directed that no mining operations should be conducted in the protected areas as the mining operations have infringed Section 2 of the Forest Conservation Act, 1980.
• Police protection should be provided to the environmental activists against any kind of physical threats by vested interests.
• The activists were provided rewards for taking up the matter to the Supreme court and in order to protect the wildlife.

Chief Forest Conservator (wildlife) v. Nisar Khan, 2003

In this case, The appellant was a dealer in birds namely Munias, Parakeets, Mainas, and Buntings which were found in abundance in the State of Uttar Pradesh. He was granted a license by the state government for carrying on his business which was valid up till 1990. After the expiration of the term, he submitted his application to the licensing authority for the renewal of the license for the next year, but the license was refused to be granted on the ground that it wouldn’t be possible for him to carry on the business of breeding of captive birds without hunting which includes the trapping of birds. The respondent challenged the order of the High Court and filed a writ petition in the Supreme Court contending that it was the violation of his basic fundamental right i.e., freedom to carry on trade or business under Article 19.

The Supreme Court held that:

• The licensing authority has rightly refused to renew the license as the business of breeding birds in captivity by procuring them by trapping is prohibited under Section-9 and Section-2(16) of the Wildlife Protection Act, 1972. 
• The appellant’s plea of his violation of fundamental right was refused on the ground that Article 19 states restrictions that if any business is posing threat to public peace or is found to be illegal in the eyes of law, then he shall be forbidden to carry on any business.

Consumer Education and Research Society, Ahmedabad v. Union of India, 2000

In this case, the Government of Gujarat in the exercise of its powers under Section 18 of the Act declared a part of the forest area in the Lakhpat Taluka of Kutch as a ‘wildlife sanctuary’ named as Narayan Sarovar Chinkara Sanctuary’, where the state government issued a notification that 94.87 sq. km of land would be a part of the said reserve forest. 

The petitioner challenged the notifications, which were quashed by the state government. Steps were taken by the state government:

• The state government decided to delimit the area of the sanctuary as it was found to be more than required and the delimitation was likely to be helpful in systematically developing that area economically by making use of its mineral wealth.
• It moved the state legislature to pass an appropriate resolution on that behalf. The state legislature passed the resolution for reducing the statutory limit and was passed in the exercise of the powers under Section 26A(3) of the Act.
• The government issued a notification to that effect but was again challenged by the petitioner on the ground that the area was not enough to protect the wildlife

The High Court: 

• Dismissed the petition and stated that the state legislature was quite aware of the wildlife and the area of 444.23 sq. km was enough for 1200 chinkaras to be protected.
• It was further held that the economic development of the area was likely to benefit the people of the area at large and help in the protection, preservation, and development of the flora and fauna.

The petitioner challenged the decision of the High Court on the grounds that:

• The state government had wrongly assumed that the purpose of the impugned notification was to protect the chinkaras in the area.
• It was issued with a view to protect the ecosystem and maintain an ecological balance.
• The state legislature did not use its intellect to gather all the relevant facts and passed the resolution only relying on the opinion of the state government.
• It was pointed out that a large number of trees on the land which was given on lease for the purpose of the setting up of a cement plant was not brought to the notice of the legislature. 

The Supreme Court elucidated its judgment on the grounds that:

• It would not be proper to invalidate the resolution of the state legislature when it was duly found that the decision was taken by them with the proper reviewing of the facts. It stated in this context that a decision for the reduction of the area was given to the state legislature and not the state government. The state legislature consists of intellectuals and representatives who are very well aware of the local areas and their protection, so it will be invalid to question the state legislature of their powers and functions.
• Though the state legislature took the decision to pass the resolution hastily and without considering all the relevant facts, it will not be prudent to invalidate its decision unless there is material to show that the decision thus taken would have an adverse effect on the environment and the wildlife.
• The court stated that the forest in the notified area is an edaphic thorn forest but with a large number of trees. It has been identified as a potential site for designation as a biosphere reserve as declared by the Forest Committee, but at the same time pointed out that it was a backward area and there is no possibility of industrial development. 

Therefore, affirmed that if an attempt by the state legislature and the government maintain an equitable balance between the economic development of the backward area and the protection of the environment including both plants and animals then the principle of prohibition should not be applied, but it would be maintainable to apply the ‘principle of protection’, ‘principle of polluter pays’ with a view of sustainable development and intergenerational equity.

Naveen Raheja v. Union of India, 2001

In this case, Naveen Raheja, a wildlife enthusiast filed a public interest litigation under Article 32 of the Constitution of India, stating the vulnerability of the captive tigers in the zoo at Bhubaneswar and later on the most horrendous incident of the skinning alive of the tigress at the Nehru Zoological Park, Hyderabad. He raised his concern over the welfare of the animals both in the reserved forests and in the zoos. The Supreme Court was tormented by the gruesome activity that was indulged in by the humans, rendering the animals in sheer agony and pain.

The Supreme Court stated that:

• It was the duty of the authorities of the zoo to provide protection to the tiger but resultantly received no protection from this cruelty that was conducted in the zoo.
• Poor voiceless animals cannot be allowed to be treated in such a terrific manner, resulting in animal cruelty. If committed, it will result in punishment under the Prevention of Cruelty to Animals Act, 1960.
• The court directed that the state should take appropriate steps so that no such incident ever occurs in the zoos or reserved forests.

T.N.Godavarman Thirumulpad v. Union of India, 2012

In this case, the petitioner Godavarman filed a petition under Article 32 under the Supreme Court stating that the state governments of Chattigrashand the Union of India should be directed to take necessary steps to save the Asiatic Wild Buffalo, an endangered species, and also to take steps to ensure that the interbreeding of the wild and domestic buffalo does not take place, and the genetic purity is maintained.  

The Supreme Court gave detailed directions:

• Directed the State of Chattisgarh to implement the Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 so as to save the wild buffalo from extinction.
• Emphasis should be laid on the recovery programs for saving critically endangered species and habitats distinguished from conservation programs, and the objectives of the recovery program are to protect wildlife outside the protected areas.    

The Wildlife Protection Society of India, 1994

The Wildlife Protection Society of India was introduced and formed in the year 1994 by Belinda Wright as an Executive director of the society and included environmentalists and conservationists as the official members. The society was formed with the main aim to bring into focus the formidable task of India’s growing wildlife crisis, from poaching to harassing animals in the zoos and the wildlife sanctuaries. The society thereby provided support to the government authorities to combat poaching and to track any illegal activity being conducted in the forests, zoos, sanctuaries and biosphere reserves, the society has recently increased its boundaries and is fighting for the recognition of animal rights, and also to take actions if there is any animal-human conflict, and also provides protection to the endangered wildlife species. 

The society helps the respective state governments by conducting Wildlife Law Enforcement workshops, providing comprehensive details of wildlife cases through the Wildlife crime database, conducting legal programmes to help in registering the cases related to poaching, encroachment and any illegal activity and also supporting various conservation projects organized by the state governments. In the year 2017,the society helped the government and the enforcement agencies by providing information and assistance to them in registering 19 wildlife cases; 15 cases in India and 4 in Nepal, near the Indo-Nepal border. These cases led to the arrest of 38 alleged wildlife criminals, 26 Indian nationals and 11 Nepalese.

The National Environment Policy, 2006

The National Environment Policy, 2006 is a policy initiated by the Central Government with the main commitment to a clean environment that has been directed in the Constitution of India under Article 48 A and Article 51 A (g), that has been strengthened by the Judiciary in Article 21 of the Constitution. The main objective of the policy is to conserve environmental resources including plants, wildlife, forests and other man-made heritages that are necessary for the conservation of the environment. As the article talks about the protection of the wildlife, so talking about the strategies adopted by the makers to conserve the wildlife were:

• To expand the protected area network of the country.
• Formulation and implementation of partnerships that would enhance the protection and conservation of wildlife in the sanctuaries and in the biosphere spheres.
• To encourage ecotourism at the wildlife sites. 
• To implement measures for captive breeding and protecting endangered species.

Are judgments a good precedent

The United Nations proposed the law of Animal Rights in order to provide protection to the animals. The judiciary has from time and again taken decisions in the welfare of the animals and has recognized the importance of animal rights, juxtaposing human rights. 

The judgments are a good precedent, but the punishment given to the wrongdoer is not enough. Even though the judiciary has passed judgments and act for the protection of animals, there is no decrease in the cases of animal cruelty. It’s not only the judgments but there are other initiatives that have been taken by the judiciary and the government such as:

• Fourteen biosphere reserves have been set up in the country for the protection of the flora and fauna.
• Various national awareness programs have been initiated by the government.
• Financial and technical assistance has been provided to the various forests and wildlife sanctuaries.   

The collective responsibility of every citizen in protecting the fauna

 The constitution has provided fundamental rights for the various citizens of India, but at the same time, they also have been provided with fundamental duties. It is not only the duty of the judiciary and the government to provide protection to wildlife, but it should also be the collective responsibility of the citizens to protect the environment including wildlife.

• The Forty-second Amendment,1976 of the constitution introduced Article 48A, which imposes an obligation on the state to protect and improve the environment including wildlife.  
• The Forty-second Amendment, 1976 of the constitution introduced Article 51A, which imposes a fundamental duty on every citizen to protect wildlife and to have compassion for living creatures.

So, it states that the State and the citizens are both under an obligation to protect the wildlife and to have compassion for living creatures. The constitution states that under List III of the seventh schedule, both the center and the state can make laws relating to the prevention of cruelty to animals, protection and conservation of forests, protection of wildlife and birds, prevention of the extension from one state to another of infectious or contagious diseases or pests affecting men, animals, and plants. It is stated under List II of the seventh schedule that the state has the power to make laws to preserve, protect and improve livestock and prevent animal diseases and on fisheries.

Conclusion 

The legislature and the judiciary have collectively taken measures to protect the wildlife and have passed judgments that have emphasized the significance of the wildlife. The cases involving issues of environmental pollution, ecological destruction, and conflict of natural resources are increasing, so the judiciary has suggested the setting up of the “environmental courts” on the regional basis, which has led to the development of a new “environment jurisprudence”. These efforts have proved that the judiciary has not only created public awareness regarding environmental issues but also has brought an urgency in the executive on any particular case involving environmental issues. 

References

• Environmental Law, fourth edn, Paramjit Jaswal, Nishtha Jaswal, Vibhuti Jaswal.
• https://www.casemine.com/search/in/protection%2Bof%2Bwild%2Bflora%2Band%2Bfauna
• https://legaldesire.com/15-landmark-judgement-of-indian-judiciary-on-animal-rights/

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: