This article is written by Vedant Saxena from Rajiv Gandhi National University of Law, Punjab. It delves into the laws regulating poaching and animal trafficking activities in India and discusses their competence in this regard.
Poaching is an activity involving the capturing, hunting and exploitation of animals. Animals are exploited for a lot of purposes. For instance, in India alone, a number of products are developed from mongoose hair; snakeskin; rhino hair; tiger and leopard claws, bone, skins, whiskers; deer antlers; turtle shells; caged birds etc. Poaching has manifested into a multi-billion dollar business today. Oftentimes, the trade is carried out on the international market front.
On March 27, 2017, the Ministry of Environment, Forest and Climate Change informed the Indian government that poaching has not risen in recent times. However, a book titled “State of India’s Environment 2017 In Figures” suggests otherwise. According to it, there has been a 52 per cent hike in the number of poaching activities carried out between 2014 to 2016. It further says that over 30,382 wildlife crimes and mortality have been recorded till December 31, 2016. In 2016, 50 tigers were poached, which is the highest in the past decade. Meanwhile, 340 peacocks were killed because of poaching between 2015 and 2016, which 193 per cent higher than that of 2014. 37,267 turtles seized between 2015 and 2016. Over 100,000 pangolins are captured illegally every year.
India has its own long history of poaching. It is believed that the activity was first made popular by Mughal emperor Jalal-ud-Din Muhammad Akbar in the 16th century. He developed a passion for it and sparked off the tradition of ‘shikar’ (royal hunting). Ever since this activity has been pursued by a number of rulers and has often been associated with power and prestige.
However, these activities have had a detrimental effect on a number of animal species, thereby damaging the ecology. Moreover, poaching is not merely carried out for basic needs. More often than not, the activity has been associated with a number of traditions and beliefs in the country. For instance, it is believed that tiger necklaces bring the wearer power and good-luck. Certain animal bones or horns have been considered to possess magical medicinal properties that cure a variety of diseases. All of these practices have encouraged poaching to develop into the huge trade, which it is today.
Laws prohibiting poaching and animal trafficking
According to Article 48-A of the Constitution, the State shall strive to safeguard the wildlife and forests of the country. Article 51-A confers a fundamental duty upon all citizens to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to possess compassion for living creatures. Although fundamental duties are not justiciable per se, a statute could be incorporated to make them legally enforceable.
The Prevention of Cruelty to Animals Act, 1960
This Act was passed to prevent the infliction of unnecessary pain or suffering on animals, which is done in pursuance of covert poaching operations. If a person subjects an animal to cruelty in any manner as prescribed by Section 11, he shall be held liable and be punished with a fine that may extend up to 50 rupees. However, with regards to subsequent offenders who commit the offence within 3 years of the previous one, the punishment incorporates a fine which shall not be less than 25 rupees, and which may extend up to 100 rupees. Moreover, subsequent offenders are also debarred from keeping any animal again.
The Act draws out a distinction between cognizable and non-cognizable offences. Cognizable offences are grave offences, which confer upon police officers the right to arrest without a warrant. For instance, the mutilation or killing of any animal by employing unnecessarily cruel techniques, or organizing or participating in any shooting event wherein animals are released from captivity for the purposes of such event or performing torturous operations such as phooka on any milch animal for the purpose of inducing it to deliver milk.
On the other hand, non-cognizable offences are considered less serious offences and do not hand over the privilege of arresting without a warrant to a police officer. Beating, kicking, overriding, overdriving, employing an unfit animal for work or labour, wilfully administering an injurious substance to an animal, confining an animal within bars not spacious enough to allow it a reasonable opportunity for movement, possessing or offering for sale any animal which is suffering pain by reason of mutilation, starvation, thirst, overcrowding or other ill-treatment, etc. are all considered non-cognizable offences.
The Wildlife (Protection) Act, 1972
In a nutshell, this Act prohibits the illegal capturing, killing, buying and selling of animals and animal parts. Further, it empowers the state to take measures for protecting the flora and fauna as it deems fit.
Section 9 of the Act prohibits the hunting of wild birds. Although in the usual sense, hunting is associated with the eventual killing of wild animals, this section included acts of capturing and trapping too. According to Section 57 of the Act, if a person is in possession, control or custody of any wild animal, it shall be presumed that he does not hold lawful possession of the animal. Under Section 51, any person committing a breach of any of the conditions listed down in the Act shall be punished with imprisonment which may extend up to 3 years, or with a fine which may extend to 25,000 rupees, or with both.
The Indian Penal Code, 1860
Sections 428 and 429 of the Indian Penal Code makes it illegal to maim or cause injury to any animal with a monetary value greater than Rs 10. It is illegal to throw acid on cows (something that vegetable sellers do as a matter of routine). The Code also makes it illegal for cars to purposely injure or kill dogs, cats and cows on the street. Offenders can be reported to the local animal protection group and police station and a case filed under the above-referenced sections. Punishment is a fine of Rs 2000 and/or a jail term of up to five years.
Section 268 defines the crime of public nuisance. If any person does an act that causes annoyance, endangerment or injury to the public at large, he shall be guilty of committing public nuisance. Therefore, if a person kills or causes injury to an animal in public, he may be convicted of this crime. The punishment for public nuisance, as stated in Section 290, is a fine that may extend up to 200 rupees.
Section 378 defines theft. If any person who intends to take away any movable property out of the possession of any other person, moves that property to that effect, he shall be guilty of committing theft. Animals are included within the ambit of moveable property. Therefore, for instance, if a person does an act to induce another person’s dog to come after him, with an intention of dishonesty, depriving the owner of its possession, he shall be committing theft. According to Section 379, any person who commits theft shall be punished with imprisonment which may extend to 3 years, or with a fine, or with both.
The Performing Animals (Registration) Rules, 2001
Section 3 of the Performing Animals (Registration) Rules states that in order to train any animal or exhibit any animal performance, one must have to apply for registration for that purpose. Further, while granting registration, the deemed authority may prescribe any such condition(s) which it may consider appropriate in the interest of the animal(s). Conditions imposed may include ensuring proper watering and feeding halts during transportation, prevention of unnecessary infliction of pain and suffering during such training/exhibition, training an animal to perform an act according to its basic natural instinct, preventing the performance of a sick, injured or pregnant animal, etc.
The Experiments On Animals (Control And Supervision) Rules, 1968
Section 4 of the Experiments on Animals (Control and Supervision) Rules, 1968 lays down certain conditions regarding the conducting of experiments:
- Experiments should be performed with due care and humanity.
- Experiments shall be performed in every case by or under the supervision of persons duly qualified, in a laboratory adequately equipped and staffed for the purpose and under the responsibility of the person performing the experiment.
- Minimum number of animals shall be used in an experiment.
- Experiments involving operative procedure more severe than simple inoculation or superficial venesection shall be performed under the influence of anesthetic of sufficient power to prevent the animal from feeling pain and it shall remain so throughout the experiment.
The Transport of Animal Rules, 1978
- Animals to be transported shall be healthy and in good condition. They should be examined by a veterinary doctor for freedom from infectious diseases and their fitness to undertake the journey, provided that the nature and duration of the proposed journey shall be taken into account while deciding upon the degree of fitness.
- An animal that is unfit for transport shall not be transported and the animals that are newborn, diseased, blind, emaciated, lame, fatigued or having given birth during the preceding seventy-two hours or likely to give birth during transport shall not be transported.
- Pregnant and very young animals shall not be mixed with other animals during transportation.
- Different classes of animals shall be kept separately during transportation.
- Diseased animals, whenever transported for treatment, shall not be mixed with other animals.
Competence of the laws
Laws prohibiting illegal poaching have certainly been implemented. However, the relevance of law is judged by its outcome, and judging by recent stats, it is fairly evident that the poaching laws have not succeeded much in curbing the practice and thereby protecting wildlife. In 2016, it was discovered that a notorious wildlife trafficker with international links had smuggled the body parts of over 125 tigers and 1200 leopards. Each of the convicts was sentenced to 4 years of imprisonment and were also ordered to pay a fine of rupees 10,000. He had also been arrested in a different state with 456 nails of tigers and leopards, back in 2004. In June 2018, 6 people, who were found to possess 12 tusks, were arrested.
One of the most evident reasons for such failure is the level of punishment awarded by the laws. This is because animals are still not considered entities equivalent to human beings, and thereby not subject to the same level of rights and liberties as enjoyed by humans. However, it must at all times be kept in mind that humans did not create animals. Therefore, what gives them the right to exploit animals for their selfish needs?
R. Simon v. Union of India
In 1991, based on the recommendations of the Indian Wildlife Board and the Ministry of Environment and Forest, the Wildlife Act was amended. The recommendations were made in lieu of the rapidly increasing poaching activities in the country, due to which the country’s wildlife population had been declining rapidly. The amendment prohibited trade in animal articles. The petitioner in this case, who was the manufacturer of various products derived from animal parts such as bags, shoes and briefcases (derived from snakeskin), challenged this amendment on grounds of violation of his fundamental right to practise any trade or profession (Article 19(1)(g) of the Constitution).
He further contended that there are certain animal species that are harmful, and seldom serve any useful purpose. The court rejected his contentions and said that Article 19(6) empowers the court to pass laws restricting the right to trade and profession, in the interests of the general public. Protection of the flora and fauna are definitely in the interests of the public. Further, the court said that in spite of a lot many species serving no useful purpose to humans, they still need to be preserved, and every citizen has a duty to protect and improve the wildlife and environment. Even in Indian Handicrafts Emporium vs. Union of India, the validity of the 1991 amendment was upheld and thus, the scales of justice were balanced between fundamental rights and social interests.
Balram Kumawat Vs.Union of India & Ors
The 1991 amendment of the Wildlife Protection Act prohibited the importation of ivory in India. The petitioner, in this case, contended that elephant fossil ivory (mammoth ivory) is not equivalent to regular elephant ivory, since the mammoth had already gone extinct a long time ago. However, the court declared that the 1991 amendment bans import of ‘all forms’ of ivory, and therefore mammoth ivory too. It also said that the WildLife Act has been enacted in the larger public interest and in consonance with Articles 48A and 51A (g) of the Constitution of India as also international treaties and conventions.
Pradeep Krishen vs. Union of India
This case shattered the widespread belief that the people who live near forests are always pursuant to following the natural order. The plaintiff challenged an order of the Madhya Pradesh government which permitted the villagers to collect tendu leaves from contractors. He contended that in pursuance of this order, a large number of trees had been destroyed. The Supreme Court directed the Madhya Pradesh government to prohibit entry of any villager or tribal in the wildlife protected areas.
Wildlife poaching, a crime fueled by a lucrative black market trade of animal parts has devastating side-effects on local communities, wildlife populations, and the environment. The virus can survive only as long as the host is habitable. For mankind to keep thriving, it is absolutely necessary to curb poaching. Following are a few suggestions:
- Education is arguably the most important step that must be undertaken in order to curb poaching. India is still home to over 300 million illiterate adults. Beliefs of considering animal parts to possess magical healing abilities have persisted for centuries, and have been the primary cause of uncontrolled poaching. Therefore, it is absolutely incumbent that people be educated about the way poaching renders the ecological balance lopsided.
- Another step that must be taken is to increase the punishments for poaching. The primary motive of punishing an offender is to generate in his, and other people’s minds, a feat to prevent them from carrying on such acts in the future. A paltry punishment may render the law useless.
- Harsher laws for discouraging corruption need to be implemented so that people would automatically fear before taking any bribes. A more lenient and positive method to reduce and ultimately eradicate the practice of corruption is by increasing the salaries of all government employees, thereby eradicating their need for corruption. Although this method might put a toll on government resources, it would also help increase the same by slowly decreasing the amount of black money.
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