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amended from time to time and ultimately it was repealed and replaced by the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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