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  • Table Of Cases

  1. Fatehchand Himmatlal v. State of Maharashtra, 1977(2) SCR 828.
  2. Ivory Traders and Manufacturers Association v. Union of India, AIR 1997 Delhi 267.
  3. Jesse W. Clarke v. Haberle Crystal Springs Brewing Company, 280 U.S. 384
  4. Minerva Mills v. Union of India, (1992) 3 SCC 336.
  5. Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai, AIR 1986 SC 1205.
  6. Pappasam Labour Union v. Madura Coats Ltd., (1993) 1 SCC 501.
  7. State of Bihar v. Murad Ali Khan, (1988)4 SCC 655.

  • Table Of Statutes

Constitutions

q  Constitution of India.

Indian Statutes

q  Maharashtra Debt Relief Act, 1976.

q  Wild Life (Protection) Act, 1972.

q  Wild Life (Protection) Amendment Act, 1986.

q  Wild Life (Protection) Amendment Act, 1991.

Treaties And Conventions

q  Convention on International Trade in Endangered Species of Wild Flora and Fauna.

  • Introduction

A law is but a reflection of the aspiration and mores of a society, and undergoes changes with time[1]. Till the middle of the last century, wildlife in India was abundant and its habitat was largely intact. In the early seventies, it became clear to decision-makers that unless a uniform, well-structured law was promulgated across the country, protection of wildlife would be in jeopardy. The Wildlife (Protection) Act of 1972 was therefore put into place. The Wildlife (Protection) Act of 1972 reflected the realities of its time. It allowed hunting permits and a regulated trade in wildlife articles including ivory, fur, skins, and other wildlife derivatives[2].

However over the years poaching of wild animals took serious dimensions because of the exponential rise in the price of wild animals and their products. The population of Indian elephants, particularly in south India is under serious threat by ivory poachers. Although the trade in Indian ivory was banned in 1986 the trade in imported ivory gives an opportunity to unscrupulous ivory traders to legalise poached ivory in the name of imported ivory. It was in light of these activities of the poachers and ivory traders and the rapid depletion of the elephant population that Parliament enacted the Amendment Act No. 44 of 1991 in order to amend the Wild Life (Protection) Act, 1972 and thereby protect the Indian Elephant. Through this amendment Parliament sought to ban trade in all ivory whether Indian or imported and also sought to confiscate stocks of ivory lying with ivory traders after giving them reasonable time and opportunity to dispose of their ivory stockpiles.

This Amendment Act was challenged as being violative of Articles 19(1)(g) and 300A of the Constitution of India by Ivory Traders and Manufacturers Association before a full bench of the Delhi High Court and it is this case which shall be the focus of study of this project.

The project performs a comprehensive study and analysis of the Delhi High Court’s decision in Ivory Traders and Manufacturers Association v. Union of India[3]. It also looks at the impact and effect of the decision and whether the decision has resulted in a safe environment for the Indian Elephant. The project also examines the role of the Convention on International Trade in Endangered Species in protecting the elephant and gives suggestions as to how the court’s decision can be fully implemented and thus provide safety and protection to the elephant in India.

  • Research Methodology

Aims and Objectives

The project aims at performing a comprehensive study and analysis of Ivory Traders and Manufacturers Association v. Union of India. It aims at explaining the facts and contentions of the parties, the issues that arose before the Court and how the Court responded to them and how the Court reached its decision. Another objective of the project is to analyse the role of the Convention on International Trade in Endangered Species in protecting the Indian Elephant. The project also aims at understanding the impact of the judgment and gives suggestions regarding effective implementation of the Court’s decision.

Nature of Project

The project is analytical as well as descriptive in nature. However majority of the project is analytical in nature.

Sources of Data

The sources of data are primary as well as secondary in nature. A host of leading textbooks relating to environmental law have been referred to. Case reporters like Supreme Court Cases and All India Reporter have also been used. Information has also been accessed from the information superhighway or the Internet.

Scope and Limitation

The scope of the project is limited to a study and analysis of the Delhi High Court’s decision in Ivory Traders and Manufacturers Association v. Union of India and ancillary and incidental issues. The project does not deal with similar decisions in the USA and the UK. The project also does not explore the history of wild life legislation in India.

Research Questions

The research questions are:

  • What are the facts of the case and the contentions of the parties?
  • What did the Court decide and what was the rationale for its decision?
  • What were the issues that arose before the Court and how did the Court respond to them?
  • What has been the impact of the judgment and has it yielded the desired results?
  • What is the role of the Convention on International Trade in Endangered Species in Indian wild life legislation and has it helped the Indian Elephant in any way?
  • How can the decision of the Court be better implemented?

Mode of Citation

A uniform mode of citation has been adopted throughout the course of this project.

  • Facts Of The Case And Contentions Of Parties

Brief Facts[4]

M/s. Ivory Traders and Manufacturers Association and Others v. Union of India and Others[5]

M. Jagannadha Rao, C.J., Anil Dev Singh and Manmohan Sarin, JJ.

Delhi High Court

In this case two sets of civil writ petitions came up before the Full Bench of the Delhi High Court.

In Civil Writ Petitions Nos. 1016/92, 1272/92, 1749/92, 1631/92 the petitioners included a Society registered under the Societies Registration Act, 1860 (an association of persons connected with the trade and business of ivory, including persons manufacturing articles therefrom), dealers in ivory and artisans engaged in the business of carving raw ivory. They challenged certain amendments carried out in the Wild Life (Protection) Act, 1972 by the Amendment Act No. 44 of 1991 whereby the trade in imported ivory and articles made therefrom have been banned.

In Civil Writ Petitions Nos. 1303/92 and 1964/93 the petitioners are dealers and manufacturers of jewellery and carvers of mammoth ivory respectively. Their grievance is that though they are not covered by the Wild Life (Protection) Act, 1972 and the Amendment Act No. 44 of 1991, the authorities are taking action against them for their being in possession of mammoth ivory and articles made therefrom. They also challenged the amendments carried out in the Wild Life (Protection) Act, 1972 by the Amendment Act No. 44 of 1991.

Contentions of Parties

The contentions of the petitioners in Writ Petitions Nos. 1016/92 etc. are[6]:

  • They carry on business and trade in ivory including the manufacture of articles derived from ivory lawfully imported into India before the coming into operation of the Amendment Act no. 44 of 1991.
  • The ban on trade in ivory imported into India or articles derived therefrom is violative of Articles 19(1)(g) and 14 of the Constitution of India as it is unreasonable, unfair and arbitrary. The Amendment Act by virtue of Section 51 read with Section 49C(2) extinguishes the title of the petitioners over the imported ivory lawfully acquired by them and articles made therefrom without making any provision for compensation thereof. This is violative of Article 300A of the Constitution of India.
  • They should be allowed to sell their stocks of ivory and products derived therefrom and the Government should buy the same.
  • Prohibition of the sale of imported ivory acquired prior to the ban has no nexus with the object sought to be achieved by the Act.
  • There is no link between elephants in the remote forests of India and the sales of imported ivory or articles made therefrom in the show rooms of the petitioners in the cities.
  • The functionaries of the wild life departments of the concerned States can prevent illegal hunting of elephants and there is no good reason to ban the sale of imported ivory and articles made therefrom.

The contentions of the petitioners in Writ Petition No. 1303/92 and 1964/93 are the same as above with respect to the validity of the Amendment Act No. 44 of 1991. Their additional contentions are[7]:

  • They trade only in imported fossil ivory and articles manufactured therefrom.
  • Parliament is not competent to legislate in regard to remnants of ivory belonging to long extinct Mammoth imported from abroad — and actually the Act does not deal with this kind of ivory at all.
  • Elephant ivory and Mammoth ivory are of different types and can be distinguished from each other.
  • Since Mammoth ivory is outside the scope and ambit of the Act, the authorities created by the Act cannot ask the petitioners to comply with the provisions thereof and to handover the stocks of Mammoth ivory and articles made therefrom to them.
  • The mammoth ivory in the possession of the petitioners is free from the provisions and restraints of the Act and thus the Act does not apply to them.

The contentions of the respondents viz. the Union of India and the World Wide Fund for Nature (WWF) are[8]:

  • The Wild Life (Protection) Act, 1972 was enacted to provide protection to wild life and it must be viewed in that perspective.
  • The necessity of protection and conservation of wild life is essential for the very existence of human life.
  • Trade in wild life is akin to trade in liquor or any other noxious trade and does not have the protection of either Article 14 or 19(1)(g). It is antithetic to conservation and therefore, it is noxious and also threatens the very survival of human beings as existence of different life forms are dependent for their survival on each other.
  • The restrictions imposed by the Amendment Act were reasonable and necessary in public interest and the provisions were meant to give effect to the directive principles of the State policy.
  • Since the African elephant was included in Appendix “1″ of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) with effect from January 18, 1990, member States including India must prohibit internal and trans border trade in ivory. Parliament in order to save the Indian Elephant and to give effect to the International treaty enacted the Amendment Act (Act No. 44 of 1991).
  • The petitioners should have liquidated their stocks between 1989, when the African Elephant was proposed to be brought in Appendix ‘I’ of CITES and within six months of the passing of the Amendment Act 44 of 1991. As a result of the interim stay granted by the Delhi High Court which was operative up to July 7, 1992, the petitioners had sufficient time to liquidate the stocks but they did not do so and on the contrary kept augmenting the same.
  • Dealing in ivory imported from Africa cannot be claimed as a fundamental right.
  • Traders in the garb of dealing in ivory imported from Africa or mammoth ivory, had actually been dealing with Indian ivory which resulted in illegal killing of Indian Elephants with the result that their population has gone down and in order to arrest their further depletion it was necessary to bring about the present amendments in the Wild Life (Protection) Act, 1972.
  • The petitioners had not acquired the stocks of imported ivory lawfully.
  • The Judgment- An Analysis

The Full Bench of the Delhi High Court held that:

  • No citizen has a fundamental right to trade in ivory or ivory articles, whether indigenous or imported.
  • Assuming trade in ivory to be a fundamental right granted under Article 19(1)(g), the prohibition imposed thereon by the Amendment Act is in public interest and in consonance with the moral claims embodied in Article 48A of the Constitution.
  • The ban on trade in imported ivory and articles made therefrom is not violative of Article 14 of the Constitution and does not suffer from any of the maladies, namely, unreasonableness, unfairness and arbitrariness.
  • It is not necessary for the State to pay compensation to the petitioners for extinguishment of title of the petitioners in imported ivory or article made therefrom. Since the State is not under any obligation to buy the stocks of the petitioners in acceptance of the one time sale proposition propounded by the petitioners this Court cannot direct the State to either buy the same or pay compensation for it.
  • The words ‘ivory imported into India’ occurring in Section 49B (1)(a)(ia) include all descriptions of imported ivory, whether elephant ivory or mammoth ivory.
  • The amendments to the Wild Life (Protection) Act, 1972 fall within the power and competence of the Parliament as the same is meant to protect the Indian elephant. In order to achieve that purpose, the Parliament has undoubtedly, the power to deal with matters which, effectuate the same. It can legislate with regard to all ancillary and subsidiary subjects including the imposition of ban on trade in imported ivory of all descriptions, whether drawn from mammoth or elephant, for the salutary purpose of the preservation of the Indian elephant.

In arriving at its Judgment the Court delved into the following issues in great detail:

History of Wild Life Protection Legislation and Legislative Intent

The Court looked at the history of Wild Life Protection legislation in India and examined the Statement of Objects and Reasons of The Wild Life (Protection) Act, 1972 and the Amendment Acts of 1986 and 1991. The Court also studied the statement of the Minister of State of Environment and Forests in the Lok Sabha in order to determine legislative intent behind the legislation and the amendment.

Whether the ban imposed on trade of imported ivory and articles made therefrom by the Amendment Act 44 of 1991 is reasonable as envisaged by Art. 19(6)?

In determining the answer to this question the Court first sought to look at the object of the Wildlife (Protection) Act, 1972. It relied on the decision in State of Bihar v. Murad Ali Khan[9] where the Supreme Court noticed the purpose of the Act[10].

The Court stated that the object of the Act was to arrest depletion of animal life so as to maintain the ecological balance which is necessary for welfare of humanity.  With respect to reasonableness the Court said that the test of reasonableness is not to be applied in vacuum but it must be applied in the context of the stark realities of life. It may be that in the past a situation may not have arisen calling for the passing of a law which is enacted in the contemporary times. March of law to make the life of people to be in harmony with environment cannot be thwarted and faulted on the material considerations of a few. Reasonableness of law cannot be worked out by a mathematical formula. What may have been unreasonable restriction yesterday, may be more than reasonable today. Therefore, the criteria for determining the degree of restriction which would be considered reasonable is by no means fixed or static but must vary from age to age and is relatable to adjustments necessary to eliminate the dangers facing the community. The test of reasonableness has to be reviewed in the context of the enormity of the problem and the malady sought to be remedied by the legislation.

In the present case restriction undoubtedly imposes total ban on trade in ivory.  There was a serious problem to protect the Indian elephant as long as the traders were allowed to deal with the ivory, imported from abroad. The Court also said that in the circumstances it was necessary to strike at the root cause of poaching and remove the incentive to kill elephants by banning ivory trade altogether[11].

A law designed to abate extinction of an animal specie is prima facie one enacted for the protection of public interest as it was enacted to preserve and protect the elephant from extinction.

Therefore, under the circumstances, the Court held that it cannot be said that the restriction imposed by the Amendment Act 44 of 1991 was unreasonable, arbitrary, unfair, or excessive. The Court declared that the State has the power to prohibit absolutely every form of activity in relation to killing or slaughtering of elephants including the sale of tusks or articles made therefrom as such form of activity is injurious to public interest.

Is there any proximity between the elephants in the remote forests of India and the sales of imported ivory or articles made therefrom in the show rooms of the petitioners in the city?

The Court was of the opinion that it is very important to sound a clear message that it will no longer be remunerative to deal in ivory, not even for the purpose of one time sale and this was the object of the Amendment Act. It also needs to be driven home that the beauty of ivory and things created therefrom should not be the reason for the destruction of its source. The elephant with the tusk stands out any day to ivory curios adorning the mantel pieces of a few who can afford to buy them at fabulous prices unmindful of the virtual disappearance of a remarkable animal. This is a very heavy price to pay for satiating the aesthetic sense of a few persons. Trade and business at the cost of disrupting life forms and linkages necessary for the preservation of bio-diversity and ecology cannot be permitted even once. The Court therefore rejected the submission of the petitioners that there was no proximity between the elephants in the remote forests of India and the sales of imported ivory or articles made therefrom in the show rooms of the petitioners in the city.

Can the functionaries of the Wild Life Department of the States prevent illegal hunting of elephants and was there a good reason to ban the sale of imported ivory and articles made therefrom?

The Court felt that Parliament, understanding the vastness of the problem and considering that it will be very difficult to prevent poaching of the Indian elephant, already on the verge of extinction, and the sale of Indian ivory under the guise of imported ivory cannot be faulted as the degree of harm in allowing the petitioners to continue with the ivory trade would have been much greater to the community as compared to the degree of harm to the individual interests of the petitioners by prohibiting the ivory trade. In the former case the petitioners would have benefited at the cost of the Society. Trade and property rights must yield to the collective good of the people.

Whether trade in ivory is pernicious and not covered by Article 19(1)(g) of the Constitution?

The Court laid down that trade in ivory (word ‘ivory’ is used in comprehensive sense including indigenous as well as imported ivory) is dangerous, subversive and pernicious as it has the potential to deplete the elephant population and to ultimately extinguish the same. The Court equated trade in ivory to other pernicious activities like gambling and prostitution.

It was of the opinion that the business which the petitioners are pursuing is attended with danger to the community. Its evil effect is manifested by the depletion of the elephant population. The possession of an article made from ivory has been declared as a crime. There is no fundamental right to carry on business in crime. The Legislature has stepped in to eliminate the killing of elephant. If the legislation in order to rectify the malady has made the possession of ivory or articles made therefrom an offence, it cannot be said that the legislation vitiates Article 19(i)(g) of the Constitution to carry on trade and business. Such a pernicious activity cannot be taken to be as business or trade in the sense in which it is used in Article 19 (1)(g) of the Constitution[12].

Whether Sections 39 (1)(c) and 49C (7) read with Section 51(2) of the Wild Life (Protection) Act, 1972 are violative of Section 300A since they do not provide for payment of compensation to the owners on account of extinguishment of their title in the imported ivory or articles made therefrom?

The Amendment Act 44 of 1991 does not deal with the acquisition or requisitioning of the property for a public purpose. The right guaranteed by Article 300A of the Constitution relates to compulsory acquisition and requisitioning of property for a public purpose. None of the provisions of Chapter V-A deal with acquisition of property for a public purpose. Thus Article 300A is not attracted[13].

Did Parliament violate Article 20(1) of the Constitution by making possession of imported ivory an offence with retrospective operation?

Parliament was not authorised to make possession of the imported ivory, which was lawfully acquired by the petitioners, as an offence under Section 52 read with Section 49C (7) of the Amendment Act 44 of 1991.  The petitioner submitted that this amounted to creation of an offence retrospectively which is hit by Article 20(1) of the Constitution. The Court did not agree with this submission, as the Legislature has not created any offence retrospectively. The Court drew attention to the fact that the Asian elephant was included in Appendix I of the CITES in the year 1975, which meant that international trade in Asian ivory or articles made therefrom, was prohibited and as a consequence of it Indian ivory could be sold only in the domestic market. India being a signatory to CITES was also bound to ban trade in Indian ivory. The traders knew that such a ban was coming. India actually banned the trade in Indian ivory in 1986. The traders should have disposed of their stocks of Indian ivory from 1975 to 1986. As regards the African elephant it was proposed on October 18, 1989 to be included in Appendix-I of the CITES and was so included on January 18, 1990. Ivory traders were allowed to carry on cosmetic trade in imported ivory till the expiry of six months’ from the coming into force of the Amendment Act of 1991. Furthermore, as a result of interim stay granted by this Court the petitioners could dispose of their stocks by July 7, 1992. From the above it is clear that ivory traders were under a notice of the intending ban since 1989 and had sufficient time to dispose of their stocks of ivory in the domestic market. Though the statute gave six months time to the petitioners to liquidate the stocks from the specified date, the petitioners actually being under the protection of the Court’s order could trade up to 7th July, 1992.  The Court thus stated that: “It is significant to note that the Parliament has merely made the possession of imported ivory and articles made therefrom, after the specified date an offence. The petitioners are not being subjected to a penal law on account of their having imported ivory during the period when there was no ban in existence.”

Did Parliament encroach upon the Judiciary’s functions by banning trade in imported ivory?

The provisions relating to the banning of the trade in imported ivory does not amount to a judicial determination by the Parliament. The Parliament having regard to the public interest and the treaty obligations (CITES) enacted Amendment Act, 44 of 1991.

Does mammoth ivory come within the scope and ambit of the Amendment Act no. 44 of 1991?

In addressing this issue the court said: “When a buyer intends to buy a curio, he is not interested to know whether it was created from elephant ivory or mammoth ivory. An average buyer also does not have the expertise or the knowledge to distinguish between article made from mammoth ivory and Indian ivory. To him the translucent whiteness of the ivory matters. He buys it purely on aesthetic considerations or as a status symbol. To give permission to trade in Articles made from mammoth ivory would result in laundering of Indian ivory — a result which the legislation wants to prevent”. The Court was thus unable to accept the submission that the mammoth ivory is not ivory in the sense in which it is used in the Act. In case the legislation was not to apply to mammoth ivory the Parliament would have made an exception in this regard but it did not[14].

  • Post Judgment Scenario- Is The Indian Elephant Really Safe?

The Ivory Traders and Manufacturers Association filed an appeal against the Order of the Full Bench of the Delhi High Court in Ivory Traders and Manufacturers Association v. Union of India[15] in the Supreme Court. A Delhi-based NGO Wildlife Trust of India (WTI) filed a petition in the Supreme Court in December 2002, voicing concern regarding the stock of ivory with erstwhile traders. The Supreme Court heard this petition along with the appeal filed by the ivory traders and dismissed the appeal filed by the Ivory Traders

and upheld the order of the Delhi High Court. The Supreme Court asked the government to take possession of all ivory stocks lying with traders in the country and also ordered that idols and images of gods made out of ivory shall be kept in museums to reflect Indian traditions and culture[16].

This order of the Supreme Court came as a big boost to environmentalists and conservationists who felt that this order would prove to be an end of the ivory trade in India and provide a safe and protected environment for the Indian Elephant.

However in spite of these developments the question of safety of the Indian Elephant is not yet settled. There are concerns that there has been a revival of the ivory trade in India. Recent seizures of ivory have indicated that the ivory trade still persists and the elephant is still at the mercy of the poachers and illegal traders. Conservationists say they cannot rest because African ivory is reaching the hands of the Indian artisans. According to the WWF there appears to have grown up in recent years a whole international network that links raw ivory to ivory carvers at centres in Kerala and several other states[17]. Thus in order to protect the Indian Elephant the appropriate authorities must enforce the judicial dicta. Also awareness must be spread about the total ban in ivory trading and the consequences for violation of the ban. According to an activist “The only thing that will work for the elephant’s survival in Africa or Asia is a complete worldwide ban on ivory trade and the ruthless burning of stockpiles of ivory.[18]”

The Delhi High Court and the Supreme Court, by their orders have provided the foundation for a safe environment for the elephant. It is up to us now to build upon this and guarantee a safe environment for the gentle land giant.

  • The Importance Of ‘CITES- A Messiah For The Elephant’

That trade instruments are fundamental for the effectiveness of agreements for the protection of wildlife is demonstrated by the success of the Convention on the International Trade in Endangered Species (CITES). Although other agreements to protect wildlife contain incidental trade provisions, CITES is the only convention which seeks to protect wildlife solely by the regulation of international trade. A leading commentator on international wildlife law states that: “CITES is perhaps the most successful of all international treaties concerned with the conservation of wildlife. Its success is explained primarily by its basic principles which are quite straightforward. It regulates international trade in wild animals and plants which are listed in theree appendices to the Convention.[19]”

The success of CITES is demonstrated not only by its success in preventing the decline in populations and in some cases the recovery of endangered species, but also by the number of states that are parties[20].

The scheme of CITES is attractive both to States with and without populations of endangered species- ‘The Convention is attractive to the producer nations who see controls at the place of import as well as the place of export as essential weapons in their fight to protect their valuable wild life resources from poachers and illegal traders. The ‘consumer’ nations support it without because without controls their legitimate dealers might have no raw material in which to trade in the generations to come.[21]’

Another possible reason for the success of CITES is that it contains restrictions on trade with non-parties[22].

CITES has played a very important and successful role in India too. In fact CITES can be considered as the Messiah of the Indian Elephant.

The Delhi High Court recognising the important role played by CITES in banning trade in ivory in India and the enactment of the Amendment Act No. 44 of 1991 in Ivory Traders and Manufacturing Association v. Union of India[23] stated that:

Despite the coming into force of the Wild Life (Protection) Act, 1972 Act, the provisions did not prove effective for protection of elephants. One of the reasons was that the ‘elephant’ was placed at item No. 13 in part ‘I’ of Schedule II of the Act. According to S. 9(1) of the Act, as it originally stood, no person was authorised to hunt any wild animal specified in Schedule-I. According to clause 2 of S. 9, hunting of animals specified in Schedules II, III and IV were permitted in accordance with the conditions specified in a licence granted under sub-section 5 of the Act. Since the ‘elephant’ was placed in part I of Schedule 2 of the Act, the hunting of the same was possible under a licence. Thus the elephant had little or no chance of survival under the Act as it stood in its original form. On. March 3, 1973, a significant International Convention known as Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) took place. The Convention resulted in an agreement between the member States, which was initially ratified by 10 countries and came into operation on July 1, 1975. As the Asian elephant was a highly endangered specie, it was placed in Appendix I of the CITES. Appendix I includes all species threatened with extinction or which are or may be affected by trade. Trade in specimens of these species are subject to strict regulation in order not to endanger further the survival of these species and must be authorised in exceptional circumstances only. However, the African elephant was given place in Appendix-III which, unlike Appendix-I animals, did not enjoy immunity from being hunted and killed. The net effect of this was that while the hunting of the Asian Elephant was banned and international trade in Asian ivory was virtually prohibited, the African elephant could still be hunted. India signed the convention in July, 1974 and deposited the instrument of ratification on July 20, 1976. Indian became a party to the convention from October 18, 1976. A major development took place when the Parliament in order to amend the Wild Life (Protection) Act, 1972, enacted on May 23, 1986 the Wild Life (Protection) Amendment Act, 1986 (Act No. 28 of 1986) where by several changes were effected in the Principal Act[24], including insertion of Chapter VA. On October 24, 1986, keeping in view the depletion of elephant population and in accordance with CITES, the Central Government intervened under S.61(1) of the Principal Act and transferred the Indian elephant to Schedule-1 and listed the same at Entry 12B thereof. This was a major step towards protecting the Indian elephant as Schedule ‘I’ animals enjoy complete immunity from being hunted. The ‘elephant’ having been put in Schedule ‘I’ of the Act, the prohibition to kill the same came into force with immediate effect. As a result of this, trade and commerce in Indian elephants was totally banned…….. The African elephant like its Indian counterpart was also endangered and threatened by man and in order to save the specie, in October, 1989 at the Lusanne CITES Meet, the African elephant was upgraded and included in Appendix T of the CITES and after three months of its inclusion with effect from January 18, 1990 international trade in ivory was required to be banned. Almost all countries which are parties to the convention have given effect to it. The result of this was that virtually all international trade in ivory was prohibited with effect from the aforesaid date. In this country in order to bring the Principal Act in tune with the aforesaid development, the Amendment Act 44 of 1991 inserted sub-clause (ia) to S. 49B(1)(a) of the Principal Act as a result whereof the trade in “imported ivory” and articles made therefrom were completely prohibited.

Thus CITES can be said to be the driving force behind the banning of ivory trade in India and granting protection to the Indian Elephant and it can rightly be regarded as the messiah of the Indian Elephant.

  • Conclusion

The decision of the Delhi High Court in Ivory Traders and Manufacturers Association v. Union of India[25] can be hailed as a landmark judgment with respect to furthering the objects of the Wild Life (Protection) Act, 1972 and providing safety and protection to the Indian Elephant.

Though awareness of the ban on using and trading ivory in India has become widespread in the wake of this judgment and a certain degree of caution is exercised by those dealing in ivory, ivory trade is still continuing and the elephant is still not safe from the greedy poachers and the illegal ivory traders. Some of the reasons for the continuous trade in ivory in spite of a total ban on all ivory trade and articles manufactured from ivory can be attributed to very high profits in ivory trade. Moreover the penalty for violating the ban has no detterent value. The penalty for poaching is also not very harsh and an organised syndicate of rich ivory traders who virtually have the enforcement authorities in their pockets results in the offenders getting away scot-free.

Some measures to effectively implement the Delhi High Court’s decision and finally put an end to the illegal ivory trade in order to protect the elephant are:

  • Government investigative action should be taken to find out why the law regarding ivory is being breached with apparent ease and regularity.
  • Enforcement of existing laws regarding elephant poaching and ivory trade should be carried out more rigorously with the aid of increased penalties. I
  • It is essential that government-held and privately owned ivory stocks are registered and secured to ensure that they can be properly accounted for.
  • Details of captive elephants and their tusks should be registered with the appropriate government authority, to prevent their ivory entering the black market.
  • Courier services should be required to provide better accountability for their shipments so that they do not knowingly or otherwise transport ivory illegally.
  • India’s laws on ivory should be made known to those few who remain unaware of, or confused by, the ban on use and trade: foreign tourists should be the priority group for education in this regard.

Implementing these measures coupled with increased awareness about the complete ban on ivory trade can definitely ensure a better and safe tomorrow for the Indian Elephant.

  • Bibliography

Books

  1. CEERA Research Team, Major Environment Laws in India (Bangalore: CEERA, 1998).
  2. Dale Goble and Eric Freyfogle, Wildlife Law- Cases and Materials (New York: Foundation Press, 2002).
  3. N.L Mitra, Vijay Chatnis and M.K Ramesh ed., Environmental Management, Constitution and the Law (Bangalore: CEERA, 1998).
  4. Peter H. Sand ed., The Effectiveness of International Environmental Agreements (Cambridge: Grotius Publishing Limited, 1992).
  5. Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India (New Delhi: Oxford University Press, 2001).
  6. Simon Ball and Stuart Bell, Environmental Law- Law and Policy Relating to Protection of the Environment (London: Blackstone Press Limited, 1995).
  7. Simon Brooman and Dr. Debbie Legge, Law Relating to Animals (London: Cavendish Publishing Limited, 1997).

Websites

  1. greennature.com/article158.html (Visited on 12th December, 2003).
  2. www.teri.res.in/teriin/terragreen/issue18/essay.htm (Visited on 9th December, 2003).
  3. www.tierramerica.net/2002/1103/iacentos.shtml (Visited on 13th December, 2003).
  4. www.wildlifeofindia.com/news290803.htm (Visited on 15th December, 2003).
  5. www.wildlifetrustofindia.org/html/news/2003/030827_ivory.htm (Visited on 15th December, 2003).


[1] www.teri.res.in/teriin/terragreen/issue18/essay.htm (Visited on 9th December, 2003).

[2] Id.

[3] AIR 1997 Delhi 267.

[4] M/s. Ivory Traders and Manufacturers Association and Others v. Union of India and Others, AIR 1997 Delhi 267.

[5] AIR 1997 Delhi 267.

[6] Id.

[7] Supra note 4.

[8] Id.

[9] (1988) 4 SCC 655.

[10] In this case the Supreme Court stated that: “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 depredation 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 alarming rate, has been a great and urgent necessity for the survival of humanity and these laws reflect a last ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks to mankind that go with the deterioration of environment. The tragedy of the predicament of the civilised man is that Every source from which man has increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot foresee.”

[11] The Court also stated that: “The pressing need to preserve ecology and bio-diversity cannot be sacrificed to promote the self-interest of a few. Law enacted by Parliament to protect the Indian elephant, cannot be flawed as imposing unreasonable restraints.”

[12] The court relied on the decision of the Supreme Court in Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai, AIR 1986 SC 1205, where it was held as follows:

“The expression ‘in the interest of general public’ is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution”. While deciding this issue the Court also looked at Pappasam Labour Union v. Madura Coats Ltd., (1993) 1 SCC 501 where the Supreme Court relying upon its earlier decision in Minerva Mills v. Union of India, (1992) 3 SCC 336 held that ordinarily any restriction imposed which has the effect of promoting or effectuating the directive principles can be presumed to be reasonable restriction in public interest. It was in fulfilment of this duty of effectuating the directive principles that the Wild Life (Protection) Act, 1972 and the Amendment Act 44 of 1991 have been enacted to conserve wild life. The destruction or depletion of  other forms of life would create ecological imbalances endangering human life. No one can be given the privilege to endanger human life as that would violate Article 21 of the Constitution.  Thus trade in ivory was held to be a pernicious activity which would endanger human life and thus it is not covered under Article 19(1)(g).

[13] The Court relied on Fatehchand Himmatlal v. State of Maharashtra, 1977(2) SCR 828   where existing debts of some classes of indigents had been liquidated by Maharashtra Debt Relief Act, 1976 and the money lenders had been deprived for their loans while being forced to repay their lenders, the Supreme Court on the socio-economic considerations held that the same was reasonable even though it did not provide for compensation to the money lender.

In Jesse W. Clarke v. Haberle Crystal Springs Brewing Company, 280 U.S. 384, it was held by the United States Supreme Court that when a noxious business is extinguished under the Constitution the owners cannot demand compensation from the State.

Thus taking into account the case law the court came to the conclusion that no compensation was payable to the ivory traders.

[14] The Court also looked into the dictionary meaning of ivory and found that the meaning of ivory includes mammoth ivory.

[15] AIR 1997 Delhi 267.

[16] www.wildlifetrustofindia.org/html/news/2003/030827_ivory.htm (Visited on 15th December, 2003).

[17] www.wildlifeofindia.com/news290803.htm (Visited on 15th December, 2003).

[18] Supra note 16.

[19] Peter H. Sand ed., The Effectiveness of International Environmental Agreements (Cambridge: Grotius Publishing Limited, 1992)at 476.

[20] The fact that almost a 100 states are now parties to CITES demonstrates the widespread appeal of a treaty which strictly limits international trade in species in genuine need of protection, allows a controlled trade in those able to sustain some exploitation and sets up a system of international co-operation to help achieve its objectives.

[21] Supra note 19.

[22] Id.

[23] AIR 1997 Delhi 267.

[24] The Principal Act refers to the Wild Life (Protection) Act, 1972.

[25] AIR 1997 Delhi 267.

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