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Illegal Wildlife Trading in India
Submitted to:
Ms. Aditi Dalakoti
Faculty-in-charge
Course: Environment Law
Course Code...
1
Table of Contents
Introduction.................................................................................... 2
Int...
2
Introduction
Illegal wildlife trade in simple terms refers to sale or exchange of wild
animals or plant resources, trade...
3
obtained through the illegal ivory trade to buy guns and ammunition illustrate
the impact this activity can have on both...
4
Convention and comprises all its member States, has agreed in Resolution
Conf. 9.24 (Rev. CoP16) on a set of biological ...
5
being declared for entry or exit. Rigorous and increased inspection and border
control along with increased sharing of c...
6
legal and policy framework to regulate and restrict wildlife trade. Trade in
over 1800 species of wild animals, plants a...
7
Wildlife Protection Act, 1972
The Wildlife Protection Act, 1972, provides for protection to listed
species of flora and ...
8
the Central Government. In Rajendra Kumar V. Union of India1
, the petitioner
challenged the above clause which imposed ...
9
a term which shall not be less than one year but which may extend to seven
years and also with fine which shall not be l...
10
the offence under S. 51 of the Wild Life Protection Act with the aid of S. 149
IPC.
In GR Simon vs. Union of India4
the...
11
In Sansar Chand v. State of Rajasthan8
, the Apex Court stated,
“Before we part with this case, we would like to reques...
12
scales and bear bile. While there is no data for animal trade in India, global
trends indeed show a sharp rise in the t...
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Illegal wildlife trading in india

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Discusses the legal framework of wildlife trading in India

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Illegal wildlife trading in india

  1. 1. 0 Illegal Wildlife Trading in India Submitted to: Ms. Aditi Dalakoti Faculty-in-charge Course: Environment Law Course Code: LAW 125 Submitted by: Kunal Basu Enrol. No: A3256113116 Course: LL.B Batch: 2013-2016 Date of Submission: Wednesday, Feb.25, 2015
  2. 2. 1 Table of Contents Introduction.................................................................................... 2 International Conventions on Wildlife Protection ..................... 3 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) ................................................ 3 International Enforcement ........................................................... 4 Illegal Wildlife Trade in India...................................................... 5 Wildlife Protection Act, 1972........................................................ 7 Enforcement of Wildlife Protection Act, 1972 by Courts in India ................................................................................................ 9 Author’s Perspective ................................................................... 11 Citations …….…………………………………………………..12
  3. 3. 2 Introduction Illegal wildlife trade in simple terms refers to sale or exchange of wild animals or plant resources, trade of which is prohibited under the law. This may involve live or dead animals or plants and their derivatives. The trade may be for the pet or horticultural trade, or trade in wild animal and plant products such as skins, medicinal ingredients, tourist curios, timber, fish and other food products sought after by humans. The world is dealing with an unprecedented spike in illegal wildlife trade, threatening to overturn decades of conservation gains. Ivory estimated to weigh more than 23 metric tons—a figure that represents 2,500 elephants— was seized in the 13 largest seizures of illegal ivory in 2011. Poaching threatens the last of our wild tigers that number as few as 3,200. WWF estimates a 7,700% increase in Rhino poaching in South Africa from 13 to 1,004 between 2007 and 2013i .The trade in wildlife is the third largest illegal business behind only drugs and weaponsii . Today illegal wildlife trade is estimated to be worth US$50-150 billion per year. The global illegal fisheries catch is valued at US$10-23.5 billion a year and illegal logging, including processing, at US$30-100 billioniii . Officials have estimated that close to 25,000 elephants were killed in 2013 to supply the illegal ivory trade, with ivory reportedly priced at over US$2200 per kg on the streets of Beijing, China. Over the past few years, the number of elephants killed annually has doubled compared to 2007. For the rhinoceros the statistics are even bleaker. Over 1000 were slaughtered in 2013 in South Africa, more than any other single year. Between 2007 and 2013, rhino poaching increased by 7000% in South Africa. Rhino horn, with its supposed but unproven medicinal qualities, can bring over US$66,000 per kg on the black market. About 20,000 white rhinos and 4880 black rhinos remained in the wild as of February 2013iv . Encouraged by poverty, poorly monitored borders, corruption, and weak regulations and enforcement, wildlife poaching and trafficking continue to grow. The supply chain from producer to consumer involves more people in more countries (including some police, customs officers, and legal and political figures) as illegal products are transported using sophisticated smuggling techniques and routes. Reports suggest that rebel armies use money
  4. 4. 3 obtained through the illegal ivory trade to buy guns and ammunition illustrate the impact this activity can have on both local stability within countries and international security. In January 2014, the UN Security Council adopted two resolutions sanctioning wildlife trafficking, primarily designed to target armed rebel groups that use the illegal ivory trade as a way to generate finances. International Conventions on Wildlife Protection Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) CITES is an international agreement between governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. CITES was drafted as a result of a resolution adopted in 1963 at a meeting of members of IUCN (The World Conservation Union). The text of the Convention was finally agreed at a meeting of representatives of 80 countries in Washington, D.C., the United States of America, on 3 March 1973, and on 1 July 1975 CITES entered in force. Although CITES is legally binding on the Parties – in other words they have to implement the Convention – it does not take the place of national laws. Rather it provides a framework to be respected by each Party, which has to adopt its own domestic legislation to ensure that CITES is implemented at the national level. CITES works by subjecting international trade in specimens of selected species to certain controls. All import, export, re-exports and introduction from the sea of species covered by the Convention has to be authorized through a licensing system. Each Party to the Convention must designate one or more Management Authorities in charge of administering that licensing system and one or more Scientific Authorities to advise them on the effects of trade on the status of the species. The species covered by CITES are listed in three Appendicesv , according to the degree of protection they need. Appendix I include species threatened with extinction. Trade in specimens of these species is permitted only in exceptional circumstances. Appendix II includes species not necessarily threatened with extinction, but in which trade must be controlled in order to avoid utilization incompatible with their survival. The Conference of the Parties (CoP), which is the supreme decision-making body of the
  5. 5. 4 Convention and comprises all its member States, has agreed in Resolution Conf. 9.24 (Rev. CoP16) on a set of biological and trade criteria to help determine whether a species should be included in Appendices I or II. At each regular meeting of the CoP, Parties submit proposals based on those criteria to amend these two Appendices. Those amendment proposals are discussed and then submitted to a vote. The Convention also allows for amendments by a postal procedure between meetings of the CoP (see Article XV, paragraph 2, of the Convention), but this procedure is rarely used. Appendix-III contains species that are protected in at least one country, which has asked other CITES Parties for assistance in controlling the trade. Changes to Appendix III follow a distinct procedure from changes to Appendices I and II, as each Party’s is entitled to make unilateral amendments to it. A specimen of a CITES-listed species may be imported into or exported (or re-exported) from a State party to the Convention only if the appropriate document has been obtained and presented for clearance at the port of entry or exit. International Enforcement The international community is coming together to make a stronger, more unified effort to fight back. However, the supply chain is highly complex, crossing many borders. There are links connecting poachers in source countries, transnational criminal syndicates, and traders and consumers in East Asia, Europe, North America and elsewhere. INTERPOL and the UN Office on Drugs and Crime (UNODC) have begun to assess patterns and cross-overs between illegal wildlife trade and other serious crime, such as drug smuggling and money laundering, and to apply lessons learned in these areas. Early in 2014, 28 countries and environmental and law enforcement agencies worked together for a month on a sting operation known as ‘Cobra Two’. It netted 36 rhino horns, more than three tons of ivory, over a thousand skins of endangered animals, and hundreds of tons of logs from protected trees. This groundbreaking operation also resulted in more than 400 arrests in Asia and Africa. Customs officials play a vital role in apprehending illegal material at borders. The World Customs Organization (WCO) works to ensure that customs enforcement operations act to determine the legitimacy of all goods
  6. 6. 5 being declared for entry or exit. Rigorous and increased inspection and border control along with increased sharing of communication and co-operation between regions, countries and organizations involved in fighting illegal wildlife trade could help pick up illegal products as they move from source to purchaser. Collaboration between international organizations has resulted in another major advance in the fight against illegal wildlife trade, with the formation of the International Consortium on Combating Wildlife Crime (ICCWC). Composed of the CITES Secretariat, INTERPOL, UNODC, the World Bank and WCO, the ICCWC was created to ensure a strong and coordinated response to wildlife crime. In 2012 it developed the Wildlife and Forest Crime Analytical Toolkit to assist governments in identifying the strengths and weaknesses of their criminal justice responses to wildlife and forest crime. Today the ICCWC is recognized as the world’s leading intergovernmental initiative in the fight against wildlife crime. Enforcement efforts are taking advantage of the latest technology for detection, analysis and communication. Monitoring and data collection through the Wildlife Enforcement Monitoring System (WEMS), for example, helps African countries to track illegal wildlife trade, monitor legal enforcement, capture trends, and share the information among participants. In pilot projects, drones equipped with video cameras are being used to keep a ‘virtual eye’ on rhinos and Bengal tigers in inaccessible areas of Chitwan National Park in Nepal. The volume of internationally traded products such as timber and fish from certified sources is small but growing. The latest technology, such as DNA and isotope analyses, can be used to increase and improve monitoring of wildlife products, their origins, destinations and transboundary movementsvi . Illegal Wildlife Trade in India In India, illicit wildlife trade includes diverse products including mongoose hair; snake skins; Rhino horn; Tiger and Leopard claws, bones, skins, whiskers; Elephant tusks; deer antlers; shahtoosh shawl; turtle shells; musk pods; bear bile; medicinal plants; timber and caged birds such as parakeets, mynas, munias etc. A large part of this trade is meant for the international market and has no direct demand in Indiavii . India has a strong
  7. 7. 6 legal and policy framework to regulate and restrict wildlife trade. Trade in over 1800 species of wild animals, plants and their derivative is prohibited under the Wildlife (Protection) Act, 1972. This act provides protection to these species against hunting, trading and any other form of exploitation. India is also a member of the CITES (Convention on International Trade in Endangered Species of Fauna and Flora) since 1976. CITES is an international agreement between governments that aims to ensure that international trade in specimens of wild animals and plants does not threaten their survival. CITES works by subjecting international trade in specimens of selected species listed on Appendices to certain controls. India is also a party to the CITES since 1975. Under the CITES agreement, international trade in over 850 species is banned whilst the trade in over 33,000 species is strictly regulated. A TERI Reportviii gives basic data of India’s wildlife wealth in proportion to world wildlife below: √ 397 Mammals: 9% √ 1232 Birds: 14% √ 460 Reptiles: 8% √ 240 Amphibians: 5% √ 2546 Fish: 12% Similarly, Wildlife Protection Society of India (WPSI) has documented the following cases of tiger deaths in India from 1994 to 2014 as shown in the following graphical format: 0 20 40 60 80 100 120 140 95 121 52 88 39 81 52 72 46 38 38 46 37 27 29 32 30 13 32 42 23 Year 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
  8. 8. 7 Wildlife Protection Act, 1972 The Wildlife Protection Act, 1972, provides for protection to listed species of flora and fauna and establishes a network of ecologically-important protected areas. The Act consists of 60 Sections and VI Schedules- divided into Eight Chapters. The Wildlife Protection Act, 1972 empowers the central and state governments to declare any area a wildlife sanctuary, national park or closed area. There is a blanket ban on carrying out any industrial activity inside these protected areas. It provides for authorities to administer and implement the Act; regulate the hunting of wild animals; protect specified plants, sanctuaries, national parks and closed areas; restrict trade or commerce in wild animals or animal articles; and miscellaneous matters. The Act prohibits hunting of animals except with permission of authorized officer when an animal has become dangerous to human life or property or as diseased as to be beyond recovery. Trade or commerce in wild animals, animal articles and trophies The term trophy means the whole or any part of any captive animal or wild animal, other than vermin, which has been kept or preserved by any means, whether artificial or natural, and includes, rugs, skins, and specimens of such animals mounted in whole or in part through a process of taxidermy, and antler, horn, rhinoceros horn, feather, nail, tooth, musk, eggs, and nests. And uncured trophy means the whole or any part of any captive animal, other than vermin, which has not undergone a process of taxidermy, and includes a [freshly killed wild animal ambergris, musk and other animal products]; S. 39 of the Act, declares that every wild animal other than vermin, which is hunted or kept or bred in captivity or found dead or killed by mistake, shall be the property of the State Government. Likewise, animal articles, trophy or uncured trophy, meat derived from any wild animal, ivory imported to India, article made from such ivory, vehicle vessel weapon, trap or tool that has used for committing an offence and has been seized shall be the property of the state government. If any of the above is found in the sanctuary or a National Park declared by the Central Government then it shall be property of
  9. 9. 8 the Central Government. In Rajendra Kumar V. Union of India1 , the petitioner challenged the above clause which imposed a complete ban on import of ivory and articles made from it. It affected his livelihood and freedom of trade and business provided under Article 19(1). Moreover, he contended that ivory derived from a mammoth was not ivory derived from a scheduled animal, therefore, any article made out of such fossil ivory could not be brought within the purview of the Act. However, the Court observed that, the Chapter V-A of this Act, was incorporated in accordance with the direction of Convention on International Trade in Endangered Species of Wild Fauna and Flora [CITES]. The object and reasons of the Amendment Act, 1991 made it amply clear that trade in African ivory was proposed to be banned after giving due opportunity to traders to dispose of the existing stocks. So this Section could not be void. S. 50 of this Act confers power of entry, search, arrest and detention on the Director or any other officer authorized by him or the chief wildlife warden or Officer authorized by him or any Police Officer not below the rank of Sub-inspector. Officer not below the rank of Assistant Director of Wildlife Preservation or Wildlife Warden shall have the powers to issue a search warrant, to enforce the attendance of witnesses, to compel the discovery and production of documents and material objects and to receive and record evidence. 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, animal article, trophy, or uncurled trophy derived from such animal or where offence [relates to hunting in, 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 [one year] but may extend to six years and also with fine which shall not be less than five thousand rupees. Provided further that in the case of a second or subsequent offence of the nature mentioned in this sub-section, the term of imprisonment may extend to six years and shall not be less than two years and the amount of fine shall not be less than ten thousand rupees. Any person who contravenes any provisions of Chapter VA, [Prohibition of Trade or Commerce in Trophies, Animal Articles, etc. derived from Certain Animals] shall be punishable with imprisonment for 1 AIR 1998 Raj. 165
  10. 10. 9 a term which shall not be less than one year but which may extend to seven years and also with fine which shall not be less than five thousand rupees. A new chapter, Chapter VI-A, had been incorporated by the Wildlife (Protection) Amendment Act of 2002. According to this new chapter, if any person or associate of persons or trust acquires property from illegal hunting or trade of wildlife, it shall be forfeited to the State Government by the competent authority. Such property can be forfeited after taking all necessary steps (inquiry, investigation or survey in respect of any person, place, property, documents institution, etc.) and after tracing and identifying any such property. During the investigation and proceeding of forfeit the property, if the competent authority finds that only a part of the acquired property is proved illegal, the authority shall make orders, giving an opportunity to the person affected, to pay a fine equal to the market value of such part of property in lieu of forfeiture. Enforcement of Wildlife Protection Act, 1972 by Courts in India In Sansar vs State2 , the Delhi High Court upheld S. 49 & 57 of the Act and refused to grant relief to notorious poacher, Sansar Chand. In State vs Saif Ali3 , the Rajasthan High Court stated that the State was pumping huge sums of money for conservation and preservation of wild life and thus, the interpretation sought to be drawn by the counsel for the respondents that S. 141 IPC cannot be applied to the offence under S. 51 of the Wild Life Protection Act, could not be accepted. It was the firm opinion of this Court that by the act of using fire arms for killing wild life, the accused committed the offence of mischief as defined in S. 425 and 429 IPC. Since S. 141 IPC covered in its ambit, mischief, criminal trespass or other offence, therefore, the provision of S. 141 IPC can very well be applied to an offence of mischief when committed in relation to a wild animal also. Accordingly, the term 'other offence' as mentioned in S. 141 covered in its ambit, an offence under Wild Life Protection Act. Therefore, every member of the unlawful assembly which participated in the act of hunting was definitely liable for being prosecuted for 2 1994 IAD Delhi 13, 1994 (28) DRJ 281 3 Criminal Revision Petition No.907/2006
  11. 11. 10 the offence under S. 51 of the Wild Life Protection Act with the aid of S. 149 IPC. In GR Simon vs. Union of India4 the petitioner who was the manufacturer of coats, caps, gloves blankets & snake skin items like bags, shoes & brief cases challenged the 1991 Amendment of the Wildlife Protection Act which prohibited trade in animal articles. It was contended that the said Act was colorable legislation as it indirectly took away the fundamental right to carry on any trade or business under Art. 19(1)(g), which could not be done directly. Further certain wild animals were harmful and served no useful purpose. While rejecting the contentions the Delhi High Court held that every animal was important in maintaining ecological balance and it was the duty of every Indian citizen to protect and improve wildlife in the country. Further, no fundamental right was absolute and the same could be restricted in public interest. Wildlife protection was very much in public interest. Hence the 1991 Amendment was constitutional. Similar decision has been given in Ivory Traders & Manufacturers Association vs. Union of India5 . In Indian Handicrafts Emporium vs. Union of India6 , the petitioner challenged the constitutional validity of 1991 Amendment, which prohibited trade in imported ivory. The Supreme Court upheld the constitutional validity of this amendment under Art.19 (6). The Court observed that a trade, which is dangerous to ecology, may be regulated or totally prohibited. Balancing the social interest & the fundamental rights, a total prohibition is reasonable. In Babran Kumawat vs. Union of India7 the petitioner was the manufacturer of Mammoth ivory. Mammoth animal had already disappeared in Alaska and Siberia due to climatic conditions. The question was can it be considered as an imported ivory under the 1991 Amendment Act. The Supreme Court held that 1991 Amendment prohibited trade of ivory of every description. It may be an elephant ivory or mammoth ivory. Hence, the petitioner cannot carry on the trade in mammoth ivory. 4 AIR 1997 Del. 267 5 AIR 2003 SC 3240 6 Appeal (civil) 7533 of 1997 7 AIR 2003 SC 3268
  12. 12. 11 In Sansar Chand v. State of Rajasthan8 , the Apex Court stated, “Before we part with this case, we would like to request the Central and State Governments and their agencies to make all efforts to preserve the wild life of the country and take stringent actions against those who are violating the provisions of the Wildlife (Protection) Act, as this is necessary for maintaining the ecological balance in our country.”9 Author’s Perspective In India, like many other countries, the problem is not of the laws but that these may be poorly communicated and just as poorly implemented and enforced. Often, positive efforts to address wildlife trade concerns are undermined by lack of political will and governance failures. Without political backing, disincentives for over-exploitation and illegal trade, such as penalties for legal infringements, are all too often weak. WWF’s TRAFFIC estimates that at least four Leopards have been poached and their body parts entered into illegal wildlife trade every week for at least 10 years in Indiaix . The following diagram shows the peril India’s wildlife faces from illegal tradingx : Wildlife crime is becoming a key threat mainly due to the increased demand for wildlife derivatives ranging from tiger and leopard bones to pangolin 8 (2010) 10 SCC 604 9 CRIMINAL APPEAL NO. 2024/2010
  13. 13. 12 scales and bear bile. While there is no data for animal trade in India, global trends indeed show a sharp rise in the trade of animal derivatives. As in all other spheres of law in India, illegal trade in wildlife gains from delayed judicial intervention and state apathy. Sadly, enforcement remains of the essence in a country that has too much law and too little justice, even for humans. Citations i World Wildlife Fund: Extracted on Feb 20, 2015 from http://www.worldwildlife.org/threats/illegal-wildlife-trade ii Jessica B. Izzo, PC Pets for a Price: Combating Online and Traditional Wildlife Crime Through International Harmonization and Authoritative Polices William and Mary Environmental Law and Policy Journal, Vol. 34 Iss. 3 (2010) extracted on Feb 20, 2015 from http://en.wikipedia.org/wiki/Wildlife_trade#cite_note-3 iii UN Environment Programme: UNEP Year Book 2014 emerging issues update - Illegal Trade in Wildlife extracted on Feb 20, 2015 from http://www.unep.org/yearbook/2014/PDF/chapt4.pdf p. 25 iv UN Environment Programme: UNEP Year Book 2014 emerging issues update Illegal Trade in Wildlife extracted on Feb 20, 2015 from http://www.unep.org/yearbook/2014/PDF/chapt4.pdf p. 26 v CITES: Extracted on Feb 20, 2015 from http://www.cites.org/eng/disc/how.php vi UN Environment Programme: UNEP Year Book 2014 emerging issues update: Illegal Trade in Wildlife extracted on Feb 20, 2015 from http://www.unep.org/yearbook/2014/PDF/chapt4.pdf p. 27 vii World Wildlife Fund India: Extracted on Feb 20, 2015 from http://www.wwfindia.org/about_wwf/enablers/traffic/illegal_wildlife_trade_in_india/ viii Sinha, Samir: An Overview of Illegal Wildlife Trade in India: Discussion Notes, TRAFFIC India, TERI, extracted on Feb 20, 2015 from http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&ved=0CFAQFjAI &url=http%3A%2F%2Fwww.teriuniversity.ac.in%2Fmct%2Fpdf%2FWildlife_Module%2FIl legal_Wildlife_Trade%2FIllegal%2520Wildlife%2520Trade%2520In%2520India%2520An% 2520Overview- %2520Samir%2520Sinha.doc&ei=DuXmVIqUMaT6ywOQu4KwCw&usg=AFQjCNGaAaS m-Y4vErCmRb6kqCgLrU3vYQ&bvm=bv.86475890,d.bGQ&cad=rja ix TRAFFIC-WWF: Four Leopards a week enter India’s illegal wildlife trade extracted on Feb 24, 2015 from http://www.traffic.org/home/2012/9/28/four-leopards-a-week-enter-indias- illegal-wildlife-trade.html x T.C.A. Sharad Raghavan: The contours of India’s wildlife crisis India is home to one of the highest proportions of threatened species in the world extracted on Feb 25, 2015 from http://www.livemint.com/Politics/V5SjMWmLe30Z1c9gr1iqxK/Indias-wildlife-crisis.html Read more at: http://www.livemint.com/Politics/V5SjMWmLe30Z1c9gr1iqxK/Indias- wildlife-crisis.html?utm_source=copy

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