forest and wildlife laws in india

8/4/2019 Forest and Wildlife Laws in India

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Wildlife Laws in India

G.Ravinder, M.Sc., LLBSub-Divisional Forest Officer.

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Wild

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The Elephants Preservation Act,1879(Act

No. 6 of 1879)

The Wild Birds Protection Act No. X of

1887.

This Act mainly prohibited the possession or sale of any kind

of birds specified init

The Wild Birds and Animals Protection

Act No. VIII of 1912

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Wild

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The Indian Forest Act , 1927

Forest Officer

The plantation watcher is a forest officer" within the

meaning of Section 2(2) of the Indian Forest Act.

(Abdul Aziz Vs. Union Territory of Tripura, (1963))

Offences under IFA

Related to Reserved Forests , Protected Forests

ForestProduce in Transit

Altering boundary marks

Non-assistance to Forest-officers and Police-officers

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Wild

lifeLawsinIndia

Why Special Law Related to Forests ?The invaders of forest and wild life usually take

care that their poaching techniques go unnoticedby others including wild animals.(Forest Range Officer v. Aboobacker, 1990FLT 22 at 24(Ker)

Special Law Overrides the General Law ! under section 5 of CrPC Special Act overridesthe General Act(Jethnal Vs. Heeralal , 1957Raj LW 522)

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Wild

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THE WILD LIFE (PROTECTION)ACT, 1972

An Act to provide for the protection of Wildanimals, birds and plants and for mattersconnected therewith or ancillary or incidentalthereto with a view to ensuring the ecological

and environmental secuirity of thecountry

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Wild

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Definitions

Wild life-includes any animal, aquatic or land

vegetation which forms part of any habitat.

Wild Animal- any animal found wild in nature andspecified in Schedule-I-II-III or IV.

Captive Animal- any animal which is specified inSchedule-I,II,III or IV, which is captured/ kept/bredin captivity.

Protected Area- means a National Park, a sanctuary, aconservation reserve or a community reserve notifiedunder sections 18, 35, 36A and 36C of the Act;

WildlifeVis a VisWildAnimal under WLPA,1972 6


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Wild

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Authorities Appointed/Constituted

under WPA, 1972Director/ Chief Wildlife Warden/ Wildlife Warden

Honorary Wildlife Wardens ( CEL case ,Guidelines)

National Board for Wild Life (Statutory Body-2006)Central Zoo Authority

2006 Amendment:

National Tiger Conservation Authority

Tiger and Endangered Species Crime Control Bureau

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Wild

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Appointment of IndividualAuthorities.

Director/ Chief Wildlife Warden/ Wildlife

Warden

Honorary Wildlife Wardens ( CEL case

,Guidelines)

such other officers and employees as may be

necessary (Subordinate to the CWLW)

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Wild

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Director/ Chief Wildlife Warden

appointment of Director of Wild Life Preservationunder central government and CWLW under stategovt. to perform his duties and exercise powersgiven under different provisions of the act.

Honble Supreme Court held that once an area hasbeen declared as a sanctuary, entry into the area isrestricted and regulated under Section 27 and 28and subject to permission being granted by the Chief

Wild Life Warden who has the powers to control,manage and maintain all sanctuaries under section 33.

(Essar Oil Ltd. Vs. H.U. Samiti, AIR 2004 SC 1834;

2004 (2) SCC 392) 9


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Delegation of Powers

Director/CWLW may, with the previous approval of the

Central/State Government, delegate all or any of his

powers and duties under this Act .except those under

Cl.(a) of sub-section (1) of Sec.11

Subject to any general or special, direction given or condition

imposed by the Director or the Chief Wild Life Warden.

may exercise those powers in the same manner and to the

same effect as if they had been conferred on that person

directly by this Act and not by way of delegation. 10


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Complaint filed after sanction is

maintainableThe Honble Patna High Court observed that

complaint was filed after obtaining sanction from

the Divisional Forest Officer who was authorizedto file the complaint. It may be relevant tomention here that sec.5(2) of the Wild Life(Protection) Act,1972 also gives power to theauthorities concerned to delegate his powers to

any of his subordinate officer

(Jagdish Singh Vs. State of Bihar, 1985, Cr.L.J.1314- 1316(pat.)

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Honorary Wildlife Wardens

(The substitution of clause by 2002 Amendment under section 4 of theAct, now permits the state governments to appoint more than one

Honorary Wildlife Wardens.)

deem to be public servants within the meaning ofsection 21 of the Indian Penal Code.

Power to inspect records of licences under section 47(b) of the Act;

Powers of entry, search, seizure, and detention under

section 50 for prevention and detection of offencesHonble SC directed that the concerned state / Union Territory shall

take the necessary steps to appoint Honorary Wild Life Wardensfor all the areas within a period of two months. (Centre for

Environmental Law Vs. Union of India and Others, I.A No. 2 inW.P. (C) No. 337 of 1995 dated 7.11.1997) 12


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National Board for Wild Life

Statutory body after the Wild Life (Protection)

Amendment Act, 2002 ( Earlier IBWL)Even though SBWL were Statutory bodies.

Prime Minister is Chairperson and the Minister

in-charge of Forests and Wild Life is Vice-Chairperson.Director WL Pres. Or ADG WL is Member Secy.

MPs, Secretaries, Directors of WII, ZSI, BSI, IVRI,NIO etc., Rep. (CWLW) of 10 states by rotation, 10eminent conservationists, ecologists andenvironmentalists, 5 persons of NGOs etc. aremembers.

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orestAn

dWildlif

eLawsinIndiaFunctions of NBWL

to promote the conservation and development

of wild life and forests

framing policies and advising the Govt forconservation of WL, Forests and controllingpoaching and illegal trade of wild life.

Recommend for mgmt of PAs.

Carrying out or causing to be carried out impactassessment of various projects andactivities on wild life or its habitat

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Standing Committee of NBWL

performing such duties as may be delegated to theCommittee by the National Board

Vice-Chairperson, the Member-Secretary, and notmore than ten members to be nominated by theVice-Chairperson from amongst the members of theBoard.

Powers conferred by

By Act-Destruction in Pas, Commercial/ Residential

accommodation for tourism inside PAs, ImpactAssessment

By Honble Supreme Court- FCA cases in PAs

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State Board for Wild Life

CM as Chairperson ( earlier Forest Mins. Now VC.)

Seeks to make a parallel body to National Board forWild Life at state level.

3 MLAs, 3 persons to represent NGOs organizations,ten eminent conservationists, ecologists andenvironmentalists at least 2 representatives of theScheduled Tribes.

Secy. and Rep of Research Org. like ZSI, BSI, WIIetc.

Chief Wild Life Warden, who shall be the Mem-Secy.16


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Advise state govt. on

(i) selection and management of areas tobe declared as protected areas.

(ii) policy of protection and conservation.

(iii) In matters relating to change of any

schedule for harmonizing the needs ofthe tribals and other dwellers of theforest with the protection andconservation of wild life.

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Off U d WPA


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Wild

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Offences Under WPA..

Hunting (Sec 9)

Killing or poisoning of any wild animal or captiveanimal and every attempt to do so. Capturing, coursing, snaring, trapping, drivingor baiting any wild or captive animal and everyattempt to do so. injuring or destroying or taking any part of

the body of any such animal, or in the case of wildbirds or reptiles, damaging the eggs of such birdsor reptiles, or disturbing the eggs or nests ofsuch birds or reptiles.

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Hunting Permitted under sec.11

(a) CWLW may permit for hunting of Sch-I* animal dangerous to human life* disabled or diseased beyond recovery

#CWLW is satisfied that such animal cannot be captured,tranquilised or translocated.

#animal shall be kept in captivity unless the CWLW is satisfiedthat such animal cannot be rehabilitated in the wild and the reasonsfor the same are recorded in writing.

(b) CWLW or AO may permit Sch II, III or IVfor (1)(a) reason and also for property (including crop).

#animal or group of animals in a specified area

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Case Study

Killing of elephant on the ground that the animal hadbecome dangerous to human life

adverse entry in ACR by the Ministerfor negligence of CWLW

Tribunal found;

tusker had sustained some bullet injuries and in gradualprocess succumbed to the injuries.

Based on the Expert opinion tusker would have died in

any case

dangerous to the life of a person to approach a wildtusker.

(Rabindranath Mohanty Vs. Govt. of India F.L.T. 1990 P. 268,Central Administrative Tribunal, Cuttack Bench.)

WildlifeLawsinIndia

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WildlifeLawsinIndia

Prohibition of picking, uprooting, etc., of

specified plants (Sec 17 A to H)

Plants in Schedule VIThe word and, in the phrase any forest land

and any area specified, bynotificationin section17A should be read as or- (World Wide Fundfor Nature Vs. Union of India in WPC No.4719/93 , Delhi HC , 20.07.2005.)

Law of the Land !!!

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WildlifeLawsinIndia

Protected Areas

Means Sanctuary or NP; Conservation Reserve/

Community Reserve.

Procedures under section 18 to 26

Declaration of Sanctuary (Intention & Appointment ofcollector under sec 18)

Determination of rights Acquisition of Rights

National Park Vs. WL Sanctuary

Grazing rights (SC order dt. 14.2.2000) Rights inside WLS (Access through WLS) All rights to be extinguished in NP (sec 35(4))

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WildlifeLawsinIndia

Regulation of National Park and Sanctuary

(i) Restriction on entry

# CWLW may permit to enter or reside in a sanctuary for toenter or reside in a sanctuary for study, tourism; scientificresearch, photography etc.

(ii) No DestructionNo person shall destroy, exploit or remove any Wild Life

including forest produce or destroy or damage ordivert the habitat of any wild animal or divert, stop or

enhance the flow of water into or outside WLS w/opermit of CWLW# with satisfaction of State Govt. after consultation withSBWL in case of WLS and NBWL for N.P. that such activityis necessary for the improvement and better management of

wild life 23

Regulation contd


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Regulation contd..

(iii)Causing fire prohibited

(iv) Ban on use of injurious substances

(v) Prohibition of entry into sanctuary with weapon

(vi) for immunisation of livestock within five km ofWLS/N.P

(vii) Registration of arms with CWLW in case ofexisting and prior approval in case of new licencewithin 10 KM. under Arms Act, 1959(54 of 1959 )

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WildlifeLawsinIndia

Control of sanctuaries and National Parks with CWLW

(sec 33)

1. May construct such roads, bridges, buildings, fences orbarrier gates# no construction of commercial tourist lodges, hotels, zoos and safariparks shall be undertaken inside a sanctuary except with the prior approvalof the National Board

2. Steps as will ensure the security of wild animals

3. Improvement of any habitat.

4. Regulate, control or prohibit, in keeping with theinterests of wildlife, the grazing or movement oflivestock

# In case of WLS only

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WildlifeLawsinIndia

Case Law:T.N. Godavarman Thirmulkpad V/s Union OfIndia

No removal of dead, diseased, dying or wind fallentrees, drift wood and grasses etc. from any national parkor game sanctuaries or forest- 14.2.2000

Certain activities, which are carried out for the bettermanagement of the protected areas are not barred by theorder dated 14.02.2000-25-11-2005

(a) Habitat Improvement Activities(b) Fire protection measures(c) Management of wet grassland habitat(d) Communication and protection measures(e) Anti poaching initiatives 26


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WildlifeLawsinIndia

De-notification NP/WLS(The Centre for Environmental Law (CEL), WWF Vs. Union of India and

others WPC No. 337 of 1995, SC)

1.Prior Approval of IBWL

before placing the proposal before the legislative assembly theconcerned state government shall refer the proposal to theIndian Board for Wild Life...(order dated 22-8-1997)

#2002 amendment in the Wild Life (Protection) Act, 1972, thepower to de-notify has been taken away from the legislativeassembly and conferred on the National Board for Wild Life.

2. Prior Approval of Supreme Court

No de reservation of forest/Sanctuaries/National Parkswithout prior approval of Supreme Court(order dated13.11.2000)

# Supreme Court has divested the Central government (in respect toforests) and the State Legislature (in respect to National Parks and

Sanctuaries) of all powers of de reservation / de notification. 27


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WildlifeLawsinIndia

Central Zoo Authority

mainly responsible for

recognition / de recognition of Zoosmonitoring of the management of zoosspecifying the minimum standards and veterinary careof the animals kept in a zoo

#The MemberSecretary of Central Zoo Authority is empoweredunder section 55 to file a complaint against violation of theprovision of the chapter IV-A.

looking at the pathetic state in which some of the

zoos are maintained, we hereby direct that no stategovernment or union territory shall set up a new zoowithout getting clearance from the Central ZooAuthority and orders from this CourtNavin M. Raheja

vs Union of India and Ors, W.P.(C) No. 47 of 1998 (SupremeCourt) order dated 20.11.2000 28


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WildlifeLawsinIndia

Wild Animal, etc. to be Government property

(Sec 39)

wild animal, other than vermin, which is hunted underSec. 11 or sec.29 or sub-sec (6) of sec 35 or kept orbred in captivity or hunted in Contravention of the Act.

animal article, trophy or uncured trophy or meatderived

ivory imported into India and an article made fromsuch ivory

vehicle, vessel, weapon, trap or tool that has beenused for committing an offence and has been seized

under the provision of this Act. 29


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WildlifeLawsinIndia

Seizure and confiscation [Sec. 52 IFA, Sec50(1)(c) WPA]

Power under WPA Vis-a Vis IFA (Sec.39)so long as the competent Court does not find that thevehicle had been used for the purpose of the commissionof the offence , the vehicle does not become the

property of the state government(Bai Kuntha Bihari Mohapatra Vs. state of Orissa

2001 Cr. L.J. 4151 (Ori))

Encroaches upon the powers of the court ?Confiscation is a quasi judicial process meant for thespeedy disposal of the all tools etc. unlike the judicialprocess of prosecution which intends to punish the

offender (DFO Vs. Sudhakar Rao 1986 SC) 30


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Trade or Commerce in Trophies, Animal

Articles, etc. derived from Certain Animals

Declarations (Sec 40)(1) Declare captive animals, articles, trophies, skins,musk,

rhino horn in respect of Sch-I & Sch- II (II)

(2)No person to acquire, sell, transfer, transport Schanimal/ prod. (permission of CWLW/ AO)

(2A) except by inheritance - Doesnt apply to liveelephant

Regulation of transfer of animal etc.(Sec43)No transfer by sale in respect of captive

animal/ article/trophy/uncured trophy withownership certificate.

Contradiction with sec 40(2A) ?? 31


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Declaration is required under section 40 and that theAct of dealing in the trophies by the appellant withoutlicence is punishable(Pyarelal, Appellant Vs. The State

(Delhi Admn.) Criminal Appeal No. 622 of 1988, AIR1995 Supreme Court 1159)

The accused is guilty of illegal possession, custody andcontrol of the animal articles unless and until he disprovesthe same(Sansar Chand Vs. State 1994 (28) DRJ 281;1 (1994) AD 13)

Prohibition of dealing in trophies, animal articles under

section 49B applies to mammoth ivory also.( M/S Ivory Traders & Manufacturers Association andothers Vs. Union of India and Others. AIR 1997 )

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P ti d D t ti f ff


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Prevention and Detection of offences

Entry, Search, Arrest, Detention byCWLW/AO/FO/PO(sub.Insp.) -Sec 50(1)

Custody of wild animal /Article by ACF-50(3)

The forest officer can give only the captive animalor wild animals and not vehicle forcustody(Ayyub Vs.State of Rajasthan, 2003 CRI. L. J. 2954)

Detained person to be taken in front ofMagistrate (intimation to CWLW/AO).

Officersapart from Police Officer are given specificpowers for the purpose of prevention and detectionof offence under act- (Moti Lal Vs. Central Bureau ofInvestigation (CBI) and Others , Supreme Court , 2002 CRI.

L.J. 2060). 33

Investigation


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Investigation

Who can Investigate under WPA ?

ACF or AO officer under section 50(1).

Powers given to certain officer under sec. 50(1) forthis purpose..Though, officer of the rank, ACF and above are givenspecial powers

search warrant, enforce attendance, receive &record evidence by ACF -50(8).

Any evidence recorded under clause (d) of sub-section (8) shall beadmissible in any subsequent trial before a Magistrate providedthat it has been taken in presence of the accused person-50(9).

#Inserted by amendment Act 44 of 1991.

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Case Laws w.r.t Investigation under WPA ..

The Supreme Court held that S.50 of the Wild Life Actis not complete Code and, therefore, CBI would also have

jurisdiction to investigate the offences under the saidAct.(Moti Lal Vs. CBI, SC, 2002 CRI. L.J. 2060)

Confessional statement before Forest Officeradmissible in court under Evidence Act 1872 andembargo contained in Sections 25 and 30 is not

applicable as Forest Officer is not police Officer.(Forest Range Officer Vs. Aboobacker, Kerla HC )

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Whether there is conflict or dichotomy


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Whether there is conflict or dichotomyin provisions of sub-section 39(1) (d)

and section 51 (2) of the Act ?If the seizure of a property was enough to declare

it as the property of the government, there was

no necessity to provide under sub-section (2) ofsection 51 that on proof of commission of theoffence, the properties including vehicle, vessel,or weapon used in the commission of offence

would be forfeited to the state government.[Madhukar Rao Vs. State of M.P (2000) 1 Jab

LJ 304]

When owner of the property or the


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When owner of the property or theoffender himself is not available for

prosecution !!!A situation can be envisaged where the offenceis proved to have been committed but theowner of the property or the offender himselfis not available for prosecution. In thatsituation by virtue of clause (d) of section 39of the Act the property would become theproperty of the state without any requirementof passing an order of forfeiture in a trial by

the criminal court in accordance with sub-section (2) of section 51 of the Act.

[Madhukar Rao Vs. State of M.P (2000) 1 JabLJ 304]


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Power to compound offencesDirector/AO, CWLW/AO (DCF & above)

accept money by way of composition of offence (sec. 54)not to exceed Rs. 25000 for sec. 54(1) .minimum imprisonment u/s 51(1) not to be compounded.

District Forest Officer has been empowered to compound theoffences under Section 54(M.Muthuramalingam Vs. DFO,Dindigul, CRI.L.J, 420(Madras)

if the offence has been compounded by an enforcement agency under the

provisions of the Act, without there being any trial either in thedepartmental proceedings or in the criminal proceedings the vehicle, riflesetc. cannot be forfeited and all the seized articles which are not the

government property should be released.(J.K. Johnson & others Vs. Principal Chief Conservator of

Forests, Hyderabad, 2006 CRI. L.J.1480 )38

If th ff h b d d ith t th


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If the offence has been compounded without therebeing any trial either in the departmental proceedingsor in the criminal proceedings the vehicle, rifles etc.cannot be forfeited:

The Hon'ble Andhra Pradesh High Court held that unless thecase is tried and the accused are convicted by the criminal court,there is no possibility of confiscating the seized goods undersection 39(1) (d) of the Act. There cannot be any automaticpresumption to treat the seized goods as government property

unless there is trial and conviction in the criminal proceedings or inthe departmental proceedings conducted by the authorities.The only procedure contemplated under section 51(2) of the

Act is that when any person is convicted of an offence against thisAct, the court trying the offence may order for forfeiture of thevehicle, vessel, weapon, trap or tool that has been used in connectionof the said offence to the state.

Admittedly, there is no trial or conviction that has been madein the instant case. The respondents have liberally compounded theoffence. Since the offence has been compounded without therebeing any trial either in the departmental proceedings or in thecriminal proceedings, the said vehicle and rifles cannot be forfeited.

(J. K. Johnson & others Vs. Principal Chief Conservator of Forests, Hyderabad, 2006 CRI. L.J.1480).

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Complaint of Offences under WPA.. (Sec.55)

Director/AO, Mem. Secy CZA & NTCA, Dir. Of a TR. ,

CWLW/AO, Person who has given notice < 60 days

Challan filed by a Station House Officer is not sufficientand a regular complaint should be filed as provided by Section55 (Ashwini Kumar Bhardwaj Vs, State of Rajasthan,2002 CRI. L.J. 179, (Raj.)

CBI (authorized officers of Delhi Special PoliceEstablishment not below the rank of Deputy Superintendentof Police) is entitled to file a criminal complaint againstaccused(Moti Lal Vs. CBI , SC, 2002 CRI. L.J. 2060)Eviction of unauthorized occupant from NP/WLS

Compound offences & give reward

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P lti (S 51)


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Penalties (Sec 51)Offence related to Scheduled Animals / Hunting in PA

/ Trade in Animal Art. etc. -3 to 7 yrs /fine > 10T

Teasing , molesting etc. of any animal in a zoo

- 10 T

Contravention of other Provision -


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Th Wildlif (P t ti ) A d t A t


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The Wildlife (Protection) Amendment Act, 2006

CHAPTER IVBNational Tiger Conservation Authority

(Section 38K to 38X)

CHAPTER IVCTiger and Endangered Species Crime Control

Bureau(Section 38Y & 38Z)

Penalties43

The Wildlife (Protection) Amendment Act 2006


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The Wildlife (Protection) Amendment Act , 2006

National Tiger Conservation Authority(38L)

(Headed by Min of E & F)

Approve Tiger Action Plan / Future plans

Assess aspects of Sustainable EcologyStandards for Tourism

Approve / Coordinate Research

Facilitate - Eco Development/CapacityBuilding

Ensure Ecologically sustainable Use of

Corridors 44

The Wildlife (Protection) Ammendment Act 2006


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The Wildlife (Protection) Ammendment Act , 2006

Constitution of Steering Committee(38U)(State Level headed by C.M)Co-ordination

MonitoringProtection

Coservation

of Tiger ,Co-predators and prey animals within theTiger range states

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Declaration of Tiger Reserve (38V)Sec. 18(2),27(2,3,4),30,32(b,c),33

Applicable

BY state govt. on recommendation of C.Govt

Tiger Conservation PlanSite Specific

Ecologically Compatible Land Use

Corridors

Forestry opern of adjoining divn to becompatible

Agriculture, Livelihood, development

Rehabilitation on mutual consent

No Alteration / De Notification of T.R 46

Critical Tiger habitat or Core Areas-


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WildlifeLaw

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Critical Tiger habitat or Core AreasExplanation (i) of sec 38(v)(4)

Inviolate for Tiger Conservation.

On the basis of scientific and objective criterion ???(800-1000 Km)

in consultation with an Expert Committee.

Which Expert Committee?

Resettlement Provided..process of recognition and determination of rights

is complete

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Inviolate Areas/ Critical Wild Life Habitats


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Inviolate Areas/ Critical Wild Life Habitatsunder Tribal Act also- to exclude rights.

Guidelines by Tribal Ministry. ( Act commenced from31 dec.2007)

Expert Committee Under WPA or FRA ??

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a Critical Tiger habitat or Core Areas-


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F

orestAn

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nIndia

gExplanation (i) of sec 38(v)(4)

Inviolate for Tiger Conservation.On the basis of scientific and objective criterion ???(800-1000 Km)

in consultation with an Expert Committee

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Tiger Conservation Foundation (38X)

State Level

Facilitate ecological ,socio-economic,cultural

dev. Of T.R

Promote Eco-Tourism

Creating and Maintaining Assets

Solicit tech., fin., social., legal, support

Mobilize/Augment fin. Resources Recycling

Support research, Env. Education & training

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WildlifeLaw

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he W ldl fe ( rotect on) mmendment ct , 006

Wildlife Crime Control Bureau (38Y)Headed by Dir Wildlife

Officers from Forest, Police, Customs

Collect and collate intelligence

Co-ordinations of actions by various org.

Implementation of obligations under conventions and protocols &

Int.co-ordination

Develop infrastructure for investigation

Assist states in prosecution

Advise GOI w.r.t Policy & law

Powers under Sec. 5, 50,55 are delegated

Creating and Maintaining Assets

Solicit tech., fin., social., legal, suport

Mobilise/Augment fin. Resources Recycling

Support research, Env. Education & training51


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Penalties [51(1C)]

Offence related to hunting in T.R.

Altering boundaries of T.R.

Imprisonment 3-7 yrs & fine 50T-2 Lacs.

On Subsequent Conviction Not


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