Indian Kanoon - Search engine for Indian Law

Provided that in the case of a second or subsequent offence the term of imprisonment may extend to one year, or with fine which may extend to five thousand rupees.

Section 63 empowers the Central Government to makes rules. INTERPRETATION OF THE ACT:

The provisions of the said Act must be construed having regard to the purport and object it seeks to achieve. Not only inter alia wild animal is to be protected but all other steps which are necessary therefor so as to ensure ecological and environmental security of the country must be enforced. The interpretation provisions as regard 'wild animal' employs the word 'includes' and, thus, must be assigned a broad meaning. The Amending Acts must be viewed in that perspective. Protection and conservation of wild animal is essential for very existence of human life. A trade in wild animal which is sought to be prohibited with an object to oversee survival of human beings must be given its full effect. The CITES was formulated keeping in view the aforementioned policy. India is a member State of the Convention. It is a signatory to the other treaties and conventions in this behalf. Appendix I of CITES which came into effect from 18th January, 1990 provided for complete prohibition of internal and trans border trade in ivory. The Parliament enacted the Amendment Act (Act No. 44 of 1991) with a view to save the species of Indian Elephant and to give effect to the said international treaties. Prior thereto, that is 1989, the African Elephant was proposed to be brought in Appendix I of CITES. In the Press Release of October, 2002, the following appears: "Another high-profile item is the African elephant. After an eight-year ban on ivory sales, in 1997 CITES agreed to allow three African countries - Botswana, Namibia and Zimbabwe - to make one time sales from their existing legal stocks of raw ivory. The ivory

- which weighed 49,574 kg. and represented 5,446 tusks - was sold to Japan in 1999 and earned some USD5 million. The funds were used for elephant conservation activities in the three range states.

In the year 2002, the three countries plus South Africa and Zambia are proposing one-off sales of existing ivory stocks to be followed later by annual quotas. The proposals are for a first sale of 20,000 kg. and an annual quota of 4,000 kg. for Botswana, 10,000 Kg. and 2,000 kg. respectively for Namibia, 30,000 kg. and 2,000 kg. for South Africa and 10,000 kg. and 5,000 kg. for Zimbabwe. Zambia is proposing a one-off sale of 17,000 kg. A proposal from India and Kenya, on the other hand, argues that further ivory sales from African elephants should be clearly prohibited as a precautionary measure for reducing future threats to the elephant.

The Amending Acts satisfy also the strict scrutiny test. The stand of the State that by reason of sale of ivory by the dealers, poaching and killing of elephants would be encouraged, cannot be said to be irrational. Mr. Sanghi, as noticed hereinbefore, has drawn our attention to the changes sought to be effected in CITES at the instance of Botswana, South Africa, Namibia and Zimbabwe. The question as to whether a reasonable restriction would become unreasonable and vice-versa would depend upon the fact situation obtaining in each case. In the year 1972 when the said Act was enacted there might not have been any necessity to preserve the elephant as also ivory. The species might not have been on the brink of extinction. The Objects and Reasons set out for brining in amendments in the said Acts in the years 1986, 1991 and 2003 clearly bring into fore the necessity to take more and more stringent measures so as to put checks on poaching and illegal trade in ivory. Experience shows that poaching may be difficult to be completely checked. Preventive measures as regard poaching leading to killing of elephants for the purpose of extraction of their tusks is a difficult task to achieve and, thus, the Parliament must have thought it expedient to put a complete ban in trade in ivory to meet the requirement of the country. India being a sovereign country is not obligated to make law only in terms of CITES; it may impose stricter restrictions having regard to local needs.

There is no quarrel with the aforementioned propositions inasmuch as herein we are upholding vires of the statutes holding that the restrictions imposed is reasonable.

The Amending Acts in our opinion are constitutional, legal and valid.

RES-EXTRA COMMERCIUM:

We, however, agree with Mr. Sanghi that in a case of this nature the doctrine of 'res extra commercium' cannot be invoked. When trade in a particular commodity is governed by a statute, the same has to be given its full effect. Trade in ivory was permissible in law. It was restricted in 1986. It has totally been prohibited in the year 1991. The Amendment Act, 2003 brought about further changes in terms whereof further restrictions have been imposed even on the private owners to possess ivory or any other animal article. CITES banned trade in ivory but as regard some countries the ban has been relaxed. At least in five countries ivory has been placed in Appendix II from Appendix I. We do not know whether in a few years from now having regard to increase in population of elephant, a restricted trade in ivory would be permitted. If that is permitted by amending the said Act, the trade in ivory would be legal. The submission of the appellants, however, to the effect that the elephant has been downlisted from Appendix I to Appendix II of CITES is incorrect. All international trade in elephants or articles thereof including Asian elephants (Indian species) is prohibited as it continues to be listed in Appendix I excepting for certain specified African elephant populations of Botswana, Namibia, South Africa and Zimbabwe which have now been listed in Appendix II. This limited trade has been allowed under very strict conditions as mentioned in the CITES Appendix. Further, India at the CITES Conference (2002) had seriously opposed permitting of such limited trade and had even submitted a proposal for a continuation of the ban on ivory trade. Education having regard to its nature was held to be beyond pale of business or occupation within the meaning of Article 19(1)(g) of the Constitution of India.