Wildlife crimes and laws
Wildlife refers to a region’s native wild species and plants. According to Section 2 of the Wildlife (Preservation) Act of 1972, “wildlife” encompasses any mammal, bees, butterflies, crustaceans, fish, or moths, as well as aquatic or land vegetation that is part of any environment. The term encompasses all wild living types. India possesses over 6.5 percent of the world’s known animal species and is among the world’s most diversified countries.
Our country boasts a long history of conservation, with codified regulations dating back to the 3rd century B.C. when Asoka carved forth guidelines for elephant protection in his stones edicts. Conservation priorities have shifted over time in response to shifting human needs, regional, societal, and political standards (Kagli et al, 2018). As a result, wildlife policing within India has shifted, with the biggest drastic shifts coming over the last few years. India, being among the world’s mega biodiversity countries, assumes a crucial worldwide role in the trafficking of wildlife, which encompasses all diverse living forms occurring in plants. The wildlife market is about more than simply charismatic animals and flagship fauna, but also contains a wide range of medicinal herbs, marine items, some less well-known animals. The Wildlife (Amendment) Act of 1972 serves as India’s overarching legislation for nature conservation. India had been one of the first countries to join the Protocol on Threatened Species (CITES) (Convention on International Trade in Endangered Species of Wild Fauna and Flora). Despite the stated aims of the formal machinery with a slew of regulations and legislation, the illegal trade thrives. Indeed, with advances in how the world interacts, particularly with the web and ease access to foreign travel, way to exchange to take on new aspects. as well as shapes It is widely regarded as a type of transnational organized crime having overlap with the other types of organized crime. Several conversations with high enforcement officers resulted in the creation of this guidebook, which underlined the use of a comprehensive & informative publication including information on different types of illegal logging and trafficking. Its unique characteristics include comprehensive parts such as Prevention of Offences: Identifying Early Warning Signs, Scene of Wildlife Crime, Internet as a Tool for Illegal Wildlife Trade, and Securing Electronic Evidence. The book is illustrated with a large number of color photographs and diagrams which will be of help in better elucidation of the subject. The handbook is for use of senior officials of various enforcement agencies such as the Forest Department, Police, the Central Bureau of Investigation, Coast Guard, Border Security Force, Indo-Tibetan Border Police, Department of Revenue Intelligence, Protected Area Managers, Honorary Wildlife Wardens, and all others with concern and role in preserving our natural heritage. It is also intended to be used by trainers in various enforcement agencies to share the technical aspects of wildlife enforcement with a larger audience. The emphasis is on providing the right amount of detail so that the issue can be understood in its entirety. It is hoped that this handbook will be a useful tool in the battle against illegal wildlife crime in India.
Over the years illegal wildlife trade has emerged as a form of Organised Transnational Crime that has threatened the existence of many wild species across the globe. In India, it 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 India.
India has a strong 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.
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(Kagli et al, 2018). CITES works by subjecting international trade in specimens of selected species listed on Appendices to certain controls.
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 a 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.
There is an urgent need for knowledge and action to bring legal wildlife trade to sustainable levels and stop all illegal wildlife trade that has threatened and even pushed many species towards extinction. Towards this TRAFFIC, a wildlife trade monitoring network and a joint program of WWF, the global conservation organization and IUCN, the International Union for Conservation of Nature, established in 1976, works closely with the National and the State Governments and various agencies to help study, monitor and influence action to curb illegal wildlife trade and bring wildlife trade within sustainable levels.
Wildlife crime can be defined as taking, possession, trade or movement, processing, consumption of wild animals and plants or their derivatives in contravention of any international, regional, or national legislations. Though wildlife crimes share many of the characteristics of other transnational crime types, they are yet to be viewed, and as ‘mainstream’ crimes like drug trafficking, murder, rape, or burglaries.
Wildlife offenders can be divided into two groups –
A. The poachers or hunters who kill or capture wild animals or collect wild plants
B. person trading, buying hunted and/or captured animals or their body parts or derivatives or collected plants or its parts or derivatives, for own consumption or sale.
ILLEGAL WILDLIFE TRADE
Wildlife trade is any sale or exchange of wild animal and plant resources by people. It can be in live animals or their parts, products, and derivatives, including plant extracts and parts of animals used in medicines, tourist curios, skin, timber, fish, or other food products. Live animals form only a small part of the trade (Kagli et al, 2018). Wildlife trade can be at the local village level, regional retail and wholesale levels, or international import and export levels. Wildlife trade is a serious conservation problem because it hurts the viability of many wildlife populations and is one of the major threats to the survival of vertebrate species. Today, wildlife crimes are one of the most profitable illicit trades in the world. The traders of wildlife materials constitute the most influential group of wildlife offenders and they operate in a highly organized manner. Networks of such organized wildlife criminals have a global presence and they make maximum commercial gain from these crimes.
Reasons for an upsurge of Illegal Wildlife Trade in India
- The illegal wildlife trade is driven mainly by the huge profits earned by the traders.
- Low risk and low penalties make the trade highly lucrative.
- Unlike other conventional crimes, no stigma is attached to the offenders who commit wildlife crimes.
- Wealthy markets in Asia, Europe, the USA, and the Middle East are the force driving the illegal trade of wildlife.
- The craze for ornaments made of animal body parts (ivory, tiger teeth/bones), use of animal body parts or plants in traditional medicines, keeping the skins or horns or antlers as status symbols, cultural beliefs or even superstitious beliefs are other factors driving the illegal trade in wildlife and their parts & products.
ILLEGAL WILDLIFE TRADE A PROBLEM
In many cases, illegal wildlife trade has led to over-exploitation of the targeted species, to the point where the very survival of these species is becoming difficult. This aspect has been well-publicized in the case of Tigers, rhinos, elephants, Star Tortoises, and others. Overharvesting for trade has also affected populations of many freshwater and marine species such as otters, freshwater and marine turtles, corals, sharks, tuna, and other sea fish(Kagli et al, 2018). Furthermore, the illegal wildlife trade indirectly threatens the livelihoods of a large part of our human population who are dependent on wildlife products from forest and coastal biomes to sustain them (Uprety et al, 2021). These inhabitants not only depend on the resources from the wild for food but also their livelihood and healthcare. It is therefore crucial that these wildlife resources are managed sustainably and conserved according to the law.
REPERCUSSIONS OF WILDLIFE CRIME
· Besides generating significant losses in assets and revenues for many developing countries, the theft of and illegal trade in natural resources potentially threatens the livelihood of rural communities, impacts food security and risks, damaging whole ecosystems.
· The cross-border smuggling of live animals and plants carries with it risks to human health through the spread of disease, some of which (such as the Ebola virus) are life-threatening. Diseases, such as bird flu, can also be spread to food chains, leading to mass euthanasia of livestock herds.
· The introduction of alien species to habitats can ruin the natural biodiversity of countries or regions.
· The ease with which some wildlife contraband is smuggled across borders, often in significant quantities, demonstrates very real threats to national security and the bio-security of States.
LEGAL FRAMEWORK FOR WILDLIFE CONSERVATION IN INDIA
India has some of the most stringent legislation to protect wildlife and habitats. The Government of India has introduced various legislations as well joined hands with various international agencies to curb the increased rates of wildlife crime as well as to protect the deteriorating wildlife.
The 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 major features of the act are-
· Establishment of protected areas- The Wildlife Protection Act, 1972 empowers the central and state governments to declare any area a wildlife sanctuary, national park, or closed area.
· Protection and management of wildlife habitats- There is a blanket ban on carrying out any industrial activity inside these protected areas.
· Regulation and control of trade – It provides for authorities to administer and implement the Act and regulate the hunting of wild animals; protect specified plants, sanctuaries, national parks, and closed areas. It also restricts trade or commerce in wild animals or animal articles and miscellaneous matters.
· Prohibition of hunting- 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 disabled or diseased as to be beyond recovery (Mekhala & Krishna, 2018). The act has had some major amendments in the previous years, a few of them are-
In 1982, an amendment introduced provisions permitting the capture and transportation of wild animals for the scientific management of the animal population.
The near-total prohibition on hunting was made more effective by the Amendment Act of 1991. This also recognized the needs of tribal and forest dwellers and changes were introduced to advance their welfare(Mekhala & Krishna, 2018). Widespread changes have been made by the Wildlife (Protection) Amendment Act, 2002 and a new chapter has been incorporated to deal with the forfeiture of property derived from illegal hunting and trade. Further, this amendment Act also introduced the concept of cooperative management through conservation reserve management committees and community reserve committees.
The Government of India constituted a statutory body, the Wildlife Crime Control Bureau on 6th June 2007 by amending the Wildlife (Protection) Act, 1972. This bureau complements the efforts of the state governments, primary enforcers13, and other enforcement agencies of the country.
The Forest Conservation Act (1980): To check rapid deforestation due to forestlands being released by state governments for agriculture, industry, and other development projects (allowed under the Indian Forest Act) the federal government enacted the Forest Conservation Act in 1980 with an amendment in 1988. The Act made the prior approval of the federal government necessary for the de-reservation of reserved forests, logging, and for use of forestland for non-forest purposes. The Supreme Court of India has currently imposed a complete ban on the release of forest land for non-forestry activities without the prior approval of the federal government.
The Environment (Protection) Act (1986): The Environment Protection Act is important legislation that provides for coordination of activities of the various regulatory agencies, creation of authorities with adequate powers for environmental protection, regulation of the discharge of environmental pollutants, handling of hazardous substances, etc. The Act provided an opportunity to extend legal protection to non-forest habitats (‘Ecologically Sensitive Areas’) such as grasslands, wetlands, and coastal zones.
The Biological Diversity Act (2002): India is a party to the United Nations Convention on Biological Diversity. The provisions of the Biological Diversity Act are in addition to and not in derogation of the provisions in any other law relating to forests or wildlife.
CITES: CITES and Wildlife Protection in India is a member of the CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) since 1976. It aims to ban trade in endangered species and to regulate the trade of other commercially exploited species. CITES is an international agreement between governments that aims to ensure that the international trade in specimens of wild animals and plants does not threaten their survival.
TRAFFIC: In 1976, the year after the entry into force of the CITES, the Species Survival Commission of IUCN established the Trade Records Analysis of Flora and Fauna in Commerce (TRAFFIC) to monitor wildlife trade and the implementation of the treaty. TRAFFIC actively monitors and investigates wildlife trade, and provides its information to a diverse audience worldwide, as a basis for effective conservation policies and programs. This non-governmental organization undertakes its activities in close collaboration with governments and others.
TRAFFIC’s program is built to deliver change in the behavior (policy and practice) of specific target groups (individuals and institutions) who are in a position to ensure that wildlife trade is not a threat to the conservation of nature(Mekhala & Krishna, 2018). The first layer defines what types of response TRAFFIC should try to prompt through its work. In simple terms, the responses fall under the following headings: Effective regulation, Positive economic incentives, Sustainable consumptive behavior, and Mobilised knowledge.
The second critical level of strategy defines what type of interventions or actions TRAFFIC will implement to prompt such responses. This includes undertaking research and investigation through market surveys; assessment of trade mechanisms, routes, economics, and motivations; analysis of official trade statistics; collation of observations and findings of other researchers; and specific investigations of illegal trade activities.
As part of its authority, TRAFFIC India has actively engaged in wildlife trade-related affairs across the country and the South Asian region. It is covering several activities presenting policy inputs, supporting and strengthening field level implementation, and enhancing capacity across various levels and institutions to address wildlife trade-related matters.
The Third Wildlife Action Plan For 2017-2031: India unveiled the third National Wildlife Action Plan for 2017-2031 on 1st October. The third National Wildlife Action Plan is unique as the plan lays out the strategies and actions to address the challenges emerging out of climate change effect on wildlife and emphasizes integrating steps that need to be taken for its mitigation and adaptation into wildlife management planning processes.
In some instances, humans can reduce provocations of human-animal conflict by using various techniques to accommodate features of the natural environment. Retaliatory killings of protected species can be a major contributor to population declines. For some species in certain regions, including cheetahs, Eurasian Lynx, and tigers, retaliatory killings represent 46–50% of population mortality. In a systematic review of literature on the human-animal conflict involving large feline species, a wide range of situational determinants of conflict were identified in the literature, including habitat availability, wild prey availability, livestock management, and spatiotemporal factors(Uprety et al, 2021). While only 31% of the studies were scientific evaluations of implemented strategies, conflict was successfully reduced using improved livestock husbandry, livestock guarding by either people or dogs and construction of barriers such as fencing, while case-specific Spatio-temporal patterns were found including concentrations in time and space of attacks. The study also identified cattle, goats, and sheep to be the most predated livestock among thirteen types of livestock included in the literature. These findings suggest that interactions between humans and large cats can be reduced by mitigating situational factors that lead to provocations.
The Constitution of India 1960
The Constitution of India 1960 makes it the “duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers, and wildlife, and to have compassion for all living creatures.” This Constitutional duty of animal protection is supplemented by the Directive Principle of State Policy under Article 48A that:
The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.
Both the above constitutional provisions were introduced by the 42nd Amendment in 1976. While they are not directly enforceable in Indian courts, they lay down the groundwork for legislation, policies, and state directives in furtherance of animal protection at the Central and State levels (Joglekar, 2021). Moreover, they may be enforced in courts by taking an expansive judicial interpretation and bringing them within the ambit of the Fundamental Right to Life and Liberty under Article 21 which is judicially enforceable.
Sources of Law
The primary sources of law in India are the Constitution, statutes (legislation), customary law, and case laws. India is a federal union divided into 28 states and 8 Union Territories. The respective States are administered by their State governments while the Union Territories are federal territories directly governed by the Central Government of India. The Parliament of India is the supreme legislative body of the country while the Indian States have their respective State Legislatures(Joglekar, 2021). Statutes are enacted by the Parliament for the entire country, by the State legislatures for respective States, and by the Union Territory legislatures for respective Union Territories. Central laws enacted by the Parliament can be checked and controlled only by the Constitution of India. State laws may be overridden.
n addition to these primary legislation, there also exists a vast body of subordinate legislation like rules, regulations, and by-laws enacted by Central/State governments and local authorities such as municipal corporations and gram panchayats (local village bodies). Given the separation of powers in India between the Legislature, Executive, and Judiciary branches of government, the three branches are vested with different functions(Uprety et al, 2021). While the primary responsibility of drafting legislation lies with the legislature, sometimes the responsibility is given to the Executive branch to draft legislations known as delegated legislation.
India follows the common law system based on recorded judicial precedents handed down by the British colony. Therefore, it places significant reliance on precedents and case laws in the development of law and jurisprudence. Judicial decisions of higher courts such as the Supreme Court of India and High Courts of different States carry significant legal weight and are binding on lower courts.
India is a land of wide religious and cultural diversity. Therefore, some personal laws, local customs, religious texts, and conventions that are not against statute, morality, public policy, and larger social welfare are also recognized to have a legal character and are taken into account by courts in the administration of justice.
Allocation of Powers between the Centre and the States
Article 245 of the Indian Constitution holds that subject to the Constitution, the Indian Parliament can make laws for the whole or part of the territory of India (Goel & Khan, 2021). The territory of India includes States, Union Territories, and other territories such as enclaves within India.
Article 246 lays down the subject matter of laws made by the Parliament and the State Legislatures. This subject matter is allocated into three lists contained in the Seventh Schedule:
- The Union List: the Parliament has exclusive power to make laws concerning the matters enumerated within this list.
- The State List: State Legislatures have the exclusive power to make laws concerning the matters enumerated within this list.
- Concurrent List: both the Parliament and State Legislatures have the power to make laws for the matters enumerated within this list.
In the context of animal rights, the following matters have been allocated in the State and Concurrent List.
Item 14 of the State List provides that the States have the power to “[p]reserve, protect and improve stock and prevent animal diseases and enforce veterinary training and practice.”
In the Concurrent List, both the Centre and the States have the power to legislate on:
- Item 17: “Prevention of cruelty to animals.”
- Item 17B: “Protection of wild animals and birds.”
The Prevention of Cruelty to Animals Act, 1960
The Prevention of Cruelty to Animals Act 1960 is India’s primary cruelty statute. The Act’s goal is to prohibit the inflicting of needless pain or suffering on animals and to reform legislation about the prevention of animal cruelty(Goel & Khan, 2021). The Act defines “animal” as any living thing other than a human being.
In line with Chapter II of the Act, the Government of India formed the Animal Welfare Board of India (AWBI) with the following functions:
1. Advising the centralized government on modifications and guidelines to minimize needless pain while transporting animals, conducting studies on animals, or maintaining animals in captivity.
2. Promotion of financial aid, rescue homes, and animal shelters for aging animals.
3. Advising the administration on animal hospital medical treatment and regulations.
4. Educating and raising awareness about the ethical treatment of animals.
5. Advising the federal government on broad animal welfare issues.
Section 11 of the Act defines various types of animal cruelty as the following actions:
a) Hitting, striking, overpowering, overloading, tormenting, or inflicting needless suffering on any animal
b) Putting an elderly, wounded, or infirm animal to labor (the punishment applies to the owner as well as the user).
b) Giving a harmful drug/medicine to any animal.
d) Transporting an animal in any vehicle in such a way that it suffers pain and suffering.
e) Placing any animal in a cage with no reasonable possibility for mobility.
f) Keeping an animal on an excessively heavy or short-chain for an excessively long length of time.
g) Constant and complete confinement of an animal with no reasonable chance for exercise.
h) Being an owner who fails to give adequate food, water, and shelter for the animal.
I Neglecting an animal without justification.
j) Willfully allowing an own animal to roam the streets or abandoning it to die of disease, old age, or incapacity on the streets.
k) Selling an animal in agony as a result of mutilation, malnutrition, dehydration, overcrowding, or other ill-treatment.
l) Using brutal methods, such as strychnine injections, to mutilate or kill animals.
m) Using one animal as bait for another animal for the express purpose of amusement.
n) Organizing, maintaining, employing, or administering any venue for animal fighting.
o) Shooting an animal after it has been liberated from captivity for this reason.
The Act, on the other hand, does not consider dehorning/castration of cattle in the approved manner, the annihilation of stray dogs in lethal chambers in the specified method, or elimination of any animal within the power of law to be cruel. This section allows for some wiggle room.
Part IV of the Act addresses animal experimentation. The Act does not make animal testing illegal for the improvement of physiological knowledge or information to battle disease, whether of humans, animals, or plants (Cooper, 2021). It envisions the central government establishing a Committee for the management and oversight of animal studies, with the authority to forbid experimentation if necessary.
The topic of performing animals is covered in Chapter V. Section 22 makes it illegal to show or train an animal unless it is registered with the AWBI. The Section forbids the use of performing animals such as monkeys, bears, lions, tigers, panthers, and bulls.
According to Section 28, nothing in the Act shall make it a crime to slaughter any animal in a manner prescribed by the religion of any group.
Given the multiplicity of religions and customs in India, this Section was deemed essential.
Animal cruelty is penalized by an Rs. 10 fine, which can be increased to Rs. 50 on the first conviction. A subsequent conviction within three years of a previous infraction is punished by a fine of Rs. 25, which may be increased to Rs. 100, or by three months in jail, or by both. Performing Phooka or any other procedure to increase breastfeeding that is harmful to the animal’s health is punishable by a fine of Rs. 1000 or imprisonment for up to 2 years, or both(Cooper, 2021). The government also has the authority to forfeit, confiscate, or destroy the animal. Any violation of the committee’s rule on animal testing is penalized by a fine of up to Rs. 200.
Although wild plants and animals are indeed the primary victims of any wildlife offense, it has a cascading effect on the ecology of a certain location. The directions in the Constitution make it quite apparent that wildlife is a national icon. Man-animal conflict situations must be improved immediately to prevent becoming a source of retaliatory action against the animals in question by the affected humans, and eventually a center of illegal commerce in animal parts and goods.
In India, as in many other nations, the issue is not one of the laws, but of how they are conveyed, performed, and administered. Positive initiatives to resolve wildlife trafficking problems are frequently undermined by a lack of political will and governance failings. Without political support, deterrents to overharvesting and illicit commerce, such as fines for legal enforcement, are all too frequently ineffective.
According to WWF-India, there seems to be an urgent need for information and further action to bring the legal wildlife trade to sustainable levels and to halt the criminal traffic, which has threatened and even driven several species to extinction.
The 42nd Article to the Constitution Of India, enacted in 1976, was a forward-thinking move in laying the framework for animal protection in India. The constitutional principles defining the duty of animal protection have resulted in the passage of animal protection laws at both the national and state levels, the most prominent of which is the Prevention of Cruelty to Animals Act 1960. Furthermore, Indian courts have built a significant legal doctrine in animal law throughout the years.
However, there still is a considerable distance to go before India has a sound foundation for animals law. The clauses in the Constitution Of India for wildlife conservation remain ideas rather than tangible laws that can be enforced in courts(Joglekar, 2021). The punishments for animal cruelty under the Protection of Cruelty to Animals Act of 1960 are just insufficient to prevent crimes against animals. The legislation is not severely enforced and provides many loopholes that allow for culpability to be avoided. Extensive revisions are required in this area to equip India with a better animal protection law.
In the future, either examining tiger poaching behavior in an Indian conservation area or doing a port-level analysis of animal contraband trafficking trends, assessment must be included in the entire design of a study if prevention is the goal. And, while we recognize that the allure of collaborating with NGOs is high for those crime scientists interested in wildlife crime—especially given the difficulty of acquiring data—we urge those amongst us to seek relationships with preservation scientists who are open to reviews.
Kagli, K. M., & Krishna, M. D. (2018). Need for combating wildlife crimes.
Mekhala, K. K., & Krishna, M. D. (2018). Environment and sustainable development: The tragedy of wildlife resulting into wildlife crimes in the name of development.
Goel, A., & Khan, A. (2021). White and green collar crime: A study in relation to environment and wildlife protection laws in India. Turkish Journal of Physiotherapy and Rehabilitation, 32, 3.
Malaviya, A. (2018). Wildlife Trafficking Crimes-Issues with Enforcement. Envtl. L. & Prac. Rev., 6, 217.
Gupta, A., & Sharma, M. (2020). Consequences of Urbanization on Wildlife Survival in India and USA–Relevance of Adoption of Legislations. Available at SSRN 3642381.
Uprety, Y., Chettri, N., Dhakal, M., Asselin, H., Chand, R., & Chaudhary, R. P. (2021). Illegal wildlife trade is threatening conservation in the transboundary landscape of Western Himalaya. Journal for Nature Conservation, 59, 125952.
Joglekar, Y. (2021). Environmental Crimes: Effect of COVID-19 on Non-human Victims. Journal of Victimology and Victim Justice, 25166069211031140.
Cooper, M. E. (2021). Wildlife conservation law. In Wildlife Biodiversity Conservation (pp. 101-122). Springer, Cham.
Uprety, Y., Chettri, N., Dhakal, M., Asselin, H., Chand, R., & Chaudhary, R. P. (2021). Illegal wildlife trade is threatening conservation in the transboundary landscape of Western Himalaya. Journal for Nature Conservation, 59, 125952.
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