Discusses the legal framework of wildlife trading in India

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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