By Arshia Jain
Published On: November 26, 2021 at 18:30 IST
Introduction
Animal poaching is defined as the capture, hunting, and exploitation of animals. Animals are used for a variety of reasons. For example, mongoose hair, snakeskin, rhino hair, tiger and leopard claws, bone, skins, whiskers; deer antlers; turtle shells; caged birds, and so on are all used to make a variety of items in India. Today, poaching has grown into a multibillion-dollar industry. The transaction is frequently conducted on the worldwide market.
Poaching has not increased in recent years, according to the Ministry of Environment, Forest and Climate Change, which told the Indian government on March 27, 2017. The reverse is true, according to the book “State of India’s Environment 2017 In Figures.” Between 2014 and 2016, there was a 52% increase in the number of poaching activities, according to the report.
It goes on to explain that as of December 31, 2016, there had been 30,382 wildlife offenses and deaths reported. The number of tigers poached in 2016 was the greatest in a decade. Meanwhile, hunting claimed the lives of 340 peacocks between 2015 and 2016, a 193% increase over 2014. Between 2015 and 2016, 37,267 turtles were seized. Every year, around 100,000 pangolins are illegally captured.
Historical background
Poaching has a long history in India. In the 16th century, Mughal monarch Jalal-ud-Din Muhammad Akbar is said to have popularised the activity. He became enamoured with it and established the shikar ritual (royal hunting). Since then, a lot of monarchs have embraced this activity, which is generally connected with power and prestige.
However, these activities have hurt several animal species, causing ecological damage. Furthermore, poaching isn’t just done for the sake of survival. The action has frequently been linked to a variety of traditional and religious beliefs in the country. Tiger necklaces, for example, are said to bestow power and good fortune to the wearer. Certain animal bones or horns have long been thought to have magical medical properties that can treat a wide range of ailments. All of these methods have aided poaching’s growth into the multibillion-dollar industry it is today.
Laws prohibiting poaching and animal trafficking
The State is required by Article 48-A[i] of the Constitution to work to protect the country’s animals and forests. Article 51-A[ii] imposes a fundamental obligation on all residents to maintain and improve the natural environment, which includes woods, lakes, rivers, and wildlife, as well as to have compassion for all living things. Although fundamental duties are not legally enforceable in and of themselves, a statute could be included to make them so.
- The Prevention of Cruelty to Animals Act, 1960
This Act[iii] was enacted to prevent animals from being subjected to unnecessary pain or suffering as a result of illegal poaching operations. If a person violates Section 11 by subjecting an animal to cruelty in any way, he will be held accountable and penalized with a fine of up to 50 rupees. However, subsequent offenders who commit the offense within three years after the prior one is subject to a fine of not less than 25 rupees and up to 100 rupees. Furthermore, repeat offenders are prohibited from owning any animals.
There is a distinction made in the Act between cognizable and non-cognizable offenses. Cognizable offenses are serious offenses that provide police officers the authority to make arrests without a warrant. For example, mutilating or killing an animal using unnecessarily cruel techniques, organizing or participating in a shooting event in which animals are released from captivity for the event, or performing torturous operations such as phooka on a dairy animal to induce it to deliver milk.
Non-cognizable offenses, on the other hand, are regarded as less serious and do not grant a police officer the authority to arrest without a warrant. Non-cognizable offenses include beating, kicking, overriding, overdriving, employing an unfit animal for work or Labor, wilfully administering an injurious substance to an animal, confining an animal within bars not large enough to allow it a reasonable opportunity for movement, possessing or offering for sale any animal suffering pain due to mutilation, starvation, thirst, overcrowding, or other ill-treatment, and so on.
- The Wildlife (Protection) Act, 1972
In a nutshell, this Act outlaws the capture, killing, buying, and selling of animals and animal parts that are illegally captured, killed and sold. It also gives the state the authority to take any steps it sees fit to conserve the flora and animals.Wild bird hunting is prohibited under Section 9 of the Act.
Although hunting is usually connected with the capture and eventual slaughter of wild animals, this section also included activities of capturing and trapping. If a person is in possession, control, or custody of a wild animal, it is presumed that he does not have lawful possession of the animal, according to Section 57 of the Act. Any person who violates any of the Act’s conditions is punishable under Section 51 by imprisonment for up to three years, a fine of up to 25,000 rupees, or both.
- The Indian Penal Code, 1860
It is prohibited to maim or injure any animal with a monetary value greater than Rs 10 under Sections 428 and 429 of the Indian Penal Code. It’s against the law to throw acid on cows (something that vegetable sellers do as a matter of routine). The Code also prohibits autos from intentionally injuring or killing pets, cats, or cows on the street. Offenders can be reported to a local animal welfare organization and police station, and a case can be launched under the laws mentioned above.
The penalty is a Rs 2000 fine and/or a five-year jail sentence. The offense of public annoyance is defined in Section 268. A person is guilty of committing public nuisance if he does something that annoys, endangers, or injures the general public. As a result, if a person kills or injures an animal in public, he could be charged with this offense. Section 290 of the Indian Penal Code stipulates that public disturbance is punishable by a fine of up to 200 rupees.
Theft is defined in Section 378. Any person who moves movable goods out of another person’s hands with the intent of taking them away is guilty of stealing. Animals fall within the category of movable property. As an example, if a person acts in such a way as to entice another person’s dog to pursue him to deprive the owner of the dog’s possession, he is committing theft. Any individual who commits theft is subject to imprisonment for up to three years, a fine, or both, according to Section 379.
- The Performing Animals (Registration) Rules, 2001
According to Section 3 of the Performing Animals (Registration) Rules, to train or show any animal performance, one must first request registration. Furthermore, while issuing registration, the considered authority may impose any condition(s) that it deems acceptable in the animal’s best interests(s).
Conditions may be imposed, such as ensuring proper watering and feeding stops during transportation, preventing unnecessary infliction of pain and suffering during such training/exhibition, training an animal to perform an act by its instincts, and preventing the performance of a sick, injured, or pregnant animal, among others.
- The Experiments on Animals (Control And Supervision) Rules, 1968
Experiments on Animals (Control and Supervision) Rules, 1968, Section 4 puts down the following prerequisites for performing experiments: Experiments should be carried out with caution and compassion.Experiments must be carried out by or under the supervision of trained individuals, in a laboratory that is suitably equipped and staffed for the purpose, and under the supervision of the person experimenting.
An experiment must use a minimum number of animals. Experiments involving operating procedures other than simple inoculation or superficial venesection must be conducted while the animal is under the influence of a strong enough anesthetic to keep the animal from feeling discomfort throughout the experiment.
- The Transport of Animal Rules, 1978
The Transport of Animals Rules, 1978, Section 98, lays out the general standards for animal transportation. Transported animals must be healthy and in good condition. They should be inspected by a veterinary doctor to ensure that they are free of infectious diseases and fit to travel, with the nature and duration of the anticipated excursion taken into account when determining the degree of fitness.
Animals that are unsuited for transport, as well as those that are newborn, ill, blind, malnourished, lame, exhausted, or have given birth in the last 72 hours or are likely to give birth during transit, shall not be transported. Animals that are pregnant or very young should not be transported alongside other animals. During transportation, different classes of animals must be maintained apart. When transporting diseased animals for treatment, they must not be mingled with other animals.
Competence of the laws
Illegal poaching legislation has undoubtedly been enacted. However, the effectiveness of legislation is determined by its outcome, and current statistics show that poaching regulations have had little success in reducing the activity and thereby conserving species. A prominent wildlife trafficker with worldwide ties was uncovered in 2016 smuggling the body parts of over 125 tigers and 1200 leopards. Each of the defendants was sentenced to four years in prison and told to pay a fine of Rs 10,000.
In 2004, he was also detained in a separate state with 456 tigers and leopard nails. Six persons were arrested in June 2018 after they were discovered in possession of 12 tusks. The severity of the penalties imposed by the laws is one of the most obvious causes for such failure. This is because animals are still not considered equal to people, and hence do not have the same number of rights and liberties as humans. However, it must always be remembered that animals were not created by humans. What gives people the right to exploit animals for their gain?
Case laws
- R. Simon Vs Union of India[iv] – Article 19(6) enables the court to enact rules restricting the right to trade and profession in the public good.
In 1991, based on the recommendations of the Indian Wildlife Board and the Ministry of The Wildlife Act was revised by the Department of the Environment and Forestry. The recommendations were made in light of the country’s rapidly rising poaching operations, which have resulted in a significant decline in the country’s animal population. The amendment made it illegal to deal with animal products. The petitioner, in this case, a maker of animal-derived products such as purses, shoes, and briefcases (made from snakeskin), challenged the amendment because it violated his basic right to practice any trade or profession (Article 19(1)(g) of the Constitution).
He went on to say that some animal species are dangerous and rarely serve a helpful purpose. The court dismissed his arguments, stating that Article 19(6) enables the court to enact rules restricting the right to trade and profession in the public good. The preservation of flora and fauna is unquestionably in the public interest. The court also stated that, even though many species serve no beneficial use to people, they must be protected, and that every person has a responsibility to safeguard and improve animals and the environment. The constitutionality of the 1991 amendment was confirmed in Indian Handicrafts Emporium Vs Union of India[v], balancing the scales of justice between fundamental rights and societal interests.
- Balram Kumawat Vs Union of India & Ors[vi] – The 1991 amendment prohibits the import of “any types” of ivory, including mammoth ivory.
The Wildlife Protection Act was amended in 1991, making it illegal to import ivory into India. In this case, the petitioner argued that elephant fossil ivory (mammoth ivory) is not similar to conventional elephant ivory because the mammoth had long since died out. The court, however, ruled that the 1991 amendment prohibits the import of “any types” of ivory, including mammoth ivory. The WildLife Act was also enacted in the wider public interest and accordance with Articles 48A and 51A(g) of the Indian Constitution, as well as international treaties and agreements, according to the statement.
- Pradeep Krishen Vs Union of India[vii] – Challenged a government directive allowing locals to collect tendu leaves from contractors in Madhya Pradesh.
This example demolished the widely held belief that individuals who live near forests are always obedient to the natural order. The lawsuit challenged a government directive allowing locals to collect tendu leaves from contractors in Madhya Pradesh. He said that a huge number of trees had been felled as a result of the order. The Madhya Pradesh government has been ordered by the Supreme Court to bar any villager or tribal from entering wildlife-protected areas.
Conclusion
Wildlife poaching, supported by a profitable black-market trade in animal parts, has severe consequences for residents, wildlife populations, and the environment. The virus can only stay alive as long as the host is alive. Poaching must be stopped for humanity to continue to thrive. Listed below are a few ideas:
Education is, without a doubt, the most crucial measure that must be performed to prevent poaching. Over 300 million adults in India are still illiterate. For millennia, people have believed that animal parts had mystical medicinal properties, and this has been the primary source of unregulated poaching. As a result, people must be informed about how poaching throws the ecological balance off.
Increased penalties for poaching are another step that must be done. The fundamental goal of punishing an offender is to create a feat in his or others’ minds that will deter them from repeating the same behavior in the future. A light penalty may render the law ineffective.
Harsher anti-corruption measures should be implemented so that people are afraid to take bribes. Increasing the pay of all government personnel, thereby eliminating their need for corruption, is a more lenient and beneficial way to reduce and eventually eliminate the practice of corruption. Although this strategy would impose a strain on government resources, it would also help to expand them by gradually reducing the quantity of black money in circulation.
ABOUT THE AUTHOR
Arshia Jain is a second-year law student at SVKM’s NMIMS, School of Law in Navi Mumbai, Mumbai, India, pursuing a BBALLB. When it comes to work, she is a dedicated and hardworking individual. She believes in pursuing one’s dreams and remaining optimistic throughout life.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
References
- India, l., & India, l. (2021). Lawyers in India – Advocates,Law Firms,Attorney directory,Lawyer,vakil. Legalserviceindia.com.
- Gupta, L. Wildlife Trafficking and Poaching in India: Law and Judicial Perspective. Latest law.
- 30,382 wildlife crimes recorded in India. Downtoearth.org.in.
- The laws governing poaching and animal trafficking in India – iPleaders.
[i] Article 48A in The Constitution Of India 1950
[ii] Article 51A in The Constitution Of India 1950
[iii] The Prevention of Cruelty to Animals Act, 1960
[iv] G.R. Simon Vs Union Of India AIR 1997 Delhi 301, 1997 (41) DRJ 604, (1997) 117 PLR 66
[v] Indian Handicrafts Emporium & Ors Vs Union Of India & Ors, Appeal (civil) 7533 of 1997
[vi] Balram Kumawat Vs Union Of India & Ors, Appeal (civil) 7536 of 1997
[vii] Pradeep Krishen Vs Union Of India & Others, (1996) INSC 718