2003 (8) TMI 473 - SC - Indian Laws

Amendments to Wild Life (Protection) Act upheld: ivory traders regulated, must prove bonafide personal use to retain stocks

SC upheld the constitutionality of the Amending Acts under the Wild Life (Protection) Act, holding traders in ivory fall within the statutory definition ... Reasonable restriction under Article 19(1)(g) - protection and conservation of wild life - Chapter V-A prohibition on trade in imported ivory - certificate of ownership under Section 49-C(3) - prohibition on possession by traders under Section 49-C(7) - purposive construction of statute - vesting of property subject to criminal forfeiture - res extra commercium doctrine (inapplicable) - ultra vires of executive guidelines under Section 63Reasonable restriction under Article 19(1)(g) - protection and conservation of wild life - Chapter V-A prohibition on trade in imported ivory - Validity of the 1991 Amendment (Act No.44 of 1991) prohibiting trade in imported ivory vis-a -vis Articles 19(1)(g) and 14 of the Constitution - HELD THAT: - The Court held the Amending Acts intra vires. A statute which prohibits a trade may be a law within clause (6) of Article 19 if the restriction is reasonable in the public interest. Protection and conservation of wild life, preservation of ecological balance and implementation of international obligations furnish a legitimate public purpose. The legislative history, objects and circumstances leading to progressively stringent measures (1986, 1991, 2003) justify prohibition as a reasonable restriction; Parliament may adopt stricter measures than CITES where local needs require. The classification of traders as a distinct class is intelligible and not arbitrary. Vague ness and complaints of unguided administrative discretion were rejected on the text and scheme of the Act and on availability of appeal and judicial review.The 1991 Amendment is constitutional; the prohibitions in Chapter V A on trade in imported ivory are valid restraints permissible under Articles 19(1)(g) and 14.Certificate of ownership under Section 49-C(3) - prohibition on possession by traders under Section 49-C(7) - vesting of property subject to criminal forfeiture - Whether traders lawfully holding imported ivory prior to the specified date retain a right to possess or deal with such stock, and the legal effect of declarations and certificates under Section 49-C - HELD THAT: - Chapter V A is a self-contained code governing traders in scheduled animal articles. A trader who carried on business in imported ivory must make the declaration under Section 49 C(1). Only items in respect of which the Chief Wild Life Warden, with prior approval of the Director, issues a certificate of ownership under Section 49 C(3) may be retained for bona fide personal use and thereafter transferred in the manner and subject to reporting prescribed by Section 49 C(6). Items for which no certificate is granted fall within Section 49 C(7) and cannot be kept, sold or transferred; contravention attracts penal consequences and potential forfeiture under Section 51(2) read with Section 39(c). Property does not automatically vest in the State under Section 39 absent a conviction and an order of forfeiture; criminal adjudication is required before such vesting operates. The burden placed on traders to prove bona fide personal use is consonant with the statutory scheme aimed at preventing camouflage of illegal trade.Traders have no general right to possess or deal in imported ivory after the specified date except insofar as they obtain certificates under Section 49 C(3); property vests in the State only upon conviction and forfeiture proceedings.Ultra vires of executive guidelines under Section 63 - Validity of Central Government guidelines directing release of only one article to appellants and destruction of the rest - HELD THAT: - The Court found the Central Government guidelines to be inconsistent with the clear statutory scheme in Sections 49 C(1), (3), (5) and (6). The executive could not direct that only one piece be released and the remainder destroyed because the Act prescribes the procedure for declaration, grant of certificates of ownership and appeals; those statutory processes must be followed. Executive guidelines that purport to short circuit or override the statutory mechanism are beyond the rule making power under Section 63 to the extent they conflict with express statutory provisions.The guidelines are ultra vires and cannot be given effect; appellants must pursue remedies under Section 49 C and their applications, if any, must be disposed of under the statute.Res extra commercium doctrine (inapplicable) - purposive construction of statute - Applicability of the doctrine res extra commercium and the proper construction of the Act as to custody and disposal of seized articles - HELD THAT: - The Court rejected application of the doctrine res extra commercium to negate the statutory scheme. Where trade in a commodity is regulated by statute, the statutory regime governs. By purposive construction of the Act, a trader subject to the prohibition cannot retain possession; the logical consequence of the prohibition is that custody must be handed to competent authorities. The Act's purpose and scheme permit inference that possession will be taken over by statutory authorities and that disposal must follow statutory processes rather than executive fiat.Res extra commercium is not invoked to defeat the statute; statutory prohibition and purposive construction govern custody and disposal of ivory.Vesting of property subject to criminal forfeiture - Whether seized articles should be destroyed or preserved - HELD THAT: - Although traders have no right to retain articles except as permitted by Section 49 C, automatic destruction was not authorised by the Court. The legislative scheme contemplates declaration, certification, appeal and, where necessary, prosecution and forfeiture. The Court observed cultural and museum interests and concluded that statutory authorities are entitled to take physical possession but should not destroy items; instead they should place them in appropriate museums or suitable places.Seized articles are to be taken into custody by competent authorities and preserved (for example, in museums); they should not be destroyed.Final Conclusion: Appeals dismissed. The 1991 Amendment (Chapter V A) is constitutional; traders may retain or transfer imported ivory only pursuant to certificates under Section 49 C(3) and subject to the statutory scheme; property vests in the State only following conviction and forfeiture; executive guidelines directing release of a single item and destruction of the remainder are ultra vires; competent authorities may take physical possession of seized articles but must preserve them (e.g., in museums) rather than destroy them. Issues Involved:1. Applicability of the Wild Life (Protection) Act, 1972, and its amendments.2. Constitutionality of the 1991 Amendment Act under Articles 19(1)(g) and 14 of the Constitution of India.3. Interpretation of statutory provisions related to the Wild Life (Protection) Act, 1972.4. Right to possess animal articles under the amended Act.5. The vesting of ivory in the Government.6. Constitutionality of the guidelines issued by the Central Government.Detailed Analysis:1. Applicability of the Wild Life (Protection) Act, 1972, and its amendments:The Wild Life (Protection) Act, 1972, was enacted to protect wild animals, birds, and plants. The Indian elephant was included in Schedule A of the Act in 1977. Chapter V and Chapter V-A, inserted by Act No. 28 of 1986 and Act No. 44 of 1991 respectively, imposed restrictions and a total prohibition on trade in imported ivory. The Act was operationalized on 2.10.1991, with a six-month period for traders to dispose of their stock.2. Constitutionality of the 1991 Amendment Act under Articles 19(1)(g) and 14 of the Constitution of India:The appellants argued that the prohibition on trading in ivory violated their right to trade under Article 19(1)(g) and was arbitrary under Article 14. The Court held that reasonable restrictions could be imposed on trade in the public interest, including total prohibition if necessary for ecological balance. The Court referenced several precedents to support the view that prohibitions could be reasonable if they served a greater public or social interest, such as protecting endangered species.3. Interpretation of statutory provisions related to the Wild Life (Protection) Act, 1972:The Court emphasized that the Act should be interpreted in light of its objectives to protect wildlife and ensure ecological security. The Act's provisions were seen as necessary to prevent the illegal trade in ivory and protect the Indian elephant. The Court noted that the CITES convention, to which India is a signatory, also aimed to prohibit trade in endangered species, supporting the legislative intent behind the amendments.4. Right to possess animal articles under the amended Act:The appellants contended that they should be allowed to retain legally imported ivory. The Court held that while the property did not automatically vest in the Government, possession and trade were prohibited unless a certificate of ownership was obtained for bona fide personal use. The Chief Wild Life Warden had the discretion to issue such certificates, and any denial could be appealed.5. The vesting of ivory in the Government:The Court clarified that property does not vest in the Government unless an offence is committed under the Act. However, traders were prohibited from keeping, selling, or transferring ivory without a certificate of ownership. The Court held that the legislative provisions were clear and did not confer arbitrary power on the Chief Wild Life Warden.6. Constitutionality of the guidelines issued by the Central Government:The Court found the guidelines issued by the Central Government, which allowed traders to keep only one piece of ivory and mandated the destruction of the rest, to be ultra vires. The guidelines did not align with the statutory provisions of Section 49-C, which allowed for the retention of items for bona fide personal use subject to certification.Conclusion:The Court upheld the constitutionality of the Wild Life (Protection) Act, 1972, and its amendments, emphasizing the need to protect wildlife and maintain ecological balance. The appellants were not entitled to trade in ivory but could retain items for personal use with proper certification. The guidelines issued by the Central Government were struck down for being inconsistent with the Act. The Court directed that seized ivory items be kept in museums or suitable places rather than being destroyed.