(IN) TRAFFIC India Head posits opinion on proposed Amendments to Wildlife Protection Act

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Thank you to Yana Banerjee Bey, Deputy Editor of GFiles Magazine for

organising this.

 

 

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LEGISLATURE | Wildlife (Protection) Act

Chameleon Law? *

A critical look at the proposed changes to the WLPA, to be tabled in

Parliament**

 

by SAMIR SINHA

“No society can make a perpetual Constitution or even a perpetual law” –

Thomas Jefferson

THE Wildlife (Protection) Act,* as enacted in 1972, was independent India’s

first national legislation with the specific purpose of protecting its

wildlife heritage. The WLPA included provisions for hunting of certain

species and in certain areas, as shikar was still acknowledged as sport.

Since then, the conservation scenario in the country has undergone a

dramatic change. As pressure on land – always a limited and finite resource

– has increased, wild habitats have shrunk and fragmented. Many charismatic

species have seen their wild populations touch precarious levels, despite

growing concern about their conservation. The tiger is perhaps the best

example of this.

In response to increasing awareness on conservation issues, the WLPA has

also been amended a number of times – most recently in 2006. These

amendments have ranged from bringing select plant species under the ambit of

the Act (as opposed to only fauna in the original version) to establishment

of the National Tiger Conservation Authority and the Wildlife Crime Control

Bureau.

Awareness has also grown about the illegal trade in wildlife products and

the relative ease in evading conviction. A feeling has been gaining ground

that, in its present form, the WLPA does not serve as a deterrent to such

criminals.

All this has prompted another amendment. In a first, the proposed amendment

aims to lay down a definition of wildlife research. This has been the bone

of contention between the wildlife and forest bureaucracy of the country and

the scientific community as the latter feels that, in the absence of

transparent and specific provisions, wildlife research has been subjected to

unnecessary controls. Much debate over the parameters for wildlife research

is expected.

*

The amendment seeks to treat all Protected Areas lacking a final

notification as ‘proposed’. This could impact a large number of Protected

Areas.*

 

On the issue of settlement of rights in the establishment of Protected

Areas, the amendment makes specific references to the provisions of the

recently enacted Scheduled Tribes and Other Traditional Forest Dwellers

(Recognition of Forest Rights) Act. The implementation of provisions of

these two pieces of legislation has always been seen as contentious by many,

and some also feel that certain provisions of the Recognition of Forest

Rights Act contradict the WLPA. As such, bringing in a reference to one Act

in the implementation of the other is likely to be seen as establishing the

primacy of one and diluting the WLPA.

At present, declaration of national parks and sanctuaries is generally a

two-tier process. First, the government issues a notification of intention,

following which rights, if any, are recognized and settled wherever

considered necessary. Only after this is the final notification of

establishment issued. Nearly 80 per cent of the Protected Areas in the

country are yet to have the final notifications issued. This, despite

Supreme Court directions very long ago.

In its present form, the WLPA also has provisions whereby certain legal

provisions of protection are applicable immediately when the first

notification is issued. This is a major provision which has extended added

legal cover to most Protected Areas despite the fact that the final

settlement proceedings may not be complete. The proposed amendment seeks to

do away with this and treat all Protected Areas lacking a final notification

as “proposed”. This could have a major impact on a large number of Protected

Areas.

 

Crime and Punishment*

A major attempt has been made to redefine the nature of offences under this

Act and punishments prescribed.*

*

PROPOSED* Category 1 offences include the hunting, trade or unlawful

possession of some important species such as the tiger, lion, elephant,

rhino, all leopards, musk deer, all turtles and tortoises, all bears,

Tibetan antelope, all crocodiles, including ghariyals, all bustards,

dolphins, and whale sharks. This appears debatable, as the WLPA already has

species classified under various schedules. Further classification will only

cause confusion in implementation.

Another proposal says that “any person committing a Category 1 offence is

punishable with imprisonment of a minimum term of five years extendable up

to seven years and shall be fined a minimum of rupees five lakhs which may

be increased to rupees one crore only”. In the case of a second or

subsequent offence under Category I, the penalty applicable shall be

imprisonment of not less than seven years, or a fine of not less than Rs 5

lakh and up to Rs 75 lakh, or both. It appears that, while the imprisonment

for subsequent offences has been raised, the maximum fine is lower than for

the first offence!

For category II offences, the maximum penalty is imprisonment for a minimum

period of three years and a maximum of seven years. The person shall also be

subject to a fine up to Rs 3 lakh only.Category I and Category II offences

are cognizable, non-bailable, and triable by a sessions judge. The proposed

amendment also seeks to remove the existing provision of Section 51-A (which

lays down certain conditions on grant of bail) on the rationale that it is

no longer required. However, a non-bailable offence does not imply that an

accused cannot get bail; it only implies that bail is not a matter of right

for the accused and (s)he can still be released on bail under provisions of

Section 437 of the Criminal Procedure Code, 1973.

*

THERE* is also an added provision that, in case any vehicle or vessel has

been seized under the provisions of this Act, a reasonable opportunity shall

be given to the accused prior to arriving at the finding that the item is

forfeited to the government. Such proceedings shall be conducted by an

officer not below the rank of Assistant Conservator of Forests. Also, no

court shall take cognizance of such an offence till such administrative

proceedings are complete and the competent officer arrives at a prima facie

decision against the accused. An appeal against this order shall lie with

the Conservator of Forests and no further appeal shall lie, including to any

trial court, against this decision. This is thus a quasi-judicial mechanism

to ensure speedy processing of cases where vehicles and so on are seized in

connection with wildlife offences.

The proposed amendment also makes, for the first time, a direct reference to

the Convention on International Trade in Endangered Species of Wild Fauna

and Flora (CITES). At present, CITES is administered mainly through the

provisions of the EXIM Policy as laid down by the Directorate General of

Foreign Trade. This inclusion of administration of CITES within the WLPA is

a welcome step. However, it remains to be seen as to how the introduction of

a new Chapter VI-B on regulation of trade in endangered species of wild

fauna and flora will impact what is currently a thriving and totally

unregulated business in exotic flora and fauna (especially birds and

mammals), including many listed under CITES.

The major area where the proposed amendment seems to miss the bus is the

rationalization of its various schedules. Currently, there are six

schedules, including one that lists “vermin”. These include over 800 species

and families of wild animals and just six species of plants. This is a clear

case of imbalance. In addition, there is a separate Chapter V-A that

prescribes specific provisions related to Schedule I and Part II of Schedule

II of the WLPA. This is confusing. There must be clear distinctions between

relevant provisions for schedules. Instead of clarifying this, there is

further attempt to create new categories of offences for selected species,

different from the original schedules! In addition, there is now a Schedule

VII being added.

There is also a growing tendency among lawmakers to include what are

primarily policy, management and administrative issues within the ambit of

legislation. The WLPA is an example of this. In the recent past, provisions

of the law have made references to issues like “evaluate and assess various

aspects of sustainable ecology and disallow any ecologically unsustainable

land use, ensure that the tiger reserves and areas linking one protected

area or tiger reserve with another protected area or tiger reserve are not

diverted for ecologically unsustainable uses, emphasize coexistence in

forest areas outside the National Parks” and so on. Though well intentioned,

when included in a legal statute, such provisions are virtually impossible

to define and implement.

 

(The writer, an Indian Forest Service officer, is head of TRAFFIC India. The

opinions expressed are personal)

 

 

Regards

 

Programme Officer

TRAFFIC India

WWF India Secretariat

172-B, Lodi Estate, N.Delhi 110003, India

Tel: +91-11-41504786, Fax: +91-11-43516200

Visit us at " www.traffic.org "

 

TRAFFIC- the wildlife trade monitoring network- is a joint programme of WWF

and IUCN-The World Conservation Union. It works to ensure that trade in wild

plants and animals is not a threat to conservation of nature.