THE current discourse on conservation seems trapped in an either/ frame with every action deemed either anti-people or pro-wildlife. This article attempts to break out of this impasse by seeking a middle ground between the needs of the numerous species, including humans, and their life and habitat. ‘Life’, in this context, goes beyond survival, viz., in solitary confinement or a zoo and incorporates within its ambit air, water, forest, undisturbed existence, and so on. Overall thus, it pleads that a balance must be found in the context of each individual’s duty and right to environment.

Article 51A of the Constitution merely reiterates our obligations towards society in the form of duties. One of our duties is to protect the environment, with compassion towards all forms of life. The individual’s duty per se remains hollow without the means to discharge it. It is society, as a collective, which must provide the means for every individual to discharge his/her duty.

Let’s take the example of a person who lives on the street. Either such a person should have access to a public toilet or else he would be compelled to defecate on the street. It is easier to say that it is his duty not to soil the environment, but the fact is that he has to soil somewhere if this essential amenity is not provided. On the other hand, it is the right of residents to live in a clean environment. But would the residents, in the exercise of their rights, be justified in jettisoning that person from their street to another street or another part of the town, or a new town?

The fact is that such a person, wherever located, would infringe on somebody else’s rights. It is the state, in other words society, which has to ensure that proper facilities are made available to enable an individual to discharge his duty. But it is single individuals who, when put together with others, constitute society. Thus, it is the duty of citizens, who seek to enforce their rights to a clean environment, to simultaneously ensure the existence of factors which would enable every individual in society to discharge his duty towards the environment.

The right to life and habitat and ones corresponding duty to protect it, is universal but limited, within the domain of the human species. The problem is that there is no such corresponding right to life and habitat acknowledged for other existing species. Hence, in the absence of such rights we are left only with duties of the human species towards the other species. Therefore, anyone who seeks to protect wildlife or its habitat is not exercising his right, but acting in furtherance of his duties, though on occasion, when pursued vigorously by an individual or a group, it is erroneously labelled as a right. Even under ancient Roman law, no individual had rights over any wild animal which was free and alive. The right if any, over the animal, came into existence only if it had been killed or taken in captivity.

 

 

In consonance with this principle, the Wildlife Protection Act does not hold wild animals to be the property of the state. What it does declare, however, is that the carcass of any wild animal or an animal taken in captivity, would be the property of the state. The legal position in the United States of America on proprietary rights over wild animals is quite different. The U.S. Supreme Court, in the case of Gear v. State of Connecticut (40 Law. Ed.793), expressed the view that, ‘We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the state, as the representative and for the benefit of all its people in common.’

In Corpus Juris Secundum (volume III, 1087) it is stated that, ‘the wild animals at large within its borders are owned by the state in its sovereign as distinguished from its proprietary capacity and neither such animals nor any part thereof are subject to private ownership except in so far as the state may choose to make them so.’ In American Jurisprudence (volume II, 694), the following passage occurs: ‘In the United States the ownership of wild animals and fish not reduced to actual possession by private person is in the People of the State in their collective sovereign capacity, or in the state as representing all the people.’ Thus, the legal position in the U.S. appears to be somewhat different from that in India.

The policy and object of wildlife laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances created by the depredations inflicted on nature by man.

In time, the earliest codified laws can be traced to the third century B.C. when king Ashoka made a law in the matter of preservation of wildlife and environment. Towards the end of his reign he wrote: ‘Twenty-six years after my coronation, I declared that the following animals were not to be killed: parrots, mynas, ruddy geese, the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses… and all quadrupeds which are not useful or edible… Forests must not be burnt.’

After this there appears to be long gap in respect of codified laws or decrees pertaining to protecting wildlife. However, it cannot be assumed that there were no other decrees in any of the various kingdoms in India.

 

 

The first codified law in India which heralded the era of laws for protection of wildlife was enacted by the British and was titled the Wild Birds Protection Act No. X of 1887. This act enabled the government to frame rules prohibiting the possession or sale of any kind of specified wild bird which had been killed or taken during the breeding season. In other words, the act prohibited the sale or possession, but not killing, of any of the specified wild birds only during the breeding season. Further, the act was limited to only those areas which came under the control and supervision of municipalities and cantonments and was not applicable nor enforceable in any other territories.

The Act of 1887 did not prohibit nor control the large scale and unwarranted killing of a large variety of wild animals and birds throughout British India. Consequently, due to the unregulated wholesale slaughtering of birds and animals, certain species were threatened with extinction. In 1912, the government passed the Wild Birds and Animals Protection Act VIII as the Act of 1887 proved to be inadequate.

 

 

The 1912 Act, in Section 3, laid down that, ‘The Provincial Government may by notification in the official Gazette declare the whole year or any part thereof to be a close time throughout the whole or any part of its territories for any kind of wild bird or animals to which this Act applies… and that it shall be unlawful to capture or kill or sell or buy or posses any such wild bird or animals.’ Section 4 of the act made the contravention of Section 3 punishable with fine of Rs 50 for the first offence and in case of a second offence by the same person, the fine could extend to Rs 100 and/or imprisonment upto one month. The schedule to the act listing the birds and animals which could not be killed or captured consisted of antelopes, asses, bison, buffaloes, deer, gazelles, goats, hares, oxen, rhinoceroses, sheep and 16 species of birds.

It was the 1912 Act which for the first time codified laws prohibiting the killing or capturing of wild animals and birds and disobedience of this mandate was made a penal offence. Its object was definitely laudable as it was made applicable to the whole of British India but the wild animals which were sought to be protected were the very animals which were killed for food by many in the countryside. The big wild animals like the elephant, lion, tiger, leopard, bear, and crocodiles which were by and large killed by the ‘haves’, mainly for trophies, were exempted as such animals were considered of no use either to mankind or the environment.

The 1912 Act was amended to the Wild Birds and Animals Protection Act XXVII of 1935. By this amendment, Section 11 was inserted in the main Act of 1912. This section provided that the provincial government could by notification declare any area to be a sanctuary for birds or animals and made it unlawful for anyone to kill or capture birds or animals within that area at any time. Further, the contravention of Section 11 was made punishable with a fine upto Rs 50. The schedule was also amended and a large number of birds and animals were incorporated therein. But even the amendment to the Act of 1935 was insufficient, for it allowed the hunting of a large number of wild animals which did not figure in the schedule in areas other than sanctuaries.

 

 

On 2 August 1935, the Government of India Act was enacted. It provided for distribution of legislative powers between the federal and provincial legislatures. Section 100 of the act enjoined the federal list I in the seventh schedule, the provincial legislature in respect of the entries in the state list II, and both the federal and the provincial legislature pertaining to entries in the concurrent list III. The entry concerning ‘Protection of Wild Birds and Wild Animals’ was placed in the state list, entrusting thereby the protection of wildlife to the provincial legislatures. Consequently, wildlife laws varied from state to state and there was no concerted planning or effort at the all India level, to the detriment of wildlife.

It was not till the late 1960s that concern for a fast depleting wildlife was finally aroused. In September 1972, the Parliament passed the Wildlife (Protection) Act. The rationale for the act was eloquently stated in its statement of objects and reasons. But unfortunately, even the 1972 Act under Section 9, permitted hunting, though with a licence, for the purpose of (a) special game, (b) big game (c) small game, and (d) wild animal trapping. Under the circumstances poaching continued on a large scale as the trade in trophies and animal articles was not completely restricted.

 

 

In 1976 wildlife in India finally got its due place and recognition under the Constitution. The Parliament passed the Constitution (42nd Amendment) Act, 1976 and inserted Article 48A (wef 3.1.1977) in Part IV which contains the Directive Principle of State Policy. Article 48A reads: ‘The State shall endeavour to protect and improve the environment and to safeguard and forests and wild life of the country.’ The Parliament by the said Amendment Act of 1976 also incorporated a new chapter – Part IVA specifying the fundamental duties of the citizens of India. The newly incorporated Article 51A sub-clause (g) states that, ‘It shall be 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 living creatures.’

By the same Constitutional Amendment Act of 1976, entry no. 20 appearing in the state list II pertaining to the protection of wild animals and birds, was transferred to the concurrent list II and renumbered as entry no. 17B. The effect of this transfer of the entry from the state list to concurrent list was that now both Parliament as well as state legislatures could pass laws for protection of wild animals and birds, and in the event of a conflict, the central law was to prevail. This amendment had far reaching repercussions as Parliament could now pass laws which were uniform across the country. The centre could now effectively supervise the functioning of the chief wildlife warden of the state and provide necessary funds and lay down policies for a uniform implementation of the provisions of the Wildlife (Protection) Act, 1972.

In 1982, by Amendment Act 23, the Wildlife (Protection) Act, 1972, Section 11 was amended to permit capture and translocation of wild animals for scientific management or for instruction in alternative suitable habitat of endangered species. Section 44 which relates to the grant of licenses for carrying on business in trophies and animal articles was also amended.

 

 

In 1986, through Amendment Act 28, which came into force on 20 November 1986, a major step was taken for the protection of wildlife to enforce the provisions of CITES under Article 253 of the Constitution and a new Chapter V-A was inserted in the Wildlife (Protection) Act. A complete prohibition of trade or commerce in trophies, animal article, etc., derived from scheduled animals, was imposed. Despite the best intentions of Parliament to put an embargo on all trading activity in animal articles – fur, ivory and so on – the traders ensured that the rigours of this amendment were nullified. They fielded a number of writ petitions challenging Amendment 28 of 1986 in the High Court of Delhi. On 23 January 1986 the traders succeeded in staying the operation of the newly amended Chapter V-A. Subsequently, the World Wide Fund for Nature intervened and despite stiff opposition from the traders succeeded in getting the stay order vacated on 22 May 1992.

In October 1991, the Wildlife (Protection), 1972 was yet again amended by Amendment Act 44. This was a historic amendment in the history of wildlife laws as the Parliament inserted yet another new Chapter III-A to provide protection to specified plants. The commercial exploitation of plants had brought many species on the verge of extinction. Chapter III-A for the first time included provisions to prohibit collection and exploitation of such endangered plants. By the Amendment Act 44 of 1991, Schedule VI was added specifying the species of plants that were endangered. The Parliament also amendment the long title, which now reads, ‘An Act to provide for the protection of wild animals, birds and plants and for matter connected there with or ancillary or incidental thereto.’ Subsequently, it also added the definition of the words ‘specified plant’ in Section 2 of the act.

 

 

For wild animals, the most vital and fundamental element for their survival, besides judicious control of poaching, is the habitat. It is indisputable that this crucial habitat is fast shrinking and turning into tiny little pockets. In the absence of interlinking corridors, these small pockets have thrown up new problems resulting in a new science called ‘island biogeography’. For those who love statistics: 16% of the world population lives on 2% of the land, creating contradictions like the loss of 15% of forest cover between 1981 and 1991. Despite rapid strides in agriculture, India’s food security remains tenuous; per capita foodgrain production is a measly 200 kg per year, just above the UN standard for famine-like conditions.

Worse, even the daily per capita consumption of 0.5 kg eludes one-third of Indians. The ideal diet is 400 kg per person per year; according to experts, India needs to produce at least 300 kg per person per year to be free from the hunger trap. In a similar vein, the total annual requirement for freshwater resources is expected to increase to 1,050 cubic km by 2025; aggravated by pollution, the spectre of water famine stares us in the face.

The 1.65 crore addition to the population every year requires the opening of 66,000 new primary schools annually (current figure 6,000), raising foodgrain production from 40 lakh tons to 50 lakh tons, creating 30 lakh new jobs in agriculture every year, and accommodating 50 lakh additional labourers in the crowded agro-sector.

This increase in population has not left our forests unaffected. The tribal population of India has increased manifold, from 38.1 million in 1971 to 53.8 million in 1981 and to 67.7 million in 1991.

Another issue of great import is the nature, content and extent of the rights of the dwellers within forests or other ecologically significant areas. The state cannot and should not deprive these people of their right to grazing, health, education, protection, law and order, clean water, proper sanitation, right to information or the right to vote, and so on. Equally important is the right to grow and procure food, to gather firewood to cook food to feed the family.

 

 

It is difficult to dispute the existence of these various facets of right to life, or stop others from exercising them. Yet the question remains whether these rights can be exercised irrespective of the consequences on wild animals and their habitats. Can society, which includes the state, impose restrictions on these rights and say, ‘this much and no more,’ when there is no firewood available other than in the reserve forests; when there is no land to grow food or for aquaculture except for that protected under some law; when there are no grazing fields other than those in the forests? As populations within and around forests increase rapidly, so does the pressure on the forest wealth to meet their needs.

Talchua was a small village of about 800 inhabitants when Bhitarkanika, one of the richest mangrove forests, was declared a sanctuary in the mid-70s. This village is situated in the core area of the sanctuary. After about two decades, in 1996, the population of this village had risen to over 10,000. Large tracts of mangroves were occupied and converted into paddy fields. Then came the aquaculture boom. Huge stretches of mangroves, adjacent to the creeks, were made into ‘gheris’ for prawn farming.

Such factors increased the clout of the people. So a road with bridges and culverts was constructed, running through the mangrove sanctuary. A jetty with a fish landing centre was constructed to cater to the inhabitants, though there was already one in existence a couple of kilometres up the coast; several schools with playgrounds, police station, and medical clinics were established. What was once a small village of fisherfolk metamorphosed into a full-fledged rural town without any sewage or garbage disposal mechanism, right in the middle of a sensitive mangrove ecosystem.

Another example is that of migrant traditional cattle owners, the Maldharis, whose cattle graze within the forests. Earlier, the number of cattle with the Maldharis was limited to cater to the milk requirements of the small pockets of human population within the vicinity of their grazing areas. But with an increase in the neighbouring population and the rapid improvement of transport and technology, the demand for milk is no longer limited to neighbouring areas. This increased demand has resulted in an increase in the cattle population with the Maldharis. The children, with their respective dependent families, have an equal right to follow in the footsteps of the father.

 

 

Let’s take the example of those dwellers who collect minor forest produce like herbs and honey. With the passage of time, the forest area has reduced and the number of dwellers surviving on minor forest produce has increased to cater to an ever increasing urban and rural demand.

These examples amply demonstrate the zest of the human species to exercise their rights. But what is lost sight of is their duty to the ever decreasing numbers of wild animals and their shrinking, insecure habitats – a habitat which constitutes just over 4% of the total landmass. It would be better now than in the future if the state, which represents the will of society, took effective steps to pro-vide the means, and on occasion compel those who live within and around the habitat of wild animals, to discharge their duties by restraining them from causing any further loss to the habitat. If the presence of the human species within any important core area is a threat to wildlife and its habitat, then it is their obligation to withdraw and relocate elsewhere. If such inhabitants refuse to do so in disregard of their duty, the state would be well justified in persuading them to do what they are otherwise obliged to do. If persuasion fails, then the state under the ‘doctrine of public trust’ would be acting well within the law to relocate them.

 

 

People alone do not constitute the sole factor responsible for the shrinking habitat. The state, under the garb of such ambiguous terms as public interest, national interest and public good, deprive wild animals of huge tracts of their habitats for mining, irrigation, power, roads, railways, ports among others.

The proposed dam in Madhav National Park (M.P.), the denotification of the Narayan Sarovar Sanctuary and the proposed denotification of the Wildass Sanctuary (Gujarat); laying of an oil pipeline through the Marine National Park (Gujarat) permitted, strangely for ‘better management’ of the park; setting up a state seed farm on prime grazing/wetland of the prey base within the Kataniya Ghat Sanctuary (U.P.); the Konkan Railway; mining in the Sariska Tiger Sanctuary; diversion of prime habitat from the Great Himalayan National Park under the garb of settlement of rights, are just some instances of state diversion and the consequent destruction of wildlife habitats.

These diversions have occurred despite loud and legitimate protests of the conservationists, highlighting the importance of such areas. Most protests have gone unheeded and proved to be ineffective when set up against the canons of public and national interest wielded by the authorities of the state.

The conservationists are not anti-public interest or anti-national interest. It is only that their concept of interests is more focused towards conservation. It is the absence of any formal forum, fully equipped to hear and determine conservation issues, that compels the conservationist to carry on and prolong their vocal and public protests.

 

 

Effective environmental governance requires an unbiased independent forum, fully equipped to resolve issues relating to the rights of the forest inhabitants; their relocation if required; rationalisation of boundaries of protected areas; abuse of power by the officers of the state; diversion/denotification of protected and other ecologically important habitats. This forum should in no manner supplant the courts of law. It would supplement the courts, otherwise overworked, by providing an alternative forum for expeditious reconciliation of the competing aspirations and claims of the diverse sections of the country. This could be achieved by setting up a statutory national commission to ensure that the provisions of the Wildlife Protection Act, Forest Act, and other such acts are exercised in a manner to achieve their object and purpose.

Such a commission should comprise of conservationists, social activists and relevant researchers, who can take a comprehensive view of wild-life conservation and people’s livelihood rights. The commission must have the power to appoint as many subcommittees, particularly at state levels and involving state government officials, to assist it in its objectives. The recommendation of the commission, after taking into consideration the reports of the subcommittees should be binding on the government.

Last, the law must be directed to effectively remedy the problems and evils persisting in society. It may be that in the past the situation did not necessitate passing of laws which are enacted today. The progress of law to harmonise the lives of people with the environment cannot be thwarted or faulted, its reasonableness cannot be worked out by mechanical formulae. What may have appeared an unreasonable restriction yesterday, could prove to be more than reasonable today. The test for determining the degree of reasonable restriction cannot be fixed or static. It must vary from age to age and adjusted to eliminate the dangers facing wildlife and its habitat. It is a pressing need of our times that activities, particularly commercial, which disrupt life forms and linkages necessary for the preservation of biodiversity and ecology, not be permitted. Rights granted under the Constitution are not absolute rights to be had at the cost of ecology but are qualified rights and restrictions thereon must be imposed. In the Kesavananda Bharati case (AIR 1973 SC 1461), the Supreme Court observed that the fundamental rights under the Constitution have no fixed content. Most of them are empty vessels into which each generation must contribute in the light of its experience.

We can only beseech that this generation transfers its rights over the forests from the vessel of rights into the cauldron of duties.

 

Total Population of Schedule Tribes with Percentage Increase in 1971, 1981 and 1991

 

State/UT	1971	1981	(% increase)	1991	(% increase)
States
Andhra Pradesh	16,57,657	31,76,001	91.60	41,99,481	32.23
Arunachal Pradesh	3,69,408	4,41,167	19.43	5,50,351	24.75
Assam	16,06,648	21,85,845	36.05	28,74,441	31.50
Bihar	49,32,767	58,10,867	17.80	66,16,914	13.87
Goa/Daman and Diu*	7,654	10,721	40.07	12,100	12.86
Gujarat	37,34,422	48,48,586	29.83	61,61,775	27.08
Haryana	NA	NA	NA	NA	NA
Himachal Pradesh	1,41,610	1,97,263	39.30	2,18,349	10.70
Jammu and Kashmir	NA	NA	NA	NA	NA
Karnataka	2,31,268	18,25,203	689.22	19,15,691	5.00
Kerala	2,69,356	2,61,475	-2.93	3,20,967	22.75
Madhya Pradesh	83,87,403	1,19,87,031	42.92	1,53,99,034	28.46
Maharashtra	29,54,249	57,72,038	95.38	73,18,281	26.79
Manipur	3,34,466	3,87,977	16.00	6,32,173	62.94
Meghalaya	8,14,230	10,76,345	32.19	15,17,927	41.03
Mizoram	3,13,299	4,61,907	47.43	6,53,565	41.49
Nagaland	4,57,602	6,50,885	42.24	10,60,822	62.98
Orissa	50,71,937	59,15,067	16.62	70,32,214	18.89
Punjab	NA	NA	NA	NA	NA
Rajasthan	31,25,506	41,83,124	33.84	54,74,881	30.88
Sikkim	52,000	73,623	41.58	90,901	23.47
Tamil Nadu	3,11,515	5,20,226	67.00	5,74,194	10.37
Tripura	4,50,544	5,83,920	29.60	8,53,345	46.14
Uttar Pradesh	1,98,565	2,32,705	17.19	2,87,901	23.72
West Bengal	25,32,969	30,70,672	21.23	38,08,760	24.04
Union Territories
Andaman and Nicobar Islands	18,102	22,361	23.53	26,770	19.72
Chandigarh	NA	NA	NA	NA	NA
Dadra and Nagar Haveli	64,445	81,714	26.80	1,09,380	33.86
Daman and Diu*	NA	NA	NA	NA	NA
Delhi	NA	NA	NA	NA	NA
Lakshadweep	29,540	37,760	27.83	48,163	27.55
Pondicherry	NA	NA	NA	NA	NA
India	3,80,67,162	5,38,14,483	47.81	6,77,58,380	25.91

Source: Census of India, 1991. * Data for the State of Goa and the Union Territory of Daman and Diu have been clubbed together.

 

 

Number of Poaching Cases Detected

 

State/UT	1995-96	1996-97	1997-98	1998-99
Andhra Pradesh	50	35	28	4
Arunachal Pradesh	1	1	2	1
Assam*	48	45	33	NA
Bihar	4	2	2	NA
Goa	Nil	Nil	2	NA
Gujarat	45	49	43	NA
Haryana	216	307	350	270
Himachal Pradesh	4	13	2	NA
Karnataka	49	58	81	22
Kerala*	35	9	2	NA
Madhya Pradesh	297	286	355	NA
Maharashtra	102	NA	NA	NA
Manipur	8	0	1	NA
Meghalaya	8	5	11	7
Mizoram	2	8	4	4
Nagaland	1	14	4	Nil
Orissa	78	53	35	NA
Punjab	247	215	235	NA
Rajasthan	107	56	29	NA
Sikkim	0	3	2	3
Tamil Nadu	21	–	–	NA
Tripura	1	0	2	NA
Uttar Pradesh	7	2	5	NA
West Bengal	6	0	2	NA
Delhi	9	2	14	1
Pondicherry	0	0	0	5
Lakshadweep	0	0	0	Nil
Total	1346	1163	1244	317

* As per calendar year.

Cases have been filed against the offenders under the Wildlife (Protection) Act, 1972.