Opinion Based Blog

An Appraisal on Illegal Wildlife Trading and related Legal Frameworks


Author: Shlaaghaa Prem, 4th year student at Presidency University, Bengaluru.

Introduction

Wildlife is referred to as animals and sometimes plants that live and grow in areas that are not inhabited by humans. They are non-domestic in nature and can be found in ecosystems such as deserts, forests, rainforests, plains, grasslands and other areas. While the majority of these species are found in remote areas, distinct forms of what qualifies as wildlife can even be found in the most developed urban areas.[1] Over the course of civilization, animals were subjected to domestication and large scale developments took place which had a significant impact on the environment. As a result, ecosystems began to collapse as animals were exploited for the benefit of human beings. In order to preserve the wildlife that was slowly facing extinction, the Indian Government introduced various legislations that provide protection and these laws are in accordance with international conventions and treaties.[2]

Illegal Wildlife Trading

Commerce of commodities that are obtained from animals or plants that were deracinated from their natural environment is referred to as wildlife trade. Trading of rhino horns, elephant ivory, tiger bone and skin, pangolin scales, rosewood etc are leading to unprecedented decline of these animals. Much like trafficking of illegal drugs and arms, the trafficking and unsustainable trade in wildlife commodities is estimated to be a very lucrative business. Wildlife trade is not always illegal as many species are captured, harvested and sold legally. It is only when the survival of species is endangered due to the growing amount of illegal and unsustainable trade that the crisis in wildlife becomes eminent.

Illegal Wildlife Trading in India

The illegal wildlife trade has cropped up as a type of Organized Transnational Crime that has time and time again has threatened the existence of many species. India is home to three out of the thirty four biodiversity hotspots found in the world, hence is considered to have one of the richest, diverse and varied wildlife reserves. According to a study conducted by Indira Gandhi Conservation Monitoring Centre, 12% avian, 7% mammals, 6% reptiles and 6% species of flowers and about 70% indegenous plants and animal species are native to the country.[3] Apart from the common elephant tusks and rhino horns, products such as mongoose hair, deer antlers, turtle shells, shahtoosh shawl, musk pods and birds such as parakeets, mynas and munias are largely traded in India. While the demand for these is not necessarily present in the country, a large part of the trade takes place in international markets. Under the Wildlife (Protection) Act, 1972, the trade of over 1800 animals, plants and their derivatives are restricted in India. Besides, since 1976, India has also been a member of Convention on International Trade in Endangered Species of Fauna and Flora (CITES).[4]

Illegal capturing and killing, buying and selling of animals and animal parts is prohibited under the Wildlife (Protection) Act, 1972. The state is authorized to take necessary measures to ensure that the flora and fauna is protected. Section 2 of the Act defines wildlife and this definition embodies all types of life forms that are wild. Hunting of wild birds is prohibited under section 9. Wild animals that are hunted, raised, grazed, killed and found dead or alive automatically become the property of the State Government as specified by section 39. Section 51 covers the punishment with imprisonment and fine subject to violation of any conditions of the Act. In the 2007 amendment of the Act, a statutory body called the Wildlife Crime Control Bureau was constituted as an accompaniment to the state governments.[5]

In R. Simon vs. Union of India, the petitioner was in the business of making leather products derived from snake skin and challenged an amendment that prohibited trade in animal articles on the ground that the amendment was in violation of his fundamental right under Article 19(1)(g) to practice any trade or profession. The Supreme Court held that the activities that cause harm to the society is prohibited and considering that animals are an essential actor in the natural society, they should be protected. In the case of Balram Kumawat vs. Union of India, the petitioner was selling elephant ivory under the pretense of mammoth ivory and contended that two were not the same since the latter is extinct. The Court held that since all forms of ivory are prohibited from being traded as stipulated by the 1991 amendment, mammoth ivory falls into ‘all forms’ of ivory. The balance between fundamental rights and social interests was balanced in Indian Handicrafts Emporium vs. Union of India, where the Court upheld the validity of the 1991 amendment. The Forest Conservation Act, 1980 and The Biological Diversity Act, 2002 are two other national legislations enacted to achieve the same objective. The former ensures that deforestation for the use of agricultural, industry and other development undertakings is regulated and kept to a minimum. Currently, the Supreme Court has said that without the advanced approval of the federal government, release of forestland for activities that are not associated with the forest is banned. On the other hand the latter ensures that the components of biological diversity are sustainably used and the benefits arising out of the use of biological resources is fair and equitable.[6]

The Supreme Courts have time and time again held that citizens have a duty to protect and preserve wildlife in pursuance with Article 48A and 51A of the Constitution and international Conventions and treaties. Even though some of them don’t serve a purpose to human beings. In an effort to make sure that the survival of species of animals and plants are not threatened, an international agreement was formulated between governments called Convention on International Trade in Endangered Species of Fauna and Flora (CITES). Species are classified into Appendices based on the level of endangerment. By pledging as a member of the Convention, India sought to protect wildlife both through international policy as well as at the domestic level.[7]

Need for Reevaluation based on Current Scenario of Illegal Wildlife Trading

Trade Records Analysis of Flora and Fauna in Commerce (TRAFFIC) actively monitors and investigates wildlife trade with an aim to use the information for better conservation policies and programmes. A 70% decrease in online sale of ivory between 2016-2019 was reported by TRAFFIC, but the pandemic decided to reverse the effect. The demand and the ground activity around animal products have reduced as compared to 2019 but the need to reevaluate these laws and monitor their enforceability and implementation has now become a necessity as illegal wildlife trafficking like everything else during this pandemic has gone online.[8] The demand for wildlife products is still prevalent on social media platforms as advertisements are making the rounds. The recent worry is that in anticipation of restrictions being eased, these traders may stockpile animal parts as demand resorts to normal.[9] Experts have pointed out in dismay that addressing online trading is extremely hard due to limited enforcement capacities, encrypted and undetectable online transactions and lack of government regulation. Trading wildlife online has become such a nuisance that now when certain user searches for instance ‘tiger+buy’ is flagged by Facebook and Instagram, contravention to policy is stated and redirected to conservation pages such as the World Wide Fund (WWF).

The Oxford Brookes University research showed that despite the pandemic, animals are being sold at a constant pace but now advertised as ‘lockdown pets’. Around 20,000 Facebook posts of trade of wildlife were analyzed and it was evidenced that the pandemic had not discouraged the activity, instead discounts and home delivery services were provided.[10] The research was under the impression that COVID-19 would put out fliers advertising the potential dangers of wildlife trading taking into consideration the risk of animal to human disease transmission but the opposite happened. All is to say that in the 20,000 only 0.44% of the online wildlife trade advertisements were COVID-19 related.[11]

Conclusion

The Constitution in addition to the various legislations instructs that the protection and preservation of wildlife is of utmost importance. The laws are not the problem in India, the poor enforcement and implementation is the root cause. Political And government backing is essential in making sure the path is paved for positive efforts. Penalties and legal infringements should be stricter as the aim is to engrave in the traders mind the consequences of the activity and ensure it is not repeated. As traders find new ways to continue to exploit the wildlife, the law needs to catch up before it’s too late. Education is an integral element in combating the trade as people still believe animal parts possess magical healing which subsequently leads to poaching. The human-wildlife conflicts and poaching are in need of immediate attention.


References

[1] Priyanka Mane, Efficacy of Wildlife Protection Laws in India, Law Bhoomi (Apr 30, 2020), https://lawbhoomi.com/efficacy-of-wildlife-protection-laws-in-india/.

[2] Legal Frameworks to Deter and Combat the Illegal Wildlife Trade in Southeast Asia, OECD ILibrary (2020), https://www.oecd-ilibrary.org/sites/bb3eae76-en/index.html?itemId=/content/component/bb3eae76-en.

[3] Biodiversity Profile for India, Indira Gandhi Monitoring Centre (2001)

[4] Surpriti Trivedi, Conservation of Wildlife: Legal Issues and Challenges, SSRN Papers (2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2437317.

[5] Verdant Saxena, The Laws Governing Poaching and Animal Trafficking in India, Ipleaders (Feb 26, 2021),https://blog.ipleaders.in/laws-governing-poaching-animal-trafficking-india/.

[6] Shreya, Illegal Trafficking and Poaching Laws in India, Legal Services India (2021), http://www.legalserviceindia.com/legal/article-1410-illegal-trafficking-and-poaching-laws-in-india.html.

[7] Shreeya Sucharita, Illegal Wildlife Trading in India: Law and Role of Courts, Latest Laws (Nov 14, 2020),https://www.latestlaws.com/articles/illegal-wildlife-trading-in-india-law-and-role-of-courts/.

[8] Imelda Abano, Wildlife Trafficking has gone Online during COVID-19, Mongabay (Jun 1, 2021), https://www.google.com/amp/s/news.mongabay.com/2021/06/wildlife-trafficking-like-everything-else-has-gone-online-during-covid-19/amp/.

[9] Rashmi Menon, Illegal Wildlife Trade Hasn’t Slowed Down Even After COVID-19 Outbreak, Mint Lounge (Sep 29, 2020), https://lifestyle.livemint.com/smart-living/environment/-illegal-wildlife-trade-hasn-t-slowed-even-after-covid-19-outbreak-111601278158054.html.

[10] Illegal Trade in Wild Animals is Unaffected by Pandemic, The Indian Express (Dec 24, 2020), https://www.google.com/amp/s/indianexpress.com/article/explained/illegal-trade-in-wild-animals-is-unaffected-by-pandemic-7117660/lite/.

[11] Prashasti Awasthi, COVID-19 Pandemic Unable to Stop Illegal Wildlife Trade Happening Across Social Media, Business Line (2020), https://www.thehindubusinessline.com/news/variety/covid-19-pandemic-unable-to-stop-illegal-wildlife-trade-happening-across-social-media/article33409495.ece.

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