2003 (8) TMI 473 - SC - Indian Laws

Prohibiting trade in the imported ivory - WHETHER THE IVORY VESTS IN THE GOVERNMENT? Held that - Appeal dismissed. The respondents would be entitled to take physical possession of the ivory now in seizure. The question, however, would be as to whether the Central Government should destroy the articles including idols of gods and goddesses and household items like sofa sets depicting cultural and religious heritage. It is stated that similar articles are being displayed in museums as a part of cultural and religious heritage of India. In view of our findings aforementioned, the appropriate authority would be entitled to continue to keep in possession the said articles. We, however, direct that the same be kept at appropriate museums or at such suitable places where the statutory authorities feel fit and proper but they should not be destroyed.

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.

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