2020 (10) TMI 1329 - HC - Indian Laws

Exotic species - inclusion of vulnerable exotic animals/birds species in the definition of exotic live species in Part I (a) of the Advisory for dealing with import of exotic live species in India - nature and extent of immunity contemplated by the Advisory as also whether it would cover other vulnerable exotic live species which are not mentioned in the Appendices to the CITES - HELD THAT - It appears that a Voluntary Disclosure Scheme has been introduced by the Central Government which gives an option to all the citizens of India to voluntarily declare their stock of exotic species enumerated in Appendices I, II and III of the CITES International Convention, if at all they are in possession thereof, within six months from the date of issuance of Advisory i.e. w.e.f. 11th June, 2020 (Annexure P-2 collectively to the memo of this writ petition). As per the Scheme, the declarer will submit themselves to the provisions of the Scheme and thereafter maintain a statutory record as prescribed under the Scheme for any addition or reduction in the declared stock of exotic species, which will enable the Government to have a unified information system for the stock of exotic species at the State or Central Government level. The window of six months for voluntary disclosure by allowing immunities only to those declarers who opt to file their voluntary disclosure declaration within six months from the date of issuance of the Advisory. Immunity is not provided to the declarers opting to disclose the stock once the period of six months is over from the date of issuance of the Advisory. The immunity contained in Clause I (b) of the Advisory as stated hereinabove for the declarers is not further clarified in the said Advisory. The petitioner is seeking directions so far as immunity is concerned, under the Voluntary Disclosure Scheme that there shall be no investigation into the acquisition or possession of exotic species once the declarer voluntarily discloses as per the Scheme - Once the immunity is granted under the Voluntary Disclosure Scheme, the respondent cannot investigate about the ownership, possession, trade, transportation, breeding, act of keeping, buying, selling and exhibiting such exotic animals/birds which are voluntarily disclosed by the declarer. The declarer would not be required to produce any documentation in relation to the exotic live species if the same has been declared within six months from the date of issuance of Advisory as per Part I Clause (b) of the Voluntary Disclosure Scheme. After six months period is over, from the date of issuance of the Advisory the declarer shall be required to comply with the documentation requirement under the extant laws and regulations. Voluntary Disclosure Scheme invites the declarers, in public interest, by conferring immunity to them for a limited period (here six months) to promote the voluntary disclosure. Once such voluntary disclosure is made within the time limit prescribed, no inquiry or action can be initiated by the respondent for possession, breeding or transportation of the exotic species within India by the officers of any Government agency or Department whether of Central Government or State Government. Such action of subsequent inquiry by the Government after voluntary disclosure would be wholly illegal, arbitrary, unreasonable, unsustainable and would defeat the very purpose of the Voluntary Disclosure Scheme. In view of the Article XIV to be read with affidavit filed by the respondent No. 1, especially in para 8L and 8AA to 9A, it has been expressed by the respondent that suggestion of the petitioner to enlarge the scope of the Advisory to all exotic live species is acknowledged because there are still other vulnerable exotic live species which are not mentioned in the Appendices I, II and III to the International Convention CITES. Thus, the further Advisory can always be issued by the respondent keeping in mind the provisions of Article 48A and to be read with Article 51A(g) of the Constitution of India which are about protection and improvement of the environment and to safeguard the forest and wild life of the country. This obligation of the State extends to protecting exotic live species, beyond the Appendix to the CITES - International Convention. The respondents are not obliged to make laws only in terms of CITES and can widen the scope of restrictions, having regard to the local conditions and circumstances - writ petition disposed off.

Summary

Issues Involved:
1. Inclusion of other vulnerable exotic animals/birds species in the definition of "exotic live species."
2. Clarification of the nature and extent of immunity under the Advisory for dealing with the import of exotic live species.

Issue-wise Detailed Analysis:

1. Inclusion of Other Vulnerable Exotic Animals/Birds Species:

The petitioners sought a writ directing the respondent to include other vulnerable exotic animals/birds species in the definition of "exotic live species" as per the Advisory dated 11th June 2020. The petitioners argued that the Advisory limits its operation to species listed in Appendices I, II, and III of CITES, excluding many other threatened species that require protection. The respondent acknowledged this suggestion and stated that the current scope of the Advisory is limited to species listed in CITES Appendices due to India's commitment to the Convention. However, the respondent also recognized the need to consider the inclusion of other exotic live species listed under the Wild Life (Protection) Act, 1972, in future advisories.

The court noted that Article XIV of CITES allows for stricter domestic measures regarding trade, possession, or transport of species included in its Appendices or other species not listed therein. The court highlighted the Supreme Court's observation in Indian Handicrafts Emporium v. Union of India that India is not obligated to make laws solely in terms of CITES and can impose stricter restrictions based on local needs. The court directed the respondent to keep these considerations in mind while issuing further advisories to include other vulnerable exotic live species.

2. Clarification of the Nature and Extent of Immunity:

The petitioners sought clarification on the immunity provided under the Voluntary Disclosure Scheme in the Advisory. They argued that the Advisory does not sufficiently specify the nature of protection offered, thereby discouraging people from declaring their stock. The respondent clarified that the declarer would be certified and recognized as a genuine owner by the local forest and wildlife authority if the declaration is made within six months from the date of the Advisory. The declarer would not be required to produce any documentation related to the exotic live species declared within this period.

The court agreed with the petitioners' argument that once immunity is granted under the Voluntary Disclosure Scheme, the respondent cannot investigate the ownership, possession, trade, transportation, breeding, or other activities related to the declared exotic animals/birds. The court emphasized that subsequent inquiry by the government after voluntary disclosure would be illegal, arbitrary, and defeat the purpose of the Scheme. The court referred to the Supreme Court's judgment in Hiralal Hari Lal Bhagwati v. CBI, which held that once a Voluntary Disclosure Scheme is availed, subsequent proceedings against the declarant are unreasonable and lack bona fides.

The court also referred to a similar judgment by the Allahabad High Court, which was upheld by the Supreme Court, stating that during the six-month window for voluntary disclosure, any inquiry or action against the possession, breeding, or transportation of exotic species within India by any government agency would be illegal, arbitrary, and unsustainable.

Conclusion:

The court directed the respondent to consider issuing further advisories to include other vulnerable exotic live species beyond those listed in CITES Appendices. The court also clarified that once a declarer voluntarily discloses their stock of exotic species within the six-month period, no civil or criminal inquiry can be conducted by the respondent regarding the ownership, possession, trade, transportation, breeding, or other activities related to the declared species. The writ petition was disposed of with these clarifications.