Wildlife Protection Society of India Vs. State of Jandk - Court Judgment

O.P. Sharma, J.

1. The Wildlife Protection Society of India is the petitioner. It claims to be voluntary organisation formed with the aim of averting Wildlife Crisis and also to provide additional support and information required to combat illegal International Wildlife Trade. In this petition the focus of its attention is the threatened extinction of Tibetan Antelope which is commonly known as Chiru. The under-wool of this animal according to the petitioner is used for manufacturing Shahtoosh Shawls. According to the petitioner there have been startling seizures of Shahtoosh Shawls and Shahtoosh between 1992-98 and India accounts for most of the seizures. This is notwithstanding the fact that Tibetan. Antelope is a protected animal under the Central Wildlife Protection Act, 1972. (for short Central Wildlife Act), and despite the fact that India is a signatory to the Convention on International. Trade in Endangered Species of Wild Fauna and Flora (for short CITES hereinafter) under which import and trade in animal articles made or derived from Shahtoosh that is the under-wool of Tibetan Antelope is prohibited.

2. According to the petitioner Chiru has been included in Appendix-I of the CITES which came into force in October, 1996 but still manufacture and trade of Shahtoosh is not regulated in the State because it is not a protected animal under the J&K; Wildlife Protection Act, 1978 (for short the State Wildlife Act). The case of the petitioner is that there is a paradoxical contrast between the Central Wildlife Act and the State Wildlife Act because while under the former Chiru is a protected animals. It is not so under the State Act.

3. Let us first know what Shahtoosh is and how it is used in making Shawl. Tibetan Antelope or Chiru is endemic to the high planes of the Tibetan Plateau. As it inhabits in the Worlds most climatical hostile regions which is characterized by extreme high altitude, it grows thick coat as insulation to conserve body heat for fighting cold at an altitude which is more than 3500 metres. This coat has two types of hairs, (a) Long rough guard hairs and (b) Under wool which is composed of fine wool hairs. This thickly packed under-wool grows closed to the second and remains covered by guard hairs. Like other mammals of cold climate, the Tibetan Antelope also shed their thick winter coat when the ambient rise with the unset of summer. This moulding takes place during every spring season. It is thus under wool of Chiru which is known as Shahtoosh and is traditionally used for making fine quality woolen garments which are highly priced in the market.

4. While Shahtoosh is used for making garments such as fine quality shawls, the horns of Chiru are used in the preparation of traditional Chinese medicines and its meat is said to be a delicacy in China. According to the petitioner-Society, there are official reports that about 2000-3000 Chiru are killed every year and the poaching goes on. Although the import and export of Shahtoosh is prohibited yet the seizures of Shahtoosh. Shawl in Delhi, Calcutta and Bangalore indicate that the Shahtoosh Shawls are being manufactured and marketed also because the State has neither banned its manufacture nor regulated the trade as required Under Section 43 of the State Wildlife Act. It is further averred that a small population of about 200 Tibetan Antelope migrate to Ladakh region during summer and assuming that during this period they shed their wool, the same is not sufficient to sustain the trade in Shahtoosh Shawls. It is thus clear that poaching continues in this part of the country and the Shahtoosh is being illegally imported also. The society, therefore, prays that respondents be directed to implemented and initiate measures to prohibit/regulate importation, manufacture from and sale of raw under-wool of Tibetan Antelope or any product made or derived there from in compliance with the provisions of CITES and enforce export and import policy effective from 1.4.1977 to 31.3.2000.

5. In the returns filed on behalf of the State Govt., it is stated that there has been no evidence of poaching of Chiru in the State and even though it is not a protected animal yet no licence for hunting was issued under the Wildlife Act ever since 1978 when the Act came into force. The further stand of the State is that Shahtoosh shawals are made from under-wool shed by the animal and collected by the locals which is sold in the market against which there is no prohibition. The seizure of the Shahtoosh Shawls it is further pleaded having been made outside the State it does not follow that these were manufactured in the State. The simple defence of the State is that the Chiru figures in IInd Schedule of the State Wildlife Act, therefore, hunting is not permissible with-out permission from the Chief Wildlife Warden of the State. So even if the animal does not figure in Schedule-I of the Act, yet no permission is granted, therefore, it is immaterial whether it figures in Schedule-I or Schedule-II of the State Wildlife Act.

6. The stand of the Union of India is that they have been persuading the State Govt. to bring the State Wildlife Act at par with the Central Wildlife Act. So far the enforcement of CITES is concerned, it is stated that all necessary steps have been taken to ensure that provisions of the CITES are strictly complied and effectively implemented. However, since the primary responsibility for regulating the Internal Trade of the Wildlife products rests with the State Government, the centre is perusing the matter at appropriate level. It is further stated that office of the Ministry of Environment and Forest, Govt. of India located at Delhi, Calcutta, Bombay and Chennai-assisting the State Govt. within their respective regions in enforcing the provisions of the Central Act & the provisions of the CITES, The Govt. of India has further taken steps to train and sensitized enforcement agencies like Indo Tibetan Border Police, B.S.F. Postal Guards, Customs and Police for preventing any illegal import or export of the Shahtoosh and other animal Articles.

7. The Handicrafts Trader Association, Srinagar has resisted the petition inter-alia on the ground that it has been filed by a rival in the trade but their main challenge is that Shahtoosh Shawl is made of wool which is not covered by the definition of either Animal Article or Trophy as defined in the State Wildlife Act, therefore, no licence is required for manufacture of Shahtoosh Shawls. Another plea is that since this wool is shed by the animal which the locals of the area collect which is sold in the market, therefore no killing is involved and as such no licence is necessary.

8. Mr. Raj Panjwani learned counsel appearing for the petitioner-Society argued that 'animal article' as defined in Section 2 of the State Wildlife Act includes shawls made from the hairs of the Tibetan Antelope. The definition of 'Trophy' also includes hair of the animal and wool according to him is nothing but hair. Since Section 38 of the State Wildlife Act provides that wild animal including animal articles shall be Property of the Govt; his argument is that person who obtains by any means the possession of Govt. property has to report the same to the nearest Police Station and if required handover the same to the Officer Incharge of the Police Station. In view of this mandatory provision, no person according to Mr. Panjwani can manufacture or be a dealer of any animal article. His further contention is that even a person in whose favour licence is issued under Section 43 of the State Wildlife Act cannot acquire any animal article from outside the State without the permission of the Central Wildlife Warden and no person can acquire the same except from the authorised dealer. Since Chiru is a protected animal under the provisions of the CITES, import and export of the animal article, argued the learned counsel is not permissible except in accordance with law. But the import and export policy of the Govt. of India for the year 1997-2000 specifically prohibits import of Wild animals including Shahtoosh that is under-wool of the Tibetan Antelope. So the manufacture, trade and possession of Shahtoosh shawl according to Mr. Panjwani is illegal and the respondents are under an obligation to enforce the provisions of CITES to save the endangered animal from extinction.

9. Mr. Anand appearing for the State has reiterated the stand as noticed above by stating that state is acting strictly in accordance with the provisions of the State Wildlife Act. Since Central Wildlife Act is not applicable to the State, therefore, Chiru according to learned counsel is not a protected animal and there is no need to regulate the trade under Section 43.

10. The contention of Mr. Naik who appears for the Handicrafts Traders Association, Srinagar is three-folds,(i) that the petition is not maintainable because no public interest is involved; (ii) that no mandamus can be issued for implementing the policy since the grant of licence and framing of rules under the State Wildlife Act is a matter of policy, therefore, the petition is not maintainable; and (iii) that it is not hair of Chiru but under-wool shed by the animal from which the Shahtoosh shawls are manufactured, the provisions of he Act are not infringed.

11. Mr. Showkat learned counsel appearing for some of the private respondents while adopting the argument of Mr. Naik, argued that unless poaching/killing of the animal is proved to be for carrying on trade, the manufacture of Shahtoosh Shawl cannot be prohibited. According to him if killing was must before under-wool could be collected, the trade would not have survived for centuries. It is therefore, only the under-wool which is collected by the locals that the animals is surviving and so is the trade.

12. The petitioners have raised the following questions of public importance:

'(i) Whether the respondents are under the obligation to enforce the provisions of CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) and thereby prohibit importation and trade in animal articles made/derived from Shahtoosh the under wool of the Tibetan Antelope.

(ii) Whether the respondents are under an obligation to enforce the ban on importation of wild animals including their parts and products particularly made/derived from Shahtoosh as stipulated under the Export and Import policy, 1st April 1997-31st March, 2002.

(iii) Whether the prohibition imposed by the Central Wildlife (Protection) Act to carry on trade in animal articles made/derived from Tibetan Antelope and the provisions contained in the Jammu & Kashmir Wildlife (Protection) Act, allowing trade in such Tibetan Antelope articles are repugnant to each other, if so, to what effect.'

13. The main argument of Mr. Panjwani is that Union Govt. as well State Govt. are under a legal obligation to enforce the provisions of CITES. The Union Govt. is on record to say that it has taken necessary steps to implement the provisions of CITES. There is however, not even a whisper in the returns filed on behalf of the State Govt. about its obligation to enforce the provisions of CITES except that import and export is regulated by the Govt. of India. Convention on International Trade in Endangered Species of Wild Fauna and Flora is a Treaty or an Agreement with the Foreign Countries which is covered by Entry 14 of the Union List in the 7th Schedule of the Constitution of India. Entries 10 to 14 of the Union List pertains to Foreign Affairs and these have been made applicable to the State of J&K; without any exception of modification vide the constitution application. So the Union Govt. alone is competent to enter into trade agreements with foreign countries and it has the obligation to enforce it through out India including the State of J&K.; What is the obligation of the State towards the implementation of the CITES will depend upon whether Shahtoosh is an animal article defined under the State Wildlife Act and whether it is a property of the Government.

14. The next question is whether Shahtoosh the under-wool of the Tibetan Antelope is an animal article, the import of which is prohibited. The definition of animal article is defined in Section 2(2) of the State Wildlife Act, which reads as under :

2(2): 'animal article' means an article made from any captive animal or wild animal, other than vermin, and includes an article or object in which the whole or any part of such animal has been used;'

The expression 'whole or any part of such animal is quite significant. So if under wool or hair of Chiru is part of such animal, it will fall under the definition. But before dealing with this, the definition of Trophy as defined Under Section 2(29) may also be noticed which reads as under:

'2(29): 'trophy means the whole or any part of any captive animal or wild animal other than vermin, which has been kept or preserved by any means whether artificial or natural and includes:

(a) rugs, skins and specimens of such animal mounted in whole or in a part through a process of taxidermy; and

(b) antler horn, rhinoceros horn, hair, feather nail, tooth, musk eggs and nests;'

So hair is included in the definition of Trophy. In case 'animal article' including 'Trophy' or 'uncured Trophy' is a Govt. property under the State Act. Its possession without licence will be illegal. Consequently, the possession of Shahtoosh Shawl will also be illegal and so also its trade unless permitted by law. This takes us to Section 38 of the State Act which reads as under:

'38. Wild animals etc. to be Govt. Property --(1) Every -

(a) wild animal other than Vermin, which is hunted Under Section 10 or Sub-section (1) of Section 29 or Sub-section (6) of Section 35 or kept or bread in captivity in contravention of any provision of this Act or any rule or order made there under or found dead, or killed without a licence or by mistake, and

(b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in Clause (a) in respect of which any offence against this Act or any rule or order made there, under has been committed.

Shall be the property of the Govt. and where such animal is hunted in a sanctuary or National Park, declared by the Govt, such animal or any animal article, trophy, uncured trophy or meat derived from such animal, shall be the property of the Govt.'

15. Since Tibetan Antelope is included in Schedule 11 of the State Act, it can be hunted only with the permission of Chief Wildlife Warden as provided under Section 10(1)(b) of the Act.

16. It is the stand of the State Govt. that no licence has ever been issued for hunting the Chiru. It, therefore, follows that if Shahtoosh are underwool cannot be obtained without killing the animal, it will be the property of the state under Section 38.

17. Assuming that underwool of Chiru is not animal article though in my opinion it is, the definition of Trophy includes hair of the wild animal and, therefore, under-wool or Shahtoosh irrespective of the fact how it is obtained by a dealer or manufacturer is property of the Govt. under Section 38. Sub-section (3) of Section 38 prohibits acquisition and possession of animal article or Trophy without the permission of the Chief Wildlife Warden. It is not disputed that Shahtoosh Shawls are made of under-wool obtained from Chiru, The only justification put forward by Mr. Naik was that it is not hair but wool and, therefore, neither the definition of animal article nor trophy covers it. Argument is noticed only to be rejected because the wool as defined in Oxford dictionary is 'fine soft wavy hair from the fleece of sheep, goats etc.' and hair is defined as 'any of the fine threadlike strands growing from the skin of mammals.' So the under wool or Shahtoosh is included in the definition of animal article as well as Trophy as defined in the State Wildlife Act. It is thus the obligation of the State to render all assistance to the Central Government to implement the provisions of CITES.

Question No. 2: The Central Govt. in exercise of power under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 has notified the export and import policy for the year 1997-2002, Wild animals including their parts and products is included in the negative list of Import (Chapter 15 part-I) of the Export and Import Policy. Chapter 3 of the Policy defines wild animals as defined in Section 2(36) of the Wildlife Protection Act, 1972 which includes Tibetan Antelopes. Since the import and export of any animal article is prohibited, therefore, the official respondents have the obligation to enforce the ban. This question is answered accordingly.

Question No. 3 : The subject 'protection of wild animals and birds' figured in entry 17(B) of the concurrent List-3 in the 7th Schedule to the Constitution of India. This entry was inserted by 42nd Amendment Act, 1976 with effect from 7.1.1977. This amendment has not been made applicable to the State of J&K.; Therefore, Central Wildlife Act is not applicable to the State. The power of the State Legislature to enact the Wildlife Protection Act, 1978 is therefore not referable to entry 17(B) but is traceable to Section 5 of the Constitution of Jammu & Kashmir. Since entry 17(B) is not applicable to the State, the question of inconsistency or repugnancy between the Central Act and the State Act in contemplation of Article 254 of the Constitution of India does not arise. Since Article 248 has also been applied to the State with modification covering only prevention of activities involving the terrorist acts etc. therefore, the Central Wildlife Act does not fall under the residuary power of legislation of Parliament either. So the question of repugnancy of any provision of the State Wildlife Act to the Central Wildlife Act does not arise. However, the next question is how the international agreement are to be implemented lay the Union Government. Article 253 of the Constitution empowers Parliament to make law for the whole or any part of the territory of India for implementing such agreements or conventions. This Article reads as under:

'253. Legislation for giving effect to international agreements -- Notwithstanding anything in the foregoing provisions of this Chapter. Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.'

It is applicable to the State though a proviso has also been added which is not relevant. So the import and export policy has been made in exercise of Foreign Trade (Development and Regulation) Act, 1992 and this power is vested only in the Parliament. Similarly the CITES is an agreement falling within the entries 13 or 14 of the Union List which the Central Government is alone competent to enter into.

18. The next question is how to ensure compliance of CITES in the State of Jammu & Kashmir. This depends upon the extent of the Executive Powers of the Government of India viz-a-viz the State. Article 256 of the Constitution of India in its application to the State has been renumbered as Clause (1) and thereafter Clause (2) has been added. (See The Constitution (Application to Jammu and Kashmir) Order, 1954). Article 256(1) as applicable to the State reads as follows:

'256. obligation of States and the Union -- (1) The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may, appear to the Government of India to be necessary for that purpose.'

It is not necessary to reproduce Clause (2) as it is not relevant in this case. So the Union Government is empowered to give direction to the State to ensure compliance of the provisions of the CITES in exercise of its executive powers under Clause(1) of Article 256.

19. Let us see how this power has been exercised by the Union Government. The Union Minister for Environment & Forests, Govt. of India wrote the following letter to the Chief Minister of the State on May 20, 1998:

'Sub: -- Manufacturer of Shahtoosh Shawls in Jammu & Kashmir. Dear Shri Farooq Abdullah Ji,

The Shahtoosh Shawls are woven entirely in Srinagar in Jammu and Kashmir. I have been given to understand that even though earlier it was not well-known that the wood used in the manufacture of these shawls is derived from an endangered species called 'Chiru' (Tibetan antelope). Overwhelming scientific evidence is now available to the contrary. This species is listed in schedule 1 of the Wildlife (Protection) Act, 1972 and is also covered by in Apendix 1 of CITES, an international convention to which India is a party. It has been documented by a renowned scientist of USA, Dr. George Schaller, that the antelope is killed in large numbers in Tibet for its wool and the wool is then smuggled into India, in violation of India's export and import policy, CITES and other laws. There is no evidence of collecting the wool of this animal from rocks and bushes as was a popular belief prevailing before scientific evidence became available.

2. The existing provisions of the J&K; Wildlife Protection Act are causing undue hardship to the tourists coming to the State, where the sale of Shahtoosh shawls is permitted. There have been a number of seizures of the shawls at Delhi airport and abroad.

3. I, therefore, request you that the J&K; Government may assign Chiru (Tibetan antelope) a status at par in its Act with the provisions of the Central Wildlife (Protection) Act, 1972 so that this rare and endangered species is saved and out international image is not adversely affected.

With warm regards,

Yours sincerely

Sd/-

(Suresh P. Prabhu)'

20. It is not a direction under Article 256(1) of the Constitution. However, giving directions under Article 256(1) is a matter of policy because non-compliance of such directions may invite action under Article 356 of the Constitution which the Union Government may not be willing to invoke either for administrative or political reasons which again is a matter of policy. Since the policy is the exclusive domain of executive or the elected Government no mandamus directing the Union of India to proceed under Article 256 can be issued. This takes us to the question of obligation of State to regulate the trade in Shahtoosh,

Section 43(1)(a)(i)(iii) provide as follows:

'43. Dealing in trophy and animal Articles without licenceprohibited:

(1) Except under and in accordance with a licence, granted under Sub-section (4) no person shall

(a) commence or carry on the business as

(i) a manufacturer of or dealer in, any animal article; or (ii) a dealer in trophy or uncured trophy; or

Provided that nothing in this sub-section shall prevent a person, who immediately before the commence of this Act was carrying on the business or occupation specified in this sub-section from carrying on such business or occupation for a period of thirty days from such commencement, or where he has made an application within that period for the grant of a licence to him until the licence is granted to him or he is informed in writing that a licence cannot be granted to him.'

Since Shahtoosh is the under-wool or hair of the Tibetan antelope no person can carry on business in it except as provided in the above proviso. But the stand of the Handicrafts manufacturers and others is that no such licence is necessary because the Shahtoosh is shed by the animal on its own and sold by those who collect it.

21. However, no business can be carried on except in accordance with Section 43. Sub-sections (3) & (4) of Section 43 which read as under:

'(3) Every person referred to in Sub-section (1) who intends to obtain a licence, shall, within forty five days from the commencement of this Act, make an application to the Chief Wild Life Warden or the authorised officer for the grant of a licence.

(4) (a) Every application referred to in Sub-section (3) shall be made, in such form and on payment of such fee as may be prescribed, to the Chief Wild Life Warden or the authorised officer. (b) No licence referred to in Sub-section (1) shall be granted unless the Chief Wild Life Warden, or the authorised officer having regard to such matters as may be prescribed in this behalf and after making such inquiry in respect of those matters as he may think fit is satisfied that the licence should be granted.'

22. So the prohibition carrying on business or occupation in animal articles and trophies or uncured trophies is absolute except in accordance with the licence issued under this section. Again while Section 46 provides for maintenance of record by the licensees. Section 47 regulates the custody or possession of animal articles and trophy or uncured trophy in accordance with the rules made under the Act. The 1st proviso to Section 47 reads as under :-

'Provided that where the acquisition or possession, control or custody, of such animal or animal article, trophy or uncured trophy entails the transfer or transport from outside State no such transfer or transport shall be effected except with the previous permission in writing of the Chief Wild Life Warden or any other officer authorised by him in this behalf.'

23. So it is in-comprehensible how this trade is being carried on after the State Wild Life Act was enacted and enforced. Why it is not being implemented has not been explained. The State Government enforced it vide SRO 18 dated 10th January, 1979. The will of the people expressed so eloquently in the Act is being partly defeated by the failure of the Government to implement the Act on the mere ipse dixit that no licence for killing the 'Chiru' was ever issued which however is not a guarantee against its killing.

24. Similarly the plea that Shahtoosh is not obtained by killing the Cheru but collected when it is shed by the animal has been negatived by the expert committee and even otherwise not acceptable to common sense because the yield from a dead animal is only between 125 to 150 grams of Shahtoosh and when it is shed the quantity may be much less because of the waste as it is never shed at a particular place. The plea was thus rightly negatived by the Committee which included a Senior Forest Officer namely Sh. P.P. Sharma-Chief Wild Life Warden of the State, a fairly senior officer of the Indian Forest Service, later Principal Chief Conservator of Forests and is still in service; Sh. Nazir Kitchloo-Wild Life Warden and members of the Trader Community. This Committee has also found that there was no evidence of collection of shed-wool of any kind and there is much weight in the report because only 200 to 220 Tibetan Antelopes are reported to be travelling to Ladakh region. This number is inadequate to sustain the trade in Shahtoosh unless most of them are killed. But assuming that they are not killed, still Shahtoosh obtained from any source is a State property under Section 38 of the Act and no body can possess it without licence issued under Section 43 of the State Act.

25. The failure of the State Government to implement the Act has thus defeated the purpose of the Act and thereby the will of the people expressed through, the provisions of the Act has not been taken to its logical conclusion.

26. An enactment is not passed merely to be placed on the Statute book but to achieve its object. In order to achieve the object, the Government in exercise of powers conferred by section 67 made J&K; Wild Life (Protection) Rules, 1978. These were notified vide SRO-19 dated 10th of January, 1979. Rule 35 (Chapter V) of the Rules provides as under:

'35. Application for licence to commence or carry on business as a manufacturer of or dealer in any animal articles etc. -

(a) Every person desiring-

(b) to commence or carry on the business as -

(i) a manufacturer or dealer in any animal article; or (iii) a dealer in trophy or uncured trophy; or ......

Different forms have been prescribed under which declaration is to be made by the Manufacturer in respect of the possession of animal article-Trophy or uncured Trophy.

27. Considering the stand of the Handicrafts Traders Association, the Trade in Shahtoosh Shawls has not been regulated under Section 43 of the Act. This shows the passive approach of the Government and the functionaries appointed under the Wild Life Act. How and to what extent the mandate of Section 43 of the Act is likely to be affected by the provisions of CITES is not for this Court to decide. The fact, however, remains that the State is as much bound by the CITES as the Union of India and, therefore, while regulating the trade, care has to be taken. This however is for the State and the Licensing Authority under the Act to consider the extent of permissible limits of the trade and I refrain from saying more than this.

28. In view of the above, the petition is allowed and the State Government is commanded to regulate the trade in Shahtoosh & Shahtoosh Shawls under Section 43 and enforce the law against those who are carrying the business and trade in contravention of Section 43 of the State Wild Life Act and provisions of the CITES. No order to costs.