Aug 7, 20216 min read

Ivory Trade And Related Legal Provisions In India

Author: Drishti Banerjee Student, Amity Law School, Kolkata

India is one of the countries that has the strictest laws on wildlife protection. Hunting of wild animals and trade in hunted animal products are strictly prohibited in India. Nevertheless, due to the high demand of such products especially in the black market, poaching activities have increased in the Indian forests.

Poaching of elephants

Hunting elephants is no exception. It has often been mocked that the species are most vulnerable in the country which regards them with high religious and cultural esteem and worships them as the divine incarnate of Lord Ganesha.

According to “A Study on the Mortality of Asian Elephants (Elephas maximus) due to Poaching and Other Causes, Poachers and Anti-Poaching Strategies”, an article by Surendra Varma (Asian Elephant Research & Conservation Centre), Karnataka, Kerala, Tamil Nadu, etc. are some of the states in India where poaching of elephants is prevalent. Recently, Kolkata, West Bengal was detected to be a base of an international racket of ivory poachers. A lady nicknamed “Calcutta Thankachi” was also arrested.

Overall statistics of elephants killed for tusk, skin and hide has shockingly increased over the years. Indian figures show imports of 605 kg, 1499 kg and 1997 kg of tusks in 1979, 1980 and 1981, respectively with the figures increasing over the years. According to Vivek Menon, Executive Director of the Wildlife Trust of India and Chairperson of the IUCN SSC Asian Elephant Specialist Group, the poaching rate is around a 100 male elephants a year. Allegedly, domestic demand for ivory products has also risen.

Ivory Trade

Elephants are mostly hunted for their tusks. The ivory is then either sent to artisans for manufacturing idols and showpieces, or they are smuggled to foreign countries like China, Japan and Thailand where it has a high market demand.

Asian and African elephants

The tusk of Asian elephants which are found in India happen to be more durable than the tusk of African elephants. Therefore, the demand for the tusk of Asian elephants is more and thus the smuggling has also increased.

Another reason of concern is that only male Asian elephants grow tusks. This is not the case of African elephants because both the male and female of the species have tusks. Hence, due to excessive poaching of male Asian elephants, the sex ratio of the species has been disturbed.

Provisions in the Wildlife Protection Act, 1972

The Wildlife Protection Act, 1972 mentions in the Preamble that it aims to provide for the protection of wild species and matters connected to that end so as to ensure ecological and environmental security of the country.

Some of the goals of protecting wild animals including elephants that have been achieved by the Act are—

Prohibition of hunting of wild animals except certain special cases.
Establishment of Protected Areas like sanctuaries and national parks.
Constitution of Tiger and Other Endangered Species Crime Control Bureau.
Regulation of trade and commerce in wild animals, animal articles and trophies.
Prevention and detention of such offences.
Forfeiting property derived from illegal hunting and trade, etc.

Asian elephants have been mentioned in the first Schedule of the Act. Thereby, the Act gives special provisions to protect Indian Elephant (Elephas maximus). Some specific provisions related to ivory trade are—

The definition of animal articles as mentioned in section 2 of the Act is inclusive of imported ivory and articles made from it.
According to section 39(c), the State Government may confiscate imported ivory and ivory articles in cases where an offence has been committed under the Act.
In case where the animal is found to be hunted in a Sanctuary or a National Park declared by the Centre, such property would belong to the Central Government.
Chapter VA which talks about prohibition of trade and commerce in animal articles derived from certain animals specially mentions ivory.
Section 49B prohibits dealers in imported ivory or articles made from them or a manufacturer of such articles from continuing their business after six months of the commencement of the Wild Life (Protection) (Amendment) Act, 1991.
Moreover, they were to declare their stocks of imported ivory and articles made from it to the Chief Wildlife Warden within a specified time.
Possession of ivory would be allowed only for bona fide personal use after the date.
Possession without obtaining a proper certificate would be considered illegal.
According to Section 51 which is the Penalty Provision of the Act, license of persons committing any offence under this Act shall be cancelled.
On the offence of killing animals under schedule I, the offender shall be punishable with three to seven years of imprisonment and fine up to Rs. 10,000.

Other Laws for the protection of wildlife

Other legal frameworks that protect wildlife include the following—

The Forest Conservation Act, 1980, the Environment (Protection) Act (1986) and the Biological Diversity Act (2002), though not directly protecting elephants, indirectly help in protection of their habitats. While encroachment and other human activities have been threatening the existence of elephants, these Acts ensure that the environment is kept safe for the animals to thrive.
India is a signatory country and a member of CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora), 1976. This Convention bans hunting of endangered wild animals like elephants and ensures that trade and commerce internationally of specimens of such animals do not threaten their existence. Subsequently, Trade Records Analysis of Flora and Fauna in Commerce (TRAFFIC) was established by the IUCN. It monitors whether the provisions of the Convention are complied with in India and the world.

Landmark Judgment: Ivory Traders and Manufacturer Association of India and Others v. Union of India and World Wide Fund For Nature- India

In 1986, the Parliament of India totally banned trade and commerce on trophies and animal articles derived from protected scheduled species.

In 1992, trade in imported articles and articles made therefrom was prohibited by law

Subsequently, unrest was observed among the ivory traders and they approached the Delhi High Court pleading the protection of their livelihood.

The issue raised was whether the said provision was violative of Article 19(1)(g) of the Constitution?

The Court decided that the traders would not be entitled to deal in imported ivory. Ecology and biodiversity cannot be put at stake to protect the interests of a few.

The Court was of the view that the previous Act of 1972 did not have sufficient provisions to protect the elephants, but its amendment does so.

If ivory trade were allowed by repealing the amendment, there will be no way to decide whether the ivory being traded upon was legally imported by the trader. Not only that, India is obligated under CITES to protect African elephants as well, which also happen to be an endangered species due to poaching.

Therefore, such a business has the potential to cause damage to the collective interest and welfare of the community and thus the restriction was reasonable.

The decision was in consonance of Article 48A of the Constitution, which is a Directive Principle of State Policy to protect and improve environment and safeguard forests and wildlife.

Overall, it appears that the law in India for wildlife protection is quite stringent. Nevertheless, it has failed to check the extensive killing of wild elephants. A case study by The Hindu will throw some light on the issue—

Operation Shikkar

Relying on the personal journal of an ivory trafficker, a secret warehouse in Delhi was targeted which functioned in the guise of a handicraft shop. Subsequently, a racket of ivory poachers was brought to light.

It was found that their leader stayed in forest hunting tuskers while managing not to come to the notice of the Forest Department Officers. Tribals and corrupt forest watchers aided him in the mission.

This is possibly where the real problem lies in our country- corruption. Had the officers on duty been totally honest and immune to the bribe system that is so prevalent in India, poaching activities could have been put under check.

Ivory products are openly sold in India. However, it cannot be easily understood if the tusk belonged to an elephant that died of natural causes or one that was hunted for its teeth. Therefore, so long as trade in ivory item of any sort is allowed and the demand of such items present, putting a check on elephant poaching would be difficult.

Conclusion

In conclusion it can be said that though there are sufficient laws to protect the jumbos from being illegally hunted, they lack proper implementation.

It is also suggested for the government to regulate the trade in ivory at each step and ensure that the ivory is acquired from proper sources.

Advanced technology like GPS trackers can be used to regulate movement in the forests.

Moreover, the penalty under the Wildlife Protection Act is perhaps not dire enough to deter the illegal activity.

Only if these measures are taken, the rapid decline in elephant population due to poaching may be checked to some extent.

REFERENCE

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