JUDGMENT
Anil Dev Singh, J.
(1) There are two sets of writ petitions before us. In Civil Writ Petition Nos. 1016/92, 1272/92, 1631/92, 1749/92 the petitioners challenge certain amendments carried out in the Wild Life (Protection) Act, 1972 by the Amendment Act No. 44 of 1991 whereby the trade in imported ivory and articles made therefrom have been banned. In Civil Writ Petition Nos. 1303/92 and 1964/93 the grievance of the petitioners is that though they are not covered by the Wild Life (Protection) Act, 1972 and the Amendment Act No. 44 of 1991, the authorities are taking action against them for their being in possession of mammoth ivory and articles made therefrom. Besides, like Writ Petition No. 1016/92 etc. they also challenge the amendments carried out in the Wild Life (Protection) Act, 1972 by the Amendment Act No. 44 of 1991.
(2) In so far as the first category of cases are concerned it will be convenient to deal with Writ Petition No. 1016/92 as the points raised in this writ petition and the other writ petitions, namely, Cwp Nos. 1272/92, 1631/92 & 1749/92, are the same.
(3) Writ Petition No. 1016/92: The writ petitioners in this writ petition are mainly aggrieved by the ban imposed by the Wild Life (Protection) Amendment Act, 1991, on the trade in ivory derived from the African elephant. It is asserted by them that they only deal with ivory imported before the coming into operation of Amendment Act No. 44 of 1991. It is claimed that the first petitioner is a Society registered under the Societies Registration Act, 1860 and in is Association of persons connected with the trade and business of ivory, including persons manufacturing articles therefrom. The second petitioner to the fourteenth petitioner are dealers in ivory. They assert that they are carrying on business and trade in ivory including the manufacture of articles derived from ivory lawfully imported into India prior to the ban and are members of the first petitioner. The fourteenth petitioner also claims to be an artisan engaged in the business of carving raw ivory. The fifteenth petitioner too claims to be an artisan. Therefore, they plead that they are persons affected by the Amendment Act.
(4) As per the prayer clause of that writ petition, the petitioners challenge Sections 5(1), 27(b), 30(i)(iii), 33(b)(ii), 34, 35 and 37 of the Wild Life (Protection) Amendment Act, 1991 (Act No. 44 of 1991) (for short `the Amendment Act’) and the corresponding amendments/changes carried out in the Principal Act known Wild Life (Protection) Act, 1972. These amendments/changes have been effected : (1) in Section 2(2); (2) by introduction of Clause (C) in Sub-section (1) of Section 39; (3) by omission of Clause (ia) from Sub-section (1) of Section 44; (4) by replacement of second proviso to Section 44; (5) by insertion of Sub-clause (iii) in Clause (c) of Section 49A; (6) by introduction of Sub-clause (ia) in Clause (a) of Sub-section (1) of Section 49B; (7) in Section 49C; (7) and (8) in Section 51 of the Principal Act. The petitioners find serious fault with Sections 49A(c)(iii) & 49B(1)(a)(ia) of the Principal Act as introduced by Sections 33 and 34 of the Amendment Act which have the effect of banning trade in ivory imported into India or articles derived therefrom. According to the petitioners such a ban is violative of Articles 19(1)(g), 14 and 300A of the Constitution of India. The further grievance of the petitioners is that they cannot even retain the possession and control of the ivory lawfully imported by them and articles made or derived therefrom as the same has been made an offence under Section 51 of the Act read with Section 49C(7) thereof. According to the petitioners the ban is unreasonable, unfair and arbitrary.
(5) Writ Petition Nos. 1303/92 and 1964/93: The petitioner in Writ Petition No. 1303/92 is a dealer and manufacturer of jewellery. It is claimed that the petitioner imported part of this stock of mammoth ivory from Russia and part of it from Hongkong for the purposes of his business. It is further asserted that ivory derived from mammoth, an extinct specie of wild animal, and ivory derived from elephants cannot be treated at par orn the same footing as both are different from each other and can be distinguished. The petitioners in Writ Petition No. 1964/93 claim to be carvers of mammoth ivory.
(6) In so far as the two instant petitions are concerned, the points raised in these writ petitions regarding the validity of the Amendment Act 44 of 1991 are similar to the other writ petitions mentioned above. However, the only point of distinction between these writ petitions and the other writ petitions is that the petitioners claim that mammoth ivory in which they are dealing in is not covered by the provisions of the Act. It is stated in the writ petitions that mammoth ivory is derived from an extinct specie of elephant and actually it is a fossil ivory and cannot be considered to be ivory at all for the purposes of the Act. The petitioners, however, do not deny that mammoth ivory is imported from abroad.
(7) Mr. D.D. Thakur, Learned Senior Counsel appear in for the petitioners in C.W.P. Nos. 1016/92, 1272/92, 1631/92 and 1749/92 reiterated the challenge laid in the writ petitions to the constitutionality of the amendments effected in the Principal Act by the Wild Life (Protection) Amendment Act, 1991 (Act No. 44 of 1991) to the extent of the ban imposed on trade in imported ivory acquired prior to the Amendment Act No. 44 of 1991. Learned Counsel contended that the restriction is unreasonable, unfair and arbitrary and violates the fundamental rights of the petitioners under Articles 14 and 19(1)(g) of the Constitution. Besides, it was submitted that the Amendment Act extinguishes the title of the petitioners over the imported ivory lawfully acquired by them and articles made therefrom without making any provision for compensation thereof. The point raised by the learned Counsel with great emphasis was that the petitioners should be allowed to sell their stocks of ivory and products drived therefrom and the Government should buy the same. He also canvassed that reasons for not permitting the sale of imported ivory acquired prior to the ban has no nexus with the object sought to be achieved by the Act. He further submitted that there was no link between elephants in the remote forests of India and the sales of imported ivory or articles made therefrom in the show rooms of the petitioners in the cities. Learned Counsel contended that the functionaries of the Wild Life Department of the concerned States can prevent illegal hunting of elephants and there is no good reason to ban the sale of imported ivory and articles made therefrom.
(8) Dr. Singhvi appearing in Writ Petition No. 1303/92 and Dr. Rajeev Dhavan appearing in Writ Petition No. 1964/93 reiterated the submissions made by learned Counsel of Writ Petition Nos. 1016/92, 1272/92, 1631/92 and 1749/92. Besides, they submitted that the petitioners trade only in imported fossil ivory and articles manufactured therefrom. They contended that the Parliament is not competent to legislate in regard to remnants of ivory belonging to long extinct mammoth imported from abroad–and actually the Act does not deal with this kind of ivory at all. According to the learned Counsel, the Act only covers elephant ivory and articles made therefrom. They further canvassed that elephant ivory and mammoth ivory are of different types and can be distinguished from each other. Learned Counsel also submitted that since mammoth ivory is outside the scope and ambit of the Act, the authorities created by the Act cannot ask the petitioners to comply with the provisions thereof and to handover the stocks of mammoth ivory and articles made therefrom to them. In a nutshell the submission of learned Counsel is that the mammoth ivory in the possession of the petitioners is free from the provisions and restraints of the Act.
(9) On the other hand, Mr. Madan Lokur, learned Counsel for the respondent/Union of India and Mr.Raj Panjwani, learned Counsel for the World Wide Fund for Nature, India, submitted that the impugned legislation was enacted to provide protection to wild life and it must be viewed in that perspective. They further submitted that the necessity of protection and conservation of wild life is essential for the very existence of human life. According to the learned Counsel trade in wild life is akin to trade in liquor or any other noxious trade and does not have the protection of either Article 14 or 19(1)(g). According to the learned Counsel, trade in wild life is antithetic to conservation and, therefore, it is noxious and also threatens the very survival of human beings as existence of different life forms are dependent for their survival on each other. Mr. Lokur, learned Counsel, pleaded that the restrictions were reasonable and necessary in public interest and the provisions were meant to give effect to the directive principles of the State policy. He pointed out that since African elephant was included in Appendix “1” of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (for short `CITES’) with effect from January 18, 1990, Member States including India prohibited internal and trans border trade in ivory. Commenting upon the legislative measurers taken in this country, he pointed out that the Parliament in order to save the Indian elephant and to give effect to the International treaty enacted the Amendment Act (Act No. 44 of 1991).
(10) Learned Counsel argued that the petitioners should have liquidated their stocks between 1989, when the African elephant was proposed to be brought in Appendix `I’ of Cites and within six months of the passing of the Amendment Act 44 of 1991. He also submitted that as a result of the interim stay granted by this Court, which was operative upto July 7, 1992, the petitioners had sufficient time to liquidate the stocks but they did not do so and on the contrary kept augmenting the same. he further canvassed that dealing in ivory imported from Africa cannot be claimed as a fundamental right. He vehemently contended that the traders in the garb of dealing in ivory imported from Africa or mammoth ivory had actually been dealing with Indian ivory which resulted in illegal Killings of Indian elephant with the result that their population has gone down and in order to arrest their further depletion it was necessary to bring about the present amendments. Mr. Lokur also highlighted the fact that the respondents do not admit that the petitioners had lawfully acquired the stocks of imported ivory.
(11) Before examining the submissions of the learned Counsel for the parties, at the threshold we will make a brief reference to the legislations which preceded the present one. We will also set out the provisions of the Amendment Act 44 of 1991 to the extent they are relevant, objects and reasons of the Principal Act and the Amendment Acts of 1986 and 1991 for the better understanding of the matter.
(12) Birds were the first to get the attention of the British in India. The first legislation for protection of birds was enacted by the British in 1887 which was known as the Wild Birds Protection Act, 1887 (Act No. X of 1887). However, the purpose of this Act was limited as it prohibited the possession or sale of only certain kinds of wild birds during the breeding season. This Act did not have the desired effect as killing of birds was not prohibited. As a consequence of wanton killing of birds and animals a more comprehensive legislation was needed. In order to remedy the situation the British enacted a legislation called the Wild Birds and Animals (Protection) Act, 1912 (Act No. Viii of 1912). Section 3 of that Act empowered the Provincial Government to declare the whole year or any part thereof, what may be called as close time, during which specified kind of wild birds or animals would not be killed and it was made unlawful to capture or kill or sell or buy or possess any such bird or animal. Section 4 made contravention of Section 3 punishable with fine. In the year 1935 the Act was amended by the Wild Birds and Animals (Protection) Act No. Xxvii of 1935. By that Amendment Act, amongst other additions and alterations, Section 11 was added by virtue of which the Provincial Government could declare any area to be a sanctuary of the birds or animals and their killing was made unlawful. Any violation of Section 11 was made punishable with fine. It is noteworthy that for the first time the concept of sanctuary was introduced in India but the provisions of that Act also proved to be inadequate for protection of wild life and birds. For the next thirty-seven years nothing much was done to improve the situation. There was rapid depletion of wild life and birds and need was felt to enact a more comprehensive and effective legislation for protection of wild life. But there was a difficulty. The subject of wild life being a State subject falling in Entry 20, List Ii of Seventh Schedule of the Constitution, there was no way for the Parliament to enact a law in regard to the aforesaid subject except by invoking the provisions of Article 252 of the Constitution.
(13) Having regard to the importance of the matter, the Legislatures of the States of Andhra Pradesh, Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Manipur, Punjab, Rajasthan, Uttar Pradesh and West Bengal passed resolutions in pursuance of Article 252 of the Constitution empowering the Parliament to pass the necessary legislation in regard to the protection of wild animals, birds and for all matters connected therewith. Thus armed with the resolutions, the Parliament enacted the Wild Life (Protection) Act, 1972. It came into effect from February 1, 1973. For the purpose of the present enquiry it will be advantageous, to refer to the Statement of Objects and Reasons of the Act, which reads as follows :
“The rapid decline of India’s wild animals and birds, one of the richest and most varied in the world, has been a cause of grave concern. Some wild animals and birds have already become extinct in this country and others are in the danger of being so. Areas which were once teeming with wild life have become devoid of it and even in sanctuaries and National Parks the protection afforded to wild life needs to be improved. The Wild Birds and Animals Protection Act, 1912 (8 of 1912), has become completely outmoded. The existing State laws are not only out-dated but provide punishments which are not commensurate with the offence and the financial benefits which accrue from poaching and trade in wild life produce. Further, such laws mainly relate to control of hunting and do not emphasise the other factors which are also prime reasons for the decline of India’s wild life, namely, taxidermy and trade in wild life and products derived therefrom.
2.Having considered the relevant local provisions existing in the States, the Government came to the conclusion that these are neither adequate nor satisfactory. There is, therefore, an urgent need for introducing a comprehensive legislation, which would provide for the protection of wild animals and birds for all matters connected therewith or ancillary and incidental thereto.
3.Legislation in respect of the aforesaid subject-matter is relatable to entry 20 of the State List in the Seventh Schedule to the Constitution, namely, protection of wild animals and birds and Parliament has no power to make a law in this regard applicable to the State (apart from the provisions of Articles 249 and 250 of the Constitution) resolution in pursuance of Article 252 of the Constitution empowering Parliament to pass the necessary legislation on the subject. The Legislatures of the States of Andhra Pradesh, Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, Manipur, Punjab, Rajasthan, Uttar Pradesh, and West Bengal have passed such resolutions.
4.The Bill seeks to –
(A)constitute a Wild Life Advisory Board for each State;
(B)regulate hunting of wild animals and birds;
(C)lay down the procedure for declaring areas as Sanctuaries, National Parks, etc.;
(D)regulate possession, acquisition, or transfer of, or trade in, wild animals, animal articles and trophies and taxidermy thereof;
(E)provide penalties for contravention of the act.
(14) The working of the legislation proved inadequate in certain matters despite minor changes having been effected by the Amendment Act 23 of 1982. Major changes were effected in the Principal Act in 1986 by Wild Life (Protection) Amendment Act, 1986 (Act No. 28 of 1986). It received the assent of the President on May 23, 1986 and was published in the Gazette of India dated May 26, 1986 Part Ii S.1 Ext.P1 (No.33). The statement of objects and reasons of the Amendment Act, of 1986 reads as follows :
“The Wild Life (Protection) Act, 1972 provides for the protection of wild animals and birds and for matters connected therewith or ancillary thereto.
2.Under the scheme of the Act, trade or commerce in wild animals, animal articles and trophies within the country is permissible and is regulated under the country is permissible and is regulated under Chapter
5.Since there is hardly any market within the country for wild animals or articles and derivatives thereof, the stocks acquired for trade within the country are smuggled out to meet the demand in foreign markets. This clandestine trade is abetted by illegal practices of poaching which have taken a heavy toll of our wild animals and birds. The stocks declared by the traders at the commencement of the Wild Life (Protection) Act, 1972 are still used as a cover for such illicit trade. Attempts to acquire the declared stocks of skins of some wild species have also not met with the desired success, mainly because most traders are not inclined to part with their stocks and thereby lose the ploy for illegal activities. It is, therefore, necessary to suitably amend the Act to prohibit trade in certain specified wild animals or their derivatives. It is, therefore, proposed to provide that no one will be permitted to trade in wild animals specified in Schedule I or Part Ii of Schedule Ii of the Act or in any derivatives therefrom after a period of two months from the commencement of the Amending Act or two months from the date on which a wild animal is included in Schedule I or Part Ii of Schedule Ii by notification issued under the provisions of the Act. All existing licences for internal trade would be invalid thereafter. Further, no fresh licences would be granted for internal trade on such wild animals or their derivatives in future. An exemption is being given to notified Government of India undertakings who can purchase stocks from licensees during the specified period of two months for manufacturing articles from them exclusively for export. The exemption at present available to dealers in ivory under the second proviso to Section 44(1) is also being removed so as to enforce a total ban in dealing in Indian in very and simultaneously to provide for some regulation over the manufacture and trade of articles made out of imported ivory.
3.The Bill seeks to achieve the above objects.”
The Amendment Act of 1986, inter alia, inserted Chapter Va in the Principal Act and also amend Sections 44, 51 and 63 thereof.
(15) Again by Wild Life (Protection) Amendment Act, 1991 (Act No.44 of 1991), which received the assent of the President on September 20, 1991 and was published in the Gazette of India dated September 20, 1991, Part-Z.1 Ex.P1 (No.6), extensive amendments were made in the Principal Act. It amended the title of the Principal Act so as to be called. “The Wild Animals, Birds and Plants (Protection) Act, 1972′. It brought about changes in Sections 1, 2, 4, 6, 8, 12, 18, 19, 24, 33, 34, 35, 36, 38, 39, 40, 43, 44, 49, 49A, 49B, 49C, 50, 51, 54, 57, 59, 60, 61, 62, 63, 64, 66, Schedule Ii, Schedule Iii and Schedule Iv of the Principal Act. Besides, it also made the following changes :
(1)It substituted new section for sections 9, 29 and 55 of the Principal Act;
(2)It omitted Sections 10 and 13 to 17 of the Principal Act;
(3)It inserted two new chapters, namely, Chapter Iiia and Chapter Iva, in the Principal Act; and
(4)It inserted new Schedule, namely, Schedule Vi, in the Principal Act.
(16) In order to appreciate the necessity to carry out the amendments in the Principal Act it would be advantageous to have an insight into the purposes of the Amendment Act, 1991 which is reflected in the Statement of Objects and Reasons of the Amendment Bill : “THE Wild Life (Protection) Act, 1972 provide for the protection of wild animals and birds.”
2.In the implementation of the Act over 18 years, the need for amendment of certain provisions of the Act to bring them in line with the requirements of the present times has been felt. The Indian Board for Wild Life also endorsed the need for these amendments. Ministry of Environment and Forests has worked out the proposals for amendment of the Act on the basis of recommendations of the Standing Committee of Indian Board for Wild Life and various Ministries of the Government.
3.Poaching of wild animals and illegal trade of products derived, therefrom, together with degradation and depletion of habitats have seriously affected wild life population. In order to check this trend, it is proposed to prohibit hunting of all wild animals (other than vermin). However, hunting of wild animals in exceptional circumstances, particularly for the purpose of protection of life and property and for education, research, scientific management and captive breeding, would continue. It is being made mandatory for every transporter not to transport any wild life product without proper permission. The penalties for various offences are proposed to be suitably enhanced to make them deterrent. The Central Government officers as well as individuals now can also file complaints in the Courts for offences under the Act. It is also proposed to provide for appointment of Honorary Wild Life Wardens and payment of rewards to persons helping in apprehension of offenders.
4.To curb large scale mortalities in wild animals due to communicable diseases, it is proposed to make provisions for compulsory immunisation of livestock in and around National Parks and Sanctuaries.
5.Realising the need to protect offshore marine flora and fauna, the provision of National Parks and Sanctuaries are proposed to be extended to the territorial waters. It is also being provided that while declaring an part of territorial (sic.) sanctuary due precaution shall be taken to safeguard the occupational interests of local fishermen.
6.While making the provisions of the Act more effective and stringent, due regard has also been given to the rights of the local people, particularly the tribals. It is being provided that except for the areas under reserve forests, (where the rights of the people have already been settled) and the territorial waters no area can be declared a sanctuary unless the rights of the people have been settled. State Wild Life Advisory Boards are also being made responsible for suggesting ways and means to harmonise the needs of tribals and the protection of wild life.
7.In the recent times, there has been a mushroom growth of zoos in India. Zoos, if managed properly, serve a useful role in the preservation of wild animals. So far there is no legislation dealing with zoos. Provisions are now being made for setting up of a Central Zoo Authority responsible for overseeing the functioning and development of zoos in the country. Only such zoos would be allowed to operate as are recognised and maintain animals in accordance with the norms and standards prescribed by the Zoos Authority. Activities causing disturbance to animals in a zoos are being made a punishable offence.
8.Over exploitation has endangered the survival of certain species of plants. Although the export of these plants and their derivatives is restricted under the provisions of the export policy and the `Convention of International Trade in Endangered Species of Wild Fauna and Flora” to which India is a party, yet there is no restriction on collection of these species from the wild. Provision to prohibit collection and exploitation of wild plants which are threatened with extinction, is being made. Cultivation and trade of such plants would, however, be permitted under licence. The provisions, however, would not affect the collection of traditionally used plants for the bona fide personal use of the tribals.
9.It may be recalled that the Parties to the “convention on International Trade in Endangered Species of Wild Fauna and Flora” (CITES), being greatly concerned by the decline in population of African elephant (sic.) the import and export of African ivory for commercial purposes has been prohibited. As a result improve ivory would no longer be possible to meet the requirements of the domestic ivory trade. If the ivory trade is allowed to continue, it will lead to large scale poaching of Indian elephants. With this point in view, the trade in African ivory within the country is proposed to be banned after giving due opportunity to ivory traders to dispose off their existing stock.
10.The existing legal provisions do not permit the collection of snake venom for predicting life saving drugs from snake like Cobra and Russel’s Viper. This is causing hardship. It is, therefore, proposed to amend the Act to provide for extraction of and dealing in snake venom in a regulated manner.
11.The Bill seeks to achieve the aforesaid objects.”
(17) At this stage it will also be useful to set out below extracts from the statement of the Minister of State of Environment and Forests in the Lok Sabha which he made at the floor of the House while moving the Bill;
“THEMINISTER Of State Of The Ministry Of Environment And Forests (SHRI Kamal NATH) :
I beg to move :
“That the Bill further to amend the Wild Life (Protection) Act, 1972, as passed by Rajya Sabha be taken into consideration.”
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Wild Life in our country has suffered serious depletion on account of pressures exerted by the rapid growth of population and the consumption oriented approach, regardless of the need to maintain essential bio-diversity and ecological processes, balances, and life-support systems which are so vital for land productivity, food security and human survival. Setting up a network of effectively managed National Park and Sanctuaries is the highest priority of Wild Life Conservation. With this point in view, the provisions with regard to Management of Parks and Sanctuaries are being made more effective and stringent. Realising the need to protect off-shore marine flora and fauna, the legal provisions of National Park and Sanctuaries are proposed to be extended to territorial waters as well.
AS already mentioned, wild life populations and habitats have degraded to a great extent under the pressure of human activities. We can no more afford to kill wild animals for the sake of pleasure of a few person, thus disrupting life forms and linkages vital for the preservation of bio-diversity. Wild life is also in no position to bear the burden of capturing of wild animals for commercial purposes.
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Poaching of wild animals and illegal trade, has over the years, taken serious dimensions because of the exponential rise in the price of wild animals and their products. The job of a poacher gets more and more lucrative as a particular species gets rarer. Therefore, proposals have been made in the Bill to make the penalties for various offices more deterrent. It is being made mandatory for every transporter not to accept any consignment of wild life products without proper sanction from the authorised officers.
Population of Indian elephants, particularly in South India, are under serious threat by ivory poachers. Although the trade in Indian ivory was banned in 1986, the trade in imported ivory given an opportunity to unscrupulous ivory traders to legalise poached ivory in the name of imported ivory. With this point in view, the trade in African ivory is proposed to be banned after giving due opportunity to ivory traders to dispose of their existing stocks.
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(18) The amendments effected by the Wild Life (Protection) Amendment Act, 1991, in the Principal Act, which the petitioners challenge, read as under :
5.Amendment of Section 2.–In Section 2 of the Principal Act-
(A)in Clause (2), for the words “has been used”, the words “has been used, any (and) ivory imported into India and an article made therefrom” shall be substituted;
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27.Amendment of Section 39–In Section 39, of the Principal Act, in Sub-section (1), the
(A)…..
(B)after Clause (b), the following clauses shall be inserted, namely:
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“(C)ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed;
Shall be …..[ ]
30.Amendment of Section 44.–In Section 44 of the Principal Act, in Sub-section (1)-
(I)in Clause (a), Sub-section (ia) shall be omitted.
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(III)for the second proviso, the following proviso shall be substituted, namely : “Provided further that nothing in this sub-section shall apply to the dealers in tail feathers of peacock and articles made therefrom and the manufacturers of such articles.”
33.Amendment of Section 49A.–In Section 49A of the Principal Act-
(A)…….
(B)in Clause (c).
(I)…….
(II)after Sub-section (ii), the following sub-clause shall be inserted, namely : “(III)in relation to ivory imported into India or an article made from such ivory, the date of expiry of six months from the commencement of the Wild Life (Protection) Amendment Act, 1991.”
34.Amendment in Section 49B.–In Section 49B of the Principal Act, in Sub-section (1), in Clause (a), after Sub-clause (i), the following sub-clause shall be inserted, namely :
(IA)a dealer in ivory imported into India or articles made therefrom, or a manufacturer of such articles; or”
35.Amendment of Section 49C.–In Section 49C of the principal Act,
(A)in Sub-section (1), in Clause (a), after Sub-section (iv), the following sub-clause shall be inserted, namely: “(IV)invory imported into India of article made therefrom;”.
(B)in Sub-section (7), for the words “any scheduled animal or a scheduled animal article”, the words “any scheduled animal, or scheduled animal article or ivory imported into India or any article made, therefrom”.
37.Amendment of Section 51.–In Section 51 of the principal Act,
(A)in Sub-section (1),
(I)for the brackets, words, figure and letter “(except Chapter VA)”, the brackets, words, figures and letters “(except Chapter Va and Section 38J)”, for the words “two years”, the words “three years” and for the words “two thousand rupees”, the words “twenty five thousand rupees” shall be substituted;
(II)in the first proviso, for the words “relates to hunting in”, the words relates to hunting in, or altering the boundaries of,” for the words “six months”, the words “one year” and for the words “five hundred rupees”, the words “five thousand rupees” shall be substituted;
(III)for the second proviso, the following proviso shall be substituted, namely : “PROVIDED further that in the case of a second or subsequent offence of the nature mentioned in this sub-section the term of imprisonment may extend to six years and shall not be less than two years and the amount of fine shall not be less than ten thousand rupees.”;
(B)after Sub-section (1A), the following sub-section shall be inserted, namely :
“(1B)–ANYperson who contravenes the provisions of Section 38J shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both;
Provided that in the case of a second or subsequent offence, the term of imprisonment may extend to one year or the fine may extend to five thousand rupees.”;
(C)in Sub-section (2), for the words “uncured trophy or meat”, the words “uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or part or derivative thereof” shall be substituted;
(D)after Sub-section (4), the following sub-section shall be inserted, namely : “(5)Nothing contained in Section 360 of the Code of Criminal Procedure, 1973, or in the Probation of Offenders Act, 1958, shall apply to a person convicted of an offence with respect to hutting in a Sanctuary or a National Park or of an offence against any provision of Chapter Va unless such person is under eighteen years of age.”
(19) Taking into account the amendments, the Principal Act, in so far as it is relevant for the purposes of the present writ petitions, reads as follow :
2.Definitions
In this Act, unless the context otherwise requires-
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(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 [Substituted by Act No. 44 of 1991 w.e.f. 2.10.1991] (has been used and ivory imported into India and an article made therefrom._.
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39.Wild animals, etc. to be Government property
(1)Every
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(C)”ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed;
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SHALL be the property of the State Government and, where such animal is hunted in a Sanctuary or National Park declared by the Central Government, such animal or any article, trophy, uncured trophy or meat derived from such animal or any vehicle, weapon, trap, or tool used in such hunting, shall be the property of Central Government.
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44.Dealings in trophy and animal articles without licence prohibited-
(1)Subject to the provisions of Chapter V-A, no person shall, except under, and in accordance with, a licence granted under Sub-section (4)
(A)commence or carry on the business as
(I)a manufacturer of, or dealer in, any animal article; or
(IA)[The text of the omitted provision was as follows : “A manufacturer of, or dealer in, any article made of ivory imported into India.” Omitted.
(II)a taxidermist; or
(III)a dealer in trophy or uncured trophy; or
(IV)a dealer in captive animal; or
(V)a dealer in meat; or
(B)…..
PROVIDED that …..
(C)….. “PROVIDED further that nothing in this sub-section shall apply to the dealers in tail feathers of peacock and articles made therefrom and the manufacturers of such article”.
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49-A.Definitions
IN this Chapter
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(C)”specified date” means
(I)…..
(II)….
(III)in relation to ivory imported into India or an article made from such ivory, the date of expiry of six months from the commencement of the Wild Life (Protection) Amendment Act, 1991.
49-B.Prohibition of dealing in trophies, animal articles, etc. derived from Scheduled animals.
(1)Subject to the other provisions of this section on and after the specified date, no person shall
(A)commence or carry on the business as
(I)…..
(IA)a dealer in ivory imported into India or articles made, therefrom, or a manufacture of such articles; or
(II)…..
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49-C.Declaration by dealers
(1)Every person carrying on the business or occupation referred to in Sub-section (1) of Section 49B shall, within thirty days from the specified date, declare to the Chief Wild Life Warden or the authorised officer.
(A)his stocks, if any, as at the end of the specified date of
(I)…..
(II)….
(III)…
(IV)….
(V)ivory imported into India or article made therefrom.
(B)……
(C)……
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(7)No person, other than a person who has been issued a certified of ownership under Sub-section (3) shall, on and after the specified date, keep under his control, sell or offer for sale or transfer to any person any scheduled animal or scheduled animal article or ivory imported into India or any article made therefrom.
51.Penalties
(1)Any person who contravenes any provision of this Act, except Chapter Va and Section 8J or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to three years or with fine which may extend to twenty five thousand rupees, or with both.
PROVIDED that where the offence committed in relation to any wild animal specified in Schedule I or Part Ii of Sch. Ii, or meat of any such animal, animal article, trophy, on uncured trophy derived from such animal or where offence relate to hunting or altering the boundaries of a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than one year but may extend to six years and also with fine which shall not be less than five thousand rupees.
PROVIDED further that in the case of a second or subsequent offence of the nature mentioned in this sub-section, the term of imprisonment may extend to six years and shall not be less than two years and the amount of fine shall not be less than ten thousand rupees.;
(IA)…..
(IB)Any person who contravenes the provisions of Section 38J shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both;
PROVIDED that in the case of a second or subsequent offence, the term of imprisonment may extend to one year or the fine may extend to five thousand rupees.;
(2)When any person is convicted3 of an offence against this Act, the Court trying the offence may order that any captive animal, wild animal, animal article, trophy, uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant or part of derivative thereof in respect of which the offence has been committed, any trap, tool, vehicle, vessel, or weapon used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled.
XXxx xx
(5)Nothing contained in Section 360 of the Code of Criminal Procedure, 1973, or in the Probation of Offenders Act, 1958, shall apply, to a person convicted of an offence with respect to hunting in a Sanctuary or a National Park or of an offence against any provision of Chapter Va unless such person is under eighteen years o of age.”
(20) Having referred to the legislations which preceded the Principal Act and having set out the objects and reasons of the Principal Act and the Amendment Acts of 1986 and 1991, we will like to notice the arguments of Mr. Thakur, learned Senior Counsel, which are based on the principles adumbrated by the Supreme Court in various decisions. He submitted that the legislation can impose only reasonable restrictions on the fundamental rights of the people, including the right to trade and business, in public interest and the restrictions on trade which are arbitrary, unfair and unjust are violative of Art. 19(1)(g) of the Constitution. Learned Counsel cited the decision of the Supreme Court in Chintaman Rao v. The State of Madhya Pradesh, 1950 Scr 759, laying down that phrase “reasonable restrictions” occurring in Article 19(6) does not include limitations which are arbitrary or excessive in nature beyond what is required in the interest of the public, and the word “reasonable” implies a course which reason dictates. The learned Counsel also cited decisions of the Supreme Court in Mohd. Hanif Quareshi and Others v. State of Bihar, ; The State of Madras v. V.G.Row, ; State of West Bengal v. Subodh Gopal Bose , laying down the criteria on the basis of which reasonableness of a statute should be judged. He also submitted that it is ultimately for the Court to determine whether the statute is reasonable or otherwise. Learned counsel pointed out that where the statute imposes restrictions on the fundamental rights of a citizen the onus to justify the restriction is on the State. Mr. Thakur also submitted that if the statute imposes restrictions on trade or business which are unfair, unreasonable and arbitrary, besides infringing Article 19(1)(g) of the Constitution, the same would also be violative of Article 14 as well. In this connection, learned Counsel relied upon the principles laid down by the Supreme Court in E.P. Royappa v. State of Tamil Nadu and Another, ; Ramana dayaram Shetty v. The International Airport Authority of India and Others, ; Bachan Singh v. State of Punjab, ; Minerva Mills Ltd. & Others v. Union of India and Others, ; and Smt. Maneka Gandhi v. Union of India and Another, . If we may say so with respect, the propositions and principles brought to our notice by means of the above decisions are unassailable. However, we are adding a small caveat here to the extent that where the trade is pernicious and noxious it does not attract the protection of Article 19(1)(g). Whether the ban imposed on trade of imported ivory and articles made therefrom under Section 49B(1)(a)(ia) read with Section 49A(c)(iii) and Section 49C (7) of the impugned legislation violates Article 19(1)(g) of the Constitution?
(21) The basic point which has been urged before us by various Counsel revolves around the question whether the ban imposed on trade of imported ivory and articles made therefrom by the Amendment Act 44 of 1991 is reasonable as envisaged by Article 19(6). We will, therefore, immediately embark upon this enquiry, first de hors the question whether the trade in imported ivory is pernicious and is not covered by Article 19(1)(g). In order to do that it will be necessary to keep in view the purpose of the Principal Act and the Amendment Act No. 44 of 1991. As already noticed, the Act is meant to protect and safeguard wild life. The Supreme Court in State of Bihar v. Murad Ali Khan and Others, , has an occasion to notice the purpose of the Act. In this regard, the Supreme Court observed as follows :
“The policy and object of the wild life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depredation inflicted on nature by man. The State to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken, the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate, has been a great and urgent necessity for the survival of humanity and these laws reflect a last ditch battle for the restoration, in part at least, a grave situation merging from a long history of callous insensitiveness to the enormity of the risks to mankind that go with the deterioration of environment. The tragedy of the predicament of the civilised man is that “Every source from which man has increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot foresee”. In his foreword to International Wild Life Law, H.R.H. Prince Philip, the Duke of Edinburgh said:
Many people seem to think that the conservation of nature is simply a matter or being kind to animals and enjoying walks in the countryside. Sadly, perhaps, it is a great deal more complicated than that ….
…..As usual with all legal systems, the crucial requirement is for the terms of the conventions to be widely accepted and rigidly implemented. Regretfully progress in this direction is proving disastrously slow….
There have been a series of international conventions for the preservation and protection of the environment. The United Nations General Assembly adopted on October 29, 1982 “The world charter for nature”. The Chapter declares the Awareness that :
(A)Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients.
(B)Civilisation is rooted in nature, which has shaped human culture and influenced all artistic and scientific achievement, and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation.
In the third century B.C. King Asoka issued a decree that “has a particularly contemporary ring” in the matter of preservation of wild life and environment. Towards the end of reign, he wrote:
Twenty-six years after my coronation, I declared that the following animals were not to be killed; parrots, mynas, the aruna, ruddy geese, wild geese,–the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses… and all quadrupeds which are not useful or edible…..Forests must not be burned.
ENVIRONMENTALISTS’conception of the ecological balance in nature is based on the fundamental concept that nature is “a series of complex biotic communities of which a man is an interdependent part” and that it should not be given to a part to trespass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the “civilized man” operating directly through excessive commercial hunting or, more disastrously, indirectly through invading or destroying natural habitats.”
Thus, it is obvious that the object of the principal Act was to arrest depletion of animal life so as to maintain the ecological balance which is necessary for welfare of humanity. Despite the coming into force of the principal Act, the provisions did not prove effective for protection of elephants. One of the reasons was that the `elephant’ was placed at item No. 13 in part `I’ of Schedule Ii of the Act. According to Section 9(1) of the Act, as it originally stood, no person was authorised to hunt any wild animal specified in Schedule-I. According to Clause 2 of Section 9, hunting of animals specified in Schedules Ii, Iii and Iv were permitted in accordance with the conditions specified in a licence granted under Sub-section 5 of the Act. Since the `elephant’ was placed in part 1 of Schedule 2 of the Act, the hunting of the same was possible under a licence. Thus the elephant had little or no chance of survival under the Act as it stood in its original form. On March 3, 1973, a significant International convention known as Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) took place. The convention resulted in an agreement between the member States, which was initially ratified by 10 countries and came into operation on July 1, 1975. As the Asian elephant was a highly endangered specie, it was placed in Appendix-I of the CITES. Appendix-I includes all species threatened with extinction or which are or may, be affected by trade. Trade on specimens of these species are subject to strict regulation in order not to endanger further the survival of these species and must be authorised in exceptional circumstances only. However, the African elephant was given place in Appendix-III which, unlike Appendix-I animals, did not enjoy immunity from being hunted and killed. The net effect of this was that while the hunting of the Asian elephant was banned and international trade in Asian ivory was virtually prohibited, the African elephant could still be hunted. India signed the convention in July, 1974 and deposited the instrument of ratification on July 20, 1976. India became a party to the convention from October 18, 1976. A major development took place when the Parliament in order to amend the Wile Life (Protection) Act, 1972, enacted on May 23, 1986 the Wild Life (Protection) Amendment Act, 1986 (Act No. 28 of 1986) whereby several changes were effected in the Principal Act, including insertion of Chapter . On October 24, 1986, keeping in view the depletion of elephant population and in accordance with Cites, the Central Government intervened under Section 61(1) of the Principal Act and transferred the Indian elephant to Schedule-I and listed the same at Entry 12B thereof. This was a major step towards protecting Indian elephant as Schedule `I’ animals enjoy complete immunity from being hunted. The `elephant’ having been put in Schedule `1′ of the Act, the prohibition to kill the same came into force with immediate effect. As a result of this, trade and commerce in Indian elephants was totally banned. This step was not challenged by the petitioners. It may be pointed out that import of ivory was not banned but was allowed subject to requirement of licence under Section 44 of the Principal Act as amended by Act No. 28 of 1986. The African elephant like its Indian counterpart was also endangered and threatened by man and in order to save the specie, in October, 1989 at the Lusanne Cites Meet, the African elephant was upgraded and included in Appendix `1′ of the Cites and after three months of its inclusion w.e.f. January 18, 1990 international trade in ivory was required to be banned. Almost all countries which are parties to the convention have given effect to it. The result of this was that virtually all international trade in ivory was prohibited with effect from the aforesaid date. In this country in order to bring the Principal Act in tune with the aforesaid development, the Amendment Act 44 of 1991 inserted Sub-clause (ia) to Section 49B(1)(a) of the Principal Act as a result whereof the trade in “imported ivory” and articles made therefrom were completely prohibited from the “specified date”. It may be noted that Legislature has used the words `ivory imported into India’ and not African ivory, thus enlarging the area of operation of the Act. Now as to the meaning of the words “specified date”, the Amendment Act through the insertion of Sub-clause (iii) in clause (c) of Section 49A has provided that the `specified date’ in relation to ivory imported into India or an article made therefrom is the date six months from the commencement of the Wild Life (Protection) Act, 1991. That means, as per the above said provisions, dealers in imported ivory or articles made therefrom, or manufacturers of such articles were required to liquidate their stocks and stop all activities relating thereto within six months of the commencement of the Wild Life (Protection) Act, 1991, i.e. April 2, 1992 (date of commencement of the Act being October 2, 1991 + six months therefrom). The Union of India in its reply dated April 30, 1992 and additional affidavit dated September 12, 1995, has maintained that despite the ban on the killing of the Indian elephant its poaching continues and the traders are actually dealing in ivory extracted from Indian `elephant’ under the garb and facade of import ivory resulting in the depletion of its population. Therefore, in order to stop the killings of Indian elephants, it was necessary to ban all trade in imported ivory. Above said additional affidavit gives the statistics of the elephant population in Indian in the early part of 20th century and for the years 1977-78, 1985 & 1989 to 1993, which are as follows : Year Number of Elephants Early part of 20th Century 2 lakhs 1977-78 20061-21091 1985 16560-21361 1989 17065-23270 1990 15500-17500 1991 15000-20000 1992 20000 1993 22796-28348
(22) According to the aforesaid figures, it is apparent that the elephant population had considerably gone down after early part of the 20th Century. Additional affidavit also alludes to the differences between the Indian elephant and the African elephant. It is pointed out that unlike Africa, where both male and female elephant have tusks, in India only the male elephants possess tusks. It is also brought out that even among the males (bull elephants) all of them do t possess tusks. As per the affidavit there are only 1,500 tuskers in the country as against 5,000 a decade back. If this position was allowed to prevail, the elephant would have become extinct in this part of the subcontinent. As already noticed the Supreme Court in State of Bihar v. Murda Ali, (supra) has referred to environmentalists conception of ecological balance in nature being based on the fundamental concept that nature is a series of complex biotic communities of which man is interdependent part, and a part should not be allowed to diminish the whole. Relationship between nature and man is inextricably linked. They are co-existing entities that partake of each other. To preserve different species is to preserve human life. But this single fact of life is difficult to be perceived by those who are living of and thriving on exploitation and destruction of nature. The `elephant’ is no exception to depredations of man. It is now an endangered specie requiring not only protection from being hunted but also a chance to recoup its depleting numbers. In order to achieve this object, drastic steps for preservation of the elephant were undoubtedly required. The Parliament judged the situation and in its determination completely prohibited the trade in imported ivory and ivory articles. In order to effectuate the ban Sections 49B(1)(ia)and 49C(7) read with Section 49A(c)(iii) interdict a dealer in imported ivory or articles made therefrom to keep under his control, sell or offer to sell or transfer to any person ivory imported into India or any article made therefrom on or after six months of the coming into force of the Amendment Act 44 of 1991. This was also in keeping with the global perception that the elephant must be saved from extinction. Learned Counsel for the petitioners submitted that the petitioners had lawfully acquired the ivory at the time when there was no ban. They invited our attention to the affidavits of the petitioners in this regard. At this stage it may be pointed out that Mr. Lokur during the course of the arguments vehemently denied the fact that the petitioner lawfully acquired the stocks of imported ivory either before the ban imposed by the Amendment Act 44 of 1991 or the Lusanne Meeting of Cites in 1989. He also canvassed that under the cover of ostensibly trading in imported ivory, the traders were laundering poached Indian ivory. Assuming for the sake of argument that the petitioners acquired imported ivory lawfully before the coming into force of the ban, that does not mean that the Parliament in its wisdom, keeping in view the aforesaid background, could not impose a ban on the sale of such ivory or articles made therefrom, after giving the dealers time for disposal of the stocks. In order to determine reasonableness of a restriction, which includes prohibition, regard must be had to the nature of the business, its capacity and potential to cause harm and damage to the collective interest and welfare of the community. While adjudging the reasonableness of the restriction it has also to be considered whether the restriction on trade and business is proportionate to and commensurate with the need for protection of public interest.
(23) The test of reasonableness is not to be applied in vaccum but it must be applied in the context of the stark realities of life. The law must be directed to effectively remedy the problems and evils persisting in the society. It may be that in the past a situation may not have arisen calling for the passing of a law which is enacted in the contemporary times. March of law to make the life of people to be in harmony with environment cannot be thwarted and faulted on the material considerations of a few. Reasonableness of law cannot be worked out by a mathematical formula. What may have been unreasonable restriction yesterday, may be more than reasonable today. Therefore, the criteria for determining the degree of restriction which would be considered reasonable is by no means fixed or static but must vary from age to age and is relatable to adjustments necessary to eliminate the dangers facing the community. The test of reasonableness has to be viewed in the context of the enormity of the problem and the malady sought to be remedied by the legislation.
(24) In the present case restriction undoubtedly imposes total ban on trade in ivory. The Central Government has pointed out in its counter-affidavit dated April 30, 1992 that there was serious problem to protect the Indian elephant as long as the traders were allowed to deal with the ivory, imported from abroad. It is further pointed out that there is no ready-made and easy method of distinction between imported ivory and Indian ivory. It is also pointed out that in the circumstances it was necessary to strike at the root cause of poaching and remove the incentive to kill elephants by banning ivory trade altogether.
(25) The Minister of State of Environment and Forests while moving the amendment bill in the Lok Sabha adverted to the fact that the population of Indian elephants, particularly in South India, was under serious threat by ivory poachers. Although the trade in Indian ivory was banned in 1986, the trade in imported ivory was giving an opportunity to unscrupulous ivory traders to legalise poached ivory in the name of imported ivory. With this point in view, the trade in African ivory was proposed to be banned after giving due opportunity to ivory traders to dispose of their existing stocks. He also referred to the growing menace of poaching wild animals which had acquired serious dimensions because of exponential rise in the price of the wild animals and their products. Therefore, in this scenario when virtually all international trade in ivory stood prohibited and Member States had given effect to the ban how trade in imported ivory could be permitted by India. The pressing need to preserve ecology and bio-diversity cannot be sacrificed to promote the self-interest of a few. Law enacted by Parliament to protect the Indian elephant, keeping in view the above said international convention, cannot be flawed as imposing unreasonable restraints. Surely, India cannot be a party to the decimation of the elephant. It is documented that some member countries have even burnt and destroyed tones of ivory in order to discourage ivory trade and to protect the elephant which is on the brink of extinction. If permission or exemption is given to traders to deal in pre-convention ivory or ivory imported before the coming into force of the Amendment Act 44 of 1991, the possibility of increased assault on Indian tuskers cannot be ruled out. In that event poached Indian ivory will enter the market masquerading as imported ivory, there being no visible distinction between the two. At this stage it will be advantageous to recall the objects and reasons of the Amendment Act of 1991 and the statement of the Minister of State of Environment and Forests in the Lok Sabha, the relevant portions whereof reads as follows : Objects and Reasons of the Amendment Act : “IF the ivory trade is allowed to continue, it will lead to large scale poaching of Indian elephants. With this point in view, the trade in African ivory within the country is proposed to be banned after giving due opportunity to ivory traders to dispose off their existing stock.”
Statement of the Minister : “POACHING of wild animals and illegal trade, has over the years, taken serious dimensions because of the exponential rise in the price of wild animals and their products. The job of a poacher gets more and more lucrative as a particular species gets rarer.
(26) As a result of the high price of ivory in the market the work of poachers has been rendered highly lucrative, The magnitude of the problem would be evident from the fact that the tusker population in India has been reduced from 5000 to 1500 during the past one decade. This is proof enough of the fact that the Wild Life Departments of the States have not succeeded in tackling the problem. It is common knowledge that the officials of the Forest and Wild Life Departments of the State are not able to protect trees and wild life because of strong criminal syndicates of poachers. The same is true for other countries. Douglas H. Ohadwick, in his fascinating book `The Fate of the Elephant’ has also spoken about this aspect of the matter thus :
“…..ASsoon as Cites listed the African elephant on Appendix I of the Endangered Species List in 1990, prohibiting international trade in tusks, the market for them crashed. It has remained relatively minor ever since. Curtailed demand has kept the price of ivory down, which has in turn curtailed poaching.
Not that the whole bloody business has ceased. Though tusks bring but a fraction of their former price, they are still worth several months’ wages to rural people in quite a few nations. According to various sources, the international black market for ivory is increasingly dominated by the same criminal syndicates running drugs and other contraband. They have the networks in splake; they move whatever is profitable.”
(27) It is very important to sound a clear message that it will no longer be remunerative to deal in ivory, not even for the purpose of one time sale. That is what the impugned legislation has done. It also needs to be driven home that the beauty of ivory and things created therefrom should not be the reason for the destruction of its source. The elephant with the tusker stands out any day to ivory curious adorning the mantel pieces of a few who can afford to buy them at fabulous prices unmindful of the virtual disappearance of a remarkable animal. This is a very heavy price to pay for satiating the aesthetic sense of a few persons. Trade and business at the cost of disrupting life forms and linkages necessary for the preservation of bio-diversity and ecology cannot be permitted even once. We, therefore, reject the submission of the learned Counsel for the petitioners that there was no proximity between the elephants in the remote forests of India and the sales of imported ivory or articles made therefrom in the show rooms of the petitioners in the city. We also reject the submission that the functionaries of the Wild Life Department of the States could prevent illegal hunting of elephants and there was no good reason to ban the sale of imported ivory and articles made therefrom. The Parliament understanding the vastness of the problem and considering that it will be very difficult to prevent poaching of the Indian elephant, already on the verge of extinction, and the sale of Indian ivory under the guise of imported ivory without imposing the ban on trade in imported ivory cannot be faulted as the degree of harm in allowing the petitioners to continue with the ivory trade would have been much greater to the community as compared to the degree of harm to the individual interests of the petitioners by prohibiting the ivory trade. In the former case the petitioners would have benefited at the cost of the Society. Trade and property rights must yield to the collective good of the people.
(28) Rights granted under Article 19(1) are not absolute rights but are qualified rights and restrictions including prohibition thereon can be imposed in public interest. There is high authority for the proposition that when it is reasonable in public interest, a trade could even be prohibited under Article 19(6) and such a prohibition would not fall foul of Article 19(1)(g). In Narender Kumar and Others v. The Union of India and Others, , a question arose as to whether Non-Ferrous Metal Control Order, 1958 which was issued by the Government of India under Section 3 of the Essential Commodities Act, 1955, violated Article 19(1)(g). The Court while interpreting the word `restrictions’ held as follows : “It is reasonable to think that the makers of the Constitution considered the word “restriction” to be sufficiently wide to save laws “inconsistent” with Art. 19(1), or “taking away the rights” conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be no doubt therefore, that they intended the word “restriction” to include cases of “prohibition” also. The contention that a law prohibiting the exercise of a `fundamental right is in no case’ saved, cannot therefore be accepted.”
(29) In State of Maharashtra v. Mumbai Upnagar Gramodyog Sangh, , the Supreme Court while considering the scope of Articles 19(1)(f) & (g) and 31(1), (2) & (5) held that the power of State of impose reasonable restrictions carries with it the power to prohibit or ban an activity or to acquire, dispose of property or to extinguish title of an owner in a commodity which is likely to involve grave injury to the health and wealth of the people. In that case, second respondent was an owner of a stable of milch-cattle at Andheri. The Legislature of the State of Maharashtra by Act 14 of 1961 amended inter-alia Sections 367, 372 and 385 of the Bombay Municipal Corporation Act 3 of 1888. By virtue of the amendment, an owner of a carcass of a dead animal was to deposit it at the place appointed in that behalf by the Bombay Municipal Corporation. The Act empowered the Corporation to arrange the disposal of carcasses. The Municipal Corporation called upon the first respondent, carrying on the business of carcasses of dead animals and utilising the product for industrial uses, to stop removing carcasses from `K’ Ward of the Corporation, Subsequently the Corporation also published a notification inviting the attention of the public at large to the provisions of Section 385 and other related provisions of the Act and warned the persons concerned that violations of the provisions was liable to result in the grant of a contract for the removal and disposal of carcasses under Section 385 of the Act in respect of the said ward and other wards to Harijan Workmen’s Co-operative Labour Society Ltd. and declared that no other person or agency was authorised to remove and dispose off carcasses. Respondents No. 1 and 2 feeling aggrieved, filed a writ petition in the High Court at Bombay for cancelling the Notification and for various other reliefs. The petition was dismissed and it was held that Sections 366, 367(c) and 385 of the Act were enacted for the promotion of public health and for the prevention of danger to the life of the community and in the larger interest of the public and that the restrictions upon the rights of the owners of the cattle and persons carrying on business in carcasses were not inconsistent with the fundamental rights guaranteed under Article 19(1)(f) and (g) thereof. In appeal, the Letters Patent Bench modified the order of the learned Single Judge and declared Section 372(g) and part of Section 385 of the Act invalid. The State of Maharashtra then preferred an appeal to the Apex Court. While setting aside the impugned judgment of the Letters Patent Bench of the Bombay High Court, the Supreme Court held that reasonableness of the restriction imposed upon the right must be evaluated in the light of the nature of the commodity and its capacity to be detrimental to the public weal. The Supreme Court in this regard held as follows : “The power of the State to impose reasonable restrictions may extend to prohibiting, acquisition, holding or disposal of a commodity if the commodity is likely to involve grave injury to the health or welfare of the people. In adjudging the reasonableness of restrictions imposed upon the holding or disposal of a carcass which is noxious, maintenance of public health is the paramount consideration. Restriction imposed upon the right of an owner of a carcass to dispose it of in the manner indicated in the Act, being enacted solely in the interest of the general public, cannot be deemed arbitrary or a excessive merely because they involve the owner into a small financial burden. Under the Constitution a proper balance is intended to be maintained between the exercise of the right conferred by Art. 19(1)(f) and (g) and the interests of a citizen in the exercise of his right to acquire, hold or dispose of his property or to carry on occupation, trade or business. In striking that (sic.) the danger which may be inherent in permitting unfettered exercise of right in a commodity must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen to the commodity. The law which compels the removal of the carcass expeditiously from the place where it is lying is not contended to be arbitrary or excessive. The law which compels removal to the appointed place and disposal of the carcass under the supervision of the Corporation to which is entrusted the power and duty to take steps to maintain the public health cannot also be regarded as arbitrary or excessive, merely because the enforcement of the law involves some pecuniary loss to the citizen. We are unable to agree that by compelling disposal of carcasses by leaving to the owner of the carcass to dispose it in any manner he thinks fit, danger to the public health could be effectively avoided.”
(30) In State of Madras v. V.G.Rao, , the Supreme Court while emphasing that no abstract standard or general pattern of reasonableness can be laid down in all cases, indicated the following criteria for examining the reasonableness of the restrictions under Article 19(i)(g) : “the nature of the right alleged to have been infringed, the underlined purpose of the restriction imposed, and the extent and urgency of evil sought to be remedied thereby”.
(31) Again in Mohd. Faruk v. State of Madhya Pradesh and Others, , stating the criteria of reasonableness, the Supreme Court held as follows : “The Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen’s freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public, the possibility of achieving the object by imposing a less drastic restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency — national or local — or the necessity to maintain essential supplies, or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that no case for imposing the restriction is made out or that a less drastic restriction may ensure the object intended to be achieved.”
(32) In Systopic Laboratories Pvt. Ltd. v. Dr. Prem Gupta and Others, 1994 Supp. (1) Scc 160, the petitioner challenged the notification dated 3rd November, 1988 whereby a complete prohibition on the manufacture and sale of fixed doses of the combination corticosteroides with any other drug for internal use was imposed. This prohibition was challenged as being unreasonably restrictive of the right of the petitioner to carry on its trade guaranteed under Article 19(i)(g) of the Constitution. The Supreme Court considered the question in the light of the report of the Experts Committee which was of the opinion that the fixed doses combination of corticosteroides with any other drug should not be allowed because in the recommended upper doses limit the daily dose of corticosteroides often exceeds pharmacological limit for adrenocortical suppression. It this regard the Court observed as follows : “ITis, therefore, not possible to hold that the prohibition which has been imposed by the impugned Notification on the manufacture and sale of the drug in question imposes an unreasonable restriction so as to violative of the right guaranteed under Article 19(1)(g) of the Constitution.”
(33) As is apparent from the aforesaid decisions of the Apex Court, the reasonableness of law imposing restriction must be considered in the back drop of the facts and circumstances under which it was enacted, the nature, of evil that was sought to be remedied by such law, and the ratio of harm caused to a person or group of persons by the legislations as compared to the beneficial effect reasonably expected to result to the general public. The Court must also consider the question whether the restraint caused by the law was more than what was necessary in the interest of the general public. When so considered it is obvious that the provisions of the Amendment Act 44 of 1991 cannot be said to be imposing unreasonable restriction on the trade of ivory.
(34) A law designed to abate extinction of an animal specie is prima facie one enacted for the protection of public interest as it was enacted to preserve and protect the elephant from extinction. It was not only the perception of the Parliament but of the world community as well, as reflected in the Cites, that the elephant must be protected from being wiped out from the face of the earth by excesses of man. Learned Counsel for the petitioners relied upon the decision of the Supreme Court in Chintaman Rao v. The State of Madhra Pradesh, 1950 Scr 759, in support of his submission that total prohibition in trade of ivory is violative of Article 19(1)(g). In that decision the validity of the Central Provinces and Berar Regulation on manufacture of Bidis (Agricultural Purposes) Act, totally prohibiting the manufacture of Bidis during agricultural seaons, was challenged. The State pleaded that the ban was necessary so that enough people could be available for agricultural purposes. The Supreme Court struck down the prohibition on the ground that the object of the statute was to provide a measure for the supply of adequate labour for agricultural purposes in Bidi manufacturing areas of the province which could well have been achieved by legislation restraining the employment of agricultural labour. This decision is of no avail to the learned Counsel for the petitioners as in the instant case the situation was so grave that the purpose of the legislation could only be achieved by prohibiting the trade in ivory. The statistics pointed out above clearly indicate the danger which the elephant specie faced at the hands of man for his easy gains. Therefore, under the circumstances, it cannot be said that the restriction imposed by the Amendment Act 44 of 1991 was unreasonable, arbitrary, unfair, or excessive. The State has the power to prohibit absolutely every form of activity in relation to killing or slaughtering of elephants including the sale of tusks or articles made therefrom as such form of activity is injurious to public interest.
(35) Fifty years ago the urgency to preserve the elephant may not have been the upper most priority of human beings as at that point of time it was not on the brink of extinction as it is now. The criteria for determining the reasonableness of a restriction must not be measured with a fixed or a static yardstick. The yardstick must be elastic and flexible to suit the conditions prevailing at a given point of time. In His Holiness Kesavananda Bharati Sipdagalvaru and Others v. State of Kerala and Another, , the Supreme Court inter alia held that fundamental rights have no fixed content. Most of them are empty vessels into which each generation must pour its contents in the light of its experience.
(36) Mr. Thakur, learned Senior Counsel, submitted that the State may be justified in imposing restriction on the killing of elephants but it cannot prohibit sale of tusks or articles made therefrom. He canvassed that the stocks which the petitioners have, should be allowed to be sold as such an activity or one time sale of stocks cannot come in the way of saving the elephant. We do not agree with the submission of learned Counsel for the petitioners. The State has taken the stand that the sale of ivory by the dealers would encourage poaching & killing of elephants as the stocks which the petitioners hold presently will be replenished by further killings of elephants as ivory fetches a very good price in the market. We do not find any fault with the stand taken by the respondents. Therefore, the ban imposed by the impugned legislation especially Section 49B(1)(a) r/W Section 49A(C)(iii) and Section 49C(7) thereof is not violative of Article 19(1)(g) of the Constitution. It is also not in contravention of Article 14 of the Constitution as the ban does not suffer from unreasonableness, arbitrariness and unfairness.
(37) Upto this stage we have considered the matter on the assumption that the right to trade in ivory and ivory articles is a fundamental right. Now we will consider whether such a trade is covered by Article 19(1)(g). Whether trade in ivory is pernicious and not covered by Article 19(1)(g) of the Constitution : The trade in ivory [word `ivory’ is used in comprehensive sense including indigenous as well as imported ivory], is dangerous, subversive and pernicious as it has the potential to deplete the elephant population and to ultimately extinguish the same. It is well settled that trade which is pernicious can be totally banned without attracting Article 19(1)(g) of the Constitution. There is a string of authority for the proposition that no citizen has any fundamental right guaranteed under Article 19(1)(g) of the Constitution to carry on trade in any noxious and dangerous goods like intoxicating drugs or intoxicating liquors. Trade and business in intoxicating drugs or liquors is only one of the noxious types of enterprises. This category does not close with drugs & intoxicating liquors. What was not considered harmful at an earlier point of time, may be discovered to be so later. Time has a way of changing norms. Several other activities being equally pernicious fall in this category too :
1.Gambling,
2.Prostitution,
3.Dealing in counterfeit coins or currency notes, etc.
(38) Activities having a baneful effect on the ecology, human and animal life etc. occupy a central position in the above category. By virtue of Section 10 of the Constitution (42 Amendment) Act, 1976, Article 48A was inserted in the Constitution. Article 48A enjoins upon the State to protect and improve the environment and to safeguard the forests and the wild life of the country. Therefore, what is destructive of the environment, forest and wild life is contrary to the said directive principles of the State policy. Again by Section 11 of the Constitution (42 Amendment) Act, 1976, Article 51A was incorporated in the Constitution. This Article lays down the fundamental duties of the citizens. Clause (g) of Article 51A requires every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. It needs to be noticed that the Amendment Act 44 of 1991 has been enacted to carry out the mandate of the directive principles as enshrined in Article 48-A. The State has the power to completely prohibit a trade or business which has an adverse impact on the preservation of species of wild life which are on the verge of extinction both because it is inherently dangerous practice to destroy such animals in terms of ecology and also because of the directive principles contained in Article 48A of the Constitution. When the Legislature prohibits a pernicious, noxious or a dangerous trade or business it is in recognition of society’s right of self protection.
(39) Trading in animals close to being wiped out of existence and articles made from their bones, skins or other parts of their bodies, is a situation akin to dealing in any other noxious or pernicious trade e.g. intoxicating drugs. While the Parliament can impose a ban on trading in endangered species or articles derived from them in furtherance of Art. 48A, it can prohibit trade in intoxicating drugs and liquors in compliance with the mandate of Article 47. Courts have recognised that trade or business in intonating drug and liquor is not a fundamental right as it is dangerous and noxious. Similarly on parity of reasoning business in animal species on the verge of extinction being dangerous and pernicious is, therefore, not covered by Article 19(1)(g). The principle on the basis of which restriction can be imposed on the trade in intoxicating drugs or intoxicating liquors will also apply with equal force to trade in other pernicious and dangerous businesses and enterprises. In Southern Pharmaceuticals and Chemicals. Trichur and Other v. State of Kerala and Others, , the Supreme Court was dealings with Sections 12A, 12B, 14E, 14F, 68A of Abkari Act, 1967 and Rules 13 & 16 of Kerala Rectified Spirit Sulres; 1972. These provisions were enacted to ensure that rectified spirit was not misused under the pretext of being used for medical and toilet preparations containing alcohol. It was held that such regulation was a necessary concomitant of the police power of the State to regulate trade or business which is inherently dangerous to public health. The restrictions imposed by Section 12-B as to the alcoholic contents of medicinal and toilet preparations and the requirement that they shall not be manufactured except and in accordance with the terms and conditions of a licence granted by the Commissioner were held to be reasonable restrictions with the meaning of Article 19(6) of the Constitution. In that case the Supreme Court also negatived the contention that the impugned provisions were violative of Article 19(1)(g) of the Constitution on the ground that no citizen has any fundamental right guaranteed under Article 19(1)(g) of the Constitution to carry on trade in noxious and dangerous intoxicating drugs or intoxicating liquors. In Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer and Others, , the Supreme Court was dealing with a challenge to the auction sale of country liquor shop under Excise Regulation 1 of 1915. The question which fell for the determination of the Supreme Court was whether the provisions of the Excise Regulation and the auction rules were ultra vires since they purported to grant monopoly to trade in favour of few persons. The Excise Regulation, 1915 provided that the Chief Commissioner may lease to any person the right of manufacturing or of supplying or of selling by wholesale or retail country liquor or intoxicating drug within any special area. The Supreme Court held that the grant of a lease either by public auction or for a sum is regulatory in nature and prohibiting or regulating trade in noxious or dangerous goods cannot be considered illegal. The Apex Court in that case cited with approval the following observations in Crowley’s case (1890) 34 Law. Ed. 620: “There is no inherent right in a citizen to sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United State. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rests in the discretion of the governing authority.”
(40) To similar effect is the decision of the Supreme Court in The State of Assam v. Sristikar Dowerah and Others, , where it was held that no person had any absolute right to sell liquor. While holding so, the Supreme Court also took into consideration the purpose of the restriction imposed by the State. It found that the purpose of the restriction was to control and restrict the consumption of intoxicating liquor and such control and restriction was necessary for the preservation of public health and morals and to raise revenue. In The State of Bombay and Another v. F.N.Balsara, Air 1951 Sc 318, the Apex Court held that absolute prohibition of manufacture and sale of liquor is permissible as the concept of inherent right of a citizen to do business in such articles in antithetical to the powers of the Stat to enforce prohibition laws in respect of the liquor, the only exception being manufacture for the purposes of medicinal preparations. In State of Bombay v. R.M.D. Chamarbaugwala and Another, . The Supreme Court said that gambling could not be regarded as trade or business within the meaning of Article 19(1)(f) and (g) and Article 301 of the Constitution. It also held that inherently vicious activities cannot be treated as entitling citizens to do business or trade in such activities. In Har Shanker and Others v. The Deputy excise and Taxation Commissioner and Others, , Chandrachud, J. (as His Lordship then was) considering the decision of five earlier Constitution Benches observed as follow :
“In our opinion the true position governing dealings in intoxicants is stated and reflected in the Constitution Bench decision of this Court in the State of Bombay v. F.N.Balsara, 1951 Scr 682, Cooverjee B.Bharucha v. The Excise Commr. and the Chief Commr., Ajmer 1954 Scr 873, State of Assam v. A.N. Kidwai, Commr. of Hills Division and Appeals, Shillong, 1957 Scr 295, Nagendra Nath v. Commr. of Hills Division and Appeals, Assam, 1958 Scr 1240, Amar Chandra v. Collector of Excise, Government of Tripura, (1973) 1 Scr 535 and State of Bombay v. R.M.D. Chamarbaughwala, 1957 Scr 874 as interpreted in State of Orissa v. Harinarayan Jaiswal as Nashirwar v. State of Madhya Pradesh, Civil Appeals Nos. 1711-1721 and 1723 of 1974 decided on 27.11.94 : . there is no fundamental right to do trade or business in intoxicants. The State under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants–its manufacture, storage, export, import, sale and possession………
These unanimous decisions of five Constitutional Benches uniformly emphasised after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public is inherent in the nature of Liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised communities.”
(41) In The State of U.P. and Others v. Synthetics and Chemical Limited and Others, , the Supreme Court again relying upon the decisions in Har Shanker v. Dy.Excise and Taxation Commissioner (supra) and State of Orissa v. Hari Narayan Jaiswal, (1972) 3 Scr 384, held that the State has the exclusive right of manufacture and sale of intoxicating liquors. Obviously this decision of the Supreme Court proceeded on the basis that there is no fundamental right in a citizen to trade in or do business in intoxicants. To the same effect is the decision of the Supreme Court in Lakhan Lal etc. v. The State of Orissa and Others, . The Supreme Court again reiterated the position in Khoday Distieries Ltd. and Others v. State of Karnatka and Others, , and held that a citizen has no fundamental right to undertake trade or business in liquor as a beverage and the same could be completely prohibited since such a trade is res extra commercium. It was further held that, except when it is used and consumed for medicinal purposes, the State can completely prohibit the manufacture, sale, possession, distribution and consumption of potable liquor as a beverage, both because it is inherently a dangerous article of consumption and also because of the directive principle contained in Article 47. It is also significant to note that the Supreme Court clearly held that to the list of noxious matters, new items can be added.
(42) In M.J. Sivani and Others v. State of Karnataka and Others, , the Supreme Court was confronted with the question as to whether regulation of video games violates the fundamental right to trade or business or avocation guaranteed under Articles 19(1)(g) and 21. While upholding the restrictions the Apex Court held that the aforesaid trade or business being attended with danger to the community could be totally prohibited or be permitted subject to such conditions or restrictions as would prevent the evils to the utmost. The Supreme Court spoke thus : “IT is true that they have fundamental right to trade or business or avocation but it is subject to control by Article 19(6) which empowers to impose by law reasonable restrictions on the exercise of the right in general public interest. In applying the test of reasonableness, the broad criterion is whether the law strikes a proper balance between social control on the one hand and the right of the individual on the other hand. The Court must take into account factors like nature of the right enshrined imposed, evil sought to be remedied by the law, its extent and urgency, how far the restriction is or is not proportionate to the evil and the prevailing conditions at that time. The Court cannot proceed on general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or a class of persons on whom the restrictions are imposed. In order to determine reasonableness of the restriction, regard must be had, as stated earlier, to the nature of the business and the prevailing conditions in that trade or business which would differ from trade to trade. No hard and fast rules concerning all trades etc. could be laid. The State, with a view to prohibit illegal or immoral trade, business or injury to the public health or welfare, is empowered to regulate the trade or business appropriate to the conditions prevailing in the trade/business. The nature of the business and its indelible effect on public interest etc., therefore, are important elements in deciding the reasonableness of the restriction. No one has inherent right to carry on a business which is injurious to public interest. Trade or business attended with danger to the community may be totally prohibited or be permitted subject to such conditions or restrictions as would prevent the evils to the utmost.
The Licensing Authority, therefore, is conferred with discretion to impose such restrictions by notification or Order having statutory force or conditions emanating therefrom as part thereof as are deemed appropriate to the trade or business or avocation by a licence or permit, as the case may be. Unregulated video game operations not only pose danger to public peace and order and safety; but the public will fall into prey of gaming where they always stand to lose playing in the games of chance. Unless one resorts to gaming regularly, one can hardly be reckoned to possess skill to play the video game. Therefore, when it is a game of pure chance or manipulated by tampering with the machines to make it a game of chance, even acquired skills hardly assist a player to get extra tokens. Therefore, even when it is a game of mixed skill and chance, it would be a gaming prohibited under the statute except by regulation. The restriction imposed, therefore, cannot be said to be arbitrary, unbridled or uncanalised. The guidance for exercising the discretion need not ex facie be found in the notification or orders. It could be gathered from the provisions of the Act or Rules and a total consideration of the relevant provisions in the notification or order or conditions of licence. The discretion conferred on the Licencing Authority, the Commissioner or the District Magistrate, cannot be said to be arbitrary, uncanalised or without any guidelines. The regulations, therefore, are imposed in the public interest and the right under Article 19(1)(g) is not violated. It is true that the owner or person in charge of the video game, earn livelihood assured under Article 21 of the Constitution but no one has right to play with the credulity of the general public or the career of the young and impressive age school or college going children by operating unregulated video games. If its exhibition is found obnoxious or injurious to public welfare, it would be permissible to impose total prohibition under Article 19(2) of Constitution. Right to life under Art. 21 does protect livelihood, but its deprivation cannot be extended too far or projected or stretched to the avocation, business or trade injurious to public interest or has insidious effect on public morale or public order. Therefore, regulation of video games or prohibition of some of video games of pure chance or mixed chance and skill are not violative of Article 21 nor is the procedure unreasonable, unfair nor unjust.”
(43) Undoubtedly the business which the petitioners in the instant case are pursuing is attended with danger to the community. Its evil effect is manifested by the depletion of the elephant population. The possession of an article made from ivory has been declared as a crime. There is no fundamental right to carry on business in crime. The legislature has stepped in to eliminate the killing of elephant. If the legislation in order to rectify the malady has made the possession of ivory or articles made therefrom an offence, it cannot be said that the legislation violates Article 19(i)(g) of the Constitution to carry on trade and business. Such a pernicious activity cannot be taken to be as business or trade in the sense in which it is used in Article 19(1)(g) of the Constitution.
(44) Once again we will assume for the sake of arguments that trade in such animals is fundamental right and the impugned legislation imposes fetters thereon but the fact remains that the impugned legislation is for effectuating the purpose of Article 48A. When the Legislature imposes restriction or prohibition or a ban to fulfill the mandate of the directive principles of the State policy, the restriction, prohibition orban, is in the interests of the general public, as the expression interests of the general public occurring in Art. 19(6) is of a wide import including matters covered in Part Iv of the Constitution. We are in this view supported by the decision of the Supreme Court in Municipal Corporation of the City of Ahmedabad and Others v. Jan Mohammed Usmanbhai and Another, , where it was held as follows : “The expression `in the interest of general public’ is of wide import comprehending public order, health public security, morals, economic welfare of the community and the objects mentioned in Part Iv of the Constitution.
(45) In Pappasam Labour Union v. Madura Coats Ltd. and Another, (1993) 1 Scc 501 (at page 513), the Supreme Court relying upon its earlier decision in Minerva Mills case, , held that ordinarily any restriction imposed which has the effect of promoting or effectuating the directive principles can be presumed to be reasonable restriction in public interest.
(46) Therefore, when a legislation imposes restriction on the right of a trader for giving effect to any of the provisions of Part Iv of the Constitution, the restriction will be deemed to be in the interest of the general public.
(47) Since directive principles are fundamental in the governance of the country they must be given primacy. They can be effective only when they are given priority and pre-eminence over the fundamental rights of a few in order to sub-serve the common good of the people. If unbridled exercise of fundamental right results to the common determent of the community at large, it can be restricted, abridged or prohibited in order to promote common good of the people as envisioned by Part Iv of the Constitution relating to the directive principles of the State policy. The Courts are bound to enforce the law made in furtherance of the directive principles of the State policy. The directive principles of the State policy has laid down the path for the country to follow in order to achieve its goals. Measures to preserve the elephant brought into effect by Act No. 44 of 1991 which being in consonance with moral claims embodied in Part Iv of the Constitution cannot be allowed to yield to Article 19(1)(g) and must be given priority. The Supreme Court in His Holiness Kesavananda Bharati Sripadagalaveru (supra) in regard to the importance of the directive principles observed as follows : “As the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part Iv of the Constitution are equally an essential feature of it, the only difference being that the moral rights embodied in Part Iv are not specifically enforceable as against the State by a citizen in a court of law in case the State fails to implement its duty but, nevertheless, they are fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives. The Fundamental Rights themselves have no fixed context; most of them are mere empty vessels into which each generation; must pour its content in the light of its experience. Restrictions, abridgement; curtailment, and even abrogation of these rights in circumstances not visualised by the Constitution-makers might become necessary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV. Whether at a particular moment in the history of the nation, a particular Fundamental Right should have priority over the moral claim embodied in Part Iv or must yield to them is a matter which must be left to be decided by each generation in the light of its experience and its values.”
(48) Again in State of Kerala and Another v. N.M. Thomas and Others, , the Supreme Court held that the directive principles formed the fundamental feature and the conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles.
(49) Thus, it is clear that the directive principles are fundamental in the governance of the country and they can be effective if they are to prevail over fundamental rights in order to subserve the common good. While most chershed freedoms and rights have been guaranteed, the Government has been laid under a solemn duty to give effect to the directive principles.
(50) It was in fulfilllment of this duty that the Principal Act and the Amendment Act 44 of 1991 have been enacted to conserve wild life. The destruction or depletion of the other form of life would create ecological imbalances endangering human life. No one can be given the privilege to endanger human life as that would violate Article 21 of the Constitution. Basically, it is extremely essential for the survival of man to co-exist with nature and to preserve and protect wild life.
(51) As already seen, the directive principles of State policy are based upon moral principles and considerations. The protection of wild life has seeds in the history of time, and in the history of moral and ethical principles evolved by every society through various ages. A society which does not have ethical and moral values and fails to live in harmony with nature whethers and perishes. The sooner this truth is realised the better it would be for the welfare of the people. It has come to us through centuries to show compassion towards animals and birds as all are considered to have come from the same source. Lord Krishna in the Bhagavad Geeta declared that `SARVE Yonisu Aham Bija PRADAHPITAH’ which means that I am the father of all. The followers of the Geeta are steeped in the belief that even the leaves of the trees, the petals and the flowers have life and God pervades in them. This belief is generated, nurtured and sustained by declarations of the Lord in the various Shlokas particularly in the following :
Chaptervi Text 30
‘YOMas Pas’ Yati Sarvatra Sarvam ca mayi pas’ yati Tasyaham no Prasan’ yami sa ca me no pranasyati.
Meaning
He who sees me present in all beings, and all beings existing within me, never loses sight of me, and I never lose sight of him. (Translation as culled out from `Bhagavad-Gita’ published by Gita Press, Gorakhpur).
Chapter x Text 8 `AHAM Sarvasya Prabhavo mattah sarvam pravartate iti matva bhajante mam budha bhava-samanvitah'. Meaning Iam source of all creation and everything in the world moves because of me; knowing this the wise, full of devotion, constantly worship me. (Translation as culled out from `The Bhagavad Gita' published by Gita Press, Gorakhpur). In various `Ahadis' the killing of animals for pleasure is deprecated. Equally the mutilation of animals is decried. (52) The debates in the Parliament with regard to the Amendment Bill reflects the same views as have been expressed above. At this stage it will be convenient to set out the views of some of the Hon'ble Members : XXxx xx
Shrisyed Shahabuddin : Mr. Deputy Speaker, Sir, I rise to support the Bill, I welcome it as a comprehensive legislation for the protection and conservation of our natural flora and fauna and I am happy that it is based primarily on the expert advice given by the National Board of Wild Life. I am particularly happy that plants have been included in the definition of wild life. I think it is indeed a fitting gesture in a country whose basic philosophy is unity of all forms of life. I recall not only the philosophy of Mahavir but also the fact that the great Scientist, Jagdish Chandra Bose was instrumental in establishing the plants too have life and for that, he had received the fellowship of the Royal Society.
XXxx xx
Shrisukhendu Khan : …. People should be aware of the urgency of protecting wild life. This we can do through publicity, through some educative programme with the help of all kinds of medias. In Sikkim we have seen that the teachings of Buddha were preached through media. In those teachings of Buddha the emphasis has always been to have love and kindness for animals and the trees….
XXxx xx
Shriayub Khan : ……Our religious book say that just as a man worships God, similarly plants, trees also worship God. Some trees are even worshiped; therefore it is inappropriate on the part of man to fell trees. The Hon.Minister has taken the responsibility to provide complete protection to them and I hope that he will get the reward for it. I would call it a sacred deed. Most of the people grow `Tulsi’ in front of their houses….”
(53) Apart from the beliefs which are personal to a person or society or people or section of people, it is now scientifically established that animals, trees, flora, fauna, insects, birds and human beings are linked with each other for their survival. Each specie is indispensable for the preservation of ecology, which is necessary for our existence. Even a lowly earth worm in the soil has also a function to perform to help us survive. It makes the soil fertile which gives us our food and nourishment. The trees were venerated in the past and are still being venerated by some as being sacred. This is not without reason. The trees take carbon dioxide from the atmosphere and replace it by life giving oxygen. Man forgetting the grand design of nature in which every living organism or being has to do its bit, has assumed the role of plunderer and destroyer of ecology for his greed. Man has been killing animals for the satisfaction of his uncontrolled thirst for money or hunting animals for pleasure and Port. The addiction is so immense that he is not bothered even about the survival of his progeny on this planet. The earth is a trust in the hands of the present generation for the posterity. Man has over exploited nature. The largest land animal, the elephant, is no exception. It has been used as a beast of burden, for hauling logs, employed in temples for various errands and in circuses. For all these it has been spiked and chined. Its habitats are being destroyed. It has been hunted to the point of extinction. In our country, as already seen, the tusker population has dropped to a mere 1500. When precepts lose their efficacy and are violated, legislation steps in for realising the necessity to maintain orderly existence. It is in this context that the Amendment Act No. 44 of 1991 assumes great importance for the survival of the elephants.
(54) Having regard to the above discussion we hold that :
(1)no citizen has a fundamental right to trade in ivory or ivory articles, whether indigenous or imported;
(2)assuming trade in ivory to be a fundamental right granted under Article 19(1)(g), the prohibition imposed thereon by he impugned Act is in public interest and in consonance with the moral claims embodied in Article 48A of the Constitution; and
(3)the ban on trade in imported ivory and articles made therefrom is not violative of Article 14 of the Constitution and does not suffer from any of the maladies, namely, unreasonableness, unfairness and arbitrariness.
Whether Sections 39(1)(c) and 49C(7) read with Section 51(2) of the impugned legislation are violative of Article 300A of the Constitution : The next question for consideration is whether Sections 39(1)(c) and 49C(7) read with Section 51(2) of the impugned legislation are void since they do not provide for payment of compensation to the owners on account of extinguishment of their title in the imported ivory or articles made therefrom. These provisions have already been extracted in the earlier portion of the judgment and it is not necessary to extract them again. In regard to these provisions it was contended that even after the Constitution (Forty-Fourth) Amendment Act, 1978 whereby Article 31 was deleted from Part Iv of the Constitution w.e.f. June 20, 1979, a citizen cannot be deprived of his property without being paid compensation for the same in accordance with Article 300A, which is a reincarnation of Article 31. Learned Counsel referred to the decisions of the Supreme Court in Chiranjit Lal Chowdhuri v. The Union of India and Others, 1950 S.C.R. 869; The State of West Bengal v. Subhodh Gopal Bose and Others, 1954 S.C.R. 587; Saghir Ahmad and Another v. State of U.P. and Others, ; Rustom Cavasjee Cooper v. Union of India, ; and Basantibai Fakirchand Khetan and Others v. State of Maharashtra and Another, . On the basis of these decisions, which were rendered in the context of Article 31 of the Constitution he submitted that the State has no police powers under the Constitution to acquire the property without payment of compensation. The submissions of the learned Counsel do not arise in the facts and circumstances of the instant case and the above decisions have no application thereto.
(55) The Amendment Act 44 of 1991 does not deal with the acquisition or requisitioning of the property for a public purpose. The right guaranteed by Article 300A of the Constitution relates to compulsory acquisition and requisitioning of property for a public purpose. None of the provisions of Chapter V-A deal with acquisition of property for a public purpose. As already noticed, the object and purpose of the provisions are meant for providing protection to the elephant which is a threatened specie.
(56) In Mumbai Upnagar Gramodyog Sangh (supra) the Supreme Court also inter alia decided the question whether the impugned law was void because it did not provide for the compensation for the loss occasioned to the owner of the carcass resulting from the extinction of its title thereto. The Apex Court found that the law providing for extinction of ownership without making provision for payment of compensation to the owner of carcass and creation of interest in the Corporation in the carcass was not bad as such a law was not a law for acquisition of property for public purpose since its main objective was the destruction of carcass in public interest and not utilisation of the property for a public purpose. In this regard, it was held as follows : “Since the amendment by the Constitution (Fourth Amendment) Act, 1955, Clauses (2) & (2A) of Art. 31 deal with the acquisition or requisitioning of property–movable or immovable–for a public purpose. The protection of Clause (2) is attracted only if there is acquisition or requisitioning of the property for a public purpose i.e., for using the property for some purpose which would be beneficial to the public. the right guaranteed by Art. 31(2) is that property shall not be compulsorily acquired or requisitioned for a public purpose save by authority of law which provides for compensation for the property so acquired or requisitioned. The expression “acquired or requisitioned …. for a public purpose” means acquired or requisitioned for being appropriated to or used for a public purpose. But the law which provides for extinction of the ownership and creation of an interest in the Corporation for the purpose of disposal of the carcass is not a law for acquisition of property for a public purpose : its primary purpose is destruction of the carcass in the public interest, and not utilisation of the property for a public purpose. The case would not, therefore, fall within the terms of Art. 31(2). In any case the statute is squarely protected by Clause (5)(b)(ii) of Art. 31 and on that account the owner is not entitled to compensation for loss of his property. The words of Art. 31(5)(b)(ii) are express and specific. Nothing in Clause (2) shall affect the provisions of any law which the State may hereafter make for the promotion of public health or the prevention of danger to life or property. If a law is enacted directly for the promotion of public health or for the prevention of danger to life or property, then, notwithstanding that it may incidentally fall within the terms of Clause (2), no compensation is payable. Where the State acquires property and seeks to utilise it for promotion of public health or prevention of danger to life or property, the State is liable to pay compensation. But a law which prevent danger to life or property falls within the exemption under Clause (5)(b)(ii) even if thereby the interest of the owner in property is extinguished and interest in that property is vested in the State for destruction of the property.”
(57) Again in Fatehchand Himmatlal and Others v. State of Maharashtra etc., existing debts of some classes of indigents had been liquidated by Maharashtra Debt Relief Act, 1976 and the money lenders had been deprived for their loans while being forced to repay their lenders, the Supreme Court on the socioeconomic considerations held that the law was reasonable even though it did not provide for compensation to the money lender.
(58) Similarly in State Gujarat v. Vora Saiyedbhai Kadarbhai and Others, , the validity of Gujarat Rural Debtors Relief Act, 1976, which required the creditors to return to the debtors the properties pledged or mortgaged as security with them for their debts, was in question. Even in cases where the debts were scaled down enabling the debtors to pay the same in small instalments spread over a period of 10 years or more without interest, the Supreme Court, upholding the constitutionality of the legislation, held as follows : “THEREFORE,when we look at the provision in Sub-Section (2) of Section 14 of the Act in the light of the observations of this Court, made in Fatechchand and Other decisions adverted to by us, we find that the Legislature of Gujarat which had a human problem of saving the poverty-stricken debtors from the clutches of non-institutional creditors, relieving them of their debts to the extent found necessary and getting their properties returned from the creditors given as security for their debts, it was very much justified in introducing the provision Sub-section (2) of Section 14 of the Act, which enabled the debtors to get back their properties given as security, from the creditors for making use of them in their own way to make out their livelihood, inasmuch as such provision cannot be considered as that no made in social interest by the Legislature for promoting social and moral progress of the community as a whole. Therefore, the High Court was wholly wrong it is view that the provision in Sub-section (2) of Section 14 of the Act to the extent it made, the creditors who were entitled to get the scaled down debts from certain debtors would have the effect of depriving the creditors of security for the debt, was an unreasonable restriction under Articles 19(1)(f) and 19(1)(g) of the Constitution and that view called to be interfered with. As it observed by this Court in the judgments to which we have adverted, even if social legislations such as Debt Relief Legislation enacted by a Legislature are to make a few creditors victims of such legislation in one way or the other, the same cannot be regarded as an unreasonable restriction which cannot be imposed in respect of the rights exercisable by the citizens under Article 19(1)(f) and Article 19(1)(g) of the Constitution.”
(59) In Jesse W. Clarke v. Haberle Crystal Springs Brewing Company, 280 U.S. d384, it was held by the United States Supreme Court that when a noxious business is extinguished under the Constitution the owners cannot demand compensation from the State.
(60) The above legislation which provides for extinction of the ownership of a person in imported ivory is not a law for the purpose of acquisition and requisitioning of property by the State. Its primary object is the preservation of the elephant, and not for utilisation of the property for public propose. This being so, Article 300A is not attracted. At this stage we may point out that the State had sufficient authority to enact the impugned law in exercise of its sovereign powers as distinguished from police powers of the State.
(61) In Synthetics and Chemicals Ltd.etc. v. State of U.P. and Others, , the Supreme Court commented on the sovereign power of the State observed as follows : “We would not like, however, to embark upon anywhere of police because the Indian Constitution does not recognise police power as such. But we must recognise the exercise of sovereign power which gives the States sufficient authority to enact any law subject to the limitations of the Constitution to discharge its functions. Hence, the Indian Constitution as a sovereign State has power to legislate on all branches except to the limitation as to the division of powers between the Centre and the States and also subject to the fundamental rights guaranteed under the Constitution. The Indian State, between the Centre and the States, has sovereign power. The sovereign power is plenary and inherent in every sovereign State to do all things which promote the health, peace, morals, education and good order of the people. Sovereignty is difficult to define. This power of sovereignty is, however, subject to Constitutional limitations. This power, according to some Constitutional authority, is to the public what necessity is to the individual. Right to tax on levy imposts must be in accordance with the provisions of the Constitution.”
(62) Having regard to the above decisions it is not necessary for the State to pay compensation to the petitioners for extinguishment of title of the petitioners in imported ivory or articles made therefrom. Since the State is not under any obligation to buy the stocks of the petitioners in acceptance of the one time sale proposition propounded by the petitioners, we cannot direct the State to either buy the same or pay compensation for it.
(63) Mr. Thakur, learned Counsel for the petitioners further submitted that under Article VII(2) of the Cites, permission to export or re-export pre-convention stocks of ivory or articles created therefrom can be granted in case the management authority of the State rexport or reexport is satisfied that the specimen was acquired before the provisions of the present convention, and, therefore, the total ban imposed by the Amendment Act 44 of 1991 on the trade of imported ivory goes beyond the Cites agreement. He also submitted that the reasons advanced in the counter affidavit for banning of the trade in imported ivory on the basis of the Cites agreement are not well founded and have no proximity with the objects sought to be achieved by the amendment.
(64) We have given our earnest consideration to the submission of the learned Counsel but we are unable to agree with the same for the reason that the export or re-export of the specimen is also controlled by the provisions of Articles Viii and Xiv of the CITES. As per Article Viii, the parties to the convention are required to take appropriate measures to enforce the provisions of the present convention. The measures contemplated by Article Viii are as follows :
(1)to penalise trade in, or possession of such specimen, or both; and
(2)to provide for the confiscation or return to the State of export of such specimen.
As per Article Xiv, the parties to the Convention are at liberty to adopt stricter domestic measures regarding the conditions of trade, taking possession or transport of specimen or species included in Appendices I, Ii and Iii, or the complete prohibition thereof. At this stage, it will be convenient to set out Article Xiv (1) :
“1.The provisions of the present Convention shall in no way affect the right of parties to adopt :
(A)stricter domestic measures regarding the conditions for trade, taking possession or transport of specimens of species included in Appendices I, Ii and Iii, or the complete prohibition thereof; or
(B)domestic measures restricting or prohibiting trade, taking possessing, or transport of species not included in Appendices I, Ii or III.”
As contemplated by the above Article, a member State to the convention can completely prohibit the trade of species included in Appendices I, Ii & Iii of the CITES. This would depend upon the conditions prevailing in the countries of the respective parties. As is brought out in the affidavit of the respondent, the parties to the convention have banned the trade in ivory. Besides, as per our reading of Article Vii, it does not permit a buyer to acquire a specimen after the provisions of the present convention came into force. If a foreign tourist buys the specimen for his personal or household use after the coming into force of the convention from a seller who may have acquired the specimen before coming into force of the convention, the exemption under Article VII(2) will not apply in such a case. This interpretation accords with Clause 3 of Article VII. Under Clause 3 of Article Vii exemption, inter alia, is given to specimens that are personal or household effects but this exemption is not to apply where the owner acquires the specimens outside his State of usual residence and are being imported into that State. Therefore, the above submission of the learned Counsel is not tenable and the same is rejected.
(65) Mr. Thakur then submitted that the Parliament was not authorised to make possession of the imported ivory, which was lawfully acquired by the petitioners, as an offence under Section 52 read with Section 49C(7) of the Amendment Act 44 of 1991. Learned Counsel submitted that this amounted to creation of an offence retroactively which is hit by Article 20(1) of the Constitution. We do not agree with the submission of the learned counsel as the Legislature has not created any offence retroactively. At this stage it will be important to mention that the Asian elephant was included in Appendix I of the Cites in the year 1975, which meant that international trade in Asian ivory or articles made therefrom, was prohibited and as a consequence of it Indian ivory could be sold only in the domestic market. India being a signatory to Cites was also bound to ban trade in Indian ivory. The traders knew that such a ban was coming. India actually banned the trade in Indian ivory in 186. The traders should have disposed of their stocks of Indian ivory from 1975 of 1986. As regards the African elephant it was proposed on October 18, 1989 to be included in Appendix-I of the Cites and was so included on January 18, 1990. Ivory traders were allowed to carry on cosmetic trade in imported ivory till the expiry of six months’ from the coming into force of the Amendment Act of 1991. Further-more, as a result of interim stay granted by this Court the petitioners could dispose of their stocks by July 7, 1992. From the above it is clear that ivory traders were under a notice of the intending ban since 1989 and had sufficient time to dispose of their stocks of ivory in the domestic market. Though the statue gave six months time to the petitioners to liquidate the stocks from the specified date, the petitioners actually being under the protection of the Court’s order could trade upto 7th July, 1992. It is significant to note that the Parliament has merely made the possession of imported ivory and articles made therefrom, after the specified date in offence. The petitioners are not being subjected to a penal law on account of their having imported ivory during the period when there was no ban in existence.
(66) Learned Counsel for the petitioners also submitted that the Parliament by imposing the ban took over the functions of the judiciary. Learned Counsel submitted that an organ of the State cannot take upon itself the functions which have been assigned by the Constitution to the Courts. In support of his submission learned counsel relied upon the decision of the Supreme Court in Smt. Indira Nehru Gandhi v. Shri Raj Narain . It is true that the Constitution has assigned demarcated areas of operation for the Legislature, judiciary and the executive. It is also true that legislation is the responsibility of the Legislature and adjudication is the function of the judiciary, while the executive is to provide governance and to implement the provisions of the Constitution and the laws and if any of the organs of the State travels beyond its assigned sphere of activity, the same would be violative of the Constitution. But we fail to see how the Legislature in enacting the Amendment Act 44 of 1991 assumed the role of the judiciary. The provisions relating to the banning of the trade in imported ivory does not amount to a judicial determination by the Parliament. The Parliament, as a already pointed out above, having regard to the public interest and the treaty obligations enacted Amendment Act, 44 of 1991. The principle laid by the Supreme Court in Smt.Indira Nehru Gandhi v. Shri Raj Narain (supra) in para 55(3) at page 2435 is as follows : “IT is true that there is no mention or vesting of judicial power, as such, in the Supreme Court by any Article of our Constitution, but, can it be denied that what vests in the Supreme Court and High Court is really judicial power? The Constitution undoubtedly specifically vests such power, that is to say power, which can properly be described as “judicial power”, only in the Supreme Court and in the High Courts and not in any bodies or authorities whether executive or legislative, functioning under the Constitution. Could such a vesting of power in Parliament have been omitted if it was the intention of the Constitution makers to clothe it also with any similar judicial authority or functions in any capacity whatsoever?”
(67) There cannot be any quarrel with the principle laid down in the above decision, but the question is whether the Parliament has entrenched upon the sphere of activity of the judiciary. Our emphatic answer is in the negative.
(68) The contentions of the learned Counsel for the petitioners in Writ Petition Nos. 1303/92 and 1964/93 that the impugned legislation does not apply to mammoth ivory as the same is not covered by the provisions thereof and in any case the Parliament was not competent to legislate with regard to the subject of mammoth ivory, does not appeal to us. It is significant to no that Act 44 of 1991 inserted Clause (ia) in Section 49-B(1)(a) in the principal Act. As per this clause, no person can commence or carry on business as a dealer in ivory imported into India or articles made, therefrom, or as manufacturer of such articles. It is also noteworthy that Sub-clause (ia) uses the words `ivory imported into India’. These words have been designedly and deliberately used by the Legislature. The legislation was intended to cover all descriptions of ivory imported into India including mammoth ivory. This was to prevent Indian ivory from entering into the market under the pretext of mammoth ivory or African ivory. Once the mammoth ivory is shaped into an article or curio, it looks exactly like an article made from elephant ivory. This we can say on the basis of the articles shown to us in Court–both of mammoth ivory as well as elephant ivory. The respondent, Union of India, in its affidavit dated May 19, 1992 has also expressed the same difficulty in distinguishing between articles of mammoth ivory and elephant ivory. Para 4 of the affidavit reads as follows : “Superficially this may be so, but when an article is manufactured from ivory it is impossible to distinguish whether that article is manufactured from mammoth ivory or from elephant ivory. The petitioner is in no position to guarantee that no ivory derived illegally from Indian elephant would be sold in the garb of mammoth ivory because there is no method by which one can distinguish the articles made from Indian ivory and mammoth African ivory….”
(69) Learned Counsel for the petitioners, however, took pains in pointing out to us certain distinguishing marks. But they were hardly visible to the naked eye. Dr Singhvi also made us look at the base of the articles made from mammoth ivory and elephant ivory though a magnifying glass but that did not make any difference for us as we do not have the discerning eye and experience which an expert in this line may have. We are, however, conscious of the fact that by using a scanning electron microscope, one may be able to distinguish ancient tusks from modern ones as has been mentioned by Doughlas H. Chadwick in his above said book. this is what he says : “FORTUNATELY,scientists at the National Fish and Wild life Forensics Laboratory in Ashland, Oregon, recently discovered a method to distinguish ancient tusks from modern once. Using a scanning electron microscope, they focus on the tooth’s characteristic crosshatched patterns, called Schreger lines. These are formed by tiny dental tubules, which turn out to be twice as dense in mammoths and mastodons as in modern elephants. As a result the Schreger lines meet at angles of less than 90 degree in the by gone species but more than 110 degrees in existing elephants, a minor but unmistakable difference. Forensic techniques can also distinguish Proboscis dean ivory from that of hippos, wart hogs, and walruses, Conservationists hope that advances in Chemical “fingerprinting” techniques will soon enable specialists to identify which particular elephant population a tusk came from, on the basis of Dna from tissues coating the base of the tooth.”
(70) When a buyer intends to buy a curio, he is not interested to know whether it was created from elephant ivory or mammoth ivory. An average buyer also does not have the expertise or the knowledge to distinguish between articles made form mammoth ivory and Indian ivory. To him the translucent whiteness of the ivory matters. He buys it purely on aesthetic considerations or as a status symbol. To give permission to trade in Articles made from mammoth ivory would result in laundering of Indian ivory–a result which the legislation wants to prevent for the reasons already explained above. Learned Counsel for the petitioner referred to certain correspondence with the Secretariat of the Cites in support of his contention that it is possible to identify mammoth ivory from the ivory of the Asian and African elephants. This may be so but the identification can be made by experts in the field or those who have experience in this line and not by a lay man who sets out to buy an ivory article. Learned Counsel also invited our attention to page 753, Vol.7 of the New Encyclopaedia Britannica, 15th Edition, and submitted that ivory which is drawn from mammoth, an extinct genus of elephants found as fossils in Pleistocene deposits over every continent except Australia and South Africa (Pleistocene epoch began 2,50,000 years ago and ended 10,000 years back) is fossil mammoth ivory and not ivory in the sense in which the same is used in the Act. We are unable to accept the submission that the mammoth ivory is not ivory in the sense in which it is used in the Act. In case the legislation was not to apply to mammoth ivory the Parliament would have made an exception in this regard. We cannot attribute to the Legislature that it was not award of mammoth ivory found as fossils in large parts of the world. In the Shorter Oxford Dictionary, the meaning of the ivory in given as under :
(I)The hard, white, elastic and find grain substance (being dentine of exceptional hardness) composing the main part of the tusks of the elephant, mammoth (fossil),…..
(II)A substance resembling ivory or made in imitation of it.
(71) Thus, the words `ivory imported into India’ occurring in Section 49B(1)(a)(ia) would include all descriptions of imported ivory, whether elephant ivory or mammoth ivory.
(72) We are also of the view that the impugned legislation falls within the power and competence of the Parliament as the same is meant to protect the Indian elephant. In order to achieve that purpose, the Parliament has undoubted power to deal with matters which, effectuate the same. It can legislate with regard to all ancillary and subsidiary subjects including the imposition of ban on trade in imported ivory of all descriptions, whether drawn from mammoth or elephant, for the salutary purpose of the preservation of the Indian elephant. For the foregoing reasons we do not find any merit in the writ petitions and the same are dismissed, but without any order as to costs. Writ Petitions dismissed.