Lalit Shastri

Bollywood actor Salman Khan was sentenced 5 years in jail by a trial court in Jodhpur on 5 April 2018 for killing two blackbuks in 1998 under Section 51 of the Indian Wildlife (Protection) Act 1972 (WLPA) which deals with penalty for hunting a Schedule 1 animal.

Today (7 April 2018) Khan was granted bail by a district and sessions court in Jodhpur.

District and Sessions Judge Ravindra Kumar Joshi allowed Khan’s plea for bail and suspension of sentence so that he can file an appeal against his conviction and sentencing.

WLPA was enacted with the objective of effectively protecting the wildlife of this country and to control poaching, smuggling and illegal trade in wildlife and its derivatives. The Act was amended in January 2003 and punishment and penalty for offences under the Act were made more stringent. In the meanwhile, the Ministry of Environment, Forest and Climate Change has even proposed further amendments in the law by introducing more rigid measures to strengthen the Act. The objective is to provide protection to the listed endangered flora and fauna and ecologically important protected areas.

After Salman’s conviction by a trial court in Jodhpur in the blackbuk poaching case, the issue of forest conservation, wildlife protection and ecological stability of the country is being discussed in the public domain in a big way and in the end, the point being driven home, and rightly so, is that the law should follow its own course and anyone who breaks the law should be punished.

So far as the law is concerned, Salman’s case is more or less settled, although it remains to be seen what would be the outcome of appeals in higher courts in this matter.

The enforcement of the law leading to Salman Khan’s conviction in the blackbuck poaching case notwithstanding, what is a matter of serious concern is the poor record when it comes to implementing the provisions of the Wildlife Protection Act in letter and spirit from the top to the cutting edge level.

The WLPA revolves around the Chief Wildlife Warden (CWLW), appointed under Section 4 of the WLPA. The CWLW has been empowered with well defined and wide-raging powers, duties and responsibilities. But it has been observed that most CWLWs are not fulfilling their statutory duties comprehensively, as provided under the Act. 

Barring exceptions, CWLWs are behaving more like Wildlife Administrators or Wildlife Tourism Managers, obviously to please the political executives to further their career. In the process, they are sacrificing the interest of the wildlife in their jurisdiction.

The expert view is that CWLW must have two specialised functional areas under their command- wildlife law and competence of technical management of species and the habitat, including Ethnology or study of Animal Behavior, Wildlife Ecology, Limnology and Marine Biology, Genetics and Breeding Techniques, Evolution – including Migration and Dispersal of species, Wildlife Physiology, Cell Biology, Serology, Forensic Biology, Population Pyramid Studies, Landscape planning to cope with porosity and fragmentation, understanding of Zone of Influence, and knowledge of Animal Classification to increase understanding of WLPA.

Unfortunately most CWLWs are neither having these competencies nor access to manpower with the requisite expertise to handle these areas.

The WLPA Act was enacted in 1972 and it has been amended 6 times in 1983, 1986, 1991, 1993, 2003 and 2006. Also the Wildlife Amendment Bill, 2013 was introduced in the Parliament, but it lapsed in 2014. What also needs to be underscored in the same context is that India is signatory to 13 international conventions like CITES and the Ramsar Convention but domestic law of WLPA is still silent on implementation of the international conventions.

The WLPA has been enacted as a regulatory statute and the point that needs to be visited is that it still provides for shooting blocks and the license for killing wildlife.

The CWLWs are not exercising their powers under Sections 18 to 26 of the WLPA to carry-out right settlement in Protected Areas to secure it for wildlife. The process has not yet started even 46 years after the enactment of the Act.

The CWLWs are empowered under Section 29 to take cognizance of the destruction of wildlife habitat and regulate the inflow and outflow of water into and outflow to PAs. But they are not acting on this front.

The Section-27 and 28 provide for regulation of entry, registration of arm licenses and inoculation of cattle to ward off diseases. There is also almost total inaction in this direction.

The PAs notified before 1991 are finally notified PAs, as there was only one provision of notification before “settlement of rights”. But nothing has been done thereafter.

Also under Section 66(4), all Reserve Forests, where all rights were acquired under Section-4 to 20 of Indian Forest Act, 1927, are finally notified and there are no “rights” in the Reserved Forests of Protected Areas but at the same time, those in knowledgeable circles are asking what has been holding the enforcing authorities from securing this position.

The Amendment Act of 2002 has added a new chapter VI-A to WLPA,  consisting of section 58-A to 58-Y, which deals with various aspects of forfeiture of property derived from illegal hunting and trade. Sections-58A to 58Y of WLPA provide for constitution of “Confiscation Tribunal” to confiscate the property of those convicted. But investigation officer, confiscation officer and confiscation tribunal have not been appointed or constituted. [Click here for THE WILD LIFE (PROTECTION) AMENDMENT ACT, 2002]

The conviction rate of wildlife complaints or challans is less than 2%. Besides, Section-58 provides that the “onus of proof” lies on the accused. But this provision was not being used in the prosecution stage.

There was a suggestion for placing “HOLOGRAMS” on wildlife trophies and registration certificates at the time of registration under the Wildlife Stock Declaration Rules, 2003. But it was vociferously opposed. As a consequence, anybody can temper the hammer mark placed on the trophy.

Section-55(c), WLPA provides that if CWLW and Wildlife Wardens do not take action in wildlife crimes. Anybody can provide a notice to CWLW for 60 days under the Wildlife Protection Rules, 1995 and file private complaint with the competent court for initiating the prosecution.

The CWLWs and wildlife wardens need to be asked, who is restraining them from issuing search warrants and punishing rural communities and inhabitants of forest villages under Section-79 and 81 of the Indian Forest Act, 1927.

If we take a close look at these glaring issues -for example, incompetent handling of wildlife administration and technical management coupled with legal infirmities, the impression one gets is that “wildlife management” is controlled by a “mafiosi” that is more interested in promoting wildlife tourism than wildlife protection or forest conservation.

In these circumstances, even the tiger reserves are not being spared and the poachers are striking at will. Due to least resistance, the forest dwellers are able to enter reserved forests and protected areas for grazing purpose and for reckless collection of firewood (both for personal and commercial ends), tendu leaf, mahua, sal seed and other non-timber forest produce.

We have reached this pass despite the fact that The Wildlife (Protection) Act, 1972 is a Central Act that has over-ridding effect on all state Acts. Article-251 and 254 of the Constitution provides that State Assemblies and State Governments cannot take any decision contradicting central Acts [Indian Forest Act, 1927; Wildlife (Protection) Act, 1972; and Forest Conservation Act, 1980]. If they take any decision in contravention of Central Acts; such decisions would become null and void.

It should be noted that after transfer of the subjects of “forests and wildlife” with the 42nd Constitution Amendment Act, 1976; the State Governments are hot having Sovereign powers on these subjects.

The Forest Conservation Act, 1980 was enacted to help conserve the country’s forests by strictly restricting and regulating the de-reservation of forests or use of forest land for non-forest purposes without the prior approval of Central Government. For this purpose, the Act lays down the pre-requisites for the diversion of forest land for non-forest purposes.

Contrary to the letter and spirit of the Central Acts, under the Madhya Pradesh Protected Forest Rules enforced in June 2015 by the State Government, the district collectors have been given the powers to attach a Protected Forest to any village. As per the new dispensation, the Collector has been authorised to attach any Protected Forest or a part of it, not lying within any urban area or a Protected Area to a village. Obviously to lend credibility and give the impression that checks and balances are inbuilt in the newly introduced system, it has been specified that the attachment of the Protected Forest will be done by the Collector in consultation with the Divisional Forest Officer (DFO) and in accordance with the orders issued by the Government. The State Government has come up with these Rules by suppressing the earlier notification of February 2, 2005 using powers under Section 32 of the Indian Forest Act, 1927.

The Protected Forest Rules mandate that the “Gram Sabha” (village general body) shall constitute a Gram Van Samiti (village forest committee) for the purpose of managing the protected forest attached to that village and the responsibility would include the protection and development of the protected forest. A significant power that has been vested in this committee is that with the approval of the Government, the village forest committees will be able to enter into an agreement with a company or a body corporate, owned, managed and controlled by the Government or engaged in a manufacturing activity for which any forest produce is a raw material, to share any forest produce from that protected forest attached to it as consideration for the investment made by that company or body corporate towards the development of that Protected Forest. [For more on this click here] 

At the Government of India level, The Indian Forest (Amendment) Bill, 2017 was passed by both houses of Parliament in December 2017 to exclude bamboo (in non-forest areas) from the definition of tree under the Indian Forest Act to meet the categorically spelled out objective of improving the earnings of tribals and others living around forests. Earlier, in November 2017, the Government had promulgated the Indian Forest (Amendment) Ordinance, 2017 to exempt bamboo grown in non-forest areas from definition of tree, thereby dispensing with the requirement of felling and transit permit for its economic use. [more on the pitfalls of this would be covered in another detailed piece] 

Former Madhya Pradesh Principal Chief Conservator of Forest (Narmada Valley) R. N. Saxena shared his concern over the prevailing situation and the rapid slide down. He said: “With the infrastructure development, our ecological stability has gone and within 4 to 5 years, the situation will be out of control. The Narmada River has converted into muddy pools at several places. Tapti and Parvati have gone dry. The State of Karnataka is having war with States of Tamil Nadu and Goa. Sal forests are found in 22 States of India – Haryana, Shivaliks, mid-Himalayas, to Tripura and with southern range of Madhya Pradesh, Chhattisgarh, Odisha, Jharkhand and West Bengal. These Sal forests are dying without regeneration, more and more forests are not characterised by silviculture but signs of Senescence, and this is having an extreme adverse effect in terms of “climate change”.

Focusing more attention on wildlife, Saxena said: “Because of serious fragmentation of habitat by linear projects like roads, railways, transmission lines, canals etc. the “wildlife home range” has been converted into small isolated groups – where “genetic exchange” is not possible due to “physical and biological barriers”. It is causing “genetic drift”, leading to “population regression”.”

According to Saxena, our Chief Wildlife Wardens (CWLWs) are not carrying-out wildlife population pyramid studies including – sex ratio, individuals in sexually breeding stage, biotic potential factor, decimating factors, net natality of population. Then we have to consider factors of porosity, fragmentation and juxtaposition impact on wildlife population.

The Indian Forest Act, 1927 consolidates the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce.

To override the provisions of the Forest Conservation Act, now there is the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. It recognizes the rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers over the forest areas that were systematically and progressively encroached and illegally occupied by them with the patronage of politicians, especially those commanding power and authority.

Under the Forest Rights Act, till October 2017, about 1.76 million individual titles have been granted over an area of 4.12 million acres of forest land with an average of 2.36 acres of average land per title. Similarly, 64,000 community titles have been distributed over an area of about 9.98 million acres of forest land. Odisha has the distinction of issuing highest number of titles (4,16,531 titles- 4,10, 579 individual and 5, 952 community). Chhattisgarh has the highest forest area (2.45 million acres) over which titles have been given under the Forests Rights Act

According to the Yield Table each acre of forest land for which title has been given under the Forest Rights Act had about 35 to 40 trees, depending upon the Site Quality. One does not need space science to calculate the damage and harm we have caused to the forest ecosystem with one sweep by enacting this Act.

Convicting someone for killing a schedule I wild animal is necessary, but about fixing accountability of those who are failing in their responsibility when it comes to booking, prosecuting and ensuring the conviction of poachers, illegal miners, and the timber mafia, what to talk of those who were instrumental in legitimising the rights of illegal settlers on forest land, thereby causing irreversible damage to the entire forest ecosystem in India.