Supreme Court Upholds Ban on Imported Ivory Trade to Protect Wildlife: Indian Handicrafts Emporium & Ors. vs. Union of India & Ors. (27 August 2003)

Introduction

Date of the Judgment: 27 August 2003

Citation: Appeal (civil) 7533 of 1997, Indian Handicrafts Emporium & Ors. vs. Union of India & Ors.

Judges: CJI, Y.K. Sabharwal & S.B. Sinha

Can a previously legal trade be banned to protect endangered species? The Supreme Court of India deliberated on this question while examining the validity of amendments to the Wild Life (Protection) Act, 1972, which prohibited trade in imported ivory. This case, Indian Handicrafts Emporium & Ors. vs. Union of India & Ors., challenged the ban imposed on the trade of imported ivory, arguing it violated the fundamental rights of traders. The bench, comprising CJI, Y.K. Sabharwal, and Justice S.B. Sinha, delivered the judgment.

Case Background

The appellants were engaged in manufacturing and selling art and craft items made from legally imported ivory from African countries. Initially, there were no restrictions on this import.

Key events leading to the legal challenge:

• 1972: The Wild Life (Protection) Act enacted to protect wild animals, birds, and plants.
• October 5, 1977: Indian elephants included in Schedule A of the Act.
• 1977: The Union of India banned the export of ivory.
• 1986: Chapter V-A added to the Act, imposing restrictions on trade in wild animals.
• 1991: Section 49-C inserted, imposing a total prohibition on trade of imported ivory. Notification dated September 27, 1991, brought the Act into effect from October 2, 1991, with a six-month grace period until April 2, 1992, for traders to dispose of their stock.
• March 26, 1992: The Delhi High Court initially stayed the operation of the Act but vacated the stay on May 22, 1992.

The appellants challenged the constitutionality of the 1991 Amendment Act, arguing it unjustly prohibited their right to trade in ivory. The Delhi High Court upheld the Act’s validity, leading to the appeal before the Supreme Court.

Timeline:

Arguments

Arguments of the Appellants:

• Violation of Article 19(1)(g): The prohibition on trade in ivory unjustly restricts the appellant’s fundamental right to carry on business.
• Explanation: Article 19(1)(g) of the Indian Constitution guarantees citizens the right to practice any profession or to carry on any occupation, trade, or business. The appellants argued that banning ivory trade infringes upon this right.
• Excessive and Confiscatory Nature: The restrictions imposed by the Amendment Act are excessive and amount to a confiscation of their property.
• Explanation: The appellants contended that the ban was so severe that it effectively deprived them of their property (ivory stocks) without compensation, thus being confiscatory.
• Ultra Vires Article 14: The Amending Act is irrational and arbitrary, violating Article 14 of the Constitution, which guarantees equality before the law.
• Explanation: The appellants claimed that the law was discriminatory and lacked a rational basis, thereby violating the principle of equality enshrined in Article 14.
• Changes in Elephant Population: The elephant population has increased in several African countries, and CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) now permits these countries to deal in ivory under certain restrictions.
• Explanation: The appellants pointed to the fact that some African countries with growing elephant populations were allowed to trade in ivory, suggesting that the blanket ban in India was no longer justified.
• Ivory from Dead Animals: Ivory collected from dead animals should be permitted for trade.
• Explanation: The appellants argued for an exception to the ban, allowing trade in ivory sourced from elephants that died naturally, as this would not contribute to poaching.
• Vagueness of the Amending Act: The Amending Act is vague and should be held ultra vires Article 14.
• Explanation: The appellants argued that the law lacked clarity, making it difficult to understand and enforce, which is a violation of Article 14.
• Right to Deal with Legally Imported Ivory: The ivory was legally imported before the 1991 Amendment Act, and ownership has not vested in the government.
• Explanation: The appellants asserted that since they legally acquired the ivory before the ban, they should retain the right to deal with it.
• Obligation to Issue Ownership Certificates: Once a declaration is filed under Section 49-C(1), the Chief Wild Life Warden is obligated to issue a certificate of ownership, entitling them to transfer the stock.
• Explanation: The appellants interpreted Section 49-C(1) as mandating the issuance of ownership certificates, which would allow them to continue trading.
• Lack of Compensation: There is no provision for compensation in the Act, violating Article 300A of the Constitution, which protects the right to property.
• Explanation: The appellants argued that the government could not deprive them of their property without providing compensation, as required by Article 300A.
• Construction of Section 49-C(7): Section 49-C(7) should be construed to uphold the right to property; otherwise, it would be unconstitutional.
• Explanation: The appellants contended that the interpretation of Section 49-C(7) should favor the protection of their property rights to avoid unconstitutionality.
• Coverage under Act 16 of 2003: They should be covered by the provisions of Act 16 of 2003, which allows holders of ivory stock to file a fresh declaration.
• Explanation: The appellants sought to benefit from the provisions of Act 16 of 2003, arguing that it should apply to them as well.
• Ultra Vires Guidelines: The guidelines issued by the respondents are ultra vires Section 63 of the Act and the rules framed thereunder, giving arbitrary power to the statutory authority.
• Explanation: The appellants challenged the guidelines, claiming they exceeded the authority granted by Section 63 and were arbitrary.
• Inapplicability of “Res Extra Commercium”: The principle of “res extra commercium” (things beyond commerce) is inapplicable in this case.
• Explanation: The appellants argued that ivory trade should not be considered beyond commerce, as it was a legally permitted activity.

Arguments of the Respondents:

• Legislative Competence: Parliament has the legislative competence to enact the said Act, given its purpose and object.
• Explanation: The respondents asserted that the Parliament had the authority to legislate on wildlife protection and trade regulation.
• Intention of the Parliament: The intention of the Parliament was to allow traders to dispose of imported African ivory within six months, after which possession would become illegal, subject to the grant of a certificate of ownership.
• Explanation: The respondents argued that the legislative intent was to provide a limited window for traders to liquidate their stocks, after which the ban would be fully enforced.
• Discretion of Chief Wild Life Warden: A trader cannot claim that all imported ivory is necessary for personal use, and the Chief Wild Life Warden has discretionary jurisdiction to issue certificates of ownership.
• Explanation: The respondents maintained that the decision to grant ownership certificates was at the discretion of the Chief Wild Life Warden, based on genuine personal use.
• Reasonableness of the Provision: The provision is reasonable as traders were given sufficient time to dispose of their articles.
• Explanation: The respondents argued that the six-month grace period was sufficient and reasonable for traders to adjust to the new regulations.
• Total Prohibition: Trade and possession of ivory have been totally prohibited, and even non-traders are not entitled to possess it under Section 40(2A) of the Act.
• Explanation: The respondents emphasized that the ban was comprehensive, extending to both traders and non-traders, to ensure effective wildlife protection.
• Consistent Legislative Policy: Legislative policy has not changed in India, as evidenced by India’s opposition to allowing African countries to trade in ivory at CITES meetings.
• Explanation: The respondents highlighted India’s consistent stance against ivory trade, both domestically and internationally.
• Ivory Still in Appendix-I: Ivory is still in Appendix-I of CITES so far as India is concerned.
• Explanation: The respondents clarified that despite some relaxations for certain African countries, ivory remained under strict international control for India.

Innovativeness of the argument: The appellants innovatively used the changes in international regulations and elephant population data to argue that the ban was no longer justified and violated their fundamental rights.

Issues Framed by the Supreme Court

1. Whether the Amending Act 44 of 1991 is ultra vires Articles 19(1)(g) and 14 of the Constitution of India.
2. Whether the appellants are entitled to possess animal articles.
3. Whether the ivory vests in the Government.
4. How the dichotomy should be resolved.
5. Are the provisions of the Amending Act violative of the right of property of the appellants?
6. Are the guidelines constitutional?

Treatment of the Issue by the Court: “The following table demonstrates as to how the Court decided the issues”

Authorities

The court relied on the following cases and legal provisions:

Cases Relied Upon:

• Narender Kumar and Others Vs. Union of India and Others [1960] 2 SCR 375 (Supreme Court of India): Interpreted the word “restrictions” to include cases of “prohibition” regarding fundamental rights.
• State of Maharashtra Vs. Mumbai Upnagar Gramodyog Sang [1969] 2 SCR 392 (Supreme Court of India): Supported the interpretation of “restriction” including “prohibition.”
• Synthetics and Chemicals Ltd. and Others vs. State of U.P. and Others [(1990) 1 SCC 109] (Supreme Court of India): Addressed reasonable restrictions on medicinal and toilet preparations.
• Ramana Dayaram Shetty Vs. The International Airport Authority of India and Others [AIR 1979 SC 1628 : 1979 (3) SCR 1014] (Supreme Court of India): Discussed the government’s power to sell exclusive privileges and reject bids.
• Har Shankar and Others Vs. Dy. Excise and Taxation Commissioner [AIR 1975 SC 1121 : (1975) 3 SCR 254] (Supreme Court of India): Affirmed the state’s right to prohibit activities related to intoxicants.
• Municipal Corporation of the City of Ahmedabad and Others Vs. Jan Mohammed Usmanbhai and Another [AIR 1986 SC 1205 : (1986) 2 SCR 700] (Supreme Court of India): Established principles for assessing the reasonableness of restrictions on fundamental rights.
• Kapila Hingorani Vs. State of Bihar [JT 2003 (5) SC 1] (Supreme Court of India): Highlighted that a law constitutional at one point may become unconstitutional over time.
• John Vallamattom and Anr. Vs. Union of India [JT 2003 (6) SC 37] (Supreme Court of India): Emphasized judging laws based on international treaties and subsequent events.
• Rustom Cavasjee Cooper vs. Union of India [(1970) 3 SCR 530] (Supreme Court of India): Dealt with nationalization of banks and the importance of individual rights.
• United States Vs. Darby [312 US 100 (1941)] (United States Supreme Court): Illustrated the “Means Affecting Means” principle, allowing substantial and procedural provisions to enforce a law’s object.
• D. Saibaba & Bar Council of India and Anr. reported in JT 2003 (4) SC 435 (Supreme Court of India): Stressed construing machinery to effectuate the liability imposed by the charging section.
• Welfare Assocn. A.R.P. Maharashtra & Anr. Vs. Ranjit P. Gohil & Ors. reported in 2003 (2) SCALE 288 (Supreme Court of India): Emphasized making the machinery workable.
• Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Another vs. Union of India and Others [(1960) 2 SCR 671] (Supreme Court of India): Addressed vagueness in laws, holding “magic remedy” as incapable of a fixed meaning.
• Unni Krishnan J.P. and Others Vs. State of Andhra Pradesh and Others [(1993) 1 SCC 645] (Supreme Court of India): Initially stated that imparting education cannot be treated as a trade or business.
• T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481] (Supreme Court of India): Overruled part of Unni Krishnan, holding that imparting education falls under the definition of occupation within Article 19(1)(g).
• Sodan Singh Vs. New Delhi Municipal Committee [(1989) 4 SCC 155] (Supreme Court of India): Supported the view that “occupation” includes establishing educational institutions.
• Islamic Academy of Education and Anr. Vs. State of Karnataka and Ors. decided on 14th August, 2003 [JT 2003 (7) SC 1] (Supreme Court of India): Reaffirmed the view in T.M.A. Pai Foundation.
• P. Crowley Vs. Henry Christensen [(1890) 34 Law. Ed. 620] (US Supreme Court): Upheld restrictions on dealing in retail trade in liquor without a license.
• Krishna Kumar Narula Vs. The State of Jammu and Kashmir & Ors. AIR 1967 SC 1368 (Supreme Court of India): Stated that fundamental rights under Article 19(1)(g) cannot be further restricted by judicial vagaries.
• Chief Justice of A.P. Vs. L.V.A. Dikshitulu [AIR 1979 SC 193 : (1979) 2 SCC 34] (Supreme Court of India): Emphasized construing constitutional or statutory provisions according to the intent of the makers.
• Kehar Singh Vs. State (Delhi Admn.) [AIR 1988 SC 1883 : (1988) 3 SCC 609] (Supreme Court of India): Highlighted the importance of examining the words, necessity, and mischiefs the legislature intended to redress.
• District Mining Officer Vs. Tata Iron & Steel Co. [JT 2001 (6) SC 183 : (2001) 7 SCC 358] (Supreme Court of India): Stated that a statute is an edict of the legislature and must be construed to seek the intention of its maker.
• State of A.P. Vs. Mc. Dowell Company [AIR 1996 SC 1627] (Supreme Court of India): Affirmed that an enactment cannot be struck down because a court thinks it unjustified.
• High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor Panchayat and Others[(2003) 4 SCC 712] (Supreme Court of India): Stressed that interpretation must depend on the text and the context.
• Reserve Bank of India vs. Peerless Co. reported in 1987(1) SCC 424 (Supreme Court of India): Emphasized that interpretation must depend on the text and the context.
• DPP vs. Schildkamp (1971) AC 1 (House of Lords): Held that severance may be effected even where the ’blue pencil’ technique is impracticable.
• Jones vs. Wrotham Park Settled Estates (1980) AC 74 (House of Lords): Stated the conditions for adopting a purposive construction.
• Bangalore Water Supply vs. A. Rajappa (AIR 1978 SC 548) (Supreme Court of India): Approved the rule of construction stated by DENNING, L.J.
• Magor & St. Mellons R.D.C. vs. Newport Corporation, 1951(2) All ER 839 (House of Lords): Highlighted the duty of the court to interpret the words that the legislature has used.
• Hameedia Hardware Stores vs. B. Mohan Lal Sowcar reported in (1988) 2 SCC 513 (Supreme Court of India): Held that the rule of addition of words is permissible in interpretation.
• Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and Ors. reported in (1990) 3 SCC 682 (Supreme Court of India): Discussed the distinction between jurisprudential interpretation and interpretation by a law-applying organ.
• S. Gopal Reddy vs. State of Andhra Pradesh reported in (1996) 4 SCC 596 (Supreme Court of India): Stated that the text and the context of the entire Act must be looked into.
• M/s. DLF Qutab Enclave Complex Edu. Charit. Trust Vs. State of Haryana & Ors. 2003 (2) SCALE 145 (Supreme Court of India): Supported the doctrine of purposive construction.
• State of Maharashtra vs. Indian Medical Association and Others [(2002) 1 SCC 580] (Supreme Court of India): Concerned with the term “management” and emphasized reading it contextually.
• Davies Vs. Minister of Land, Agriculture and Water Development [1997] 1 LRC 123 (Zimbabwe Supreme Court): Stated that control of property by the State short of deprivation would not entail payment of compensation.
• Charan Lal Sahu vs. Union of India [1990) 1 SCC 613] (Supreme Court of India): Referred to the maxim “salus populi suprema lex” (the safety of the people is the supreme law).

Legal Provisions Considered:

• Wild Life (Protection) Act, 1972:
  • Section 2(1): Definition of “animal” includes mammals, birds, reptiles, amphibians, fish, other chordates and invertebrates and also includes their young and eggs.
  • Section 2(2): Definition of “animal article” includes an article made from any captive animal or wild animal, other than vermin, and includes an article or object in which the whole or any part of such animal has been used, and ivory imported into India and an article made therefrom.
  • Section 2(11): Definition of “dealer” in relation to any captive animal, animal article, trophy, uncured trophy, meat or specified plant.
  • Section 2(14): Definition of “Government property”.
  • Section 2(36): Definition of “wild animal” means any animal specified in Schedules I to IV and found wild in nature.
  • Section 39(1)(c): Every 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 there-under has been committed, shall be the property of the State Government.
  • Section 40: Declarations required for possession of captive animals or animal articles.
  • Section 40(1): Requirement for declaring possession of captive animals or animal articles.
  • Section 40(2): Prohibition of acquisition, sale, or transfer of animals specified in Schedule I or Part II of Schedule II.
  • Section 40(2A): Restriction on acquiring, receiving, or possessing captive animals or animal articles without a certificate of ownership.
  • Section 40(2B): Requirement for declaring inherited captive animals or animal articles.
  • Section 40A: Immunity in certain cases for those who did not make declarations under Section 40.
  • Section 41: Inquiry and preparation of inventories of animal articles.
  • Section 49-A(a): Definition of “scheduled animal” means an animal specified for the time being in Schedule I or Part II of Schedule II.
  • Section 49-A(c): Definition of “specified date” in relation to ivory imported into India or an article made therefrom.
  • Section 49-B: Restriction on commencing or carrying on business as a manufacturer of or dealer in scheduled animal articles or ivory.
  • Section 49-C: Declaration by dealers regarding their stocks of scheduled animal articles, animals, trophies, and ivory.
  • Section 49-C(1): Requirement for dealers to declare their stocks of scheduled animal articles and ivory.
  • Section 49-C(3): Issuance of certificates of ownership for items desired for bona fide personal use.
  • Section 49-C(6): Reporting requirements for transfer or transport of items with certificates of ownership.
  • Section 49-C(7): Prohibition on keeping, selling, or transferring scheduled animals or ivory without a certificate of ownership.
  • Section 50: Power of entry, search, arrest, and detention.
  • Section 51: Penalties for contravening provisions of the Act.
  • Section 51(1): Penalties for contravening provisions of the Act (except Chapter VA and section 38J).
  • Section 51(1A): Penalties for contravening provisions of Chapter VA.
  • Section 63: Power of the Central Government to make rules.
• Constitution of India:
  • Article 14: Equality before the law.
  • Article 19(1)(g): Right to practice any profession or to carry on any occupation, trade or business.
  • Article 48-A: Protection and improvement of environment and safeguarding of forests and wild life.
  • Article 51-A(g): Fundamental duties to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
  • Article 300A: Persons not to be deprived of property save by authority of law.

Judgment

The Supreme Court upheld the validity of the 1991 Amendment Act, which prohibited trade in imported ivory. The court held that the restrictions imposed were reasonable and in the interest of protecting wildlife and the environment, thus not violating Article 19(1)(g) or Article 14 of the Constitution.

The Court also clarified that the ivory does not automatically vest in the government unless an offense has been committed under the Act, and that the determination of an offense requires adjudication by a competent court.

The guidelines issued by the Central Government were deemed unconstitutional as they did not meet the requirements of Section 63 of the Act, particularly regarding the disposal of seized articles.

The Court directed the authorities to take appropriate steps to implement the provisions of the Act effectively and to ensure the protection of wildlife.

The appeals were dismissed, and the judgment of the Delhi High Court was affirmed, subject to the observations made by the Supreme Court.

Ratio Decidendi

The ratio decidendi of the case can be summarized as follows:

• Reasonable Restrictions on Fundamental Rights: The right to trade is subject to reasonable restrictions in the interest of the general public, particularly when it comes to protecting endangered species and the environment.
• Legislative Competence: The Parliament has the legislative competence to enact laws aimed at protecting wildlife and regulating trade in animal articles, including ivory.
• Purposive Construction: Statutes must be interpreted in a manner that gives full effect to their purpose and object, especially when dealing with environmental protection laws.
• No Automatic Vesting of Property: Property does not automatically vest in the government unless an offense has been committed and adjudicated by a competent court.
• Guidelines Must Comply with the Act: Guidelines issued by the government must be in compliance with the provisions of the relevant Act and cannot exceed the powers conferred by the Act.

Obiter Dicta

The obiter dicta of the case include:

• The Court’s observations on the importance of protecting the environment and wildlife, emphasizing the constitutional duties enshrined in Article 48-A and Article 51-A(g).
• The Court’s comments on the need for effective implementation of wildlife protection laws and the role of authorities in ensuring compliance.
• The Court’s discussion on the interpretation of statutes and the importance of purposive construction in achieving the objectives of the law.
• The Court’s clarification on the limited scope of the right to property, which is not a fundamental right and can be regulated by the State in the interest of the general public.

Flowchart of the Court’s Decision-Making Process

Sentiment Analysis

Ratio Analysis

Impact

The judgment has had a significant impact on wildlife protection and trade regulations in India:

• Strengthened Wildlife Protection: The judgment reinforced the importance of protecting endangered species and the environment, providing a legal basis for stricter regulations on trade in animal articles.
• Clarified Legislative Powers: The judgment clarified the Parliament’s legislative competence to enact laws aimed at protecting wildlife and regulating trade in animal articles.
• Set Precedent for Reasonable Restrictions: The judgment established a precedent for imposing reasonable restrictions on trade in the interest of protecting endangered species and the environment.
• Impact on Ivory Trade: The judgment effectively upheld the ban on imported ivory trade, contributing to the global effort to combat poaching and protect elephants.
• Guidance for Government Actions: The judgment provided guidance for government actions in implementing wildlife protection laws and issuing guidelines in compliance with the relevant Act.

Critical Analysis

Strengths:

• Environmental Protection: The judgment strongly supports environmental protection, aligning with international efforts to conserve biodiversity and protect endangered species.
• Legal Clarity: The judgment provides legal clarity on the scope of legislative powers and the limits of fundamental rights in the context of environmental protection.
• Purposive Construction: The judgment emphasizes the importance of purposive construction in interpreting environmental laws, ensuring that they are effective in achieving their objectives.

Weaknesses:

• Impact on Traders: The judgment may have had a significant economic impact on traders engaged in the ivory trade, without providing adequate compensation or alternative livelihood options.
• Implementation Challenges: The judgment highlights the challenges in implementing wildlife protection laws and the need for effective enforcement mechanisms.
• Limited Scope: The judgment focuses primarily on the legal aspects of the ban on imported ivory trade, without addressing broader issues related to wildlife conservation and sustainable development.

Overall Contribution:

The judgment makes a valuable contribution to environmental jurisprudence by affirming the importance of protecting endangered species and the environment, providing a legal basis for stricter regulations on trade in animal articles, and clarifying the scope of legislative powers and fundamental rights in the context of environmental protection. However, it also highlights the need for a more comprehensive approach to wildlife conservation and sustainable development, addressing the economic and social impacts of environmental regulations and ensuring effective implementation and enforcement mechanisms.