[Vidhispeaks] The Wildlife Protection Amendment Act: An opportunity for effective reform in Wildlife law

By Deepa Padmar

In 2020, a study released by TRAFFIC analysed the post-lockdown increase in illegal wildlife trading. The results indicated an alarming doubling of the number of reported illegal trades in wildlife.

Both domestically and internationally, wildlife smuggling has become rampant. India remains one of the top 20 countries for illegal wildlife trafficking, especially leading in illegal reptile trade. Another study by TRAFFIC on illegal smuggling of Testudines in India reports that a minimum of 1,11,310 tortoises and freshwater turtles entered illegal wildlife trade in a 10-year period between September 2009–September 2019.

These accounts are extremely concerning because unchecked trade in wildlife poses a serious threat to ecosystems across the world, potentially leading to local and global extinction of species. The methods used by poachers to kill or capture animals and the way animals are handled are often extremely cruel and fail to comply with animal welfare standards or sanitary requirements, increasing chances of zoonotic disease outbreaks.

Further, the central government’s advisory in 2020, granting amnesty to individuals that are in possession of exotic live species protected under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), in a bid to encourage disclosure of illegal animal possession, was a much contested issue, as it sought to regularise possession of illegally traded species.

In India, the Wild Life Protection Act, 1972 (‘WPA’) deals with the conservation and protection of all wildlife in the country, including animals, plants and birds. The preservation of flora and fauna hinges on this law which regulates & prohibits trade & hunting of listed species, establishes Central and State level authorities, including Chief Wildlife Wardens, to prevent & redress illegal wildlife activities, and empowers governments to declare national parks, sanctuaries, community reserves & closed areas.

Recently, in December, 2021, an amendment to the WPA was tabled at the winter session of the Parliament.

In this article, I discuss and analyse the changes proposed under the new amendment, and identify some progressive reforms that the Bill must consider inculcating.

The Wild Life Protection Amendment Bill: Some missed opportunities

The Wild Life Protection Amendment Bill has been drafted with good intentions, principally to update the current law to bring it in line with international obligations. The Bill strengthens India's commitment to Convention on the International Trade in Endangered Species (CITES) by prohibiting trade of CITES listed species, establishing Management and Scientific Authorities and outlining export & import restrictions for species mentioned under CITES. Additionally, the amendment rationalises and clarifies schedules under the Act, brings ‘alien invasive species’ within the scope of regulation and mandates consultation of the Gram Sabha in Protected Areas (PA) for developing management plans for sanctuaries.

However, the Bill fails to bring any major reform in the implementation of the Act, apart from its bid to implement CITES. Some issues with the Bill are listed below.

Lack of Clarity on governing ‘Vermin’ species

The WPA & Amendment Bill use the term ‘vermin’ to describe species that are harmful to crops, agriculture and livestock. The Bill also lists vermin species and empowers the Central government to add animals to this list. Vermin species are declared principally for population control. However, the term is unscientific and derogatory, especially considering it is used in legislation that seeks to protect wildlife.

The Bill must replace this term and provide criteria for its declaration/ designation in a time-bound manner, outlining responsibilities at different levels to ensure transparency in the process of declaration. The lack of criteria for determining these species, may lead to unfettered exercise of the power of declaration by the Central government.

In the absence of a procedure for culling vermin species under any regulation currently, each State has employed ad hoc protocols for their culling. To prevent complete extermination of the species, and the misuse of this provision to satisfy peoples’ hunting urges, the killing of vermin must be undertaken under the supervision of the Divisional Forest Officer.

It is pertinent to note that what may be considered vermin in one area, may be key to the ecosystem in another. Therefore, the Act must also clarify that identification of vermin species be undertaken at the district or forest division level only, and any such declaration must be backed by expert review. Further, the declaration of ‘vermin’ animals must be on the recommendation of the Chief Wildlife Warden and limited to a range area.

Ignoring Invasive Native Species

The Bill introduces the term ‘invasive alien species’ which refers to species that are non-native to India, whose introduction or spread may threaten or adversely impact wildlife or its habitat. Accordingly, trade, possession, import, or proliferation of invasive alien species is proposed to be regulated by the Central government.

However, there have been instances where State governments have used species that are non-native to the ecosystem, although native to other areas in India, as part of afforestation programs. This has had an immense ecological impact, altered soil property, and adversely affected local flora and fauna. These species are not legally classified as alien invasive and therefore, used extensively in afforestation and restoration programs leading to a cascade of ecological disasters.

For instance, Chir Pine (Pinus roxburghii) which is native to the Himalayas is now considered locally invasive in some areas due to its negative impact on biodiversity and potential to alter soil properties. There are instances where species like Katsagoon (Haplophragma adenophyllum) which are native to Eastern India, have become invasive in other States due to their utilization in afforestation campaigns, owing to their resilience and quick growth potential. Therefore, it is important that the law also regulates ‘invasive native species’ which are Indian species with known invasive properties.

To ensure effective regulation of invasive species, an advisory committee must therefore be constituted under the chairmanship of the Director under the National Biodiversity Act, along with representatives from the Ministry of Environment, Forest and Climate Change (“MoEFCC”), Ministry of Agriculture and representation of State Wildlife Division - on a rotational basis - to advise the Central government on identification and regulation of invasive species in India. Accordingly, a new schedule may be added to the WPA listing names of plants, animals.

Ambiguity on Elephant Trade

The Bill exempts elephants from Section 43 (1) of the WPA which prohibits the commercial transfer of captive animal, animal article, trophy or uncured trophy by the person holding ownership certificate and Section 43 (2) which mandates reporting of interstate transport of animal or animal article by the holder of the ownership certificate to the Chief Wildlife Warden/ authorised officer.

The amendment states that the aforementioned Section shall not apply to the transfer or transportation of any live elephant by a person having a certificate of ownership, where such person has obtained prior permission from the State government on fulfilment of such conditions as may be prescribed by the Central Government.

This amendment is unclear as to the meaning of ‘prior permission of State government’ and which State government such permission must be obtained from - whether from the originating State or the State to which transfer/ transport has occurred.

It is necessary in the interest of elephant protection, and to prevent their illegal trade, that any transfer or inter-state transport of elephants be notified to the Chief Wildlife Warden or authorised official of the jurisdiction where the elephant has been transported from and the jurisdiction to which the elephant has been transferred or transported to. Such a record must be maintained by the respective Chief Wildlife Wardens or authorised officials.

Disregarding State Forests

The Wild Life Protection Act has limited applicability to State Forests (which are protected under the Indian Forest Act 1927 & other state laws). State Forests are different from protected areas under the Wild Life Protection Act, but are crucial to wildlife conservation as they harbour nearly all of India’s endemic mammals and are the areas consisting of the most human-dominated wildlife habitats, prone to heightened human-wildlife conflict.

Apart from the National Tiger Conservation Authority (NTCA), other agencies do not intervene regarding wildlife protection in State Forests Areas, leaving wildlife in these areas unprotected. Other authorities such Wildlife Crime Control Bureau, the National Biodiversity Authority, State Biodiversity boards etc, as established under environmental legislations, lack the powers necessary to protect wildlife in State Forests.

The working plans of all State Forest divisions in India should compulsorily include wildlife conservation plans, efficient monitoring mechanisms and measures for mitigating human-wildlife conflicts. Such comprehensive management requires an expert body that can assume primary responsibility for the protection of wildlife habitats. We suggest the establishment of a ‘National Wildlife Protection Authority’ which can exercise jurisdiction in all wildlife habitats, irrespective of whether they are declared as Protected Area.

This Bill, which has received much media attention recently, is currently being considered by the Parliamentary Standing Committee chaired by Rajya Sabha member Jairam Ramesh. While the amendment may be a first step in the right direction, clarity on concepts like ‘vermin’ and ‘invasive species’ and introducing adequate frameworks to protect State Forests can go a long way in making the Wild Life Protection Act truly implementable.

Vidhi’s detailed comments on the Wild Life Protection Amendment Bill, submitted to the Parliamentary Standing Committee, can be found here.

Deepa Padmar is a Research Fellow at Vidhi Centre for Legal Policy. She has co-authored Vidhi’s submissions to the Parliamentary Standing Committee on the Wild Life Protection Amendment Bill.

Vidhispeaks is a fortnightly column on law and policy curated by Vidhi. The views expressed are of the fellow and do not reflect the views of Vidhi or Bar & Bench.