SHOOTING DOWN THE WILD LIFE PROTECTION ACT
( By Dilip M Naik, I.F.S., retired Chief Conservator of Forest, Gujarat)
Hunting had been a great sport in the past for the rich and powerful of this Country. The fading photographs of the Maharajas, with their foot planted on the carcass of some poor animal still adorn the walls of the numerous palaces scattered all around the Country.
The stuffed torsos of tigers, deer, bears and many such unfortunate animals have lived through the history to tell us the story of the wanton and mindless slaughter of the helpless species; the living exhibits of the bravado of our past rulers.
In a Country with such an history of mindless destruction of the wild life, the enactment of the WILD LIFE PROTECTION ACT, 1972 was indeed a break from the past.
The Solemn intention behind the enactment of the Wild Life Protection Act (WP Act in short) was to protect the endangered flora and fauna from the hands of the human being. A law of profound necessity in our Country, a Country which had the bounty of nature but very little sensitivity towards it.
The Law makers however, did take great care while enacting the WP Act. Under the Chapter III of the Act. hunting of any wild animal mentioned in the schedule-I & IV was totally prohibited. Any infraction of this statutory injunction attracted stiff penal consequences.
Perhaps the most significant aspect of the WP Act were that provisions regarding the declarations of sanctuaries and National Parks of areas which were ecologically sensitive under Section 26 A and 35 of the Act, respectively.
Realizing the danger to the endangered flora and fauna emanating primarily from the humans themselves, the Law makers made the areas declared as Sanctuary and National Parks totally out of bounds for any form of human activities except those specifically provided in the WP Act. Such areas were therefore made closed domains for the human activities. What was permitted was research work, photography or similar activities and even the entry of any person within the sanctuary was made subject to official permission under Section 27 of the Act.
The deep concern of the Lawmakers is reflected in the safeguards built in every section of the WP Act against its misuse or misinterpretation. The areas declared as Sanctuaries or Natural Parks by the Government under the WP Act cannot be altered by the Government. The power to alter the area or status of the Sanctuaries or the National Parks is conferred on the Assembly of the respective State under Section 26A (3) and 35 (5) of the Act respectively. Thus, the people’s representatives alone, by a resolution, can alter such boundaries.
Closed domains however poses its own inherent problems. As the sanctuaries and National Parks are made completely out of bounds for humans and every type of human activity are prohibited within such areas, the uncontrolled growth of the flora and fauna within such boundaries itself could endanger the flora and fauna. The WP Act had to therefore, take care of this eventuality. Section 29 of the WP Act was therefore, specifically engrafted in the enactment conferring limited power on the Chief Wild Life warden to permit the destruction or removal of the wildlife or its habitat within the protected area, but for the only reason that such destruction should be for the benefit of the wild life itself. Even this power conferred on the Chief Wildlife Warden has been made expressly subject to the prior sanctions of the Government upon its independent satisfaction that such removal or destruction would be necessary for the better management of wildlife within the protected area.
But alas ! Whoever knew that the provision of Section 29 would be used by the authorities themselves to shoot down the WP Act itself. The story of this new “hunting spree” started with the Reliance Industries Ltd. (RIL) deciding to build their massive crude Petroleum Refinery Plant at Mithakavdi, near Jamnagar, Gujarat.
In the year 1993, the Reliance Industries Ltd. had issued the prospectus for installing the biggest grass-root refinery near Jamnagar and this spot was chosen to utilize the calm waters of the Gulf of Kutch for the purpose of berthing of the huge crude oil tankers. To unload the crude from the oil tankers and to store the crude in the tanks on the shore, the company had proposed to lay pipelines through the sanctuary as well as national park areas situated along the coast. These protected areas are situated all along the coastal belt from Okha to Navlaki and forms the southern boundary of the Gulf of Kutch. This area stores the richest Marine life of the Country including the most exotic Coral Reefs. The pipeline to carry the crude oil from the tanker was to pass through these protected areas. So, the berthing of the huge oil tankers and the construction of the massive refinery on the shore and the pipelines running through the protested areas would therefore, necessarily endanger the flora and fauna within the protected areas, specially with the existing risk of oil leakage. Realizing the grave dangers posed by the industrial activities so close to the protected areas, especially the laying of the pipelines right through the areas, Jansangarsh Manch had filed a Public Interest Litigation in the year 1993 in the High Court of Gujarat. The said case, however, was rejected on the ground that the matter was premature and that the authorities would take proper care of the environmental laws.
In the month of August, 1997, however the Chief Wildlife Warden exercising powers under Section 29 of the Act, granted permission to the Reliance Petroleum Ltd. to lay their crude pipelines through the Sanctuary as well as National Park! The Jansangarsh Manch had once again approached the High Court by way of Public Interest Litigation challenging the powers of the Wildlife Warden to grant such permission. The matter, however, was rejected. The appeal before the Supreme Court was entertained to a limited extent, since before granting the permission, the Chief Wildlife Warden had not taken the prior sanction of the Gujarat Government. In fact, during pendency of the case before the Supreme Court, the Government of Gujarat accorded such a sanction and the Apex Court dismissed the appeal by observing that it would be open for the petitioner to challenge the approval by the Government.
In the second round of litigation before the High Court of Gujarat, the High Court of Gujarat did hold that the sanction had to be a prior sanction and not after the Chief Wildlife Warden takes a decision and therefore the sanction granted was illegal. The High Court however, did not prohibit the Reliance Petroleum from carrying out the installation of the pipeline on the ground that the company had invested a very large sum of money.
Emboldened by the fact that the permission granted to the Reliance Petroleum was not quashed, the Chief Wildlife Warden gave further permission to the Bharat Oman Refinery Ltd. (BORL) to lay yet another pipeline in the same area once again through the sanctuary and the national Park. Jansangarsh Manch had once again challenged the permission and the Division Bench of the High Court this time clearly held that the Chief Wildlife Warden had absolutely no power under Section 29 of the WP Act to grant permission for laying of crude pipeline or any other industrial activity. Other oil companies and Multi Nationals, who had earlier proposed to construct their refineries, ports etc. were directly affected by this judgement, as the authorities could no longer help them out. Several appeals were filed before the Supreme Court challenging judgement of the High Court and the by such Companies like, ESSAR Oil Ltd., Government of Gujarat, BORL, Poshitra Post Ltd. etc. The Supreme Court has stayed the operation of the judgement and order of the High Court and by way of interim order, permitted the Government of Gujarat to grant further permissions, subject to the outcome of the appeals before the Apex Court. The appeals are presently pending before the Apex Court.
The result of the above litigations would clearly show that the authorities like Government, Chief Wildlife Warden, who are entrusted with the job of protecting the Flora and Fauna are themselves bent upon violating the WP Act and now all hopes are pinned on the Apex Court to come to the aid of the Wild life. As outlined above, under no stretch of imagination, can it be said that industrial activities and much less, laying of pipelines to carry crude oils could have ever been envisaged to be permissible within a close domain like sanctuary. In fact, such a preposition itself is shocking. Yet, the authorities, by misreading the provisions of Section 29 are bending backwards to satisfy the major industrial houses without the slightest concern for the grave damage that such decisions would cause. Thus, while the Maharajas of the past shot down the wildlife, our democratically elected Government and its officials are now shooting down Wildlife Protection Act itself!
The original article can be found here
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