- (1.) Petitioner was running the business of Carver Ivory, popularly known as Mammoth Ivory under the license as issued by the State which license stood renewed from year to year. There are certain restraints on his business which have been provided under the Wild Life (Protection) Act. It is stated by him that because of certain amendments made in Ss. 5, 27, 33, 34, 35 and 37 vide Act No. 44 of 1991 in the aforesaid Act, his livelihood has been effected and exercising powers under S. 49 of the Amended Act, he has been informed vide Annexure-4 dated 23-12-1991 to the effect that the import of ivory has been banned and, therefore, the petitioner is restrained from dealing with ivory in any and whatsoever manner subsequent to 29-2-1992. The letter Annexure-4 has given a cause of action to the petitioner for challenging the amended sections of Act 44 of 1991. It is stated by the petitioner that the provisions of the amended law do not and cannot have effect of preventing the manufacture or dealings in ivory of Mammoth animals, which animal according to the petitioner had already become extinct as long as 17,000 years B.C. and is no more in existence in the Universe. The petitioner submits that the mammoth animal was and is an extinct but was a different and distinguished from Elephant of Indian and African Region. The petitioner has reproduced certain events of even 3000 years ago and of 3rd and 4th Century to show that ivory trade had flourished in India and was one of the export item to the west and is one of the best Indian arts which is an integral part of the National Culture and relate to the work of Indian Craftsmen for their livelihood. The petitioner has traced out the history of Wild Life Protection, stating there firstly the Animal Protection Act of 1912 was promulgated which merely concerned to prevent the killing of wild birds and animals and later on for a comprehensive and practical legislation to protect the Indian Wild Life, the present Wild Life (Protection) Act, 1972 was enacted with the statement of objects inter alia as under : "The rapid decline of Indian'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 outmoded but provided 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.) It is stated that the list of Scheduled animals which were to be protected did not contain the Indian Elephants (Elephas Maximum). The Parliament had further amended the Act of 1972 in the year 1986 and by incorporating S. 44 the ivory imported into India was licensed. Under Chapter V-A of the amended Act prohibition of trade or commerce in trophies, animal articles, etc. derived from certain animals was prescribed.
(3.) The petitioner states vide the latest amendment vide Act 44 of 1991, passed on 20-9-1991, the Parliament had inserted the amendment with the following statement of objects. The statement of Objects provide that the decline in population of African elephant, due to illegal trade of ivory as imported in Appendix-I of the Convention in October 1989, had to be curtailed and import of ivory would no longer be possible to meet the domestic trade. If the trade is allowed to continue, it is bound to lead the large scale poaching of Indian Elephants. Aims and objects of the Amended Act are read as under :- "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 due to illegal trade in ivory, have included this animal in Appendix-I of the convention in October 1989. Due to this change, the import and export of African ivory for commercial purposes has been prohibited. As a result, import of 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 imported ivory within the country is proposed to be banned after giving due opportunity to ivory traders to dispose of their existing stock.";