Indian
Handicrafts Emporium & Ors Vs. Union
of India & Ors [2003] Insc 419 (27 August 2003)
Cji,
Y.K. Sabharwal & S.B. Sinha.
W I T
H CIVIL APPEAL NOS.7534, 7535/1997 AND W.P. (C) No. 35/2003
S.B.
SINHA, J :
INTRODUCTORY
REMARKS:
Applicability
of the provisions of the Wild Life (Protection) Act, 1972 is in question in
this set of appeals which arise out of a common judgment and order dated
20.3.1997 passed by a Division Bench of the Delhi High Court. The appellants
herein are engaged in the business of manufacture and sale of articles relating
to art and craft manufactured from ivory. The appellants herein imported ivory
from African countries. They have manufactured certain articles out of the
same. It is not in dispute that the said import had legally been made as there
did not exist any restriction in that regard.
The
Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the said Act' for
the sake of brevity) was enacted to provide for the protection of wild animals,
birds and plants and for matters connected therewith or ancillary thereto or
incidental therewith.
Indian
elephant was brought within the purview of Schedule A of the Act on or about
5.10.1977. The Union of India also banned export of ivory in the said year.
Chapter
V of the said Act deals with trade or commerce in wild animals, animal articles
and trophies. By Act No. 28 of 1986 Chapter V-A was inserted therein whereby
and restrictions were imposed on trade or commerce in wild animals, cattle and
trophies. By Act No.44 of 1991, Section 49-C was inserted in Chapter V-A
whereby and where-under a total prohibition in trade of imported ivory was
imposed. The said Act was brought into force by the Government of India by
issuing a Notification dated 27.9.1991 with effect from 2.10.1991. Six months'
time had been granted to make the said Act operational, that is to say, until
2.4.1992. Within the aforementioned period, the trader, thus, could dispose of
his stock.
The
appellants herein filed writ petitions before the Delhi High Court, inter alia,
questioning the constitutionality and validity of the 1991 Amendment Act
prohibiting trade in the imported ivory on several grounds. The High Court by
an interim order dated 26.3.1992 stayed the operation of the Act. The said
interim order was, however, vacated on 22.5.1992. The appellants herein did not
take any step to dispose of the imported ivory held in stock by them even
during the said period.
By
reason of the impugned judgment the High Court upheld the vires of the said
Act. Against the said judgment the appellants are in appeal before us.
SUBMISSIONS
OF THE APPELLANTS
Mr.
G.L. Sanghi, the learned senior counsel appearing for the appellants, would
urge that the impugned provisions of the Act are violative of Article 19(1)(g)
of the Constitution of India inasmuch as thereby the right of the appellant to
trade in ivory has unjustly been prohibited. The learned counsel would submit
that restrictions imposed by reason of the said Act being excessive, the same
must be held to be confiscatory in nature. The Amending Act is also ultra vires
Article 14 of the Constitution of India, being irrational and arbitrary. The
learned counsel has drawn our attention to the fact that the population of
elephants has gone up in several countries, e.g., Botswana, South Africa,
Namibia and Zimbabwe, and these countries have been permitted by Convention on
International Trade in Endangered species of Wild Fauna and Flora (for short
'CITES') to deal in ivory subject of course to certain restrictions. Our
attention has further been drawn to the fact that ivory which was placed in
Appendix-I of the CITES has now been placed in Appendix-II thereof. It was also
submitted that ivory collected from dead animals should also be permitted to be
dealt in.
It was
urged that even assuming that the Amending Act of 1991 was a valid piece of
legislation, in the year 1991 having regard to the subsequent event viz.
increase in the population of Elephant worldwide the same may be held to be
ultra vires Article 14 of the Constitution of India. Strong reliance in this
behalf has been placed on Motor General Traders and Another vs. State of Andhra
Pradesh and Others [(1984) 1 SCC 222], Rattan Arya and Others vs. State of
Tamil Nadu and Another [(1986) 3 SCC 385] and Synthetics and Chemicals Ltd. and
Others vs. State of U.P. and Others [(1990) 1 SCC 109]. The learned counsel
would submit that in any event the Amending Act being vague in nature, the same
should be held ultra vires Article 14 of the Constitution of India. Reliance in
this connection has been placed on Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and
Another vs. Union of India and Others [(1960) 2 SCR 671].
Mr. Sanghi,
would further submit that the ivory which has legally been imported by the
appellants herein prior to coming into force of the 1991 Amendment Act, having
not vested in the Government, the appellants should be held to be at liberty to
deal therewith.
According
to the learned counsel ivory having lawfully been imported and the appellants
having, thus, been in lawful possession thereof, there could be no reason as to
why they should be deprived of the possession therefrom, particularly having
regard to the provisions of sub-section (3) of Section 49-C thereof. It was
urged that once such a declaration is filed in terms of sub-section (1) of
Section 49-C, the Chief Wild Life Warden should be held to be statutorily
obligated to give to the appellants a certificate of ownership in respect of
the entire stock-in-trade, entitling them to transfer the same to any person whether
by way of gift, sale or otherwise, as is provided under sub-section (6)
thereof. The learned counsel would argue that there does not exist any
provision in the said Act for payment of compensation and as the property vests
in the Government only on certain conditions, the appellants herein cannot be
dispossessed therefrom without any authority of law and in that view of the
matter, the impugned provisions must be held to be ultra vires Article 300A of
the Constitution. Sub-section (7)of Section 49-C, Mr. Sanghi would submit, must
be construed so as to uphold the right of property of the appellants in the
property as otherwise the same would be rendered unconstitutional.
According
to the learned counsel, the Parliament amended the Act by way of Act 16 of
2003, in terms whereof Section 40A was inserted enabling the holders of stock
of ivory to file a fresh declaration. The learned counsel would contend that
having regard to the fact that the appellants are prohibited from carrying on
any trade or business in ivory, for all intent and purport, they should be held
to be covered by the aforementioned provisions. In any event, the learned
counsel would contend that the guidelines issued by the respondents must be
held to be ultra vires Section 63 of the Act as also the rules framed thereunder,
and, thus, the Central Government cannot be said to have any jurisdiction to
direct that out of the seized articles, only one item shall be released and the
rest would be destroyed. Such a power conferred upon the statutory authority
being wholly arbitrary as thereby unbriddled power has been conferred, the same
must also be held ultra vires Article 14 of the Constitution. Mr. Sanghi would
urge that the statute cannot be construed only with reference to its objective
sought to be achieved without considering the constitutionality thereof. Strong
reliance in this behalf has been placed on Rustom Cavasjee Cooper vs. Union of
India [(1970) 3 SCR 530].
The
learned counsel would further submit that the High Court wrongly applied the
principle of 'res extra commercium' in the instant case which is per se
inapplicable.
Mr. Malhotra
and Mr. Panjwani, learned counsel appearing on behalf of the respondents, on
the other hand, would submit that having regard the purpose and object, the
said Act seeks to achieve, there cannot be any doubt whatsoever that the
Parliament has the requisite legislative competence. By reason of the
provisions of the Amending Act 28 of 1986, trade in various articles had been
prohibited.
Imported
ivory was, however, brought within the purview of Act 44 of 1991. The learned
counsel would contend that a bare perusal of the provisions of the 1986 and
1991 Amending Acts would clearly go to show that the intention of the
Parliament was that those who carry on trade or business in the imported
African ivory should dispose of the same within a period of six months i.e.
before coming into force thereof whereafter their possession would become
illegal, subject, however, to the grant of certificate of ownership by the Chief
Wild Life Warden in terms of sub-section (3) of Section 49-C of the said Act.
It was submitted that a trader cannot claim the entire imported ivory or the
articles manufactured therefrom to be necessary for his bona fide personal use
and in that view of the matter the Chief Wild Life Warden has been conferred
with a discretionary jurisdiction in relation thereto and only such articles in
respect whereof the certificate of ownership is issued, can be subject matter
of the transfer in terms of sub-section (6) of Section 49-C of the Act. Any
article in respect whereof no certificate of ownership has been granted, would
fall within the mischief of sub-section (7) of Section 49-C. Such a provision,
it was urged, must be held to be reasonable as a trader was given sufficient
time to dispose of all the articles in his possession.
Drawing
our attention to the provision of the Wild Life (Protection) Act, 1972, Mr. Malhotra
would submit that the trade and possession of ivory having been totally
prohibited. Even non-traders are not entitled to possess the same in terms of
Section 40(2A) of the Act. The learned counsel would further submit that it
would not be correct to contend that legislative policy has changed in India
inasmuch from the minutes of meeting of CITES, it would appear that India and
Kenya differed with the proposal of five African countries that they be
permitted to trade in ivory for any purpose whatsoever.
Our
attention was further drawn to the fact that ivory still is in Appendix-I so
far as India is concerned.
STATUTORY
PROVISIONS:
The
said Act was enacted to provide for the protection of wild animals, birds and
plants and for matters connected therewith or ancillary thereto or incidental
therewith. Section 2 thereof contains the interpretative provisions. Some of
the relevant provisions are :
2.
Definitions.--In this Act, unless the context otherwise requires,-- [(1)
"animal" includes mammals, birds, reptiles, amphibians, fish, other
chordates and invertebrates and also includes their young and eggs;] (2)
"animal article" means 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];
(11)
"dealer" in relation to any captive animal, animal article, trophy,
uncured trophy, meat or specified plant, means a person, who carries on the
business of buying or selling any such animal or article, and includes a person
who undertakes business in any single transaction;
(14)
"Government property" means any property referred to in section 39;
[or section 17H;] (36) "wild animal" means any animal specified in
Schedules I to IV and found wild in nature;" Chapter V of the Act deals
with trade or commerce in wild animals, animal articles and trophies.
Section
39(1)(c) occurring in Chapter V of the said Act provides that 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 provides for declaration. Sub-section (1) whereof is in the following terms
:
40.
Declarations.—
(1)
Every person having at the commencement of this Act the control, custody or
possession of any captive animal specified in Schedule I or Part II of Schedule
II, [or animal article, trophy or uncured trophy] derived from such animal or
salted or dried skins of such animal or the musk of a musk deer or the horn of
a rhinoceros, shall, within thirty days from the commencement of this Act,
declare to the Chief Wild Life Warden or the authorised officer the number and
description of the animal, or article of the foregoing description under his
control, custody or possession and the place where such animal or article is
kept".
Sub-section
(2) of Section 40 prohibits acquisition, receiving, keeping in his control,
custody or possession, sell, offer for sale or otherwise transfer or transport
any animals specified in Schedule I or Part II of Schedule II and allied things
by any person whatsoever.
Sub-sections
(2A) and (2B) which have been inserted by Act 16 of 2003 read thus :
"(2A)
No person other than a person having a certificate of ownership, shall, after
the commencement of the Wild Life (Protection) Amendment Act, 2002 acquire,
receive, keep in his control, custody or possession any captive animal, animal
article, trophy or uncured trophy specified in Schedule I or Part II of
Schedule II, except by way of inheritance.
(2B)
Every person inheriting any captive animal, animal article, trophy or uncured
trophy under sub-section (2A) shall, within ninety days of such inheritance
make a declaration to the Chief Wild Life Warden or the authorised officer and
the provisions of sections 41 and 42 shall apply as if the declaration had been
made under sub-section (1) of section 40:
Provided
that nothing in sub-sections (2A) and (2B) shall apply to the live elephant.]
(3) Nothing in sub-section (1) or sub-section (2) shall apply to a recognised
zoo subject to the provisions of section 381 or to a public museum.
(4)
The State Government may, by notification, require any person to declare to the
Chief Wild Life Warden or the authorised officer [any animal or animal article]
or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted
or dried skins derived from an animal specified in Schedule I or Part II of
Schedule II in his control, custody or possession in such form, in such manner,
and within such time, as may be prescribed." Section 40A provides for
immunity in certain cases which is in the following terms :
"40A.
Immunity in certain cases.-
(1)
Notwithstanding anything contained in sub-sections (2) and (4) of section 40 of
this Act, the Central Government may, by notification, require any person to
declare to the Chief Wild Life Warden or the authorised officer, any captive
animal, animal article, trophy or uncured trophy derived from animals specified
in Schedule I or Part II of Schedule II in his control, custody or possession,
in respect of which no declaration had been made under sub-section (1) or
sub-section (4) of section 40, in such form, in such manner and within such
time as may be prescribed.
(2)
Any action taken or purported to be taken for violation of section 40 of this
Act at any time before the commencement of the Wild Life (Protection) Amendment
Act, 2002 shall not be proceeded with and all pending proceedings shall stand
abated.
(3) Any
captive animal, animal article, trophy or uncured trophy declared under
sub-section (1) shall be dealt with in such manner and subject to such
conditions as may be prescribed." Section 41 deals with inquiry and
preparation of inventories which is in the following terms :
41.
Inquiry and preparation of inventories.-- (1) On receipt of a declaration made
under section 40, the Chief Wild Life Warden or the authorised officer may,
after such notice, in such manner and at such time, as may be prescribed,--
(a) enter
upon the premises of a person referred to in section 40;
(b)
make inquiries and prepare inventories of animal articles, trophies, uncured
trophies, salted and dried skins and captive animals specified in Schedule I
and Part II of Schedule II and found thereon; and
(c) affix
upon the animals, animal articles, trophies or uncured trophies identification
marks in such manner as may be prescribed.
(2) No
person shall obliterate or counterfeit any identification mark referred to in
this Chapter.
Chapter
V-A was brought into the statute book by Act No.28 of 1986. "Scheduled
animal" has been defined in clause (a) of Section 49-A in the following terms
:
"(a)
'scheduled animal' means an animal specified for the time being in Schedule I
or Part II of Schedule II;" Clause (c) of Section 49-A defines 'specified
date' which in relation to ivory imported into India or an article made therefrom
would mean the date of expiry of six months from the commencement of Wild Life
(Protection) Amendment Act, 1991. The said provision was inserted by Act No. 44
of 1991.
Section
49-B provides that subject to the other provisions of the said Section, on and
after the specified date, no person shall commence or carry on the business as
a manufacturer of, or dealer in, scheduled animal article, or a dealer in ivory
imported into India or articles made therefrom or a manufacturer of such
articles.
Section
49-C of the said Act reads as under :
"49-C.
Declaration by dealers. –
(1)
Every person carrying on the business or occupation referred to in sub-section
(1) of Section 49-B shall, within thirty days from the specified date, declare
to the Chief Wild Life Warden or the authorised officer, -
(a) his
stocks, if any, as at the end of the specified date of –
(i)
scheduled animal articles;
(ii)
scheduled animals and parts thereof;
(iii) trophies
and uncured trophies derived from scheduled animals;
(iv) captive
animals, being scheduled animals;
(v)
ivory imported into India or articles made therefrom;
(b)the
place or places at which the stocks mentioned in the declaration are kept; and
(c)the description of such items, if any, of the stocks mentioned in the
declaration which he desires to retain with himself for his bona fide personal
use.
(2) On
receipt of a declaration under sub- section (1), the Chief Wild Life Warden or
the authorised officer may take all or any of the measures specified in Section
41 and for this purpose, the provisions of Section 41 shall, so far as may be,
apply.
(3)
Where, in a declaration made under sub- section (1), the person making the
declaration expresses his desire to retain with himself any of the items of the
stocks specified in the declaration for his bona fide personal use, the Chief
Wild Life Warden, with the prior approval of the Director, may, if he is
satisfied that the person is in lawful possession of such items, issue
certificates of ownership in favour of such person with respect to all, or as
the case may be, such of the items as in the opinion of the Chief Wild Life
Warden, are required for the bona fide personal use of such person and affix
upon such items identification marks in such manner as may be prescribed :
Provided
that no such items shall be kept in any commercial premises.
(4) No
person shall obliterate or counterfeit any identification mark referred to in
sub- section (3).
(5) An
appeal shall lie against any refusal to grant certificate of ownership under
sub- section (3) and the provisions of sub-sections (2), (3) and (4) of Section
46 shall, so far as may be, apply in relation to appeals under this sub-section.
(6)Where
a person who has been issued a certificate of ownership under sub-section (3)
in respect of any item, -
(a) transfers
such items to any person, whether by way of gift, sale or otherwise, or
(b)
transfers or transports from the State in which he resides to another State any
such item, he shall, within thirty days of such transfer or transport, report
the transfer or transport to the Chief Wild Life Warden or the authorised
officer within whose jurisdiction the transfer or transport is effected.
(7) No
person, other than a person who has been issued a certificate of ownership
under sub- section (3) shall, on and after the specified date, keep under his
control, sell or offer for sale or transfer to any person any scheduled animal,
or a scheduled animal article or ivory imported into India or any article made therefrom."
Section 50 deals with power of entry, search, arrest and detention.
Section
51 deals with penalties. The relevant portion of Section 51 is as follows :
51.
Penalties.—
(1)
Any person who [contravenes any provision of this Act [(except Chapter VA and
section 38J)]] or any rule or order made thereunder or who commits a breach of
any of the conditions of any licence or permit granted under this Act, shall be
guilty of an offence against this Act, and shall, on conviction, be punishable
with imprisonment for a term which may extend to [three years] or with fine
which may extend to [twenty-five thousand rupees] or with both:
Provided
that where the offence committed is in relation to any animal specified in
Schedule I or Part II of Schedule II or meat of any such animal or animal
article, trophy or uncured trophy derived from such animal or where the offence
relates to hunting in a sanctuary or a National Park or altering the boundaries
of a sanctuary or a National Park, such offence shall be punishable with
imprisonment for a term which shall not be less than three years but may extend
to seven years and also with fine which shall not be less than ten thousand
rupees:
Provided
further that in the case of a second or subsequent offence of the nature
mentioned in this sub-section, the term of the imprisonment shall not be less
than three years but may extend to seven years and also with fine which shall
not be less than twenty-five thousand rupees.
(1A) Any
person who contravenes any provisions of Chapter VA, shall be punishable with
imprisonment for a term which shall not be less than [three years] but which
may extend to seven years and also with fine which shall not be less than [ten
thousand rupees].]
(1B) Any
person who contravenes the provisions of section 38J shall be punishable with
imprisonment for a term which may extend to six months, or with fine which may
extend to two thousand rupees, or with both:
Provided
that in the case of a second or subsequent offence the term of imprisonment may
extend to one year, or with fine which may extend to five thousand rupees.
Section
63 empowers the Central Government to makes rules.
INTERPRETATION
OF THE ACT:
The
provisions of the said Act must be construed having regard to the purport and
object it seeks to achieve. Not only inter alia wild animal is to be protected
but all other steps which are necessary therefor so as to ensure ecological and
environmental security of the country must be enforced. The interpretation
provisions as regard 'wild animal' employs the word 'includes' and, thus, must
be assigned a broad meaning. The Amending Acts must be viewed in that
perspective.
Protection
and conservation of wild animal is essential for very existence of human life.
A trade in wild animal which is sought to be prohibited with an object to
oversee survival of human beings must be given its full effect. The CITES was
formulated keeping in view the aforementioned policy. India is a member State of the Convention. It is a
signatory to the other treaties and conventions in this behalf.
Appendix
I of CITES which came into effect from 18th January, 1990 provided for complete
prohibition of internal and trans border trade in ivory. The Parliament enacted
the Amendment Act (Act No. 44 of 1991) with a view to save the species of
Indian Elephant and to give effect to the said international treaties. Prior
thereto, that is 1989, the African Elephant was proposed to be brought in
Appendix I of CITES.
In the
Press Release of October, 2002, the following appears:
"Another
high-profile item is the African elephant. After an eight-year ban on ivory
sales, in 1997 CITES agreed to allow three African countries - Botswana,
Namibia and Zimbabwe - to make one time sales from their existing legal stocks
of raw ivory. The ivory - which weighed 49,574 kg. and represented 5,446 tusks
- was sold to Japan in 1999 and earned some USD5 million. The funds were used
for elephant conservation activities in the three range states.
In the
year 2002, the three countries plus South Africa and Zambia are proposing
one-off sales of existing ivory stocks to be followed later by annual quotas.
The proposals are for a first sale of 20,000 kg. and an annual quota of 4,000 kg.
for Botswana, 10,000 Kg. and 2,000 kg. respectively for Namibia, 30,000 kg. and
2,000 kg. for South Africa and 10,000 kg. and 5,000 kg. for Zimbabwe. Zambia is
proposing a one-off sale of 17,000 kg. A proposal from India and Kenya, on the
other hand, argues that further ivory sales from African elephants should be
clearly prohibited as a precautionary measure for reducing future threats to
the elephant.
Meanwhile,
Japan is seeking to open up trade in most northern hemisphere populations of minke
whale and a Pacific population of Bryde's whale. Its proposals stress the use
of national legislation and DNA identification of individual whales to monitor
catches and trade.
Similar
proposals were presented without success at the most recent CITES conferences
in 1997 and 2000. This year's debate is likely to involve issues related to
science, sustainable use, possible enforcement problems, and the international
Whaling Commission's moratorium on commercial whaling." Further, in the
Press Release of 12th November, 2002, the following appears:
"CITES
has conditionally accepted proposals from Botswana, Namibia and South Africa
that they be allowed to made one - off sales of 20, 10 and 30 tonnes,
respectively, of ivory. The ivory is held in existing legal stocks that have
been collected from elephants that dies of natural causes or as a result of
government - regulated problem - animal control.
Similar
proposals from Zambia and Zimbabwe for 17 and 10 tonnes, respectively, were not
accepted. Today's decisions by CITES must still be formally adopted by the full
Plenary on Friday, when the current two - week conference ends." The rival
contention as regard the interpretation and application of the said Act must be
considered having regard to the aforementioned principles as also the
international treaties and developments which took place subsequently.
WHETHER
THE AMENDING ACT 44 OF 1991 IS ULTRA VIRES ARTICLES 19(1)(g)
AND 14
OF THE CONSTITUTION OF INDIA Appellant No. 1 herein appeared to have imported
ivory from 1971 to 1986. It was in possession of 755.930 Kgs. Of solid Ivory
Articles and 10.050 Kgs. with metal.
Dealing
in imported ivory so long the law permits may be a fundamental right but if the
statute prohibits it, it must be held to be a law within the meaning of Clause
(6) of Article 19 of the Constitution of India in terms whereof reasonable
restriction is imposed. A trade which is dangerous to ecology may be regulated
or totally prohibited. For the aforementioned purpose, regulation would include
prohibition.
What
would be a reasonable restriction which can be imposed in public interest is a
matter which is no longer res integra.
2 SCR
375, this Court while interpreting the word 'restrictions' held as follows:
"It
is reasonable to think that the makers of the Constitution considered the word
"restriction" to be sufficiently wide to save laws
"inconsistent" with Art. 19(1), or "taking away the rights"
conferred by the Article, provided this inconsistency or taking away was
reasonable in the interests of the different matters mentioned in the clause.
There can be no doubt therefore that they intended the word
"restriction" to include cases of "prohibition" also. The
contention that a law prohibiting the exercise of a fundamental right is in no
case saved, cannot therefore be accepted." 2 SCR 392) In Synthetics and
Chemicals Ltd. (supra), this Court held:
"76.
Balsara case (1951 SCR 682 : AIR 1951 SC 318 : 52 Cri LJ 1361) dealt with the
question of reasonable restriction on medicinal and toilet preparations. In
fact, it can safely be said that it impliedly and sub-silentio clearly held
that medicinal and toilet preparations would not fall within the exclusive
privilege of the States. If they did there was no question of striking down of
Section 12(c) and (d) and Section 13(b) of the Bombay Prohibition Act, 1949 as
unreasonable under Article 19(1)(f) of the Constitution because total
prohibition of the same would be permissible.
In K.
K. Narula case (K. K. Narula v. State of J & K, (1967) 3 SCR 50 : AIR 1967
SC 1368) it was held that there was right to do business even in potable
liquor. It was not necessary to say whether it is good law or not. But this
must be held that the reasoning therein would apply with greater force to
industrial alcohol." of India and Others [AIR 1979 SC 1628 : 1979 (3) SCR
1014], this Court held:
"...We
fail to see how the plea of contravention of Article 19(1)(g) or Article 14 can
arise in these cases. The Government's power to sell the exclusive privilege
set out in Section 22 was not denied. It was also not disputed that these
privileges could be sold by public auction. Public auctions are held to get the
best possible price. Once these aspects are recognised, there appears to be no
basis for contending that the owner of the privileges in question who had
offered to sell them cannot decline to accept the highest bid if he thinks that
the price offered is inadequate.
It
will be seen from these observations that the validity of clause (6) of the
Order dated January 6, 1971 was upheld by this Court on the ground that having
regard to the object of holding the auction, namely, to raise revenue, the
Government was entitled to reject even the highest bid, if it thought that the
price offered was inadequate. The Government was bound to accept the tender of
the person who offered the highest amount and if the Government rejected all
the bids made at the auction, it did not involve any violation of Article 14 of
19(1)(g). This is a self-evident proposition and we do not see how it can be of
any assistance to the respondents." Commissioner [AIR 1975 SC 1121 :
(1975) 3 SCR 254], this Court held:
"...The
state, under its regulatory powers, has the right to prohibit absolutely every
form of activity in relation to intoxicants - its manufacture, storage, export,
import, sale and possession. In all their manifestations, these rights are
vested in the State and indeed without such vesting there can be no effective
regulation of various forms of activities in relation to intoxicants. In
American Jurisprudence", Volume 30 it is stated that while engaging in
liquor traffic is not inherently unlawful, nevertheless it is a privilege and
not a right, subject to governmental control (page 538). This power of control
is an incident of the society's right to self-protection and it rests upon the
right of the state to care for the health, morals and welfare of the people.
Liquor traffic is a source of pauperism and crime (pp. 539, 540, 541)." In
order to determine whether total prohibition would be reasonable the Court has
to balance the direct impact on the fundamental right of the citizens thereby
against the greater public or social interest sought to be ensured.
Implementation of Directive Principles contained in Part IV is within the
expression of restrictions in the interest of the general public.
Jan
Mohammed Usmanbhai and Another [AIR 1986 SC 1205 : (1986) 2 SCR 700], this
court held:
"15.
Before proceeding to deal with the points urged on behalf of the appellants it
will be appropriate to refer to the well-established principles in the
construction of the constitutional provisions. When the validity of a law
placing restriction on the exercise of a fundamental right in Article 19(1)(g)
is challenged, the onus of proving to the satisfaction of the court that the
restriction is reasonable lies upon the State. If the law requires that an act
which is inherently dangerous, noxious or injurious to the public interest,
health or safety or is likely to prove a nuisance to the community shall be
done under a permit or a licence of an executive authority, it is not per se
unreasonable and no person may claim a licence or a permit to do that act as of
right. Where the law providing for grant of a licence or permit confers a
discretion upon an administrative authority regulated by rules or principles,
express or implied, and exercisable in consonance with the rules of natural
justice, it will be presumed to impose a reasonable restriction. Where,
however, power is entrusted to an administrative agency to grant or withhold a
permit or licence in its uncontrolled discretion the law ex facie infringes the
fundamental right under Article 19(1)(g).
Imposition
of restriction on the exercise of a fundamental right may be in the form of
control or prohibition.
"20.
The tests of reasonableness have to be viewed in the context of the issues
which faced the legislature. In the construction of such laws and in judging
their validity, courts must approach the problem from the point of view of
furthering the social interest which it is the purpose of the legislation to
promote. They are not in these matters functioning in vacuo but as part of
society which is trying, by the enacted law, to solve its problems and
furthering the moral and material progress of the community as a whole. (See Jyoti
Prasad v. Union Territory of Delhi ((1962) 2 SCR 125 : AIR 1961 SC
1602). If the expression 'in the interest of general public' is of wide import
comprising public order, public security and public morals, it cannot be said
that the standing orders closing the slaughter houses on seven days is not in
the interest of general public." The primal object for which dealing in
ivory imported from Africa had been prohibited was to see that while holding
the stock, the people may not deal in Indian ivory which may be procured from
illegal killings of Indian Elephant. The Amending Act indirectly seeks to
protect Indian Elephant and to arrest their further depletion.
It may
be necessary to go into the history of legislation leading to enactment of the
said Act for the purpose of undertaking how small restrictions were replaced by
and by with bigger ones and ultimately to a total prohibition. We may notice
that the first legislation for protection of birds was enacted in 1887 known as
the Wild Birds Protection act, 1887 (Act No. X of 1887) which was followed by
the Wild Birds and Animals (Protection) Act, 1912. As the object sought to be
achieved by the said Acts was not fulfilled, the same was amended in the year
1935 in terms of which the Provincial Government could declare any area to be a
sanctuary for the birds or animals and their killing was made unlawful. As wild
life was a State subject of legislation, in the year 1972 several States
adopted resolutions in terms of Article 252 of the Constitution of India
empowering the Parliament to pass the necessary legislation.
The
provisions contained in the 1972 Act were found to be inadequate necessitating
extensive amendment. One of the Objects and Reasons for the said Act was to see
that the wild animals or articles and derivates thereof may not be smuggled out
to meet the demand in foreign markets as there is hardly any market within the
country therefor. A clandestine trade abetted by illegal practices of poaching
which had taken a heavy toll of our wild animals and birds were sought to be
restrained. It was pointed out that the stocks declared by the traders at the
commencement of the Wild Life (Protection) Act, 1972 are used as a cover for
such illegal trade.
The
Parliament in its wisdom thought to amend the said Act further in the year 1991
in terms whereof the following changes were made:
"(i)
It substituted new section for sections 9, 29 and 55 of the Principal Act;
(ii)
It omitted sections 10, and 13 to 17 of the Principal Act;
(iii)
It inserted two new chapters, namely, Chapter IIIA and Chapter IVA, in the
Principal Act; and
(iv)
It inserted new Schedule, namely, Schedule VI, in the Principal Act." At
this juncture, we may usefully take notice of the Statement of Objects and
Reasons of the said Act.
"Poaching
of wild animals and illegal trade of products derived therefrom, together with
degradation and depletion of habitats have seriously affected wildlife
population. In order to check this trend, it is proposed to prohibit hunting of
all wild animals (other than vermin). However, hunting of wild animals in
exceptional circumstances, particularly for the purpose of protection of life
and property and for education, research, scientific management and captive
breeding, would continue. It is being made mandatory for every transporter not
to transport any wild life products without proper permission. The penalties
for various offences are proposed to be suitably enhanced to make them
deterrent.
The
Central Government Officers as well as individuals now can also file complaints
in the courts for offences under the Act. It is also proposed to provide for
appointment of honorary Wild Life Wardens and payment of rewards to persons
helping in apprehension of offenders.
To
curb large scale mortalities in wild animals due to communicable diseases, it
is proposed to make provisions for compulsory immunisation of livestock in and
around National Parks and Sanctuaries.
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 (sic) 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 lead to large scale poaching of Indian
elephants. With this point in view, the trade in African ivory within the
country is proposed to be banned after giving due opportunity to ivory traders
to dispose off their existing stock." The Parliament while enacting the
said Amending Act took note of serious dimensions of poaching of wild animals
and illegal trade giving exponential rise of wild animals and their products.
The Hon'ble
Minister of State of the Ministry of Environment and Forest in the House stated:
"Population
of Indian elephants, particularly in South India, are under serious threat by ivory poachers. Although the trade in
Indian ivory was banned in 1986, the trade in imported ivory gives an
opportunity to unscrupulous ivory traders to legalise poached ivory in the name
of imported ivory. With this point in view, the trade in African ivory is
proposed to be banned after giving due opportunity to ivory traders to dispose
of their existing stocks." During pendency of these matters, as noticed
hereinbefore, the Parliament enacted the Wild Life (Protection) Amendment Act,
2002 (Act No. 16 of 2003) which came into force with effect from 1st April, 2003.
By
reason of the Amending Act of 2003, the possession of an ivory whether by a
trader or a person is completely banned.
There
cannot be any doubt whatsoever that a law which was at one point of time was
constitutional may be rendered unconstitutional because of passage of time. We
may note that apart from the decisions cited by Mr. Sanghi, recently a similar
view has been taken in Kapila In this case, however, we are faced with a
different situation.
We are
concerned with the reason and object for which the amendments have to be made.
We must take into consideration the text and context of the amending Acts and
the circumstances in which they had to be brought about.
The
provisions of the statute are also required to be considered keeping in view
Article 48-A and Article 51A(g) of the Constitution of India which are in the
following terms:
"48-A.
Protection and improvement of environment and safeguarding of forests and wild
life.-- The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country."
"51-A.
Fundamental duties. -- It shall be the duty of every citizen of India -- ... ... ... ... ... ... ...
(g) to
protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creatures;" We cannot
shut our eyes to the statements made in Article 48-A of the Constitution of
India which enjoins upon the State to protect and improve the environment and
to safeguard the forests and wild life of the country. What is destructive of
environment, forest and wild life, thus, being contrary to the Directive
Principles of the State Policy which is fundamental in the governance of the
country must be given its full effect. Similarly, the principles of Chapter IVA
must also be given its full effect. Clause (g) of Article 51A requires every
citizen to protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living creatures. The
amendments have to be carried out keeping in view the aforementioned
provisions.
It is,
therefore, difficult to accept the contention of Mr. Sanghi that protection and
preservation of wild life would not be in public interest and/ or cannot be
extended to imported ivory. Wild Life forms part of our cultural heritage.
Animals play a vital role in maintaining ecological balance. The amendments
have been brought for the purpose of saving the endangered species from
extinction as also for arresting depletion in their numbers caused by callous
exploitation thereof.
In
D.D. Basu's Commentary on the Constitution of India (Sixth Edition, Volume C)
at page 45-46, the law has been summarized in the following manner:
"It
is now settled that no inflexible answer to this question is possible, and that
it is the nature of the business or property which is an important element in
determining how far the restriction may reasonably go:
(A) In
the case of inherently dangerous or noxious trades, such as production or
trading in liquors or cultivation of narcotic plants, or trafficking in women,
it would be a 'reasonable restriction' to prohibit the trade or business
altogether.
(B)
Where the trade or business is not inherently bad, as in the preceding cases,
it must be shown by placing materials before the Court that prohibition of
private enterprise in the particular business was essential in the interests of
public welfare. Thus - In order to prevent speculative dealings in 'essential
commodities' (such as cotton), during a period of emergency, the State may
impose a temporary prohibition of all normal trading on such commodities. In
the later case Supreme Court has sustained even a permanent law leading to the
elimination of middle-men from the business in essential commodities in order
to ensure the supply of such goods to the consumers at a minimum price."
The Amending Acts satisfy also the strict scrutiny test.
The
stand of the State that by reason of sale of ivory by the dealers, poaching and
killing of elephants would be encouraged, cannot be said to be irrational. Mr. Sanghi,
as noticed hereinbefore, has drawn our attention to the changes sought to be
effected in CITES at the instance of Botswana, South Africa, Namibia and Zimbabwe. The question as to whether a
reasonable restriction would become unreasonable and vice-versa would depend
upon the fact situation obtaining in each case. In the year 1972 when the said
Act was enacted there might not have been any necessity to preserve the
elephant as also ivory. The species might not have been on the brink of
extinction. The Objects and Reasons set out for brining in amendments in the
said Acts in the years 1986, 1991 and 2003 clearly bring into fore the
necessity to take more and more stringent measures so as to put checks on
poaching and illegal trade in ivory. Experience shows that poaching may be
difficult to be completely checked. Preventive measures as regard poaching
leading to killing of elephants for the purpose of extraction of their tusks is
a difficult task to achieve and, thus, the Parliament must have thought it expedient
to put a complete ban in trade in ivory to meet the requirement of the country.
India being a sovereign country is not
obligated to make law only in terms of CITES; it may impose stricter
restrictions having regard to local needs.
37] this
Court speaking through the Hon'ble Chief Justice of India held:
"Furthermore,
India being a signatory to the
Declaration on the Right to Development adopted by the World Conference on
Human Rights and Article 18 of the United Nations Covenant on Civil and Political
Rights, 1966, the impugned provision may be judged on the basis thereof."
Referring to Article 1 of the Declaration on the Right to Development and
Article 18 of the United Nations Covenant on Civil and of Bihar [JT 2003 (5) SC
1] observed that the provisions of law must be judged keeping in view the
international treaties and conventions stating:
"It
is trite that having regard to Article 13(1) of the Constitution, the
constitutionality of the impugned legislation is required to be considered on
the basis of laws existing on 26th January, 1950, but while doing so the court
is not precluded from taking into consideration the subsequent events which
have taken place thereafter. It is further trite that that the law although may
be constitutional when enacted but with passage of time the same may be held to
be unconstitutional in view of the changed situation.
Justice
Cardoze said :
"The
law has its epochs of ebb and flow, the flood tides are on us.
The
old order may change yielding place to new; but the transition is never an easy
process".
Albert
Campus stated :
"The
wheel turns, history changes".
Stability
and change are the two sides of the same law-coin. In their pure form they are
antagonistic poles; without stability the law becomes not a chart of conduct,
but a gare of chance: with only stability the law is as the still waters in
which there is only stagnation and death." Although in that case Section
118 of the Indian Succession Act was declared unconstitutional but we are of
opinion that legal principles enunciated therein will have to be applied for
the purpose of judging the constitutionality of impugned provisions keeping in
view the subsequent changes.
Submission
of Mr. Sanghi to the effect that the Amending Acts provide for arbitrary unguided
and unbridled power is stated to be rejected. The submission of learned counsel
was made on the premise that after ban was imposed on trade in ivory, all
traders become non- traders and, thus, traders and non-traders could not have
been treated differently. When a trade is prohibited as has sought to be done
by reason of the 1991 Amendment Act by inserting Chapter VA, the matters incidental thereto or
connected therewith must be dealt with accordingly. For all intent and purport
the statute would treat the traders on a different footing than non-traders.
They form a different and distinct class.
The
appellants used to trade in ivory stands admitted. They, thus, would come
within the purview of the definition of the trader also is undisputable. The
manner in which despite legal ban on trade a person may not take recourse to
illegal trading is a matter which squarely falls within the purview of the
legislative competence. It is now well-settled that the Parliament can not only
enact a law for avoidance or evasion of commission of an illegal trade but also
may make law to see that the law is not evaded by taking recourse to
machination or camouflage. The loopholes, if any, in such matters can and
should be plugged. "Means Affecting Means" principle as adumbrated
the point. Both substantial and procedural provisions can be made to make a law
in furtherance of the object for which the Act has been enacted and to see that
what is sought to be prohibited directly may not be achieved by the traders
indirectly.
For
the purpose of Chapter VA the appellants remained traders despite the fact that they have been
prohibited from carrying on any business. How after imposing the ban, stock in
trade is to be dealt with is again a matter which can be dealt with by the Legislature.
It has the requisite competence therefor. Furthermore, it is now idle to
contend having regard to the provisions contained in Section 40(2A) of the Act
that the traders have been discriminated with vis-à-vis the non-traders.
Traders are class by themselves and as such no question of any discrimination
arises. The classification is well-defined and well-perceptible. Traders and
non-traders constitute two different classes and the classification is founded
on an intelligible differentia clearly distinguishing one from the other.
A
machinery must be so construed as to effectuate the liability imposed by the
charging section and to make the machinery workable - ut res magis valeat quam pereat.
(See D. Saibaba & Bar Council of India and Anr. reported in JT 2003 (4) SC
435 and Welfare Assocn. A.R.P. SCALE 288) Submission of Mr. Sanghi that the
definition of wild animal is vague cannot be accepted. Hamdard Dawakhana
(supra) whereupon Mr. Sanghi has placed strong reliance is wholly mis-placed.
In Hamdard
Dawakhana (supra) the 'magic remedy' was held to be incapable of giving a fixed
meaning and, thus, was held ultra vires Article 14 of the Constitution being
vague in nature. We do not find any such vagueness in any of the provisions of
the impugned Acts including the definition of 'wild animal'. It is clear and
unambiguous.
Reliance
placed by Mr. Sanghi on Rustom Cavasjee Cooper (supra)is equally mis-placed. In
that case, this Court was dealing with nationalization of banks. The Court held
that the provisions impugned therein are ultra-vires. In that situation, it was
held:
"Impairment
of the right of the individual and not the object of the State in taking the
impugned action, is the measure of protection.
To
concentrate merely on power of the State and the object of the State action in
exercising that power is therefore to ignore the true intent of the
Constitution." There is no quarrel with the aforementioned propositions
inasmuch as herein we are upholding vires of the statutes holding that the
restrictions imposed is reasonable.
The
Amending Acts in our opinion are constitutional, legal and valid.
RES-EXTRA
COMMERCIUM:
We,
however, agree with Mr. Sanghi that in a case of this nature the doctrine of 'res
extra commercium' cannot be invoked. When trade in a particular commodity is
governed by a statute, the same has to be given its full effect. Trade in ivory
was permissible in law. It was restricted in 1986. It has totally been
prohibited in the year 1991.
The
Amendment Act, 2003 brought about further changes in terms whereof further
restrictions have been imposed even on the private owners to possess ivory or
any other animal article.
CITES
banned trade in ivory but as regard some countries the ban has been relaxed. At
least in five countries ivory has been placed in Appendix II from Appendix I.
We do not know whether in a few years from now having regard to increase in
population of elephant, a restricted trade in ivory would be permitted. If that
is permitted by amending the said Act, the trade in ivory would be legal.
The
submission of the appellants, however, to the effect that the elephant has been
downlisted from Appendix I to Appendix II of CITES is incorrect. All
international trade in elephants or articles thereof including Asian elephants
(Indian species) is prohibited as it continues to be listed in Appendix I
excepting for certain specified African elephant populations of Botswana, Namibia, South
Africa and Zimbabwe which have now been listed in
Appendix II. This limited trade has been allowed under very strict conditions
as mentioned in the CITES Appendix. Further, India at the CITES Conference (2002) had seriously opposed
permitting of such limited trade and had even submitted a proposal for a
continuation of the ban on ivory trade.
Education
having regard to its nature was held to be beyond pale of business or
occupation within the meaning of Article 19(1)(g) of the Constitution of India.
Others
[(1993) 1 SCC 645], it was observed:
"198.
We are, therefore, of the opinion, adopting the line of reasoning in State of
Bombay v. R.M.D. Chamarbaugwala (1957 scr 874 : air 1957 sc 699) that imparting
education cannot be treated as a trade or business.
Education
cannot be allowed to be converted into commerce nor can the petitioners seek to
obtain the said result by relying upon the wider meaning of
"occupation". The content of the expression "occupation"
has to be ascertained keeping in mind the fact that clause (g) employs all the
four expressions viz., profession, occupation, trade and business. Their fields
may overlap, but each of them does certainly have a content of its own,
distinct from the others. Be that as it may one thing is clear - imparting of
education is not and cannot be allowed to become commerce. A law, existing or
future, ensuring against it would be a valid measure within the meaning of
clause (6) of Article 19. We cannot, therefore, agree with the contrary
proposition enunciated in Sakharkherda Education Society v. State of Maharashtra
(air 1968 Bom LR 690) Andhra Kesari Education Society v. Govt. of A.P. (AIR
1984 AP 251 : (1984) 1 APLJ 45)and Bapuji Educational Assn. v. State.(AIR 1986
Kant 80)" State of Karnataka [(2002) 8 SCC 481], however, held that
imparting of education would come within the purview of the definition of
occupation within the meaning of Article 19(1)(g) of the Constitution of India.
[(1989)
4 SCC 155] opined:
"In
Unni Krishnan's case (Unni Krishnan, J.P. v. State of A.P. (1993) 1 SCC 645 at p. 687) while referring to
education, it was observed as follows :- "It may perhaps fall under the
category of occupation provided no recognition is sought from the State or
affiliation from the University is asked on the basis that it is a fundamental
right." While the conclusion that "occupation" comprehends the
establishment of educational institutions is correct, the proviso in the
aforesaid observation to the effect that this is so provided no recognition is
sought from the state or affiliation from the concerned university is, with the
utmost respect, erroneous. The fundamental right to establish an educational
institution cannot be confused with the right to ask for recognition or
affiliation. The exercise of a fundamental right may be controlled in a variety
of ways.
For
example, the right to carry on a business does not entail the right to carry on
a business at a particular place. The right to carry on a business may be
subject to licensing laws so that a denial of the licence prevents a person
from carrying on that particular business. The question of whether there is a
fundamental right or not cannot be dependent upon whether it can be made the
subject-matter of controls.
The
establishment and running of an educational institution where a large number of
persons are employed as teachers or administrative staff, and an activity is
carried on that results in the imparting of knowledge to the students, must
necessarily be regarded as an occupation, even if there is no element of profit
generation. It is difficult to comprehend that education, per se, will not fall
under any of the four expressions in Article 19(1)(g).
"Occupation"
would be an activity of a person undertaken as a means of livelihood or a
mission in life. The above quoted observations in Sodan Singh case (Sodan Singh
v. New Delhi Municipal Committee, (1989) 4 SCC 155) correctly interpret the
expression "occupation" in Article 19(1)(g)." The said view has
been reiterated recently by a Constitution and Ors. decided on 14th August, 2003 [JT 2003 (7) SC 1].
Henry
Christensen [(1890) 34 Law. Ed. 620] so as to hold that a citizen has no
inherent right to sell intoxicating liquors. Therein the U.S. Supreme Court was
dealing with a federal law imposing restrictions on a person dealing in retail
trade in liquor without obtaining a due licence therefor. The law was upheld negativing
the contention that the restriction was unreasonable. It was not held therein
that trade of liquor is impermissible in all situations.
Restriction
in trade, therefore, would depend upon the nature of the article and the law
governing the field. By reason of judicial vagaries, fundamental right under
Article 19(1)(g) of the Constitution of Jammu and Kashmir & Ors. AIR 1967
SC 1368).
Dr.
D.D. Basu in his Commentary on the Constitution of India (Sixth Edition) Volume L at page
238 stated:
"In
Chamarbaugwala's case (supra) as well as in Fatehchand's case (AIR 1977 SC
1825), the Court relied upon the observations of Taylor, J. in Mansell's case
(1956) C.L.R. 550, in support of the theory of res extra commercium, but as
appears from the following observations of Wynes (1970), p. 263, the doctrine
has not had a peaceful career in Australia, and has produced conflicting
decisions which are not beyond criticism:
"The
question whether exceptions to the otherwise express provisions of s.92 based
upon inherent quality of goods can be made has not been settled... Since the
Hughes case (1954) 93 C.L.R. 1 it is no doubt true to say that a State may
legitimately regulate the incidents of traffic in such cases, but this does not
derive from inherent quality, but from the proposition that regulation can be
consistent with freedom..""
WHETHER
THE APPELLANTS ARE ENTITLED TO POSSESS ANIMAL ARTICLES:
A mere
perusal of the definition of 'animal article' in Section 2(2) of the Act would
show that the imported ivory falls within it. In that view of the matter the
question as to whether the African elephant is a scheduled animal or not is
irrelevant. Dealing in trade in ivory is prohibited under Chapter VA. The appellants, therefore, being traders in ivory would come within the
purview of the prohibitions contained therein. Once they come within the
purview of the said Chapter, they have to be dealt with accordingly. If he has
been a trader, he must make a declaration in terms of Sub-Section (1) of Section
49-C of the Act. Chapter IV would not apply in his case. The said Chapter deals
with the matters contained therein. Traders in ivory forming a different class
have been dealt with in Chapter VA.
Doctrine
of 'generalia specialibus non derogant' would be applicable in this case. We
would deal with this subject in details a little later.
The
contention of the appellants that it is covered by the newly added provision
Section 40-A or that the said section discriminates individual owners and
traders is ill-founded.
At the
time of passing of the main Wild Life Protection Act in 1972, there were two
categories of persons who could be in possession of animal articles, etc.
namely (a) individual (non-traders) - who had possession of animals articles
for their own personal use and (b) traders - who had possession of such
articles for the purpose of sale.
Consequently,
the 1972 Act requires individuals to declare and apply for ownership
certificates of the animal articles which were in their possession. And as
regard the traders, Sections 44 to 48 and 49 mandated the traders to declare
their stocks and to apply for a licence. Section 40-A has been incorporated
solely for the purpose of mitigating the omission of individual non-traders who
due to lack of information or ignorance could not declare the animal articles
in their possession within the limited period of 30 days from the commencement
of the 1972 Act as specified in Section 40 of the Act. By reason thereof
another chance has been given to the non-traders to make a declaration. All the
appellant traders on the other hand had admittedly applied within the period of
30 days as specified in Section 44 of the Act. Hence, the object and purpose of
Section 40-A is limited to individual non-traders and does not discriminate the
traders or inter se the traders.
In any
event after the incorporation of Chapter V-A and the inclusion of ivory in the
said Chapter the appellant traders are governed by the provisions of Chapter
V-A. The provisions of Chapter V which includes Section 40-A is not applicable
to the appellant traders.
Chapter
V-A is a complete Code in itself and it would be a fallacy to read into or
extend by implication the mitigating provision of Section 40-A into Chapter
V-A. The Legislature, had it so desired could have incorporated a similar
provision in Chapter V-A.
Section
49-C provides that every person carrying on the business or occupation referred
to in sub-section (1) of Section 49-B, within thirty days from the specified
date, declare to the Chief Wild Life Warden or the authorised officer, his
stocks, if any, as at the end of the specified date of ivory imported into
India or articles made therefrom, the place or places at which the stocks
mentioned in the declaration are kept and the description of such items, if
any, of the stocks mentioned in the declaration which he desires to retain with
himself for his bona fide personal use. Sub-section (3) of Section 49- C
further provides that where, in a declaration made under sub-section (1), the
person making the declaration expresses his desire to retain with himself any
of the items of the stocks specified in the declaration for his bona fide
personal use, the Chief Wild Life Warden, with the prior approval of the
Director, may, if he is satisfied that the person is in lawful possession of
such items, issue certificate of ownership in favour of such person with
respect to all, or as the case may be, such of the items as in the opinion of
the Chief Wild Life Warden, are required for the bona fide personal use of such
person and affix upon such items identification marks in such manner, as may be
prescribed. Sub-section (6) of Section 49-C further provides that where a
person who has been issued a certificate of ownership under sub-section (3) in
respect of any item, it is permissible for him to transfer any such item to any
such person, whether by way of gift, sale or otherwise, or transfer or
transport from the State in which he resides to another State any such item and
he shall within thirty days from such transfer or transport, report the
transfer or transport to the Chief Wild Life Warden or the authorised officer
within whose jurisdiction the transfer or transport is effected.
On
coming into force of Act No.28 of 1986 or Act No.44 of 1991, however, it may be
true that the property does not automatically vest in the Government. It is not
in dispute that in terms of clause (c) of Section 39 of the Act which was
inserted by Act No.44 of 1991 only ivory imported into India and articles made
from such ivory in respect of which any offence against this Act or any rule or
order made thereunder has been committed, would be the property of the State
Government and not otherwise. But the issue is required to be considered from a
different angle.
On or
from the specified date, however, carrying on any trade or commerce, inter alia,
in relation to ivory imported into India or any article made therefrom is completely prohibited. Despite such
provision, however, a person carrying on a business or occupation or dealing in
trophies, animal articles etc. derived from scheduled animals would be, in
terms of sub-section (1) of Section 49-C of the Act, entitled to file a
declaration disclosing his stocks of ivory imported into India or articles made
therefrom. Once such a declaration is made and in the event such person makes a
declaration expressing his desire to retain with himself any of the items
specified therein for his bona fide use, a certificate of ownership may be
granted for such item or items which in the opinion of the Chief Wild Life
Warden are required therefor. Only in relation to items for which such
certificate of ownership has been granted, a transfer thereof is permissible
subject to the restrictions imposed under sub-section (6) of Section 49-C.
Sub-section (7) of Section 49-C, however, provides for prohibition of such
ivory imported into India or any article made therefrom from being kept under
the control of the trader for sale or offer for sale or transfer to any person
whatsoever.
The
upshot of the aforesaid provisions is that any trader who has imported ivory
legally into India prior to coming into force of the Act No.44 of 1991,
although would not be entitled to carry on any business or trade in respect
thereof, but having regard to the provisions referred to hereinbefore, unless
he commits an offence in relation thereto, the same would not vest in the
Government. He would, however, not be entitled to keep possession thereof
except in the mode and manner provided for in Section 49-C of the Act.
On a
conjoint reading of the aforesaid provisions, there cannot be any doubt
whatsoever that any person who has obtained such a certificate under
sub-section (3) of Section 49-C only may keep possession of the property i.e.
subject to grant of ownership certificate. In the event he complies with the
aforesaid provisions, he would be entitled to transfer or transport such item
as provided for in sub-section (6) of Section 49-C. There cannot further be any
doubt that in the event no certificate of ownership is granted in favour of a
trader in terms of sub-section (3) of Section 49-C, the question of his
becoming entitled to transfer or transport the property would not arise, in
which event, in terms of sub-section (7) of Section 49-C, he would be
disentitled not only from selling or offering for sale or transfer the said
items but also from keeping the said items under his control.
The
statutory provisions, in our opinion, are absolutely clear and unambiguous.
The
submission of Mr. Sanghi to the effect that the Chief Wild Life Warden has been
conferred with an unguided power to declare any item as being capable of bona
fide personal use of a trader cannot be accepted. Not only in terms of the
provisions of the said Act, a trade or commerce, inter alia, in relation to ivory
has been prohibited, having regard to the proviso appended to sub-section (3)
of Section 49- C, even such item cannot be kept for display in any commercial
premises. As such ivory or any article made therefrom can neither be subject
matter of trade or commerce nor displayed in any commercial premises for any
reason whatsoever. By reason of the provisions of the said Act, the trader was
given six months' time to dispose of the articles in his possession. No
foundational fact has been laid before the High Court nor any contention has
been raised before us that the period specified therein under the Act was not
reasonable. Articles which cannot be subject matter of trade or commerce can
only be kept for personal use. Such personal use must be a bona fide one. Once
the requirement for keeping the possession of such article by a trader had
specifically been laid down, it cannot be said that the Chief Wild Life Warden
had been conferred with unguided and uncanalized power. In the event, an order
is passed, the person dissatisfied therewith, may prefer an appeal in terms of
sub-section (5) thereof.
Against
such original orders or appellate orders, even a judicial review would be
maintainable.
Sub-section
(7) of Section 49-C would be applicable only in relation to such items or
articles wherefor certificate of ownership has not been granted. If a person
keeps under his control, sells or offers for sale or transfers the same to any
other person, he would be subject to a penalty as provided under sub-section
(1-A) of Section 51 of the Act.
Sub-section
(2) of Section 51 empowers the competent court to direct that such property be
forfeited by the Government, in which event, clause (c) of Section 39 would be
attracted. We, therefore, do not find that the provisions of the said Act are
anomalous in nature.
It is
true, as has been pointed out by Mr. Sanghi, that the respondents made a
statement before the High Court that the property in possession of the
appellants did not vest in the Government but such a statement was made
evidently having regard to the provisions of clause (c) of Section 39 of the
Act read with sub-section (2) of Section 59 thereof.
Such
property would vest in the Government subject to an order of forfeiture and
subject to an order of conviction and sentence against the offender for
violation of sub-section (7) of Section 49-C is recorded. We, in view of the
provisions of the said Act, therefore, must hold that not only trade or
occupation in relation to ivory in question is prohibited but possession or any
transfer thereof in any manner whatsoever is prohibited under the Act subject,
however, to the provisions of sub-sections (1), (3) and (6) of Section 49-C of
the Act.
The
legislature has deliberately used the words 'bonafide personal use' in Section
49-C and has placed the onus on the traders to prove the same so as to be
entitled to retain the articles out of the stocks decalred by it. This
requirement is due to the fact that the acquisition of an animal article by an
individual non-trader at the time of purchase would be presumed to be one for
his own personal bonafide use while on the other hand in the case of the
traders the acquisition of animal articles as reflected in the stocks of a
trader would be solely be for the purpose of sale. Hence, the imposition of the
requirement of personal bonafide use in the case of traders cannot be said to
be discriminatory or arbitrary or irrational or perverse entitling the
Appellants to continue to have control thereover.
WHETHER
THE IVORY VESTS IN THE GOVERNMENT?
We,
however, do not agree with the contention of Mr. Malhotra that having regard to
the fact that appellants have admittedly been found to be in possession of
animal article, they have committed an offence and as such they would come
within the purview of Section 39(a)(i) of the Act as a result whereof the same
could vest in the State.
The
question as to whether an offence under the Act has been committed or not at
that stage cannot be determined. Such a determination furthermore cannot be
left for adjudication at the hands of the executive authority. As and when a
seizure is made and the trader is prosecuted for alleged commission of an
offence having regard to sub-section 7 of Section 49-C of the Act; adjudication
therefor must be made by a competent court of law having jurisdiction in this
behalf.
Before
a person is convicted a Court has to arrive at the finding that the accused has
committed an offence wherefor a full-fledged criminal trial would be necessary.
In absence of such criminal trial and offence having been found committed,
Section 39 may not have any application. In that view of the matter it is
evident that the properties do not stand vested in the Government in terms
thereof.
HOW
THE DICHOTOMY SHOULD BE RESOLVED?
The
question, however, would remain as to what would happen to the property in
question. In our opinion, the answer must be found out by reading all the
provisions in their entirety.
It is
now well-settled that for the purpose of interpretation of statute the entire
statute is to be read in entirety. The purport and object of the Act must be
given its full effect.
Furthermore,
in a case of this nature, principles of purposive construction must come into
play.
(1979)
2 SCC 34], this Court observed:
"The
primary principle of interpretation is that a Constitutional or statutory
provision should be construed "according to the intent of they that made
it" (Coke). Normally, such intent is gathered from the language of the
provision. If the language or the phraseology employed by the legislation is
precise and plain and thus by itself proclaims the legislative intent in
unequivocal terms, the same must be given effect to, regardless of the
consequences that may follow. But if the words used in the provision are
imprecise, protean or evocative or can reasonably bear meanings more than one,
the rule of strict grammatical construction ceases to be a sure guide to reach
at the real legislative intent. In such a case, in order to ascertain the true
meaning of the terms and phrases employed, it is legitimate for the Court to go
beyond the arid literal confines of the provision and to call in aid other
well-recognised rules of construction, such as its legislative history, the
basic scheme and framework of the statute as a whole, each portion throwing
light, on the rest, the purpose of the legislation, the object sought to be
achieved, and the consequences that may flow from the adoption of one in
preference to the other possible interpretation.
3 SCC
609], this Court held:
"During
the last several years, the 'golden rule' has been given a go-by. We now look
for the "intention" of the legislature or the 'purpose' of the
statute. First, we examine the words of the statute. If the words are precise
and cover the situation on hand, we do not go further. We expound those words
in the natural and ordinary sense of the words. But, if the words are
ambiguous, uncertain or any doubt arises as to the terms employed, we deem it
as our paramount duty to put upon the language of the legislature rational
meaning. We then examine every word, every section and every provision. We
examine the Act as a whole. We examine the necessity which gave rise to the
Act. We look at the mischiefs which the legislature intended to redress. We
look at the whole situation and not just one-to-one relation. We will not
consider any provision out of the framework of the statute. We will not view
the provisions as abstract principles separated from the motive force behind.
We will consider the provisions in the circumstances to which they owe their
origin. We will consider the provisions to ensure coherence and consistency
within the law as a whole and to avoid undesirable consequences." SC 183 :
(2001) 7 SCC 358], this Court stated:
"A
statute is an edict of the legislature and in construing a statute, it is
necessary, to seek the intention of its maker. A statute has to be construed
according to the intent of them that make it and the duty of the court is to
act upon the true intention of the legislature.
If a
statutory provision is open to more than one interpretation, the court has to
choose that interpretation which represents the true intention of the
legislature. This task very often raises difficulties because of various
reasons, inasmuch as the words used may not be scientific symbols having any
precise or definite meaning and the language may be an imperfect medium to
convey one's thought or that the assembly of legislatures consisting of persons
of various shades of opinion purport to convey a meaning which may be obscure.
It is impossible even for the most imaginative legislature to forestall
exhaustively situations and circumstances that may emerge after enacting a
statute where its application may be called for. Nonetheless, the function of
the courts is only to expound and not to legislate. Legislation in a modern
State is actuated with some policy to curb some public evil or to effectuate
some public benefit. The legislation is primarily directed to the problems
before the legislature based on information derived from past and present
experience. It may also be designed by use of general words to cover similar
problems arising in future. But, from the very nature of things, it is
impossible to anticipate fully in the varied situations arising in future in
which the application of the legislation in hand may be called for and words
chosen to communicate such indefinite referents are bound to be in many cases,
lacking in clarity and precision and thus giving rise to controversial
questions of construction. The process of construction combines both literal
and purposive approaches.
In
other words, the legislative intention i.e. the true or legal meaning of an
enactment is derived by considering the meaning of the words used in the
enactment in the light of any discernible purpose or object which comprehends
the mischief and its remedy to which the enactment is directed." Court
held:
"An
enactment cannot be struck down on the ground that Court thinks it unjustified.
The Parliament and the Legislatures, composed as they are of the
representatives of the people, are supposed to know and be aware of the need of
the people and what is good and bad for them. The Court cannot sit in judgment
over their wisdom. In this connection, it should be remembered that even in the
case of administrative action, the scope of judicial review is limited to three
grounds viz.,
(i) unreasonableness,
which can more appropriately be called irrationality,
(ii) illegality
and
(iii) procedural
impropriety (See Council of Services (1985 AC 374), which decision has been
accepted by this Court as well).
The
applicability of doctrine of proportionality even in administrative law sphere
is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v.
Secretary of State for the Home Department Ex-parte Brind, (1991 AC 696 at
766-67 and 762). It would be rather odd if an enactment were to be struck down
by applying the said principle when its applicability even in administrative
law sphere is not fully and finally settled." Panchayat and Others[(2003)
4 SCC 712] this Court noticed:
"In
Reserve Bank of India vs. Peerless Co. reported in
1987(1) SCC 424, this Court said:- "Interpretation must depend on the text
and the context. They are the basis of interpretation.
One
may well say if the text is the texture, context is what gives the colour.
Neither can be ignored. Both are important. That interpretation is best which
makes the textual interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With this knowledge, the statute
must be read, first a whole and then section by section, clause by clause,
phrase by phrase and word by word. If a statute is looked at, in the context of
its enactment, with the glasses of the statute maker, provided by such context,
its scheme, the sections clauses, phrases and words may take colour and appear
different than when the statute is looked at without the glasses provided by
the context. With these glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each word is meant and designed
to any as to fit into the scheme of the entire Act. No part of a statute and no
word of a statute can be construed in isolation, Statutes have to be construed
so that every word has a place and everything is in its place..." In
"The Interpretation and Application of Statutes" by Reed Dickersen,
the author at page 135 has discussed the subject while dealing with the
importance of context of the statute in the following terms:- "...The
essence of the language is to reflect, express, and perhaps even effect the
conceptual matrix of established ideas and values that identifies the culture
to which it belongs.
For
this reason, language has been called 'conceptual map of human
experience'." The purport and object of the Statute is to see that a
Tribunal becomes functional and as such the endeavors of the Court would be to
see that to achieve the same, an interpretation of Section 10 of the Act be
made in such a manner so that appointment of a President would be possible even
at the initial constitution thereof.
Such a
construction is permissible by taking recourse to the doctrine of strained
construction, as has been succinctly dealt with by Francis Bennion in his
Statutory Interpretation. At Section 304, of the treatise; purposive
construction has been described in the following manner:- "A purposive
construction of an enactment is one which gives effect to the legislative
purpose by –
(a) following
the literal meaning of the enactment where that meaning is in accordance with
the legislative purpose (in this Code called a purposive-and-literal
construction), or
(b) applying
a strained meaning where the literal meaning is not in accordance with the
legislative purpose (in the Code called a purposive-and-strained construction).
In DPP
vs. Schildkamp (1971) AC 1, it was held that severance may be effected even
where the 'blue pencil' technique is impracticable.
In
Jones vs. Wrotham Park Settled Estates (1980) AC 74 at page 105, the law is
stated in the following terms:- "..I am not reluctant to adopt a purposive
construction where to apply the literal meaning of the legislative language
used would lead to results which would clearly defeat the purposes of the Act.
But in doing so the task on which a court of justice is engaged remains one of
construction, even where this involves reading into the Act words which are not
expressly included in it. Kammins Ballrooms Co. Ltd.
vs.
Zenith Investments (Torquay) Ltd. (1971 AC 850) provides an instance of this;
but in that case the three conditions that must be fulfilled in order to
justify this course were satisfied. First, it was possible to determine from a
consideration of the provisions of the Act read as a whole precisely what the
mischief was that it was the purpose of the Act to remedy; secondly, it was
apparent that the draftsman and Parliament had by inadvertence overlooked, and
so omitted to deal with an eventuality that required to be dealt with if the
purpose of the Act was to be achieved; and thirdly, it was possible to state
with certainty what were the additional words that would have been inserted by
the draftsman and approved by Parliament had their attention been drawn to the
omission before the Bill passed into law. Unless this third condition is
fulfilled any attempt by a court of justice to repair the omission in the Act
cannot be justified as an exercise of its jurisdiction to determine what is the
meaning of a written law which Parliament has passed." In Principles of
Statutory Interpretation of Justice G.P. Singh, 5th Edition, 1992, it is
stated:
"The
Supreme Court in Bangalore Water Supply vs. A. Rajappa (AIR 1978 SC 548)
approved the rule of construction stated by DENNING, L.J.
while
dealing with the definition of 'Industry in the Industrial Disputes Act, 1947.
The definition is so general and ambiguous that BEG, C.J. said that the
situation called for "some judicial heroics to cope with the difficulties
raised". K. IYER, J., who delivered the leading majority judgment in that
case referred with approbation the passage extracted above from the judgment of
DENNING,L.J. in Seaford Court Estates Ltd. vs. Asher. But in the same
continuation he also cited a passage from the speech of LORD SIMONDS in the
case of Magor & St. Mellons R.D.C. vs. Newport Corporation, 1951(2) All ER
839 as if it also found a part of the judgment of DENNING, L.J. This passage
reads: "The duty of the court is to interpret the words that the
legislature has used. Those words may be ambiguous, but, even if they are, the
power and duty of the Court to travel outside them on a voyage of discovery are
strictly limited." As earlier noticed LORD SIMONDS and other Law Lords in Magor
and St. Mellon's case were highly critical of the views of DENNING, L.J.
However,
as submitted above, the criticism is more because of the unconventional manner
in which the rule of construction was stated by him. In this connection it is
pertinent to remember that although a court cannot supply a real casus omissus
it is equally clear that it should not so interpret a statute as to create a casus
omissus when there is really none." In Hameedia Hardware Stores vs. B.
Mohan Lal Sowcar reported in (1988) 2 SCC 513 at 524 the rule of addition of
word had been held to be permissible in the following words:- "We are of
the view that having regard to the pattern in which clause (a) of sub-section
(3) of Section 10 of the Act is enacted and also the context, the words 'if the
landlord required it for his own use or for the use of any member of his family'
which are found in sub-clause (ii) of Section 10(3)(a) of the Act have to be
read also into sub-clause (iii) of Section 10(3)(a) of the Act. Sub-clauses
(ii) and (iii) both deal with the non-residential buildings. They could have
been enacted as one sub-clauses by adding a conjunction 'and' between the said
two sub-clauses, in which event the clause would have read thus : 'in case it
is a non-residential building which is used for the purpose of keeping a
vehicle or adapted for such use if the landlord required it for his own use or
for the use of any member of his family and if he or any member of his family
is not occupying any such building in the city, town or village concerned which
is his own; and in case it is any other non- residential building, if the
landlord or member of his family is carrying on, a non-residential building in
the city, town or village concerned which is his own'. If the two sub-clauses
are not so read, it would lead to an absurd result.
In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. Presiding Officer, Labour Court, Chandigarh and Ors. reported in (1990) 3 SCC 682, this Court held:
"The
court has to interpret a statute and apply it to the facts. Hans Kelsen in his
Pure Theory of Law. (p. 355) makes a distinction between interpretation by the
science of law or jurisprudence on the one hand and interpretation by a
law-applying organ (especially the court) on the other. According to him
"jurisprudential interpretation is purely cognitive ascertainment of the
meaning of legal norms. In contradistinction to the interpretation by legal
organs, jurisprudential interpretation does not create law". "The
purely cognitive interpretation by jurisprudence is therefore unable to fill
alleged gaps in the law. The filling of a so- called gap in the law is a
law-creating function that can only be performed by a law- applying organ; and
the function of creating law is not performed by jurisprudence interpreting
law. Jurisprudential interpretation can do no more than exhibit all possible
meanings of a legal norm.
Jurisprudence
as cognition of law cannot decide between the possibilities exhibited by it,
but must leave the decision to the legal organ who, according to the legal
order, is authorised to apply the law". According to the author if law is
to be applied by a legal organ, he must determine the meaning of the norms to
be applied : he must 'interpret' those norms (p. 348). Interpretation therefore
is an intellectual activity which accompanies the process of law application in
its advance from a higher level to a lower level. According to him, the law to
be applied is a frame. "There are cases of intended or unintended
indefiniteness at the lower level and several possibilities are open to the
application of law." The traditional theory believes that the statute,
applied to a concrete case, can always supply only one correct decision and
that the positive-legal 'correctness' of this decision is based on the statute
itself. This theory describes the interpretive procedure as if it consisted
merely in an intellectual act of clarifying or understanding; as if the law-
applying organ had to use only his reason but not his will, and as if by a
purely intellectual activity, among the various existing possibilities only one
correct choice could be made in accordance with positive law.
According
to the author : "The legal act applying a legal norm may be performed in
such a way that it conforms
(a) with
the one or the other of the different meanings of the legal norm,
(b) with
the will of the norm-creating authority that is to be determined somehow,
(c) with
the expression which the norm-creating authority has chosen,
(d) with
the one or the other of the contradictory norms; or
(e) the
concrete case to which the two contradictory norms refer may be decided under
the assumption that the two contradictory norms annul each other.
In all
these cases, the law to be applied constitutes only a frame within which
several applications are possible, whereby every act is legal that stays within
the frame." In S. Gopal Reddy vs. State of Andhra Pradesh reported in (1996) 4 SCC 596 this Court observed :
"It
is a well-known rule of interpretation of statutes that the text and the
context of the entire Act must be looked into while interpreting any of the
expressions used in a statute. The courts must look to the object which the
statute seeks to achieve while interpreting any of the provisions of the Act.
A
purposive approach for interpreting the Act is necessary." State of Haryana
& Ors. 2003 (2) SCALE 145) The words, which are used in declaring the
meaning of other words may also need interpretation and the legislature may use
a word in the same statute in several different senses. In that view of the
matter, it would not be correct to contend that the expression as defined in
the interpretation clause would necessarily carry the same meaning throughout
the statute.
The
question came up for consideration before this Court in State of Maharashtra
vs. Indian Medical Association and Others [(2002) 1 SCC 580] wherein this Court
speaking through one of us (Khare V.N., CJI) was concerned with the term
"management" occurring in Maharashtra University of Health Sciences
Act, 1998. Therein a question arose as to whether the State Government is required
to obtain the approval of the Medical Council of India for establishment of new
medical college.
"Management"
as contained in Section 2(21) of the Act, which was in the following terms:-
"Section 2. In this Act, unless the context otherwise requires, - (21)
'Management' means the trustees, or the managing or governing body, by whatever
name called, of any trust registered under the Bombay Public Trusts Act, 1950 Bom.
XXIX of 1950 or any society registered under the Societies Registration Act,
1860 21 of 1800 under the management of which one or more colleges or recognised
institutions or other institutions are conducted and admitted to the privileges
of the University.
Provided
that, in relation to any college or institution established or maintained by
the Central Government or the State Government or a local authority such as a Zila
Parishad, municipal council or municipal corporation, it means, respectively,
the Central Government or the State Government or the concerned local authority
that is the Zila Parishad, municipal council or municipal corporation, as the
case may be." The question which arose for consideration was as to whether
the State Government would come within the purview of the said Act. This Court
answered the said question in the negative holding that the expression
'Management' must be read contextually in the following terms:
"We
are, therefore, of the opinion that the defined meaning of the expression
'management' cannot be assigned or attributed to the word 'management' occurring
in Section 64 of the Act. The word 'management' if read in the context of the
provisions of Section 64 of the Act, means any one else excepting the State
Government applying to a State Government for permission to establish the
proposed medical college at proposed location to be decided by the State
Government." The doctrine of purposive construction, thus, must be applied
in a situation of this nature.
A
trader in terms of a statute is prohibited from carrying on trade. He also
cannot remain in control over the animal article. The logical consequence wherefor
would be that he must be deprived of the possession thereof. The possession of
the animal article including imported ivory must, therefore, be handed over to
the competent authority. In a case of this nature where a statute has been
enacted in public interest, restriction in the matter of possession of the
property must be held to be implicit. If Section 49(7) is not so construed, it
cannot be given effect to.
We,
therefore, are of the opinion that the appellants have no right to possess the
articles in question. Keeping in view of the fact that the provisions of the
statute have been held to be intra vires the question of compensating the
appellants would not arise as vesting of possession thereof in the State must
be inferred by necessary implication.
ARE
THE PROVISIONS OF THE AMENDING ACT VIOLATIVE OF THE RIGHT OF PROPERTY OF THE
APPELLANTS?
It is
true that right to property is a human right as also a constitutional right.
But it is not a fundamental right. Each and every claim to property would not
be property right.
Control
of property by the State short of deprivation would not Agriculture and Water
Development [1997] 1 LRC 123 (Zimbabwe Supreme Court)[Interpreting Convention
Rights by Hugh Tomlinson and Vina Shukla - page 470] As at present advised, we
do not intend to deal with the question as regard sovereign power of the State
vis-à-vis the maxim "salus populi suprema lex" as stated in Charan Lal
Sahu vs. Union of India [1990) 1 SCC 613],the same may have to be considered in
an appropriate case.
ARE
THE GUIDELINES CONSTITUTIONAL?
We,
however, are of the opinion that the guidelines issued by the Central
Government do not meet the requirements of law particularly Section 63 of the
Act. Keeping in view the clear and unambiguous provisions contained in
Sub-section (1), (3), (5) and (6) of Section 49-C, the Central Government could
not have directed that the appellants would be entitled to only one piece of
article and the rest would be destroyed. These guidelines, therefore, in our
opinion cannot be given effect to and the appellants may pursue their remedies,
if any, in terms of Sub-Section (3) of Section 49-C of the Act and their
applications filed in this behalf, if any, must be disposed of in terms of the
aforementioned law.
CONCLUSION:
We,
therefore, are of the opinion that the respondents would be entitled to take
physical possession of the ivory now in seizure. The question, however, would
be as to whether the Central Government should destroy the articles including
idols of gods and goddesses and household items like sofa sets depicting
cultural and religious heritage.
It is
stated that similar articles are being displayed in museums as a part of
cultural and religious heritage of India.
In
view of our findings aforementioned, the appropriate authority would be
entitled to continue to keep in possession the said articles.
We,
however, direct that the same be kept at appropriate museums or at such
suitable places where the statutory authorities feel fit and proper but they
should not be destroyed.
With
the aforementioned directions and observations, these appeals and writ petition
are dismissed.
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