Reckless criminalisation, weak safeguards

The enactment of the Wildlife (Protection) Act in 1972 was a watershed in the Indian State’s efforts to curb hunting of wild animals and birds. With a declaration that it intended to ensure “the ecological and environmental security of the country”, the Act criminalised a variety of actions and omissions which went beyond hunting and destruction of wildlife habitats. The impulse to create inviolate forests and deter hunting resulted in the government’s draftspersons brushing aside cardinal principles of criminal law, with parliament’s subsequent approval. With the surge in prosecution under the Act and the resultant incarceration, it is important to examine the design of the Act and its inherent danger.

Traditionally, the concept of harm is central to criminalisation. Criminalisation is considered to be justified if the act sought to be criminalised is one that severely harms the interests of other human beings or society as a whole. The wrongful act which causes harm ought to be attributable to a culpable person or entity. Culpability assumes significance as it would be draconian to punish a person accused of committing a prohibited act unwillingly or unknowingly.

These principles are conspicuously violated by certain provisions of the Act. For instance, Section 40(2) of the Act stipulates that custody or mere possession of an animal specified in Schedule I or Part II of Schedule II; its skin, meat or an uncured trophy derived from the animal, is an offence. These Schedules list even certain species of insects such as beetles and butterflies, apart from endangered animals.

Similarly, receipt of any wild animal, animal article or trophy is an offence under Section 49 of the Act. The Act defines ‘trophy’ to include even honeycombs, hair and feathers, irrespective of the quantity. Significantly, Section 17A of the Act criminalises mere possession of ‘specified plants’ such as Blue Vanda, Red Vanda, etc.  Section 57 exacerbates the problem by declaring that when a person is found to be in possession of a wild animal, animal article, trophy, specified plant, etc., it shall be presumed that such possession is unlawful until s/he proves that the possession is lawful.

These provisions generate criminal liability from mere presence or contact with substances that are not inherently dangerous and may be found in the vicinity of homes even when the accused has not harmed an animal. Presence-based liability and contact-based liability allow officials to file cases whimsically, without even ascertaining who the actual offender is or seeking an explanation from suspects.

For instance, if skin and hair are found in a farm or meat suspected to be that of a wild animal is found in a house, the provisions discussed above empower the officials to arrest all the inhabitants, whether or not they had hunted the animal. Co-habitants and co-passengers have suffered ordeals merely because of the presence of trophies and animal articles. While deviating from the ‘harm principle’ (discussed earlier) may be justified when possession is criminalised with regard to dangerous substances such as deadly explosives, etc., it is injudicious and unfair to adopt such a stringent approach with regard to innocuous substances which are commonly found and do not conclusively indicate wrongdoing.

A study by the Criminal Justice & Police Accountability Project has revealed that Adivasis and members of forest-dwelling communities have been severely affected because of the reckless enforcement of the Act and criminalisation of their community practices. It is pertinent to note that entering a sanctuary with a weapon is an offence and the Act defines a weapon to include any instrument that can injure an animal. Therefore, on a plain reading, even a situation of being spotted with a stick inside a sanctuary may lead to incarceration.

What makes the Act ruthless if enforced strictly is the nature of punishments prescribed for the offences discussed in this piece and the non-bailable nature of the offences. Instead of prescribing separate, well-defined penalties for each offence based on magnitude and harm, Section 51(1) of the Act prescribes imprisonment without differentiating between poaching, mere possession, type of trophy, etc. For instance, Section 51 stipulates that any person who breaches conditions of a license, ‘contravenes any provision’ of the Act, Rules or an order made under the Act, shall be punished with imprisonment which may extend to three years or with fine.

However, when the contravention relates to an animal specified in Schedule I or Part II of Schedule II or an animal article or trophy related to such an animal, the court has a duty to award at least three years of imprisonment, with the maximum sentence being seven years with a fine.

Consequently, a person who has poached a tiger (an animal mentioned in Schedule I) and a person in whose house the dried skin of a cobra (a reptile mentioned in Part II of Schedule II) is found are vulnerable to the same punishment under the Act. This does not sit well with the constitutional right to equality as despite the intelligible differentia, dissimilar offenders are sought to be treated equally.

Though the Code of Criminal Procedure, 1973 declares that statements recorded by a police officer are not admissible and do not qualify as substantive evidence, the Wildlife (Protection) Act adopts a deviant position. Section 50(8) of the Act allows an officer not below the rank of an Assistant Conservator of Forest to record evidence in the form of statements, etc., which may then be used in a trial.

Section 25 of the Evidence Act stipulates that a confession recorded by a police officer shall not be taken as proof in court. However, trial courts have convicted persons relying on confessions recorded by forest officials, by opining that they are not ‘police officers’ for the purpose of safeguards against forced confessions. This is a dangerous trend as there have been several complaints of forest officials inflicting custodial torture on suspects.

Furthermore, there is hardly any difference between a person arrested by the police and a person arrested by forest officials in terms of vulnerability and consequences as both the arrests would eventually lead to a trial.

Criminalising mere possession of innocuous substances and weakening the right to a fair trial reflect the State’s indifference towards constitutional values and total disregard for cardinal principles of criminal law. The pressing need to curb poaching and illegal wildlife trade do not justify endangering personal liberty of citizens and instilling a sense of widespread fear among members of forest-dwelling communities and those who reside near forests.

(The writer is a lawyer)