Case Brief: Ivory traders & manufacturers association VS Union of India
Citation: (AIR 1997 DEL 267)
Civil appeal number: – 1016 of 1992, 1303 of 1992, 1964 of 1993.
Decided on: – 20 march 1997
This case is based on the trading of ivory which is illegal. Basically the meaning of ivory is teeth of elephant. It is used for making the ornaments and other articles. And we know that it is banned because the trading of ivory is illegal. The animals get harm due to this. It is found tusks of the elephant. The case Ivory traders & manufacturers association VS Union of India, (AIR 1997 DEL 267) is based on the trading of the ivory.
NAME OF THE JUDGES:-
The bench of:-
The Hon’ble CJ Mr. M Jagannadha Rao
The Hon’ble Mr. Justice Anil Dev
The Hon’ble Mr. Justice Manmohan Singh
According to article 48A of the Constitution of India: “protection and improvement and safeguarding of forests and wildlife:
The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.
These are the following facts of the case:-
· The petitioners are dealers and artisans in ivory carry on the and trade in ivory including the manufacture of articles which are derived from ivory lawfully imported in India prior to be ban.
· They import the parts of his stock of mammoth ivory from Russia and parts of it from Hong Kong for the purposes of the business.
· Ivory derived from mammoth, extinct species of wild animal and ivory derived from elephants. As the mammoth and elephants both are different from each other.
· This case is totally based on environment and safeguarding of forests and wildlife. The State shall protect and improve the environment and to safeguard the forests and wildlife of the country.
· Four countries are involved in this trading these are India, Russia, Hong Kong and china.
· The court reasoned that the amendment act explicitly bans the use of ivory for commercial use: “no person can commence or carry on business as a dealer in ivory imported into India or articles made, there from, or as manufacturers of such articles”. The court puts special emphasis on the words ivory imported into India as being designed deliberately. The intention is to cover all descriptions of ivory, including from mammoth.
· Therefore, they plead that they are persons affected by amendment act.
· The cannot even retain the possession and control of the ivory lawfully imported by them and articles made or derived there from as the same has been made an offence U/S 51 of act read with section 49 c (2). They say that the ban is unreasonable, unfair and arbitrary.
IMPORTANT ARGUMENTS ON BEHALF OF PETITIONER:-
· First of all the restriction is unreasonable unfair and arbitrary and violates the fundamental rights of the petitioner under article 14 and 19 (1) (g) of Constitution of India.
· As per the amendment act extinguishes the title of the petitioners over the imported ivory lawfully required by them and articles made there from without making any provisions for compensation thereof.
· The petitioners trade only in imported fossil ivory and articles manufactured there from.
· The mammoth imported from abroad and actually the act does not deal with this kind of ivory at all. The act only covers elephant ivory articles made there from.
· That the elephant ivory and mammoth ivory are of different types and can be distinguished from each other.
IMPORTANT ARGUMENTS ON BEHALF OF DEFENDENT:-
· That the impugned legislation was enacted to provide protection to the wildlife and it must be viewed in that perspective.
· That the necessity of population and conservation of wildlife is essential for the very existence of human life. There is an illegal killing of the India elephants for the ivory.
· The killing of animals is not good because it is also decreasing the population of the animals and the trade of ivory all gives the harms to animals. This also takes the form of exploitation to animals.
· Due to this wildlife of our country is also depleting. We have to control this depletion and we have to take strict steps to control all these things.
· As I have discussed above about the depletion of wildlife this is all because of human activities. As the initiative is taken by the government. Is they constructed the wildlife sanctuaries and the national parks to only save the animals and our wildlife also.
· The human beings are exploiting animals because of the rise of money in the products of wild animals.
· The trade of ivory was banned in 1986 in India. And the opportunity is left with traders to dispose of the stock.
It needs to be noticed that the Amendment Act 44 of 1991 has been enacted to carry out the mandate of the directive principles as enshrined in Article 48-A. The State has the power to completely prohibit a trade or business which has an adverse impact on the preservation of species of wild life which are on the verge of extinction both because it is inherently dangerous practice to destroy such animals in terms of ecology and also because of the directive principles contained in Article 48A of the Constitution. When the Legislature prohibits a pernicious, noxious or a dangerous trade or business it is in recognition of society’s right of self protection. Act 44 of 1991 inserted Clause (I a) in Section 49-B (1) (a) in the principal Act. As per it- ‘No person can commence or carry on business as a dealer in ivory imported into India or articles made, there from, or as manufacturer of such articles.’ It is also noteworthy that Sub-clause (I a) uses the words ‘ivory imported into India’. These words have been designedly and deliberately used by the Legislature. The legislation intended to cover all descriptions of ivory imported into India including mammoth ivory to prevent Indian ivory from entering into the market under the pretext of mammoth ivory or African ivory. Once the mammoth ivory is shaped into an article or curio, it looks exactly like an article made from elephant ivory which was said on the basis of the articles shown in Court. The respondent in its affidavit has also expressed the same difficulty in distinguishing. Also when a buyer intends to buy a curio, he is not interested to know whether it was created from elephant ivory or mammoth ivory as an average buyer also does not have the expertise or the knowledge to distinguish between article made from mammoth ivory and Indian ivory and buys it purely on aesthetic considerations or as a statue symbol. To give permission to trade in Articles made from mammoth ivory would result in laundering of Indian ivory — a result which the legislation wants to prevent for the reasons already explained above.
No citizen has fundamental rights to trade in ivory or ivory articles. Article 14 of Constitution of India is violative unreasonable, unfairness and arbitrariness. The petitioners have no fundamental right to carry on a trade or business in exhibiting or traders of animals covered by the impugned notification is prevention of unnecessary pain and suffering to animals. We have to conserve our environments. The ivory trade in India and provide a safe and protected environment for the Indian elephant.
Author Details: Shivam Krishnam (Symbiosis Law School, Noida)
The views of the author are personal only. (if any)