Case Summary
| Citation | Centre For Environment Law, WWF-I v. Union of India & Others,Supreme Court, I.A. No. 100 in Writ Petition (Civil) No. 337 of 1995,decided on 15 April 2013K.S. Radhakrishnan, J |
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| Ratio Decidendi & Case Authority |
Full Case Details
- The Wildlife Institute of India (for short ‘WII’), an autonomous institution under
the Ministry of Environment and Forests (for short ‘MoEF’), Government of India,
through its wildlife Biologists had done considerable research at the Gir Forest in the
State of Gujarat since 1986. All those studies were geared to provide data which
would help for the better management of the Gir forest and enhance the prospects for
the long term conservation of lions at Gir, a single habitat of Asiatic lion in the world.
The data collected by the Wildlife Biologists highlighted the necessity of a second
natural habitat for its long term conservation. Few of the scientists had identified the
Asiatic lions as a prime candidate for a re-introduction project to ensure its long term
survival. In October 1993, a Population and Habitat Analysis Workshop was held at
Baroda, Gujarat. Various issues came for consideration in that meeting and the
necessity of a second home for Asiatic lions was one of the issues deliberated upon in
that meeting. Three alternative sites for re- introduction of Asiatic lions were
suggested for an intensive survey, the details of which are given below: (1) DarrahJawaharsagar Wildlife Sanctuary (Rajasthan); (2) Sitamata Wildlife Sanctuary
(Rajasthan); (3) Kuno Wildlife Sanctuary (Madhya Pradesh). - The Research Advisory Committee of WII recognized the need for a prior survey to
assess the potential of those sites. Accordingly, a field survey was conducted. Surveys
of the three sites were made during winter as well as summer, to assess water
availability during the summer and also to ascertain the changes in human impact on
the habitat during the seasons. The surveyors concentrated on ascertaining the extent
of forest area in and adjoining the chosen protected areas with the aim of establishing
the contiguity of the forested habitat. Attempts were also made to establish the
relative abundance of wild ungulate prey in the three sites based on direct sightings as
well as on indirect evidence. An assessment of the impact on the people and their
livestock on habitat quality in all three sites was also made. Of the three sites
surveyed, Kuno Wildlife Sanctuary (for short ‘Kuno’) was found to be the most
suitable site for re- introduction in establishing a free ranging population of Asiatic
lions. A draft report to that effect was prepared by eminent Scientists like Ravi
Chellam, Justus Joshwa, Christy A. Williams and A.J.T. Johnsingh on behalf of WII.
The report revealed that the Kuno was a historical distribution range of Asiatic lions.
Report also highlighted the necessity of a long term commitment of resources,
personnel, the necessity of a comprehensive rehabilitation package, adequate staff and
facilities. Committee did not consider the presence of tigers in Kuno to be a major
limiting factor, especially since the tigers occur in such low numbers and density.
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Since lions live in stable social units, report highlighted that it is important to take
lions for the translocation also from a single pride. Further, it was also pointed out
that genetic consideration would not be a major factor, provided fresh male lions are
moved from Gir to Kuno every three to five years and the resident males in Kuno
selectively captured for Zoos. - State of Madhya Pradesh then undertook a massive rehabilitation package for the
villagers settled in and near Kuno so as to push forward the scheme of relocation of
Asiatic lions in Kuno. It was noticed that about 1545 families of 24 revenue villages
were living inside Kuno and they had to be rehabilitated outside the sanctuary. Since
suitable and sufficient revenue land was not available in adjoining areas, it was
decided to relocate those villages on degraded protected forests. Since proposed site
of resettlement fell in various blocks of protected forest, the use as a rehabilitation
purpose involved a legal obligation to obtain prior sanction from MoEF under Section
2 of the Forest (Conservation) Act, 1980. - The Secretary (Forests), Government of Madhya Pradesh, therefore, sent a letter
dated 24.7.1996 to MoEF seeking final approval of the Central Government in
accordance with the Forest (Conservation) Act, 1980. MoEF, after examining the
request of the State of Madhya Pradesh, conveyed its approval under Section 2 of the
Forest (Conservation) Act, 1980 for diversion of 3720.9 hectare of forest land for
rehabilitation of 18 villages located inside the Kuno, subject to fulfillment of certain
conditions. Out of 3720.9 hectare of the 13-forest compartments, 3395.9 hectare
forest area of 12 compartments was finally approved by the Government of India for
de-notification. Compartment No. P-442 of Umarikaia forest block was left out from
the original proposal by Government of India letter dated 1.2.2000 and hence, the
released area in first phase had been de-notified after due permission from the
Government of India. Forest area of 1263.9 hectare released in the second phase could
not be de-notified for want of permission from the Government of India. The
Government of India constituted a Monitoring Committee for the effective
implementation of the Asiatic Lion Reintroduction Project at Kuno which met on
10.3.2004. The Survey report of WII was discussed in the meeting and it was noticed
that Kuno Paipur Sanctuary of M.P. was identified as the project site/and a 20 year
project was conceived in three phases as below: (a) Phase I (1995-2000 A.D.) Village
relocation and habitat development; (b) Phase II (2000-2005) Fencing at the side,
translocation, research and monitoring; (c) Phase III (2005-2015) Eco-development.
It was pointed out in the meeting that, currently, the project was in Phase II and 18
villages had been rehabilitated from Kuno. Further, in the meeting, the Chief Wildlife
Warden of Gujarat had, however, opined that there was no commitment on the part of
the State of Gujarat for providing lions and the State Government had not agreed for
the same. Based on the discussion, the Chairman summed up the consensus which
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emerged out of the deliberations as follows: (1) A letter from MOS, MoEF should be
sent to the Chief Minister of Gujarat, highlighting the project justification with a
request to provide lions for translocation to Kuno Palpur Sanctuary; (2) State of
Gujarat should be provided with a set of project documents; (3) The Chief Wildlife
Warden, MP should prepare a road map with a final detail for translocation of lions
from Gir to Kuno; (4) An assessment of prey base in Kuno should be done by WII;
and (5) No further expenditure should be incurred with a focus on lion; however,
funding support for habitat improvement/welfare initiatives for other wild animals can
continue. - The scheme for rehabilitation of villagers was prepared by the centrally sponsored
“Beneficiary-oriented Scheme for Tribal Development”. It was stated in the scheme
that a total of more than Rs. 1545 lacs would be required for the satisfactory relocation of 1545 families of 24 villages out of the limit of Kuno. Out of 1545 lacs,
1061 lacs had been spent on relocation process. Balance 484 lacs were required to be
released for the remaining rehabilitation works. The Chief Wildlife Warden, M.P. had
certified the said expenditure. - WII, in the meantime, had made a detailed assessment of prey population for lion
re-location in Kuno. It was noticed that since re- location of villages from Kuno was
complete, Government of M.P. was keen to assess the prey base in the sanctuary so as
to plan obtaining lions from Gujarat for re-introduction as early as possible. For the
said purpose, the task of evaluating for wild prey base was entrusted to WII.
Consequently, the faculty from WII, with the help of 34 forest staff, had undertaken
the study of ungulates in Kuno under the guidance of Dr. Raghu Chundawat and
carried out the prey assessment exercise from 2.1.2005 to 8.1.2005 and 8.2.2005 to
13.2.2005. A report was filed in June 2006 (July 2006). The Minister of MoEF sent a
letter dated 20.7.2006 to the Chief Minister of Gujarat for translocation of two
numbers of lions to Kuno. The Chief Minister of Gujarat vide his letter dated
30.4.2006 replied stating that the matter had been placed before the concerned
department for further views. But nothing had been transpired in spite of the fact that
crores and crores of rupees were spent by the Government of India for re- location of
villages, de-notifying the reserve forest and so on which led to the filing of this public
interest litigation seeking a direction to the respondents to implement the re-location
programme as recommended by WII, and approved by the Government of India. - We heard Shri Raj Panjwani, learned senior counsel appearing for the applicant,
who submitted that this 20-year project is hanging on fire due to the indifferent
attitude of the Gujarat Government. Learned senior counsel submitted that the
necessity of re-introduction of Asiatic lion at Kuno has been keenly felt and the
scientific world has unanimously advocated for translocation of this endangered
species to Kuno for its long term survival and preservation. Learned senior counsel
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pointed out that NBWL, the expert technical body at more than one occasions has
approved and granted technical sanction to go ahead with the project, but could not
pick up expected momentum due to the indifferent and defiant attitude of the State of
Gujarat. - Ms. Vibha Datta Makhija, learned counsel appearing for the State of Madhya
Pradesh, highlighted the steps taken by the State of Madhya Pradesh for pushing the
project forward. Learned counsel referred to the various counter affidavits filed by the
State of Madhya Pradesh for completing the first phase of the project. Necessary
sanction has already been obtained to declare Kuno as Sanctuary under the Wildlife
Protection Act. MoEF has already granted its approval under Section 2 of the Forest
(Conservation) Act for diversion of 3395.9 hectare of forest land for the rehabilitation
of eighteen villages located inside Kuno, subject to fulfillment of certain conditions.
The area at Kuno was increased to 1268.861 Sq. Km in April 2002 by creating a
separate Kuno Wildlife Division. For the above purpose, a total amount of Rs. 1545
lakh had been granted by the Government of India and utilized by the State
Government. Learned counsel also pointed out that altogether 24 villages and 1543
families were relocated outside Kuno by the year 2002-2003 and the lands abandoned
by them have been developed into grass lands. - Learned counsel also pointed out that prey density at Kuno has far exceeded the
prey density at Gir. Reference was made to the Prey Density Survey conducted during
2004-2005 by Mr. Fiaz A. Khudsar and Mr. Raman in the year 2008. Firstly, it was
pointed out that WII had also conducted an independent study in the year 2012, which
also supported the stand taken by the State of Madhya Pradesh that there is sufficient
prey base to receive sufficient numbers of lions. Over and above, adequate training
has also been given to the forest staff, guards etc. for receiving the lions and for their
upkeep and monitoring. - Shri P.K. Malhotra, learned Additional Solicitor General, submitted that the
population of Asiatic lion is increasing at Gir, but there are conceivable threats to
their survival; man-made, natural calamity as well as outbreak of epidemic, which
may wipe out the entire population, due to their small population base and limited
geographical area of spread. It is under such circumstances, the need for a second
home for lions was felt, for which Kuno was found to be the most suitable habitat.
However, it was pointed out that the lions could be translocated only if sufficient
number of ungulates is available and after taking effective measures, such as, control
of poaching, grassland management, water management, building rubble wall around
the division etc. Learned senior counsel made reference to the study conducted by the
experts of WII and Wildlife Trust of India of the programme of re-introduction of
Cheetah in Kuno, on import from Namibia. Referring to the correspondence between
the Ministry of State (External Affairs) and Chief Minister of Madhya Pradesh, it was
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pointed out that subsequent re-introduction of lions is in no way expected to affect the
cheetah population, which would have established in the area, by that time. - Shri P.S. Narasimha, learned senior counsel and learned Amicus Curiae apprised
the court of the extreme urgency for the protection of the Asiatic lion which has been
included in the Red List published by the International Union for Conservation of
Natgure (IUCN) as critically endangered species, endorsed by NBWL in various
meetings. NBWL, being the highest scientific statutory body, it commands respect
and its opinion is worthy of acceptance by the MoEF and all the State Governments.
Learned senior counsel also referred to Article 48 and Article 51-A of the
Constitution of India and submitted that the State has a duty to protect and improve
environment and safeguard the forests and wildlife in the country, a duty cast upon all
the States in the Union of India. Reference was also made to the conservatism in BioDiversity and the Eco-centric principle, which have been universally accepted.
Learned senior counsel also referred to the National Wildlife Action Plan 2002-2016,
and submitted that translocation of Asiatic lions has been treated as a priority project
after having found that an alternative home for Asiatic lion is vital for its survival.
Learned senior counsel also submitted that the National Forest Policy and the Scheme
of 2009 and NWAP (2002-2016) and the plans have legislative force as decided in
Lafarge Umiam Mining Private Limited, T.N. Godavarman Thirumulpad v. Union of
India and others (2011) 7 SCC 338 case and can be enforced through Courts. - Shri Shyam Divan, learned senior counsel appearing for the State of Gujarat,
refuted all those contentions and reiterated that there is no necessity of finding out a
second home for Asiatic lions, since the population of Asiatic lion has been properly
protected in Greater Gir forest and also in few other sanctuaries near Gir Forest. Shri
Divan submitted that the population of Asiatic lion has gone up reasonably since
broader conservation methods have been adopted by the State of Gujarat and that at
present, there is no immediate threat to the Asiatic lions calling for emergency
measures, like translocation or reintroduction. Learned senior counsel further pointed
out that past experience shows that such translocation of lions ended in failure and
possibility of such recurrence cannot be ruled out, since Kuno is not well set to accept
or preserve an endangered species like Asiatic lion; which is a success story at Gir. - Shri Divan also submitted that, so far, no acceptable translocation plan has been
prepared or implemented for a successful translocation of an endangered species like
Asiatic lion and the same has been taken note of and commented upon the State
Wildlife Board, Gujarat in its meeting held on 16.3.2012. Shri Divan also submitted
that the prey-base studies are totally inadequate and not a single study has been
conducted or report placed before this Court to show that the benchmark of 480,000
kgs. of wild ungulates biomass has been attained at Kuno. Shri Divan also referred to
the note dated 8.7.2012 submitted by Dr. Ravi Chellam and contended that no reliable
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information was furnished to support the view regarding adequacy of prey base at
Kuno. Shri Divan also referred to Section 12 of the Wild Life (Protection) Act and
submitted that the translocation should be to ‘an alternative suitable habitat”. Kuno,
according to the learned senior counsel, is not a ‘suitable habitat’, not only due to
inadequacy of prey- base, but also due to factors like presence of tigers, large scale
poaching, unfavourable climate condition, lack of expertise, human-animal conflict
etc. - Learned senior counsel also referred to the issues raised by the petitioner through
this PIL and contended that it would not stand the tests laid in Lafarge case (supra),
especially when the State Board of Wild Life has stated cogent reasons why
translocation of lions to Kuno, at present, is not advisable, which is fully justified by
the objections and independent scientific material. Such decision, according to the
learned senior counsel, is not amenable to judicial review and, even otherwise, no
grounds are made out for issuing a Writ of Mandamus directing translocation of
Asiatic lion from Gir to Kuno.
LEGAL FRAMEWORK - We will first deal with the constitutional and the legal framework on which we
have to examine the various issues which have come up for consideration in this case.
The subject “Protection of wild animals and birds” falls under List III, Entry 17B of
Seventh Schedule. The Parliament passed The Wild Life (Protection) Act 53 of 1972
to provide for the protection of wild animals and birds with a view to ensuring the
ecological and environmental security of the country. The Parliament vide
Constitution (42nd Amendment) Act, 1976 inserted Article 48A w.e.f. 03.01.1977 in
Part IV of the Constitution placing responsibility on the State “to endeavour to protect
and improve the environment and to safeguard the forests and wild life of the
country.” Article 51A was also introduced in Part IVA by the above-mentioned
amendment stating that “it shall be the duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers and wildlife and to
have compassion for living creatures”. - By Act 23 of 1982, Section 12(bb) was inserted in the Wild Life (Protection) Act
w.e.f. 21.05.1982 which authorised the Chief Wild Life Warden to grant a special
permit for the purpose of scientific management which would include translocation of
any wild animal to an alternative suitable habitat or population management of wild
life without killing or poisoning or destroying any wild animals. - The Parliament later vide Act 16 of 2003 inserted Section 5A w.e.f. 22.09.2003
authorizing the Central Government to constitute the National Board for Wild Life (in
short ‘NBWL’). By the same Amendment Act, Section 5C was also introduced
eliciting functions of the National Board. Section 5B was also introduced by the
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aforesaid amendment authorizing the National Board to constitute a Standing
Committee for the purpose of exercising such powers and performing such duties as
may be delegated to the Committee by the National Board. NBWL is, therefore, the
top most scientific body established to frame policies and advise the Central and State
Governments on the ways and means of promoting wild life conservation and to
review the progress in the field of wild life conservation in the country and suggesting
measures for improvement thereto. The Central and the State Governments cannot
brush aside its opinion without any cogent or acceptable reasons. Legislation in its
wisdom has conferred a duty on NBWL to provide conservation and development of
wild life and forests. - The Parliament enacted the Biological Diversity Act in the year 2002 followed by
the National Biodiversity Rules in the year 2004. The main objective of the Act is the
conservation of biological diversity, sustainable use of its components and fair and
equitable sharing of the benefits arising out of the utilization of genetic resources.
Bio- diversity and biological diversity includes all the organisms found on our planet
i.e. plants, animals and micro-organisms, the genes they contain and the different ecosystems of which they form a part. The rapid deterioration of the ecology due to
human interference is aiding the rapid disappearance of several wild animal species.
Poaching and the wildlife trade, habitat loss, human-animal conflict, epidemic etc. are
also some of the reasons which threaten and endanger some of the species. - India is known for its rich heritage of biological diversity and has so far
documented over 91,200 species of animals. In India’s bio-graphic regions, 45,500
species of plants are documented as per IUCN Red List 2008. India has many
critically threatened animal species. IUCN has noticed today the only living
representative of lions once found throughout much of south-west Asia occurred in
India’s Gir forest which has been noticed as a critically endangered species in IUCN
Red List. The IUCN adopted a resolution of 1963 by which a multi-lateral treaty was
drafted as the Washington Convention also known as the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973. CITES entered
into force on 1st July, 1975, which aims to ensure that international trade in
specimens of wild animals and plants does not threaten the survival of the species in
the wild, and it accords varying degrees of protection to more than 33,000 species of
animals and plants. Appendix 1 of CITES refers to 1200 species which are threatened
with extinction. Asiatic lion is listed in Appendix 1 recognizing that species is
threatened with extinction. - We notice for achieving the objectives of various conventions including
Convention on Biological Diversity (CBD) and also for proper implementation of
IUCN, CITES etc., and the provisions of the Wild Life (Protection) Act, Bio-diversity
Act, Forest Conservation Act etc. in the light of Articles 48A and 51A(g), the
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Government of India has laid down various policies and action plans such as the
National Forest Policy (NFP) 1988, National Environment Policy (NEP) 2006,
National Bio-diversity Action Plan (NBAP) 2008, National Action Plan on Climate
Change (NAPCC) 2008 and the Integrated development of wild life habitats and
centrally sponsored scheme framed in the year 2009 and integrated development of
National Wild- life Action Plan (NWAP) 2002-2016. In Lafarge case (supra) this
Court held that National Forest Policy 1988 be read together with the Forest
(Conservation) Act, 1980. In our view, the integrated Development of Wile Life
habitat under the Centrally Sponsored Scheme of 2009 and the NWAP (2002-2016)
have to be read along with the provisions of the Wile Life (Conservation) Act. - The Prime Minister of India on 1.1.2002, in the XXI Meeting of the Indian Board
for Wildlife, released the ‘National Wildlife Action Plan (2002-2016)’ (in short
NWAP 2002-2016). NWAP has highlighted that the wildlife encompasses all
uncultivated flora and undomesticated fauna and every species has the right to live
and every threatened species must be protected to prevent its extinction. It was
noticed with the mounting agricultural, industrial and demographic pressures,
wilderness areas, which are the richest repositories of wildlife and biodiversity have
either shrunk or disappeared and their continued existence is crucial for the long term
survival of the biodiversity and the ecosystems supporting them. NWAP, inter alia,
highlighted the necessity to protect the long term ecological security of India and to
identify and protect natural ecosystems from over-exploitation, contamination and
degradation. NWAP has also urged the necessity to give primacy to in situ
conservation which is a sheet anchor of wildlife conservation. Ex situ measures in
zoological parks and gene banks may supplement this objective, without depleting
scarce wild resources. NWAP also highlighted the ecological requirements for the
survival of threatened, rare and endangered species together with their community
associations of flora and fauna. It also highlighted the imperative necessity to have
alternative homes for highly endangered species like the Great Indian Bustard, Bengal
Florican, Asiatic Lion, Wild Buffalo, Dugong, the Manipur Brow Antlered Deer and
the like. It was also noticed that where in situ conservation efforts are unlikely to
succeed, ex situ captive breeding and rehabilitation measures may be necessary, in
tandem with the preparation of their wild habitats to receive back captive populations,
especially in respect of lesser-known species where status and distribution of wild
animals are not fully known… - MoEF noticed that the fragmented nature of wildlife rich areas, increased human
pressure, habitat degradation, proliferation of invasive species, man-animal conflicts,
poaching, impacts of changing climate etc. are some of the challenges that has to be
addressed at a war footing. The necessity for ensuring better protection of wildlife
outside the protected areas and initiating recovery programmes for saving critically
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endangered species and habitats has also been high-lighted. Keeping that in view, a
comprehensive Centrally Sponsored Scheme titled ‘Integrated Development of
Wildlife Habitats’ has been made operational on 30.7.2009 which was in addition to
the erstwhile Centrally Sponsored Scheme — ‘Assistance for the Development of
National Parks and Sanctuaries’. The scheme incorporated additional components and
activities for implementing the provisions of the Wildlife (Protection) Act, 1972, the
National Wildlife Action Plan (2002-2016), recommendations of the Tiger Task
Force, 2005 and the National Forest Commission, 2006 and the necessities felt from
time to time for the conservation of wildlife and biodiversity in the country. The
scheme was formulated during the 11th year plan. - India has a network of 99 national parks, 515 wildlife sanctuaries, 43 conservation
reserves and 4 community reserves in different bio- geographic zones. Many
important habitats, still exists outside those areas, which requires special attention
from the point of view of conservation. The Centrally Sponsored Scheme also
specifically refers to the recovery programmes for saving critically endangered
species and habitats. Due to variety of reasons, several species and their habitats have
become critically endangered. Snow leopard, Great Indian Bustard, Kashmir Stag,
Gangetic Dolphin, Nilgiri Tahr, Malabar Civet, marine turtles, etc are few examples. - The scope of the Centrally Sponsored scheme was examined in T.N. Godavarman
Thirumulpad v. Union of India and others (2012) 3 SCC 277 (Wilde Buffalo case)
and this Court directed implementation of that scheme in the State of Chhattisgarh.
The centrally sponsored scheme, as already indicated, specifically refers to the Asiatic
lions as a critically endangered species and highlighted the necessity for a recovery
programme to ensure the long term conservation of lions. NWAP 2002-2016 and the
Centrally Sponsored Scheme 2009 relating to integrated development of wildlife
habitats are schemes which have statutory status and as held in Lafarge case (supra)
and have to be implemented in their letter and spirit. While giving effect to the
various provisions of the Wildlife Protection Act, the Centrally Sponsored Scheme
2009, the NWAP 2002-2016 our approach should be eco-centric and not
anthropocentric.
ANTHROPOCENTRIC VS. ECO-CENTRIC - Sustainable development, it has been argued by various eminent
environmentalists, clearly postulates an anthropocentric bias, least concerned with the
rights of other species which live on this earth. Anthropocentrism is always human
interest focussed thinking that non-human has only instrumental value to humans, in
other words, humans take precedence and human responsibilities to non-human are
based benefits to humans. Eco-centrism is nature-centred, where humans are part of
nature and non-humans have intrinsic value. In other words, human interest does not
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take automatic precedence and humans have obligations to non-humans
independently of human interest. Eco-centrism is, therefore, life-centred, naturecentred where nature includes both humans and non-humans. - We re-iterate that while examining the necessity of a second home for the Asiatic
lions, our approach should be eco-centric and not anthropocentric and we must apply
the “species best interest standard”, that is the best interest of the Asiatic lions. We
must focus our attention to safeguard the interest of species, as species has equal
rights to exist on this earth. Asiatic Lion has become critically endangered because of
human intervention. The specie originally existed in North Africa and South-West
Asia formerly stretched across the coastal forests of northern Africa and from
northern Greece across south-west Asia to eastern India. Today the only living
representatives of the lions once found throughout much of South-West Asia occur in
India’s Gir Forest. Asiatic lion currently exists as a single sub-population and is thus
vulnerable to extinction from unpredictable events, such as an epidemic or large forest
fire etc. and we are committed to safeguard this endangered species because this
species has a right to live on this earth, just like human beings. - Article 21 of the Constitution of India protects not only the human rights but also
casts an obligation on human beings to protect and preserve a specie becoming
extinct, conservation and protection of environment is an inseparable part of right to
life. In M.C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388 , this Court
enunciated the doctrine of “public trust”, the thrust of that theory is that certain
common properties such as rivers, seashores, forests and the air are held by the
Government in trusteeship for the free and unimpeded use of the general public. The
resources like air, sea, waters and the forests have such a great importance to the
people as a whole, that it would be totally unjustified to make them a subject of
private ownership. The State, as a custodian of the natural resources, has a duty to
maintain them not merely for the benefit of the public, but for the best interest of flora
and fauna, wildlife and so on. The doctrine of ‘public trust’ has to be addressed in that
perspective. - We, as human beings, have a duty to prevent the species from going extinct and
have to advocate for an effective species protection regimes. NWAP 2002-2016 and
the Centrally Sponsored Scheme 2009 indicate that there are many animal species
which are close enough to extinction and some of the other species have already
disappeared from this earth. No species can survive on the brink of extinction
indefinitely and that the continued existence of any species depends upon various
factors like human-animal conflict, epidemics, forest fire and other natural calamities
etc.
290 - The Wildlife Biologists of WII, after conducting a research on Gir Forests, noticed
the necessity for long term conservation of Asiatic lion in Gir and also highlighted the
necessity of a second natural habitat for its long term conservation. Population and
Habitat Analysis Workshop held at Baroda in October, 1993 also highlighted that fact.
NBWL, as already indicted, has taken a consistent view in all its meetings about the
necessity of a second habitat for Asiatic lion, an endangered species. Asiatic lion, it
has been noticed, has been restricted to only one single habitat, i.e. the Gir National
Forest and its surrounding areas and an outbreak of possible epidemic or natural
calamity might wipe off the entire species. A smaller population with limited genetic
strength are more vulnerable to diseases and other catastrophes in comparison to large
and widespread population. Threat, therefore, is real and has proved by the outbreak
of canine distemper in the lions of Serengeti NP, Tanzania in 1994. 85% of the
Serengeti lion population, it was noticed, had Canine Distemper Virus antibodies and
at least 30% of the Serengeti and Mara lions died due to the infection. Compared with
Gir, the lion population in the 40,000 sq. km. Serengeti-Mara ecosystem is large with
about 2500 lions. It was felt that if an epidemic of this scale were to affect the lions in
Gir, it would be very difficult to save them from extinction, given the much smaller
area of the Gir forests and the smaller lion population. The possibility of the decease
spreading to the pockets of habitat such as Girnar, Mityala, Rajula, Kodinar and the
surrounding areas, cannot be ruled out. - We have already indicated that there is uniformity in the views expressed by the
Bio-Scientists of WII, NBWL, MoEF and other experts that to have a second home
for the endangered species like Asiatic lion is of vital importance. A detailed study
has been conducted to find out the most suitable habitat for its re-introduction and
Kuno Wildlife Sanctuary (for short ‘Kuno’) in Madhya Pradaesh, as already indicted,
has been found to be the most ideal habitat.
OWNERSHIP AND POSSESSION OF WILD ANIMALS - No state, organisation or person can claim ownership or possession over wild
animals in the forest. Wild Animal is defined under the Wild Life (Protection) Act,
1972 under Section 2(36) to mean any animal specified in schedules I to IV and found
wild in nature. ‘Wild Life’ has been defined under Section 2(37) to include any
animal, bees, butterflies, crustacean, fish and moths, and or land vegetation which
forms part of any habitat. Section 9 prohibits hunting of wild animals, specified in
Schedule I, II, III and IV except as provided under Section 11 and Section 12. Section
40 of the Act obliges a person to make a declaration and Section 41 enables the Chief
Wild Life Warden to make an enquiry and preparation of inventories and Section 42
deals with the issue of certificates and confers, no ownership of the wild animals to a
particular state or others. Animals in the wild are properties of the nation for which no
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state can claim ownership and the state’s duty is to protect the wild life and conserve
it, for ensuring the ecological and environmental security of the country. - Several migratory birds, mammals, and animals in wild cross national and
international borders created by man and every nation have a duty and obligation to
ensure their protection. No nation or organisation can claim ownership or possession
over them, the Convention on the conservation of migratory species of wild animals
held at Bonn, 1979, supports this principle and the convention recognises that wild
animals in their innumerable forms are irreplaceable part of the earth; natural system
and must be conserved for the good of the mankind. It has recognised that the states
are and must be the protectors of the migratory species of wild animals that live
within or pass through their national jurisdictional boundaries. Convention highlights
that conservation and effective management of migratory species of wild animals
require the concerted action of all states within the national jurisdictional boundaries
of which such species spend any part of their life cycle. India is also a signatory to
that convention. - State of Gujarat has taken up the stand that it has got its own conservation
programme in respect of Asiatic lion. Due the effective conservation programme
carried out by the State of Gujarat at Gir, it was pointed out, that the number of
Asiatic lions in the wildlife has increased, the range of these lions has increased, the
statutorily protected habitat has increased, so also the area occupied by these lions has
increased. The State has maintained the stand that there is no present or immediate
danger to the Asiatic lions warranting any emergency measures. - State Board for Wildlife, Gujarat (SBWL, Gujarat), which has been constituted by
the State Government under Section 6 of the Wildlife Protection Act, 1972, convened
a meeting on 16.3.2012 to discuss the issue relating to translocation of Asiatic lion
from Gujarat to Madhya Pradesh. SBWL, Gujarat and took the view that that the issue
of giving or not giving lions to Kuno is not an issue of conflict between States, but it
is a collective Indian cultural approach in the interest of long term conservation of
lions as part of our family. SBWL further maintained the stand that Asiatic Lion being
a “family member” is beyond and higher than the “scientific reasoning”. SBWL,
therefore, did not agree with the proposal for translocation of lion from Gujarat to
Kuno, a stand endorsed by the State of Gujarat. - Approach made by SWBL and the State of Gujarat is an anthropocentric
approach, not eco-centric though the State of Gujarat can be justifiably proud of the
fact that it has preserved an endangered specie becoming extinct. We are, however,
concerned with a fundamental issue whether the Asiatic lions should have a second
home. The cardinal issue is not whether the Asiatic lion is a “family member” or is
part of the “Indian culture and civilization”, or the pride of a State but the preservation
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of an endangered species for which we have to apply the “species best interest
standard”. Our approach should not be human-centric or family-centric but ecocentric. “Scientific reasoning” for its re-location has to supersede the family bond or
pride of the people and we have to look at the species best interest especially in a
situation where the specie is found to be a critically endangered one and the necessity
of a second home has been keenly felt. We, therefore, find it difficult to agree with the
reasoning of SBWL, Gujarat and the State of Gujarat that the Asiatic lion is a family
member and hence be not parted with. - The views of NBWL constituted by the Central Government in exercise of its
powers conferred under Section 5A of the Wildlife Protection Act, have to prevail
over the views expressed by SBWL. The duties conferred on the National Board
under Section 5C of the Act and on the State Board under Section 8 of the Act are
entirely different. NBWL has a duty to promote conservation and development of
wildlife and frame policies and advise the Central Government and the State
Governments on the ways and importance of promoting wildlife conservation. It has
to carry out/make assessment of various projects and activities on wildlife or its
habitat. NBWL has also to review from time to time the progress in the field of
wildlife conservation in the country and suggest measures for improving thereto.
Those functions have not been conferred on the State Board. The State Board has
been conferred with a duty to advise the State Government the selection and
management of areas to be declared as protected areas and advise the State
Government in formation of their policies for protection and conservation of the
wildlife and specify plans etc. Statutorily, therefore, it is the duty of NBWL to
promote conservation and development of wildlife with a view to ensuring ecological
and environmental security in the country. We are, therefore, of the view that the
various decisions taken by NBWL that Asiatic lion should have a second home to
save it from extinction, due to catastrophes like epidemic, large forest fire etc, which
could result in extinction, is justified. This Court, sitting in the jurisdiction, is not
justified in taking a contrary view from that of NBWL.
HISTORICAL HABITAT – RE-INTRODUCTION - No specie can survive on the brink of extinction indefinitely and the probabilities
associated with a critically endangered specie make their extinction a matter of time.
Convention biology is the science that studies bio-diversity and the dynamics of
extinction. Eco-system approach to protecting endangered species emphasises on
recovery, and complement and support eco-system based conservation approach.
Reintroduction of an animal or plant into the habitat from where it has become extinct
is also known as ex-situ conservation. India has successfully achieved certain reintroduction programmes, for example, the Rhino from Kaziranga, re- introduction of
Gangetic gharial in the rivers of Uttar Pradesh, Rajasthan etc. Re-introduction of an
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organism is the intentional movement of an organism into a part of its native range
from which it has disappeared or become extirpated in historic times as a result of
human activities or natural catastrophe. - Kuno, as already stated, was proved to be a historical habitat of Asiatic Lions.
After survey of the potential status for re-introduction of Asiatic lion, a final report
has been submitted by WII, which was published on 31.1.1995 Kuno Wildlife
Sanctuary (Madhya Pradesh) emerged as the most suitable habitat for re-introduction
of the Asiatic lion. The Council of Ministers approved the project on 28.2.1996.
Between 1996 and 2001, 24 villages with about 1547 families had been translocated
from the sanctuary by the Madhya Pradesh Forest Department. Government of
Madhya Pradesh had also demarcated 1280 sq. kms. Kuno Wildlife Division,
encompassing the Sironi, Agra and Morawan forest ranges around the sanctuary.
Government of India vide its order dated 21.1.1997 ordered diversion of 3720.9
hectares of forest land, including 18 villages were protected under Section 2 of the
Forest Conservation Act. A 20-years Project envisaged by the Government of India
was also approved by NBWL in its meeting held on 10.3.2004. The Government of
Madhya Pradesh took up a massive re-location of villages and giving them alternative
sites. A male over 18 years of age was considered to be a family and each family was
given 2 hectares of cultivate land, in addition to 500 sq. mtrs. Land was also given for
house construction. Financial assistance to the tune of Rs. 1,00,000/- in the form of
housing material was also given. Government of India has spent a sum of Rs. 15
crores for the said purpose. - We also notice that all possible steps have been taken by the State of Madhya
Pradesh, MoEF and the Union of India making Kuno Wildlife Sanctuary fit for reintroduction of Asiatic lion, with the approval of NWLB.
PREY DENSITY - WII was requested to assess the availability of prey density in the year 2005. With
the assistance of various staff, 17 transects totalling 461 km were surveyed over an
area of 280 sq. kms. The density of catchable wild prey (chital, sambar, nilgai, wild
pig) by lions was 13 animals/sq. km. There were about 2500 cattle, left behind by the
translocated people which were considered to be the buffer prey for lions to tide over
the likely problem of drought periodically killing wild ungulates. WII noticed that
with the implementation of the recommendations such as the control of poaching,
grassland management, building rubble wall around the Division and water
augmentation, a substantial rise (ca. 20 animals/Sq. km) in the wild prey base for lions
by the end of 2007. A detailed report on the assessment of prey population was
submitted by WII in July 2006.
294 - State of Gujarat had raised serious objection with regard to prey density at Kuno.
Various studies have been conducted with regard to prey density. Reports and studies
conducted by the Government of Madhya Pradesh revealed that the prey density at
Kuno has far exceeded the estimated prey density as recommended by Prof. Chellam
in his 1993 report…State of Madhya Pradesh has also taken up the stand that the prey
base in Kuno is more than the existing prey base in Gir… - State of Gujarat filed an application on 2.7.2012 on the basis of the above
estimation of prey base and sought a direction to the parties to take a fresh survey on
prey base. Shri Ravi Chellam in his written note on 8.7.2012 made some remarks on
prey-base stating that prey density estimation seems to be inadequate in terms of
design, data-collection, protocols, and analytical methods, when compared with the
internationally accepted standards. Shri Chellam suggested that prey studies have to
be conducted at least twelve months covering all seasons and habitat. - State of Gujarat has also raised various other objections stating that the past track
record would indicate that State of Madhya Pradesh is not taking any effective steps
to control poaching which is also a threat if lions are translocated to Kuno. To meet
that contention, the State of Madhya Pradesh stated that the Tiger Authority of India
in its report – Tiger Meets, July 2011 – has assessed the performance of the State of
Madhya Pradesh as outstanding, which would indicate that they had taken effective
steps against poaching of animals at Kuno. We notice that poaching of wild animals is
of great concern which calls for attention by all State Governments, so as to protect
the endangered species from extinction. It is a matter which has to be dealt with
effectively and poaches, if caught, should be brought to justice.
CHEETAH TO KUNO - We notice that while the matter was being heard, a decision has been made by
MoEF to import African Cheetahs from Namibia to India and to introduce the same at
Kuno. Amicus Curiae filed I.A. No. 3452 of 2012. This Court granted a stay on
8.5.2012 of the decision of MoEF to import the Cheetahs from Namibia to India for
introducing them to Kuno. Serious objections have been raised by the Amicus Curiae
Shri P.S. Narasimha against the introduction of foreign species at Kuno. Learned
Amicus Curiae pointed out that the decision to introduce African Cheetahs into the
same proposed habitat chosen for re-introduction of Asiatic lion has not been either
placed before the Standing Committee of NBWL, nor has there been a consistent
decision. Learned Amicus Curiae pointed out that IUCN Guidelines on translocation
clearly differentiated between introduction and re-introduction. The guidelines
critically warned against the introduction of African or imported species which never
existed in India. It is not a case of international movement of organism into a part of
its native range. Learned Amicus Curiae pointed that NWAP 2002-2016, which is a
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National Policy document, does not envisage re-introduction of a foreign species to
India. The Police only mentioned re-introduction or finding an alternative home for
species like Asiatic lion. - MoEF, in our view, has not conducted any detailed study before passing the order
of introducing foreign cheetah to Kuno. Kuno is not a historical habitat for African
cheetahs, no materials have been placed before us to establish that fact. A detailed
scientific study has to be done before introducing a foreign species to India, which has
not been done in the instant case. NBWL, which is Statutory Board established for the
purpose under the Wildlife Protection Act was also not consulted. - We may indicate that our top priority is to protect Asiatic lions, an endangered
species and to provide a second home. Various steps have been taken for the last few
decades, but nothing transpired so far. Crores of rupees have been spent by the
Government of India and the State of Madhya Pradesh for re-introduction of Asiatic
lion to Kuno. At this stage, in our view, the decision taken by MoEF for introduction
of African cheetahs first to Kuno and then Asiatic lion, is arbitrary an illegal and clear
violation of the statutory requirements provided under the Wildlife Protection Act.
The order of MoEF to introduce African Cheetahs into Kuno cannot stand in the eye
of Law and the same is quashed. - MoEF’s decision for re-introduction of Asiatic lion from Gir to Kuno is that of
utmost importance so as to preserve the Asiatic lion, an endangered species which
cannot be delayed. Re-introduction of Asiatic lion, needless to say, should be in
accordance with the guidelines issued by IUCN and with the active participation of
experts in the field of re- introduction of endangered species. MoEF is therefore
directed to take urgent steps for re-introduction of Asiatic lion from Gir forests to
Kuno. MoEF has to constitute an Expert Committee consisting of senior officials of
MoEF, Chief Wildlife Wardens of the States of Madhya Pradesh and Gujarat.
Technical experts should also be the members of the Committee, which will include
the Secretary General and Chief Executive Officer of WWF. Dr. Y.S. Jhala, senior
scientist with Wildlife Institute of India, Dr. Ravi Chellam, senior scientist, Dr. A.J.T.
Johnsingh, since all of them had done lot of research in that area and have national
and international exposure. Any other expert can also be co-opted as the members of
the Committee. Needless to say, the number of lions to be re-introduced would
depend upon the density of prey base and other related factors, which the Committee
will assess. - I.A. is allowed as mentioned above…
- We are also inclined to highlight the necessity of an exclusive parliamentary
legislation for the preservation and protection of endangered species so as to carry out
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the recovery programmes before many of the species become extinct and to give the
following directions:
(a) NWAP (2002-2016) has already identified species like the Great Indian Bustard,
Bengal Florican, Dugong, the Manipur Brow Antlered Deer, over and above Asiatic
Lion and Wild Buffalo as endangered species and hence we are, therefore, inclined to
give a direction to the Government of India and the MoEF to take urgent steps for the
preservation of those endangered species as well as to initiate recovery programmes.
(b) The Government of India and the MoEF are directed to identify, as already
highlighted by NWAP, all endangered species of flora and fauna, study their needs
and survey their environs and habitats to establish the current level of security and the
nature of threats. They should also conduct periodic reviews of flora and fauna
species status, and correlate the same with the IUCN Red Data List every three years.
(c) Courts and environmentalists should pay more attention for implementing the
recovery programmes and the same be carried out with imagination and commitment.
