On July 30, Biju Janata Dal MP Anubhav Mohanty filed a petition before the Supreme Court seeking a more humane response to the human-wildlife conflict. The petition joined a growing list of cases pertaining to wildlife pending before the apex court. As human settlements expand rapidly, these conflicts have become more frequent and intense.
Farmers in particular lose their livelihoods – standing crops – when stray animals trample them. So state governments have sent several requests over the years to the Centre to declare certain species as ‘vermin’, so that they may be hunted and killed without consequence.
The Wildlife (Protection) Act 1972 does not define the term ‘vermin’. However, its Schedule V contains a list of animals designated ‘vermin’, including rats, crows and foxes. Section 62 of the Act empowers the Centre to declare wild animals of any species as ‘vermin’ in any area and for a specified period of time. These animals are deemed to be included in Schedule V, opening them up to be hunted.
However, many experts have argued against such mass-culling because it is ineffective and does not resolve the human-animal conflicts. Against this background, it’s worth noting that the constitutionality of Section 62 of the Act is also suspect for three reasons:
1. It violates Article 14 of the Constitution
2. It violates Article 21 of the Constitution
3. A combined reading of the Directive Principles of State Policy (DPSPs) and the fundamental duties require the state to be cautious when enacting laws that affect wildlife
Article 14
Article 14 of the Indian Constitution secures equality and equal protection before the law. One of the tests to determine compliance with Article 14 is called manifest arbitrariness. A law suffers from arbitrariness when it is ‘excessive’ and ‘capricious’ or suffers from the lack of an ‘adequate determining principle’. The wording of Section 62, which allows the Centre to declare any wild animal to be ‘vermin’, apart from those listed in the Act’s Schedule I and part II of Schedule II, itself doesn’t disclose a determining principle, leave alone an adequate one.
Notifications issued by the Union environment ministry suggest there are no specific principles the Centre uses to determine whether a particular species can be declared ‘vermin’. The notifications only mention that the animals have become a threat to property, life and crops. The decision rests heavily on the state governments’ requests.
In the past, states have requested the Centre to declare certain animals as ‘vermin’ without providing any detailed accounts or estimates of the destruction caused by those animals. The Centre issues these notifications on the basis of the state governments’ requests – poorly researched or not. So this provision suffers from ‘manifest arbitrariness’ both in how it is worded and how it is implemented.
Article 21
In its controversial decision in Animal Welfare Board of India v. A. Nagaraja (2014), the Supreme Court extended the right to life under Article 21 of the Constitution to animals. This opinion understandably drew flak from lawyers and constitutional experts, but high courts around the country have cited it and expanded on it. For example, the Uttarakhand high court in 2018 and the Punjab and Haryana high court in 2019 declared all the members of the animal kingdom to be legal entities, with distinct legal personalities and with rights akin to those of a living person. One may choose to disagree with these judgments, but for now they are valid interpretations of the law.
This expansion of Article 21 also means the same safeguards that apply to humans – including the right to not be deprived of life or personal liberty except according to just, fair and reasonable procedures – also applies to animals. There are no procedural guidelines on how and in what situations Section 62 can be exercised. As a result, the government has an unfettered discretion in deciding which animals deserve to be designated ‘vermin’.
Further, the orders themselves are loosely worded, and are often liable to be misused or abused. For example, some orders don’t even protect the animals of these species from being hunted in forests, allowing for animals that pose no significant threat to life or property to be killed for no ecological or even humanitarian reasons. This is a disproportionate response. Further, reports also point to ‘wanton killings’, where traps that are laid to capture and eliminate specific species end up killing animals of other species.
This brings us to…
What the DPSPs and fundamental duties say
The first mention of wildlife in the Indian Constitution is in Article 48A, a part of the DPSPs. It states that the state shall endeavour to protect and improve the environment and to safeguard forests and wildlife. Article 51A(g) under the fundamental duties also makes it the duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.”
In Sachidanand Pandey v. State of West Bengal (1987), the Supreme Court held that whenever an ecological issue is brought before the court, the justices have to bear in mind Articles 48A and 51A(g). The bench in that case also said that when the court is called upon to give effect to the DPSPs and fundamental duties, the least it can do is make sure it bears appropriate considerations in mind and excludes irrelevant information. However, the government often ignores ‘appropriate considerations’ and factors extraneous factors like public pressure into its decisions about declaring this or that species to be ‘vermin’.
Also in 1987, the Andhra Pradesh high court pointed out in a judgment that in view of Articles 48A and 51A(g), it is clear that the state and all its organs are obligated to protect the environment. So when the state allows animals to be culled, it is failing to fulfil this obligation.
Perhaps more significantly, the Supreme Court held in a later case that when faced with the question of testing the constitutional validity of a statutory provision or an executive act, the DPSPs and fundamental duties play a significant role. And a combined reading of all these cases makes it clear that Section 62 deserves to be reconsidered.
Where do we go from here?
Specifically, lawmakers should tailor down Section 62 of the Wildlife (Protection) Act 1972 such that it enables them to exercise greater caution when determining which animals ‘deserve’ to be hunted. Perhaps they as well as the courts can draw inspiration from Section 11(1)(b) of the Act, which allows the chief wildlife warden or an authorised officer to permit the hunting of an animal that has become dangerous to human life or property (including crops). It thus raises the threshold for determining whether an animal can be hunted as well as restricts the hunting to only those specific animals or groups of animals.
But in its current form, Section 62 fails to distinguish between individuals that are directly responsible for the destruction of crops and others of the same species. It also suffers from several legal infirmities, primarily vis-à-vis Articles 14 and 21. Our constitutional framework envisions a harmonious relationship between humans and the rest of the ecosystem. The section threatens this fragile relationship and challenges our fundamental human values of compassion, empathy and respect for other life forms.
Malavika Parthasarathy and Apoorva are independent legal researchers in Bangalore and Chandigarh.