2003 Supreme(SC) 813

2003(6) Supreme 439
Supreme Court of India
(From Delhi High Court)
V.N. Khare, CJI., Y.K. Sabharwal & S.B. Sinha, JJ.
Indian Handicrafts Emporium & Ors. —Appellants
versus
Union of India & Ors. —Respondents
Civil Appeal No. 7533 of 1997
With
Civil Appeal Nos. 7534, 7535/1997 and W.P. (C) No. 35/2003
Decided on 27-8-2003
Counsel for the Parties :
For the Appearing Parties : G.L. Sanghi, P.P. Malhotra, Tapash Ray, Sr. Advocates, Pramod Saigal, Vipin Sanghi, Ms. Rachna Jain, Siddharth Khattar, E.C. Agrawala, Sanjay Parikh, Avinash K. Misra, A.N. Singh, P. Sridhar, M. Srinivas R. Rao, Sudhir Mishra, Sridhar Potaraju, Pankaj Singh, Rajiv Nanda, C.V.S. Rao, Prateek Jalan, Ajay Sharma, P. Parmeswaran, Ms. Anil Katiyar, Ms. Bela Maheshwari, J.S. Attri, Raj Panjwani, Vijay Panjwani, Iqbal Shamsi, B.B. Singh, J.M. Rao, Satish Vig, Sakesh Kumar, S.K.Agnihotri, K.R. Nagaraja, Manish Singhvi, Ashok K. Mahajan, Sanjay R. Hegde, Anil K. Mishra, Satya Mitra, Ranji Thomas, Ms. Bharati Upadhyaya, V.N. Raghupathy, Gopal Singh, Amit Kr. Poddar, Ms. Krishna Sarma, Ms. Asha G. Nair, V.K. Sidharthan, Advocates.

Important point
A trade or commerce in relation to ivory has been totally prohibited and even such item cannot be kept for display in any commercial premises.

Headnote:(i) Wild Life (Protection) Act, 1972 as amended by Act No. 44 of 1991—Sections 2, 39(1)(c), 40, 40A, 41, 49C —Total prohibition in trade of imported ivory—Validity challenged—Appellants engaged in business of manufacture and sale of articles relating to art and craft manufactured from ivory—Appellants imported ivory from African countries—Import had legally been made as there did not exist any restriction in that regard—Provisions prohibiting trade in ivory challenged as violative of Article 19(1)(g) of Constitution India—Whether a trade which is dangerous to ecology may be regulated or totally prohibited—(Yes)—Total prohibition in such a case held reasonable—Amending Act held constitutional, legal and valid.

       Held : 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. (Para 32)

       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. (Para 38)

       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. Para 40)

       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. (Para 45)

       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. (Para 53)

       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 in United States vs. Darby [312 US 100 (1941)] is an illustration on 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. (Para 62)

       (ii) Wild Life (Protection) Act, 1972 as amended by Act No. 44 of 1991—Wild Life (Protection) Amendment Act, 2002 (Act No. 16 of 2003)—Trading in ivory, total prohibition—By reason of Amending Act of 2003, possession of ivory by a trader or a person is completely banned—Classification of traders and non traders—Whether discriminatory—(No)—Classification is well defined and well perceptible—Traders and non traders constitute two different classes—Classification founded on intelligible differentia. (Para 63)

       Held : 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. (Para 80)

       (iii) Wild Life (Protection) Act, 1972—Section 49-C—Trading in ivory, total prohibition—Doctrine of ‘res extra­ commercium’ cannot be invoked.

       Held : 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 above further changes in terms whereof further restrictions have been imposed even on the private owners to possess ivory or any other animal article. (Para 70)

       (iv) Wild Life (Protection) Act, 1972—Section 49-C as inserted by Act No. 44 of 1991—Trading in ivory, total prohibition—Whether traders are entitled to possess animal articles or the property automatically vest in the government.

       Held : 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. (Paras 87 and 88)

       (v) Wild Life (Protection) Act, 1972—Section 49-C—Ivory trade, complete prohibition—Even such items cannot be kept for display in any commercial premises—Appellants, traders given six months time to dispose of articles in possession—However, appellants did not take any step to dispose of imported ivory held in stock by them—What would happen to the property in question—Whether Central Government should destroy articles including idols of gods and goddesses and house hold items like sofa sets depicting cultural and religious heritage—(No)—Articles to be kept at appropriate museums or at such places where the statutory authorities fell fit and proper but they should not be destroyed. (Paras 116 to 118)

       (vi) Interpretation of Statutes—Object and purpose—Purposive construction, principles of—For purpose of interpretation of statute the entire statute is to be read in entirety—Purport and object of the Act must be given its full effect. (Paras 27, 98 and 99)