# > INDIAN HANDICRAFTS EMPORIUM AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2003] Supp. 3 S.C.R. 43
- **Court:** Supreme Court of India
- **Decided:** 2003-08-27
- **Case number:** Civil Appeal No. 7533 of 1997
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-handicrafts-emporium-and-ors-v-union-of-india-and-ors-19326
- **Pages:** 57

## Headnote

>
INDIAN HANDICRAFTS EMPORIUM AND ORS.
A
v.
UNION OF INDIA AND ORS.
AUGUST 27, 2003
(V.N. KHARE, CJ., Y.K. SABHARWAL AND S.B. SINHA, JJ.] B
Constitution of India, 1950:
Articles 19(1)(g) and 14-Wi1d Life (Protection) Act, 1972 (as
amended)-Section 49C-Prohibition in trade of imported ivory-- C
Constitutional validity of-Held· Protection and preservation of wild life
was in public interest and amendment was made for saving endangered
species from extinction and to arrest further depletion-Hence restriction
imposed in public interest-Thus Amending Act 44 of 1991 not ultra vires
Articles 19(J)(g) and 14.
Article 300A-Right to property-Held: Is a human right and a
constitutional right but not a fundamental right-Every claim to property
would not be a property right-Control of property by State short of
deprivation would not entail payment of compensation.
Wild Life (Protection) Act, 1972 (as amended):
D
E
Sections 49-C, 40A-Trader and non-trader-Classification a/-
Held: Trader and non~trader constitute different classes-Classification
found on intelligible differentia clearly distinguishing one from another- F
Trader cannot be discriminated with vis-a-vis the non-trader.
Seizure of ivory from trader-Prohibition in carrying on tradeHeld: Restriction in matter of possession of ivory is implicit-Vesting of
possession by State inferred by necessary implication-Animal article to G
be handed over to the competent authority-No compensation payable.
Sections 39 and 49-C (7)-Prohibition of trade in imported ivorySeizure of ivory from trader-When property vests in the GovernmentHeld: Properties vest in the Government when criminal trial establishing
commission of an offence-On facts, there is absence of criminal trial and H
43
44
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A offence having been committed, Section 39 has no application, thus ivory
does not vest in the Government.
Trade in ivory permissible originally-Subsequently restriction
imposed by Act No. 28 of 1986-Thereafter, total prohibition imposed by
B Act No. 44 of 1991-Amendment Act No. 16 of 2003 imposing further
restrictions-Trader challenging constitutional validity of 1991 Act-Res
extra commercium-Applicability of-High Court applying principle of
res extra commercium-On appeal, held: In such a case doctrine of res
extra commercium cannot be invoked-Doctrines.
C
Sections 63 and 49-C-Seizure of ivory from trader-Guidelines by
Government with regard to disposal of stocks-Constitutionality of-Held:
In view of clear and unambiguous provisions of Section 49-C (1), (3), (5)
and (6) Government could not have given effect to the direction that trader
entitled to only one piece of article and rest to be destroyed-Applications
D to be disposed of in terms of Section 49-C-Government entitled to physical
possession of ivory in seizure-Articles in possession depicting cultural
and religious heritage to be displayed in museum and not to be destroyedConstitution of India, Article 300A.
E
Interpretation of Statutes:
Interpretation-Rule of-Purposive construction-8tatute is to be
read in entirety-Full effect to be given to purport and object of the Act.
Internal Aids-Words used/or declaring meaning of several wordsF Held: Words need interpretation-Same words used in the statute not carry
same meaning throughout-Doctrine of purposive construction to be
applied
Appellants are engaged in the business of manufacture and sale
of articles relating to art and craft manufactured from ivory. They
G legally imported ivory from African countries and manufactured
certain articles out of ivory. The Wild Life (Protection) Act, 1972 was
enacted to provide for the protection of wild animals, birds and plants
and other matters connected therewith. Indian elephant was brought
within the purview of Schedule 'A'. Thereafter, restrictions were
H imposed by Act No. 28of1986 on trade and commerce of wild animals.
•
...
INDIAN HANDICRAFTS EMPORIUM v. U.O.I.
45
By amendment Act No. 44 of 1991 Section 49-C was inserted

## Text

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>
INDIAN HANDICRAFTS EMPORIUM AND ORS.
A
v.
UNION OF INDIA AND ORS.
AUGUST 27, 2003
(V.N. KHARE, CJ., Y.K. SABHARWAL AND S.B. SINHA, JJ.] B
Constitution of India, 1950:
Articles 19(1)(g) and 14-Wi1d Life (Protection) Act, 1972 (as
amended)-Section 49C-Prohibition in trade of imported ivory-- C
Constitutional validity of-Held· Protection and preservation of wild life
was in public interest and amendment was made for saving endangered
species from extinction and to arrest further depletion-Hence restriction
imposed in public interest-Thus Amending Act 44 of 1991 not ultra vires
Articles 19(J)(g) and 14.
Article 300A-Right to property-Held: Is a human right and a
constitutional right but not a fundamental right-Every claim to property
would not be a property right-Control of property by State short of
deprivation would not entail payment of compensation.
Wild Life (Protection) Act, 1972 (as amended):
D
E
Sections 49-C, 40A-Trader and non-trader-Classification a/-
Held: Trader and non~trader constitute different classes-Classification
found on intelligible differentia clearly distinguishing one from another- F
Trader cannot be discriminated with vis-a-vis the non-trader.
Seizure of ivory from trader-Prohibition in carrying on tradeHeld: Restriction in matter of possession of ivory is implicit-Vesting of
possession by State inferred by necessary implication-Animal article to G
be handed over to the competent authority-No compensation payable.
Sections 39 and 49-C (7)-Prohibition of trade in imported ivorySeizure of ivory from trader-When property vests in the GovernmentHeld: Properties vest in the Government when criminal trial establishing
commission of an offence-On facts, there is absence of criminal trial and H
43
44
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A offence having been committed, Section 39 has no application, thus ivory
does not vest in the Government.
Trade in ivory permissible originally-Subsequently restriction
imposed by Act No. 28 of 1986-Thereafter, total prohibition imposed by
B Act No. 44 of 1991-Amendment Act No. 16 of 2003 imposing further
restrictions-Trader challenging constitutional validity of 1991 Act-Res
extra commercium-Applicability of-High Court applying principle of
res extra commercium-On appeal, held: In such a case doctrine of res
extra commercium cannot be invoked-Doctrines.
C
Sections 63 and 49-C-Seizure of ivory from trader-Guidelines by
Government with regard to disposal of stocks-Constitutionality of-Held:
In view of clear and unambiguous provisions of Section 49-C (1), (3), (5)
and (6) Government could not have given effect to the direction that trader
entitled to only one piece of article and rest to be destroyed-Applications
D to be disposed of in terms of Section 49-C-Government entitled to physical
possession of ivory in seizure-Articles in possession depicting cultural
and religious heritage to be displayed in museum and not to be destroyedConstitution of India, Article 300A.
E
Interpretation of Statutes:
Interpretation-Rule of-Purposive construction-8tatute is to be
read in entirety-Full effect to be given to purport and object of the Act.
Internal Aids-Words used/or declaring meaning of several wordsF Held: Words need interpretation-Same words used in the statute not carry
same meaning throughout-Doctrine of purposive construction to be
applied
Appellants are engaged in the business of manufacture and sale
of articles relating to art and craft manufactured from ivory. They
G legally imported ivory from African countries and manufactured
certain articles out of ivory. The Wild Life (Protection) Act, 1972 was
enacted to provide for the protection of wild animals, birds and plants
and other matters connected therewith. Indian elephant was brought
within the purview of Schedule 'A'. Thereafter, restrictions were
H imposed by Act No. 28of1986 on trade and commerce of wild animals.
•
...
INDIAN HANDICRAFTS EMPORIUM v. U.O.I.
45
By amendment Act No. 44 of 1991 Section 49-C was inserted which A
totally prohibited trade in imported ivory. The Act was to be made
operational within six months within which the trader could dispose
of his stock. Appellants did not take any step to dispose of the imported
ivory held in stock by them. However, they filed writ petitions
challenging the constitutionality and validity of the 1991 Amendment B
Act. High Court upheld the vires of the said Act. Hence the present
appeals and the writ petition.
Appellant-trader contended that the impugned provisions of the
Wild Life (Protection) Act, 1972 (as amended) are violative of Article
19(l)(g) of the Constitution as the right of the appellant to trade in C
ivory has unjustly been prohibited; that the Amending Act is also ultra
vires Article 14 of the Constitution being irrational and arbitrary; that
ivory which was placed in Appendix-I of the CITES has now been
placed iP Appendix-II thereof; that even assuming that the Amending
Act of 1991 was a valid piece of legislation, in the year 1991 having D
regard to the subsequent increase in the population of Elephant
worldwide the same is ultra vires Article 14; that in any event the
Amending Act being vague in nature is ultra vires Article 14; that the
statute cannot be construed only with reference to its objective sought
to be achieved without considering the constitutionality thereof; that E
the High Court wrongly applied the principle of 'res extra commercium'
in the instant case which is per se inapplicable; that the ivory which
ha!. legally been imported by the appellants prior to coming into force
of the 1991 Amendment Act, having not vested in the Government, the
appellants being in lawful possession havicg regard to the provisions F
of sub-section (3) of Section 49-C thereof, should be at liberty to deal
therewith; that once a declaration is filed with regard to stock-in-trade
in terms of sub-section (1) of Section 49-C, the Chief Wild Life Warden
should be held to be statutorily obliged to give to the appellants a
certificate of ownership in respect ofthe entire stock-in-trade, entitling
them to transfer the same to any person whether by way of gift, sale G
or otherwise, as is provided under sub-section (5) thereof; that there
does not exist any provision in the said Act for payment of compensation
and as the property vests in the Government only on certain conditions,
the appellant herein cannot be dispossessed ~1'erefrom without any
authority of law; that sub-section (7) of Section 49-C, must be H
46
SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
A construed so as to uphold the right of property of the appellants in the
property as otherwise the same would be rendered unconstitutional;
that Section 40A was inserted enabling the holders of stock of ivory
to file a fresh declaration; and for all intent and purport, appellants
prohibited from carrying trade in ivory should be held to be covered
B by the aforementioned provisions; and that the guidelines issued by the
respondents that out of the seized articles only one item shall be
released and the rest would be destroyed is ultra vires Section 63 as also
the rules framed thereunder.
Respondent-Union of India contended that the provisions of the
C amending Act giving sufficient time to the trader carrying on trade or
business in the imported African ivory to dispose of the same before
coming into force thereof whereafter their possession would become
illegal is reasonable; that a trader cannot claim the entire imported
ivory or the articles manufactured therefrom to be necessary for his
D bona fide personal use and in that view Chief Wild Life Warden has
been conferred with a discretionary jurisdiction to grant the certificate
of ownership in terms of sub-section (3) of Section 49-C in relation
thereto and only such articles in respect whereof; that these articles
can be transferred in terms of sub-section (6) of Section 49-C of the
E Act; that any article for which no certificate of ownership has been
granted, would fall within the mischief of sub-section (7) of Section 49C; that even non-traders are not entitled to possess ivory in terms of
Section 40(2A) of the Act; that the legislative policy in India has not
changed inasmuch from the minutes of meeting of CITES, it would
appear that India and Kenya differed with the proposal of five African
F countries; and that ivory still is in Appendix-I so far as India is
concerned.
Dismissing the appeals and writ petition, the Court
HELD: 1. The Wild Life (Protection) Act, 1972 (as amended) is
G intra vires Articles 19(l)(g) and 14 of the Constitution of India as the
restrictions imposed are reasonable. Thus, the Amending Acts are
constitutional, legal and valid. (67-C, 79-A, BJ
2.1. Dealing in imported ivory so long the law permits may be a
H fundamental right but if the statute prohibits it, it must be held to be
•.
INDIAN HANDICRAFTS EMPORIUM v. U.0.1.
47
a law within the meaning of Clause (6) of Article 19 of the Constitution A
in terms whereof reasonable restriction is imposed. A trade which is
dangerous to ecology may be regulated or totally prohibited, regulation
would include prohibition. 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 B
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. (67-D, 69-F)
Krishna Kumar Narula v. The State of Jammu and Kashmir & Ors.,
AIR (1967) SC 1368, relied on'.
C
Narender Kumar and Ors. v. Union of India and Ors., (1960) 2 SCR
375; State of Maharashtra v. Mumbai Upnagar Gramodyog Sang, (1969)
2 SCR 392; Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and
Ors., (1990) 1 SCC 109; Ramana Dayaram Shetty v. The International D
Airport Authority of India and Ors., AIR (1979) SC 1628; Har Shankar
v. Dy. Excise and Taxation Commissioner, AIR (1975) SC 1121; Municipal
Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed
Umanbhai and Anr., AIR (1986) SC 1205; Unni Krishnan J.P. and Ors.
v. State of Andhra Pradesh and Ors., (1993) 1 SCC 645; T.MA. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481; Sadan Singh v. New E
Delhi Municipal Committee, (1989) 4 SCC 155 and Islamic Academy of
Education and Anr. v. State of Karnataka and Ors., (2003) JT 7 SC 1,
referred to.
P. Crowley v. Henry Christensen, (1890) 34 Law. Ed. 620, referred F
to.
Constitution of India by Dr. D.D. Basu (Sixth Edition) Volume C, pp.
45-46, referred to.
2.2. Article 48-A of the Constitution enjoins upon the State to G
protect and improve the environment and to safeguard the forests and
wild life of the country. What is destructive of environment, forest and
wild life, thus, being contrary to the Directive Principles of the State
Policy which is fundamental in the governance of the couot:y aoust be
given its full effect. Similarly, the principles of Chapter IVA must also H
48
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A be given its full effect. Clause (g) of Article SIA requires every citizen
to protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living creatures.
The amendments have to be carried out keeping in view the
aforementioned provisions. [74-C-E)
B
2.3. Wild Life forms part of our cultural heritage. Animals play
a vital role in maintaining ecological balance. In the year, 1972 when
the said Act was enacted there might not have been any necessity to
preserve the elephant as also ivory. The species might not have been
on the brink of extinction. The Objects and Reasons set out for
C bringing in amendments in the said Acts in the years 1986, 1991 and
2003 clearly bring into force the necessity to take more and more
stringent measures so as to put checks on poaching and illegal trade
in ivory. The amendments have been brought for the purpose of saving
the endangered species from extinction as also for arresting depletion
D in their numbers caused by callous exploitation thereof. Therefore, it
cannot be accepted that protection and preservation of wild life would
not be in public interest and/or cannot be extended to imported ivory.
The submission that by reason of sale of ivory by the dealers, poaching
and killing of elephants would be encouraged, cannot be said to be
E irrational. [75-F-G)
2.4. There cannot be any doubt whatsoever thata law which was
at one point of time was constitutional may be rendered unconstitutional
because of passage of time. (73-E)
F
Kapila Hingorani v. State of Bihar, JT (2003) 5 SC 1 and John
Vallamattom and Anr. v. Union of India, JT (2003) 6 SC 37, relied on.
2.5. India being a sovereign country is not obliged to make law
only in terms of CITES, it may impose stricter restrictions having
G regard to the local needs. (76-B)
2.6. 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 cannot only enact a law for avoidance or evasion of
H commission of an illegal trade but also may make law to see that the law
•
•
...
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INDIAN HANDICRAFTS EMPORIUM v. U.0.1.
49
is not evaded by taking recourse to machination or camouflage. The A
loopholes, if any, in such matters can and should be plugged. 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. Furthermore, the Legislature has the requisite B
competence therefor to deal with stock-in-trade after imposing the ban.
[77-E-H]
United States v. Darby, 312 US 100 (1941), referred to .
2.7. The appellants trading in ivory would come within the
purview of the definition of the trader. For the purpose of Chapter VA C
the appellants remained traders despite the fact that they have been
prohibited from carrying on any business. For all intent and purport
the statute would treat the traders on a different footing than nontraders. They form a different and distinct class as such no question
of any discrimination arises. The classification is well-defined and well- D
perceptible. Traders and no.n-traders constitute t\\;'o different classes
and the classification is founded on an intelligible differentia clearly
distinguishing one from the other. Therefore, it cannot be accepted that
the amending Acts provide for arbitrary, unguided and unbridled
power. Furthermore, it cannot be said that appellants are covered by
Section 40(2A); and that having regard to the provisions contained in E
Section 40(2A) that the traders have been discriminated with vis-a-vis
the non-traders. [78-A, 78-B, 78-C, 77-C, 78-B)
2.8. A machinery must be so construed as to effectuate the liability
imposed by the charging section and to make the machinery workable- F
ut res magis valeat quam pereat. (78-F)
D. Saibaba & Bar Council of India and Anr., JT (2003) 4 SC 435
and Welfare Assocn. A.R.P. Maharashtra & Anr. v. Ranjit P. Gohil & Ors.,
(2003) 2 SCALE 288, relied on.
2.9. There is no vagueness in any of the provmons of the
impugned acts including the definition of 'wild animal'. It is clear and
unambiguous. [78-E-F)
G
Hamdard Dawakhana (Walif) Lal Kuan, Delhi and Anr. v. Union of
India and Ors., [1960] 2 SCR 671 and Rustom Vavasjee Cooper v. Union H
50
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A of India (1970] 3 SCR 530, referred to.
3.1. 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
B prohibited in the year 1991. The Amendment Act, 2003 brought about
further changes in terms whereof further restrictions have been
imposed even on the private owners to possess ivory or any other
animal article. Therefore, the doctrine of 'res extra commercium'
cannot be invoked. (79-C-D]
c
Constitution of India by Dr. D.D. Basu (Sixth Edition) Volume L, p.
238, referred to.
3.2. All international trade in elephants or articles thereof including
Asian elephants (Indian species) is prohibited as it continues to be listed
D in Appendix I of CITES excepting for eertain specified African
elephant populations of Botswana, Namibia, South Africa and Zimbabwe
which have now been listed in Appendix II. This limited trade has been
allowed under very strict conditions as mentioned in the CITES
Appendix. Further, India at the CITES Conference (2002) had seriously
E opposed permitting of such limited trade and had even submitted a
proposal for a continuation of the ban on ivory trade. [79-F-G)
4.1. Any trader who has imported ivory legally into India prior
to coming into force of the Act of 1991, is completely prohibited from
carrying on trade or commerce in relation to ivory imported into India
F or any article made therefrom. However, he would be entitled to keep
possession thereof in tlac mode and manner provided for in Section 49C of the Act. In terms of sub-section (I) of Section 49-C of the Act,
he is entitled to file a declaration disclosing his stocks of ivory imported
into India or articles made therefrom. Any person who obtains
G ownership certificate under sub-section (3) of Section 49-C only may
keep possession of the property certificatl' and would be entitled to
transfer or transport such item as provided for in sub-section (6) of
Section 49-C. In the event no certificate of ownership is gr~nted in
favour of a trader, in terms of sub-section (7) of Section 49-C, he would
H be disentitled not only from selling or offering for sale or transfer the
..
•
. ,....
INDIAN HANDICRAFTS EMPORIUM v. U.0.1.
51
said items but also from keeping the said items under his control. If A
the person acts to the contrary he would be subject to penalty under
sub-section (1-A) of section 51 and under section 51(2) the property
may be forfeited by the Government, in which event, clause(c) of
section 39 would be attracted. Therefore, the provisions of the Act are
not anomalous in nature. [56-F-H, 57-A-B]
B
4.2. In terms of the provisions of the Wild Life (Protection) Act,
1991, ivory or any article made therefrom can not be subject matter
of trade or commerce and having regard to the proviso appended to
sub-section (3) of Section 49-C such item cannot be kept for display
in any commercial premises. Further, by reason of the provisions of C
the said Act, the trader was given six months' time to dispose of the
articles in his possession. Such articles could only be kept for personal
use which must be a bona fide one. Once the requirement for keeping
the possession of such article by a trader had specifically been laid
down, it cannot be said that the Chief Wild Life Warden had been D
conferred with unguided power to declare any item as being capable
of bona fide personal use of a trader. In the event, an order is passed,
the person dissatisfied therewith, may prefer an appeal in terms of subsection (5) thereof. Against such original orders or appellate orders,
even a judicial review would be maintainable. [86-8-EJ
E
4.3 Under section 49-C the legislature has deliberately used the
words 'bonafide personal use' and has placed the onus on the traders
to prove the same so as to be entitled to retain the articles out of the
stocks declared by it. This requirement is due to the fact that the
acquisition of an animal article by an individual non-trader at the time F
of purchase would be presumed to be one for his own personal bonafide
use and in the case of the traders it would be solely be for the purpose
of sale as reflected in the stock of a trader. Hence, the imposition of
the requirement of personal bonafide use in the case of traders cannot
be said to be discriminatory or arbitrary or irrational or perverse G
entitling the appellants to continue to have control thereover. (87-E)
4.4. Section 40-A has been incorporated solely for the purpose of
mitigating the omission of individual non-traders who due to lack of
information L'r ignorance could not declare the animal articles in their H
52
SUPREME COURT REPORTS (2003) SUPP. 3 S.C.R.
A possession within the limited period of30 days from the commencement
of the 1972 Act as specified in Section 40 of the Act. By reason thereof
another chance has been given to the non-traders to make a declaration.
All the appellant traders on the other hand had admittedly applied
within the period of30 days as specified in Section 44 of the Act. Hence the
B object and purpose of Section 40-A is limited to individual non-traders
and does not discriminate the individual owners and traders. [83-D-F)
4.5. A trader in terms of a statute is prohibited from carrying on
trade. He also cannot remain in control over the animal article.
Imported ivory falls within the definition o. 'animal article' in Section
C 2(2) of the Act. The logical consequence wherefor would be that he
must be deprived of the possession of the animal article including
imported ivory which must, therefore, be handed over to the competent
authority. In a case of this nature where a statute has been enacted in
public interest, restriction in the matter of possession of the property
D must be held to be implicit. If s~ction 49(7) is not so construed, it
cannot be given effect to. Therefore, the a::ipellants have no right to
possess the articles in question. Keeping in view the fact that the
provisions of the statute have been held to be intra vires the question
of compensating the appellants would not arise as vesting of possession
thereof in the State must be inferred by necessary implication.
E
[97-H, 98-A-CJ
Motor General Traders and Anr. v. State of Andhra Pradesh and
Ors., [1984) 1 SCC 222; Rattan Arya and Ors. v. State of Tamil Nadu and
Anr., (1986) 3 SCC 385 and Synthetics and Chemicals Ltd and Ors. v.
F State of U.P. and Ors., [1990) I sec 109, referred to.
5. As and when a seizure is made and the trader is prosecuted for
alleged commission of an offence having regard to sub-section (7) of
Section 49-C of the Act, adjudication must be made by a competent
court of law having jurisdiction in this behalf. Before a person is
G convicted a court has to arrive at the finding that the accused has
committed an offence wherefor a full-Hedged criminal trial would be
necessary. In the absence of such criminal trial and offence having
been found committed, Section 39 may not have any application.
Therefore, the properties do not stand vested in the Government in
H terms thereof. (87-G-H, 88-A)
•
•
·~ .
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INDIAN HANDICRAFTS EMPORIUM v. U.O.l.
53
6.1. It is now well-settled that for the purpose of interpretation of A
statute the entire statute is to be read in entirety. The purport and object
of the Act must be given its full effect Furthermore, in case of this nature,
principles of purposive nature must come into play. (88-C-D(
6.2. The words, which are used in declaring the meaning of other
words, may also need interpretation and the legislature may use a word B
in the same statute in different sense. The expression as defined in the
interpretation clause would necessarily not carry the same meaning
throughout the statute. Therefore, the doctrine of purposive construction
must be applied in a situation of this nature. (96-F, 97-GI
Chief Justice of A.P. v. L. V:A. Dikshitulu, AIR (1979) SC 193; Kehar C
Singh v. State (Delhi Admn.), AIR (1988) SC 1883; District Mining
Officer v. Tata Iron & Steel Co., JT (2001) 6 SC 183; State of A.P. v. Mc.
Dowell Company, AIR (1996) SC 1627; High Court of Gujarat v. Gujarat
Kishan Mazdoor Panchayat and Ors., (2003) 4 SCC 712; Mis. Qutab
Enclave Complex Edu. Charif. Trust v. State of Haryana & Ors., (2003) D
2 SCALE 145 and State of Maharashtra v. Indian Medical Association
and Others (2002] 1 SCC 580, referred to.
7. Right to property is a human right as also a constitutional right.
But it is not a fundamental right. Each and every claim to property
would not be a property right. Control of property by State short of E
deprivation would not entail payment of compensation. (98-D-El
Davies v. Minister of Land. Agriculture and Water Development,
(1997] 1 LRC 123 (Zimbabwe Supreme Court), referred to.
Interpreting Convention Rights by Hugh Tomlinson and Vina Shukla, F
p. 470, referred to.
8. The guidelines issued by the Central Government with regard
to the disposal of stock of ivory do not meet the requirements of law
particularly Section 63 of the Act. Keeping in view the clear and
unambiguous provisions contained in sub-sections (1), (3), (5) and (6) G
of Section 49-C, the Central Government could not have directed that
the appellants would be entitled to only one piece of article and the rest
would be destroyed. Therefore, these guidelines cannot be given effect
to and the appellants may pursue their remedies, if any, in terms of
sub-section (3) of Section 49-C of the Act and their applications be H
54
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A disposed of. Further, the respondents would be entitled to take physical
possession of the ivory now in seizure. The appropriate authority
would be entitled to continue to keep in possession the said articles
depicting cultural and religious heritage. However, it is directed that
the same be kept at appropriate museums or at such suitable places
B where the statutory authorities feel fit and proper but they should not
be destroyed. (98-G-H, 99-D-EI
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7533 of
1997.
C
From the Judgment and Order dated 20.3.97 of the Delhi High Court
in C.W.P. No. 1272 of 1992.
WITH
C.A. Nos. 7534, 7535/97 and W.P. (C) No. 35 of 2003.
D
G.L. Sanghi, P.P. Malhotra, Tapash Ray, Pramod Saigal, Vipin
Sanghi, Ms. Rachna Jain, Siddharth Khattar, E.C. Agrawala, San jay 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. Panneswaran, Ms. Anil Katiyar, Ms. Bela
Maheshwari, J.S. Attri, Raj Panjwani, vijay Panjwani, Iqbal Shamsi, B.B.
E 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 Sanna, Ms. Asha G. Nair and
V .K. Sidharthan for the appearing parties.
F
The Judgment of the Court was delivered by
S.B. SINHA, J : INTRODUCTORY REMARKS:
Applicability of the provisions of the Wild Life (Protection) Act, 1972
G is in question in this set of appeals which arise out of a common judgment
and order dated 20.3.1997 passed by a Division Bench of the Delhi High
Court. The appellants herein are engaged in the business of manufacture
and sale of articles relating to art and craft manufactured from ivory. The
appellants herein imported ivory from African countries.
They have
manufactured certain articles out of the same. It is not in dispute that the
H said import had legally been made as there did not exist any restriction in
INDIAN HANDICRAFTS EMPORIUM v. U.O.l. [SINHA, J.]
55
that regard.
A
The Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the
said Act' for the sake of brevity) was enacted to provide for the protection
of wild animals, birds and plants and for matters connected therewith or
ancillary thereto or incidental therewith. Indian elephant was brought
within the purview of Schedule A of the Act on or about 5.10.1977. The B
Union of India also banned export of ivory in the said year.
Chapter V of the said Act deals with trade or commerce in wild
animals, animal articles and trophies. By Act No. 28 of 1986 Chapter
V-A was inserted therein whereby and restrictions were imposed on trade
or commerce in wild animals, cattle and trophies. By Act No. 44 of 1991, C
Section 49-C was inserted in Chapter V-A whereby and where-under a total
prohibition in trade of imported ivory was imposed. The said Act was
brought into force by the Government of India by issuing a Notification
dated 27.9.1991 with effect from 2.10.1991. Six months' time had been
granted to make the said Act operational, that is to say, until 2.4.1992. D
Within the aforementioned period, the trader, thus, could dispos.: of his
stock.
The appeliants herein filed writ petitions before the Delhi High Court,
inter a/ia, questioning the constitutionality and validity of the 1991
Amendment Act prohibiting trade in the imported ivory on several E
grounds. The High Court by an interim order dated 26.3.1992 stayed the
operation of the Act. The said interim order was, however, vacated on
22.5.1992. The appellants herein did not take any step to dispose of the
imported ivory held in stock by them even during the said period.
By reason of the impugned judgment the High Court upheld the vires F
of the said Act. Against the said judgment the appellants are in appeal
before us.
SUBMISSIONS OF THE APPELLANTS
Mr. G.L. Sanghi, the learned senior counsel appearing for the G
appellants, would urge that the impugned provisions of the Act are
violative of Article 19(1 )(g) of the Constitution of India inasmuch as
thereby the right of the appellant to trade in ivory has unjustly been
prohibited. The learned counsel would submit that restrictions imposed by
reason of the said Act being excessive, the same must be held to be
confiscatory in nature. The Amending Act is also ultra vires Article 14 H
56
SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
A of the Constitution of India, being irrational and arbitrary. The learned
counsel has drawn our attention to the fact that the population of elephants
has gone up in several countries, e.g., Botswana, South Africa, Namibia
and Zimbabwe, and these countries have been permitted by Convention on
International Trade in Endangered Species of Wild Fauna and Flora (for
B short 'CITES') to deal in ivory subject of course to certain restrictions. Our
attention has further been drawn to the fact that ivory which was placed
in Appendix-I of the CITES has now been placed in Appendix-II thereof.
It was also submitted that ivory collected from dead animals should also
be permitted to be dealt in.
C
It was urged that even assuming that the Amending Act of 1991 was
a valid piece of legislation, in the year 1991 having regard to the
subsequent event viz. increase in the population of Elephant worldwide the
same may be held to be ultra vires Article 14 of the Constitution of India.
Strong reliance in this behalf has been placed on Motor General Traders
and Anr. v. State of Andhra Pradesh and Ors., (1984] l SCC 222, Rattan
D Arya and Ors. v. State of Tamil Nadu and Anr., (1986] 3 SCC 385 and
Synthetics and Chemicals Ltd and Ors. v. State of UP. and Ors., (1990)
1 SCC 109. The learned counsel would submit that in any event the
Amending Act being vague in nature, the same should be held ultra vires
Article 14 of the Constitution oflndia. Reliance in this connection has been
E placed on Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Anr. v. Union
of India and Ors., (1960) 2 SCR 671.
Mr. Sanghi, would further submit that the ivory which has legally
been imported by the appellants herein prior to coming into force of the
1991 Amendment Act, having not vested in the Government, the appellants
F should be held to be at liberty to deal therewith. According to the learned
counsel ivory having lawfully been imported and the appellants having,
thus, been in lawful possession thereof, there could be no reason as to why
they should be deprived of the possession therefrom, particularly having
regard to the provisions of sub-section (3) of Section 49-C thereof. It was
G urged that once such a declaration is filed in terms of sub-section (I) of
Section 49-C, the Chief Wild Life Warden should be held to be statutorily
obligated to give to the appellants a certificate of ownership in respect of
the entire stock-in-trade, entitling them to transfer the same to any person
whether by way of gift, sale or otherwise, as is provided under sub-section
H (6) thereof. The learned counsel would argue that there does not exist any
•
•
•
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.]
57
provision in the said Act for payment of compensation and as the property A
vests in the Government only on certain conditions, the appellants herein
cannot be dispossessed therefrom without any authority of law and in that
view of the matter, the impugned provisions must be held to be ultra vires
Article 300A of the Constitution. Sub-section (7) of Section 49-C, Mr.
Sanghi would submit, must be construed so as to uphold the right of B
property of the appellants in the property as otherwise the same would be
rendered unconstitutional.
According to the learned counsel, the Parliament amended the Act by
way of Act 16 of2003, in terms whereof Section 40A was inserted enabling
the holders of stock of ivory to file a fresh declaration. The learned counsel C
would contend that having regard to the fact that the appellants are prohibited
from carrying on any trade or business in ivory, for all intent and purport,
they should be held to be covered by the aforementioned provisions. In any
event, the learned counsel would contend that the guidelines issued by the
respondents must be held to be ultra vi res Section 63 of the Act as also the D
rules framed thereunder, and, thus, the Central Government cannot be said
to have any jurisdiction to direct that out of the seized articles, only one
item shall be released and the rest would be destroyed. Such a power
conferred upon the statutory authority being wholly arbitrary as thereby
unbriddled power has been conferred, the same must also be held ultra vires
Article 14 of the Constitution. Mr. Sanghi would urge thatthe statute cannot E
be construed only with reference to its objective sought to be achieved
without considering the constitutionality thereof. Strong reliance in this
behalf has been placed on Rust om Cavasjee Cooper v. Union of India, [1970]
3 SCR 530.
The learned counsel would further submit that the High Court
wrongly applied the principle of'res extra commercium' in the instant case
which is per se inapplicable.
SUBMISSIONS OF THE RESPONDENTS:
F
Mr. Malhotra and Mr. Panjwani, learned counsel appearing on behalf G
of the respondents, on the other hand, would submit that having regard the
purpose and object, the said Act seeks to achieve, there cannot be any doubt
whatsoever that the Parliament has the requisite legislative competence.
By reason of the provisions of the Amending Act 28 of 1986, trade in
various articles had been prohibited. Imported ivory was, however, brought H
58
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A within the purview of Act 44 of 1991. The learned counsel would contend
that a bare perusal of the provisions of the 1986 and 1991 Amending Acts
would clearly go to show that the intention of the Parliament was that those
who carry on trade '.lr business in the imported African ivory should
dispose of the same within a period of six months i.e. before coming into
B force thereof whereafter their possession would become illegal, subject,
however, to the grant of certificate of ownership by the Chief Wild Life
Warden in terms of sub-section (3) of Section 49-C of the said Act. It was
submitted that a trader cannot claim the entire imported ivory or the articles
manufactured therefrom to be necessary for his bona fide personal use and
in that view of the matter the Chief Wild Life Warden has been conferred
C with a discretionary jurisdiction in relation thereto and only such articles
in respect whereof the certificate of ownership is issued, can be subject
matter of the transfer in terms of sub-section (6) of Section 49-C of the
Act. Any article in respect whereof no certificate of ownership has been
granted, would fall within the mischief of sub-section (7) of Section 49C. Such a provision, it was urged, must be held to be reasonable as a trader
D was given sufficient time to dispose of all the articles in his possession.
Drawing our attention to the provision of the Wild Life (Protection)
Act, 1972, Mr. Malhotra would submit that the trade and possession of
ivory having been totally prohibited. Even non-traders are not entitled to
E possess the same in terms of Section 40(2A) of the Act. The learned
counsel would further submit that it would not be correct to contend that
legislative policy has changed in India inasmuch from the minutes of
meeting of CITES, it would appear that India and Kenya differed with the
proposal of five African countries that they be permitted to trade in ivory
for any purpose whatsoever. Our attention was further drawn to the fact
F that ivory still is in Appendix-I so far as India is concerned.
STATUTORY PROVISIONS:
The said Act was enacted to provide for the protection of wild
animals, birds and plants and for matters connected therewith or ancillary
G thereto or incidental therewith. Section 2 thereof contains the interpretative
provisions. Some of the relevant provisions are :
2. Definitions. -In this Act, unless the context otherwise requires,-
[(!)"animal" includes mammals, birds, reptiles, amphibians, fish,
H
other chordates and invertebrates and also includes their young
..
•
,
•
INDIAN HANDICRAFTS EMPORIUM v. U.O.l. [SINHA, J.]
59
and eggs;]
A
(2) "animal article" means an article made from any captive
animal or wild animal, other than vermin, and includes an article
or object in which the whole or any part of such animal [has been
used, and ivory imported into India and an article made therefrom];
(11) "dealer" in relation to any captive animal, animal article,
trophy, uncured trophy, meat or specified plant, means a person,
who carries on the business of buying or selling any such animal
or article, and includes a person who undertakes business in any
single transaction;
( 14) "Government property" means any property referred to in
section 39; [or section ! 7H;]
(36) "wild animal" means any animal specified in Schedules I to
IV and found wild in nature;"
B
c
Chapter V of the Act deals with trade or commerce in wild animals, D
animal articles and trophies.
Section 39(l)(c) occurring in Chapter V of the said Act provides that
every ivory imported into India and an article made from such ivory in
respect of which any offence against this Act or any rule or order made E
there-under has been committed, shall be the property of the State
Government.
Section 40 provides for declaration. Sub-section (I) whereof is in
the following terms :
40. Declarations.-(!) Every person having atthe commencement F
of this Act the control, custody or possession of any captive
animal specified in Schedule I or Part II of Schedule II, [or animal
article, trophy or uncured trophy] derived from such animal or
salted or dried skins of such animal or the musk of a musk deer
or the horn of a rhinoceros, shall, within thirty days from the G
commencement of this Act, declare to the Chief Wild Life Warden
or the authorised officer the number a!ld description of the animal,
or article of the foregoing description under his control, custody
or possession and the place where such animal or article is kept".
Sub-section (2) of Section 40 prohibits acquisition, receiving, keeping H
60
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A in his control, custody or possession, sell, offer for sale or otherwise
transfer or transport any animals specified in Schedule I or Part II of
Schedule II and allied things by any person whatsoever.