Holding

The 1991 amendment to the Wild Life (Protection) Act, 1972 prohibiting trade in imported ivory is a reasonable restriction within the scope of Articles 19(1)(g) and 14, and the related provisions on seizure, classification, and non‑vestment of property are constitutionally valid.

Summary

The appellants, Indian Handicrafts Emporium and others, were traders who had legally imported ivory and manufactured articles from it before the 1991 amendment to the Wild Life (Protection) Act, 1972 prohibited any trade in imported ivory. They challenged the constitutional validity of the amendment on grounds of violation of Articles 19(1)(g), 14 and 300A of the Constitution, alleging unreasonable restriction, discrimination between traders and non‑traders, and lack of compensation. The Supreme Court held that the prohibition was a reasonable restriction in the public interest of wildlife conservation and therefore intra vires Articles 19(1)(g) and 14. It further ruled that the classification of traders versus non‑traders was based on intelligible differentia, that the seizure and vesting of ivory in the State did not require compensation absent a criminal conviction, and that the doctrine of res extra commercium could not be invoked. The Court also declared the Central Government’s guidelines under Section 63 invalid and ordered that seized ivory be retained in museums rather than destroyed. Consequently, the appeals and writ petitions were dismissed.

Issues considered

The amendment prohibiting trade in imported ivory violates Article 19(1)(g) of the Constitution.
The amendment is arbitrary and irrational, infringing Article 14.
The classification of traders and non‑traders under the Act is discriminatory.
Whether ivory seized from traders vests in the State under Section 39 and whether compensation is due under Article 300A.
The applicability of the doctrine of res extra commercium to ivory trade.
The validity of the Central Government’s guidelines issued under Section 63 of the Act.

Legislation cited

Constitution of Indias. Article 14, s. Article 19(1)(g), s. Article 300A, s. Article 48-A, s. Article 51-A

Subjects

Wild Life (Protection) ActIvory trade prohibitionArticle 19(1)(g)Article 14Article 300ARes extra commerciumStatutory interpretationReasonable restrictionEnvironmental protectionCITESProperty rightsCompensationTrader classificationSeizure and forfeiture

Judgment

>
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.
D
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.
E
Wild Life (Protection) Act, 1972 (as amended):

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 trade-
Held: 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 ivory-
Seizure of ivory from trader-When property vests in the Government-
Held: 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 ofstocks-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 ofin terms ofSection 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 destroyed-
Constitution of India, Article 300A.

Interpretation of Statutes:
E
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 ofseveral words-
F 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 49-
C; 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 ofJammu and Kashmir & Ors.,
AIR (1967) SC 1368, relied on'. C
Narender Kumar and Ors. v. Union ofIndia 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 ofKarnataka, (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 ofIndia 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
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 non-
traders. 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.
G
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)

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 49-
C 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 sub-
section (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)

·~ .
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

ChiefJustice ofA.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 ofGujarat 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, 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. 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 vires 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 Rustom Cavasjee Cooper v. Union ofIndia, [1970]
3 SCR 530.

The learned counsel would further submit that the High Court
F
wrongly applied the principle of'res extra commercium' in the instant case
which is per se inapplicable.

SUBMISSIONS OF THE RESPONDENTS:

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 49-
C. 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];
B
(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
c
section 39; [or section ! 7H;]

(36) "wild animal" means any animal specified in Schedules I to
IV and found wild in nature;"

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
there-under has been committed, shall be the property of the State
E
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. Sub-sections (2A)
and (2B) which have been inserted by Act 16 of 2003 read thus :

"(2A) No person other than a person having a certificate of
B ownership, shall, after the commencement of the Wild Life
(Protection) Amendment Act, 2002 acquire, receive, keep in his
control, custody or possession any captive animal, animal article,
trophy or uncured trophy specified in Schedule I or Part II of
Schedule II, except by way of inheritance.
c (2B) Every person inheriting any captive animal, animal article,
trophy or uncured trophy under sub-section (2A) shall, within
ninety days of such inheritance make a declaration to the Chief
Wild Life Warden or the authorised officer and the provisions of
sections 41 and 42 shall apply as if the declaration had been made
D under sub-section (1) of section 40:

Provided that nothing in sub-sections (2A) and (2B) shall apply
to the live elephant.]

(3) Nothing in sub-section ( 1) or sub-section (2) shall apply to a
E recognised zoo subject to the provisions of section 381 or to a
public museum.

(4) The State Government may, by notification, require any
person to declare to the Chief Wild Life Warden or the authorised
F officer [any animal or animal article] or trophy (other than a musk
of a musk deer or horn of a rhinoceros) or salted or dried skins
derived from an animal specified in Schedule I or Part II of
Schedule II in his control, custody or possession in such form, in
such manner, and within such time, as may be prescribed."
G Section 40A provides for immunity in certain cases which is in the
following terms :

"40A. Immunity in certain cases.- (I) Notwithstanding
anything contained in sub-sections (2) and (4) of section 40 of this
H Act, the Central Government may, by notification, require any

'•
INDIAN HANDICRAFTS EMPORIUM v. U.O.l. [SINHA, J.] 61
person to declare to the Chief Wild Life Warden or the authorised A
officer, any captive animal, animal article, trophy or uncured
trophy derived from animals specified in Schedule I or Part JI of
Schedule II in his control, custody or possession, in respect of
which no declaration had been made under sub-section (I) or sub-
section (4) of section 40, in such form, in such manner and within B
such time as may be prescribed.

(2) Any action taken or purported to be taken for violation
of section 40 of this Act at any time before the commencement
of the Wild Life (Protection) Amendment Act, 2002 shall not be
proceeded with and all pending proceedings shall stand abated. C
(3) Any captive animal, animal article, trophy or uncured
trophy declared under sub-section ( 1) shall be dealt with in such
manner and subject to such conditions as may be prescribed."

Section 41 deals with inquiry and preparation of inventories which
is in the following terms : D
41. Inquiry and preparation of inventories. - (I) On receipt of
a declaration made under section 40, the Chief Wild Life Warden
or the authorised officer may, after such notice, in such manner
and at such time, as may be prescribed,-
E
(a) enter upon the premises of a person referred to in section 40;

(b) make inquiries and prepare inventories of animal articles,
trophies, uncured trophies, salted and dried skins and captive
animals specified in Schedule I and Part II of Schedule II and
found thereon; and F
(c) affix upon the animals, animal articles, trophies or uncured
trophies identification marks in such manner as may be prescribed.

(2) No person shall obliterate or counterfeit any identification
mark referred to in this Chapter.
G
Chapter V-A was brought into the statute book by ActNo.28of1986.
"Scheduled animal" has been defined in clause (a) of Section 49-A in the
following terms :

"(a) 'scheduled animal' means an animal 5perified for the time
being in Schedule I or Part II of Schedule II;" H
62 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A Clause (c) of Section 49-A defines 'specified date' which in relation
to ivory imported into India or an article made therefrom would mean the
date of expiry of six months from the commencement of Wild Life
(Protection) Amendment Act, 1991. The said provision was inserted by
Act No. 44 of 1991.

B Section 49-B provides that subject to the other provisions of the said
Section, on and after the specified date, no person shall commence or carry
on the business as a manufacturer of, or dealer in, scheduled animal article,
or a dealer in ivory imported into India or articles made therefrom or a
manufacturer of such articles. •
c Section 49-C of the said Act reads as under :

"49-C. Declaration by dealers. - (I) Every person carrying on
the business or occupation referred to in sub-section ( 1) of Section
49-B shall, within thirty days from the specified date, declare to
the Chief Wild Life Warden or the authorised officer, -
D
(a) his stocks, if any, as at the end of the specified date of -

(i) scheduled animal articles;

(ii) scheduled animals and parts thereof;
E
(iii) trophies and uncured trophies derived from scheduled
animals;

(iv) captive animals, being scheduled animals;

(v) ivory imported into India or articles made therefrom;
F
(b) the place or places at which the stocks mentioned in the
declaration are kept; and

(c) the description of such items, if any, of the stocks mentioned
in the declaration which he desires to retain with himself for
G his bona fide personal use.

(2) On receipt ofa declaration under sub-section (1), the Chief
Wild Life Warden or the authorised officer may take all or any
of the measures specified in Section 41 and for this purpose, the
H provisions of Section 41 shall, so far as may be, apply.
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 63

(3) Where, in a declaration made under sub-section ( 1), the A
person making the declaration expresses his desire to retain with
himself any of the items of the stocks specified in the declaration
for his bona fide personal use, the Chief Wild Life Warden, with
the prior approval of the Director, may, if he is satisfied that the
person is in lawful possession of such items, issue certificates of B
ownership in favour of such person with respect to all, or as the
case may be, such of the items as in the opinion of the Chief Wild
Life Warden, are required for the bona fide personal use of such
person and affix upon such items identification marks in such
manner as may be prescribed :

Provided that no such items shall be kept in any commercial
c
premises.

(4) No person shall obliterate or counterfeit any identification
mark refared to in sub-section (3 ).
D
(5) An appeal shall lie against any refusal to grant certificate of
O'Nnership under sub-section (3) and the provisions of sub-
sections (2), (3) and (4) of Section 46 shall, so far as may be, apply
in relation to appeals under this sub-section.

( 6) Where a person who has been issued a certificate of ownership E
under sub-section (3) in respect of any item,-

(a) transfers such items to any person, whether by way of
gift, sale or otherwise, or

(b) transfers or transports from the State in which he F
resides to another State any such item,

he shall, within thirty days of such transfer or transport, report the
transfer or transport to the Chief Wild Life Warden or the
authorised officer within whose jurisdiction the transfer or transport G
is effected.

(7) No person, other than a person who has been issued a
certificate of ownership under sub-section (3) shall, on and after
the specified date, keep under his control, sell or o'.'fer for sale or
transfer to any person any scheduled animal, or a scheduled H
64 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A animal article or ivory imported into India or any article made
'
therefrom."

Section 50 deals with power of entry, search, arrest and detention.

Section 51 deals with penalties. The relevant portion of Section 51
B
is as follows :

51. Penalties.- (I) Any person who [contravenes any provision
of this Act [(except Chapter VA and section 38J)]] or any rule or
•
order made thereunder or who commits a breach of any of the
c conditions of any licence or permit granted under this Act, shall
be guilty of an offence against this Act, and shall, on conviction,
be punishable with impnsonment for a term which may extend
to [three years] or with fine which may extend to [twenty-five
thousand rupees] or with both:
D
Provided that where the offence committed is in relation to any
animal specified in Schedule I or Part II of Schedule II or meat
of any such animal or animal article, trophy or uncured trophy

E
derived from such animal or where the offence relates to hunting
in a sanctuary or a National Park or altering the boundaries of a
sanctuary or a National Park, such offence shall be punishable
-
with imprisonment for a term which shall not be less than three
years but may extend to seven years and also with fine which shall
not be less than ten thousand rupees:

F Provided further that in the case of a second or subsequent offence
of the nature mentioned in this sub-section, the term of the
imprisonment shall not be less than three years but may extend
to seven years and also with fine which shall not be less than

G
twenty-five thousand rupees. ..
(IA) Any person who contravenes any provisions of Chapter VA,
shall be punishable with imprisonment for a term which shall not
be less than [three years] but which may extend to seven years
and also with fine which shall not be less than [ten thousand
H rupees].
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA,J.] 65

(IB) Any person who contravenes the provisions of section 38J A
shall be punishable with imprisonment for a tenn which may
extend to six months, or with fine which may extend to two
thousand rupees, or with both:

Provided that in the case of a second or subsequent offence the B
tenn of imprisonment may extend to one year, or with fine which
may extend to five thousand rupees.

Section 63 empowers the Central Government to makes rules.

INTERPRETATION OF THE ACT: c
The provisions of the said Act must be construed having regard to
the purport and object it seeks to achieve. Not only inter alia wild animal
is to be protected but all other steps which are necessary therefor so as to
ensure ecological and environmental security of the country must be
enforced. The interpretation provisions as regard 'wild animal' employs D
the word 'includes' and, thus, must be assigned a broad meaning. The
Amending Acts must be viewed in that perspective. Protection and
conservation of wild animal is essential for very existence of human life.
A trade in wild animal which is sought to be prohibited with an object to
oversee survival of human beings must be given its full effect. The CITES E
was fonnulated keeping in view the aforementioned policy. India is a
member State of the Convention. It is a signatory to the other treaties and
conventions in this behalf. Appendix I of CITES which came into effect
from 18th January, 1990 provided for complete prohibition of internal and
trans border trade in ivory. The Parliament enacted the Amendment Act F
(Act No. 44 of 1991) with a view to save the species of Indian Elephant
and to give effect to the said international treaties. Prior thereto, that is
1989, the African Elephant was proposed to be brought in Appendix I of
CITES.

In the Press Release of October, 2002, the following appears: G

"Another high-profile item is the African elephant. After an eight-
year ban on ivory sales, in 1997 CITES agreed to allow three
African countries - Botswana, Namibia and Zimbabwe - to make
one time sales from their existing legal stocks ofraw ivory. The H

•.
66 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A ivory - which weighed 49,574 kg. and represented 5,446 tusks -
was sold to Japan in 1999 and earned some USD5 million. The
funds were used for elephant conservation activities in the three
range states.

In the year 2002, the three countries plus South Africa and Zambia
B are proposing one-off sales of existing ivory stocks to be followed
later by annual quotas. The proposals are for a first sale of20,000
kg. and an annual quota of 4,000 kg. for Botswana, 10,000 Kg.
and 2,000 kg. respectively for Namibia, 30,000 kg. and 2,000 kg.
for South Africa and 10,000 kg. and 5,000 :,g. for Zimbabwe.
c Zambia is proposing a one-off sale of 17,000 kg. A proposal from
India and Kenya, on the other hand, argues that further ivory sales
from African elephants should be clearly prohibited as a
precautionary measure for reducing future threats to the elephant.

Meanwhile, Japan is seeking to open up trade in most northern
D
hemisphere populations of minke whale and a Pacific population
of Bryde's whale. Its proposals stress the use of national
legislation and DNA identification of individual whales to monitor
catches and trade. Similar proposals were presented without
success at the most recent CITES conferences in 1997 and 2000.
E This year's debate is likely to involve issues related to science,
sustainable use, possible enforcement problems, and the
international Whaling Commission's moratorium on commercial
whaling."

F Further, in the Press Release of 12th November, 2002, the following
appears:

"CITES has conditionally accepted proposals from Botswana,
Namibia and South Africa that they be allowed to made one - off
sales of 20, 10 and 30 tonnes, respectively, of ivory. The ivory
G is held in existing legal stocks that have been collected from
elephants that dies of natural causes or as a result of government
- regulated problem - animal control.

Similar proposals from Zambia and Zimbabwe for 17 and 10
H tonnes, respectively, were not accepted. Today's decisions by
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 67
)
CITES must still be formally adopted by the full Plenary on A
Friday, when the current two - week conference ends."

The rival contention as regard the interpretation and application of
the said Act must be considered having regard to the aforementioned
principles as also the international treaties and developments which took B
place subsequently.

WHETHER THE AMENDING ACT 44 OF 1991 IS ULTRA VIRES
ARTICLES 19(J)(g) AND 14 OF THE CONSTITUTION OF INDIA

Appellant No. 1 herein appeared to have imported ivory from 1971 C
to 1986. It was in possession of 755.930 Kgs. Of solid Ivory Articles and
10.050 Kgs. with metal.

Dealing in imported ivory so Jong the Jaw permits may be a
fundamental right but if the statute prohibits it, it must be held to be a law D
within the meaning of Clause ( 6) of Article 19 of the Constitution oflndia
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.

What would be a reasonable restriction which can be imposed in E
public interest is a matter which is no longer res integra.

In Narender Kumar and Ors. v. Union of India and Ors., [1960] 2
SCR 375, this Court while interpreting the word 'restrictions' held as
follows:
F
"It is reasonable to think that the makers of the Constitution
considered the word "restriction" to be sufficiently wide to save
laws "inconsistent" with Art. 19(1), or "taking away the rights"
conferred by the Article, provided this inconsistency or taking
away was reasonable in the interests of the different matters G
mentioned in the clause. There can be no doubt therefore that they
intended the word "restriction" to include cases of "prohibition"
also. The contention that a law prohibiting the exercise of a
fundamental right is in no case saved, cannot therefore be
accepted." H
68 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A

A See also State ofMaharashtra v. Mumbai Upnagar Gramodyog Sang,
[1969] 2 SCR 392.

In Synthetics and Chemicals Ltd. (supra), this Court held:

"76. Balsara case [1951] SCR 682 : AIR (1951) SC 318 : 52 Cri
B LJ 1361) dealt with the question of reasonable restriction on
medicinal and toilet preparations. In fact, it can safely be said that
it impliedly and sub-silentio clearly held that medicinal and toilet
preparations would not fall within the exclusive privilege of the
States. If they did there was no qu~stion of striking down of •
c Section 12(c) and (d) and Section 13(b) of the Bombay Prohibition
Act, 1949 as unreasonable under Article 19(1 )(t) of the Constitution
because total prohibition of the same would be permissible. In K.
K. Narula case (K. K. Narula v. State of J & K, [1967] 3 SCR
50 : AIR (1967) SC 1368) it was held that there was right to do
business even in potable liquor. It was not necessary to say
D
whether it is good law or not. But this must be held that the
reasoning therein would apply with greater force to industrial
alcohol."

In Ramana Dayaram Shetty v. The International Airport Authority of (
E India and Others, AIR (1979) SC 1628 : [1979] 3 SCR 1014, this Court
held:

" ... We fail to see how the plea of contravention of Article 19(1)(g)
or Article 14 can arise in these cases. The Government's power
to sell the exclusive privilege set out in Section 22 was not denied.
F
It wa• .lso not disputed that these privileges could be sold by
public auction. Public auctions are held to get the best possible
price. Once these aspects are recognised, there appears to be no
basis for contending that the owner of the privileges in question
who had offered to sell them cannot decline to accept the highest
G bid if he thinks that the price offered is inadequate.

It will be seen from these observations that the validity of clause
(6) of the Order dated January 6, 1971 was upheld by this Court
on the ground that having regard to the objee<t of holding the
H auction, namely, to raise revenue, the Government was entitled to

'··•-.·
INDIAN HANDICRAFTS EMPORIUM v. U.O.I. [SINHA, J.] 69

reject even the highest bid, if it thought that the price offered was A
inadequate. The Government was bound to accept the tender of
the person who offered the highest amount and ifthe Government
rejected all the bids made at the auction, it did not involve any
violation of Articles 14 or 19( 1)(g). This is a self-evident proposition
and we do not see how it can be of any assistance to the B
respondents."

In Har Shankar and Others v. Dy. Excise and Taxation Commissioner,
AIR (1975) SC 1121 : [1975] 3 SCR 254, this Court held:

" ... The state, under its regulatory powers, has the right to prohibit C
absolutely every form of activity in relation to intoxicants - its
manufacture, storage, export, import, sale and possession. In all
their manifestations, these rights are vested in the State and indeed
without such vesting there can be no effective regulation of
various forms of activities in relation to intoxicants. In American
Jurisprudence, Volume 30 it is stated that while engaging in liquor D
traffic is not inherently unlawful, nevertheless it is a privilege and
not a right, subject to governmental control (page 538). This
power of control is an incident of the society's right to self-
protection and it rests upon the right of the state to care for the
health, morals and welfare of the people. Liquor traffic is a source E
of pauperism and crime (pp. 539, 540, 541)."

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 F
within the expression of restrictions in the interest of the general public.

In Municipal Corporation of the City of Ahmedabad and Ors. v. Jan
Mohammed Usmanbhai and Anr., AIR (1986) SC 1205 : [1986] 2 SCR
. ;.
700, this court held:
G
"15. Before proceeding to deal with the points urged on behalf
of the appellants it will be appropriate to refer to the well-
established principles in the construction of the constitutional
provisions. When the validity of a law placing restriction on the
exercise of a fundamental right in Article 19( 1)(g) is challenged, H
70 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A the onus of proving to the satisfaction of the court that the
restriction is reasonable lies upon the State. If the law requires that
an act which is inherently dangerous, noxious or injurious to the
public interest, health or safety or is likely to prove a nuisance to
the community shall be done under a permit or a licence of an
B executive authority, it is not per se unreasonable and no person
may claim a licence or a permit to do that act as of right. Where
the law providing for grant of a licence or permit confers a
discretion upon an administrative authority regulated by rules or
principles, express or implied, and exercisable in consonance with
the rules of natural justice, it will be presumed to impose a
c reasonable restriction. Where, however, power is entrusted to an
administrative agency to grant or withhold a permit or licence in
its uncontrolled discretion the law exfacie infringes the fundamental
right under Article 19(l)(g). Imposition of restriction on the
exercise of a fundamental right may be in the form of control or
D prohibition.

"20. The tests ofreasonableness have to be viewed in the context
of the issues which faced the legislature. In the construction of
such laws and in judging their validity, courts must approach the
E problem from the point of view of furthering the social interest
which it is the purpose of the legislation to promote. They are not
in these matters functioning in vacuo but as part of society which
is trying, by the enacted Jaw, to solve its problems and furthering
the moral and material progress of the community as a whole. See
Jyoti Prasad v. Union Territory ofDelhi, (1962] 2 SCR 125 : AIR
F (1961) SC 1602. If the expression 'in the interest of general
public' is of wide import comprising public order, public security
and public morals, it cannot be said that the standing orders
closing the slaughter houses on seven days is not in the interest
of general public."
G
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
H Elephant and to arrest their further depletion.

' ....
t INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 71

It may be necessary to go into the history of legislation leading to A
enactment of the said Act for the purpose of undertaking how small
restrictions were replaced by and by with bigger ones and ultimately to a
total prohibition. We may notice ihat the first legislation for protection of
birds was enacted in 1887 known as the Wild Birds Protection act, 1887
(Act No. X of 1887) which was followed by the Wild Birds and Animals B
(Protection) Act, 1912. As the object sought to be achieved by the said
Acts was not fulfilled, the same was amended in the year 1935 in terms
of which the Provincial Government could declare any area to be a
sanctuary for the birds or animals and their killing was made unlawful. As
wild life was a State subject of legislation, in the year 1972 several States C
adopted resolutions in terms of Article 252 of the Constitution of India
empowering the Parliament to pass the necessary legislation.

The provisions contained in the 1972 Act were found to be i!ladequate
necessitating extensive amendment. One of the Objects and Reasons for
the said Act was to see that the wild animals or articles and derivates thereof D
may not be smuggled out to meet the demand in foreign markets as there
is hardly any market within the country therefor. A clandestine trade
abetted by illegal practices of poaching which had taken a heavy toll of
our wild animals and birds were sought to be restrained. It was pointed
out that the stocks declared by the traders at the commencement of the Wild E
Life (Protection) Act, 1972 are used as a cover for such illegal trade.

The Parliament in its wisdom thought to amend the said Act further
in the year 1991 in terms whereof the following changes were made:
F
"(i) It substituted new section for sections 9, 29 and 55 of the
Principal Act;

(ii) It omitted sections 10, and 13 to 17 of the Principal Act;
G
(iii) It inserted two new chapters, namely, Chapter IIIA and
Chapter IV A, in the Principal Act; and

(iv) It inserted new Schedule, namely, Schedule VI, in the
Principal Act." H
72 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A At this juncture, we may usefully take notice of the Statement of
Objects and Reasons of the said Act.

"Poaching of wild animals and illegal trade of products derived
therefrom, together with degradation and depletion of habitats
have seriously affected wildlife population. In order to check this
B trend, it is proposed to prohibit hunting of all wild animals (other
than vermin). However, hunting of wild animals in exceptional
circumstances, particularly for the purpose of protection of life
and property and for education, research, scientific management
and captive breeding, would continue. It is being made mandatory
c for every transporter not to transport any wild life products
without proper permission. The penalties for various offences are
proposed to be suitably enhanced to make them deterrent. The
Central Government Officers as well as individuals now can also
file complaints in the courts for offences under the Act. It is also
D proposed to provide for appointment of honorary Wild Life
Wardens and payment of rewards to persons helping in
apprehension of offenders.

To curb large scale mortalities in wild animals due to communicable
diseases, it is proposed to make provisions for compulsory
E immunisation of livestock in and around National Parks and
Sanctuaries.

It may be recalled that the Parties to the "Convention on
International Trade in Endangered Species of Wild Fauna and
F Flora"(CITES}, being greatly concerned by the decline in
population of African elephant (sic) the import and export of
African ivory fer commercial purposes has been prohibited. As
a result import of ivory would no longer be possible to meet the
requirements of the domestic ivory trade. If the lead to large scale
poaching of Indian elephants. With this point in view, the trade
G in African ivory within the country is proposed to be banned after
giving due opportunity to ivory traders to dispose of their existing
stock."

The Parliament while enacting the said Amending Act took note of
H serious dimensions of poaching of wild animals and illegal trade giving
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 73
. t
exponential rise of wild animals and their products. A
The Hon'ble Minister of State of the Ministry of Environment and
Forest in the House stated:

"Population of Indian elephants, particularly in South India, are
under serious threat by ivory poachers. Although the trade in B
Indian ivory was banned in 1986, the trade in imported ivory gives
an opportunity to unscrupulous ivory traders to legalise poached
ivory in the name of imported ivory. With this point in view, the
trade in African ivory is proposed to be banned after giving due
opportunity to ivory traders to dispose of their existing stocks." C
During pendency of these matters, as noticed hereinbefore, the
Parliament enacted the Wild Life (Protection) Amendment Act, 2002 (Act
No. 16 of 2003) which came into force with effect from I st April, 2003.

By reason of the Amending Act of 2003, the possession of an ivory D
whether by a trader or a person is completely banned.

There cannot be any doubt whatsoever that a law which was at one
point of time was constitutional may be rendered unconstitutional because
of passage of time. We may note that apart from the decisions cited by E
Mr. Sanghi, recently a similar view has been taken in 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.

In this case, however, we are faced with a different situation. We F
are concerned with the reason and object for which the amendments have
to be made. We must take into consideration the text and context of the
amending Acts and the circumstances in which they had to be brought
about.

The provisions of the statute are also required to be considered G
keeping in view Article 48-A and Article 5 IA(g) of the Constitution of
India which are in the following terms:

"48-A. Protection and improvement of environment and
safeguarding offorests and wild life. - The State shall endeavour H

. )
74 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A to protect and improve the environment and to safeguard the
forests and wild life of the country."

"51-A. Fundamental duties. - It shall be the duty of every citizen
of India -

B
(g) to protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for
living creatures;"
c We cannot shut our eyes to the statements made in Article 48-A of
the Constitution of India which enjoins upon the State to 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,
D being contrary to the Directive Principles of the State Policy which is
fundamental in the governance of the country must be given its full effect.
Similarly, the principles of Chapter IVA must also be given its full effect.
Clause (g) of Article 5 IA 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
E out keeping in view the aforementioned provisions.

It is, therefore, difficult to accept the contention of Mr. Sanghi that
protection and preservation of wild life would not be in public interest and/
or cannot be extended to imported ivory. Wild Life forms part of our
F 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.

In D.D. Basu's Commentary on the Constitution of India (Sixth
G Edition, Volume C) at page 45-46, the law has been summarized in the
following manner:

"It is now settled that no inflexible answer to this question is
possible, and that it is the nature of the business or property which
H is an important element in determining how far the restriction may

' .
INDIAN HANDICRAFTS EMPORIUM v. U.O.I. [SINHA, J.] 75

reasonably go: A
(A) In the case of inherently dangerous or noxious trades, such
as production or trading in liquors or cultivation ofnarcotic plants,
or trafficking in women, it would be a 'reasonable restriction' to
prohibit the trade or business altogether.
B
(B) Where the trade or business is not inherently bad, as in the
preceding cases, it must be shown by placing materials before the
Court that prohibition of private enterprise in the particular
business was essential in the interests of public welfare. Thus -

In order to prevent speculative dealings in 'essential commodities'
c
(such as cotton), during a period of emergency, the State may
impose a temporary prohibition of all normal trading on such
commodities. In the later case of Narendra v. Union of India
(supra), the Supreme Court has sustained even a permanent law
leading to the elimination of middle-men from the business in D
essential commodities in order to ensure the supply of such goods
to the consumers at a minimum price."

The Amending Acts satisfy also the strict scrutiny test.
E
The stand of the State that by reason of sale of ivory by the dealers,
poaching and killing of elephants would be encouraged, cannot be said to
be irrational. Mr. Sanghi, as noticed hereinbefore, has drawn our attention
to the changes sought to be effected in CITES at the instance of Botswana,
South Africa, Namibia and Zimbabwe.. The question as to whether a
reasonable restriction would become unreasonable and vice-versa would F
depend upon the fact situation obtaining in each case. 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 brining
in amendments in the said Acts in the years 1986, 1991 and 2003 clearly G
bring into fore the necessity to take more and more stringent measures so
as to put checks on poaching and illegal trade in ivory. Experience shows
that poaching may be difficult to be completely checked. Preventive
measures as regard poaching leading to killing of elephants for the purpose
of extraction of their tusks is a difficult task to achieve and, thus, the H
76 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A Parliament must have thought it expedient to put a complete ban in trade
in ivory to meet the requirement of the country.

India being a sovereign country is not obligated to make law only in
terms of CITES; it may impose stricter restrictions having regard to local
needs.
B
In John Vallamattom and Anr. v. Union of India, JT (2003) 6 SC
37 this Court speaking through the Hon'ble Chief Justice of India held:

"Furthermore, India being a signatory to the Declaration on the
Right to Development adopted by the World Conference on
c Human Rights and Article 18 of the United Nations Covenant on
Civil and Political Rights, 1966, the impugned provision may be
judged on the basis thereof."

Referring to Article I of the Declaration on the Right to Development
D and Article 18 of the United Nations Covenant on Civil and Political Rights
1966, this Court following Kapila Hingorani v. State of Bihar, JT (2003)
5 SC I, observed that the provisions of law must be judged keeping in view
the international treaties and conventions stating:

"It is trite that having regard to Article 13(1) of the Constitution,
E the constitutionality of the impugned legislation is required to be
considered on the basis of laws existing on 26th January, 1950,
but while doing so the court is not precluded from taking into
consideration the subsequent events which have taken place
thereafter. It is further trite that that the law although may be
F constitutional when enacted but with passage of time the same
may be held to be unconstitutional in view of the changed
situation.

Justice Cardoze said :

G "The Jaw has its epochs of ebb and flow, the flood tides are
on us. The old order may change yielding place to new; but
the transition is never an easy process".

Albert Campus stated :

H "The wheel turns, history changes". Stability and change are

\'
INDIAN HANDICRAFTS EMPORIUM v. U.O.I. [SINHA, J.] 77

the two sides of the same law-coin. In their pure fonn they A
are antagonistic poles; without stability the law becomes not
a chart of conduct, but a gare of chance: with only stability
the law is as the still waters in which there is only stagnation
and death."

Although in that case Section 118 of the Indian Succession Act was
B
declared unconstitutional but we are of opinion that legal principles
enunciated therein will have to be applied for the purpose of judging the
constitutionality of impugned provisions keeping in view the subsequent
changes.
c
Submission of Mr. Sanghi to the effect that the Amending Acts
provide for arbitrary unguided and unbridled power is stated to be rejected.
The submission of learned counsel was made on the premise that after ban
was irnp'>sed on trade in ivory, all traders become non-traders and, thus,
traders and non-traders could not have been treated differently. When a D
trade is prohibited as has sought to be done by reason of the 1991
Amendment Act by inserting Chapter VA, the matters incidental thereto
or connected therewith must be dealt with accordingly. For all intent and
purport the statute would treat the traders on a different footing than non-
traders. They fonn a different and distinct class.
E
The appeliants used to trade in ivory stands admitted. They, thus,
wo·dd 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 F
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 v. Darby, [312 G
US JOO (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 a~hieved by the traders
indirectly.
H
78 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A For the purpose of Chapter VA the appellants remained traders
despite the fact that they have been prohibited from carrying on any
business. How after imposing the ban, stock in trade is to be dealt with
is again a matter which can be dealt with by the Legislature. It has the
requisite competence therefor. Furthermore, it is now idle to contend
B having regard to the provisions contained in Section 40(2A) of the Act that
the traders have been discriminated with vis-a-vis the non-traders. Traders
are class by themselves and as such no question of any discrimination
arises. The classification is well-defined and well-perceptible. Traders and
non-traders constitute two different classes and the classification is founded
C on an intelligible differentia clearly distinguishing one from the other.
A machinery must be so construed as to effectuate the liability
imposed by the charging section and to make the machinery workable -
ut res magis valeat quam pereat. [See D. Saibaba & Bar Council of India
and Anr. reported in JT (2003) 4 SC 435 and Welfare Assocn. A.R.P.
D Maharashtra & Anr. v. Ranjit P. Gohil & Ors., reported in (2003) 2
SCALE 288).

Submission of Mr. Sanghi that the definition of wild animal is vague
cannot be accepted. Hamdard Dawakhana (supra) whereupon Mr. Sanghi
E has placed strong reliance is wholly mis-placed.

In Hamdard Dawakhana (supra) the 'magic remedy' was held to be
incapable of giving a fixed meaning and, thus, was held ultra vires Article
14 of the Constitution being vague in nature. We do not find any such
vagueness in any of the provisions of the impugned Acts including the
F definition of 'wild animal'. It is clear and unambiguous.

Reliance placed by Mr. Sanghi on Rustom Cavasjee Cooper (supra)
is equally mis-placed. In that case, this Court was dealing with
nationalization of banks. The Court held that the provisions impugned
G therein are ultra-vires. In that situation, it was held:

"Impairment of the right of the individual and not the object of
the State in taking the impugned action, is the measure of
protection. To concentrate merely on power of the State and the
object of the State action in exercising that power is therefore to
H
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 79

ignore the true intent of the Constitution." A
There is no quarrel with the aforementioned propositions inasmuch
as herein we are upholding vires of the statutes holding that the restrictions
imposed is reasonable.

The Amending Acts in our opinion are constitutional, legal and valid. B
RES-EXTRA COMMERCIUM:

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 C
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 about further changes in terms whereof further restrictions
have been imposed even on the private owners to possess ivory or any other D
animal article.

CITES banned trade in ivory but as regard some countries the ban
has been relaxed. At least in five countries ivory has been placed in
Appendix II from Appendix I. We do not know whether in a few years
from now having regard to increase in population of elephant, a restricted E
trade in ivory would be permitted. If that is permitted by amending the
said Act, the trade in ivory would be legal.

The submission of the appellants, however, to the effect that the
elephant has been downlisted from Appendix I to Appendix II of CITES F
1s mcorrect. All international trade in elephants or articles thereof
including Asian elephants (Indian species) is prohibited as it continues to
be listed in Appendix I excepting for certain 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, G
India at the CITES Conference (2002) had seriously opposed permitting
of such limited trade and had even submitted a proposal for a continuation
of the ban on ivory trade.

Education having regard to its nature was held to be beyond pale of H
80 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A business or occupation within the. meaning of Article 19( I )(g) of the
Constitution of India.

In Unni Krishnan JP. and Ors. v. State of Andhra Pradesh and Ors.,
[1993] I SCC 645, it was observed:

B "198. We are, therefore, of the opinion, adopting the line of
reasoning in State ofBombay v. R.MD. Chamarbaugwala, [1957]
SCR 874 : AIR ( 1957) SC 699 that imparting education cannot
be treated as a trade or business. Education cannot be allowed to
be converted into commerce nor can the petitioners seek to obtain
c the said result by relying upon the wider meaning of"occupation".
The content of the expression "occupation" has to be ascertained
keeping in mind the far.t that clause (g) employs all the four
expressions viz., profession, occupation, trade and business. Their
fields may overlap, but each of them does certainly have a content
of its own, distinct from the others. Be that as it may one thing
D
is clear - imparting of education is not and cannot be allowed to
become commerce. A law, existing or future, ensuring against it
would be a valid measure within the meaning of clause (6) of
Article 19. We cannot, therefore, agree with the contrary proposition
enunciated in Sakharkherda Education Society v. State of
E Maharashtra, AIR (1968) Born LR 690, Andhra Kesari Education
Society v. Govt. of A.P.. AIR (1984) AP 251 : (1984) I APLJ 45)
and Bapuji Educational Assn. v. State., AIR (1986) Kant 80"

An I I-Judge Bench of this Court in T.MA. Pai Foundation v. State
F of Karnataka, [2002] 8 sec 481, however, held that imparting of
education would come within the purview of the definition of occupation
within the meaning of Article 19(1)(g) of the Constitution of India. This
court following Sadan Singh v. New Delhi Municipal Committee, [1989]
4 sec 155 opined:

G "In Unni Krishnan's case (Unni Krishnan, JP. v. State of A.P.,
[1993] I SCC 645 at p. 687) while referring to education, it was
observed as follows :-

"It may perhaps fall under the category of occupation provided
H no recognition is sought from the State or affiliation from the

' .
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 81

University is asked on the basis that it is a fundamental right" A
While the conclusion that "occupation" comprehends the
establishment of educational institutions is correct, the proviso in
the aforesaid observation to the effect that this is so provided no
recognition is sought from the state or affiliation from the
concerned university is, with the utmost respect, erroneous. The B
fundamental right to establish an educational institution cannot be
confused with the right to ask for recognition or affiliation. The
exercise of a fundamental right may be controlled in a variety of
' ways. For exa!Tlple, the right to carry on a business does not entail
the right to carry on a business at a particular place. The right to C
carry on a business may be subject to licensing laws so that a
denial of the .licence prevents a person from carrying on that
particular business. The question of whether there is a fundamental
right or not cannot be dependent upon whether it can be made the
subject-matter of controls. D
The establishment and running of an educational institution where
a large number of persons are employed as teachers or
administrative staff, and an activity is carried on that results in the
imparting of knowledge to the students, must necessarily be
regarded as an occupation, even if there is no element of profit E
generation. It is difficult to comprehend that education, per se,
will not fall under any of the four expressions in Article 19( 1)(g).
"Occupation" would be an activity of a person undertaken as a
means of livelihood or a mission in life. The above quoted
observations in Sodan Singh case (Sodan Singh v. New Delhi F
Municipal Committee, (1989] 4 SCC 155), correctly interpret the
expression "occupation" in Article 19(l)(g)."

The said view has been reiterated recently by a Constitution Bench
in Islamic Academy of Education and Anr. v. State of Kprnataka and Ors., G
decided on 14th August, (2003) JT 2003 7 SC I.

The High Court has referred to the decision in P. Crowley v. Henry
Christensen,[1890] 34 Law. Ed. 620 so. as to hold that a citizen has no
inherent right to sell intoxicating' liquors. Therein the U.S. Supreme Court
was dealing with a federal law imposing restrictions on a person dealing H
82 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A in retail trade in liquor without obtaining a due licence therefor. The law
was upheld negativing the contention that the restriction was unreasonable.
It was not held therein that trade of liquor is impermissible in all situations.

Restriction in trade, therefore, would depend upon the nature of the
B article and the law governing the field. By reason of judicial vagaries,
fundamental right under Article 19(1 )(g) of the Constitution cannot be
further restricted. [See Krishna Kumar Narula v. The State of Jammu and
Kashmir & Ors., AIR (1967) SC 1368].

Dr. D.D. Basu in his Commentary on the Condtution of India (Sixth
C Edition) Volume L at page 238 stated:
"In Chamarbaugwala 's case (supra) as well as in Fatehchand's
case (AIR 1977 SC 1825), the Court relied upon the observations
of Taylor, J. in Mansell's case (1956) C.L.R. 550, in support of
the theory of res extra commercium, but as appears from the
D following observations of Wynes (1970), p. 263, the doctrine has
not had a peaceful career in Australia, and has produced conflicting
decisions which are not beyond criticism:

"The question whether exceptions to the otherwise express
E provisions of s.92 based upon inherent quality of goods can
be made has not been settled ... Since the Hughes case (1954)
93 C.L.R. lit is no doubt true to say that a State may
legitimately regulate the incidents of traffic in such cases,
but this does not derive from inherent quality, but from the
F proposition that regulation can be consistent with freedom .. "

WHETHER THE APPELLANTS ARE ENTITLED TO POSSESS ANIMAL
ARTICLES:

A mere perusal of the definition of 'animal article' in Section 2(2)
G 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
H within the purview of the said Chapter, they have to be dealt with

' \
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 83

accordingly. If he has been a trader, he must make a declaration in terms A
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 specia/ibus non derogant' would be applicable
in this case. We would deal with this subject in details a little later. B
The contention of the appellants that it is covered by the newly added
provision Section 40-A or that the said section discriminates individual
owners and traders is ill-founded.

At the time of passing of the main Wild Life Protection Act in 1972, C
there were two categories of persons who could be in possession of animal
articles, etc. namely (a) individual (non-traders) - who had possession of
animals articles for their own personal use and (b) traders - who had
possession of such articles for the purpose of sale. Consequently, the I 972
Act requires individuals to declare and apply for ownership certificates of D
the animal articles which were in their possession. And as regard the
traders, Sections 44 to 48 and 49 mandated the traders to declare their
stocks and to apply for a licence. Section 40-A has been incorporated
solely for the purpose of mitigating the omission of individual non-traders
who due to lack of information or ignorance could not declare the animal E
articles in their possession within the limited period of 30 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 of 30 days as specified in Section 44 of the Act. F
Hence, the object and purpose of Section 40-A is limited to individual non-
traders and does not discriminate the traders or inter se the traders.

In any event after the incorporation of Chapter V-A and the inclusion
of ivory in the said Chapter the appellant traders are governed by the
provisions of Chapter V-A. The provisions of Chapter V which includes G
Section 40-A is not applicable to the appellant traders. Chapter V-A is a
complete Code in itself and it would be a fallacy to read into or extend
by implication the mitigating provision of Section 40-A into Chapter V-
A. The Legislature, had it so desired coLJld have incorporated a similar
provision in Chapter V-A. H
84 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A Section 49-C provides that every person carrying on the business or
occupation referred to in sub-section (I) of Section 49-8, within thirty days
from the specified date, declare to the Chief Wild Life Warden or the
authorised officer, his stocks, if any, as at the end of the specified date of
ivory imported into India or articles made therefrom, the place or places
B at which the stocks mentioned in the declaration are kept and the
description of such items, if any, of the stocks mentioned in the declaration
which he desires to retain with himself for his bona fide personal use. Sub-
section (3) of Section 49-C further provides that where, in a declaration
made under sub-section (I), the person making the declaration expresses •
his desire to retain with himself any of the items of the stocks specified
C in the declaration fo~ his bona fide personal use, the Chief Wil~.. Life
Warden, with the prior approval of the Director, may, ifhe is satiSfied that
the person is in lawful possession of such items, issue certificate of
ownership in favour of such person with respect to all, or as the case may
be, such of the items as in the opinion of the Chief Wild Life Warden, are
D required for the bona fide person.al use of such person and affix upon such
items identification. marks in such manner, as may be prescribed. Sub-
section (6) of Section 49-C further provides that where a person who has
been issu~d a certificate of ownership under sub-section (3) in respect of
any itein, it is permissible for him to transfer any such item to any such
E per.fun, whether by way of gift, sale or otherwise, or transfer or transport
from the State in which he resides to another State any such item and he
shall within thirty days from such transfer or transport, report the transfer
or transport to the Chief Wild Life Warden or the authorised officer within
whose jurisdiction the transfer or transport is effected.

F On coming into force of Act No. 28 of 1986 or Act No. 44 of 1991,
however, it may be (\'v. that the property does not automatically vest in
the Government. It is not in dispute that in terms of clause (c) of Section
39 of ~he Act which was inserted by Act No. 44 of 1991 only ivory
imported into India and articles made from such ivory in respect of which .
G any offence against this Act or any rule or order made thereunder has been
committed, would be the property of the State Government and not
otherwise. But the issue is required to be considered from a different angle.

On or from the specified date, however, carrying on any trade or
H commerce, inter a/ia, in relation to ivory imported into India or any article
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 85

made therefrom is completely prohibited. Despite such provision, however, A
a person carrying on a business or occupation or dealing in trophies,
animal articles etc. derived from scheduled animals would be, in terms of
sub-section ( 1) of Section 49-C of the Act, entitled to file a declaration
disclosing his stocks of ivory imported into India or articles made
therefrom. Once such a declaration is made and in the event such person B
makes a declaration expressing his desire to retain with himself any of the
items specified therein for his bona fide use, a certificate of ownership may
be granted for such item or items which in the opinion of the Chief Wild
Life Warden are required therefor. Only in relation to items for which such
certificate of ownership has been granted, a transfer thereof is permissible C
subject to the restrictions imposed under sub-section (6) of Section 49-C.
Sub-section (7) of Section 49-C, however, provides for prohibition of such
ivory imported into India or any article made therefrom from being kept
under the control of the trader for sale or offer for sale or transfer to any
eerson whatsoever.
D
The upshot of the aforesaid provisions is that 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 E
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 F
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 G
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. H

; )
86 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A The statutory provisions, in our opinion, are absolutely clear and
unambiguous.

The submission of Mr. Sanghi to the effect that the Chief Wild Life
Warden has been conferred with an unguided power to declare any item
B as being capable of bona fide personal use of a trader cannot be accepted.
Not only in terms of the provisions of the said Act, a trade or commerce,
inter a/ia, in relation to ivory has been prohibited, having regard to the
proviso appended to sub-section (3) of Section 49-C, even such item cannot
be kept for display in any commercial premises. As such ivory or any
article made therefrom can neither be subject matter of trade or commerce
.-
C nor displayed in any commercial premises for any reason whatsoever. By
reason of the provisions of the said Act, the trader was given six months'
time to dispose of the articles in his possession. No foundational fact has
been laid before the High Court nor any contention has been raised before
us that the period specified therein under the Act was not reasonable.
D Articles which cannot be subject matter of trade or commerce can only be
kept for personal use. Such personal use 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 conferred with unguided and uncanalized power. In the
E event, an order is passed, the person dissatisfied therewith, may prefer an
appeal in terms of sub-section (5) thereof.

Against such original orders or appellate orders, even a judicial
review would be maintainable.

F Sub-section (7) of Section 49-C would be applicable only in relation
to such items or articles wherefor certificate of ownership has not been
granted. If a person keeps under his control, sells or offers for sale or
transfers the same to any other person, he would be subject to a penalty
as provided under sub-section (I-A) of Section 51 of the Act.

G Sub-section (2) of Section 51 empowers the competent court to direct
that such property be forfeited by the Government, in 'which event, clause
(c) of Section 39 would be attracted. We, therefore, do not find that the
provisions of the said Act are anomalous in nature. It is true, as has been
pointed out by Mr. Sanghi, that the respondents made a statement before
H the High Court that the property in possession of the appellants did not vest

I t.
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 87

in the Government but such a statement was made evidently having regard A
to the provisions of clause (c) of Section 39 of the Act read with sub-section
(2) of Section 59 thereof. Such property would vest in the Government
subject to an order of forfeiture and subject to an order of conviction and
sentence against the offender for violation of sub-section (7) of Section 49-
C is recorded. We, in view of the provisions of the said Act, therefore, B
must hold that not only trade or occupation in relation to ivory in question
is prohibited but possession or any transfer thereof in any manner
whatsoever is prohibited under the Act subject, however, to the provisions
of sub-sections (!), (3) and (6) of Section 49-C of the Act.

The legislature has deliberately used the words 'bonajide personal C
use' in Section 49-C 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 decalred
by it. This requirement is due to the fact that the acquisition of an animal
article by an individual non-trader at the time of purchase would be
presumed to be one for his own personal bonafide use while on the other D
hand in the case of the traders the acquisition of animal articles as reflected
in the stocks of a trader would be solely be for the purpose of sale. 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 entitling the Appellants to continue to have control thereover. E
WHETHER THE IVORY VESTS IN THE GOVERNMENT?

We, however, do not agree with the contention of Mr. Malhotra that
having regard to the fact that appellants have admittedly been found to be
in possession of animal article, they have committed an offence and as such F
they would come within the purview of Section 39(a)(i) of the Act as a
result whereof the same could vest in the State.

- The question as to whether an offence under the Act has been
committed or not at that stage cannot be determined. Such a determination
furthermore cannot be left for adjudication at the hands of the executive G
authority. 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 therefor must be made by a
competent court of Jaw having jurisdiction in this behalf. Before a person
is convicted a Court has to arrive at the finding that the accused has H

J)
88 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A committed an offence wherefor a full-fledged criminal trial would be
necessary. In absence of such criminal trial and offence having been found
committed, Section 39 may not have any application. In that view of the
matter it is evident that the properties do not stand vested in the
Government in terms thereof.

B HOW THE DICHOTOMY SHOULD BE RESOLVED?
The question, however, would remain as to what would happen to the
property in question. In our opinion, the answer must be found out by
reading all the provisions in their entirety.
c
It is now well-settled that for the purpose of interpretation of statute
the entire statute is to be read in entirety. The purport and object of the
Act must be given its full effect.

D Furthermore, in a case of this nature, principles of purposive
construction must come into play.

In Chief Justice of A.P. v. L. V.A. Dikshitulu, AIR (1979) SC 193 :
[1979] 2 SCC 34, this Court observed:
.,,,
E "The primary principle of interpretation is that a Constitutional or
statutory provision should be construed "according to the intent
of they that made it" (Coke). Normally, such intent is gathered
from the language of the provision. If the language or the
phraseology employed by the legislation is precise and plain and
thus by itself proclaims the legislative intent in unequivocal terms,
F the same must be given effect to, regardless of the consequences
that may follow. But if the words used in the provision are
imprecise, protean or evocative or can reasonably bear meanings
more than one, the rule of strict grammatical construction ceases
to be a sure guide to reach at the real legislative intent. In such
G a case, in order to ascertain the true meaning of the terms and
phrases employed, it iS legitimate for the Court to go beyond the
arid literal confines of the provision and to call in aid other well-
recognised rules of construction, such as its legislative history, the
basic scheme and framework of the statute as a whole, each
H portion throwing light, on the rest, the purpose of the legislation,

' t
INDIAN HANDICRAFTS EMPORIUM v. U.O.l. [SINHA, J.] 89
the object sought to be achieved, and the consequences that may A
flow from the adoption of one in preference to the other possible
interpretation.

In Kehar Singh v. State (Delhi Admn.), AIR (1988) SC 1883: (1988)
3 SCC 609, this Court held:
B
"During the last several years, the 'golden rule' has been given
a go-by. We now look for the "intention" of the legislature or the
'purpose' of the statute. First, we examine the words of the statute.
If the words are precise and cover the situation on hand, we do
not go further. We expound those words in the natural and C
ordinary sense of the words. But, if the words are ambiguous,
uncertain or any doubt arises as to the terms employed, we deem
it as our paramount duty to put upon the language of the
legislature rational meaning. We then examine every word, every
section and every provision. We examine the Act as a whole. We D
examine the necessity which gave rise to the Act. We look at the
mischiefs which the legislature intended to redress. We look at the
whole situation and not just one-to-one relation. We will not
consider any provision out of the framework of the statute. We
will not view the provisions as abstract principles separated from E
the motive force behind. We will consider the provisions in the
circumstances to which they owe their origin. We will consider
the provisions to ensure coherence and consistency within the law
as a whole and to avoid undesirable consequences."

In District Mining Officer v. Tata Iron & Steel Co., JT (2001) 6 SC F
183 : [200I] 7 SCC 358, this Court stated:

"A statute is an edict of the legislature and in construing a statute,
it is necessary, to seek the intention of its maker. A statute has
to be construed according to the intent of them that make it and
the duty of the court is to act upon the true intention of the G
legislature. If a statutory provision is open to more than one
interpretation, the court has to choose that interpretation which
represents the true intention of the legislature. This task very often
raises· difficulties because of various reasons, inasmuch as the
words used may not be scientific symbols having any precise or H
90 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A definite meaning and the language may be an imperfect medium
to convey one's thought or that the assembly of legislatures
consisting of persons of various shades of opinion purport to
convey a meaning which may be obscure. It is impossible even
for the most imaginative legislature to forestall exhaustively
situations and circumstances that may emerge after enacting a
B
statute where its application may be called for. Nonetheless, the
function of the courts is only to expound and not to legislate.
Legislation in a modem State is actuated with some policy to curb
some public evil or to effectuate some public benefit. The
legislation is primarily directed to the problems before the
c legislature based on information derived from past and present
experience. It may also be designed by use of general words to
cover similar problems arising in future. But, from the very nature
of things, it is impossible to anticipate fully in the varied situations
arising in future in which the application of the legislation in hand
D may be called for and words chosen to communicate such
indefinite referents are bound to be in many cases, lacking in
clarity and precision and thus giving rise to controversial questions
of construction. The process of construction combines both literal
and purposive approaches. In other words, the legislative intention
E i.e. the true or legal meaning of an enactment is derived by
considering the meaning of the words used in the enactment in
the light of any discernible purpose or object which comprehends
the mischief and its remedy to which the enactment is directed."

F In State of A.P. v. Mc. Dowell Company, AIR (1996) SC 1627, this
Court held:

"An enactment cannot be struck down on the ground that Court
thinks it unjustified. The Parliament and the Legislatures, composed
as they are of the representatives of the people, are supposed to
G know and be aware of the need of the people and what is good
and bad for them. The Court cannot sit in judgment over their
wisdom. In this connection, it should be remembered that even
in the case of administrative action, the scope of judicial review
is limited to three grounds viz., (i) unreasonableness, which can
H more appropriately be called irrationality, (ii) illegality and
INDIAN HANDICRAFTS EMPORIUM v. U.O.I. [SINHA, J.] 91
(iii) procedural impropriety [See Council of Civil Services Union A
v. Minister for the Civil Services, (1985) AC 374, which decision
has been accepted by this Court as well]. The applicability of
.... doctrine of proportionality even in administrative law sphere is yet
a debatable issue. [See the opinions of Lords Lowry and Ackner
in R. v. Secretary of State for the Home Department Ex-parte B
Brind, (1991) AC 696 at 766-67 and 762]. It would be rather odd
if an enactment were to be struck down •by applying the said
· principle when its applicability even in administrative law sphere
is not fully and finally settled."

In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor C
Panchayat and Ors., [2003] 4 SCC 712 this Court noticed:

"In Reserve Bank of India v. Peerless Co., reported in [1987] I
SCC 424, this Court said:-

"Interpretation must depend on the text and the context. They are D
the basis of interpretation. One may well say if the text is the
texture, context is what gives the colour. Neither can be ignored.
Both are important. That interpretation is best which makes the
textual interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With this E
knowledge, the statute must be read, first a whole and then section
by section, clause by clause, phrase by phrase and word by word.
If a statute is looked at, in the context of its enactment, with the
glasses of the statute maker, provided by such context, its scheme,
the sections clauses, phrases and words may take colour and F
appear different than when the statute is looked at without the
glasses provided by the context. With these glasses we must look
at the Act as a whole and discover what each section, each clause,
each phrase and each word is meant and designed to any as to fit
into the scheme of the entire Act. No part of a statute and no word G
of a statute can be construed in isolation, Statutes. have to be
construed so that every word has a place and everything is in its
place ... "

In "The Interpretation and Application of Statutes" by Reed
Dickersen, the author at page 13 5 has discussed the subject while H

' I
92 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R. ..
A dealing with the importance of context of the statute in the
following terms:-

" ... The essence of the _language is to reflect, express. and perhaps
even effect the conceptual matrix of established ideas and values
-
that identifies the culture to which it belongs. For this reason,
B
language has been called 'conceptual map of human experience'."

The purport and object of the Statute is to see that a Tribunal
becomes functional and as such the endeavors of the Court
would be to see that to achieve the same, an interpretation
c of Section 10 of the Act be made in such a manner so that
appointment of a President would be possible even at the
initial constitution thereof.

Such a construction is permissible by taking recourse to the
D doctrine of strained construction, as has been succinctly
dealt with by Francis Bennion in his Statutory Interpretation.
At Section 304, of the treatise; purposive construction has
been described in the following manner:-

E "A purposive construction of an enactment is one which gives
effect to the legislative purpose by -

(a) following the literal meaning of the enactment where that
meaning is in accordance with the legislative purpose (in this
Code called a purposive-and-literal construction), or
F
(b) applying a strained meaning where the literal meaning is not
in accordance with the legislative purpose (in the Code called a
purposive-and-strained construction).

G In DPP v. Schildkamp (1971) AC 1, it was held that severance
may be effected even where the 'blue pencil' technique is
impracticable.

In Jones v. Wrotham Park Settled Estates, (1980) AC 74 at page
H 105, the law is stated in the following terms:-

\ ~
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 93

" .. I am not reluctant to adopt a purposive construction where to A
apply the literal meaning of the legislative language used would
lead to results which would clearly defeat the purposes of the Act.
But in doing so the task on which a court of justice is engaged
remains one of construction, even where this involves reading
into the Act words which are not expressly included in it. B
Kammins Ballrooms Co. Ltd v. Zenith Investments (Torquay)
Ltd, (1971) AC 850 provides an instance of this; but in that case
the three conditions that must be fulfilled in order to justify this
course were satisfied. First, it was possible to determine from a
consideration of the provisions of the Act read as a whole
precisely what the mischief was that it was the purpose of the Act C
to remedy; secondly, it was apparent that the draftsman and
Parliament had by inadvertence overlooked, and so omitted to
deal with an eventuality that required to be dealt with if the
purpose of the Act was to be achieved; and thirdly, it was possible
to state with certainty what were the additional words that would D
have been inserted by the draftsman and approved by Parliament
had their attention been drawn to the omission before the Bill
passed into law. Unless this third condition is fulfilled any attempt
by a court of j~stice to repair the omission in the Act cannot be
justified as an exercise of its jurisdiction to determine what is the E
meaning of a written law which Parliament has passed."

In Principles of Statutory Interpretation of Justice G.P. Singh, 5th
Edition, 1992, it is stated:

"The Supreme Court in Bangalore Water Supply v. A. Rajappa,
F
AIR (1978) SC 548 approved the rule of construction stated by
DENNING, L.J. while dealing with the definition of 'Industry in
the Industrial Disputes Act, 1947. The definition is so general and
ambiguous that BEG, C.J. said that the situation called for "some
judicial heroics to cope with the difficulties raised''. K. IYER, J., G
who delivered the leading majority judgment in that case referred
with approbation the passage extracted above from the judgment
of DENNING,L.J. in Seaford Court Estates Ltd. v. Asher. But
in the same continuation he also cited a passagf' from the speech
of LORD SIMONDS in the case of Magar & Si Me/ions R.D.C. H
94 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A v. Newport Corporation, [1951] 2 All ER 839 as ifit also found
a part of the judgment of DENNING, L.J. This passage reads:
"The duty of the court is to interpret the words that the legislature
has used. Those words may be ambiguous, but, even if they are,
the power and duty of the Court to travel outside them on a voyage
of discovery are strictly limited." As earlier noticed LORD
B
SIMONDS and other Law Lords in Magar and St. Mellon's case
were highly critical of the views of DENNING, L.J. However, as
submitted above, the criticism is more because of the
unconventional manner in which the rule of construction was
stated by him. In this connection it is pertinent to remember that
c although a court cannot supply a real casus omissus it is equally
clear that it should not so interpret a statute as to create a casus
omissus when there is really none."

In Hameedia Hardware Stores v. B. Mohan Lal Sowcar reported
D in [I 9881 2 sec 513 at 524 the rule of addition of word had been
held to be pennissible in the following words:-

"We are of the view that having regard to the pattern in which
clause (a) of sub-section (3) of Section 10 of the Act is enacted
E and also the context, the words 'if the landlord required it for his
own use or for the use of any member of his family' which are
found in sub-clause (ii) of Section 10(3)(a) of the Act have to be
read also into sub-clause (iii) of Section 10(3)(a) of the Act. Sub-
clauses (ii) and (iii) both deal with the non-residential buildings.
They could have been enacted as one sub-clauses by adding a
F conjunction 'and' between the said two sub-clauses, in which
event the clause would have read thus : 'in case it is a non-
residential building which is used for the purpose of keeping a
vehicle or adapted for such use if the landlord required it for his
own use or for the use of any member of his family and if he or
G any member of his family is not occupying any such building in
the city, town or village concerned which is his own; and in case
it is any other non-residential building, if the landlord or member
of his family is carrying on, a non-residential building in the city,
town or village concerned which is his own'. If the two sub-
H clauses are not so read, it would lead to an absurd result.

.'
INDIAN HANDICRAFTS EMPORIUM v. U.O.I. [SINHA, J.] 95
.)
In Punjab land Development and Reclamation Corporation ltd, A
Chandigarh v. Presiding Officer, labour Court, Chandigarh and
Ors. reported in (1990) 3 SCC 682, this Court held:

"The court has to interpret a statute and apply it to the facts. Hans
Kelsen in his Pure Theory of Law. (p. 355) makes a distinction
between interpretation by the science of law or jurisprudence on
B
the one hand and interpretation by a Jaw-applying organ (especially
the court) on the other. According to him "jurisprudential
interpretation is purely cognitive ascertainment of the meaning of
legal norms. In contradistinction to the interpretation by legal
organs, jurisprudential interpretation does not create law". "The c
purely cognitive interpretation by jurisprudence is therefore unable
to fill alleged gaps in the law. The filling of a so-called gap in
the law is a law-creating function that can only be performed by
a la\'l-applying organ; and the function of creating law is not
performed by jurisprudence interpreting law. Jurisprudential D
interpretation can do no more than exhibit all possible meanings
of a legal norm. Jurisprudence as cognition of law cannot decide
between the possibilities exhibited by it, but must leave the
decision to the legal organ who, according to the legal order, is
authorised to apply the law". According to the author if law is to
E
be applied by a legal organ, he must determine the meaning of
the norms to be applied : he must 'interpret' those norms (p. 348).
Interpretation therefore is an intellectual activity which accompanies
the process of law application in its advance from a higher level
to a lower level. According to him, the law to be applied is a
frame. "There are cases of intended or unintended indefiniteness F
...,_
at the lower level and several possibilities are open to the
application of law." The traditional theory believes that the
statute, applied to a concrete case, can always supply only one
correct decision and that the positive-legal 'correctness' of this
decision is based on the statute itself. This theory describes the G
interpretive procedure as if it consisted merely in an intellectual
act of clarifying or understanding; as if the law-applying organ
had to use only his reason but not his will, and as if by a purely
intellectual activity, among the various existinz possibilities only
one correct choice could be made in accordance with positive law. H
96 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A According to the author : "The legal act applying a legal norm
may be performed in such a way that it conforins (a) with the one
or the other of the different meanings of the legal norm, (b) with
the will of the norm-creating authority that is to be determined
somehow, (c) with the expression which the norm-creating authority
has chosen, (d) with the one or the other of the contradictory
B
norms; or (e) the concrete case to which the two contradictory
norms refer may be decided under the assumption that the two
contradictory norms annul each other. In all these cases,. the law
to be applied constitutes only a frame within which several
applications are possible, whereby every act is legal that stays
c within the frame."

In S. Gopal Reddy v. State ofA ndhra Pradesh reported in [ 1996]
4 SCC 596 this Court observed :

D "It is a well-known rule of interpretation of statutes that the text
and the context of the entire Act must be looked into while
interpreting any of the expressions used in a statute. The courts
must look to the object which the statute seeks to achieve while
interpreting any of the provisions of the Act. A purposive
approach for interpreting the Act is necessary."
E
[See also Mis. DLF Qutab Enclave Complex Edu. Charif. Trust v.
State of Haryana & Ors., (2003) 2 SCALE 145t,

The words, which are used in declaring the meaning of other words
F may also need interpretation and the legislature may use a word in the same
statute in several different senses. In that view of the matter, it would not
be correct to contend that the expression as defined in the interpretation
clause would necessarily carry the same meaning throughout the statute.

The question came up for consideration before this Court in State of
G Maharashtra v. Indian Medical Association and Ors., [2002] I sec 580
wherein this Court speaking through one of us (Khare V.N., CJ!) was
concerned with the term "managemenf' occurring in Maharashtra University
of Health Sciences Act, 1998. Therein a question arose as to whether the
State Government is required to obtain the approval of the Medical
H Council of India for establishment of new medical college. "Managemenf'

.,
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.) 97
/
as contained in Section 2(21) of the Act, which was in the following A
terms:-

"Section 2. In this Act, unless the context otherwise requires, -

(21) 'Management' means the trustees, or the managing or
governing body, by whatever name called, of any trust registered B
under the Bombay Pubiic Trusts Act, 1950 Born. XXIX of 1950
or any society registered under the Societies Registration Act,
1860 21 of 1800 under the management of which one or more
•-<
colleges or recognised institutions or other institutions are conducted
and admitted to the privileges of the University . c
•
Provided that, in relation to any college or institution established
or maintained by the Central Government or the State Government
or a local authority such as a Zita Parishad, municipal council or
-. municipal corporation, it means, respectively, the Central
Government or the State Government or the concerned local
D
authority that is the Zila Parishad, municipal council or municipal
corporation, as the case may be."

-~
The question which arose for consideration was as to whether the
,
State Government would come within the purview of the said Act. This E
Court answered the said question in the negative holding that the expression
'Management' must be read contextually in the following terms:

"We are, therefore, of the opinion that the defined meaning of the
expression 'management' cannot be assigned or attributed to the F
word 'management' occurring in Section 64 of the Act. The word
'management' if read in the context of the provisions of Section
64 of the Act, means any one else excepting the State Government
applying to a State Government for permission to establish the
proposed medical college at proposed location to be decided by
/
the State Government."
G

The doctrine of purposive construction, thus, must be applied in a
situation of this nature.

A trader in terms of a statute is prohibited from carrying on trade. H
r
98 SUPREME COURT REPORTS [2003) SUPP. 3 S.C.R.

A He also cannot remain in control over the animal article. The logical
consequence where for would be that he must be deprived of the possession
thereof. The possession of the animal article including imported ivory
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
B in the matter of possession of the property must be held to be implicit. If
Section 49(7) is not so construed, it cannot be given effect to.

We, therefore, are of the opinion that the appellants have no right to
possess the articles in question. Keeping in view of the fact that the ~- ......

provisions of the statute have been held to be intra vires the question of
C compensating the appellants would not arise as vesting of possession
thereof in the State must be inferred by necessary implication. •
ARE THE PROVISIONS OF THE AMENDING ACT VIOLATIVE OF THE
RIGHT OF PROPERTY OF THE APPELLANTS?
D
It is true that right to property is a ht•man right as also a constitutional
right. But it is not a fundamental right. Each and every claim to property
would not be property right.

Control of property by the State short of deprivation would not entail
E payment of compensation. (See Davies v. Minister of Land, Agriculture
and Water Deve/opment,[1997] I LRC 123 (Zimbabwe Supreme Court)
[Interpreting Convention Rights by Hugh Tomlinson and Vina Shukla-
page 470)

F As at present advised, we do not intend to deal with the question as
regard sov<>reign power of the State vis-a-vis the maxim "salus populi
supremo lex" as stated in Charan Lal Sahu v. Union of India, [1990) 1
SCC 613), the same may have to be considered in an appropriate case.

G ARE THE GUIDELINES CONSTITUTIONAL?
We, however, are of the :>pinion that the guidelines issued by the
Central Government 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 (!), (3), (5) and (6) of Section 49-
H C, the Central Government could not have directed that the appellants
INDIAN HANDICRAFTS EMPORIUM v. U.0.1. [SINHA, J.] 99
would be entitled to only one piece of article and the rest would be A
destroyed. These guidelines, therefore, in our opinion 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 filed in
this behalf, if any, must be disposed of in terms of the aforementioned law.

CONCLUSION:
B

We, therefore, are of the opinion that the respondents would be
entitled to take physical possession of the ivory now in seizure. The
question, however, would be as to whether the Central Government should
destroy the articles including idols of gods and goddesses and household C
items like sofa sets depicting cultural and religious heritage.

It is stated that similar articles are being displayed in museums as a
part of cultural and religious heritage of India.

In view of our findings aforementioned, the appropriate authority D
would be entitled to continue to keep in possession the said articles. We,
however, direct that the same be kept at appropriate museums or at such
suitable places where the statutory authorities feel fit and proper but they
should not be destroyed.
E
With the aforementioned directions and observations, these appeals
and writ petition are dismissed.

N.J. Appeals/Petition dismissed.