POLICY ANALYSIS OF ‘BETI PADHAO, BETI BACHAO SCHEME’November 21, 2018
2018 UPDATE – HOW TO EXPORT AN AIRCRAFT FROM INDIA UNDER THE CAPE TOWN CONVENTIONNovember 21, 2018
One of the basic principle of criminal law is to ascertain the guilt of accused person beyond reasonable doubt before penalizing him. Populist sentiment, therefore, cannot be enough consideration for the ascertainment of guilt without proper scrutiny of evidence and this is widely accepted as a matter of fundamental right. Failure of the State machinery to follow the same when it comes to animals, and not just any animal, but the National animal of India should be a cause for great concern.
Animals, since the inception of the Indian culture, have had a special relationship with the human civilization. They were worshipped as deities, respected as family members and provided for as friends, thus, forming an intrinsic part of the society. However, what followed with the advent of modernity, urbanization and colonization was a decline in the traditional respect accorded to animals which is evident by the increased hunting, poaching and general degradation of the country’s diverse fauna. The recent WWF report claims that “humanity has wiped out 60% of wildlife population since 1970”.
Post-independence liberty evoked a consciousness (evident from article 48A and 51A of the Constitution of India) towards preserving and restoring the disgraced animal kingdom, thus giving rise to a series of ecologically woke laws.
The central legislation for the protection of wildlife, which was consolidated in the form of Wildlife Protection Act, 1972, aims at providing protection to wild animals, birds and plants and other related matters in order to ensure ecological and environmental balance in India.
As per estimates, the number of tigers was about 40,000 at the beginning of the 20th Century. However, when the first tiger census was undertaken post independence, in 1972, it showed an alarming decline in the number of tigers from 40,000 to an abysmal low of 1827. This concern was converted into an action plan by the government known as Project Tiger which provided for the establishment of tiger reserves.
The steady rise in the number of man-animal conflicts can be attributed to increasing number of tigers due to successful conservation strategies and decreasing forest cover. Data shows that the tiger population has increased to 2226 whereas, the forest cover has decreased by 12.5% (NTCA Records). Tigers are territorial animals and hence, establish their territories across the forest reserves. With the increase in their population, tigers seek out new territories to establish their exclusive domain and to get an abundance of suitable prey. The dwindling forest cover to provide for the increasing needs of urbanization, when coupled with increase in encroachment of the forests by the locals exponentially increase the man-animal conflicts, whereby, tigers may kill humans for various reasons like self-defense, provocation, humans in close vicinity of their prey eg cattle, threat to their cubs etc. All of these conflicts are chance encounters and do not exhibit the tendencies of a deliberate human-stalking man-eating tiger, therefore, tranquilization and translocation are better alternatives than destroying them.
However, The SC recently refused to interfere with the HC’s upholding of a shoot at sight order for tiger T-1 (famously known as Avni) of Pandharkawada forest in the Yavatmal district of Maharashtra because Avni has been labeled as a man-eater by the Chief Wildlife Warden. Therefore, wildlife activists across the country have initiated agitations against this decision. This decision seems to be taken in haste because of the mounting pressure of the local villagers without proper scrutiny of evidences, thus violating the procedure laid down in SOP for straying of tigers. The mounting public pressure has been the cause of various shoot at sight orders across the country without attempting pacifist approaches first. These procedural irregularities have been normalized as the Chief Wildlife Warden believes that SOP is merely suggestive and not binding on them and that they can issue such orders, if the circumstances which would justify such orders, exist (Dr. Jerryl Avinash Banait v. State of Maharashtra).
Tigers and leopards are known to cause habituated loss of life, which is why, section 11 of the Wildlife Protection Act authorises the Wildlife Warden to order their killing in circumstances where they become habituated man-eaters. SOP requires diligence in ascertaining the subtle but significant difference between habituated man-eaters and chance encounters. It must be noted that factors such as loss of forest cover, increase in the population of tigers, encroachment of humans in the forest are common causes in cases of chance encounters as well as habituated man-eaters. The crucial difference lies in the fact that a habituated man-eater deliberately stalks, kills and eats humans while refraining from eating its natural prey. On the contrary, in cases of chance encounters, tigers usually aim at killing the cattle but end up killing the human who is in the vicinity of the cattle. The tiger may also confuse the human for its prey, especially if it is in a bent position (open defecation or cutting grass) or, when provoked or is fearful for its cubs’ safety. It is only in exceptional circumstances, that a tiger might end up eating a human because of the scarcity of natural prey.
Now, coming to the case at hand, 13 human kills have been attributed to Avni, however, out of the 13 victims, DNA tests of only 3 victims were done, out of which one was found to be inconclusive, one showed kill by a tiger and one showed kill by a tigress and the last human prey was found to be 60% consumed. All this led to the assumption of Avni being a man-eater. However, SCAT (Systematic Causal Analysis Technique) analysis which is used to determine a carnivore’s eating patterns by examining undigested parts of its prey (hair, feathers, bones) in the carnivore’s scat was not undertaken to determine whether it was Avni or any other tiger (considering there were seven other tigers in that forest reserve) or any other carnivore (including leopards) who ate the human.
Arguendo, if Avni were a man-eater then it seems improbable as to why she would consume only the 13th human victim (if she did consume it) coupled with the fact that 7 out of 13 humans killed were found in the vicinity of cattle, 6 out of 13 were grazers and all the victims were killed inside the forest reserve. Another fallacy that must be taken into account is that the dates of the death of the victims show irregularity, randomness and do not conform to the eating habits of a “habituated man-eater”. The first kill took place on 1st June 2016 followed by two consecutive kills three months later on 3rd and 4th September. The fourth kill took place one and a half months later on 30th October which was followed by a time difference of a whopping 9 months with the fifth kill on 22nd July, 2017 followed by kills in successive months of August, September and October which were then followed by kills in December and January before going into a hiatus for another 6 months. The 11th human victim was found dead on 4th August with 2 more successive killings in the same month. The randomness in the dates of death of the victims hints that the victims were victims of a chance encounter. To deduce this pattern so that it conforms with the pattern of a habitual man-eater would be ‘random’.
John Rawls has guided us to think of the difference between rational and reasonable, rationality is construed as achieving the ends without having a proper recourse to the means involved, which can pave way for transgressions into the basic constitutional rights of the constitutional worst-offs (Avni, for instance). Reasonable, on the other hand, signifies the importance of the means to an end, that the means have to conform to the constitutional guarantees of fairplay in governmental conduct.
Efficiency considerations are important but so are fairness and animal rights considerations.
It is in this context that we argue that the action of Chief Wildlife Warden may be construed as rational, given that the evidence of a tiger being a man-eater is mostly circumstantial and being the Chief Wildlife Warden, he is in a better position, due to his expertise, to have a better understanding of the circumstances and to relieve the villagers of the constant threat they have been living under, due to Avni. However, those decisions cannot be considered as reasonable as it paints a guilt on Avni without sufficient circumstantial evidence. The lack of conclusive evidence, is also on account of inefficiency of the forest department (no DNA tests of all victims, no SCAT analysis, no conclusive camera trappings displayed for evidence etc). It should also be noted that even though the Chief Wildlife Warden has articulated that shoot at sight will only be taken recourse to, if the successive trapping and tranquilizing fail, but appointing a private hunter (the infamous Nawab Shafath Ali Khan), a golfer who breeds domestic hunting dogs, thermal drones indicate otherwise.
It must also be noted that a State Cabinet Minister who handles portfolios of both finance-planning and forests gives credence to a larger conspiracy wherein, there are allegations of allotment of forest reserve land to the tune of 600+ acres to big companies like Birla group, Adani group for setting up of greenfield cement plants.
On the night of 2nd November, T-1, Avni was shot dead by sharp shooter Asghar who is the son of Nawab. The shoot-at-sight order issued by PCCF was in the name of Nawab and not his son, which itself is a violation. Adding to the already sizable list of violations, there was no wildlife veterinarian present for tranquilization efforts (as was required by both SOP and Court orders). There are also allegations that the dart which was found pierced into Avni was pinched manually and not fired, although this would have to be corroborated by subsequent forensic reports. Notwithstanding the process of how tranquilizing dart was used, the dart was clearly used at night, which is a prohibited practice as darting is only allowed from sunrise to sunset as per the SOP.
To conclude, the actions of the Chief Wildlife Warden and the whole of State machinery have not been conducive, rather, they have proved to be detrimental to Avni and to the cause of animal rights in India. As Mahatma Gandhi famously quoted “The greatness of a nation and its moral progress can be judged by the way its animals are treated”, it is high time, the country in general and State machinery, specifically pay heed to Mahatma Gandhi’s advice if animal rights are to sustain in India.
 (All india Tiger Estimation Results – https://projecttiger.nic.in/News/20_Newsdetails.aspx)
 (https://mumbaimirror.indiatimes.com/mumbai/civic/465-hectares-forest-land-to-make-way-for-cement-plant/articleshow/62611657.cms )
ABOUT THE AUTHOR(S):
Kashish Jain is currently a first year student at Dr Ram Manohar Lohiya National Law University. Her areas of interests include Constitutional Law and Company law.
Ishan Saxena is currently a third year student at Dr Ram Manohar Lohiya National Law University. His areas of interests include Constitutional Law, International Law and public policy issues.