There is a risk of inadvertently fuelling illicit exotic pet trade due to a lack of enforcement capacity in India. How can it be countered?
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AS part of its continuing effort to champion global biodiversity conservation, India actively supports the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
Despite being a signatory to CITES since 1976, India has faced challenges in effectively implementing and enforcing regulations at the national level. In particular, lack of resources and insufficient training for enforcement officials undermine efforts to combat wildlife trafficking.
Only in 2022 was CITES ratified in the Wild Life (Protection) Act, 1972 through an amendment that regulates the legal possession, transfer and captive breeding of exotic (non-native) animals. Consequently, for the past year, a series of Rules have been notified to facilitate the amendment made to the principal Act.
These include the Breeders of Species Licence Rules, 2023, the Wildlife (Protection) International Trade of Specimens Rules, 2023, and the Living Animal Species (Reporting and Registration) Rules, 2024.
Despite being a signatory to CITES since 1976, India has faced challenges in effectively implementing and enforcing regulations at the national level.
However, there is a complete absence of measures concerning the welfare of seized exotic animals and the establishment of rehabilitation centres for their care. There are no directives concerning the fate of existing exotic pet shops and management of invasive species.
Voluntary disclosure scheme
The 2022 amendment was preceded by a controversial voluntary disclosure scheme (VDS) notified by the Ministry of Environment, Forest, and Climate Change (MoEF&CC) in June 2020 to address the threat of zoonotic diseases and develop an inventory of exotic live species for improved compliance under CITES, a move seen as largely counter-productive to the convention.
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The VDS granted immunity from investigation and prosecution if one declared illegal procurement or possession of exotic live species, i.e., any animal or plant species moved away from their native region by March 15, 2021, essentially granting amnesty.
The amnesty scheme critically undermined efforts to combat wildlife trafficking as dealers and breeders were seen taking advantage of this to launder their illegal inventory of exotic animals.
It can be assumed that this regularisation allowed applicants to legitimise possession of Appendix I CITES species that are threatened with extinction and are afforded the highest level of protection under the convention.
Trade in specimens of these species is only permitted under exceptional circumstances, such as for non-commercial purposes, scientific research or conservation efforts.
For instance, as per a recently published report, the black-and-white ruffed lemur endemic to Madagascar, a critically endangered species, and the Beisa, an antelope endemic to East Africa, also an endangered species, figured in the disclosure applications.
It was also reported that 43,693 applications under the VDS have been made from 30 states and Union territories, of which 2,240 have been approved.
It is still unknown how disclosures were evaluated, the criteria for determining eligibility for amnesty, how disclosed animals will be monitored, and how their welfare would be ensured.
There is a complete absence of measures concerning the welfare of seized exotic animals and the establishment of rehabilitation centres for their care.
It is noteworthy that the VDS was announced concurrently with the import and housing of undisclosed exotic animals at a privately held mini zoo-cum-rescue centre in Gujarat. The amnesty scheme could be interpreted as an attempt at window-dressing with obscure political intentions.
Legal lacunae
Through the 2022 amendment to the Wild Life (Protection) Act, exotic wildlife listed in the CITES appendices are now included under the scope of the Act.
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This amendment introduces Chapter VB to enforce CITES provisions, and animals listed in the CITES appendices are incorporated into Schedule IV of the Act.
Ownership of such exotic wildlife is now subject to punishment in the absence of requisite documentation. Section 49M of the newly inserted amendment deals with the legal possession, transfer and captive breeding of living exotic species.
It states: “Every person in possession of a species listed in Schedule IV is required to report details of such animal to the management authority, which, as per sub-Section (2), is required to satisfy itself that the animal has not been possessed by contravention of any law and only after such satisfaction the authority shall issue a registration certificate permitting retention of such animal. If the authority is not so satisfied, sub-Section (8) makes such possession illegal.”
As a result of the aforesaid provision, the animal will be forfeited to the Union government in accordance with Section 48Q, and the individual involved will face prosecution under Section 51 of the Act.
Therefore, another legal shortcoming that went unnoticed at the time of issuing the VDS was the optional nature of the advisory, which primarily targeted the regulation of import–export.
The public was not adequately informed that failure to opt in would result in future penalisation and other consequences affecting their right to possess a wild animal.
The amnesty scheme critically undermined efforts to combat wildlife trafficking as dealers and breeders were seen taking advantage of this to launder their illegal inventory of exotic animals.
This was further complicated by the Supreme Court in Swetab Kumar versus Ministry of Environment, Forest and Climate Change and Ors, where the court asserted:
“14. In order to achieve the desired object of the amending Act, of enforcing provisions of CITES, the respondent must provide the option of advisory to the citizens at large for a further reasonable period by putting them to notice of the consequences of failure to make such registration or declaration.”
“15. We take note of the fact that the Rules as envisaged under Section 49M (9) have not yet been framed and in essence, the provisions of Section 49M thus, have not become operative. The respondent authorities should, therefore, while framing the Rules, take into consideration the same.”
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It must be noted that the Rules have now been notified with no extension of an amnesty. Individuals without a director general of foreign trade import licence and CITES export permit or certificate, in case of acquisition through import, cannot register exotic animals in their possession under the previously mentioned Rules and would face prosecution.
Further, the court also affirmed that: “[T]he legal position to be taken into consideration is that an amendment Act cannot post facto criminalise possession. This proposition does not require much deliberation and is well settled that retroactive criminal legislation being violative of Article 20(1), one of the fundamental rights guaranteed under part III of the Constitution is prohibited.”
Therefore, this decision can potentially set a concerning precedent. Firstly, it bolsters the VDS which regularised illegal trade and was not only a transgression of CITES but also the Customs Act, 1962 as well as the Foreign Trade (Development and Regulation) Act, of 1992.
Pre-amendment, the Customs Act, 1962, and the Foreign Trade Policy of 2015–20 under the Foreign Trade (Development and Regulation) Act, 1992 controlled the movement of animals across borders, including those listed by CITES.
India’s foreign trade policy sets out rules for importing CITES-listed animals, requiring a CITES import permit. The Customs Act allows authorities to seize imported exotic species without the necessary permits and prosecute, thus the argument of retroactive criminalisation is invalid.
Secondly, the notified Rules, having not extended an amnesty as recommended by the court, can be availed as a defence by individuals upon prosecution for illegally possessing exotic wild animals.
Flaw in the law
Between 2011 and 2020, India’s airports seized over 70,000 native and exotic wild animals, as reported by TRAFFIC India.
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Animals that are seized and cannot be repatriated due to unclear origins or potential refusal from their country of origin undergo quarantine procedures. Subsequently, they are relocated to local zoos, which have high mortality rates, and to rescue centres.
Many zoos are ‘overflowing’ with seized exotics and due to shortage of space have had to turn away some animals.
Many seized or captured animals do not survive due to a lack of well-equipped wildlife rescue and rehabilitation centres across the country. The current facilities lack the infrastructure and expertise necessary to properly treat, monitor and provide essential housing, care and healthcare to seized exotic wild animals.
Many zoos are ‘overflowing’ with seized exotics and due to shortage of space have had to turn away some animals. The lack of scientific quarantine, quality veterinary care and rehabilitation puts the welfare of these animals at risk.
It also presents a risk of zoonotic diseases due to insufficient disease surveillance. This dearth of infrastructure has not been addressed or eased through the recently notified Rules.
The amendment is an opportunity to crack down on pet shops and one can foresee large volumes of seizures once the enforcement of the new regulations takes place.
However, given the poor rescue and rehabilitation infrastructure the fate of seized exotic animals remains uncertain. The Rules also fail to address the management of exotic species if they are accidentally or deliberately released into the environment.
Once released, exotic invasive species can outcompete native species for resources, leading to declines in native biodiversity. Rule 7 of The Living Animal Species (Reporting and Registration) Rules, 2024 makes an inconsequential mention of this happening but lacks teeth as no degree of deterrence is affixed:
d) ensure that the animal species does not escape from the facility;
(e) inform any escape of the animal species to the nearest forest office having jurisdiction immediately and not later than twenty-four hours of such escape;
(f) be liable for damages, if any, caused due to such an escape.
Looking ahead
Forest departments, already stretched too thin with myriad tasks, remain unprepared for what lies ahead.
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To mitigate the risk of inadvertently fuelling illicit exotic pet trade due to the lack of enforcement capacity, several measures could be implemented.
Firstly, investing in comprehensive training programmes for forest department personnel focused on the identification of exotic species and understanding relevant laws and regulations is essential.
Strengthening partnerships with local communities, conservation organisations, and CITES itself can enhance intelligence gathering and facilitate coordinated efforts to combat illegal trade.
This training should be ongoing and involve collaboration with wildlife protection organisations, species experts and law enforcement agencies.
Additionally, leveraging technology such as AI-powered tools for species identification could augment the capabilities of enforcement officers.
Strengthening partnerships with local communities, conservation organisations, and CITES itself can enhance intelligence gathering and facilitate coordinated efforts to combat illegal trade.
Lastly, allocating adequate human and fiscal resources specifically dedicated to monitoring and enforcing regulations related to exotic pets is crucial to ensure effective enforcement without overburdening the forest departments.