Citing court’s duty to protect wildlife, dismisses petition of fur traders
Srinagar: The High Court of Jammu and Kashmir and Ladakh on Tuesday held that no citizen can claim fundamental right in pernicious and subversive trades by invoking fundamental right guaranteed under Article 19 of the Constitution of India.
The court ruled that just like the trade in intoxicating drugs and liquor, the trade in wild animals and their derivatives like fur is dangerous, subversive and pernicious, as it has the potential to deplete the species of wild animals and to ultimately extinguish them.
Justice Sanjeev Kumar noted that it is well settled that the trade which is pernicious can be totally banned without attracting Article 19 (1) (g) of the Constitution of India.
Justice Kumar pointed out that nobody has a right to trade in fur or other wildlife derivatives. He said that Article 48A inserted in the Constitution of India by 42nd Amendment enjoins upon the State to protect and improve the environment and to safeguard the forests and the wildlife of the country.
“Therefore, what is destructive of the environment, forests and wildlife is contrary to the said directive principles of State policy,” he said.
“The Parliament is, therefore, well within its powers to impose a ban by way of appropriate legislation on trading in wild life and their derivatives in furtherance of Article 48A like it can prohibit trade in intoxicating drugs and liquors in compliance with the mandate of Article 47,” he said.
While giving reference to Supreme Court directives in case titled Har Shanker and Ors vs. Deputy Excise and Taxation Commissioner, Justice KKumar recorded that there is no fundamental right to do trade or business in intoxicants.
“The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants – its manufacture, storage, export, import, sale and possession,” the apex court had observed.
The court while dealing with the petitions filed by Fur Traders and Manufacturers of Kashmir noted that the business which the petitioners were pursuing at the time of enforcement of ban was attended with danger to the community.
The court recorded that its evil effect was manifested by the depletion of the wildlife population of the State.
“The possession of fur in view of provisions of Act of 1978 is a crime and there can be no fundamental right to carry on business in crime,” the court said.
Justice Kumar noted that as a matter of fact, the Government could have justifiably taken over the stocks of fur without payment of any compensation and that would have been perfectly constitutional.
However, he said, having regard to the fact that the traders had invested in the fur stocks when it was not illegitimate or illegal to do so, therefore, they were required to be adequately compensated for the loss that had occasioned to them due to abrupt enforcement of ban on fur trade in erstwhile State of Jammu and Kashmir.
Justice Kumar said, “There is no question of the petitioners having been deprived of their means of livelihood as earning of livelihood by indulging in a dangerous and pernicious trade is not countenanced by any civil society anywhere in the world.”
That apart, Justice Kumar recorded that this court was of the firm opinion that it cannot sit in appeal over the decision taken by the Committee of officers headed by Divisional Commissioner, Kashmir.
He noted that the reasons given by the Committee to provide rehabilitation only to the artisans and not to the fur traders are fair, just and proper and, therefore, do not fall foul of Article 14 of the Constitution.
“In view of the foregoing discussion and the analysis made, this Court finds no merit in these petitions. The fallout and the consequence thereof is dismissal of both these petitions,” Justice Kumar ruled.