“Take nothing but photographs, leave nothing but footprints,” said Jim Corbett in in his classic, Man-Eaters of Kumaon. Using a Bell & Howell 16mm movie camera, Corbett was probably the first filmmaker to capture wild tigers on cine film. With his noisy camera “driven by clockwork [and] cranked by hand”, Corbett photographed animals from a machan when they came to drink.
Anjali Bharthari writes:
“The noise of the running water masked the sounds of the camera. If the water was not enough he supplemented it with his own bird calls and insect noises … With his films he visited schools, hospital wards and small social gatherings to spread the first lessons in conservation.”
Corbett was lucky to be operating in the pre-independence era. Had he been doing all the photography and sharing the same (which led to his transformation from a hunter to a conservationist), he would have probably been booked for violating the Wildlife (Protection) Act, 1972.
Years would have been spent not writing about wildlife, but defending himself in court or explaining himself to forest officers: first for taking pictures; second for sharing photographs; and third for ‘instigating’ people.
This is not a hypothetical situation. Across India, wildlife researchers today are being harassed by forest officers for not taking prior permission for photographing and conducting research on wildlife.
There are numerous instances of these: a researcher (who did not wish to be named) shared how despite working on wildlife outside protected areas, she was taken by surprise when the forest department asked her for permits for carrying out studies on wild mammals. This is despite the fact that the study did not involve capturing or disturbing any animals.
What was of greater concern was the fact that the forest department stated that until the researcher obtained the permit, her entry into the ‘wildlife division’ would be prohibited.
In another instance, a researcher working on a threatened wild cat shared information on social media about poaching, which led to the arrest of the cat’s poachers. However, the researcher was shocked when she was sent a notice by the forest department stating that her taking photographs and sharing them on social media were in violation of the Wildlife Act.
And in yet another instance, a researcher working on small mammals in the semi-arid areas of western India was directed to take prior permission under the Biological Diversity Act, 2002 for collecting scats/faecal matter even though none was collected from protected areas.
The list is endless. Few speak up for fear of retaliation.
At a recent conference in Bengaluru – the Indian Wildlife Ecology Conference 2024 – one common concern among wildlife researchers was the bureaucratic red-tapeism (or more appropriately, ‘green-tapeism’) that leads to severe delays and restrictions in undertaking research on wildlife.
Researchers said they were told to seek permission for recording the behavioural patterns of birds, insects and animals outside protected areas. In other cases, action was initiated for their installing camera traps and, in some instances, researchers were prohibited from even collecting and analysing scats. There were numerous instances where researchers were questioned for sharing photos on social media.
In a country where wildlife researchers are a rarity and funding for research miniscule, scared and traumatised researchers run pillar to post to secure research permits. For them, it is not the tiger that rules the jungle, but the ‘permit raj’ of the forest department, which is the law of the jungle.
However, perusal of the Wildlife Act of 1972 as well as the recent amendments of the Act in 2023 reveal quite the opposite: research on wildlife is generally free from regulatory hurdles; prior permissions for research and photography are required only in exceptional situations; and the legislature clearly did not intend for wildlife to be under the control and ownership of the state and the forest department.
A perusal of the Wildlife Act reveals that through a series of misinformation and disinformation, an entire ad hoc system of permits has been created that has no statutory basis. It is clear when one examines the Act with respect to wildlife research and photography.
First, under the scheme of the Wildlife Act, permission of the chief wildlife warden (CWLW) is only required if photography is to be done in protected areas – national parks, sanctuaries, community reserves and conservation reserves (Section 28 of the Act). In fact, no permission is required for photography in a tiger reserve (if the same is not part of a national park or sanctuary), since tiger reserves are not protected areas.
By necessary implication, this means that no approval from any authority is required for taking photographs of wildlife in urban, rural and forest areas, including reserve forests, so long as the area is not a protected area. One is free to share and upload photos to social media and in any other manner.
Second, prior permission of the CWLW is required for the “investigation or study of wild life” only if the same involves a protected area (Section 28 of the Act). Thus, the investigation or study of wildlife in areas that do not form part of protected areas do not require any permission under law.
In some states, orders have been issued stating that prior permission is required since the research is being done in a ‘wildlife division’. However, ‘wildlife division’ is an administrative category and not a legal category. Since it is not a protected area, no permissions are required.
However, permission of the CWLW is mandatorily required outside a protected area only if the research involves hunting a wild animal. In case no hunting is involved, no permission from the CWLW is required.
Observing the behaviour of wild animals and birds, camera trapping and photography do not fall within the definition of hunting. Therefore, no permission is required under the Act. However, prior permission is required for radio collaring, as it involves capturing the wild animal concerned.
Third, in some instances, the CWLW insists on prior permission for undertaking research (and photography) on the grounds that it includes a Schedule 1 species under the Wildlife Act.
Here again, it needs to be pointed out that there is no specific requirement for prior permission because a species is included in Schedule 1. One cannot overlook the sheer absurdity of such an interpretation: Schedule 1 species are not uncommon or found in remote wilderness – peafowl are all over urban areas in many cities, and blackbucks and chinkaras inhibit agricultural lands along with jackals, porcupines and mongooses; common barn owls, shikras, brahminy kites, common cranes and sarus cranes are a part of urban and/or rural landscapes, and are all Schedule 1 species.
If the forest department’s interpretation is accepted, prior approval of the CWLW is required even to photograph an Indian chameleon, which is a Schedule 1 species.
Going by the forest department’s interpretation, taking this photo would have required prior permission from a CWLW. Photo: M.arunprasad/Wikimedia Commons. CC BY 2.5.
Fourth, there is no restriction on collecting scats from non-protected areas by researchers who are Indian citizens. Scat or faecal matter is not covered under the definition of either ‘animal article’, ‘forest produce’, ‘trophy’ or ‘uncured trophy’. It is only if the researcher is a foreigner or the scat is to be sent to a foreign country for analysis where the prior permission of the National Biodiversity Authority is required under the Biological Diversity Act, 2002.
It is clear that most of the orders passed by the forest department across India will not survive judicial scrutiny and are clearly contrary to both the letter and spirit of the Wildlife Act. The CWLW is a statutory post; by necessary implication, this means that their powers are limited to what is prescribed in the statute. Being a creature of the statue, they have to act within the four corners of the law and not beyond it.
There is a general misconception that wild animals are the property of the government. Nothing could be farther from the truth. Under the scheme of the Wildlife Act, wild animals and birds are not the property of the state. They become the property of the government only when an offence has taken place against them. As long as they are alive and in the wild, they are by nature free.
‘Wild’ does not connote a geographical location, but rather a ‘state of being’: an animal can be wild in the city, but it can be domestic or captive while in a forest.
Way back in 1954, the Madras high court dealt with the status of a deer in a reserve forest and held that “a deer in a reserve forest in ferae naturae and it cannot be said to be in the possession of any person so as to make the removal of it theft”. (Perumal versus State, Madras high court 1954 SCC OnLine Mad 8).
The Supreme Court in the lion relocation case (Centre for Environmental Law versus Union of India, 2013) made this abundantly clear when it held that “no state, person or organisation” and “even nation” can claim ownership over wild animals, even when they are in the forest.
In 2022, the Madras high court reiterated in A. Vishwanath versus Union of India that wild animals are not the property of either the state governments or the Union government. Under Article 141 of the constitution, the law declared by the Supreme Court is the law of the land and therefore the interpretation that wild animals are not the property of the government is the law of the land. Officers can only implement the law: they cannot interpret the law.
The courts on various occasions emphasised the difference between ferae naturae and domitae naturae. The concept of property rights extends to domitae naturae – animals that are domesticated – and does not extend to animals that are wild. In the case of the Wildlife Act, a wild animal becomes the property of the government only when an offence has been committed against it, either by an act of hunting, or by keeping it in captivity or if it is found dead (Section 39 of the Act).
A living wild animal is not government property, and consequently neither the state nor the CWLW is the owner of any wild animal.
In 2011, the Supreme Court said: “An authority is under a legal obligation to exercise the power [its discretionary power] reasonably and in good faith to effectuate the purpose for which power stood conferred. “In good faith” means “for legitimate reasons”” (Noida Entrepreneurs Association vs. Noida and others, reported in 2011 (6) SCC 508).
Every order passed and directions issued must be within the four corners of the Wildlife Act. In United States v. Wunderlich (342 US 98: 96 L Ed 113 (1951)), the US Supreme Court observed that:
“Law has reached its finest moments when it has freed man from the unlimited discretion of some rulers, some … official, some bureaucrat … Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.”
It needs to be highlighted that an order or direction does not become legitimate merely because it is issued by the CWLW or any government functionary, however high their post. To act as if this is the case is nothing but an arbitrary and illegal exercise of power that has no statutory basis.
The Supreme Court’s observation on the need to minimise the arbitrary use of power is relevant in the present context in view of illegal orders being passed by authorities:
“There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it.” (Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213 at page 716.)
India’s forests and biodiversity face multiple threats – large-scale diversions amounting to nearly three lakh hectres in the last decade and a half; the fragmentation of habitats; the illegal denotification of protected areas; degradation and encroachments; organised wildlife crime; and changing vegetation patterns due to climate change, among others.
Wildlife researchers play a crucial role in the battle to save these last wilderness areas and wild species, and should be seen as crucial partners in the conservation battle. It is important that the effort and energies of the forest department are devoted more towards these pressing challenges and threats rather than to arbitrarily and illegally acting against wildlife researchers.
India’s forest bureaucracy needs to move away from the ‘red carpet’ treatment it usually offers to destroyers of wildlife and its habitat, while subjecting wildlife researchers to arduous ‘green-tapeism’.
Ritwick Dutta is an environmental lawyer and founder of Legal Initiative for Forest and Environment (LIFE) and can be reached at r.dutta@doughtystreet.co.uk. Tiasa Adhya is an ecologist and conservationist with the IUCN Species Survival Commission.
