Poor enforcement, weak laws make poaching an easy game

On the night of October 1, 1998, when Salman Khan went hunting blackbucks, he was explicitly warned not to do so in the Bishnoi area because only a few have managed to get away from them. Yet Khan and his co-stars Saif Ali Khan, Tabu, Sonali Bendre and Neelam, along with local contacts, went ahead and shot two blackbucks. Poonam Chand, a resident of Kankani village, Jodhpur district, heard

•  Target Jodhpur

the gunshots at around 1.30 am on October 2. He came out of his house, only to see Khan's Maruti Gypsy moving away slowly. The vehicle came back but when the occupants spotted Chand they sped away. However, Chand had enough time to note the Gypsy's number.

A forest ranger¤ Bhawarlal Bishnoi¤ the first forest official to reach the spot¤ recounts that Chand and other villagers came to inform him that two blackbucks had been killed. He added that the actors used to visit Kankani to have tea and the villagers recognised them easily.

That Khan had earlier shot chinkaras in Ghoda Farm and Bhavad in the same area was not known. The registration number of the Gypsy played a big role in identifying Khan's involvement in all the poaching incidents. The regional transport office in Jodhpur informed investigators on October 6, 1998, that the vehicle was owned by one Arun Kumar Yadav, who revealed Khan had killed two chinkaras before going out on the blackbuck expedition.

Khan was sent to prison on October 12. He is facing three charges of poaching under various sections of the Wildlife (Protection) Act (WPA), 1972, and the Criminal Procedure Code (CrPC). Two of them are for killing the chinkaras and one in the blackbuck case. He is also facing three cases under the Indian Arms Act, 1959 for using unlicensed weapons and filing false affidavits about losing his arms licences.

Khan has already been found guilty of poaching in the two chinkara cases. On February 16, 2006, the metropolitan judicial magistrate of Jodhpur, sentenced him to a year in prison for killing a chinkara at Bhavad. In the second case involving killing a chinkara at Ghoda Farm, the same court awarded Khan a jail term of five years and a fine of Rs 25,000 on April 10, 2006. The district sessions court upheld the second judgment on August 24, 2007. Currently, Khan is out on bail, granted by the Rajasthan High Court, in that case. The district court is hearing a plea for an increase in the sentence in the other.

The third case involving the blackbucks has been stuck at the high court, where the prosecution has filed a revision petition after the sessions court removed some charges against Khan.

Hostile atmosphere
Witnesses turning hostile or absconding is a big problem. In the chinkara cases, Dinesh Gawra, who held the searchlight when Khan shot a chinkara, absconded. Kanwara and Rupa Ram said in court that they had not seen a Gypsy, and Pukh Raj said the vehicle he saw was not the one Khan was using. Others said the police recorded incorrect testimony. An investigating official said the cross-examination of the witnesses, held in 2001, was farcical because they denied everything they had told investigators.

Harish Dulani was the Gypsy driver. His testimony, on January 24 and March 20, 2002, was clinching evidence. Dulani had testified that on September 28, 1998, Khan shot a chinkara from the Gypsy and then slit its throat. Although the defence was given a chance to cross-examine on March 20, 2002, it refused. After his testimony, Dulani disappeared. He did not reply to court summons and when a warrant was issued against him, he could not be traced. In fact, before his testimony on January 24, Dulani had given the court a written statement saying Khan and his associates were threatening him.

Dulani is still untraceable. However, in April 2006, days before Khan was sent to jail in the Ghoda Farm case, he reportedly gave an interview to a television channel, saying he had not seen Khan. A case has been registered against Dulani for perjury since he had issued a statement in October 1998 before the district magistrate identifying Khan and others as being part of the hunting party. However, in 2002, when all the accused were produced in court he only identified Khan. Even though a case of perjury has been registered, Dulani's testimony has been taken on record.

The Ghoda Farm and Bhavad cases were backed by circumstantial evidence and Dulani's testimony. For the April 10 judgment (in the Ghoda Farm case), the court considered Khan's presence where the chinkara was killed on September 28 with arms in an open-top vehicle; presence of chinkara blood and hair in the vehicle; recovery of ammunition; depositions of witnesses who procured the hunting weapons; and the knife surrendered by Khan's brother, with which he allegedly slit the chinkara's throat.

Forest officials in Jodhpur allege Dulani and others succumbed to money or muscle. Inducements were also allegedly offered to Lalit Boda, a forest official, and Ashok Patani of the Rajasthan Police, the two main investigators. Whatever be the truth of these allegations, the integrity of these two officers are beyond question. Curiously, the first post-mortem report said the blackbucks died of overeating. The state veterinarian who examined the carcass was suspended and a new team confirmed the animals had been shot.

The Bishnois hold the key to the blackbuck case. "It is hard to find witnesses to a wildlife crime. In the blackbuck case we have two eyewitnesses," says Mahendra Singh Kachhawa, special public prosecutor. Ballistic and post-mortem reports make the case stronger than the chinkara cases, he adds.

In 1998, it was the Bishnois who reported Khan's blackbuck hunting expedition in the first place. Now, they continue to help keep public attention on the actor as the trials proceed. The community, well known for its conservation practices, sees Khan's attempts to poach as a transgression punishable by death.

Khan is lucky, says a villager from Kankani in Jodhpur district, where he was spotted shooting blackbucks. "There were just two eyewitnesses, had the whole village turned up, Khan's fate would have been the same as that of the blackbucks he shot. We can give our life for conservation," says the villager.

There are around two million Bishnois in Rajasthan. They are mostly agriculturists but a number have taken to business and politics and are powerful, politically and economically. In Rajasthan, it is also commonly said that a section of the Bishnois control the illicit opium and liquor trades.

According to legend, the founder of the Bishnoi sect, Jambeshwar Maharaj, attracted many Jat followers in the 15th century, promising them they would not have to migrate in years of drought if they followed 29 principles. He propagated the idea of resource optimisation, including restrictions on cutting and lopping of the khejri tree (Prosopis cineraria), rearing camels and cattle, and conserving all forms of life. The khejri, chinkara and blackbuck are revered.

"We have been taught from our childhood that the environment comes first," says Ratna Ram from Kankani. "One life is a small sacrifice when protecting a tree." J R Bishnoi, also from Kankani, a graduate from Jodhpur University, says modern education has helped Bishnois. "Earlier generations followed rules because they were sacrosanct, but with education they make more sense. Protecting the environment allows you to use resources more systematically and efficiently," he says.

Advantage of adversity
Purnendu Kavoori, associate professor of anthropology at the Institute of Development Studies, Jaipur, says harsh conditions have made the Bishnois good conservators. In 2003, Kavoori documented the drying up of the Luni river, the only drainage outlet in western Rajasthan. His study also looked at the resource utilisation of the Bishnois and other communities that inhabit the banks of the Luni. Citing the example of a devastating flood in 1981 caused by this saline river which destroyed most irrigated agriculture in Rawar, a village on its banks, Kavoori documented how the Rajput, Seervi and Jat communities of the area emigrated en masse from the village. The saline intrusion left well water unfit for irrigation. The Bishnois moved in. "For Bishnois this was a chance to colonise and expand. With their resource-conservation strategies they functioned more effectively in the retarded environment," Kavoori says.

"What distinguishes Bishnois is the evolution of institutions and practices geared to resource conservation. This helps them secure a firm foothold in less than optimal conditions," Kavoori adds.

S M Mohnoth, director, School of Desert Sciences, Jodhpur, who has worked with Bishnois, says: "The khejri is leguminous. It restores nitrogen and micronutrients to the soil. Blackbucks and chinkaras provide manure."

Though the Salman Khan case is being actively prosecuted, and is in the public eye, this is no thanks to the legal, judicial and enforcement systems currently in place. There is a strong current of opinion among experts about the need to overhaul the system.

Hunting and trading in wildlife is banned under wpa. Under it, wildlife is categorised under various schedules. Tigers and blackbucks are among those in Schedule 1, ie they are endangered and stringently protected. Outlining wpa provisions, senior Supreme Court advocate Rajiv Dhawan says wpa provides for three years imprisonment or a fine up to Rs 25,000 or both for first offences. Subsequent ones invite imprisonment for three to seven years and a fine of Rs 25,000. The same applies to Schedule I species and crime in protected areas.Trade or commerce in parts of scheduled animals attract three to seven years in prison and a fine of Rs 10,000.

There are provisions which empower forest officials to initiate and participate in investigation enter premises, search, seize, arrest, detain and record evidence. The power to arrest/detain can be anti-poor, when they are unable to provide bona fides , Dhawan adds.

Loopholes
Convictions are, however, few and far between. Some say wpa is the main problem, being riddled with loopholes and ambiguities. Lawyers representing Sansar Chand, the notorious poacher (see box Jail-hardened), for instance, claimed the police had no authority to investigate a wildlife case, while some experts argued they could on the basis of complaints by the forest department. The judicial system comes in for the brunt of criticism from other quarters.

Some wpa loopholes were highlighted in the 2005 report by the Tiger Task Force. It pointed out that the act makes no distinction between serious offences and run-of-the-mill crimes, depriving authorities of manoeuvrability in preventing, detecting and deterring wildlife crimes. "Offences relating to endangered species should be placed at a higher level than those that relate to other animals," says Sanjay Upadhyay, a lawyer associated with Noida-based Enviro-Legal Defence Firm. He also feels there should be a difference between big traffickers and small poachers, which the act does not provide for.

"There should be a clear distinction between critically endangered and other threat categories," says Belinda Wright of the Wildlife Protection Society of India (wpsi). For this, Ashok Kumar of the Wildlife Trust of India (wti), advocates rescheduling animals under wpa. Other experts agree. The Union ministry for environment and forests (moef) has formed a committee to frame criteria for rescheduling and another to look at wpa's criminal provisions. The latter has formed a subgroup to make recommendations. However, experts feel that unless recommendations are made binding, they will be futile. Bail is another grey area (see box Bail confusion)

The role of the Bishnois in the Salman Khan case highlights another problem. wpa does not give third parties--including ngos--any role in wildlife crime cases. "They cannot intervene in criminal cases. Wildlife crime is heard as state versus accused," Upadhyay says.

Some experts say ngos can play a role in containing wildlife crime if wpa is amended. Despite the act, such interventions do happen.In the Mansur Ali Khan Pataudi poaching case in Jhajjar, a court allowed a lawyer to represent wti. It's not just third parties. There is also some confusion about the status of forest department officers as well. In a case in which Sansar Chand was accused, for instance, he argued that a deputy ranger was not authorised to complain. But lawyers unearthed a 1974 Uttar Pradesh notification, which said any forest official could lodge a complaint.

Beset by such problems, the Tiger Task Force points out, the conviction rate in wildlife cases is a minuscule 1-2 per cent. A 2003 wpa amendment tightened penalties--a minimum sentence of three years, extendable to seven years. The point is whether harsher penalties address the problem of conviction rate.

Adequate law
However, some wildlife experts say wpa has no loopholes. The act is at par with international standard, says Kumar. The problem, he feels, lies with the judicial system. Cases drag and witnesses often turn hostile. Wright agrees. Kumar says district judges, not chief judicial magistrates, should hear cases, because their caseload is lighter. "For this an amendment is needed to Section 51 of wpa, which raises the quantum of punishment from three to 7-10 years. Then trials will then come under the jurisdiction of the sessions court," says Upadhyay.

Weak infrastructure
Some experts also say enforcement personnel are inadequately trained. "The officials are often untrained and have no knowledge of various provisions of wpa," says Wright. Others emphasise the need to train lawyers and judicial officers. Though some ngos offer programmes, there is no extensive in-job training for judges and forest officials.

The latter problem can be partly addressed if special wildlife courts are constituted. Haryana and Delhi, for instance, have wildlife courts, but their progress in Delhi is slow since they are burdened with other civil cases.

Enforcement is an area that needs strengthening, as cbi points out. Given that most poaching and trading activity are carried out by powerful, organised syndicates, prevention strategies must also be better coordinated. The international ramifications of wildlife crime make this even more urgent. "Trying to break international poaching syndicate is the real challenge for the investigating agencies. For this we have to track nationwide networks after seizure of banned wildlife commodities," says Samir Sinha of traffic, an international body monitoring wildlife trade. "There is no robust system of checking, even at ports, for wildlife trade. There is also no law on trade of exotic species," says Upadhyay. Rajesh Gopal, member-secretary, National Tiger Conservation Authority (ntca), adds policing alone won't work. Livelihood options have to be provided to people living in and around protected areas so they don't have incentives to work for trafficking and poaching rings.

Central rule
But some centralised coordination is needed to fight organised wildlife crimes, say experts. Some moves are afoot. moef has formed an interstate coordination committee to look into poaching cases but states are reluctant to share information. Similarly, ntca's suggestion of transferring wildlife crime cases to cbi has been ignored by all states except Kerala. But the Tiger Task Force's idea of setting up a central wildlife crime bureau is progressing.It has been legislated upon and the first meeting of the advisory board was held in early September. Experts say it can make a difference if all seizures are made by the bureau.

But the ultimate fruition of such measures must be swift if procedures are to be sorted. For example, forest officials are often witnesses. If they are transferred from a district where crimes they witnessed happened, they have to make court appearances on their own time and travel out of pocket. This and other niggling problems demotivate. "Due to this forest officers often don't register cases," says Kumar.

Another area where infrastructure is weak is forensics. Only the Wildlife Institute of India (wii) has a lab to analyse material to support prosecutors, but it is not legally recognised.

There are problems but as the Salman Khan case shows they are not insurmountable. If guilty he must be punished. More important, however, is that this must be a wake-up call. We can't depend on the Bishnois to protect wildlife everywhere and at all times. Systems must work independently.