First published in Sanctuary Asia, Volume 26 No.6, June 2016.
Young, sparky and focused, Nagpur-based Kartik Shukul, one of India's leading experts on the Wildlife (Protection) Act, 1972, currently serves as Special Counsel for the Forest Departments of Maharashtra and Madhya Pradesh for poaching cases pending before the respective Trial Courts, High Courts and the Supreme Court of India. Given the extremely poor conviction rates that typify the past, he has proven, in recent years, to be among those who have persistently, and successfully, gone after poachers, transporters and traders with links to deadly wildlife syndicates. In his crosshairs are all those dealing in contraband including tiger skins and bones. One path-breaking judgment he recently won involved the bail cancellation of international tiger skin trader ‘Chacha who he doggedly chased all the way from the Trial Court to the Supreme Court of India. He speaks here with Bittu Sahgal about his life, work and determination to fight for Indias wild heritage using its robust legislative system.
My relation with the wild is older than my relationship with the Wildlife (Protection) Act. Our family holidays would mostly be in the jungles around Nagpur, and I remember falling in love with the tranquility of the jungle at a very early age. This love turned into a raging passion when I was in law college, and by the time I graduated, jungles were an integral part of my life. The only other thing that occupied as much space and time in my life was my profession: law; and it was only natural for the two of them to merge at some point. Im glad that this occurred at an early age; and I can hopefully contribute for a long time to come.
It would be an understatement to say that I owe most of my success to these two wise men. Justice Bobde is not only one of the finest legal minds of our times, he is also a compassionate and thoughtful human being. An ardent wildlife enthusiast, as a Law Clerk, working for him, I imbibed a love and respect for wildlife. Sr. Counsel Subodh Dharmadhikari, or ‘Sahab as I call him, is a man of integrity and knowledge, who over the years shaped me into being the lawyer I am today. My debt to him can never be repaid. My father is the reason I chose to pursue a career in law. He understands human nature and finds elegant solutions to the most complicated problems. I am working on that art.
When I began representing the Forest Department, the approach of most courts was to equate wildlife crimes with trivial and petty crimes; particularly in our Trial Courts. This approach is in consonance with criminal jurisprudence where the gravity of the offence is inevitably assessed by the punishment prescribed. And the punishment under the Wildlife (Protection) Act is a mere three to seven years. Ensuring that this general ‘rule is not applied to the Wildlife (Protection) Act became my single-point agenda within the lower judiciary. Fortunately, radical attitudinal changes have been made, thanks mainly due to various judgments and precedents set by our honourable High Courts.
Chacha's case is really one for the books. It is by far one of the most complicated forensic cases that I have dealt with, involving numerous parallel issues ensnared in intricate webs made up of locals, poachers, middlemen, traders, transporters and, of course, the kingpin himself, Chacha. Denying bail to locals, poachers, middlemen, traders and transporters was pointless if their leader wasnt behind bars, I figured. Chacha, the head of an illegal, international syndicate, could tamper with evidence, and the trial itself. We had to get his bail cancelled, but there was no precedent in law pertaining to this in the context of the Wildlife (Protection) Act.
I therefore approached the Bombay High Court with an exhaustive petition covering not only the merits and facts of his particular case, but one that also addressed the larger issues regarding the Wildlife (Protection) Act. I wanted to demonstrate that the Wildlife (Protection) Act was a special law that had to rise above the broader propositions of criminal jurisprudence. I sought to make the gravity of the offence and its overall impact the prime consideration that guided courts dealing with offences under the act. Fortunately, the Bombay High Court allowed my petition and has set a precedent that has put an end to ‘automatic bail for wildlife crimes. Justice S. B. Shukre, in his judgment, laid down strict guidelines to be followed when dealing with offences under the Wildlife (Protection) Act. This has removed many hurdles for future cases and established beyond doubt that the quantum of punishment shall not be the dominant guiding principle for wildlife offences. Yet another recent judgment of the Bombay High Court passed by Justice Z. A. Haq laid down considerations for suspension of wildlife crime sentences. His lordship observed that sentences must not be suspended casually. He had earlier stayed a suspension order, refusing bail for a convict. On account of such orders, wildlife crimes are no longer looked upon as ‘minor infractions.
Prior to the ‘Chacha' judgment, there was no precedent in law pertaining to bail for offences under the Wildlife (Protection) Act. All prior judgments, including that of Sansar Chand, were in the context of convictions, not bail. Now, for the first time, accepting my arguments, a High Court laid down the parameters for grant and cancellation of bail for wildlife offences that are now looked on as serious crimes, with deep ramifications. Thereafter, I appeared before the Supreme Court in an appeal challenging the High Courts Order, which was upheld. I believe this should also translate into higher conviction rates.
Tell us about juveniles employed by wildlife syndicates to circumvent long prison sentences.
This issue must be viewed from two angles.
1. Poachers who are in fact juveniles.
2. Poachers who claim to be juvenile.
In my experience, the latter outnumber the former. Poaching gangs have been misusing the Juvenile Justice Act for ages. The modus is to engage young men who can pass off as juveniles so as to seek milder actions in law in case of arrest. They thus evade trial, and escape once remanded to poorly-secured juvenile homes. Medical tests certifying they are juveniles are not only rudimentary, but are ancient! I therefore chose to bring in forensics to disprove the test results. In this peculiar case, the certificate issuing authority had categorically stated during cross-examination by me that the birth certificates were invalid, yet the court ordered ossification tests. Expectedly, the reports suggested that the poachers were juveniles. I then called in all six doctors for cross-examination. Prior to that, I underwent a “crash-course" in medicine with help from Dr. Narendra Saxena and Dr. Samprati Badjate. The rigorous cross-examinations lasted over two months, and after lengthy final arguments, the courts ruled that the ossification reports were erroneous and that the poachers were in fact adults. Hopefully, similar prosecutions across India will challenge all attempts by poachers to misuse the Juvenile Justice Act in the future.
Because of its geographical location, proximity to tiger-forests, and impoverished communities, Nagpur is indeed a magnet for poaching syndicates. Fortunately in recent years, increased surveillance, coupled with an intense determination on the part of forest officials from Maharashtra and Madhya Pradesh, we have brought things under some control. In my view, the greatest legal issue is the quantum of punishment (three to seven years) under the Wildlife (Protection) Act. As one of the worlds largest and most vibrant democracies, we must compel our elected representatives to change the law and enhance punishments prescribed under the Wildlife (Protection) Act. Assam has done this. The maximum punishment in that state is now life imprisonment. Every state should emulate this example and must simultaneously set-up a dedicated legal department to tackle the thousands of pending cases.
Respect, train, support and equip our on-ground forest staff. These men and women are under-appreciated and over-stretched. They cannot hope to effectively patrol the massive areas under their charge. That too with inadequate communication systems, transport and arms. Inevitably, the poachers are better equipped. The list of what can be done is long, but effective intelligence gathering, coupled with scientific forensic operating practices and top-notch legal aid would show dramatic results. Our foot-soldiers must feel safe, and valued in the manner of our armed forces.
Yes. Forensics could radically change the dynamics of investigations, and win us higher prosecution successes by delivering cast-iron evidence for use in court. Take the incredible Gir lion poaching case where the inimitable Keshav Kumar IPS, established indisputable links between the poachers and the actual incident that took place in 2007. The same thing happened when the Maharashtra Forest Department, collaborated with the Centre for Cellular and Molecular Biology or CCMB, Hyderabad. Forensics established culpability of the men accused and even the number of tigers killed. In one instance, forensics proved that a metal trap was used for poaching even though there were no blood stains visible on the trap.
The ‘system has understood the critical importance of forensics. What we now need is training and dramatic improvement in the method of collection and detection. Without this, prosecution could fail. A crime scene must be treated as such… a crime scene. It must be cordoned off and not ‘contaminated by officials untrained in the task. The use of sniffer dogs is also vital in establishing a direct nexus between an offender in a nearby village and the crime. We have officials such as B.H. Virsen and Vishal Mali of the Maharashtra Forest Department and Ritesh Sarothia of the Madhya Pradesh Forest Department who know their business and will make a difference in the days ahead.
When it comes to wildlife prosecutions, nothing takes priority over the case. Nothing! Besides, often the Forest Departments are themselves my clients and pro bono assignments are not acceptable to the government. There is conflict in every living moment of everyones life. But I have not found it difficult to walk the path.
My wife, Ashwini Shukul, is also a lawyer, and she supports me completely. She has been extremely encouraging and patient with my work and me. Along with advocate Rohan Joshi, she often assists me in my other commercial, civil and constitutional litigations. My mother is also very supportive and takes care of everything else so that Ashwini and I can work without any worries. I would probably be in trouble without their help (smiles broadly).
I work with the Central Bureau of Investigation (CBI) and Wildlife Crime Control Bureau (WCCB) on tiger poaching cases both in Nagpur and Delhi. The CBI acts swiftly, yet exhaustively. I wish more state governments would involve them as their experience and expertise will undoubtedly help win more wildlife prosecutions. The database of the WCCB is a goldmine. Quick information pertaining to earlier crimes and past convictions and conduct can tip a ruling in favour of a guilty verdict. I regularly meet up with WWF, TRAFFIC and other NGOs, though largely by way of lectures and seminars, I also help train Forest Officers by delivering lectures in their training institutes and during such interactions, I often end up gaining insights that greatly help me strategise the cases I fight. This also helps in creating bonds with like-purposed individuals.
Its one mission. When I wear my photographers hat, my objective is to create images that inspire people towards conservation. Wildlife photography is a tool that has the power to evoke passion. And yes, I am also passionate about putting poachers, transporters, and traders behind bars.