Disclaimer: The views presented in the article belong to the author alone, and do not represent the views of any organization that the author is connected with.
Introduction
The outbreak and spread of the coronavirus disease (COVID- 19) has disrupted human activities for a full year, and efforts to recover continually exist. Two key reasons for such outbreak and spread of the pandemic are
(a) illegal wildlife trading, and;
(b) despicable conditions in which wildlife are kept for sale or slaughter.
Both these factors contribute and speed up the process of zoonotic diseases spreading from wildlife to human beings and the coronavirus disease seems to be the perfect example.
Illegal wildlife trading continues to remain a challenge because of ineffective implementation of wildlife laws. Furthermore, unregulated illegal markets, commonly termed as “wet markets”, continue to exist in the Indian informal sector. It is therefore, important to devise a manner in which wet markets regulation, through which illegal wildlife trade can directly be tackled, be introduced in India . The present article has been directed towards discussing the scope and deficiencies in wildlife and other related laws of India, with an aim to enable the introduction of wet markets regulation within its scope. This shall not only prevent future zoonotic diseases like the Covid-19 but also ensure efficacious curbing of illegal wildlife trade as per India’s obligation under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
What is a Wet Market?
Wet Markets are markets that sell fresh meat, live wildlife or parts and products derived from wildlife for the purposes of consumption, exotic trade, slaughtering or other uses. Such markets are mostly involved in trading of illegally obtained and illegally trafficked wildlife. Having little legal recognition and standards, there is a scant regard to cleanliness and these markets are characterised by acute unhygienic conditions.
The Coronavirus disease was, as such, now an entirely new phenomenon. Wet Markets in the past have also contributed to the origin and spread of other zoonotic diseases, such as swine flu (H1N1), Middle East Respiratory Syndrome Coronavirus (MERS- CoV), Severe Acute Respiratory Syndrome (SARS), Nipah Virus (NiV) and Ebola Virus Disease (EVD) to name a few.
The inextricable connection between zoonotic diseases and the unregulated existence of wet markets poses a grave danger for human health, The extent of this danger can be understood from the fact that wet markets have been called “timebombs” for epidemics. The issue, thus, requires immediate tackling by Indian law.
Present Scenario
Wildlife protection in India is governed through the Wild Life (Protection) Act, 1972. Since it is the principal wildlife legislation, it possesses the potential to include wet markets’ regulation within its ambit. Currently, provisions which are indirectly related to wet markets regulation under the Act can be found in Sections 5C, 11, 29, 33A, 38O, 38Z, 39, 44, 49B, 50 and 58F respectively. The indirect relation is established because of the applicability of these provisions on firstly, illegal trade, movement and exploitation of wildlife and its products, and secondly, disease surveillance and management of wildlife. Section 5C of the Act prescribes functions of the National Board appointed under the Act, which includes policy framing and providing advice to the Central and State Governments to efficaciously regulate illegal trade and poaching of wildlife and its products. Section 11 permits hunting of wildlife which are diseased beyond recovery and pose a threat to human life. Section 29 prohibits the exploitation and removal of wildlife from a protected sanctuary except in accordance with a permit issued by the Chief Wildlife Warden. Section 33A prohibits the taking of livestock without immunisation against communicable diseases. Section 38O empowers the Tiger Conservation Authority established under the Act to undertake disease surveillance functions to protect tigers. Section 38Z empowers the Wildlife Crime Control Bureau established under the Act to regulate wildlife crimes. Section 39 prohibits the derivation of meat and products from wildlife contrary to other provisions of the Act. Section 44 prohibits a person from indulging in any form of business as a dealer or manufacturer of captive wildlife, meat or wildlife products without license and Section 49B prohibits a person from indulging in any form of business as a dealer or manufacturer of protected wildlife or its products covered in the Schedule appended to the Act. Sections 44 and 49B are the most prominent provisions under the Act in relation to regulation of wet market dealers. Section 50 empowers the Director, Chief Wildlife Warden or any other authorised officer to inspect, seize, stop and exercise other similar powers in relations to wildlife crimes. Section 58F empowers the authorities to seize illegally acquired property in connection with wildlife crimes. Despite the existence and operation of Sections 44, 49B and other indirectly related provisions capable of applying to wet markets regulation, the Act has suffered various implementation gaps due to high involvement of authorities in illegal wildlife trade chains. Not only this, but the Schedule appended to the Act does not include many endangered and exotic species even after them being listed under the CITES appendices.
Other relevant laws in India that can regulate wet markets in India are Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 and the Prevention of Cruelty to Animals (Slaughter House) Rules, 2001. However, inadequacy in the penal mechanism prescribed under the Prevention of Cruelty to Animals Act, 1960 has deferred the effective implementation of the Prevention of Cruelty to Animals (Slaughter House) Rules, 2001. Similarly, in the year 2017, the Comptroller and Auditor General specified in its report that there were many systemic deficiencies, inefficiencies and delays in the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 and licenses were issued in most cases despite the fact that the manner of application and the documents submitted were incomplete and insufficient for the grant of registration. There are various other State laws on poultry, livestock and slaughter, but due to lack of amendment and coverage of all aspects, wide gaps in implementation have also been witnessed in such laws.
In light of the fact that most of the wet markets fall in the unregulated informal sector of the economy, gaps in implementation with meagre possibility of regulating such markets, incessantly pose a threat to wildlife and also, increase the possibilities of transmission of zoonotic diseases. Looking at the amount of loss to life, property and the economy which has been caused in India because of zoonotic diseases such as the Covid-19 disease, it is important that any future possibilities of origin and spread of zoonotic diseases have to be curbed through effective regulation of wet markets. At this stage it is important to point out that introducing wet markets regulation can effectively reduce illegal wildlife trade as well since the ease of trading in wildlife, its parts and products can severely be restricted through such wet markets regulation.
Introducing Effective Wet Markets Regulation in India
Introduction of Wet Markets regulation in India can be achieved either by creating fresh legislation on the subject with sufficient room for delegated legislation or by bringing significant amendments to the Wild Life (Protection) Act, 1972 and the Food Safety and Standards Act, 2006 to introduce such form of regulation directly, which will also be pari materia, and add on pragmatically to the existing laws that operate insufficiently on wet markets. The latter approach seems to be more conducive as per Indian conditions and needs. In order to ensure better regulation, aspects such as registration, records maintenance and licensing of wildlife based food markets should be formulated separately as delegated legislation under the four corners of the Food Safety and Standards Act, 2006 and the Wild Life (Protection) Act, 1972. While making such additions, various aspects will have to be taken into account such as formalisation of informal wet markets, employment preservation with simultaneous sanctions for offenders, trade related aspects, welfare of wildlife and eliminating the demand created by consumers for illegally obtained and trafficked wildlife.
Data estimates suggest that such forms of markets have contributed to the Gross Domestic Product (GDP) at 4.11% but despite that, have remained in the unorganized, unregulated and informal sector of the economy. It is indeed undeniable that even a decent contribution to the GDP can be a significant indicator of the amount of employment a sector is capable of generating for the indigenous population. Therefore, it is pertinent that regulation does not include a complete ban on wet markets but instead, significantly works towards formalising them. In order to work towards formalisation, it is important that first, a vast amount of data collection through surveys are conducted all across the country by the Wildlife Crime Control Bureau in partnership with food safety authorities and relevant civil society organisations that work in this field since it will help in identifying the major forms of wet markets in the nation and expose the despicable treatment meted out to wildlife in them. This is vital for creating ex- ante legislation that will cover all the ground realities and aspects related to wet markets in India. Furthermore, in consideration of the fact that India has to also dispense its CITES obligation through its principal wildlife law, the penal structure will have to stringently disable offenders indulged in illegal wildlife trade. In consideration of the fact that India’s rich biodiversity is directly affected from illegal wildlife trading, the maximum punishment stipulated under the Wild Life (Protection) Act is clearly insufficient.
Wet markets regulation brought into the mechanism of Indian wildlife laws will have to embrace welfare of wildlife in a more efficacious manner than it is presently done under the Prevention of Cruelty to Animals Act, 1960. The judiciary has also taken a strong position in respect of welfare to wildlife and this has been reflected from various judgments of the Supreme Court of India and High Courts of various States that have held that wildlife contains intrinsic worth, right to live with dignity without unnecessary cruelty, suffering and pain and these include Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547; Common Cause, A Registered Society v. Union of India, (2001) W.P. 330 (SC); S. Kannan v. Commissioner of Police, (2014) W.P. 8040 (Mad); Muhammadbhai Jalalbhai Serasiya v. State of Gujarat, (2015) JX (Guj) 378; and People for Animals v. MD Mohazzim & Anr., (2015) CRL.M.C. 2051 (Del). Furthermore, in order to ensure high standards of hygiene and reduced chances of wildlife transmitting zoonotic diseases in wet markets, delegated legislation formulated will have to provide specific guidelines and rules on how different species of wildlife will have to be kept for sale in Indian wet markets. Indian wet markets regulation will have to also accommodate quality control inspection checks by relevant empowered authorities on quarterly basis at a bare minimum. Looking at the humongous requirement of enforcement, national and state level wet markets regulation authorities will have to be separately established that will work closely with urban local bodies and other local- self government institutions across the country. This is because unlike the present way of governance where local- self government institutions focus majorly on infrastructure development, upgradation and providing access to basic amenities, their role in wet markets regulation is indispensable and cannot be undermined, orelse it may lead to unfruitful results in attempts to regulate such markets.
Effective regulation and determining the legality of transactions of wildlife trade carried out through wet markets is interdependent upon many factors. This is largely because trade in wildlife exists for several legal purposes as well in addition to the illegal purposes specified above and these legal purposes include the trade in wildlife parts for consumption as food, use in medicine and use in other sectors such as breeding, dairy farming, agriculture and aquaculture to name a few. Thus, provisions for wet markets regulation will have to legitimize certain uses that do not cause an adverse impact upon wildlife health and delegitimize the remaining uses of wildlife. It is also important that “less charismatic wildlife species” that do not denote any symbolic, religious or mythological denomination are not ignored and implementation of such regulation extends over to them equally. Another ignored sphere of regulation in terms of wildlife trade has been the consumer or buyer in the transaction. High consumer demands in wildlife and their products are significant driving factors of illegal wildlife trade through wet markets. Thus, it is of utmost importance that the sphere of wet markets regulation also penalises the ultimate consumer in an adequate fashion.
Involvement of officials from zoos and national parks in illegal wildlife trading has also been a concern and thus, necessary amendments in the Wild Life (Protection) Act, 1972 will have to be brought forth in order to include coherent and resilient principles of accountability of officials and a strong separate penal structure for those who have a statutory obligation to protect wildlife. In order to ensure high effectiveness of enforcement, wet market authorities appointed under the amended wildlife law will have to be in the position to trace the entire chain of transactions and thus, the provisions of wet markets regulation will have to provide for compulsory maintenance of records by the traders. In case the suspected wildlife or product has been obtained from overseas, inter- institutional cooperation between customs authorities and the wet market regulatory authorities will have to be formed and maintained, so that the chain of transactions can be adequately analysed and scrutinised. This will enable better identification of illegal wildlife trade chains.
Conclusion
It can be concluded from the aforementioned analysis that effective regulation of wet markets in India is the need of the hour. In order to achieve effective wet market regulations, as pointed out above, firstly, surveys will have to be carried out by the Wildlife Crime Control Bureau in partnership with food safety authorities and relevant civil society organisations to understand the position of wet markets in India. Secondly, amendments will have to be brought to Wild Life (Protection) Act, 1972 and the Food Safety and Standards Act, 2006. The need for amendments in two different laws arises from the fact that the amendments brought to the Wild Life (Protection) Act, 1972 will have to specifically deal with curbing illegal trading of wildlife through wet markets, introducing penalties for end consumers who purchase illegally traded wildlife intentionally as exotic pets or other purposes, introducing accountability and penalties for officials appointed under the Act in case they aid or abet illegal wildlife trade and prohibition in wildlife trade for species with symbolic, religious or mythological denomination; whereas, the amendments brought to the Food Safety and Standards Act, 2006 will have to specifically deal with aspects related to storage of wildlife in wet markets which are intended to be sold for human consumption, establishing a wet markets authority in the Centre and the States that will comprise of food safety authorities and members with expertise in wildlife trade and enforcement in local markets. Thirdly, delegated legislation will have to be notified under both laws where the delegated legislation emanating from the Wild Life (Protection) Act, 1972 will deal with regulations for welfare of wildlife in wet markets, transactions which are considered as legal in wet markets and inter- agency co- operation between wildlife authorities and customs authorities to trace the entire chain of illegal wildlife trade transaction; whereas, the delegated legislation emanating from the Food Safety and Standards Act, 2006 will have to specifically deal with licensing, registration, maintenance of records, inter- agency (comprising food safety authorities and local self- government authorities) inspections and enforcement action, and regulations on storage of different types of wildlife so as to ensure that diseases are not transmitted amongst wildlife or zoonotic diseases are not transmitted from wildlife to human beings. The proposed measures will not only help in preservation of wildlife, human life and the ecosystem as a whole by preventing zoonotic diseases, cruelty to wildlife and illegal wildlife trade, but also enable compliance with India’s CITES obligations and ensure orderly, sustainable and effective utilisation of wildlife, ultimately leading to balance in the rich biodiversity resources available in India.
(This article has been authored by Manohar Samal. He is an Analyst at Legal Atlas)
Cite as: Manohar Samal, ‘Introducing Wet Markets Regulation in India: An Effort to Prevent Future Zoonotic Diseases and Curb Illegal Wildlife Trade’ (The Contemporary Law Forum, 22 May, 2021) <https://tclf.in/2021/05/22/introducing-wet-markets-regulation-in-india-an-effort-to-prevent-zoonotic-diseases-and-curb-illegal-wildlife-trade> date of access.