SARDAR PATEL

SUBHARTI INSTITUTE
OF LAW
MEMORIAL ON THE CASE
Balram Kumawat Vs Union of India

SUBJECT: Environmental Law and Climate Change

Submitted to: Ms. Afreen Almas Submitted by: Sakshi Malik

(ASST. PROFESSOR) B.A.LL.B 3rd semester
Enrollment no: 18050000151

SWAMI VIVEKANAND SUBHARTI UNIVERSITY

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 IN THE HON’BLE SUPREME COURT OF INDIA

Balram Kumawat …………………………………….. Appellant

Vs
Union of India…………………………………………. Respondent

Memorandum on behalf of the Appellant

Balram Kumawat
(Council for The Appellant)
Sakshi Malik

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TABLE OF CONTENTS Pg.No

List of Abbreviations 4
Index of authorities 5
Statement of jurisdiction 6
Facts of the case 7-8
Issues presented 9
Arguments 10-11
Prayer

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 List of Abbreviations
A.I.R All India Reporter
B/W Between
Hon’ble Honourable
i.e, That
No. Number
Sec. Section
U/S Under Section
V/S Versus

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 Index of Authorities
Books:
The Amending Act, 1897
The Wild Life (Protection) Act, 1972
The Prevention of Corruption Act, 1988
the Customs Act, 1962
Statutes Referred
Section 630(1)(b) in The Companies Act, 1956 [Section 630(1)] [Section 630]
[Complete Act]
Section 12 in The Foreign Exchange Regulation Act, 1973 [Complete Act]
Section 135 in the Customs Act, 1962
Section 138 in The Negotiable Instruments Act, 1881
Section 489A in The Indian Penal Code [Complete Act]
Section 49C in The Wild Life (Protection) Act, 1972
The Amending Act, 1897
The Wild Life (Protection) Act, 1972
The Prevention of Corruption Act, 1988
the Customs Act, 1962
Links Referred:
https://indiankanoon.org
https://www.unodc.org
https://www.lawyerservices.in

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 Statement of Jurisdiction
The counsel of the appellant has approached this hon’ble Supreme court under
Article 321 of constitution of India.

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Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may
by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

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 FACTS OF THE CASE

1. That, the appellants had imported mammoth fossil said to be of an extinct

species in the year 1937. The stock of mammoth fossil held by the
appellants is said to be periodically checked by the statutory authorities.

2. That, Mammoth is said to be pre-historic animal which disappeared due

to climatic conditions prevailing in Alaska and Siberia. According to the
appellants the distinction between mammoth and elephant ivory is that
whereas mammoth belongs to an extinct species, the ivory of elephant is
of an extant living animal.

3. That, the appellants state that mammoth ivory is distinguishable by visual

and non-destructive means vis-a-vis elephant ivory and even in
convention on International Trade in Endangered Species (CITES) their
distinguishing features have been pointed out.

4. That, the learned counsel of the appellants would contend that trade in
mammoth fossil ivory is not banned either under the said Act or under the
CITES and, thus, the impugned judgment of the High Court cannot be
sustained.

5. That, as mammoth is an extinct species and as what is being used for

carving is its fossil which is called ivory, because it has white and hard
dentine substance which is also available in other animals, namely,
Whale, Walrus, Hippos and warthog; it was urged, they cannot be
included in the term "ivory" within the meaning of the provisions, of the
said Act.

6. That, the appellants M/s Unigems had imported mammoth fossil said to
be of an extinct species in the year 1987. The stock of mammoth fossil
held by the appellants is said to be periodically checked by the statutory
authorities. The appellant in the other case Balram Kumawat is a carver.

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7. That, Mammoth is said to be pre-historic animal which disappeared due
to climatic conditions prevailing in Alaska and Siberia. According to the
appellants the distinction between mammoth and elephant ivory is that
whereas mammoth belongs to an extinct species, the ivory of elephant is
of an extant living animal. The appellants state that mammoth ivory is
distinguishable by visual and non-destructive means vis-à-vis elephant
ivory and even in Convention on International Trade in Endangered
Species (CITES) their distinguishing features have been pointed out.

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 ISSUE RAISED

ISSUE 1. Whether 'mammoth ivory' imported in India answers the description

of the words 'ivory imported in India' contained in Wild Life (Protection) Act,
1972 (hereinafter referred to as 'the said Act') as amended by Act No. 44 of
1991?
ISSUE 2. Whether is this a direct restriction on fundamental right to trade under
Article 19 of constitution of India?

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 ARGUMENTS
ISSUE 1. Whether 'mammoth ivory' imported in India answers the
description of the words 'ivory imported in India' contained in Wild Life
(Protection) Act, 19722 (hereinafter referred to as 'the said Act') as
amended by Act No. 44 of 1991?
The counsel of the Appellant humbly submits before this hon’ble court that
trade in mammoth fossil ivory is not banned either under the said Act or under
the CITES and, thus, the impugned judgment of the High Court cannot be
sustained.
The counsel of the Appellant humbly submits before this hon’ble court that
would take us through the history of CITES as mentioned in the impugned
judgment of the High Court and would urge that the purport and object of the
Act cannot be sub-served by placing a ban on trade in mammoth ivory. Taking
us to the provisions of the said Act, the learned counsel would argue that as
mammoth ivory does not answer the description of 'wild animal', the provisions
contained in Chapter VA of the said Act would not be attracted. As Mammoth
is an extinct species and as what is being used for carving is its fossil which is
called ivory because it has white and hard dentine substance which is also
available in other animals, namely, Whale, Walrus, Hippos and Warthog; it was
urged, they cannot be included in the term 'ivory' within the meaning of the
provisions of the said Act.
It was contended that the High Court committed a manifest error in passing the
impugned judgment insofar as it failed to take into consideration that mammoth
ivory being deceptively similar to elephant ivory to the naked eye, the
impugned Act would be applicable in relation thereto also. The learned counsel
would contend that if this is taken to its logical conclusion, then even trade in
plastic articles which would be deceptively similar to elephant ivory may also
be held to have been banned. It was argued that the intention of the Legislature
cannot be to ban any article irrespective of the purport and object it seeks to
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49B. Prohibition of dealings in trophies, animal articles, etc., derived from scheduled animals.-- (1) Subject to
the other provisions of this Section, on and after the specified date, no person shall--
(a) commence or carry on the business as--
(i) a manufacturer of, or dealer in, scheduled animal articles; or
2[ia) a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or]
(ii) a taxidermist with respect to any scheduled animals or any parts of such animals; or
(iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or
(iv) a dealer in any captive animals being scheduled animals; or
(v) a dealer in meat derived from any scheduled animal; or
(b) cook or serve meat derived from any scheduled animal in any eating-house.

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achieve only on the ground that the same is deceptively similar to the banned
item. There exists scientific procedure, it was urged, whereby and whereunder
mammoth ivory can be distinguished from elephant ivory and with a view to
buttress the said argument, a large number of literatures had been placed before
us. The preamble of the Act as also the 'Headings', the learned counsel would
contend, should be taken into consideration for the purpose interpreting the
provisions of the said Act.
The counsel humbly contends that as per the section 49B of wildlife protection
act, 1972, the definition of “ivory” is not clear with endangered and extinct
animals.
The meaning of ‘ivory’ that the hard, white, elastic, and fine grains substances
(being dentine of exceptional hardness) composing the main part of tusks of the
mammoth elephants (fossils)……
A substance resembling ivory or made in imitation of it.
A hardsmooth creamy white variety of dentine that makes up a major part of the
tusks of elephants, walruses, and similar animals. A tusk made of ivory. A
yellowish-white colour; cream. ‘Ivory’ is not confined to elephants ivory.

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ISSUE 2. Whether is this a direct restriction on fundamental right to trade
under Article 193 of constitution of India
Trade in ivory imported in India has not been prohibited with a view to give
effect to the provisions contained in Article 19 of the Constitution of India.
There is complete violation of Article 19 (1) since it was a unreasonable
restrictions. The Act was also a unreasonable and it is direct infringement of
fundamental right to trade. Trade mammoth has not to be banned because it is a
extinct species.
The counsel of the appellant humbly submits that he is not being proceeded
against in a criminal case. Their civil rights are only required to be dealt with.
The appellant in this complain only civil injuries.

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Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State
from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity
of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity
of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said
sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any
of the rights conferred by the said sub clauses either in the interests of the general public or for the protection
of the interests of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said
sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from
making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on any
occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business,
industry or service, whether to the exclusion, complete or partial, of citizens or otherwise

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 PRAYER FOR RELIEF
Therefore, it may be please to the hon’ble court in the lights of the facts
presented, issues raised, arguments, and authorities humbly pray before this
hon’ble court, to kindly adjure and declare:
(1) That the 'mammoth ivory' imported in India does not answers the
description of the words 'ivory imported in India' contained in Wild Life
(Protection) Act, 1972 (hereinafter referred to as 'the said Act') as
amended by Act No. 44 of 1991.
(2) That this is a direct restriction on fundamental right to trade under Article
19 of constitution of India.
Or/and pass any other order which the court seems to deem fit in light of
justice, equity and good conscience.
All this is humbly submitted by
(Counsel for Appellant)
Sakshi Malik

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