Kerala High Court: In a public interest litigation raising challenge to the validity of a notification issued under Section 40(4), Wild Life (Protection) Act, 1972 (1972 Act) and the consequential Kerala Wild Life (Protection) Amendment Rules, 2026 (Amendment Rules), permitting declaration of ivory artifacts and animal trophies, the Division Bench of Soumen Sen*, CJ., and Syam Kumar V.M., J., declined to stay the operation of the impugned ivory declaration notification and the Amendment Rules, holding that the State appeared to have acted bona fide pursuant to an earlier judicial direction, while clarifying that any declaration made or immunity extended under the said notification would abide by the final outcome of the writ petition. The Court also directed the State to file its affidavit.
Background
In prior proceedings, the State Government had issued notifications in terms of Section 40(4) of the 1972 Act permitting declarations by a celebrated film actor of two pairs of ivory tusks and 13 ivory artifacts before the Chief Wild Life Warden, and then the State Government had issued ownership certificates to the said person in respect of the said items in terms of Section 42 of the 1972 Act. In those proceedings, a Coordinate Bench had examined Sections 39, 40, 40-A, 41 and 42 of the 1972 Act read with Rules 35, 36 and 37, Kerala Wild Life (Protection) Rules, 1978 (Kerala Rules, 1978), and had set aside earlier Government Orders on the ground that the statutory requirement of their publication in the gazette was not complied with. However, the State was given the liberty to issue a fresh notification in accordance with Section 40(4) of the 1972 Act for conferring the immunity granted under the said provision to persons or class of persons envisaged under the statutory provision. Pursuant to the said liberty, a fresh notification along with an explanatory note, was issued.
The present writ petition was filed praying that the operation of the Kerala Wild Life (Protection) Amendment Rules, 2026 be stayed till the disposal of writ petition, in the interest of justice. The petitioner contended that the notification was contrary to the law declared by the Supreme Court in Vishalakshi Amma v. State of Kerala, (2023) 18 SCC 797, wherein it was held that immunity for declaration of ivory articles could not be extended beyond 180 days as the Central Government had already notified the time-limit within which such declaration was to be made.
Analysis and Decision
The Court noted that, prima facie, the State Government had acted based on the liberty granted by the Coordinate Bench, since the earlier Government Orders had failed due to lack of proper gazette notification. The Court opined that whether the doctrine of occupied field was applicable in view of Sections 40 and 40-A of the 1972 Act conferring similar powers to the State and Central Government, would require consideration.
The Court observed that the State Government had acted bona fide based on the earlier judicial pronouncement and decided not to grant a stay of the operation of the said notification. But the Court further clarified that any declaration made or immunity extended pursuant to the notification dated 4 March 2026 would abide by the result of the present writ petition. The Court also directed the State to file an affidavit on or before 25 May 2026 and listed the matter in the monthly list of June 2026.
[James Mathew v. State of Kerala, WP(PIL) No. 78 of 2026(S), decided on 8-4-2026]
*Judgment authored by: Chief Justice Soumen Sen
Advocates who appeared in this case:
For the Petitioner: Dr. Abraham P. Meachinkara, P. Muraleedharan, Margaret Maureen Drose, Jayakrishnan P.R., Thomas George, Aisha Foucik, Advocates.
For the Respondents: Grashious Kuriakose, ADGP, Suraj Kumar D., CGC, Addl. State Public Prosecutor.
