The present Writ Petition is being filed before the Hon’ble Supreme Court seeking appropriate orders to effectively implement the provisions of the Wild Life (Protection) Act 1972, the Prevention of Cruelty to Animals Act 1960, and various government directives to protect elephants held in captivity in different parts of the country. This petition brings to the fore the ground-level situation in the different States of our country where captive elephants are being brutally victimized in blatant violation of the existing provisions for their health, care and proper upkeep. The current state of the health, welfare, safety and upkeep of a majority of captive elephants in the custody of private ownership is abysmally poor. As a keystone species of the tropical forests, the elephant has been accorded the highest level of protection in the Indian law as it is placed in the Schedule I Part I of the Wild Life (Protection) Act 1972. Elephant is an important part of the Indian culture and heritage and are revered by a significant part of the Indian population. The Ministry of Environment and Forests, Government of India recognizing the same, vide Notification dated 21 October 2010, declared the elephant as National Heritage Animal of India. Unfortunately, such a recognition has not contributed in any manner whatsoever, to the welfare of elephants.
Though there are several important issues relating to the protection of the Indian elephant in the wild, the instant petition raises concerns relating specifically to elephants held in captivity, in the custody of private individuals, temples, trusts, societies, religious and other institutions and seeks appropriate orders and directions with regard to the same. The four main concerns which require urgent attention of this Hon’ble Court are – firstly, the cruel treatment suffered by elephants in captivity that is in violation of constitutional and statutory provisions; secondly, the illegal sale and transfer of elephants under the guise of gift or donation; thirdly, the illegal use of elephants in commercial and/or religious activities; and fourth, the poor conditions of housing and upkeep that the elephants are subjected to.
Due to the torture, and ill-treatment meted out by the owners and mahouts, several instances of death and severe injuries to captive elephants are reported across the country every year. Moreover, elephants held in captivity are also known to turn violent under mental and physical stress leading to panic and stampede in public areas, often causing loss of life of mahouts and by-standers and damage to property.
Every year several incidents come to light, in which captive elephants have turned violent and injured or killed human beings and damaged property. Various studies show that the violent behavior of elephants is attributable to poor living conditions, and subjecting them to various forms of torture including beating with a belt trap, making them walk over hot tarred roads and keeping them chained, often for the entire day. Under the provisions of the Prevention of Cruelty to Animals Act 1960, the kind of abuse suffered by captive elephants amounts to the offence of cruelty.
According to the Ministry of Environment and Forests, Government of India, in 2000, there were estimated to be 3400-3600 elephants in captivity in the country. Captive elephants are found with private individuals, in temples and other religious institutions, zoos, circuses, forest camps, tourist spots etc.
Despite numerous provisions in Indian law which promotes the well-being of captive elephants, the situation on the ground with regard to the treatment being meted out to the captive elephants is dismal. In addition, Hon’ble High Courts of various states have also passed orders and given directions on issues relating to the management and safekeeping of these elephants. Therefore, there exists a large body of laws, rules and orders protecting elephants in captivity. Yet there is ample proof that these laws are blatantly disregarded causing a great deal of hardship to the elephants as well as the society in general as accidents involving captive elephants often lead to loss and damage of lives, livelihoods and property.
As the Indian Elephant (Elephas maximus) is a Schedule I species under the Wild Life (Protection) Act 1972, transfer, acquisition, transport etc. of captive elephants is governed by the Wild Life (Protection) Act 1972. Captive elephants are also protected by the provisions of The Prevention of Cruelty to Animals Act 1960. The Ministry of Environment and Forests, Government of India, has also issued Guidelines for Care and Management of Captive Elephants in 2008. However, the implementation of the law and orders relating to captive elephants has been extremely poor.
Several states such as Kerala, Karnataka, Tamil Nadu, Assam and Maharashtra have issued Rules and Government Orders to ban or regulate the transfer and movement of captive elephants. The Petitioners even before disagreeing with the adequacy or the enforceability of the State Rules would like to draw the attention of this Hon’ble Court towards the fact the amendments to the Kerala Rules in 2012 has diluted the provisions with regard to the protection provided to captive elephants.
Although the Wild Life (Protection) Act 1972 prohibits the sale or offer for sale or by any other mode of consideration of commercial nature, transfer of elephants in exchange of consideration of commercial nature, such as rent, is rampant in the country. Elephants are often ‘donated’, ‘gifted’, ‘exchanged’, ‘loaned’, ‘rented’ or ‘leased’ by owners. These are merely terms used to cover-up illegal commercial transactions, which in turn result in elephants being held in captivity with inadequate facilities and being exposed to ill-treatment.
Moreover, despite the coming in force of the Declaration of Wildlife Stock Rules 2003 and proviso to Section 42 of the Wild Life (Protection) Act 1972, captive elephants continue to be in the custody of private individuals and institutions even though most individuals and institutions do not possess adequate space, infrastructure and facilities to house and maintain elephant/s. Furthermore, despite a mandatory requirement under the Declaration of Wildlife Stock Rules 2003, many individuals and institutions have not declared the captive elephants in their custody to the concerned Chief Wildlife Warden of the State or obtained Ownership Certificates under Section 42 of the Wild Life (Protection) Act 1972.
The Report of the Elephant Task Force, Ministry of Environment and Forests, Government of India titled ‘Gajah’, released in August 2010, identified the need to take measures to promote the welfare of captive elephants and their care-givers (such as mahouts) in the country. The Task Force made several recommendations in this regard including the need to amend the provisions of the Wild Life (Protection) Act 1972 to ensure better protection of captive elephants. It has been recommended that there should be a prohibition on the use of elephants in ‘exhibitions, circuses, weddings, unregulated tourism, public functions, begging or for other entertainment’. An emphasis has also been laid on improving the upkeep, maintenance and housing of captive elephants.
The unnatural and stressful environment, in which the elephants are forced to live and work, exposes the public, particularly the mahouts, to imminent danger of loss of life and limb. There exists a constitutional imperative in accordance with Article 14, Article 21, Article 48A and 51A(g) of the Constitution of India to protect these elephants held in captivity, as there is towards other wild animals, as well as to prevent accidents that could endanger the lives of people. Therefore, it is prayed that this Hon’ble Court direct the concerned Government agencies to take urgent measures to ensure the protection and welfare of the elephants.