Temples, Elephants and Traditions

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Temples, Elephants and Traditions - IX

by B R Haran

on 20 Oct 2016

Petition before the Supreme Court

Animal welfare organizations have been fighting their level best to free the captive elephants from captivity. These organizations have been waging legal battles in courts of law in various States for the welfare of captive elephants. Hearings in a few cases are going on in the High Courts of Chennai and Kerala. Organizations like People for Ethical Treatment of Animals (PETA) and Wildlife Rescue & Rehabilitation Centre (WRRC) are playing a significant role and the Animal Welfare Board of India (AWBI) is also jointly working with them for the same cause.

WRRC filed a Writ Petition (Writ Petition(s) (Civil) No(s). 743/2014) before the Supreme Court in 2014, 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.

Excerpts from the Petition

In its Writ Petition, WRRC has placed the following significant facts:

- This petition brings to the fore the ground-level situation in different States where captive elephants are being 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 Indian law as it is placed in Schedule I Part I of the Wild Life (Protection) Act 1972. Elephant is an important part of Indian culture and heritage and is revered by a significant part of the 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 the 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 elephants are subjected to.

- Due to the torture and ill-treatment meted out by 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 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. 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 promote 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 society in general as accidents involving captive elephants often lead to loss of lives and damage to 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.

- 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 Task Force, constituted by Ministry of Environment and Forests, 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.

- 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.

WRRC in its petition has prayed to the Supreme Court to direct the concerned Government agencies to take urgent measures to ensure the protection and welfare of the elephants.

At the SC so far

WRRC’s writ petition came up for hearing in the Supreme Court on 18 August 2015. Other animal welfare organizations also submitted their impleading petitions in the case. The Kerala government submitted a petition. Accepting Kerala’s petition, the SC Bench comprising Justice Deepak Misra and Justice Baumathi ordered as follows and dismissed it.

As per Indian Wildlife Act 1972, as submitted by the learned counsel of Kerala government under Section 21 or 22 of the Prevention of Cruelty to Animals Act, 1960, as pointed out by the learned Solicitor General of India under Section 42 of the 1972 Act, and also based on the Kerala Captive Elephants (Management and Maintenance) Rules, 2012, the SC gave the following orders:

As far as the present issue is concerned, we are inclined to direct that the Chief Wild Life Warden shall see to it that all captive elephants in the State of Kerala are counted and in the absence of obtainment of requisite certificate under Section 42 of the 1972 Act and the declaration made under Section 40, appropriate action shall be initiated against the owners.

Every owner shall maintain an Elephant Data Book as specified by the Chief Wildlife Warden for each captive elephant. Transport norms for elephants must also be followed as specified in Rule 9. The said Rules shall be religiously followed by the owners failing which the authorities shall take appropriate action against them.

A District Committee constituted as per the 2012 rules to deal with the cases of cruelty meted out to captive elephants must have a member of AWBI (from January 2015) in addition to the members as per the 2012 rules.

The District Committee shall take necessary measures, to ensure that the Festival Committee constituted for the smooth conduct of festivals or the persons organizing such functions in which elephants are exposed, shall adhere to the following:-

- There shall be sufficient space between elephants used in processions and parades.

- No elephants in musth shall be used in connection with festivals.

- Elephant which is sick, injured, weak or pregnant shall not be used.

- Chains and hobbles with spikes or barbs shall not be used for tethering elephants.

- Elephants shall not be made to walk on tarred roads during hot sun for a long duration without rest.

- Making an elephant stand in scorching sun for long duration or bursting crackers near the elephants for ceremonial purpose shall not be permitted.

- It shall be ensured that sufficient food and water for the elephants are provided.

- The Committee shall ensure that the flambeaus (Theevetry) are held away from elephants. There shall be facility to keep elephants under shade during hot sun.

- It shall be ensured that adequate protection to the elephants taking part in celebrations through volunteers provided for the purpose.

- Services of Veterinary Doctor from the elephant squads shall be ensured in cases where five or more elephants are engaged in the festivals.

- The nearest Forest Range Officer/Police Officers shall be informed about the proposed festival / celebrations at least 72 hours in advance.

- During the procession the elephants shall have chains (Idachangala and Malachangala) tied to their leg.

- It shall be ensured that the mahouts are not intoxicated while handling elephants.

- The weaned calf below 1.5 m. height shall not be engaged for festival purposes.

- Sufficient rest has to be given to elephants which are engaged for “Para procession”. Para procession shall be restricted to 6 a.m. to 11 a.m. and 4 p.m. to 8 p.m. only.

- During night time, generators shall be provided to avoid any contingency due to failure of general power supply.

- It shall be ensured that elephants are brought under public liability insurance scheme for an amount of Rs. 3.00 lakhs per elephant.

On a perusal of the aforesaid Rules, it is clear as crystal that it obliges the District Committee to take necessary measures to ensure that the festival committee constituted for smooth conduct of the festivals or the persons organizing such functions in which elephants are exposed are required to adhere to many a measure. The District Committee is bound by the Rules and must see to it that the festival committees follow the same.

Temples or the Devaswoms shall get themselves registered with the district committee within a period of six weeks from today. The temple and Devaswom shall, apart from other formalities, also mention how many elephants will be used in any festival. It will be the obligation of the State to see that the registration is carried out. It shall be the duty of the State, the District Committee, Management of the Devaswom, Management of the Temple and the owners of the elephants to see that no elephant is subject to any kind of cruelty and, if it is found, apart from lodging of criminal prosecution, they shall face severe consequences which may include confiscation of the elephants to the State.

With the above orders the SC disposed off the Intervening Applications and listed the writ petition after eight weeks.

(http://supremecourtofindia.nic.in/FileServer/2015-08-18_1439896382.pdf )

SC stays Kerala government’s amnesty scheme

Subsequent to the SC’s order, the Kerala government started registration of captive elephants in the state. In the process, it found that many persons owned elephants illegally. The elephant owners association pressurized the government to legalise such ownerships and give ownership certificates and licenses. Yielding to the pressure, the Kerala government issued a notification dated February 26, 2016, which offered amnesty period for the owners of 289 captive elephants without valid ownership certificates.

The People for Ethical Treatment of Animals (India) sent a legal notice to the Kerala government seeking withdrawal of the above order, warning that the scheme would be a mockery of the Wildlife (Protection) Act, 1972, which prohibits illegal capture, trade, and custody of wild animals such as elephants, as well as the purpose of the interim order of the Supreme Court of India dated August 18, 2015.

As the Kerala government did not reply to the notice, PETA and WRRC approached the SC. PFA (People For Animals) also submitted an intervening petition through its representative Ghauri Mulekhi. Accepting the petitions, the SC issued notice to the Kerala government to reply by 27 April 2016. Then, after hearing arguments, the SC on 4 May stayed the Kerala government’s order and cancelled the licenses issued to the owners based on that order and ordered the elephant owners association not to shift the elephants to other states.

(http://www.thehindu.com/news/national/kerala/sc-stays-amnesty-scheme-to-legalise-289-captive-elephants/article8558836.ece)

Meanwhile, WRRC added a video clipping comprising a few scenes from Sangita Iyer’s documentary ‘Gods in Shackles’ by means of a CD material to its petition and submitted it to Supreme Court. The case, which came up for hearing on 21 September, has been adjourned.

(To be continued)