In February 2021, a video went viral of 15-year-old elephant Jeymalatha trumpeting in pain as it was beaten by a mahout and another worker at the Andal temple in Srivilliputhur in Tamil Nadu.

Her abuse sparked a row between Assam and Tamil Nadu. The elephant, called Joyamala in Assam, had been sent by its owner to Tamil Nadu in 2008 on a six-month lease.

More than 14 years later, Joyamala is still a begging and blessing temple elephant in Tamil Nadu. Joyamala is among the more than 320 such elephants on record – the actual number is much higher – who have been illegally traded through leases from Assam to South Indian temples, with no plans for their return.

A deep anomaly

Elephants are the only wild animals that can be legally owned by a private individual – a deep anomaly in law that needs to be corrected – even as their commercial trade has been prohibited since the Wildlife Protection Act came into force in 1972.

Activists have been campaigning for the legal ownership of elephants to be banned as it encourages their illegal capture and trade, as in the case of Joyamala and many others.

On December 17, the last day of the winter session, the Wildlife Protection Amendment Bill, 2021, was tabled in Parliament. Clause 27 of the Bill proposes to permit the commercial trade of elephants. This would legalise it for the first time in 50 years. If the current amendment, now pending before the parliamentary standing committee headed by Rajya Sabha Member of Parliament Jairam Ramesh, were to pass into law, it would now be legal to own and trade elephants.

In keeping with the current parliamentary trend, no explanation, note, or detailed preamble has been provided on the reasons behind this regressive move. This is shocking. Why is it that in 2022, plans are afoot to undo five decades of work protecting elephants by legitimising illegal networks of elephant trade? Is this proposed amendment just another example of the lack of consideration for wildlife in our law and policy?

The Wildlife Protection Act, however imperfect, is essentially a progressive law. It banned the hunting of wild animals and created protected wildlife areas, allowing flora and fauna to flourish. By banning the commercial trade of all wild animals, the act has played a vital role in redirecting domestic policy away from their commodification.

But the Wildlife Protection Act has always been ambiguous about captive elephants. Because an elephant can be legally owned, there has always been a demand to further monetise this ownership and permit their trade in the open market. The elephant ownership exception is an embarrassment, not to mention a potential illegality, at odds with the core objective of the Wildlife Protection Act . How can a protected wild animal be legally owned? Is it the same as “cattle”?

A tradeable commodity

One of the ways this ambiguity has been justified is by not treating captive elephants as wild. Experts, veterinarians, forest officers and activists on the ground will say that all elephants are essentially wild – or largely wild – even when trained and kept in captivity. But India’s legal and forest policy has struggled with this question for decades.

In 1972, at the very start, the Wildlife Protection Act defined captive elephants as cattle, essentially non-wild. This was a continuation of the colonial understanding of captive elephants as a monetised tradeable commodity of great value alive and/or dead.

With the creation of Project Elephant in the early 1990s, there was a renewed commitment to elephant conservation. The category of the captive elephant as cattle category was abolished and the Asian Elephant species, Elephas Maximus, irrespective of whether it was wild or captive, was elevated to the status of a Schedule I protected animal under the Wildlife Protection Act.

However, the treatment of captive elephants as cattle – a derogatory and exploitative category for any animal – continued.

The illegal trade of “live” or living elephants never really stopped. Elephants have been, and continue to be captured, killed, poached, beaten and abused below the radar of the law.

A 2011 report by Chaturbhuja Behera of the Wildlife Crime Control Bureau warned of an active nexus of the illegal capture of wild elephants from Assam and their trade via the Sonepur Mela in Bihar to meet the temple demands of the southern states:

 “Gangs and network of elephant trafficking: Well-organised elephant traffickers are spread over various districts of Assam, Bihar and UP...Temples, religious organizations and political parties place their demand through messengers and sometimes directly through Government officials. Sadhus are sent by maths. Wildlife Crime Control Bureau information reveals that well-conversant traffickers visit interiors of Assam and Arunachal Pradesh and make direct purchase from the owners.”  

Sonepur Mela is notorious for its elephant section from which an elephant can be chosen from rows of chained animals. Barring a recent display in 2019, the elephant section at the Sonepur Mela has been closed but the trade continues through more illegal channels.

In October 2020, a video went viral of an elephant trader in Kerala called Shaji claiming that he had traded over 200 captive elephants to private owners in the past few years. Fifteen of these elephants were seized in a subsequent raid in Kollam, all of them being illegally held by Shaji and his men. The Kerala forest department led a four-month manhunt which concluded in Shaji’s arrest in February 2021 near Mumbai.

The arrest of Shaji, the closure of Sonepur’s elephant section and the steady decline in the number of new captive elephants coming in from the wild were signs of hope and a recognition that this could be the beginning of the end of captivity for elephants in India.

In light of all this, clause 27 of the current Wildlife Protection Act amendment is a volte face. It is a dangerous, inexplicable regression from the progress made so far.

The Bill today lies for review and stakeholder comments before former minister of environment and forest Jairam Ramesh, who in 2010 commissioned “Gajah” the only exhaustive Indian government report on elephants wild and captive. The report decisively recognised captivity as cruel and recommended that the commercial use of elephants be phased out.

The government is not required to take into account the comments of the parliamentary committee, but it should. There is the hope that the experience Ramesh brings to the table will weigh in favour of the elephants.

Wildlife protection

Why is the government undermining elephant protection? The answer may lie in the title of the law itself: “wildlife protection”.

Wildlife news in India is through the alarming headlines of human wildlife conflict. Schedule I species, such as tigers, leopards and elephants, are seen as threats to life and livelihoods. Political demands are made to capture, displace, move to zoos or sometimes even kill wild animals.

Every Indian state is grappling with farmer demands to reduce forest cover and declare an increasing number of protected wild animals as vermin: a category that allows them to be killed, exterminated and destroyed.

Are we wishfully misunderstanding the meaning of protection embedded in the title of the Wildlife Protection Act? Does it actually mean protection or has it become “management”? The Wildlife Protection Act has been used as a tool of compromise, adjustment and balancing competing interests, but none of these are protection.

The exception of elephant ownership, and now trade, serves the compromise of keeping the temple lobbies happy at the cost of the elephant. The amendment proposes that “management” be added with “protection” in the preamble of the Wildlife Protection Act. Wildlife henceforth, will then be managed, when it should be protected. This may actually be a product of five decades of deliberate subversion of the Wildlife Protection Act. In constantly trying to “manage” issues of wild animal vs human communities, the spirit of the law has been lost to sight.

The natural world, which human beings are also a part of, exists in its own right and not only for the benefit of humankind. Animals, resources, minerals and trees, are not fruits of nature for human beings to pluck, use and exploit.

Human beings need to re-examine their entire relationship with nature. The natural world must be conserved, protected and fought for, because it has a right to exist on equal terms as humans.

At some level, protection must mean protection, and it must apply equally to animals in the Wildlife Schedules, and definitely to the same species of animals.

Joymala, the elephant sent to Tamil Nadu, was once part of a wild herd in Assam. Her fate should have been to flourish in the forest like the rest of her family. Instead she is begging for alms for her mahout, both victims of a system of poverty and exploitation in the name of tradition.

Allowing commercial trade in elephants in today’s age of climate change, growing man-animal conflict, and dwindling wild elephant population is a horrific resetting of the clock to the past that we have long left behind. Let us not bring any more Joymalas out of the wild. We must only move forward.

Alok Hisarwala is an animal rights lawyer based in Goa.