In September, the People for the Ethical Treatment of Animals group posted videos of a captive elephant named Joymala allegedly being beaten up by a handler at a temple in Tamil Nadu.The Tamil Nadu Hindu Religious and Charitable Endowments Department refuted the allegations that the elephant was mistreated, but the debate sparked by these videos highlighted the challenges involved with regulating captive elephants.

Under the Wildlife Protection Act, 1972, elephants are categorised as a Schedule 1 animal – on par with tigers – but yet, can be held captive legally. Instead of addressing this anomaly, the Wild Life (Protection) Amendment Bill, 2022, which is awaiting Rajya Sabha clearance, will only serve to further exploit elephants through a newly inserted exemption.

This provision, in Section 43(2), introduces a separate set of terms and conditions to be formulated by the Central government to regulate captive animals. The bill was passed by Lok Sabha on August 3.

The initial draft of the bill had created an exemption for elephants under Section 43, which regulates the transfer and transport of scheduled animals. This drew heavy criticism as it encouraged the commercialisation of elephants by permitting their trade.

The Standing Committee on Science and Technology, Environment, Forest and Climate Change, under the chairmanship of Congress parliamentarian Jairam Ramesh, addressed this concern.

The committee said that religious interests involving elephants must be balanced with the need to protect them, suggesting that the provision must be changed to empower the Central government to impose additional terms and conditions for the transfer of captive elephants, over and above the conditions mentioned in Section 43.

However, the exemption in the current draft bill has been further changed. It states as follows:

“Provided that the transfer or transport of a captive elephant for a religious or any other purpose by a person having a valid certificate of ownership shall be subject to such terms and conditions as may be prescribed by the Central Government.”

This proviso is problematic because it creates two additional types of purposes for which the transfer and transport of captive elephants may be regulated separately by the Central government – “religious” or “any other purpose”.

First, these two purposes of transfer and transport for captive elephants will no longer be governed in the same manner as for other scheduled species under the act but will be governed separately by the central government. Second, “religious” and “any other purpose” are vague terms, virtually allowing any types of captive elephant uses to come within their ambit.

Under the Wildlife (Protection) Act, Section 11 and 12 mention specific and exclusive purposes or circumstances when scheduled animals may be captured – for instance when they are a threat to life or property, or for scientific management, research, education and others. However, “religious purposes” is not an exception mentioned there.

In effect, the proviso carves out additional exceptions for the transfer and transport of captive elephants for “religious and other purposes” beyond the special purposes mentioned under Section 11 and 12, thus enlarging the scope for the exploitation of captive elephants.

Although the commercial trade of elephants is legally prohibited under Section 43(1) of the Act, the proviso to Section 40 creates an exemption by permitting the transfer of the ownership of elephants with the permission of the Chief Wildlife Warden.

This exemption has been exploited tremendously to abuse elephants in the guise of gifts, donations and more.

The Report of the Environment Ministry’s Elephant Task Force highlights that a vast majority of captive elephants were born in the wild but were used as circus animals, tourist elephants, as rides or for alms by wandering mendicants, for private or religious festivals and other purposes in religious trusts and institutions.

The illegal capture and transfer of elephants continues to be prevalent in states such as Assam, Arunachal Pradesh, Orissa and others. Therefore, the proposed proviso to Section 43 (2) creates an implementational gap by treating transfer and transport of captive elephants differently.

The Wildlife (Protection) Act takes a protective approach towards wildlife as clearly reflected in the preamble, which states that the act seeks to ensure “protection of wild animals, birds and plants, with a view to ensuring the ecological and environmental security of the country”.

To ensure the protection of elephants, it is imperative that they must be under the sole guardianship of the government. Eliminating private ownership must be the ultimate goal of state policy, as protecting a privately owned scheduled species is infeasible.

The idea has always been to phase out the captivity of elephants to eventually reach a point where “captive” elephants as a category do not exist. This was also the mindset when the Wildlife Protection Act was first drafted.

The concept of “captive” elephants and the exceptions accorded to them in the Act, differentiating them from other scheduled species was, at best, a temporary exemption created to address already captive elephants.

At some point, the state must take a hard stance on treating elephants like all other protected animals under the Act, especially considering the overwhelming evidence that held prisoner or tortured, deprived of their natural environment, elephants in captivity are prone to develop symptoms of trauma.

The newly inserted proviso sets a bad precedent for the treatment of elephants. The state must rethink its approach to elephant conservation, in line with the Gajah report of 2010, to ensure that we are headed towards a country where all elephants can eventually be free in their natural environment.

Deepa Padmar is a Research Fellow at Vidhi Centre for Legal Policy.

Also read:

India’s elephants will suffer huge setback if proposed changes to Wildlife Protection Act are passed

Counterview: Proposed changes to Wildlife Protection Act will not legalise elephant trade