CAPTIVE ELEPHANT Transfer and Transport– Changing Scenario
Elephant is not a Chattel indeed, but
if it is a captive one ?
Sherry J Thomas
An amendment has been brought in the Wildlife
Protection Act and as per this amendment, Rules has been notified to enable the
transfer or transport of elephant within or between States. The Centre has
notified a set of rules Called Captive
Elephant (Transfer or Transport) Rules 2024 which liberalize the conditions
for transfer and transport of elephants on March 14, 2024. The Elephants come
under schedule I species. They come under special category as they are being used
in temples, religious festivals etc.
These rules began as a draft amendment to the wild
life protection act as early as on the end of 2021 as a bill. A provision is
added to legalize commercial trade in captive elephant, when it was tabled the
Parliament, widespread objection was there as it would be against the long
pending campaign for the protection of elephants. The Parliamentary committee
led by Congress Rajya Sabha MP Jairam Ramesh had recommended the deletion of
this exemption clause for elephants providing only an exemption for elephants owned
by temple trusts and argued that a careful balance between the traditions and conservation
was needed. But the final version, however, retains the clause allowing the movement
of captive elephants.
The Elephants in captive stage mostly come from North East.
The North East has historically been a space where elephants are captured from
wild and giving training in the infant stage. There are reports that the
traders coming from South India would take them to Kerala. This was a practice continuing
till early 2000. But since 2002, the Wild life Protection Act was amended and
commercial transfer is banned. Then everyone started ‘gifting’ the elephant to
overcome the legal embargo. All these elephant handovers were commercial transactions
but in the legal sense, it will be shown as gifting. Many cases were lodged in
the Supreme Court. Gradually the officers become more vigilant, the number of
sale/gift drastically come down.
The section 43 in The Wild Life (Protection) Act, 1972
read so-
43. Regulation of transfer of animal, etc. -
(1) No person having in his possession captive animal,
animal article, trophy or uncured trophy in respect of which he has a
certificate of ownership shall transfer by way of sale or offer for sale or by
any other mode of consideration of commercial nature, such animal or article or
trophy or uncured trophy.
(2) Where a person transfers or transports from the
State in which he resides to another State or acquires by transfer from outside
the State, any such animal, animal article, trophy or uncured trophy in respect
of which he has a certificate of ownership, he shall, within thirty days of the
transfer or transport, report the transfer or transport to the Chief Wild Life
Warden or the authorised officer within whose jurisdiction the transfer or
transport is effected.
[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.]
Now the amendment basically reinstates the law that
they are permitting the transfer of elephants. Both the forest officers of
place of transfer and recipient state must sign papers. In effect, the elephant
become a tradable commodity even though it is stated as a non-commercial transfer
and for limited purposes. Only elephants that are in private ownership on the
date of notification (14.3.2024) or unless born in captivity are allowed for
transfer. The elephants born in captivity are very less. We don’t have a list
of captive elephants at present. In 2014 a Bangalore based organization filed a
Writ Petition before the Supreme court for the welfare of captive elephants and
Supreme Court directed the Forest Department to table the clear list of how
many captive elephants in the country. There were no proper report and SC
directed to conduct a survey and the ministry reported that 2065 captive elephants
are the there and out it, 1800 are with private owners. This was in December 2108-19.
The
circumstances under which captive elephants can be transferred are when an
owner is no longer in a position to maintain the elephant, the elephant will
likely have a better upkeep than in the present circumstances; or when a
state’s Chief Wildlife Warden “deems it fit and proper” in the circumstances of
the case for better upkeep of the elephant.
The provisions
of new rule read so-
3. Application for Transfer of Elephant .– An
application for transfer of elephant shall be made in Form I to the officer not
below the rank of Deputy Conservator of Forests having jurisdiction over the
area where the elephant is registered.
4. Inquiry by the Deputy Conservator of
Forests.-(1) On receipt of the application under rule 3, the Deputy Conservator
of Forests shall:- (a) obtain a certificate of a veterinary
practitioner in Form II; (b) conduct a detailed inquiry and physical
verification of the facility where the elephant is presently housed and also
the facility where the elephant is proposed to be housed in case the facility
is located within his jurisdiction; and
(c) forward the application and report in Form III along with the report
of veterinary practitioner within a period of fifteen days to the Chief Wild
Life Warden.
5. Transfer within the State.-
(1)The
Chief Wild Life Warden after examination of reports may, within a period of
seven days by an order in writing reject or permit the transfer of the
elephant, if such elephant is proposed to be housed within the jurisdiction of
the officer receiving the application under rule 3.
(2)
The Chief Wild Life Warden shall forward the application and the reports
received as per sub-rule (1)(c) of rule 4 to the officer not below the rank of
Deputy Conservator of Forests having jurisdiction over the area where the
elephant is proposed to be housed and is outside the jurisdiction of the
officer receiving the application under rule 3, within a period of seven
days.
(3)
The concerned Deputy Conservator of Forests shall on receipt of the application
and the reports in accordance with sub-rule (2) conduct a detailed inquiry and
physical verification of the facility and submit report in Form III within a
period of fifteen days to the Chief Wild Life Warden.
(4)
The Chief Wild Life Warden after examination of the application and the reports
may, within a period of seven days by an order in writing reject or permit the
transfer.
6. Transfer outside State.-
(1)
The Chief Wild Life Warden of the donor State shall forward the application
along with the reports received as per (c) of sub-rule (1) of rule 4 within a
period of fifteen days to the Chief Wild Life Warden of the recipient State.
(2)
The Chief Wild Life Warden of the recipient State shall within a period of
seven days forward the application and the reports to the officer not below the
rank of Deputy Conservator of Forests having jurisdiction over the area where
the elephant is going to be housed.
(3)
The concerned Deputy Conservator of Forests shall on receipt of the application
and reports in accordance with sub-rule (2) conduct a detailed inquiry and
physical verification of the facility and submit report within a period of
fifteen days in Form III to the Chief Wild Life Warden.
(4)
The Chief Wild Life Warden of the recipient State after receipt of the reports
as per sub-rule (3) shall forward his recommendations to the Chief Wild Life
Warden of the donor State in Form IV within a period of fifteen days.
(5)
The Chief Wild Life Warden of the donor State after examination of the reports
shall, within a period of seven days by an order in writing reject or permit
the transfer.
(6)
The Chief Wild Life Warden of the donor State shall intimate the order of
rejection or permission of transfer to the Chief Wild Life Warden of the
recipient State.
7.
Terms and Conditions for transfer.-
(1) The Chief Wild Life Warden shall permit the
transfer where the ownership certificate in respect of the elephant proposed
for transfer existed prior to coming into force of these rules except in case
of elephant borne from such elephants.
(2)
The transfer of the elephant may be permitted by the Chief Wild Life Warden, in
case:- (a) the owner is no longer in a
position to maintain the elephant; or
(b) the elephant will have a better upkeep than in the present
circumstances; or (c) he deems it fit
and proper in the circumstances of the case for better upkeep of the
elephant.
(3)
No transfer of an elephant shall be permissible unless genetic profile of the
elephant has been entered in the electronic monitoring application of the
Ministry of Environment, Forest and Climate Change.
There are conditions that, the elephant being
transferred ought to be accompanied by a mahout and an elephant assistant; (b)
a health certificate from a veterinary practitioner to the effect that the
elephant is fit for transport and is not showing any sign of musth or
infectious or contagious disease, is to be obtained; (c) the transport shall be
carried out after the mandatory quarantine period as advised by the veterinary
practitioner is over, in case of contagious disease; (d) the elephant shall be
properly fed and given water before loading; (e) necessary arrangements shall
be made to provide food and water to the elephant en route; (f)
tranquilisers/sedatives shall be used to control nervous or temperamental
elephants upon prescription by the veterinary practitioner.
The critics says there is also a provision for
surrendering the elephant to the Forest department by a private owner; if the
owner no longer in a position to maintain the elephant, then he could have
surrender it to the Department. Instead, the present position in law allows for
transfer it for consideration. There are umpteen instances in which States like
Kerala, human-animal conflict are escalating and several deaths are reported
due to attack by elephants.
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