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Friday, May 3, 2024

CAPTIVE ELEPHANT Transfer and Transport– Changing Scenario

 

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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