Wildlife Act amendment misses chance to free captive elephants

But the amendments pertaining to CITES and the schedules are largely viewed as an improvement.

The Dasara elephant Lakshmi with her newborn calf on the palace premises in Mysuru on September 14, 2022.  | Photo Credit: M.A. Sriram

With the President’s assent, on December 19, the Bill to amend the Wildlife (Protection) Act (WLPA), 1972, is now officially law. The Rajya Sabha passed it on December 8 and the Lok Sabha a year ago. Notification in the official gazette is all that remains.

The amendment is primarily aimed at revising four aspects of the law: allowing delegation of functions of the State Boards for Wildlife (SBWLs) to a select set of people (“standing committee”) as is currently the case with the National Board for Wildlife (NBWL); a rework of the schedules that list species according to the levels of protection they need in view of the threats they face; providing for the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); and an exception to the requirement to obtain permission from the Chief Wildlife Warden for the transfer and transport of captive elephants for religious or other purposes.

Exception provision

During the debate in the Rajya Sabha, many members raised concerns about the exception provision, among them were members from the Congress, the Trinamool Congress, and the Yuvajana Shramika Rythu Congress Party.

“What is ‘any other purpose’?” Jairam Ramesh, Congress MP from Karnataka and Chairman of the Rajya Sabha Standing Committee on Science and Technology, Environment and Forests, wanted to know. “To provide captive elephants for a zoo in Gujarat and private amusement parks in other States?” he asked. The reference was to a zoo that the Reliance Group is setting up in Jamnagar in Gujarat. In his reply, Environment Minister Bhupender Yadav referred to Section 38 of the WLPA, which deals with zoos.

In the last few months, a news portal of the north-eastern region has published reports claiming that wild elephants have been smuggled from Arunachal Pradesh and Assam to Gujarat. Another factor behind the exception clause could be religious festivals such as Pooram in Kerala. According to data animal rights groups obtained in 2020 under the Right to Information Act, Assam has the highest number of elephants in private custody followed by Kerala.

S.S. Bist, a former Director of the Central government’s Project Elephant and a former Chief Wildlife Warden of West Bengal, told Frontline that in the past, captive elephants were largely used in north-eastern States such as Assam and Arunachal Pradesh for timber logging operations and defence purposes. In 1996, the Supreme Court imposed a ban on logging, and captive elephants in these States “became surplus”, he said. “So they are now sent to States like Kerala, Tamil Nadu, Bihar, and Gujarat for temples, tourism, and weddings.”

In fact, news reports from Kerala suggested that temples in the State celebrated the passage of the Bill in the Upper House. As for what Pooram means for the well-being of elephants, Alok Hisarwala, founder of the Centre for Research on Animal Rights, said “serious hardship”. He explained that elephants were trained under difficult conditions for many weeks and shipped to cities and villages across Kerala during the festival. “I understand that we are a religious country, but Pooram is a highly commercial activity and it brings in a lot of money for private elephant owners,” Hisarwala said.

Ramesh also raised concerns about the move to establish standing committees at SBWLs, saying that this could turn them into “rubber stamp machines” for wildlife clearances and that they might not be able to function with either independence or environmental integrity.

In their submission to the Parliamentary Standing Committee on Science and Technology, Environment and Forests, the Legal Initiative for Forests and Environment (LIFE), an NGO that works on environmental laws and advocacy, said that the provision would render the State boards “defunct” as a handful of members could function “with no accountability to the [full] Board”.

This is exactly what happened with the NBWL. It has not met even once since it was formed in 2014, and all of its powers have been usurped by a standing committee, which has cleared hundreds of hectares of protected areas for mining and infrastructure projects and the like. The Bombay Natural History Society too raised concerns about this provision in the Bill, stating: “Decisions should be taken by the entire State board for wildlife and not just a minimum number of members of the standing committee.” As regards the amendments pertaining to CITES and the reworking of schedules, legal and wildlife experts largely view them as an improvement to the law. “Until now, CITES provisions were enforced through the Customs Act and not the Wildlife (Protection) Act, which was a major lacunae,” said Ritwick Dutta, environmental lawyer and founder of LIFE.

Star tortoises seized from a person at Madurai airport on September 28, 2015. “Until now, CITES provisions were enforced through the Customs Act and not the Wildlife (Protection) Act, which was a major lacunae,” said Ritwick Dutta, environmental lawyer and founder of LIFE. | Photo Credit: S. JAMES

“Most captive elephants in India are caught from the wild, and they are largely from Assam,” said Debadityo Sinha, a senior resident fellow at the Vidhi Centre for Legal Policy headquartered in New Delhi. A 2010 report by the Union Environment Ministry, titled “Gaja: Securing the Future for Elephants in India”, too noted: “The vast majority of captive elephants today were born in the wild and subsequently taken into captivity.”

Unclear ownership

During the debate, Congress MP Vivek K. Tankha said: “There are 2,675 captive elephants in India and only 1,251 have ownership certificates.” He noted that unclear ownership was an issue at present and the provisions that were “weak and indeterminate” would “cause problems”. However, Pavitra Margherita, a BJP MP from Assam, supported the provision for enabling the smooth transfer of elephants between States.

Legal experts point out that even with the amendment, moving captive elephants from one State to another will still require permission from the Chief Wildlife Warden. Section 40 of the Act requires prior approval of the Chief Wildlife Warden in cases where a person comes into possession of captive animals. And so, while the exception has been carved out of Section 43, which deals with the regulation of animals, this clause still remains as it was. Section 39, too, requires prior permission for the transfer of animals. Sections 11 and 12 permit hunting in certain cases as when an animal has become particularly dangerous to human life or for larger conservation purposes such as scientific research and education. “Hunting” in the legislation includes capture for captivity. But religious purposes do not find mention here, which gives rise to confusion in implementation.

“There are many policy and implementation challenges with this amendment,” Bist said. In addition to issues with interpretation of the exception clause, he explained that while the government could claim to frame rules to clarify what “other purposes” meant, the fact remains that rules can be framed and changed multiple times without parliamentary scrutiny. In 2009, the Central Zoo Authority banned elephants in zoo collections and directed that they be rehabilitated in protected areas such as national parks and sanctuaries. “This order has not been withdrawn. So the government should make up its mind: should we keep elephants in zoos and in captivity or not?” Bist said.

The amendment is a missed opportunity to phase out regressive practices such as keeping elephants in captivity. “Captivity means torture [during training] and a life of slavery. It should be banned. There should be no new recruitment of elephants into captivity,” Dutta said, saying that snake charming and sacrificing owls during Diwali had been prohibited despite being linked to religious and cultural practices.

Rishika Pardikar is a wildlife and climate change reporter based in Bengaluru.

The Crux

• On December 19, the President gave her assent to amend the Wildlife (Protection) Act (WLPA), 1972.
• The amendment primarily revises four aspects of the law: allowing delegation of functions of the State Boards for Wildlife (SBWLs) to a select set of people (“standing committee”); a rework of the schedules that list species according to the levels of protection they need; providing for the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); and an exception to the requirement to obtain permission from the Chief Wildlife Warden for the transfer and transport of captive elephants for religious or other purposes.
• There is concern that the amendments have not defined what purposes elephants can be used for and have perhaps made it easier for the animals to be transported across the country.
• There is also concern that the powers of the State Boards for Wildlife are being diluted, which might prevent them from functioning with either independence or environmental integrity.
• However, legal and wildlife experts largely view the amendments pertaining to CITES and the reworking of schedules as an improvement to the law.