In this blog post, Disha Pareek, a student of RGNUL Patiala analyses the laws that are prevalent to protect elephants in captivity. 

It is not only morally but also legally wrong to exploit elephants for anybody’s personal gain. The condition of elephants in India is pitiable; thousands of elephants languish at different places in a pathetic condition where they are chained and captivated for years in unhygienic conditions.

Section 2 (c) of the Prevention of Cruelty to Animals Act, 1960 defines the word captive. “Any animal which is in confinement and is subjected to contrivance for the purpose of hindering or preventing its escape from captivity”[1]

States like Tamil Nadu, Kerala, and Rajasthan, are amongst the top states that are responsible for captivating elephants in circuses and temples. Their abuse and misuse are very common; elephants are kept for degrading things like begging, performing unnatural acts like marching in the wedding procession, walking on roads in hot and cold climates. Around 2500 elephants are held in captivity by private individuals, and they are vulnerable to abuse, confinement, and loneliness.

Problems Faced by Elephants

• Isolation: Elephants that are captivated are deprived of society and companionship, and they are not properly attended to. Some of them are housed or caged for life, and they are brutally treated by the owners.
• The Inadequacy of Food and Water: Normally, elephants are provided with sweets and rice which are considered to be very harmful to their health. There is a chronic shortage of water available for them, and the little amount that they get is not potable.
• Place of Stay: The places where they are kept are like dungeons, which lack hygiene and ventilation. Their training is worth considering as well. Since India lacks proper training centers and trainers, they are subjected to torture, starvation, and beating.

Who Can Own an Elephant

The Wildlife Protection Act makes it illegal to own an elephant as it does not come under the category of pet animals that can be legally owned in India. The Chief Wildlife Conservator of the state has the powers to issue the ownership certificate to those who want to transfer ownership of an elephant since it is not an offense in India by Section 42 of WPA, 1972.

Section 49 of the Wildlife Protection Act prohibits purchasing or acquiring any captive animal in any manner other than a license. In most cases, elephants that are seen in different places like temples, streets, and circuses are illegally acquired, and the perpetrators of such crimes go unpunished.

Preservation of elephants is a burning topic since the British era before the Constitution came into force. This has been evident through the Elephants Preservation Act, 1879. This act prohibited killing, injuring or capturing elephants except for the purpose of self-defence.

In PETA v/s the state of Maharashtra, the Bombay High Court issued a writ of Mandamus commanding that the elephant ‘Sunder’ be set free and relocated to the Wildlife Rescue and Rehabilitation Center in Bangalore.

Exploitation of Elephants in Temples

In different parts of India, elephants are abused in various religious festivals. The animals are chained, forced to stand for hours in the sun without been given proper food and water, thus, violating Section 11 of the Prevention of Cruelty to Animals Act. Kerala tops the list in exploiting elephants in temples. Kerala has around 700 captive elephants.

The elephants are forced to parade on the roads in crowded areas with a lot of noise; this is not only harmful to the elephant, but it poses a grave risk to the general public. Elephants that have gone wild have killed a lot of people on the roads. The elephants are rampantly abused in clear violation of different laws like Prevention to Cruelty to Animals Act 1960,

A petition was filed in the Supreme Court by Wildlife Rescue and Rehabilitation Centre in Bangalore. The petition pointed out that mainly temples in Tamil Nadu have hundreds of elephants for this purpose, and they are forced to walk on tarred roads in hot summers. It clearly violates Tamil Nadu captive Elephants (Management and Maintenance) Rules, 2011.

Forced to Beg

Elephants that are forced to beg are continuously exposed to confusing and new traffic. The noises severely damage the ears and overall health of the elephant and the scorching, pothole-ridden roads hurt their body and especially their feet. They suffer from skin diseases, eye infections and diseases of the feet. Elephants need at least 200 kilograms of food and 150 litres of water daily, but working elephants often receive too little food and water.[2]

In nature, elephants are highly social creatures that live in close-knit, social environment. Cubs are looked after not only by their mothers but also by other female elephants. In captivity, baby elephants are separated from their mothers at the age of 3. Captive settings cannot provide elephants with an exciting, stimulating and rewarding environment.

Circus Elephants

Circus is a place which is for the entertainment of general public, but it is no less than torture to innocent animals that are used as tools for humans. Cruelty and coercion are an inherent part of the circus industry.

The circuses do not have satisfactory regimes for care and safety of elephants. But in 2013, after a proper investigation by the Animal Welfare Board of India, it had decided to stop registering elephants under the Performing Animal Rules.

Laws Governing Captivity

Abuse of animals in any form is a punishable offense under the Prevention of Cruelty to Animals Act, and since the act defines captivity and makes it punishable, the person who is involved in the act of captivating an elephant will be liable to pay a fine of Rs 50. Section 11 of the act makes transportation of animals a punishable offense with a fine of Rs 100 or a 3 -year term imprisonment.

As per the provisions of the Act, it is illegal to override, overdrive or overload animals. The owner will be held liable for not providing adequate food and water to the animal.

The Constitution of India

The most important document that is the Constitution has provisions regarding animal abuse. Article 21 has an expansive interpretation; it provides liberty to individuals to take care or feed animals and also provide shelter to the homeless animals as the basic right.

As a fundamental duty of every citizen of India, Article 51A (g) of the Constitution obliges every citizen to protect and improve the natural environment which includes forests, lakes, rivers, and wildlife and to have compassion for living creatures.

Section 226 of the Constitution confers on the High Court the power to issue different writs.

Indian Penal Code

It is a cognizable offense under the IPC to cause injury and cruelty to any animal by Sections 428 and 429.

Section 503 is an important provision since it makes intimidation, a criminal offense. Here, intimidating means threatening a person who takes care of animals. Anybody as a right can take care of animals and could not be stopped by anybody. But if someone tries to intimidate an animal lover he can be made liable under this act.

Real Stories

• The heart-wrenching cries of ‘Raju’: An elephant Raju, who was kept in chains for nearly 50 years in the state of Uttar Pradesh by a drug-addict for the purpose of begging. He was regularly beaten and abused and even starved since the time he was a baby; it only ate paper and plastic for survival. He has been freed, but he suffers from arthritis and chronic wounds all over his body. The volunteers of an organization got a court order by UP Forest Department.
• Captivity in South India: The practice of captivating elephants in Southern India dates back thousands of years, it is similar to a status symbol for them. But mostly it is used for temple festivals. The state has as many as 700 captive elephants. The elephants are forced to walk and parade for hours with lots of people and fireworks which are not music to their ears. These elephants are forced to overwork and ride people all day long. The Animal Welfare Board of India filed a complaint regarding the cruel treatment of elephants in the Thrissur Pooram festival. The animals found by the organization were in chains and were made to stand for hours. The Supreme Court of India directed that no owner, organizer or temple will treat an elephant with cruelty and the offender shall be made liable for the offense.

Conclusion

Protection of animals is crucial because they are mute spectators of cruelty and they cannot speak for their rights. The Prevention of Cruelty to Animals Act was enacted so that rights of animals could be properly restored, but as time passed, it has been realized that there are various loopholes in the act. No provision specifically talks about the captivity of elephants and even after the Supreme Court’s directive to not issue a license for elephants in captivity for its use in temples, circuses or zoos; its implementation is hardly felt.

So the need of the hour is to protect elephants from the perpetrators of such crimes because animals are the most innocent creatures from God.

Footnotes:

[1] Available at http://envfor.nic.in/legis/awbi/awbi01.html

[2] Available at http://www.petaindia.com/issues/animals-in-entertainment/