In 1963, private forest owners in Malabar challenged provisions of the Kerala Forest Act, 1961 (Act IV of 1962). The question before the Court was whether the State could deprive forest owners of their existing right to capture and own elephants found on their land. In Kuppathode Madhavan Nair v State of Kerala (1963), the Kerala High Court sided with the owners. Applying common-law principles inherited from the colonial period, it held that ownership of land conferred a qualified right over wild animals found there (ratione soli), including the right to capture them and claim them as private property.
Within a decade, the Indian Parliament would enact a national conservation law and the Constitution would soon expressly recognise duties towards forests, wildlife (Article 48A) and living creatures (Article 51A(g)). Even though the elephant’s legal status would change profoundly as both a Schedule I animal in law and a National Heritage Animal, a symbol of the country itself, the owner’s place in her life would prove much harder to dislodge.
Elephants, forests and capture
The Malabar litigation belonged to a much longer history in which protecting elephants and putting them to work were closely connected. In Elephants and Kings: An Environmental History (2015), Thomas R. Trautmann, a historian and anthropologist, explains how the military value of elephants gave Indian rulers an interest in preserving wild populations and the forests that sustained them, even as they continued to capture individual animals. Academic Natasha Nongbri’s 2003 study of nineteenth-century Northeast India shows how colonial authorities regulated capture of elephants through licences, leased grounds and royalties. The forest was not simply a place where elephants lived. It was also the source of successive generations taken into captivity.
Preserving wild elephant populations and capturing individual animals became part of the same policy which gave birth to the Elephant Preservation Act, 1879, a national law modelled on the regional Madras Wild Elephant Preservation Act, 1873. It was arguably the first national law on Elephants in British India enacted with the ostensive realisation that a live elephant was more valuable than dead. The policy as ‘preservation’, not ‘conservation’, was instrumentalised to preserve the source – the elephant in the forest, to allow for its simultaneous extraction from it to feed the rising demand for captive elephants.
Among the important establishments in this system were Dacca, now Dhaka, and Mysore, both associated with khedda operations in which wild elephants were driven into stockades and subdued with the help of trained elephants. The Dacca establishment drew upon the Garo Hills and other northeastern forests, while the Mysore operations captured elephants from the forests of southern India. These regional systems of capture existed alongside wider networks of trade. The Sonpur fair in Bihar, already an important elephant market in the nineteenth century, connected elephants captured in the Northeast with buyers from elsewhere in India.
Against this background of an extensive elephant trade, the forest-owning timber merchants in Kuppathode Madhavan Nair asserted their right to capture elephants and put them to work within a legal order that still accepted their removal into human service.
The shift in constitutional law
The Wild Life (Protection) Act, 1972 introduced a national framework for conservation, prohibiting the hunting of the most protected species. Yet the elephant’s initial classification revealed how much of the older world remained. She appeared in Schedule II, Part I as “special game”, whose hunting – which included capture – could be licensed, while Section 2(6) included “domestic elephants”, curiously for a wildlife law, in its definition of “cattle”.
The changes of the next five years gave the law a different direction. The Constitution (Forty-second Amendment) Act, 1976, passed during the Emergency, is remembered for weakening fundamental rights and curbing the powers of the courts. Yet it left a curious and enduring legacy in the protection of the environment and animals. Even during the darkest period of Indira Gandhi’s leadership, her concern for the natural world found expression in the Constitution.
The amendment inserted Article 48A, directing the State to protect the environment and safeguard forests and wildlife, and Article 51A(g), making it the duty of every citizen to protect the natural environment and to have compassion for living creatures. These duties gave constitutional weight to the responsibilities we owe to the non-human world. In October 1977, months after these provisions took effect, the elephant was elevated to Schedule I, bringing her capture within the highest level of statutory protection.
In 1986, amid growing concern over the killing of elephants for their tusks, Parliament prohibited domestic trade in Indian elephant ivory. In 1991, following stronger international restrictions under the Convention on International Trade in Endangered Species of Wild Fauna, it extended the prohibition to imported ivory, which traders had been using as a cover for selling ivory from poached Indian elephants. That year, Parliament also removed the Act’s definition of “cattle”, which had included domestic elephants. It introduced “livestock” in its place, expressly excluding protected wild animals.
Yet these changes did not bring private ownership of elephants to an end. Under Sections 40–42, people in lawful possession of elephants could declare them to the authorities and obtain certificates recognising their ownership after an inquiry. Even as the law strengthened protection for elephants and restricted the trade in their ivory, it continued to recognise that a living elephant could remain someone’s property.
The 2002 amendment: live elephant ownership exception and the prohibition on sale
A 2002 amendment to the Act (which became effective from 2003) tightened restrictions on private ownership of protected captive animals. However, it expressly exempted live elephants. Although the newly introduced Section 43 prohibited transfers for any commercial consideration, a person could still acquire an elephant and pass her to another owner with the necessary permissions. This left an opening for sales disguised as ‘gifts’.
In the years that followed, animal protection organisations documented how this distinction enabled trade to continue. At the Sonpur Mela in Bihar, where elephants had long been bought and sold, transactions were now presented as ‘gifts’. Researchers even recorded owners carrying blank gift deeds to transfer possession. These practices formed part of the challenge brought to the Supreme Court in 2014 by the Wildlife Rescue and Rehabilitation Centre (‘WRRC’) and others in W.P.(C) No. 743 of 2014. Still pending twelve years later, the WRRC case has become a central proceeding through which the Court supervises the treatment and regulation of captive elephants.
Although the Court imposed no blanket prohibition, the continuing proceedings, notices to forest departments in every State with captive elephants, and numerous interim orders largely halted the trade. These included a nationwide census and checks on ownership certificates, welfare inspections at tourist resorts in Goa, and an order blocking Kerala’s attempt to regularise 289 elephants held without ownership certificates and restraining their transfer. The Court’s scrutiny of ownership papers and transfers had made the trade harder to carry on.
A 2021 case in Guwahati High Court confirmed the concerns raised by WRRC before the Supreme Court in 2014. In April 2021, forest officials at Doomdooma in Assam’s Tinsukia district intercepted two elephants travelling from Arunachal Pradesh to Odisha, ostensibly for religious purposes. Their investigation went beyond the ownership certificates and transport permissions. In a recorded statement, the claimed owner described bank payments of ₹9 lakh and ₹17 lakh from an intermediary who had also arranged the documents. He could not identify the receiving religious institution. In State of Assam v. Sri Chow Sonjit Pomong (2021), the Gauhati High Court found prima facie evidence of a commercial sale and set aside the order releasing the elephants to the claimed owner while the investigation continued. The elephants were reported to be in the Forest Department’s custody at Kaziranga National Park.
The 2022 amendment: religious and other purposes
In December 2021, the Central Government introduced the Wild Life (Protection) Amendment Bill, 2021, which went considerably further than the amendment eventually enacted. It proposed exempting transfers of live elephants by ownership certificate holders from Section 43 altogether, subject to government permission and prescribed conditions. This would have removed the prohibition on commercial transfers for those elephants, allowing them to be openly bought and sold again.
The pressure for change came particularly from Kerala, where temple authorities and private elephant owners’ associations were seeking easier acquisition and interstate transfer of elephants. In my view, the elephant provision in the 2022 amendment must be understood as an attempt to loosen the practical restraints that the Supreme Court’s scrutiny in the WRRC case had helped impose.
Following objections from conservation and animal protection organisations, the Parliamentary Standing Committee chaired by Jairam Ramesh recommended deleting this proposal. In April 2022, it suggested a narrower provision allowing transfers of existing captive elephants for religious institutions, with additional safeguards. The version Parliament ultimately enacted extended this to transfers “for a religious or any other purpose”, subject to conditions prescribed by the Central Government. The prohibition on commercial consideration remained.
Non-commercial transfers were already possible under the elephant exception introduced in 2002. An amendment was therefore unnecessary merely to allow an elephant to pass from one private owner to another as a gift. In this respect, the new provision largely reaffirmed the existing position, while creating a specific framework for central rules governing transfers. Its practical significance lay in giving renewed statutory backing to transfers at a time when litigation and enforcement had made them increasingly difficult.
The words “any other purpose” were particularly troubling because they offered no meaningful limit of their own. For those of us who had worked to curb the use of elephants for begging, entertainment, circuses and timber logging, the concern was that this broad wording could encourage attempts to revive practices we had spent years challenging.
The safeguards governing these transfers consequently became crucial.
On March 14, 2024, fifteen months after the amendment, the government notified the Captive Elephant (Transfer or Transport) Rules (‘2024 Rules’). These attempted to place meaningful safeguards around a difficult accommodation. By limiting transfers to elephants whose ownership certificates predated the Rules and to their offspring, and by requiring registration of genetic profiles, they offered a means of confining transfers to an identifiable population already lawfully in captivity. Read together, these provisions seek to break the logic of the khedda, in which the forest continually supplied elephants for human use. Putting this into practice is a demanding exercise. The State must build a reliable genetic record of the captive population, then verify each claimed captive birth through a DNA match with the mother and records establishing that she was lawfully held. Each new addition must be traceable to this legally recognised population, closing off the forest as a continuing source of captive elephants.
Yet the government was still struggling to identify the population it sought to regulate.
In August 2026, the Ministry of Environment, Forests and Climate Change placed the proceedings of the Captive Elephant Healthcare and Welfare Committee (formed under ‘Project Elephant’) for the month of February before the Supreme Court in the WRRC case. These recorded that the profiling exercise remained incomplete and that, among 2,075 samples analysed, 40.5 per cent of elephants had unknown origins and 25.4 per cent were documented as wild-caught. Nearly two-thirds therefore fell into these two categories.
The continuing exception
These concerns have become urgent with the September 2026 movement of five young elephants from Assam to Tamil Nadu temples: Durga, Rupsing, Shiva, Hiralal and Bijuli. More than fifty organisations have sought an independent investigation into their origins, ownership documents and the possibility of sales disguised as gifts. The pace of the transfers shows how readily decisions that will shape decades of an elephant’s life can be made while fundamental questions remain publicly unanswered.
In my account of Durga’s transfer, the sequence from the request for a health certificate to her departure from Manas took three days. Her ownership certificate was issued in October 2025, after the 2024 Rules came into effect, so her transfer depended on a claimed captive birth to a mother covered by them, yet her mother’s identity and lawful captive status remained publicly unverified. A five-year-old elephant is not a remnant of pre-conservation law; she is another generation entering a system that can determine almost her entire future.
These journeys follow years of large transfers from the Northeast to Vantara in Jamnagar, where reporting in 2024 documented convoys coming in from Arunachal Pradesh and the private wildlife facility hosting more than 200 elephants. Vantara describes its work as rescue and rehabilitation, and in September 2025 the Supreme Court accepted an investigation reporting no legal violations. Its transfers and those to temples have different stated purposes, but their scale raises a very important question: how should a constitutional commitment to wildlife, and to compassion for living creatures, govern the continuing movement and concentration of elephants in human institutions?
Elephants leaving the Northeast in convoys is not very dissimilar from the old geography of the khedda, when the forests of the Garo Hills supplied elephants to distant establishments and markets. Trautmann and Nongbri show that the forest sustained a system in which wild populations were protected in part because they supplied animals for capture. The question is whether the modern ownership regime has truly broken that relationship.
In his Study on Illegal Sale and Transfer of Live Elephants from Assam, Chaturbhuja Behera, then a regional official of the Wildlife Crime Control Bureau, described illegal sales and transfers, accounts of wild calves being captured, and weaknesses in records used to establish captive birth. Findings such as this make it difficult to treat an ownership certificate, by itself, as an answer to where a young elephant came from.
The 2024 Rules thus return us to the contradiction the law has carried since 1972. Once again, the government is trying to make its core commitment to protection coexist with private ownership, a relationship that subordinates an elephant’s life to the purposes of her owner. The safeguards are necessary, but they cannot resolve that contradiction while the exception is effectively allowing institutions to replenish their captive populations for generations to come.
The demand for young elephants must be supplied from somewhere. The historical answer is in front of us: it is the forest. The forest is the breeding ground from which elephants have long been taken to replenish captivity. The exception leaves open the route by which demand for elephants in captivity can be met through illegal capture in the wild, disguised as captive-born. More than sixty years after the Malabar owners defended their right to capture elephants for timber in Kerala High Court, the law is yet to confront the continuity between that older system and the present one.