The proposed amendment to the Wildlife Protection Act facilitates the commercialisation and transfer of captive elephants – starkly contradicting the very purpose of the legislation.
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THE Wild Life (Protection) Amendment Bill, 2022 was passed in the Lok Sabha on August 2. This amendment was primarily enacted with the aim of giving effect to India's obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora ('CITES'). Among several changes, the Amendment proposes to amend Section 43(2) of the Wild Life (Protection) Act, 1972 ('WPA').
For some context, Section 43 regulates the transfer of an animal. Sub-clause (1), inserted by the Wild Life (Protection) Amendment Act, 2002, imposes a blanket prohibition on all "transfers" of a commercial nature. Sub-clause (2) necessitates the permission of the Chief Wild Life Warden for any "transport" or "transfer" of an animal across state boundaries. "Transfer" in this sub-section entails non-commercial transactions, like gift deeds. Elephant transfers today primarily occur within this framework of non-commercial transactions, which were mostly facilitated by invalid or illegal gift deeds. This was halted in 2015 when the Supreme Court unofficially imposed a moratorium on all transfer permissions.
“In essence, the new proviso creates a legal pathway to encourage the further commercialisation and transfer of elephants through the vague wording of "religious or any other purpose." This goes against the fundamental object and purpose of the WPA.
The 2022 Amendment proposes to insert a proviso to Section 43(2) whereby "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." (Emphasis supplied) An earlier version proposed the creation of an overt exception for 'live elephants' from commercial transfer.
While the present avatar of the Amendment is a shade better, it continues to be worrisome for a plethora of reasons. In essence, the new proviso creates a legal pathway to encourage the further commercialisation and transfer of elephants through the vague wording of "religious or any other purpose." This goes against the fundamental object and purpose of the WPA.
From its inception, the WPA was meant to provide for the protection and preservation of animals, birds and plants in their natural habitats. In the initial 1972 version of the Act, the elephant was a Schedule II animal and expressly included within the category of "cattle" in Section 2(6). At this time, elephants were considered "domestic" creatures, an understanding which has since been done away with. In 1977, the Indian elephant was included in Schedule I, which accords the highest degree of protection to wild animals.
Subsequently, through the 1991 Amendment, section 2(6) was repealed, and the idea of elephants as being "domestic" creatures was no longer statutorily justifiable. However, while this understanding was ousted from the letter of the law, it continues to operate in the mindset of legislators and enforcers alike. In fact, the seeming 'domesticity' of captive elephants was one of the primary arguments put forth by legislators to justify the creation of the impugned exception.
The 2002 Amendment brought in seminal changes. On the one hand, the amendment to section 43 imposed a complete restriction on the commercial trading of elephants. Prior to this, any owner with the requisite permissions from the forest department could sell their elephants. Commercial trade in elephants was widespread and legally simplified.
On the other hand, Section 40 of the WPA was amended to make elephants the only wild animals that could be legally owned by a private individual. The 2003 Amendment inserted sub-clauses (2A) and (2B), which prohibit any person without a valid ownership certificate from acquiring, receiving, or keeping in one's custody or possession, any animal specified in Schedule I and Part II of Schedule II. The only valid form of such acquisition is through the mode of inheritance.
Although this change is seemingly desirable, this amendment also included an unambiguous proviso to these clauses, by virtue of which these protections are inapplicable to live elephants.
The provisions for the issuance of ownership certificates and the prohibition of the sale of private elephants were implemented with the intent to bring the unregulated market of captive elephant trade within the ambit of the law. They were never meant to facilitate further private ownership, commodification and trade of elephants. However, unwittingly, these provisions have created a legal opening for the acquisition and transfer of elephants through modes other than inheritance. This opening, combined with section 43(2), which sanctions transfers in a roundabout manner, solidified the legal identity of elephants as a tradeable commodity.
“Despite the unique legal position occupied by elephants, private ownership was always intended to be phased out in favour of a more protectionist paradigm in which elephants can freely exist in their natural wild environment.
Post-2003, elephant trade primarily occurred through gift deeds, which are non-commercial by definition but commercial in operation. Despite its core intentions, in practice, the 2003 Amendment merely shifted the paper trail for elephant trade, whereby money was transferred unofficially. This created a considerable degree of confusion for forest officials, who were unsure of whether to accept gift deeds in the absence of specific permission. This changed in 2015 after the Supreme Court's intervention.
While elephants continue to exist in a legal grey area, the intent of the law has always been to protect and preserve them. These developments in the WPA have to be juxtaposed against significant developments in the framework of the Constitution. The object and purpose of the WPA – to protect animals in their natural environment – was lent credence in the 42nd Constitutional Amendment in 1976, which added the fundamental duty to "protect and improve … wildlife, and to have compassion for living creatures" in Article 51A(g). This Amendment also inserted Article 48A in the Directive Principles of State Policy, which outlined the protection and safeguarding of wildlife as an ideal to be followed in the governance of the country.
Despite the unique legal position occupied by elephants, private ownership was always intended to be phased out in favour of a more protectionist paradigm in which elephants can freely exist in their natural wild environment. Elephants continue to be the only wild animals which occupy a dual position of absolute protection under Schedule I, and also commercialisation under sections 40 and 43.
The 2022 Amendment, which is more or less certain to pass, will inevitably create new and legal passages for the transfer and trade of elephants. Even in the presence of an explicit prohibition of the commercial transfer of elephants, until 2015, elephant trade continued through back channels. Despite progressive judgments and judicial measures, unchecked and uninhibited capture and trade of elephants has become widespread, with an ever-growing population of thousands of elephants currently living in captivity. In Kerala alone, the suffering and death toll of captive elephants is staggering.
The creation of a categorical departure for "religious and other purposes" effectively deviates from the protectionist roots of the WPA, creating a legal environment where the commodification and exploitation of elephants will only be bolstered.