State of Environmental Legislation in India: The Elephant in the Room

Esha Patel, FLAME University

Elephants are a revered species in India with great cultural, historical, environmental, and religious significance. They stand as one of the crucial pillars of conservation, holding the title of The Heritage Animal of India. “The latest census conducted by the Union ministry of environment, forests and climate change estimates the exact population of the Indian elephants is 27,312” (Nandi, 2017). While the population of elephants in India is largely stable, there is a slow but noticeable trend of decline that must be taken as a warning signal. 

Listed as “Endangered” on the IUCN Red List, Asiatic Elephants hold several legal protections in India. Elephants are afforded maximum protection under section 40 (2) of India’s Wildlife Protection Act, 1972. The most prominent of those being the classification of the species as a Schedule I Animal under the Wildlife Protection Act of 1972 (WPA). Under this act, hunting and even possession of a captive animal, animal article, meat or animal trophy is classified as an offense. Additionally, “Under Section 52 of the Act, an attempt or an abetment of an offense under the Act is deemed to be equivalent to committing the offense itself” (Basker, 2014). Any individual found to have committed such an offense may face imprisonment of up to seven years or a fine of maximum twenty-five thousand Rupees. Offenses against any schedule I species under the WPA are non-bailable. The Act also bans the sale of captive elephants not registered with the forest department. Yet, people continue to exploit loopholes to commercially exploit these animals at will.

Elephants are migratory animals that require large tracts of forest land in order to sustain their sizeable appetites. Growing rates of deforestation coupled with a rapid rise in human encroachment in and around elephant habitats have put both species on the frontline of a dangerous conflict. “The recent incident of a female wild elephant in Kerala falling prey to crude bait meant for wild boar sheds light on the widespread issue of human-wildlife conflict in the state” (Shaji, 2020). Such events are not that rare; rather, they are reflective of the scale at which human-animal conflict has risen in recent years. In an event such as this, where sentiments run high, it is essential to consider the viewpoints of all the stakeholders. Elephants often raid agricultural fields due to a reduction in their own natural food supply. In turn, although it is an illegal practice, makeshift explosives such as these are often used by local/ indigenous communities to keep wild animals away in order to protect their crops. They are driven to undertake such drastic measures due to the implications that the crop loss caused by elephants and other wild animals can have on their livelihood. For most farmers, the damage is an expense that is too heavy to bear and often leads to tremendous debt, leaving them with little choice. Villainising already marginalized communities often exaggerates the othering of these communities and promotes the narrative that derives its strength from oppression and discrimination.  

“Long-term resolution of human-elephant conflict and promotion of peaceful coexistence requires a simultaneous focusing of management efforts on site-specific considerations as well as the formulation and application of strategic plans at the landscape level that directly address underlying anthropogenic drivers and their Spatio-temporal variations” (Shaffer et al., 2019). Policy formulation and mitigation measures for wildlife conservation must take into account the local communities that depend on the same resources as the elephants for their sustenance. More effort must be put into educating the stakeholders of the need for conservation. This can be achieved by adopting a more nuanced ‘Community-Based’ mitigation system. For years there have been fatalities on both sides of the conflict, but this can be easily avoided in the future. Research regarding conflict mitigation practices across the globe has shown less harmful and more efficient methods of keeping wild animals away from agricultural lands, such as bee-fences, chili smoke, acoustic, and light-based deterrents, to be extremely effective. Monetary compensation for crop loss can also be an efficient incentive to encourage more positive interactions between elephants and humans.

“The law stands at an absurd crossroad today. Of the several hundred animals protected under the Wildlife Protection Act, only the elephant, a National Heritage Animal, with the highest protection under Schedule I, can be legally owned by a private individual” (Hisarwala, 2020). Captive elephants enjoy few protections that their wild counterparts are granted, bearing status and protections similar to that of livestock. Although they are a Schedule I species, Private ownership of Indian Elephants is allowed under the WPA. Sections 42 makes provisions for the Chief Wildlife Warden (CWLF) or any Authorised Officer (AO) to grant individuals they deem fit private ownership of elephants through a “Certificate of Ownership.”

When the act first came into existence, private owners were given a chance to declare ownership (within thirty days of the act’s enactment) and the granted legal ownership if the CWLW or any AO deemed them fit to be in possession of an elephant. Private owners were offered another amnesty period to declare and acquire legal ownership in the year 2003. The ownership of these elephants can be transferred through inheritance, gifting, or donation if the CWLW or AO permits it. This provision has been gravely misused. While zoos and circuses do not require a certificate of ownership, they need the approval of the Central Zoo Authority (CZA). Captive elephants are protected by other laws such as the Prevention of Cruelty to Animals, 1960, Performing Animals (Registration) Rules, 2001, and the Guidelines for Care and Management of Captive Elephants issued by the MOEFC under Project Elephant in 2008.

“As per the latest figures, close to 2,500 elephants in India are kept in captivity. The majority, close to 1,687, are with private individuals and the remaining with zoos, circuses, and temples” (Hisarwala, 2020). Elephants are complex intelligent and social beings that, when held captive, are often forced to live in subpar, isolated, and unhealthy conditions that tend to have negative repercussions on the elephant’s physical and mental health. Across India, captive elephants face harsh living conditions that do not conform to their natural habitats. Whether they are forced to travel on scorching concrete as begging elephants, chained to a spot as “blessed” temple elephants or rides for tourists, life in captivity is certainly torture enforced upon these creatures who deserve to live free lives. Most mahouts (caretakers) who are in possession of these elephants are very poor and cannot afford to take adequate care of them. The elephants are their only source of income and must, therefore, be utilized to maximum capacity. This situation has devastating consequences for the elephants and none for the mahouts. This is because most laws that act as safeguards for captive elephants have either minimal to no punitive measures. For instance, the under Section 31 of the  Prevention of Cruelty to Animals act, any act of cruelty (which includes killing an animal) is punishable with a fine of maximum one hundred rupees or imprisonment up to three months or both. This punitive measure is not enough to act as a deterrent and cases of abused, starved and overworked elephants are far too common for it to be acceptable. The current spread of the Covid-19 Pandemic is bound to worsen the situation beyond repair.

The Indian elephant is an endangered species that faces enough challenges in order to survive in its natural habitat. As humans, we have single-handedly made the situation a hundred times more complicated, with our actions ranging from habitat destruction to our role in the exponential worsening of the global climate change phenomenon. For the elephants to have a fighting chance, we must ensure that private ownership of elephants in India is eradicated. Provisions must be made to rehabilitate every captive elephant back into the wild.

There are challenges even to this model. Instances such as “the situation where ten captive elephants used for tourist rides in Goa, despite having been seized by the Forest Department, remain in the custody and possession of private owners as there are no alternative sanctuaries. These elephants are being loaned for beach wedding processions with complete impunity”(Hisarwala, 2020). If a change is to be made at such a large scale, there must be active involvement of the state. Greater funds must be deployed to ensure that there are enough rehabilitation facilities to accommodate both the elephants and their mahouts.

Thus, while at first glance elephants enjoy legal remedies that promise the highest level of protection available in the country, it becomes clear that there is a long way to go before elephants in India are truly safe. Conservation of the Indian Elephant is an ambitious, multifaceted venture involving measures from strengthening and better implementation of existing laws to complete overhaul of an entire industry. Although it may seem daunting, such drastic measures need to be undertaken because inaction today could compromise our ability to take action tomorrow.

---

Esha Patel is a student at FLAME University. She can be reached at esha.patel@flame.edu.in.

---

Photo Credits: Palani Mohan/AFP

Footnotes/ References

1. Basker, A. (2014). “Offences Under The Wild Life (Protection) Act, 1972: A Discussion based on Case Law.” Wildlife Protection Society of India, Retrieved from here.
2. Hisarwala, A. (2020). “ India is pushing a plan to protect elephants in the wild but is ignoring animals in captivity.” Scroll.in, Retrieved from here.
3. Nandi, J. (2017). “India’s Elephant Population Stable: Census.” The Economic Times, Retrieved from here.
4. Narayanan, N. (2015). “Elephant protection in India is about more than banning them in temples.” Scroll.in, Retrieved from here.
5. Shaji, K. (2020). “Elephants become collateral damage in the fight against crop raiding ” Mongabay, Retrieved from here.
6. Shaffer, L. & Khadka, K ., Hoek, J & Naithani, K. (2019). “Human-Elephant Conflict: A Review of Current Management Strategies and Future Directions.” Frontiers in Ecology and Evolution. 6. 235. Retrieved from here.