Kerala High Court: In a suo moto public interest litigation proceedings regarding the exploitation of captive elephants in Kerala, the division bench of Dr A.K. Jayasankaran Nambiar and Gopinath P., JJ., issued a slew of detailed directions complimenting the Kerala Captive Elephants (Management and Maintenance) Rules, 2012 (‘the 2012 Rules’) and the directions issued by the Supreme Court in Wildlife Rescue & Rehabilitation Centre v. Union of India, (2016) 1 SCC 716 (‘Supreme Court directions’).
Background:
Captive elephants are extensively used in religious festivals in the State of Kerala (‘State’) and their use is often sought to be justified on the touchstone of tradition and religious practice while in reality, the animals are being commercially exploited without any care or concern for their well-being. For majority of the year in the State, various festivals are held in every nook and corner and the elephant has become an essential part of such festivities. They are transported in trucks from one festival to another in quick succession inconsiderate of their fatigue, requirement of adequate rest, and proper nutrition. Reportedly, the festivals in Kerala are so commercialised that even before a festival there is a sort of competition amongst temple committees tasked with the conduct of festivals regarding the number of elephants being paraded as well as the fame of particular elephants/ elephants being paraded. From 2018-2024, nearly 33% of the total number of recorded captive elephants have died in the State.
Due to such plight of the elephants, suo moto cognizance was taken by this Court for the effective implementation of the 2012 Rules and the implementation of the Supreme Court directions.
Analysis:
Regarding the contention that the Court should not make law, the Court stated that even if they were to issue certain additional directions to ensure the proper working of the 2012 Rules, the same would also be justified as per the judgment of Anoop Baranwal v. Union of India [Election Commission Appointments], (2023) 6 SCC 161.
The Court further clarified that it is not in the process of making any law while issuing the directions that it proposes to issue in this case. At best, it is only filling up the ‘gaps’ to ensure the proper implementation of the 2012 Rules.
The Court stated that in the aforementioned case, the Supreme Court noted the extreme cruelties being meted out to captive elephants in the State of Kerala and had issued a slew of directions to ensure that captive elephants are not subjected to any cruelty in the name of parading them. However, the State has not complied with any of the directions, as the Court has been unable to find any government order (‘GO’) that deals with their implementation. The Court held that the State has clearly violated the orders of the Supreme Court by granting repeated extensions to abide by the directions of the Supreme Court.
The Court, upon reviewing a Government Order (GO) dated 20-04-2022, observed that the order constitutes a direct affront to the authority of the Supreme Court and represents a blatant violation of its directions. Taking serious note of this, the Court instructed the Principal Secretary of the Forests and Wildlife Department to submit an affidavit clarifying the circumstances under which the said GO, or any subsequent GO of a similar nature, was issued. Furthermore, the affidavit was to indicate whether the Supreme Court’s order has been adhered to and, if not, to provide a detailed explanation for the non-compliance.
Highlighting the exploitative use of elephants in religious festivals, the Court stated that it does not believe that there is any essential religious practice of any religion that mandates the use of elephants in festivals.
Regarding the issue of illegality of the ownership of captive elephants, the Court delved into various provisions of the Wildlife Protection Act, 1972 (‘the 1972 Act’), and noted that it is an admitted position that a good number of elephants in Kerala do not have ownership certificates. The Court noted that it is doubtful whether the elephants that have been given ownership certificates are those hunted per the provisions of the 1972 Act since no such verification appears to be done by the State Government of Kerala. The Court also noted that the possession of the majority of the elephants appears to be illegal, which needs to be verified by the Government.
Noting that the elephants are commonly only fed palm leaves which causes indigestion/constipation and that the Principal Chief Conservator of Forests has already issued a circular with a model feeding schedule, the Court held that this circular is being violated. Thus, the Court further directed that it must be ensured that the person obtaining permission for the parading of elephants and the owner/custodian must be made responsible for ensuring that the model feeding schedule is strictly adhered to.
Coming to the issue of medical certificates, the Court noted that during these proceedings, it has come across situations where fitness certificates have been issued even to sick and infirm elephants. Since captive elephants are succumbing to injuries and ill-treatment in large numbers, the Court opined that the term ‘Veterinary Doctor’ should be confined to a Government Veterinary Doctor as is proposed in the draft Kerala Captive Elephants (Management and Maintenance) Rules, 2023 instead of the definition provided in the 2012 rules which defines them as ‘registered Veterinary Practitioner or an experienced Ayurvedic Elephant Expert’. Stating this, the Court directed that the fitness of elephants was to be examined and certified only by a Government Veterinary Doctor.
Thus, keeping in mind the Supreme Court directions and the various issues highlighted before this Court and for the reasons indicated above, the Court directed the strict implementation of the 2012 Rules and the Supreme Court directions. The Court stated that the directions being issued herewith are in tune with the 2012 Rules, as augmented by the Supreme Court directions and are only intended for an effective implementation of the Statutory Rules. Additionally, noting that the Government is in the process of framing new Rules, the Court stated that these directions are merely meant to clarify the scope of the 2012 Rules in the light of the directions issued by the Supreme Court.
Stating the aforesaid, the Court issued a number of detailed directions concerning the membership of the District Committee Rule 10 of the 2012 Rules, requirements of the application made by festival organizers, conditions that need to be satisfied for grant of permission for an exhibition, working conditions and environment of the elephants including their transportation and evacuation in case of fire, which fitness certificates can be accepted by the District Committee, which practice cannot be permitted such as Elephant Squads, maintenance of registers, and prohibition of the use of any ‘capture belt’.
Thus, the Court lastly directed that the competent authority of the Government of Kerala to ensure strict implementation of the aforesaid directions and guidelines, if necessary, by issuing necessary orders and communicating the directions/guidelines framed by this Court to all stakeholders.
[In Re Captive Elephants, 2024 SCC OnLine Ker 6897, decided on 13-11-2024]
Advocates who appeared in this case :
For the Respondent: Sri. Jaishankar V. Nair, Deputy Solicitor General of India, Sri. Achuth Krishnan R, Central Government Counsel, Shri. Asok M. Cherian, Addl. Advocate General, Shri. P. Narayanan, Addl. Public Prosecutor, T.S. Shyam Prasanth, Government Pleader, Ysha Youseff, Standing Counsel, Manu Govind, Standing Counsel, Shri. P. Narayanan, Addl. Public Prosecutor, Sri. M.R. Hariraj, Senior Advocate, Ganga A. Sankar, Rejivue K.C., Thanuja Roshan, Chackochen Vithayathil, Vishnu Rajagopal, Viswajith C.K, Gisha G. Raj, Alina Anna Kose, Alina Anna Kose, Karthika Ganesh, P.I. Raheena, Vishnu Prasad N.K., Sandhra Maria Sebastian, V.M. Krishnakumar, P.S. Sidharthan, K. Sandesh Raja, Denu Joseph, Aswin T Suresh, Muhiseena V.Z, Smt. Dhanya P. Ashokan, Senior Advocate, Gayathri Muraleedharan, Ramakrishnan M.N., Arathy P. Bhanu Thilak & S.R. Prasanth, P.K. Suresh Kumar, Senior Advocate, Smt. Anjali Menon, V. Sreejith, Mansoor B.H. & Sakeena Beegum, Shankar V., T.H. Abdul Azeez, Mohammed Sadique T.A, K.P. Majeed, K.M. Mohammed Yusuff, P.B. Krishnan, Senior Advocate, P.B. Subramanyan, Sabu George, B. Anusree, Manu Vyasan Peter, G. Sreekumar (Chelur), and Anjali Menon.
