Counterview: Proposed changes to Wildlife Protection Act will not legalise elephant trade

Alok Hisarwala’s recent article on Scroll.in (India’s elephants will suffer huge setback if proposed changes to Wildlife Protection Act are passed) is in line with the viewpoint of the animal rights activists, but his interpretation of the Wildlife (Protection) Act, 1972 and the Wildlife (Protection) Amendment Bill, 2021, needs some clarification.

It is wrong to say that elephants are the only wild animals that can be legally owned by a private individual. A person can keep and own any wild animal covered under Schedule-II (Part-I), Schedule-III and Schedule-IV of the Wildlife (Protection) Act provided he procures the same from a legal source.

One can also own any wild animal covered by Schedule-I and Schedule-II (Part-II) on the strength of an ownership certificate issued by the Chief Wildlife Warden. However, the Chief Wildlife Wardens have generally been very conservative in issuing ownership certificates.

Commercial trade

Clause 27 of the Amendment Bill refers to Section 43 of the Wildlife (Protection) Act that deals with “the transfer of ownership” of captive elephants and not with the “commercial trade” of elephants. The commercial trade of elephants was banned under Section 49B, which was inserted in the Act in 1986 and is not affected by the Amendment Bill.

Elephant was in Schedule-II (Part-I) in the original Act and, therefore, capture and trade of elephants were permissible with due permission from the prescribed authorities. Elephants were brought under Schedule I in October 1977. Consequently, the capture of elephants for commercial purposes was prohibited under Section 9.

The trade in elephants was still possible on the strength of a dealership licence issued by the Chief Wildlife Warden under Section 44. However, to the best of my knowledge, no such dealership license was ever issued in India. After 1986, no dealership licence for elephants can be issued in view of Section 49B.

The Amendment Bill does not impact Sections 9 and 49B of the Wildlife (Protection) Act that prohibit capture and trade of elephants respectively. It is, therefore, inappropriate to suggest that the Amendment Bill seeks to legalise the trade of elephants.

Captive elephant

Listing of elephants in Schedule-I in 1977 brought captive elephants for the first time under the purview of the ownership certificates. Section 43 of the Act permitted the holders of ownership certificates to transfer elephants to other persons, zoos and the government departments with prior permission of the Chief Wildlife Warden.

In the course of time, stricter conditions were imposed for issuing ownership certificates to ensure that the captive elephants are possessed only by persons and agencies having necessary facilities. Legally owned captive elephants are also implanted with microchips to prevent fraud. The transfer of ownership of captive elephants under Section 43 continued without problems till the year 2003.

Section 43 was amended in 2003. The intention of the amendment was to stop the further circulation of hides, articles and trophies derived from species under Schedule-I and Schedule-II lying in the custody of private persons with ownership certificates. The prohibited items were expected to perish with the passage of time.

The transfer of captive elephants covered by ownership certificates was not intended to be stopped, but this too got prohibited since elephant was also under Schedule-I. The mistake was detected when the Amendment Bill was being processed in the Parliament and the ministry decided to fix it at a later date.

In December 2003, the steering committee of Project Elephant also recommended that captive elephants be exempted from the prohibition under the revised Section 43. Accordingly, a draft Amendment Bill meant to re-amend Section 43 was introduced in the Parliament in the year 2004-05 but it could not be pursued in the changed political scenario in the country. The amendment proposed in Section 43 in the Amendment Bill of 2022 is nothing but an attempt to fix an old error.

Section 43, as amended in 2003, has not done any good to the captive elephants. The Government has made no arrangement to take the custody of captive elephants from their lawful owners. On the other hand, after the ban on logging operations in North East India and the Andaman and Nicobar Islands, a large number of owners are not in a position to bear the expenses on the upkeep of their elephants.

The problem has been aggravated all over the country during the recent lockdown forced by Covid-19. But the owners are unable to transfer their elephants legally to other interested persons, zoos and government agencies because of the restrictions imposed by Section 43.

This has led to a paradoxical situation where an owner is forced to retain an elephant though he is no longer in a position to do so. This is having an adverse impact on the well-being of the captive elephants as many owners are finding it difficult to arrange proper food and medicines for their elephants and engage mahouts to look after them.

Elephant owners have been reacting to this situation in various ways. Some owners in Assam and the Andaman and Nicobar Islands have simply abandoned their elephants in the forests where they are raiding crops and occasionally killing people. Many owners have twisted the law in connivance with the forest officers and sold their elephants to persons in other parts of the country under the garb of “lease” and “gift” to bypass the prohibition under Section 43. Some of the captive elephants have allegedly been sold in Nepal and Bangladesh too.

Hisarwala has cited the case of the elephant Joyamala and referred to Chaturbhuja Behera’s report, but he has failed to appreciate that these cases have happened despite the prohibition on the transfer of captive elephants imposed by Section 43 in 2003. Section 43 in its present form appears to have led to the distress sale of captive elephants and encouraged unscrupulous traders to take advantage of the situation.

One needs to keep the aforesaid context in mind to appreciate the logic behind the current proposal to amend Section 43. The amendment seeks to restore the practice in respect of transfer of ownership of captive elephants to the pre-2003 status with additional conditions to be framed by the Central government. It does not compromise with the safeguards available to the wild elephants under the Wildlife (Protection) Act.

‘Cattle’ is not derogatory

Hisarwala has highlighted the use of the term “cattle” used for captive elephants in the original Act and found it “derogatory and exploitative”. He is mistaken because the term “cattle” was only to be used for captive elephants grazing illegally in the government forests, National Parks and sanctuaries. The definition of “wild animal” in the original law ensured that captive elephants continued to enjoy the status of a Schedule-I species. For example, the Wildlife (Protection) Act prescribed the same penalty for killing an elephant – whether found in the wild or in captivity.

The term “cattle” was dropped from the Wildlife (Protection) Act in 1991 but the term “vehicle” still includes elephant. The Indian Forest Act, 1927 and the Cattle Trespass Act, 1871 still regard captive elephants as “cattle” for certain purposes. The Department of Animal Husbandry had included domesticated elephants as “livestock” for the purpose of the 20th All India Livestock Census in 2019.

The terms “cattle”, “livestock” and “vehicle” only indicate the use of captive elephants in certain specified conditions and do not have any derogatory or exploitative connotations. The fact that the Government of India has declared elephants as the National Heritage Animal should set at rest any doubt about the status of elephants in the country.

No setback

Contrary to what the title of Hisarwala’s article seems to suggest, India’s elephants are not likely to suffer any setback if the Amendment Bill is passed. According to the estimates of the Ministry of Environment, Forest and Climate Change, the population of captive elephants in the country has gone down from about 3,500 in the year 2000 to about 2,700 during 2018-’19.

On the other hand, the population of wild elephants has shown an increase from about 25,600 in the year 1993 to about 30,000 in the year 2017. There is no apparent correlation between the two populations.

The captive elephant population is augmented by occasional capture of problem elephants by the State Forest Departments and a limited breeding of elephants in captivity. This augmentation is not enough to match the rate of mortality due to old age and sickness. There is no likelihood that the negative trend in the population of captive elephants will get reversed by the proposed amendment in Section 43. The animal rights activists will surely not call this scenario a setback.

On the other hand, Section 43 had not impacted the wild elephant population before 2003 when the transfer of captive elephants covered by the ownership certificate was permissible. There is, therefore, no reason to apprehend that the restoration of Section 43 to its pre-2003 status would affect the wild elephant population adversely.

The potential threats to India’s wild elephant population come from habitat degradation, poaching of tuskers for ivory and retaliatory killing of elephants involved in the human-elephant conflict. All these threats have no linkage with Section 43. Therefore, the setback for the wild elephants will surely not come via the proposed amendment in Section 43.

SS Bist is a former member of the Indian Forest Service who retired as the Principal Chief Conservator of Forest and Head of Forest Force (West Bengal).