Kerala High Court
In Re Captive Elephants vs Union Of India on 13 November, 2024
Bench: A.K.Jayasankaran Nambiar, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
Wednesday, the 13th day of November 2024 / 22nd Karthika, 1946
WP(C) NO. 31520 OF 2024(S)
IN RE CAPTIVE ELEPHANTS
(SUO MOTU) PUBLIC INTEREST LITIGATION PROCEEDINGS INITIATED BY THE HIGH
COURT IN THE MATTER OF EXECUTIVE AND LEGISLATIVE INACTION OF THE STATE
GOVERNMENT IN THE MATTER OF PROTECTION OF ANIMAL RIGHTS
RESPONDENTS:
1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FISHERIES,
ANIMAL HUSBANDRY AND DAIRYING DEPARTMENT OF ANIMAL HUSBANDRY AND
DAIRYING, GOVERNMENT OF INDIA, KRISHI BHAVAN, NEW DELHI, PIN 110 001
2. THE ANIMAL WELFARE BOARD OF INDIA, REPRESENTED BY ITS CHAIRMAN,
NATIONAL INSTITUTE OF ANIMAL WELFARE CAMPUS P.O., 42K STONE, DELHI-
AGRA HIGHWAY, NH-2, VILLAGE -SEEKRI, HARYANA, PIN 121004
3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,
THIRUVANANTHAPURAM, PIN 695036
4. STATE OF KERALA, REPRESENTED BY THE SECRETARY, ANIMAL HUSBANDRY
DEPARTMENT, THIRUVANANTHAPURAM, 695036
5. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT, THIRUVANANTHAPURAM, 695036
6. THE KERALA STATE ANIMAL WELFARE BOARD, THIRUVANANTHAPURAM , PIN 695036
7. THE KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY, POOKODE, LAKKIDI
P.O., WAYANAD, PIN 673 576
8. THE STATE POLICE CHIEF, KERALA, THIRUVANANTHAPURAM,PIN 695010
9. ANGELS NAIR, GEN. SECRETARY, ANIMAL LEGAL FORCE INTEGRATION, AGED 54
YEARS, KAPPILLIL HOUSE, PULLUVAZHY P.O., PERUMBAVOOR, ERNAKULAM DIST.,
PIN-683 541.
10.M.N.JAYACHANDRAN, AGED 63 YEARS, S/O K.NARAYANAN NAIR, RESIDING AT
MUNDAMATTOM HOUSE, THODUPUZHA P.O., IDUKKI, 685 584
11.UNION OF INDIA, REPRESENTED BY THE MINISTRY OF ENVIRONMENT FOREST AND
CLIMATE CHANGE (FOREST AND WILD LIFE DIVISION, PROJECT ELEPHANT), NEW
DELHI-110003
12.RADHAKRISHNAN, PANANCHERRY HOUSE, PAYYAPPILLY MOOLA, PUTHUR, THRISSUR,
680014
13.GANESAN, S/O RADHAKRISHNAN, PANANCHERRY HOUSE, PAYYAPPILLY MOOLA,
PUTHUR, THRISSUR, 680014
14.THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS & HEAD OF FOREST FORCE
FOREST HEAD QUARTERS, VAZHUTHACAUD, THYCAUD P.O., THIRUVANANTHAPURAM,
695014
15.THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS (WILDLIFE) & CHIEF WILDLIFE
WARDEN (KERALA), FOREST HEAD QUARTERS, THYCAUD P.O.,
THIRUVANANTHAPURAM, 695014
16.ANEESH MATHEW, AGED 47 YEARS, S/O. MATHEW, RESIDING AT
VENGALISHERRIL VEEDU, CHINNAKANAL PANCHAYAT,
UDUMBANCHIRA TALUK, MUNNAR, PIN :685 618.
17.M/S WALKING EYE FOUNDATION FOR ANIMAL ADVOCACY, REG.NO. 48/2022,
REG.OFFICE AT II/263 A, KAIPARAMBU, THRISSUR DISTRICT, KERALA STATE,
680546 REPRESENTED BY ITS FOUNDER AND MANAGING TRUSTEE, VIVEK
K.VISWANATH, AGED 31 YEARS, S/O K.V.ACHUTHAN, HAVING A PERMANENT
ADDRESS AT KURUNELLIPARAMBIL HOUSE, KAIPARAMBU P.O., THRISSUR 680546
18.V. K. VENKITACHALAM, AGED 73 YEARS, S/O LATE V. N KRISHNA IYER,
RESIDING AT PATTAMALI MADOM, T.C. 35/571, THIRUVAMBADI P.O. , PIN- 680
022.
19.P.PRAVEEN, S/O PARAMESWARAN, MANGALAMKUNNU ANGADI, KATTUKULAM P.O,
PALAKKAD 679 514
20.RAJENDRAKUMAR P., AGED 56 YEARS, S/O GOPALAKRISHNAN, PUTHAN VEEDU,
CHERUPULASSERY, PALAKKAD 679503
21.ABDUL NASAR, AGED 64 YEARS,S/O ABOOBAKAR, KOLAKKADAN HOUSE,
KIZHUPURAMBA P.O., MALAPPURAM DISTRICT[IMPLEADED AS PER ORDER DATED
06.09.2024 IN IA 10/24 IN WP(C)]
22.V.SHAJI, S/O.VISWAMBHARAN,KAVERI,KOLLAM,691302[SUO MOTU IMPLEADED AS
ADDL.R22 AS PER ORDER DATED 27.09.2024 IN WP(C)]
23.HRITHWIK D. NAMBOOTHIRI, PALLERI MANA, ULIYANNOOR P.O, ALUVA
[IMPLEADED AS ADDL. R23 AS PER ORDER DATED 27.09.2024 IN I.A.25/2024
IN WP(C)]
24.M/S KERALA ELEPHANT OWNERS FEDERATION, REPRESENTED BY ITS GENERAL
SECRETARY IN CHARGE RAVINDRANATHAN, AGED 65, S/O SIVARAMAN NAIR,
USHASREE, ETTUMANOOR P O, KOTTAYAM DISTRICT [IMPLEADED AS ADDL.R24 AS
PER ORDER DATED 25.10.24 IN IA 28/24 IN WP(C)]
25.THIRUVAMBADY DEVASWOM, THIRUVAMBADY DEVASWOM OFFICE,THIRUVAMBADY
DEVASWOM BUILDING,ROUND WEST,THRISSUR,PIN-680001,REPRESENTED BY ITS
SECRETARY
26.PARAMEKKAVU DEVASWOM ,PARAMEKKAVU DEVASWOM BUILDING, ROUND EAST,
THRISSUR,PIN 680001,REPRESENTED BY ITS SECRETARY[ADDL.R25 & R26
IMPLEADED AS PER ORDER DATED 05.11.2024 IN IA 13/24 IN WP(C)]
27.KERALA FESTIVAL COORDINATION COMMITTEE, REPRESENTED BY ITS PRESIDENT,
RAJESH PALLATT, AGED 51 YEARS, S/O P R BHASKARAN PILLAI, PALLATTU
HOUSE,
MELAMPARA P.O., KOTTAYAM - 686578.[ADDL.R27 IMPLEADED AS PER ORDER
DATED 05.11.2024 IN IA 29/24 IN WP(C)]
28.RAGI SREEVALSAN, MANAGING PARTNER,SREE MAHESHWAR GROUP,
ANNAMANADA,THRISSUR,680741[ADDL.R28 IMPLEADED AS PER ORDER DATED
05.11.2024 IN WP(C)]
ADDL.R29-R32 IMPLEADED*
29.THE TRAVANCORE DEVASWOM BOARD ,NANTHANCODE, KAWDIAR POST,
THIRUVANANTHAPURAM 695003, REPRESENTED BY ITS SECRETARY
30.THE COCHIN DEVASWOM BOARD, ROUND NORTH, THRISSUR,
KERALA,REPRESENTED BY ITS SECRETARY
31.THE MALABAR DEVASWOM BOARD, HOUSEFED COMPLEX, ERANHIPALLAM P.O,
ERANHIPALLAM, KOZHIKODE,REPRESENTED BY ITS SECRETARY.
32.THE GURUVAYOOR DEVASWOM BOARD, GURUVAYOOR,
THRISSUR-680 101,REPRESENTED BY ITS ADMINISTRATOR
*ADDITIONAL R29 TO R32 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 13.11.2024 IN WP(C)
31520/24
This suo motu writ petition coming on for orders upon perusing the
petition and the affidavit filed in support of WP(C) and upon hearing the
arguments of DEPUTY SOLICITOR GENERAL OF INDIA-in-Charge, SRI.JAISHANKAR
V.NAIR & SRI.ACHUTH KRISHNAN R., CGC for R1, R2 & R11, SRI.ASOK M.CHERIAN,
ADDL. ADVOCATE GENERAL, SRI.T.A.SHAJI, DIRECTOR GENERAL OF PROSECUTION,
SRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR & T.S.SHYAM PRASANTH, GOVERNMENT
PLEADER for R3 to R6 & R8,M/S. AYSHA YOUSEFF, MANU GOVIND, Standing Counsels
for R7, ANGELS NAIR(AS Party-in-Person,R9), SRI.M.R.HARIRAJ (SENIOR
ADVOCATE) a/w M/s.GANGA A.SANKAR, REJIVUE K.C., THANUJA ROSHAN, CHACKOCHEN
VITHAYATHIL, VISHNU RAJAGOPAL, VISWAJITH C.K, GISHA G. RAJ,ALINA ANNA KOSE,
KARTHIKA GANESH, P.I.RAHEENA, VISHNU PRASAD N.K. & SANDHRA MARIA SEBASTIAN
for R10, M/S. V.M.KRISHNAKUMAR & P.S.SIDHARTHAN, Advocates for R12 & R13,
SPECIAL GOVERNMENT PLEADER (FOREST) for R14 & R15, M/s. K.SANDESH RAJA, DENU
JOSEPH, ASWIN T SURESH and MUHISEENA.V.Z, Advocates for R16, SMT.DHANYA
P.ASHOKAN (SENIOR ADVOCATE) a/w M/S. GAYATHRI MURALEEDHARAN, RAMAKRISHNAN
M.N., ARATHY P., Advocates for R17, M/S. BHANU THILAK & S.R.PRASANTH,
Advocates for R18,SRI.P.K.SURESH KUMAR (SENIOR ADVOCATE) along with SMT.
ANJALI MENON, Advocates for R19, M/s.V.SREEJITH, MANSOOR.B.H. and SAKEENA
BEEGUM, Advocates for R20, M/S. SHANKAR V., T.H.ABDUL AZEEZ, MOHAMMED
SADIQUE.T.A, K.P.MAJEED and K.M.MOHAMMED YUSUFF, Advocates for R21,
P.B.KRISHNAN (SENIOR ADVOCATE) a/w M/s.P.B.SUBRAMANYAN, SABU GEORGE,
B.ANUSREE & MANU VYASAN PETER, Advocates for R22, SRI.HRITHWIK D.
NAMBOOTHIRI,(AS PARTY-in-PERSON,R23),SRI.G.SREEKUMAR (CHELUR), Advocate for
R24, SRI.N.K.SUBRAMANIAN,Advocate for R25 & R26, M/s.RENJITH B.MARAR, BASIL
CHANDY VAVACHAN,BASIL SAJAN,FATHIM NAVAS,KAVYA RANI JAYAPRAKASH ,LEKSHMI
PRIYA V.,ANJANA V.,BASIL SCARIA,CHARUTHA BHAIJU and CHANDHANA BHAIJU,
Advocates for R27, SMT.ANJALI MENON, Advocate for R28 and of SENIOR ADVOCATE
S.RAMESH BABU and Adv.T.C.SURESH MENON, AMICI CURIAE,the court passed the
following:
DR.A.K.JAYASANKARAN NAMBIAR & GOPINATH P., JJ.
-----------------------------------------------
W.P.(C)No.31520 of 2024
--------------------------------------------------
Dated this the 13th day of November, 2024
ORDER
Gopinath, J.
'Treblinka' is infamous for being the second-deadliest
extermination camp to be built and operated by Nazi Germany in
occupied Poland during World War II. In the introduction to the book
'Zoopolis - A Political Theory of Animal Rights' the authors1 refer to the
work of Charles Patterson2 in the following words:-
"In Charles Patterson's provocative words, the general state of
human-animal relations is best characterized as an 'Eternal
Treblinka"
This case and the orders that we have been called upon to issue from
time to time regarding captive elephants lead us to conclude that the life
of an elephant in captivity is an 'Eternal Treblinka'.
2. This case has been listed today for considering the issue of
certain directions for the effective implementation of the Kerala Captive
Elephants (Management and Maintenance) Rules, 2012 (hereinafter
1 Zoopolis - A Political Theory of Animal Rights - Sue Donaldson & Will Kymlicka
(2011), Oxford University Press
2 Eternal Treblinka: Our Treatment of Animals and the Holocaust - Patterson,
Charles (2002), Lantern Books, New York
referred to as 'the 2012 Rules') and the directions issued by the Supreme
Court in Wildlife Rescue and Rehabilitation Centre and others
Vs. Union of India; (2016) 1 SCC 716. We have heard Sri. Asok M
Cherian, the learned Additional Advocate General, Sri. Hariraj M.R the
learned Senior Counsel appearing for the Additional 10th respondent,
the learned amicus curiae and other learned counsel appearing for the
parties. Though the Kerala Elephant Owners Federation was impleaded
as the additional 24th respondent on its own application, Sri. Sreekumar
Chelur, the learned Counsel appearing for the additional 24th
respondent submits that the said organization is not interested in being a
party to these proceedings and wishes to withdraw from these
proceedings. In view of the submission of the learned counsel for the
additional 24th respondent that he will place on record a copy of the
resolution of the organization seeking to withdraw from these
proceedings, we have not passed any order today on the basis of his
submission. We have also heard Sri. Renjith Thampan, the learned
Senior Counsel appearing for the petitioner in I.A No. 34 of 2024 which
is an interlocutory application to implead the applicant therein as
additional respondent in the Writ Petition. Though we have not allowed
the said application for impleading, we have considered the submissions
of the learned Senior Counsel. The learned Additional Advocate General
states that the framing of new Rules to replace the 2012 Rules is gaining
the attention of the Government and that a meeting of all stakeholders is
proposed soon and, therefore, this matter may be adjourned. However,
we are not inclined to adjourn this matter. Time and again and for nearly
one and a half years this Court has been informed that the State is in the
process of overhauling the 2012 Rules. However, we are informed that
the authorities are dragging their feet reportedly at the behest of
pressure groups including associations of elephant owners who want the
2012 Rules to be further diluted while the need of the hour was to make
it more stringent. We believe that the issuance of directions for the
proper implementation of the 2012 Rules has become imperative for
reasons that are indicated hereunder. Sri Renjith Thampan contends
that the Court should not make law. He places reliance on the judgment
of the Supreme Court in Ashwani Kumar (Dr) v. Union of India &
Anr, (2020) 13 SCC 585 in support of this contention. We do not
consider this submission of Mr.Renjith Thampan to be of any moment as
even if we were to issue certain additional directions to ensure the proper
working of the 2012 Rules, the same would also be justified on authority
of the judgment of a Constitution Bench of the Supreme Court in Anoop
Baranwal v. Union of India (2023) 6 SCC 161 where it was held:-
114. Apart from the power to make subordinate legislation as a
delegate of the legislature, do the superior courts make law or is it
entirely tabooed? In other words, when the court decides a lis, is the
function of the court merely to apply law to the facts as found or do
courts also make law? The theory that the courts cannot or do not make
laws is a myth which has been exploded a long while ago.
115. We may only in this regard refer to what S.B. Sinha, J. opined on
behalf of this Court in the decision reported in State of U.P. v. Jeet S.
Bisht [State of U.P. v. Jeet S. Bisht, (2007) 6 SCC 586] : (SCC pp. 617-19,
paras 77-78 & 83)
"77. Separation of powers is a favourite topic for some of us.
Each organ of the State in terms of the constitutional scheme
performs one or the other functions which have been assigned
to the other organ. Although drafting of legislation and its
implementation by and large are functions of the legislature
and the executive respectively, it is too late in the day to say
that the constitutional court's role in that behalf is non-existent.
The Judge-made law is now well recognised throughout the
world. If one is to put the doctrine of separation of power to
such a rigidity, it would not have been possible for any superior
court of any country, whether developed or developing, to
create new rights through interpretative process.
78. Separation of powers in one sense is a limit on active
jurisdiction of each organ. But it has another deeper and more
relevant purpose : to act as check and balance over the
activities of other organs. Thereby the active jurisdiction of the
organ is not challenged; nevertheless there are methods of
prodding to communicate the institution of its excesses and
shortfall in duty. Constitutional mandate sets the dynamics of
this communication between the organs of polity. Therefore, it
is suggested to not understand separation of powers as
operating in vacuum. Separation of powers doctrine has been
reinvented in modern times.
***
83. If we notice the evolution of separation of powers doctrine,
traditionally the checks and balances dimension was only
associated with governmental excesses and violations. But in
today's world of positive rights and justifiable social and
economic entitlements, hybrid administrative bodies, private
functionaries discharging public functions, we have to perform
the oversight function with more urgency and enlarge the field
of checks and balances to include governmental inaction.
Otherwise we envisage the country getting transformed into a
state of repose. Social engineering as well as institutional
engineering therefore forms part of this obligation."
116-121.......
122. In the work, The Nature of the Judicial Process by Benjamin N.
Cardozo, in the lecture, "The Method of Sociology -- The Judge as a
Legislator" Justice Cardozo observes under the following subject:
"THE JUDGE AS A LEGISLATOR
... No doubt the limits for the Judge are narrower. He legislates
only between gaps. He fills the open spaces in the law. How far
he may go without travelling beyond the walls of the interstices
cannot be staked out for him upon a chart. He must learn it for
himself as he gains the sense of fitness and proportion that
comes with years of habitude in the practice of an art. Even
within the gaps, restrictions not easy to define, but felt,
however impalpable they may be, by every Judge and lawyer,
hedge and circumscribe his action. They are established by the
traditions of the centuries, by the example of other Judges, his
predecessors and his colleagues, by the collective judgment of
the profession, and by the duty of adherence to the pervading
spirit of the law.
... The process, being legislative, demands the legislator's
wisdom.
... Customs, no matter how firmly established, are not law, they
say, until adopted by the courts. Even statutes are not law
because the courts must fix their meaning. That is the view of
Gray in his Nature and Sources of the Law. "The true view, as I
submit", he says, "is that the law is what the Judges declare;
that statutes, precedents, the opinions of learned experts,
customs and morality are the sources of the law." So, Jethro
Brown in a Paper on "Law and Evolution", tells us that a
statute, till construed, is not real law. It is only "ostensible" law,
real law, he says, is not found anywhere except in the judgment
of a court....
... They have the right to legislate within gaps, but often there
are no gaps. We shall have a false view of the landscape if we
look at the waste spaces only, and refuse to see the acres
already sown and fruitful...
... The Judge, even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant, roaming
at will in pursuit of his own ideal of beauty or of goodness. He
is to draw his inspiration from consecrated principles. He is not
to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by
tradition, methodised by analogy, disciplined by system, and
subordinated to "the primordial necessity of order in the social
life". Wide enough in all conscience is the field of discretion that
remains."
We are clear in our mind, in the facts of the present case, that we are not
in the process of making any law while issuing the directions that we
propose to issue in this case. At best, we are only filling up the 'gaps'. We
are only ensuring the proper implementation of the 2012 Rules also
taking note of the fact that though the Supreme Court had directed its
strict implementation as early as on 18.08.2015, the State and its officials
have failed to implement the directions and have in fact conveniently
chosen to ignore the directions issued by the Supreme Court.
3. In Wildlife Rescue and Rehabilitation Centre and
others Vs. Union of India; (2016) 1 SCC 716, the Supreme Court,
took note of the extreme cruelties being meted out to captive elephants
in the State of Kerala. As early as on 18.8.2015 the Supreme Court issued
a slew of directions to ensure that captive elephants are not subjected to
any cruelty in the name of parading them. It would be apposite, for the
purposes of this order, to extract the directions issued by the Supreme
Court in its order dated 18.08.2015. They read thus:-
"8. As far as the present issue is concerned, we are inclined to direct that
the Chief Wildlife Warden shall see to it that all the captive elephants
existing in the State of Kerala are counted and in the absence of
obtainment of requisite certificate under Section 42 of the 1972 Act and
the declaration made under Section 40, appropriate action shall be
initiated against the owners.
9. At this juncture, we may note with profit that a set of Rules, namely,
the Kerala Captive Elephants (Management and Maintenance) Rules,
2012 (for short "the Rules") has been framed by the State Government in
exercise of power conferred by sub-section (2) of Section 64 of the 1972
Act. Rule 4 of the said Rules deals with upkeep and veterinary care of
elephants. Rule 8 provides for duties and responsibilities of owner. Sub-
rule (13) of Rule 8 which is relevant for the present purpose is as
follows:
"8. (13) Every owner shall maintain an Elephant Data
Book as specified by the Chief Wildlife Warden for each
captive elephant."
The purpose of referring to the said Rule is that an owner of an
elephant, apart from following the other statutory enactments and the
procedure laid down therein, is also required to maintain an elephant
data book, as defined in Rule 2(f) of the Rules specified by the Chief
Wildlife Warden for each captive elephant. The said Rule shall be
religiously followed failing which the authorities shall take appropriate
action against the said person. Rule 9 deals with transport norms for
elephants.
10. Rule 10 provides for constitution of the District Committee. As we
find, the purpose of the said Rule is to deal with the cases of cruelty
meted out to the captive elephants and the constitution of the Committee
is heterogeneous in nature. We have been apprised that in addition to
the members as per the 2012 Rules, at present (from January 2015), a
representative of the Animal Welfare Board of India has been included
apart from other authorities. Sub-rule (4) of Rule 10 which is extremely
pertinent for the present purpose is reproduced below:
"10. (4) The District Committee shall take necessary
measures, to ensure that the Festival Committee constituted for
the smooth conduct of festivals or the persons organising such
functions in which elephants are exposed, shall adhere to the
following--
(i) There shall be sufficient space between elephants
used in processions and parades.
(ii) No elephants in musth shall be used in connection
with festivals.
(iii) Elephant which is sick, injured, weak or pregnant
shall not be used.
(iv) Chains and hobbles with spikes or barbs shall not
be used for tethering elephants.
(v) Elephants shall not be made to walk on tarred
roads during hot sun for a long duration without rest.
(vi) Making an elephant stand in scorching sun for
long durations or bursting crackers near the elephants for
ceremonial purpose shall not be permitted.
(vii) It shall be ensured that sufficient food and water
for the elephants are provided.
(viii) The Committee shall ensure that the flambeaus
(Theevetty) are held away from elephants.
(ix) There shall be facility to keep elephants under
shade during hot sun.
(x) It shall be ensured that adequate protection to the
elephants taking part in celebrations through volunteers is
provided for the purpose.
(xi) Services of veterinary doctor from the elephant
squads shall be ensured in cases where five or more
elephants are engaged in the festivals.
(xii) It shall be informed to the nearest Forest Range
Officer/Police Officers about the proposed
festivals/celebrations at least 72 hours in advance.
(xiii) During the time of procession the elephants shall
have chains (Idachangala and Malachangala) tied to their
leg.
(xiv) It shall be ensured that the mahouts are not
intoxicated while handling elephants.
(xv) The weaned calf below 1.5 m height shall not be
engaged for festival purposes.
(xvi) Sufficient rest has to be given to the elephants
which are engaged for 'Para procession'. Para procession
shall be restricted to 6 a.m. to 11 a.m. and 4 p.m. to 8 p.m.
only.
(xvii) During nighttime, generators shall be provided
to avoid any contingency due to failure of general power
supply.
(xviii) It shall be ensured that elephants are brought
under public liability insurance scheme for an amount of
Rs 3.00 lakhs to each elephant."
On a perusal of the aforesaid Rule, it is clear as crystal that it obliges the
District Committee to take necessary measures to ensure that the
Festival Committee constituted for smooth conduct of the festivals or the
persons organising such functions in which elephants are exposed are
required to adhere to many a measure. The District Committee is bound
by the Rules and see to it that the festival committees follow the same.
11.At this juncture, a question arose whether the temples or the
Devaswom shall get themselves registered with the District Committee
so that there would be effective and proper control. We think that they
should be registered with the Committee and accordingly it is directed
that the registration shall be done within a period of six weeks from
today. The temple and Devaswom shall, apart from other formalities,
also mention how many elephants it is going to use in any festival. It
will be the obligation of the State to see that the registration is carried
out. It shall be the duty of the State, the District Committee,
Management of the Devaswom, the Management of the Temple and the
owners of the elephants to see that no elephant is meted out with any
kind of cruelty and, if it is found, apart from lodging of criminal
prosecution, they shall face severe consequences which may include
confiscation of the elephants to the State."
It appears that the State of Kerala has not complied with any of the
directions issued. It seems that by a later order, the Supreme Court has
clarified that action in terms of the directions contained in paragraph 8
of the above order may be deferred. But we have been unable to find any
other order which deals with the implementation of the other directions
including the direction for registration with District Committees framed
in terms of the 2o12 Rules. 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 orders issued by the Government
are couched in a language that would suggest that the officials are
cracking the whip and calling for strict implementation of the directions
issued by the Supreme Court while in reality, they are orders extending
time, again and again, to comply with the directions issued by the
Supreme Court. One such order namely G.O (Ms.) No. 19/2022/F&WLD
dated 20.4.2022 has been brought to our notice. On our reading, the
order is nothing but a direct affront to the authority of the Supreme
Court and a blatant violation of the directions issued by the Supreme
Court in Writ Petition (Civil) No.743/2014. Considering the directions
issued by the Supreme Court and taking the aforesaid Government Order
into consideration, and in order to provide the Government with a
chance to respond, we intend to direct the Principal Secretary, Forests
and Wildlife Department to place on record an affidavit explaining the
circumstances under which the above G.O or any later G.O on similar
lines was issued. The affidavit shall also indicate whether the orders
issued by the Supreme Court referred to above have been complied with
and if not the reason for non-compliance.
4. Elephants in captivity are extensively used in religious
festivals in the State of Kerala and their use is often sought to be justified
on the touchstone of tradition and religious practice while in reality and
sadly so, the animals are being commercially exploited without any care
or concern for their well-being. We do not believe that there is any
essential religious practice of any religion that mandates the use of
elephants in festivals. We do not, however, propose to say anything more
at this stage since our focus now is merely to regulate the practice of
parading elephants during festivals.
5. If a calendar is made of temple festivals and other festivals,
the calendar will indicate that over a period of at least nine months
stretching from the month of September to the month of May in the
following year (April and May being the cruellest of summer months in
Kerala) festivals big and small, famous and non-descript are held in
every nook and corner of this State and the elephant has become an
essential part of such festivities. So much so that the poor animal is
transported in trucks from one festival to another in quick succession
mindless of its fatigue, requirement of adequate rest and requirement of
proper nutrition. In other words, the animal is treated as a tradable
community with its owner or custodian being concerned only with
commercial returns. Reportedly, the festivals in Kerala are now so
commercialised that even before a festival there is a war or 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. We are informed
that about three years ago a temple in the City of Kochi spent about
Rs. 55,00,000/- (Fifty-five lakhs only) in arranging elephants for an
eight-day festival.
6. There is no greater proof of the fact that captive elephants are
being exploited for commercial gains mindless of their well-being than
the statistics of captive elephant deaths in the State of Kerala for the
years 2018-2024 which indicate that nearly 33% of the total number of
recorded captive elephants (being 509 in the year 2018) have died during
this short period of seven years. Thus, there has been a significant
reduction in the captive elephant population in the State. This is a cause
of serious concern. The numbers of captive elephants that have died in
captivity between the years 2018 to 2024 are given below:-
Year Number of Elephants that
have died in captivity
We also note that at least on two occasions the death of elephants
belonging to the Travancore Devaswom Board resulted in proceedings
being initiated before this Court. The first case that came to our notice is
the case of Sreekumar v. Travancore Devaswom Board, 2004
SCC OnLine Ker 180. The other case is P. Prema Kumar v.
Travancore Devaswom Board, 2022 SCC OnLine Ker 4268. A
reading of both these judgments indicate that even elephants in the
control and custody of Devaswoms (which are statutory bodies under the
Travancore-Cochin Hindu Religious Institutions Act, 1950) lost their
lives due to ill-treatment and cruelty meted out to them by their
custodians. This cannot be permitted to continue. These judgments shall
be annexed to this order as Annexures-I and II.
7. The Asian elephant is an endangered cornerstone species,
included in Schedule I of the Wildlife Protection Act, 1972 (hereinafter
referred to as the '1972 Act'). Prior to 1986, Asian elephants were
included in Part I of Schedule II of the 1972 Act. This enabled the
capturing of elephants under a special license issued under the 1972 Act.
However, since 1986, Asian elephants have been included in Schedule I
of the 1972 Act. Under Sec. 2(16) of the Act, capturing animals amounts
to 'Hunting'. Sec. 9 prohibits hunting except as provided under Sections
11 or 12. Sec. 12 refers to a case of special permission by the Chief Wild
Life Warden (CWLW) for individuals for specific purposes mentioned
therein to hunt animals on payment of a special fee for the same. Under
Sec.11, any wild animal included in Schedule I can be hunted only if there
is a written order of permission by the CWLW, which can be issued on
being satisfied that the animal has become dangerous to human life or is
so disabled or diseased as to be beyond recovery. On being hunted, the
animal can be kept in captivity only if the CWLW for reasons recorded
finds that it cannot be rehabilitated. Apart from these, Sec. 29 deals with
the special case of hunting in a sanctuary, and Sec. 35(6) deals with
hunting in a National Park. Permission under Sec. 11 is also necessary to
hunt in a sanctuary or National Park but with more stringent conditions.
As per Sec. 39, every wild animal, hunted otherwise than under Sec. 12,
or kept or bred in captivity or hunted in contravention of any provision
of the Act shall be the property of the State Government (unless the
animal is hunted from a sanctuary or national park, when it shall become
the property of Central Government). Thus, a wild animal which is in
captivity, either legally or illegally, is Government property. A person
obtaining such property shall within 48 hours report it to police or an
authorized officer. Being a Schedule I animal, for an elephant to be kept
in captivity, there needs to be two written orders of the CWLW, one
permitting to hunt, and the other to keep in captivity. An elephant found
in captivity without specific permission under Sec. 11 is held in captivity
in violation of the provision. Either way, every elephant in captivity in
India, is to be considered as Government property. Thus, no person can
in fact own an elephant in the strict sense of the term 'ownership'. We
are informed by Sri. Hariraj M.R, the learned Senior Counsel appearing
for the 10th respondent that this issue has been specifically raised before
the Honourable Supreme Court of India, in Wildlife Rescue &
Rehabilitation Centre (supra). However, the decision thereof is
deferred till the final disposal of the said writ petition.
8. It can be seen that under Sec. 40 of the 1972 Act, anyone with
custody, possession or control (not ownership) of a captive animal
mentioned in Schedule I is to declare the same to the CWLW within
thirty days from the date of commencement of the Act. An amnesty was
provided by the Central Government from 18-4-2003 to 18-10-2003 for
this. The certificate referred to in Sec. 42 of the Act, though referred to as
"Ownership Certificate," is only a certificate for the purpose of Sec. 40.
The Certificate, as per Sec. 40(2A), is required for the purpose of
acquiring, receiving, keeping in control or custody or possession after the
commencement of the Act, which can be done only with prior permission
of the CWLW. Thus, all persons having possession of an elephant ought
to have declared it under Sec. 40, and obtained certification under Sec.
42. If the acquisition of the elephant was after 1986, prior permission
from the CWLW also was necessary for the same. Apparently,
irrespective of the certificate issued under Sec. 42, the ownership of the
animal statutorily vests with the Government. This issue however
remains to be decided by the Apex Court. It is now an admitted position
that a good number of elephants in Kerala do not have ownership
certificates. Whether the elephants which have been given ownership
certificates are those hunted in accordance with the provisions of the Act,
is doubtful. No such verification, regarding the existence of orders under
Sec. 11(1)(a) to hunt, and under the second proviso to Sec. 11(1) to keep
the animal in captivity, issued by CWLW of the respective State, appears
to be done by the State Government of Kerala. The fact that there are
many elephants without ownership certificates was noticed by the
Honourable Supreme Court in Wildlife Rescue & Rehabilitation
Centre (supra). It was also directed that the State shall conduct a
verification and in the absence of a declaration and certificate under Sec.
40 and 42 appropriate actions must be taken. However, what the
Government of Kerala sought to do was to issue an order giving a further
amnesty. An updated list of captive elephants as on 23.08.2024
submitted by the Forest Department, shows 388 captive elephants out of
which 349 are with private persons. Many of the elephants, on the list
have no ownership certificate. The name of the custodian, and the name
of the owner as per the ownership certificate/ microchip certificate are
different. As such, the possession of the majority of the elephants
appears to be illegal, which needs to be verified by the Government.
9. The Prevention of Cruelty to Animals Act, of 1960 prohibits
cruelty to animals. Cruelty includes (Sec. 11) causing unnecessary pain or
suffering, employing in work or labour without concern to the infirmity,
wound etc. of the animal or some other cause, etc. The keeping of an
animal in a cage or receptacle which is not of sufficient size restraining
the animal's reasonable movement, keeping it tethered for unreasonable
time etc. is cruelty. Refusing proper food and water is cruelty. It is the
responsibility of the State to ensure that animals which are its property
shall not be subjected to cruelty.
10. It is common knowledge that elephants are fed palm leaves
alone which causes indigestion/constipation in elephants. The Principal
Chief Conservator of Forests has already issued a circular vide.,
No.1/2019 dated 22.1.2019 wherein it is observed as follows:
"Increase in mortality in captive elephants in recent
times is suspected to be caused by improper upkeep,
poor management (without considering biological
requirements) of these pachyderms, lack of timely
treatment etc. Instructions on strengthening of
implemental of legal provisions and also its monitoring
were issued vide. Ref.(i) and (ii) circulars. An expert
committee consisting of experienced Veterinarians and
chaired by the APCCF (BDC) was constituted by the
Chief Wildlife Warden vide., Ref.(iii) to critically
analyse these deaths and to propose remedial
measures. The committee, among other things, found
that prolonged malnutrition, faulty feeding practices,
over work and inadequate rest caused physiological
and psychological stress to the animals, which
predisposed these animals to many diseases leading to
their death. The Committee's findings and proposed
remedial measures for ensuring welfare of these
animals in captivity were critically examined and the
following instructions are issued for immediate
compliance by all stake holders in the management of
these animals in captivity."
This circular contemplates a model feeding schedule for captive
elephants in Kerala (Appendix-I to the circular). The circular is clearly
violated. Therefore it must be ensured that the person seeking and
obtaining permission for the parading of elephants and the
owner/custodian must be made responsible to ensure that the model
feeding schedule is strictly adhered to.
11. The term 'Veterinary doctor' is defined in Rule 2(i) of the
2012 Rules as a 'registered Veterinary Practitioner or an experienced
Ayurvedic Elephant Expert'. We have, in the course of the proceedings,
in this case, come across situations where fitness certificates have been
issued even to sick and infirm elephants and there are even instances
where totally contradictory certificates are issued regarding the fitness of
an elephant for parade. Since captive elephants are succumbing to
injuries and ill-treatment in large numbers, we are of the opinion that
the term 'Veterinary Doctor' should be confined to a Government
Veterinary Doctor as is proposed in the draft Rules viz., Kerala Captive
Elephants (Management and Maintenance) Rules, 2023. It is therefore
necessary to direct that the fitness of elephants be examined and
certified only by a Government Veterinary Doctor.
12. The learned amicus curiae has brought to our notice the fact
that certain 'competitions' among elephants such as head lifting contests,
saluting, showering of flowers etc. are being held as part of certain
festivities. The learned amicus curiae informs us that there is a practice
now introduced at the 'Thirunakkara Pooram' which is to make the
elephant stand on two rear legs and salute. If such competition/show is
permitted such activities will clearly fall within the purview of the
Performing Animal (Registration) Rules, 2001.
13. As already noted some of the festivals are held in the cruellest
of summer months. The parading elephants without adequate shelter
overhead clearly amounts to cruelty. We are therefore of the opinion that
arrangements have to be made to ensure that the Elephant is not
pararded or made to stand at a particular place for more than 10 minutes
without shade. The festival organizers have to ensure that necessary
arrangements are made to provide for adequate roofing when an
elephant is paraded.
14. Thus, keeping in mind the directions issued by the Supreme
Court in the order dated 18.08.2015 in Wildlife Rescue and
Rehabilitation Centre (supra) and keeping in mind the various
issues that have been brought to the notice of this Court and also for the
reasons indicated above, we are inclined to direct the strict
implementation of the provisions contained in the 2012 Rules as also the
strict implementation of the order issued by the Supreme Court on
18.08.2015. As already indicated, we are clear in our mind that the
directions being issued by us are in tune with the 2012 Rules, as
augmented by the directions of the Supreme Court and the directions are
only intended for an effective implementation of the Statutory Rules.
Taking note of the fact that the Government is in the process of framing
new Rules, we have taken care not to expand on the extant Rules but
merely to clarify their scope in the light of the directions issued by the
Supreme Court. We have not made any additions to the extant Rules in
any manner. Therefore, the following directions are issued for immediate
implementation:-
(1) In addition to the members of the District Committee constituted
in terms of the provisions contained in Rule 10 of the 2012 Rules, a
person nominated by the Animal Welfare Board of India from among
Animal Welfare Organisations in the District shall be a member of the
Committee3. This direction is thus issued in conformity with what is
stated in paragraph 10 of the order of the Supreme Court in Wildlife
Rescue and Rehabilitation Centre (supra);
(2) The organizer of any festival where a captive elephant is proposed
to be exhibited shall make an application to the District Committee at
least one month prior to the date of the exhibition. This direction
reiterates the direction of the Supreme Court in paragraph
11 of the order of the Supreme Court in Wildlife Rescue and
Rehabilitation Centre (supra). The application shall necessarily
include:-
a) The name and identification details of the elephant/elephants
proposed to be exhibited and also the date/dates on which
such exhibition is proposed;
b) The facilities for temporary tethering of elephants brought for
exhibition;
c) The route through which processions including elephants are
to be conducted and the timing for the same;
3 The order of the Supreme Court in Wildlife Rescue and Rehabilitation Centre
(supra) records that the District Committee under the 2012 Rules includes a
member nominated by the Animal Welfare Board of India though the same is not
mentioned in the 2012 Rules
d) The venue at which the exhibition/ parading of elephants
would be conducted;
e) The elephant's tour schedule covering a period 10 days prior
to the proposed exhibition and 5 days after the proposed
exhibition. The District Committee shall ensure that the
elephant is not compelled to travel and be exhibited without
sufficient rest periods between two exhibitions. Such a rest
period shall not be less than three days (excluding any time
taken for transportation). The District Committee may, taking
into consideration the condition of any captive elephant,
prescribe a longer period of rest. This is a requirement of
Rule 10 (4) (xvi) of the 2012 Rules;
f) Health/fitness certificate showing that the elephant is not
sick, injured, weak, disabled or otherwise unfit for exhibition.
This is a requirement of Rule 10 (4) (iii) of the 2012
Rules;
g) Information relating to the elephant's normal musth period
and a certificate from an authorised veterinary surgeon
regarding the same. This is a requirement of Rule 10 (4)
(ii) of the 2012 Rules;
h) Declaration/Information regarding any instances of the
elephant running amok during the past 12 months from the
date of application. This is a requirement of Rule 10 (4)
(iii) of the 2012 Rules)
(3) The District Committee shall consider such application and grant
permission for exhibition only subject to the following conditions:-
a) The exhibitor shall satisfy the committee that it has made the
arrangements to provide food and water in accordance with the
stipulations set out by the government in Circular 1/2019 dated
22.01.2019 of Principal Chief Conservator of Forests, Kerala, or
any revised stipulation in this regard which the Government
may from time to time promulgate, to all elephants brought for
exhibitions during the time they are in the premises of the
exhibitor. Circular 1/2019 dated 22.01.2019 of Principal Chief
Conservator of Forests, Kerala shall be Annexed to this order as
Annexure-III. This direction is in conformity with
Rules 6 and 10(4)(vii) of the 2012 Rules and Annexure-
III circular of the Principal Chief Conservator of
Forests, Kerala.
b) The exhibitor shall satisfy the committee that it has a
temporary tethering facility complying with the following:-
[Note:- these requirements are mandated by Rules 3,
10(4)(vii) and 10 (4)(ix) of the 2012 Rules]
(i) The temporary tethering site shall be clean and shall
provide a healthy environment with sufficient shade for the
elephants during the rest period. If roofing is provided using
metal or other unbreakable material, gunny bags, grass,
cadjan/palm leaves, etc., must be used to cover it to keep the
shelter cool;
(ii) Each elephant shall be provided with a shelter shed
having a minimum floor area of 9m x 6m and the height shall
not be less than 5.5 m. The tethering site must have sufficient
space for the elephant to move about while tethered and the
tethers shall not be used in a manner that they fully fetter the
movement of the elephant while at the temporary tethering
site ;
(iii) The shelter's floor must be made of natural materials to
keep it dry and clean, and appropriate drainage must be
provided;
(iv) Necessary arrangements shall be in place for prompt
removal of filth and refuse from the shelter and under no
circumstances shall the elephants be made to stand in their
own refuse;
(v) The tethering site must have a continuous supply of
potable water, which shall be accessible to the elephant
without the intervention of any person.
c) The District Committee shall consider the availability of space
inside temples or other places where the exhibition or parading
is proposed and will ensure that no permission is granted unless
the venue where the exhibitions or parading of elephants is
proposed has sufficient space to parade the elephants with (i) a
minimum distance of 3 meters between two elephants,(ii) a
minimum distance of 5 meters from the elephant to flambeau or
any other source of fire, (iii) a minimum distance of 8 meters
from the elephant to the public and any percussion display, (iv)
Necessary barricades are placed between the public and
elephants (v) minimum distance of 100 meters is maintained
from any place where fireworks are used and the place where the
elephants are exhibited (vi) proper shade shall be provided to
ensure that the paraded elephants are not exposed to the hot sun
for elephants and a facility for feeding the elephants and
providing drinking water to the elephants (vii) have a proper
evacuation plan separately for elephants and for the public to be
used in case of any emergency approved by the fire department.
In other words, the number of Elephants that can be paraded
will depend on the availability of space enabling the
maintenance of the minimum distance fixed above inside the
temple or any other place where the parade is proposed. These
requirements are mandated by Rules 10(4)(i), 10(4)
(vi), 10(4)(vii), 10(4)(viii) & 10(4)(ix) of the 2012 Rules.
d) The route for taking out the procession of elephants through
public roads shall satisfy the following:-
[Note:- these requirements are mandated by Rules
10(4)(i), (v) & (viii) of the 2012 Rules]
(i) Have sufficient space to parade the elephants with a
minimum distance of 3 meters between two elephants and
a minimum distance of 5 meters from the elephant to
flambeau or any other source of fire ;
(ii) No procession of elephants through public roads shall
be permitted between 9:00 AM and 5:00 PM.
(4) The District Committee shall also ensure the following while
giving permission to exhibit an elephant:-
a) An elephant shall not be transported between 10:00 PM and
4:00 AM. During this time it shall be ensured that the elephant
is kept at a proper tethering site, either temporary or permanent
provided by the owner or an exhibitor. (See Rule 9 of the
2012 Rules)
b) An elephant shall not be exhibited for a continuous period of
more than 3 hours. (See Rule 10(xvi) of the 2012 Rules)
c) No elephant shall be made to walk for more than 30 KM a
day for the purpose of transportation. All transportation above
30 KM shall be made by vehicle approved for the purpose. The
transportation of the elephant shall not be made for more than
125 KM in a day by any means. No elephant shall be transported
for more than 6 hours in a vehicle in a day and the speed of the
vehicle shall not exceed 25 KM per hour while transporting an
elephant. The officials of the Motor Vehicles Department shall
ensure that Speed Governors are fixed on all vehicles engaged in
the transport of elephants and that the maximum speed setting
is set at the limit fixed above. (See Rule 9 of the 2012 Rules)
d) An elephant shall be ensured at least 8 hours of rest during a
continuous period of 24 hours. (See Rule 10(xvi) of the 2012
Rules)
(5) Since several instances of fitness certificates being issued by
Veterinary Doctors without even inspection of the animal have been
brought to our notice, it is directed that the District Commitee shall
accept fitness certificates issued by Government Doctors only until
further orders. The competent authority in the Veterinary
Department, Government of Kerala will issue the necessary orders
forthwith fixing the modalities for examination and issuance of fitness
certificates, the period of its validity, and the fee to be remitted for
issuance of fitness certificates. The Government Veterinary Doctors
shall mandatorily record any injury that they notice on the elephant
that they are called upon to examine and they will ensure that fitness
certificates are not issued to any elephant that they feel is weak or
infirm in any manner whatsoever.
(6) No contest of the nature noticed in paragraph 12 above shall be
permitted under any circumstances. This is on account of the
provisions contained in the Performing Animal
(Registration) Rules, 2001.
(7) The owner/custodian shall maintain all registers in accordance
with the provisions of the 2012 Rules, and the District Committee
shall verify this before permission is granted to parade any elephant.
(See Rule 8 of the 2012 Rules)
15. In addition to the above, we direct that no organiser or
Devaswom shall permit the deployment of any squads which go by the
name 'Elephant Squads' in any festival or exhibition where elephants
are being paraded. We also prohibit the use of any 'capture belt' or
such other crude and inhuman method of capturing elephants that
may run amok or otherwise misbehave. (See Rule 10(4)(iv) of the
2012 Rules). This shall be included as a condition upon which
permission to parade is being granted.
16. We direct the Principal Secretary, Forests and Wildlife
Department, Government of Kerala to place on record an affidavit
explaining the circumstances under which G.O (Ms.) No.
19/2022/F&WLD dated 20.4.2022 or any later G.O on similar lines
has been issued, in the face of the directions issued by the Supreme
Court of India. The affidavit shall also indicate whether the orders
issued by the Supreme Court referred to above have by now been
complied with and if not the reason for non-compliance. The
competent authority of the Government of Kerala shall 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
order to ensure effective implementation of these orders/ directions
the following are suo motu impleaded as additional respondents 29 to
32 to the Writ Petition:-
1 The Travancore Devaswom Board,
Nanthancode, Kawdiar Post,
Thiruvananthapuram 695003
represented by its Secretary
2 The Cochin Devaswom Board,
Round North, Thrissur, Kerala
represented by its Secretary
3 The Malabar Devaswom Board,
Housefed Complex, Eranhipallam P.O,
Eranhipallam, Kozhikode.
represented by its Secretary.
4 The Guruvayoor Devaswom Board,
Guruvayoor, Thrissur-680 101
represented by its Administrator
Registry shall serve a copy of this order on the respective standing
counsel appearing for Additional Respondents 29 to 32 forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
GOPINATH P.
JUDGE
acd
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Annexure I
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2022 SCC OnLine Ker 4268 : (2022) 6 KLT 140
In the High Court of Kerala at Ernakulam
(BEFORE ANIL K. NARENDRAN AND P.G. AJITHKUMAR, JJ.)
P. Prema Kumar ... Petitioner;
Versus
Travancore Devaswom Board - TDB Represented by
its Secreetary and Others ... Respondents.
Decided on July 26, 2022
Advocates who appeared in this case:
By Advs. R. Krishna Raj
E.S. Soni
Kumari Sangeetha S. Nair
By Advs. SC, Travancore Devaswom Board - TDB
Shri Nagaraj Narayanan, Spl. G.P. (Forest)
Shri G. Biju, SC, Travancore Devaswom Board
K.R. Sunil
N. Mahesh
K. Sasikumar
Bobby George
T.P. Pradeep
Minikumary M.V.
S. Aravind
Aiswarya Venugopal
Krishna Suresh
Eashwary V.
Joy C. Paul
Sri. S. Rajmohan - Sr. Government Pleader;
Sri. K.P. Sudheer - Standing Counsel-Cochin Devaswom Board;
Sri. R. Lakshmi Narayan - Standing Counsel - Malabar Devaswom
Board;
Sri. T.K. Vipindas - Standing Counsel - Guruvayur Devaswom
Managing Committee;
Sri. S. Sujin - Standing Counsel - Sree Koodal Manikkyam
Devaswom
The Judgment of the Court was delivered by
ANIL K. NARENDRAN, J.:-- The petitioner has filed this writ petition
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under Article 226 of the Constitution of India, seeking an order to
constitute a high level committee to enquire into the death of an
elephant by name 'Ambalapuzha Vijayakrishnan' owned by the 1st
respondent Travancore Devaswom Board, which died on 08.04.2021.
The petitioner has also sought for a writ of mandamus commanding the
1st respondent Board to initiate strict action against respondents 7 to
11 for the unnatural death of the said elephant; and a writ of
mandamus commanding the 1st respondent Board to appoint qualified
Veterinary Surgeons.
2. On 29.06.2021, when this writ petition came up for admission,
this Court admitted the matter on file. The learned Standing Counsel
for Travancore Devaswom Board took notice for respondents 1 and 5.
The learned Government Pleader took notice for respondents 2 to 4 and
6. Notice to respondents 7 to 11 was dispensed with. Thereafter, by the
order dated 14.09.2021, this Court issued notice by speed post to
respondents 7 to 11.
3. On 30.11.2021, the 3rd respondent Principle Chief Conservator of
Forests (Wildlife) and the Chief Wildlife Warden, Kerala has filed a
counter affidavit, wherein it is stated that, in connection with the
unnatural death of the elephant 'Ambalapuzha
Vijayakrishnan' (Microchip No. 00065DE38C), aged 52 years, a three
member special team was constituted vide Ext.R3(b) proceedings
dated 09.04.2021, which submitted Ext.R3(c) report dated 02.07.2021.
The findings of the special team in Ext.R3(c) report are as follows;
"1) The first mahout Sri. B. Pradeep of TDB melted cruelty to
"Vijayakrishnan" by torturing, and not providing adequate medical
treatment for "Vijayakrishnan", which resulted in his death. Action
to be initiated against the said mahout under the Wildlife
(Protection) Act, 1972 and Kerala Captive Elephants (Management
and Maintenance) Rules, 2012.
2) TDB officials namely, Sri. Baiju, Deputy Devaswom Commissioner,
Harippad, Sri. K. Jayakumar, Asst. Devasom Commissioner, Sri. K.
Manoj Kumar, Administrative Officer, Ambalappuzha Temple, Sri.
Ajeesh, Second Mahout, and Dr. Dr. Saseendradev Veterinarian
engaged by TDB on contract basis erred in providing adequate
protection and care for the elephant and hence departmental
action has be initiated against them by the TDB authorities.
3) The Assistant Conservator of Forests, Social Forestry, Alappuzha
to include in his investigation the allegations that the first mahout
used to bring his friends for showing how to tame the elephant
"Vijayakrishnan" by beating him and also the problems between
the first mahout and the former mahout Sri. Gopan.
4) Dr. Saseendradev has reported to the Devaswom Commissioner
on 11.03.2018 that some of the mahouts of TDB are drunkards
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and are showing dereliction in care and maintenance of the
elephants owned by TDB. TDB to conduct enquiry and take
suitable action.
5) The elephants of TDB are continuously paraded for the festivals in
the temples of TDB without rest and this has resulted in
deterioration of the health of the elephants leading to death.
Hence TDB to restrict the parading of the elephants to important
festivals alone.
6) The Veterinary officers of the Forest Department may be
entrusted to cross verify the fitness certificate for elephants as
instances of issuing fitness certificates without examining the
elephants were noticed.
7) Officers of the Social Forestry wing to inspect the registers of the
elephants to ensure that the registers are properly updated.
8) Many of the mahouts of TDB are not having proper training or skill
to maintain and care elephants and hence they may be given
training by the Social Forestry wing."
4. In Wildlife Crime (O.R. No. 1 of 2021) registered on 17.01.2022
by the office of the Social Forestry Range Office, Alappuzha, in relation
to the unnatural death of the elephant 'Ambalapuzha Vijayakrishnan',
respondents 7 to 10 herein are arrayed as the accused. In the
additional affidavit filed by the 3rd respondent it is stated that, the 10th
respondent herein, who was the 1st mahout of the tusker 'Ambalapuzha
Vijayakrishnan', has not been arrested, since he is absconding.
5. The 7th respondent Deputy Devaswom Commissioner has filed a
counter affidavit dated 30.11.2021, wherein it is stated that, the local
custodian of the elephant 'Ambalapuzha Vijayakrishnan, is the Sub
Group Officer, Padanayarkulangara Devaswom. Respondents 10 and 11,
who were the 1st and 2nd mahouts, without obtaining any permission,
took the elephant to Thrippangott Devaswom. When it was informed to
the office of the 7th respondent, he immediately directed the Sub Group
Officers concerned to return the elephant to Ambalapuzha. From
04.04.2021 onwards, the elephant was not taking any food.
Immediately, the 7th respondent informed the Veterinary Surgeon to
examine the elephant. Accordingly, the doctors examined the elephant
and treated it with medicines. However, on 08.04.2021, the health
condition of the elephant became worse and it died.
6. The party respondents, namely, respondents 9 and 11 have filed
individual affidavits.
7. The learned Standing Counsel for Travancore Devaswom Board
has filed a statement on behalf of respondents 1 and 5, opposing the
reliefs sought for in this writ petition, wherein it is stated that, though
the elephant 'Ambalapuzha Vijayakrishnan' had some injuries, which
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were not serious enough to cancel the programmes. Constant attention,
care and treatment has been given to the elephant. However it died on
08.04.2021, at the age of 52 years. The Board has already conducted
an enquiry by its Vigilance Wing, by an officer of the rank of
Superintendent of Police. The Board has also initiated steps against the
officials found to be involved in dereliction of duty as disclosed in the
enquiry. In addition to that, the Forest Department is also investigating
the cause of death of the elephant.
8. By the order dated 04.04.2022, this Court directed all concerned
to ensure strict compliance of the provisions under the Kerala Captive
Elephants (Management and Maintenance) Rules, 2012, while parading
elephants in connection with temple festivals, functions, etc. It was
ordered that, the provisions under Rule 10 of the said Rules shall be
complied with in letter and spirit by all concerned and any person, who
contravenes the provisions of the said Rules, shall be dealt with
appropriately, as provided under Section 51 of the Wildlife (Protection)
Act. By the said order, the learned Standing Counsel for Travancore
Devaswom Board was directed to get instructions as to the criteria that
has to be followed by allotting elephants for festivals in temples under
the management of the Board, since parading of large number of
elephants is the practice followed during annual festival in most of the
major temples under the Devaswom.
9. On 08.04.2022, when this writ petition came up for consideration,
the learned Standing Counsel for Travancore Devaswom Board has
made available for the perusal of this Court the circular dated
22.10.1998 and proceedings dated 23.10.2000 regarding allotment of
elephants for festivals in the temples under the management of the
Travancore Devaswom Board.
10. The Circular No. ROC7199/98 dated 22.10.1998 issued by the
Secretary of the Travancore Devaswom Board regarding allotment of
elephants for festivals in temples under the management of the
Travancore Devaswom Board reads thus;
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(underline supplied)
11. Clause (1) of the proceeding dated 23.10.2000 of the Travancore
Devaswom Board reads thus;
(underline supplied)
12. By the order dated 08.04.2022, in addition to the directions
contained in the order dated 04.04.2022, this Court directed all
concerned to scrupulously follow the conditions in circular dated
22.10.1998 and the proceedings dated 23.10.2000, insofar as it relates
to the number of elephants paraded in the festivals in the temples
under the management of Travancore Devaswom Board.
13. On 24.05.2022, when this writ petition came up for
consideration, considering the issues involved in this writ petition, this
Court suo motu impleaded the State of Kerala; Cochin Devaswom
Board; Malabar Devaswom Board; Guruvayur Devaswom Managing
Committee; and Koodalmanikyam Devaswom as additional respondents
12 to 16 in this writ petition.
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14. Heard the learned counsel for the petitioner, the learned
Standing Counsel for Travancore Devaswom Board for respondents 1
and 5, the learned Senior Government Pleader for respondents 2, 4, 6
and 12, the learned Special Government Pleader (Forest) for the 3rd
respondent, the learned counsel for respondents 7 to 11, the learned
Standing Counsel for Cochin Devaswom Board for the additional 13th
respondent, the learned Standing Counsel for Malabar Devaswom Board
for the additional 14th respondent, the learned Standing Counsel for
Guruvayur Devaswom Board for the additional 15th respondent and also
the learned counsel for the additional 16th respondent.
15. The Kerala Captive Elephants (Management and Maintenance)
Rules, 2012 is one made by the State, in exercise of the powers
conferred by sub-section (2) of Section 64 of the Wildlife (Protection)
Act, 1972 and in supersession of the Kerala Captive Elephants
(Management and Maintenance) Rules, 2003. Rule 4 of the said Rules
deals with upkeep and veterinary care of the elephant. As per sub-rule
(1) of Rule 4, for taking care of each elephant, the owner thereof shall
engage a mahout having at least three years of experience in managing
an elephant. As per sub-rule (17) of Rule 4, while issuing medical
certificate, the Veterinary Doctor should verify the original documents
such as ownership certificate of the elephant, (if received from forest
department) microchip certificate, insurance certificate and original
elephant data book to ensure the correctness. The Veterinary Doctor
shall issue the health certificate of the elephant in the prescribed
format shown as Appendix I. As per sub-rule (18) of Rule 4, before any
captive elephant is transported from one place to another, the
Veterinary Doctor shall inspect the elephant and issue a Fitness
Certificate in the form given in Appendix II.
16. Rule 10 of the said Rules deals with the constitution of District
Committee. As per sub-rule (1) of Rule 10, a District Committee shall
be constituted by the District Collector to deal with cases of cruelty
meted out to captive elephants. The District Collector shall be the
Chairman of that Committee and the Divisional Forest Officer shall be
its Convener. The Committee shall consists of the members
enumerated in clauses (3) to (9) of sub-rule (1) of Rule 10. As per sub-
rule (2) of Rule 10, the District Committee shall meet before the
festival season, preferably in the month of October and take necessary
measures to ensure welfare of elephants and public safety. As per sub-
rule (3) of Rule 10, the District Committee shall take steps to
discourage the growing tendency of increasing the number of elephants
in existing traditional festivals and introducing elephants in new
festivals. As per sub-rule (4) of Rule 10, the District Committee shall
take necessary measures, to ensure that the Festival Committee
constituted for the smooth conduct of festivals or the persons
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organizing such functions in which elephants are exposed, shall adhere
to the matters enumerated in clauses (i) to (xviii). As per clause (i) of
sub-rule (4), there shall be sufficient space between elephants used in
processions and parades. As per clause (ii) of sub-rule (4), no elephant
in musth shall be used in connection with festivals. As per clause (iii) of
sub-rule (4), elephant which is sick, injured, weak or pregnant shall not
be used.
17. In Sree Kumar v. Travancore Devaswom Board [(2005) 1 KLT
43], in the context of the Kerala Captive Elephants (Management and
Maintenance) Rules, 2003, a Division Bench of this Court held that the
Travancore Devaswom Board is the custodian of the animals which are
entrusted by the devotees with the fervent hope and expectation that
they will be looked after well. These animals are in a way offerings to
the deities. Therefore, it is the paramount duty and responsibility of the
Board to take proper care of these animals at all costs. If the animals
are not looked after well, necessarily it will amount to cruelty to them.
This, in turn, will attract the provisions of the Prevention of Cruelty to
Animals Act, 1960.
18. Section 51 of the Wildlife (Protection) Act, 1972, deals with
penalties. As per sub-section (1) of Section 51, any person who
contravenes any provision of this Act (except Chapter VA and section
38J) or any rule or order made thereunder or who commits a breach of
any of the conditions of any licence or permit granted under this Act,
shall be guilty of an offence against this Act, and shall, on conviction,
be punishable with imprisonment for a term which may extend to three
years or with fine which may extend to twenty-five thousand rupees or
with both.
19. As per the first proviso to sub-section (1) of Section 51 of the
Act, where the offence committed is in relation to any animal specified
in Schedule I or Part II of Schedule II or meat of any such animal or
animal article, trophy or uncured trophy derived from such animal or
where the offence relates to hunting in a sanctuary or a National Park or
altering the boundaries of a sanctuary or a National Park, such offence
shall be punishable with imprisonment for a term which shall not be
less than three years but may extend to seven years and also with fine
which shall not be less than ten thousand rupees. As per the second
proviso to sub-section (1) of Section 51, in the case of a second or
subsequent offence of the nature mentioned in this subsection, the
term of imprisonment shall not be less than three years but may
extend to seven years and also with fine which shall not be less than
twenty-five thousand rupees.
20. The Kerala Captive Elephants (Management and Maintenance)
Rules, 2012 is one made by the State in exercise of the powers
conferred by sub-section (2) of Section 64 of the Wildlife (Protection)
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Act, 1972. In view of the statutory provisions referred to hereinbefore
and also the law laid down by this Court in Sree Kumar [(2005) 1 KLT
43] we deem it appropriate to make the interim orders dated
04.04.2022 and 08.04.2022 absolute, by directing all concerned to
ensure strict compliance of the provisions under the Kerala Captive
Elephants (Management and Maintenance) Rules, 2012, while parading
elephants in connection with temple festivals, functions, etc. The
provisions under Rule 10 of the said Rules shall be complied with in
letter and spirit by all concerned and any person, who contravenes the
provisions of the said Rules, shall be dealt with appropriately, as
provided under Section 51 of the Wildlife (Protection) Act. In temples
under the management of the Travancore Devaswom Board, all
concerned shall scrupulously follow the conditions in Circular No.
ROC7199/98 dated 22.10.1998 and proceedings dated 23.10.2000,
which are referred to hereinbefore at paragraph 10 and 11, insofar as it
relates to the number of elephants paraded in the festivals in the
temples under the said Devaswom Board. In temples under Cochin
Devaswom Board, Malabar Devaswom Board, Guruvayur Devaswom and
also Koodalmanikyam Devaswom, the directions contained in the order
dated 04.04.2022, which is made absolute by this judgment, shall be
complied with letter and spirit and any person, who contravenes the
provisions of the Kerala Captive Elephants (Management and
Maintenance) Rules, 2012, while parading elephants in connection with
festivals, functions, etc., shall be dealt with appropriately, as provided
under Section 51 of the Wildlife (Protection) Act.
21. In connection with the death of the elephant by name
'Ambalapuzha Vijayakrishnan', owned by the 1st respondent Travancore
Devaswom Board, which died on 08.04.2021, wildlife crime (O.R. No. 1
of 2021) has been registered by the office of the Social Forestry Range
Office, Alappuzha, in which respondents 7 to 10 herein are arrayed as
accused. The 1st respondent Travancore Devaswom Board has already
conducted an inquiry by its Vigilance Wing, and steps have already
been initiated against the officials found to be involved in dereliction of
duty as disclosed in that inquiry. It is for the authorities concerned to
take necessary steps to ensure that the proceedings initiated in
connection with the death of the elephant by name 'Ambalapuzha
Vijayakrishnan' reaches a logical conclusion, within a period of five
months from the date of this judgment.
22. With the above directions, this writ petition is disposed of.
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Annexure II
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2004 SCC OnLine Ker 180 : (2005) 1 KLT 43
Kerala High Court
(BEFORE S. SANKARASUBBAN AND A.K. BASHEER, JJ.)
Sreekumar
Versus
Travancore Devaswom Board
W.P.(C) Nos. 25615 & 27119 of 2003
Decided on November 24, 2004
The Judgment of the Court was delivered by
S. SANKARASUBBAN, J.:-- Both these Writ Petitions have been filed to bring to the
notice of this Court that an elephant by name Manikantan, which was offered to Sree
Vallabha Temple,
Page: 44
Thiruvalla was dead. According to the petitioners, the elephant died because no proper
care was taken and that the elephant was not properly treated for the disease. Since
the petitioners proved a prima facie case, we appointed Sri. D. Sreevallabhan, Addl.
District Judge, Pathanamthitta to enquire into the matter and file a report to this
Court. Accordingly, he enquired into the matter and filed an enquiry report in two
volumes. The first volume contains the report and the second volume contains
depositions and documents.
2. In the report at page 39, it is stated as follows: "Hence, it is clear that there was
laches on the part of EW 7 Sub Group Officer, EW 9 Assistant Devaswom
Commissioner and EW 1 mahout in getting medical aid for the elephant at the proper
time.
3. At page 47, it is stated as follows: "Henpe negligence can be attributed on the
part of EW 14 in causing the death of the elephant without giving effective treatment
for the elephant". In the same page at paragraph 22, it is further stated as follows:
"No proper care was taken by him in diagnosing the disease or for giving necessary
treatment to the elephant Manikantan. Hence, there is negligence on his part in not
giving proper medical care and treatment". At page 56, in paragraph 27, it is stated as
follows: "During the course of enquiry it is clearly revealed that Manikantan was not
properly fed and not much care as required by the rules was taken by EWs. 7 and 9 in
feeding the elephant. No earnest effort is seen to have been made by them to get
proper medical aid while Manikantan was suffering from illness for days together".
Learned District Judge has further stated in paragraph 31 thus: "It is already pointed
out that there is only one Veterinary Officer attached to the Travancore Devaswom
Board for the check-up and treatment of about 50 elephants in the various temples of
the Devaswom. EW 10 had stated that there are three Devaswom Districts having its
headquarters at Thiruvananthapuram, Ambalappuzha and Vaikom. In all these
Districts there are elephants in several temples. All those elephants cannot be
expected to get proper medical aid if there is only one Veterinary Officer". The Enquiry
Officer further referred to Sub-Clauses 2 to 12 of R. 5 of the Captive Elephants
(Management and Maintenance) Rules, 2003 (Kerala).
4. In the facts and circumstances of the case, we are of the view that some specific
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directions have to be issued to the Travancore Devaswom Board and its functionaries
in order to avoid recurrence of such unfortunate calamities to the animals in the
custody of the Devaswom.
5. It has to be remembered that the Devaswom Board is the custodian of the
animals which are entrusted by the devotees with the fervent hope and expectation
that they will be looked after well. These animals are in a way offerings to the deities.,
Therefore, it is the paramount duty and responsibility of the Board to take proper care
of these animals at all costs.
6. The learned District Judge in his enquiry report has referred to clause 15 of
Page: 45
Chapter XV of the Devaswom Manual which prescribes the duties of Sub Group Officer
as regards the elephants of the Devaswom. Clauses 16 to 20 have also been extracted
in the report which deal with the manner and mode in which the elephants have to be
looked after and handled. The learned District Judge has also referred to clauses 9, 10
and 11 of Chapter XV which pertain to the food that has to be given to the elephants
and also the pattern of feeding.
7. Captive Elephants (Management and Maintenance) Rules, 2003 (Kerala) for short
"the Rules" were brought into force on March 13, 2003. The Rules provide that the
owner of the elephant has to maintain certain records relating to the elephants viz.,
the vaccination record, disease and treatment record, movement register, feeding
register, work register, etc. R. 4 of the above Rules also stipulates that the stable
(tethering place) where the elephant is kept must have a clean and healthy
environment with sufficient shade. If the shed is covered, the height of the structure
shall not be less than the prescribed specifications. If corrugated iron sheets or
asbestos sheets are used for roofing of elephants stables, they should be covered with
gunny bags, grass, cadjan leaves etc. We have referred to some of the rules and the
clauses in the Manual not only to remind the Board about the existence of these
provisions in the statute book and the Manual, but also to remind them that these
rules and clauses are meant to be complied with and also implemented in letter and
spirit.
8. The respondents have admitted that they are in custody of about 90 animals of
which 50 are elephants. In the course of the enquiry the learned District Judge had
found that the elephant which met with the tragic end was not put in a stable
constructed as per the specifications contained in the Rules. It has come on record
that one Veterinary Officer, who is a retired Government servant, is in charge of all
these animals. It is also the admitted position that there are three Devaswom Districts
viz., Thiruvananthapuram, Vaikom and Ambalapuzha. The animals are now being kept
at various places in the three Districts. It is more or less conceded by the Board that
one Veterinary Officer may not be able to attend to all the animals in the three
Districts. It is also submitted that the Board may not be in a position to appoint more
Veterinary Officers because of financial constraints. We cannot accept the above
contention. If more Veterinary Officers have to be appointed, the Board should find
ways and means to appoint them and pay their salaries. If the Board is not in a
position to look after these animals, they should have thought twice before accepting
them from the devotees. The devotees had reposed faith in the Board that these
animals would be looked after well. If the animals are not looked after well, necessarily
it will amount to cruelty to them. This, in turn, will attract the provisions of Prevention
of Cruelty to Animals Act.
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9. Having regard to the entire facts and circumstances, we issue the following
directions:
Page: 46
1) The Board shall take all necessary steps to look after the animals in their custody
in a proper and hygienic atmosphere. The animals should be fed properly and
they should be regularly got examined by the Veterinary Officer.
2) The provisions contained in the Rules shall be scrupulously followed and
implemented. Similarly the clauses mentioned in Chapter XV of the Devaswom
Manual shall also be adhered to and implemented. The Board shall ensure that
its officers maintain the various records/registers as provided in the Rules.
3) The Board shall appoint one more Veterinary Officer within one month from the
date of receipt of a copy of this judgment. The duties of the two Veterinary
Officers in the service of the Board shall be properly distributed among them, so
that the two Officers are in a position to take care of all the animals in the three
Districts. The two Officers shall be stationed in the three Districts. The two
Officers shall be stationed at two convenient locations so that they can reach the
station wherever their services are needed within the shortest possible time. If
the Board is of the view that its financial position may not permit to accept more
animals from the devotees, they shall stop accepting them.
4) The Board shall also ensure that the elephants which are sent to various Temples
at the time of festivals are not overburdened and also that they are looked after
well in the respective Temples wherever they are sent.
10. Writ Petitions are disposed of as above.
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Annexure III
