ELSA FOUNDATION v CHIEF WILDLIFE WARDEN, STATE OF KERALA, IGF & DIRECTOR, PROJECT ELEPHANT, SECRETARY, ANIMAL WELFARE BOARD OF INDIA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **MONDAY, THE 19[TH] DAY OF JULY 2021 / 28TH ASHADHA, 1943** ## **WP(C) NO. 22877 OF 2017** ## **PETITIONER:** ELSA FOUNDATION, REGISTERED OFFICE AT FLAT NO. 13,FIRST FLOOR, KALA FLATS,172 HABIBULLAH ROAD, T.NAGAR,CHENNAI - 600 017. REPRESENTED BY ITS CO-FOUNDER, PRAKASH SASHA. BY ADVS.SRI.RAJAN VISHNURAJ SRI.V.HARISH ## **RESPONDENTS:** - 1 THE CHIEF WILDLIFE WARDEN, FOREST HEADQUARTERS, VAZHUTHACAUD,THIRUVANANTHAPURAM - 695 001. - 2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST & WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 IGF & DIRECTOR, PROJECT ELEPHANT, MINISTRY OF ENVIRONMENT AND FORESTS, 2ND FLOOR, JAL BLOCK, INDIRA PARYAVARAN BHAWAN, JOR BAGH ROAD, NEW DELHI - 110 003. - 4 SECRETARY ANIMAL WELFARE BOARD OF INDIA,13/1, THIRD SEAWARD ROAD, VALMIKI NAGAR,THIRUVANMIYUR, CHENNAI - 600 041. BY ADVS.SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST FOR R1 AND R2 ASSISTANT SOLICITOR GENERAL SRI.P.VIJAYAKUMAR FOR R3 SMT.M.U.VIJAYALAKSHMI, SC FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C)NO.22877 OF 2017** **:: 2 ::** ## **JUDGMENT** ## **S.MANIKUMAR, C.J.** The issue raised in this Writ Petition relates to rescue and rehabilitation of a male wild elephant which has been captured by the forest officials on 30.05.2017 from Agali Forest Range. The animal was captured stating it as a rogue wild elephant which had killed 7 people over the past 5 years. 2. Grievance of the petitioner is that the elephant has been subjected to cruel and barbaric treatment in the hands of the officials concerned in the name of taming. Hence this writ petition has been filed for the following reliefs: “i) issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents to take urgent and immediate steps to stop taming the wild elephant and for translocation of the elephant captured from Agali Forest Range and now in captivity at Kodanad kraal after constituting a team of experts in the field. The elephant has to be radio colored to track its movement after release. The translocation site can be any forest range in any geographical state. ii) Issue a writ of mandamus or any other appropriate writ, direction or order to form an external committee of animal NGOs to inquire if the same elephant really killed 7 people as claimed by forest department and an investigation report to be submitted as soon as possible. iii) Issue writ of mandamus or any other appropriate writ, direction or order, directing the 1[st] respondent henceforth not to keep any wild elephant in captivity and tame it. iv) Issue a writ of mandamus or any other appropriate writ, direction or order, directing the 1[st] respondent to consult team **W.P.(C)NO.22877 OF 2017** **:: 3 ::** of experts from NGOs and research institutions for analyzing Human Elephant Conflict zones and wherever needed only translocation of elephants in a humane way as followed in Africa to be adopted.” 3. The petitioner has raised the following contentions in support of the pleas in the writ petition. The wild elephants are included in Schedule I of the Wild Life Protection Act, 1972 and therefore, is entitled to get special protection under the Act. The Wild Life Protection Act, 1972 does not permit capturing of wild elephant for the purpose of taming the animal. The Act only permits either translocation of the elephant or hunt the animal under the conditions specified in Section 11 of the Act and the methods adopted for taming a wild elephant are very brutal and barbaric. The elephant would be kept in captivity constantly chained and unable to take a step in any direction. Thereafter painful injuries would be inflicted through constant beating, jabbing with spear and inflicting burn injuries in order to obey the commands of the mahouts. In the instant case, the elephant is fully grown adult and the question of taming such an adult elephant is practically impossible. 4. The petitioner has also brought to the notice of this court Section 3 of Prevention of Cruelty to Animals Act,1960, wherein it is stated that it shall be the duty of every person having the care and charge of any animal to take all reasonable measures to ensure the well being of such animal and to prevent the infliction upon such animal of unnecessary pain and **W.P.(C)NO.22877 OF 2017** **:: 4 ::** suffering. The respondents are legally bound to see that the relevant provisions of the Act are strictly complied with. According to the petitioner, the respondents are therefore legally bound to take all efforts to rehabilitate wild elephant which has been captured by the 1[st] respondent on 30.05.2017 from Agali Forest Range. 5. Heard learned counsel for the parties and persued the materials available on record. 6. A detailed counter affidavit has been filed on behalf of the first respondent/the Chief Wild Life Warden denying all the allegations in the writ petition. It is averred therein that the translocation of the elephant to another area is not possible in the light of the facts and circumstances in Kerala. The issues of translocation of an animal in the wild and other choices are to be determined on a case to case basis depending on the facts, circumstances and situation in each case and cannot have universal application on a general basis. In the present case, many of the wild instincts of the elephant including its natural feeding habit, were lost due to the weakness of his teeth and regular straying into human settlements and cultivated areas and having easy food. Relevant portion from the counter affidavit reads as under: 37. The elephant in the instant case, is habituated to new ways and has lost his natural behavior and instincts. Hence the cases of translocation relied on by the petitioner, have no application to the **W.P.(C)NO.22877 OF 2017** **:: 5 ::** facts involved in the present case. So also the issues of translocation of an animal in the wild and other choices are to be determined on a case to case basis depending on the facts, circumstances and situation in each case and cannot have universal application on a general basis. In the present case, many of the wild instincts of the elephant including its natural feeding habit, are lost due to the weakness of his teeth and regular straying into human settlements and cultivated areas and having easy food. 38. The taming process adopted in the instant case is a natural, mild and slow one with the help of expert mahouts under the supervision and control of Veterinary Doctors, Experts and Senior Forest officials so as to slowly make the wild elephant friendly with the expert mahouts and forest staff and tame the animal in the natural process through a long draw process and there is no cruel or barbaric methods involved in the case and after few months, the elephant will be given sufficient space and area in the Abhayaranyam Reserve to move around in natural settings. Presently the only taming of the elephant is by giving special and favorite food of his choice. 39. The allegation in paragraph 7 of the writ petition that the animal was wounded on his forehead, is correct. But Exhibit-P12 news report that the injury must be a bullet injury is false. However, the injury may have happened on some occasion due to crackers used by humans to drive away the elephant from raiding their crops. 40. The averments in paragraph 8 of the writ petition about an issue of capture of 3 year old elephant calf in Tamil Nadu, should be read and understood in the facts of that case and ought not to be applied generally in the instant case. In the instant case, no decision has been taken so far by the Forest Department to convert the present elephant to a Kumkee (trainer elephant). Presently no training is given and the only taming of the elephant being undertaken is through giving the favorite food of his choice. 41. The averments in paragraph 9 of the writ petition that an elephant could not be tamed without using brutal force and torturing the animal to the maximum and that taming of an adult wild elephant is impossible, are incorrect. Though a wild elephant could not be domesticated in its true meaning, the wild elephant could be tamed to adapt to human friendly circumstances and environs. The allegation in paragraph 9 that the health of the animal is getting weak day-by-day as the animal is being subjected to maximum cruelty and that the animal has become drowsy, are false. On the other hand, the elephant is adapting well to the new circumstances and he appears happy with the feeding and to the special food of his choice and has become friendly with the expert **W.P.(C)NO.22877 OF 2017** **:: 6 ::** mahouts and is very healthy as opined by the team of expert veterinary doctors.” 7. It is also stated therein that due to the following reasons in the light of Ext.R1(b) veterinary doctor's report, the elephant in the present case cannot lead a free life in wild for its survival and hence its life style already changed to a habitual crop raider: i. The elephant in the instant case has lost its natural feeding habit and instincts. He is used to soft foods from cultivated areas and human settlements. Hence due to loss of its natural feeding habit on natural forest resources/produces, it may not survive in the translocated forest without finding some alternate ways of feeding. ii. The elephant is habituated to new feeding habit and soft food from cultivated areas and human settlements. Hence, the elephant having strong smell and sound senses, will find some way to reach back to human settlements or cultivated areas from the translocated area. iii. The elephant is habituated to human presence and human dwellings and will always be a threat to human inhibited areas which could be reached from the translocated area as in the example pleaded earlier. iv. The translocation of the elephant with regular habit of crop raiding to another forest area is a sensitive public issue in Kerala and there will be mass protest and agitation from the people of the localities adjoining the forest to which he is sought to be translocated. v. Unlike, in other instances, where the translocated elephant has possibilities of mingling with other elephants, in the instant case, the chances of elephant mingling with other elephants is remote due to his abnormal feeding, behavioural changes and other weakness. **W.P.(C)NO.22877 OF 2017** **:: 7 ::** 8. Considering the above facts and circumstances of the case, we are of the view that there was no taming as stated in the writ petition. Hence we are not inclined to interfere with the matter at this stage. What is followed in Africa, cannot be a rule of law in India. However, there shall be a direction to the first respondent/the Chief Wild Life Warden to explore the possibility of consultation with the team of experts from NGOs and research institutions for analyzing Human Elephant Conflict zones and wherever needed only for translocation of elephants in a humane way. Writ petition is disposed of. **SD/S.MANIKUMAR CHIEF JUSTICE** **SD/ANU SIVARAMAN JUDGE** jes **W.P.(C)NO.22877 OF 2017** ## **:: 8 ::** ## **APPENDIX** ## PETITIONER'S EXHIBITS: - EXHIBIT P1 TRUE COPY OF THE PUBLICATION IN MANORAMA ONLINE DATED 31.05.2017. - EXHIBIT P2 TRUE COPY OF THE ARTICLE INTERNATIONAL GREEN OSCAR (WHITLEY AWARD) "ELEPHANT EARLY WARNING SYSTEM" PUBLISHED INN THE OFFICIAL WEBSITE. - EXHIBIT P3 TRUE COPY OF THE ARTICLE ON "ELEPHANT EARLY WARNING SYSTEM" DATED 29TH DEC. 2015 PUBLISHED BY NATIONAL GEOGRAPHIC DOWNLOADED FROM ITS OFFICIAL WEBSITE. - EXHIBIT P4 A TRUE COPY OF THE PHOTOGRAPHS DEPICTING TRANSLOCATION WHICH WAS CARRIED OUT IN AFRICA. - EXHIBIT P5 A TRUE COPY OF THE PHOTOGRAPHS OF CRUEL ELEPHANT CAPTURE AND ELEPHANTS UNDERGOING THE BRUTAL TAMING PROCESS. - EXHIBIT P6 TRUE COPY OF THE ELEPHANT DEATH IN KRAAL REPORT PUBLISHED IN HINDU DAILY DATED 23.06.2016. - EXHIBIT P7 TRUE COPY OF CHAPTER 5 OF THE REPORT (GAJAH) OF THE ELEPHANT TASK FORCE PUBLISHED BY THE MINISTRY OF ENVIRONMENT AND FOREST, GOVERNMENT OF INDIA DATED 31.08.2010. - EXHIBIT P8 TRUE COPY OF "ELEPHANT MIGRATORY PATH ENCROACHMENT" REPORT PUBLISHED BY INTERNATIONAL SYMPOSIUM ON ECOLOGY AND HEALTH MANAGEMENT OF ASIATIC ELEPHANT. - EXHIBIT P9 TRUE COPY OF THE REPORT "SUCCESSFUL TRANSLOCATION OF ELEPHANT" PUBLISHED IN HINDU DAILY DATED 04.06.2017. - EXHIBIT P10 TRUE COPY OF THE ARTICLE "INTERNATIONAL UNION FOR CONSERVATION OF NATURE AND NATURE RESOURCES (IUCN)" GUIDE ON ELEPHANT TRANSLOCATION PROCESS PUBLISHED BY IUCN IN ITS OFFICIAL WEBSITE. - EXHIBIT P11 A TRUE COPY OF THE PROCEEDINGS OF THE ROYAL SOCIETY CONTAINING THE ARTICLE "THE RELATIONSHIP BETWEEN SOCIAL BEHAVIOUR AND HABITAT FAMILIARITY IN AFRICAN ELEPHANTS", PUBLISHED ONLINE DATED 09.12.2008. - EXHIBIT P12 TRUE COPY OF THE HINDU NEWS REPORT "ELEPHANT BULLET INJURY" DATED07.06.2017. - EXHIBIT P13 TRUE COPY OF CHAPTER 6 OF INSPECTION REPORT BY AUTHORISED INSPECTOR BEFORE THE HON'BLE HIGH COURT OF MADRAS IN W.M.P. NO. 12722/2017 DATED 12.05.2017. **W.P.(C)NO.22877 OF 2017** **:: 9 ::** ## RESPONDENTS' EXHIBITS: - EXHIBITR1(A) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 15.3.2017 EXHIBIT R1(B) TRUE COPY OF MADHYAMAM DAILY DATED 15.3.2017. TRANSLATION OF MADHYAMAM DAILY DATED 15.3.2017. - EXHIBIT R1(C) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 21.3.2017. TRANSLATION OF MALAYALA MANORAMA DAILY DATED 21.3.2017. - EXHIBIT R1(D) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 22.3.2017. TRANSLATION OF MALAYALA MANORAMA DAILY DATED 22.3.2017. - EXHIBIT R1(E) TRUE COPY OF DESHABHIMANI DAILY DATED 22.3.2017. TRANSLATION OF DESHABHIMANI DAILY DATED 22.3.2017. - EXHIBIT R1(F) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 22.3.2017. TRANSLATION OF MALAYALA MANORAMA DAILY DATED 22.3.2017. - EXHIBIT R1(G) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 21.4.2017. TRANSLATION OF MALAYALA MANORAMA DAILY DATED 21.4.2017. - EXHIBIT R1(H) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 22.4.2017. TRANSLATION OF MALAYALA MANORAMA DAILY DATED 22.4.2017. - EXHIBIT R1(I) TRUE COPY OF MADHYAMAMDAILY DATED 09.5.2017. TRANSLATION OF MADHYAMAMDAILY DATED 09.5.2017. - EXHIBIT R1(J) TRUE COPY OF MADHYAMAMDAILY DATED 10.5.2017. TRANSLATION OF MADHYAMAMDAILY DATED 10.5.2017. - EXHIBIT R1(K) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 30.5.2017. TRANSLATION OF MALAYALA MANORAMA DAILY DATED 30.5.2017. - EXHIBIT R1(L) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 31.5.2017. TRANSLATION OF MALAYALA MANORAMA DAILY DATED 31.5.2017. - EXHIBIT R1(M) TRUE COPY OF MALAYALA MANORAMA DAILY DATED 2.6.2017. TRANSLATION OF MALAYALA MANORAMA DAILY DATED 2.6.2017. - EXHIBIT R1(N) TRUE COPY OF HEALTH REPORT DATED 20.7.2017. EXHIBIT R1(O) TRUE COPY OF PROCEEDINGS NO.7329/16 DATED 4.11.2016 TRANSLATION OF PROCEEDINGS NO.7329/16 DATED 04.11.2016. - EXHIBIT R1(P) TRUE COPY OF PROCEEDINGS NO.7329/16 DATED 4.11.2016 TRANSLATION OF PROCEEDINGS NO.7329/16 DATED 04.11.2016. - EXHIBIT-R1[O] TRUE COPY OF PROCEEDINGS NO.7329/16 DATED 04.11.2016 TRANSLATION OF PROCEEDINGS NO.7329/16 DATED 04.11.2016 **W.P.(C)NO.22877 OF 2017** **:: 10 ::** - EXHIBIT-R1[P] TRUE COPY OF PROCEEDINGS NO.A3-7333/16 DATED 04.11.2016 TRANSLATION OF PROCEEDINGS NO.A3-7333/16 DATED 04.11.2016. - EXHIBIT-R1[Q] TRUECOPYOF PROCEEDINGS NO.A3-717/17 DATED 30.03.2017 TRANSLATION OF PROCEEDINGS NO.A3-717/17 DATED 30.03.2017 - EXHIBIT-R1[R] TRUE COPY OF PROCEEDINGS NO.A3-2008/17 DATED 30.03.2017 TRANSLATION OFPROCEEDINGS NO.A3-2008/17 DATED 30.03.2017 3 20. - EXHIBIT-R1[S] TRUE COPY OF PROCEEDINGS NO.A3-6421/15 DATED 10.04.2017 TRANSLATION OF PROCEEDINGS NO.A3-6421/15 DATED 10.04.2017 - EXHIBIT-RI[T] TRUE COPY OF PROCEEDINGS NO.A3-6383/16 DATED 16.05.2017 TRANSLATION OF PROCEEDINGS NO.A3-6383/16 DATED 16.05.2017 - EXHIBIT-R1[U] TRUE COPY OF PROCEEDINGS NO.E2-4742/17 DATED 12.06.2017 TRANSLATION OF PROCEEDINGS NO.E2-4742/17 DATED 12.06.2017 - EXHIBIT-R1[V] TRUE COPY OF LETTER DATED 30.05.2015 TRANSLATION OF LETTER DATED 30.05.2015 - EXHIBIT-R1[W] TRUE COPY OF PETITION DATED 22.03.2017 SUBMITTED BY SRI.M.ASOKAN TRANSLATION OF PETITION DATED 22.03.2017 SUBMITTED BY SRI.M.ASOKAN - EXHIBIT-R1[X] TRUE COPY OF PETITION DATED 22.03.2017 SUBMÍTTED BY SRI.K.S.SUNIL TRANSLATION OF PETITION DATED 22.03.2017 SUBMITTED BY SRI.K.S.SUNIL - EXHIBIT-R1[Y] TRUE COPY OF PETITION DATED 22.03.2017 SUBMITTED BY SRI.KRISHNAKUMAR, S/O GOPALAKRISHNA PANICKER. TRANSLATION OF PETITION DATED 22.03.2017 SUBMITTED BY SRI.KRISHNAKUMAR, S/O GOPALAKRISHNA PANICKER. - EXHIBIT-R1[Z] TRUE COPY OF PETITION DATED 25.3.2017 SUBMITTED BY SRI.RAJAN TRANSLATION OF PETITION DATED 25.03.2017 SUBMITTED BY SRI.RAJAN - EXHIBIT-R1 (AA) TRUE COPY OF PETITION DATED 8.4.2017 SUBMITTEDBY SMT.LEELAD/O RANGAN TRANSLATION OF PETITION DATED 8.4.2017 SUBMITTED BY SMT.LEELA D/O RANGAN - EXHIBIT-R1[AB] TRUECOPY OF GRIEVANCE SUBMITTED BEFORE THE DISTRICT COLLECTOR, PALAKKAD SUBMITTED BY 501 DWELLERS AND FARMERS OF THE LOCALITY TRANSLATION OF COPY OF GRIEVANCE SUBMITTED BEFORE THE DISTRICT COLLECTOR, PALAKKAD SUBMITTED BY 501 DWELLERS AND FARMERS OF THE LOCALITY. - EXHIBIT-R1[AC] TRUE COPY OF STUDY REPORT DATED 24.03.2016 30. PREPARED BY SRI.SHAREEF C., RANGE FOREST OFFICER AGALI - EXHIBÍT-R1[AD] TRUE COPY OF ORDER NO.WL 1-16726/2017 DT.30-03.2017 OF THE PRINCIPAL CCF &WILDLIFE WARDEN TRANSLATION OF COPY 30-.03.2017 OFTHE PRINCIPAL CCF &WILDLIFE WARDEN - EXHIBIT-R1[AE] TRUE COPY OF LETTER NO.A3-2449/2017 DT.7.4.2017 OF THE DFO, **W.P.(C)NO.22877 OF 2017** ## **:: 11 ::** PALAKKAD TO THE PRL. CHIEF CONSERVATOR OF FORESTS &OTHERS. - EXHIBIT-R1[AF] TRUE COPY OF LETTER NO.WL1/13395/2017 33 DATED 26.05.2017 OF THE CHIEF WILDLIFE WARDEN, TAMILNADU TO THE PCCF &CHIEF WILDLIFE WARDEN, KERALA. - EXHIBIT-R1[AG] TRUE COPY OF TASK ASSIGNMENT FOR CHEMICAL IMMOBILIZATION AND TRANSLOCATION OF A WILD TUSKER IN AGALI RANGE. - EXHIBIT-R1[AH] TRUE COPY OF LIST OF PARTICIPANTS IN THE MEETING CONDUCTED ON 29.5.2017 IN CONNECTION WITH THE TASK ASSIGNMENT FOR CHEMICAL IMMOBILIZATION AND TRANSLOCATION OF A WILD TUSKER IN AGALI RANGE. - TRANSLATION OF COPY OF LIST OF PARTICIPANTS IN THE MEETING CONDUCTED ON 29.5.2017 IN CONNECTION WITH THE TASK ASSIGNMENT FOR CHEMICAL IMMOBILIZATION AND TRANSLOCATION OF A WILD TUSKER IN AGALI RANGE. - EXHIBIT-R1[AI] TRUE COPY LIST OF THE STAFF INVOLVED IN CAPTURING THE WILD ELEPHANT ON 30.5.2017 TRANSLATION OF COPY LIST OF THE STAFF INVOLVED IN CAPTURING THE WILD ELEPHANT ON 30.5.2017 - EXHIBIT-R1[AJ] TRUE COPY OF LETTER NO.E2/10047/05 DT.1.8.2006 OF THE DIRECTOR, ANIMAL HUSBANDRY THIRUVANANTHAPURAM TO THE CCF [WILDLIFE] THIRUVANANTHAPURAM. // TRUE COPY // P.S. TO JUDGE