Elephant death in Kerala: Legal angle

Reading time: 8-10 minutes.

Amid the scourge of the raging pandemic wrecking the lives and livelihoods indiscriminately comes the news of the death of a pregnant elephant in Kerala on May 27, 2020. Reports say that the death transpired due to the pachyderm eating a pineapple/coconut (reports diverge on this point) stuffed with firecrackers, originally meant to ward off wild boars. An FIR was filed against unidentified persons under the Wildlife Protection Act, 1972 (hereinafter “the Act”) and since then, arrests have also been made.

A significant development on the issue is the filing of a writ petition under Article 32 of the Constitution before the Supreme Court as a Public Interest Litigation (PIL) by Advocate Avadh Bihari Kaushik on June 7, 2020. The petition, inter alia, prays for : (1) calling for a full record of similar killings including in the neighboring States; (2) transfer of the matter covered by the FIR and other similar matters to the CBI under the monitoring of the Court; or alternatively, (3) constitution of a Special Investigation Team to probe the above matters and make recommendations qua curbing the menace and punishing the offenders.

Background

The instant death is by no means an unprecedented one; the petition itself mentions the case of an exactly similar death in Kollam district of Kerala in April 2020, the only difference being that that elephant was not pregnant. Ministry of Environment, Forest and Climate Change statistics suggest that a total of 314 elephant deaths occurred between 2016-2019-end, Assam being the greatest culprit and Kerala hovering nigh in the middle.

PIL is an exception to the rule of locus standi, whereby only the injury-sufferer can maintain action in a court of law. A PIL allows ‘public-spirited individuals’ to initiate proceedings in respect of problems besetting the public at large/a substantial number of the general public and ‘in public interest’ even though such individual is not a direct victim of such problem. Dangers to the environment, humanity and wildlife have time and again been subjects of PILs.

Facts

The petition, Avadh Bihari Kaushik v. Union of India & Ors, partly bottomed on media reports, states :

  • The elephant was first spotted on 25/5/20 standing in Veliyar river with its head dipped in water in Palakkad district. The pachyderm had grave mouth injuries. The villagers informed the forest officials about the same who, instead of tending to the animal, made attempts to drive it into the forest, but in vain.
  • It was fed a pineapple stuffed with highly explosive firecrackers by some villagers in Mannarkkad district near the Silent Valley National Park, as media reports suggest.
  • It succumbed to its injuries on 27/5/20 at around 4 p.m.
  • The post-mortem report pointed out that the immediate cause of death was drowning followed by inhalation of water, resulting in lung failure and that the mouth injuries were the direct result of the firecrackers. It also revealed that it could not have been able to consume anything for the last two weeks, thereby hinting at the time the pineapple might have been fed to it.

Legal provisions

The petition invokes the provisions of the Act, averring that elephants are protected wildlife animals under Item no. 12-B (Indian elephant, Elephas maximus) of Schedule I, Part I and although no specific provisions have been invoked in the petition, it has been averred therein that “killing thereof as also trade in any of its articles/organs is a punishable offence…” In this regard, Section 9 (prohibition of hunting except as provided u/Sections 11 and 12) and Section 49B (prohibition of dealings in trophies, animal articles, etc. derived from Scheduled animals including consumption of meat derived therefrom) are the relevant provisions.

A slightly general provision is Section 428, Indian Penal Code, 1860 which makes punishable the commission of ‘mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of ten rupees or upwards’.

Section 11(a) of the Prevention of Cruelty to Animals, 1960 also applies which makes punishable, inter alia,treating or causing to be treated any animal so as to subject it to unnecessary pain or suffering. Similarly, Section 11(c) is also relevant which penalises the wilful and unreasonable administration of ‘any injurious drug or injurious substance to any animal’ as well as causing or attempting so to do.

Articles 48-A of the Constitution lays down the protection of environment and safeguarding of forests and wildlife as a Directive Principle of State Policy.

Article 51-A(g) enacts a Fundamental Duty on every citizen to ‘protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures’.

Critical analysis

It is decidedly conceded that the hapless pachyderm strayed from the Silent Valley National Park and came in contact with the villagers in Malappuram while being in search of food. And it was fed explosives disguised as a fruit in the name of food. Hence, the root cause of the death is the scarcity/absence of food in its original place of habitation, the aforementioned National Park. 

The forest officials had been informed of the conspicuously gruesome plight of the elephant on 25/5/20 and even before that, a Wildlife Officer of the Park had informed on 23/5/20 itself that the elephant was seen wandering in the private area of the forest. They essayed driving it out of the river, contrary to expectations. A vet was summoned on 26/5/20 who did not administer any treatment whatsoever. Finally, it succumbed to death on 27/5/20 at 4:15 p.m. Ergo, the situation was effectively left untouched for about less than 4 whole days, thereby constituting a violation and abdication of the unenforceable Article 51-A(g) above. The events might have played out differently, had sanctions been attached thereto. Be that as it may, the officials seem to have an outstanding aptitude for neglect.

Conclusion

It is matter of introspection that the society refuses to mend its ways when it is filliped. It rejects action even when it is shaken. It only plunges into hustle when it is convulsed root and branch. And regrettably, even that is short-lived; things calm down and lapse into the state they were in after the source of the convulsion has ceased to operate. Suitable measures ought to have been taken to thwart any subsequent occurrence of deaths similar to that in Kollam. The laxity claimed two lives by a single malicious act.

Rights are one of the most celebrated gift of the institution called law. Human (whether or not criminal) rights are well-known. Rights have also been conferred on the physically inexistent juristic persons. Yet the physically present animals only have rights against cruelty and abuse; they have no express right to life like us humans. It is time the jurisprudence of rights overhauled itself. The change will be burdensome, but lives will be saved.

Author: Vivek Tripathi from Amity Law School, Delhi.

Editor: Silky Mittal, Junior Editor, Lexlife India.

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