Kerala Elephant Tragedy: Legal Angle

Reading time: 8-10 minutes.

Hearing a Public Interest Litigation (“PIL”) filed by Advocate Shubham Awasthi challenging the use of and seeking a ban on the practice of using snares, traps and other barbaric means against wild animals in order to ward them off, the Supreme Court bench comprising Chief Justice SA Bobde, AS Bopanna & Subhash Reddy issued notice to Centre, State of Kerala and 12 other States. The Petitioner contended that such practices are unconstitutional and illegal and thus, there is a need for the development of Standard Operating Procedure (“SOP”) filling the vacancies in the Forest Forces across states and union territories to protect the wildlife.

This Petition was filed in the light of the recent “elephant tragedy” that took place in Kerala. The plea further contends that such abusive incidents not only violate the most basic rights of animals but also violate their basic dignity. The Petition emphasized the significance of elephants since historic times, referring to Chanakya’s Arthashastra laying down rules for kings to protect them and to punish their killing with death. The practice of placing explosives in food to scare off wild animals indicates the failure of the Forest Department due to lack of scientific methods and shortage of staff. The plea further implores the Court to pierce the veil and see the true state of affairs and to strike off any guideline or policy that dilutes the protection to wild animals and finally to direct State and Central government to amend provisions of Prevention of Cruelty to Animals Act, 1960 to make punishments more stringent.

Facts of the Issue

On 27th May 2020, a tragic and brutal act was conducted by some villagers near Silent Valley National Park in Mannarkkad District of Kerala which came to the notice of forest officers where a pregnant elephant was killed by feeding her a pineapple filled with powerful and explosive firecrackers. When found, the elephant was standing in the Velliyar river in Palakkad District where she ultimately drowned and died. As per the media reports, having wandered off into a village near the said National Park the elephant ate the pineapple unaware of the firecrackers which exploded in her mouth injuring her severely. The post-mortem report further indicated that major injuries were caused in the mouth as a result of which she could not eat or drink anything for about two weeks before her death from the excruciating pain and distress caused due the explosion. However, the immediate cause of death of the female elephant was due to drowning, by inhalation of water leading to lung failure. This incident also points out a similar incident resulting in the casualty of another female elephant in April 2020. Soon after her death, the above stated PIL was filed. The National Green Tribunal (NGT), Southern Zone, Chennai also took suo-moto cognizance of the incident on the same day.

Legal Provisions Involved

The Wildlife Protection Act, 1972 is an Act aimed at providing for the protection of wild animals, birds and plants. Section 9 of the Act prohibits hunting of animals except when expressly allowed by way of subsequent sections. Section 51 punishes such an act with imprisonment upto three years or a fine upto twenty-five thousand rupees or both whereas the offence related to hunting in a sanctuary is punishable with imprisonment of three to seven years and a fine not less than ten thousand rupees.

The Prevention of Cruelty to Animals Act, 1960 aims to prevent the infliction of unnecessary pain or suffering on animals. Section 11 of the Act provides for the acts considered as animal cruelty including beating, causing pain or suffering, willfully and unreasonably administering any injurious drug or injurious substance, confining the animal to a cage without reasonable opportunity for their movement etc. Such acts being punishable on the first offence with a fine of ten rupees to fifty rupees and in the case of a second or subsequent offence committed within three years of the previous offence, with fine not be less than twenty-five rupees but which may extend, to one hundred rupees or with imprisonment for a term which may extend, to three months, or with both.

The Explosives Act, 1860 punishes unlicensed manufacturing, possession and use of explosives. Section 9B under sub-clause (b) penalises possession, usage, sale or transport of any explosive with imprisonment for a term which may extend to two years or with fine which may extend to two years or with fine which may extend to three thousand rupees or with both.

The Elephants Preservation Act, 1879 which extends to the territories now respectively administered by the State Governments of Uttar Pradesh, the Madhya Pradesh and the Chief Commissioners of Coorg; and the State Governments may extend it to any other local area which immediately before the 1st of November, 1956. Section 3 of this Act prohibits killing, capturing, injuring or attempting any of these acts except when acting in self-defence or when such elephant is found injuring houses or cultivation, or upon, or in the immediate vicinity of, any main public road or any railway or canal. Section 7 penalises these acts with fine which may extend to five hundred rupees for each elephant concerned and with imprisonment which may extend to six months, or with fine, or with both on a second offence.

Over and above these specific legislations, the Constitution of India also imposes a Fundamental Duty on all citizens, by way of Article 51A(g) “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures”.

Further, the Constitution directs the Stats to “endeavour to protect and improve the environment and to safeguard the forests and to the wildlife of the country” in the form of a Directive Principle of State Policy.

Critical Analysis

The list of laws stated above seek to protect animals from abuse by humans but have not been very effective in controlling the cruelty and hunting of these animals. The loopholes in the legislation are often used by the poachers to escape liability. One such loophole that is commonly exploited is Section 11(2) of the Wildlife Protection Act, 1972 according to which killing or wounding in good faith of any wild animal in defence of oneself or any other person is not an offence. Thus, hunters get away with their action simply because the burden of proof doesn’t lie on them. Apart from this the Forest Rights Act, 2006 grants certain communities to own and live in the forests. When they can’t coexist with the animals, conflicts and killings take place. The weak implementation and lack of stringent punishments don’t succeed in deterring the poachers from hurting animals.

Conclusion

India being a biologically diverse country is blessed with thousands of species of flora and fauna. As a result, there are various parts of the country, where mankind and wildlife co-exist at close proximity. While it is essential to protect humans and human establishments from the wrath of wild animals, it is equally important to ensure that humans don’t interfere in their existence. In order to protect wild animals from being exploited, several laws were brought in force, but despite that seven wildlife species including Sumartan Rhino, Indian Cheetah, and Indochinese Tiger went extinct in 2019 itself.

Stricter laws are required, to punish those who abuse animals accompanied by their efficient and effective implementation. However, with a change in attitude towards wildlife protection, a holistic approach by Ministry of Environment and Forests (MoEF) and efficient monitoring and implementation of policies, effective protection of wildlife in India can become a reality.

Author: Ashray Singh from School of law, NMIMS Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India

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