Why the ban on trade of captive elephants must stay

This article first appeared in the Indian Express on 11th February 2022

One of the strongest acts for the conservation of wildlife and wild spaces in India is to be amended, the Wildlife Protection Act of 1972. Some of the proposed amendments such as increasing penalties and acknowledging invasive species, will strengthen conservation efforts. But one amendment recommends overturning the prohibition on the trade of captive elephants — and outright permitting it, despite rightly being banned at the inception of the Act half a century ago.

When the Act was promulgated, it was decided that elephants would be considered “wildlife” in the practical and legal sense of the word and hence, were not permitted to be owned by individuals or any private entities (such as temples, trusts etc). However, there would be an exception for the elephants already in captivity, offering a status-quo approach by allowing those possessing elephants to continue owning them but with an explicit provision for prohibiting them from being traded. In addition, Asian elephants were placed in Schedule I of the Act, providing them with the highest level of protection, on a par with the tiger, outlawing any more of them from being taken into captivity. However, the proposed amendment states that “This section shall not apply to the transfer or transport of any live elephant …”. This exception single-handedly threatens to undo years of active efforts for the conservation of elephants in India.

It is vital to note that all elephants are wild and not domesticated. The seemingly tame elephants that one sees on the streets, at forest camps, or at temples are the same species as their wild counterparts in forests. They possess the same wild traits for the simple reason that a majority of them were caught from the wild and “broken” — by cycles of starving, beating, confinement, and psychological intimidation. Unlike a domesticated animal like a dog that has been bred selectively over generations to become suitable for coexisting with humans, elephants have not been genetically adapted for human use.

In 2002, the government decided to microchip the entire population of about 3,500 captive elephants across India in an attempt to stem the practice of capturing wild elephants and passing them off as bona fide captive elephants. Linking a unique identification number (inserted as a chip behind the left ear) with the ownership certificate helped reduce this illegal trade which was then rampant. Young calves were violently separated from their mothers, using guns, crackers, and spears, and taken to the Sonepur Mela in Bihar, where they were illegally sold. This provision, by creating a legal demand, would further fuel the illegal supply — as has been noted in cases where legal avenues for wildlife products like ivory and tiger skins lead to an increase in poaching.

In our work, we have noted that the system was subverted by elephants being sold without a sale deed but rather “leased out” with an unwritten understanding between the buyer and seller. Done for commerce, these transactions routinely disregard the well-being of the elephants. Given that law was not on their side, such transactions were done covertly and not with the impunity that the proposed amendment would allow for. In addition to arrests for such deemed sales, an amicus curiae appointed by the Kerala High Court also called for a ban on such leases for they violate the principle behind the prohibition on trade. The Assam Wildlife Crime Prevention Unit mentions that the state has 320 such “leased” elephants in other states since 2003, with no sign of their return. Another 2010 report by the Wildlife Crime Control Bureau emphatically concludes, “elephant trade cannot be stopped unless the provision of trade is abolished”.

This amendment flies in the face of all the provisions that have been progressively added over the years to safeguard both, wild and captive elephants by sanctioning the trade of elephants. Allowing for this commoditization of elephants will lead to a greater burden on the enforcement agencies, which already find it challenging to ensure the well-being of the thousands of elephants in captivity.

The Ministry provides no explanation for the rationale behind this amendment, presumably because there is none. The only entities that could benefit from this are wealthy individuals and temple trusts such as those in Kerala, Karnataka, and Gujarat who currently have to skirt law enforcement agencies to import elephants from other states, and the middlemen who arrange for such deals. Captive and wild elephants already at risk of human activities are certain not to gain from this provision. Upturning this section of 50 years goes against the international wildlife treaties that we are signatories to, and against established science.