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Elephant deaths in Kerala

Sunday, Jun 28, 2020 14:45 [IST]

Last Update: Sunday, Jun 28, 2020 09:12 [IST]

Elephant deaths in Kerala

The need for a relook at legislations that protect animals

On,  the 3rd of  June 2020 an extremely distressing incident was brought to light by news reports. The incident pertained to the death of a 15 year old pregnant cow elephant on 27thof may 2020 in Thiruvizhamkunni, Pallakad district, Kerala, who had consumed a food item laden with fire crackers.Subsequent reports in the media revealed that, as per the post mortem conducted, major wounds were found in the oral cavity of the deceased animal caused by the exploding fire cracker..Due to the wounds caused by the said explosion, the elephant was unable to eat for more than two weeks which ultimately caused her to collapse out of exhaustion and drown in the Velliyar River in Malappuram District, Kerala which resulted in her death. Theexploding food item was, a pineapple stuffed with fire crackers which had either been fed to the deceased animal, or which the deceased elephant herself had consumed.
In a  similar incident,  on fifth of  June 2020, in Paathanapuram Forest Range Area under Punalur, Kollam District. Kerala, a similar fate befell another elephant as per news reports, Forest Officials found an elephant in a serious condition in the fringe areas of the forest.This elephant too had been alienated from the herd and its jaw had been broken due to which it was unable to eat.  On discovery by the forest officials the elephant ran away and rejoined the herd when Forests Officials approached it for providing medical aid. However, the next day the same elephant was once again alienated from its herd upon which medical aid was provided to the animal. The provision of medical aid proved to be too late and the said elephant succumbed to its wounds.
In many states, farmers are known to utilize a myriad of methods to protect their farm lands from wild animals and pests. These cases of man-animal conflicts have culminated in loss of crops or other agricultural produce, and causes financial distress to the farmer. However, the protective measures that the farmers are entitled to adopt should be proportional to the object sought to be obtained. These measures should not result in a disproportionate use of violence that results in loss of lives of animals. Animals have certain basic rights which should not be violated and there is a corresponding duty of humans in this regard. It is imperative that the right to life of these endangered animals should be given due regard, when juxtaposed with the right of farmers to protect their lands.
The Supreme Court of India in Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547has also upheld the rights of animals in this regard by the holding that there are five recognized freedoms for animals such as:
(i) freedom from hunger, thirst and malnutrition;
(ii) freedom from fear and distress;
(iii) freedom from physical and thermal discomfort;
(iv) freedom from pain, injury and disease; and
(v) freedom to express normal patterns of behaviour.
In this context it isalso pertinent to note that the Indian Elephant or  “Elephas maximus” is categorized as an endangered species according to the IUCN Red list of Threatened species. According to the IUCN the justification for it being categorized is because of a population size reduction inferred to be at least 50 percent over the last three generation, based on a reduction in its area of occupancy and the quality of its habitat.
Lacunae in legislations for protection of animals
There are various enactments for the protection of animals, such as the Wildlife Protection Act, 1972  and the Prevention of Cruelty to Animals Act, 1960. The scope of protection to animals under these two acts are distinct. The Wildlife Protection Act, 1972 grants protection to animals that have been notified under the schedule of the act. e.g. the Indian Elephant. While the Prevention of Cruelty to Animals Act, 1960 extends protection to almost all animals, as  the definition of animals provided under the act vide Section 2(a) provides a wide room for interpretation.
The Wildlife Protection Act,1972 was enacted on 09.09.1972 with the object of providing for protection of wild animals, birds and plants  with a view to ensuring the ecological and environmental sanctity of the country. The Elephant also known by the scientific name “Elephas maximus” is a  ‘wild animal’ under item 12-B  of  Schedule 1 in the said act.  The Act also provides for certain offences viz. Section 51(1) provides that any person who contravenes any provision of the Act, except Chapter  V-A and Section 38(J), or any rule or order made thereunder etc. shall be guilty of an offence which would be punishable with imprisonment for a term which may extend to 3 years or with fine which may extend to Rs. 25,000/- or with both.  The proviso to Section 51(1) provides for a higher punishment for offences committed in relation to any animal specified in Schedule I or Part II of Schedule. Section 51(1A) provides that any person who contravenes provision of chapter V-A would be punishable with imprisonment which shall not be less than three years but may extend to 7 years and also with fine not less than Rs. 10,000/-.  Sub section (1B) provides that any person who contravenes section 38-J would be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to Rs.2,000/- or with both for a first offence and imprisonment upto 1 year or fine upto Rs.5,000/- for a subsequent offence. 
The Wildlife Protection Act, 1972 is stringent in  its approach towards certain offences, albeit contains certain lacunae that are relevant in the present context. The Wildlife Protection Act, 1972 only provides protection to animals that are listed under Schedule I to IV of the act. Therefore any acts of overt aggression/cruelty towards wild animals not under the schedule, or other   animals, are completely beyond the purview of the Wildlife Protection Act, 1972. Thus for example, the Indian Boar that was the original target for fire cracker laden food items have no such protection under the Wildlife Protection Act. These overt acts of cruelty/aggression towards animals not covered under the Wildlife Protection Act, 1972 would thus fall under the purview of the Prevention of Cruelty to Animals Act 1960.
The Prevention of Cruelty to Animals Act, 1960 was enacted on 26.12.1960 with the object of preventing the infliction of unnecessary pain or suffering on animals. The definition of theterm ‘animal’ under Section 2(a) of  the act   as ‘any living creature other than a human being’ . Thus the scope of the act towards animals is very wide, irrespective of provisions of other special statutes such as Wildlife Protection Act, 1972. Chapter II, Section 11 of the actcontains provisions that interalia prohibits acts against animals such as, torture, mutilation wilful administration of injurious substance  among others.  It is disheartening to note that the sanctions provided for, under this provision are very limited in scope, thus defeating the very purpose for enacting such a beneficial legislation. A perusal of Section 11 of the said Act would reveal that the penalty for causing injury or other harm to an animal in the case of a first offence is a fine of not less than Rs. 10/- but which may extend to Rs. 50/- and in the case of a second or subsequent offence committed within 3 years of the previous offence, is a fine which shall not be less than Rs. 25/- but which may extend to Rs. 100/- or with imprisonment for a term which may extend to 3 months or with both. Therefore punishments prescribed under Section 11 of the Act, as discussed are completely inadequate and fails to serve as  an effective  deterrent to acts of cruelty against animals.
The Hon’ble Supreme Court in 2014 noting the lacunae in the said actin Animal Welfare Board of India V. A. Nagaraja & Others, (2014) 7 SCC 547  had recommended that amendment be made to the Prevention of Cruelty to Animals Act, 1960 (“said Act”) to provide for an effective deterrent to achieve the object and purpose of the said Act and for violation of Section 11, adequate penalties and punishments should be imposed.  It is alarming to note that despite the passage of 6 years, no such amendmentshave been made to the said act,
In this regard it is also interesting to note that there is a very low rate of conviction in India in offences relating to animals. The National Crime Records Bureau  in its latest report titled ‘Crimes In India - 2018’ reveals that out of the 3228 cases for trial under the Wild Life Protection Act, 1972 there have  been only 10 convictions thus far. The report is completely silent on any cases instituted, disposed or pending under the Prevention of Cruelty to Animals Act, 1960.
Conclusion
It is imperative that the amendments to the Prevention of Cruelty to Animals Act,1960 as suggested by the Hon’ble Supreme Court be proceeded upon without further delay and laches. Furthermore, farmers should be discouraged from using methods for protecting farms that result in fatal injury to animals. The States should also ensure there is not laxity in prosecution proceedings pertaining to animal cruelty and should create awareness about such laws. Lastly, the members of the civil society and the public in general should be proactive in raising the issue of stricter punishments for such offences towards animals.
(The writer is Advocate/Associate at Enviro Legal Defence Firm (ELDF), Delhi)

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