Proposed amendment to wildlife law will create loopholes for elephant trade

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I thank SS Bist for his thoughtful response to my recent article on proposed changes to the Wildlife Protection Act. I cannot match the wealth of his experience, but for the sake of brevity, I offer the following corrections:

  1. Elephant in captivity exception: Before 2003, it may have been wrong to say that elephants are the only wild animals you can own. After an amendment in 2003 (Law 16 of 2003) a reservation was added to Section 40 of the Wildlife Protection Act restricting the power of the Chief Wildlife Warden to grant certificates of ownership only for “living elephants”. Therefore, after 2003, only an elephant (and no other wildlife) can be privately owned. Hence the “captive elephant” exception in law. I respectfully urge Bist to read the latest draft of the Wildlife Protection Act and correct a mistake often made by many.
  2. Regulation of trade in elephants: Section 49B of the Wildlife Protection Act only prohibits trade in articles/body parts of an animal, not the live animal itself. It does not apply to trade in elephants in captivity and is therefore an erroneous reference. Section 43 is the operational provision that prohibits trade in all wild animals and items obtained from their bodies. In article 43, the word “assignment” refers specifically to “the sale or offering for sale or by any other mode of consideration of a commercial nature” and not only to the simple physical assignment.
  3. Wildlife Amendment Act 2021: The proposed amendment, by exempting the transfer of live elephants, is an exception to Articles 43 and 49B. A clear consequence of the proposed amendment would be to legalize any future trade in “live elephants”, an interpretation that has been emphasized and pointed out by all leading wildlife experts in the country, regardless of their ideological leanings. To hold a contrary opinion would be an act of misplaced heroism.
  4. False logic: Following the logic extended by Bist to my example of Joymala, an elephant, can we then say that since elephants in the wild in India are still killed for ivory, despite a clear prohibition in Section 9 (on the hunting) and 49B (on articles taken from their bodies), it would be better to legalize this? Definitely not. A regressive legal measure to control illegal activity will not solve the current problem, which in this case is the demand for more captive elephants that is only being met in the wild. (Elephants rarely breed in captivity, and when they do, the survival rate of calves in forest camps is extremely low.)

SS Bist may still disagree with me on policy, but that doesn’t change the threat that the latest Wildlife Protection Act amendment poses to elephants, by creating loopholes for their capture and trade. .

I ask that this conversation be read as a constructive dialogue that brings clarity, provides a correct understanding of the law, and unites our common goal of protecting what is most paramount: the welfare and rights of elephants.

Alok Hisarwala is an animal rights lawyer based in Goa.

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