In an interesting ruling, the Madras High Court allowed a man to retain custody of an elephant even though he did not have the Wildlife Protection Act transfer certificate to keep his property.

While the extraordinary order was being passed, a single bank of justice, GR Swaminathan, took note of the emotional bond the animal has developed with its caretaker over the past 20 years.

“She has developed a strong bond with her caretakers. Forcible resettlement to foreign environments will certainly traumatize her,” observed the bank, the elephant named ‘Lalitha’.

The court dealt with a written petition from a Sheikh Muhammad questioning the state wildlife ministry’s move into custody of “Lalitha”. Although he applied for a certificate of ownership, the department refused it. The petitioner said he had cared for the pachyderm since 2000 after buying it from someone else. Lalitha was originally purchased by a G.Thangappan who the department issued a certificate of ownership in 1988. It then changed hands and finally reached Shek Muhammed in 2000.

The department pointed out that, pursuant to Section 39 (3) of the Wildlife Protection Act, prior approval from the authorities should be obtained for the transfer of ownership of a wild animal. Lalitha’s previous sales were not made with such approval from the department. Therefore, the petitioner’s possession of the elephant is illegal, the department said in the affidavit submitted to the court.

The bank was legally consistent with the state of the department. The logical consequence of the status of the department will be that the elephant must be handed over to its care. This was difficult for the bank to accept given the bond the animal had developed with its caretaker and family for over twenty years.

“Elephants are known to be sensitive and self-confident. They have passed the so-called” mirror test “. The German naturalist Peter Wohlleben says after years of direct, personal observation that animals feel the same feelings as humans are able to do so. Feelings of love, sadness and compassion are equally found in animals, “stated Justice Swaminathan in the judgment.

Referring to Article 51A (g) of the Constitution and the SC Judgment in Animal Welfare Board of India Vs. A. Nagaraja and others, the court ruled that “Lalitha is entitled to express her normal behavior”.

Lalitha has been with the written petitioner for more than twenty years. The state hasn’t intervened in all these years and taken them away. It is not as if the petitioner in writing keeps it a secret. The department from time to time issued guidelines which the petitioner followed. The microchip was implanted in her body so that her movements could be tracked, the court found.

The court stated that the peculiar case required the custody approach.

Judge makes surprise inspection

Judge Swaminathan made a surprise inspection to investigate the whereabouts of ‘Lalitha’ near Akkaraipatti, Virudhunagar District

“When I got to the site I found that she was being fed copiously. What I was pleased was that she wasn’t chained at all. Subhahani, the petitioner’s nephew, is her caretaker, along with two mahouts. I checked, there were none. The elephant looked happy and healthy. Subhahani encouraged me to stand near her and feed her, which of course I did. Lalitha showed great kindness. The mahouts in the temples of Tamil Nadu and Kerala would do well to take a leaf out of Subhahani’s dealings with Lalitha and treat her wards appropriately, “remarked the judge with appreciation.

The court also found that Lalitha was being taken to temple functions because of her “majestic participation” and that her “dignity was preserved” because she was not used for begging.

“Lalitha has been used to a particular lifestyle over the years. She changed hands from 1988 to 2000. But she has been in the petitioner’s care for twenty years. She has attended religious events. She is well fed. She is in good health. Indeed, the veterinarians appointed by the department have confirmed that she is properly serviced by the petitioner. If she is released from the petitioner’s custody, she will certainly suffer a deep psychological wound, “the judge stated.

As a result, the court concluded that it was not in their best interests to allow the department to take her custody.

“Applying the standard of what is good for Lalitha, I must state that the current regime should continue. Lalitha should continue to be with the petitioner and take part in the religious events held in the region,” the court concluded.

Justice Swaminathan also interacted with the owner of the coconut groove that Lalitha is kept in. The owner assured that the land would not be sold or encumbered during Lalitha’s lifetime.

“She also gets plenty of water for drinking and bathing. The atmosphere is very beneficial,” the court found.

The court said in this case: “The rights of the animal are more relevant and they determine the outcome, not the formal validity of the administrative regulation.”

Although the court upheld the department’s order to deny the transfer certificate, it allowed the petitioner to retain custody of the elephant.

The petitioner has been instructed to provide written information of the annual itinerary to the authorities on which to grant permanent permission. The respondents are free to inspect the animal at any time, the court clarified. The court added that the parties are free to request an amendment to the agreement if circumstances warrant.

The same applies to the Supreme Court

A similar case was examined by the Supreme Court last year. A mahout filed a habeas corpus petition seeking custody of the elephant, which the department confiscated from him, citing the lack of a certificate of ownership. The petitioner alleged that the animal had developed a special emotional bond with him and his family over the past 13 years. Since the Supreme Court was reluctant to uphold the plea, it was withdrawn.

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