Delhi High Court has refused to allow a Mahout (elephant owner) to reunite with his elephant, while rejecting his plea of habeas corpus seeking the production of the animal.
The Division Bench of Justice Manmohan and Justice Sangita Dhingra Sehgal has held that jungle is a natural habitat of an elephant as by virtue of its natural characteristics, it requires sufficient water, large area for housing as well as for walking and grazing. Therefore, the court has a duty under the doctrine of parens patriae to take care of the rights of animals.
The present of habeas corpus was filed by a Mahout seeking the release of elephant-Laxmi from the alleged illegal custody of Elephant Rehabilitation Centre.
He also demanded that the said elephant be brought back to Delhi along with visitation rights for him to meet the elephant-Laxmi at the cost of the respondents.
On the grounds of facts, Mr Wills Mathews, who appeared for the petitioner, argued that elephant-Laxmi was a Delhi resident and had been regularly participating in Republic Day parades from the year 1995 to 2007 and was an integral part of various governmental, non-governmental and spiritual functions associated with poojas in temples, marriages, sports, games and opening ceremonies.
He further submitted that the preamble to the Indian Constitution starts with "We" and it has nowhere been implied that it includes "people" only.
It was also contended that the scope of the statement "not being subjected to torture" extends to the fact that an entity cannot be disengaged from someone it is very closely attached with. Therefore, in the present case, secluding elephant-Laxmi from the petitioner would equate to mental agony considering the extent to which they were associated for the last ten years.
After observing all the documents, the court dogs out that the elephant-Laxmi was moved to the Elephant Rehabilitation Centre in pursuance to the order passed by the Chief Wildlife Warden, Delhi after it was found that she, along with other domesticated elephants, had been living in dilapidated conditions with insufficient resources. The said order had also been upheld by the Single Judge of this Court by order dated 5th September, 2018.
The court also relied on the judgement of the Supreme Court in Animal Welfare Board of India vs. A. Nagaraja and Ors. (2014) 7 SCC 547 to hold that since an animal is unable to express itself, the principles of parens patriae jurisdiction will apply to the present case.
The court also noted the fact that there is no documentary proof to establish that the Mahout is the owner of the elephant and/or that elephant- Laxmi cannot live without the Mahout.
Moreover, even if the Mahout is able to establish ownership, it would not be a ground to treat the elephant as his 'slave' and move elephant-Laxmi to an uncomfortable environment against her rights and interests.
The court went on to hold that in the event of a conflict between the rights of the elephant and the alleged Mahout, priority will have to be given to the rights of the elephant. Therefore, as per the court's opinion, Elephant Rehabilitation Centre is better suited to take care of elephant-Laxmi's needs than a Mahout.
Further, the court also noted that allegations of cruelty while shifting elephant-Laxmi cannot be decided in a writ of Habeas Corpus. However, liberty has been given to the petitioner to make a representation before the Elephant Rehabilitation Centre to seek visitation rights.
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