Inherent Right In All Creatures To Live With Honour And Dignity: Calcutta High Court

The Calcutta High Court, while allowing the Public Interest Litigation (PIL) , observed that there is an inherent right in all creatures to live with honour and dignity.

The Court directed the State of West Bengal to take necessary and effective measures at their borders to ensure that no illegal or unlawful transportation of elephants takes place.

A PIL was filed by the Cage Foundation pertaining to illegal transportation of elephants out of West Bengal to different States, including Bihar.

The Bench of Justice Ravi Krishan Kapur and Justice Arindam Mukherjee observed, “In such circumstances, in view of inter alia the illegal transfer and transportation of the above three elephants, W.P.A 19941 of 2018 stands allowed. The three elephants belong to the State of West Bengal. The respondent no.2, being the Chief Conservator of Forests (Wildlife), who is also the Chief Wildlife Warden, is directed to take all necessary and expeditious steps by interacting with the Appropriate Authorities of the State of Bihar, State of West Bengal and any other third party in order to expeditiously bring the above three elephants back to the State of West Bengal. The State of West Bengal is also directed to take necessary and effective measures at their borders to ensure that no such illegal or unlawful transportation of elephants takes place to outside the State of West Bengal.”

Advocate Dhruba Ghosh represented the Petitioner, while Advocates Partha Sarathi Deb Barman and Noelle Banerjee represented the Respondents.

Case Brief

A PIL was filed regarding illegal transportation of as many as 24 elephants outside the State of West Bengal, out of which three elephants were unlawfully taken to the State of Bihar.

It was the case of one of the Respondents that he is the owner of three elephants, which are alleged to be illegally transported from the State of West Bengal to Bihar. As per the said Respondent, the three elephants were originally working at Circus and later the proprietors of the Circus executed a Gift Deed in 2017 in the favour of the Respondent, thereby making the Ashram (the said Respondent) the lawful owner of the three elephants in question.

The Petitioner contended that there had been a violation of the provisions of the Wildlife Act, 1972. There was no prior permission of Chief Wildlife Warden for transportation of any elephant outside West Bengal. Furthermore, it was contended that the said Respondent has failed to establish any ownership certificate in respect of any of the three elephants.

It was also the case of the Petitioner that the three elephants are being illegally held by the Ashram and kept in poor conditions, chained with spiked shackles for most of the day with three legs tied on a cemented floor, resulting in skin diseases and untreated wounds.No health records of the elephants were also being maintained by the Ashram. The elephants were also being commercially used.

The State contended that the said Respondent was in violation of the mandatory provisions of the Wildlife Protection Act and guilty of illegally transporting the elephants outside the State of West Bengal.

Court’s Reasoning

The Calcutta High Court firstly noted that the Circus was not the owner of the elephants as the ownership certificate issued in the favour of the Circus already expired in 2013 and the same was never renewed. Thus, as per the legal principle Nemo Dat Quod Non Habet, no one can transfer a better title than he himself possesses, the alleged gift deed in favour of the said Respondent is unlawful, non-est and void.

“On a conjoint reading of sections 39 and 40 of the Act, it is apparent that in the absence of an ownership certificate and any prior permission from the Chief Wildlife Warden, no person can acquire, receive, keep in his control, custody or possession of any animal under Schedule I or Part II of Schedule II of the Act”, the Court emphasised.

The Court referred to Article 51A( g) of the Constitution that recognizes the requirement to have compassion for all living creatures as it is also the inherent right in all creatures to live with honour and dignity.

On perusal of the Inspection Report filed by the Chief Wildlife Warden, the Bench noted that the photographs of the three elephants indicate obesity concerns, chronic foot rots, deformations and discolorations formed on the foot of the three elephants. In addition, clear unhealed wound marks were also visible on the elephants caused by the sharp spiked bracelets, around the feet of the elephant to restrict their movement. The photographs and video also suggest the use of sharp spears and ankus to induce fear to control the elephants which is prohibited in law. The Report further indicates the different ways in which the elephants have been ill-treated.

In the light of the above, the Calcutta High Court held that the Respondent is not the owner of the said three elephants and they belong to the State of West Bengal. The State Government was also directed to take necessary and effective measures at their borders to ensure that no illegal or unlawful transportation of elephants takes place.

Later, the said Respondent also prayed for stay of operation of judgment which was duly considered and rejected by the Court.

Accordingly, the Writ Petition was allowed.

Cause Title: Cage Foundation & Anr V. State of West Bengal & Anr.

Appearance:

Petitioners: Advocates Dhruba Ghosh, Biswanath Chatterjee, Ajeya Chowdhury, Sobhan Kumar Pathak

Respondents: Partha Sarathi Deb Barman, Anindya Sundar Das, Anup Dasgupta, Ratul Deb Banerjee, Sourojit Mukherjee, Syed Ali Afzal, Suman Halder for Respondent No. 5 and Advocate Noelle Banerjee for the State.

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