The Division Bench of the Gauhati High Court comprising of Chief Justice (Acting) Mr. Arup Kumar Goswami and Justice Manish Choudhury disposed of the PIL seeking intervention of the High Court in regard to the decision of the State Government taken to transport on lease for six months four elephants from Tinsukia in upper Assam to Ahmedabad in Gujarat for participating in the Annual Rath Yatra festival to be held from 4th of July, 2019.
The Division Bench by order dated 25.06.2019 (Tuesday) expressed that it is ill-fit to make any comment as to in what manner the elephants are to be transported. But, before any such steps are taken the relevant circumstances have to be taken into consideration in mind as the safety of the elephants is of paramount importance and this aspect has to be considered and be left to the experts.
Therefore, this obligation was passed by the Division Bench to the Principal Chief Conservator (Wildlife) and Chief Wild Life Warden, Assam. Apparently, in passing the order granting permission it is not indicated that the heat-wave aspects have been considered.
Whether, it was necessary to take into consideration at that point of time, the Court expressed no comments, but, since the issue has been raised in the PIL , the Division Bench is of the opinion that the Chief Wild Life Warden, Assam shall pass a fresh order considering all aspects of the transport of the elephants.
The Additional Advocate General, Assam submitted that Air Conditioned wagons for the transport of the elephants are not available as communicated to him by the Standing Counsel, Railway Department. Therefore, the Division Bench directed that fresh orders may be passed on or before 27.06.2019 and the copy of the said order be furnished to Mr. Bhaskar Dev Konwar, Senior Advocate for the petitioners on the day itself of passing of the order.
Mr. Bhaskar Dev Konwar, Senior Advocate appearing on behalf of the petitioners has submitted before this Court that the order dated 04.05.2016 passed by the Hon’ble Supreme Court directing that the persons who are in possession of the elephants shall not transfer the elephants outside the State nor shall they part with the elephants by way of their transfer in any manner.
Accordingly to Mr. Konwar, the Chief Wildlife Warden while granting the permission did not consider this aspect of the matter and further from the order of the Chief Wildlife Warden it also does not reflect that the distance to be covered and the prevailing heat-wave conditions was not taken into consideration.
Therefore this order is a result of total non-application of mind. The Addl. Advocate General of Assam had submitted that the concerned authority for passing orders for transportation of the elephants was alive of the order of the Supreme Court though not mentioned in the order and this submission is based on the interaction of with the concerned officer with their Counsel(s).
The Asst. Solicitor General of India submitted before the Court that though he asked for instruction from the concerned authorities of the Union of India, it was orally communicated to him that some instruction is likely to be sent to the State Government. Standing Counsel Railway has also submitted that, it has come to the notice of the Railway authorities that the Supreme Court had passed an order restricting transport of animals from one State to another. In this regard the Railways sought clarification from the Forest Department, but since no response was received the Railways had decided to keep the Transit Permits on hold. In the attending facts and circumstances having regard of the submission of all the parties and available materials. The Court was of the opinion that the interim order of the Supreme Court ought to have been reflected in the order of the Chief Wild Life Warden.
Ever since, the Chief Wild Life Warden of Assam granted the permission by separate orders issued on 12th, 13th & 14th June, 2019for transporting four juvenile elephants namely, Joytara (female, Babulal(male), Rupsingh(male) and Rani (female) from Tinsukia to Gujarat for religious purposes, animal rights activists of the State have been protesting such transfers as they will be exposed to extreme heat conditions over several days which would be gruelling and perilous to the elephants and would subject them to unnecessary pain and suffering and the same is therefore, cruelty to animals within the meaning of section 11(d)(e) and (f) of the Prevention of Cruelty to Animals Act, 1960. Under such circumstances the PIL was filed by two animal rights activists of the State Ms. Nandini Baruah and Ms. Urmi Mala Das.
The animal rights activists have expressed their opinion that it will be now interesting to see whether the Chief Wildlife Warden, Ms. Ranjana Gupta, in the attending facts and circumstances will continue with the process of transporting the juvenile elephants to Jagannath Temple, which has the poorest record in elephant management.