'How Can You Ask Elephants To Keep 3 Meter Distance? Kerala High Court's Directions Impractical': Supreme Court

The Supreme Court today (December 19) while effectively staying the restrictions imposed by the Kerala High Court dated November 13, including that a minimum distance of 3 meters should be there between elephants during processions in temple festivals, remarked that the High Court should not have exercised suo moto powers and issued directions in "vacuum".

The Court said: "If there is some kind of practice or custom by temple, we don't want that in the name of animal rights, something being affected like that. There should be a balance. They should follow the Rules."

While directing strict compliance with the Kerala Captive Elephants (Management and Maintenance) Rules, 2012,  the Supreme Court remarked that "Article 226 suo moto is unwarranted in certain circumstances" after it noted that there was "no complaint of violation [of Rules]."

These oral remarks were made by a bench of Justices BV Nagarathna and NK Singh while hearing an SLP filed by management committees of Thiruvambady and Paramekkavu Devaswom, the organisers of the iconic Thrissur pooram(festival), challenging the directions passed by the High Court for effective implementation of the 2012 Rules. While ensuring effective implementation, the High Court also passed additional directions in addition to the Rules. 

At the outset, Senior Advocate Kapil Sibal (for petitioner) submitted that the High Court is now monitoring a  "250-year" festival, a part of "UNESCO's heritage, which is their "essential religious practice". He said he is aggrieved by the directions passed by the High Court, which are also contrary to the Jallikattu judgment. 

He added that it is not the case of the Respondents that they have violated any rules.

The specific directions highlighted by Sibal were the District Committee formed under Rule 10, shall ensure: "The District Committee shall consider the availability of space inside temples or other places where the exhibition or parading is proposed and will ensure that no permission is granted unless the venue where the exhibitions or parading of elephants is proposed has sufficient space to parade the elephants with (i) a minimum distance of 3 meters between two elephants, (ii) a minimum distance of 5 meters from the elephant to flambeau or any other source of fire, (iii) a minimum distance of 8 meters from the elephant to the public and any percussion display, (iv) Necessary barricades are placed between the public and elephants (v) minimum distance of 100 meters is maintained from any place where fireworks are used and the place where the elephants are exhibited (vi) proper shade shall be provided to ensure that the paraded elephants are not exposed to the hot sun for elephants and a facility for feeding the elephants and providing drinking water to the elephants..."

He added that the Arat ritual of the Arattupuzha Pooram festival would commence on January 5, 2025 and the 15 elephants would be there for a procession from 4:30 pm to 7 pm. However, with this directions, only 5 elephants will have to be accommodated. He prayed that the directions be stayed. 

Senior Advocate Siddhartha Dave (appearing for one of the Respondents, animal rights group) submitted that the 2012 Rules were found to be "inadequate" and therefore, the High Court only supplemented these Rules. However, Justice Nagarathna remarked that the "Court cannot substitute itself for a rule-making authority".

She questioned: "How do you expect the elephant to maintain 3 meters distance? Practically impossible. If the elephants want to go and bond? With due respect to the High Court, these are impractical. For various reasons, if they want to bond or want to go near other elephants, you are saying [maintain distance]?"

One of the Counsels appearing for the Respondent-animal rights activist also opposed the petitioners' plea. She said: "Kerala High Court has been reviewing some of the animal rights cases. Some of the benches have been looking at the welfare of the captive elephants. Kerala has a large number of captive elephants."

She explained that it started with the High Court hearing a PIL after a dog named Bruno was tied to a fishhook and tortured to death using sticks after which the High Court took suo moto cognisance on animal cruelty and it eventually led them to a hearing on the cruelty caused to captive elephants. 

On this, Justice Nagarathna questioned: "What cruelty?"

The Counsel responded: "The manner in which these elephants are trained to stand. In their natural characteristic, they cannot stand for so long and so close to other captive elephants. Very heavy adornments. It's very hot, very loud and extremely crowded...There is a clipping where some elephant has gone amok and attacked two other elephants...During this Pooram festival, they are forced to travel from one festival to other which is why there are some restrictions on how much they can be forced to travel overnight by walking or by truck. Extremely strenuous on the elephant...This is not an issue of ban of procession. This is an issue for regulation of safety. " 

However, Justice Nagarathna said: "If the devotees are coming despite there being so many elephants, the principle of volenti non-fit injuria will apply. They are taking the risk of coming [and attending the festival]..If anybody is scared of any injury because of the elephant, they need not come to the temple. Those who come to the temple, they are taking the risk of being in front of the elephant."

Sibal clarified that "nobody has been injured" and it is not the case that the respondents have anything to show on evidence that devotees have been harmed in the procession.

Justice Nagarathna on being told of a clipping where an elephant went amok, said: "When you cannot predict the actions of a human being, [when how can you predict the nature of an animal]...when they are using [elephants] for a particular purpose, we don't think we should interfere in such matters. They will pay the penalty if no insurance if any accident occurs. See, in forest, the elephants are getting electrocuted when they lift their trunk..the electricity is made to run in the fences of the coffee, tea estate. You are not attacking all this? "

Case Details: Thiruvambady Devaswom and another v. Union of India., SLP(C) No. 30389-30390/2024

Appearances: Senior Advocate Kapil Sibal (petitioner) & Siddharth Luthra & Siddhartha Dave