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The Case of Laxmi the Elephant and Animal Rights in India

By Kevin Schneider

In January, the Delhi High Court rejected India’s first-ever habeas corpus petition on behalf of a nonhuman animal. NhRP Executive Director Kevin Schneider explains why the Court’s decision to reject the petition is actually a good thing—for Laxmi (now known as Jasmine) and the fight for nonhuman rights. As the NhRP prepares to assist in the filing of a nonhuman rights lawsuit in India in 2021, this case is especially significant. Thanks to Sonia Shad and Vivek Mukherjee for their assistance with this post!

For those of you familiar with the Nonhuman Rights blog, we’ve been excitedly tracking Indian legal developments for years, especially those involving nonhuman animal personhood and rights. Our legal team routinely cites Indian cases in our legal briefs, in particular the landmark 2014 Indian Supreme Court decision Animal Welfare Board of India vs. A Nagaraja and Ors. (2014 7 SCC 547). Nagaraja stands for the premise that all nonhuman animals in India are “legal persons,” meaning that they all have the capacity for legal rights (NhRP President Steven M. Wise and I met the author of the opinion, Justice K.S. Radhakrishnan, in Delhi in 2018 and discussed his reasoning and motivations in writing it).

India has perhaps the world’s best laws when it comes to nonhuman animals (at least on paper). India also shares much of its common law with the United States and other English-speaking jurisdictions. This strong legal foundation makes our work a lot easier, at least in theory. As part of our growing international work, the NhRP has been actively working with lawyers and activists in India for several years to develop a strategy to build on the country’s emerging animal rights jurisprudence.

While we were preparing what we believed would be the first-ever habeas corpus petition on behalf of an elephant (or any other nonhuman animal) in India, someone else beat us to it (kind of).

A mahout, or elephant handler, filed the habeas petition on behalf of Laxmi, an elephant he claimed to own, in the High Court of Delhi, India.

Under the ownership of her former mahout, Laxmi (approx. 50 years old) had for two decades been forced to participate in government functions, religious gatherings, sports events, and opening ceremonies.

In or about 2018, the Chief Wildlife Warden of Delhi ordered that Laxmi and other elephants living in similarly dilapidated urban conditions be sent to an Elephant Rehabilitation Center (a government-run forest preserve). Two benches of the Delhi High Court upheld the Warden’s order in 2018 and 2019.

After Laxmi was transferred to a rehabilitation center in 2019, the mahout claimed that separating Laxmi from him caused Laxmi “mental agony” and therefore she should be released from the rehabilitation center, which he claimed was keeping her in “illegal custody.” The mahout also made allegations of mistreatment against the rehabilitation center.

The Delhi High Court has been the source of several promising judgments in recent years, including a case stating that birds have a fundamental right to fly. People for Animals v. MD Mohazzim, CRL.MC.2051/2015 (High Court of Delhi May 15, 2015) (Steve and I met the author of that opinion, Judge Monmohan Singh, in Delhi in 2018).

The Delhi High Court issued its decision in Laxmi’s case on Jan. 20, 2020. The Court began by stating it would “leav(e) aside the issue of the maintainability of the present writ of Habeas Corpus.” Instead the court chose to apply the doctrine of parens patriae, the same legal doctrine the Supreme Court applied in Nagaraja, under the premise that Indian courts have a duty to protect the rights of all animals. What this means in practice is very complicated and something the NhRP’s lawyers are still working to fully understand.

What’s abundantly clear is that the Court went on to rule that Laxmi, as an elephant, has needs that are better met in an environment such as a forest preserve that has sufficient water, space for moving and grazing, and spacious housing as opposed to an urban setting like Delhi. As such, her presence at the Elephant Rehabilitation Center could not constitute an illegal confinement.

So what is the key difference between our habeas petitions and that filed by the mahout? The mahout claimed to own Laxmi. However, a habeas corpus case does not focus on the rights of a third-party petitioner, but rather on the question of whether a person is being illegally detained. Habeas corpus is not available to reclaim property.

In what is perhaps the most promising part of the opinion, the Court made clear that even “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.” Even an owner has no right to treat an elephant like a “slave” and keep her in an uncomfortable urban environment against her rights and interests, the Court ruled. This echoes 19th century judgments against masters who brought habeas corpus cases seeking to regain custody of apprentices who had been drafted into the military and had no desire to return to them. R. v. Edwards, 7 T.R. 745 (King’s Bench 1798); R. v. Reynolds, 6 T.R. 497 (King’s Bench 1795).

For those familiar with the NhRP’s habeas corpus work on behalf of Happy, who has been imprisoned for over 40 years on one acre of land at the Bronx Zoo, the mahout’s case would be the equivalent of the Bronx Zoo suing a sanctuary demanding Happy’s return.

Interestingly, Laxmi’s former mahout cited the Order to Show Cause issued by the Orleans County Supreme Court in Happy’s case in November of 2018 (the first time in history that a judge ordered a habeas corpus hearing for an elephant). The mahout argued that issuance of the writ to Happy established the principle that elephants are fit candidates for habeas corpus.

Happy was the first elephant in the world to be the subject of a habeas corpus proceeding with Laxmi apparently being the second. We submitted Laxmi’s case to the judge in Happy’s case, both as evidence of how much the world is paying attention to what happened in her courtroom and that our core arguments are sound in other countries utilizing the common law and that of habeas corpus specifically.

How Laxmi’s Decision Helps the NhRP and the Nonhuman Animal Rights Movement

While Laxmi’s case may at first appear to be a blow against elephant rights and nonhuman animal rights generally in India, in reality, the case establishes that the interests, welfare, and rights of an elephant (and presumably other nonhuman animals) are not necessarily subordinate to any rights a human may claim to them.

The important takeaway of this case is that the dismissal of Laxmi’s petition does not mean that future habeas corpus petitions for nonhuman animals must be dismissed.

The Nagaraja case and subsequent high court rulings following a similar path (declaring all nonhuman animals to be persons) are a signal to the NhRP that time and investment in India is well spent.

Nagaraja came about as an attempt to end a discrete practice called “jallikattu,” bull races popular in some parts of India. Jallikattu is similar to a rodeo or bullfight in Western countries and equally cruel to the bulls (or “bullocks” as they are referred to commonly in India).

The Court describes the brutal harms inflicted on bulls used in jallikattu, including: ear cutting; biting and twisting of tails; beating with sticks and knives; use of loud distressing sounds; use of irritant solutions to agitate; use of nose ropes; withholding food and water; plying the bulls with alcohol; spectators beating or agitating bulls; forcing bulls to stand on their own waste; deliberate injuries to anus of bulls to agitate them, and; lethal injuries to participants (human and bull).

The petitioners sought only to end this one practice on the basis of its cruelty to bullocks, not to extend legal personhood to every nonhuman animal in India (the lawyer who argued the Nagaraja case to the Supreme Court, Raj Panjwani, is a long-time friend of the NhRP and assists the NhRP’s work in India).

It was therefore curious that the Supreme Court chose to expand the issue into one involving every nonhuman animal in India (assuming this includes insects, which on its face it does, this alone represents trillions of individual animals).

While the NhRP legal team is thrilled to see judges utilize common law principles to recognize the rights of nonhuman animals, we believe the Nagaraja case is too broad and that any decision that purports to give rights to elephants and fleas in the same breath is likely to be of limited utility in practice, even to elephants.

Nagaraja is a milestone, but it is nonetheless built on a less-than-clear theoretical foundation. The opinion vacillates between welfarist and rights approaches and, most importantly, it does not provide guidance on where to draw the line vis-à-vis the “doctrine of necessity” in a rights framework. In other words, it does not make clear why it is “necessary” and therefore permissible to kill and eat bullocks but “unnecessary” and therefore not permissible to use them for jallikattu. (Note: The Nagaraja saga continues: the case has been referred to a constitutional bench of the Supreme Court and hearing may resume soon. One of the parties to the case, the Indian state of Tamil Nadu, took advantage of loopholes in Nagaraja to enact a state law which ‘regulates’ rather than bans jallikattu. As a result, there were jallikattu events organized in Tamil Nadu in 2020).

The challenge in India then, as it is in every jurisdiction in which we work, is to take the principles and values judges claim through their written opinions to believe in—dignity, consciousness, autonomy, sentience, or something else—and build our cases around them.

Another challenge is to present a case to the courts that has an opportunity to change the lives of one or more discrete nonhuman animals, as in the case of Laxmi or Happy being removed from captivity and sent to a more natural setting where her right to liberty will be respected. Otherwise, we fear, courts will simply issue rhetorical flourishes that makes their decisions inspiring to read but have little to no direct impact on the lives of actual nonhuman animals.

India is one of the most exciting theaters in the world right now to watch the first stage of nonhuman animal rights jurisprudence. Please stay tuned for more updates on Indian case law as well as our own plans in the country.

Wildlife S.O.S., which led the initial rescue efforts, recently reported that Laxmi, now known as Jasmine, is thriving in her new home at the Wildlife Rehabilitation Centre.

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