CHENNAI: Madras high court on Wednesday set aside a single judge order that prohibited any new acquisition of elephants by temples and private individuals in Tamil Nadu. The court also set aside another direction of the single judge that a call should be taken on shifting all captive elephants, temple-owned and privately owned, to govt rehabilitation camps.The first bench of Chief Justice Sushrut Arvind Dharmadhikari and Justice G Arul Murugan pointed out that when the Tamil Nadu Captive Elephants (Management and Maintenance) Rules, 2011, framed under the Wildlife (Protection) Act, 1972 permits such acquisition, the court issued prohibition cannot sustain.“A validly made subordinate legislation of this kind has the force of law and continues to bind until it is set aside by a competent forum in appropriate proceedings or amended by the rule-making authority itself,” the court said.The bench added that a court cannot, in the course of deciding an individual case, issue a direction that has the practical effect of overriding such rule, without the rules itself being under challenge and being found to be beyond the rule-making power or otherwise invalid.The single judge had passed the order ‘heavily’ relying on another interim order passed by the then first bench in 2021 that the ‘state should ensure that no further elephant is taken into captivity except for the purpose of treatment of such elephants if found unable to support itself in the wild.’Refusing to concur, the court said, “A plain reading of the aforesaid direction makes is ostensibly clear that the same, in substance, is a conservation direction, aimed at stopping any fresh depletion of the wild elephant population, save where an elephant genuinely cannot survive in the wild and needs to be taken in for treatment.”The second sentence of the same paragraph reinforces this reading. It says that no private person may capture an elephant, and it protects those elephants already existing in captivity, rather than disturbing them, the bench said.The court passed the order while allowing an appeal moved by Arulmigu Sri Subramania Swami Thirukoil, Thiruchendur and the state govt alleging that the single judge had passed the blanket ban without even hearing the temples concerned and the govt.
