Kerala
S.M.T. Fed. Vs. Kerala T.B.O. Assn [1994] INSC 348 (23 June 1994)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Agrawal, S.C.
(J)
CITATION:
1994 SCC (5) 28 JT 1994 (7) 33 1994 SCALE (3)29
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- These appeals
manifest the ongoing conflict of interest between traditional fishermen and mechanised
fishing boat operators in the territorial waters of Kerala and the attempts of
the Government to balance their contending demands. Fishing in the territorial
waters and beyond has always been the major source of livelihood for fishermen
all along the coast of Kerala. Till the early Seventies, fishing
was confined to traditional type of vessels, viz., catamarans, country craft
and canoes.
Thereafter,
mechanised vessels using several types of fishing gear including
bottom-trawling were introduced which soon gave rise to a conflict between the
traditional fishermen and the new class of mechanised boat operators.
"While
these inputs (have) contributed to enhance the marine fish production, they
(have) also brought forth a number of resource-related and socioeconomic
problems necessitating serious management considerations. One such problem area
is fishing during monsoon being practised by the mechanised vessels in some of
the States along the west coast particularly in Kerala. This activity which was
started in the Seventies with the advancements in the operational capabilities
of mechanised vessels in the context of increasing demand for fish in the
internal and external markets, soon belied its advantages. It is perceived as
competing with the artisanal fisheries in the inshore waters and fostering
resource degradation as bottom- trawling during monsoon period is apprehended
to adversely affect the spawning populations and subsequent recruitment."
(From the preface to the CMFRI Bulletin 45 34 - "Monsoon Fisheries of the
West Coast of India Prospects, Problems and Management" published by
Central Marine Fisheries Research Institute, a wing of the Indian Council of
Agricultural Research).
The
present dispute is confined to the permissibility of bottom-trawling during the
monsoon months a period of about six to eight weeks. The subject-matter of
challenge in the writ petitions filed by the operators of bottom-trawling mechanised
boats are two orders made by the Government of Kerala under Section 4 of the Kerala
Marine Fishing Regulation Act, 1980. By virtue of these orders, not only was
bottom-trawling prohibited altogether within the territorial waters ('specified
areas') for a period of 44 days monsoon period in the year 1992, the boats of
the writ petitioners were practically confined to the seashore during the said
period; they were not to stir out to sea for the said period.
2. It
is stated that most of the mechanised boats engaged in bottom-trawling are of
Norwegian origin with a length of about 32 feet and fitted with an engine of 48
to 60 HP.
Bottom-trawling
may broadly be described as scraping the bottom of the sea for fish. It is obvious
that deeper the sea, larger should be the fishing gear, which in turn calls for
a bigger boat. According to the State of Kerala, the boats of the writ
petitioners (respondents in these appeals) can engage in bottom-trawling only
up to a depth of 30-35 metres inasmuch as the length of wire rope required is
five times the depth (with a little extra for meeting emergency situations).
The writ petitioners (owners/operators of mechanised boats engaged in the
bottom-trawling) who are the contesting respondents in these appeals dispute
this assertion. They say that they are capable of bottom- trawling in far
deeper waters. Yet another point of dispute is : According to the State of Kerala,
the depth of sea beyond territorial limits (22 kms) is 45 to 50 metres or more,
while according to the writ petitioners, the depth is less than 50 metres at
many places beyond the territorial waters' limit. In short, the case of the
State is that the boats of the writ petitioners (of 32 feet length fitted with
an engine of 48 to 60 HP and the fishing gear they carry) are capable of
bottom-trawling only within the territorial waters whereas the writ petitioners
say that they can bottom-trawl not only within but also beyond the territorial
waters. Basing on its assertions aforesaid, the Government of Kerala has issued
the impugned orders. Yet another ground given by the Government for supporting
the said orders which ground is strongly supported by traditional fishermen is
that bottom-trawling during monsoon months has extremely adverse effects on the
growth and availability of fish, in particular, on the spawning of the fish.
According to them, the gradual decrease in the fish haul is mainly the result
of bottom-trawling during monsoon period. They say that bottom-trawling during
the monsoon months is seriously affecting the livelihood of the traditional
fishermen. They point out that for this very reason, this Court has upheld a
complete ban on use. of purse 35 seines, ring seines etc. by mechanised
boat-operators within territorial waters in the State of Kerala v. Joseph Antony1.
RELEVANT
PROVISIONS OF LAW AND THE NOTIFICATIONS
3.
Entry 57 of List I of the Seventh Schedule to the Constitution specifies
"fishing and fisheries beyond territorial waters" as a Union subject,
whereas Entry 21 of List II speaks of 'fisheries' as a State subject. Though
Entry 57 of List I speaks both of 'fishing' and 'fisheries', they do not appear
to carry different meanings in the context relevant herein. The word 'fishery'
is given the following meanings in the compact edition of the Oxford English
Dictionary:
"(1)
the business, occupation or industry of catching fish, or of taking other
products of the sea or rivers from the water.
(2) a
place or district where the fish is caught; fishing ground.
(3) a
fishing establishment; coll. those who are engaged in fishing in a particular
place.
(4) the
right of fishing in certain works.
(5) fish
of different kinds."
Whichever
meaning one adopts, it does not seem to convey any different connotation than
the expression 'fishing'.
Therefore,
nothing turns up on the difference in language employed in Entry 57 of List I
and Entry 21 of List II.
Reading
both the entries together, it follows that control and regulation of fishing
and fisheries within territorial waters is the exclusive province of the State,
whereas beyond the territorial waters, it is the exclusive domain of the Union.
4.
With a view to provide for the regulation of fishing by fishing vessels in the
sea along the coastline of the State, the Legislature of Kerala enacted, in the
year 1980, the Kerala Marine Fishing Regulation Act (Act 10 of 1981)
hereinafter referred to as the 'Kerala Act'. The preamble to the Act recites
that "whereas it is necessary to provide for the regulation of fishing by
fishing vessels in the sea along the coastline of the State", it was
enacted. Section 2 defines certain expressions occurring in the Act. Clause (h)
of Section 2 defines the expression "specified area".
It
means- "such area in the sea along the entire coastline of the State, but
not beyond territorial waters, as may be specified by the Government, by
notification in the Gazette." Section 4 empowers the Government to
regulate, restrict or prohibit fishing in the territorial waters, while Section
5 prohibits the use of fishing vessels in contravention of the orders made
under Section 4. Having regard to their crucial relevance, it is appropriate to
set out Sections 4 and 5 of the Act in their entirety :
"4.
Power to regulate, restrict or prohibit certain matters within specified area.-
(1) The Government may, having regard to the matters referred to in sub-section
(2), by order notified in the Gazette, regulate, restrict or prohibit- .
1
(1994) 1 SCC 301 36
(a) the
fishing in any specified area by such class or classes of fishing vessels as
may be prescribed; or
(b) the
number of fishing vessels which may be used for fishing in any specified area;
or
(c) the
catching in any specified area of such species of fish and for such period as
may be specified in the notification; or
(d) the
use of such fishing gear in any specified area as may be prescribed.
(2) In
making an order under sub-section (1), the Government shall have regard to the
following matters, namely-
(a)
the need to protect the interests of different sections of persons engaged in
fishing using traditional fishing craft such as catamaran, country craft or
canoe;
(b) the
need to conserve fish and to regulate fishing on a scientific basis;
(c) the
need to maintain law and order in the sea;
(d) any
other matter that may be prescribed.
5.
Prohibition of use of fishing vessel in contravention of any order made under
Section 4.- No owner or master of a fishing vessel shall use, or cause or allow
to be used, such fishing vessel for fishing in any manner which contravenes an
order made under Section 4 :
Provided
that nothing in such order shall be construed as preventing the passage of any
fishing vessel from, or to, the shore, through any specified area to, or from,
any area other than a specified area the purpose of fishing in such other area
or for any other purpose :
Provided
further that the passing of fishing vessel through any specified area shall not
in any manner cause any damage to any fishing nets or tackles belonging to any
person who engages in fishing in the specified area by using any traditional
fishing craft such as catamaran, country craft or canoe."
5.
Sub-section (1) of Section 4 specifies the ambit of the power while sub-section
(2) specifies the objectives to achieve which the power under sub-section (1)
is to be exercised. The objectives set out in the sub-section (2) inter alia
are (a) the need to protect the interests of the different sections of persons
engaged in fishing particularly those engaged in fishing using traditional
fishing crafts such as catamaran, country craft or canoe;
(b) the
need to conserve fish and to regulate fishing on a scientific basis; and (c)
the need to maintain law and order in the sea. The restrictions, regulations
and prohibitions that can be imposed by the State under sub-section (1) include
specification of areas, specification of class and length of fishing vessels
and the number of vessels which can be used for fishing in the specified area,
specification of the species and of fishing periods in a specified area.
Section
5 says that no owner or master of the fishing vessel shall use or allow the
vessel to be used in any manner contrary to the orders 37 made under Section 4.
The first proviso to Section 5 clarifies that nothing in any order made under
Section 4 shall be construed as preventing the mere passage of any fishing
vessel from or to the shore through any specified area for fishing beyond
territorial waters. This clarification is accompanied by a rider (second
proviso) to the effect that such passage shall not in any manner cause any
damage to any fishing nets or tackles being used by traditional fishermen
within the territorial waters. The purport of the two provisos, in short, is to
provide for what may be described as 'innocent passage' if we can borrow the
expression from a different context through the territorial waters. These
provisos have to be understood in view of the constitutional limitation upon
the power of the State Legislature explained hereinbefore. So far as Parliament
is concerned, it is admitted that it has made no law regulating or prohibiting
fishing beyond the territorial waters nor has the Union Government issued any
such orders in exercise of its executive power.
6.
With a view to collect the relevant data, information and particulars to enable
them to make orders under Section 4 of the said Act, the Government of Kerala
appointed, in the year 1981, an expert committee headed by Shri D. Babu Paul to
enquire into the need for conservation of marine fishery resources and other
allied matters. The committee submitted its report to the Government on
21-7-1982 but it appears that its recommendations were not unanimous. Later,
another expert committee was appointed headed by Shri V.C. Kalawar. Based on
the reports of these committees, the Government of Kerala had been issuing
various orders from time to time under Section 4(1) prohibiting bottom-trawling
during the monsoon period. The judgment of the High Court (dated 31-7-1992) sets out the various orders issued from the year
1988 onwards. (The judgment also sets out the particulars of various writ
petitions filed by mechanised boat operators questioning those orders and the
orders passed thereon.) We do not think it necessary to refer to those orders
inasmuch as we are concerned herein with the orders relevant to the year 1992
alone. We need notice only two orders, viz., GO(P) No. 31/90/F&PD dated
25-6-1990 (First Order) and GO(P) No. 26/92/F&PD dated 20-6-1992 (Second
Order) which were issued on the basis of yet another expert committee report
and certain other technical advice.
While
the First Order is of a permanent nature, the Second Order was applicable only
for the monsoon period (44 days) during the year 1992. Each of these orders is
accompanied by an Explanatory Note with the clarification that the Explanatory
Note does not form part of the statutory notification but is intended to
indicate the general purport of the GO. The First Order alongwith its
Explanatory Note reads as follows :
"S.R.O.
No. 874/90.- WHEREAS, there is need to preserve law and order in the sea;
AND
WHEREAS there is need to avoid accident and ensure safety of life and property
of fishermen;
Now,
THEREFORE, in exercise of powers conferred by Section 4 of the Kerala Marine
Fishing Regulation Act, 1980 (10 of 1981) read with 38 Rule 3 of the Kerala
Marine Fishing Regulation Rules, 1980, the Government of Kerala hereby restrict
the use of the specified area notified under G.O. (P) 136/84/PW, F&PD dated
30-11-1984 in Kerala Gazette Extraordinary No. 1055 dated 3- 12-1984, by
imposing the following prerequisites for vessels going for bottom-trawl fishing
beyond territorial waters :
(i)
The engine fitted in the boat shall have a minimum power of 160 HP and the hull
shall have a length of not less than 40 feet.
(ii)
The boat shall have a minimum length of 500 in wire rope in the winch drum.
(iii)
The boat shall carry on board sufficient number of life-saving appliances and
fire appliances as stipulated under Section 435-K of the Merchant Shipping Act,
1958 (Central Act XLIV of 1958).
(iv)The
Syrang and the Driver shall possess the competency certificate issued by the
Mercantile Marine Department/Post Department.
(v)
The boat shall carry on board articles of first-aid and navigational aids such
as Mariners Compass.
By
order of the Governor, M.S.Joseph Secretary to Government.
Explanatory
Note (This note does not form part of this notification but is intended to
indicate its general purport.) Section 4(1) of the Kerala Marine Fishing
Regulation Act, 1980 empowers Government to regulate, restrict and prohibit the
use of any specified area for purpose of fishing. There have been a number of
complaints from among the traditional fishermen that the vessels prohibited
from conducting fishing in the territorial waters are actually fishing within
the prohibited area. The mechanised boats of less than 43 feet length are not
capable of conducting trawling beyond the territorial waters. Claims by the
contrary can only be false inasmuch as it has been established that such boats
cannot operate safely during the monsoon season beyond the territorial waters
without endangering human life. Therefore, the Government have decided to
prescribe certain prerequisites for trawl boats going to fishing beyond
territorial waters to ensure that bottom-trawl fishing is not conducted in the
prohibited area.
This
notification is intended to achieve the above purpose." The Second Order
(GO dated 20-6-1992) along with its Explanatory Note reads thus "S.R.O.
No. 734/92 : WHEREAS the Government are convinced of the need to protect the
interest of different sections of persons engaged in 39 fishing, particularly
those engaged in fishing using traditional fishing crafts such as catamarans,
country crafts and canoes;
AND
WHEREAS it is imperative to maintain law and order in the sea; AND WHEREAS the
Government consider that there is need to conserve fish wealth;
Now,
THEREFORE, in exercise of the powers conferred by clause (d) of sub-section (1)
of Section 4 of the Kerala Marine Fishing Regulation Act, 1980 (Act 10 of 1981)
read with Rule 4 of the Kerala Marine Fishing Regulation Rules, 1980, the
Government of Kerala hereby prohibit bottom-trawl in the sea along the entire
coastline of the State, not beyond the territorial waters specified under
notification G.O. (P) 136/84/PW&F&PD dated 30-11-1984 published as
S.R.O. No. 1496/84 in the Kerala Gazette Extraordinary No . 1055, dated 3-12-1984 for the period from 21-6-1992 to the 3-8-1992.
By
order of the Governor, G. Chandran Special Secretary to Govt.
Explanatory
Note (This does not form part of the notification but is intended to indicate
its general purport.) Clause (4) of sub-section (1) of Section 4 of the Kerala
Marine Fishing Regulation Act, 1980 empowers Government to regulate, restrict
or prohibit the use of any fishing gear in any specified area as may be
prescribed. Sub- section (2) of Section 4 of the Act prescribes the grounds for
invoking the powers under Section 4.
There
have been persistent demands from the traditional fishermen for ban on trawling
during June, July, August on the ground that trawling has been adversely
affecting the conservation of fish wealth and their share of earnings from
fishing. Consequently, there have also been clashes between the fishermen belonging
to traditional sector and mechanised sector leading to serious law and order
problems.
Therefore,
the Government after considering the recommendations of expert committees in
the matter decided to ban bottom-trawl specified in the Rule 4 of the Kerala
Marine Fishing Regulation Rules, 1980 in the entire coastal line of the State,
not beyond the territorial waters of the State during the monsoon period from
21-6-1992 to 3-8-1992 in the interest of conservation of fish wealth and to
avoid the possible law and order problems in the coastal area and in the area.
The
notification is intended to achieve the above purpose."
7. It
would be appropriate at this stage to notice the purport and effect of the
above two orders. The First Order recites that it was issued in view of the
"need to preserve law and order" and the "need to avoid
accidents and ensure safety of life and property of fishermen". The
Explanatory Note which throws light upon the objectives sought to be achieved
by the GO refers to a 40 large number of complaints from the traditional
fishermen that the vessels prohibited from conducting fishing in territorial
waters+ were actually fishing in the prohibited area. It then recites the
Government's opinion that the mechanised boats of less than 43 feet length are
not capable of conducting bottom-trawling beyond the territorial waters,
rejecting the contention to the contrary. The Explanatory Note further recites
that the Government has decided to prescribe certain prerequisites for trawling
boats for fishing beyond territorial waters to ensure that bottom- trawl
fishing is not conducted in the prohibited area. The notification accordingly
imposes certain restrictions upon the length of the boat, horsepower of the
engine and the particulars of the fishing gear to be carried in boats going for
bottom-trawling beyond territorial waters. The requirements prescribed inter alia
are:
(1)
The engine fitted in the boat shall have a minimum power of 160 HP and the hull
shall have a length of not less than 43 feet.
(2)
The boat shall have a minimum length of 500 metres wire-rope in the winch drum.
8.
Now, coming to the Second Order which is valid and applicable only for a period
of 44 days commencing from 21-6-1992 to 3-8-1992 it prohibits bottom-trawling
altogether by any and all boats during the said period in the territorial
waters. The Explanatory Note says that the said ban was imposed "in the
interest of conservation of fish wealth and to avoid the possible law and order
problems in the coastal area and the sea". It refers not only to the
complaints of traditional fishermen that bottom-trawling during monsoon months
is adversely affecting the conservation of fish wealth and is affecting their
livelihood but also the recommendations in the reports of the expert
committees. The said recommendations are stated to be the basis of the order.
9. A
reading of the two notifications yields the following position (1)
Bottom-trawling is prohibited altogether for the aforesaid period of 44 days in
the year 1992 by one and all. During the remaining period of the year,
bottom-trawling is permitted by one and all within the territorial waters.
(2)
Only the boats having a minimum power of 160 HP and a hull length of not less
than 43 feet (carrying a minimum length of 500 metres wire rope in the winch
drum) shall alone be deemed to be capable of conducting bottom- trawling beyond
territorial waters, which means that boats with lesser horsepower/or lesser
length shall be deemed to be meant for bottom-trawling only within the territorial
waters. In short, the orders have created a conclusive presumption of law that
boats having lesser length, horsepower and fishing gear than prescribed shall
be deemed to be meant for bottom-trawling within the territorial waters alone
and are incapable of bottom-trawling beyond the territorial waters .
The
necessary consequence of this conclusive presumption' of law The reference
obviously is to orders issued in the preceding years prohibiting bottom-
trawling during monsoon months within territorial waters.
41
provided by the Order is that boats not answering the requirements prescribed
in the First Order shall not be permitted to leave the coast during the
aforesaid period of 44 days. They are confined to and tied down to the
seashore.
CONTENTIONS
OF THE PARTIES BEFORE THE HIGH COURT AND THE DECISION OF THE HIGH COURT
10.
Aggrieved by the above restrictions, the owners and operators of the mechanised
boats engaged in bottom-trawling (whose boats did not answer the specifications
prescribed in the First Order) approached the Kerala High Court challenging the
validity of the said Orders. Their contention was that even though their boats
are of lesser length than 43 feet and are having an engine with less than 160
HP, they are yet capable of engaging in bottom-trawling beyond territorial
waters and that, therefore, they should be allowed to go beyond the territorial
waters for the said purpose. Reliance was placed in this behalf on the report
of the Advocate-Commissioner in CMP No. 10964 of 1990 in OP No. 6092 of 1990 in
the Kerala High Court. The said report, according to the writ petitioners,
established that their boats are capable of bottom-trawling even beyond the
territorial waters. They disputed the underlying assumption that the depth of
sea beyond territorial waters is more than 50 metres. In several places, they
said, the depth of sea beyond the territorial waters (22 kms from the sea
coast) is between 35 to 50 metres, wherein their boats are fully and perfectly
capable of bottom-trawling. They submitted that the requirements specified in
the First Order are arbitrary, unsupported by any relevant data and have been
prescribed under the pressure of and with a view to mollify the traditional
fishermen whose number is very large compared to the number of the
owners/operators of the mechanised boats.
They
submitted that their right to go beyond the territorial waters (right of
'innocent passage') cannot be taken away altogether even for the limited period
of 44 days in the year. According to them, they were interested mainly in 'karikkadi'
(prawns) and this particular type of prawns is available only during the
monsoon period beyond territorial waters. If they are not allowed to fish
during the monsoon period, these prawns float away and will not be available
thereafter. Their main reliance was upon the two provisos to Section 5 of the Kerala
Act. They pointed out that neither the Parliament nor the Central Government
who alone are competent to regulate the fishing beyond territorial waters have imposed
any sort of restriction on bottom-trawling.
They
submitted that their right to fish (bottom-trawl) beyond the territorial waters
cannot be defeated by the State Legislature and/or its delegate under the guise
of prescribing the aforesaid particulars. Article 19(1)(d), they submitted,
guaranteed to them the right to move freely through the territory of India
(which includes the territorial waters). The writ petition was opposed by the
Government of Kerala as also by the Association of traditional fishermen. They
submitted that the restrictions prescribed are conceived in the interest of
maintenance of law and order within the territorial waters as also to protect
and preserve the fish in the larger interest of all the fishermen and the
consuming public. The 42 requirements prescribed in the First Order, they
submitted, are designed to prevent bottom-trawling by mechanised boats within
territorial waters under the guise of going out to sea beyond territorial
waters. It is only a measure to prevent abuse of the restriction placed by the
Second Order (during 1992 monsoon period) and similar orders that may be passed
for the future years they submitted.
11.
The Kerala High Court upheld the contention of the writ petitioners (mechanised
boat owners) and held that the Government of Kerala was not competent to
prohibit the boats of the writ petitioners from proceeding to sea beyond the
territorial waters. The High Court declared that the "Notification dated
25-6-1990 is void insofar as it specifies conditions in regard to 'any fishing
vessel' which is going beyond the territorial waters for the purpose of fishing
in such areas". The correctness of the said order is questioned in these
appeals both by the Government of Kerala as well as by the Association of traditional
fishermen, "Kerala Swathanthra Malaya Thozhilali Federation".
QUESTIONS
ARISING FOR CONSIDERATION
12.
Having regard to the contentions urged before the High Court and before us, the
following questions arise for consideration in these appeals :
(1)
Whether the Government of Kerala was competent, acting under Section 4 of the Kerala
Act, to create a conclusive presumption of law to the effect that a boat not
satisfying the requirements prescribed in the order dated 25-6-1990 (First
Order) is not capable of bottom-trawling beyond the territorial waters of Kerala?
(2) Whether the First Order is arbitrary and discriminatory? In other words,
whether there is no relevant material to support the requirements prescribed in
the First Order and whether the said order brings about an impermissible
discrimination between the bottom-trawlers and other fishing vessels? (3) In
case, Question 1 is answered in favour of the State, whether such a conclusive
presumption can be made the basis for confining the bottom-trawlers to the
seashore for a period of 44 days specified in the Second Order (order dated
20-6-1992) or by similar orders that may be issued for the ensuing years?
Whether such confinement constitutes an unreasonable restriction upon the right
guaranteed to the owners/operators of the bottom-trawlers by Article 19(1)(d)
of the Constitution of India? (4) Whether the First Order is inconsistent with
the first proviso to Section 5 of the Kerala Act? Whether the said order
trenches upon the field reserved to the Union
by Entry 57 of List I?
13.
Before we deal with the questions aforesaid, it is necessary to refer briefly
to the facts and reasoning in Joseph Antony', a decision rendered by a Bench of
this Court comprising P.B. Sawant and R.M. Sahai, JJ. in a dispute of a like
nature. That was also a dispute between traditional fishermen and mechanised
boat operators with this difference that the mechanised boats 43 concerned
therein were not engaged in bottom-trawling but were using sophisticated nets
like purse seines, ring seines, pelagic trawl and mid-water trawl gears. An
average purse seine is said to be 400 metres in circumference, covering an area
of more than one hectare. It is used mainly for gathering the pelagic (surface)
fish. It could and did haul in 600 to 800 tonnes of fish per annum, compared to
five tonnes by a country craft. On account of the activities of the said mechanised
boats, the fish haul by traditional fishermen came down drastically, seriously
affecting their livelihood. The judgment of this Court sets out the particulars
of the fall in the annual catch by traditional fishermen and the consequent
misery caused to them and their families. Naturally, therefore, it gave rise to
acute discontent among them. Basing on the expert committee reports, the
Government of Kerala issued two notifications on 30-11-1984 under the provisions of the Kerala Act. Under one
notification, the Government specified the area along the entire coastline of
the State, but not beyond the territorial waters, as the "specified
area" for the purpose of clause (d) of subsection (1) of Section 4 of the Kerala
Act. Under the other notification, the State Government declared that since
they were convinced of the need to protect the interests of the persons engaged
in fishing using traditional fishing crafts such as catamarans, country crafts
and canoes in the territorial waters of the State and further because there was
need to preserve law and order in the territorial waters, the use of purse
seine, ring seine, pelagic and mid-water trawl gear for fishing in the
territorial waters along the entire coastline of the State shall stand
prohibited. The validity of the said notification was questioned by mechanised
boat operators in the Kerala High Court which upheld their complaint partly.
The High Court declared that the notification insofar as it prohibited the use
of purse seine nets beyond 10 kms of the territorial waters is not valid and
effective against which judgment, the Kerala Government and the association of
traditional fishermen appealed to this Court. This Court allowed the appeals on
the following reasoning :
(i)
The expert committee reports, viz., Babu Paul Committee Report, Kalawar
Committee Report and the two reports of the Special Officers appointed by the
State Government read along with the Central Marine Fisheries Research
Institute (CMFRI) Bulletin Nos. 12 and 14 (referred to in the Babu Paul
Committee Report) establish that "mechanised nets like the purse seine do
an irreparable damage to the existing stock of fish by killing the juvenile
fish and fish eggs and by preventing fish breeding". This is apart from
the fact that according to the landing figures of 1980- 82, while each purse seiner
caught 600-800 tonnes fish per annum, the traditional crafts could catch only 5
tonnes.
(ii)Over
the years while the population of the traditional fishermen has increased by
more than 20.8%, the average production of each fisherman declined by more than
half, which resulted in 98.5% of the fishermen population descending below the
poverty line. While the traditional fishermen who constitute 89% of the total
fishermen- 44 household caught a negligible proportion of the fish, the mechanised
fish gear operators who are very small in number have been taking away the bulk
of the catch, viz., more than 92%. This is having a fatal effect upon the lives
and economy of the traditional fishermen giving rise to several incidents of
breach of law and order.
(iii)The
use of mechanised gear in fishing does not lead to any increase in production.
On the
other hand, they present a real threa t of depletion of the stocks. Even in
advanced countries like, U.S.A., Norway, Great
Britain and Japan, where the number of fishermen
engaged in fishing is very small, steps have been taken to restrict fishing by
sophisticated gears like the purse seine to avoid destruction and depletion of
the pelagic (surface) fish wealth. It is, therefore, necessary to prohibit such
mechanised fishing gears for protecting the source of livelihood of the already
impoverished mass of fishermen in the State and also to save the pelagic fish
wealth within the territorial waters from depletion and the eventual total
destruction.
(iv)In
all the above circumstances, the notifications issued by the Government of Kerala
prohibiting the use of the said mechanised fishing gears within the territorial
waters is perfectly valid and justified and it represents a reasonable
restriction within the meaning of Article 19(6) read with and in the light of
Article 46 of the Constitution of India.
14. We
may now turn to the questions arising in these appeals. That the Legislature
can create a conclusive presumption of law in appropriate situations does not
admit of doubt. So long as the Legislature acts within the sphere allotted to
it and does not infringe the provisions in Part III of the Constitution or the
constitutional limitations, if any, the law made by it including the conclusive
presumption created by it cannot be questioned. But the conclusive presumption
concerned herein is created not by the Legislature but by the Government
purporting to act under Section 4 of the Kerala Act. The question is whether
Section 4 empowers the Government to do so. Now, what does the conclusive
presumption provided by the First Order say? It says that unless the mechanised
boat is of specified length and fitted with engine of specified power and
specified fishing gear, it shall be presumed that it is not capable of
bottom-trawling beyond territorial waters. In other words, it shall be presumed
conclusively that such a boat is meant for and can operate only within
territorial waters. The Government also says that if such boats are allowed to
go for bottom-trawling beyond territorial waters, it would endanger the lives
of the fishermen manning such boats. With a view to ensure safety of life and
property of fishermen and to avoid accidents, the Government says, it has
imposed the said restriction. Moreover and this is important to note this is
not an independent restriction.
It has
to be read along with and as supplemental to the other orders which were issued
every year restricting/prohibiting bottom-trawling within territorial waters
(specified area) during the monsoon period. Putting it differently, so far as
the year 1992 is concerned, the First Order and the Second Order have to be
read together and not independently. So read, it Is 45 clear that they are
perfectly warranted by Section 4 of the Kerala Act. At the same time, we agree
that since the said conclusive presumption of law and the restriction created
by the First and Second Orders respectively is created by the Government in
exercise of the statutory power conferred upon it, it has to answer the test of
reasonableness, for the added reason that it affects the fundamental right of
the writ petitioners guaranteed by Article 19(1)(g) of the Constitution.
15. It
is from the above standpoint that we shall proceed to examine the First Order
as well as the Second Order.
There
is no doubt that both the orders impose restrictions upon the fundamental
rights guaranteed to the owners/operators of bottom-trawlers by Article 19(1)(g)
of the Constitution. Indeed, according to them, it also violates their right
under Article 19(1)(d) as well. We shall proceed on the assumption that they
are right in so complaining. It means that the restrictions imposed have to
answer the test of reasonableness in clause (6) as well as clause (5) of
Article 19. Both the said clauses permit reasonable restrictions to be placed
upon the respective guaranteed rights "in the interests of general
public".
That
the restrictions contemplated by these clauses can take in a prohibition in
appropriate cases was recognised by this Court as far back as 1960. [See Narendra
Kumar v. Union of India2]. It was held by the
Constitution Bench :
"It
is reasonable to think that the makers of the Constitution considered the word
'restriction' to be sufficiently wide to save laws 'inconsistent' with Article
19(1), or 'taking away the rights' conferred by the article, provided this
inconsistency or taking away was reasonable in the interests of the different
matters mentioned in the clause.
There
can be no doubt therefore that they intended the word 'restriction' to include
cases of 'prohibition' also. The contention that a law prohibiting the exercise
of a fundamental right is in no case saved, cannot therefore be accepted. It is
undoubtedly correct, however, that when, as in the present case, the
restriction reaches the stage of prohibition special care has to be taken by
the court to see that the test of reasonableness is satisfied. The greater the
restriction the more the need for strict scrutiny by the court.
In
applying the test of reasonableness, the court has to consider the question in
the background of the facts and circumstances under which the order was made,
taking into account the nature of the evil that was sought to be remedied by
such law, the ratio of the harm caused to individual citizens by the proposed
remedy, to the beneficial effect reasonably expected to result to the general
public. It will also be necessary to consider in that connection whether the
restraint caused by the law is more than was necessary in the interests of the
general public."
16.
While judging the reasonableness of a provision, we may remind ourselves, the
Court should bear in mind the classical statement in State of Madras v. V. G.
Row3. It reads 2 AIR 1960 SC 430 3 AIR 1952 SC 196: 1952 SCR 597 46 "It is
important in this context to bear in mind that the test of reasonableness,
wherever prescribed, should be applied to each individual statute impugned, and
no abstract standard, or general pattern of reasonableness can be laid down as
applicable to all cases.
The
nature of the right alleged to have been infringed, the underlying purpose of
the restrictions imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict. In
evaluating such elusive factors and forming their own conception of what is
reasonable, in all the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the Judges participating in the
decision should play an important part, and the limit to their interference with
legislative judgment in such cases can only be dictated by their sense of
responsibility and self-restraint and the sobering reflection that the
Constitution is meant not only for people of their way of thinking but for all,
and that the majority of the elected representatives of the people have in authorising
the imposition of the restrictions, considered them to be reasonable.
17. It
is vehemently contended by Shri G. Ramaswamy, learned counsel for the
respondents-writ petitioners that there was no material upon which the
Government of Kerala could have created the presumption that the boats with
less than the prescribed particulars are not capable of bottom- trawling beyond
the territorial waters. He also challenged the underlying presumption that the
depth of the sea beyond territorial waters is uniformly beyond 45-50 feet and
that therefore the writ petitioners' boats are not capable of bottom-trawling.
We do not think that the said contentions are well-founded.
18. In
the counter-affidavit filed in the High Court (in OP No. 8461 of 1992), the
following facts have been stated by the Government : The proliferation and
indiscriminate operation of the mechanised trawl-net boats along the coastal
waters has resulted in large-scale decrease of catch of the traditional
fishermen who were already below the poverty line; it has also affected
adversely the availability of many species of fish which were being
traditionally caught by country crafts. After referring to the particulars
relating to number of mechanised crafts, motorised country crafts, nonmotorised
country crafts and the clashes between them from the year 1976 onwards which
necessitated the enactment of Kerala Act in 1980, the counter-affidavit
proceeded to state that the Government felt the need to regulate the fishing
activities of mechanised boats and for that purpose it appointed various expert
committees to suggest ways and measures to be taken in order to conserve marine
resources and also for safeguarding the interests of the traditional fishermen;
the Babu Paul Committee appointed in 1981 made certain recommendations but the
members of the committee were not unanimous in their recommendations; the
continual unrest in the traditional sector anti the law and order problems
compelled the Government to appoint another committee headed by Shri A.C. Kalawar,
an eminent Scientist and Fisheries Adviser, State of Maharashtra in 1984; this
47 committee recommended that the number of trawl-net boats used in Kerala
should be reduced from 3500 to 1145; this recommendation was, however, found
not feasible and practicable in the circumstances; therefore, the Government
appointed yet another committee headed by Prof. N.
Balakrishnan
Nair; one of the terms of reference of this committee was "to review the
steps taken by the Government so far based on the recommendation of the Babu
Paul Committee and Kalawar Committee and to assess the adequacy or inadequacy
of these steps with a view to recommend further future course of action, if
any, with special reference to- "(a) identify the species and areas which
are overexploited and to recommend whether there is any need- (i) to impose
total or seasonal ban in respect of exploitation of such species in the areas;
(ii) to
impose selective ban on operation of certain types of craft and gears in
respect of such species and areas;
(iii) to
restrict the number the size of certain types of craft and gear in respect of
such species and areas.
(b) identify
species in respect of which and areas where there is scope for more exploitation
and recommend suitable types of craft and gear for such purpose."
19. In
the "statement by the counsel filed on behalf of the State of Kerala"
pursuant to our order dated 5-4-1994, it is stated further that the Balakrishnan
Nair Committee consisted of ten members and that it submitted its report on
26-6-1989. Recommendation No. 5 of the committee was in the following terms :
"In
the interest of conservation of resources, it is suggested that a total ban be
enforced on trawling by all types of vessels in the territorial waters of Kerala
during the months of June, July and August. The impact of these measures on the
conservation and optimum utilisation of the resources should be examined in
detail and be subjected to close scrutiny and review in the next three
years.......
20. It
is stated that Table No. 8 in Chapter 11 of the Report set out the
characteristics and capacities of the most popular mechanised boats. (The table
has been extracted in the Statement). According to the said table, a boat with
32 feet length and having an engine of 40-45 HP is capable of bottom-trawling
at a depth of about 37 metres (20 fathoms). After the receipt of the said
report, it is stated, the State Government consulted the Director, Integrated
Fishing Project, Government of India on the requirements and capacity of
fishing vessels for operations beyond territorial waters and that the Director
submitted to the Government a "Note on the Mechanised Boats of Kerala and
their capacity for fishing". A copy of the said note is appended to the
Statement. It would be appropriate to extract the relevant paragraphs from this
note. They read :
48
"(1) Most of the mechanised boats operating along the Kerala coast are 32'
or 30'. They are fitted with engine ranging from 48 HP to 60 HP. These boats
are capable of trawling in shallow water only up to 30m depth. The winch
capacity also is limited to that depth.
Normally
the length of the wire-rope should be about 5 times depth of the water + 10 to
20% wire-rope in excess for meeting the emergency situation.
(2) To
operate beyond the territorial water at a depth of 50m and above, these boats
are not suitable, because they must have 250m of wire-rope and excess of
wire-rope in the drum diameter and the wire-rope has to be 10 to 12m diameter
and winch also should have more capacity. The present boats do not have this
capacity.
(5)
Therefore to operate beyond the territorial waters with the larger otter-
boards and the larger net, thicker wire-rope, the engine power should be more
than 150 HP.
(6)
The power take-off clutch should have more capacity and the winch drum should
have more capacity. All these things mean that the length of the boat itself
should be 43' and above with proper fish hold, higher fuel tank capacity and
also higher fresh water capacity."
21. It
is on the basis of the above material it is stated in the Statement by the
Government that it has issued the notification dated 25-6-1990 (First Order) prescribing specifications of vessels
going for bottom-trawling beyond territorial waters. The Statement also refers
to the Government's counter-affidavit filed in the High Court in another writ
petition (OP No. 6245 of 1989) wherein in addition to the above facts it was
stated that the depth of the sea beyond territorial waters is more than 45-50 metres.
This
was said to be clear from the chart of depth zones indicated in the Central
Marine Fisheries Research Institute's Publication regarding the Marine
Fisheries of Kerala.
22. In
addition to the above material, our attention has been invited to certain
passages in Chapters 4.12 and 6 of the CMFRI Bulletin 45 referred to
hereinbefore. We do not, however, wish to refer to the said material at any
length except para 4 of the "suggestions and recommendations"
contained in Chapter 6 entitled "Impact of fishing along the west coast of
India during south-west monsoon period on the fin fish and shell fish resources
and the associated management considerations", contributed by Shri
T.S.B.R. James, CMFRI, Cochin. The suggestion/recommendation No. 4 reads thus:
"In
consideration of the urgent necessity of conservation of the resources and
since there is no effective regulatory measure under operation to safeguard the
resources in the sea and in the context of improvement of the habitat, it is
recommended that bottom- trawling during monsoon is allowed strictly only
beyond territorial waters all along the west coast. As comprehensive and
stringent regulations of monsoon fishery is not possible due to a number of
socio-economic and 49 political reasons, total ban of all fishing during
monsoon may not be advocated." Even in Chapter 4.12 entitled "Present
status of exploitation of fish and shell fish resources Prawns". The
following statement occurs in the Abstract :
"As
'Karikkadi' is mainly concentrating in the offshore waters and the trawl catch
does not contain an alarming proportion of breeding population, shrimp fishing
in the deeper water s beyond the 30m depth line would be advantageous to the
fishery during this season." The Abstract also states that "In Kerala,
monsoon trawling is mainly targeted for 'Karikkadi' which occupies relatively
deeper waters during July-August."
23.
The above factual narrative makes it abundantly clear that the specifications
prescribed in the First Order are neither arbitrary nor can it be said that
they are based on no material. There was enough technical data in support of
the said specifications in the shape of reports of the expert committees and
the opinions of technically qualified experts in the field. May be, there is
some other material which tends to support the case of bottom-trawlers but that
makes no difference to the situation. It is for the expert committees and the
technical personnel to evaluate all the factors and arrive at a particular conclusion.
The Government is entitled to go by their conclusions/recommendations. It would
be justified in doing so. It cannot be expected to go on enquiring endlessly
even after the receipt of the expert committees' recommendations.
In
this case, there are three expert committee reports, including the Balakrishnan
Nair Committee Report. The Government, evidently to reassure itself, sought the
opinion of Director, Integrated Fishing Project, Government of India, even
after the receipt of the Balakrishnan Nair Committee Report. Since the opinion
of the Director, I.F.P., concurred with the recommendations of the Balakrishnan
Nair Committee Report, the Government accepted the same and issued the First
Order. We do not think that the Government can reasonably be called upon to
make still further enquiries and investigations before issuing orders of the
nature contained in the First Order. The Government was, therefore, justified
in prescribing, on the basis of the recommendations aforesaid, that only a boat
of 43' length and having an engine of about 160 HP alone shall be deemed to be
capable of bottom-trawling beyond territorial waters. In other words, the boats
of the writ petitioners (with 32 feet length and with an engine of 40 to 60 HP)
are not capable of bottom-trawling beyond territorial waters.
It
must also be said that the opinion of the Government that the depth of the sea
beyond territorial waters is more than 40-50 metres and that the trawl boats of
writ petitioners are not capable of bottom-trawling at that depth is equally
based upon relevant material and data. So far as the report of the
Advocate-Commissioners relied upon by the writ petitioners is concerned, it
only establishes that the petitioner's boats can catch fish beyond territorial
waters but does not establish that they can bottom-trawl there.
This
aspect was commented upon by the learned Judge of the Kerala 50 High Court who
appointed the said Commissioner and also in the judgment under appeal.
24.
Both the parties have produced before us certain maps indicating the depth of
the sea within territorial waters along the Kerala coast. It is found that the
depth of the sea all along the Kerala coast is not uniform. Indeed, it cannot
be. At some places, the depth of the sea within territorial waters is only
30-35 metres and in some other places, it is 50 metres or more. In some places,
even the depth beyond territorial waters does not exceed 35-40 metres but on an
overall basis it can safely be said that the depth of the sea beyond
territorial waters is between 40-50 metres. Now, it may be remembered that the
writ petitioners' boats are trawl-net boats. They are meant only for
bottom-trawling. Even according to the written submissions filed by them in
this Court, the said boats are not fit for any other purpose and that adapting
them to other types of fishing involves huge expenditure. Once that is so and
once we accept that the specifications in the First Order and the conclusive
presumption created thereby is well-founded, it follows that the writ
petitioners' boats are not capable of bottom-trawling at a depth of more than
38-40 metres which means that they are meant for bottom- trawling only within
territorial waters and not beyond. The Government of Kerala is of the opinion
that in the interest of preservation and availability of the fish and to
safeguard the economic interests of the weaker sections of the society, viz.,
traditional fishermen, it is necessary to ban bottom-trawling within
territorial waters during the period of about 44 days in a year. Can it be said
that it is acting unreasonably? Can it be said that the said temporary ban is
not in the interest of general public? We think not. As pointed out by this
Court in Joseph Antony1, Article 46 of the Constitution places an obligation upon
the State to promote the economic interest of the weaker sections of the
society with special care. The traditional fishermen belong undoubtedly to
weaker sections of the society. Already they have been driven below the poverty
line, mainly on account of the introduction of the mechanised fishing boats. It
is equally relevant to notice that this Court has, in Joseph Antony1, upheld a
total ban on use of purse seines, ring seines etc. within territorial waters,
whereas in this case, we are concerned with a limited ban, i.e., for a period
of 44 days in a year. There can be no doubt about its validity. In the specific
conditions obtaining in the Kerala State and having regard to the particulars
relating to the number of fishermen and the availability of the fish noticed in
Joseph Antony1 the restrictions imposed by impugned orders appears to be
perfectly justified. The said restrictions serve twin purposes, viz., assuring
the livelihood of the traditional fishermen whose number runs into several lakhs
and also to ensure that indiscriminate fishing is not indulged in by these
trawl-boats within territorial waters.
25. Shri
G. Ramaswamy sought to rely upon certain material suggesting that
bottom-trawling during monsoon does not have any adverse effect upon the
availability of the fish.
Firstly,
this material is inconsistent with the recommendations of the expert committees
and the opinion of the Director, Integrated Fisheries Project, Government of
India. Secondly, availability of 51 the fish is only half the story. It does
not take into account the State's interest nay its obligation in ensuring
livelihood to lakhs and lakhs of fishermen engaged in fishing by traditional
methods.
26. Shri
G. Ramaswamy submitted that the present dispute is between the mechanised boats
on one hand and the country craft on the other and that the fight is not really
between trawl-boats and the fishermen using canoes and catamarans.
We do
not know. As at present advised, we are sceptical of the said assertion. But
even if that is so, it in no way affects the validity of the impugned orders
inasmuch as the material placed before us, including the material considered by
this Court in Joseph Antony1, clearly shows that there is no comparison between
the capacity of mechanised boats of the writ petitioners and the capacity of
country craft. The country craft belongs to the traditional sector and it is so
recognised by the Kerala Act and the impugned orders issued there under.
27. We
are also of the opinion that the Government of Kerala is perfectly justified in
adopting the attitude that the public interest cannot be determined only by
looking at the quantum of fish caught in a year. In other words, production
alone cannot be the basis for determining public interest. The Government is
perfectly justified in saying that it is under an obligation to protect the
economic interest of the traditional fishermen and to ensure that they are not
deprived of their slender means of livelihood.
Whether
one calls it distributive justice or development with a human face, the
ultimate truth is that object of all development is the human being. There can
be no development for the sake of development. Priorities ought not to be
inverted nor the true perspective lost in the quest for more production. It
should also be noticed that bottom-trawling is not being prohibited altogether.
It is being prohibited only during the monsoon period, i.e., about a period of
44 days in a year. If there are boats which are capable of bottom-trawling
beyond territorial waters, they are free to go beyond territorial waters and
fish there, but the writ petitioners' boats which are not capable of
bottom-trawling beyond territorial waters cannot be allowed to indulge in
bottom-trawling within territorial waters, under the excuse, or guise, of going
beyond territorial waters or in the name of 'innocent passage', relying upon
the provisos to Section 5 of the Kerala Act. The State Government acting under
Section 4 of the Kerala Act is not only competent to impose the aforesaid limited
restriction/ban but also to prescribe measures to ensure due implementation of
the said restriction and to ensure against its violation. The requirements
prescribed in the First Order are designed precisely to ensure the said object
and cannot be faulted on any ground. It would be wrong to look at it as
prohibiting 'innocent passage' assured by the first proviso to Section 5 or as
interfering with the freedom of movement. The question is innocent passage to
where?
Movement
for what purpose? Once it is held that the writ petitioners' boats are not
capable of bottom-trawling beyond territorial waters, why do they want to go
there? They are not pleasure boats. Their only purpose is to bottom-trawl, and
if they are not capable of bottomtrawling at a depth of more than 40 metres,
why are they going beyond territorial waters where the depth of the sea is more
than 40 metres. One can 52 easily see through the game. The plea of innocent
passage appears to be merely a ruse. They evidently want to bottom- trawl within
territorial waters. It is for this reason that they are asked to remain
shore-bound during the said ban period. The first proviso to Section 5 does not
avail such boats but those bigger boats which are capable of bottom- trawling
beyond territorial waters as prescribed in the First Order. The argument that
if they indulge in any violations, they can always be checked, caught and
prosecuted is no answer, having regard to the vast area involved. It is not
practicable. The cost of an effective supervision would be prohibitive. It
would not be in the interest of general public. Since the reasonableness of the
restriction has to be judged on the touchstone of general public interest,
whether under clause (5) or clause (6) of Article 19 of the Constitution, the
above considerations (cost and practicability) are not irrelevant. In the
circumstances, the temporary ban cannot be said to be either excessive,
disproportionate or overbroad. We are also unable to see in what manner can the
impugned orders be said to travel beyond the purview or purposes of the Act.
Except urging the said submission, no attempt was made to substantiate it.
28. We
are, therefore, satisfied that in the facts and circumstances of the case, the
two impugned orders issued under Section 4 of the Kerala Act cannot be said to
be illegal or invalid for any of the reasons suggested. The appeals are
accordingly allowed. The orders of the Kerala High Court under appeal are set
aside.
29. No
order as to costs.
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