PETITIONER:
KERALA S.M.T.FED.
Vs.
RESPONDENT:
KERALA T.B.O. ASSN.
DATE OF JUDGMENT23/06/1994
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
AGRAWAL, S.C. (J)
CITATION:
1994 SCC (5) 28 JT 1994 (7) 33
1994 SCALE (3)29
ACT:
HEADNOTE:
JUDGMENT:
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
thereunder.
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.
53