Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.8442 OF 2021
FISHERMAN CARE, REGISTERED
ASSOCIATION ...PETITIONER
VERSUS
THE GOVERNMENT OF INDIA, DEPARTMENT
OF ANIMAL HUSBANDRY, DAIRYING AND
FISHERIES REP. BY ITS SECRETARY & ORS. ….RESPONDENTS
WITH
WRIT PETITION (CIVIL) NO.262 OF 2022
WRIT PETITION (CIVIL) NO. 710 OF 2022
WRIT PETITION (CIVIL) NO. 1039 OF 2022
O R D E R
We have before this Court a Special Leave Petition, and three
Writ Petitions, where the common issue is the use of a fishing method
called Purse Seine Fishing. The Fisheries Department, Government of
th
Tamil Nadu vide its Order dated 25 March, 2000 had banned, inter
alia, the use of Purse Seine Fishing nets within its territorial waters
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2023.01.24
15:29:54 IST
Reason:
i.e. within 12 nautical miles (22 KMs from the Coast Line). By an
th
Order dated 5 February, 2019 passed by the Madras High Court, the
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challenge made to the above Order was also dismissed. Thereafter,
another writ petition was filed before the Madras High Court by
Fisherman Care Association (Petitioner in S.L.P.(c) No.8442/2021),
this time relying on a report of an Expert Committee, made yet
another effort to persuade the High Court to revisit the whole issue
and allow Purse Seine Fishing within the territorial waters. The
Division Bench of the Madras High Court, however, dismissed the Writ
Petition holding that the Government has taken an informed decision
by banning Purse Seine Fishing within its territorial waters, and the
petition before it was by only “a class of affluent fishermen”, and thus
declined to revisit the matter, dismissing their petition vide Order
th
dated 20 April, 2021.
2.
The above order is impugned in the petition.
3. The three writ petitions have also been filed by the petitioners
where the relief sought is i.e. to permit the petitioners to do fishing
with Purse Seine Fishing Nets beyond the territorial waters in the
State of Tamil Nadu. In Writ Petition No. 1039 of 2022, the specific
prayer is to strike down subrule (7) of Rule 17 of Tamil Nadu Marine
Fishing Regulation Rules, 2020, subrule (7) reads as under :
“(7) No owner or master of a fishing vessels
shall carry on fishing by pair trawling or
fishing with purse seine net using any
fishing vessel or craft whether country craft
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or mechanised boat irrespective of their size
and power of the engine in the entire coastal
area of the State.”
4.
In short the petitioners are aggrieved by the restrictions
imposed by the Tamil Nadu Government on Purse Seine Fishing.
5. Whether the ban imposed by the State Government, within its
territorial waters is justified, is a matter which is pending
consideration by this Court. There is no interim order by this Court in
this matter and the ban, which is imposed by the State of Tamil Nadu,
still continues.
6. The method of Purse Seine Fishing, has more than one aspect
which needs to be looked into by this Court. There is definitely a
conflict of economic interests, between fishermen. Biological diversity
is another aspect which may fall for our consideration here. But on all
these aspects, we do not have a full report before us as yet. We have
been told at the Bar that the Government of India is examining most
of these aspects.
7. Interim relief is sought by the petitioners to fish beyond the
territorial waters of Tamil Nadu. They would argue that though the
Government of Tamil Nadu has no jurisdiction to impose any kind of
restrictions for fishing beyond its territorial waters, but for the reasons
that their vessels are fitted with purse seine nets, the State
Government is not allowing their vessels to pass through its territorial
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waters, thereby effectively prohibiting them to fish even in waters
beyond the territorial jurisdiction of the State, and for which there is
apparently no restriction in law.
8.
Petitioners submit that only Union of India has jurisdiction
beyond the territorial waters, which has placed no restrictions on
fishing by the method called ‘Purse Seine Fishing’. On the other hand,
they have filed an affidavit indicating that it can be permitted.
9. The petitioner would also argue that the powers of the State
Legislatures and its executive, cannot travel beyond the territorial
waters of Tamil Nadu as that subject is within the exclusive
jurisdiction of the Union of India. They would refer to Entry 57 of List I
of the Seventh Schedule which reads as under :
“57. Fishing and fisheries beyond territorial
waters.”
Thus, the petitioner would argue that the restriction imposed by the
State Government in not allowing their fishing vessels to fish beyond
its territorial waters are absolutely illegal, and the State Government
is exercising control which is beyond the jurisdiction of the State
Government under the Constitution of India. They pray for an interim
relief from this Court for fishing beyond the territorial waters of Tamil
Nadu.
10. This prayer is strongly opposed by Shri Mukul Rohatgi,
learned Senior Counsel appearing for the State of Tamil Nadu, who
submits that this method of fishing i.e. Purse Seine Fishing (or PSF), is
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a ‘pernicious’ method of fishing, as it is harmful to marine life,
including fish. He would submit that PSF is a nonselective fishing
technology which captures all kinds of fish, which would include
protected species as well. It therefore has a dangerous effect on
ecology. Moreover, it is a method which is used by affluent and rich
fishermen or big fishing companies, as this technology is costly and is
beyond the reach of ordinary fishermen. The vast majority of
fishermen of the State of Tamil Nadu who are traditionally engaged in
fishing for their livelihood cannot afford this technology and depend on
traditional method of fishing. He would also submit that even if the
petitioners would be fishing beyond the territorial limits of the
State, yet they would be catching a large quantity of fish which has
its movement towards the coast and by catching them midway the
petitioners are depriving the traditional fishermen of their catch,
which belongs to them. Moreover, it is very difficult for the State
Government to either monitor or police fishing which may be done in
or around the territorial waters, as it is very difficult to demarcate and
ascertain as to where the territorial waters ends. It is further
submitted that since the matter is still under consideration, it would
be better to decide the entire matter and not pass any interim orders
as it would have huge ramifications throughout the country,
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particularly in the coastal belt, where fishing communities survive on
their traditional methods of fishing.
11. We have been informed at the bar that some of the coastal
States/Union Territories such as Gujarat, Kerala, Andhra Pradesh,
Odisha, Karnataka, Goa and West Bengal have not made any
restrictions on Purse Seine Fishing, within its territorial waters. This
ban has been imposed by the State of Tamil Nadu and also by the
State of Maharashtra. The coastal States are therefore divided on this
issue. As far as the fishing beyond territorial waters, but within
Exclusive Economic Zone (EEZ) is concerned, we have been told by
Shri K. M. Nataraj, Learned Additional Solicitor General for the Union
of India that the U.O.I. has placed no restrictions on this method of
fishing.
12. Learned counsel for the petitioners led by Shri Gopal
Sankarnarayanan and Shri Sirajudeen, Learned Senior Counsels have
submitted before us that a large number of families are also
dependent, in one way or another, in the fishing activity of the
petitioner. Moreover the fishing season will come to an end by next
month i.e. February 2023, and in case, they are not allowed to fish
beyond territorial waters they would also be incurring a huge loss as
there has been a large investment on their part for purchase of vessels
as well as Purse Seine Fishing Nets.
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13. After hearing both the sides at some length, we are of a prima
facie opinion, that interest of all parties need to be protected. Hence,
we propose to pass a restricted interim order, allowing the Purse Seine
Fishing beyond the territorial waters of Tamil Nadu, but within the
Exclusive Economic Zone, with certain conditions. These conditions
are as follows:
i)
Only registered fishing vessel, as on date, will be
given permission i.e. a fishing vessel registered under
Section 11 of the Marine Products Export Development
Authority Act, 1972 (Central Act 13 of 1972) as well as
registered with the State Government under its Rules or
Regulations, presently in force in the State of Tamil
Nadu.
ii) The Fisheries Department will give permission to
such boats only, which are installed with an approved
Vessel Tracking System (VTS), which shall be kept
running during the operating time of vessels.
iii)
These vessels will be allowed to operate only twice a
week i.e., on Monday and Thursday of each week with
the other restrictions of nonfishing period applying as
is applicable to all other fishing activity.
iv) The vessels which will be given this permission shall
leave the coastline on or after 8 AM and shall return to
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the designated place positively by 6 PM on the same
day.
v) It shall be mandatory for all the sailors to keep
their biometric card/photo ID with them.
vi) It shall be mandatory to provide the code of the VTS
to the Fisheries Department, Marine Police, Coast
Guard and the Indian Navy.
vii) Fisheries Department of the State shall also give a
colour code to these Purse Seine Fishing Boats for the
above purposes.
viii) The Registration Number of these vessels shall be
prominently displayed on the boat. In order to ensure
that the vessels have fished only outside the territorial
waters of the State, the tracking data of each vessel for
each of its trips shall be submitted the same day to the
concerned Assistant Commissioner, Fisheries, or such
other designated officer, after the vessels reach ashore.
ix)
These boats shall be allowed to land/dock only at
one or more than one designated centre, which will be
earmarked by the Fisheries Department.
x) The State Fisheries Department shall display on its
website the permission granted by it for this kind of
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fishing i.e. Purse Seine Fishing to such
individuals/companies as the case might be and the
registration number of each of the vessels.
14. We must also make a mention that Shri Mukul Rohatgi, Learned
Senior Counsel during his submissions before this Court had also
1
referred to the two decisions of this Court in his favour. He had
argued that this Court in these two decisions had made adverse
comments on Purse Seine Fishing. All the same, considering the
subsequent development since 1994 and the stand taken by the
Central Government in their affidavits, based on which this restricted
interim order is being made, the above two decisions are kept open
which will be considered when a deeper consideration is made, after
further inputs are received by this Court which are based on the
report of the Committee to be setup by the Central Government.
15.
List in usual course. Pleadings be completed in the meantime.
..……….………………….J.
[A.S. BOPANNA]
...………………………….J.
[SUDHANSHU DHULIA]
New Delhi.
January 24, 2023.
1 State of Kerala versus Joseph Antony (1994) 1 SCC 301 & Kerala Swathanthra
Malaya Thozhilali Federation and Others versus Kerela Trawlnet Boat Operators’
Association and Others (1994) 5 SCC 28
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