STATE OF KERALA v. JOSEPH ANTONY
Citation: [1993] SUPP. 3 S.C.R. 531; 1993 INSC 357
Court: Supreme Court of India
Bench: P.B. SAWANT, R.M. SAHAI
Judgment date:
Case summary
1993 INSC 357. Supreme Court of India judgment dated 1993-11-02. STATE OF KERALA v. JOSEPH ANTONY. Read the judgment and case details on LawSphereX.
Judgment text
532 SUPREME COURT REPORTS (1993) SUPP. 3 S. C. R .. f ST ATE OF KERALA v. JOSEPH ANTONY NOVEMBER 2, 1993 [P. B. SAWANT AND R. M. SAHAI, J_J. ) Kera/a Marine Fishing Regulation Act, 1980-Sections 2, 4-Power of State Government to regulate, restrict or prohibit certain matters relating to fishing within specified areas-Notifications imposing restrictions-Validity of- Exercise of power-Whether arbitrary. Constitution of India: Articles 19(l)(g), 19(6). -i. /otifications imposing ban on use of mechanised vessels, purse seine, pelagic and mid-water trawl gears for fishing in the territorial waters along the entire coast line of the State of Kera/a-Whether violative of fundamental right to occupation trade or business guaranteed under Art. 19(1)(g) of the Constitution-Restriction- Whether reasonable within meaning of Art. 19(6) of the Constitution. On 29-11-1980 the appellant State of Kerala in exercise of its powers under Sec.
4 of the Kerala Marine Fishing Regulation Act, 1980 (hereinafter referred to as the 'Act') issued two notifications. The said notifications defined the 'specified area' for the purpose of the Act, as the territorial waters and ·prohibited fishing by mechanised vessels using purse seine, pelagic and mid-water trawls along the coast line in the State of Kerala. These notifications, however permitted, by way of exemption the use of motorised country crafts in parts of the prohibited area. The High Court of Kerala in Babu Joseph v. State of Kera/a, ILR (1985)(i) Ker 402 while upholding the validity of the Act struck down the said notifications, as being an arbitrary exercise of power under the Act and as being violative of the fundamental right guaranteed under Art. 19(1)(g) of the Constitution. The High Court further directed that till a fresh decision ·is taken by the State Government, mechanised fishing vessels shall be allowed to operate only beyond 10 Kms from the shore.
The appellant State government, thereafter re-examined the situa- . tion and on 30-11-1984 issued two fresh notifications whereby (a) it specified the area along the entire coast line of the State but not beyond the territorial waters as the 'specified area' for the purpose of Clause. (d) of Sub Sect. (1) of Sec. 4 of the Act; (b) in order to protect the interest of fishermen using traditional fishing crafts and to preserve the law and order in the territorial waters, prohibited the use of purse seine, pelagic and mid-water trawls for fishing in the territorial waters along the coast line of the State of Kerala. Writ petition was filed, before the High Court of Kerala challenging the fresh notifications. The High Court by its judgment and order, declared the said notifications to be unenforceable in so far as they imposed a ban on the use of purse seine nets beyond 10 Kms.
The restriction imposed by the notifications were held to be an unreasonable restriction on the fundamental right guaranteed under Art. 19(1) (g) of the Constitution. The Court, however, held that the notifications could be enforced within the limits of the 10 Kms of the territorial waters of the State. Against the aforesaid order appeals were filed in this court, by the appellant and the original third respondent, namely the President of the Kerala Swanthanthra Matsya Thozhilali Federation, representing fisher· men using traditional fishing crafts, contending therein that the High Court erred in holding that (a) the restriction placed in the use of purse ·seine boats and nets was unreasonable and violative of the fundamental rights guaranteed by Article 19(1)(g) be old material which was before the Court, while deciding the earlier writ petition viz. Babu Joseph v.
State of Kera/a, could not be taken into consideration by the State Gov~rnment while issuing the fresh notifications; (c) that there was no new material before the appellant State, while issuing the new notifications and since -the new notifications were based on the same material on which the earlier notifications were based, the earlier notifications having been struck down, the present notifications were also liable to be struck down on the very said ground. The respondent on the other hand contended that (a) mechanised gears which they are operating at present are not fit for off shore and deep sea fishing and hence should be permitted to fish within the territorial waters (b) Instances of violence reported, do not involve purse seiners, but are result of conflicts between those using motorised . and non-motorised crafts. STATE v. JOSEPH ANTONY 533 Allowing both the appeals the Supreme Court held that: 1.
In matters which involve consideration of all relevant material having bearing on the socio economic life and scientific examination of the parameters involved, it is irrational to limit the objective material to be considered by yardsticks of time. The material when relevant and having bearing on taking decisions in such matters, cannot be ignored by applying the rule of staleness which is otherwise relevant for orders based on subjective satisfaction of the authorities. (546-H, 547-A·CJ 2. 1 The reports on record viz. Babu Paul Committee Reports Kalawar Committee Report and the two reports of the special officr. rs appointed by the State Government show that mechanised nets like purse senie do an irreparable damage to the existing stock of fish by killing juvenile fish and fish eggs and by preventing fish breeding. (549-G] 2.
2 The pelagic fish resources being limited in the Kerala coast there ls a potential danger of over exploitation of the said fish resources leading to Its rapid depletion and finally complete extinction, if mechanised nets are allowed to fish within the 22 kms of the belt of the territorial waters. Further the reports also indicate that with introduction of mechanised fishing in 1979 there has been within a few years sharp decline in the catch of the traditional craft resulting in 98. 5% of the fisherman population being pushed below the poverty line. The mechanished nets are thus not only impoverishing the mass of the poor fishermen by reducing their catch progressively but also destroying the standing fish stock itself. (551-A, 550-B, 551-E] 3. The operators of mechanised gears are few rich entrepreneurs comprising of a negligible percentage of the fishermen population.
They have enough resources at their command and hence can easily diversify into such fishing methods which are not prohibited in the territorial waters. They are in fact not prohibited from fishing within the territorial waters but are prohibited for using certain types of nets. There is, therefore, no restriction on their fundamental right under Art. 19(1)(g) to carry on their occupation, trade or business. They cannot insist on carrying on their occupation which is demonstrably harmful to others and threatens them with deprivation of their source oflivelihood. (552-DE, 553-A·C] 4. Protection of interests of weaker sections of the society is war· ranted as enjoined by Article 46 of the Constitution.
So also on the ground that if is necessary to prevent the fragment clashes between owners of country crafts and those mechanised crafts and thus to maintain law and order within the territorial waters the notifications in question being in public interest are justified and thus constitute a reasonable restriction within ihe meaning of Art. 19(6) of the Constitution. (553-D] 5. In the present cpse, the evidence on record clearly indicates. that the High Court was not right in taking the views that (a) the State Government had no new material before it while passing the impugned notifications (b) the State Government could not look into the material which was before it while passing the earlier notifications along with the ·new material it had, while passing the ·impugned notifications (c) the notifications constitute an unreasonable restriction within the meaning of Art. 19(6) and are thus violative of Art. 1. 9(1) (g) of the Constitution.
Hence the High Court was not justified in confining the operation of the said notifications only to 10 Kms the base coastal line. (547-C, 548-B, 546-C] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3531 of . 1986. From the Judgment and order dated 9. 4. 86 of the Kerala High Court in O. P. No. 253 of 1985. With Civil Appeal No. 3532 of 1986. G. Vishwanath Iyer, R. Sasi Prabhu, M. A. Firoz and E. M. S. Anam. for the appearing parties. The Judgment of the court was delivered by SAWANT, J. The dispute in the present case is essentially between the fishermen in the State of K~rala who use traditional fishing crafts such as catamarams, country crafts and Canoes which use manually operated traditional nets and those who use mechanised crafts which mechanically operate sophisticated nets like purse senie, ring seine, pelagic trawl and mid-water trawl gears for fishing in the territorial waters of the State.
In order to understand the nature and parameters of the dispute, it is necessary to known certain facts relating to the social life in the State and the marine life in the territorial waters of the State as well as the scope and object of the regulations made by the State to regulate fishing in its STATE v. JOSEPH ANTONY [SAWANT, J. ) 535 territorial waters. 2. The fishermen-population actively engaged in fishing by traditional fishing vessels in the territorial waters of the State which was earlier 5,37,017 increased by 20. 8% to 6,32,967 in the year 1981. However, the average landing of the fish in the traditional sector of fishing declined by 50. 3% from 3,34,992 tonnes in 1969- 71 to 1,68,512 tonnes in 1980-82. During this period, the number of traditional crafts such as catamarams, country crafts and canoes increased by 14% from 29,560 to 33, 805. This shows that in terms of production, the average of 3. 55 tonnes per annum per fisherman declined to 1.
55 tonnes per annum during this period. The annual income of the traditional fisherman-household which constitutes 89% of the total fisherman- household decreased, and the households falling below the poverty line (Rs. 3,500 per annum) were as high as 98. 5% in the year 1979. These figures speak for themselves and leave no doubt that the traditional fishermen constitute one of the weaker sections of the society needing protection at the hands of the State as ordained particularly by Article 46 of the Constitution. 3. These fishermen till the year 1979 were exploiting exclusively the pelagic (surface) fish resources of the sea within the territorial waters by using the country crafts and the traditional nets. However, in that year for the first time, few rich enterprises introduced the use of purse seine gears for exploiting the pelagic resources of the sea by operating costly mechanical fishing vessels. The purse seine is a sophisticated gear and covers a wide area.
A purse seine net which is on an average 400 meters in circumferance, covers an area of 12,826 square meters, i. e. , more than 1 hectare and catches on an average 600 to 800 tonnes of fish per annum. As against this, p the traditional fishing crafts in the period 1969- 71 could catch only 11. 3 tonnes per annum which was reduced to 5 tonnes per annum in 1980-82. T. hese figures are not only sufficient to show the comparative advantage and disadvantage of fishing by purse seine gears as against by the traditional fishing crafts and nets but also the adverse effect which the use of the sophisticated gears had on the catch of fish by the traditional fishing crafts. 4. It is also necessary to note in this connection the facts about the ·standing stock of fish within and without the territorial waters of the State. The pelagic fish which is available in the territorial waters consists mainly of oil sardine and mackerel.
The limit of the territorial waters of the State 536 SUPREME COURT REPOP. TS (1993] SUPP. 3 S. C. R. as defined by Section 3 ·(2) of the Maritime Zones Act, 1976 (Act 80 of 1976) is the line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate base line. One nautical mile is equivalent to 1852 meters and wnen converted into kilometers 12 nautical miles come to 22. 22 kms. The purse seine is used only for pelagic fishing. Therefore, the only species of fish substantially available for catch by purse seine boats in the territorial waters of the State are mackerel and 'sardine. The mackerel and sardine are thinly distributed beyond 22 kms. which is almost the limit of the territorial waters. According to Babu Paul Committee Report of July 1982 (Page 54, Para 6. 12), there were at that time 37 units of 43-1/2 feet length purse seiners regularly operating from Cochin.
These boats are designed for in-shore fishing and they can fish between 5 kms. and 25 to 30 kms. only. Since these boats do not have equipment such as echo-sound, radar, storage system, wireless, cold storage facility etc. They are not fit to operate offshore and in deep sea and have to keep the shore in sight ·while operating in the sea. . Paragraphs 6. 13 to 6. 16 of the ·said Report point out that in the opinion of the UNDP/FAD Pelagic Fishery Project, it is the traditional fishing method which is more harmful to the stock of s'ardine and mackerel because the young ones of these species move closer to the coast during the first year of their life and move out to offshore waters as and when they grow in size. Since the traditional fishing is done nearer the shore it is described in the Report as a wasteful utilisation of the resources while the purse seining is lauded as a more rational method· of harvesting the fish resources.
It appears that this Committee has not given any importance to the fact that the traditional fishermen use nets with wide meshes which enable the small fish to escape through them. Further, about 80 per cent of the traditional fishing boats have been motorised which enables them to cruise at least upto a distance of 20 to 22 kms. from the shore. The traditional fishing, therefore, is no longer confined to areas nearer the shore. As against this, the Kalawar Committee report of 19th May, 1985 states as follows : • "............ The decline in both Goa and Maharashtra seems to stem mainly from overfishing that has set in. after the advent of com-mercial purse seining in Karnataka (Fig. 74; Table 60) ·and Goa STATEv. JOSEPHANTONY[SAWANT,J. ] 537 particularly and Kerala to some extent. The sha*p decline in Kerala owes mainly to a combination of factors including mainly : (1) competition for space from the mechanised trawlers until 1980 (Fig.
66 and 67); (2) competition for resource from purse seiners since 1979 (Table 48); and (3) overfishing by purse seiners in Karnataka (Table 60; Fig. 74), Goa and also Kerala (see section 2 above). Since the traditional sector in Kerala is certainly capable of putting in optimal levels of effort (Table 70; Fig. 67), and particularly in the context of a newly emerging fleet of motorised fishing canoes (there are already over 2,000 units) with much greater fishing efficiency (Table 48), this Committee is of the opinion that there is little case for a purse seine fishery for the smaller pelagics of oil sardine, mackerel and whitebaits in Kerala, and therefore, the action °if the Government of Kerala prohibiting purse seining within the territorial waters, is commendable. Since the management of the fisheries for the common pelagic stocks in. the south-west coast involves interstate questions, there is need to optimise the number of purse seiners in the neighbouring Kar- .
nataka at about 230 (Fig. 74) as already pointed out. Annual / catches of oil sardine and mackerel during 192,5-83 (Fig. 79) clearly reveal that the productions of these fisheries has not increased any significantly at all after the advent of the purse seine fishery in 1977. Even in Karnataka, ironically enough, the average annual pro~uction for the 5 year period, 1969- 73 before the introduction of purse seining was much higher (38,271 tons) than in 1974-78 {24,308 tons) or in 1979-83 (18,060 tones) (Table 55). Moreover, the age at first capture in the traditional fisheries . , during 1934-73 has almost invariably been 6 months (the length at first capture being 175 mm) rarely less than that (3 months in 1956, 1960 and 1969; Tables 72,73 and 75) so that the half year group which includes 6 to 11 months old fish almost always constituted the fully recruited group {Table 75) .......... " (Pages 284-285) "...........
On the contrary, purse seines, particularly of mesh size used in the whitebait fishery, have been reported to be landing sig- / .. nificant quantities of young and. juvenile mackerel both of at Mangalore and Cochin, thereby reducing considerably the size at first capture and accelerating the process of recruitment and growth overfishing. There are also enough number of lessons from all over the world, of major pelagic stocks of herrings, sardines, ~ pilchards, mackerels and anchovies having been driven to commer-cial extinction by unregulated Purse seine fisheries. " (Page 291) "........... The very steep slope of the ascending limb of the recruitment curve together with the short distance between the origin and the optimum (230. 856 million) as against the gentle slope of the descending limb together with the significant distance between the optimum and the replacement level (P = R = 954.
7399 million) suggests that extreme overfishing of the spawner stock can be catastrophic to the stock. The purse seine fishery certainly has the potential to bring about this catastrophe............... " (Page 293) "Before the advent of the purse seine fishery any fall in the catch • used to be compensated by higher prices. In 1980, however, the extremely low catches of oil sardine did not bring about a price increase at the landing centres on account of the regular supply of purse seine catches, as seen from the average prices of 50 paise in 1979, 50 paise in 1980 and 60 paise 1981. This is turn, discouraged fishing by indigenous craft· in usual numbers, resulting in low ·p aggregate revenue from oil sardine catch by the traditional sector (rupees 54 million in 1979, 26 million in 1980, and 78 million in 1981) as well as revenue per traditional boat per day from oil r sardine (rupees 57 in 1979, 35 in 1980 and 90 in 1981) in 1980.
As a result, income per fishermen family reduced by about 50% in 1980 from the income in 1979. About 10% of the active traditional fishermen abandoned fishing in 1980 and took up alternative employment including road repairing, rubble work, metalling and head load work besides about 250 traditional fishermen employed in purse seiners at Cochin fisheries harbour. At certain centres like Kannamali and Manasseri, a number of fishermen shifted from marine fishing to backwater fishing at least temporarily while those STATE v. JOSEPH ANTONY [SAWANT, J. ] 539 who remained in marine fishing were underemployed. With the revival of the oil sardine fishery in 1981, there was a substantial increase in the effect by the traditional fishery which was able to provide regular supplies and attract wholesale and retail traders in large numbers to the traditional landing centres.
The introduction of motorised canoes in the second half of 1981 from Quilon to Munambam also helped increased the sardine catches (Jacob et al)". (Page 308-9) The first of the two reports given by the experts appointed by the State Government states, in this connection, as follows: "1. The need to ban the purse-seine, ring seine, mid-water trawl and pelagic trawl up to 22 km from the shore is motivated by the following crucial factors viz. , (1) conservation of marine resources of territorial waters, (ii) protecting the interest of the traditional fishermen and (iii) to keep law and order problem in the territorial sea. The bulk of catch of purse seiners consists of sardine and mackerel while the traditional fisheremen have the fishing technology to catch the above fishes. Landing of sardine and mackerel fishes contribute a major part of the income to the poor traditional fishermen who live below the poverty line. 2.
According to the well established thinking in Fisheries biology, 40 to 60 per cent of standing fish stock can be only fished annually. As per estimate, the potential stock within the territorial waters and beyond territorial waters is 94,600 tonnes in oil sardine and 47,999 tonnes in mackerel (Ref. P. C. George & others- Publication). But as per the fish landing statistics the total fish landing exceeds the above limit-maximum sustainable yield. Thus, there is danger of over-exploitation of pelagic fishery resources, leading to rapid depletion if purse-seine is allowed in 22 KM territori :eeded. That technology is ill-suited to Kerala where there is huge fisherman-population in the artisanal sector as shown above and where the productivity and income per capita is low with 98. 5 per cent of the fishermen living below the poverty line.
What is more, as stated above, the operation of fishing by mechanised nets like the purse seine is responsible for destroying the fish stock by killing juvenile fish and fish eggs and thus preventing their breeding. The mechanised nets are thus not only impoverishing the mass of poor fishermen by reducing their catch progressively but also by destroying the standing fish stock itself. There is also a danger of over-exploitation leading to complete extinction of the pelagic fish within the territorial waters. It is not also correct to say that the large scale fishing by the mechanised nets has led to an incr~ase in total production thus benefiting the consumer either by abundant supply of fish or by reduction in their price. As the reports show, given the standing stock and the present level of exploitation, the mechanised net fishing would not lead to any increase in production. On the other hand, as stated earlier, there is a real threat of depletion of the stocks.
What is further, the reports also point out that in other countries such as USA, Norway, Great Britain and Japan steps have been taken to restrict fishing by sophisticated gears like the purse seine to avoid destruction and depletion of the pelagic fish wealth. The aforesaid data on record clearly show that the ban on fishing by mechanised nets like purse seines, ring seines, pelagic and mid-water trawls is necessary firstly 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 eventual total • • destruction. In addition to the above two factors, we have on record the report of the IGP which shows that several violence incidents had occurred on account of clashes between the users of mechanised crafts and those of the traditional crafts within the State territorial waters. The.
State Government was, therefore, fully justified in acting on the said report and banning the fishing by the mechanised nets within the territorial waters on that ground as well. 15. The contention on behalf ·of the respondent-operators of mechanised gears firstly that the purse seines which they are operating at · present are not ·fit for off-shore and deep sea fishing and hence they should be permitted to fish within the territorial waters, in the circumstances, has to be rejected. The operators of purse seines are few and rich with enqugh resources at their ·command. They do not ordinarily form part of the fisherman-population proper. Fishing is not their traditional source of livelihood. They have entered the fishing "industry" only as late as in 1979 and as entrepreneurs to make profits. They obviously look upon fishing as a business and not as a means of livelihood.
Assuming, therefore, that the boats which they are at present operating are not fit for off-shore and deep-sea fishing, they can always replace or convert them for . such use. Even with the present boats they can easily diversify their fishing methods to bottom trawling, trolfuig line, gill netting, pot fishing etc. which are not prohibited in the territorial waters. They can also engaged in hook and line fishing and dory fishing for fish resources like shark, cat fish, perches and anchoviella. With their financial resources they can also change over to sophisticated fishing crafts for off-shore fishing for exploiting fish resources beyond the territorial waters. 16. By monopolising the pelagic fish stock within and by indiscriminate fishing in the territorial waters they are to-day denying the vast masses of the poor fishermen their right to live in two different ways.
The catch that should come to their share is cordoned off by the giant closely meshed gears leaving negligible quantity for them. Secondly, the closely STATEv. JOSEPHANTONY[SAWANT,J. ] 553 meshed nets kill indiscriminately the juvenile with the adult fish and their eggs as well. That is preventing breeding of the fish which is bound in course of time to lead to depletion and extinction of the fish stock. There is thus an imminent threat to the source of livelihood of the vast section of the society. The State is enjoined under Article 46 of the Constitution in particular to protect the poor fisherman-population. As against this, the respondent-operators are not prohibited from fishing within the territorial waters. They are only prohibited from using certain types of nets, viz. , purse seines, ring seines, pelagic and mid-water trawls. There is, therefore, no. restriction on their fundamental right under Article 19 (1) (g) to carry on their occupation, trade or business.
They cannot insist on carrying on their occupation in a manner which is demonstrably harmful to others and in this case, threatens others with deprivation of their source of livelihood. Since, in the circumstances, the protection of the interests of the weaker sections of the society is warranted as enjoined upon by Article 46 of the Constitution and the protection is also in the interest of the general public, the restriction imposed by the impugned notifications on the use of the gears in question is a reasonable restriction within the meaning of Article 19(6) of the Constitution. 17. As regards the contention that the instances of violence referred to in the report of the Inspector General of Police show that there is not even one instance involving purse seiners and that all but one instance, are. of the conflict between those using motorised and non-motorised crafts, we are afraid that the contention is contrary to the report in question. The incidents of ~1. 5. 1984, 23. 5.
1984, 24. 5. 1984, 25. 5. 1984, 15. 12. 1984 and 18. 12. 1984 clearly indicate that the boats which were attacked were the mechanised boats and. the attackers the owners of country crafts. Further, the incident at serial No. 6 of the report, whose date is not specified, also relates to an attack on a purse seine boat. The report concludes by stating that clashes involving total of eight mechanised boats and two country crafts took place on 18. 12. 1984 and the total loss was to the tune of Rs. 2,11,000. The High Court has unfortunately not dealt with this aspect of the matter at all. It will thus be seen that even on the ground that it is necessary to prevent the fragment clashes between the owners of country crafts and those of the mechanised crafts and thus to maintain law and order within the territorial waters, the notifications in question being in A public interest are justified.
Thus the notifications constitute a reasonable restriction within the meaning of Article 19 (6) of the Constitution. 18. We are thus mor~ than satisfied that the High Court was not justified in confining the operation of the said notifications only to 10 kms. from the base coastal line. In the circumstances, we set aside the impugned B decision of the High Court and hold that the two impugned notifications dated 30th November, 1984 are valid and operative throughout the territorial waters of the State. The appeals are allowed accordingly with cost. T. W. Appeal allowed.
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