(Prayer: Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of declaration declaring Notification No.110 (RE-2013)/2009-2014 dated 6.2.2015 issued by the second respondent as ultra vires of the provisions of the Foreign Trade (Development & Regulation) Act, 1992 so far as the members of the petitioner's Association are concerned.)
V. Ramasubramanian, J.
1. The petitioner has come up with the above writ petition challenging the Notification dated 06.02.2015 issued by the Director General of Foreign Trade, prohibiting the export of Shark fins of all species of Shark.
2. Heard Mr.S.Murugappan, learned counsel for the petitioner, Mr.S.Makesh, learned Additional Central Government Standing Counsel appearing for respondents 1 to 4, Mr.V.Sundareswaran, learned counsel appearing for the 5th respondent and Mr.M.T.Arunan, learned counsel appearing for the 6th respondent.
3. The petitioner is an Association of Exporters of Dried Marine Products. It is registered as a Society under the Tamil Nadu Societies Registration Act, 1978.
4. The petitioner has come up with the above writ petition challenging a Notification bearing No.110(RE-2013)/2009-2014 dated 06.02.2015, issued by the Director General of Foreign Trade which is the second respondent herein. The Notification has been issued actually by the Central Government in exercise of the powers conferred by Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with para 1.3 of Foreign Trade Policy 2009-2014. By the said Notification, the Central Government has banned the export of Shark fins of all species of Shark.
5. The case of the petitioner is that India, which has a long coastal line of about 7500 Kms., has thousands of fishing villages along the coastal line. Though Shark meat is consumed only by a very small percentage of the Indian population, Shark fins are used extensively by the Chinese, who consider the same to have medicinal effect. Therefore, several countries export Shark fins to China. It appears that the export of Shark fins from India was to the value of Rs.3,439.37 lakhs in 2012-13, but it rose to Rs.3,857.20 lakhs in 2013-14. According to the petitioner, there are 480 species of Shark, out of which only 18 species are protected by an International Convention to which 180 countries including India are signatories.
6. The petitioner challenges the impugned Notification primarily on the following grounds:-
(i) that under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, known in brief as CITES, only 18 species out of 480 species of Shark are protected and hence, a total ban on export is contrary to the Convention;
(ii) that even under Schedule I to the Wild Life Protection Act, only 6 species of Shark and 3 species of Ray are prohibited of being hunted and hence, the Notification issued under the Foreign Trade Policy is contrary to law;
(iii) that the decision to impose a total prohibition was taken in a meeting convened by the Secretary to Government in the Ministry of Commerce and Industry, wherein a proposal was mooted by one member whose credentials are not known and especially when the proposal made by the member was without any basis or factual details justifying the ban; and
(iv) that when the hunting of Shark for domestic consumption is not prohibited, the total prohibition of export of Shark fins, is irrational, arbitrary and unjustified.
7. The Deputy Director General of Foreign Trade has filed a counter affidavit on behalf of the second respondent as well as the others. It is stated in the counter affidavit that Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, confers power upon the Central Government to formulate and announce the Foreign Trade Policy and also to amend the policy from time to time. In paragraphs 10 and 11 of the counter affidavit, the second respondent has stated the rationale behind the imposition of the ban. Therefore, paragraphs 10 and 11 are extracted as follows:
"10. The respondent humbly submits that based on representation from different quarters on preventing cruelty to animals and request to Department of Commerce to ban export of shark fins, a meeting was held under the Chairmanship of Commerce Secretary on 13.01.2015 which was attended by the representatives of Department of Commerce, Department of Animal Husbandry Dairying & Fisheries, Directorate General of Foreign Trade (DGFT), Marine Product Export Development Authority (MPEDA) and the representative of People for Animals. During the meeting it was felt that while there was a ban on the export of 9 species of sharks as notified by Ministry of Environment Forests & Climate change, it is extremely difficult, at the time of capture of fishes/sharks, for anyone to differentiate between the prohibited species and non-prohibited species. The representative of MPEDA was of the view that since export of shark/shark fins both in terms of quantity and value was very small and with a view to safeguard the environment, export of shark and shark fins could be banned. Since, shark is at the apex of marine food chain, Joint Secretary, Department of Commerce was of the view that it is necessary to stop the depletion of sharks in the marine environment especially in the Indian waters in order to preserve the marine eco-system. The representative of people for Animals was of the view that while they were in favour of capture of sharks for domestic consumption by the local fisherman, it is the large lines/trawlers of the foreign origin who were obtaining permits from Ministry of Agriculture are involved in the gruesome practice of fining of sharks, resulting in decline in shark numbers and hence requested that there should be a complete ban of shark fishing for fins in the Indian EEZ as it was resulting in not only destruction of Indian Fish resources and threatening the livelihood of food security of Indian Fishermen, but also resulting in the degradation of the marine environment. So, it was requested by them to consider discontinuation of shark fins exports. After the discussion, it was decided that trade in shark fins (both export & imports) should be banned, keeping in view the ecological aspects resulting out of fishing and fining of sharks in the Indian EEZ. The Chairman said that so far as capture of sharks/shark fins, and the issue of permits to foreign vessels for shark fishing in the Indian EEZ, Ministry of Agriculture and Department of Fisheries may take a call on whether to ban capture of sharks for shark fins/shark oil, for domestic consumption.
11. The respondent humbly submits that the Secretary and Director General of Department of Agriculture Research and Education and Indian Council of Agricultural Research had also endorsed the proposal to ban export of shark fins. It is further submitted that in addition, representations were received from certain activities groups for preservation of the shark population."
8. Having seen the stand taken by the respondents, as reflected in their counter affidavit, we shall now take up the grounds of challenge to the impugned notification, one by one.
9. The first ground of challenge, is on the basis of an International Convention known as CITES. This Convention was actually drafted as a result of a resolution adopted in 1963 at a meeting of the Members of the International Union for Conservation of Nature and Natural Resources. It appears that the text of the Convention was finalised at a meeting of representatives of about 80 countries on 03.3.1973 and the Convention entered into force on 01.7.1975.
10. Interestingly, this Convention was not a product of any resolution passed by the General Assembly of the United Nations Organisation. However, almost all Member States of the United Nations, with the exception of a few, are parties to this Convention. It is stated that as of May 2014, 180 countries have ratified the Convention. Since the aim of this Convention is to ensure that International Trade in specimens of wild animals and plants does not threaten the survival of the species in the wild, the Secretariat of General Agreement on Tariffs and Trade (GATT) was consulted before the Convention was finalised. The Convention seeks to accord varying degrees of protection to more than 35,000 species of animals and plants. India is a party to the Convention.
11. Under Appendix II to the Convention, only a few varieties of Shark (about 18 species of shark) are protected as per Article IV of the Convention. There are about 480 varieties of Shark, all of which are not protected by the Convention. Therefore, it is contended by the petitioner that the impugned notification travels beyond the scope of the Convention to which India is a party.
12. But, at the outset, this contention of the petitioner is liable to be rejected outright, for two reasons. The first reason is that under Article XIV of the very same Convention, the parties to the Convention are given the right to adopt stricter domestic measures. Clause 1 of Article XIV reads as follows:
"1. The provisions of the present Convention shall in no way affect the right of Parties to adopt:
(a) stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof; or
(b) domestic measures restricting or prohibiting trade, taking, possession or transport of species not included in Appendix I, II or III."
13. Therefore, the Convention by itself does not prohibit the adoption of more stricter standards by any Member country, depending upon the local conditions and the Municipal laws. Apart from the fact that the Convention itself gives a leverage to the Member countries, it is settled law in this country that an International Convention ratified by India is enforceable, only to the extent that it is not in conflict with the Municipal law of the country. In other words, the obligations of the State under an International Convention can be enforced subject only to the provisions of the Municipal law, even if the Municipal law contains lesser standards than those prescribed in the International Convention. If this is so, even with regard to a Municipal law which contains a lesser standard, it is needless to point out that a Municipal law which prescribes a higher standard, will prevail over the prescription contained in the Convention. Hence, the first ground of attack is rejected.
14. The second ground of attack to the notification has 2 limbs. The first is that even under Schedule I to the Wild Life Protection Act, only 6 species of Shark and 3 species of ray are prohibited of being hunted and hence, the Notification issued under the Foreign Trade Policy is contrary to law. The second limb of this ground of attack is that thenotification is also self contradictory.
15. On the first limb, it is true that under Section 9 of the Wild Life (Protection) Act, 1972, there is a prohibition of the hunting of any wild animal specified in Schedules I, II, III and IV except as provided under Sections 11 and 12. Sections 11 and 12 carve out some exceptions to the general rule in Section 9, in cases where a danger to human life is perceived or the hunting becomes necessary for education or scientific purposes. In Part II-A of Schedule I to the Act, all varieties of Whale Shark and 9 varieties of Shark and Ray are included. Therefore, it is clear that the hunting of all varieties of Whale Shark and 9 varieties of Shark and Ray is prohibited under the Wild Life (Protection) Act, 1972.
16. It is also true that the Central Government is empowered by Section 61 of the Wild Life (Protection) Act to amend Schedules I and III from time to time, depending upon the need. Therefore, in exercise of the power so conferred by Section 61(1), the Central Government amended Part II-A of Schedule I, under a notification dated 11.7.2001, so as to include all types of Shark and Ray at serial No.2. But, by a subsequent notification dated 05.12.2001, only 9 varieties of Shark and Ray were included under the heading Shark and Ray at serial No.2 of Part II-A of Schedule I. Therefore, insofar as hunting is concerned, there is a total prohibition for the hunting of 9 varieties of Shark and Ray.
17. But, it does not mean that the domestic market and the foreign market deserve equal treatment. The parameters for including a species of animal or plant in the Wild Life (Protection) Act, are different from including the same in the Foreign Trade Policy. The scope, object and purpose of the Wild Life (Protection) Act and the Foreign Trade (Development and Regulation) Act, 1992 are completely different. As a matter of fact, if a species of animal or plant is prohibited of being hunted under the Wild Life (Protection) Act, it cannot also be exported and hence, any Foreign Trade Policy issued under the Foreign Trade (Development and Regulation) Act, 1992 cannot go contrary to the Wild Life (Protection) Act, 1972. But, the corollary is not true. If the hunting of something is not prohibited under the Wild Life (Protection) Act, it does not mean that even the export of the same cannot be prohibited.
18. As a matter of fact, there is a statutory multi disciplinary body, known as Wild Life Crime Control Bureau, established by the Government of India under the Ministry of Environment and Forests. A look at the historical background of the creation of this Bureau may be essential.
19. On 24thMay 1994, the Ministry of Environment and Forests, Government of India, constituted a Committee on 'Prevention of Illegal Trade in Wildlife and Wildlife Products'. The committee submitted its report on 8thAugust 1994. The Committee observed that illegal trade in wildlife has raised its head in an organized manner in the country and lack of well - structured enforcement machinery and a system of flow of information are hampering any meaningful effort to put an end to this menace. Its recommendations included - establishment of a Central Task Force designated as Directorate of Prevention of Crime against wildlife with branches in important centres that would co-ordinate with the enforcement agencies; establishment of Central Wildlife Crime Data Bank to collect, collate and analyze data on wildlife and provide actionable guidelines to field staff; and establishment of good intelligence network.
20. In the year 2000 international attention focused on India due to apparent escalation in illegal wildlife trade in the country, following significant seizures of wildlife articles in Ghaziabad (18/12/1999) and Khaga (12/01/2000). In the 11thCOP of CITES (Kenya 2000) India promised to open a Wildlife Crime Cell to tackle poaching of tiger and illegal trade in tiger parts and derivatives. Therefore, the Minister of Environment and Forests approved the constitution of Wildlife Crime Cell in the Ministry of Environment & Forests, and a notification to this effect was issued on July 18, 2001. But, in December 2004, the nation was shocked to know that tigers may have disappeared from the Sariska Tiger Reserve in Rajasthan. By March 2005, the Wildlife Institute of India (WII) confirmed in its interim report (which it followed up with detailed habitat monitoring) that there were indeed no tigers left in Sariska. The Central Bureau of Investigation (CBI) was asked to inquire into the disappearance. CBI investigation revealed that since July 2002, poachers had been killing tigers in the reserve and that the last six tigers were killed in the summer - monsoon of 2004.
21. Consequently, the Ministry of Environment and Forests set up Tiger Task Force on April 19, 2005, to review the management of tiger reserves.Task Force suggested to set up a wildlife crime bureau at the central level, with nodes in each tiger range state with capacity to both investigate and follow up on the crime. A proposal for constitution of a National Wildlife Crime Control Bureau under the Ministry of Environment and Forests to combat organized illegal trade in wildlife and their derivatives, was in – principle approved in the second meeting of the National Board for Wildlife chaired by the Prime Minister on 17thMarch 2005. The Department Related Parliamentary Standing Committee on Science and Technology, Environment and Forests, in its 154thReport had also strongly emphasized creation of the said Bureau as a statutory authority under the Wild Life Protection Act, 1972. The Wild Life (Protection) Amendment Act, 2006, was passed in the Parliament during its monsoon session of 2006, providing enabling provisions for constituting the Bureau. The Act received the assent of the President on 3rdSeptember 2006, and its provisions came in to force on 4thSeptember 2006. The Government of India notified the constitution of the Tiger and Other Endangered Species Crime Control Bureau to be known as the Wildlife Crime Control Bureau vide Order No. S.O. 918 (E) dated 6th June 2007. It became operational in the year 2008.
22. This Bureau assists and advises the customs authorities in the inspection of the consignments of flora and fauna as per the provisions, not only of the Wild Life (Protection) Act, but also CITES as well as the Exim Policy governing such an item.
23. In the website of this Wild Life Crime Control Bureau (WCCB), there is a site map, indicating the several heads of information provided in the website. One of the heads of information available in the website of WCCB is "CITES and Trade facilitation". In the page relating to this CITES and Trade Facilitation, there is a link to "Legal Framework for International Trade".
24. The relevant portions of the said "Legal Framework for International Trade", available in the website of WCCB are as follows:
" 1. POLICY AND LAWS CONCERNING CITES IN INDIA
International trade in all wild fauna and flora in general, and the species covered under CITES in particular, is regulated jointly through the provisions of, the Foreign Trade (Development Regulation) Act 1992, the Foreign Trade Policy of Government of India and Customs Act, 1962 and the Wild Life (Protection) Act 1972 is main legislation to protect the Wild Life in India. The Director of Wild Life Preservation, Government of India is the Management Authority for CITES in India.
1.1 Wild Life (Protection) Act, 1972
Hunting of wild animals has been prohibited under Sec. 9 of the Wild Life (P) Act, 1972. No person is allowed to hunt any wild animal specified in Schedule I, II, III and IV except as provided under sections 11 and 12 of the Act. The Act also prohibits under section 17A, the collection or the trade in specified plants (whether alive or dead or part or derivative) i.e. those listed in Schedule VI of the Act, from any forest land and any area specified by notification by the Central Government. The Schedule VI of the Act lists all the six plants of Indian origin included in CITES appendices. Trade in Scheduled animals / animal article i.e. animals/animal articles covered under Schedule I and Part II of Schedule II which also include some inverterbrate such as insects, corals, molluscs and sea cucumber are prohibited under the said Act. Similarly, the Act disallows trade in all kinds of imported ivory, including that of African elephant. Export or import of wild animals and their parts and products is, however, allowed for the purpose of scientific research and exchange of animals between Zoos and is subject to licensing by the Director General of Foreign Trade (DGFT), Government of India. The Act has been amended in 2006 leading to the establishment of the National Tiger Conservation Authority and the Wildlife Crime Control Bureau (WCCB) with a statutory backing.
1.2 Foreign trade (Development and Regulation) Act 1992
This Act replaces the earlier Imports and Exports (Control) Act, 1947. The Foreign Trade Policy incorporating the export and import policy is formulated and announced by the Central Govt. under section 5 of this Act. As per section 8 (1) no export or import shall be made except in accordance with the provisions of this Act, the rules and orders made there under. As per section 3(1) the Central Govt. makes provisions for the development and regulation of foreign trade by facilitating imports and exports. As per section 3(2) the Central Govt. may also by order published in the official gazette, make provision for prohibiting, restricting or otherwise regulating in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the order the import or export of goods. As per section 3(3) all goods to which any order under sub - section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly.
1.3 Foreign Trade Policy
Foreign Trade Policy announced periodically by the Ministry of Commerce contains, inter alia, information regarding the Wildlife and Wildlife products which are either prohibited or permitted for the purpose of import or export. It also contains the conditions (which include compliance with CITES) governing import and export of permissible species of Wildlife and Wildlife products. The policy is decided in consultation with the Management Authority for CITES in India as far as matter relating to wild fauna and flora are concerned and is enforced through the Customs Act, 1962. The Foreign Trade Policy is brought out under the provisions of the Foreign Trade (Development & Regulation) Act 1992, and it regulates the import and export of all goods including Wild Life.
1.3.2 Export policy
The Export Policy permits re-export of commodities except to the extent such exports are regulated by any other provisions of this Policy or any other law for the time being in force. Items prohibited for export are not permitted to be carried in the personal baggage also. It is worth mentioning that all forms of wild life including their parts and products are prohibited for export except in cases where it is specifically allowed under different parts of ITC (HS) Classification of Export and Import Items. Peacock tail feathers which were earlier allowed for Export under a limited ceiling are now prohibited for Export. Export of exotic birds except 6 species listed under Table B of Schedule 2 is also prohibited at present. Further, the Ministry oof Commerce vide Public Notice No.47 (PN) 92-97 dated 30.3.1994 had prohibited the exports of a number of plants, plant portions and their derivatives if obtained, from wild. This list has been amended from time to time."
25. Therefore, it is clear that there is no conflict between the legal framework under the Wild Life (Protection) Act, 1972 and the Foreign Trade (Development and Regulation) Act, 1992. In fact, the legal framework has been developed in such a manner that the Ministry of Environment and Forests works in close coordination with the Ministry of Commerce. What is prohibited under the Wild Life (Protection) Act, 1972, cannot even be hunted and hence, there is no question of any export of such an item. But, what is not prohibited under the Wild Life (Protection) Act, 1972, can be exported, subject only to a total prohibition or a restriction under the Foreign Trade Policy issued in terms of the Foreign Trade (Development and Regulation) Act, 1992. There is no conflict between the two if an item not prohibited under the Wild Life (Protection) Act, 1972, is prohibited of being exported under the other enactment. A conflict will arise only when what is prohibited by the Wild Life (Protection) Act is permitted to be exported under the Foreign Trade (Development and Regulation) Act. Hence, the first limb of the second ground of attack is also liable to be rejected.
26. The second limb of this ground of attack is that Chapter 3 of the Current Foreign Trade Policy as amended by the notification dated 06.02.2015, contains a Note. Note 1 reads as follows:
"Note-1: The term "Marine Products" in this Chapter covers all the eight digit EXIM Codes in the Chapter of the ITC (HS) Classification of Export and Import items. All marine species that have been included in the schedules of the Wild Life (Protection) Act, 1972 are prohibited for exports and other species listed in CITES are subject to the provisions of the CITES."
27. But, Entry 31-A in the Table below Chapter 3 indicates that Shark fins of all species of Shark are prohibited for export. Therefore, the contention of the learned counsel for the writ petitioner is that Entry 31-A goes contrary to Note 1 under Chapter 3.
28. But, we fail to understand as to how Entry 31-A goes contrary to Note 1. Note 1 under Chapter 3 indicates the broad policy of the Government not to permit the export of any species listed either in CITES or included in the Schedule to the Wile Life (Protection) Act, 1972. This broad policy statement does not take away the power conferred under a parliamentary enactment, namely Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, upon the Government to amend the entries in the Schedule. A conflict between Note 1 and an entry will arise only in cases where what is prohibited by CITES or what is prohibited by Wild Life (Protection) Act, 1972, is permitted by the notification issued under the Foreign Trade (Development and Regulation) Act, 1992 to be exported. Therefore, the second limb of the second ground of attack should also be rejected.
29. The third ground of challenge to the impugned notification has three limbs. The first is that the decision to impose a total prohibition on the export of Sharks was taken in a meeting convened by the Commerce Secretary. No officer from the Ministry of Environment and Forests attended the meeting. Therefore, proper officers, whose presence would have made all the difference, while taking such an important decision, were not available in the meeting. The second limb of the third ground of attack is that the credentials of the non governmental organisation "People for Animals", whose representative Ms.Gouri Maulehki participated in the meeting, are not known. The third limb of the third ground of attack is that the various claims and statements made by the participants in the meeting held on 13.01.2015, were not supported by any evidence, statistics or a scientific analysis of the data relating to marine eco system.
30. Drawing our attention to the copy of the Minutes of the Meeting dated 13.01.2015 and elaborating on the above three limbs of the third ground of attack, it is submitted by Mr.S.Murugappan, learned counsel for the petitioner, that a notification issued in terms of a parliamentary enactment is a piece of subordinate legislation, as held by the Supreme Court in Indian Express Newspapers (Bombay) Pvt. Ltd. vs. Union of India [1985 (2) SCR 287] and that therefore, it should be reasonable and not arbitrary or unreasonable. The learned counsel also invited our reference to the decision of the Supreme Court in Dai-Ichi Karkaria Ltd. v. Union of India [AIR 2000 SC 1741], in support of his contention that in cases where power is vested in the Government, to be exercised in public interest, the Government was expected to exercise the power in a reasonable way.
31. We have carefully considered the above submissions.
32. It is true that no officer from the Ministry of Environment and Forests attended the meeting held on 13.01.2015. But, it is seen from the Annexure to the Minutes of the Meeting that the following persons attended the meeting: (i) The Commerce Secretary, (ii) The Director General of Foreign Trade, (iii) Joint Secretary, Department of Commerce, (iv) Joint Secretary, Ministry of Agriculture, (v) Director of Department of Commerce, (vi) Director of the Office of the Director General of Foreign Trade, (vii) Director of Marine Products Exports Development Authority and (viii) a representative of an organisation known as "People for Animals".
33. When the Joint Secretary in the Ministry of Agriculture, belonging to the Department of Animal Husbandry, Dairying and Fisheries had participated in the meeting, we do not know how the non participation of anyone from the Ministry of Environment and Forests would have affected the outcome of the meeting. The ultimate decision taken in the meeting, has not gone against the interests of the Ministry of Environment and Forests. Aquaculture is also an area that comes within the Ministry of Agriculture, especially in the Department of Animal Husbandry, Dairying and Fisheries. Therefore, the non participation of anyone from the Ministry of Environment and Forests, is no ground to hold that the decisions taken at the meeting was vitiated, especially when the decision had not gone against the interests of the Ministry of Environment and Forests.
34. The second limb of the third ground of attack is that the credentials of the organisation "People for Animals" were not known. But, this argument loses sight of the fact that the representative of the said organisation was not a loner at the meeting. This can be seen even from a bare perusal of the Minutes of the Meeting.
35. The very object of convening the meeting, was summarised by the Commerce Secretary in the following lines:
"At the outset CS stated that while there was a ban on the export of 9 species of Sharks as notified by the Ministry of Environment and Forests, it is extremely difficult, at the time of capture of fishes/sharks, for any one to differentiate between the prohibited species and non-prohibited species."
36. The representative from the Department of Agriculture seems to have suggested in the meeting that the export of Shark fins/Sharks, except those 9 species banned under the Wild Life (Protection) Act, 1972, was under Open General License and that the entire export may be brought under restricted category. The Director General of Foreign Trade is stated to have pointed out that the banning of the export of all species of Sharks/Shark Fins, even while allowing the capture of Sharks for domestic consumption, would lead to an imbalanced approach. The Director of the Marine Products Exports Development Authority stated in the meeting that since the quantum of exports of Sharks and Shark Fins was very small, both in terms of quantity and in terms of value, they would have no objection to a total ban, as it would safeguard the environment.
37. What was stated by the representative of a non-governmental organisation by name "People for Animals", was recorded in paragraph 6 of the Minutes of the Meeting. It reads as follows:
"Ms.Gauri Maulekhi of "People for Animals" stated that while they were in favour of capture of Sharks for domestic consumption by local fisherman, she expressed apprehension that it is the large lines/trawlers of foreign origin which were obtaining permits from the Ministry of Agriculture which were involved heavily in the gruesome practice of finning of sharks, resulting in decline in shark numbers and hence, requested that there should be a complete ban of shark fishing for fins in the Indian EEZ as this was resulting in not only destruction of Indian fish resources and threatening the livelihood of food security of Indian fishermen, but also resulting in the degradation of the marine environment. She urged that the Department of Commerce may consider discontinuation of shark fins export."
38. The Minutes of the Meeting dated 13.01.2015 show that the participants aired different view points on the subject matter and that there was a free discussion of the pros and cons of a prohibition. Relevant factors have been taken into consideration and the ultimate decision was not based upon any irrelevant material or consideration. Therefore, the contention as though the proposal for a total ban was mooted by one insignificant member whose credentials were not known, is not factually correct.
39. The third limb of the third ground of attack is that the Committee did not have any scientific data to enable them to come to the conclusion that it did.
40. But, it must be pointed out that the Minutes of a Meeting of this nature need not necessarily be a transcript of whatever happens in the meeting hall. In any case, in the world of internet in which we live today, it is not difficult for anyone to find out whether the facts and figures relied upon by someone to propagate his view point is correct or not. The Food and Agriculture Organisation (FAO) of the United Nations has pointed out in their official website that an estimated 73 million Sharks are killed each year, at the rate of 10,000 sharks per hour. According to their statistics, 90% of the large Sharks have been wiped out regionally.
41. It appears that on the IUCN's Red List of Endangered Species, 50 Shark species are listed as being at high risk of extinction and 63 additional species are approaching threatened status. Another 199 species of Shark are considered "data deficient". It is reported that many of the estimated 73 million Sharks killed each year, are killed only by the Shark Finning Industry.
42. There are several countries in the world, such as Canada, British Columbia, Oman, South Africa, New South Wales (Australia), United Arab Emirates, Spain, Namibia, Gambia, Nicaragua, etc. which ban either in total or partially, the finning of Sharks.
43. It appears that in the United States, a Bill known as "Justice Attributed to Wounded Sharks (JAWS) Act" was introduced by Congressman Blake Farenthold, seeking the prohibition of the grant of foreign assistance to countries that do not prohibit Shark finning in the territorial waters of the country or the sale, possession, importation or consumption of Shark fins obtained as a result of Shark finning.
44. Therefore, it is not as though some unknown entity participated in a meeting and presented unverifiable data resulting in the impugned notification. Moreover, the object of the notification, as seen from the Minutes of the Meeting, was to protect the marine eco system. The most fundamental principle of law to be kept in mind both by the Executive as well as by the Courts, while dealing with a matter relating to Ecology and Environment is that if the benefits of a project that may have an adverse impact upon the environment are not clearly decipherable, then the Courts should follow the Precautionary Principle. In this case, the Committee had taken note of the fundamental fact that there had been a depletion of Sharks in the marine environment, especially in the Indian waters. Therefore, the mere fact that the quantity of depletion is not mentioned is no ground to hold that the decision was arbitrary. The decision to prohibit the export of Shark fins, in the background of facts discussed at the meeting, should actually be traced to the Precautionary Principle.
45. Even according to the writ petitioner, the respondents issued a total ban by a notification dated 11.7.2001, but modified the same by the next notification dated 05.12.2001. While there was total prohibition of export of all types of Shark and Ray under the notification dated 11.7.2001, the export of only 9 species of Shark and Ray was prohibited under the notification dated 05.12.2001. After a gap of about 13 years and 2 months, the Government had re-introduced a total prohibition once again. Therefore, no mala fides can be attributed in the exercise of power conferred by the statute.
46. As rightly admitted by the learned counsel for the petitioner, the population of different species of Shark, are not static, but floating, both in the literal sense as well as figuratively. They are also on the move constantly, without staying at a particular place. Therefore, facts and figures culled out at a particular point of
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time at a particular place, will not remain as such. Hence the absence of accurate data will not make the decision arbitrary. 47. It is common knowledge that at times and in cycles, even normal fishing activities are prohibited, so as to enable the aqua life to get nurtured. Therefore, the re-introduction of the total prohibition, after a gap of 13 years cannot be taken exception to. In any case, the notification is amenable to amendment at any point of time. Therefore, the third ground of attack is also liable to be rejected. Ground No.4 48. The fourth ground of attack to the impugned notification is that when the hunting of Shark for domestic consumption is not prohibited, the total prohibition of export of Shark fins, is irrational, arbitrary and unjustified. 49. But, we do not think that there is any merit in this contention. It appears that a very negligible percentage of population captures Shark for domestic consumption. The fact that there is no prohibition for the capture of Sharks for domestic consumption, is no ground to hold the ban on export of Shark fins as arbitrary. If there is no prohibition for export, the total quantity of Shark captured, may increase manifold. Therefore, the distinction that the respondents have made between domestic consumption and export, is actually a reasonable classification, which does not offend Article 14. Hence, the fourth ground of attack should also fail. 50. One more incidental ground raised by the petitioner is that the impugned notification was issued all of a sudden, without even providing a breathing time for enabling the exporters to make transitional arrangements. 51. But, it is seen from paragraph 1.5 of Chapter 1-A of the Foreign Trade Policy that there is no compulsion to provide the facility of transitional arrangements. However, paragraph 1.5 states that whenever an export or import, that was permitted freely under the Foreign Trade Policy, is subsequently subjected to any restriction or regulation, the export or import will be permitted if the shipment is made within the original validity with respect to available balance and time period of an irrevocable commercial letter of credit, established before the date of imposition of such restriction. But, the importer or exporter should register the documents with the concerned registering authority. 52. In this case, an association of exporters has come up with the above writ petition. They have not given any details as to who are their members, who had export orders, what was the duration of time within which they were expected to fulfil the obligations under those orders, etc. In the written submissions circulated after the hearing was over, it is claimed that about 25 tonnes of shark fin worth Rs.12 crores was waiting to be exported. But these details were not furnished in the writ petition. Therefore, we do not have any details as to how the export orders that were pending execution on the date of issue of the impugned notification were affected. Hence, this ancillary contention cannot be accepted. 53. Inviting our attention to a stay order granted by the Kerala High Court to the very same impugned notification, it was contended by Mr.S.Murugappan, learned counsel for the petitioner that when someone in the neighbouring State has obtained the benefit of a stay of the notification, it has to be treated as though the notification is not in force. 54. But, unfortunately for the petitioner, the Kerala High Court has not decided finally, the validity of the notification. The writ petition there is still pending. Here, the pleadings are complete and we have heard arguments on the main relief relating to the validity of the notification. Therefore, the stay granted by another High Court is of no relevance to test the validity of the notification. 55. In view of the above, we find no merits in the writ petition. Hence, it is dismissed. No costs. Consequently, connected M.P. is also dismissed.