By TIOL News Service

ERNAKULAM, JUNE 04, 2018: THE petitioner exports mainly dried shark fins to North-East countries, especially China.

In 2001, Union of India issued the Gazette Notification dated 11/7/2001; it banned catching of all species of Shark in India, treating it as an endangered animal under the Wildlife (Protection) Act, 1972.

Later, by notification dated 6/12/2001, the Government limited the ban to nine out of ninety nine species of Sharks available within territorial waters of India.

In 2015, the Government exercised its power under section 5 of the FTDR Act 1992, read with the FTP, 2009-2014 and issued a notification dt.06.02.2015(Ext.P3) by which the Government banned export of all shark fins, of whatever species.

The appellant challenged the notifications as being illegal and unconstitutional and as ultravires the FTDR Act, 1992.

On 9th March 2018, a Single Judge Bench dismissed the writ petition.

So this writ appeal.

Appreciating the submissions made by the appellant's lawyer and remarking that they are akin to that made by a marine-biologist rather than an uninitiated lawyer into an arcane subject, the High Court further observed –

+ If a statute confers a benefit of exemption on a person, the Government may, in public interest, curtail or abridge the extent of exemption. But Government, when questioned, must establish the grounds of public interest. We reckon the Government did discharge its burden here.

+ We must acknowledge that the notification (Ext.P3) emerges from expert deliberations. As is often held, the courts will not ordinarily interfere in the Government's policy matters, since these policy matters are taken based on expert knowledge. Besides, courts are usually not equipped to question the correctness of a policy decision.

+ In other words, on matters affecting policy and requiring technical expertise, Court would leave the matter for the decision of those who are qualified to address the issues.

+ We cannot say the Government is insensitive to the demands of those who rely on fishing. Nor has it adopted an alarmist approach. First, the Government imposed a total ban by a notification, dated 11.7.2001; later it modified it: the revised notification, dated 05.12.2001. The export of only nine species of shark and ray was banned. After a gap of over 13 years, the Government re-introduced a total prohibition, once again.

+ The reasons for the ban on reintroduction are apparent. In high seas, it is impossible for the fisherman to identify one species of shark or ray from another.

+ True that the notification does not prohibit hunting of shark for domestic consumption, though it bans export of shark fins. Shark meat, we must acknowledge, is no staple food for Indians. Even among the fish consumers, those that prefer shark meat are minuscule. So, to cater to the needs of such negligible consumers, there cannot be the wholesale killing of sharks. The culprit is finning, and the result is the species thinning, to the extent of disappearing - almost.

Conclusion:

++ No legal infirmity in the impugned judgment.The Writ Appeal fails.

++ To adjust equities, the appellant can clear the stock it had accumulated until 31.12.2017. And the respondent authorities can ensure that the appellant will not export more than what had been gathered by then.

(See 2018-TIOL-1052-HC-KERALA-CUS)