2015 (9) TMI 1018 - HC - Customs

Challenge to Notification bearing No.110(RE-2013)/2009-2014 dated 06.02.2015 - prohibition on the export of Shark fins of all species of Shark - Held that - 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 Domestic market and the foreign market does not 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. 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. 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. - 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. 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. 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. - no merits in the writ petition - Decided against appellants.

Summary

Issues Involved:
1. Challenge to the Notification banning the export of Shark fins.
2. Compliance with International Conventions (CITES).
3. Conflict with the Wild Life Protection Act.
4. Validity of the decision-making process.
5. Rationality and justification of the ban on export while allowing domestic consumption.

Issue-wise Detailed Analysis:

1. Challenge to the Notification banning the export of Shark fins:
The petitioner, an association of exporters, challenged 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. The Notification was issued under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, read with para 1.3 of the Foreign Trade Policy 2009-2014.

2. Compliance with International Conventions (CITES):
The petitioner argued that under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), only 18 out of 480 species of Shark are protected, making a total ban contrary to the Convention. However, the court noted that Article XIV of CITES allows member countries to adopt stricter domestic measures. Furthermore, the court emphasized that international conventions ratified by India are enforceable only to the extent that they do not conflict with municipal law. Therefore, the court rejected this ground, stating that the municipal law prescribing a higher standard prevails over the Convention.

3. Conflict with the Wild Life Protection Act:
The petitioner contended that under the Wild Life Protection Act, only 6 species of Shark and 3 species of Ray are prohibited from being hunted, making the Notification contrary to law. The court acknowledged that the Wild Life Protection Act prohibits hunting of specific species but clarified that the parameters for including a species in the Wild Life Protection Act differ from those in the Foreign Trade Policy. The court stated that there is no conflict between the two laws if an item not prohibited under the Wild Life Protection Act is prohibited for export under the Foreign Trade Policy. Hence, this ground was also rejected.

4. Validity of the decision-making process:
The petitioner argued that the decision to impose a total prohibition was taken in a meeting without proper representation from the Ministry of Environment and Forests and based on unverified data. The court noted that various stakeholders, including representatives from the Department of Commerce, Department of Animal Husbandry, Directorate General of Foreign Trade, Marine Product Export Development Authority, and an NGO, participated in the meeting. The court found that relevant factors were considered, and the decision was not based on irrelevant material. The court also highlighted the Precautionary Principle, stating that in matters of ecology and environment, if the benefits of a project with potential adverse impact are not clearly decipherable, the precautionary approach should be followed. Therefore, the court rejected this ground as well.

5. Rationality and justification of the ban on export while allowing domestic consumption:
The petitioner argued that the ban on export while allowing domestic consumption is irrational, arbitrary, and unjustified. The court dismissed this contention, stating that the negligible percentage of the population capturing Shark for domestic consumption does not justify lifting the export ban. The court reasoned that allowing export could lead to a manifold increase in Shark capture, thus justifying the distinction between domestic consumption and export as a reasonable classification.

Conclusion:
The court dismissed the writ petition, finding no merit in the grounds of challenge. The court upheld the validity of the Notification banning the export of Shark fins, emphasizing the importance of ecological preservation and the precautionary approach in environmental matters. Consequently, the connected miscellaneous petition was also dismissed.