2016 (7) TMI 778 - HC - Customs

Validity of policy decision - Imposing prohibition on export of Shark fins of all species of Shark. - Petition challenge the notification on the ground that the notification issued is without any application of mind or without any basis. They also challenge it on the ground that the notification is issued by the Director General of Foreign Trade, who is not the competent authority to issue such notification. Held that - While exercising the power of judicial review under Article 226 of the Constitution questioning policy decision, this Court cannot convert its power as that of an Appellate Authority to re-appraise the assessment of finding of facts leading to the above decisions. This Court cannot also review the decisions because of the possibility to have a different determination. The Court must concede the dominant authority of the executive over the policy making. Therefore, the legality of the policy rests on the factors relating to the decision making process. It is to be noted that the Central Government deliberated the issue and the relevant factors have been taken into account for the decision. The rationality of the decision cannot be adjudged on a proof of validity as a pre-requisite. The decision makers need not establish or demonstrate that the decision would secure its objectives. The ultimate decision by passage of time may prove the decision was right or wrong. The freedom of the decision makers to have the choice must be left to their discretion. It is also possible for the executive authority to have policy experiment provided such exercise is made bona fide accentuated to promote the State interest. The policy makers might have thought that consequent upon ban, the necessity of capturing Sharks would dwindle and they may achieve its objectives to protect marine environment. These objectives cannot be termed as irrational. - Decided against the petition.

Summary

Issues:
Challenge to notification prohibiting export of Shark fins under Foreign Trade Act, 1982 - Competency of Director General of Foreign Trade to issue notification - Legality of the ban on Shark fins export.

Analysis:
1. Competency of Director General of Foreign Trade: The petitioners argued that the notification prohibiting the export of Shark fins was issued by the Director General of Foreign Trade, who they claimed was not the competent authority to issue such a notification. However, the Court clarified that the notification was issued by the Central Government under Section 5 of the Foreign Trade Act, which empowers the Central Government to formulate Foreign Trade Policy. The key issue here was whether the policy framed by the Central Government suffered from any infirmity in the decision-making process.

2. Legality of the Ban: The petitioners contended that the ban on Shark fins export was irrational since there was no ban on the capture or domestic consumption of Sharks. They argued that the ban lacked a basis and was imposed without proper application of mind. The Central Government, on the other hand, justified the ban by highlighting the gruesome practice of Shark finning by fishermen, leading to a decline in Shark population and environmental degradation. The Court noted that the Central Government's decision was influenced by the need to protect the marine ecosystem and prevent the depletion of Sharks in Indian waters.

3. Judicial Precedents and Policy Formulation: The Court referred to various judgments emphasizing the principle that judicial review of policy decisions should respect the executive's authority in formulating policies. It highlighted that the Court should not interfere with policy decisions made in the public interest based on expert knowledge. The Court also noted that the executive had taken into account relevant factors in formulating the ban on Shark fins export to protect the marine environment, and it was not within the Court's purview to question the wisdom of such policy decisions.

4. Decision and Dismissal of Writ Petitions: After considering the arguments and precedents, the Court dismissed the writ petitions challenging the notification prohibiting Shark fins export. The Court emphasized that it could not act as an appellate authority to re-evaluate the decision-making process leading to the ban. It upheld the executive's discretion in policy-making and concluded that the ban was a legitimate exercise of government authority to protect the marine ecosystem. The Court also allowed the respondents to consider any requests by petitioners for fulfilling pending export obligations until a specified period.

In conclusion, the Court upheld the legality of the ban on Shark fins export imposed by the Central Government under the Foreign Trade Act, emphasizing the need to protect the marine environment and Shark population. The judgment highlighted the limited scope of judicial review in policy decisions and the deference owed to the executive in formulating such policies.