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TMI Blog2015 (9) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onment 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeks 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 17th March 2005. The Department Related Parliamentary Standing Committee on Science and Technology, Environment and Forests, in its 154th Report 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, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veMs.GouriMaulehki 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mibia, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ark 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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