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TMI Blog2019 (1) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... - Held that:- 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. Policy preferences - Judicial interference - Held that:- The Court should constantly remind itself that “the problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. Discrimination - Marine Fins consistently contends that Ext. P3 smacks of arbitrariness. According to it, the ban does not apply to domestic consumption - Held that:- In Parisons Agrotech (P) Ltd. v. Union of India [2015 (8) TMI 997 - SUPREME COURT], the Supreme Court has held that once the court finds that there is sufficient material for the Government to take a particular policy decision; even by bringing Article 14 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no domestic use, it has a high demand in North-East countries, especially China. 4. In 2001 Union of India issued the Gazette Notification No. S.O. 665(E), dated 11-7-2001; it banned catching of all species of Shark in India, treating it as an endangered animal under the Wild Life (Protection) Act, 1972. 5. Later, because of widespread protests, especially from the fishermen communities, the Government limited the ban to nine out of ninety-nine species of Sharks available within territorial waters of India. It was through Notification S.O. 1197(E), dated 6-12-2001. 6. Later, in 2015, the Government exercised its power under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, read with para-1.3 of Foreign Trade Policy, 2009-2014. The Director General of Foreign Trade issued a Notification No. 110 (RE-2013)/2009-2014, dated 6-2-2015. The notification inserts a new entry at Sl. No. 31A, in Chapter III of Schedule 2 of ITC (HS) Classification of Export and Import Items (Ext. P3). With this legislative change, the Government has banned export of all shark fins, of whatever species. 7. Because of the ban, Marine Fins cannot buy shark fins from the fishermen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposefully avoided consulting the experts, such as Joint Director of Wildlife, of the Ministry of Environment and Forest and Fisheries Development Commissioner. Instead, it included a representative of People for Animals in Ext. R2(e) meeting. The intention was mala fide, and the decision to ban shark finning was pre-determined. 14. Sri Hakim strenuously contends that Ext. P3 notification was issued solely based on Ext. P5 request from Smt. Maneka Sanjay Gandhi, an incumbent Minister. And it was without considering the facts. 15. Summing up his submissions, the Learned Counsel has urged this Court to set aside the impugned judgment. Consequently, he also wants the Court to declare Ext. P3 ultra vires of Section 5 of the Act, with a further direction to the authorities to permit shark finning barring the nine banned species. Respondents : 16. The Learned Assistant Solicitor General has submitted that the Central Government has ample statutory and constitutional powers to bring about Ext. P3 notification. He contends that shark is covered at Sl. Nos. 1 2, of Part IIA, of the Wild Life (Protection) Act. Therefore, even before Ext. P3, a policy existed covering shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, as per Para 1.3 of the Foreign Trade Policy, 2009, the Central Government reserves the right, in public interest, to make any amendments to this policy. 23. First, in 2001, the Government, through Notification No. S.O. 665(E), dated 11-7-2001, banned catching of all species of shark in India. But in 2015, the Government, through Director General of Foreign Trade, issued Ext. P3, dated 6-2-2015. The notification bans the export of all shark fins, of whatever species. 24. Marine Fins assailed Ext. P3 notification as ultra vires, besides affecting its right to trade. On 9th March 2018, a Learned Single Judge dismissed the writ petition. So this writ appeal. 25. If we examine the pleadings, Marine Fins, plainly admits that the practice of Shark Finning , though not prevalent in India, involves catching of shark for extracting their fins alone, and dumping the carcass back into the sea. Shark Finning is a condemnable activity prevalent in some countries. Marine Fins also fairly admits that the Shark Finning has caused a major ecological issue, subjecting animals to cruelty. So many countries have banned it. 26. In other words, by banning shark finning, some cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s evident from Clause 1 of Article XIV, covering species not included in Appendix I, II or III. 32. Indeed, obligations of the State under an International Convention can be enforced subject to the provisions of the Municipal law. In terms of Art. 253 of the Constitution, we reckon, International Conventions cannot supplant domestic legislation, unlike in the Constitution of the United States of America. Conflict inevitable, the Municipal law prevails. Then, if a Municipal law contains more vigorous provisions than an International Convention or prescribes a higher standard, that cannot be invalidated, in the backdrop of a less stringent International Convention. 33. In this Context, V. Ramasubramanian J, speaking for a Division Bench of Madras High Court, in Marine Products Exporters Association v. Union of India - (2015) 7 MU 562 = 2016 (331) E.L.T. 193 (Mad.) has examined, as is his wont, the statutory scheme threadbare. And we draw from that labour of judicial intellect in no small portion. 34. Section 9 of the Wild Life (Protection) Act, 1972, bans the hunting of any wild animal specified in Schedules I, II, III and IV, except as provided under Sections 11 and 12. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een included in the Schedules to the Act are barred from export. It also mentions that the export of other species listed in CITES are subject to the provisions of the CITES. Evidently, Entry 31A in the Table under Chapter 3 indicates that fins of all species of shark are unavailable for export. 39. Marine Fins has laboured to impress on us that the decision to impose a total ban on the export of sharks was taken in a meeting convened by the Commerce Secretary. It contends that no officer from the Ministry of Environment and Forests had a say in it. The further contention is that an extraneous authority, a non-governmental organisation, has participated in the meeting, at the behest of an incumbent Minister known for her pro-animal movement. And that NGO and the Minister have influenced the Commerce Ministry. Marine Fins finally alleges that though the authorities have supplied justifications belatedly in their counter-affidavits, the minutes of the meeting and other proceedings do not reveal or supply any justification to governmental action. 40. From the record, including the Minutes of the Meeting, we gather these persons attended the meeting: (i) The Commerce Secretary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45. The impugned Ext. P3 notification is a piece of subordinate legislation. A Division Bench of this Court has held in UOI v. Maliakkal Industrial Enterprises - ILR 2014 (3) Ker. 387 = 2015 (330) E.L.T. 924 (Ker.) that notification under Section 5 of the Foreign Trade Act is a piece of subordinate legislation. It has also held that the notification is susceptible to judicial review if a trader complains about violation of his fundamental right to carry on his business. 46. It is a precedentially settled proposition that a piece subordinate legislation does not carry the same immunity as enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned, holds the Supreme Court in Indian Express Newspapers (Bombay) Private Ltd. v. Union of India - AIR 1986 SC 515 on all the grounds as are available against the plenary legislation : (i) that it ignores the statute under which it is made; (ii) that it is contrary to some other statute because subordinate legislation must yield to plenary legislation, (iii) that it is unreasonable in the sense that it is manifestly arbitrary. The embargo against arbitrariness is embodied in Article 14 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. True, the Supreme Court in Union of India v. Dinesh Engineering Corporation - (2001) 8 SCC 491 observes : Policy Matters, nevertheless, are not beyond the bounds of the judicial scrutiny; there is no judicial abdication in policy matters. The courts can still scrutinise whether the Government has formulated the policy remembering all the facts and whether the policy is beyond the pale of discrimination or unreasonableness. Any decision, be it a simple administrative decision or a policy decision, if taken without considering the facts, can only be termed an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of Article 14 of the Constitution. 52. 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. According to the Supreme Court in Federation of Railway Officers Association v. Union of India - (2003) 4 SCC 289 so long as the policy or action follows the Constitution and the laws, and so long as it is not tainted by arbitrariness, irrationality or abuse of the power, the Court will not interfere in such matters. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Gopinath Dash. Discrimination : 57. Marine Fins consistently contends that Ext. P3 smacks of arbitrariness. According to it, the ban does not apply to domestic consumption. Instead, it only applies to export. In one case, the Government imposed, what it termed, selective restriction on importing crude palm oil to the ports in Kerala. So the petitioner claimed discrimination. The question is whether there is any nexus between the decision and the objective to be achieved. 58. In Parisons Agrotech (P) Ltd. v. Union of India - (2015) 9 SCC 657 = 2015 (323) E.L.T. 3 (S.C.), the Supreme Court has held that once the court finds that there is sufficient material for the Government to take a particular policy decision; even by bringing Article 14 of the Constitution into play, courts cannot judicially review and determine the correctness of the policy decision. Backed by cogent material, if the authorities demonstrate that the decision is not arbitrary or irrational, but is taken in public interest, the Court must respect the Executive s decision. A question of fact - Judicial approach : 59. Sri Hakim has taken us through various expert reports, standard commen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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