A CRITIQUE OF FISHERMAN CARE V. GOVT OF TAMIL NADU
The word “Fishery” has been defined in the compact edition of the Oxford English Dictionary as the business, occupation, or industry of catching fish, or of taking other products of the sea or rivers from the water. Under the Constitution of India, "Fishing and fisheries beyond territorial waters" has been listed as a Union subject, whereas "Fisheries" is mentioned as a state subject. When read conjointly, it can be concluded that control and regulation of fisheries within territorial waters lies within the exclusive domain of the state whereas fisheries beyond the territorial waters is exclusively under the Union.
The traditional kind of fishing was subsequently mechanised, resulting in the usage of different kinds of fishing gear. While such advancements enhance the production of marine fish, they also cause serious socio-economic problems by severely restricting fish breeding and depriving poor fishermen of the existing shoals. An example of one of such is the use of Purse Seine nets. A purse seine is made of a long wall of netting framed with a lead line of equal or longer length than the float line. It is an efficient form of fishing as it ensures no contact with the seabed and is largely used in the western coast of India.
The Governments and the Judiciary have dwindled in their stance with respect to the use of Purse Seine nets. The present article seeks to examine the recent lift of the ban by the Supreme Court on the use of Purse Seine nets in light of the case of Fisherman Care v. Govt of Tamil Nadu (hereinafter “Fisherman case”).
A brief overview of the facts and the contentions raised
In 2000, the Fisheries Department of the Government of Tamil Nadu banned the use of Purse Seine Fishing nets within its territorial waters (12 Nautical Miles). The order was challenged before the Madras High Court in 2019 but the challenge was dismissed. Thereafter, several Writ Petitions and Special Leave Petitions were filed by the Fishermen Care Association before the Madras High Court relying upon the report of an expert committee. However, the petitions were dismissed again with the court siding with the government and discrediting the matter by holding that the ban was an informed one and the petitions filed to lift the ban were only by a class of affluent fishermen. When the matter reached the Supreme Court, the issue was to adjudge whether the ban imposed by the State Government within its Territorial Waters is justified.
The petitioners prayed to strike down Rule 17(7) of the Tamil Nadu Marine Fishing Regulation Rules, 2020 which prohibited any owner or master of a fishing vessel from carrying on fishing by pair trawling or with Purse Seine Fishing nets or craft. They contended that the Government of Tamil Nadu has no jurisdiction to impose restrictions on fishing beyond Territorial Waters as the subject matter lies under the Union List and that only the Union Government has jurisdiction on the same and it has placed no restrictions on Purse Seine Fishing. Therefore, the restriction imposed by the Tamil Nadu State Government is illegal and ultra vires. Additionally, they also contended on humanitarian grounds that many families depended upon the fishing activities of the petitioner and will incur a huge loss as a result of the ban.
On the other hand, the respondents called “Purse Seine Fishing” a pernicious method of fishing as it is a non-selective technology that captures all kinds of fish including the protected species hence, being detrimental to ecology and contended that the method was used only by the big fishing companies as it is costly and beyond the reach of ordinary fishermen thus, depriving them of their livelihood solely because of the lack of affordability. The Respondents submitted that even if the petitioners fish beyond the territorial limits of the state, they would still be catching a large quantity of fish moving towards the coast, robbing the traditional fishermen of the fish belonging to them. Lastly, monitoring the fishing done around the territorial waters is an intractable task and cannot be expected of the State Government.
Decision of the Court
The court was divided on the issue as some of the coastal areas such as Gujarat, Kerala, Andhra Pradesh, Orissa, Karnataka, Goa and West Bengal have allowed Purse Seine Fishing while other states such as Tamil Nadu and Maharashtra have imposed this ban. The court noted that Purse Seine Fishing has multiple aspects that need to be looked into, such as conflict of economic interests between fishermen, biological diversity etc. and the court does not have a full report to be able to conclusively decide on the same.
Hence, in order to protect the interests of all the parties involved, the court passed a restricted interim order allowing Purse Seine Fishing Beyond the Territorial Waters but within the Exclusive Economic Zone subject to certain conditions such as, only registered fishing vessel shall be given permission, permission shall be given to only the boats installed with an approved vessel tracking system, vessels will be allowed to operate only twice a week etc.
Examining the decision of the court in light of the Constitution and Judicial Precedents
The decision of the Supreme Court can be analysed from two positions- Constitutional and Judicial. Article 46 of the Constitution of India seeks to promote the educational and economic interest of the scheduled castes, scheduled Tribes and other weaker sections. It implicitly protects the interests of poor fishermen-population. Besides, Article 19(6) of the Constitution of India allows reasonable restrictions on the freedom of profession, occupation, trade or business in the interest of general public or for state monopoly. Therefore, a challenge to the restriction on the basis of Article 19(1)(g) of the Constitution of India shall also not stand as there is a prohibition only on the use of certain kinds of nets and not from fishing altogether within the territorial waters. Right to trade or occupation cannot be exercised when it is manifestly dangerous to the economic interests of others.
Additionally, the Hon’ble Supreme Court has previously given decisions acknowledging the adverse effects of Purse seine nets. In State of Kerala v. Joseph Anthony, the court was dealing with the issue of banning purse seine nets and took note of the statement by Central Marine Fisheries Research Institute that purse seine nets encircle incoming shoals and prevent them from moving towards the shore, if allowed further, it will lead to little to no movement of the shoals towards the coast. The institute further said that the mechanised nets cause damage to the existing stock of fish by killing the juvenile fish and fish eggs and by preventing fish breeding.
The monopolising of pelagic fish stock and indiscriminate fishing in the territorial waters shall result in denial to vast masses of the poor fishermen their right to live in two different ways. Firstly, the catch that should come to their share shall be captured by the affluent giants and only negligible quantities will be left for them. Secondly, the meshed nets indiscriminately kill the juvenile fish along with the adult fish and their eggs as well leading to eventual depletion and extinction of fish stock.
The fishermen judgement becomes pertinent as, if the ban is permanently lifted, it will severely prejudice the poor fishermen, thereby disparaging the policy of the government and the aim of Indian planning to protect the interests of the economically weaker sections of the society. The Constitution obligates the State to ensure an adequate means of livelihood to its citizens and to see that the health and strength of workers, men and women, are not abused. Hence, State action defending the weaker sections from social injustice and all forms of exploitation and raising the standard of living of the people, necessarily imply that economic activities, attired as trade or business or commerce, can be derecognized as trade or business. Additionally, it would also lead to irreversible damage to marine life resulting in the breach of Article 48A of the Indian Constitution, which provides the preservation of the environment as one of the Directive Principles of State Policy.
Conclusion
Fishing in the territorial waters and beyond is a major source of livelihood for the fishermen in the coastal areas. Considering the importance of fishing, there have been many developments to further fructify the activity. One such advancement is the use of Purse seine nets. Despite having been banned in 1994 for the right reasons such as protection of the weaker sections of fishermen and preservation of ecology, the Supreme Court has recently lifted the ban for fishing beyond territorial waters. The decision would most likely affect the fishermen who are unable to afford Purse seine nets and will cause irreparable damage to the existing fish.
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