Restriction On Fishing Under Rule 17(7) Of TN Marine Fishing Regulation Rules Not Illegal Or Discriminatory: Madras High Court

The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu observed that the restrictions imposed on the use of fishing gear, especially the ban on fishing by pair trawling or fishing with purse-seine net does not suffer from the vice of constitutional illegality.

Rule 17(7) reads as follows:

"No owner or master of any fishing vessel shall carry on fishing by pair trawling or fishing with purse-seine net using any fishing vessel or craft whether country craft or mechanized boat irrespective of their size and power of the engine in the entire coastal area of the State."

The petitioner approached the High Court against the said rule by contending that the restriction imposed will have a detrimental effect on 15 lakhs of fishermen in Tamil Nadu. Advocate J. Sushil Kumar appearing for the petitioner submitted that the neighbouring states including Kerala does not mandate similar prohibitions on fishing in the coastal areas as imposed by the State of Tamil Nadu. In view of the same and in the absence of similar legislations in other states, the petitioner argued that the fishermen in Tamil Nadu were discriminated against via Rule 17(7).

Rule 17(7) was inserted by Government Order 36 dated 17^th February, 2020. However, while dismissing the petition, the court observed that the prohibition was already in force by virtue of G.O. Ms. No.40 dated 25^th March, 2000. The said G.O issued by the Animal Husbandry and Fishing (FS.V) Department, in accordance with Section 9 of the Tamil Nadu Marine Fishing Regulation Act, 1983, prohibited fishing, by pair trawling and using of Purse-Seine nets for fishing in order to protect various fish species. The prohibition on fishing gear permitted was not challenged for over two decades, the court noted.

Moving on, the court also pointed out that that the Rule 17(7) is in consonance with the object sought to be achieved by Tamil Nadu Marine Fishing Regulation Act, 1983, i.e., regulation, restriction and prohibition of fishing-by-fishing vessels [and for the protection and conservation of fishery resources in the sea along the whole or part of the coastline of the State and for matters connected therewith].

Opposing the plea to strike down Rule 17(7), the Government Pleader argued that Rule 17(7) is not unconstitutional, and submitted that the challenge to a similar provision in the State of Kerala did not sustain as per the judgment of Supreme Court in State Of Kerala v. Joseph Antony, 1994 (1) SCC 301. In the said judgment, the dispute was essentially between the fishermen in the State of Kerala using traditional fishing crafts such as catamarans, country crafts and canoes which use manually operated traditional nets and those who use mechanised crafts which mechanically operate sophisticated nets like purse seine, ring seine, pelagic trawl and mid-water trawl gears for fishing in the territorial waters of the State. The Kerala Government Notification barring use of gears like purse seine, ring seine, pelagic trawl and mid-water trawls along the coastline was upheld as a reasonable restriction on the fundamental right guaranteed under Article 19(1)(g. The apex court also extended the notification's application through out the entire territorial waters and not just 10 kms from the base coastal line.

According to him, the prohibition contained in Rule 17(7) was in operation since the year 2000. The only difference is that it was previously a government order and now a Rule. Referring to S. Harikrishnan v The Secretary To Government (2018), the counsel for the government submitted that the new rule has also been carved out of the submissions made by the petitioners therein, i.e, to protect dolphins, tortoises and other fish species potentially endangered by the use of such fishing nets while also safeguarding the interests of small scale fishermen.

The court, while agreeing with the arguments put forth by the Government Pleader and the precedents relied upon, also remarked that the petitioner's contention that there are no similar restrictions in the State of Kerala is not factually correct by referring to State Of Kerala v. Joseph Antony. In S. Harikrishnan, the Madras High Court issued directions to effectively implement the Government Order dated March, 2000. The court, therefore, concluded that Rule 17 (7) does not offend any constitutional provisions or cause any discrimination. While concluding, the court also underscored that every state has the discretion to decide its own policy for fishing, independent from other states.

Since there was no illegality or unconstitutionality in the impugned Rule, the writ petition was accordingly dismissed today.

Case Title: Poompuhar Traditional Fishermen v. The State Of Tamil Nadu & Others.

Case No: WP/430/2022 (Gen. Misc.)

Citation: 2022 LiveLaw (Mad) 22