By TIOL News Service

CHENNAI, SEPT 22, 2015: THE petitioner is an Association of Exporters of Dried Marine Products. The petitioner has come up with a Writ petition challenging a Notification No.110(RE-2013)/2009-2014 dated 06.02.2015, issued by the Director General of Foreign Trade. The Notification has been issued 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. The Petitioner challenged the Notification on the following grounds:

(i) that under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, known in brief as CITES, only 18 species out of 480 species of Shark are protected and hence, a total ban on export is contrary to the Convention;

(ii) that even under Schedule I to the Wild Life Protection Act, only 6 species of Shark and 3 species of Ray are prohibited of being hunted and hence, the Notification issued under the Foreign Trade Policy is contrary to law;

(iii) that the decision to impose a total prohibition was taken in a meeting convened by the Secretary to Government in the Ministry of Commerce and Industry, wherein a proposal was mooted by one member whose credentials are not known and especially when the proposal made by the member was without any basis or factual details justifying the ban; and

(iv) that when the hunting of Shark for domestic consumption is not prohibited, the total prohibition of export of Shark fins, is irrational, arbitrary and unjustified.

In the counter filed, the DGFT has justified the rationale behind the ban imposed.

After hearing the parties, the High Court dismissed the Writ Petition as none of the above four grounds are valid. The High Court held inter alia:

Ground No.1

The Convention on International Trade in Endangered Species of Wild Fauna and Flora by itself does not prohibit the adoption of more stricter standards by any Member country, depending upon the local conditions and the Municipal laws. Apart from the fact that the Convention itself gives a leverage to the Member countries, it is settled law in this country that an International Convention ratified by India is enforceable, only to the extent that it is not in conflict with the Municipal law of the country. In other words, the obligations of the State under an International Convention can be enforced subject only to the provisions of the Municipal law, even if the Municipal law contains lesser standards than those prescribed in the International Convention. If this is so, even with regard to a Municipal law which contains a lesser standard, it is needless to point out that a Municipal law which prescribes a higher standard, will prevail over the prescription contained in the Convention. Hence, the first ground of attack is rejected.

Ground No.2

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.

Ground No.3

When the Joint Secretary in the Ministry of Agriculture, belonging to the Department of Animal Husbandry, Dairying and Fisheries had participated in the meeting, it is not known how the non participation of anyone from the Ministry of Environment and Forests would have affected the outcome of the meeting. The ultimate decision taken in the meeting, has not gone against the interests of the Ministry of Environment and Forests. Aquaculture is also an area that comes within the Ministry of Agriculture, especially in the Department of Animal Husbandry, Dairying and Fisheries. Therefore, the non participation of anyone from the Ministry of Environment and Forests, is no ground to hold that the decisions taken at the meeting was vitiated, especially when the decision had not gone against the interests of the Ministry of Environment and Forests.

Ground No.4

The fourth ground of attack to the impugned notification is that when the hunting of Shark for domestic consumption is not prohibited, the total prohibition of export of Shark fins, is irrational, arbitrary and unjustified.

But, there is no merit in this contention. It appears that a very negligible percentage of population captures Shark for domestic consumption. The fact that there is no prohibition for the capture of Sharks for domestic consumption, is no ground to hold the ban on export of Shark 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.

(See 2015-TIOL-2205-HC-MAD-CUS)