Cus - Court must concede dominant authority of executive over policy making: HC
By TIOL News Service
ERNAKULAM, APRIL 10, 2017: THE Writ Petitions challenge a notification dated 06/02/2015 issued by the Ministry of Commerce and Industry prohibiting export of Shark fins of all species of Sharkon the ground that the notification issued is without any application of mind or without any basis. They also challenge it on the ground that the notification is issued by the Director General of Foreign Trade who is not the competent authority to issue such notification.
The petitioner further argued that since there is no ban on capture of Sharks and there is no ban on consumption of Sharks at domestic level, prohibition of Shark finning alone is without any basis.
The ASG submitted that Shark fins, both in terms of quantity and value are very small and there is no much domestic consumption of Sharks; that fishermen are involved in gruesome practice of finning of Sharks resulting in decline in number of Sharks and the decision was taken to prevent degradation of marine environment. Reliance is also placed on a Division Bench judgment in W.P.(C).No.12311/2015 and M.P.No.1/2015 dated 16/09/2015 of the Madras High Court, dismissing a similar challenge made to the notification.
The apex court decision in Parisons Agrotech (P) Ltd. = 2015-TIOL-189-SC-CUS is also cited while submitting that there is no fundamental right to export any commodities by a citizen and, therefore, the Court cannot interfere with the policy of the Central Government.
The High Court observed that the notification that is challenged has been issued by the Central government in exercise of powers conferred by Section 5 of the FTDR Act and not by the Director General of Foreign Trade as contended by the petitioner and, therefore, what remains to be decided is whether the policy framed by the Central Government suffers from any infirmity with the decision making process.
The High Court added -
++ It is well settled principle of law by umpteen decisions, that the Court must respect the executive wisdom to formulate a policy and the Court must understand the latitude of the executive wisdom to formulate such a policy.
Citing the apex court decisions in Liberty Oil Mill's case [(1984) 3 SCC 465], Census Commissioner's case [(2015) 2 SCC 796] and Parisons Agrotech (P) Ltd. = 2015-TIOL-189-SC-CUS, the High Court observed -
| In the case in hand, the Central Government appears to have been moved by the concern, to stop depletion of the Sharks in the marine environment, especially, in Indian waters to protect the marine eco-system. The Shark appears to be considered as an apex of the marine food chain. Certainly, this is a relevant factor for formulating any policy by the Central Government…. |
After extracting the minutes of the meeting held by the Commerce Secretary with various stakeholders in the matter of banning of trading in shark fins(both exports and imports), the High Court concluded -
18. While exercising the power of judicial review under Article 226 of the Constitution questioning policy decision, this Court cannot convert its power as that of an Appellate Authority to re-appraise the assessment of finding of facts leading to the above decisions . This Court cannot also review the decisions because of the possibility to have a different determination. The Court must concede the dominant authority of the executive over the policy making. Therefore, the legality of the policy rests on the factors relating to the decision making process. It is to be noted that the Central Government deliberated the issue and the relevant factors have been taken into account for the decision. The rationality of the decision cannot be adjudged on a proof of validity as a pre-requisite. The decision makers need not establish or demonstrate that the decision would secure its objectives. The ultimate decision by passage of time may prove the decision was right or wrong . The freedom of the decision makers to have the choice must be left to their discretion.
19. It is also possible for the executive authority to have policy experiment provided such exercise is made bona fide accentuated to promote the State interest. The policy makers might have thought that consequent upon ban, the necessity of capturing Sharks would dwindle and they may achieve its objectives to protect marine environment. These objectives cannot be termed as irrational. This Court cannot embark upon any enquiry to find out whether this would yield to any desired results or not ….
Holding that there is no scope for the High Court to sit upon the wisdom of the policy making, the Writ petitions were dismissed.
(See 2017-TIOL-673-HC-KERALA-CUS)
