TaxTMI 
TaxTMI 
2019 (1) TMI 733
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....Government's action sustains itself. Case in brief : 3. Marine Fins, a proprietary concern, deals in import and export of marine products. It exports mainly dried shark fins to North-East countries. Though dried shark fin has 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 Sched....
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....shing of sharks. The Learned Counsel submits the awareness drive was to ensure that no harm is caused to the fishes of the banned category. Even the departments concerned were directed to take steps to conduct such awareness programmes, Sri Hakim adds. 13. One of his principal contentions is that Commerce Ministry has purposefully 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 :....
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....l Government has the power under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, to formulate and implement the Foreign Trade Policy. "5. The Central Government may, from time to time, formulate and announce, by notification in the Official Gazette, the foreign trade policy and may also, in the like manner, amend that policy". 22. 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, in....
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....ervation of Nature and Natural Resources. The resolution came into force in July, 1975. Later, in May, 2014, 180 countries ratified the Convention. True, under Appendix II to the Convention, only a few varieties of Shark - about 18 species - are protected as per Article IV of the Convention. But pertinent is the fact that the parties to the Convention are given the right to adopt stricter domestic measures, as is 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....
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....rmissible species of wildlife and wildlife products. All forms of wildlife, including their parts and products, are barred from export unless they are specifically allowed under different parts of ITC (HS) Classification of Export and Import Items. 38. The Note 1 under Chapter 3 of the Current Foreign Trade Policy, as amended by the notification dated 6-2-2015, covers "Marine Products" exhaustively. In fact, all marine species that have been 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-anima....
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....ted 73 million sharks killed each year, IUCN asserts, are killed only by the Shark Finning Industry. 43. Granted, India may not have, at any stage, indulged in shark finning or killing sharks in a genocidal proportion. But environmental protection, the preservation of flora and fauna, and the maintenance of ecological balance demand zero-tolerance. 44. Before proceeding further, we may examine the scope of judicial review in governmental policies. (a) Challenge to subordinate legislation : 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 le....
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....al ban, and what else could have been a better and more viable alternatives. Possibilities galore, we agree. But can we substitute our view to that of the Government, merely because our view, too, is plausible or possible? 51. First, we must acknowledge that the Ext. P3 notification emerges from expert deliberations. As is often held, the courts will not ordinarily interfere in the Government's policy matters, since these policy matters are taken based on expert knowledge. Besides, courts are usually not equipped to question the correctness of a policy decision. 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 decisi....
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....the Government's decision does not appear to be agreeable to the Court, it cannot interfere. 56. 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. Metropolis Theatre Company v. City of Chicago - (1912) 57 L Ed 730, as quoted 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.), ....