DAMA SESHADRI NAIDU, J.

Introduction:

1. Central Government, through a notification, banned the export of shark fins. Internationally too “shark fining” is a detestable fishing activity, leading to environmental and ecological calamities. The Government first imposed this ban in 2001, relaxed it the same year. But, again, in 2015, re-imposed it.

2. One marine produce exporter, dealing exclusively in shark fins, assails the ban. It argues that India stands on a different footing, and the international parameters have no application here. It also questions the prohibition as ultra-vires of the Government power under the relevant statutes. We will examine whether the 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. SO 665(E) dated 11.7.2001; it banned catching of all species of Shark in India, treating it as an endangered animal under the Wildlife (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 SO 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 06.02.2015. The notification inserts a new entry at S. No. 31 A, in chapter III of Schedule 2 of ITC (HS) Classification of Export and Import Items (Ext.P3). With this legislative change, the Government has banned export of all shark fins, of whatever species.

7. Because of the ban, Marine Fins cannot buy shark fins from the fishermen in the local market. Aggrieved, Marine Fins challenges Notification SO 1197(E) dated 6.12.2001, as affecting its fundamental right to trade.

Reliefs Sought:

(i) Declare that Ext.P3 Notification is illegal and unconstitutional.

(ii) Strike down Ext.P3 Notification, as it is void, and ultra-vires the Foreign Trade (Development and Regulation) Act, 1992.

Submissions:

Appellants:

8. Sri M.A. Abdul Hakim, the learned counsel for the appellant, maintains that, unlike other countries, shark in India is considered a protein-rich diet, and there is great demand for shark meat. Besides meat, shark yields Shark Liver Oil, Shark Cartilage Powder, Shark Skin, and so forth. In sum, all parts of the Shark are used for different purposes in India, and hence the practice of hunting the shark only for its fins is not prevalent in India. There are about 99 species of Sharks available within the territorial waters of India.

9. Given the modified ban, now the ban is against nine species, which are rarely in Indian territorial waters. Shark Fin has no domestic use, market, or value; but it has a high demand in North-East Countries for making Chinese foods, soups etc. In other words, a domestically useless part of shark is exported to foreign countries to earn much-needed foreign exchange for the country.

10. Sri Hakim further contends that Marine Fins has export obligations, and it has stocked huge quantity of shark fin, for which it took a loan of two crore rupees from a bank.

11. Ext.P3 Notification, Sri Hakim asserts, is ultra-vires of section 5 of the Foreign Trade (Development and Regulations) Act, 1992. The notification, according to him, also falls foul of Article 14 of the Constitution of India. Assailing R(2) (e) Meeting, the learned counsel contends that it went beyond its intended purpose, and a ban on exporting shark fin could not have been within its contemplation.

12. Ext P10 Meeting, held earlier, has d