KERALA SWATHANTHRA MALAYA THOZHILALI FEDERATION Vs. KERALA TRAWLNETBOAT OPERATORS ASSOCIATION
SUPREME COURT OF INDIA (FROM: KERALA)
Kerala Swathanthra Malaya Thozhilali Federation
Kerala Trawlnetboat Operators Association
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(1.)These appeals manifest the ongoing conflict of interest between traditional fishermen and mechanised fishing boat operators in the territorial waters of Kerala and the attempts of the government to balance their contending demands. Fishing in the territorial waters and beyond has always been the major source of livelihood for fishermen all along the coast of Kerala. Till the early Seventies, fishing was confined to traditional type of vessels, viz. , catamarans, country craft and canoes. Thereafter, mechanised vessels using several types of fishing gear including bottom-trawling were introduced which soon gave rise to a conflict between the traditional fishermen and the new class of mechanised boat operators.
"While these inputs (have) contributed to enhance the marine fish production, they (have) also brought forth a number of resource-related and socio-economic problems necessitating serious management considerations. One such problem area is fishing during monsoon being practised by the mechanised vessels in some of the States along the west coast particularly in Kerala. This activity which was started in the Seventies with the advancements in the operational capabilities of mechanised vessels in the context of increasing demand for fish in the internal and external markets, soon belied its advantages. It is perceived as competing with the artisanal fisheries in the inshore waters and fostering resource degradation as bottom-trawling during monsoon period is apprehended to adversely affect the spawning populations and subsequent recruitment. " (From the preface to the CMFRI Bulletin 45- "monsoon Fisheries of the West Coast of India - Prospects, Problems and Management" published by central Marine Fisheries Research Institute, a wing of the Indian council of Agricultural Research). The present dispute is confined to the permissibility of bottom-trawling during the monsoon months - a period of about six to eight weeks. The subject-matter of challenge in the writ petitions filed by the operators of bottom-trawling mechanised boats are two orders made by the government of Kerala under Section 4 of the Kerala Marine Fishing Regulation Act, 1980. By virtue of these orders, not only was bottom-trawling prohibited altogether within the territorial waters ('specified areas') for a period of 44 days - monsoon period - in the year 1992, the boats of the writ petitioners were practically confined to the seashore during the said period; they were not to stir out to sea for the said period.
(2.)It is stated that most of the mechanised boats engaged in bottom-trawling are of Norwegian origin with a length of about 32 feet and fitted with an engine of 48 to 60 HP. Bottom-trawling may broadly be described as scraping the bottom of the sea for fish. It is obvious that deeper the sea, larger should be the fishing gear, which in turn calls for a bigger boat. According to the State of Kerala, the boats of the writ petitioners (respondents in these appeals) can engage in bottom-trawling only up to a depth of 30-35 metres inasmuch as the length of wire rope required is five times the depth (with a little extra for meeting emergency situations). The writ petitioners (owners/operators of mechanised boats engaged in the bottom-trawling) who are the contesting respondents in these appeals dispute this assertion. They say that they are capable of bottom-trawling in far deeper waters. Yet another point of dispute is : According to the State of Kerala, the depth of sea beyond territorial limits (22 kms) is 45 to 50 metres or more, while according to the writ petitioners, the depth is less than 50 metres at many places beyond the territorial waters' limit. In short, the case of the State is that the boats of the writ petitioners (of 32 feet length fitted with an engine of 48 to 60 HP and the fishing gear they carry) are capable of bottom-trawling only within the territorial waters whereas the writ petitioners say that they can bottom-trawl not only within but also beyond the territorial waters. Basing on its assertions aforesaid, the government of Kerala has issued the impugned orders. Yet another ground given by the government for supporting the said orders - which ground is strongly supported by traditional fishermen - is that bottom-trawling during monsoon months has extremely adverse effects on the growth and availability of fish, in particular, on the spawning of the fish. According to them, the gradual decrease in the fish haul is mainly the result of bottom-trawling during monsoon period. They say that bottom-trawling during the monsoon months is seriously affecting the livelihood of the traditional fishermen. They point out that for this very reason, this court has upheld a complete ban on use of purseseines, ring seines etc. by mechanised boat-operators within territorial waters in the State of Kerala v. Joseph Antony. RELEVANT provisions OF LAW AND THE notifications
(3.)Entry 57 of List I of the Seventh Schedule to the Constitution specifies "fishing and fisheries beyond territorial waters" as a Union subject, whereas Entry 21 of List II speaks of 'fisheries' as a State subject. though Entry 57 of List I speaks both of 'fishing' and 'fisheries', they do not appear to carry different meanings in the context relevant herein. The word 'fishery' is given the following meanings in the compact edition of the Oxford English Dictionary'.
"(1 The business, occupation or industry of catching fish, or of taking other products of the sea or rivers from the water. (2 a place or district where the fish is caught; fishing ground. (3 a fishing establishment; coil. those who are engaged in fishing in a particular place. (4 the right of fishing in certain works. (5 fish of different kinds. "whichever meaning one adopts, it does not seem to convey any different connotation than the expression 'fishing'. Therefore, nothing turns up on the difference in language employed in Entry 57 of List I and Entry 21 of List II. Reading both the entries together, it follows that control and regulation of fishing and fisheries within territorial water is the exclusive province of the State, whereas beyond the territorial waters, it is the exclusive domain of the Union.
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