BABU JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) A question of some importance, as to the status of territorial waters in the constitutional law of India and the competence of coastal States to regulate fishing in such waters, is raised in these two writ petitions challenging the validity of the Kerala Marine Fishing Regulation Act, 1980 (Act 10/81.)

(2.) Fishing in the coastal waters with the aid of country crafts, canoes and catamarams has been the traditional occupation and source of livelihood for many fishermen communities in the State. With the dawn of independence and the emphasis on all-round development through Five-Year Plans, steps were taken to expand marine fishing by introducing mechanised boats and trawlers using more sophisticated gears and technologies. The Indo Norwegian Project sponsored by the State Government marked the beginning of this process. Private enterprise soon stepped into the area, introducing all sorts of mechanised vessels and gears, and setting up peeling sheds, ice factories and freezing plants. And a conflict soon arose, as often happens with modernisation, between the old and the new, the fishermen communities complaining that they were being squeezed out of existence in an unfair competition. Proests and agitations followed, occasionally developing into clashes between these two groups in the territorial sea. The developments in the other coastal states must also have been on similar lines, because by 1976, the Central Government became seized of the problem and appointed the "Majumdar Committee" to examine the question of demarcating separate areas for different types of fishing boats and vessels. Even without waiting for the report of the Committee the Centre advised the concerned States, as an interim measure, to set apart "waters up to 5 kilometres from the shore" for the exclusive use of traditional crafts. And after receipt of the report, a model bill for giving legislative protection to the policy was also forwarded to the States, some time in 1979. The Kerala Marine Fishing Regulation Ordinance, 1980 was promulgated to give effect to the above advice. The impugned Act replaced the Ordinance, with the assent of the President, with retrospective effect from 29-11-80.

(3.) S.4(1) of the Act empowered the State Government, by orders notified in the Gazette, to regulate, restrict or prohibit, in specified areas, fishing by prescribed classes of vessels, catching of specified classes of fish, use of prescribed fishing gears etc., after taking into account the matters specified in Sub-s.(2). 'Specified area" was defined in S.2(h) as