Enquiry into the vires of delegated legislation must be confined to the ground on which the plenary legislation may be questioned

Kerala High Court:The culprit is finning, and the result is the species thinning, to the extent of disappearing – almost”, said Dama Seshadri Naidu, J., speaking for himself and Antony Dominic, CJ. while dismissing an appeal filed challenging the notification passed by the Central Government vide which the Government imposed ban on export of shark fins. It is noteworthy that internationally too, ‘shark finning’ is a detestable fishing activity, leading to environmental and ecological calamities.

The appellant was a marine produce exporter, dealing exclusively in shark fins. He assailed the notification banning the export of sharks as ultra vires the Government power under relevant statutes. Earlier, too, in 2001, the Union of India banned catching all species of shark in India, treating them as endangered animal under the Wildlife (Protection) Act, 1972. However, due to widespread protest, the ban was constricted to only 9 out of 99 shark and ray species. Subsequently, in 2015, the Government exercised its powers under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, and ordered the impugned notification, wherein export of all shark fins, of whatever species, was banned. The appellant sought striking down of the notification as void. The notification was also challenged for violating Article 14 of the Constitution.

After a lengthy discussion on law relating to the subject, the High Court inter alia observed that the said notification was piece of subordinate legislation. Placing reliance on the decision of Supreme Court in Indian Express Newspaper (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641, the High Court observed that a piece of subordinate legislation does not carry the same immunity as enjoyed by a statute passed by competent legislature. Subordinate legislation may be questioned on all grounds as are available against the plenary legislation including ignorance of the parent statute; contravention of some other statute; and unreasonableness in the sense of being manifestly arbitrary. On perusal of the notification and the policy behind it, the Court held that, the ban was introduced to protect the wildlife in general and sharks in particular, which are regarded by the Government as an endangered animal. The re-introduction of the ban after a gap of over 13 years was also plausible as on the high seas it was impossible for the fishermen to identify and differentiate one species of shark from the other. Further, challenge to the notification on ground of violating Article 14 was also dismissed by the Court. True that the notification did not prohibit hunting of shark for domestic consumption, though it bans export of shark fins. However, such distinction seems to be based on an intelligible differentia as shark meat is not a staple food for Indians. To cater the needs of miniscule number of consumers, no danger of wholesale killing of sharks arise. Thus, the Court did not find any infirmity in the impugned notification; the writ appeal was dismissed. [Marine Fins v. Union of India,  2018 SCC OnLine Ker 1950, order dated 29-5-2018]

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