KERALA HIGH COURT

                                                   Babu Joseph

                                                         Vs

                                                 State of Kerala

                                                 (M.P.Menon,J.)

                                                   27.09.1984

                                                 JUDGEMENT

M.P.Menon,J.

( 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. 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 such area in
the sea along the entire coast line of the State,but not beyond territorial waters,as may be
specified by the Government,by notification in the Gazette ;. 'State 'was defined in S.2(i)to
include the territorial waters along the entire coast line of Kerala.In November and
December,1980 Government issued a series of notifications under S.2(h)and S.4(1 ).Stated
briefly,the combined effect of the these notifications was: - (i)to prohibit use of purse seine,ring
seine,pelagic trawl and mid water trawl fishing gears in the territorial waters along the coast line
of the State; (ii)to prohibit fishing by all mechanised vessels in the territorial waters,except for
certain small specified zones;and (iii)permit fishing,by way of exemption,in part of the prohibited
area,by motorised country crafts ;. The grievance of the petitioners who are owners of
mechanised vessels using the prohibited types of gears,is that the Act and the notifications issued
thereunder have the result of destroying their occupation or trade.

( 3. ) THE validity of the Act as a whole is challenged on two major grounds: (i)Entry 21 List II
of the VIIth Schedule of the Constitution authorises the State to legislate only on 'fisheries 'and
not on 'fishing '; the impugned Act is a law on fishing; (ii)Territorial waters do not form part of
the territory of the State;and under Art.245(1 ),the State has no competence to make a law having
extra territorial operation. ;