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2019 (1) TMI 733 - HC - CustomsPower of the Central Government to regulate marine trade, especially Foreign Trade Policy - export of shark finning - Constitutional validity and legality of Notification S.O. 197(E), dated 6-12-2001 - vires of Ext. P3 Notification, vires the Foreign Trade (Development and Regulation) Act, 1992 - Challenge to subordinate legislation - principles of natural justice - Held that:- The impugned Ext. P3 notification is a piece of subordinate legislation - It is a precedentially settled proposition that a piece subordinate legislation does not carry the same immunity as enjoyed by a statute passed by a competent Legislature - An enquiry into the vires of delegated legislation must be confined to the ground on which the plenary legislation may be questioned. Yet subordinate legislation cannot be questioned on the ground of violation of the principle of natural justice on which administrative action may be questioned. Public interest - burden of proof - Has the Government discharged its burden in establishing that there involved public interest, and that it applied its mind to it? - Held that:- If a statute confers a benefit of exemption on a person, the Government may, in public interest, curtail or abridge the extent of exemption - But Government, when questioned, must establish the grounds of public interest. We reckon the Government did discharge its burden here. Policy preferences - Judicial interference - Held that:- The Court should constantly remind itself that “the problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review. Discrimination - Marine Fins consistently contends that Ext. P3 smacks of arbitrariness. According to it, the ban does not apply to domestic consumption - Held that:- In Parisons Agrotech (P) Ltd. v. Union of India [2015 (8) TMI 997 - SUPREME COURT], the Supreme Court has held that once the court finds that there is sufficient material for the Government to take a particular policy decision; even by bringing Article 14 of the Constitution into play, courts cannot judicially review and determine the correctness of the policy decision. Backed by cogent material, if the authorities demonstrate that the decision is not arbitrary or irrational, but is taken in public interest, the Court must respect the Executive’s decision. A question of fact - Judicial approach - Held that:- The Writ Court has to be very careful in accepting what evidence should be received and relied upon if there is a bona fide dispute between the parties about its correctness. Is the Government insensitive to the issue? - Held that:- True that the notification does not prohibit hunting of shark for domestic consumption, though it bans export of shark fins. Shark meat, we must acknowledge, is no staple food for Indians. Even among the fish consumers, those that prefer shark meat are minuscule. So, to cater to the needs of such negligible consumers, there cannot be the wholesale killing of sharks. The culprit is finning, and the result is the species thinning, to the extent of disappearing - almost. There is no legal infirmity in the impugned judgment - appeal dismissed.
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