Editorial 1. Deep sea fish conservation must not go adrift
Context:
The Supreme Court of India (SC) has given permission to fishermen using purse seine fishing gear to fish beyond territorial waters (12 nautical miles) and within the Exclusive Economic Zone (EEZ) (200 nautical miles) of Tamil Nadu, but observing certain restrictions.
SC order and its impacts:
The Court’s interim order of January 2023, against the banning of purse seine fishing by the Tamil Nadu Government in February 2022, seems to be more concerned about regulating fishing with administrative and transparency measures than about the conservation measures and obligations which a coastal state owes in its EEZ under the United Nations Convention on the Law of the Sea (UNCLOS).
|
United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea Treaty, is an international agreement that establishes a legal framework for all marine and maritime activities. It lays down a comprehensive regime of law and order in the world's oceans and seas establishing rules governing all uses of the oceans and their resources.
Exclusive Economic Zone (EEZ), under UNCLOS, is an area of the sea in which a sovereign state has special rights regarding the exploration and use of marine resources, including energy production from water and wind. |
However, conservation measures (as suggested in various regional conventions) and judgments of various tribunals (embodying conservation measures based on best science or relevant scientific evidence to control overfishing and protect endangered marine living resources from extinction) should have informed the order.
Purse seine fishing:
A purse seine is made of a long wall of netting framed with floating and leadline and having purse rings hanging from the lower edge of the gear, through which runs a purse line made from steel wire or rope which allow the pursing of the net.
A vertical net ‘curtain’ is used to surround the school of fish, the bottom of which is then drawn together to enclose the fish, rather like tightening the cords of a drawstring purse.
Purse seiners tend to overfish, unlike traditional fishermen using traditional fish gear, thus endangering the livelihood of the traditional fisher.
Purse seines are used in the open ocean to target dense schools of single-species pelagic (midwater) fish like tuna and mackerel.
In some States, it is linked to concerns about the decreasing stock of small, pelagic shoaling fish such as sardines, mackerel, anchovies and trevally on the western coasts.
Conservation and conventions
The top court should seek guidance from the obligations arising from the multilateral and regional conventions which are meant to bring in sustainable fishing practices over a certain period of time, thereby allowing a common resource such as fish to be naturally replenished.
Under UNCLOS, coastal states have sovereign rights to ensure that the living and non-living resources of the EEZ are used, conserved and managed, and not subject to overexploitation. Access to the zone by foreign fleets is also solely within the coastal state’s discretion and subject to its laws and regulations.
In order to prevent overexploitation, coastal States must determine the total allowable catch (TAC) in the EEZ in light of the best scientific evidence available. The crux of the SBT is TAC and distribution of allocations among the parties to the SBT, which are very relevant from the angle of conservation of general fishery.
TAC and the catch quotas are aimed at putting sustainable use into practice among fishermen and maintaining maximum sustainable yield (MSY). The efforts to implement TAC and catch quota might face scientific uncertainty relating to safe limits to ensure MSY. In such a situation, the established international environmental law practice is to lean on adopting a precautionary approach.
Regulation of fishing methods
Merely restricting the purse seiner to fish on two days — Monday and Thursday from 8 a.m. to 6 p.m. — (in the Court order) is not sufficient without regulating the fishing methods used. International legal efforts are gradually moving in the direction of abandoning the use of large-scale pelagic nets.
The huge size of the purse seine nets (2,000 metres in length and 200 m in depth) allows maximum catch for the purse seiners, in turn leaving behind insufficient catch for traditional fishermen.
There are several regional organisations that either prohibit the use of large drift nets or at least call for their prohibition, such as the 1989 Tarawa Declaration of the South Pacific Forum.
The 1989 Convention for the Prohibition of Fishing with Long Drift Nets in the South Pacific goes as far as to restrict port access for drift net fishing vessels.
The United Nations General Assembly (UNGA) passed Resolutions 44/225 (1989) and 46/215 (1991) supported and strengthened this development, calling for a moratoria on all large-scale pelagic drift net fishing vessels in high seas.
Although the conventions and the UN General Assembly resolutions are applicable to the state parties in the high seas, these are relevant in terms of preventing overfishing in general and the conservation of fishery management in the EEZ as well.
Conclusion:
Despite the best conservation measures and regulation of fishing methods adopted by the authorities, it will be a challenge in dealing with the limitless character of the seas which renders a common resource such as fish available for exploitation by all.
The theory of Garrett Hardin, ‘The Tragedy of the Commons’, which says ‘Freedom in a commons brings ruin to all’ should convince all fishermen, especially the purse seiners of Tamil Nadu, that they must cooperate in complying with conservation measures.
Editorial 2. Post-retirement appointments: a danger to judicial independence
Context:
Within a month of retiring from the Supreme Court of India, Justice S. Abdul Nazeer has been appointed Governor of Andhra Pradesh. Some believe that it is no coincidence that he was a part of the Constitution Bench that decided the Ayodhya Ram Mandir land issue.
Carrot and stick policy :
In the tenure of the current government since 2014, he is the third Supreme Court (SC) judge who has received a high-profile political appointment soon after retirement, the other two being Justice P. Sathasivam (who was appointed Governor of Kerala), and Justice Ranjan P. Gogoi (who was appointed member of the Rajya Sabha).
These appointments are all signalling on the part of the government, letting the members of the higher judiciary know that they will be suitably rewarded if they issue favourable decisions. Dangling such a proverbial carrot is akin to corrupting the judges, and encouraging a culture of sycophancy even, as we are increasingly seeing among some judges in the apex court. Worse, this also makes the public have less faith in the judiciary itself.
Chipping away at judiciary
While a Governor’s position may seem largely ceremonial, it is in fact a squarely political appointment. In any event, this appears to be a part of the ruling party’s strategic mission — a long game, if you will — to destabilise the judiciary, chipping away in small and big ways at various aspects of its functioning. If you step back and observe, the judiciary is slowly but surely being subtly weakened.
To be fair, this is not the first government that has ventured so far as to corrupt the judges in this fashion. Congress-led governments, notably under Indira Gandhi and Rajiv Gandhi, have done it too. But it is a cowardly defence that the Opposition party was equally guilty, and past precedent does not justify present transgressions.
The larger objective, for any reasonable executive, should be to ensure the independence of the other arms of the governing mechanism, and that democratic values are preserved in all circumstances.
However, a conclusively majoritarian mandate can make one heady with power, and compel the exploration of creative ways in which that power can be maintained and consolidated further. This is entirely the case with the Indian government today.
Hypocritical behaviour
The government’s behaviour is also hypocritical for it is deliberately paying no heed to its own manifesto articulated by its late leader, Arun Jaitley, that such post-retirement judicial appointments should be avoided.
In fact, ‘inducing the judges’ by such appointments was a specific allegation directed by the Bharatiya Janata Party (BJP) against the Congress-led coalition.
Judges must recognise that handouts from the government, in the form of such political appointments, are not one-way: there is a giver and there is a receiver. The Indian judiciary must distinguish between political favours and other post-retirement employment opportunities.
Demarcation of roles
There needs to be a demarcation between roles where the presence of a judicial authority is clearly valuable and even necessary, such as in a tribunal or a commission, and where it is not.
Justice Gogoi, upon his appointment to the Rajya Sabha, had famously proclaimed that he intended to bridge the gap between the judiciary and the legislature, but his attendance record and public participation in parliamentary affairs suggest nothing of the sort.
Similarly, Justice Sathasivam had said he had wanted to serve the people in his role as Governor, but surely, he could have achieved the same objective through other appointments, that would be more befitting of someone who had held the office of the Chief Justice of India.
Ideally, the judicial community should take a concerted decision on this, say, in the Chief Justices’ conference. The plenary should agree that judges should not take up any appointments upon retirement stemming from political patronage (with the nature of such appointments being clearly defined).
Additionally, a cooling period of about two years should be considered a mandatory minimum before a judge agrees to take on any post-retirement adjudicatory role, in any case.
|
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Supreme Court has held judicial independence to be a part of Indian Constitution's ‘Basic Structure’, which can not be removed by the Parliament even by a Constitutional amendment. |
Conclusion:
Justice Y.V. Chandrachud had said that the greatest danger to the judiciary lies within. Members of the judiciary cannot compromise judicial independence by trading it for a plum post-retirement sinecure. When one becomes a judge, one signs up to fulfil a promise of ensuring a fair and independent judiciary; this promise cannot be compromised at any cost. Our judges need to be gently reminded of this unwritten contract they have with the Indian people.