Fisheries Administration and Lagislation

Unit 4 - General background on law

4.4. Indian constitution
The Constitution provides fundamental rights and aims at securing these rights against the might of the State. Thus, it limits the state’s ability to curtail people’s fundamental rights.

Article 14: Right to Equality: Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Art. 14 guarantee only a negative right not to be discriminated. Article 15 to 18 extends the right to equality. Art. 15 to 18 assure this to be a positive right. With this right of equality is not only granted but is protected against social and economic inequalities supported by religion and other social norms and practices. “Equality before the law” is a declaration of equality of all persons; no special privilege favoring any individual. Before the law” ensures that every person is subject to the jurisdiction of ordinary courts, irrespective of his position or rank. “Equal protection of the laws” – equal protection shall be secured to all persons within the territorial jurisdiction. Thus “equal protection of the laws” is a pledge of protection or guarantee of equal laws. “Before the law” ensures that every person is subject to the jurisdiction of ordinary courts, irrespective of his position or rank.
Article 15: Prohibition of discrimination on grounds of religion, race, case, sex or place of birth. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.
Article 16: Equality of opportunity in matters of public employment. There shall be equality of opportunity for all citizens in matters relating to employment of appointment to any office under the State. No citizen shall, on grounds only of religion, race, caste, sex, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State. Nothing in this article shall prevent the State from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within a State or Union territory, any requirement as to residence within that State or Union territory, prior to such employment or appointment. Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. Articles 15 and 16 are instances of the same right in favor of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters relating to employment or appointment to any office under the State. Article 15 does not mention descent as one of the prohibited grounds of discrimination as Article 16 does”.
Panchayat Raj (Extension to Scheduled Areas) Act 1996
Mandates decentralization of governance to rural bodies, like Panchayats (village councils) and Gram Sabhas (village assemblies) in predominantly tribal (“Scheduled” under Constitution) areas. Confers the ownership and decision-making rights over non-timber forest products (NTFP) to local institutions. Mandates consultation with local communities regarding many developmental and other issues relevant for a site.
Considered a revolutionary Act with a strong potential to integrate and enhance conservation and livelihood needs, help communities to resist destructive forces.
Panchayat Development Officer
The Central government plans to appoint a development officer in panchayats across the country, to accelerate the implementation of rural development schemes. The officer will play the role of a ‘catalyst’ and address issues of service delivery. The Central government plans to appoint a development officer in each of the 2.4 lakh panchayats to accelerate the implementation of rural development schemes.
Broad understanding of Art. 16
• Clause 1 is a general rule that there shall be equal opportunity for all citizens in matters of employment.
• Clause 2 specifies reasons due to which citizens cannot be discriminated against.
• Clause 3 provides that if necessary, the State may prescribe residence requirement within that State for employment.
• Clauses 4 and 4A empower the State to reserve jobs and promotion opportunities favoring certain classes.
• Clause 5 allows persons of religious denomination in institutions of religious affairs.
Article 17: Abolition of Untouchability
Article 18: Abolition of Titles
Article 19: Protection of certain rights regarding freedom of speech etc.
• Clause 1 – All citizens shall have the right
a. to freedom of speech and expression
b. to assemble peaceably and without arms
c. to form associations or unions
d. to move freely throughout the territory of India
e. to reside and settle in any part of the territory of India
f. [to acquire, hold and dispose of property and]
g. to practice any profession or to carry on any occupation, trade or business.
Mahseer – whether it is conserved under Wild Life Protection act
Article 20 – Protection in respect of conviction for offences.
• Clause 1 – No person shall be convicted of any offence except for violation of law in force at the time of the commission of the charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
In brief – A person can be punished only when he commits an ‘offence’ violating the law in force at the time; penalty imposed shall not be greater than the loss inflicted by such person.
Article 21 Protection of Life and personal liberty
Right to life enshrined in Article 21 means something more than mere survival or animal existence. It provides for improvement in socioeconomic status of tribal groups and other underprivileged communities. It provides for right to decent environment right to health. Right to shelter, right to work, rights to vote are also included under this provision.
Article 21-A – Right to Education:
The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.
Art. 23 – Prohibition of traffic in human beings and forced labour.
Traffic in human beings and begar and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
Article 24 – Prohibition of employment of children in factories etc.
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. [Law: Child Labour (Prohibition and Regulation) Act, 1986]
Article 25 – Freedom of conscience and free profession, practice and propagation of religion. Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely profess, practise and propagate religion.
Article 26 – Freedom to manage religious affairs. Subject to public order, morality and health every religious denomination or any section thereof shall have the right -
a. To establish and maintain institutions for religious and charitable purposes;
b. To manage its own affairs in matters of religion;
c. To own and acquire movable and immovable property; and
d. To administer such property in accordance with law.
Article 27 – Freedom as to payment of taxes for promotion of any particular religion.
• No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28 – Freedom as to attendance at relgious instruction or religious worship in certain educational institutions.
• Clause 1: No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
• Clause 2: Nothing in clause 1 shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
• Clause 3: No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
Article 29: Protection of interests of minorities.
Clause 1: Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
Clause 2: No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Article 30 – Right of minorities to establish and administer educational institutions.
Clause 1: All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
Article 31 – Right to Property – Compulsory acquisition of property – Omitted.
2. Article 31-A: Saving of laws providing for acquisition of estates, etc.
3. Clause 1 – Independent of what Article 13 lays down, the State can make laws to facilitate itself to –
a. acquire any estate or of any rights therein or the nullification or modification of any such rights, or
b. take over the management of any property for a limited period either in the public interest or in order to secure the proper management of the property, or
c. cause amalgamation of two or more corporations either in the public interest or in order to secure the proper management, or
d. extinguish or modify any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
e. extinguish or modify any rights accruing by virtue of any agreement, lease or license for the purpose of searching for any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or license
• Such laws shall not be deemed void on the ground that it interferes with the rights conferred by Article 14 or Article 19.
• However, such law shall be made by the Legislature of a State and shall be assented to by the President.

Article 32: Right to Constitutional Remedies
• Clause 1: Guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part.
• Clause 2: The Supreme Court is empowered to issue directions or orders or writs. Writs include habeas corpus, mandamus, prohibition, quo warranto and certiorari, as may be appropriate.
habeas corpus – means ‘to have a body’. A writ of habeas corpus orders asking a person who has detained another to produce the latter before the court, in order for the court know the grounds for such detention and to set him free if the same has no legal justification.
mandamus – means a command. It commands a person to perform some public or quasi-public legal duty which he refused to perform and the performance of which cannot be enforced by any other adequate legal remedy.
prohibition – It is a writ issued by the SC or a HC to an inferior court for directing it to continue proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which it is not legally vested.
certiorari – Certiorari is available at a later stage, on similar grounds as prohibition. The object of both is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not possess.
Quo Warranto – is a proceeding whereby the court enquires into the legality of the claim which a party asserts to a public office, and to oust him from its enjoyment if the claim be not well founded. It is a very powerful instrument for safeguarding against the usurpation of public offices.
• Clause 3: Without prejudice to the powers of the SC under clauses 1 and 2, Parliament may by law empower any other court to exercise these powers within the local limits all or any of the powers exercisable by the SC under clause 2.
• Clause 4: The right guaranteed by this article shall not b e suspended except as otherwise provided for by this Constitution.
Article 33: Power to modify the Rights
• Parliament may determine the extent of restrictions or curtailment to be applied on the rights conferred on the following by Part III, to ensure proper discharge of duties and maintenance of discipline –
a. the members of the Armed Forces; or
b. the members of the Forces charged with the maintenance of public order; or
c. persons employed in any State-established organization for purposes of intelligence / counter-intelligence; or
d. persons employed in telecommunication systems set up for the purposes stated in a, b and c above.
Directive Principles of State policy
The provision contained in this part shall not be enforceable by any court but the principles there in are fundamental in the good governance of the state and shall be the duty of state to apply these principles in making laws.
Article 38: State should secure a social order for the promotion of welfare of the people, state shall work to minimize the inequities in income
Article 39: Certain principles of policy to be followed by the state
a. right to an adequate means of livelihood
b. right to operation of the economic system
c. to prevent concentration of income and wealth
d. equal pay for equal work
e. providing health and welfare services
f. ownership and control of resource of community to serve the common goal
Article 40: organization of village panchayats
Article 41: right to work, right to education and to public assistance in certain cases.
NREGA, 2005: National Rural Employment Guarantee Act also called Mahatma Gandhi National Rural Employment Guarantee Act. Every individual will be given work by the state agency at determining wage rate.
NREGA: NREGA was launched in 200 selected districts on 2nd Feb. 2006 in Phase I and was extended to 130 more districts in 2007-08 in Phase II. It was extended to the remaining 285 districts from 1st April, 2008 onwards in Phase III.
Objectives - NREGA
• Aims at enhancing the livelihood security of the people in rural areas by guaranteeing 100 days of wage employment in a financial year, to a rural household whose members volunteer to do unskilled manual work.
• The objective of the Act is to create durable assets and strengthen the livelihood resource base of the rural poor.
The focus of the Act is on works relating to soil & water conservation, drought proofing, land development, flood protection, rural connectivity etc. NREGA is being implemented in Karnataka since 2006. Now it covers all the 29 districts of the state. The objective is to ensure livelihood and food security by providing unskilled work to people through creation of sustainable assets. We strive to implement the scheme in the most transparent and effective way. This website is intended to provide all the information regarding NREGA in the public domain.

Article 48 (A): Protection and improvement of environment and safeguarding forest and wildlife. 48 (A) was introduced by 42nd amendment in the year 1976
Article 48: It mainly concentrates on organization of Agriculture on modern lines. If the govt. is not following directive principles of state policy, then no one can question in the court of law, but if the govt. is going against the directive principles of state policy, then citizens have right to question against them in court of law.
Fundamental Duties:
Article 51(A):
Respect constitution, institution, national flag and national anthem.
Protect and upheld the sovereignty, unity and integrity of India.
To defend the country and render the national service when called upon to do so
To promote harmony and common brotherhood
To value and preserve the rich heritage of composite culture.
Article 51 A(G): To promote and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Fundamental duties were not part of constitution, when constitution was made. It was introduced in Indian constitution during 42nd amendment. If the citizen is not performing its fundamental duty, then no one can question against it but if the citizen is doing just opposite of its fundamental duties, then anyone can question against this in court of law. Directive principles of state policy are the duties of the govt.
Administrative Division (VII Schedule): There are three lists under this
1. Union list: Defense, External affairs, Article -246, Railways, P&T (Port and Telegraph)
2. State list: Agriculture, Fisheries, Land Revenues, Minor port, Police, Primary education
3. Concurrent list: Under Union as well as state list, higher education, forests, trade and commerce.
4. Panchayat list (73rd & 74th Amendment)
Union List: Article 246 Railways, Atomic energy, entering into treaties with other countries, Citizenship and naturalization of aliens, Maritime shipping and Navigation, Ports (major with central govt and minor one under state govt)
Commercial banks-Reserve bank of India, Trade and Commerce, Regulation and Development, Mineral Oil and petroleum resources, Insurance. Minor irrigation is also part of state list-Forest is mostly under state list but slowly it is moving under union list. In the year 1992-1993, two amendments were brought to constitution 1.e 73rd and 74th amendment. 73rd Amendment is concerned with Panchayat system. 74th Amendment is concerned with Urban Corporations. Part IX-Panchayati Raj System/Panchayats. It is the lowest administrative body in the country. Karnataka Panchayat Raj Act in 1993. According to this Act, village panchayat is constituted by Grama Sabhas consisiting of >400 and <900 voters. There can be 4-8 Grama Sabha in one village panchayat. Grama Sabhas should meet atleast twice in a year. Grama Sabha mainly discusses about the Panchayat system varies from State to state. The election of numbers of Panchayat is by direct (The President of all Panchayat is elected directly) Development activities need to be undertaken in that area. Panchayat also has jurisdiction over 29 subjects according to amendment 73rd and 74th . It is there in XI the schedule and article 243 G. Subject matter includes
• Agriculture
• Fisheries
• Land improvement
• Minor forest produce
• Animal husbandry, poultry
• Small Scale industries
• Rural housing
• Non conventional energy source
• Education including primary and secondary schools
• Health and Sanitation
• Market & Fairs
• Maintenance of community assets-forest, floral & fauna, water bodies
District Panchayat
Taluk Panchayat
Village Panchayat
Gram Sabha
In XIIth schedule, the areas where urban local bodies can take decision are included. Urban planning, roads and bridges. House etc are the areas on which Urban local bodies can take decision.

Article 246 of constitution gives following powers to Union govt.
1. Entering into agreement with foreign countries
2. Maritime shipping and navigation
3. Ports declared as major ports
4. Fishing and fisheries beyond territorial waters
Article 297 of constitution assigns power to regulate fisheries in exclusive economic zone. The fishing and fisheries beyond territorial waters is with Union Govt and upto territorial water (upto 12 Nautical miles) is under State jurisdiction.


Indian Easement Act 1922
The common law doctrine of riparian rights has been codified under Indian easement act 1999. Section 7 deals with the pollution. Every riparian owner is entitled to the continued flow of water of natural stream in its natural condition without any obstruction or pollution. An upper riparian owner can’t so use the waters of a stream which will injure the rights of a lower riparian in those waters. However, every riparian owner has a right of reasonable use of water. There is an equality of rights in water by all the riparian owners so long as there is no interference with the rights of the other riparian owner. The riparian owner has two remedies against the polluter. One is to claim damage against the polluter and another to file a sue for injunction restraining him for polluting the water.
MRPL has constructure a barrage before the main dam for drinking water across Thumbe River.
Indian penal code- 1860
Under section 277 of Indian penal code whoever voluntarily corrupts or fouls the water of a public spring or reservoir so as to render it less fit for the purpose for which it is ordinarily used shall be punished with imprisonment, fine or both. Pollution of water other than springs and reservoir was covered under section 290. It provides whoever commits public nuisance in any case is punishable.
Section 269 provides for punishment of people who spread the infection of any dangerous to life shall be punishable. Water pollution could also be punished under section 423 of Indian penal code. If the act of an Indian cause loss and destruction to the public or diminishes its value, then it can be punished. Indian penal code sometimes proves to be very useful but problem with this act is that the amount of penalty is very less.
Advantage of IPC-easy to file a complaint against the polluter in the police station
Factories Act 1948
It is a social welfare organization intended to secure health, safety and welfare of water. Section 12 deals with disposal of trade wastes and affluent. This section provides for
1. Effective arrangement shall be made in every factory for disposal of waste effluent due to manufacturing process carried by the factory.
2. The state govt. should make the rule prescribing the arrangement to be made under subsection of section12
No court shall take obligation of any offence under this act except on a complaint or with the previous sanction of an inspector.
Municipal Status
The Karnataka Municipal corporation Act empowers the Commissioner to make an order restraining the use of water from any well/tank or any source of water not vested in corporation when it is so polluted so as to be prejudicial to the health of people
1. Prevent people to use water for other purpose (if it thinks other use pollutes water) if corporation thinks it is used for drinking purpose.

Labour laws
Indian labour law refers to laws regulating employment in India. There are over fifty national laws and many more state-level laws. Traditionally Indian governments at federal and state level have sought to ensure a high degree of protection for workers. So for instance, a permanent worker can be terminated only for proven misconduct or for habitual absence. In Uttam Nakate case, the Bombay High Court held that dismissing an employee for repeated sleeping on the factory floor was illegal - a decision which was overturned by the Supreme Court of India. Moreover, it took two decades to complete the legal process. In 2008, the World Bank has criticized the complexity, lack of modernization and flexibility in Indian regulations. India can boast of a quarter of the world's workforce by 2025, provided the country harnesses the potential of its young and productive population. However, the demographic dividend would become a disaster if India does not radically overhaul the labour ecosystem to enhance the productivity of the growing workforce. If reforms are not initiated, it is expected that much of the country's demographic dividend would occur in states with backward labour market ecosystems. It also ranked that states on the basis of improvement in their labour ecosystems in terms of state efforts in various areas like education and training, infrastructure, governance and the legal/regulatory structure.
Collective labour law
The Industrial Disputes Act (1947) requires companies employing more than 100 workers to seek government approval before they can fire employees or close down. In practice, permissions for firing employees are rarely granted.
• Trade Unions Act 1926
• Provisions of the Factories Act, 1948
Individual labour law
All India Organisation of Employers points out that there are more than 55 central labour laws and over 100 state labour laws.
The Contract Labour Act (1970) prohibits companies from hiring temporary workers. Women are not permitted to work night shifts.
• Minimum Wages Act 1948
• Weekly Holidays Act 1942
• Beedi and Cigar Workers Act 1966
• The Payment of Wages Act, 1936
• The Workmen’s Compensation Act, 1923
• The Factories Act, 1948

Article 297 of the Constitution assigns the powers to regulate fisheries in the exclusive economic zone to the Indian Union, and prevails over Article 246 (3) of the Constitution which provides that in principle the regional states are competent to govern fisheries issues in Indian waters.
At the outset, it is important to understand the Constitutional scheme of India laying out the jurisdictional control of the states and the Union. This actually forms the basis of exploitation of ocean and coastal resources within the coastal waters. The distribution of items in the Union, State and Concurrent List under Schedule VII of the Indian Constitution has a specific design that has to be understood in the context of fisheries. While fishing and fisheries beyond territorial waters is listed in the union list which simply means that the central government is competent to legislate on this item, fisheries generally is listed in the state list which means that the state governments have the exclusive power to make laws with respect to the items listed in the state list. A combination of these two items makes it clear that the jurisdiction over the maritime zones in respect of fishing is clear between the centre and the state. While the state has a jurisdiction over fisheries within 12 nautical miles, it is the central government which regulates fishing and fisheries beyond territorial waters i.e. beyond 12 nautical miles.
Article 297 of the Constitution follows the property and proprietary interest of the nation state, wherein the sovereign powers of the Union over things of value within territorial waters or continental shelf or resources of the exclusive economic zone is underlined. However, the property regime does not take away the legislative competence of the Centre and the State under Article 246. The above stated jurisdictional limits of the Centre and the State over fisheries resources in the marine areas need to be looked at in this light.
Short questions
1. Explain the division of subjects related to fisheries among various ministries and departments
2. What are the articles in Indian Constitution which are related to fisheries
3. Why labour laws are important for fisheries