JUDGMENT 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. 3. 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). 3. 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. 4. 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. 5. Before proceeding to examine these and other contentions, it is necessary to notice that the validity of the corresponding Tamil Nadu enactment, said to be of a similar nature and fashioned after the model bill of the Central Government, was challenged before the Supreme Court in Writ Petition No. 9762/83, and that it was rejected in limine on 4-10-83, with a speaking order. The enactment impugned herein is technically at least different; and Mr. G. Ramaswamy assures us that some of the grounds urged here are entirely new and different. The enactment impugned herein is technically at least different; and Mr. G. Ramaswamy assures us that some of the grounds urged here are entirely new and different. That appears to be so, but the observations of their lordships of the Supreme Court, and even the very fact that the question of legislative competence was examined by the Court, cannot be ignored. 6. As for the first ground based on the distinction between 'fishing' and 'fisheries', the argument is that while entry 57 List I ("fishing and fisheries beyond the territorial waters") refers to both the subjects, entry 21 List If is limited to 'fisheries' only, suggesting thereby that the two subjects are different. Reference is also made to (i) the Indian Fisheries Act, 1897 (ii) The T. C. Fisheries Act, 1950 (iii) the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 and (iv) the impugned Kerala Act, to contend that while the first two are in pith and substance laws on fisheries, the last two are laws on fishing. Legislative practice, it is said, has been to maintain the distinction. Further support for the proposition is also sought to be drawn from the meanings attributed to the two terms in different dictionaries. 7. According to Websters' Third New International Dictionary (Vol. I) 'fishery' means "the act, process, occupation, or 'season of taking fish or other sea products", and also "a place for catching fish". Shorter Oxford English Dictionary includes both the business of catching fish and fishing ground, within the meaning of the term. According to Black's Law Dictionary, fishery' means "business or process of catching fish", as also a "hatchery". Most of the dictionaries also indicate that the legal connotation of fishery' is the "right to take fish" or "the right of fishing in certain waters". Thus, both fishing and the place where fish is found or grown, are included in the concept of 'fishery'. 8. As to the legislative practice supposed to underlie the four enactments mentioned, what we find is that the attempt in all of them is to control and regulate fishing operations by prescribing from what grounds, at what times and by what methods fish could be caught. 8. As to the legislative practice supposed to underlie the four enactments mentioned, what we find is that the attempt in all of them is to control and regulate fishing operations by prescribing from what grounds, at what times and by what methods fish could be caught. S.(4) and (5) of the Indian Fisheries Act of 1897 prohibit the use of explosives and poison for catching fish, and S.6 confers power on the Government to make rules regarding erection of engines, dimensions and kinds of nets to be employed and the modes of using them. S.6(4), in particular, empowers the making of roles to prohibit "all fishing" in any specified waters for a period not exceeding two years. The provisions of the T. C. Act of 1950 are similar, with the difference that the statute itself (S.3) provides for declaring "a closed time" and for licensing the "capture of fish" during such time. The crucial provisions of S.4 of the impugned Kerala Act are also designed to regulate fishing operations in the territorial waters by specifying what kinds of fish could be caught, what types of gears could be used and what classes of vessels could be employed, having regard to certain specified matters. The Maritime Zones Act (Central Act 42/81) also seeks to regulate fishing in the territorial waters and the sea adjoining, with a view to prevent foreign vessels from poaching into those waters, to the detriment of "our fishermen". The only difference is that while the first two enactments deal with fishing and fisheries in inland waters (subject to an exception to be noticed later), the other two deal with the same matters, in their application to territorial waters and the open sea. They do not maintain, so far as we could see, any dichotomy between 'fishing' and 'fisheries'. 9. The next question is whether the sweep of entry 21 List II should be restricted by comparing it with entry 57 List I. Deduction, induction, analogy, reasoning by specific example and the like are no doubt tools in the hands of the court to discover the true meaning of statutes and statutory expressions; however such rules of construction have to be applied with caution when trying to delimit the scope of an entry in the Lists of the VIIth. Schedule. Schedule. The Constitution may be a statute in one sense, but it is also a law which enables the making of other laws. Statutory interpretation is concerned with the exercise of legislative power, constitutional interpretation, with the availability and extent of that power. Entries in the Lists do no more than indicate the outlines of the powers granted; they do not do so with the precision and details of a code. The purpose of enumeration is to a name a subject, a field of legislation, for assigning it to one of the legislatures; the purpose is not to draw up a list of subjects with scientific accuracy, or to allocate legislative powers by way of logical definition. Dealing with the -assignment of "matters" to the Parliament and the Provincial legislatures under Sections 91 and 92 of the Canadian Constitution, Viscount Haldane said: (John Deere Plow v. Wharton - AIR 1914 PC 174 .) "The language of these Sections and of the various heads which they contain obviously cannot be construed as having been intended to embody the exact disjunctions of a perfect logical scheme.................. if there is at points obscurity in language, this may be taken to be due, not to uncertainty about general principle, but to that difficulty in obtaining ready agreement about phrases which attend the drafting of a legislative measure by large assemblages. It may be added that the form in which provisions in terms overlapping each other have been placed side by side shows that those who passed the Confederation Act intended to leave the working out and interpretation of these provisions to practice and judicial decisions". It is a well known rule of interpretation that when two words are coupled together, one of which generally includes the other the more general term is used in a sense excluding the specific one; but Spens C. J. declined to apply this rule in M. S. Bhattar v. R. S. Naidu (AIR 1947 FC1), on the ground that this principle was not kept in view in drafting a large number of items in the legislative list of the Government of India Act, 1935. The learned Chief Justice said: "If is true that the general principle referred to earlier in this judgment and taken from Maxweil on the Interpretation of Statutes may often be properly applied. The learned Chief Justice said: "If is true that the general principle referred to earlier in this judgment and taken from Maxweil on the Interpretation of Statutes may often be properly applied. But all such general principles of construction must yield to definite indications in the context that the portions of an enactment to be construed have not been drafted on the basis of any such principle". Art.367 of our Constitution itself recognises the validity of such approach when it specifies that the principles of statutory interpretation are to be applied "unless the context otherwise requires". Gwyer C. J. also emphasised the aspect relating to the context and the facts as distinct from the abstract and general considerations, when observing that: In are (C. P. Motor Spirit Act AIR 1939 FC 1.) "the question before the court is not how the legislative powers are theoretically capable of being construed, but how they are to be construed here and now in the Constitution Act". In Banarsi Das v. Wealth Tax Officer ( AIR 1965 SC 1387 .) Gajendragadkar C. J. had sounded the following note of warning:- "Another rule of construction which is also well established is that it may not be reasonable to import any limitation in interpreting a particular Entry in the List by comparing the said Entry or constrasting it with any other Entry in that very List. While the Court is determining the scope of the area covered by a particular Entry, the court must interpret the relevant words in the Entry in a natural way and give the said words the widest interpretation. What the Entries purport to do is to describe the area of legislative competence of the different legislative bodies, and so it would be unreasonable to approach the task of interpretation in a narrow or restrictive manner." Comparison with entries in other Lists may perhaps be justified when it is necessary to prevent conflicts with exclusive jurisdictions or when an Entry in one list is made 'subject to' an entry in another, and in similar circumstances. In the absence of such exceptional circumstances, the limits of 'fisheries' in Entry 21 List II have to be fixed by construing the expression in its natural sense, giving it the widest amplitude, as outlining the boundaries of a field of legislation in an organic document - "a living tree" -, and not by examining how the expression stands in juxtaposition to other entries in the same List or the other Lists. The power assigned to Parliament under Entry 57 List I operates outside the territorial waters, so that even if comparison is desirable, the power to legislate on that matter in respect of territorial waters should be found in favour of the States, if it is otherwise permissible, and if the language of the State Entry is otherwise comprehensive. Entry 21 List II is not subject to any entry in List I. There is also no scope for conflict of jurisdictions, because the two entries operate in different fields. 10. That 'fisheries' can comprehend 'fishing' also in the context of distribution of legislative powers in a federal scheme, is clear from decided cases in Canada, Australia and India. 11. Sec. 91 of the British North America Act, 1867 conferred exclusive power on the Parliament of Canada to legislate in respect of certain classes of subjects, including:- (3) the raising of money by any mode or system of taxation. * * * * and (12) Sea coast and inland fisheries. The power to legislate on "Property and Civil rights in the Province" was conferred on the Provinces, under item (13) of Sec. 92. In A.G. for Canda v. A. G. for Ontario (1898 AC 700) the Privy Council held that in view of item (12) under S.91, the exclusive power to legislate on fisheries should be found in the Dominion Parliament and not in the Provinces, though proprietary rights in relation to fisheries would remain a subject for legislation by the Provinces, in view of item (13) under S.92. After having said so, their lordships added:- "At the same time, it must be remembered that the power to legislate in relation to fisheries does necessarily to a certain extent enable the legislature so empowered to affect proprietary rights. After having said so, their lordships added:- "At the same time, it must be remembered that the power to legislate in relation to fisheries does necessarily to a certain extent enable the legislature so empowered to affect proprietary rights. An enactment, for example, prescribing the times of the year during which fishing is to be allowed, or the instruments which may be employed for the purpose .....................might very seriously touch the exercise of proprietary rights, and the extent, character and the scope of such legislation is left entirely to the Dominion Legislature. The suggestion that the power might be abused so as to amount to a practical confiscation of property does not warrant the imposition by the courts of any limit upon the absolute power of legislation conferred. The supreme legislative power in relation to any subject matter is always capable of abuse, but it is not to be assumed that it will be improperly used; if it is, the only remedy is an appeal to those by whom the legislature is elected". * * * * "In addition, however, to the legislative power conferred by the 12th item of S.91, the 4th item of that Section confers on the Parliament of Canada the power of raising money by any mode or system of taxation. Their Lordships think it is impossible to exclude as not within their power the provisions imposing a tax by way of licence as a condition of their right to fish". What is significant to note is that Parliament's power to legislate in respect of 'fisheries' was held to include the power to prescribe times of fishing and the instruments to be used for the purpose, and also the power to introduce licensing of fishing. In other words, 'fisheries' was wide enough to include 'fishing', even if there was the danger of such legislations encroaching upon a Provincial Subject under S.92. 12. One of the questions in A. G. for Canada v. A. G. for British Columbia (1930 AC 111) was whether a legislation on 'fisheries' could extend to the licensing of fish cannery or canning establishments, so as to include within the scope of the expression all operations for converting the fish caught into some form of marketable commodity. 12. One of the questions in A. G. for Canada v. A. G. for British Columbia (1930 AC 111) was whether a legislation on 'fisheries' could extend to the licensing of fish cannery or canning establishments, so as to include within the scope of the expression all operations for converting the fish caught into some form of marketable commodity. The Privy Council answered it in the negative, holding at the same time that all operations involving 'fishing' or the catching of fish would be so covered. Their lordships added: "It may be, though on this point their Lordships express no opinion, that effective fishery legislation requires that the Minister should have power for the purpose of enforcing regulations against the taking out of unfit fish or against the taking of fish out of season, to inspect all fish canning or fish curing establishments and require them to make appropriate returns. Even if this were so the necessity for applying to such establishments any such licensing system as is embodied in the Sections in question does not follow". The case was a classical judicial attempt to hold the reins loose so as to recognise wide powers under the head 'fisheries', but not so loose as to permit encroachment into regions clearly outside its scope. 13. S.51 of the Commonwealth of Australia Constitution Act, 1900 empowered the Commonwealth Parliament to legislate on "Fisheries in Australian waters beyond territorial limits"; and in Bonser v. La Macchia (122 CLR 177), it was argued that control on fisheries was different from control on fishing Barwick C. J. rejected the contention in the following words:- "The last submission of the defendant was that to legislate to control fishing was not to make a law with respect to fisheries. The point needs no discussion for, in my opinion, it completely lacks substance. The most direct way to protect a fishery is to regulate how and to what extent waters may be fished", Windayer J. observed:- "The argument for the defendant sought to give the word 'fisheries' a narrow meaning. I am not sure that I understood exactly what meaning-and to exclude control of fishing operations from the constitutional power. But the proposition surely cannot be right. In law a fishery means, and since the Middle Ages..................it has meant, the right or liberty, of the public or a particular person, of fishing in specified waters. I am not sure that I understood exactly what meaning-and to exclude control of fishing operations from the constitutional power. But the proposition surely cannot be right. In law a fishery means, and since the Middle Ages..................it has meant, the right or liberty, of the public or a particular person, of fishing in specified waters. When that is understood, it is apparent that the constitutional power is to make laws defining rights of fishing in Australian waters. It follows that the power enables the Parliament to prescribe conditions for the exercise of the right or liberty. I can see no basis at all for the suggestion that provisions prescribing the size of the fish that may lawfully be taken, or nets that may lawfully be used, are not laws with respect to fisheries. Such laws have for centuries past been a common feature of the statute law of England governing fisheries". 14. Item 24 of the Provincial List of the Government of India Act, 1935 was "fisheries", and in United Provinces v. Atiqa Begum, (AIR 1941 FC 16) the Federal Court said;- "Item 24 is 'fisheries'; could it reasonably be argued that this only included the regulation of fishing itself and did not include the prohibition of fishing altogether in particular places or at particular times?" For Sir Maurice Gwyer at least, it was unthinkable that any one could suggest that 'fisheries' was different from and unconnected with 'fishing'. 15. In this view of the matter, there is hardly any scope for examining the contention that the power to legislate on fishing should be found in Entry 97, List I read with Art.248 of the Constitution, following the approach made by the Supreme Court in Union of India v. H. S. Dhillon ( AIR 1972 SC 1061 .) The question there was about the competence of Parliament to impose wealth tax on the capital value of agricultural land, and the court held that the question to be asked in such cases was whether the matter fell under any Entry in Lists II and III; if it did not, Parliament had power to legislate on the subject, in view of the residuary provisions. We are here concerned not with the legislative power of Parliament, but with the power of , the State legislature; and once it is found, on the authorities cited, that 'fishing' is part of 'fisheries', no further enquiry is called for. 16. Arguments on the second ground relating to territorial waters and Art.245(1) covered a wide range of topics such as the concept of sovereignty, the rules of international law, the principles of extra territoriality, the effect of the Geneva Convention on the Territorial Sea, the scope of Art.297 of the Constitution, and the legal position emerging from the enactment ' of Central Act 80/76. Constitutional theories, and even rules of international law, have been gradually developing over the last three centuries under the influence of a variety of historical circumstances. With the emergence of naval power, nations of the world started asserting certain rights over the seas adjoining their coasts. In the case of England whose early predominance in naval affairs was a fact of history, these assertions slowly extended to non-coastal waters in around colonies also. It was not unusual for Great Britain to claim sovereignty over the "four seas", or the "British seas" though in course of time, it was found wiser to temper such claims with the commercial interests of other nations. International law recognised the right of innocent passage, even when it recognised certain special rights in favour of littoral states. The growth of prize law, and of the rules relating to the rights of neutral ships in times of hostility, ultimately combined to bring about some moderation in respect of all such tall claims. Domestic or municipal law, based on the feudal concept that all title to land originates from a grant by the Crown and that the Crown's right over the foreshore is subject to the public right of navigation and fisheries, also contributed to this development. Questions connected with the extent of Crown prerogative and its effect upon the grant of self government to colonies also came to the fore in countries like Canada, Australia, India and even the United States, which were at one time or other, under British control. The result of this development has not been satisfactory at least in the matter of clear-cut legal principles, and that perhaps accounts for the divergent views expressed in decisions and text books on the subject. 17. The result of this development has not been satisfactory at least in the matter of clear-cut legal principles, and that perhaps accounts for the divergent views expressed in decisions and text books on the subject. 17. Broadly stated, two views have been competing for supremacy in this area. Sovereignty, 'a much abused word' according to Brierly (See Brierly 'The Law of Nations') is supposed to denote that supreme power by which any state is governed. That power is exercised both internally and externally. Internal sovereignty is inherent in the people of a State, and is vested in its ruler, government or governments, by its municipal constitution. Laws relating to internal sovereignty pertain to the realm of internal public law, or constitutional law. External sovereignty is to be found in the independence of one political society from every other political society, and it is by exercise of this branch of sovereignty that its international relations are regulated. This branch of the law is called external public law or international law. One view regarding rights over territorial waters is that no literal state has rights over such waters except those recognised by international law, and that municipal courts cannot regard those waters as the territory of the state, unless that part of international law is made part of the municipal law by appropriate legislation or constitutional amendments. Another view is that international law is not concerned at all with the distribution of internal sovereignty-that is a matter for the constitutional law of a state to decide. If the internal public law of a state is clear on the status of territorial waters, the municipal courts are bound to give effect to it, without enquiring further as to whether international law recognises it or not, 18. The most important case where these two views came into sharp conflict was Reg v. Keyn (1876) 2 Ex. D. 63 where Keyn, the German Captain of a German Vessel, was charged with manslaughter in connection with the collision of his ship with a British vessel, within three miles of the English coast. The question was whether the Central Criminal Court had jurisdiction to try the captain of a foreign vessel, for offences committed within the three-mile limits. D. 63 where Keyn, the German Captain of a German Vessel, was charged with manslaughter in connection with the collision of his ship with a British vessel, within three miles of the English coast. The question was whether the Central Criminal Court had jurisdiction to try the captain of a foreign vessel, for offences committed within the three-mile limits. Cockburn C. J. said:- "To sustain this indictment the littoral sea must still be considered as part of the high seas, and as such, under the jurisdiction, of the admiral. But the admiral had never jurisdiction over foreign ships on the high seas. How, when exercising the function of a British Judge, can he, or those acting in substitution for him, assume a jurisdiction which heretofore he did not possess, unless authorised by statute? On the other hand, if this sea is to be considered as territory, so as to make a foreigner within it liable to the law of England, it cannot come under the jurisdiction of the Admiral". The Central Criminal Court was exercising what was earlier known as the Admiral's jurisdiction. The Admiral had jurisdiction over high seas, but not over foreign ships in the high seas, under the laws of England. On the other hand, if the sea was to be treated as part of English territory, then also the admiral had no jurisdiction to try the matter, under English law. The question was mooted whether the territorial sea could be considered as English territory, and the majority took the view that until and unless an Act of Parliament declared it to be so, the municipal courts could not act merely on principles of international law. Lush J. explained the position in the following terms:- " ........I think that usage and the common consent of nations, which constitute international law, have appropriated these waters to the adjacent State to deal with them as the State may deem expedient for its own interests. They are, therefore, in the language of diplomacy and of international law, termed by a convenient metaphor the territorial waters of Great Britain, and the same or equivalent phrases are used in some of our statutes denoting that this belt of sea is under the exclusive dominion of the State. But the dominion is the dominion of Parliament, not the dominion of the common law. That extends no further than the limits of the realm. But the dominion is the dominion of Parliament, not the dominion of the common law. That extends no further than the limits of the realm. In the reign of Richard II, the realm consisted of the land within the body of the counties. All beyond low water mark was part of the high seas. At that period the three-mile radius had not been thought of International law, which, upon this subject at least, has grown up since that period, cannot enlarge the area of our municipal law, nor could treaties with all the nations of the world have that effect. That can only be done by Act of Parliament. As no such Act has been passed, it follows that what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now; and upon the high seas the Admiralty jurisdiction was confined to British ships. Therefore, although, as between nation and nation, these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must in my judgment be authorised by an Act of Parliament." The majority was by seven to six; and its view did not find universal acceptance among critics and courts. An edition of Wheaton (Elements of International Law) published soon after the decision had this to say about the majority decision:- "This case decides that by English law as at present administered, no jurisdiction is claimed over criminal offences committed beyond low water-mark, unless they have taken place on board a British ship, or waters admitted on all hands to be territorial, such as ports, harbours, bays etc. But it still remains a doubtful question, whether any portion of the open sea maybe claimed as part of the territory, and if so to what extent, and to what purposes, it may be so claimed". But it still remains a doubtful question, whether any portion of the open sea maybe claimed as part of the territory, and if so to what extent, and to what purposes, it may be so claimed". In Secretary of State v. Chellikani Ramarao ( AIR 1916 PC 21 ) the Privy Council said that Keyn's case "had reference on its merits solely to the point as to the limits of admiralty jurisdiction", and observed: "It should be added, with reference to the suggestion that the territory of the Crown ceases at low water-mark, and that the right over what extends seawards beyond that is merely of the nature of jurisdiction or the like, that there are manifest difficulties in seeing what are the grounds for this principle". It is also necessary to remember that the majority view in Keyn was superseded by the Territorial Waters Jurisdiction Act, 1878 which granted to the courts the jurisdiction which the minority thought they had. The declaratory form of the enactment, in the opinion of a few, was evidence that according to the legislature, the view taken by the minority was the right one. Suffice it to say for the present that the controversy persists even to these days, as will be seen from some of the decisions to be hereinafter referred to. 19. Turning to the specific contentions raised by the petitioners in this behalf, it can be summarised as follows. Art.297(1) of our Constitution vests "all lands, minerals and other things of value underlying the ocean within the territorial waters" in the Union, which alone, as distinct from the States, is an international person. Clause (3) of the Article empowers Parliament by law to specify the limits of the territorial waters. The Convention on Territorial sea provided that the sovereignty of a State would extend, beyond its land territory and internal waters, to a belt of sea adjacent to its coast. In pursuance of the above Convention, Parliament passed the "Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976" (Central Act 80/76), S.3 of which read as follows:- "3. Sovereignty over, and limits of, territorial waters. (1) The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over such waters. Sovereignty over, and limits of, territorial waters. (1) The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over such waters. (2) The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline. (3) Notwithstanding anything contained in sub-s.(2), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the territorial waters. (4) No notification shall be issued under sub-s.(3) unless resolutions approving the issue of such notification are passed by both Houses of Parliament". The above declaration by Parliament, tested in the light of Art.297, had the effect of converting all territorial waters of India into a territory of the Union, that is, a territory "acquired" within the meaning of Art.1(3)(c), and different from the territories of the States and of the Union Territories in the First Schedule. Only the Union, and not the States, could exercise jurisdiction over such a territory. Therefore, Parliament alone is competent to make laws regulating fishing and fisheries in that territory. At any rate, the States legislature has no jurisdiction, as it is not part of the territory of the State. 20. We think there could be more objections than one, to this line of approach. In the first place, Art.297 only vests in the Union, things of value underlying the territorial waters; this is different from saying that the territorial waters would be 'territories' within the meaning of Art.1(3)(c). On a close examination of Articles 294, 295 and 296 which precede Art.297, and all of which appear in Chapter III of Part XII, it seems to be clear that Art. 297 was intended to deal with property rights in respect of land, minerals and other things underlying the ocean. In A. M. S. S. V. M. & Co. v. State of Madras ( AIR 1954 Mad. 291 Venkataratna Iyer J (as he then was) said that the effect of the Article was to vest in the Union the sea-bed beneath the territorial waters, and not the waters themselves. In A. M. S. S. V. M. & Co. v. State of Madras ( AIR 1954 Mad. 291 Venkataratna Iyer J (as he then was) said that the effect of the Article was to vest in the Union the sea-bed beneath the territorial waters, and not the waters themselves. Assuming for a moment that the provision takes in everything comprised in the territorial waters, including the waters, it is still difficult to see how a scheme for vesting certain property rights in the Union can be equated to acquisition of territory. It cannot be overlooked that the provision relating to territorial waters in Art.297 was there in the Constitution from its very commencement; if the intention of its framers was to treat either the waters or the land underneath (or both) as the territory of India, appropriate indication to that effect would have been given in Art.1 (3) itself. They would not have left it as something to be inferred from Art.297. That apart, the distinction between proprietary rights and legislative distribution referred to by Lord Hersehell in A. G. for Canada v. A. G. for Ontario (1898) A. C. 700, has to be kept in mind. A provision for vesting certain proprietary rights in the Union cannot amount to an indirect or implied constitutional declaration that those right are to be regarded as territory of the Union and that exclusive legislative power over the territory will belong to the Union. 21. In the second place, what Sec. 3 of Act 80/76 did was only to declare that the "sovereignty of India" extended to its territorial waters. Sovereignty of India does not mean sovereignty of the Union Government, or exclusive legislature power of the Union legislature. The sovereignty of India includes the sovereignty of the constituent units of the Federation also, so long as India is a Union of States. The Section, it is also significant to note, did not say that the territorial waters would constitute part of the territory of India, even if it is possible to assume that a mere Act of Parliament is sufficient to do so. The observations of Lush, J in Keyn's ( (1876) 2 Ex. Ch. D. 63.) case, applicable to a country where Parliament is supreme, cannot wholly be applied to our federal structure founded on a written constitution. 22. The observations of Lush, J in Keyn's ( (1876) 2 Ex. Ch. D. 63.) case, applicable to a country where Parliament is supreme, cannot wholly be applied to our federal structure founded on a written constitution. 22. Under Art.297(3), Parliament can fix the limits of the territorial waters, from time to time, "by or under any law". That is, such fixation can be made by a mere notification under Act 80/76. If these provisions are to be construed as creating a new kind of territory which must necessarily form part of the territory of India by virtue of Art.1(3), we will be reaching an unusual constitutional situation where the extent of India's territory will depend on mere majority-resolutions of Parliament and notifications issued on their basis. This is another possible objection to accepting the contentions of the petitioners under this head. 23. In this connection, it may not be irrelevant to notice that in the opinion of the Majumdar Committee, delimitation of fishing zones in the territorial waters had to be done by means or a Central legislation under Art.297 read with Entry 32 of the Union List. The law Ministry was apparently aware that neither Art.297 nor Entry 32 conferred such power on the Centre. At the hearing before us, the Central Government Pleader also supported the State's case that the matter was within its exclusive jurisdiction, notwithstanding the constitutional provisions referred to. 24. Reference was made to the debates in the Constituent Assembly on Draft Art.271A, which was subsequently adopted as Art. 297, to contend that the intention was to unequivocally declare that the territorial waters of India "belonged" to the Union and that the States would have no rights over them. Reliance on the debates may not be permissible for construing the meaning and scope of the Article, but the historical background may be relevant. It is no doubt true that in the course of the discussion Vol. 8, pp. 887-893. Dr. Ambedkar had spoken as follows;- "Ordinarily it is always understood that the territorial limits of a State are not confined to the actual physical territory but extend beyond that for three miles in the sea. That is a general proposition which has been accepted by international law. Now the fear is I do not want to hide this fact-that if certain maritime States such as, for instance. That is a general proposition which has been accepted by international law. Now the fear is I do not want to hide this fact-that if certain maritime States such as, for instance. Cochin, Travancore or Cutch came into the Indian Union, unless there was a specific provision in the Constitution such as the one we are trying to introduce, it would be still open to them to say; ''Our accession gives jurisdiction to the Central Government over the physical territory of the original States; but our territory which includes territorial waters is free from the jurisdiction of Central the Government and we will still continue to exercise our jurisdiction not only on the physical territory, but also on the territorial waters, which according to the International Law and according to our original status before accession belong to us." We therefore want to state expressly in the Constitution that when any maritime States join the Indian Union, the territorial waters of the Maritime State will go to the Central Government. That kind of question shall never be subject to any kind of dispute or adjudication That is the reason why we want to make this provision in Art.271A." But in answer to repeated questions from members about the States' rights to catch fish, collect 'chank' etc., Dr. Ambedkar had also clarified that the entry relating to "fisheries" in List II was sufficient to protect those rights. To a pointed question 'from the late Mr. Pattom A Thanu Pillai representing Travancore, Dr. Ambedkar replied: ".....................fisheries would continue to be a provincial subject even within the territorial waters of India". When Mr. Ananthasayanam Ayyangar wanted the inclusion of the waters themselves, apart from things underlying the waters, within the scope of the Article, Dr. Ambedkar quipped: "what do you want to own the water for?" The discussions, at any rate, do not support the contention that the Article was intended even to exclude fisheries legislations from the jurisdiction of the States. 25. Another line of argument was that Articles 246(4) and 366 (30) would suggest that the framers were thinking of a territory of the Union, other than the Union Territories specified in the First Schedule. That they were visualising 'acquisition' of additional territories is clear from Art.1(3)(c) itself. Acquisition of territories by a nation usually takes place by cession, conquest, subjugation and accretion, and not by legislation. That they were visualising 'acquisition' of additional territories is clear from Art.1(3)(c) itself. Acquisition of territories by a nation usually takes place by cession, conquest, subjugation and accretion, and not by legislation. That apart, Art.246(4) deals with legislative powers over Union Territories (and probably acquired territories also), and a scheme for distribution of such powers cannot involve the very creation of such territories. Art.366(30) is designed to bring under Part VIII certain territories which may not be Union Territories within the meaning of the First Schedule. 26. It was then contended that the provisions of the Maritime Laws of India (Regulation of Fishing by Foreign Vessels) Act, 1981 would show that what ever might have been the view prior to 1976, the Centre has started asserting jurisdiction over the territorial waters even in respect of fishing, as a result of the Geneva Convention and the passing of Act 80/76 in pursuance thereof. We are unable to hold that Central Act 42/81 is in pith and sub-stance a law regulating all fishing and fisheries in the territorial waters. For one thing, it is directed against poaching by foreign Vessels, as already noticed. For another, it operates beyond the limits of the territorial waters also. Even assuming that there is some conflict between the exclusive jurisdiction of the State and of the Centre under Entry 21 List II and Entry 57 List I respectively, in so far as the Central Act purports to regulate fishing by foreign vessels within the limits of the territorial waters, the same could be resolved by applying the well known doctrine of incidental encroachment. As for the Coast Guards Act, 1978 which was another enactment relied on in support of the same contention, it is obviously a legislation relatable to the latter part of Entry 2 in Last I, and not to any other matter. 27. It is also not proper to assume that sovereignty over territorial waters is a concept newly introduced or developed by the Geneva Convention of 1958. That concept, and assertion by littoral states of certain special rights in their territorial waters, are at least three centuries old. There might have been difference of opinion in legal circles about the nature of these special rights, but the majority of writers were always for regarding these rights as amounting to sovereignty. That concept, and assertion by littoral states of certain special rights in their territorial waters, are at least three centuries old. There might have been difference of opinion in legal circles about the nature of these special rights, but the majority of writers were always for regarding these rights as amounting to sovereignty. The practice of the states also accorded with this view, though there was no unanimity about the breadth of this belt. It was initially thought to be equivalent to the range of shore batteries, and by the end of the 18th century, there was some kind of consensus among nations that the same would be about three miles or one marine league. The Air Navigation Convention of 1919 defined State territory as including the territorial waters adjacent to a State. Although the Hague Conference of 1930 did not adopt any Convention on territorial waters, the attitude of the nations during its preparatory work was in favour of treating the territorial waters as territories of the States. The importance of the 1958 Convention was that the nations which attended the Conference came to some sort of agreement, for the first time, specifically on the question of sovereignty. That did not mean that those nations were not asserting sovereignty over their territorial seas prior to 1958 or that the entire concept had no prior recognition in inter uational law. S.3 of Act 80/76 is itself clear on the point that the sovereignty of India "has always-extended to the territorial waters of India" and that it was not something being claimed or asserted for the first time in 1976. 28. Reference has already been made to the decision of the Madras High Court in the A. M. S. S. V. M, & Co. case (AIR 1954 Mad, 291). Following rules of international law which were not seriously in dispute even at that time, the court there took the view that the territorial waters adjoining a littoral state could be regarded as part of the territory of the state, at least with reference to rights of fishery. Mr. Ramaswamy took objection to this view on the ground that for applying the rules of international law, a state must be a nation or an international person with full internal and external sovereignty, and that a Province or a State within a federation has no such status. Mr. Ramaswamy took objection to this view on the ground that for applying the rules of international law, a state must be a nation or an international person with full internal and external sovereignty, and that a Province or a State within a federation has no such status. There cannot be two sovereigns in respect of the same territory it was suggested. The position is not so very clear, at least in relation to federal states. Oppenheim (International Law", 6th Edn., Vol. I, PP. 452-453. notes.-- "'The supreme authority which a State exercises over its territory would seem to suggest that on one and the same territory there can exist one full sovereign state only, and two or more full sovereign states on one and the same territory are an impossibility. On the other hand, it is difficult to ignore the fact that, as shown above, sovereignty may in practice be divisible. This explains the exceptions - some real and some apparent - to the rule of exclusiveness of a single sovereignty over the same territory". And one of the exceptions specifically dealt with is in relation to the territory of a federal state:- "As a Federal State is considered itself a state side by side with its single member States, the fact is apparent that the different territories of the single-member States are at the same time collectively the territory of the Federal State. That is the consequence of the fact that sovereignty is divided between a Federal State and its member-States". (p. 459) If the territorial waters along the coast of a member-State of a federation could be treated, as the territory of that member-State on the principle stated above, it is clear that the Kerala State can legislate on 'fisheries' comprised in the territorial waters also, without offending rules of extra territoriality. 29. But what, if the above principle is in doubt, and if the territorial Waters are not to be regarded as part of the territory of the State of Kerala? Under Art.245(1) of the Constitution a State legislature can make laws only for the whole or any part of the State. Unlike a law made by Parliament, governed by clause (2) of the said Article, a State legislation having extraterritorial operation cannot be treated as valid. Under Art.245(1) of the Constitution a State legislature can make laws only for the whole or any part of the State. Unlike a law made by Parliament, governed by clause (2) of the said Article, a State legislation having extraterritorial operation cannot be treated as valid. That however does not mean that every state law which may have effect on man, things and events outside its territory is bad for extra territoriality; such laws will be valid if there is sufficient territorial nexus between the state and the persons, things or events to which they are sought to be applied. That is because any legislature with plenary powers should have the power to make laws on circumstances which really and in substance appertain to the State; and it cannot be disputed that the State legislatures under our Constitution have such plenary powers within their appointed spheres. Dealing with the power of a State legislature to impose taxes on the sale or purchases of goods, Patanjali Sastri C. J. had said, in State of Bombay v. United Provinces ( AIR 1953 SC 252 ) "The power is conferred by Art.246(3) read with Entry 54 of List II of Sch. 7 to the Constitution. The legislature of any State has, under these provisions, the exclusive power to make laws "for such State or any part thereof" with respect to "taxes on the sale or purchase of goods other than newspapers. The expression ''for such State or any part thereof" cannot, in our view, be taken to import into Entry 54 the restriction that the sale or purchase referred to must take place within the territory of that State. All that it means is that the laws which a State is empowered to make must be for the purposes of that State. As pointed out by the Privy Council in Wallace Brothers & Co. Ltd, v. Commr. All that it means is that the laws which a State is empowered to make must be for the purposes of that State. As pointed out by the Privy Council in Wallace Brothers & Co. Ltd, v. Commr. of Income Tax Bombay, AIR 1948 PC 118 (B) in dealing with the competency of the Indian Legislature to impose tax on the income arising abroad to a nonresident foreign company, the constitutional validity of the relevant statutory provisions did not turn on the possession by the legislature of extra territorial powers but on the existence of a sufficient territorial connection between the taxing State and what it seeks to tax." In State of Bombay v. R. M. D. C, ( AIR 1957 SC 699 ) this theory of nexus was applied to a tax on cross word competitions, and it was held: "The doctrine of territorial nexus is well established and there is no dispute as to the principles. As ennmerated by learned counsel for the petitioners, if there is a territorial nexus between the person sought to be charged and the State seeking to tax him the taxing statute may be upheld. Sufficiency of the territorial connection involves a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection. It is conceded that it is of no importance on the question of validity that the liability imposed is or may be altogether disproportionate to the territorial connection. In other words if the connection is sufficient in the sense mentioned above the extent of such connection affects merely the policy and not the validity of the legislation." In Tata Iron & Steel v. Bihar State ( AIR 1958 SC 452 ) S. R. Das C. J. indicated that there was no reason to confine the nexus theory to certain types of tax legislations only. In State of Bihar v. Charusila Dasi ( AIR 1959 SC 1002 ) the court held that the doctrine could be extended to every type of legislation. In State of Bihar v. Charusila Dasi ( AIR 1959 SC 1002 ) the court held that the doctrine could be extended to every type of legislation. And in State of Bihar v. Bhabapritanandn Oja (AIR 1959 S. C. 1073)it was held that a State legislation in respect of a religious endowment cannot be struck down on the ground of extra territoriality for the only reason that a part of the trust property was situated outside the State; the law was applicable to a trust within the State and territorial nexus was not in doubt. 30. We will now turn to a few cases in the United States and Australia where fishery rights of member-States of a federation were considered; and it will be seen that the general trend is to uphold the right of the member-States to regulate fishing and fisheries in the territorial waters, even when the waters and the bed underneath are understood to be the property of the federation. This is of course subject to the powers granted to the federation for other purposes. The position in Canada is different because the exclusive power to legislate on "sea coast and inland fisheries" is vested in the Dominion by the Constitution itself. 31. In Arthur Manchester v. Commonwealth of Massachusetts (139 US 240) the court held that the extent of the territorial jurisdiction of Massachusetts over the sea adjacent to its coast would be that of an independent nation, and that except so far as any right of control over this territory had been granted to the United States, the control remained with the State, so that the State could regulate fishing within those waters, in the absence of regulations made by the United States. 32. The question in United States v. California (332 US 19) was about the ownership of the land and minerals comprised within a three-mile belt off the coast of California. California asserted that even before "the nation was formed" it had been asserting rights in respect of oil deposits in the area. The court found that this assertion was not supported by history, that rights regarding mineral deposits under the sea-coast was a concept which had developed in international law much later, and that it was the nation (and not the States individually or separately) which had been asserting those rights, in the interest of national security and commerce. The court found that this assertion was not supported by history, that rights regarding mineral deposits under the sea-coast was a concept which had developed in international law much later, and that it was the nation (and not the States individually or separately) which had been asserting those rights, in the interest of national security and commerce. It was held that the sea belt belonged to the United States, But Justice Frankfurter entered a powerful dissent:- "Of course the United States has 'paramount rights' in the sea-belt of California the rights that are implied by the power to regulate inter State and foreign commerce, the power of condemnation, the treaty-making power, the war-power. We have not now before us the validity of the exercise of any of these paramount rights. Rights of ownership are here asserted and rights of ownership are something else. Ownership implies acquisition in the various ways ie which land in acquired-by conquest, by discovery by cession, by prescription, by purchase, by condemnation. When and how did the United States acquire this land? The fact that these oil deposits in the open sea may be vital to the security, national and important element, in the conduct of our foreign affairs, is no more relevant than is the existence of uranium deposits, wherever they may be, in determining questions of trespass to the land of which they form part......................of declare that the Government has 'national dominion' is merely a way of saying that vis-a-vis all other nations the Government is the sovereign. If that is what the court's decree means, it needs no pronouncement by this court to confer or declare such sovereignty........................" Pausing here for a minute, it may be pointed out that it was this type of controversy over ownership rights that the framers of our Constitution wanted to avoid, when they introduced Art.297 into our Constitution. 33. But ownership rights by themselves are not sufficient for the Union to deny legislative powers to the States in respect of matters granted to them by the constitutional law of a country. It was this aspect of the matter that had come up for consideration in Toomer v. Witsell (334 US 385) when, relying on the California case, it was contended before the U. S. Supreme Court that the State of South Carolina had no power to legislate in regard to shrimp fishery in the coastal waters. It was this aspect of the matter that had come up for consideration in Toomer v. Witsell (334 US 385) when, relying on the California case, it was contended before the U. S. Supreme Court that the State of South Carolina had no power to legislate in regard to shrimp fishery in the coastal waters. The court rejected this contention and held that the State had the power to regulate fisheries in the area, and that the holding in California was not intended to deny such rights to the literal States. 34. As for Australia, it has already been noticed that under S.51 of the Commonwealth of Australian Constitution Act, the power to legislate on "fisheries in Australian waters beyond territorial limits" is with the Commonwealth Parliament. According to quick and Garran ("Annotated Constitution of the Australian Commonwealth") the scheme of federation had allowed the States "to retain the control of fisheries within their territorial limits whilst the Federal Parliament was assigned jurisdiction over fisheries in Australian waters beyond the three-mile limit". Despite this statement the meaning of the phrase 'territorial limits' was frequently in dispute, and one of the questions in Bonzer v. La Macchia (122 CLR 177) was about the extent of these limits. Some of the judges took the view that the former colonies had never acquired sovereignty over the coastal waters, that their territories stopped at low-water mark, and that sovereignty over the area was acquired for the first time by the Commonwealth itself, after the formation of the federation and some time after the Statute of Westminster, 1931. Some others were of the view that the territorial competence of the colonies/States had always extended to a three-mile limit from the coast. This controversy may not be material for our purposes here, but the opinions expressed regarding the rights of the States to regulate off-shore fisheries are relevant. After observing that "the colonies were never at any stage international personae nor sovereign", Barwick C.J. said:- "Of course the colonies were competent to make laws which operated ettra-territorially that is to say, beyond their land margins and in and on the high seas, not limited to the three mile belt of the territorial sea. After observing that "the colonies were never at any stage international personae nor sovereign", Barwick C.J. said:- "Of course the colonies were competent to make laws which operated ettra-territorially that is to say, beyond their land margins and in and on the high seas, not limited to the three mile belt of the territorial sea. But this legislative power of the colony was derived, in my opinion, from the plenary nature of the power to make laws for the peace, order and good government of the territory assigned to the colony". Kitto, J. was for holding that the very conferment of fisheries power on Parliament restricted to an area beyond the territorial limits implied a historical and legal recognition of the rights of the colonies, even at the time of federation, to exercise fishery powers within those limits. It was observed:- "It seems clear that the Constitution was framed upon the assumption that the federating colonies had, and as States would continue to have legislative power as to fisheries over some part of the waters washing their shores. From a mere reading of S.51(x) the intention may, I think, be inferred that some law-making power in respect of a limited area of the sea belonged to the colonies and should be preserved to them as States of the Commonwealth, so that any colonial or State laws, made in exercise of that power should not be liable to be superseded by federal laws on the subject of fisheries". Windeyer J. who agreed with the view of Barwick C.J. that the colonies/States had no sovereignty over the territorial waters, either before federation or afterwards, took care to explain:- "......................I would make it clear that I do not intend by anything that I have said to deny validity to the legislation of any Australian State regulating off-shore fishing so far as it is not inconsistent with any valid Commonwealth law. Subject to that, I do not question that State law can regulate the size of nets to be used by residents of Australia who fish in sea-waters adjacent to the coast of the State, just as it can prescribe the size of bathing costumes to be worn by those who swim in the surf. But that is not because of any right either of sovereignty or property in the open seas or the bed of the sea. But that is not because of any right either of sovereignty or property in the open seas or the bed of the sea. It is simply that the State legislature is empowered to make laws for the peace, order and good government of the State; and State here means not merely a territory, but a territory inhabited by people as a political community." And it was added:- "My view therefore is that the legislatures of Australian States have power to make laws about fishing at sea: but saying that does not presuppose that they have any sovereignty over the open sea or any title to the subjacent land of any part of that sea...............The power of a State legislature to make laws which operate upon persons, things and events beyond the State is not limited by three miles of the sea. It depends upon relationship to the State, not upon distance from it on whether the persons concerned, or their transactions, are related to the peace, order and good government of the State." Thus while the Chief Justice and Windeyer J. were for recognising the right on principles of territorial nexus, Kitto, J. was prepared to put it on the wider basis of divided sovereignty. 35. The same divergence of opinion was found in New South Wales v. Commonwealth (1976) 50 ALJ 218 whereby a majority of five to two, the court upheld the validity of the Seas and Submerged Lands Act, 1973. The Act was passed by the Australian Parliament in pursuance of the 1958 Convention on the Territorial Sea; and S.6 of the Act, in a way similar to S.3 of our own Central Act 80/76, contained a declaration that sovereignty in respect of the territorial sea "is vested in and excisable by the Crown in right of the Commonwealth". In the view of the majority, territorial waters were not within the boundaries of the colonies at the time of federation, and it was competent for Parliament, in exercise of the external affairs power of the Commonwealth, to declare that sovereignty over those waters vested in the Commonwealth. In the view of the majority, territorial waters were not within the boundaries of the colonies at the time of federation, and it was competent for Parliament, in exercise of the external affairs power of the Commonwealth, to declare that sovereignty over those waters vested in the Commonwealth. Barwick, C. J. who led the majority was of the view that rights over territorial waters were traceable solely to international law, that the States in Australia were never international persons and that consequently the legislative powers of the States in respect of the area could rest only on the nexus theory. Said the Chief Justice:- "............... ...... it is important to observe and bear in mind that the concept of territorial waters or of a territorial sea derives entirely from international law, based on international comity. It is not a concept which, in my opinion, has any place in the domestic or municipal law of a country. Legislatures, with such plenary power as justifies the making of laws having an operation beyond the territory in respect of which such power exists, are not confined to the making of laws which operate only in the marginal seas. The test or validity of a law having an extra territorial operation is its relationship to the peace, order and good government of the territory for the government of which the legislature has been constituted. If such a law did not so touch and concern that territory it would not be valid simply because it operated in the marginal seas." Gibbs J., on the other hand, was not for placing the States' legislative powers. on such a narrow foundation. Making a broad approach that the existence of a federation as a State and the exercise of its functions as a national government could not enable it to alter at will the distribution of powers made by the Constitution, the learned Judge said:- "However, for the purpose of the municipal law of Australia there exists that division of sovereign authority which is characteristic of, if not essential to, a Federal constitution. All the powers of government are distributed between the Commonwealth and the States. The Convention on the Territorial Sea and the Contiguous Zone deals with sovereignty only for the purposes of international law. All the powers of government are distributed between the Commonwealth and the States. The Convention on the Territorial Sea and the Contiguous Zone deals with sovereignty only for the purposes of international law. It recognises that a coastal State is, for the purposes of international law, sovereign of the territorial sea as it is of its land territory and internal waters, but it is not concerned with the way in which the municipal law of any coastal State distributes its sovereignty or with the question where, according to the constitution and laws of any State, the powers of government are reposed. The Convention recognizes that the sovereignty of Australia extends to its territorial sea; it says nothing as to whether that sovereignty is vested solely in the Commonwealth or is divided between the Commonwealth and the States." Drawing a distinction between State laws some of which could be treated as extra territoritorial in the real sense and consequently liable to be declared as invalid if nexus was not established, and other laws which could be created as territorial, Gibbs J. explained :- "It might be possible to regard some of this legislation as extraterritorial but nevertheless sufficiently connected with the colony to be within power, but that cannot truly be said of all of it. For example, it seems to me that if the deetrine of extra territorial incompetence were logically applied, and unless the waters within the three-mile limit were regarded as part of the colony, a colony would have no more right to prevent foreigners, in foreign boat, from fishing in the territorial sea except under licence than it would to prevent them from hunting in a neighbouring colony. If the territorial sea is outside the colony, how can one justify legislation regulating the exploitation of the minerals under the sea-bed or the pearl-shell upon it?" It is unnecessary to advert to the views expressed by other judges because the question of fishery legislation by the States came up specifically for consideration soon after the above decision. But it is necessary to think of the similarity between the Indian and Australian situations. Like Entry 57 List I of our Constitution, the power to legislate on fisheries beyond the territorial limits is conferred on Parliament, in Australia also. But it is necessary to think of the similarity between the Indian and Australian situations. Like Entry 57 List I of our Constitution, the power to legislate on fisheries beyond the territorial limits is conferred on Parliament, in Australia also. And the combined effect of Art.297 and Act 80/76 in our situation was achieved there by the vesting provisions of the 1973 Act and the declaration of the Australian High Court. Still the court never suggested that the territorial waters would be totally out of bounds for the Australian States in the matter of exercising their own plenary powers of legislation. If the position in India is in any way different, that difference lies in the fact that the power to legislate on fisheries is conferred on the States by Entry 21, List II; there is no such specific counter part in Australia. 36. In the light of the majority decision in the New South Wales case that sovereignty over the territorial waters vested in the Commonwealth, the argument was advance, in Pearce v. Florenca (1976) 50 ALJ 670, that the Fisheries Act of Western Australia had become inoperative after the passing of the Seas and Submerged Lands Act, 1973. A court of six judges unanimously rejected the argument, though the grounds of rejection varied from judge to judge. One view was that the 1973 Act itself contained the necessary saving provisions. Another was that the Commonwealth Act was only declaratory in nature and that the State legislation was not in conflict with its provisions, Gibbs J., however, thought that no question of inconsistency could arise at all between the Fisheries Act of W. A. and the Fisheries Act of the Commonwealth, as the two operated in different areas. Here again, opinions were expressed that the State law could be saved by invoking the theory of territorial nexus. Jacobs J., for example, said. Here again, opinions were expressed that the State law could be saved by invoking the theory of territorial nexus. Jacobs J., for example, said. "Both before and after the passing of the Seas and Submerged Lands Act, 1973 the fact that the waters are Australian waters and the fact that this part of the waters is adjacent to the cost of Western Australia gives that State, as part of Australia, a relationship or nexus with those waters which is in itself sufficient to support the application of the law of Western Australia to those waters provided that that law is intended by the legislature of Western Australia to apply to those waters and provided that it is not inconsistent with a law of the Commonwealth itself." 37. What emerges from the above discussion is this. Art.297 was not intended to create any new territory as "acquired territory" within the meaning of Art.1(3)(c). The Geneva Convention of 1958 only attempted to define the present state of international law on the sea, including territorial waters. Central Act 80/76 was in the nature of an "umbrella legislation" concerning the extent of India's maritime zones and not territory to be followed up by other laws dealing with regulation, exploration and exploitation of particular resources in those zones See ("Statement of Objects and Reasons" of Central Act 42/81). On the question whether territorial waters could be regarded as territory, irrespective of Art.297 etc., two views are possible. The first is that for the purposes of internal public law, it can be so regarded, in which case the maritime States of India could exercise jurisdiction over it in respect of matters enumerated in the State List, by applying the theory of divided sovereignty in a federal set up. The second is that the waters could be treated as territory only for the purposes of international law; and even if this is so, State laws operating in the area could still be saved by applying the principle of territorial nexus. While dismissing W. P. No. 97/62/83 challenging the validity of the Tamil Nadu enactment, the Supreme Court had observed:- "......... by the doctrine of pith and substance the legislation would squarely fall under Entry 21 of the State List, and not under Entry 57 of Union List, because the expression 'beyond territorial waters qualifies both fishing and fisheries. While dismissing W. P. No. 97/62/83 challenging the validity of the Tamil Nadu enactment, the Supreme Court had observed:- "......... by the doctrine of pith and substance the legislation would squarely fall under Entry 21 of the State List, and not under Entry 57 of Union List, because the expression 'beyond territorial waters qualifies both fishing and fisheries. It may also be mentioned that the regulatory measure operates in respect of those who start from the shore and move to certain distances within the territorial waters". The reference to those who start from the shore and move to certain distances in the sea, seems to be an application of the theory of territorial nexus by way of answer to the argument based on Art.245(1) and extra territoriality. 38. For the communities inhabiting the sea coasts of the country, fishing has always been as important as agriculture, from the stand-point of proper government. The coastal waters for them was just an extension of the land mass where whey could usefully occupy themselves in the collection of sea-food. Even during the periods of the Pandyas, the Nayaks and the Nawabs of South Arcot, their governments were taking interest in regulating fishery rights in the sea as a source of public revenue and as a matter of day-to-day government (See Susai v. Director of Fisheries (1965) 2 MLJ 35 ). As early as 1869, Dr. Day of the Madras Medical Services had reported to Government that proper conservation offish as an item of food supply required legislation. The Indian Fisheries Act of 1897 was itself drafted on the basis of his recommendations. S.4 of that Act had prohibited use of explosives in any water; and "water" for the purpose 'was defined to include' coastal waters within a distance of one marine league from the coast. Identical provisions were therein the Cochin Fisheries Act of 1092 and the Travancore Fisheries Regulation of 1097, The T. C. Act of 1950 went a step further and attempted to control collection of shells of fish from the sea. Thus fishery laws of the country were evincing some interest in the sea all throughout, and the impugned Kerala Act does no more than extend that interest, by taking note of modern developments. Territorial nexus is still there, and legislative power under Entry 21 List II is available. Thus fishery laws of the country were evincing some interest in the sea all throughout, and the impugned Kerala Act does no more than extend that interest, by taking note of modern developments. Territorial nexus is still there, and legislative power under Entry 21 List II is available. We are therefore of the view that the Act is within the competence of the State legislature. 39. It is then contended that the provisions of the impugned Act are Violative of the petitioners' fundamental right under Art.19(1)(g) of the Constitution. The key provision is to be found in S.4, reading as follows:- "4. Power to regulate, restrict or prohibit certain matters within specified area.- (1) The Government may, having regard to the matters referred to in sub-s.(2), by order notified in the Gazette, regulate, restrict or prohibit- (a) the fishing in any specified area by such class or classes of fishing vessels as may be prescribed; or (b) the number of fishing vessels which may be used for fishing in any specified area; or (c) the catching in any specified area of such species of fish and for such period as may be specified in the notification; or (d) the use of such fishing gear in any specified area as may be prescribed. (2) In making an order under sub-s.(1), the Government shall have regard to the following matters, namely:- (a) the need to protect the interests of different sections of persons engaged in fishing, particularly those engaged in fishing using traditional fishing craft such as catamaran, country craft or cance; (b) the need to conserve fish and to regulate fishing on a scientific basis; (c) the need to maintain law and order in the sea; (d) any other matter that may be prescribed." The other provisions for licensing and registration of fishing vessels, and for imposition of penalties when orders notified under Sec. 4 are violated, are supplemental in nature. Can it be said that the mere conferment of power on the Government to regulate, restrict or prohibit matters enumerated in clauses (a) to (d) of S.4(1) are violative or destructive of the fundamental right to carry on any occupation, trade or business? Can it be said that the mere conferment of power on the Government to regulate, restrict or prohibit matters enumerated in clauses (a) to (d) of S.4(1) are violative or destructive of the fundamental right to carry on any occupation, trade or business? Art.19(6) permits imposition of reasonable restrictions on the right, in the interests of the general public, and so long as the right is not absolute, but subject to reasonable restrictions; the question whether the right is violated or not will depend on the nature and extent of the restrictions actually imposed. In other words, the conferment of power cannot be isolated from its exercise, and attacked as unconstitutional. No one can seriously suggest that every restriction on the classes of vessels or the types of fishing gears that could be used in the territorial waters would be unreasonable and unrelated to the interests of the general public. Broadly speaking, regulatory measures for protecting the interests of different sections of persons engaged in fishing, for conserving fish, for regulating fishing on scientific lines, and for maintaining law and order in the sea cannot be held to be unreasonable or opposed to public interest, though when it comes to a total and permanent prohibition, different considerations may arise. 40. Another contention is that Sec, 4 of the Act is bad for excessive delegation of legislative powers. The limits of permissible delegation have been examined by the Supreme Court in a number of cases, and after the decision in Delhi Municipality v. B. C. S. & W. Mills ( AIR 1968 SC 1232 ) all that is necessary to find out is whether the legislature has expressed its will end laid down the legislative policy in terms which are unambiguous. The impugned provision indicates in the clearest possible language that in the opinion of the legislature, fishing in the territorial waters requires regulation or restriction. The different kinds of possible regulations, restrictions or prohibitions are also spelt out in Clauses (a) to (d) of S.4(1). And if guide lines are required, they are there in Sub-s.(2): while exercising power under S.4(1), the Government shall have regard to the interests of different sections of persons engaged in fishing, the interests of traditional fishermen in particular the need to conserve fish, the requirement of law and order and also any other matter which may be prescribed. And if guide lines are required, they are there in Sub-s.(2): while exercising power under S.4(1), the Government shall have regard to the interests of different sections of persons engaged in fishing, the interests of traditional fishermen in particular the need to conserve fish, the requirement of law and order and also any other matter which may be prescribed. That such other matters are yet to be prescribed may be a circumstance for the legislature to pull up the rule-making authority, but that does not mean that there is no clear cut policy behind the section or that the legislature has abdicated its essential powers in favour of the executive. 41. That takes us to the last contention regarding the validity of the notifications issued under S.2(h) and 4(1). Their combined effect has been briefly noticed earlier; and for the present discussion, they can be divided into three groups:- (i) G. O. No. 143 and 144 dated 29-11-80:- The whole of the territorial waters of Kerala is treated as a 'specified area', and use of purse-seine and three other kinds of fishing gears are prohibited in the area; (ii) G. O. No. 156 and 151 dated 29-12-80:- The specified area here consists of two blocks: (a) 78 KM on the coast from Kollengode to Edava measured up to 16 fathom line in the sea; and (b) another 512 KM from Paravoor South to Manjeswar, measured up to 8 fathom line in the sea. All mechanised vessels are prohibited from fishing in this area. (iii) G. O. No. 158 and 159 dated 29-12-80: Here also there are two blocks, their length being the same as in (a) and (b) above, and the width upto 20 fathom line and 10 fathom line in the sea respectively, for the two. All mechanised vessels except "motorised country crafts' are to excluded from this area. In substance, the entire territorial waters were declared out of bounds for purse-seine boats. Mechanised vessels using gill nets could operate in the territorial waters adjoining the 10-KM coast between Edava and Paravoor South, and also across the remaining shore length of 590 KM beyond depths of 20 fathoms and 10 fathoms. The motorised country crafts could however operate within narrow strips of this prohibited area also. Mechanised vessels using gill nets could operate in the territorial waters adjoining the 10-KM coast between Edava and Paravoor South, and also across the remaining shore length of 590 KM beyond depths of 20 fathoms and 10 fathoms. The motorised country crafts could however operate within narrow strips of this prohibited area also. And all the restrictions were imposed, as recited in the notifications, in view of the need "to conserve fish and regulate fishing on a scientific basis" in the areas specified. 43. The two petitioners are purseseiners. Their nets alone cost about Rs. 3/- lakhs each, and their mesh conforms to approved specifications. The vessels are registered with the Fisheries Department. Each vessel employs 30 persons and the operation costs per day is about Rs. 2000/-. They have been catching sardines and mackerels from the coastal waters at a distance between 5 and 21 kilometres from the shore at Cochin. The impugned notifications it is alleged, strike at their very existence. They could not use the purse-seine nets anywhere in the territorial waters. The vessels are not fit for deep-sea fishing. Even assuming, without admitting, that the vessels could operate with purse-seine nets beyond the territorial waters, the operation will be uneconomic, The vessels are not designed for gill net fishing; and even that type of fishing is banned upto 20 fathom depth in the South and 10 fathom depths in the North. Apart from theoretical possibilities of changing the gear or moving over to the sea beyond the territorial limits, the effect of the notifications is to practically drive them out of business. The restrictions are not reasonable and they have nothing to do with the interests of the general public. In fact, the restrictions will affect the public at large in the matter of availability of fish in reasonable quantities and at reasonable rates. The fish wealth of the coast will also go waste by under exploitation. And the exception recognised in favour of motorised country-crafts is also alleged to be arbitrary and discriminatory, 43. On behalf of the State, two counter affidavits have been filed (in O. P. 2242). The fish wealth of the coast will also go waste by under exploitation. And the exception recognised in favour of motorised country-crafts is also alleged to be arbitrary and discriminatory, 43. On behalf of the State, two counter affidavits have been filed (in O. P. 2242). Except stating that unchecked fishing in the sea would cause damage to the fishing industry and that traditional fishermen require protection as people belonging to the weaker sections of the society, the first counter affidavit makes no attempt to explain bow the restrictions in question would advance the cause of conserving fish and regulation of fishing on scientific basis, as claimed in the notifications. No material is also relied on. In the second (Addl.) affidavit filed almost at the fag-end of the hearing, some material is furnished and an attempt is also made to explain why the restrictions were found necessary. The question whether the material now relied on was available at the time the notifications were issued may require separate consideration; all the same, the points raised by way of explanation deserve notice:- (i) mackerel and oil sardines are concentrated in the coastal waters up to 50 metres depth (or a distance of 22 KM from the shore) and these constitute the principal catch of purse-seine boats. These species are in danger of over exploitation/depletion and it is therefore necessary to ban the use of purse-seine nets in the area. (ii) there is evidence to show that the average catch per fisherman in the traditional sector has been steadily going down, as a result of purse-seining. Under the Directive Principles of State Policy, the State has the duty and the responsibility to ensure adequate source of livelihood for the poorer sections and to prevent monopolisation of pelagic fishery by an elite few; and (iii) purse-seines use "close mesh seines" capable of destroying juvenile fish and eggs. The above may be taken as explanation for imposing a ban on the use of purse-seine nets, but not about the restrictions imposed on all mechanised vessels and the relaxations granted in favour of motorised country crafts. 44. The above may be taken as explanation for imposing a ban on the use of purse-seine nets, but not about the restrictions imposed on all mechanised vessels and the relaxations granted in favour of motorised country crafts. 44. The 3rd respondent representing traditional fishermen has also come forward with two affidavits in support of the Government's stand; and these refer to the report of the Majumdar Committee and also to a report of the Babu Paul Committee i, e. a committee appointed by the State Government in August, 1981 to study the need for seasonal restrictions on fishing. 45. Among the two files made available by the Advocate General for our perusal, one contains only the drafts of the notifications in question; the circumstances under which they were drawn up are not disclosed. The second file contains a letter dated 17-9-79 from the Government of India forwarding the Model Bill and a copy of the Majumdar Report. It is also seen that even before receipt of the letter, the State Government had Issued executive orders reserving a distance of 5 KM from the shore exclusively for the use of traditional fishing crafts. There were demands that the distance should be increased to 10 KM or 20 KM, but the Director of Fisheries was not in favour of the suggestion, as according to him, the 5 KM arrangement was working satisfactorily. The other relevant files, it was stated by way of answer to repeated questions, were not readily forthcoming. 46. The right to collect fish from the coastal waters is a public right, and every citizen has a fundamental right to engage in that trade, occupation or business. The extent to which such a right could be restricted under Art.19(6) is also not in dispute, at least in terms of abstract legal principles. The nature of the right said to be affected, the purpose for which the inroad is made, the extent and the urgency of the evil sought to be remedied, the disproportionate nature of the imposition, the prevailing social conditions, directive principles of State policy, the proximate connection between the restriction and the object to be achieved, the social interests sought to be advanced and the history of the times, are all relevant in deciding whether a given restriction is reasonable or not. (Pathumma v. State of Kerala ( AIR 1978 SC 771 ). (Pathumma v. State of Kerala ( AIR 1978 SC 771 ). The whole question has to be examined objectively from the standpoint of the public, and not from that of the person complaining about the restriction; in other words, a restriction cannot be held to be unreasonable merely because it operates harshly in a particular case (State of Gujarat v. Shantilal ( AIR 1969 SC 634 ). Though there is a general presumption about the constitutionality of a law, that alone will not be sufficient where a citizen succeeds in establishing prima facie that it violates his rights; in such a case, the burden shifts to the State to show, with supporting material, that the restriction imposed is reasonable and in the interests of the general public. (Khverbari Tea Co. v. State of Assam (AIR 1964 SC 1925). Even if a law is valid, exercise of powers thereunder by the appropriate statutory authority can still be challenged as unreasonable and illegal, when fundamental rights are affected (Prag Ice v. Union of India ( AIR 1978 SC 1296 ). Presumption of constitutionality in such an event will be more slender. It is also settled law that in matters relating to obnoxious or dangerous trades, or a trade in essential commodities, restrictions can reach the level of prohibition; but where they do so, special care has to be taken to see that the test of reasonableness is satisfied, because "the greater the restrictions, the more is the need for strict scrutiny" (Narendra Kumar v. Union of India ( AIR 1960 SC 430 ). Where a restriction is claimed to be reasonable, the attempt should be to examine whether it strikes a balance between the freedom guaranteed by Art.19(1) and the social control permitted by clauses (2) to (6); the limitation imposed on the enjoyment of a fundamental right cancel be arbitrary, or beyond what is required in the interests of the public. 47. While examining the impugned notifications in the above background, it is necessary to keep in mind that while Sec. 4(1) of the Act confers power on Government to regulate, restrict or prohibit certain things, such conferment by itself cannot justify every exercise thereof. The power has to be exercised with due regard to the matters specified in sub-sec. 47. While examining the impugned notifications in the above background, it is necessary to keep in mind that while Sec. 4(1) of the Act confers power on Government to regulate, restrict or prohibit certain things, such conferment by itself cannot justify every exercise thereof. The power has to be exercised with due regard to the matters specified in sub-sec. (2); and so far as the notifications in question arc concerned, the avowed purpose is said to be conservation of fish and regulation of fishing on scientific basis i.e. the matter specified in S.4(2)(b). This is the second aspect which cannot be ignored. That means that nexus between the exercise of power and the needs referred to in S.4(2)(b) has to be established. And it has further to be seen whether the restrictions are proportionate to the need for achieving the stated objects. 48. Purse seine nets were banned because the Government formed the opinion that their use, if unchecked, would result in the destruction or depletion of sardines and mackerels. The "close mesh seines" were also considered a danger for juvenile fish and eggs. The question immediately arises whether the Government had any material before it, at the time the relevant notifications were issued on 29-11-80, to from such an opinion. Sufficiency of material is not for the court to consider, but total lack of material is different. We have already referred to the two files produced: they contain nothing about purse-seine nets, their mesh size, the threat to sardines and mackerels, the destruction of juveniles and eggs or any other adverse effects of purse-seineing. What they show at the most is that the traditional fishermen were clamouring for some reservation as against mechanised vessels, and that the authorities were of the view that demarcating a zone 5 KM wide for their exclusive use would be a reasonable arrangement. It can be presumed that the Majumdar Report was before Government at the time, but that Report also was not concerned with purse-seining, or even the conservation of fish or scientific regulation of fishing. It was concerned only with delimiting zones for different types of fishing boats, and making recommendations for legislative support to such a scheme. It can be presumed that the Majumdar Report was before Government at the time, but that Report also was not concerned with purse-seining, or even the conservation of fish or scientific regulation of fishing. It was concerned only with delimiting zones for different types of fishing boats, and making recommendations for legislative support to such a scheme. After noticing that the traditional fishing crafts were keen on having "an exclusive area of operation for 3 to 5 miles from the shore", the Committee expressed the view that no uniform policy could be laid down on an All India basis, and that fixation of limits should not be done "in such a manner as to act as a disincentive resulting in the under-exploitation of the resources''. The Babu Paul Committee was, constituted in 1981 and its report came in 1982. Exts. R1(B) to R1(E) annexed to the State's additional counter affidavit contain some material about the effect of purse-seining, but there is intrinsic evidence in each of these to indicate that they were compiled or drawn up after 1980. The counter affidavit and the supporting documents do not thus show that the material now relied on were available with the Government, in that form at least, at the relevant time. 49. It is still possible to imagine that some of the data referred to in Exts. R1(B) to R1(E) and in the Babu Paul Report were otherwise available to the Government, from other sources. The assessment of such data and the conclusions to be drawn therefrom are ordinarily matters to be left to the appropriate statutory authority; but when the authority exercises its power on that basis in a manner affecting the fundamental rights of citizens, it is for the courts to decide finally whether the restrictions are reasonable. According to paragraph (4) of the Addl. counter affidavit, the maximum sustainable yield of oil sardines in Kerala waters would be between 94,000 tonnes and 1.04,000 tonnes a year: but Ext. R1(C) shows that the actual landing of oil sardines in the State exceeded 1,10,000 tonnes during eight out of the ten years between 1969 and 1978. Taken along with the admitted circumstances that purse-seiners started operation in the waters only from 1979, the inference is irresistible that over expoitation of this variety had commenced long before the advent of purse-seines. R1(C) shows that the actual landing of oil sardines in the State exceeded 1,10,000 tonnes during eight out of the ten years between 1969 and 1978. Taken along with the admitted circumstances that purse-seiners started operation in the waters only from 1979, the inference is irresistible that over expoitation of this variety had commenced long before the advent of purse-seines. As for mackerel, the maximum sustainable yield would be between 16,000 and 47,000 tonnes according to the expert opinion relied on in the counter affidavit; but the actual landings had exceeded 50,000 tonnes during 1970 and 1971. Here again, the danger of over exploitation or depletion, if any, was not the result of purse-seine operation. Ext. R1(B) statement, compared with Ext. Rl (C), shows that purse-seine landings for the year 1981 accounted only for 6% of the total catch. In the case of oil sardines, non-purse-seiner crafts had accounted for more than 90% of the catch. The plea that purse-seine nets are responsible for over exploitation and depletion of any species of fish or the fish stock in general, is not supported by the data even now available for scrutiny. 50. As for the allegation that purse-seines, by reason of their mesh size, have a tendency to destroy juveniles and eggs, the assertion of the petitioners that they are using only approved nets is not even disputed. Nor is it suggested that the mesh-size of nets used by traditional crafts is larger. On the other hand, paragraph 6-13 to 6-16 of the Babu Paul Report point out that in the opinion of the UNDP/FAO Pelagic Fishery Project, it is the. traditional method which is more harmful to the stock of sardines and mackerels, because the young ones of these species move closer to the coast during the first year of their life and move out to off-shore waters as and when they grow in size. The traditional method is described as "wasteful utilisation of resources" and purse-seining, as "a more rational method of harvesting the resources". 51. Again, Exts. P2 and P3 (produced by the petitioner in O. P. 2242/83) are official publications of the State Fisheries Department proposing to implement certain schemes for the welfare of the traditional fishermen communities. The traditional method is described as "wasteful utilisation of resources" and purse-seining, as "a more rational method of harvesting the resources". 51. Again, Exts. P2 and P3 (produced by the petitioner in O. P. 2242/83) are official publications of the State Fisheries Department proposing to implement certain schemes for the welfare of the traditional fishermen communities. One of the proposals in the scheme is to distribute 80 purse-seine nets among cooperative societies/village committees, during the period 1980-1983, in order to ensure better exploitation of the fish-wealth and better returns for the fishermen. Considering that there were only 37 purse-seine boats in Kerala in 1979, how can any one suggest, with any sense of responsibility, that the State Government had formed an honest opinion that purse-seining was harmful to the conservation offish and the regulation of fishing on scientific lines? Paragraph (15) of the State's Addl. affidavit admits that there was such a scheme, but goes on to state that: "subsequently a detailed study of the implications of purse-seining was made and the policy enunciated in the publications was not approved by the Government and not implemented". But curiously enough, it was represented on behalf of the State that no records or files are available to show that such a "detailed study" was subsequently undertaken and that a decision was arrived at not to go ahead with the scheme. 52. There is also nothing on record to suggest, as has been contended for on behalf of the State, that purse-seining is responsible for the fall in the average catch of the traditional fishermen. The Babu Paul Report notices:- "The scientific opinion does not support the apprehensions of fishermen that there is depletion of fishery resources. In fact, no oil sardine or mackerel species occurs in the catches of trawling boats. The small quantities of juveniles of demersal fishes and prawns caught during trawling operations are unavoidable if trawling is to be retained. The loss is negligible compared to the gains of income, employment, protein food and foreign exchange generated by the trawling operations in the months of June, July and August. Traditionally these months were the days of unemployment , poverty, and pestilence." "Even prior to the advent of purse-seining in 1979, in Kerala, of sardine and mackerel had manifested signs of falling production. Obviously, purse-seining boats are not responsible for this situation. Traditionally these months were the days of unemployment , poverty, and pestilence." "Even prior to the advent of purse-seining in 1979, in Kerala, of sardine and mackerel had manifested signs of falling production. Obviously, purse-seining boats are not responsible for this situation. The scientific explanation for the falling production of oil sardine and mackerel is that both mainly belong to O-year class fisheries and are susceptible to wide natural fluctuations. The two species have protracted breeding, as indicated already and they breed outside coastal waters. They strike the coast only after the south west monsoon and hence cannot be caught and destroyed in the coastal waters during June, July and August. A portion of the adult stock of the two species remain in offshore waters through out the year without being caught. Further purse-seining of oil sardine and mackerel in Karnataka waters will not affect the fisheries in Kerala as the migration of the two species is from south to north." A recent study undertaken on behalf of the CMFR1 also seems to have reached the conclusion that "the effect of purse-seining, at the present level of exploitation and availability, is not tangibly felt on the indigenous fishery off the coast of Kerala". 53. It is no doubt true that judicial assessment of the nature and extent of the mischief cannot displace the assessment made by the appropriate statutory authority. But where such authority acts on no material, or reaches a conclusion which even the material now placed before court cannot support and the result of its action is to seriously endanger the fundamental right of certain classes of citizens, the court cannot abdicate its solemn constitutional duty. There is certainly material to show that some kind of conflict had arisen between the traditional crafts and the mechanised vessels, in the matter of exploiting the fish-wealth of the coastal waters. According to the recommendation made by the Central Government on 29-3-78 (See p. 46 of Majumdar Report) reserving a belt of waters 5 KM in width from the shore would have solved the problem at that stage. By Ext. P1 dated 31-12-82 that Government further advised that the width be increased to 10 KM. Under S.4(2)(a) of the impugned Act, the State Government could enforce such a regulation for protecting the interests of persons using traditional fishing crafts. By Ext. P1 dated 31-12-82 that Government further advised that the width be increased to 10 KM. Under S.4(2)(a) of the impugned Act, the State Government could enforce such a regulation for protecting the interests of persons using traditional fishing crafts. Power could have been exercised under S.4(2)(c) also, if a law and order problem had arisen. But exercise of power in the present case has been under S.4(2)(b). Assuming that there was only a bona fide mistake in invoking the proper statutory provision (such assumption is not easy, in view of the counter affidavit), what could still be justified, on the strength of the material on record, is only a reasonable demarcation of zones and not a complete ban on purse-seine boats and a near-complete prohibition of all mechanised vessels. 54. In the context of Art.19(6) "interests of the general public" need not necessarily coincide with the interests of those engaged in a particular occupation or trade. That is why the Majumdar Committee had taken care to point out, in more than one place in its report, that delimitation of fishing zones should not lead to a "fall in fish "production" or adversely affect "optimum exploitation of fisheries resources". Babu Paul Committee had also noticed that unlike inland fisheries, the level of exploitation in the coastal waters was low. Of the estimated yield potential of 12 to 13 lakh tonnes for the Kerala coast, actual landings were usually in the region of 4 lakh tonnes. It is obviously in the public interest that the available resources are better exploited. At any rate, that is a matter which should have been taken into consideration along with the sectional interests of the producers while attempting to strike a balance between the extent of the restrictions and the interests of the general public. The counter affidavits do not disclose that any such attempt was made at any time. 55. In the above view, it is unnecessary to separately consider the question whether the grant of certain exemptions in favour of motorised country crafts is discriminatory or not. 56. The counter affidavits do not disclose that any such attempt was made at any time. 55. In the above view, it is unnecessary to separately consider the question whether the grant of certain exemptions in favour of motorised country crafts is discriminatory or not. 56. While upholding the validity of Act 10/81, therefore, we strike down the six notifications specified in paragraph (41) above on the ground that they represent arbitrary exercise of power under the statute and impose restrictions on the petitioners' fundamental rights - restrictions which are not shown to be reasonable, having due regard to the interests of the general public. This will not. we hasten to clarify, prevent the Government from re-examining the whole question and exercising their powers in accordance with law. And in view of the circumstance that some demarcation of an exclusive zone for the traditional crafts was in force for quite some time, either under executive orders or under interim orders of this Court, we further direct that till a fresh decision is taken by Government, mechanised fishing vessels shall be allowed to operate only beyond 10 KM from the shore. The Writ Petitions are disposed of as above, without any order as to costs.