Traditional Fishing Rights in India: Jurisprudential Evolution, Constitutional Dimensions, and Contemporary Challenges

Traditional Fishing Rights in India: Jurisprudential Evolution, Constitutional Dimensions, and Contemporary Challenges

1. Introduction

Traditional fishing rights (TFR) occupy a complex normative space in India, straddling customary usages, proprietary entitlements in inland and coastal waters, and the overarching public interest in ecological conservation. Rapid industrialisation of fisheries, coastal aquaculture, and the declaration of protected areas have generated recurrent conflicts between artisanal communities and regulatory authorities. This article critically analyses the Indian jurisprudence on TFR, drawing upon landmark decisions such as S. Jagannath v. Union of India[1], Indian Council for Enviro-Legal Action v. Union of India[2], the Deepor Beel litigation[3], and earlier colonial precedents, to elucidate the constitutional, statutory and doctrinal contours of the right.

2. Historical Foundations of Fishing Rights

2.1 Colonial Jurisprudence and the Classification of Fisheries

Nineteenth-century Indian courts imported English categories—several, free, common and common of fishery—into indigenous contexts. In Baban Mayacha v. Nagu Shravucha[4] the Bombay High Court accepted the presumption that exclusive fishing followed ownership of the sub-soil, while recognising “common fishery” in the sea for the public. The Calcutta High Court, however, was cautious in Hori Das Mal v. Mahomed Jaki[5], questioning wholesale transplantation of English concepts to Indian waters, given distinct historical and social conditions. The Privy Council in Raja Srinath Roy v. Dinabandhu Sen[6] reiterated that ultimate sovereignty over sea fisheries vested in the Crown, foreshadowing the post-Independence doctrine that the Union of India holds the territorial sea and its resources under Article 297 of the Constitution.

2.2 Custom, Prescription and the Idea of “Traditional” Rights

Unlike grants evidenced by written instruments, TFR typically rest on immemorial usage by riparian or coastal communities. Their juridical validity is tested through prescription, long enjoyment nec vi nec clam nec precario, or by being incident to an easement or profit-à-prendre. Colonial courts recognised such rights in tanks and rivers[7], but were reluctant to uphold exclusivity in open sea areas absent clear title. This duality—community usage versus public trust—remains central to contemporary disputes.

3. Constitutional and Statutory Framework

3.1 Constitutional Provisions

  • Article 21: the Supreme Court has read the right to livelihood for fisherfolk into the right to life (State of Kerala v. Joseph Antony[8]).
  • Article 19(1)(g): freedom to practise any occupation, circumscribed by “reasonable restrictions” in the interests of the general public—often invoked to justify gear-specific bans.
  • Article 297: vests the territorial sea, continental shelf and resources in the Union, providing the legal basis for central control over offshore fisheries.
  • Directive Principles: Article 48-A (environmental protection) and the fundamental duty under Article 51-A(g) inform a conservation-oriented reading of TFR.

3.2 Principal Statutes

  • Indian Fisheries Act 1897 (IFA) – the oldest colonial enactment regulating inland fisheries.
  • Marine Fishing Regulation Acts of coastal States (e.g., Kerala Act 1980) – empower States to issue area/gear restrictions within territorial waters (Joseph Antony case).
  • Wildlife (Protection) Act 1972 (WLPA) – affects fishing inside sanctuaries or national parks; Sections 18 and 35 require settlement or extinguishment of pre-existing rights (Animal & Environment Legal Defence Fund v. UOI[9]).
  • Environment (Protection) Act 1986 and Coastal Regulation Zone (CRZ) Notifications – indirectly regulate coastal fishing and aquaculture (Jagannath[1]).
  • Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 – harmonises domestic maritime zones with UNCLOS.

4. Judicial Balancing of Traditional Rights and Environmental Protection

4.1 Intensive Shrimp Farming and Coastal Livelihoods

In S. Jagannath the Supreme Court struck down intensive shrimp farms within 500 m of the High-Tide Line, citing salinisation of agricultural fields, depletion of mangroves and displacement of artisanal fishers. By invoking the “Polluter Pays” and “Precautionary” principles, the Court held that economic activity cannot override the livelihood of traditional fishermen and ecological imperatives[1]. The judgment implicitly recognised TFR as part of the larger environmental justice discourse, though it did not expressly articulate them as a standalone fundamental right.

4.2 Enforcement of the CRZ and Community Participation

In Indian Council for Enviro-Legal Action, the Court invalidated dilutive amendments to the 1991 CRZ Notification, stressing that protecting coastal ecology serves the constitutional mandate under Articles 48-A and 21[2]. The decision envisaged creation of Coastal Zone Management Authorities with community representation, signalling a participatory approach to coastal governance that could institutionalise TFR in regulatory processes.

4.3 Development Versus Traditional Usage

Goa Foundation v. Diksha Holdings[10] illustrates the Court’s readiness to uphold development projects in CRZ-III areas when clearances comply with law and evidence of ecological harm is inconclusive. While not directly about fishing, the case underscores that the judiciary employs a balancing test rather than an absolutist preservationist stance. Consequently, TFR may yield where demonstrable sustainable development norms are met.

4.4 Gear-Specific Restrictions and the “Purse-Seine” Litigation

The Supreme Court in State of Kerala v. Joseph Antony upheld a State notification prohibiting mechanised purse-seine nets within territorial waters, holding that reserving near-shore zones for traditional craft is a reasonable restriction under Article 19(6)[8]. Subsequent High Court decisions (Niyamavedi v. Union of India[11]; Ganpatbhai Rathod v. State of Gujarat[12]) reiterate that conservation and distributive equity between traditional and industrial fishers justify differential treatment, provided empirical evidence supports resource depletion claims.

4.5 Protected Areas and Extinguishment of Rights

When wetlands are declared sanctuaries, TFR face potential extinguishment unless expressly settled under Sections 18–25 of the WLPA. In Animal and Environment Legal Defence Fund the Court cautioned that mass issuance of fishing permits within Pench National Park could defeat conservation goals[9]. The Gauhati High Court in the Deepor Beel cases struck down the sanctuary notification for non-compliance with procedural safeguards, emphasising that traditional fishing communities must be heard and rehabilitated before their rights are curtailed[3].

5. Property, Leasehold and Inland Fisheries

5.1 Tanks and Ponds: Licence Versus Easement

The Supreme Court in Tulsi Ram v. Mathurasagar Pan[13] held that a recurring right to stock and harvest fish in another’s tank is merely a licence, not an easement, as it destroys the subject-matter in each cycle. Thus, inland TFR are often contractual or permissive rather than proprietary, susceptible to revocation or auction by the owner. The Madras High Court in G. Ramu v. District Collector[14] treated ayacutdars’ customary fishing in an irrigation tank as a usufruct incidental to their irrigation rights, invalidating State auction that ignored such custom.

5.2 Ownership and Control of Reservoirs and Monuments

Where reservoirs fall within monuments or Union-controlled property, the Gujarat High Court in Laboni Sakhi Mandal v. Union of India[15] ruled that only the Union can assign fishing rights, despite State competence over “fisheries” under List II, because title and management reside with the Centre. The decision underscores that competence to legislate does not automatically confer proprietary authority.

6. International and Inter-State Dimensions

6.1 Maritime Zones and Article 297

Article 297, read with the Maritime Zones Act 1976, vests offshore resources in the Union. Parliamentary debates and the Kerala High Court in Babu Joseph v. State of Kerala[16] affirm that demarcation of fishing zones in territorial waters requires central legislation. States, however, may regulate fishing vessels (List II, Entry 21) within such waters, provided they do not trench upon central supremacy.

6.2 Indo–Sri Lanka Agreements and Loss of Historic Rights

The 1974 & 1976 bilateral agreements delimited the maritime boundary and extinguished historic Indian fishing in Sri Lankan waters. The Madras High Court in Fisherman Care v. Union of India[17] dismissed a writ seeking enforcement of “traditional rights” in Katchatheevu, holding that sovereign treaties override individual claims absent Parliamentary scrutiny under Article 253. The case demonstrates that international obligations can displace domestic TFR.

7. Critical Analysis and Policy Recommendations

7.1 Reconciling Livelihood and Conservation

Judicial interventions reveal an underlying principle: TFR are not absolute but enjoy presumptive validity subject to ecological limits. Courts uphold restrictions when grounded in scientific data and equitable allocation of resources. Yet inconsistent enforcement of CRZ norms, delayed settlement of rights under WLPA, and opaque leasing practices erode community trust. A uniform national framework recognising TFR as a protected “customary use right” akin to forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers Act 2006 could harmonise conflicting mandates.

7.2 Strengthening Procedural Safeguards

Decisions such as Deepor Beel underscore the necessity of audi alteram partem before extinguishing TFR. Statutes should mandate social impact assessments and rehabilitation plans akin to Section 4(2) of the Forest Rights Act. Community-based co-management, as envisaged in the Draft National Fisheries Policy 2020, requires statutory backing to prevent displacement by commercial operators.

7.3 Integrating Climate and Sustainability Concerns

Climate change-induced stock variability intensifies competition for marine resources. Adaptive governance—seasonal closures, gear modifications, and ecosystem-based management—must be legislatively anchored, with compensation mechanisms for traditional fishers during moratoria. The “Polluter Pays” principle from Jagannath should extend to industrial vessels whose by-catch or habitat damage undermines small-scale livelihoods.

8. Conclusion

Traditional fishing rights in India are an amalgam of historical usage, constitutional protection of livelihood, and statutory recognition, existing within the larger public trust in aquatic resources. The judiciary has progressively balanced these rights against environmental imperatives, often privileging traditional communities over corporate or mechanised interests where ecological evidence warrants. Future reforms must codify TFR, ensure participatory decision-making, and integrate scientific management to secure both the sustenance of coastal/inland communities and the integrity of aquatic ecosystems.

Footnotes

  1. S. Jagannath v. Union of India & Ors., (1997) 2 SCC 87 (Supreme Court of India).
  2. Indian Council for Enviro-Legal Action v. Union of India & Ors., (1996) 5 SCC 281.
  3. Deepar Beel Pachpara Samabai Samity Ltd. v. Union of India, 2017 SCC OnLine Gau 1337; State of Assam v. Deepar Beel Pachpara Samabai Samity Ltd., 2023 SCC OnLine Gau 1049.
  4. Baban Mayacha & Ors. v. Nagu Shravucha & Ors., (1876) Bom HC 76.
  5. Hori Das Mal v. Mahomed Jaki & Anr., (1885) ILR 11 Cal 546.
  6. Raja Srinath Roy & Ors. v. Dinabandhu Sen & Ors., (1914) 41 IA 221 (PC).
  7. Indian Fisheries Act 1897, ss. 4–5.
  8. State of Kerala v. Joseph Antony, (1994) 1 SCC 301.
  9. Animal and Environment Legal Defence Fund v. Union of India & Ors., (1997) 3 SCC 549.
  10. Goa Foundation v. Diksha Holdings Pvt. Ltd. & Ors., (2001) 2 SCC 97.
  11. Niyamavedi v. Government of India, 2016 SCC OnLine Ker 4091.
  12. Ganpatbhai N. Rathod v. State of Gujarat, 2001 SCC OnLine Guj 169.
  13. Tulsi Ram & Ors. v. Mathurasagar Pan, (2002) 4 SCC 35.
  14. G. Ramu v. District Collector, Thiruvannamalai, 2020 SCC OnLine Mad 1224.
  15. Laboni Sakhi Mandal v. Union of India, 2016 SCC OnLine Guj 1226.
  16. Babu Joseph v. State of Kerala, 1984 KLT 260.
  17. Fisherman Care v. Union of India, 2016 SCC OnLine Mad 12119.