Rules Conflicting With Act: Analysis Of Penalty Clauses In Draft Sustainable Harnessing Of Fisheries In Indian EZZ Rules, 2025

Introduction

Can a delegated legislation create an offence or prescribe a penalty? Also, can it lay down procedures for adjudication of penalties in a manner that conflicts with the scheme of offences, their investigation and trial as provided under the parent law? These are questions that immediately come to mind when one reads the draft of the Sustainable Harnessing of Fisheries in Indian Exclusive Economic Zone of India Rules, 2025 (hereinafter referred to as 'Draft Rules 2025') which was recently published for public consultation by the Ministry of Fisheries, Animal Husbandry and Dairying, Government of India. The Draft Rules were published in the website of the Department of Fisheries, Government of India on July 31, 2025. (https://dof.gov.in/sites/default/files/2025-08/exclusive.pdf)

The purpose of this piece is to solely examine the legality of the approach taken by the Draft Rules 2025 regarding penalties for contraventions and adjudication of the penalties. It does not seek to and it is not proposed to undertake a detailed examination of the entire scheme of the Draft Rules 2025 so as to examine its compatibility with the well settled principles regarding delegated legislation as well as its potential for regulating the exploration and exploitation and ensuring conservation and management of fisheries resources in Indian EEZ.

The Draft Rules 2025 are proposed to be issued under Section 15 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (hereinafter referred to as the 1976 Act). According to the notice for public consultation issued by the Department of Fisheries, Government of India on July 31, 2025, the rules are essential to comply with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), United Nations Fish Stocks Agreement (UNFSA) and the Regional Fisheries Management Organization (RFMO) namely, the Indian Ocean Tuna Commission (IOTC), to which India is a signatory.^[1]

The 1976 Act and its approach to rule making, punishments and prosecutions

In order to properly appreciate the questions addressed in this piece it is necessary to have a close look at the approach of the 1976 regarding rules making, offences, punishments and prosecution of offenders. The 1976 Act which was enacted by the Parliament of India legally establishes the maritime zones of India, describes the scope of the sovereign rights and jurisdiction over the various maritime zones and also provides the legal basis, inter alia, for regulating resource exploration and exploitation, navigation, and enforcement within the maritime zones. According to Section 7 (1) of the 1976 Act, the exclusive economic zone of India is an area beyond and adjacent to the territorial waters, and the limit of such zone is two hundred nautical miles from the appropriate baseline. Section 7 (4) of the 1976 Act confers on the Union, inter alia, the sovereign rights for the purpose of exploration, exploitation, conservation and management of the natural resources, both living and non-living of the exclusive economic zone. Section 15 of the 1976 Act delegates power to the Central Government to make rules for carrying out the purposes of the Act. In particular, section 15 (2) (c) delegates power to the Central Government to make rules providing for the regulation of the exploration, exploitation, conservation and management of the resources of the exclusive economic zone.

The 1976 Act also lays down a peculiar scheme regarding offences and their prosecution. According to section 11 a contravention of any provision of the 1976 Act or of any notification issued under the Act shall be punishable with imprisonment which may extend to three years, or with fine, or with both. Section 12 sets out the special rule regarding offences by companies. In the absence of specific provisions to the contrary, it is to be implied from the scheme of the 1976 Act that the criminal proceedings are to be initiated by way of registration of a first information report by the police. The policy and scheme of the 1976 Act is to facilitate prosecution of offences under the law in ordinary courts exercising criminal jurisdiction. This is evident from a plain reading of section 13 which provides that any person committing an offence under the Act or any rules made under it or under any of the enactments extended to the maritime zones of India are to be tried in any place in which they may be found or in such other place as the Central Government may, by general or special order, published in the Official Gazette, direct. In the light of the punishment provided in section 11 and also in the light of the rule laid down in Part II of Schedule I of Bharatiya Nagarik Suraksha Sanhita 2023, the offences under the 1976 Act are to be tried in the court of Judicial Magistrate of First Class. Further, a prosecution against any person in respect of the contravention of any provision of the 1976 Act or any rules made thereunder cannot, according to section 14, be instituted without the previous sanction of the Central Government or any officer authorised by the Central Government.

General scheme of the Draft Rules 2025

The main focus of the Draft Rules 2025 is on regulating fishing and fishing-related activities by Indian fishing vessels in the EEZ of India. All mechanised fishing vessels and all motorised fishing vessels of 24 metres overall length and above are required to obtain an access pass for engaging in fishing and fishing-related activities in Indian EEZ. Motorised fishing vessels engaged in fishing for tuna and tuna-like species are required to obtain an access pass irrespective of their size. Though access passes are not required for motorised vessels having below 24 metres overall length, such vessels are required to comply with comply with the sea safety requirements, monitoring, control, and surveillance, and conservation and management measures, while operating in the EEZ. The access passes are to be issued by an 'Issuing Authority' based on the report of the 'Verifying Authority'. The Draft Rules also sets out provisions regarding monitoring, control and surveillance, inspection and enforcement, notification of fisheries management plans, catch and health certificates, mid-sea transhipments, catch reporting, fisher and crew identity, prohibition of destructive fishing, juvenile fishing and fishing in no-fishing zones as well as notification of a National plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing.

Penalty Clauses and the framework for enforcement under the Draft Rules 2025

Officers of the Indian Coast Guard, Indian Navy, Indian Customs, State Fisheries Department, or any other officer notified by the Central Government shall act as 'Authorised Officers' for boarding and inspecting fishing vessels in the Exclusive Economic Zone, and for enforcing the Draft Rules 2025 as well as the conditions of access passes issued under the rules.^[2] In the case of contravention of the provisions of the Draft Rules 2025 or access pass conditions the 'Authorised Officers' are required to make a report to the Adjudicating Officers.^[3] Officers of state fisheries departments who are not below the rank of Assistant Director of Fisheries and who have been notified by the respective state governments under their Marine Fishing Regulation Acts are to exercise the function of 'Adjudicating Officers' for the purposes of the Draft Rules.^[4] On receipt of a report regarding contravention, the 'Adjudicating Officers' are required to conduct an inquiry and determine the penalty to be imposed in respect of the contravention.^[5] The penalties for contravention of various provisions of the Draft Rules 2025 as well as the access pass conditions are found to be provided in clause 16 of the Draft Rules 2025. In short, the Draft Rules 2025 provide specific penalties for the contravention of the provisions of the Draft Rules 2025 and also entrust the function of determining the appropriate penalty by way of an adjudication process to be undertaken by the Adjudicating Officer. This scheme appears to be in direct conflict with the scheme of the 1976 Act which provides for the punishment of imprisonment extending to a period of three years for contraventions and trial before the court of judicial magistrate of first class for determination of criminal liability and awarding of appropriate punishment.

Judicially recognised principles on delegated legislation

In contemporary governance, delegated legislations have become an indispensable element of the administrative process. Delegated legislations such as rules serve as a practical tool to meet the complexities of modern governance.

It is a fundamental principle of law that no one can be subjected to a criminal sanction or penalty except under clear authority of law. The power to create offences or define contraventions is regarded as a matter of substantive legislative policy and, therefore, lies beyond the ordinary scope of delegated legislation. Criminal sanctions and penalties are to be laid down by the legislature in the parent law and the entity to whom the power to make rules is delegated cannot arrogate to itself the authority to define offences or contraventions and prescribe punishments or penalties in respect of such offences or contraventions.^[6]

It is a settled position in law that the authority making a rule has to operate in harmony with the overall scheme and purpose of the enabling law. In Kerala State Electricity Board and Others v. Thomas Joseph and Others^[7], the Supreme Court clarified the principle that a rule-making authority does not possess any inherent power to frame rules. According to the Court, the rule-making authority derives such power only from the enabling law and be that as it may, it has to necessarily function within the purview of the enabling law. The conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent or repugnant to the parent law.^[8]

In General Officer Commanding in Chief and Another v. Dr. Subhash Chandra Yadav^[9], the Supreme Court identified two conditions which must be fulfilled before a rule can have the effect of a statutory provision. Firstly, it must conform to the provisions of the law under which it is framed and secondly, it must also come within the scope and purview of the rule making power of the authority framing the rule. According to the Court, if either of these two conditions is not fulfilled, the rule so framed would be void. Since a rule cannot prevail over an Act from which it derives its authority a rule which is directly inconsistent with the mandatory provisions of the Act can very easily be declared by courts as ultra vires and hence enforceable.^[10]

Conclusion

The Parliament of India has through section 11 of the 1976 Act clearly spelt out its legislative policy regarding punishments to be imposed if a person contravenes the provisions of the Act as well as the notifications issued thereunder. The manner in which the persons who contravene the provisions of the 1976 Act are to be prosecuted and tried have also been set out in sections 13 and 14 of the 1976 Act. Clauses 15 and 16 of the Draft Rules 2025 appear to be in direct conflict with the said legislative policy and scheme. Be that as it may, the inclusion of clauses 15 and 16 in the Draft Rules can be looked upon as an instance of abrogation of essential legislative functions by the executive organ of the state as well as a direct attack on the legislative policy and scheme regarding criminal sanctions and prosecution as set out in the 1976 Act. Clauses 15 and 16 of the Draft Rules, 2025, appear to be inconsistent with the substantive provisions of the 1976 Act, the parent statute under which the rule-making power has been exercised. Such inconsistency directly attracts the first condition enunciated by the Supreme Court in General Officer Commanding-in-Chief and Another v. Dr. Subhash Chandra Yadav.^[11] If clauses 15 and 16 of the Draft Rules 2025 are retained in the rules upon their formal notification, there is a strong likelihood that they may be declared ultra vires and, consequently, rendered unenforceable.

Before concluding this piece, it may not be out of place to mention that exercising sufficient caution during the legislative (both primary and delegated) drafting process is essential to anticipate and address potential challenges, thereby reducing the likelihood of subsequent disputes and unnecessary litigation. It is also imperative that the state make substantial investments in capacity building to enhance the skills and competencies of officials engaged in legislative drafting.

Author is a Professor of Law, Saveetha School of Law, Chennai. Views Are Personal.

1. Para 3, Notice for Public Consultation dated 31 July 2025, Ministry of Fisheries, Animal Husbandry and Dairying, Government of India. ↑

2. Clause 2 (1) (d), Draft Sustainable Harnessing of Fisheries in Indian Exclusive Economic Zone of India Rules, 2025 ↑

3. Clause 5 (b), Draft Sustainable Harnessing of Fisheries in Indian Exclusive Economic Zone of India Rules, 2025 ↑

4. Clause 2 (1) (c), Draft Sustainable Harnessing of Fisheries in Indian Exclusive Economic Zone of India Rules, 2025 ↑

5. Clauses 15 and 16, Draft Sustainable Harnessing of Fisheries in Indian Exclusive Economic Zone of India Rules, 2025 ↑

6. D. N. Ghosh and Another v. Additional Sessions Judge and Others, AIR 1959 Cal. 20 ↑

7. Civil Appeal No. 9252 of 2022 ↑

8. Additional District Magistrate (Rev.) Delhi Admn. v. Siri Ram, (2000) 5 SCC 451. ↑

9. (1988) 2 SCC 351 ↑

10. State of T.N. and Another v. P. Krishnamurthy and Others reported in (2006) 4 SCC 517 ↑

11. (1988) 2 SCC 351 ↑