Forum-shopping and shopping forums in Indian purse seine fisheries – an analysis of the upper ranges of a sociolegal law process

Abstract

This paper enquires into the dispute resolution process of an important marine fishery in Tamil Nadu, India, in the current era. It makes use of insights drawn from Benda-Beckmann’s seminal paper (1981) that introduced the conceptual dyad “forum-shopping” and “shopping forums” to the sociolegal field of studies. While Benda-Beckmann focuses on dispute processing at the village level, this paper highlights the process whereby local disputes are introduced first to the Madras High Court and subsequently to the Supreme Court of India. An analysis of court materials, supplemented with ethnographic interviews, throws light on prevailing discourses that are argued to contain distinctive combinations of environmental, developmental, and distributive arguments. The paper argues that Benda-Beckmann’s contributions are multi-layered and continue to inspire contemporary scholars interested in legal pluralism. While Indian disputants’ shopping activity has changed to include higher state courts, the forums thus examined prove to actively engage in shopping for cases and for arguments.

Keywords:

• Legal pluralism
• India
• purse seine fisheries
• forum-shopping
• shopping forums

1. Introduction

India’s marine fisheries sector constitutes a rich legal pluralist dig site for dispute-regulating processes and sociolegal enquiry (Bavinck 2001; Jentoft et al. 2009; Johnson and Bavinck 2010; Karnad 2017). The conflicts that are now racking one of its major fisheries are possibly the most serious to have occurred since the introduction of trawling in the 1960s and 1970s. Not only does the practice of purse seining, otherwise known as ring seining¹, pit substantial sections of the fishing population against one another; these conflicts have also drawn in government administrations, scientific committees, and courts at different levels. The hearings that are currently taking place in the Supreme Court of India constitute the pinnacle of the dispute resolution efforts taking place in the semi-autonomous field of fisheries (Falk Moore 1973).

To understand the current pattern of events, this paper makes use of the insights of Keebet von Benda-Beckmann in her seminal paper on forum-shopping and shopping forums in Indonesia (Benda-Beckmann 1981). Benda-Beckmann discusses forum-shopping as the behaviour of disputants choosing between different institutions for the purpose of resolving disputes, and shopping forums as the process whereby institutions and individual functionaries try to acquire and manipulate such disputes to their own advantage (ibid., 117). Benda-Beckmann’s case study focuses on disputes over a fishpond in the village of Bukit Hijau in Sumatra, Indonesia. Her investigation takes a legal pluralist perspective and traces the intricate ways in which different state and non-state institutions, mainly at the village level, are approached and deal with the issues at hand. A key question concerns “the extent to which state courts function as an alternative to village institutions” (Benda-Beckmann 1981, 118) – an enquiry that brings in the governmental machinery, at least to an extent. In her analysis, however, village-based institutions are still responsible for the lion’s share of dispute processing efforts.

The purse-seining conflict that I consider here has clearly moved beyond what I call the lower ranges of the dispute process in which village-based, customary institutions play the main role. Although the ur panchayats, or village councils, and the head villages that form an equivalent to the Indonesian Adat Council and its sub-units in Benda-Beckmann’s study, still drive the conflict, they have by now evolved into a backdrop for high-level court cases in the state of Tamil Nadu (where the High Court is the pinnacle of authority) and the country as a whole (where the Supreme Court rules). The process by which the shift from local to regional and national forums has occurred and the different “voices” that populate the new arenas form the empirical focus of my enquiry. These voices now also include the perspectives of bureaucrats, scientists, judges and politicians.

I argue that the difference in scale between Benda-Beckmann 1981 article and my present contribution does not speak to a substantial variation in socio-legal approaches. Thus Benda-Beckmann has frequently reflected in depth on socio-legal trends at national and international levels and at how these relate to dispute regulation processes at the local level (Benda-Beckmann and Turner 2020). As for myself, I have discussed local dynamics of the present purse seine conflict in an earlier article (Bavinck 2020), which might serve as a companion piece to the present one. My earlier text analysed the growth of the purse seining industry in Cuddalore District in the period 2000 until 2017 and focused on events at the lower ranges of dispute regulation (i.e. the district and village levels). Now I investigate subsequent developments, commencing with how a murder not only upset the local playing field but precipitated bureaucratic interventions as well as court procedures at upper ranges of the regulation process (i.e. at the state and national levels).

By chance, both studies relate to “fish” as a natural resource and food item, but we must at onset point out a difference. Benda-Beckmann’s case relates to property rights over an enclosed fishpond, while mine concerns access rights to a common marine resource (Peluso and Ribot 2020; Ribot and Peluso 2003). Such access rights are partly determined by technology, which permit those who make use of new fishing gear such as the purse seine to realize unusual bumper catches (and similar financial profits). Disputes over the use of the new fishing gear follow from imputed environmental, social, and developmental impacts thereof, the veracity and ethics of which are contested. Environmental and developmental (or economic) impacts do not figure in Benda-Beckmann’s case, which centres on alleged transgressions of protocol. Whereas Benda-Beckmann’s case lingers at the local level, the conflicts that have arisen over the practice of purse seining have spread like wildfire along India’s coastlines. This dynamic has affected the locus and import of the dispute resolution process. While customary fisher institutions continue to play a crucial role, momentum has been shifting to state institutions.

In his review of Benda-Beckmann’s seminal paper, Lund (2021) writes admiringly about how Benda-Beckmann “breathes life into the institutions by taking seriously their actions and interests, their competition, and contradictions” and demonstrates, in the interim, that “the whole institutional context is also always in the making” (2021, 415). His reflection builds upon the insights of Sally Falk Moore and her book “Law as process” (Falk Moore 1978), and it is in this spirit that Benda-Beckmann and myself too have examined our empirical cases. In this connection, Benda-Beckmann’s attention for the post-trial phase of dispute (Benda-Beckmann 1985), constitutes an important expansion of the argument.

Sociolegal struggles over regulation in the environmental field are frequently discussed in terms of discourses (Adams 2020; Hajer 1995), or ideas and narratives of justice (Kokal and de Souza 2023). In similar vein I will argue that at least three discursive threads run through dispute-processing on the practice of purse seining in India: one that focuses on environmental impacts, a second that considers the socio-economic development of the country, and a third that highlights distributional consequences within the semi-autonomous fisheries field. These discursive threads do not coincide with specific actor groups but present themselves in different combinations.

Lund (2021) points out that in addition to a wealth of empirical detail, Benda-Beckmann makes two kinds of theoretical contributions. First, she endeavours “a plausible explanation of an empirical situation” (ibid., 415) – a form of “very small theory” which I shall also attempt below. Secondly, she suggests a series of questions or fields of investigation of a broader, heuristic nature. These are discussed in the penultimate section of this paper.

But Lund fails to mention Benda-Beckmann’s crucial impact: the very introduction of the concepts of forum-shopping and shopping forums into the domain of legal pluralist scholarship. It is true that at the time of her 1981 article, the term forum-shopping was already being practiced in the legal field (Granger 1974). It was unusual, however, to apply this concept in the broader sociolegal realm of formal and informal law. The term “shopping forum” on the other hand was newfound, although the idea that dispute resolving bodies engage in a search for cases was certainly understood. I will argue that the paired induction of forum-shopping and shopping forums added potent conceptual tools to the field.

The empirical materials on which this article is based derive from almost three decades of sociolegal research on fisheries regulation in Tamil Nadu and Cuddalore District, and on a close reading of relevant court materials (see Appendix A for a list of sources consulted). More specifically, it relies on fifteen in-depth interviews with fishers, department officials, and legal authorities in 2023. For reasons of personal safety of respondents, I apply pseudonyms, except where the identity of persons is already in the public realm.

The paper has the following outline. I first sketch the backgrounds of purse seine fishing along the east coast of India, with a focus on its alleged “headquarters” in Cuddalore District. The following section describes a nail-biting showdown at the local level, which opened the floodgates to state court proceedings. I then discuss the results of proceedings in the Madras High Court and the Supreme Court, and identify the arguments that are voiced. Sections 3–5 discuss the course of events at an empirical level, while Section 6 returns to the arguments made by Benda-Beckmann (1981) and others.

2. Background

Purse seines are large aggregating devices that allow groups of fishers to capture entire schools of pelagic fish such as sardines, anchovies, mackerel, and tuna. Having been pioneered in the neighbouring state of Kerala (Gopal, Hapke, and Edwin 2023; Kurien 2000), the use of purse seines in Tamil Nadu proliferated after the tsunami of 2004. In Cuddalore District, this resulted in the separation of its fishing population (46,090 in number) into two camps: one engaged in purse seine fishing and the other virulently opposed to its practice (cf. Bavinck 2020; Joseph 2023; Menon et al. 2023; Rao and Djohari 2024; Rao and Manimohan 2020). Opponents – headed by the village council of Samiyarpettai - stressed the undesirable environmental impacts of purse seine fishing, namely the depletion of marine life, and the negative effects it was having on small-scale fishers who saw their catches and incomes decline rapidly. Proponents headed by the fishers of Devinampattinam, however, argued that: “Without the purse seine, the fishing community cannot develop!”

Interestingly, the government of Tamil Nadu had issued a notification prohibiting purse seine fishing² in the year 2000 but took no action to implement this ban. This resulted in a paradoxical situation of a large, yet entirely unregistered and therefore illegal purse seine fleet occupying the fishing harbour of Cuddalore town in 2017 (Bavinck 2020). Tensions ran so high at the time that to even talk about purse seining was considered dangerous for researchers and ordinary citizens alike.

The cycle of dispute-resolution efforts in purse seine fishing in Cuddalore now spans at least two and a half decades. It has witnessed the involvement of an increasing number of regulatory parties. At inception, in the 1990s and early 2000s, the conflict over purse seine fishing involved two parties, organized into two sets of ur panchayats led by so-called head villages (talai nagar). The animosity between these groups was presumably aggravated by the fact that they belong to different fishing castes with limited kinship ties between them. Violent clashes between the two parties alternated with mediations and contributed to the passing of Government Order Nr. 40 (henceforth GO 40) that prohibited purse seine fishing altogether. GO 40 reads as follows:

Fishing by Pair Trawling or fishing with Purse-Seine nets by any fishing vessel/Craft, whether country craft or Mechanised boat, irrespective of their size, and power of the engine, in the entire coastal areas of Tamil Nadu in the territorial waters, as a measure to conserve the fishery. This Order shall come into effect on and from 25.3.2000 (Government of Tamil Nadu 2000).

Not having received an executive interpretation until 2020,³ however, GO 40 largely remained a paper tiger.⁴ While the number of purse seines in Cuddalore District steadily increased over the years, fisher opponents submitted increasingly urgent petitions to the district administration. In response, the district administrators initiated district-level peace committees. The peace committee meetings that ensued inevitably resulted in the purse seining party promising to discontinue its operations within a period of one to three years. As lucrative supply chains connecting purse seine fishing to consumer markets in Kerala and fish reduction enterprises in Mangalore expanded (Scholtens, Subramanian, and Jyotishi 2020), however, and moneyed interests became involved, purse seine fishers conveniently forgot their vows and continued operations. Their sense of being harassed and unfairly constrained by the anti-purse seine camp, however, mounted, eventually resulting in the murder of a fisher village leader who belonged to the latter party (see the reconstruction of events below).

3. The showdown

Tensions between proponents and adversaries of purse seining had reached a boiling point by April 2018. The annual closed season of semi-industrial fishing in Tamil Nadu⁵ had just commenced: this had locked down not only the trawl fleet of Cuddalore town, but the purse seine fleet too. Under the conditions of the closed season, however, small-scale fishers were still allowed to go fishing and one group thereof, deriving from the hamlet of Sonankuppam, one day had made use of a gear type (a so-called suttuvalai or surrounding net) to corner a school of small fish. Viewing this gear as a modified version of the purse seine, the irate purse seine fishers of Devanampattinam, who – it must be noted – at that moment lacked the moderating influence of an effective ur panchayat, rushed over to Sonankuppam in protest. In the violent altercation that ensued, a village leader in Sonankuppam was stabbed and died.

Fearing the possibility of Sonankuppam fishers enacting revenge and the law-and-order situation deteriorating further, the district administration reacted in force. The then Assistant Director of Fisheries, a woman officer by the name of Ramyalakshmi, played a key role, not only in this but also in subsequent events. She was first of all able to convince the Sonankuppam council not to exact physical retribution, but to instigate a police enquiry into the murder instead.⁶ In lieu of an active ur panchayat, she also made efforts to have the Devanampattinam fishers appoint a leader to represent the community.

In following months, a group of fishers from Sonankuppam – now supported by related fish traders and by other sympathizers from the village and beyond – lodged a landmark case with the High Court of Madras demanding that the Government of Tamil Nadu finally implement GO 40. This case – known as Harikrishnan vs the Government of Tamil Nadu (nr 17171) – ended (in 2021) in a judgement that was completely in their favour. In line with the outcomes of this court case the administration closed down the purse seine fishery not only in Cuddalore District, but in adjoining Nagapattinam District too. It also stopped the large-scale transportation of fish (presumably of purse seine origin) taking place in the region. In response, purse seine fishers and traders from both districts lodged counter cases in the High Court of Madras, asking for leniency; however, these were all rejected. Occasional incidents involving a purse seine unit were inevitably countered by the government administration that arrested the transgressors and impounded the nets.

The ultimate showdown took place in June 2019, at the end of the annual closed season (Bavinck et al. 2008). The Fisheries Department had discovered that defiant purse seine fishers of Devanampattinam were planning an opening of what they saw as their fishing season; in response the Assistant-Director had joined up with the Police Department and the Regional Transport Office to secretly organize a roadblock. During the night of June 10th, while five trucks carrying purse seine crews and nets were thus waylaid and arrested; the trucks were subsequently conveyed to the Cuddalore police station for safekeeping. With government departments sticking together, the purse seine fishers’ resolve gradually dissipated. Public protests against government interference in fishing then emerged throughout the Coromandel Coast and individual officers became threatened, but the administration maintained its stand. The purse seine fleet of Cuddalore town consequently scattered, with owners moving their craft to harbours such as Pondicherry (where purse seine fishing too was prohibited). The officer of the Fisheries Department was subsequently awarded a decoration for courage and daring enterprise (Kalpana Chawla Award). The newspapers announced this award as follows:

“Ramyalakshmi had taken action against the usage of destructive banned purse seine nets through her continuous dedicated action, thereby protected the marine fishery resources and ensured the sustainable livelihood of traditional fishermen of Cuddalore. In appreciation of her brave and courageous action in enforcing the Tamil Nadu Marine Fishery Regulations Act 1983 and protection of livelihood of traditional fishermen, the government confers the award for the year 2019.” (Oppili 2019).

Although purse seine fishers and their opponents had already been inviting the judgement of the government courts prior to the fateful events of May 2018, these efforts now increased in earnest. As we shall see in Section 3, not only did the two parties come to request the opinion of the High Court in Madras but the Supreme Court too. These altercations focused not only on the rights of purse seine fishers to operate within territorial waters controlled by the government of Tamil Nadu but also in extra-territorial waters. Fisheries in extra-territorial waters are constitutionally the mandate of the Government of India, not of Tamil Nadu. But the government administration of Tamil Nadu was penalizing ring seine fishers in the state irrespective of their fishing grounds, the reason for which being that: “it is very difficult for the State Government to either monitor or police fishing which may be done in or around the territorial waters, as it is very difficult to demarcate and ascertain as to where the territorial waters ends” (plaint by Tamil Nadu lawyer Mukul Rohatgi, Fisherman Care vs Government of India 2023). The latter condition has habitually plagued the Fisheries Department of Tamil Nadu (and all other coastal states) in the exercise of its regulatory duties (Bavinck 2001).

Before concluding this section, it is important to note that, having tolerated the practice of purse seine fishing for almost two decades, government administrators in charge of the implementation of the ban had now also won important support from the political field. This condition is illustrated by the fact that the Chief Minister of Tamil Nadu convened a special meeting on July 11^th, 2020 at CM Camp office to discuss the matter of purse seining in the state; a follow-up meeting on the topic was organized on July 15^th, 2020. One of the topics of discussion was an alternative livelihood schemes for purse seine fishers, such as “by providing subsidy assistance for purchase of deep-sea fishing boats, tuna longliner cum gill netter and FRP boats with engine and nets” (Counter affidavit by Commissioner of Fisheries, in Harikrishnan vs Government of Tamil Nadu 2021).

4. The opposing narratives

The parties involved in the dispute over purse seine fishing make use of different socio-legal arguments geared toward obtaining favourable judgements from the court in question. In the following pages, I explore the nature thereof as expressed in the documents of two outstanding cases, one in the High Court of Madras and the other in the Supreme Court of India. I also refer to reports of two technical committees (Report of the Technical Committee 2014; Report of the Expert Committee 2022) installed by the Government of India, both of which play an important role in proceedings.

The first courtcase followed upon a writ petition lodged by a fisher named S. Harikrishnan from Cuddalore, which insisted on the wholehearted implementation of GO 40 (Harikrishnan vs Government of Tamil Nadu, 2021). The second is a case lodged by Fisherman Care, first in the High Court of Madras, and then in the Supreme Court. Fishermen Care pleads for the allowance of purse seine fishing, both within territorial waters and beyond.

4.1. The case before the Madras High Court

Writ Petition 17171 (Harikrishnan vs. Government of Tamil Nadu 2021) submitted by S. Harikrishnan and a group of local supporters requests the government of Tamil Nadu “to take action against persons using fishing gears in contravention of G.O. Ms. No.40.” In other words, these petitioners were demanding government officers to finally implement the order that had been issued eighteen years before. The lodging of this case is closely connected to the murder of a village leader (see Section 3 above), which infused energy and funds into the anti-purse seine movement.

In this case, Harikrishnan’s lawyer explained:

It is the case of the petitioner that he is a fisherman in Cuddalore District, and there are about 15,00,000 fishermen in an around Tamil Nadu. According to him, most of the small fishermen use country boat, and small catamaran [traditional wooden craft, mb], for fishing. In many cases big fishing vessels […] which are not prepared in accordance with the rules and regulations, are using Purse - Soine [Seine] nets […] to catch the entire fishes [i.e. fish schools], without allowing the small fishermen, to catch fish. […] According to the petitioner, because of using, the above said types of boats, and fishing nets, several cases of the death of dolphins, and tortoise, were reported. […] It is the further case of the petitioner that in [purse seine] boats, where 50 to 60 persons are engaged, they threatened and beat fishermen in small boats, and in some cases, they [i.e. the small fishermen] were thrown out of their boats [and] […] harassed. It is also the submission of the writ petitioner that, those who use bigger boats, also use modern equipments, to trace fishes, and make full catch, without any provision, for small fishermen. Though on several occasions several complaints were made, the authorities have turned deaf ears, and not taken any action (Harikrishnan vs Government of Tamil Nadu 2021).

Having accepted the veracity of the complaint, the government pleader, Mr. T.N. Rajagopalan, requested time to obtain background information from respective government departments. Two months later the court was provided with status reports on action taken by the state government to implement GO 40. These status reports point out that during the intermittent period the state had taken pains to announce the ban to the fishing population, but also carried out punitory inspections in the harbour area. In short, the government pleader convinced the judge that the government was sincere in implementing GO 40. As a result, the case was dismissed.

The High Court’s approach toward purse seine fishing in Tamil Nadu that emerged from the above lawsuit was confirmed by another case, also submitted by Fisherman Care. Its Petition (Fisherman Care vs Government of Tamil Nadu, 2021) requested fishers in Tamil Nadu to be allowed to use purse seine nets within territorial waters. The petitioners based themselves on the opinion of an expert committee installed by the Union Government of India that noted that many people were dependent on purse seine fishing and that a complete ban “would be equal to sinking the entire investment made by the enterprising fishermen” (Report of the Technical Committee 2014). This committee had suggested that existing nets might be used for fishing, but no new nets should be added.

The High Court, however, went along with the Tamil Nadu State in its counter affidavit, which argued “that the purse seine nets were used by a section of affluent mechanized fishing boats and only a small section of traditional craft fishermen in the coastal districts of the state.” The Court therefore concluded that “In the light of the above and since the State has re-visited the matter and indicated cogent grounds to continue with the prohibition on purse seine fishing and purse seine nets being used in any manner or form, WP 5356 of 2021 is dismissed” (Fisherman Care vs Government of Tamil Nadu 2021).

4.2. The case before the Supreme Court requesting purse seining to be allowed (at least beyond territorial waters)

Having thus attempted to reverse government policy via the High Court of Madras, Fisherman Care raised the stakes and submitted a Special Leave Petition to the Supreme Court of India, challenging the Government of India and the Government of Tamil Nadu over the validity of GO 40 and the Tamil Nadu purse seine ban, thereby making use of an option provided by the Constitution of India (Article 136). More specifically, it challenged the right of the Tamil Nadu administration not only to prohibit purse seine fishing within territorial waters, but to stop purse seine fishers in Tamil Nadu from transiting state waters and fish in other portions of India’s Exclusive Economic Zone (that is, beyond 12 nautical mile distance). This case is noteworthy because it brings into relief the positions that various parties situated at different scale levels have been taking. We consider them one by one.

Fisherman Care is a small, registered association centred in the one-room office of a lawyer family of fisher origin in Chennai. In the two cases discussed in this paper it took a clear position in favour of purse seining; the costs incurred in lodging cases first in the High Court and later in the Supreme Court were ostensibly met from the senior member’s pension but also from contributions by wealthy fishers and traders in its local network. Fisherman Care does not have much Supreme Court experience yet; one of the fishers who made a financial contribution to these cases scorned that its team of lawyers had been incompetent and lazy, and incapable of answering the questions posed by the Supreme Court judge. The younger member of the family also expressed bitterness about the outcome of hearings hitherto, complaining that Fishermen Care had not been able to afford a lawyer “with high face value.” He concluded that Fisherman Care is a “lone fighter” that has a difficult time realizing justice (Interview April 23^rd, 2023).

The Tamil Nadu government was represented by one of the most senior counsels available in the Supreme Court, Shri Mukul Rohatgi, who had served earlier as the 12^th Attorney General for India. Research respondents perceived the appointment of Shri Rohatgi as an indication that the Tamil Nadu government was very serious about maintaining the ban on purse seining as he is viewed as a very capable lawyer (and was consequently demanding a very high fee). In his plea, this counsel made use of an extensive Counter Affidavit filed by the Government of Tamil Nadu, as well as on Supreme Court orders passed in similar cases in the past.⁷

A deputy government advocate, Shri Amrish Kumar, was appointed to represent the Government of India. He leaned on a Counter Affidavit filed by the Deputy Commissioner (Fisheries) of the Ministry of Fisheries, Animal Husbandry and Dairying as well as on the report of a new Technical Expert Committee (installed on August 8, 2022) to advise the Court on the matter at hand. This Expert Committee, chaired by the Director of the Central Marine Fisheries Research Institute (CMFRI), consisted of nine very senior government officers. It submitted its interim report on November 15, 2022 (Report of the Expert Committee 2022). Based on these documents and the multiple hearings that took place, largely in an online fashion, the judge in question, Mr. A.S. Bopanna, passed a restricted interim order on January 24^th, 2023. The final order will follow only after the Expert Committee submits its final report.

So what arguments did the parties make? I summarize them one by one. The viewpoint of the Tamil Nadu government was that the petition was “without any merit and deserves no consideration” (Counter Affidavit 25-8-2022). It argued that the use of purse seines has “resulted in capture of fish enmass [i.e. en masse] by a group of fishermen without letting other traditional fishermen to capture them using legally permitted nets. This has been the cause for several law-and-order situations” (pt 5). Continuing this line of argument the government pointed out that “most of the traditional fishermen are against the usage of purse seine nets for fishing operations which will deplete the fish stocks” (pt 16). Its reference to the “depletion of fish stocks” echoed the text of GO 40 that is motivated “as a measure to conserve the fishery”. During the hearing, Sri Rohatgi added that purse seining “is a method which is used by affluent and rich fishermen or big fishing companies, as this technology is costly and beyond the reach of ordinary fishermen” (summarized in Order, Fisherman Care vs Government of India 2023).

Secondly, the counsel noted that the Government of Tamil Nadu had formulated GO 40 only after “careful consideration with the objective of conservation of the fishery biological resources” (pt 6). The earlier Technical Expert Committee (2014) had already made mention of the fact that purse seining was resulting in a heavy exploitation of juvenile sardines, a matter which contradicts the precepts of sustainable fishing (pt 11), and that small pelagic fish – the target of many purse seine operations – “are important in the food web of a marine ecosystem. By using purse seine nets, if we catch the entire shoal of this pelagic fish, it will affect population dynamics. Hence, it is necessary to protect and conserve pelagic fishery” (pt 13, 19). Pointing out inter alia that the present fleet of purse seine vessels in Tamil Nadu had never been registered or licensed (pt 7), he underlined the fact that the High Court of Madras has underwritten GO 40 numerous times and that it is the prerogative of the executive – in this case the Government of Tamil Nadu – to regulate fishing and fishing related activities (pt 29) in territorial waters.⁸

During the hearing, the counsel for the Government of Tamil Nadu seems to have added yet another practical argument: that in case purse seine fishing were to be allowed, “it is very difficult for the State Government to either monitor or police fishing which may be done around the territorial waters, as it is very difficult to demarcate and ascertain as to where the territorial waters ends” (summarized in Order, Fisherman Care vs Government of India). This observation correlates with Bavinck’s (2001) assessment that the limited staff capacities of the Fisheries Department of Tamil Nadu do not tally with its responsibility to patrol fisheries along a very long and heavily fished coastline.

Benefiting from the inputs of the second Technical Expert Committee (Report of the Expert Committee 2022) that had meanwhile been released, the Deputy Commissioner (Fisheries) of the Government of India, however, took quite a different position. As the Technical Committee had estimated that “purse seine fishing in Indian waters per se has not resulted in any serious resource depletion” (ref) he argued that “a ban on purse seine fishing is not justified, and may be allowed […] subject to certain conditions” (pt 9).

Depending strongly on the advice of a Technical Expert Committee, it is worthwhile considering its interim report (Report of the Expert Committee 2022) in more detail. This Committee had been requested to assess: (1) the impact of purse seine fishing on fish stocks within India’s EEZ, and (2) the ways in which conflicts in this field could be addressed and national consensus promoted. Regarding point 1, it argued unequivocally that there is no evidence for a depletion of small pelagic fish species in Indian waters (pp 6–10). To the contrary, it notes that “the seines are found to be the most effective and efficient method for targeting small pelagics” (p10).

Regarding point 2, the Committee admitted that “the exponential rise of the newly founded [purse seine] fishery led to significant drain of revenue for the competing fisher factions who use alternative fishing techniques such as gillnetting and trawling, besides a range of traditional fishing nets” (p11). As a result of serious conflicts between the two groups of fishermen, it noted that state governments have engaged in “regulatory interventions” (p12). To move the matter forward, the Committee suggests developing a “comprehensive” and “scientifically informed” national management plan, “taking due cognizance of the state-level ground realities, and in tune with the blue economy aspirations of the nation” (p13). This plan is to include spatial as well as temporal access plans for territorial waters, and a comprehensive seine fishery management plan for areas beyond territorial waters. In addition, governments should regulate the capacity of the purse seine fishery (such as through limitations on engine power, boat size, and mesh size).

The Supreme Court judge in question, Mr. A.S. Bopanna, realizing that the “interest of all parties need to be protected” (p3), but that he still lacks a final report from the Technical Expert Committee, has so far issued a restricted interim order only. In this order (Fisherman Care vs Government of India 2023) he has decided to partially allow purse seine fishing beyond territorial waters. The conditions posed include purse seine vessels fishing for only two days a week and only between 8 am and 6 pm. Representatives of the purse seine fishing sector in Tamil Nadu have expressed severe disappointment about the content of this interim order. How could one recover the costs of investment and operation within such limited time periods? In spite of the small window of opportunity that had been created by the court, the Government of Tamil Nadu insisted on keeping the entire purse seine fleet locked up in their respective harbour locations.

5. Discussion in terms of fisheries management

This Section aims to untangle two knots. First, it looks briefly at the motivations for prohibiting, or, on the other hand, allowing purse seine fishing in Cuddalore District and Tamil Nadu as a whole. These concern the supposed impact of purse seine fishing on: (1) conservation, (2) development and (3) social justice. Secondly the section scrutinizes the performance of the Fisheries Department of Tamil Nadu in implementing the ban on purse seine fishing, asking into the reasons for its success. As pointed out in Section 1, the Fisheries Department of Tamil Nadu does not have an impressive record for fisheries management. So what factors have made a difference?

GO 40 provides a concise purpose of the ban, namely “to conserve the fishery”. The suggestion is that the purse seine fishery is detrimental to fish stocks and will affect the future of fisheries in the region. This formulation resonates with broader international and national concerns regarding the practice of “fishing down the food web” (Bhathal and Pauly 2008; Vivekanandan, Srinath, and Kuriakose 2005), Illegal, Unreported and Unregulated (IUU) fishing (Petrossian 2015), and, more generally, the sustainability of the oceans. It resounds also with the observations of numerous fishers along the Coromandel Coast, who are observing the deterioration of the marine ecosystem and their historical profession (Johnson and Bavinck 2010; Karnad, Gangal, and Karanth 2014)

But how sound is the science in question? The two technical expert committees (Report of the Technical Committee 2014; Report of the Expert Committee 2022) that have studied the impact of purse seining in India on fish stocks express doubts about the reality of overfishing. The authors of the 2022 draft study are most emphatic, arguing that “purse seine fishing in Indian waters […] has not resulted in any serious resource depletion” and that “a ban on purse seine fishing is not justified” (Report of the Expert Committee 2022, 14, 13). In response, however, authorities in Tamil Nadu have argued that the quality of science for the West Coast is much better than for the East Coast, and that the situation in the latter region requires more investigation (Counter Affidavit Commissioner/Director of Fisheries Department, Tamil Nadu, January 2, 2023).

The second technical expert committee, however, ties in another argument for allowing purse seines: that seines are both the “most effective and efficient method for targeting small pelagics” (Report of the Expert Committee 2022, 10). This brings in the theme of development, or modernization, which has preoccupied Indian policy makers in the field of fisheries since Independence. If a fishing gear is “effective,” it means that it will probably catch more fish than any other gear would, if it is “efficient” it will do so with less effort exerted.

It is important to note that it is not only policymakers whose eyes sparkle with the perspective of development; purse seine fishers and women traders make exactly the same claim. Purse seining is asserted to be the only way in which fishing households in the present circumstances can improve their socio-economic positions; in the view of purse seine proponents, the implementation of GO 40 is meant to keep them in a “backward” condition.

Then, finally, there is the justice argument that pervades thinking in the anti-purse seine fisher camp and emerges in the narrative of the Tamil Nadu government too. The fact that purse seining can result in declining catches and incomes for other small-scale fishers is also acknowledged by the two technical expert committees. It is the “decline of fisheries” together with the “unfairness” argument that strongly motivates those in the anti-purse seine fishing camp and motivates government parties, who are concerned about their respective vote banks, to pay attention. The pro-purse seine camp draws sustenance from its understanding that fisheries are not at all in decline, and that purse seining is actually a sign of developmental progress.

Aside from views on conservation, development and justice other arguments too have been brought forward: that the Tamil Nadu government wishes to avert ongoing law-and-order problems and foresees difficulties in bringing about an effective zoning arrangement between purse seiners and other fishers. Similarly, in the present political landscape, the Tamil Nadu government (that is led by the DMK party) apparently does not appreciate the interference of the central, BJP-ruled government in its affairs.

Let us move to issue number two. We noted at the inception of this paper that the locus of dispute resolution in the case of purse seining in Tamil Nadu has gradually moved from the district to the state and to national levels, thereby coming to envelop multiple government departments and courts, and playing a role in politics too. Any analysis of events must therefore be multi-layered and multi-focused. For the long-time student of Tamil Nadu fisheries, however, the actions of the Tamil Nadu Fisheries Department and its departmental allies stand out. Why did the Fisheries Department in 2018 suddenly come down on the established practice of purse seine fishing in Cuddalore? How did the Department succeed in this regulatory effort? And finally, if at all, what does this train of affairs have to say about the future of fisheries management in Tamil Nadu?

Regarding the “why” of action, the first thing to emerge is the frustration that officers of the Fisheries Department have habitually experienced regarding purse seining in Cuddalore District, and the pride with which they consider their regaining of control. A senior officer of the Fisheries Department who was involved in this effort thus exclaimed enthusiastically: “This was the most satisfying action in my whole career!” A similar sense of pride was expressed in an interview with the officer who was decorated for her role in the process. So where did this exhilaration among officers come from?

Looking back, one respondent pointed out that the question “How to control [purse seine fishing in] Cuddalore?” had been occupying minds in the Fisheries Department for a long time already. The problems prevailing in this district had manifested themselves most clearly in the turnover of staff: no officer was willing to spend time in Cuddalore, most of those posted there soon asked for a transfer. This situation was caused not only by of the intransigence of the purse seine fishing problem at a policy level. As soon as officers dared to take any kind of action against purse seining, they also risked threats to their person. A Fisheries Department official thus recalls how she was told that purse seine fishers were quite aware of her home address, and that – as a precaution at the height of the tensions – she was changing scooters and number plates every two weeks. Other respondents recollected with horror how several officers of the Department had actually been assaulted in the course of their duties. In the eyes of the Department, the purse seine fishers of Cuddalore had become arrogant and felt themselves above the law.

The sense of professional insecurity that emerged from research was augmented by many officers’ conviction that purse seining is a negative fishing practice that deserves to be rigorously controlled. Earlier efforts to enforce GO 40 in other parts of Tamil Nadu had failed due to political interference.⁹ In response to queries, one officer thus argued:

One must realize that with purse seines one can capture a whole shoal of fish at the same time. Gillnets [i.e. the gear used by small-scale fishers] are not like that: they allow fishers to catch only part of a passing school. Rich people are operating purse seines, they stand on shore and benefit. But ordinary fishers are suffering.

The opinion that purse seining is bad for the fisheries and for the fishing population was shared widely. The Director of Fisheries at the time of the crisis was of this conviction, as were many others in the Department and beyond.

As is often the case with surprising policy reversals, chance events and individual personalities have also made an important difference. Thus the murder in 2018 galvanized public opinion against the purse seine fishers of Devanampattinam and opened opportunities for taking punitive action. It also incentivized collective action of government departments – police, RTO, collectorate – within the district and beyond, and created support for launching a court case to actually implement GO 40.

As for the importance of individual characters, the most significant at the ground level was undoubtedly the officer who boldly took charge during the moments of crisis. She had also anticipated an eventual showdown by collecting information on available purse seine units ever since her appointment in Cuddalore commenced in 2017. The support of her seniors within the Department but also within other government circles was, however, crucial. Just as relevant is the fact that senior politicians with investments in purse seining had been laying low as the ruling party in Tamil Nadu was wholeheartedly backing the suppression of purse-seining.

To what extent will the Fisheries Department maintain its rigorous, anti-purse seining stance in future? This depends of course on numerous factors at national, state and district levels. These include the content of the Technical Expert Committee’s final report, the final judgement of the Supreme Court, and the likely development of a national management plan for purse seine fishing. Political equations in Tamil Nadu too will play a role. Whatever takes place in these settings, however, it must not be forgotten that purse seine fisheries – with their opportunities for disproportional returns – have lost none of their attractiveness. Some respondents therefore pointed out that purse seine fishing gear has not been disposed of but is probably stored in safe locations in case fortunes change. The supply chains that move purse seine catches from Cuddalore to profitable west coast markets are well-endowed and market parties will be awaiting an opportunity to reopen business.

6. Discussion and conclusion

Benda-Beckmann’s paper focused on a conflict over rights to a small village fishpond, the very existence of which was largely unknown to the outside world. The process of forum-shopping and the shopping behaviour of forums that she subsequently describes occur within or adjacent to that local village territory. This is hardly true for the Indian purse seine fishing case presented above, that has burst from its local origins into the national limelight. The difference between the two case studies raises questions about the temporal character of the research. It is noteworthy, for example, that Benda-Beckmann’s research material dates to the early 1970s, almost 50 years before the purse seine fishing events I have reflected on took place. During the intermittent half century, state law in rural Indonesia and India has demonstrably infiltrated the sociolegal spaces previously dominated by customary law. This change has occurred in the context of globalization, which has been connecting local economies to wider economic trends and occurrences. Reflecting on this disparity, one may wonder, for example, whether Benda-Beckmann’s local fishpond might nowadays be implicated in the widespread development of aquaculture in Indonesia, the legal parameters of which are defined in its Fisheries Law (2004) and mediated in state courts. In parallel, one could point out that the conflicts occurring about fishing in the early 1970s in India were largely mediated by reference to customary law, with governmental fisheries legislation not even having been formulated (Bavinck 2001). The temporality of our respective investigations has in other words, probably affected the scope of our inquiries. At the same time, it must be emphasized that comparable instances of dispute-resolution still take place at all scale levels, from local to national and international, while the range of actors and normative reference points has otherwise increased (Benda-Beckmann and Turner 2020).

Continuing along these lines, Benda-Beckmann’s question as to “the extent to which state courts function as an alternative to village institutions” (1981, 118) sounds outdated. In fact, state institutions have now captured a greater portion of available sociolegal space, infesting it with their own dynamics and power equations. Although the domain of customary fishing law in India is far from dead, customary dispute resolving forums have now – at least partly - transformed into claimants within state forums. The same is probably true for Indonesia.

More relevant for present purposes are the heuristic features that have given Benda-Beckmann’s paper some of its timeless quality. Lund points to an inquiry into the “very genesis of institutions” that her paper gives rise to. He notes first that: “If institutions feed on the recognition of claimants, it means that their authority can spring from the claimants’ appeal for recognition. Claims to rights prompt the exercise of authority” (ibid., 416). Second, he points out that Benda-Beckmann’s paper stimulates attention to what he calls “legal visibility”: that is “a presence in the eyes of […] forums and institutions” (ibid., 417). He continues: “Sometimes it is not the litigant him- or herself who is invisible as a rights subject, however, but rather the grievance which cannot be seen or heard” (ibid.). Finally, he notes that a central feature of the relationship between claimants and institutions is “recognition.”

These three features are relevant for the purse seine fishing case too. First, they draw attention to the fact that state courts – and all the actors involved, such as judges, lawyers and the scientists on technical committees - gain recognition from their involvement in the regulation of purse seine fishing. Individual fishers have also come to realize more strongly than before that beyond the qualities of their own leaders and the officers manning district offices stand governmental courts that have power make a stamp on the practice of fishing. Importantly these courts also give visibility to fisher disputants as rights holders whose claims warrant legal attention.

I have argued, however, that Benda-Beckmann’s most significant contribution has been the introduction of the conceptual dyad – forum-shopping and shopping forums – to the scholarly debate on legal pluralism. The purse seine fishing case provides illustrations of both phenomena. Forum-shopping behaviour is evidenced by the attempts of both fisher camps to win a favourable hearing in the High Court of Madras and the Supreme Court of India. To these litigants were added the Government of Tamil Nadu and the Government of India, who have both made efforts to sway Supreme Court proceedings in their favour.

The authorities’ attempts to diffuse local tensions by installing peace committees to decide on the disputes between contenders in purse seine fishing constitutes an example of a surreptitiously installed shopping forum at the district level – an effort that ultimately failed to resolve the issues at hand. While High Court and Supreme Court cannot be said to have scouted for fisheries disputes, such cases, once proffered, however, were actively embraced. Thus the High Court of Madras ordered the Fisheries Department to provide proof of actually implementing the law that banned purse seining in the state. The Supreme Court exerted comparable pressure on the executive in demanding the installation of an expert committee to assess the pros and cons of purse seine fishing.

But there is yet another aspect of shopping forums that emerges from the purse seine fishing case, when the Fisheries Department, in tandem with police and other district-level authorities, started arresting groups of purse seine fishers and impounding their equipment. By doing so, government authorities could be regarded as figuratively herding the defiant fishers into the corral of existing, but hitherto unimplemented legislation (namely GO 40), thereby inviting these fishers to challenge such legislation in court – which they subsequently did. Channelling cases in their direction, these government authorities prompted the courts to swing into action. These cases might otherwise have gone unnoticed or dealt with under the auspices of customary law.

Finally, the purse seine fishing case provides an illustration of how protagonists shop and compose a potentially convincing body of arguments, drawing elements from discourses that speak alternatively to the contribution of purse seine fishing to environmental degradation, social justice, and the socio-economic development of the country. The authority of the arguments made derives alternatively from science (such as from the insights of expert committees), legal precedent, the power of numbers (such as the sum of small-scale fishers that were being affected), the aura of modernity, the imagery of environmental harm (such as reference to a keystone species, dolphins, that were supposedly being trapped as by-catch), or even the reputation of the advocates standing before the court.

This paper has centred on the struggle over purse seine fishing as it has been occurring in India in recent years, making use of the concepts, heuristic insights, and approaches of Benda-Beckmann (1981). By combining and introducing the concepts of forum-shopping and shopping forums to what was then an incipient legal pluralist repertoire, Benda-Beckmann has given scholars in this field a rich pair of conceptual tools with which to study and analyse the sequence of dispute-managing processes in a semi-autonomous field. With this paper, and her continuing, tireless commitment to the field of legal pluralism, Benda-Beckmann has made what can still be considered a seminal contribution.

Acknowledgments

I gratefully acknowledge the useful comments made by two anonymous reviewers on an earlier version of this manuscript. I have also benefitted from the suggestions of Nitya Rao, Senthil Babu, Renaud Colson, A. Bhagath Singh, and Ajit Menon.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

Economic and Social Research Council.

Notes

1 In this paper, I make use of the generic term “purse seine,” realizing, however, that most fishers in Tamil Nadu prefer to use “ring seine” (or surukkuvalai) to describe the down-sized versions of the same equipment.

2 In addition to purse seining, GO 40 also prohibits the practice of pair trawling, which is left aside in this paper.

3 An Amendment to the Tamil Nadu Marine Fishing Regulation Rules that incorporated the ban on purse seine fishing (Article 17.7) came into force via GO 36 [Animal Husbandry, Dairying and Fisheries (FS-4)] on February 17^th, 2020.

4 For example, an Assistant-Director of Fisheries in one of the southern districts of Tamil Nadu who, faced with protests over purse seining, decided to strictly implement the GO, was soon transferred to a new post far removed from the coast (fieldwork notes).

5 The so-called monsoon fishing ban (cf. Bavinck et al. 2008; Novak Colwell et al. 2017).

6 This case was decided in 2023 when ten Devinampattinam fishers were given severe jail sentences.

7 State of Kerala vs Joseph Antony 1994; and Kerala SMTF vs Kerala Trawlnet Association 1994.

8 In the current restricted order (Fisherman Care vs Government of India 2023) Mr. A.S. Bopanna argues that “considering the subsequent development since 1994 and the stand taken by the Central Government in their affidavits, based on which this restricted interim order is being made, the above two decisions are kept open” for later review. The Commissioner of Fisheries in Tamil Nadu has, however, protested the provisional conclusions of the Technical Expert Committee (2022) arguing that very few scientific studies have yet been carried out on fisheries along the east coast (in comparison with the west coast) and that this need to be done before drawing wide-ranging conclusions.

9 See note 6 above.

Appendix A:

court materials consulted

Harikrishnan vs The Government of Tamil Nadu (2021): Writ Petition No.17500 of 2019. https://indiankanoon.org/doc/109198583/

Fisherman Care vs the State of Tamil Nadu, Department of Animal Husbandry and Fisheries Department (2021): Writ Petition No. 5356. Madras High Court. https://indiankanoon.org/doc/52176572/

• Order (April 20, 2021) https://indiankanoon.org/doc/52176572/

• Affidavit of the petitioner, L.T.A. Peter Rayan of Fishermen Care (affirmed February 25, 2021).

• Counter affidavit by Commissioner/Director of Fisheries Department, Tamil Nadu (affirmed April 19, 2021)

• Special leave petitition (Civil), number not indicated, filed on May 3, 2021 by advocate M.P. Parthiban)

Fisherman Care vs The Government of India, Department of Animal Husbandry, Dairying and Fisheries (2023): “Special Leave Petition (Civil) No. 8442 of 2021”, interim order on January 24. ttps://indiankanoon.org/doc/164774152/

• Counter affidavit by Commissioner/Director of Fisheries Department, Tamil Nadu (verified August 25, 2022)

• Short affidavit by Deputy Commissioner (Fisheries), Government of India (verified December 12, 2022)

• Counter affidavit Commissioner/Director of Fisheries Department, Tamil Nadu (verified date unknown, signed by notary K.S. Begum on January 2, 2023)

• Report of the Technical Committee to Review the Duration of the Ban Period and to Suggest Further Measures to Strengthen the Conservation and Management Aspects, Submitted to the Department of Animal Husbandry, Dairying and Fisheries, Ministry of Agriculture, New Delhi, India, dated September 2014.

• Report of the expert committee on purse seine fishing, submitted to the Government of India (November 15, 2022).