INDIA'S MARITIME ZONES AND INTERNATIONAL LAW :

A PRELIMINARY INQUIRY
V.S. Mani*
I Introduction
THE ROLE of unilateral acts of the states in the evolution of international
customary law can be hardly exaggerated. They have contributed vastly
to the generation of a wide range of principles and rules on diverse
aspects of international law. Often, they act as trend-setters in state
1
practice, thus initiating or pressing forth a change in the law.
This is particularly true in the realm of the law of the sea. Most part of
the traditional law of the sea emerged on the basis of unilateral acts of the
states, and the many changes effected to it have been through unilateral
acts, such as the Truman Declarations of 1945. This underscores the
operational significance of the unilateral competence of a coastal state to
determine the various national maritime zones.
Yet there is an important link between the exercise of the unilateral
competence of the states and its relatability to the international community
interests obtaining at a given point of time. As the International Court of
Justice held in the Anglo-Norwegian Fisheries case:2
The delimitation of sea areas has always an international aspect; it
cannot be dependent merely upon the will of the coastal State as
expressed in its municipal law. Although it is true that the act of
delimitation is necessarily a unilateral act because only the coastal
State is competent to undertake it, the validity of lhe delimitation
with regard to other States depends upon international law.2a
With regard to the validity of drawing of baselines, which was at issue in
the case, the court further pointed out that the rules of international law take
into account the diversity of facts and, therefore, concede that the drawing of
baselines must be adapted to the special circumstances obtain-ing in different
3
regions. Thus, the court's ruling signifies that the delimita-tion of the seas is
a unilateral act of the coastal state, but that in so far as the validity of such
delimitation eventually depends upon international law, it cannot but be
predicated upon objective factors and circumstances.
The present paper endeavours to study the course through which the

*Assistant Professor, Jawaharlal Nehru University, New Delhi.

1. On unilateral acts of states, see generally, Ian Brownlie, Principles of Public
International Law 615 ff. (2nd ed., 1973).
2. U.K. v. Norway, (1951) I.C.J.R. 116.
2a. Id. at 132 (emphasis supplied).
3. Id. at 133.

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 337

Indian law on coastal jurisdiction has so far traversed, and to examine

whether the changes that have been effected to it from time to time are
relatable to "the objective factors and circumstances" obtaining in con-
temporary international life. Such a study of the Indian practice in its
totality is particularly relevant in view of the current international
4
negotia-tions on a comprehensive treaty on the law of the sea ; the recent
changes that have been brought about in the Indian law by Parliament in
1976; and the general paucity of any comprehensive examination of the
principal aspects of Indian practice.5
This study attempts to identify broadly the principal interests of India,
and India's state practice both before 1950, and after 1950, with a special
focus on the 1976 legislation. It is confined to certain selected aspects of
India's state practice and their correlationship with international law. No
attempt is, however, made to examine the diverse problems and
modalities of actual exercise of the coastal jurisdiction, and these
questions call for separate in-depth treatment by the Indian scholars.
II India's coastal interests
India is a subcontinent bounded by three expanses of water, namely
the Arabian Sea in the west, the Bay of Bengal in the east and the Indian
6
Ocean in the south. It has a coastline of over 4,000 miles (6,536
kilometres) long. Over 1,280 islands are an integral part of the Indian
territory and about half of these comprise two mid-ocean archipelagos,
namely the Andaman-Nicobar group (of about 323 islands) in the Bay of
Bengal, and the Lakshadweep group (of about 22 clusters of islands) off
the coast of Kerala in the Arabian Sea.
India is a developing country acutely aware of the need for accelerated
economic development, and to achieve development, it well realises the
role of natural resources, particularly the more crucial among them, such
as the hydrocarbons.
India's continental shelf is broader off the western coast and off the
West Bengal, and narrower in other areas off the eastern coast. In fact,

4. For the basic issues of these negotiations, see S.P, Jagota, Basic Issues for the
Forthcoming Conference on the Law of the Sea, 14 I.J.LL. 141 (1974).
5. There have been so far very few studies on the Indian law and practice with regard
to the coastal jurisdiction. For some of these studies, see T.S. Rama Rao, Some Problems
of International Law in India, 6 Indian Year Rook of International Affairs 3 at 13-18
(1957); K-P. Misra, Territorial Sea and India, 6 LJJ.L. 465 (1966) ; P. Chandrasekhara
Rao, The Continental Shelf: The Practice and Policy of India, 3 IJ.I.L. 191 (1963). On
ancient Indian practice, see Nagendra Singh, India and Inter-national Law 30-36 (1969).

6. On India's interests, see the statement of H.R. Gokhale the Leader of the Indian
Delegation to the Caracas Session of the Third UN Conference on the Law of the Sea,
1974, reprinted in 14 IJLL.'x (1974); S.P. Jagota, supra note 4 at 156-8; E.Ahmad,
Coastal Geontorphology of India (1972)*

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338 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 21 : 3

the continental margin of India's land mass covers most part of the seabed in
the Bay of Bengal. Even under the now traditional 100 fathom limit, India
could claim resource rights on a continental shelf area approximately equal
to the whole of the gangetic plain. The shelf is the widest, about
400 kilometres, in the Gulf of Cambay, and its narrowest width off the
eastern coast ranges between 30 and 35 kilometres.
India has, of late, become aware of its marine resource potential. The
discovery of oil at a depth of 962 metres beneath the seabed at Bombay
High, off about 110 nautical miles from the coast has been an eye-opener.
Apart from hydrocarbons, the Indian continental shelf is rich in deposits
of monazite, ilmenite, zircon, garnet, calcareous sediments and
phosphatic and barium nodules.
India has equally deep interests in its coastal marine fisheries. 7 Over a
million fishermen are directly engaged in marine fishing. Landings of
marine fish in India have already exceeded one million tons per year.
India's coastal areas are endowed with a wide range of marine fish—
sardine, valai, shark, kora, cat-fish, Indian rock-cod, sword fish, bonito,
and soon. Even tuna, and a class of small whales make frequent
appearances off the Lakshadweep and the Andaman-Nicobar. India has
also been endowed with a variety of sedentaryfisheries—shrimp,oyster,
prawn, pearl, chank and other shell fish. Fisheries are a source of protein, a
stable foreign exchange earner, and a vehicle for higher standard of living,
and they hold out prospect for wider employment.
India's interests in the Indian Ocean region are not merely economic.
While the Indian merchant marine is fast expanding, the Indian navy too
is taking strides in equipping itself with a variety of modern vessels,
weapons, equipment and devices—all of which are essential for the
defence of the country on the sea-front. To protect its rights in the coastal
mari-time zones, India has already taken steps towards establishing a
broad-based system of coastal guards. And from the naval point of view
too, it has a special interest in its mid-ocean archipelagos.

Ill India's coastal jurisdiction before 1950

Indeed, there is some evidence to show that the ancient Indian history,
at least after the Maurya period (Chandragupta Maurya, 321-297 B.C.),
8
has registered certain "glimpses of the law of the sea" . Kautilya's
Arthasastra seems to indicate the coastal state jurisdiction in an adjacent
maritime belt. This jurisdiction encompassed a requirement of payment of
customs duties and port dues by foreign vessels, and jurisdiction over

7. On India's fisheries interests, see R. Lakshmanan, International Regulation of

Fisheries, 13 I.JI.L. 367 at 373-5 (1973). On India's broader interests in the Indian Ocean
fisheries, see Rahmatullah Khan, Indian Ocean Fisheries (1977).
8. See Nagendra Singh, supra note 5 at 30-36.

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 1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 339

coastal fisheries, although the spatial limits of the maritime belt had not
been clarified.9
The colonial era represents a certain discontinuity in the Indian
history and many of the law of the sea concepts of ancient India, like
many other concepts and institutions, could not perhaps maintain direct
link with those prevalent today. The state practice of India on coastal
jurisdiction during this era largely followed the British practice. Indeed,
in most respects, the British common law had become, as it were, the
10
direct pro-genitor of the Indian law.
The Indian practice, during this period, mainly bore upon the territorial
sea, the status of islands formed at river-mouths, fisheries jurisdiction, and
historical rights relating to the sealed beyond the territorial sea.11

Territorial sea

India adopted the British practice of claiming a maritime belt of three

nautical miles. This was a practice that came to be established, perhaps after
Lord StowelFs famous decision in The Anna case.12 In that case the famous
judge, while applying Bynkershoek's canon-shot formula, observed that since
the introduction of firearms, the boundary of territorial waters, "has usually
been recognised to be about three miles from the shore". 120
Pursuant to this practice, the Indian courts had occasions to exercise
jurisdiction with respect to offences committed within three miles from the
coast. Thus, in 1871 the Bombay High Court held in Reg. v. Kastya Ramaiz
that it had jurisdiction to try an offence committed within three miles off the
coast.13* Indeed, this can be contrasted with the 1876 decision of an English

9. Ibid.
10. See on this point, M.K. Nawaz, International Law in the Contemporary
Practice of India: Some Perspectives, Proceedings, (1963) Am. Soc of Int. Law 275 at 276-
7.
11. This part of the paper is heavily relied on Rama Rao's findings. See. T.S. Rama
Rao, supra note 5 at 13-18.
12. (1805) 5 C. Rob. 373 at 385, cited in C John Colombos, The International Law of
the Sea 92-X (1967).
12a. Ibid.
13. 8 Bombay High Court Reports (Crown Cases) 63 (1871).
13a. Id. at 65-68f 76-77.
The case arose from a traditional rivalry between the two fishing villages, one Malavni
situated about 21J miles to the north of Bombay, and the other Manori situated on a creek,
about two to three miles from the former. Both the villages claimed exclusive fishing rights
off another village, Yerangal, situated about twenty miles north of Bombay. In March
1871, the Malavni fishermen fixed a number of stakes in the disputed area and continued
to fish there. One morning towards the end of April, the Manori villagers sailed forth en
masse in boats, removed those stakes bringing them ashore. On complaint, the local F.P.
Magistrate tried and convicted the Manori fishermen on three counts, namely (/)
participation in unlawful assembly held

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340 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 21 : 3

court in Queen v. Keynu (commonly known as the Franconia case) which

held that no English statute conferred jurisdiction on the English courts to
try foreigners for offences committed on board foreign ships even within
the British territorial waters. However, the Franconia case revealed a
patent gap in the British law which was promptly sought to be remedied
by the British Parliament through the Territorial Waters Jurisdiction Act
of 1878.15 For the purpose of reckoning any offence declared by the Act
to be within the jurisdiction of the admiral, the Act clarified that the term
"territorial waters of Her Majesty's dominions" would mean "any part of
the open sea within one marine league of the coast measured from low-
water mark".16 The Territorial Waters Jurisdiction Act seems to have
provided the basis for the subsequent adoption of the Indian Fisheries Act,
1897 which defines "water" as including "the sea within a distance of one
marine league off the sea-coast".17

for committing mischief, (//) mischief, and (///) theft. On appeal by the accused, the
sessions judge of Thana maintained conviction on the first two counts, but reversed the
lower court finding of theft for want of proof of animus furandi. Invoking the extraordinary
jurisdiction of the Bombay High Court, the accused challenged, inter alia, the jurisdiction
of the F.P. Magistrate to take cognizance of the impugned act, as also the applicability of
the Indian Penal Code, 1860 to an act committed beyond the shores of British India. The
court rejected the contentions on the grounds that, by virtue of certain British enactments,
the courts in British India had jurisdiction not only to take cognizance of offences
committed upon the land territory, but also to exercise admiralty jurisdiction; and that
"territories" in section 2 of the Indian Penal Code included the maritime belt. Justifying the
need for such an interpretation of "territories", West, J., warned: "It is obvious that the
greatest inconveniences might arise from the possibility of escaping the operation of the
laws of British India by merely going afloat a few yards from the shore". {Id- at 76).

14. (1876) 2 Ex. D. 63. The case arose out of a collision of the Franconia, a German
ship, with a British ship in the British territorial waters, allegedly as a result of negligence
on the part of the captain of the Franconia. The German captain was indicted for
manslaughter at the central criminal court. The question whether the central criminal court
as a successor to the jurisdiction of the Lord High Admiral, had jurisdiction to try
foreigners, was referred to the Court for Crown Cases Reserved. The latter court, with a
narrow majority of 7 to 6, held that the central criminal court lacked jurisdiction. One
aspect of this ruling was that the British Crown Court's jurisdiction 'terminated' with the
low-water mark. For the implications of this case for federal-provincial relations in a
dominion such as Australia, see D.P. O'Connell, Australia's Coastal Jurisdiction, in D.P.
O.'Connell (ed.), International Law in Australia 246 at 247-59 (1965). O'Connell also
makes an elaborate comment on the case in the context of the territorial sea; see D.P.
O'Connell, The Juridical Nature of the Territorial Sea, 45 B.Y.I.L. 303 at 328-31, 370-81
(1971).
15. 41&42 Vict, c.73.
16. See Colombos, supra note 12 at 94-5.
17. S. 7 (2) of the Fisheries Act, 1897.

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Islands formed at river-mouths

The British practice has been to treat islands formed off the mouth of a
river as part- of the land-territory, for purposes of the exercise of
jurisdiction within the territorial sea. This practice can be traced to The
18
Anna case . In that case, The Anna, an American ship, had been seized by
a British privateer at a place which was situated more than three miles from
the mainland but approximately within two miles from alluvian islands off
the mouth of the Mississippi. The United States' claim for restoration of the
vessel was based on the ground that the seizure was made within its
territorial waters. In an epoch-making decision, Lord Stowell upheld the
contention of the United States and held that the islands in question were
the "natural appendages of the coast on which they border and from which
indeed they are formed". In his view, "whether they are composed of earth
or solid rock will not vary the right of dominion, for the right of dominion
does not depend upon the texture of the soil". He also considered the
security angle and observed that the protection of territory was to be
reckoned from the islands which, according to him, formed "a kind of
portico to the mainland".18"
In 1916 a similar issue came up before the Privy Council, in the
19
Secretary of State for India v. Chelikani Rama Rao. The case concerned
the question of ownership of certain islands formed on the bed of the sea
at the mouth of the Godavari, within three miles of the mainland. The
islands were in the occupation of some zamindars and the Crown sought
to evict them. The Judicial Committee of the Privy Council ruled that the
English common law rule recognized the ownership of the Crown in the
bed of the sea and in the islands arising in the sea within three miles off
the coast, and that this rule applied to India as well. Nothing short of proof
of prescriptive title (by adverse possession), said the Judicial Committee,
could weaken the Crown's claim to ownership over such lands.
It is important to note that in this case the respondents made a suggestion,
based on the Franconiay19a to the effect that the territory of the Crown ceased
at the low-water mark. But the Privy Council rejected this contention. Lord
Shaw, speaking on behalf of the Privy Council, 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. There is nothing to recom-
mend a local jurisdiction over a space of water lying above a res

18. Supra note 12 at 385 Jf., cited in Colombos, supra note 12 at 113-4, \
%a. Id. at 385 jf. see also Colombos, ibid,
\9. 43 LA. 192(1915-16).
\9a. §upra nois 14*

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nullius. As to practical results : The confusion that might be

produced by having islands, emergent within the three-mile limit,
to be seized by the first comer is clear beyond controversy. He
might be a foreign citizen : he would of course hoist the flag of his
nation and that nation might proceed to fortify the emergent lands;
in short, it is not difficult to figure the anomalies and difficulties...
(arising from the suggestion).20
Thus, the cumulative effect of this decision is that while the court
rejected the Franconia implication as regards the qualified nature of the
Crown jurisdiction over the territorial water on account of its inherent
defects, it laid down the prudent policy-prescription that the title to the
territorial sea and the lands beneath it (and hence the islands within it)
belonged to the Crown, and that this title could be weakened only on the
proof of superior adverse title.
Fisheries jurisdiction
The British India, like Britain, exercised exclusive fishery jurisdiction
within the territorial sea of India, which, as seen above, was the tradi-
tional three-mile limit. In the Reg. v. Kasiya Rama21 West, J., of the
Bombay High Court took the view that the general powers of local juris-
diction enjoyed by colonial governments "extend, except where otherwise
expressly restricted, to the making of laws for sea-going vessels engaged
in fishing, or on voyages from one part in India to another, and the
210
persons on board such vessels".
While the British India claimed exclusive fishery rights within the
territorial sea, these were common rights to be generally shared by all the
subjects of the country. To quote West, J., again:
In the enjoyment of the common right of fishing, every subject of
Her Majesty, except where expressly restrained by statute, is
entitled to make use of the means ordinarily employed for that
purpose. The existence of the one right implies that of the other....
But the right must, like that of using a navigable river, or highway,
be exercised so as not to interfere unreasonably with a like enjoy-
22
ment on the part of others.
Another case arose before the Bombay High Court, Ba'ban Mayacha
23
and others v. Na'gu Shravucha and others, in 1876 . This case directly

20. Supra note 19 at 201-202.

21. Supra note 13.
2\a. Id. at 76.
22. Id. at 88.
23. I.L.R. 2 Bombay 19 (1878). This case represented another aspect of the traditional
rivalry between tlje Malavni and Manori fishermen, near Bombay, referred tp in supra
note 13,

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 1979J INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 343

involved common fisheries within the territorial sea. The question was
whether the defendants/respondents were liable to pay any damages to the
plaintiffs/appellants, for having, as the latter alleged, "maliciously and
wrongfully erected fishing stakes" at a distance of only 120 feet from
those of the latter, and whether a perpetual injunction could be issued
against them. Westropp, C.J., in this case recognized that the British
authorities had laid down the principle that "the British seas, to their
geographical extent...both as regards the land or soil beneath them, and the
water, are vested in the Sovereign. It has been said that 'the sea is the
24
King's proper inheritance'." The Chief Justice pointed out that the King's
rights in the territorial sea comprised of (/) "His right of jurisdiction which
he ordinarily exerciseth by his admiral" and (//) "His right of propriety or
ownership". And the latter right was evidenced by the "right of fishing in
this sea and the creeks and arms thereof which is originally lodged in the
Crown". This, indeed, was a "primary right" flowing from propriety. And
this right was enjoyed in common by "the common people of England",
"as a public common of piscary". 25 Whether or not one assumed the
property in the territorial sea and its subjacent soil should be vested in the
sovereign; Westropp, C.J., agreed that "the right of fishing in that sea, as
part of maritime territory of the country, is open to its inhabitants at
26
large". However, no claim of prescription could arise if the right of
fishing was a "general right for all the subjects of the kingdom", because,
"a man shall not prescribe in that which the law of common right gives." 27
Indeed, "the right of the public to fish in the sea does not come within the
28
description of property of any kind." Like West, J., in the earlier case of
Reg. v. Kastya Rama, Westropp, C.J., also held that both the plaintiffs and
the defendants, being the beneficiaries of the common right of fishing in
the area in question, had a duty to exercise that right "in a fair and
reasonable manner, and not so as to impede the others from doing the
same".29
On the basis of the above two cases, the following conclusions may
be drawn on the fisheries jurisdiction of British India. British India had
claimed and exercised exclusive fisheries jurisdiction within its territorial
sea. The right of fishing in the territorial sea was exclusively enjoyed by
the country, as against aliens. This right, however, was exercisable by the
people of British India, in common inter se. And, as such, no claim of
exclusive fishing right could be tolerated in favour of a particular person

24- Id. at 32-33.

25. Id. at 33.
26. Id. at 47.
27. Id. at 48, quoting Lord Chief Justice Willis, in Ward v. Cresswell, Willis Rep. 265
at 268.
28. Id. at 53.
29. Id. at 56.

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within the territorial sea either on the basis of prescription or any other
ground, save of course the express authority of the sovereign. Since the right
of fishing was a common public right, it clearly followed that it must be
exercised in "a fair and reasonable manner" in order to accommodate
equitably the interests of all those who participated in its exercise.
In 1897, the British Parliament passed the Indian Fisheries Act "to
30
provide for certain matters relating to Fisheries". The Act expressly
stipulated that it should be "read as supplemental to any other enactment
31
for the time being in force relating to fisheries". This provision permits
the application of the Act in so far as its provisions stand consistent with
other enactments on the subject, whether central on provincial.
The Indian Fisheries Act has been aimed at conservation and
protection of all fisheries in all Indian waters. Thus, it defines "fish" to
32
include "shell-fish" and "water" to include the "sea within a distance of
33
one marine league off the sea coast". It makes destruction of fish by
34
explosives in "any water" a penal offence, which, if committed within
one marine league off the coast, may be "tried, punished and in all
respects dealt with as if it had been committed on the land abutting on
35
such coast," Similarly, putting "any poison, lime or noxious material
into any water" with the intention of harming the fish-stock is a penal
36
offence.
The Act empowers the state government to make rules to prohibit or
regulate diverse activities relating to fisheries. 37 Such rules may also
include a rule prohibiting all fishing in any specified area of water for a
38
period not exceeding two years. They may equally provide for penalties
39
for breach of these rules. Evidently, the Indian Fisheries Act, 1897
confers upon the state governments wide powers in all these matters This
is obviously owing to the supplemental character of the Act. There-fore,
no wholesome picture of the exercise of marine fisheries jurisdiction of
India can be drawn up without studying the scope and nature of fisheries
laws evolved over time and implemented by the coastal states of the
Indian union—a task left unfulfilled herein.

Historical rights relating to beyond the territorial sea

Claims of historical rights over areas that form part of the high sea

30. The Preamble to the Indian Fisheries Act, 1897.

31. Id., s. 2.
32. Id., s. 3 (1).
33. Id,, s. 4 (2).
34. Id.t s. 4 (1).
35. Id., s. 4(2).
36t Id., s. 5.
37. Id., s. 6 (3).
38. Id., s. 6 (4).
39. Id-, s. 6 (5).

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seem to uphold the validity of the doctrine oi mare clausum at least with a
view to protecting certain rights enjoyed undisturbed over a long period of
40
time over such areas. Some of the early classical writers had specifi-
cally recognised the historical rights to seabed resources along the Indian
coasts in the Palk's Bay and the Gulf of Mannar. Indeed, Vattel took them
for granted when he asked the leading question : "Who can doubt that the
pearl fisheries of Bahrein and Ceylon may be lawful objects of
ownership ?"41
British practice has for long claimed the legitimacy of historical rights.
Before the Behring Sea Arbitration Tribunal in 1893, Britain claimed a
right of property over oyster and coral beds adjacent to the coast, but
"within the waters which international law recognizes as exclusive fishery
42
right". Conceptualising the British practice of claiming historical right of
ownership over seabed resources on the adjacent high seas, Cecil Hurst
contended that such claims should be held valid, in so far as they are
exercised not inconsistent with other traditional uses of the high seas. 43
Commenting on the International Law Commission's draft articles on the
continental shelf in 1951, the British government reaffirmed Sir Cecil's
argument that :
The claim to the exclusive ownership of a portion of the bed of the
sea and to the wealth which it produces in the form of pearl,
oysters, chanks, coral, sponges or other fructus of the soil is not
inconsistent with the universal right of navigation in the open sea
or with the common right of the public to fish in the high seas. 44
The judical practice in the British India has upheld the historical rights
of ownership over sedentary fisheries beyond the territorial sea in the
Palk's Bay and the Gulf of Mannar. The leading case on this point is the
Madras High Court case of Annakumaru filial v. Muthupayal.^ The case
arose from an incident in 1904 that resulted from fishing by aliens on the
high seas at a distance of five miles off the coast near Ramnad. The Rajah
of Ramnad sought to condemn it as amounting to theft of property. The
head assistant magistrate, who took cognizance of the incident rejected the
Rajah's contention, holding that the waters where the incident
40. On historical rights, see generally, Yehuda Z. Blum, Historic Titles in Interna-
tional Law 331-4 (1965); Leo J. Bouchez, The Regime ofBays in International Law 199-
302 (1964).
41. E. de Vattel, Law of Nations, Book I, para 287, p. 107 (1964), translated from 1758
ed. by CG . Fenwick (1964).
42. Cited in L.F.E. Gotdie, Sedentary Fisheries and Article 2 (4) of the Convention on
the Continental Shelf—A Plea for Separate Regime, 63 A.J.I.L. 86 at 92 (1969).
43. Sir Cecil Hurst, Whose is the Bed of the Sea ?, 4 B.Y.I.L. 34 (1923-24).
44. See II I.L.C. Year book, 1953, p. 33, (Doc. A/CN. 4/60), see Hurst, supra note 43
at 43.
45. I.L.R. 27 Madras 551 (1904). For a recent comment on the case, see Lakshmi
Jambholkar, Annakumaru Filial v. Muthupayal Revisited, 13 I.J.I.L. 273 (1973). See also
Rama Rao, supra note 5 at 15-16; Bouchez, supra note 40 at 223-4.

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occurred were part of the high seas and that, therefore, the regime of the
high seas should apply. On appeal, the court of appeal found itself
divided on the issue. The case was then remitted to a Bench constituted
by Benson, Boddam, and Bhashyam Ayyangar, JJ., who decided the case
in favour of the Rajah of Ramnad. The central issue before the court was
whether a species of sedentary fish, namely the chanks, from the chank
bed in the Palk's Bay, situated more than three miles off the coast of
Ramnad, could be the object of theft. The court, at the outset, took note of
the special zoological features of chanks, and their habitat in the Palk's
Bay and the Gulf of Mannar. The highly limited mobility of the sedentary
fisheries like the chanks and pearl oysters, according to the court,
rendered them to be the object of property. The court held:
Apart, too, from this view it would be impossible to ignore the fact
that for ages in this country, chanks and pearl oysters have been
owned and enjoyed by the sovereign as belonging by prerogative
46
right exclusively to him....
The court also took into account the special characteristics of the
Palk's Bay and the Gulf of Mannar. The Palk's Bay is of near land-locked
nature, and not suited for navigation by large vessels. Whereas, the Gulf
of Mannar is larger than the Palk's Bay, but bounded by Sri Lanka in the
east, and the Indian districts of Ramanathapuram and Tirunelvelly in the
west, and connected to the Indian Ocean by the south.

On the prescriptive nature of the fishery rights and acquiescence of it

by the other states, the court held :
The fisheries in question were thus established and have been
handed down from sovereign to sovereign until, about the end of
the 18th century or the beginning of the 19th century, they became
vested in the British...,
[T]he fisheries on the said coast of the mainland passed into the
hands of the East India on the cession to it by Nawab of
Carnatic...while the Ceylon fisheries vested in the British Crown
on the conquest of Ceylon from the Dutch.
Now considering that the various European maritime powers, who
from about 16th century were contending for supremacy in the
Indian seas, raised no question as to the right of the sovereigns for
the time being of the Carnatic and Ceylon to their respective
fisheries, there can be little doubt that such right was regarded by
one and all of them as unassailable.47

46. Id. at 557.

47. Id- at 564-66.

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19791 INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 347

Thus, in the court's view, the Palk's Bay and the Gulf of Mannar were
"an integral part of His Majesty's dominions" and the chank beds were
48
"part of the territories of British India."
In explicit recognition of these prescriptive rights, particularly with
respect to the Gulf of Mannar, the Secretary of Colonial Affairs declared
in the House of Commons in 1923 that in those waters exclusive fishery
rights could be enjoyed by the local population upto a distance of twenty-
five miles from the coast. And in 1933 by an ordinance fishing in the Gulf
of Mannar between Mannar and Chilaw by foreign vessels was
prohibited.49
IV India's coastal jurisdiction after 1950
The emergence of India as a sovereign independent republic under the
Constitution heralded, in several respects, a break from the immediate
past. During the colonial days, as demonstrated above, India's policy and
practice on the law of the sea, like other aspects of international law, had
been largely determined by, and hence identical with, those of Britain.
Now that India became independent, it became free to determine its own
policies in terms of what it considered to be in the best interests of the
country. Small wonder, therefore, that independent India's policy and
practice have, in many respects, differed drastically from those of the
United Kingdom. Indeed, India has by now become one of the leaders of
the Third World, as an active participant in the international law creative
processes.
The principal aspects of the present inquiry into India's coastal
jurisdiction in relation to international law after the birth of the Republic,
encompass the basic provisions of the Indian Constitution, the centre-state
scenario, and the present policy and practice of India with regard to the
various maritime zones, as given expression to in the 1976 enact-ment on
these zones.
Basic constitutional provisions
The Indian Constitution postulates the policy of the Republic of India
that the state "shall endeavour to ...foster respect for international law and
treaty obligations in the dealings of organised peoples with one
50
another". Accordingly, the formulation of the law, policy and practice
of India has taken into account this principle. Indeed, this has warranted
certain amendments or modifications to the law in the light of con-
temporary international developments.

48- Ibid.* quoted by Lakshmi Jambholkar, supra note 45 at 275-6.

49. Ceylon, 4 Legislative Enactments, ch. 138(1938), cited in Bouchez, supra note 40
at 224.
50. Art. 51 (c), Constitution of India. On aspects of this provision, see Rama Rao,
supra note 5 at 35 ff; Nawaz, supra note 10 at 277-8.

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 348 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 21 : 3

Artice 297 of the Constitution is the key provision in this regard.

When the Constitution came into force in 1950, it contained the
following provision in article 297 :
All lands, minerals and other things of value underlying the ocean
within the territorial waters of India shall vest in the Union and be
held for the purposes of the Union.
This was later amended twice over. The 1963 amendment inserted the
61
words "or continental shelf" after the "territorial waters". Finally, in
1976, the whole article was redrafted, particularly with a view to
providing for the new concept of exclusive economic zone. Article 297
now provides :

297. Things of value within territorial waters or continental shelf and

resources of the exclusive economic zone to vest in the Union.
(1) All lands, minerals and other things of value underlying the
ocean within the territorial waters, or the continental shelf, or
the exclusive economic zone, of India shall vest in the Union
and be held for the purposes of the Union.
(2) All other resources of the exclusive economic zone of India
shall also vest in the Union and be held for the purposes of the
Union.
(3) The limits of the territorial waters, the continental shelf, the
exclusive economic zone and other maritime zones, of India
shall be such as may be specified, from time to time, by or
under any law made by Parliament.52
The centre-state scenario
The Indian Constitution displays many features of a federal consti-
tution. Indeed, the basic problem of the dynamics of such a constitution is
one of identification and harmonisation of the legitimate interests of the
country as a whole and those of the constituent units. The problem has a
special dimension to federations which are members of the British
Commonwealth, such as India, Canada and Australia, particularly
because they share a history of transformation from a unitary to a federal
system. The centre-state scenario of India's coastal jurisdiction, is herein
portrayed, although rather briefly, from the hind-sight of the Government
of India Act of 1935, through the drafting of article 297 of the Consti-
tution, and the controversial Chank Fisheries decisions of the Madras
High Court.

51. Vide the Constitution (Fifteenth Amendment) Act, 1963, s. 9.

52. Vide the Constitution (Fortieth Amendment) Act, 1976, s. 2.

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19791 INDIA'S MAR/TIME ZONES AND INTERNATIONAL LAW 349

(/) The Government of India Act, 1935

Surely, so long as the British India was unitary, there was no

controversy concerning the proprietary or legislative jurisdiction over the
territorial sea or the bed thereof. But, by the Government of India Act of
1935, all legislative powers and proprietary rights in India were "resumed"
to the Crown and redistributed between the federation and the constituent
53
units (provinces) under the federal scheme. The Act did not contain any
specific provision on the exercise of maritime jurisdiction as between the
54
federation and the provinces. The Seventh Schedule to the Act conferred
upon the federal legislature, by virtue of entry 23 of List I, competence to
legislate on "Fishing and fisheries beyond territorial waters", whereas
entry 24 of List II briefly referred to "fisheries" in the context of the
competence of the provincial legislatures. The combined effect of the two
entries perhaps suggested that the federal legislature was competent to
legislate on matters with regard to fishing and fisheries beyond the
territorial sea, while the provincial legislature could validly legislate on all
other fisheries, namely fisheries in the inland waters and in the territorial
sea, within the territorial jurisdiction of the coastal province. Evidently,
these provisions per se did not resolve the larger question whether the
territorial sea or fisheries within it, could be considered as properly
belonging to the coastal province vis-a-vis the federal govern-ment. For,
the conferment of competence to legislate is not necessarily the same
thing as the validation of title to property. The ownership over the seabed
underlying the territorial sea had already been settled in favour of the
54
Crown in the Chellikam Rama Rao case. " Yet, could this ruling apply in
favour of the federal government under the 1935 Act? One should have
thought that it would, especially in the light of the security

53. Vide s. 2 of the Act. See Durga Das Basu, 4 Commentaries on the Constitution of
India 384 (5th ed., 1968).
54. Basu construes s. 172(1) (a) of the Government of India Act, 1935 to mean that the
territorial sea (which according to him must be deemed to be a property) "situate in a
Province", as well as the bed thereof, "vested in His Majesty for the purpose of the
government of that Province" (sje Basu, ibid). Such a construction would be in con-
formity with a federal process such as in the United States, where the constituent units
which had at one time been fully sovereign entities and voluntarily joined in the
federation, "to form a more perfect Union." However, it ought not to be brought in with
any justification in the context a different type of federation such as the Indian, especially
in view of its historical evolution. In India, federalism has been a system superimposed in
1935 on an erstwhile unitary system; yet the stamp of unitarism has been left indelibly
clear in respect of several aspects of the new system, evidently in the interests of the
integrity and security of the nation as a whole. What is more, the theory of "residuary
rights", so dear to the American type of federalism does not apply to the Indian centre-
state scenario.
54a. Supra note 19.

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considerations with which the Privy Council had in that case rejected the
Franconia theory.
(ii) The drafting of article 297 of the Constitution of India
This, then was the legal background to the drafting of article 297 of
the Constitution of India in 1949. As stated earlier, that article, as it stood
before 1963, provided that "All lands, minerals and other things of value
underlying the ocean within the territorial waters of India shall vest in the
Union and be held for the purposes of the Union". The state-ments of
reasons behind this provision, given by B.R. Ambedkar, and Alladi
Krishnaswami Ayyar, point to the original intention of the founding
fathers of the Indian Constitution with specific reference to the
controversy in the American constitutional law on the question whether
the territorial sea belonged to the federal government or to the several
constituent states of the federation. Ambedkar said :
We thought that this is such an important matter that we ought not to
leave it either to speculation or to future litigation or to further claims,
that we ought right now to settle this question, and therefore this
article (i.e. the draft article 271-A which later became the final article
297) is introduced. 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 (i,e. the
width of the territorial 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 mari-time 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 the Central
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 (sic) 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 that Maritime State will go to
the Central Government. That kind of question shall never be subject
to any kind of dispute of adjudication. That is the reason why we want
to make this provision in article 271-A (the final Article 297). 55

55. 8 C.A.D. 891-92 (emphasis supplied).

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 351

This did not, however, mean that the coastal states of the union would
be left high and dry, after they joined the union; clarifying the position,
Krishnaswami Ayyar pointed out that
the expression "for the purposes of the Union" does not militate
against some of the benefits being allotted to coastal States and
should allay their apprehension that their present existing rights
56
might be invaded.
Yet, this would not water down, the factual effect of vesting in the
union of all things of value in the territorial sea. Again, Krishnaswami
Ayyar pointed out:
Lastly, the words "all lands, minerals and other things of value
underlying the ocean" are very important. One of the root points in
international law is as to whether there is any difference between
what may be called surface rights and mineral rights and soil
rights, and I am glad that this assertion is made here that all lands,
minerals and other things of value underlying the ocean shall vest
in the Union.57
Thus, the thrust of article 297, on the basis of the observations of B.R.
Ambedkar and Krishnaswami Ayyar has been that (/) The territorial sea
belongs to the union; (ii) once a coastal state joins the union, it would not
be open for it to claim any title to the rights on the territorial sea merely
on the ground that it had originally enjoyed them; (///) yet, the coastal
states would continue to enjoy some of the benefits of the territorial sea,
as allotted to them by the union; and (iv) there is no difference between
surface rights and mineral and soil rights, and all rights in the territorial
sea belong to the union.
And it is in this light that the assignment of legislative competence
between Parliament and the state legislatures under article 246 of the
Constitution has to be understood. In other words, article 297 forms the
philosophical basis for entry 57 of List I of the Seventh Schedule which
confers upon Parliament competence to legislate on "Fishing and fisheries
beyond the territorial waters", and entry 21 of List II, confers legislative
competence on state legislatures to make laws on "fisheries".

(iii) The Chank Fisheries cases :

Y Despite this drafting history, as the luck would have it, the original
article 297 gave rise to a different interpretation at the hands of the
Madras High Court on two different occasions. The first case is generally

56. Id. at 889 (emphasis added).

57. Ibid.

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known as the Chank Fisheries case.58 The case centred on a lease of the
right to fish chanks in the Gulf of Mannar and the Palk's Bay off the coast
of Ramnad, granted by the Rajah of Ramnad in favour of the A.M.S.S.
V.M. & Co. in 1946. The chank beds in question had been for long part of
the zamindari (estate) of the rajah, permanently settled under Regula-tion
XXV of 1802. Under the lease the company was to enjoy the chank fishery
rights for a period of tQn years at an annual rent of Rs. 14,000. In 1948,
the Madras legislature adopted the Madras Estates (Abolition and
Conversion into Ryotwari) Act under which all estates within the State of
Madras were to be abolished, and the title to them to be vested with the
Government of Madras. Acting under this law, the Madras government, by
an order of 13 March 1951, informed the A.M.S.S. V.M.
& Co. that its lease with the Rajah of Ramnad was terminated, and that
the chank fisheries in question would be taken over by the government
fisheries department. Thereupon, the company moved the High Court of
Madras for the issuance of a writ of certiorari to quash the government
order.
The petitioner company challenged the validity of the government
order on three principal grounds. First, under the Government of India
Act of 1935 (under which the 1948 Estates Abolition Act had been
passed), a provincial legislature could not make laws applicable to areas
lying outside the physical land boundaries of the province. Second, the
chank beds in question lay beyond the three-mile territorial sea limits of
India. And finally, whatever be the position before 1950, after the coming
into force of the Constitution of India in 1950, in view of article 297 all
rights in areas of the sea within the territorial sea of India or beyond
vested with the union, and, therefore, a provincial legislature could not
interfere with the exercise of proprietary rights in such areas.
On the other hand, it was contended on behalf of the State of Madras
that the law in question was not one relating to fishing or fisheries in the
seas, but to land and tenures which fell within the exclusive legislative
competence of the state ; and that even assuming that the law related to
fisheries, it was valid since the state had power to legislate on fishing and
fisheries within the territorial sea and the chank beds had historically
come to be reckoned as part of the territorial sea.
The court held that the Madras Estates Abolition Act was in its 'pith
and substance'59 related to land and tenures and, therefore, intra vires the

58. A.M.S.S. V.M. & Co. v. The State af Madras, 1953 (2) M.L.J. 587. For a recent
perceptive critique of the case, see M.K. Nawaz and Lakshmi Jambholkar, The Chank
Fisheries Case Revisited, 13 I.J.I.L. 494 (1973). The present paper is heavily indebted to
M.K. Nawaz and Lakshmi Jambholkar for the analysis of this case. For a brief comment on
the case, see also Rama Rao, supra note 5 at 16-18.
59. The doctrine of'pith and substance'applies in Indian constitutional law, when the
legislative competence of a legislature, whether Parliament or a state legislature, is
challenged in terms of the allocation of legislative competence under the Indian

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 353

powers of the Madras legislature. The court found it unnecessary to

decide on the exterritoriality of the Act. According to Nawaz and
Jambholkar "the court's opinion on the international law arguments is no
60
more than an obiter dictum".
The court inquired into the status of the territorial sea under inter-
national law and came to the correct conclusion that "with reference to the
rights of fishery, the marginal belt must be regarded as part of the territory
61
of the littoral State". However, in the very next sentence, the court held
that: "The contention of the petitioners that the limits of a State extend
only to its lands and the rights of fishery over the sea, even if they be
within territorial waters, are extra-territorial in character must accordingly
be overruled".61a This latter holding (quoted in the last sentence) amounts
i%
to "a non-sequitur"? It reveals a sort of confusion in the mind of the
court between a sovereign 'state'as an international person, and a 'state'
which is a constituent unit of the Indian union. And "What holds good for
a State that is an international person does not (necessarily) apply to a
State (province) that is merely a part of a federal union". 63 The court was,
therefore, obviously not correct in assuming that the constituent units of a
sovereign state could partake of the characteristics of sovereignty under
international law, particularly in respect of the territorial sea. Merely
because a constituent unit happens to have a sea coast, it cannot
automatically claim the marginal belt—a claim which is an attribute of
sovereignty under international law, and, therefore, can be raised only by a
fully sovereign state such as the Union of India. This, of course, does not
mean that a sovereign state cannot allocate part of its territorial sea
jurisdiction to its constituent units. And this is precisely what has been
effected under article 246 of the Constitution.
Countering the second argument of the petitioners-that the chank beds
were situated beyond the territorial sea of India—the court held mainly
on the basis of the Annakumaru Pillai case64 that the area in question had
been subject to effective occupation over sufficiently long

Constitution by virtue of article 246 and the three lists in the Seventh Schedule to the
Constitution. When such a challenge is raised, the court will ascertain what the impugned
legislation, in its 'pith and substance' intends to achieve, i.e., the true object of the
legislation. If the enactment, in its totality, is one which principally relates to a matter
constitutionally assigned to the legislature, it is valid, notwithstanding the fact that it bears
out incidental ramifications upon certain matters which are normally out-side the
competence of the legislature. See Prafulla Kumar v. Bank of Commerce, Khulna, A.I.R.
1947 P.C. 60. See also State of Rajasthan v. G. Chawla, A.I.R. 1959 S.C. 544.

60. Nawaz and Lakshmi Jambholkar, supra note 58 at 495.

61. The Chank Fisheries case, supra note 58 at 595.
61 a. Id. at 595-96.
62. Nawaz and Lakshmi Jambholkar, supra note 58 at 501,
63. Ibid.
64. See supra note 4$.

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time by the local population and that this had been acquiesced in by the
other states. In view of this, the area could as well be regarded as within
the territorial waters of the state.65
The court's answer to the third argument of the petitioners—that after
the coming into force of article 297 in 1950, the State of Madras could not
have abrogated the proprietary rights on the chank beds lying beyond the
territorial sea—was in fact two-fold. In the first place, under article 297,
what vested in the Union of India was only lands, minerals and other
things of value underlying the ocean within the territorial sea, and not the
waters themselves and the two had separate existence. In the second place,
the pattern of allocation of legislative competence in regard to fisheries
was the same under the Constitution, as it had been under the 1935 Act.
Entry 57 in the union list and entry 21 in the state list under the
Constitution are identical with entry 23 in the federal list and entry 24 in
the provincial list, respectively, under the 1935 Act.
This holding of the court is, indeed, most unfortunate. One readily
agrees with the view that "The Court gravely erred in its interpretation of
66
the meaning and purport of article 297 of the Constitution of India". This
ruling directly contradicts the drafting history of article 297 and the
peculiar features of the federal process in India. What is more, it fails to
take into account the distinction between the sedentary fisheries and
common fisheries. In international law, the sedentary fisheries, like the
chanks and pearl oysters, are considered as the part of the resources of the
67
continental shelf, and hence underlying the waters. A* any rate, what-
ever might have been the implication of the original article 297 on the
vesting of the chank beds in the Union of India, the property in them
undoubtedly vests in the union and not in the constituent units of the
68
union.
69
The second Madras decision, the Shivaganga Chank Fisheries case
closely followed the above Chank Fisheries case.™ The Shivaganga Chank
Fisheries case involved a petition by certain fishermen of Karungadu village
on the Shivaganga coast, asking the Madras High Court to issue a

65. Chank Fisheries case, supra note 58 at 598. In view of the court's confusion
between the sovereign state and the state as a province in the union, in relation to the
territorial sea, it is pertinent to pause for a moment to consider whether the CDurt might
not have used the term "state" in the present context too, to mean the province—in which
case the court would again find itself on the wrong. See Nawaz and Lakshmi Jambholkar,
supra note 58 at 506-7.
66. Nawaz and Lakshmi Jambholkar, id. at 510.
67. See art. 2(4) of the Continental Shelf Convention of 1958.
68. See Rama Rao, supra note 5 at 17-8.
69. P.S.A. Susai and another v. The Director of Fisheries, Madras and another,
(1965) 2 M.L.J. 35.
70. Indeed, the earlier Chank Fisheries holding, being a Division Bench decision, was
binding on the single judge who disposed of the Shivaganga case.

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1979} INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 355

writ directing the Madras government from taking further steps in respect of
leasing of fishery rights in the Shivaganga fisheries. Claiming the vesting of
title to thesefisheriespursuant to the Madras Estates Abolition Act of 1948,
the Madras government had selected a lessee by open tender and was in the
process of finalising the grant of the lease. There were three principal issues
before the court, namely : (/) whether the State of Madras had an exclusive
proprietary right to the Shivaganga chank fisheries ;
( whether the Indian Fisheries Act, 1897 as amended in Madras with
the rules framed thereunder apply to the chank fisheries and the lease
granted ; and (///) whether article 297 of the Constitution would impair
the validity of the claim of rights of the State of Madras in the chank
fisheries and, of the grant of the lease.
The court, at the outset, reaffirmed the historical rights of India in the
chank fisheries in the Palk's Bay and the Gulf of Mannar, relying on the
Annakumaru Filial and Chank Fisheries cases. On the basis of "the
historical evidence", the court found that from time immemorial the
native ruler$ exclusively appropriated and held the chank fisheries right in
the Shivaganga area ; that this was recognized in the permanent settlement
under Regulation XXV of 1802, that the Provincial Government of
Madras itself had been taking, from time to time, from the Raja of
Ramnad, periodic leases of the right to fish chanks in the Ramnad coast,
and that whenever the government was the lessee, it did not allow anyone
to dive and collect chanks for himself. Pursuant to the Madras Estates
Abolition Act of 1948, however, the estate of Shivaganga vested with the
Madras government, which thereafter ran the fisheries to the exclusion of
others. Consequently, the court held that the petitioners did not have any
"common right to fish chanks in those waters and appropriate the s^me
for themselves."71
On the second issue, the court entered the finding on the Fisheries Act
of 1897 and the rules framed thereunder, that "their object expressly or by
implication was neither to confer a right upon any one which he did not
otherwise previously own or possess, nor take away a right which a
72
person had already owned or possessed." Thus, the Act and the rules
framed thereunder did not impair any right over the Shivaganga chank
fisheries. Indeed, this ruling can be broadly appreciated, in view of the
"supple-mental" character of the Fisheries Act.
On the third issue, namely, the effect of article 297 of the Constitution,
the court said that the question whether the chank beds were the property
of the union or the state government, "is a matter between those Govern-
ments and does not concern petitioners so far as their assumed common
73
right to fish...is concerned". Yet, by way of obiter it came to hold that

71. Supra note 69 at 45.

72. Id. at 47.
73. Id. at 49.

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the proprietary rights of the state government were kept intact by virtue of
section 172 of the Government of India Act of 1935, and, following it,
article 294 of the Constitution of India. Article 294, according to the
court, was not made subject to any other provisions of the Constitution
u
in-cluding article 291. In any case, what vested, under article 297, in the
union "is what underlies the ocean within the territorial waters of India
and not the territorial waters themselves". The courd said :
What does not underlie the bed of the ocean, is in my opinion cle-
arly, outside the purview of Article 297. Chanks cannot, I think, in
any sense, be regarded as underlying the bed of the sea but fish are
gathered or taken not from underneath the bed but from the sea
75
bed.
Thus, the court held that the Shivaganga chank fisheries continued to
be the exclusive property of the Madras government which was entitled
to grant the lease in question.
Besides the points of criticism already levelled against the Chank
Fishe-ries case above, a few more points can be raised here with respect to
the Shivaganga case. First, the court, in this case stated that there was no
need for it to examine the question whether the chank beds vested with the
union or the state government. This, indeed, was an unfortunate
observation, for the issue was cardinal to the case of the Madras govern-
ment. A finding that the chank beds did not vest in the state government
would mean a judgment in favour of the petitioners. Second, the court fell
into the same error D.D. Basu slipped into 76 in construing section 172 of
the 1935 Act, and hence article 294 of the Constitution, to sanctify rights
claimable by the successive provincial governments in their territorial sea,
without inquiring into the original intentions of the Constitution-makers, as
also without comprehending the nature of rights claimable by a coastal
country (not a province) as attributes of its sovereignty. Third, the court
proved to be too technical in its interpretation of article 297 of the Cons-
titution, to the extent of being even unscientific. Assume that a chank fish
embeds itself an inch or two below the surface of the seabed. How would
the court apply its artificial distinction between things <'on the seabed" and
"underlying the ocean"?
In short, although the high point of the Chank Fisheries and
Shivaganga Chank Fisheries cases lay in their reaffirmation of historical
rights in the Palk's Bay and the Gulf of Mannar, the two decisions
manifested a clear misunderstanding on the part of the court concerning (a)
the position of

74. Id. at 50.

75. Id. at 51. The court on this point decided to follow the Division Bench decision
in the Chank Fisheries case.
76. See supra note 54.

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 357

the territorial sea under international law; (b) the distinction between the
sedentary fisheries and the common fisheries; and (c) the historical and
constitutional perspectives of article 297. Their undesirable implications to the
delicate centre-state relations, particularly when different political parties run
the central and the state governments, have already become evident. The
Rajamannar committee on the centre-state relations appointed by the Dravida
Munnetra Kazhagham government in Tamil Nadu (Madras) did take
advantage of the Chank Fisheries ruling claiming wider rights in favour of the
states (provinces) of the Indian union—a claim, if materialised, would perhaps
77
change the true character of the sovereign rights of India in its territorial sea.
In the light of the Chank Fisheries case, the committee went to the extent of
recommending that : "Article 297 should be amended so as to vest in the State
(Province) itself all lands, minerals and other things of value underlying the
ocean within the territorial waters adjacent to the State". This
recommendation, if carried out, would tend to widen the inequalities between
different states of the union, and what is more, some of them which by a
geographical accident, happen to have a sea coast are likely to behave like
quasi-sovereign entities and yet unable to cope up fully with the ramifications
of the rights over the territorial sea under in-ternational law. This apart, it
would also upset the present constitutional assignment of legislative
competence in favour of the centre on a variety of matters like "[ajtomic
78
energy and mineral resources necessary for its pro-duction", "[e]ntering into
treaties and agreements with foreign countries and implementing of treaties
79
and agreements and conventions with foreign countries", "[Regulation and
80
development of oilfields and mineral oil resources..." , and "[Regulation of
81
mines and mineral development...."
Indeed, the Rajamannar committee recommendation in this respect por-
tends a type of wanton parochial claims likely to cause serious damage to
the exercise of the sovereign attributes of the union in the adjacent mari-
time zones. It is, however, heartening to see that subsequent legal de-
velopments in India appear to have greatly rectified much of the mischief
done by the two Madras decisions.
The present legal regime of India's maritime zones
The present legal regime of India's maritime zones is principally82 based

77. See the Report of the Centre-State Relations Inquiry Committee (1971). This
point too is made by Nawaz and Lakshmi Jambholkar, supra note 58 at 501 (and footnote
13). It may be recalled that the Division Bench that decided the Chank Fisheries case
comprised Rajamannar, C.J., and Venkatrama Iyer, J. !
78. List I, entry 6, the Seventh Schedule to the Constitution of India.
79. Id., entry 14.
80. Id., entry 53.
81. Id., entry 54.
82. Art. 372 provides for continuance in force of "all the laws in force in the territory
of India immediately before the commencement of this Constitution", "until altered or
repealed or amended by a competent legislature or other ccmpe-

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358 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 21 : 3

on article 297 of the Constitution [after the Constitution (Fortieth Amend-

ment) Act, 1976], and the Territorial Waters, Continental Shelf,
Exclusive Economic Zone and other Maritime Zones Act, 1976
(hereinafter referred to as the Maritime Zones Act). The Maritime Zones
Act is, in fact, the first elaborate central enactment of its kind on the
subject. The passing of this Act has been facilitated by the 1976
amendment of article 297 of the Constitution ; paragraph (3) of this
article as it stands today clearly confers upon Parliament competence to
make law from time to time to specify the limits of the territorial waters,
the continental shelf, the exclu-sive economic zone, and other maritime
zones, of India. Indeed, "the limits", in this context, should mean not
merely the spatial, but the sub-stantive jurisdictional limits as well.
An attempt is made hereunder to identify the broad principal features
of the present Indian legal regime ofthe maritime zones, and indicate their
correlationship with the contemporary developments in international law.

(i) The territorial sea

It may be recalled that the British Territorial Waters Jurisdiction Act

of 1878 embodied the traditional three-mile rule for the establishment of
the territorial sea. The Act applied to the British India. Thus, by virtue of
article 372 of the Constitution, the independent India inherited a three-
mile maritime belt in 1950,
The three-mile rule had, however, since long lost its rationale. Its adequacy
in terms of the security and economic interests of the coastal states became
questionable and small wonder, it could not find ready acceptability even at the
1930 Hague Codification Conference. While the colonial India had to toe the
British line,83 once India became indepen-dent, it soon realised the redundancy
of the three-mile limit. Pursuant to the Anglo-Narwegian Fisheries case,83a
where the International Court of Justice held that unilateral delimitation of
maritime zones on the part of a coastal state should be tolerated, if based on
reasonable and relevant con-siderations,84 the President of India promulgated a
proclamation in 1956 extending the territorial sea of India, from three to six
nautical miles from the coast, "notwithstanding any rule of law or practice to
the contrary which

tent authority". Pursuant to this provision, several adaptation of laws orders have been
promulgated particularly in 1950 and 1951 to specifically provide for continuance, with
alterations if necessary, of old laws. The lists include the 1878 Territorial Waters
Jurisdiction Act and the 1897 Fisheries Act.
83. At the 1930 Conference, the Indian position was the same as the British. See K.P.
Misra, supra note 5 at 467.
83a. Supra note 2.
84. This is the implication of the court's ruling. See the text accompanying supra
note 2.

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 359

may have been observed in the past in relation to India or any part
85
thereof".
The contemporary trends, especially in the International Law Commis-
sion during 1950-56, indicate a definite parting of ways with the three-mile
rule. In its 1956 report to the U.N. General Assembly, while the com-mission
failed to recommend any specific rule for the width of the territorial sea, it
recognized that "international practice is not uniform as regards the
delimitation of the territorial sea" and considered "that international law does
86
not permit an extension of the territorial sea beyond 12 miles". At the
Geneva Conference on the Law of the Sea in 1958 India supported (and was
in fact a co-sponsor with Mexico) aflexiblerule that every coastal state be
permitted to fix the breadth of its territorial sea upto a limit of twelve nautical
7
miles from appropriate base lines .^ India has been readily aware of its deep
economic interests in the territorial sea, particularly in submerged areas
underlying the territorial sea, which are well endowed with deposits of
88
several minerals including thorium. In 1967 by a presi-dential
89
proclamation, it extended its territorial sea from six to twelve miles. By
then the twelve-mile rule seems to have gathered wider accep-tance in the
90
international community.
However, the fixing of the breadth of the territorial sea by way of
presidential proclamations raised "some doubt" as to the validity (under
Indian municipal law) of these proclamations, in view of the continuance
in force of the Territorial Waters Jurisdiction Act of 1878. The doubt

85. See tho Gazette of India, No. 81, Dated 22 March 1956 (emphasis added). A few
months later, the Indian delegate at the Sixth Committee of the U.N. General Assembly
clarified the Indian position. He pointed to the unrealism, anachronism and irrelevance of
the three-mile rule, and suggested that "the practical answer (to the vari-ance in state
practice) would be to permit all states to fix the breadth of their territorial sea up to a
maximum of twelve miles, at their own discretion and in the light of local requirements".
See K.P. Misra, supra note 5 at 469. And this position, as Misra points out, was restated at
the 1958 Geneva Conference on the Law of the Sea. See UN Con-ference on the Law of
the Sea, Official Records, vol I, p. 90 (Geneva, 1958), referred to in K.P. Misra, supra
note 5 at 469, f.n. 15.
86. II Yearbook ofl.L.C. 1956, p. 265.
87. See UN Doc. A/CONF. 13/C. 1/L. 79 For the Indian position at the 1958 and 1960
Conferences on the Law of the Sea, see K.P. Misra, supra note 5 at 469-78.
88. See the statement by the Indian delegate at the Sixth Committee of the U-N.
General Assembly GAOR, Eleventh Sess., 6th Committee, 6 December 1956, p. 57, cited
in Misra, supra note 5 at 470.
89. Proclamation of 30 September 1967, reprinted in 71.J.I.L. 584 (1967). The pro-
clamation invoked two principal grounds for the extension, namely "the requirements and
legitimate interests" of India as a developing country and India's obligation to safeguard
its territorial integrity, and as a developing country to utilise the natural resources of the
sea in an efficient manner.
90. On the progress of the twelve-mile rule, see R.P. Anand, Freedom of Navigation
Through Territorial Waters and International Straits, 14 LJJ.L. 169 at 169-171 (1974)
and the Informal Composite Negotiating Text, (I.C.N T.), Art. 3, UN Doc. A CONF.
62/YVP. 10 of 15 July 1977.'

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360 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 21 : 3

related to two questions. First, if what was sought to be achieved by these

proclamations was an extension of jurisdiction, could the proclamations
(which were mere executive orders) supercede a statute (the Act of 1878)?
Second, if the proclamations purported to acquire new territory for India,
could an act of state (the acquisition of territory) supercede a statute?
Speaking on the 1956 proclamation, Rama Rao rightly suggests that while
"[t]he Proclamation is undoubtedly valid for purposes of International
Law, but its statutory adoption seems to be necessary for purposes of
91
municipal law". Rama Rao's suggestion at long last came to be heeded
in 19 76, when article 297 of the Constitution was amended (as stated
earlier) to provide for central legislation to specify the limits of India's
maritime zones, soon followed up by the Maritime Zones Act. By virtue
of article 372 of the Constitution this Act may now be regarded as having
92
replaced the Territorial Waters Jurisdiction Act.
The Maritime Zones Act, 1976 clarifies the spatial limits of India's
territorial sea, and the scope and nature of India's jurisdiction over it. 93 It
provides that the breadth ofthe territorial waters is twelve nautical miles
from appropriate base-lines; but it quickly reserves the right of the central
government to alter by notification in the official gazette, the limit of the
territorial waters, "whenever it considers necessary so to do having regard
to International Law and State practice", provided, of course, that
94
issuance of such notification is approved by Parliament.
The outer limits of the territorial sea of India, it should be noted, are
measured "from the nearest point of the appropriate baseline", in terms of
section 3(2) of the Act. The Act does not, however, clarify what the
"appropriate baseline" is. Evidently, this phraseology would permit the central
government to enjoy wide discretion. But, the Anglo-Norwegian Fisheries
ruling of the International Court of Justice tends to ensure that this discretion is
exercised within reasonable limits, ue. in conformity with international law.9**
What then are the appropriate baseline systems, sanc-tioned by international
law? The most traditional of these has, indeed, been "the normal baseline"
which is "the low-water line along the coast". 96 In the Anglo-Norwegian
Fisheries case, the Norwegian straight baseline method received the judicial
imprimatur of the highest international tribunal, and this method received
specific international recognition since the 1958 Geneva Conference on the
Law of the Sea. However, such a baseline system would

91* Rama Rao, supra note 5 at 14.

92. Vide s. 1 (2) of the Act, the whole Act, save sections 5 and 7, came into force on
the day it was gazetted, i.e. on 26 August 1976. Ss. 5 and 7 were later brought into force,
vide Ministry of External Affairs Notification, G.S.R. No. 16 (E), Gazette of India
Extraordinary, part II, sec. 3 (I), No. 13, p.53.
93. Ss. 3 and 4 of the Act.
94. Id.,s. 3(2), (3) and (4).
95. See supra note 2.
96. Art. 3 of the 1958 Territorial Sea Convention, art. 5 of the I.C.N.T.

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 10791 INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 361

apply to localities "where the coastline is deeply indented and cut into, or if
there is a fringe of islands along the coast in its immediate vicinity", provided
that "the drawing of such baselines must not depart to any ap-preciable extent
from the general direction of the coast, and the sea areas lying within the lines
must be sufficiently closely linked to the land domain to be subject to the
regime of internal waters", but "in determining parti-cular baselines", account
may be taken "of economic interests peculiar to the region concerned, the
reality and the importance of which are clearly evidenced by a long usage". 97
98
This then is the foundation of India's claim of the status of archipelagos to
the two Indian island groups, namely, the Andaman and Nicobar group, and
99
the Lakshadweep group. Section 2 of the Maritime Zones Act clarifies the
position further, for it defines "limit" in relation to the various maritime zones
of India, as the limit of such zones "with reference to the mainland of India as
well as the individual or composite group or groups of islands constituting
part of the territory of India". Furthermore, this provision, read with section
3(2) (referred to above) would confer upon the central government wide
discretion to choose between the emerging regimes of archipelagos and
islands, and decide which of the two regimes to apply to which islands or
100
island groups of India.
On the jurisdictional aspects of the territorial sea, the Act proclaims that
"the sovereignty of India extends and has always extended to the territorial
waters of India..., and to the seabed and subsoil underlying, and the air
101
space over such waters". It would appear that this provision now sets at
rest the hornet's nest, unnecessarily stirred up by the Chank Fisheries
decision. The Act, at the same time, ensures "the right of in-nocent
passage" for "all foreign ships (other than warships including sub-marines
102
and other underwater vehicles)" through the territorial sea.

97. Art. 4 (1), (2) and (4) of the Territorial Sea Convention.
98. An "archipelago", according to art. 46 (b) of the I.C.N.T. "means a groups of is-
lands, including parts of islands, interconnecting waters and other natural features which
are so closely interrelated that such islands, waters and other natural features form an
intrinsic geographical, economic and political entity, or which historically have been
regarded as such." More on the concept of archipelagos, see H. P. Rajan, Towards
Codification of Archipelagos in International Law, 13 I.J.LL. 468 (1973); and The 1973
Draft Articles on Archipelagos by Fiji, Indonesia, Mauritius and the Philippines Analysed,
14 /././. I- 230(1974); D.P. O'Connell, Mid-Ocean Archipelagos in Interna-tional Law, 45
B.Y-LL. 1 (1971).
99. See for instance the statement of the Leader of the Indian Delegation to the Third
Law of the Sea Conference, Caracas Session, 1974, reprinted in 14 LJ.I.L. i at
vi (1974).
100. On the regime of islands, see V.S. Mani, Towards Codification of the Legal
Regime of Islands, a study done under the auspices of the Indian Society of International
Law, New Delhi, 1974-75; and V.S. Mani, National Jurisdiction: Islands and Archi-
pelagos, in R.P. Anand, (ed.), Law of the Sea: Caracas andBeyond%2 (1978).
101. S. 3(1) of the Act, (emphasis added).
102. /«/., s. 4(1).

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362 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 21 : 3

For this purpose, it defines innocent passage in terms identical with article
14 (4) of the 1958 Convention on the Territorial Sea and Contiguous
Zone, "passage is innocent so long as it is not prejudicial to the peace,
103
good order or security of India". Thus, it reserves to the central
government a wide discretion, or at any rate a right at the first instance to
determine what constitutes a passage "prejudical to the peace, good order
104
or security of India". Yet this does not necessarily exclude the
possibility of the central government exercising the discretion in the light
of any interna-tionally acceptable guidelines.1040
On the other hand, the Maritime Zones Act envisages a different
regime for passage of foreign warships "including submarines and other
underwater vehicles". These vessels may enter or pass through the Indian
territorial sea, "after giving prior notice to the Central Government," but
the underwater vessels "shall" navigate on the surface and show their flag
during passage.105 Further, the central government has the power to
suspend innocent passage of foreign ships in specified areas, if it is
necessary so to do in the interests of the peace, good order or security of
106
India. These provisions have a close bearing on the corresponding
provisions of the 1958 Territorial Sea Convention. Article 14(6) of the
convention requires submarines to navigate on the surface and show the
flag during passage, whereas under article 23 a foreign warship, during
passage, is obliged to comply with the applicable regulations of the
coastal state. However, the requirement of prior notification, prescribed
by the Maritime Zones Act, is an addition to the article 23 provisions of
the convention. Indeed, such a requirement can be treated as a part of "the
regulations of the coastal State concerning passage" within the meaning of
article 23 read with article 17. 107 The central government retains, under
section 15(1) of the Act, powers to make further rules "for the purposes of
this Act". The power to suspend innocent pass-age contemplated under
the Act, as indicated above, corresponds to article 16 (3) of the
convention, save for the fact that the latter conceives it only if such
suspension is essential for the protection of the security

103. Explanation to s. 4(1) of the Act. For the Indian position on innocent passage
through the territorial sea, at the 1958 Geneva Conference, see Misra, supra note 5 at 480-
1. Cf. art. 19(1) of the I.C.N.T.
104. On the scope of innocent passage, see R.P. Anand, supra note 90 at 174-5 ; V.S.
Mam and S. Balupuri, Malacca Straits and International Law, 13 LJ.LL. 455 at 465-6
(1973).
104a. See for instance, art. 19(2) of the I.C.N.T.
105. S. 4(2) of the Maritime Zones Act, 1976.
106. /</., s. 4(3).
107. On the power of the coastal state to prescribe laws and regulations in the territorial
sea, see arts-21, 22, 25 and 30 of the LC.N-T* For more on the innocent passage of foreign
warships through the territorial sea of a coastal state under the 1958 Territorial Sea
Convention, See R.P. Anand, supra note 90 at 175-77 ; Mani and Balupuri, supra note 104
at 465-7,

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1979} INDIES MARITIME ZONES AND INTERNATIONAL LAW 363

of the coastal state, while the Act provides for it " in the interests of the
peace, good order or security of India". But this difference is incon-
sequential, since the term "security" is comprehensive enough to
encompass "peace" and "good order" of the coastal state.
All these provisions of the Maritime Zones Act are also relatable to
the contemporary trends at the Third U.N. Conference on the Law of the
Sea, since, the latter have not made any substantial changes in the law as
it developed on the basis of the 1958 convention, although the
contemporary trend is towards evolving the objective criteria for the
exercise by the coastal state of its competence within the territorial sea. 108
(/'/) The contiguous zone
Historically, the concept of contiguous zone manifested an
assumption that the jurisdiction of the coastal state within the territorial
sea was not adequate to fulfil certain special purposes. Hence, the
provision in article 24(1) of the 1958 Territorial Sea Convention that:
In a zone of the high seas contiguous its territorial sea, the coastal
State may exercise the control necessary to : (a) Prevent
infringement of its customs, fiscal, immigration or sanitary regula-
tions within its territory or territorial sea ; (b) Punish infringement
of the above regulations committed within its territory or territorial
sea.
To this may be added control of pollution, a special ground on which
Canada established in 1970 an Arctic anti-pollution zone of one hundred
miles.109
The traditional literature has not often discussed the question of
110
breadth of the contiguous zone. Article 24(2) of the 1958 Territorial
Sea Convention suggests that the zone may not extend beyond twelve
miles from the coast. However, this does not bind down a state, not a

108. The contemporary international negotiations manifest an attempt to formulate

more objective criteria for regulation of innocent passage of foreign vessels through the
territorial sea of a coastal state. This is demonstrated in art. 19(2) of the LC N.T. which
attempts to identify passage which can be considered to be non-innocent; arts. 21 and 22
which broadly envisage areas where the coastal state may make laws and regulations and
art. 24 which enumerates the principal duties of the coastal state. Yet, art. 25 (on the rights
of protection of the coastal state), and many other blanket provisions such as art. 19(a), (c)
(e) do reserve for the coastal state broad enough powers.

109. Arctic Waters Pollution Prevention Act, 26 June 1970, 9 LL.M. 543 (1970); and
see the statement of reasons by Canadian External Affairs Ministry, reprinted in the
11 Canadian Yearbook of International Law 1971, pp. 284-5 (1971).
110. Browniie, supra note 1 at 215.

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364 JOURNAL OF THE INDIAN LAW INSTITUTE IVol. 21 : 3

party to the convention. As has been pointed out by R.P. Anand, "only 44
States (including 7 landlocked States and 3 Soviet members of the United
Nations) are at present parties" to the convention, and, what is more, a
state is not required to claim a contiguous zone. 111 Thus, it could be
argued that this provision in the convention "could hardly be accepted as
a general rule in the absence of clear agreement on the subject during the
112
two conferences...." At any rate, the present trend is
towards accepting a twenty-four mile limit for the contiguous zone. 113
The Maritime Zones Act, while reserving the right of the central
government to alter its position later, envisages that the contiguous zone
of India is "an area beyond and adjacent to the territorial waters" and that
the zone extends to a line which is twenty-four nautical miles off the
coast.114 It also specifically recognises the competence of the central
government to exercise "such powers and take such measures" as it may
consider necessary, with respect to—
(a) the security of India ; and
(b) immigration, sanitation, customs and other fiscal matters.115
And for this purpose the central government may extend or modify
any enactment and apply to the contiguous zone, as if the zone were a
part of the territory of India.116
There is a point of view that if security of the coastal state is a factor
for the contiguous zone, it would obliterate any distinction between the
territorial sea and the contiguous zone. 117 However, it may be argued that
the specific mention of security in the context of the contiguous zone,
perhaps strengthens the jurisdictional content in the zone with respect to
immigration, sanitation, customs and other fiscal matters. What is more,
certain states like the United States even claim wider zones for defence
118
purposes.
(iii) The continental shelf
Geologically, continental shelf refers to that part of the submerged
landmass adjacent to the coast, which is covered by waters of shallow

111. R.P. Anand, supra note 90 at 171.

112. Ibid.
113. See art. 33(2) of the I.C.N.T.
114. S. 5(1) and (2) of the Act. S. 5 has by now come into force, vide Ministry of
External Affairs Notification, supra note 92.
115. A/.,s. 5(4).
116. Id., s. 5(5).
117. See Brownlie, supra note 1 at 213.
118. The United States has established an air defence identification zone of a potential
600 mile width. On this see Myres M. McDougal, Harold D. Lass-well and Ivan A. Vlasic,
Law and Public Order in Space 8, 307-10 (1963).

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 565

depth, upto a point where the landmass plummets into greater depths at
119
greater declivity. The concept of the continental shelf is of recent origin in
international law. The sedentary fisheries and the placer deposits close to the
coast aside the economic potential of the continental shelf as a vast reservoir
of a range of minerals as well as hydrocarbons came to light only recently.
And the post world war technological developments have by now made it
possible to make the resource develop-ment and exploitation activities at
greater depths of the oceans, a reality.
Indeed, in terms of state practice, the concept of continental shelf may
be traced as far back as 1910 when Portugal prohibited trawling by steam
vessels within the limits of the continental shelf of Portugal, upto a point
where the waters were 100 fathoms deep. It also underlay the Soviet
120
Union's claim over certain off-shore islands. However, the
contemporary trends in the law were in fact initiated by the Anglo-
Venezuelan Treaty on the Gulf of Paria in 1942, a somewhat vague
Argentine claim of 1944 over the resources of the continental shelf, and
most importantly, the epoch-making Truman Proclamation of 1945. The
Truman proclamation was a conceptual breakthrough in that for the first
time it clarified the nature of the coastal state's claim over its continental
shelf. It embodied the principle that the exclusive claim of the coastal
state to the resources of its continental shelf is founded on the geological
reality of the continen-tal shelf being "an extension of the landmass of the
m
coastal nation and thus naturally appurtenant to it". This clearly means
that the coastal state's claim over its continental shelf need not be
dependent on physical occupation of the area.
The Truman proclamation soon "instigated" several states to raise
unilateral claims over the continental shelf. 112 India too followed suit in
1955 evidently after a period of wait and watch. On 30 August 1955, the
presidential proclamation claimed that "India has, and always had, full
and exclusive sovereign right over the seabed and sub-soil of the Conti-
123
nental Shelf adjoining its territory and beyond its territorial waters".
Explaining the rationale of this claim, the Indian proclamation noted : (1)
that "valuable natural resources are known to exist on the sea-bed and in
the sub-soil of the Continental Shelf and the utilisation of such resources
being made practicable by modern technological progress" and (2) that
it is established by international practice that for the purpose of

119- On the geology of the continental shelf, see H.M. Jain, Continental shelf-Some
Geological Aspects, 16 I.J.LL. 564 (1976).
120- For details, see P. Chandrasekhara Rao, supra note 5 at 192-3.
121. For the proclamation and its detailed background, see Marjori M. Whiteman,
4 Digest of International Law 752-58 (1965).
122. For by 1950 there had been as many as 30 such claims. See Barry Buzan, Seabed
Politics (1976).
123. The text of the proclamation has been published in The Gazette of India,
Extraordinary, part II, s. 3, dated 30 August 1955.

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 3*6 JOURNAL OF THE INDIAN LAW INSTITUTE (Vol. 21 : 3

exploring and exploiting such resources in an orderly manner

every coastal State has the sovereign rights over the seabed and
124
sub-soil of the Continental Shelf adjoining its territory.
P. Chandrasekhara Rao draws our attention to two "significant points"
125
concerning the Indian proclamation. First, the proclamation does not
create, but merely declares the sovereign rights of India over its
continental shelf—a feature which the Indian proclamation shares with the
Truman proclamation, and which later came to be endorsed by the 1958
126
Convention on the Continental Shelf. However, the proclamation has
had the effect of giving public notice of India's claim to other states.
Second, Rao points out, although the proclamation omits to clarify the
legal status of the waters superjacent to the continental shelf, it nowhere
asserts any extension of India's sovereignty to such waters. But it is sub-
mitted that this second point is perhaps inconsequential. For the procla-
mation concerned only the continental shelf, and thus, it is quite possible
that the President chose to keep open the question of status of the
superjacent waters.
Following the 1955 proclamation a Bill was brought in before
Parliament seeking to amend article 297 of the Constitution by inserting
the words "or the Continental Shelf" after the words "territorial
waters".127 However, perhaps in view of the developments in the contem-
poraneous deliberations of the International Law Commission, the
govern-ment did not hasten up the matter, till 1962. And in 1963 the
amending Act came into force adding the words "or the Continental
Shelf" in article 297.128
Yet no definition of continental shelf was adopted as part of the
Constitution. In 1958 Continental Shelf Convention, came to evolve a
double-criteria of two hundred metres isobath/exploitability defining the
outer limits of the shelf. Although India did not become a party to the
convention (and in fact to any of the 1958 conventions), it adopted the
1958 definition for the purposes of the Petroleum and Natural Gas Rules,
1959, article 3 of which clarified that:

'continental shelf means the seabed and subsoil of submarine areas

adjacent to the coast of India including its islands but outside the
area of its territorial waters, to a depth of 200 metres, or beyond

124. See the two preambular paragraphs of the proclamation, ibid-

125. See P. Chandrasekhara Rao, supra note 5 at 193.
126. Art. 2 (3) of the convention provides that: "The rights of the coastal State over the
continental shelf do not depend on occupation, effective or notional, or any express
proclamation."
127. See P. Chandrasekhara Rao, supra note 5 at 195.
128. Vide the Constitution (Fifteenth Amendment) Act, 1963, s. 9.

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 367

that limit to where the depth of the superjacent water admits of the
129
exploitation of natural resources of the areas.
However, even as the double criteria emerged in 1958 it was soon
found to be too inadequate, inequitable and arbitrary to be of any practi-
cal value to the international community.130 And by 1969, the
development in the concept of continental shelf held out possibilities for
geological criterion to become more acceptable to the states, particularly
to those with broad continental shelves. It is in that year the International
Court of Justice handed down its ruling on the North Sea Continental
Shelf cases,131 which gave judicial imprimatur to the natural prolongation
doctrine, first propounded in the Truman proclamation and later followed
up by other proclamations, such as the Indian. 132 The court in that case,
considered the principle of natural prolongation as "more fundamental
than the notion of proximity". The court declared that:
What confers ipso jure title which international law attributes to the
coastal State in respect of its continental shelf, is the fact that sub-
marine areas concerned may be deemed to be actually part of the
territory over which the coastal State already has dominion, in the
sense that, although covered with water, they are a prolongation or
133
continuation of that territory, an extension of it under the sea.
Indeed, the court held that this principle of natural prolongation is "the
most fundamental of all the rules of Jaw relating to the continental
134
shelf". The court's emphasis on the natural prolongatiofi doctrine has
had far-reaching impact in the realm of state practice. Several states,
particularly those with wider continental margins, have claimed
continental shelf extending upto the outer edge of the continental margin
135
on the basis of the court's holding in the Continental Shelf cases.
Evidently, the International Court of Justice came very close to recog-
nizing the sovereignty of the coastal state over its continental shelf, rather
than mere rights to resources thereof. This also seems to be the "view

129. Quoted in M.K. Nawaz, Alternative Criteria for Delimiting the Continental Shelf,
13 I.J.I.L. 25 at 27 (1973).
130. For a critique of the 1958 Continental shelf Convention, see R,P. Anand,
Legal Regime of the Sea-Bed and the Developing Countries 31-75 (1975); Nawaz,
supra note 129 at 30-34, 39-40.
131. (1969) I.CJ.R. 3
132. For a recent comment on the case, see M.K- Nawaz, North Sea Continental Shelf
Cases Revisited, 15 I.J.LL. 506 (1975).
133. Supra note 131 at 31 (emphasis supplied).
134. M a t 22.
135. See Nawaz, supra note 132 at 519. Of course, the question, "where exactly does
the outer edge of the continental margin lie", is an issue for the Third Law of the Sea
Conference to resolve. On this issue, see H.D. Hedberg, Relation of Political Boundaries
on the Ocean Floor to the Continental Margin, 17 Virginia Journal of Inter-national Law
57 (1977).

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 368 JOURNAL OF THE INDIAN LAW INSTITUTE[Vol. 21 : 3
136
adopted by the overwhelming majority of States". And for this reason,
the vesting with the union of all lands, etc., of the continental shelf of
India, by virtue of article 297 of the Constitution seems to be in
137
consonance with the contemporary trends in the law. The position
188
remains un-altered even after the 1976 amendment to the Constitution.
The Maritime Zones Act, 1976 adopts a liberal interpretation of the
Continental Shelf ruling referred to above, and defines, "the continental
shelf of India" as comprising
the seabed and subsoil of the submarine areas that extend beyond
the limits of its territorial waters throughout the natural
prolongation of its land territory to the outer edge of the
continental margin or to a distance of two hundred nautical miles
from the (appropriate) baselines...where the outer edge of the
continental margin does not extend upto that distance!139
Thus, India's legal continental shelf extends upto at least two hundred
miles from the coast, and where the continental margin is broader than
that distance, it extends upto the outer edge of the margin. This seems to
140
conform to the emerging international trend.
On the nature and scope of rights of India in the continental shelf, the
Maritime Zones Act proclaims that "India has and always had, full and
exclusive sovereign rights in respect of its continental shelf." 111 In
particular, "the Union has" ;
(a) sovereign rights for the purposes of exploration, exploitation,
conservation and management of all resources (obviously of
the shelf) ;
(b) exclusive rights and jurisdiction for the construction, main-
tenance or operation of artificial islands, off-shore terminals,
installations and other structures and devices necessary for the
exploration and exploitation of the resources of the
continental shelf or for the convenience of shipping or for any
other purpose ;
(c) exclusive jurisdiction to authorise, regulate and control
scientific research ; and
(d) exclusive jurisdiction to preserve and protect the marine
environment and to prevent and control marine pollution. 142
The Act reserves to the central government the discretion to license or
permit any person (including a foreign government) to explore or exploit
136. P. Chandrasekhara Rao, supra note 5 at 198.
137. Ibid.
138. See art, 297, para (1), as amended by the Constitution (Fortieth Amendment)
Act, 1976.
139. S. 6(1) of the Maritime Zones Act.
140. See art. 76 of the I.C.N.T.
141. S. 6(2) of the Maritime Zones Act.
142. Id., s. 6(3). Cf. arts. 77, 79, 80 and 81 of the I.C.N.T.

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 369

in the area or carry out any other activity relating to recovery of resources
143
therefrom. It confers on the government the power to declare
"designated areas" and make regulations hvrespect of them. 144 While the
Act recognizes the right of a foreign state to lay down submarine cables
or pipelines "Withoutprejudice...to any measures that maybe necessary
for protecting the interests of India", it requires that the delineation of the
course for the laying of such cables or pipelines is subject to the -consent
145
of the central government.
Surely in the light of these provisions of the Marine Zones Act, con-
sequential changes will have to be brought about in all the relevant mining
and other laws, such as the Petroleum and Natural Gas Rules, 1959,
depending on which of them and how much of them would apply to the
"designated areas". Indeed, policies and modalities will have to be settled
on the questions of how to "designate" and what "areas". The govern-ment
seems to be taking an unduly long gestation period in this regard ; it is
three years now since the 1976 Act was adopted. Even before the adoption
of this Act, resources activities have been pursued on the Indian
continental shelf, say at Bombay High, involving participation of certain
multinationals. It is known that so far at least two kinds of problems have
arisen in the absence of a decision with respect to "designated areas", one
concerning the applicability of customs laws to cover 'imports' of materials
to the Bombay High, and the other concerning the applicability of taxation
laws like the income tax. On both counts, no decision seems to have been
taken. It is submitted that one could ad interim apply these laws to
activities of the offshore drilling areas like the Bombay High, following
the logic of the International Court of Justice's ruling in the Continental
Shelf case (as it comes very close to recognizing the sovereignty of the
coastal state)145". In any case, the requirement, in the Maritime Zones Act,
of a decision on "designated areas" is merely 'procedural' in character and
cannot in any way impair the substantive sovereign rights of India over its
continental shelf, including the right to regulate the economic activities
thereon. , Even under the traditional international law, the application of
the relevant Indian laws to the continental shelf activities outside India's
territorial sea could be justified under the flag state princi-ple. Such
functional application of the territorial laws is in line with state practice.
The common concepts like dominium and imperium could also be pressed
into service by the Indian courts, should any dispute arise.

143. S. 6(4) of the Maritime Zones Act,

144. Id., s. 6(5).
145. Id., s. 6(7).
145a. See the definition of ''territory" in Reg, v. Kastya Rama, supra note 13.

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370 JOURNAL OF THE INDIAN LAW INSTITUTE[Vol. 21 : 3

(iv) The exclusive economic zone

The Third Law of the Sea Conference is currently the forum for a broad
based revision of the law of the sea. States are engaged in a long-drawn and
intense negotiation. They have found many old concepts either inequitable or
unworkable, or both, today. The need for a more sophisticated functional
approach to the law of the sea is greatly felt, and many of the old concepts
like the freedom of the high seas are found too simplistic to be allowed to
remain in their traditional form. A doctrinal response to all this on the part of
the international community is the concept of the exclusive economic
zone.146 The concept is indeed a contribution of the developing countries to
147
the emerging law of the sea.
The concept of the exclusive economic zone was for the first time
introduced into the contemporary negotiations on the law of the sea by
Kenya at the Asian-African Legal Consultative Committee session at
Colombo in January 1971. It was finally submitted before the U.N.
Seabed Committee at its 1972 Geneva Session.
The concept of exclusive economic zone confers upon the coastal state
exclusive resource jurisdiction in a two hundred miles zone of waters
(measured from the baselines) adjacent to its territorial sea. The resource
jurisdiction encompasses all resources, whether living or non-living,
within this area, both on the sea-bed as well as in the superjacent water
column. The justification for this jurisdiction claimed by the states is
evidently economic, "for the benefit of their peoples and their respective
148
econo-mies." The concept, then, has a special relevance to the
developing countries. Despite the initial hesitation on the part of the
developed countries, the exclusive economic zone is eventually gaining
149
universal acceptance, particularly in the recent state practice on the part
of the countries like the United States, the United Kingdom and the Soviet
Union, not to mention several developing countries.
Thus, India's acceptance of the concept of the exclusive economic zone
into its state practice cannot be said to be the result of any 'unholy' haste.
Evidently, the inclusion of this concept into article 297 of the Constitution

146. On the exclusive economic zone, see generally M.K. Nawaz, The Emergence of
Exclusive Economic Zone : Implications for a New Law of the Sea, 16 IJJ.L. 471 (1976)
and in R.P. Anand (ed.), supra note 100 at 180.
147. For the contribution of the developing countries to the new Law of the Sea, see
generally R.P- Anand, supra note 130 ; Ebere Osieke, The Contribution of States from the
Third World to the Development of the Law of the Continental Shelf and the Concept of
the Economic Zone, 15 IJLL. 313 (1975).
148. The rationale for the exclusive economic zone is well dealt with by R.P. Anand,
Iceland's Fisheries Dispute, 16 I.J.LL. 43 at 49-53, (1976); Nawaz, supra note 146 at 475-
6.
149. See arts. 55 to 57 and art. 73 of the I. C.NT. A major issue for international
negotiations remains the legal status of the exclusive economic zone, See Nawaz, supra
note 146 at 486-7.

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 371

necessitated a redrafting of the whole article anew. The Constitution

(Fortieth Amendment) Act, 1976, it may be recalled, proclaims that "AH
lands, minerals and other things of value underlying the ocean within.,
the exclusive economic zone of India shall vest in the Union and be held
for the purposes of the Union"; and that "All other resources of the
exclusive tCM6mic zone of India shall also vest in the Union and be held
150
for the purposes of the Union*'.
Pursuant to the new article 297(3) of the Constitution, the Maritime
Zones Act, 1976 clarifies many of the ramifications of the exclusive
econo-mic zone so introduced in the Constitution. It defines "the
exclusive economic zone of India" as "an area beyond and adjacent to the
territorial waters, and the limit of such zone is two hundred nautical
miles" from the (appropriate) baselines...' nu although this would not
foreclose the possibility of further alterations of the limit of the zone by
152
the central government.
What are the scope and nature of rights that India claims within its
exclusive economic zone? The Maritime Zones Act postulates that;
In the exclusive economic zone, the Union has—

(a) sovereign rights for the purpose of exploration, exploitation,

conservation and management of the natural resources, both
living and non-living as well as for producing energy from
tides, win\ds and currents;
(b) exclusive rights and jurisdiction for the construction, mainte-
nance or operation of artificial islands, off-shore terminals,
installations and other structures and devices necessary for the
exploration and exploitation of the resources of the zone or
ft>r the convenience of shipping or any other purpose;
(c) exclusive jurisdiction to authorise, regulate, and control
scientific research;
(d) exclusive jurisdiction to preserve and protect the marine
environment and to prevent and control marine pollution; and
(e) such other rights as are recognised by International Law.153
A comprehensive provision, indeed! One is readily tempted to enter into
a comparison between this and the corresponding provision [viz, section
0(3)] on the sqope and nature of India's rights over its continental shelf.
The Act further reserves the power of the central government to permit,
"in terms of any agreement" or license, any person (including a foreign

150 See paras (1) and (2) of the newly substituted art. 297 of the Indian Constitution.

151. S. 7(1) of the Maritime Zones Act. S. 7 has come into force, vide Ministry of
External Affairs notification, supra note 92.
152. Id., s. 7(2).
153. Id., s. 7(4) (emphasis supplied); cf art. 56 of the I.C.N.T.

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372 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 21 : 3

government) to explore or exploit the resources in the exclusive economic

zone, or carry out any search, research or any other activities in the zone";
however, no such restriction "shall" apply in relation tofishingby a citizen
of India.154 The term "in terms of any agreement with the central govern^
ment" is used in the Act, perhaps to accommodate the interests of the
155
neighbouring landlocked countries. The Act confers upon the central
government the competence to declare "designated areas" in the zone and
regulate passage of foreign ships through them, ensuring "freedom of
navigation" which is not prejudicial to the interest of India," 156 It also
envisages necessary extensions or modifications of any law in force as to
157
make it applicable to the exclusive economic zone. A provision on the
laying and maintenance of submarine cables and pipelines, identifiable
with the one concerning the continental shelf, is also embodied in the Act
in the context of the exclusive economic zone. 158 A very important
provision in the Act is that:
In the exclusive economic zone and the air space over the zone,
ships and aircraft of all States shall, subject to the exercise by India
of its rights within the zone, enjoy freedom of navigation and
159
overflight.
All this clarifies India's position concerning the legal status of the
exclusive economic zone. India considers the zone as sul generis, and does
not support the view that the zone be considered as part of the high
seas.160 The effect of acceptance of the latter view would be that the rights
of a coastal state in the exclusive economic zone would be subject to the
freedom of the seas doctrine. This is precisely what the phrase "subject to
the exercise by India of its rights within the zone" purports to undo. In
view of this phrase, priority is accorded in favour of India's rights in the
zone, as against the traditional freedom of the seas.
The above provisions of the Maritime Zones Act on the exclusive
economic zone, juxtaposed to those on the continental shelf, reveal the

154. Id., s. 7(5). This provision provides broad framework for the Indian regime of
fisheries in the exclusive economic zone. For the contemporary trends in fisheries, see R.
Lakshmanan, supra note 7; Rahmatullah Khan, On the Fairer and Equitable Sharing of the
Fishery Resources of Oceans, 13 I.J.I L. 87 (1973) and Rahmatullah Khan, The Fisheries
Regime of the Exclusive Economic Zone, 16 IJ.I.L* 169 (1976); see also R.P. Anand,
supra note 148, and Nawaz, supra note 146 at 480-4. See also arts 59, 69 and 70 of the
I.C.N.T.
155. See arts. 59 and 69 of the I.C.N.T.
156. See the explanation to s. 7(6) of the Maritime Zones Act. Cf. art. 58 of the I.C.N.T.

157. S. 7(7) of the Maritime Zones Act.

158. Id., s. 7(8).
159. Id., s. 7(9) (emphasis added).
160. This is the position reflected in art. 75 of the R-S-N-T,, VN Doc. A/CO^F,
62/WP. 8/Rev. 1/Part IJ, an£ art, $6 of ths I.C.N.T,

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 373

distinctive features of both the concepts. 161 The exclusive economic zone is
both broader and narrower than the continental shelf. The former is broader
in that it envelops the coastal state's rights not merely on the sea-bed and
subsoil within the zone but also in the superjacent water column. These rights
encompass all living and non-living resources of the zone. On the other hand,
in terms 6f spatial limits, the exclusive economic zone does
.not extend beyond two hundred miles from the coast. Whereas, the
continental shelf may extend even beyond the limit, upto the outer edge
of the continental margin, on the basis of the natural prolongation
doctrine.
India would stand to gain by establishing the exclusive economic zone
along its coasts and along with it, claiming continental shelf jurisdiction
over its broad continental margin beyond two hundred miles, off its
western and the West Bengal coasts.

(v) Historic waters

It has already been noted that the British India had asserted historical
rights in the Palk's Bay and the Gulf of Mannar between the mainland of
India and the island of Ceylon. The Annakumaru Pillai case162 and later the
163
Chank Fisheries cases have also taken judicial cognizance of such rights
in these areas beyond the then territorial sea of India. The judicial
cognizance, it may also be noted, has been based on the long, unperturbed
and continuous exercise of rights in the areas coupled with the international
acquiescence on the part of other states, plus, indeed, the special geographi-
cal features of the areas, and the dependence of the local population on the
164
enjoyment of these rights. Attempting a definition in the post-Second
World War context, Bouchez, for instance, describes 'historic waters' thus:
Historic waters were waters over which the coastal State, contrary
to the generally applicable rules of international law, clearly, effec-
tively, continuously and over a substantial period of time, exercises
Ub
sovereign rights with the acquiescence of the community of States.
166
The Anglo-Norwegian Fisheries case seems to give credence to a

161. See Nawaz, supra note 146 at 479-80.

162. See supra note 45.
163. See supra notes 58 and 69.
164. There is a recent study of historic waters and its relevance to India. See Lakshmi
Jambholkar, The Concept of Historic Waters and International Law, done under the
auspices of the Indian Society of International Law, New Delhi, 1974-75. For U.N.
Secretariat Studies on historic waters, see UN/DOC. A/CN. 4/143, in 2 ILC. Year-book
1962, p. 1, and UN Doc. A/CONF. 13/1 in 1 United Nations Conferences on the law of
the Sea, Official Records, Preparatory Documents, p. 1 (Geneva, 1958).
165. 5oychez, supra note 40 at 28L
166.Supra note 2,

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 374 JOURNAL OF THE INDIAN LAW INSTITUTE[Vol. 21 :3

coastal state's claim of historic waters over the adjacent sea. In that case,
Norway asserted the validity of straight baseline system which would
involve enclosing of expanses of the sea that normally would be part of
the high seas. This claim was partly based on the historical rights clearly
put fourth and enforced through acts of municipal authority such as laws,
regulations, administrative measures, and judicial decisions over a period
of time. Upholding the Norwegian claim, the International Court of
Justice held that :
In the light of these considerations, and in the absence of
convincing evidence to the contrary, the Court is bound to hold
that the Norwegian authorities applied theii system of delimitation
con-sistently and uninterruptedly from 1869 until the time when
1660
the dispute arose.
The court also emphasized that the
general toleration of foreign States in regard to the Norwegian
practice is an unchallenged fact. For a period of more than sixty
years the United Kingdom Government itself in no way contested
it.167
India and Ceylon have continuously asserted the claim of historic
waters over the Palk's Bay and the Gulf of Mannar, in succession to the
British rule. Hence, the significance of section 8 of the Maritime Zones
Act. Section 8 runs :
(1) The Central Government may, by notification in the Official
Gazette, specify the limits of such waters adjacent to its land
territory as are the historic waters of India.
(2) The sovereignty of India extends, and has always extended, to
the historic waters of India and to the seabed and sub-soil
168
underlying and the air space over, such waters.
Sub-section 2 of section 8 is important, because it clarifies nature or rights
which India claims over its historic waters. The term "and has always
extended" is reminiscent of the natural prolongation doctrine of the con-
tinental shelf. Furthermore, what India claims in its historic waters is not
simply a bundle of rights, but "sovereignty" encompassing the body of
waters, the underlying seabed and subsoil, and the air space above such
waters. Such a claim of sovereignty is justifiable in terms of the historicity of
169
occupation and acquiescence on the part of other states.
166a. Id. at 138.
167. Ibid. The possibility of a claim of historic title affecting the delimitation of the
territorial sea is envisaged in art. 15 of the LC.N.T.
168. Emphasis supplied.
169. For a similar Canadian claim over the Hudson Bay and the Hudson Straits,
see V.K. Johnson, "Canada's Title to Hudson Bay and Hudson Strait",15 B.Y.LL. 1
(1934), also cited in Lakshmi Jambholkar, supra note 164.

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19791 INDIA'S MARITIME ZOtiES AND INTERNATIONAL LAW 375

Acting under section 8(1) of the Act, the Government of India has
notified in January 1977 the limits of the Indian historic waters in the
Palk's Bay and the Gulf of Mannar, pursuant to the Indo-Ceylonese
170
delimitation agreements of 1974 and 1976. It is significant to note that
the January 1977 notification not merely delimits the waters, but proceeds
further to declare that:
The historic waters of India in the Palk Strait and Palk Bay area of
sea are internal waters of India. The historic waters of India beyond
the appropriate baseline referred to in Section 3(2) of the Act in the
Gulf of Mannar area of sea have the same status as the terri-torial
waters of India.171
This provision in the notification has two main features. First, it attri-
butes two different legal status to the Palk's Bay and the Gulf of Mannar.
The Palk's Bay and Palk Strait are indeed, a near landlocked expanse of
waters geographically, and "partakes of the character of inland waters'' as
172
was held in the Chank Fisheries case and, therefore, the above
provision merely reaffirms the position. On the other hand, the
notification attributes to the Gulf of mannar only the status of the
territorial sea. The difference between the status of the territorial sea and
that of the internal waters is well known. The attribution of the status of
the territorial sea to the Gulf of Mannar is, however, a deviation from the
earlier judicial rulings. Chank Fisheries case itself recognised that the
Gulf of Mannar "is of the same character" as that of the Palk's Bay.173
However, the deviation in the position is perhaps welcome, for the
notification seems to be closer to the geographical reality. The Gulf of
Mannar, in contrast to the Palk's Bay, is not quite even a near-landlocked
sea, for its southern part gapes wide open on to the high seas.
Secondly, the reference to "the appropriate baseline referred to in
section 3(2) of the Act" specifically appears in the context of the Gulf of
Mannar and not of the Palk's Bay. The reason for this is probably that the
existence of a number of islands closer to the Indian mainland
necessitates reservation of the rights of the central government to deter-
mine what should be "the appropriate baseline", so as to delineate the
internal waters from the territorial waters.

(vi) India's maritime boundaries with its neighbours

The delimitation of overlapping maritime zones between the states has

170. Vide Ministry of External Affairs notification GS.R. 17(E) dated 15 January 1977,
the Gazette of India, Extraordinary, part II, sec. 3(/), 15 January 1977, p. 53 at 54-55.

171. Id. at 55.

172. See supra note 58 at 588.
173. Ibid., see also the Annakumaru PitlaVs case, supra note 45*

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376 JOURNAL OF THE INDIAN LAW INSTITUTE fVol. 1\ : 3

always posed problems in international law. To resolve such problems

relating to delimitation of, say, the territorial seas or the continental shelves
of adjacent or opposite coastal states, the 1958 Geneva Conference evolved
a three-tier formula. It provided that the delimitation be achieved by
agreement between the states concerned, and that in the absence of agree-
ment, and unless another boundary is justified by special circumstances, the
boundary should be determined by the principle of equidistance. 174 The
Geneva formula for delimitation of overlapping contiguous zone suggested
175
agreement and in the absence of it, the equidistance principle. However,
the equidistance rule came to a rather harsh treatment at the hands of the
International Court of Justice in the Continental Shelf case.176 The court ia
that case ruled that the equidistance principle did not cons-titute the part of
the international customary law nor also of thcdactrine of the continental
shelf, and that the delimitation be carried out according * to the equitable
177
principles.
However, the North Sea Continental Shelf cases have come under
serious criticism on this count. 178 It is also significant to note that the
International Court of Justice itself conceded that "no other method of
delimitation has the same combination of practical convenience and
179
certainty of application", as the equidistance method. At any rate the
subsequent developments in international law have tended to reinstate in
a large measure the importance of the equidistance principle in delimi-
tation of the boundaries of opposing or adjacent maritime zones. 180
The Maritime Zones Act envisages the settlement of such delimitation
problems between India and any other opposite or adjacent coastal state
through agreement between the two countries. However, pending such
agreement, and in the absence of any other provisional arrangements
agreed to between them,
the maritime boundaries between India and such State shall not
extend beyond the line every point of which is equidistant from
the nearest point from which the breadth of the territorial waters of
India and of such States are measured.181

174. See art. 12 of the 1958 Convention on the Territorial Sea and Contiguous Zone
and art. 6 of the 1958 Convention on the Continental Shelf.
175. Art. 24 (3) of the Territorial Sea Convention, 1958.
176. Supra note 131.
177. On this, see Nawaz, supra note 132 at 511.
178. See for instance, S.C. Chaturvedi, The North Sea Continental Shelf Cases
Analysed, 13 LJ.I.L. 481 at 488-91 (1973).
179. Supra note 131 at 23.
180. See arts. 15, 74 and 83 of the I.C.N.T. Indeed, the equidistance rule is better
placed in art. 15 on the delimitation of the overlapping territorial seas than in art. 74
(exclusive economic zone), or in art. 83 (in both of which the principle is recommended
"where appropriate").
181. S. 9 (1) of the Maritime Zones Act.

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 l$79f INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 377

In other words, the Maritime Zones Act prescribes the equidistance

principle for delimitation, in the absence of either any agreement or any
Other provisional arrangement between India and another state whose
maritime zones overlap with India's.
So far India has already settled the delimitation problems with Sri
Lanka,182 Indonesia, Maldives, and Thailand, while Pakistan, Bangla
Desh and Burma are countries whose maritime boundaries are likely to
overlap India's, and agreements have not been reached with them. India
his had differences of opinion particularly with Bangla Desh. However,
in view of its recent optional clause declaration on the compulsory
jhrisdiction of the International Court of Justice, 183 India will be willing
to seek solution of maritime zone delimitation problems, only through
diplomatic negotiations, and not readily through compulsory judicial
means.184 And in the absence of agreement or some other provisional
arrangement, India is likely to insist on the equidistance method for
delimitation of its maritime boundaries with the neighbouring states.
(vu) Offences with respect to the maritime zones
The establishment of the various maritime zones and exercise of rights
therein would necessarily imply a right, and often a duty, to deal with
offences against the legal regime of each such zone. Thus, the Maritime
Zones Act provides for apprehension, trial and punishment of the offenders
of the legal regimes of the zones. The Act declares that: "whoever con-
travenes any provision of this Act or of any notification thereunder" shall be
punishable with imprisonment and or with fine. This indeed is "without
prejudice to any other action which may be taken against such person under
185
any other provision of this or of any other enactment". The terms
"whoever" and "person" are comprehensive enough to encompass all cases,
be the offenders Indian nationals or aliens, individuals or artificial persons
such as a state or a corporate entity.
Dealing specifically with the offences committed by a 'company' (which
means "any body corporate and includes a firm or other association of
individuals"), the Act makes such offences attributable not only to the
company but also to "every persons who at the time the offence was
committed was in charge of, and was responsible to the company for the
conduct of business of the company," but who is unable to extricate him-

182. For the agreements between India and Sri Lanka (Ceylon), see 16 IJIL. 123,
126(1976).
183. Reprinted in 14 I.J.L.L, 450 (1974).
184. See for instance the statement of S.P. Jagota, (Legal Adviser to the Government of
India at the Ministry of External Affairs) at the Fourth Session (New York) of the U.N.
Third Conference on the Settlement of Disputes at the Law of the Sea, on 5 April 1976,
reprinted in 16 IJJ.L. 123 (1976).
185. S. 11 of the Act.

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378 JOURNAL OF THE INDIAN LAW INSTITUTE {Vol. 21: 3

self by providing due diligence, or lack of knowledge of the offence when it was
186
committed. The Act emphasises on the separate liability of the
company and such person in such cases: indeed, the liability goes beyond a
person in charge of and responsible for the business of the company and
encompasses all persons who have been at the material time connected with the
187
company, and to whom the offence is attributable.
However, in its enthusiasm to cover all persons to whom the offence is
attributable, the Act does not seem to have given due weight to certain problems
of the burden of proof, which are, indeed, crucial for legal proceedings, and for
their final outcome. For instance, a cumulative reading of the proviso to para 1 of
section 12 of the Act and para 2 of
that section may raise the question of the standard of proof required of the
188
prosecution.
As regards institution of proceedings on such offences, the Act confers upon
the central government broad powers. The trial of the offences under the Act, or
rules made thereunder, or under any other enactment adapted and extended to the
maritime zones or the rules made thereunder, may take place "in any place"
where the offender is "found" or in such other place as the central government
189
may direct. It also specifies that no prosecution under the Act can be launched
"without the previous sanction" of the central government or a duly authorized
190
officer. These two provisions of the Act leave the questions of territorial
jurisdiction and triability of an offence to be decided entirely at the discretion of
the central government.

(viii) Further task of law making on coastal jurisdiction

The Maritime Zones Act read with article 297 of the Constitution is intended
only to provide a broad framework within which India may exercise its
jurisdiction inks various maritime zones, and it does not pretend to regulate the
whole of India's coastal jurisdiction in all its specific ramifications. This is clear
from the provisions of the Act itself, for they envisage further law-making and
191
administrative regulations by or under the authority of the central government.
The Act contemplates not only making of new enactments, rules and regulations,
but also adaptation, extension or alteration of the existing laws.

The maritime zones differ from one another in terms of special require-ments
of the legal regime of each zone. An adequate identification and

186. Id-,$. 12(1).

187. Id., s. 12 (2).
188. See particularly the term "and it is proved** in s. 12(2) of the Act.
189. Id., s. 13.
190. Id., s. 14.
191. Id., ss. 1(2); 4(3); 5(5); 6(4), (5), (6) and (7); 7(5), (6), (7) and (8); 8(1) 10 and
12-16.

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1979J INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 579

comprehension of these requirements is a task which is at once one of

correlating the international community interests and the coastal interests of
India, as also one of multidimensional evaluation and implementation of the
diverse elements constituting the substantive content of India's coastal
jurisdiction, such as its economic, technological, oceanographic, and
environmental aspects. The laws have to be necessarily wide-ranging to
encompass diverse matters of civil, penal and revenue interests, with both
substantive as well as procedural ramifications. Equally, several administra-
tive problems such as the inter-departmental cooperation, liasion, account-
ability, span of control and so on, await immediate attention.
The Maritime Zones Act seems to reveal acute awareness to and urgency
of the task ahead. Small wonder, apart from contemplating further enact-
ments, it confers upon the central government broad powers to make rules for
192
carrying out the purposes of the Act, and deems any contravention of such
193
rules as a contravention of the provisions of the Act itself. The Act also
specifies that "without prejudice to the generality of the foregoing (rule-
making) power," the contemplated rules may provide for (a) regula-tion of
the conduct of any person in the various maritime zones of India;
(b) regulation of the exploration and exploitation, conservation and
management of all resources of the continental shelf and the exclusive
economic zone of India; (c) regulation of the construction, maintenance
and operation of artificial islands off-shore terminals, installations and
other structures and devices on the continental shelf or within the
exclusive economic zone for any purpose whatsoever; 194 (d) preservation
and pro-tection of the marine environment and prevention and control of
marine pollution "for the purposes of the Act"; (/) fees in relation to
licences and letters of authority issued for activities on the continental
shelf and the exclusive economic zone; and (g) "any matter incidental" to
195
the above matters. The list is indeed merely illustrative_and not
exhaustive. The Act specifically requires placing of the rules before each
196
House of Parliament for a total period of thirty days for approval.
Evidently, such a requirement underscores effective collaboration and
consultation between the executive and the legislature and would tend to
foreclose arbitrary executive action. It would also facilitate adequate
comprehension of India's coastal interests and mature deliberation before
promulgation of the law.
Attempts are being made towards strengthening the enforcement
mechanism of India's coastal jurisdiction. The adoption of the Coast
Guards Act, 1978 is an important event in this regard. But then adequate

192. Id., s. 15(1).

193. Id,s. 15(3).
194. For this purpose, see ss. 6(4) and 7(5).
195. Id., s. 15(2).
196. Id., s. 15(4).

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 380 JOURNAL OF THE INDIAN LAW INSTITUTE{Vol. 21 :3

provision of the "teeth" to the nascent coastal guards wrll undoubtedly be

a long drawn out process.
All this, it is hoped, would be enough to 'instigate' sensitive Indian
Scholars to launch upon in depth inquiries into the diverse problems bear-
ing upon the effective exercise of the coastal jurisdiction of India, and
possible options open to India in terms of legislative, administrative,
judicial and other strategies to be evolved in these problems.
V India's maritime zones in retrospect
International law recognises the competence of every coastal state to
establish maritime zones for diverse purposes. The contemporary
developments in international law point to an emphasis, on the part of the
states, on functional relevance of these zones to the interests of the coastal
states. Indeed, international law expects of a coastal state a reasonable
evaluation of the functional relevance as the rationale for establishment of
maritime zones.
A study of India's coastal jurisdiction in terms of international law is
highly relevant, for diverse reasons. There has been a pronounced paucity qf
such studies in the past. There is an urgent need for such studies, in view of
the recent developments of concepts like the exclusive economic zone and the
continental shelf. The Constitution (Fortieth Amendment) Act and the
Maritime Zones Act, both of 1976, have now provided a broad legal
framework for the exercise of India's coastal jurisdiction, and this calls for
creative scholarship to probe into the diverse possible problems of the coastal
jurisdiction of India. This area is indeed crying for research.
India's practice on maritime zones has had a long history. The British
India broadly followed the British practice, for obvious reasons. Thus,
India before 1950 had a three-mile territorial sea, but also claimed historic
waters over the waters between the mainland and Ceylon, evidently to
protect its interests in the rich sedentary fisheries there. However, India's
claim of the historic waters fulfills the international law requirements of
long and undisturbed exercise of rights and the international recognition
of thesei rights.
India, after indepedence, adopted a Constitution, article 297 of which
represented the first attempt to provide a framework for India's coastal
jurisdiction. This article has also manifested a solution to the centre-state
relations in the context of the Indian union. The intention of the Constitu-
tion-makers has been to confer complete jurisdiction upon the central
government, which can, however, assign it or part of it to the states for
specific purposes. But, as luck would have it, the Madras High Court in
the controversial Chank Fisheries cases held otherwise. The Chank
Fisheries holdings are full of mischief tending to upset the pattern of the
centre-state relations envisaged by the founders of the Indian Constitution.
This apart, the holdings also manifest a confusion concerning the position
in international law of the rights of a state (sovereign state) and those of

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1979] INDIA'S MARITIME ZONES AND INTERNATIONAL LAW 381

a state (province in a federal union) in the maritime zones. The rulings

can also be questioned in terms of the historical evolution of the federal
concept in India.
Tndia has attempted to modify the limits of its maritime zones, or
establish new zones, in accordance with the developments of international
customary law. Thus, it extended its territorial sea from three to six miles
and then to twelve miles. It has now established a twentyfour miles con-
tiguous zone. In 1959, it claimed rights over the continental shelf in terms
of the 1958 definition of the continental shelf.
The contemporary negotiations on the law of the sea have given a shot
in the arm in the development of international customary law. Thus, new
concepts like the exclusive economic zone and archipelagos have received
international recognition. And the older concepts like those of the terri-
torial sea and the continental shelf have come to be modified.
All these developments called for a fresh and more comprehensive
approach to India's coastal jurisdiction. This is precisely what the 1976
legislation aims to achieve. The 1976 legislation, however, provides only
a broad framework of principles for the development of a detailed Indian
regime of maritime zones. In this respect, it compares well with the laws
recently adopted by several countries such as the United States, the EEC
countries, the Soviet Union, Iceland, and New Zealand, besides, indeed,
several developing countries like Mexico, Pakistan and Sri Lanka.
The 1976 legislation, however, seems to set at rest many of the centre-
state problems unnecessarily raked up by the Chank Fisheries cases.
The reasonableness of the Indian legislation can be demonstrated,
particularly in the context of the historic waters, where India makes a
distinction in status between the Gulf of Mannar and the Palk's Bay—a
distinction, which India did not have to make, in the light of the earlier
practice and international acquiescence to it.
The 1976 legislation, however, brings to fore the need to inquire into
the diverse problems concerning the exercise of coastal jurisdiction, and
possible legal regulations.

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