WRIT
PETITION (CIVIL) NO.580 OF 2003
(Under
Article 32 of the Constitution of India)
PETITIONER:
Common Cause (A Regd. Society)
RESPONDENT:
Union
of India & Ors
JUDGMENT
H.K.
SEMA, J 1.
This petition has been filed in the form of public interest litigation
by Common Cause (A Registered Society) through its Director Shri
H.D. Shourie r/o A-31, West End, New Delhi.
2. At the risk of Writ Petition,
the petitioner sought for the following reliefs:
(i) to issue a Writ, direction
or order in the nature of mandamus and/or any other writ, direction
or order directing the Respondent No.1, in consultation with representatives
of the Respondent Nos.2, 3, 4, 5 & 6 and also representatives
of other States/UTs :-
(a) to set up fully satisfactory
procedures of licensing of vehicles and licensing of drivers,
for ensuring that the vehicles are fully equipped with all the
safety travel requirements, and also ensure that drivers of private
vehicles as well as drivers of public vehicles including buses
and trucks, are fully trained and are competent to drive the respective
types of vehicles, and to also organize high-level training arrangements
for the drivers of respective types of vehicles; appropriate procedures
should also be ensured for suspension/cancellation of driving
licences in the event of any default or for involvement in any
accident;
(b) to ensure provision of all
infrastructural requirements of roads, including signs, signals,
footpaths, repairs of roads, and all such other requirements which
will help to minimise risks of accidents on the roads;
(c) to set up methodology and
requirements for undertaking scientific analysis of every accident,
for ensuring that similar causes do not recur which can lead to
accidents, thereby minimizing the possibilities of accidents;
(d) to establish suitable organizations
for providing education to all types of users of roads, through
experts as well as use of suitably devised visual and audio media;
(e) to ensure the availability
of ambulances for immediate removal of injured persons to hospitals;
(f) to set up Committees of Experts
in each State/UT and in the bigger cities for dealing with these
various requirements for minimization of accidents on the roads;
(ii) to direct Respondent No.1
to formulate a suitable Road Traffic Safety Act to meet effectively
the various requirements for minimization of road accidents; and
(iii) to pass such other and
further orders as may be deemed necessary to deal effectively
with the various matters relating to traffic Safety on the roads
and minimization of road accidents, on the facts and in the circumstances
of the case.
3. I had the privilege of going
through the erudite judgment prepared by my learned Brother Justice
Katju and I respectfully agree with the conclusion reached by
my brother Katju that the Writ Petition be dismissed. While coming
to this conclusion Brother Katju was of the opinion that the Motor
Vehicles Act is a comprehensive enactment on the subject. He was
further of the opinion that if there is lacuna or defect in the
Act it is for the legislature to correct it by a suitable amendment
and not by the Court. I am also of the view that the relief sought
for in this Writ Petition is adequately taken care of by the Motor
Vehicles Act itself and if there is any lacuna or defect, it is
the legislature to correct it by amending the Act and not the
Court.
4. I however, respectfully dissociating
myself from certain general observations of my learned Brother
in paragraphs 36, 37, 38, 39, 43, 44, 45, 46, 47, 48, 49, 50,
52, 53 and 55 in the judgment, expressing doubts about the jurisdiction
of this Court entertaining the petition in the form of public
interest litigation.
5. I also respectfully disagree
with certain observations made by a two-Judge Bench of this Court
in the case of Divisional Manager, Aravali Golf Course & Anr.
vs. Chander Hass, JT 2008(3) SC 221, as referred to by my learned
Brother in Para 8 of his Judgment.
6. In the case of Union of India
vs. Association for Democratic Reforms and Another (2002) 5 SCC
294, raised the substantial question of law of public importance
was whether in a nation constitutionally wedded to republican
and democratic form of Government, where election as a Member
of Parliament or as a Member of Legislative Assembly is of utmost
importance for democratic form of the country, before casting
votes, voters have a right to know relevant particulars of their
candidates; and whether the High Court had jurisdiction to issue
directions in a Writ Petition filed under Article 226 of the Constitution
of India? The High Court of Delhi entertained the writ petition
and directed the Election Commission to secure to voters the following
information pertaining to each of the candidates contesting election
to Parliament and to the State Legislatures and the parties they
represent :
1. Whether the candidate is accused
of any offence(s) punishable with imprisonment. If so, the details
thereof.
2. Assets possessed by a candidate,
his or her spouse and dependent relations.
3. Facts giving insight into
the candidate's competence, capacity and suitability for acting
as a parliamentarian or a legislator including details of his/her
educational qualifications.
4. Information which the Election
Commission considers necessary for judging the capacity and capability
of the political party fielding the candidate for election to
Parliament or the State Legislature.
7. Aggrieved by the aforesaid
direction of the High Court, an appeal was filed before the Supreme
Court by the Union of India. A three Judge Bench of this Court,
of which one of us was a party (Sema J.), in Union of India vs.
Association for Democratic Reforms and Another (supra) upheld
the direction, repelling the arguments of the appellant, this
Court held : "The Supreme Court cannot give any directions
for amending the Act or the statutory Rules. It is for Parliament
to amend the Act and the Rules. It is also established law that
no direction can be given, which would be contrary to the Act
and the Rules. However, it is equally settled that in case when
the Act or Rules are silent on a particular subject and the authority
implementing the same has constitutional or statutory power to
implement it, the Court can necessarily issue directions or orders
on the said subject to fill the vacuum or void till a suitable
law is enacted."
8. Further, in paragraph 46 (6)
of the judgment it is held : "46(6). On cumulative reading
of a plethora of decisions of this Court as referred to, it is
clear that if the field meant for legislature and executive is
left unoccupied detrimental to the public interest, this Court
would have ample jurisdiction under Article 32 read with Articles
141 and 142 of the Constitution to issue necessary directions
to the executive to subserve public interest."
9. Therefore, whether to entertain
the petition in the form of Public Interest Litigation either
represented by public-spirited person; or private interest litigation
in the guise of public interest litigation; or publicity interest
litigation; or political interest litigation is to be examined
in the facts and circumstances recited in the petition itself.
I am also of the view that if there is a buffer zone unoccupied
by the legislature or executive which is detrimental to the public
interest, judiciary must occupy the field to subserve public interest.
Therefore, each case has to be examined on its own facts.
10. In my considered opinion
therefore, the blanket bar of the application in the form of PIL
is obviated. Subject to aforesaid, I agree with the conclusion
of my learned Brother that the petition be dismissed.
(H.
K. SEMA) J.
New Delhi
April 11, 2008
JUDGMENT
Markandey
Katju, J.
1.
This writ petition under Article 32 of the Constitution furnishes
a typical illustration of how public interest litigation which
was conceived and created as a judicial tool by the courts in
this country for helping the poor, weaker and oppressed sections
of society, who could not approach the court due to their poverty,
has over the years grown and grown, and now it seems to have gone
totally out of control, and has become something so strange and
bizarre that those who had created it probably would be shocked
to know what it has become.
2.
The petitioner is a society registered under the Societies Registration
Act which claims to be engaged in espousing problems of general
public importance.
3.
In the present case, the petitioner has referred to the rising
number of road accidents in the country which are taking place
in cities, towns and on national highways causing deaths, injuries
etc. The petitioner has referred to the defects in the licensing
procedure, the training of drivers, and the need for suspending
licences in case of negligent driving, and driving under the influence
of alcohol, which cause accidents etc. He has also referred to
the inadequate infrastructure relating to roads and inadequate
provisions of traffic control devices including traffic signals,
traffic signs, road devices and other road safety measures. It
has been stated in the petition that there should be proper and
continuous coordination between various authorities which are
connected with roads and control of traffic, and for this purpose
the only appropriate remedy is to establish Road Safety Committees.
The petitioner has also emphasized the need for having readily
available ambulances for shifting the injured persons in road
accidents to hospitals for immediate treatment.
4.
The petitioner has also stated that there should be road safety
education for the users of roads, pedestrians, traffic participants
including cyclists, handcarts men, bullock- cart drivers etc.,
who generally have low socio-economic and educational background
and do not know traffic rules and regulations. The petitioner
has alleged that pedestrians and non-motorized traffic face enormous
risks as they account for 60% to 80% of road traffic fatalities
in the country. All non-motorized traffic need to be given thorough
and repeated orientation in observance of road traffic rules and
avoidance of any situations which can cause accidents. These road
safety education programmes can include written material for those
who are literate and also illustrations, slides, specially prepared
films, and also publicity though the medium of TV and radio.
5.
The petitioner has also alleged that there is a paramount need
for enactment of a Road Traffic Safety Act to lay down regulations
dealing with specific responsibilities of drivers, proper maintenance
of roads and traffic-connected signs and signals etc., and all
rules and regulations for observance by all concerned including
pedestrians and non-motorized traffic. The Road Traffic Safety
Act should contain all the regulations and the requirements relating
to avoidance of accidents, responsibilities of respective Departments
of State Governments, Municipal bodies, Police authorities, and
the penalty for non-observance of prescribed regulations. The
Act should specify the duties, responsibilities, rights, directives
and punishments in case of failures by any one e.g. driver, vehicle,
road user, etc.
6.
The petitioner has alleged that the number of accidents has increased
greatly over the years in India and hence he has filed this writ
petition with the following prayers:
(i) to issue a Writ, direction or order in the nature of mandamus
and /or any other writ, direction or order directing respondent
No.1 (the Union of India) in consultation with representatives
of respondent Nos. 2, 3, 4, 5 & 6 (the Government of NCT of
Delhi, and the State Governments of Maharashtra, Tamilnadu, West
Bengal and Karnataka) and also representatives of other States/UTs
:-
(a) to set up fully satisfactory procedures of licensing of vehicles
and licensing of drivers, for ensuring that the vehicles are fully
equipped with all the safety travel requirements, and also ensure
that drivers of private vehicles as well as drivers of public
vehicles including buses and trucks, are fully trained and are
competent to drive the respective types of vehicles, and also
to organize high-level training arrangements for the drivers of
respective types of vehicles; appropriate procedures for suspension/cancellation
of driving licenses in the event of any default or for involvement
in any accident;
(b) to ensure provision of all infrastructural requirements of
roads, including signs, signals, footpaths, repairs of roads,
and all such other requirements which will help to minimize risks
of accidents on the roads;
(c) to set up methodology and requirements for undertaking scientific
analysis of every accident, for ensuring that similar causes do
not recur which can lead to accidents, thereby minimizing the
possibilities of accidents; (d) to establish suitable organizations
for providing education to all types of users of roads, through
experts as well as use of suitably devised visual and audio media;
(e) to ensure the availability of ambulances for immediate removal
of injured persons to hospitals;
(f) to set up Committees of Experts in each State/UT and in the
bigger cities for dealing with these various requirements for
minimization of accidents on the roads;
(ii) to direct respondent No. 1 to formulate a suitable Road Traffic
Safety Act to meet effectively the various requirements for minimization
of road accidents; and
(iii) to pass such other and further orders as may be deemed necessary
to deal effectively with the various matters relating to traffic
safety on the roads and minimization of road accidents, on the
facts and in the circumstances of the case.
7.
Shri Prashant Bhushan, learned counsel for the petitioner has
relied on the decision of the three Judge Bench of this Court
in M.C. Mehta vs. Union of India AIR 1998 SC 190 in which the
following directions have been given:
"A.
The Police and all other authorities entrusted with the administration
and enforcement of the Motor Vehicles Act and generally with the
control of the traffic shall ensure the following:
(a) No heavy and medium transport vehicles, and light goods vehicle
being four wheelers would be permitted to operate on the roads
of the NCR and NCT, Delhi, unless they are fitted with suitable
speed control devices to ensure that they do not exceed the speed
limit of 40 KMPH. This will not apply to transport vehicles operating
on Inter-State permits and national goods permits. Such exempted
vehicles would, however, be confined to such routes and such timings
during day and night as the police/transport authorities may publish.
It is made clear that no vehicle would be permitted on roads other
than the aforementioned exempted roads or during the times other
than the aforesaid time without a speed control device.
(b) In our view the scheme of the Act necessarily implies an obligation
to use the vehicle in a manner which does not imperil public safety.
The authorities aforesaid should, therefore, ensure that the transport
vehicles are not permitted to overtake any other four-wheel motorized
vehicle.
(c) They will also ensure that wherever it exists, buses shall
be confined to the buss lane and equally no other motorized vehicle
is permitted to enter upon the bus lane. We direct the Municipal
Corporation of Delhi, NDMC, PWD, Delhi Government and DDA, Union
Government and the Delhi Cantt. Board to take steps to ensure
that bus lanes are segregated and roads markings are provided
on all such roads as may be directed by the police and transport
authorities.
(d) They will ensure that buses halt only at bus stops designated
for the purpose and within the marked area. In this connection
also Municipal Corporation of Delhi, NDMC, PWD, Delhi Cantt. Board
would take all steps to have appropriate bus stops constructed,
appropriate markings made, and `bus-bays' built at such places
as may be indicated by transport/police authorities.
(e) Any breach of the aforesaid directions by any person would,
apart from entailing other legal consequences, be dealt with as
contravention of the conditions of the permit which could entail
suspension/cancellation of the permit and impounding of the vehicle.(f)
Every holder of a permit issued by any of the road transport authorities
in the NCR and NCT, Delhi will within ten days from today, file
with its RTA a list of drivers who are engaged by him together
with suitable photographs and other particulars to establish the
identity of such persons. Every vehicle shall carry a suitable
photograph of the authorized driver, duly certified by the RTA.
Any vehicle being driven by a person other than the authorized
driver shall be treated as being used in contravention of the
permit and the consequences would accordingly follow. No bus belonging
to or hired by an educational institution shall be driven by a
driver who has - less than ten years of experience;
- been challaned more than twice for a minor traffic offence;
- been charged for any offence relating to rash and negligent
driving.
All such drivers would be dressed in a distinctive uniform, and
all such buses shall carry a suitable inscription to indicate
that they are in the duty of an educational institution.
(g) To enforce these directions, flying squads made up of inter-departmental
teams headed by an SDM shall be constituted and they shall exercise
powers under Section 207 as well as Section 84 of the Motor Vehicles
Act. The Government is directed to notify under Section 86(4)
the officers of the rank of Assistant Commissioners of Police
or above so that these officers are also utilized for constituting
the flying squads.
(h) We direct the police and transport authorities to consider
immediately the problems arising out of congestion caused by different
kinds of motorized and non-motorized vehicles using the same roads.
For this purpose, we direct the police and transport authorities
to identify those roads which they consider appropriate to be
confined only to motorized traffic including certain kind of motorized
traffic and identify those roads which they consider unfit for
use by motorized or certain kinds of motorized traffic and to
issue suitable directions to exclude the undesirable form of traffic
from those roads.
(i) The civil authorities including DDA, the railways, the police
and transport authorities, are directed to identify and remove
all hoardings which are on roadsides and which are hazardous and
a disturbance to safe traffic movement. In addition, steps be
taken to put up road/traffic signs which facilitate free flow
of traffic.
B. We direct the Union of India to ensure that the contents of
this Order are suitably publicized in the print as well as the
electronic media not later than November 22, 1997 so that everybody
is made aware of the directions contained in the Order. Such publication
would be sufficient public notice to all concerned for due compliance".
8.
In our opinion the prayers made by the petitioner in this petition
require us to give directions of a legislative or executive nature
which can only be given by the legislature or executive. As held
by this Court in Divisional Manager, Aravali Golf Course &
Anr. vs. Chander Hass, JT 2008(3) SC 221, the judiciary cannot
encroach into the domain of the legislature or executive. The
doctrine of separation of powers has been discussed in great detail
in the aforesaid decision, and we endorse the views expressed
therein.
9.
We are fully conscious of the fact that the decision cited by
Shri Prashant Bhushan viz. M.C. Mehta vs. Union of India (supra),
is a decision of a three Judge Bench of this Court and would ordinarily
have been binding on us since our Bench consists of two Judges.
However, a subsequent seven Judge Bench decision this Court in
P. Ramachandra Rao vs. State of Karnataka 2002(4) SCC 578 has
taken the view that such directions cannot be given. In para 26
of the aforesaid decision of the seven Judge Bench in P. Ramachandra
Rao's case (supra), it was observed: "Professor S.P. Sathe,
in his recent work (year 2002) Judicial Activism in India - Transgressing
Borders and Enforcing Limits, touches the topic "Directions:
A new Form of Judicial Legislation." Evaluating legitimacy
of judicial activism, the learned author has cautioned against
court "legislating" exactly in the way in which a legislature
legislates and he observes by reference to a few cases that the
guidelines laid down by court, at times, cross the border of judicial
law-making in the realist sense and trench upon legislating like
a legislature. "Directions are either issued to fill in the
gaps in the legislation or to provide for matters that have not
been provided by any legislation. The court has taken over the
legislative function not in the traditional interstitial sense
but in an overt manner and has justified it as being an essential
component of its role as a constitutional court" "In
a strict sense these are instances of judicial excessivism that
fly in the face of the doctrine of separation of powers. The doctrine
of separation of powers envisages that the legislature should
make law, the executive should execute it, and the judiciary should
settle disputes in accordance with the existing law. In reality
such watertight separation exists nowhere and is impracticable.
Broadly, it means that one organ of the State should not perform
a function that essentially belongs to another organ. While law-making
through interpretation and expansion of the meanings of open-textured
expressions such as `due process of law', `equal protection of
law', or `freedom of speech and expression' is a legitimate judicial
function, the making of an entirely new law...through directions....is
not a legitimate judicial function".
10.
The aforesaid seven Judge Bench decision of this Court in P. Ramachandra
Rao's case (supra) has referred with approval the observations
made in the book `Judicial Activism in India Transgressing Borders
Enforcing Limits' by Prof. S.P. Sathe. In that book the learned
author has referred to the directions of a legislative nature
given by various two Judge and three Judge Bench decisions of
this Court in P.I.Ls. The learned author has remarked that these
were not legitimate exercise of judicial power.
11.
The position has thus been clarified by the seven Judge Bench
decision of this Court in P. Ramachandra Rao's case (supra) which
has clearly observed (in paras 22-27) that giving directions of
a legislative nature is not a legitimate judicial function. A
seven Judge Bench decision of this Court will clearly prevail
over smaller Bench decisions.
12.
In P. Ramachandra Rao's case (supra), the question considered
by the seven Judge Bench was whether the bar of limitation for
criminal trials fixed by smaller Benches of this Court in Common
Cause vs. Union of India, 1996(4) SCC 33, Rajdeo Sharma (I) vs.
State of Bihar 1998(7) SCC 507 and Rajdeo Sharma (II) vs. State
of Bihar 1999(7) SCC 604 was valid. The seven Judge Bench of this
Court was of the view that the directions given by the smaller
Benches decisions mentioned above were invalid as they amounted
to directions of a legislative nature which only the legislature
could give.
13.
In the aforesaid decisions of smaller Benches (which were overruled
by the seven Judge Bench decision in P. Ramachandra Rao's case)
the Courts were concerned with delay in disposal of criminal cases,
particularly since the right to a speedy trial had been held to
be part of Article 21 of the Constitution by a seven Judge Bench
decision of this Court in A.R. Antulay vs. R.S. Nayak 1988(2)
SCC 602.
14.
Following Antulay's case, a two Judge Bench of this Court in Common
Cause vs. Union of India 1996(4) SCC 33 held that if there was
delay in disposal of certain kinds of criminal cases beyond a
period specified by the Court the accused must be released on
bail, and in certain other kinds of cases the criminal case itself
should be closed. Thus by judicial verdict the Bench fixed a limitation
period in certain kinds of criminal cases.
15.
Thereafter in Rajdeo Sharma (I) vs. State of Bihar 1998(7) SCC
507, a three Judge Bench of this Court directed that in certain
kinds of criminal cases the trial court shall close the prosecution
evidence on completion of a certain period from the date of recording
the plea of the accused on the charges framed, and in certain
cases if the accused has been in jail for at least half the maximum
period of punishment prescribed he shall be released on bail.
16.
In Rajdeo Sharma (II) vs. State of Bihar 1999(7) SCC 604 a three
Judge Bench of this Court clarified certain directives in Rajdeo
Sharma (I) vs. State of Bihar (supra).
17.
The correctness of the aforesaid three decisions of this Court
was considered by the seven Judge Constitution Bench in P. Ramachandra
Rao's case (supra) and the seven Judge Bench held that these decisions
were incorrect as they amounted to impermissible legislation by
the judiciary (vide para 23). The seven Judge Bench was of the
view that in its zeal to protect the right to speedy trial of
an accused the Court cannot devise and enact bars of limitation
when the legislature and statute have chosen not to do so. In
paragraphs 26 and 27 of the judgment in P. Ramachandra Rao's case
(supra) the seven Judge Bench of this Court has clearly held that
directives of a legislative nature cannot be given by the Court,
since legislation is the task of the legislature and not of the
Court.
18.
Before proceeding further, we would like to make it clear that
we are not against all judicial activism. Judicial activism can
be both legitimate as well as illegitimate. For example, when
the Courts have given an expanded meaning of Articles 14 and 21
of the Constitution vide Maneka Gandhi vs. Union of India AIR
1978 SC 597, it was a case of legitimate judicial activism because
the Court gave a wider meaning to Articles 14 and 21 in the light
of the new developments in the country. This was a perfectly legitimate
exercise of power.
19.
However, as pointed out by the seven Judge Bench decision of this
Court in P. Ramachandra Rao's case (supra), when Judges by judicial
decisions lay down a new principle of law of the nature specifically
reserved for the legislature, they legislate, and not merely declare
the law (vide para 22 of the decision in P. Ramachandra Rao's
case). This is an illegitimate exercise of power and many such
illustrations of illegitimate exercise of judicial power have
been given in Prof. S.P. Sathe's book `Judicial Activism in India'
which has been referred to with approval by the seven Judge Bench
decision of this Court.
20.
These are instances of judicial excessivism that fly in the face
of the doctrine of separation of powers which has been broadly
(though not strictly), envisaged by the Constitution vide Divisional
Manager, Aravali Golf Club & Anr. vs. Chander Hass & Anr.
JT 2008 (3) SC 221, Asif Hameed vs. State of Jammu & Kashmir
JT 1989 (2) SC 548 etc. In other words, while expansion of the
meanings of statutory or constitutional provisions by judicial
interpretation is a legitimate judicial function, the making of
a new law which the Courts in this country have sometimes done,
is not a legitimate judicial function. The Courts of the country
have sometimes clearly crossed the limits of the judicial function
and have taken over functions which really belongs either to the
legislature or to the executive. This is unconstitutional. If
there is a law, Judges can certainly enforce it. But Judges cannot
create a law by judicial verdict and seek to enforce it.
21.
Moreover, it must be realized by the courts that they are not
equipped with the skills, expertise or resources to discharge
the functions that belong to the other co-ordinate organs of the
government (the legislature and executive). Its institutional
equipment is wholly inadequate for undertaking legislation or
administrative functions.
22.
As observed by Hon'ble Dr. Justice A.S. Anand, former Chief Justice
of India :"Courts have to function within the established
parameters and constitutional bounds. Decisions should have a
jurisprudential base with clearly discernible principles. Courts
have to be careful to see that they do not overstep their limits
because to them is assigned the sacred duty of guarding the Constitution.
Policy matters, fiscal, educational or otherwise, are thus best
left to the judgment of the executive. The danger of the judiciary
creating a multiplicity of rights without the possibility of adequate
enforcement will, in the ultimate analysis, be counter productive
and undermine the credibility of the institution. Courts cannot
"create rights" where none exists nor can they go on
making orders which are incapable of enforcement or violative
of other laws or settled legal principles. With a view to see
that judicial activism does not become "judicial adventurism",
the courts must act with caution and proper restraint. They must
remember that judicial activism is not an unguided missile failure
to bear this in mind would lead to chaos. Public adulation must
not sway the judges and personal aggrandizement must be eschewed.
It is imperative to preserve the sanctity and credibility of judicial
process. It needs to be remembered that courts cannot run the
government. The judiciary should act only as an alarm bell; it
should ensure that the executive has become alive to perform its
duties".
23.
We respectfully agree with the views stated above.
24.
Before proceeding further, we may state that the Motor Vehicles
Act is a comprehensive enactment on the subject. If there is a
lacuna or defect in the Act, it is for the legislature to correct
it by a suitable amendment and not by the Court. What the petitioner
really prays for in this petition is for various directions which
would be legislative in nature, as they would amount to amending
the Act.
25.
In Union of India & Anr. vs. Deoki Nandan Aggarwal AIR 1992
SC 96 a three Judge Bench of this Court observed (vide paragraph
14): "It is not the duty of the Court either to enlarge the
scope of the legislation or the intention of the legislature when
the language of the provision is plain and unambiguous. The Court
cannot rewrite, recast or reframe the legislation for the very
good reason that it has no power to legislate. The power to legislate
has not been conferred on the courts. The Court cannot add words
to a statute or read words into it which are not there. Assuming
there is a defect or an omission in the words used by the legislature
the Court could not go to its aid to correct or make up the deficiency.
Courts shall decide what the law is and not what it should be.
The Court of course adopts a construction which will carry out
the obvious intention of the legislature but could not legislate
itself. But to invoke judicial activism to set at naught legislative
judgment is subversive of the constitutional harmony and comity
of instrumentalities. Modifying and altering the scheme and applying
it to others who are not otherwise entitled to under the scheme
will not also come under the principle of affirmative action adopted
by courts sometimes in order to avoid discrimination. If we may
say so, what the High Court has done in this case is a clear and
naked usurpation of legislative power".
26.
This Court cannot direct legislation vide Union of India vs. Prakash
P. Hinduja (2003) 6 SCC 195:AIR 2003 SC 2612 (vide SCC para 30:
AIR para 29) and it cannot legislate vide Sanjay Kumar vs. State
of U.P. 2004 All L J 239, Verareddy Kumaraswamy Reddy vs. State
of A.P. (2006) 2 SCC 670:JT(2006) 2 SC 361, Suresh Seth vs. Commr.
Indore Municipal Corporation (2005) 13 SCC 287:AIR 2006 SC 767
(vide para 5) and Union of India vs. Deoki Nandan Aggarwal 1992
Supp(1) SCC 323:AIR 1992 SC 96.
27.
The Court should not encroach into the sphere of the other organs
of the State vide N.K. Prasada vs. Govt. of India (2004)6 SCC
299 : JT 2004 Supp (1) SC 326 (vide paras 27 and 28).
28.
Thus in Supreme Court Employees' Welfare Assn. vs. Union India
(1989) 4 SCC 187:AIR 1990 SC 334 (vide SCC p. 220, para 55) this
Court observed: "There can be no doubt that an authority
exercising legislative function cannot be directed to do a particular
act. Similarly the President of India cannot be directed by the
court to grant approval to the proposals made by the Registrar
General of the Supreme Court, presumably on the direction of the
Chief Justice of India".
29.
In Union of India vs. Assn. for Democratic Reforms (2002) 5 SCC
294 : AIR 2002 SC 2112 (vide AIR para 21) this Court observed
: (SCC p. 309, para 19): "19. At the outset, we would say
that it is not possible for this Court to give any directions
for amending the Act or the statutory rules. It is for Parliament
to amend the Act and the Rules. It is also established law that
no direction can be given, which would be contrary to the Act
and the Rules."
30.
In Union of India vs. Prakash P. Hinduja (2003) 6 SCC 195:AIR
2003 SC 2612 (vide AIR para 29) this Court observed (SCC pp. 216-17,
para 30): "Under our constitutional scheme Parliament exercises
sovereign power to enact laws and no outside power or authority
can issue a direction to enact a particular piece of legislation.
In Supreme Court Employees' Welfare Assn. vs. Union of India it
has been held that no court can direct a legislature to enact
a particular law. Similarly, when an executive authority exercises
a legislative power by way of a subordinate legislation pursuant
to the delegated authority of a legislature, such executive authority
cannot be asked to enact a law which it has been empowered to
do under the delegated legislative authority. This view has been
reiterated in State of J & K vs. A.R. Zakki 1992 Supp (1)
SCC 548 : AIR 1992 SC 1546".
31.
A perusal of the prayers made in this writ petition (which have
been quoted above) clearly shows that what the petitioner wants
us to do is legislation by amending the law. In our opinion, this
will not be a legitimate judicial function. The petitioner has
prayed that we direct the Union of India to formulate a suitable
Road Traffic Safety Act, but it is well settled that the Court
cannot direct legislation. In fact, there is already a Road Safety
Council as contemplated by Section 215 of the Motor Vehicles Act,
reference of which has been made in the counter affidavit of the
Central Government in which it has been stated that Central Government
has constituted a National Road Safety Council which has held
various meetings. It is an apex body comprising of Transport Ministers
of various States and Union Territories, DG Police of various
States/Union Territories, representatives of various Central Ministries
and agencies apart from NGOs and experts in the field of road
safety. In the deliberations of National Road Safety Council suggestions
received from various quarters as also the measures being taken
by the Ministry regarding road safety as also the areas of concern
have been considered. In the counter affidavit, various other
steps taken by the respondent no.1 regarding road safety have
also been mentioned in detail. Some of the other respondents have
also filed their counter affidavits mentioning the measures taken
for road safety, and we have perused the same.
32.
In Suresh Seth vs. Commissioner, Indore Municipal Corporation
and others JT 2005 (9) 210, a three Judge Bench of this Court
rejected the petitioner's prayer that appropriate amendment be
made to the M.P. Municipal Corporation Act, 1956 debarring a person
from holding two elected offices viz. that of a member of the
Legislative Assembly and also of Mayor of a Municipal Corporation.
The Court observed: "That apart this Court cannot issue any
direction to the Legislature to make any particular kind of enactment.
Under our constitutional scheme Parliament and Legislative Assemblies
exercise sovereign power or authority to enact laws and no outside
power or authority can issue a direction to enact a particular
piece of legislation. In Supreme Court Employees Welfare Association
vs. Union of India (JT 1989 (3) SC 188 : (1989) 4 SCC 187) it
has been held that no court can direct a legislature to enact
a particular law. Similarly, when an executive authority exercises
a legislative power by way of a subordinate legislation pursuant
to the delegated authority of a legislature, such executive authority
cannot be asked to enact a law which it has been empowered to
do under the delegated legislative authority".
33.
In Bal Ram Bali & Anr. vs. Union of India JT 2007 (10) SC
509, a petition under Article 32 was filed praying for a mandamus
directing for a total ban of slaughtering of cows, horses, buffaloes,
etc. Rejecting this contention this Court observed: "It is
not within the domain of the Court to issue a direction for ban
on slaughter of cows, buffaloes and horses as it is a matter of
policy on which decision has to be taken by the Government. That
apart, a complete ban on slaughter of cows, buffaloes and horses,
as sought in the present petition, can only be imposed by legislation
enacted by the appropriate legislature. Courts cannot issue any
direction to the Parliament or to the State legislature to enact
a particular kind of law". 34. As observed by a three Judge
Bench of this Court in Institute of Chartered Accountants of India
vs. Price Waterhouse and Anr. 1997 (6) SCC 312(vide para 50),
Judges should not proclaim that they are playing the role of a
law-maker merely for an exhibition of judicial valour. They have
to remember that there is a line, though thin, which separates
adjudication from legislation. That line should not be crossed.
35.
In Madhu Kishwar & Ors. vs. State of Bihar & Ors. 1996
(5) SCC 125 (vide para 5), this Court observed that the Court
is not fully equipped to cope with the details and intricacies
of the legislative subject, and it can at best advise and focus
attention on the State policy on a problem and shake it from its
slumber, goading it to awaken, march and reach the goal. Thus,
the Court can play a catalytic role with regard to the social
and economic problems of the people. However, whatever the concern
of the Court, it has to apply somewhere and at sometimes brakes
to its self-motion, described in judicial parlance as judicial
self-restraint. In particular, Courts must not legislate or perform
executive functions.
36.
We would also like to advert to orders by some Courts appointing
committees giving these committees power to issue orders to the
authorities or to the public. This is wholly unconstitutional.
The power to issue a mandamus or injunction is only with the Court.
The Court cannot abdicate its function by handing over its powers
under the Constitution or the C.P.C. or Cr.P.C. to a person or
committee appointed by it. Such `outsourcing' of judicial functions
is not only illegal and unconstitutional, it is also giving rise
to adverse public comment due to the alleged despotic behaviour
of these committees and some other allegations. A committee can
be appointed by the Court to gather some information and/or give
some suggestions to the Court on a matter pending before it, but
the Court cannot arm such a committee to issue orders which only
a Court can do.
37.
We have gone deep into the subject of judicial activism and public
interest litigation because it is often found that courts do not
realize their own limits. Apart from the doctrine of separation
of powers, courts must realize that there are many problems before
the country which courts cannot solve, however much they may like
to. It is true that the expanded scope of Articles 14 and 21 which
has been created by this Court in various judicial decisions e.g.
Smt. Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597,
have given powerful tools in the hands of the judiciary. However,
these tools must be used with great circumspection and in exceptional
cases and not as a routine manner. In particular, Article 21 of
the Constitution must not be misused by the Courts to justify
every kind of directive, or to grant every kind of claim of the
petitioner. For instance, this Court has held that the right to
life under Article 21 does not mean mere animal existence, but
includes the right to live with dignity vide Olga Tellis vs. Bombay
Corporation AIR 1986 SC 180, D.T.C. vs. D.T.C. Mazdoor Congress
Union AIR 1991 SC 101 (paras 223, 234, 259), Francis Coralie Mullin
vs. Union Territory Delhi Administrator AIR 1981 SC 746. However,
these decisions must be understood in a balanced way and not in
an unrealistic sense. For example, there is a great deal of poverty
in this country and poverty is destructive of most of the rights
including the right to a dignified life. Can then the Court issue
a general directive that poverty be abolished from the country
because it violates Article 21 of the Constitution? Similarly,
can the Court issue a directive that unemployment be abolished
by giving everybody a suitable job? Can the Court stop price rise
which now-a-days has become an alarming phenomenon in our country?
Can the Court issue a directive that corruption be abolished from
the country? Article 21 is not a `brahmastra' for the judiciary
to justify every kind of directive.
38.
The concern of the petitioner is that many people die in road
accident. But many people also die due to murders. Should then
the Court issue a general directive that murders be not committed
in the country? And how would such a directive (even if issued)
be implemented? 39. We would be very happy to issue such directives
if they could really be implementable. However, the truth is that
they are not implementable (for various reasons, particularly
lack of financial and other resources and expertise in the matter).
For instance, the directives issued by this Court regarding road
safety in M.C. Mehta's case (supra) hardly seem to have had any
effect because everyday we read in the newspapers or see the news
on TV about Blueline buses killing or injuring people. In the
Hawala case (Vineet Narain vs. Union of India AIR 1998 SC 889)
a valiant effort was made by this Court to check corruption, but
has it made even a dent on the rampant corruption prevailing in
the country? It is well settled that futile writs should not be
issued by the Court.
40.
The justification given for judicial activism is that the executive
and legislature have failed in performing their functions. Even
if this allegation is true, does it justify the judiciary in taking
over the functions of the legislature or executive? In our opinion
it does not, firstly because that would be in violation of the
high constitutional principle of separation of powers between
the three organs of the State, and secondly because the judiciary
has neither the expertise nor the resources for this. If the legislature
or executive are not functioning properly it is for the people
to correct the defects by exercising their franchise properly
in the next elections and voting for candidates who will fulfill
their expectations, or by other lawful means e.g. peaceful demonstrations
and agitations, but the remedy is surely not by the judiciary
in taking over the functions of the other organs.
41.
In Ram Jawaya vs. State of Punjab AIR 1955 SC 549 (vide paragraph
12), a Constitution Bench of this Court observed: "The Indian
Constitution has not indeed recognized the doctrine of separation
of powers in its absolute rigidity but the functions of the different
parts or branches of the Government have been sufficiently differentiated
and consequently it can very well be said that our Constitution
does not contemplate assumption by one organ or part of the State,
of functions that essentially belong to another"
42.
Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR
1989 SC 1899 a three Judge Bench of this Court observed (vide
paragraphs 17 to 19) : "Before adverting to the controversy
directly involved in these appeals we may have a fresh look on
the inter se functioning of the three organs of democracy under
our Constitution. Although the doctrine of separation of powers
has not been recognized under the Constitution in its absolute
rigidity but the constitution makers have meticulously defined
the functions of various organs of the State. Legislature, executive
and judiciary have to function within their own spheres demarcated
under the Constitution. No organ can usurp the functions assigned
to another. The Constitution trusts to the judgment of these organs
to function and exercise their discretion by strictly following
the procedure prescribed therein. The functioning of democracy
depends upon the strength and independence of each of its organs.
Legislature and executive, the two facets of people's will, have
all the powers including that of finance. Judiciary has no power
over sword or the purse nonetheless it has power to ensure that
the aforesaid two main organs of State function within the constitutional
limits. It is the sentinel of democracy. Judicial review is a
powerful weapon to restrain unconstitutional exercise of power
by the legislature and executive. The expanding horizon of judicial
review has taken in its fold the concept of social and economic
justice. While exercise of powers by the legislature and executive
is subject to judicial restraint, the only check on our own exercise
of power is the self imposed discipline of judicial restraint.
Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial
expatriation case of Trop v. Dulles (1958) 356 US 86 observed
as under : "All power is, in Madison's phrase, "of an
encroaching nature". Judicial power is not immune against
this human weakness. It also must be on guard against encroaching
beyond its proper bounds, and not the less so since the only restraint
upon it is self restraint."
43.
The directives sought for in this petition require the expertise
of administrative and technical officials, apart from financial
resources. Not only should the Court not give such directives
because that would violate the principle of separation of powers,
but also because these are highly technical matters to be left
to be dealt with by administrative and technical authorities who
have experience and expertise in the matter. For instance, what
should be the maximum permissible speed for vehicles in a city,
where should speed breakers be fixed, when should heavy vehicles
be allowed on roads, and other matters for ensuring road safety
are all matters to be dealt with by the concerned authorities
under the Motor Vehicles Act and other enactments, and it would
be wholly inappropriate for the judiciary to meddle in such matters.
Decisions on such matters by the judiciary land the administrative
agencies in practical difficulties and make them bear the brunt
of the decisions of the Court some of which are wholly oblivious
to administrative needs and as such ill conceived.
44.
Moreover, if once the Courts take upon themselves the task of
issuing ukases as to how administrative agencies should function,
what is there to prevent them from issuing directions as to how
the State Government or Central Government should administer the
State and run the country? In our opinion such an approach would
not only disturb the delicate balance of powers between the three
wings of the State, it would also strike at the very basis of
our democratic polity which postulates that the governance of
the country should be carried on by the executive enjoying the
confidence of the legislature which is answerable and accountable
to the people at the time of elections. Such an approach would
in our opinion result in judicial oligarchy dethroning democratic
supremacy.
45.
In our opinion the Court should not assume such awesome responsibility
even on a limited scale. The country can ill afford to be governed
through court decrees. Any such attempt will not only be grossly
undemocratic, it would be most hazardous as the Courts do not
have the expertise or resources in this connection. The judiciary
is not in a position to provide solutions to each and every problem,
although human ingenuity would not be lacking to give it some
kind of shape or semblance of a legal or constitutional right,
e.g. by resorting to Article 21.
46.
When other agencies or wings of the State overstep their constitutional
limits, the aggrieved parties can always approach the courts and
seek redress against such transgression. If, however, the court
itself becomes guilty of such transgression, to which forum would
the aggrieved party appeal? As the ancient Romans used to say
"Who will guard the Praetorian guards?" The only check
on the courts is its own self restraint.
47.
The worst result of judicial activism is unpredictability. Unless
Judges exercise self restraint, each Judge can become a law unto
himself and issue directions according to his own personal fancies,
which will create chaos.
48.
It must be remembered that a Judge has to dispense justice according
to the law and the Constitution. He cannot ask the other branches
of the State to keep within their constitutional limits if he
exceeds his own.
49.
As stated by A.G. Noorani in his article on `Judicial Activism
vs. Judicial Restraint' (published in SPAN magazine of April/May,
1997 edition) : "Zeal leads judges to enter areas with whose
terrain they are not familiar; to order minutiae of administration
without reckoning with the consequences of their orders. Judges
have made orders not only how to run prisons but also hospitals,
mental homes and schools to a degree which stuns the professional.
In their judgments they draw on material which is untested and
controversial and which they are ill-equipped to evaluate."
50.
In our opinion adjudication must be done within the system of
historically validated restraints and conscious minimization of
the Judges' preferences. The Court must not embarrass the administrative
authorities and must realize that administrative authorities have
expertise in the field of administration while the Court does
not. In the words of Chief Justice Neely, former Chief Justice
of the West Virginia State Supreme Court: "I have very few
illusions about my own limitations as a judge. I am not an accountant,
electrical engineer, financier, banker, stockbroker or system
management analyst. It is the height of folly to expect Judges
intelligently to review a 5000 page record addressing the intricacies
of a public utility operation. It is not the function of a Judge
to act as a super board, or with the zeal of a pedantic school
master substituting his judgment for that of the administrator."
51.
As observed by Mr. Justice Cardozo of the U.S. Supreme Court :
"The judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration from consecrated principles. He
is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated
to "promotional necessity of order in the social life."
(see Cardozo's `The Nature of the Judicial Process')
52.
Chapter VIII of the Motor Vehicles Act, 1988 has provisions for
control of traffic. These include fixing limits of speed (s.112),
restriction on use of certain vehicles (s.115), power to erect
traffic signs (s.116), fixing parking places (s.117), making driving
regulations (s.118), duty to obey traffic signs (s.119), requirement
for drivers to make such signals as are prescribed (s.121), safety
measures for drivers and pillion riders on two wheelers (s.128),
wearing of protective headgear (s.129), etc. These provisions
are obviously meant for road safety, and if further provisions
are required for this purpose the petitioner may approach the
legislature or concerned authority for this purpose, but this
Court can certainly not amend the law.
53.
The people must know that Courts are not the remedy for all ills
in society. The problems confronting the nation are so huge that
it will be creating an illusion in the minds of the people that
the judiciary can solve all the problems. No doubt, the judiciary
can make some suggestions/recommendations to the legislature or
the executive, but these suggestions/recommendations cannot be
binding on the legislature or the executive, otherwise there will
be violation of the seven-Judge Bench decision of this Court in
P. Ramachandra Rao's case (supra), and violation of the principle
of separation of powers. The judiciary must know its limits and
exercise judicial restraint vide Divisional Manager, Aravali Golf
Course & Anr. vs. Chander Hass, JT 2008(3) SC 221. The people
must also realize that the judiciary has its limits and cannot
solve all their problems, despite its best intentions.
54.
The problems facing the people of India have to be solved by the
people themselves by using their creativity and by scientific
thinking and not by using judicial crutches like PILs.
55.
These problems (e.g. poverty, unemployment, price rise, corruption,
lack of education, medical aid and housing, etc.) are so massive
that they can only be solved by certain historical, political
and social forces that can only be generated by the people themselves
using their creativity and scientific thinking.
56.
The view that the judiciary can run the government and can solve
all the problems of the people is not only unconstitutional, but
also it is fallacious and creates a false impression and false
illusion that the judiciary is a panacea for all ills in society.
Such illusions, in fact, do great harm to the people because it
makes the people believe that their problems can be solved by
others and not by the people themselves. It debilitates their
will and makes them believe that they can solve their problems
and improve their conditions not by their own struggles and creativity
but by filing a PIL in Court.
57.
Before concluding, we would like to refer to the decision of this
Court in Dattaraj Nathuji Thaware vs. State of Maharashtra AIR
2005 SC 540 in which Hon'ble Pasayat J. expressed the view about
Public Interest Litigation in the following memorable words: "It
is depressing to note that on account of such trumpery proceedings
initiated before the Courts, innumerable days are wasted, which
time otherwise could have been spent for the disposal of cases
of the genuine litigants. Though we spare no efforts in fostering
and developing the laudable concept of PIL and extending our long
arm of sympathy to the poor, the ignorant, the oppressed and the
needy whose fundamental rights are infringed and violated and
whose grievances go unnoticed, unrepresented and unheard; yet
we cannot avoid but expressing our opinion that while genuine
litigants with legitimate grievances relating to civil matters
involving properties worth hundreds of millions of rupees and
criminal cases in which persons sentenced to death facing gallows
under untold agony and persons sentenced to life imprisonment
and kept in incarceration for long years, persons suffering from
undue delay in service matters, Government or private, persons
awaiting the disposal of cases wherein huge amounts of public
revenue or unauthorized collection of tax amounts are locked up,
detenus expecting their release from the detention orders etc.
etc. are all standing in a long serpentine queue for years with
the fond hope of getting into the Courts and having their grievances
redressed, the busybodies, meddlesome interlopers, wayfarers or
officious interveners having absolutely no public interest except
for personal gain or private profit either of themselves or as
proxy of others or for any other extraneous motivation or for
glare of publicity break the queue muffing their faces by wearing
the mask of public interest litigation and get into the Courts
by filing vexatious and frivolous petitions and thus criminally
waste the valuable time of the Courts, as a result of which the
queue standing outside the doors of the Courts never moves, which
piquant situation creates frustration in the minds of the genuine
litigants and resultantly they lose faith in the administration
of our judicial system".
58.
In the same decision it has also been observed that PIL is a weapon
which is to be used with great care and circumspection.
59.
Unfortunately, the truth is that PILs are being entertained by
many courts as a routine and the result is that the dockets of
most of the superior courts are flooded with PILs, most of which
are frivolous or for which the judiciary has no remedy. As stated
in Dattaraj Nathuji Thaware's case (supra), public interest litigation
has nowadays largely become `publicity interest litigation', `private
interest litigation', or `politics interest litigation' or the
latest trend `paise income litigation'. Much of P.I.L. is really
blackmail.
60.
Thus, Public Interest Litigation which was initially created as
a useful judicial tool to help the poor and weaker section of
society who could not afford to come to courts, has, in course
of time, largely developed into an uncontrollable Frankenstein
and a nuisance which is threatening to choke the dockets of the
superior courts obstructing the hearing of the genuine and regular
cases which have been waiting to be taken up for years together.
61.
With the above observations, the Writ Petition is dismissed.
(Markandey
Katju) J.
New
Delhi
11
April, 2008
