Common
Cause (A Regd. Society) Vs.
Union of
India and
Others [2008] INSC 634 (11 April 2008)
Markandey Katju
REPORTABLE Writ Petition (Civil) No. 580 of 2003 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".
(emphasis supplied)
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 LJ 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"
(emphasis supplied)
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."
(emphasis supplied)
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.
Back
