Supreme Court of India
COMMON CAUSE (A REGD. SOCIETY)versusUNION OF INDIA & ORS.
- Citation
- 2008 INSC 485
- Decided
- 11 April 2008
- Disposal
- Dismissed
- Bench
- H K SEMA
Holding
The Supreme Court held that the petition sought legislative‑type directions which the judiciary cannot grant, and therefore dismissed the writ.
Summary
Common Cause, a registered society, filed a public‑interest writ petition seeking comprehensive directions to the Union and State governments for licensing, driver training, road infrastructure, ambulance services, expert committees and a new Road Traffic Safety Act to curb road accidents. The Court examined whether such directions amounted to legislative or executive action, which under the doctrine of separation of powers can only be taken by the legislature or the executive. Relying on the Motor Vehicles Act, 1988 and earlier precedents, the Court held that the petition sought to amend the Act and prescribe detailed administrative measures, which is beyond the jurisdiction of the judiciary. It emphasized that Article 21 cannot be used to justify every regulatory directive and that judicial activism must be restrained to avoid encroaching on legislative functions. Consequently, the petition was dismissed as an impermissible attempt to legislate through the courts.
Issues considered
- The petition sought judicial directions that are essentially legislative or executive in nature; can the Supreme Court issue such directions under Article 32?
- Does granting the relief violate the doctrine of separation of powers between the legislature, executive and judiciary?
- Is the Motor Vehicles Act, 1988 a sufficient statutory framework for road‑safety measures, rendering the petition unnecessary?
- Can a public‑interest litigation be entertained when it demands the creation of new law or amendment of existing statutes?
Legislation cited
- Constitution of Indias. Article 14, s. Article 141, s. Article 142, s. Article 21, s. Article 32
- Motor Vehicles Act, 1988s. 112, s. 115, s. 116, s. 117, s. 118, s. 119, s. 121, s. 128, s. 129, s. 207, s. 215, s. 84, s. 86(4)
Subjects
public interest litigationseparation of powersjudicial activismlegislative directionmotor vehicles actroad safetyArticle 21judicial restraint
Judgment
[2008] 6 S.C.R. 262
A COMMON CAUSE (A REGO. SOCIETY) .' "'
If.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 580 of 2003)
APRIL 11, 2008
B
(H.K. SEMA AND MARKANDEY KAT JU, JJ.)
..
· Public Interest Litigation - Petitioner seeking directions
to authorities for taking various traffic safety measures to control
c occurrence of road accidents - Scope of - Held: Futile
. directions to authorities as sought for by the petitioner amounts
to legislative/executive action, which only the legislature/
executive is competent to give - Judiciary cannot encroach
into the domain of the legislature/executive - The Courts must
exercise judicial restraint and must not perform executive!
0
legislative functions - Article 21 of the Constitution must not
be used by the Courts to justify every kind of direction/grant
every kind of claim - Not only should the Court not to give
such directions because that would violate the principles of
separation of power but also because these are highly technical
E matters to be dealt with by the experts - Judiciary has its limits
and can not solve all the problems - The country can ill-afford
to be governed through court decrees - Moreover, adequate
provisions available under Motor Vehicles Act for controlling
the traffic and are obviously meant for road safety - Also there
F exists a Road Safety Council which has been suggesting
measures for road safety - If further provisions are required, ..
the petitioner may approach the legislature/executive - It is
clarified that the Court can certainly not amend the law - Motor
Vehicles Act, 1988 - Constitutiof! of India, 1950 - Articles 14
G and 21 - Judicial restraint - Exercise of
Judicial activism - Legitimate/illegitimate - Held: Courts
giving wider meaning to Articles 14 and 21 of the Constitution,
in the light of new developments in the country, amounts to '
H 262
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 263
INDIA & ORS.
legitimate exercise of power - However, Courts laying down A
new principles of law specifically reserved for the legislature
amounts to illegitimate exercise of judicial power.
Adjudication - Held: It must be done within the system of
historically validated restraints and conscious minimizaiton
of Judges preferences. B
• Judicial activism - Scope of - Discussed.
Doctrines:
Doctrine of 'Separation of powers' - Applicability of.
c
Petitioner is a registered society which claims to be
engaged in espousing problems of general public
importance. A writ petition has been field by the petitioner
before this Court highlighting various problems
connected with traffic and road safety measures. In o
connection thereof, the petitioner sought for issuing
appropriate directions to the respondents and others for
taking steps to set up fully satisfactory procedures of
licensing of vehieles, licensing of drivers and to impart
proper training required in connection thereto; to ensure E
to provide requisite infrastructure on ·roads in order to
maintain discipline on roads viz. signs, signals, footpaths,
repair of roads etc. to ensure the availability of
ambulances for immediate shifting of injured to the
hospitals; to set up Expert Committees to suggest for
minimizing the road accidents; and to take further steps F
4· for improvement of the overall traffic system.
Dismissing the petition, the Court
HELD: Per Markandey Katju, J.: 1.1 The prayers made
by the petitioner in this petition require this Court to give G
directions of a legislative or executive nati.Jre which can
only be given by the legislature or executive. 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 case of Divisional Manager, H
264 SUPREME COURT REPORTS [2008] 6 S.C.R.
A Aravali Golf Course & Anr. vs. Chander Hass, and this Court
endorse the views expressed therein. (Para - 8) [278-G;
279-A, B]
Divisional Manager, Aravali Golf Course & Anr. vs.
Chander Hass, JT (2008) 3 SC 221 - relied on.
B
1.2 This Court is fully conscious of the fact that the
decision referred to by the appellant in the case of M. C. •
Mehta vs. Union of India, is a decision of a three Judge
Bench of this Court and would ordinarily have been
C binding on the Bench consisting of two Judges. However,
a seven Judge Bench of this Court in the case of P
Ramachandra Rao has clearly observed that giving
directions of a legislative nature is not a legitimate judicial
function. The said decision will clearly prevail over smaller
Bench decisions. The Bench has clearly held that
D directives of a legislative nature cannot be given by the
Court, since legislation is the task of the legislature and
not of the Court. (Paras - 9, 11 & 17) [279-B, C, D; 280-F;
282-B]
E P Ramachandra Rao vs. State of Karnataka (2002) 4
sec 578 - followed.
M. C. Mehta vs. Union of India - held inapplicable.
Common Cause vs. Union of India, 1996(4) SCC 33;
Rajdeo Sharma (/) vs. State of Bihar 1998(7) SCC 507 and
F Rajdeo Sharma (//) vs. State of Bihar 1999(7) SCC 604 -
referred to. ·•
Judicial Activism in India - Transgressing Borders and
Enforcing Limits by Professor S.P. Sathe - referred to.
G 2.1 Judicial activism can be both legitimate as well
as illegitimate. As in the case of Maneka Gandhi vs. Union
of India, it was held by this Court that when the Courts
have given an expanded meaning of Articles 14 and 21 of
the Constitution, it was a case of legitimate judicial
H activism because the Court gave a wider meaning to
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF · 265
INDIA & ORS.
~l Articles 14 and 21 in the light of the new developments in A
the country. This was a perfectly legitimate exercise of
power. However, when Judges by judicial decisions lay
a
down new principle of law of the nature specifically
reserved for the legislature, they legislate, and not merely
declare the law. This is an illegitimate exercise of power B
(Paras -18 & 19) [282-C, D, E, FJ
..
Maneka Gandhi vs. Union of India AIR (1978) SC 597 -
referred to.
2.2 The Courts of the country have sometimes clearly c
crossed the limits of the judicial function and have taken
over functions which really belong 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.
D
(Para - 20) [283-A, BJ
Divisional Manager, Aravali Golf Club & Anr. vs. Chander
Hass & Anr. JT (2008) 3 SC 221 and Asif Hameed vs. State of
Jammu & Kashmir JT (1989) 2 SC 548 - referred to.
2.3 It must be realized'by the courtS that they are not E
equipped with the skills, expertise or resources to
discharge the functions that belong to the other co-
ordinate organs of the government, viz., the legislature
and executive. Its institutional equipment is wholly
inadequate for undertaking legislation or administrative F
functions. (Para - 21) [283-C, DJ
"'
2.4 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
G
principles. With a view to see that judicial activism does
not become "judicial adventurism", the courts must act
with caution and proper restraint. (Para - 22) [283-G, 284-AJ
II
2.5 The Court cannot direct legislation and it cannot
legislate. (Para - 28) [285-B, CJ H
266 SUPREME COURT REPORTS [2008] 6 S.C.R.
A Union of India vs. Prakash P Hinduja (2003) 6 SCC I
....
195:AIR 2003 SC 2612; Sanjay Kumar vs. State of UP
(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 ·
B 287:AIR 2006 SC 767 and Union of India vs. Deoki Nandan
Aggarwal (1992) Supp1 SCC 323:AIR 1992 SC 96 - relied
on. •
2.6 The Court should not encroach into the sphere
of the other organs of the State. (Para - 27) [285-D]
c
N.K Prasada vs. Govt. of India (2004) 6 SCC 299: JT
(2004) Supp 1 SC 326 - relied on.
2.7 The Court cannot abdicate its function by handing
over its powers under the Constitution or the C.P.C. or
D 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
E 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.
(Para - 36) [288-H; 289-A, B]
F 2.8 It is true that the expanded scope of Articles 14
and 21 of the Constitution which has been created by this ..
Court in various judicial decisions have given powerful
tools in the hands of the judiciary. However, these tools
must be used with great circumspection and in
G 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. However, 11
these decisions must be understood in a balanced way
H and not in an unrealistic sense. Article 21 of the
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 267
INDIA & ORS.
~ Constitution is not a 'brahmastra' for the judiciary to A
• justify every kind of directive. It is well settled that futile
· writs should not be issued by the Court. (Paras - 37
and 39) [289-D, E, F, G; 290-A, 8, E]
Maneka Gandhi vs. Union of India AIR (1978) SC 597;
Olga Tellis vs. Bombay Corporation AIR (1986) SC 180; D. TC. B
r
vs. 0. TC. Mazdoor Congress Union AIR 1(991) SC 101 and
Francis Coralie Mullin vs. Union Territory Delhi Administrator
AIR (1981) SC 746 - relied on.
2.9 The justification given for judicial activi~m is that c
. the executive and legislature have failed in· performing
their functions. Even if this allegation is true, it does not
justify the judiciary in taking over the functions of the
legislature or executive. Firstly because that would be in
violation of the high constitutional principle of separation
D
of powers between the three organs of the State, and
...,, secondly because the judiciary has neither the expertise
nor the resources for this. (Para - 40) [290-F, G]
2.10 Once the Courts take upon themselves the task
of issuing ukases as to how administrative agencies E
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. Such an approach would not only disturb
the delicate balance of powers between the three wings F
of the State, it would also strike at the very basis of our
_,_.
democratic polity. Such an approach would result in
judicial oligarchy dethroning democratic supremacy.
(Para - 44) [293-A, 8, C]
2.11 The country can ill afford to be governed through G
court decrees. Any such attempt will not only be grossly
undemocratic, it would be most hazardous as the Courts
'l 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 H
268 SUPREME COURT REPORTS (2008) 6 S.C.R.
A 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. (Para - 45) [293-D, E]
2.12 When other agencies or wings of the State
overstep their constitutional limits, the aggrieved parties
8 can always approach the courts and seek redress against
such transgression. If, however, the court itself becomes
guilty of such transgression, the only check on the courts
is its own self-restraint. (Para - 46) [293-F, G]
c 2.13 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. It must be remembered that a Judge
has to dispense justice according to the law and the
0
Constitution. He cannot ask the other branches of the
State to keep within their constitutional limits if he exceeds
his own. (Paras - 47 & 48) [293-G; 294-A, 8]
2.14 Adjudication must be done within the system of
E 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. (Para
F - 50) (294-D, E]
2.15 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
G 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.
(Para - 53) [295-E, F]
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 269
INDIA & ORS.
.. ),
3.1 The Motor Vehicles Act is a comprehensive A
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 B
I amount to amending the Act. (Para - 24) [284-C, DJ
Union of India & Anr. vs. Deoki Nandan Aggarwal AIR
(1992) SC 96 - referred to.
3.2 There is already a Road Safety Council as
contemplated by Section 215 of the Motor Vehicles Act,
c
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 D
~ .. 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 E
quarters as also the measures being taken by the Ministry
regarding road safety as also the areas of concern have
been considered. 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 F
'\' 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. (Paras - 31 & 35) [286-F, G; 287-A;
288-E, F]
G
Suresh Seth vs ... Commissioner, Indore Municipal
Corporation and others JT(2005) 9 21 O; Bal Ram Bali & Anr.
• vs. Union oflndia JT (2007) 10 SC 509; Institute of Charlered
Accountants of India vs. Price Waterhouse and Anr. (1997) 6
SCC 312 and Madhu Kishwar & Ors. vs. State of Bihar & Ors. H
270 SUPREME COURT REPORTS [2008] 6 S.C.R.
~
A (1996) 5 sec 125 - relied on.
3.3 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
B 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. (Para -
43) [292-E, F]
c
Asif Hameed vs. State of Jammu and Kashmir AIR (1989)
SC 1899 - relied on.
3.4 Chapter VIII of the Motor Vehicles Act, 1988 has
provisions for control of traffic. These provisions are
D 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. (Para -
52) [295-C, D, E]
E 4.1 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 Plls. (Para - 54) [296-A]
F 4.2 The view that the judiciary can run the
gov4Hnment and can solve all the problems of the t
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.
G (Para - 56) (296-C, D]
4.3 The truth is that .J>1Ls 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 Plls, most
•
of which are frivolous or for which the judiciary has no
H remedy. As held by this Court in the decided case of
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 271
INDIA& ORS.
.. ~
Dattaraj Nathuji Thaware that a public interest litigation has A
nowadays largely become 'publicity interest litigation',
'private interest litigation', or 'politics interest litigation' or
the latest trend 'paise income litigation'. Much of P.l.L. is
really blackmail. (Para - 59) [297-G; 298-A]
Dattaraj Nathuji Thaware vs. State of Maharashtra AIR B
~
(2005) SC 540 - relied on.
4.4 The 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 c
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.
D
(Para - 60) [298-A, B, C]
~.
Held, Per H.K. Serna, J. (Agreeing with the conclusion
and disagreeing with certain observations made by
Markandey Katju, J):
1. Certain general observations in paragraphs 36, 37, E
38,39,a,«.~.~.a.~.~.50,52,~and55infue
main judgment, expressing doubts about the jurisdiction
of this Court entertaining the petition in the form of public
interest litigation are not agreed to. (Para - 4) [300-C]
_,. F
Divisional Manager, Aravali Golf Course & Anr. vs.
Chander Hass, JT 2008(3) SC 221 - dissented from.
2. 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 G
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. If there is
a buffer zone unoccupied by the legislature or executive
which is detrimental to the public interest, judiciary must H
272 SUPREME COURT REPORTS (2008] 6 S.C.R.
...
A occupy the field to subserve public interest. Therefore, •
each case has to be examined on its own facts. Therefore,
the blanket bar of the application in the form of PIL is
obviated. (Paras - 9 & 10) [302-8, C, D, E]
Union of India vs. Association for Democratic Reforms
B and Another (2002) 5 SCC 294 - referred to.
WRIT APPELLATE JURISDICTION : Writ Petition (C) No.
580 of 2003.
B. Datta,ASG., T.L.V. Iyer, PrashantBhushan, RohitKumar
c Singh, Sumeet Sharma, Mayank Misra, Somesh Ratta, Asha
G. Nair, D.S. Mahra, Sanjeev K. Bhardwaj, S. Wasim A. Qadri,
Anil Katiyar, Ravindra Keshavrao Adsure, Tara Chandra
Sharma, Neelam Sharma, Sanjay R. Hegde, B. Krishna Prasad,
Subramonium Prasad, V.G. Pragasam, S.J. Aristotle and Prabhu
D Ramasubramanian for the appearing parties.
The Judgment of the Court was delivered by
MARKANDEY KAT JU, J. 1. This writ petition under
Article 32 of the Constitution furnishes a typical illustration of
E 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
F
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
G 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 :J
place in cities, towns and on national highways causing deaths,
injuries etc. The petitioner has referred to the defects in the
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 273
INDIA & ORS. [MARKANDEY KATJU, J.]
,.4: licensing procedure, the training of drivers, and the need for A
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 B
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 c
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 D
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% E
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 F
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, G
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, H
274 SUPREME COURT REPORTS (2008] 6 S.C.R.
A 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,
B 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:
c (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,
D
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
E 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
F 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;
G (b) to ensure provision of all infrastructural
equirements of roads, including signs, signals,
footpaths, iepairs of roads, and all such other
requirements which will help to minimize risks of
accidents on the roads;
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 275
INDIA & ORS. [MARKANDEY KATJU, J.]
(c) to set up methodology and requirements for A
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 8
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 c
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; D
(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 E
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 F
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 G
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 H
276 SUPREME COURT REPORTS [2008] 6 S.C.R.
A permitted to operate on the roads of the NCR and 1\
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
B 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
c 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
D 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
E 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 DOA,
Union Government and the Delhi Gantt. Board ·to
F 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
G
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-
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 277
INDIA & ORS. [MARKANDEY KATJU, J.]
bays' built at such places as may be indicated by A
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 8
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 c
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
+· 0
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.
E
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 F
offence;
been charged for any offence relating to rash
and negligent driving.
All such drivers would be dressed in a distinctive G
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 SOM H
278 SUPREME COURT REPORTS [2008] 6 S.C.R.
A shall be constituted and they shall exercise pow1ers
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
8 Commissioners of Police or above so that the!se
officers are also utilized for constituting the flying
squads.
(h) We direct the police and transport authorities to
c 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 transpiort
authorities to identify those roads which they consider
appropriate to be confined only to motorized traffic
D
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.
E
(i) The civil authorities including DDA, the railways,
the police and transport authorities, are directed to
identify and remove all hoardings which are c>n
roadsides and which are hazardous and a
F disturbance to safe traffic movement. In addition,
steps be taken to put up road/traffic signs whic;h
facilitate free flow of traffic.
8. We direct the Union of India to ensure that the contents
of this Order are suitably publicized in the print as well as
G the electronic media not later than November 22, 1997 i;o
that everybody is made aware of the directions containEid
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
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 279
INDIA & ORS. [MARKANDEY KAT JU, J.]
•
,...
petition require us to give directions of a legislative or executive A
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 B
II(.
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 c
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 D
+ 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 E
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 F
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
G
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 thf:!se are instances of judicial
H
280 SUPREME COURT REPORTS [2008] 6 S.C.R.
A excess1v1sm 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
B 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
c 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)
I 0. The aforesaid seven Judge Bench decision 1)f 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
E directions of a legislative nature given by various two Judge
and three Judge Bench decisions of this Court in P.l.Ls. The
learned author has remarked that these were not legitimate
exercise of judicial power.
F 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
G prevail over smaller Bench decisions.
12. In P. Ramachandra Rao's case (supra), the question
considemd 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,
H Rajdeo Sharma (I) vs. State of Bihar 1998(7) SCC 507 and
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 281
INDIA & ORS. [MARKANDEY KAT JU, J.]
I
Rajdeo Sharma (II) vs. State of Bihar 1999(7) SCC 604 was A
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 B
·Ji
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 c
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
D
~- 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.
E
15. Thereafter in Rajdeo Sharma (/) 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 F
~-
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 (//) vs. State of Bihar 1999(7)
SCC 604 a three Judge Bench of this Court clarified certain G
. directives in Rajdeo Sharma(/) 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
H
282 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 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 cainnot
devise and enact bars of limitation when the legislature and
B statute have chosen not to do so. In paragraphs 26 and 27 of
the judgment in P. Ramachandra Rao's case (supra) the sieven
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.
C 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.
D 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 Bemch
E decision of this Court in P. Ramachandra Rao's case (supra),
when Judges by judicial decisions lay down a new principl!e 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
F 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.
G
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. Stati~ of
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 283
INDIA & ORS. [MARKANDEY KAT JU, J.]
f'
Jammu & Kashmir JT 1989 (2) SC 548 etc. In other words, A
while expansion of the meanings of statutory or constitutional
provisions by judicial interpretation is a le!Jltimate 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 B
«. 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. c
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
D
Chief Justice of India:
"Courts have to function within the established parameters E.
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, F
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.
G
., 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
't
principles. With a view to see that judicial activism does
not become 'judicial adventurism", the courts must act
H
284 SUPREME COURT REPORTS [2008] 6 S.C.R.
~
A with caution and proper restraint. They must remember
that judicial activism is not an unguided missile -- failure
to bear thlf in mind would lead to chaos. Public adulation
must not sway the judges and personal aggrandizement
B
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.
c
24. Before proceeding further, we may state that tl1e 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
D
directions which would be legislative in nature, as they would
amount to amending the Act.
•
25. In Union of India &Anr. vs. Deoki NandanAf/garwal
AIR 19£12 SC 96 a three Judge Bench of this Court obeerved
E (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 le~iislation
F 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
G 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
H judicial activism to set at naught legislative judgment is
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 285
INDIA & ORS. [MARKANDEY KATJU, J.]
,,. subversive of the constitutional harmony and comity of A
(
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 B
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 1~5:AIR 2003 SC 2612
(vide sec para 30: AIR para 29) and it cannot legislate vide c
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 D
1992 Supp(1) sec 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. oflndia
(2004)6 SCC 299: JT 2004 Supp (1) SC 326 (vide paras 27
and 28). E
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 F
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". G
29. In Union of India vs. Assn. for Democratic Reforms
(2002) 5 SCC 294 : AIR 2002 SC 2112 (vide AIR para 21) this
't Court observed : (SCC p. 309, para 19):
"19. At the outset, we would say that it is not possible for H
286 SUPREME COURT REPORTS [2008)1 6 S.C.R.
A this Court to give any directions for amending the Act or '1
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."
B 30. In Union of India vs. Prakash P. Hinduj;~ (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
c 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 !hat no court can direct
a legislature to enact a particular law. Similarly, when an
executive authority exercises a legislative power by way
D
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
E Supp (1) sec 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,
F 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 thf~ Court cannot -r
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
G
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
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 287
INDIA & ORS. [MARKANDEY KAT JU, J.)
r' of various Central Ministries and agencies apart from NGOs A
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 B
by the respondent no.1 regarding road safety have also been
,J., 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 c
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 D
of a Municipal Corporation. The Court observed:
--t·
'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 E
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 F
); 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 G
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,
H
288 SUPREME COURT REPORTS [2008] 6 S.C.R.
A horses, buffaloes, etc. Rejecting this contention this Court 'f
\
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
B 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
c 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
D
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.
E 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 ancl 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,
F 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 y
sometimes brakes to its self-motion, described in judicial
parlance as judicial self-restraint. In particular, Courts must not
legislate or perform executive functions.
G
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
H is only with the Court. The Court cannot abdicate its function by
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 289
INDIA & ORS. [MARKANDEY KAT JU, J.]
. _,
I
handi'ng over its powers under the Constitution or the C.PC. or A
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 B
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 C
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 D
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 E
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 F
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 G
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?
H
290 SUPREME COURT REPORTS [2008] 6 S.C.R.
)
A 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
B 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
c (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).
D
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
E . 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.
F 40. The justification given for judicial activism is that the
executive and legislature have failed in performing their 1
functions. Even if this allegation is true, does it justify the judiciary
in taking over the functions of the legislature or e:xecutive? In
our opinion it does not, firstly because that would be in violation
G 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 ...r
the people to correct the defects by exercising their franchise
properly in the next elections and voting for candidates who will
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 291
!NOIA & ORS. [MARKANOEY KAT JU, J.]
' _,., fulfill their expectations, or by other lawful means e.g. peaceful A
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: B
'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 c
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 0
'
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
E
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 F
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 G
of democracy depends upon the strength and
ir:idependence of each of its organs. Legislature and
-iy,
executive, the two facets of people's will, have all the
powers including that of finance. Judiciary has no power
over sword or the pur;>e nonetheless it has power to ensure H
'·
292 SUPREME COURT REPORTS [2008] 6 S.C.R
...,._
A 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
B 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 ofjudicial
restraint.
c 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
D
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)
E
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
F to be left to be dealt with by administrative and technical
'.f
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 othe'r
G 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 th1=
judiciary to meddle in such matters. Decisions on such matters -r
by the judiciary land the administrative agencies in practical
H difficulties and make them bear the brunt of the decisions of the
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 293
INDIA & ORS. [MARKANDEY MTJU, J.)
; -r Court some of which are wholly oblivious to administrative needs A
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 B
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 c
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.
D
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 E
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 F
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
G
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 H
294 SUPREME COURT REPORTS [2008] 6 S.C.R.
A 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.
B
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
C 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
D 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
E 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:
F
"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
G
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.
H Supreme Court :
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 295
INDIA & ORS. [MARKANDEY KAT JU, J.]
.~ "The judge, even when he is free, is still not wholly free. He A
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 B
discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to "promotional
necessity of order in the s9cial life."
(see Cardozo's 'The Nature of the Judicial Process')
c
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
D
(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 E
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 F
'I 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
G
Bench decision of this Court in P. Ramachandra Rao's case
(supra), and violation of the principle of separation of powers.
·v 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
H
296 SUPREME COURT REPORTS [2008) 6 S.C.R.
A realize that the judiciary has its limits and cannot solve all their
problem~ 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 Pl Ls.
B
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
c 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
D 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
E 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.
F 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
G
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
H
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 297
INDIA & ORS. [MARKANDEY KAT JU, J.]
I K and whose grievances go unnoticed, unrepresented and A
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 B
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 c
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
D
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 E
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 F
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.
G
59. Unfortunately, the truth is that Plls 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 Plls, most of which
are frivolous or for which the judiciary has no remedy. As stated
in Dattaraj Nathuji Thaware's case (supra), public interest H
298 SUPREME COURT REPORTS [2008] 6 S.C.R.
--+,
A 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.l.L. is really
blackmail.
60. Thus, Public Interest Litigation which was initially
B 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
c 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.
D 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
E 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
F 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
G 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 ~4
to drive the respective types of vehicles, and to also
organize high-level training arrangements for the
H drivers of respective types of vehicles; appropriate
COMMON CAUSE (A REGD. SOCIETY) v. UNION OF 299
INDIA & ORS. [H.K. SEMA, J.] •
f
It.
procedures should also be ensured for suspension/ A
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 B
-1· 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 c
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 D
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;
E
(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 F
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 G
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 H
300 SUPREME COURT REPORTS (2008) 6 S.C.R.
. ...
A 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
B 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.
C 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.
D
5. I also respectfully disagree with certain observations
made by a two-Judge Bench of this Court in the case of
Divisional Manager, Arava/i Golf Course & Anr. vs.
Chander Hass, JT 2008(3) SC 221, as referred to by my
learned Brother in Para 8 of his Judgment.
E
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
F form of Government, where election as a Member of Parliament
or as a Member of Legislative Assembly is of utmost importance y
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
G 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
H and the parties they represent :
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF 301
!NOIA & ORS. [H.K. SEMA, J.)
~
~
1. Whether the candidate is accused of any offence(s) A
punishable with imprisonment. If so, the details
thereof.
2. Assets possessed by a candidate, his or her spouse
and dependent relations.
B
-+ 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 c
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,
D
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 (Serna 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: E
"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 F
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
G
subject to fill the vacuum or void till a suitable law is
enacted."
•i,:
(emphasis supplied)
8. Further, in paragraph 46 (6) of the judgment it is held :
H
302 SUPREME COURT REPORTS [2008] 6 S.C.R.
A "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
B and 142 of the Constitution to issue necessary directions
to the executive to subserve public interest."
(emphasis supplied)
9. Therefore, whether to entertain the petition in the form
c 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
0
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
E 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.
S.K.S. Writ Petition dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "public interest litigation"Sign in to search