# COMMON CAUSE (A REGO. SOCIETY) v. UNION OF

- **Citation:** [2008] 6 S.C.R. 262
- **Court:** Supreme Court of India
- **Decided:** 2008-04-11
- **Bench:** H.K. Sema, Markandey Kat Ju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/common-cause-a-rego-society-v-union-of-24552
- **Pages:** 41

## Headnote

· 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
0 exercise judicial restraint and must not perform executive!
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
H
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
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]
B
Divisional Manager, Aravali Golf Course & Anr. vs.
Chander Hass, JT (2008) 3 SC 221 - relied on.
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 thre

## Text

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A
B
[2008] 6 S.C.R. 262
COMMON CAUSE (A REGO. SOCIETY)
If.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 580 of 2003)
APRIL 11, 2008
(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
0 exercise judicial restraint and must not perform executive!
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
H
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
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]
B
Divisional Manager, Aravali Golf Course & Anr. vs.
Chander Hass, JT (2008) 3 SC 221 - relied on.
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
down a 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 coordinate organs of the government, viz., the legislature
and executive. Its institutional equipment is wholly
F
inadequate for undertaking legislation or administrative
"
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
II
with caution and proper restraint. (Para - 22) [283-G, 284-AJ
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;
B
Olga Tellis vs. Bombay Corporation AIR (1986) SC 180; D. TC.
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
0 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. (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 c
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
D
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 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 selfrestraint. 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
B
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. (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 publicspirited 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,
F 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
G espousing problems of general public importance.
3. In the present case, the petitioner has referred to the
:J
rising number of road accidents in the country which are taking
place in cities, towns and on national highways causing deaths,
H injuries etc. The petitioner has referred to the defects in the
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF
273
INDIA & ORS. [MARKANDEY KAT JU, 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 nonmotorized 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.
c
D
E
F
G
H
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
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;
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(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;
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(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
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A
permitted to operate on the roads of the NCR and
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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
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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
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which does not imperil public safety. The authorities
aforesaid should, therefore, ensure that the transport
vehicles are not permitted to overtake any other fourwheel motorized vehicle.
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(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 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.
G
(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
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constructed, appropriate markings made, and 'bus-
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COMMON CAUSE (A REGO. SOCIETY) v. UNION OF
INDIA & ORS. [MARKANDEY KAT JU, J.]
277
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.
No bus belonging to or hired by an educational
institution shall be driven by a driver who has
less than ten years of experience; ·
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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
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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
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
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
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 c>n
roadsides and which are hazardous and a
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
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
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF
279
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,...
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
E
. 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
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
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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
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)
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
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
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COMMON CAUSE (A REGO. SOCIETY) v. UNION OF
281
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INDIA & ORS. [MARKANDEY KAT JU, J.]
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.
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13. In the aforesaid decisions of smaller Benches (which
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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.
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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
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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.
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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.
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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
COMMON CAUSE (A REGO. SOCIETY) v. UNION OF
283
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Jammu & Kashmir JT 1989 (2) SC 548 etc.