Common Cause (A Regd. Society) vs Union Of India And Others on 11 April, 2008

    CASE NO.:

Writ Petition (civil) 580 of 2003

PETITIONER:

Common Cause (A Regd. Society)

RESPONDENT:

Union of India and others

DATE OF JUDGMENT: 11/04/2008

BENCH:

Markandey Katju

JUDGMENT:

J U D G M E N T

REPORTABLE

Writ Petition (Civil) No. 580 of 2003

Markandey Katju, J.

1. This writ petition under Article 32 of the Constitution furnishes a typical
illustration of how public interest litigation which was conceived and created
as a judicial tool by the courts in this country for helping the poor, weaker
and oppressed sections of society, who could not approach the court due to their
poverty, has over the years grown and grown, and now it seems to have gone
totally out of control, and has become something so strange and bizarre that
those who had created it probably would be shocked to know what it has become.

2. The petitioner is a society registered under the Societies Registration Act
which claims to be engaged in espousing problems of general public importance.

3. In the present case, the petitioner has referred to the rising number of road
accidents in the country which are taking place in cities, towns and on national
highways causing deaths, injuries etc. The petitioner has referred to the
defects in the licensing procedure, the training of drivers, and the need for
suspending licences in case of negligent driving, and driving under the
influence of alcohol, which cause accidents etc. He has also referred to the
inadequate infrastructure relating to roads and inadequate provisions of traffic
control devices including traffic signals, traffic signs, road devices and other
road safety measures. It has been stated in the petition that there should be
proper and continuous coordination between various authorities which are
connected with roads and control of traffic, and for this purpose the only
appropriate remedy is to establish Road Safety Committees. The petitioner has
also emphasized the need for having readily available ambulances for shifting
the injured persons in road accidents to hospitals for immediate treatment.

4. The petitioner has also stated that there should be road safety education for
the users of roads, pedestrians, traffic participants including cyclists,
handcarts men, bullock- cart drivers etc., who generally have low socio-economic
and educational background and do not know traffic rules and regulations. The
petitioner has alleged that pedestrians and non- motorized traffic face enormous
risks as they account for 60% to 80% of road traffic fatalities in the country.
All non-motorized traffic need to be given thorough and repeated orientation in
observance of road traffic rules and avoidance of any situations which can cause
accidents. These road safety education programmes can include written material
for those who are literate and also illustrations, slides, specially prepared
films, and also publicity though the medium of TV and radio.

5. The petitioner has also alleged that there is a paramount need for enactment
of a Road Traffic Safety Act to lay down regulations dealing with specific
responsibilities of drivers, proper maintenance of roads and traffic- connected
signs and signals etc., and all rules and regulations for observance by all
concerned including pedestrians and non-motorized traffic. The Road Traffic
Safety Act should contain all the regulations and the requirements relating to
avoidance of accidents, responsibilities of respective Departments of State
Governments, Municipal bodies, Police authorities, and the penalty for non-
observance of prescribed regulations. The Act should specify the duties,
responsibilities, rights, directives and punishments in case of failures by any
one e.g. driver, vehicle, road user, etc.

6. The petitioner has alleged that the number of accidents has increased greatly
over the years in India and hence he has filed this writ petition with the
following prayers:

(i) to issue a Writ, direction or order in the nature of mandamus and /or any
other writ, direction or order directing respondent No.1 (the Union of India) in
consultation with representatives of respondent Nos. 2, 3, 4, 5 & 6 (the
Government of NCT of Delhi, and the State Governments of Maharashtra, Tamilnadu,
West Bengal and Karnataka) and also representatives of other States/UTs :-

  (a) to set up fully satisfactory procedures of

 licensing of vehicles and licensing of drivers, for ensuring that the vehicles
are fully equipped with all the safety travel requirements, and also ensure that
drivers of private vehicles as well as drivers of public vehicles including
buses and trucks, are fully trained and are competent to drive the respective
types of vehicles, and also to organize high-level training arrangements for the
drivers of respective types of vehicles; appropriate procedures for
suspension/cancellation of driving licenses in the event of any default or for
involvement in any accident;

 (b) to ensure provision of all infrastructural

 requirements of roads, including signs, signals, footpaths, repairs of roads,
and all such other requirements which will help to minimize risks of accidents
on the roads;

 (c) to set up methodology and requirements for

 undertaking scientific analysis of every accident, for ensuring that similar
causes do not recur which can lead to accidents, thereby minimizing the
possibilities of accidents;

 (d) to establish suitable organizations for providing education to all types of
users of roads, through experts as well as use of suitably devised visual and
audio media;

 (e) to ensure the availability of ambulances for immediate removal of injured
persons to hospitals;

 (f) to set up Committees of Experts in each State/UT and in the bigger cities
for dealing with these various requirements for minimization of accidents on the
roads;

 (ii) to direct respondent No. 1 to formulate a suitable Road Traffic Safety Act
to meet effectively the various requirements for minimization of road accidents;
and

(iii) to pass such other and further orders as may be deemed necessary to deal
effectively with the various matters relating to traffic safety on the roads and
minimization of road accidents, on the facts and in the circumstances of the
case.

7. Shri Prashant Bhushan, learned counsel for the petitioner has relied on the
decision of the three Judge Bench of this Court in M.C. Mehta vs. Union of India
AIR 1998 SC 190 in which the following directions have been given:

 "A. the Police and all other authorities entrusted with the administration and
enforcement of the Motor Vehicles Act and generally with the control of the
traffic shall ensure the following:

(a) No heavy and medium transport vehicles, and light goods vehicle being four
wheelers would be permitted to operate on the roads of the NCR and NCT, Delhi,
unless they are fitted with suitable speed control devices to ensure that they
do not exceed the speed limit of 40 KMPH. This will not apply to transport
vehicles

operating on Inter-State permits and national goods permits. Such exempted
vehicles would, however, be confined to such routes and such timings during day
and night as the police/transport authorities may publish. It is made clear that
no vehicle would be permitted on roads other than the aforementioned exempted
roads or during the times other than the aforesaid time without a speed control
device.

(b) In our view the scheme of the Act necessarily implies an obligation to use
the vehicle in a manner which does not imperil public safety. The authorities
aforesaid should, therefore, ensure that the transport vehicles are not
permitted to overtake any other four- wheel motorized vehicle.

(c) They will also ensure that wherever it exists, buses shall be confined to
the buss lane and equally no other motorized vehicle is permitted to enter upon
the bus lane. We direct the Municipal Corporation of Delhi, NDMC, PWD, Delhi
Government and DDA, Union Government

and the Delhi Cantt. Board to take steps to ensure that bus lanes are segregated
and roads markings are provided on all such roads as may be directed by the
police and transport authorities.

(d) They will ensure that buses halt only at bus stops designated for the
purpose and within the marked area. In this connection also Municipal
Corporation of Delhi, NDMC, PWD, Delhi Cantt. Board would take all steps to have
appropriate bus stops constructed, appropriate markings made, and 'bus-bays'
built at such places as may be indicated by transport/police authorities.

(e) Any breach of the aforesaid directions by any person would, apart from
entailing other legal

consequences, be dealt with as contravention of the conditions of the permit
which could entail

suspension/cancellation of the permit and impounding of the vehicle.

(f) Every holder of a permit issued by any of the road transport authorities in
the NCR and NCT, Delhi will within ten days from today, file with its RTA a list
of drivers who are engaged by him together with suitable photographs and other
particulars to establish the identity of such persons. Every vehicle shall carry
a suitable photograph of the authorized driver, duly certified by the RTA. Any
vehicle being driven by a person other than the authorized driver shall be
treated as being used in contravention of the permit and the consequences would
accordingly follow.

   No bus belonging to or hired by an educational

institution shall be driven by a driver who has

  - less than ten years of experience;

 - been challaned more than twice for a minor

  traffic offence;

 - been charged for any offence relating to rash

  and negligent driving.

 All such drivers would be dressed in a distinctive uniform, and all such buses
shall carry a suitable inscription to indicate that they are in the duty of an
educational institution.

(g) To enforce these directions, flying squads made up of inter-departmental
teams headed by an SDM shall be constituted and they shall exercise powers under
Section 207 as well as Section 84 of the Motor Vehicles Act.

 The Government is directed to notify under

Section 86(4) the officers of the rank of Assistant Commissioners of Police or
above so that these officers are also utilized for constituting the flying
squads.  (h) We direct the police and transport authorities to consider
immediately the problems arising out of congestion caused by different kinds of
motorized and non-motorized vehicles using the same roads. For this purpose, we
direct the police and transport authorities to identify those roads which they
consider appropriate to be confined only to motorized traffic including certain
kind of motorized traffic and identify those roads which they consider unfit for
use by motorized or certain kinds of motorized traffic and to issue suitable
directions to exclude the undesirable form of traffic from those roads.

 (i) The civil authorities including DDA, the railways, the police and transport
authorities, are directed to identify and remove all hoardings which are on
roadsides and which are hazardous and a disturbance to safe traffic movement. In
addition, steps be taken to put up road/traffic signs which facilitate free flow
of traffic.

B. We direct the Union of India to ensure that the contents of this Order are
suitably publicized in the print as well as the electronic media not later than
November 22, 1997 so that everybody is made aware of the directions contained in
the Order. Such publication would be sufficient public notice to all concerned
for due compliance".



8. In our opinion the prayers made by the petitioner in this petition require us
to give directions of a legislative or executive nature which can only be given
by the legislature or executive. As held by this Court in Divisional Manager,
Aravali Golf Course & Anr. vs. Chander Hass, JT 2008(3) SC 221, the judiciary
cannot encroach into the domain of the legislature or executive. The doctrine of
separation of powers has been discussed in great detail in the aforesaid
decision, and we endorse the views expressed therein.

9. We are fully conscious of the fact that the decision cited by Shri Prashant
Bhushan viz. M.C. Mehta vs. Union of India (supra), is a decision of a three
Judge Bench of this Court and would ordinarily have been binding on us since our
Bench consists of two Judges. However, a subsequent seven Judge Bench decision
this Court in P. Ramachandra Rao vs. State of Karnataka 2002(4) SCC 578 has
taken the view that such directions cannot be given. In para 26 of the aforesaid
decision of the seven Judge Bench in P. Ramachandra Rao's case (supra), it was
observed:

 "Professor S.P. Sathe, in his recent work (year 2002) Judicial Activism in
India - Transgressing Borders and Enforcing Limits, touches the topic
"Directions: A new Form of Judicial Legislation." Evaluating legitimacy of
judicial activism, the learned author has cautioned against court "legislating"
exactly in the way in which a legislature legislates and he observes by
reference to a few cases that the guidelines laid down by court, at times, cross
the border of judicial law- making in the realist sense and trench upon
legislating like a legislature.

"Directions are either issued to fill in the gaps in the legislation or to
provide for matters that have not been provided by any legislation. The court
has taken over the legislative function not in the traditional interstitial
sense but in an overt manner and has justified it as being an essential
component of its role as a constitutional court"

"In a strict sense these are instances of judicial excessivism that fly in the
face of the doctrine of separation of powers. The doctrine of separation of
powers envisages that the legislature should make law, the executive should
execute it, and the judiciary should settle disputes in accordance with the
existing law. In reality such watertight separation exists nowhere and is
impracticable. Broadly, it means that one organ of the State should not perform
a function that essentially belongs to another organ. While law-making through
interpretation and expansion of the meanings of open- textured expressions such
as 'due process of law', 'equal protection of law', or 'freedom of speech and
expression' is a legitimate judicial function, the making of an entirely new
law...through directions....is not a legitimate judicial function".

                                                            (emphasis supplied)

10. The aforesaid seven Judge Bench decision of this Court in P. Ramachandra
Rao's case (supra) has referred with approval the observations made in the book
'Judicial Activism in India  Transgressing Borders Enforcing Limits' by Prof.
S.P. Sathe. In that book the learned author has referred to the directions of a
legislative nature given by various two Judge and three Judge Bench decisions of
this Court in P.I.Ls. The learned author has remarked that these were not
legitimate exercise of judicial power.

11. The position has thus been clarified by the seven Judge Bench decision of
this Court in P. Ramachandra Rao's case (supra) which has clearly observed (in
paras 22-27) that giving directions of a legislative nature is not a legitimate
judicial function. A seven Judge Bench decision of this Court will clearly
prevail over smaller Bench decisions.

12. In P. Ramachandra Rao's case (supra), the question considered by the seven
Judge Bench was whether the bar of limitation for criminal trials fixed by
smaller Benches of this Court in Common Cause vs. Union of India, 1996(4) SCC
33, Rajdeo Sharma (I) vs. State of Bihar 1998(7) SCC 507 and Rajdeo Sharma (II)
vs. State of Bihar 1999(7) SCC 604 was valid. The seven Judge Bench of this
Court was of the view that the directions given by the smaller Benches decisions
mentioned above were invalid as they amounted to directions of a legislative
nature which only the legislature could give.

13. In the aforesaid decisions of smaller Benches (which were overruled by the
seven Judge Bench decision in P. Ramachandra Rao's case) the Courts were
concerned with delay in disposal of criminal cases, particularly since the right
to a speedy trial had been held to be part of Article 21 of the Constitution by
a seven Judge Bench decision of this Court in A.R. Antulay vs. R.S. Nayak
1988(2) SCC 602.

14. Following Antulay's case, a two Judge Bench of this Court in Common Cause
vs. Union of India 1996(4) SCC 33 held that if there was delay in disposal of
certain kinds of criminal cases beyond a period specified by the Court the
accused must be released on bail, and in certain other kinds of cases the
criminal case itself should be closed. Thus by judicial verdict the Bench fixed
a limitation period in certain kinds of criminal cases.

15. Thereafter in Rajdeo Sharma (I) vs. State of Bihar 1998(7) SCC 507, a three
Judge Bench of this Court directed that in certain kinds of criminal cases the
trial court shall close the prosecution evidence on completion of a certain
period from the date of recording the plea of the accused on the charges framed,
and in certain cases if the accused has been in jail for at least half the
maximum period of punishment prescribed he shall be released on bail.

16. In Rajdeo Sharma (II) vs. State of Bihar 1999(7) SCC 604 a three Judge Bench
of this Court clarified certain directives in Rajdeo Sharma (I) vs. State of
Bihar (supra).

17. The correctness of the aforesaid three decisions of this Court was
considered by the seven Judge Constitution Bench in P. Ramachandra Rao's case
(supra) and the seven Judge Bench held that these decisions were incorrect as
they amounted to impermissible legislation by the judiciary (vide para 23). The
seven Judge Bench was of the view that in its zeal to protect the right to
speedy trial of an accused the Court cannot devise and enact bars of limitation
when the legislature and statute have chosen not to do so. In paragraphs 26 and
27 of the judgment in P. Ramachandra Rao's case (supra) the seven Judge Bench of
this Court has clearly held that directives of a legislative nature cannot be
given by the Court, since legislation is the task of the legislature and not of
the Court.

18. Before proceeding further, we would like to make it clear that we are not
against all judicial activism. Judicial activism can be both legitimate as well
as illegitimate. For example, when the Courts have given an expanded meaning of
Articles 14 and 21 of the Constitution vide Maneka Gandhi vs. Union of India AIR
1978 SC 597, it was a case of legitimate judicial activism because the Court
gave a wider meaning to Articles 14 and 21 in the light of the new developments
in the country. This was a perfectly legitimate exercise of power.

19. However, as pointed out by the seven Judge Bench decision of this Court in
P. Ramachandra Rao's case (supra), when Judges by judicial decisions lay down a
new principle of law of the nature specifically reserved for the legislature,
they legislate, and not merely declare the law (vide para 22 of the decision in
P. Ramachandra Rao's case). This is an illegitimate exercise of power and many
such illustrations of illegitimate exercise of judicial power have been given in
Prof. S.P. Sathe's book 'Judicial Activism in India' which has been referred to
with approval by the seven Judge Bench decision of this Court.

20. These are instances of judicial excessivism that fly in the face of the
doctrine of separation of powers which has been broadly (though not strictly),
envisaged by the Constitution vide Divisional Manager, Aravali Golf Club & Anr.
vs. Chander Hass & Anr. JT 2008 (3) SC 221, Asif Hameed vs. State of Jammu &
Kashmir JT 1989 (2) SC 548 etc. In other words, while expansion of the meanings
of statutory or constitutional provisions by judicial interpretation is a
legitimate judicial function, the making of a new law which the Courts in this
country have sometimes done, is not a legitimate judicial function. The Courts
of the country have sometimes clearly crossed the limits of the judicial
function and have taken over functions which really belongs either to the
legislature or to the executive. This is unconstitutional. If there is a law,
Judges can certainly enforce it. But Judges cannot create a law by judicial
verdict and seek to enforce it.

21. Moreover, it must be realized by the courts that they are not equipped with
the skills, expertise or resources to discharge the functions that belong to the
other co-ordinate organs of the government (the legislature and executive). Its
institutional equipment is wholly inadequate for undertaking legislation or
administrative functions.

22. As observed by Hon'ble Dr. Justice A.S. Anand, former Chief Justice of India
:

"Courts have to function within the established

parameters and constitutional bounds. Decisions should have a jurisprudential
base with clearly discernible principles. Courts have to be careful to see that
they do not overstep their limits because to them is assigned the sacred duty of
guarding the Constitution. Policy matters, fiscal, educational or otherwise, are
thus best left to the judgment of the executive. The danger of the judiciary
creating a multiplicity of rights without the possibility of adequate
enforcement will, in the ultimate analysis, be counter productive and undermine
the credibility of the institution. Courts cannot "create rights" where none
exists nor can they go on making orders which are incapable of enforcement or
violative of other laws or settled legal principles. With a view to see that
judicial activism does not become "judicial adventurism", the courts must act
with caution and proper restraint. They must remember that judicial activism is
not an unguided missile  failure to bear this in mind would lead to chaos.
Public adulation must not sway the judges and personal aggrandizement must be
eschewed. It is imperative to preserve the sanctity and credibility of judicial
process. It needs to be remembered that courts cannot run the government. The
judiciary should act only as an alarm bell; it should ensure that the executive
has become alive to perform its duties".



23. We respectfully agree with the views stated above.

24. Before proceeding further, we may state that the Motor Vehicles Act is a
comprehensive enactment on the subject. If there is a lacuna or defect in the
Act, it is for the legislature to correct it by a suitable amendment and not by
the Court. What the petitioner really prays for in this petition is for various
directions which would be legislative in nature, as they would amount to
amending the Act.

25. In Union of India & Anr. vs. Deoki Nandan Aggarwal AIR 1992 SC 96 a three
Judge Bench of this Court observed (vide paragraph 14): "It is not the duty of
the Court either to enlarge the scope of the legislation or the intention of the
legislature when the language of the provision is plain and unambiguous. The
Court cannot rewrite, recast or reframe the legislation for the very good reason
that it has no power to legislate. The power to legislate has not been conferred
on the courts. The Court cannot add words to a statute or read words into it
which are not there. Assuming there is a defect or an omission in the words used
by the legislature the Court could not go to its aid to correct or make up the
deficiency. Courts shall decide what the law is and not what it should be. The
Court of course adopts a construction which will carry out the obvious intention
of the legislature but could not legislate itself. But to invoke judicial
activism to set at naught legislative judgment is subversive of the
constitutional harmony and comity of instrumentalities. Modifying and altering
the scheme and applying it to others who are not otherwise entitled to under the
scheme will not also come under the principle of affirmative action adopted by
courts sometimes in order to avoid discrimination. If we may say so, what the
High Court has done in this case is a clear and naked usurpation of legislative
power".



26. This Court cannot direct legislation vide Union of India vs. Prakash P.
Hinduja (2003) 6 SCC 195:AIR 2003 SC 2612 (vide SCC para 30: AIR para 29) and it
cannot legislate vide Sanjay Kumar vs. State of U.P. 2004 All LJ 239, Verareddy
Kumaraswamy Reddy vs. State of A.P. (2006) 2 SCC 670:JT(2006) 2 SC 361, Suresh
Seth vs. Commr. Indore Municipal Corporation (2005) 13 SCC 287:AIR 2006 SC 767
(vide para 5) and Union of India vs. Deoki Nandan Aggarwal 1992 Supp(1) SCC
323:AIR 1992 SC 96.

27. The Court should not encroach into the sphere of the other organs of the
State vide N.K. Prasada vs. Govt. of India (2004)6 SCC 299 : JT 2004 Supp (1) SC
326 (vide paras 27 and 28).

28. Thus in Supreme Court Employees' Welfare Assn. vs. Union India (1989) 4 SCC
187:AIR 1990 SC 334 (vide SCC p. 220, para 55) this Court observed:

"There can be no doubt that an authority exercising legislative function cannot
be directed to do a particular act. Similarly the President of India cannot be
directed by the court to grant approval to the proposals made by the Registrar
General of the Supreme Court, presumably on the direction of the Chief Justice
of India".

29. In Union of India vs. Assn. for Democratic Reforms (2002) 5 SCC 294 : AIR
2002 SC 2112 (vide AIR para 21) this Court observed : (SCC p. 309, para 19):

"19. At the outset, we would say that it is not

possible for this Court to give any directions for amending the Act or the
statutory rules. It is for Parliament to amend the Act and the Rules. It is also
established law that no direction can be given, which would be contrary to the
Act and the Rules."

30. In Union of India vs. Prakash P. Hinduja (2003) 6 SCC 195:AIR 2003 SC 2612
(vide AIR para 29) this Court observed (SCC pp. 216-17, para 30):

"Under our constitutional scheme Parliament

exercises sovereign power to enact laws and no outside power or authority can
issue a direction to enact a particular piece of legislation. In Supreme Court
Employees' Welfare Assn. vs. Union of India it has been held that no court can
direct a legislature to enact a particular law. Similarly, when an executive
authority exercises a legislative power by way of a subordinate legislation
pursuant to the delegated authority of a legislature, such executive authority
cannot be asked to enact a law which it has been empowered to do under the
delegated legislative authority. This view has been reiterated in State of J & K
vs. A.R. Zakki 1992 Supp (1) SCC 548 : AIR 1992 SC 1546".



31. A perusal of the prayers made in this writ petition (which have been quoted
above) clearly shows that what the petitioner wants us to do is legislation by
amending the law. In our opinion, this will not be a legitimate judicial
function. The petitioner has prayed that we direct the Union of India to
formulate a suitable Road Traffic Safety Act, but it is well settled that the
Court cannot direct legislation. In fact, there is already a Road Safety Council
as contemplated by Section 215 of the Motor Vehicles Act, reference of which has
been made in the counter affidavit of the Central Government in which it has
been stated that Central Government has constituted a National Road Safety
Council which has held various meetings. It is an apex body comprising of
Transport Ministers of various States and Union Territories, DG Police of
various States/Union Territories, representatives of various Central Ministries
and agencies apart from NGOs and experts in the field of road safety. In the
deliberations of National Road Safety Council suggestions received from various
quarters as also the measures being taken by the Ministry regarding road safety
as also the areas of concern have been considered. In the counter affidavit,
various other steps taken by the respondent no.1 regarding road safety have also
been mentioned in detail. Some of the other respondents have also filed their
counter affidavits mentioning the measures taken for road safety, and we have
perused the same.

32. In Suresh Seth vs. Commissioner, Indore Municipal Corporation and others JT
2005 (9) 210, a three Judge Bench of this Court rejected the petitioner's prayer
that appropriate amendment be made to the M.P. Municipal Corporation Act, 1956
debarring a person from holding two elected offices viz. that of a member of the
Legislative Assembly and also of Mayor of a Municipal Corporation. The Court
observed:

"That apart this Court cannot issue any direction to the Legislature to make any
particular kind of enactment. Under our constitutional scheme Parliament and
Legislative Assemblies exercise sovereign power or authority to enact laws and
no outside power or authority can issue a direction to enact a particular piece
of legislation. In Supreme Court Employees Welfare Association vs. Union of
India (JT 1989 (3) SC 188 : (1989) 4 SCC 187) it has been held that no court can
direct a legislature to enact a particular law. Similarly, when an executive
authority exercises a legislative power by way of a subordinate legislation
pursuant to the delegated authority of a legislature, such executive authority
cannot be asked to enact a law which it has been empowered to do under the
delegated legislative authority".

33. In Bal Ram Bali & Anr. vs. Union of India JT 2007 (10) SC 509, a petition
under Article 32 was filed praying for a mandamus directing for a total ban of
slaughtering of cows, horses, buffaloes, etc. Rejecting this contention this
Court observed:

"It is not within the domain of the Court to issue a direction for ban on
slaughter of cows, buffaloes and horses as it is a matter of policy on which
decision has to be taken by the Government. That apart, a complete ban on
slaughter of cows, buffaloes and horses, as sought in the present petition, can
only be imposed by legislation enacted by the appropriate legislature. Courts
cannot issue any direction to the Parliament or to the State legislature to
enact a particular kind of law".

34. As observed by a three Judge Bench of this Court in Institute of Chartered
Accountants of India vs. Price Waterhouse and Anr. 1997 (6) SCC 312(vide para
50), Judges should not proclaim that they are playing the role of a law-maker
merely for an exhibition of judicial valour. They have to remember that there is
a line, though thin, which separates adjudication from legislation. That line
should not be crossed.

35. In Madhu Kishwar & Ors. vs. State of Bihar & Ors. 1996 (5) SCC 125 (vide
para 5), this Court observed that the Court is not fully equipped to cope with
the details and intricacies of the legislative subject, and it can at best
advise and focus attention on the State policy on a problem and shake it from
its slumber, goading it to awaken, march and reach the goal. Thus, the Court can
play a catalytic role with regard to the social and economic problems of the
people. However, whatever the concern of the Court, it has to apply somewhere
and at sometimes brakes to its self-motion, described in judicial parlance as
judicial self-restraint. In particular, Courts must not legislate or perform
executive functions.

36. We would also like to advert to orders by some Courts appointing committees
giving these committees power to issue orders to the authorities or to the
public. This is wholly unconstitutional. The power to issue a mandamus or
injunction is only with the Court. The Court cannot abdicate its function by
handing over its powers under the Constitution or the C.P.C. or Cr.P.C. to a
person or committee appointed by it. Such 'outsourcing' of judicial functions is
not only illegal and unconstitutional, it is also giving rise to adverse public
comment due to the alleged despotic behaviour of these committees and some other
allegations. A committee can be appointed by the Court to gather some
information and/or give some suggestions to the Court on a matter pending before
it, but the Court cannot arm such a committee to issue orders which only a Court
can do.

37. We have gone deep into the subject of judicial activism and public interest
litigation because it is often found that courts do not realize their own
limits. Apart from the doctrine of separation of powers, courts must realize
that there are many problems before the country which courts cannot solve,
however much they may like to. It is true that the expanded scope of Articles 14
and 21 which has been created by this Court in various judicial decisions e.g.
Smt. Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597, have given
powerful tools in the hands of the judiciary. However, these tools must be used
with great circumspection and in exceptional cases and not as a routine manner.
In particular, Article 21 of the Constitution must not be misused by the Courts
to justify every kind of directive, or to grant every kind of claim of the
petitioner. For instance, this Court has held that the right to life under
Article 21 does not mean mere animal existence, but includes the right to live
with dignity vide Olga Tellis vs. Bombay Corporation AIR 1986 SC 180, D.T.C. vs.
D.T.C. Mazdoor Congress Union AIR 1991 SC 101 (paras 223, 234, 259), Francis
Coralie Mullin vs. Union Territory Delhi Administrator AIR 1981 SC 746. However,
these decisions must be understood in a balanced way and not in an unrealistic
sense. For example, there is a great deal of poverty in this country and poverty
is destructive of most of the rights including the right to a dignified life.
Can then the Court issue a general directive that poverty be abolished from the
country because it violates Article 21 of the Constitution? Similarly, can the
Court issue a directive that unemployment be abolished by giving everybody a
suitable job? Can the Court stop price rise which now- a-days has become an
alarming phenomenon in our country? Can the Court issue a directive that
corruption be abolished from the country? Article 21 is not a 'brahmastra' for
the judiciary to justify every kind of directive.

38. The concern of the petitioner is that many people die in road accident. But
many people also die due to murders. Should then the Court issue a general
directive that murders be not committed in the country? And how would such a
directive (even if issued) be implemented?

39. We would be very happy to issue such directives if they could really be
implementable. However, the truth is that they are not implementable (for
various reasons, particularly lack of financial and other resources and
expertise in the matter). For instance, the directives issued by this Court
regarding road safety in M.C. Mehta's case (supra) hardly seem to have had any
effect because everyday we read in the newspapers or see the news on TV about
Blueline buses killing or injuring people. In the Hawala case (Vineet Narain vs.
Union of India AIR 1998 SC 889) a valiant effort was made by this Court to check
corruption, but has it made even a dent on the rampant corruption prevailing in
the country? It is well settled that futile writs should not be issued by the
Court.

40. The justification given for judicial activism is that the executive and
legislature have failed in performing their functions. Even if this allegation
is true, does it justify the judiciary in taking over the functions of the
legislature or executive? In our opinion it does not, firstly because that would
be in violation of the high constitutional principle of separation of powers
between the three organs of the State, and secondly because the judiciary has
neither the expertise nor the resources for this. If the legislature or
executive are not functioning properly it is for the people to correct the
defects by exercising their franchise properly in the next elections and voting
for candidates who will fulfill their expectations, or by other lawful means
e.g. peaceful demonstrations and agitations, but the remedy is surely not by the
judiciary in taking over the functions of the other organs.

41. In Ram Jawaya vs. State of Punjab AIR 1955 SC 549 (vide paragraph 12), a
Constitution Bench of this Court observed:

"The Indian Constitution has not indeed

recognized the doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the Government have been
sufficiently differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption by one organ or part of the State,
of functions that essentially belong to another"

       (emphasis supplied)



42. Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR 1989 SC 1899 a
three Judge Bench of this Court observed (vide paragraphs 17 to 19) :

"Before adverting to the controversy directly involved in these appeals we may
have a fresh look on the inter se functioning of the three organs of democracy
under our Constitution. Although the doctrine of separation of powers has not
been recognized under the Constitution in its absolute rigidity but the
constitution makers have meticulously defined the functions of various organs of
the State. Legislature, executive and judiciary have to function within their
own spheres demarcated under the Constitution. No organ can usurp the functions
assigned to another. The Constitution trusts to the judgment of these organs to
function and exercise their discretion by strictly following the procedure
prescribed therein. The functioning of democracy depends upon the strength and
independence of each of its organs. Legislature and executive, the two facets of
people's will, have all the powers including that of finance. Judiciary has no
power over sword or the purse nonetheless it has power to ensure that the
aforesaid two main organs of State function within the constitutional limits. It
is the sentinel of democracy. Judicial review is a powerful weapon to restrain
unconstitutional exercise of power by the legislature and executive. The
expanding horizon of judicial review has taken in its fold the concept of social
and economic justice. While exercise of powers by the legislature and executive
is subject to judicial restraint, the only check on our own exercise of power is
the self imposed discipline of judicial restraint.

 Frankfurter, J. of the U.S. Supreme Court

dissenting in the controversial expatriation case of Trop v. Dulles (1958) 356
US 86 observed as under :

"All power is, in Madison's phrase, "of an

encroaching nature". Judicial power is not

immune against this human weakness. It

also must be on guard against encroaching

beyond its proper bounds, and not the less so

since the only restraint upon it is self

restraint."

                                       (emphasis supplied)

43. The directives sought for in this petition require the expertise of
administrative and technical officials, apart from financial resources. Not only
should the Court not give such directives because that would violate the
principle of separation of powers, but also because these are highly technical
matters to be left to be dealt with by administrative and technical authorities
who have experience and expertise in the matter. For instance, what should be
the maximum permissible speed for vehicles in a city, where should speed
breakers be fixed, when should heavy vehicles be allowed on roads, and other
matters for ensuring road safety are all matters to be dealt with by the
concerned authorities under the Motor Vehicles Act and other enactments, and it
would be wholly inappropriate for the judiciary to meddle in such matters.
Decisions on such matters by the judiciary land the administrative agencies in
practical difficulties and make them bear the brunt of the decisions of the
Court some of which are wholly oblivious to administrative needs and as such ill
conceived.

44. Moreover, if once the Courts take upon themselves the task of issuing ukases
as to how administrative agencies should function, what is there to prevent them
from issuing directions as to how the State Government or Central Government
should administer the State and run the country? In our opinion such an approach
would not only disturb the delicate balance of powers between the three wings of
the State, it would also strike at the very basis of our democratic polity which
postulates that the governance of the country should be carried on by the
executive enjoying the confidence of the legislature which is answerable and
accountable to the people at the time of elections. Such an approach would in
our opinion result in judicial oligarchy dethroning democratic supremacy.

45. In our opinion the Court should not assume such awesome responsibility even
on a limited scale. The country can ill afford to be governed through court
decrees. Any such attempt will not only be grossly undemocratic, it would be
most hazardous as the Courts do not have the expertise or resources in this
connection. The judiciary is not in a position to provide solutions to each and
every problem, although human ingenuity would not be lacking to give it some
kind of shape or semblance of a legal or constitutional right, e.g. by resorting
to Article 21.

46. When other agencies or wings of the State overstep their constitutional
limits, the aggrieved parties can always approach the courts and seek redress
against such transgression. If, however, the court itself becomes guilty of such
transgression, to which forum would the aggrieved party appeal? As the ancient
Romans used to say "Who will guard the Praetorian guards?" The only check on the
courts is its own self restraint.

47. The worst result of judicial activism is unpredictability. Unless Judges
exercise self restraint, each Judge can become a law unto himself and issue
directions according to his own personal fancies, which will create chaos.

48. It must be remembered that a Judge has to dispense justice according to the
law and the Constitution. He cannot ask the other branches of the State to keep
within their constitutional limits if he exceeds his own.

49. As stated by A.G. Noorani in his article on `Judicial Activism vs. Judicial
Restraint' (published in SPAN magazine of April/May, 1997 edition) :

 "Zeal leads judges to enter areas with whose

terrain they are not familiar; to order minutiae of administration without
reckoning with the consequences of their orders. Judges have made orders not
only how to run prisons but also hospitals, mental homes and schools to a degree
which stuns the professional. In their judgments they draw on material which is
untested and controversial and which they are ill-equipped to evaluate."

50. In our opinion adjudication must be done within the system of historically
validated restraints and conscious minimization of the Judges' preferences. The
Court must not embarrass the administrative authorities and must realize that
administrative authorities have expertise in the field of administration while
the Court does not. In the words of Chief Justice Neely, former Chief Justice of
the West Virginia State Supreme Court: "I have very few illusions about my own

limitations as a judge. I am not an accountant, electrical engineer, financier,
banker, stockbroker or system management analyst. It is the height of folly to
expect Judges intelligently to review a 5000 page record addressing the
intricacies of a public utility operation. It is not the function of a Judge to
act as a super board, or with the zeal of a pedantic school master substituting
his judgment for that of the administrator."

51. As observed by Mr. Justice Cardozo of the U.S. Supreme Court :

 "The judge, even when he is free, is still not

wholly free. He is not to innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by analogy, disciplined by system,
and subordinated to "promotional necessity of order in the social life."

   (see Cardozo's 'The Nature of the Judicial Process')

52. Chapter VIII of the Motor Vehicles Act, 1988 has provisions for control of
traffic. These include fixing limits of speed (s.112), restriction on use of
certain vehicles (s.115), power to erect traffic signs (s.116), fixing parking
places (s.117), making driving regulations (s.118), duty to obey traffic signs
(s.119), requirement for drivers to make such signals as are prescribed (s.121),
safety measures for drivers and pillion riders on two wheelers (s.128), wearing
of protective headgear (s.129), etc. These provisions are obviously meant for
road safety, and if further provisions are required for this purpose the
petitioner may approach the legislature or concerned authority for this purpose,
but this Court can certainly not amend the law.

53. The people must know that Courts are not the remedy for all ills in society.
The problems confronting the nation are so huge that it will be creating an
illusion in the minds of the people that the judiciary can solve all the
problems. No doubt, the judiciary can make some suggestions/recommendations to
the legislature or the executive, but these suggestions/recommendations cannot
be binding on the legislature or the executive, otherwise there will be
violation of the seven-Judge Bench decision of this Court in P. Ramachandra
Rao's case (supra), and violation of the principle of separation of powers. The
judiciary must know its limits and exercise judicial restraint vide Divisional
Manager, Aravali Golf Course & Anr. vs. Chander Hass, JT 2008(3) SC 221. The
people must also realize that the judiciary has its limits and cannot solve all
their problems, despite its best intentions.

54. The problems facing the people of India have to be solved by the people
themselves by using their creativity and by scientific thinking and not by using
judicial crutches like PILs.

55. These problems (e.g. poverty, unemployment, price rise, corruption, lack of
education, medical aid and housing, etc.) are so massive that they can only be
solved by certain historical, political and social forces that can only be
generated by the people themselves using their creativity and scientific
thinking.



56. The view that the judiciary can run the government and can solve all the
problems of the people is not only unconstitutional, but also it is fallacious
and creates a false impression and false illusion that the judiciary is a
panacea for all ills in society. Such illusions, in fact, do great harm to the
people because it makes the people believe that their problems can be solved by
others and not by the people themselves. It debilitates their will and makes
them believe that they can solve their problems and improve their conditions not
by their own struggles and creativity but by filing a PIL in Court.

57. Before concluding, we would like to refer to the decision of this Court in
Dattaraj Nathuji Thaware vs. State of Maharashtra AIR 2005 SC 540 in which
Hon'ble Pasayat J. expressed the view about Public Interest Litigation in the
following memorable words:

 "It is depressing to note that on account of such trumpery proceedings
initiated before the Courts, innumerable days are wasted, which time otherwise
could have been spent for the disposal of cases of the genuine litigants. Though
we spare no efforts in fostering and developing the laudable concept of PIL and
extending our long arm of sympathy to the poor, the ignorant, the oppressed and
the needy whose fundamental rights are infringed and violated and whose
grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but
expressing our opinion that while genuine litigants with legitimate grievances
relating to civil matters involving properties worth hundreds of millions of
rupees and criminal cases in which persons sentenced to death facing gallows
under untold agony and persons sentenced to life imprisonment and kept in
incarceration for long years, persons suffering from undue delay in service
matters, Government or private, persons awaiting the disposal of cases wherein
huge amounts of public revenue or unauthorized collection of tax amounts are
locked up, detenus expecting their release from the detention orders etc. etc.
are all standing in a long serpentine queue for years with the fond hope of
getting into the Courts and having their grievances redressed, the busybodies,
meddlesome interlopers, wayfarers or officious interveners having absolutely no
public interest except for personal gain or private profit either of themselves
or as proxy of others or for any other extraneous motivation or for glare of
publicity break the queue muffing their faces by wearing the mask of public
interest litigation and get into the Courts by filing vexatious and frivolous
petitions and thus criminally waste the valuable time of the Courts, as a result
of which the queue standing outside the doors of the Courts never moves, which
piquant situation creates frustration in the minds of the genuine litigants and
resultantly they lose faith in the administration of our judicial system".



58. In the same decision it has also been observed that PIL is a weapon which is
to be used with great care and circumspection.

59. Unfortunately, the truth is that PILs are being entertained by many courts
as a routine and the result is that the dockets of most of the superior courts
are flooded with PILs, most of which are frivolous or for which the judiciary
has no remedy. As stated in Dattaraj Nathuji Thaware's case (supra), public
interest litigation has nowadays largely become 'publicity interest litigation',
'private interest litigation', or 'politics interest litigation' or the latest
trend 'paise income litigation'. Much of P.I.L. is really blackmail.

60. Thus, Public Interest Litigation which was initially created as a useful
judicial tool to help the poor and weaker section of society who could not
afford to come to courts, has, in course of time, largely developed into an
uncontrollable Frankenstein and a nuisance which is threatening to choke the
dockets of the superior courts obstructing the hearing of the genuine and
regular cases which have been waiting to be taken up for years together.

61. With the above observations, the Writ Petition is dismissed.