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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

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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

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(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

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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

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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 \026 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

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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.  

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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. 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 \026 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

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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

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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

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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

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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

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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\005\005\005\005\005."

                                      (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

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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

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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

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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.