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CASE NO.: Writ Petition (civil)  580 of 2003

PETITIONER: Common Cause (A Regd. Society)

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 11/04/2008

BENCH: H.K. SEMA

JUDGMENT: J U D G M E N T REPORTABLE

WRIT PETITION (CIVIL) NO.580 OF 2003 (Under Article 32 of the Constitution of India)

H.K. SEMA,J

1.      This petition has been filed in the form of public interest  litigation by Common Cause (A Registered Society)  through its  Director Shri H.D. Shourie r/o A-31, West End, New Delhi. 2.      At the risk of Writ Petition, the petitioner sought for the  following reliefs: (i)     to issue a Writ, direction or order in the nature  of mandamus and/or any other writ, direction or  order directing the Respondent No.1, in  consultation with representatives of the Respondent  Nos.2, 3, 4, 5 & 6 and also representatives of other  States/UTs :-

(a)     to set up fully satisfactory procedures of  licensing of vehicles and licensing of drivers,  for ensuring that the vehicles are fully  equipped with all the safety travel  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 to also  organize high-level training arrangements for  the drivers of respective types of vehicles;  appropriate procedures should also be ensured  for suspension/cancellation of driving licences  in the event of any default or for involvement  in any accident;

(b)     to ensure provision of all infrastructural  requirements of roads, including signs,  signals, footpaths, repairs of roads, and all  such other requirements which will help to  minimise risks of accidents on the roads;

(c)     to set up methodology and requirements  for undertaking scientific analysis of every  accident, for ensuring that similar causes do  not recur which can lead to accidents, thereby  minimizing the possibilities of accidents;

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(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.

3.      I had the privilege of going through the erudite judgment  prepared by my learned Brother Justice Katju and I  respectfully agree with the conclusion reached by my brother  Katju that the Writ Petition be dismissed.  While coming to  this conclusion Brother Katju was of the opinion that the  Motor Vehicles Act is a comprehensive enactment on the  subject.  He was further of the opinion that if there is lacuna  or defect in the Act it is for the legislature to correct it by a  suitable amendment and not by the Court.  I am also of the  view that the relief sought for in this Writ Petition is  adequately taken care of by the Motor Vehicles Act itself and if  there is any lacuna or defect, it is the legislature to correct it  by amending the Act and not the Court. 4.      I however, respectfully dissociating myself from certain  general observations of my learned Brother in paragraphs 36,  37, 38, 39, 43, 44, 45, 46, 47, 48, 49, 50, 52, 53 and 55 in the  judgment, expressing doubts about the jurisdiction of this  Court entertaining the petition in the form of public interest  litigation.   5.      I also respectfully disagree with certain observations  made by a two-Judge Bench of this Court in the case of  Divisional Manager, Aravali Golf Course & Anr. vs.   Chander Hass,  JT 2008(3) SC 221, as referred to by my  learned Brother in Para 8 of his Judgment.   6.      In the case of Union of India vs. Association for  Democratic Reforms and Another (2002)  5 SCC 294, raised  the substantial question of law of public importance was  whether in a nation constitutionally wedded to republican and  democratic form of Government,  where election as a Member  of Parliament or as a Member of Legislative Assembly is of  utmost importance for democratic form of the country, before  casting  votes, voters have a right to know relevant particulars  of their candidates; and whether the High Court had  jurisdiction to issue directions in a Writ Petition filed under  Article 226 of the Constitution of India?  The High Court of  Delhi entertained the writ petition and directed the Election  Commission to secure to voters the following information  pertaining to each of the candidates contesting election to

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Parliament and to the State Legislatures and the parties they  represent : 1.      Whether the candidate is accused of any  offence(s)  punishable with imprisonment.   If so, the details thereof.

2.      Assets possessed by a candidate, his or  her spouse and dependent relations.

3.      Facts giving insight into the candidate’s  competence, capacity and suitability for  acting as a parliamentarian or a legislator  including details of his/her educational  qualifications.

4.      Information which the Election  Commission considers necessary for  judging the capacity and capability of the  political party fielding the candidate for  election to Parliament or the State  Legislature.

7.      Aggrieved by the aforesaid direction of the High Court, an  appeal was filed before the Supreme Court by the Union of  India.  A three Judge Bench of this Court, of which one of us  was a party (Sema J.), in Union of India vs. Association for  Democratic Reforms and Another (supra) upheld the  direction, repelling the arguments of the appellant, this Court  held : "The Supreme Court cannot give any directions  for amending the Act or the statutory Rules.  It  is for Parliament to amend the Act and the  Rules.  It is also established law that no  direction can be given, which would be  contrary to the Act and the Rules.  However, it  is equally settled that in case when the Act or  Rules are silent on a particular subject and the  authority implementing the same has  constitutional or statutory power to implement  it, the Court can necessarily issue directions or  orders on the said subject to fill the vacuum or  void till a suitable law is enacted."                                                 (emphasis supplied) 8.      Further, in paragraph 46 (6) of the judgment it is held :         "46(6). On cumulative reading of a plethora of  decisions of this Court as referred to, it is clear  that if the field meant for legislature and  executive is left unoccupied detrimental to the  public interest, this Court would have ample  jurisdiction under Article 32 read with Articles  141 and 142 of the Constitution to issue  necessary directions to the executive to  subserve public interest."                                                 (emphasis supplied)

9.      Therefore, whether to entertain the petition in the form of  Public Interest Litigation either represented by public-spirited  person; or private interest litigation in the guise of public  interest litigation; or publicity interest litigation; or political  interest litigation is to be examined in the facts and  circumstances recited in the petition itself.  I am also of the  view that if there is a buffer zone unoccupied by the legislature  or executive which is detrimental to the public interest,  judiciary must occupy the field to subserve public interest.  

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Therefore, each case has to be examined on its own facts.   10.     In my considered opinion therefore, the blanket bar of   the application in the form of PIL is obviated.  Subject to  aforesaid,  I agree with the conclusion of my learned Brother  that the petition be dismissed.