IN THE SUPREME COURT OF INDIA (CIVIL EXTRAORDINARY JURISDICTION)
CIVIL WRIT PETITION NO. 580 OF 2003 IN THE MATTER OF:
COMMON CAUSE VERSUS UNION OF INDIA & OTHERS
(A REGD. SOCIETY)
ADDITIONAL AFFIDAVIT ON BEHALF OF THE PETITIONER
I, Kamal Kant Jaswal, S/o Shri Ambika Prasad Jasvaul, having office at 5, Nelson Mandela Road, Vasant Kunj, New Delhi, do hereby solemnly state and affirm as under :
1 That I am Director of Common Cause, the Petitioner Society in the above-mentioned Writ Petition and being familiar with the facts and circumstances of the case am competent and authorized to swear this Affidavit.
2 That the present affidavit is being filed to analyse the affidavits of all the Respondents (except for State of Maharashtra i.e. Respondent No.3 and State of Tamilnadu i.e. Respondent No.4) filed in response to The suggestions given by the Petitioner in the rejoinder affidavit to the Counter affidavits of Respondent Nos.2 to 6 to improve our road safety Measures. In fact, this Hon'ble Court has directed in its order dated 24th February, 2006 to all the respondents' "let the Union of India and the States to file reply to the suggestion proposed by the Petitioner. The State of Tamil Nadu Respondent No. 4 herein has now also filed An affidavit which is being replied herein.
3. The Petitioner in its rejoinder affidavit dated 20th February, 2006 to the counter affidavits of the state respondents had given some suggestions mainly based on the research paper by Dr. T.S. Reddy, Head, Traffic & Transportation Division, Central Road Institute and Purnima Parida, Scientist in Central Road Research Institute, New Delhi and another research paper "Social cost of road traffic crashes in India" by Mr. Dinesh Mohan, Henry Ford Professor for Biomechanics and Transportation Research and Injury Prevention Programme, IIT, New Delhi. Both these research papers have been annexed along with the Rejoinder affidavit dated 26th February, 2005 of the Petitioner to the counter affidavit filed by UOI. The Petitioner had broadly categorized the remedial steps to improve road safety measures under four heads:
(i) improving road conditions and its infrastructure;
(ii) changes in traffic laws and making its enforcement effective;
(iii) educating people regarding road safety and
(iv) proper medical facilities.
4. Before averting to the reply given by Respondent No. 4 which is submitted that the Respondent No.4 in its reply at Para 6 as stated that the Petitioner's views are not contradicted. It is also submitted on behalf of the Petitioner that this public interest litigation is not adversely litigation or a petition for penalizing any body but this petition has been filed for the benefit of the public by reducing road accidents in the country.
5. One of the broad suggestions of the Petitioner was that there should changes in the Traffic laws and its enforcement be made effective. In regard to that Respondent No. 4 has suggested that it had annunciated Road Safety Policy and has also set up a Road Safety Council which is the welcome move. The Respondent No.4 has further contended that it has constituted a Fund called Road Safety Fund. But it has not provided with the information regarding the accrual and allocation made to this Fund since its inception in the year 2000.
a) The preventive measures enumerated by Respondent No. 4 are quite worthy but it is to be ensured that they are enforced strictly.
b) One of the Petitioner's suggestions was Road engineering in our country is quite appellant. The summary of the responses of the states to the suggestions of the Petitioners given under the aforementioned broad heads in para 13 of the rejoinder affidavit dated 20th February 2006 are as follows:
c) The response given by Respondent No. 4 to this suggestion is worthwhile which is mentioned in para 7 of their reply and not repeated herein for the sake of brevity.
d) Regarding poor road condition this fact has been admitted by Respondent No.4 and as stated in their Affidavit they have made allocation of fund for undertaking periodical patch work and other repairs work which is good effort but it has to be carried out to its conclusion and should not be left half-done.
e) In response to issue of providing Delineators and barricades as suggested by Petitioner the Respondent No.4 has contended the road signage effecting the features of the road is being compulsorily provided in all National and State Highways. But it is submitted with great respect that such measures should also be adopted on district roads which account for 75% of the road length in the state. Rest of the efforts taken by Respondent No.4 like separate lane for non-motorized traffic standardization of speed-breakers, trimming of trees, putting up of signboards, Reflectors for non-motorized traffic, construction of bypasses and video recording of traffic to roads the chances of escaping of errant drivers are commendable efforts.
6. One of the suggestions made by the Petitioner was that Speed Governor should be mandatory for commercial vehicles. In reply to that the Respondent No.4 has stated that under Rule 118 of the Central Motor Vehicles Rules the State Governments are empowered under rule 118 of the Central Motor Vehicles Rules 1989 to notify the compulsory fitment of Speed Governors. In this regard, the Government of India have constituted a Committee under the Chairmanship of Hon'ble Minister for Transport, Government of Tamil Nadu with the Hon'ble Ministers for Transport, Government of Kerala and Government of Himachal Pradesh and other members to study the issues connected with the fixation of speed limit, over-loading, Speed Governors, Road safety etc. holistically and suggest suitable measures. The Committee is already in the process of formulating its recommendations. This issue of fitting commercial vehicles with speed Governors is a very serious matter which needs immediate action. Therefore, the Respondent No.4 should ensure that such a step is taken at the earliest so that major accidents could be avoided.
7. Regarding the apprehension raised by Petitioner for procuring Driving Licences through unfair means the Respondent No. 4 suggested that they have computerized all the Regional Transport Offices in the State of Tamil Nadu and they have been fitted with Web cameras which will comparatively reduce such malpractices.
8. Regarding the contention of the Petitioner that there are limited Government Training Institutes the Respondent No. 4 submitted that there are 17 fully=equipped Drivers Training Institutes operated by the State Transport Undertaking and 7 by Corporate organizations. Further 1634 Driving Schools are already under private ownership. However, it is to be ensured that all necessary norms are fulfilled for imparting quality training to produce skilled drivers and laws in this regard are enforced in letter and spirit.
9. Regarding Road Safety Education the efforts made by Respondent No. 4 are quite commendable.
10. Regarding the suggestions made by the Petitioner in respect of infrastructure for providing immediate medical aid, the Respondent No.4 has contended that there are 100 such Emergency Accident Relief Centers operating in the state of Tamil Nadu. However, it appears that only 100 such Centers are insufficient to the number of accidents occurring is not in commensurate with the population. Therefore, the respondent number 4 should make efforts so that the number of these centers be increased considerably.
11. Information from all the sources gathered, it is effect that the state of Tamilnadu, in respect of making all these efforts, have the largest number of accidents occurring in the state. Therefore, from the above, it seems that whatever measures have been undertaken is not adequate as the results are showing. Therefore, respondent number 4 in particular and the other respondents in general may be directed to make further analysis of the situation in their states so that further improvement can be achieved for the betterment of the population.,
Conclusions : Thus, it is apparent that all the Respondents are agreeing with most of the suggestions given by the Petitioner. They have also claimed that some of the suggestions given by the Petitioner are already being implemented. However, the response of the States in this regard is quite general and vague, in particular the response of the State of West Bengal and Delhi. Many times, it is not clear whether any step is being taken at the ground level or only decision on paper has been taken. In the case of West Bengal, particularly, there is too much generality in its response as most of the times; it has simply stated that the suggestion of the Petitioner is being implemented wherever possible. Similarly, Delhi has also said at several places that it is a good suggestion and should be implemented. Many places, Karnataka has also said that this is a good suggestion and now it will enlighten the concerned department. As far as Union of India is concerned, at several places, it has absolved itself from any responsibility by stating that it is within the state's jurisdiction. However, there are some suggestions in which there is almost consensus that they are good suggestions and they should be implemented and directions in this regard should be issued as they are not being implemented in all the states so far. For example :
1. Commercial vehicles should be fitted with speed governors;
2. Reflectors should be mandatory for non-motorized traffics;
3. Video recording of the crossing or any signal or any section of the road
Which is supposed to be more accident- prone (however, some have expressed their concerns regarding feasibility at every place);
4. Enactment of Road Safety Act (UOI is ready to enact, if the States are ready to fulfill the preconditions); (Karnataka has suggested that a high level national panel should be constituted to examine this proposal)
There are other suggestions, which the Respondents agree that they are good suggestions but find difficult to fully implement them due to lack of resources, infrastructures etc. like,
1. Construction of by pass;
2. Lighting all the roads; (difficult to implement in NHs. Crossing through rural areas)
3. Separate lanes for non-motorized traffic;
4. Providing ambulances for providing quick medical facilities to the victims of road accidents.
It is submitted that the Petitioner society has moved this court in public interest so that by the intervention of this Hon'ble Court relevant and effective guidelines are put in place and are enforced in a proper manner throughout the country to safeguard and protect the fundamental right of the people guaranteed to them under Article 21 of the Constitution. The object and thrust of the present petition is not to penalize anyone for any dereliction of duty or violation of any rule or law but to remove serious shortcomings or inadequacies in the present road safety measures so that this gigantic problem of road accidents causing deaths, fatal injuries etc. can be minimized. It would be relevant to mention here that India like many other developing countries, is witnessing a mind-boggling increase in the number of vehicles clogging to roads. This rapid increase in number of vehicles requires more exhaustive and foolproof road safety measures in order to make driving on roads and highway safe.
DEPONENT
IN THE SUPREME COURT OF INDIA
(CIVIL EXTRAORDINARY JURISDICTION)
CIVIL WRIT PETITION NO. 580 OF 2003
IN THE MATTER OF:
COMMON CAUSE VERSUS UNION OF INDIA& ORS
(A REGD. SOCIETY).
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER
That the Petitioner was forced to approach this Hon'ble Court by way of the present writ petition due to mainly inaction/ failure on the part of the Union and the State Governments to take appropriate steps to control the menace of rising road accidents in our country, resulting in clear violation of the fundamental right of the people under Article 21 of the Constitution, despite the fact there is a report of the experts of their own institute (at page no. 128-136) analyzing the reasons for the increasing road accidents and suggesting immediate measures to be urgently taken by the governments.
A. SUBMISSIONS ON THE MAINTAINABILITY OF THE PRESENT WRIT PETITION
(I) During the arguments of the present writ petition, serious doubts were expressed by this Hon'ble Court regarding the maintainability of the present writ petition mainly on the ground that this Court can not issue directions to improve the road safety measures as prayed for in the present writ petition to the executive as it would amount to legislation by the Court, which is clearly barred by several judgments of this Hon'ble Court.
In order to answer the said objection, the Petitioner relied upon amongst others a specific judgment of a three Judges bench of this Hon'ble Court on a similar issue[(1997) 8 SCC 770] where this Hon'ble Court in a PIL issued certain directions to the government to check the rising road accident in Delhi. To quote from the said judgment;
"1.One of the aspects covered by this writ petition relates to proper management and control of the traffic in the National Capital Region (NCR) and the National Capital Territory (NCT), Delhi to ensure the maximum possible safeguards which are necessary for public safety. The problem is too obvious to require elaboration and the need for urgent measures to prevent any further delay in enforcement at least of the existing provisions of law is imperative. The need is accentuated by the alarming rise in the number of road accidents and the resulting deaths and bodily injuries caused thereby……….
This extract is taken from M.C. Mehta v. Union of India, (1997) 8 SCC 770, at page 773 :
2…………. It is obvious that it is primarily for the Executive to devise suitable measures and provide the machinery for rigid enforcement of those measures to curb this menace. However, the inaction in this behalf of the Executive in spite of the fact that this writ petition is pending since 1985 and the menace instead of being controlled continues to grow in perpetuation of this hazard to public safety, it has become necessary for this Court to also issue certain directions which are required to be promptly implemented to achieve the desired result. It is needless to add that these directions are to remain effective till such time as necessary action in this behalf is taken by the Executive authorities concerned so that the continuance thereafter of these directions may not be necessary.
14. It is needless for us to add that the entire scope of this matter and particularly this aspect to which this order relates, namely, the control and regulation of traffic in NCR and NCT, Delhi, is a matter of paramount public safety and, therefore, is evidently within the ambit of Article 21 of the Constitution. That being so, the making of this order has become necessary and can no longer be delayed because of the obligation of this Court under Article 32 of the Constitution which is invoked with the aid of Article 142 to give the necessary directions given today separately""
Thus, a larger bench of this Hon'ble Court on an exactly similar issue, though pertaining to Delhi only, issued specific directions to the Government and while issuing directions, it specifically stated that the said matter being of public safety clearly comes within the ambit of Article 21 of the Constitution and therefore, it is the obligation of this Hon'ble Court to intervene and issue such directions when it is approached under Article 32 of the constitution.
(II) In fact, when ever this Hon'ble Court has found that fundamental rights of the citizen of this country are being violated due to inactions or arbitrary actions of the executive, it has issued appropriate directions like for police reforms in Prakash Singh's case [ (2006) 8 SCC 1], for making the CBI independent from the govt. in Vineet Narain Case [(1998) 1 SCC 226], for issuing the notification for the protection of the whistle blowers in Satyender Dubey's case [Civil Appeal No. 93 of 2004].In none of the said judgments the directions issued to protect the fundamental rights of the people were considered as legislation by the Court.
(III) The principle is that though the court cannot legislate but if the absence of the legislation is leading to the violation of fundamental rights and if the gaps in the legislation can be filled up by the executive directions, the court can and does order the executive to issue the necessary executive directions which have been found necessary to protect the fundamental rights of the citizens. This Hon'ble court has laid down law in Vishakha's case [(1997) 6 SCC 241] in which it was held that if there is no enacted legislation to provide for the effective enforcement of any fundamental right, this Court can issue guidelines/directions for the effective enforcement of the said fundamental right under Article 32 of the Constitution which would be law under Article 141 of the Constitution till the suitable legislation is enacted to occupy the filed. Following the Vishakha judgment, this Hon'ble Court once again in Vineet Narian case held that
"….There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of the Supreme Court as provided in Article 144 of the Constitution. This power has been recognized in a catena of decisions of the Supreme Court and it can be exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and where there is inaction even by the executive, for whatever reason, the Judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the filed.
(IV) Of course, the court cannot and should not substitute its judgment over that of the executive in matters which require expert opinion, but where the experts of the govt. have applied their minds and recommended some solutions, which are not being implemented without any explanation, the Court can issue a writ of mandamus. In fact, in a case which requires expert opinion, the Court can issue a writ of mandamus under following circumstances;
(a) If the government has not applied their mind to the issue raised in the case, the Court can direct the govt. to get the said issue be examined by the independent experts;
(b) If the government has applied their mind in a sense that it has already got the issue examined by its experts, but is simply sitting on the recommendations of the experts, the Court can direct the government to act upon the recommendations of the said experts; and
(c) If the government has applied their mind, but the Court finds that the government has acted with malafide or extraneous consideration, it can direct to have the said issue reexamined by the independent experts.
(V) This court has also held in its catena of its judgments that every power vested in a public authority is coupled with duty and when the said authority fails to perform its duty and it results in violation of the fundamental rights of the people, then the Court must intervene and issue directions to such authority. To quote from a constitution bench judgment in Ex. Capt. Harish Uppal vs. UOI, (2003) 2 SCC 45;
This extract is taken from Ex-Capt. Harish Uppal v. Union of India,(2003) 2 SCC 45, at page 70 :
"Every power vested in a public authority is coupled with a duty to exercise it, when a situation calls for such exercise. The authority cannot refuse to act at its will or pleasure. It must be remembered that if such omission continues, particularly when there is an apparent threat to the administration of justice and fundamental rights of citizens i.e. the litigating public, courts will always have authority to compel or enforce the exercise of the power by the statutory authority. The courts would then be compelled to issue directions as are necessary to compel the authority to do what it should have done on its own."
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(VI) The Constitution of India has made the Supreme Court the guarantor of the fundamental rights of the people of this country. In Romesh Thapar case [1950 SCR 594 ] this Court has categorically held itself "as the protector and guarantor of fundamental rights." Merely because the earlier directions of the Court have not been effectively implemented by the governments, this can not be any justified reason for the Court to abdicate its responsibility of the protecting the fundamental rights of the people. This Hon'ble Court in its several judgments has held that whenever this Court is approached by the citizens of this country under Article 32 of the Constitution for protection of their fundamental rights, it is the obligation, cast upon this Court by our constitution, to take immediate and appropriate remedial measures.
This extract is taken from Prem Chand Garg v. Excise Commr.,(1963 Supp (1) SCR 885, 9
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(VII) It is respectfully submitted that a division bench of this Hon'ble Court is always bound by the Judgment of a larger bench of this Hon'ble Court. In the present case, the aforementioned judgment regarding road-safety measures in Delhi, being a judgment of a three judge bench on this very issue, is clearly binding on the Division bench of this Hon'ble Court. However, if this Hon'ble Court finds that the said judgment of three judge bench is not correct and it can not be followed, then the present case will have to be referred to a larger bench. This Hon'ble Court in its constitution bench judgment, Pradip Chandra Parija vs. Pramod Chandra Patnaik, (2002)1 SCC 1 has laid down the law in this regard, which is as follows;
This extract is taken from Pradip Chandra Parija v. Pramod Chandra Patnaik,(2002) 1 SCC 1, at page 4 :
"6. ….In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.
B. SUBMISSIONS ON THE MERITS OF THE PETITION
(I) The Petitioner in its affidavit dated 20th February 2006 had given some suggestions (pg no. 303-307) mainly based on the research paper by Dr. T.S. Reddy, Head, Traffic & Transportation Division, Central Road Institute and Purnima Parida, Scientist in Central Raod Research Institute, New Delhi (pg no. 128-136) and another research paper "Social cost of road traffic crashes in India" by Mr. Dinesh Mohan, Henry Ford Professor for Biomechanics and Transportation Research and Injury Prevention Programme, IIT, New Delhi (pg no. 137-146). The Petitioner had broadly categorized the remedial steps to improve road safety measures under four heads:
(i) improving road conditions and its infrastructure;
(ii) changes in traffic laws and making its enforcement effective;
(iii) educating people regarding road safety and
(iv) proper medical facilities.
Some of the important suggestions under the aforementioned sub-heads are as follows:
• It is also important that separate lanes should be marked for non-motorized traffics, two wheelers etc. particularly on the roads which carry heavy traffics.
• Speed governors should be mandatory for commercial vehicles like trucks so that they cannot drive beyond certain speed limit and it should be effectively enforced.
• It is also important that speed brakers should be properly marked so that drivers can see them from distance and reduce the speed of vehicles accordingly.
• Reflectors should be mandatory for non-motorized traffics so that they can be visible during night also.
• Construction of bypasses is also very important so that national highways, state highways and other district roads, which carry huge quantum of fast moving vehicles, do not pass through the city.
• Road Development of divided roads with medians and rectification of sight distance at blind corners are very important in reducing road accidents. The roads need to have divided lanes with obstructions installed in order to reduce the glare of vehicle headlights coming from opposite direction.
• One thing, which now can easily be done, is the video recording of the crossing or any signal or any section of the road, which is supposed to be more accident-prone. This will definitely reduce the number of offenders, which go undetected.
• It is necessary that at every district there should be at least one casualty or trauma centre equipped with all the modern facilities so that the injured person can immediately get proper medical treatment. Ambulance should be available even at highways so that the injured person can be taken to the hospital without any unnecessary delay.
(II) This Hon'ble Court in its order dated 24th February 2006 directed to all the respondents' "let the Union of India and the States to file reply to the suggestion proposed by the Petitioner."
(III) The Petitioner has filed its analysis of the responses given by the States at page no. 416-430 & 562-566. It is apparent from the replies of the respondents that all the Respondents are agreeing with most of the suggestions given by the Petitioner. They have also claimed that some of the suggestions given by the Petitioner are already being implemented. However, the responses of the Respondents in this regard are quite general and vague. It is not clear whether any step is being taken at the ground level by the Respondents or not or only decisions on papers have been taken. In the case of West Bengal, particularly, there is too much generality in its response as most of the times; it has simply stated that the suggestion of the Petitioner is being implemented wherever possible. Similarly, Delhi has also said at several places that it is a good suggestion and should be implemented. At many places, Karnatka has also said that this is a good suggestion and now it will enlighten the concerned department. As far as Union of India is concerned, at several places, it has absolved itself from any responsibility by stating that it is within the state's jurisdiction.
(IV) However, there are some suggestions in which there is almost consensus that they are good suggestions and they should be implemented and directions in this regard should be issued as they are not being implemented in all the states so far. For example:
(a) Commercial vehicles should be fitted with speed governors;
(b) Reflectors should be mandatory for non-motorized traffics;
(c) video recording of the crossing or any signal or any section of the road, which is supposed to be more accident-prone (however, some have expressed their concerns regarding feasibility at every place);
There are other suggestions, which though the Respondents consider good suggestions but find difficult to fully implement them due to lack of resources, infrastructures etc. like
(a) Construction of by pass;
(b) Lighting all the roads; (difficult to implement in National Highways Crossing through rural areas)
(c) Separate lanes for non-motorised traffic;
(d) Providing ambulances for providing quick medical facilities to the victims of road accidents.
It is submitted that the Petitioner society has moved this court in public interest so that by the intervention of this Hon'ble Court relevant and effective guidelines are put in place and are enforced in a proper manner throughout the country to safeguard and protect the fundamental right of the people guaranteed to them under Article 21 of the Constitution. The object and thrust of the present petition is to remove serious shortcomings or inadequacies in the present road safety measures so that this gigantic problem of road accidents causing deaths, fatal injuries etc. can be minimized. It would be relevant to mention here that India like many other developing countries, is witnessing a mind-boggling increase in the number of vehicles clogging to roads. As per the information provided by the Institute of Road Traffic Education, a Delhi based NGO, each year road traffic injuries take lives of 1.2 million people around the world and India accounts for about 10 percent of road accident fatalities worldwide (at page no. 308-311).This rapid increase in no. of vehicles requires more exhaustive and foolproof road safety measures in order to make driving on roads and highways safe.
(Prashant Bhushan)
Counsel for the Petitioner
