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Dr. C.S Subba Rao And Another v. The Secretary To Govt. Of A.P Transport Dept. And Others
Judgment Summary — B. Sudershan Reddy, J.
Factual and Procedural Background
Two practicing advocates of the Andhra Pradesh High Court, Dr. (Prof.) C.S. Subba Rao and Mr. S.N. Rao, filed a writ petition under Article 226 of the Constitution of India in public interest seeking directions to respondents to implement the provisions of Sections 128 and 129 of the Motor Vehicles Act, 1988, requiring compulsory wearing of protective headgear (helmet) by two-wheeler drivers and pillion riders. The petitioners described high numbers of two-wheeler deaths and injuries in Hyderabad and the State, advanced factual reasons why two-wheelers are vulnerable to accidents, and urged strict enforcement of the helmet provisions.
The Court issued notices to respondents. The Inspector General of Police (Headquarters), A.P., filed an affidavit conceding that Section 129 of the Act and Rule 437 of the Andhra Pradesh Motor Vehicles Rules prescribe mandatory wearing of protective headgear, and that substantial accidental deaths due to head injuries are reported. The affidavit explained that although helmet-wearing was made compulsory in 1989, the Government later issued G.O.Ms. No. 303, Transport, dated 23-12-1989 directing that helmet-wearing be optional, and that Transport and Police officials were, in consequence, not insisting on helmet use.
The State's counter affidavit framed the G.O. as a policy decision reflecting the State's discretion and stated that the question whether helmet use should be compulsory was under governmental reconsideration. The principal legal question before the Court was whether the Government could issue a notification (G.O.Ms. No. 303 dated 23-12-1989) making the wearing of protective headgear optional under Section 129 of the Motor Vehicles Act, 1988.
Legal Issues Presented
- Whether the State Government could issue the notification G.O.Ms. No. 303, Transport, dated 23-12-1989 directing that the wearing of protective headgear (helmet) under Section 129 of the Motor Vehicles Act, 1988 be optional for persons driving or riding motorcycles, including scooters and mopeds.
- Whether an executive notification (G.O.) of the nature of G.O.Ms. No. 303 can operate to grant a total or wholesale exemption from the mandatory requirement in Section 129 without the State framing rules under the proviso to Section 129.
Arguments of the Parties
Petitioners' Arguments
- The petitioners contended that due to non-wearing of helmets, hundreds of two-wheeler riders die every month in Hyderabad and elsewhere in the State; hence the mandatory provisions of the Motor Vehicles Act must be strictly implemented.
- They emphasized the inherent vulnerability of two-wheelers to minor disturbances (skidding, small stones, loss of balance), which can result in head impact even if no external head injury is visible, and stressed the safety and livelihood consequences for families if drivers and pillion riders do not wear helmets.
- The petitioners sought enforcement of Sections 128 and 129 to ensure compulsory wearing of protective headgear.
Respondents' / State's Arguments
- The Inspector General of Police acknowledged that Section 129 and Rule 437 prescribe mandatory helmet-wearing, but explained that after initial compulsory requirement in 1989, the Government issued G.O.Ms. No. 303 (dated 23-12-1989) making helmet-wearing optional because of protests and demands by a large section of citizens; as a result, enforcement was relaxed.
- In the counter affidavit the State contended that G.O.Ms. No. 303 reflects a policy decision of the State and that the question of making helmet-wearing compulsory is a policy matter under governmental reconsideration.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ajay Canu v. Union of India (Supreme Court) | Considered constitutional validity of Rule 498-A (Andhra Pradesh Motor Vehicles Rules) and a Commissioner of Police notification making crash helmets compulsory; upheld such a rule/notification as aimed at public safety and not violative of freedom of movement. | The High Court applied the same interpretive principle to Section 129 of the Motor Vehicles Act, holding that the provision reflects a public policy mandating helmet-wearing for safety and that such a mandate does not curtail fundamental freedom of movement; the Supreme Court's reasoning supported the conclusion that mandatory helmet requirements are constitutionally permissible and protective of public welfare. |
Court's Reasoning and Analysis
The Court commenced with a textual analysis of Section 129 of the Motor Vehicles Act, 1988 (a central enactment). It noted that the plain language of Section 129 makes it clear that every person driving or riding on a motorcycle in a public place shall wear protective headgear conforming to Bureau of Indian Standards. The Court observed that the only explicit exemption in the section is for a Sikh wearing a turban.
The Court then addressed the scope of the State Government's power under the second proviso to Section 129, which permits the State to make rules "for providing such exceptions as it may think fit." The Court reasoned that the proviso authorizes the framing of rules to provide exceptions in the exercise of discretion, but it does not authorize the State to grant a total exemption from the statutory requirement itself. In particular, the Court held that the power to "provide for such exceptions as it may think fit" does not include power to grant a wholesale or complete exemption from the operation of Section 129, because such an interpretation would defeat the object of the Act.
The Court further found that there were no rules actually framed by the State providing exceptions to Section 129. Instead, what was issued was a Government Order (G.O.Ms. No. 303 dated 23-12-1989) declaring helmet-wearing optional. The Court distinguished the issued notification from formal rules made under the proviso and concluded that issuance of the G.O. in purported exercise of the rule-making power was not authorized by Section 129.
Relying on the Supreme Court's treatment in Ajay Canu v. Union of India of a local rule and police notification (Rule 498-A and the Commissioner of Police notification), the Court noted that mandatory helmet rules are for public benefit and safety and do not infringe fundamental rights pertaining to movement. The Court rejected the contention that helmet requirement is a mere policy matter for the executive; rather, it concluded that the public policy is already embodied in the mandatory statutory provision and the executive cannot adopt a policy contrary to the Act.
On these bases, the Court concluded that G.O.Ms. No. 303 was issued ultra vires the State's powers under Section 129 and could not stand. The Court accordingly set the G.O. aside and directed respondents to implement and enforce Section 129, leaving to the State Government the power to make rules providing such exceptions as it may think fit and proper in accordance with law.
Holding and Implications
Holding: The Court set aside G.O.Ms. No. 303, Transport, Roads & Buildings (Transport-II) Department, dated 23-12-1989, as ultra vires Section 129 of the Motor Vehicles Act, 1988, and directed the respondents to implement and enforce Section 129 of the Act (subject to such exceptions as the State Government may lawfully provide by rules).
Implications:
- Direct effect: The Government Order making helmet-wearing optional is quashed and respondents are directed to enforce the statutory requirement of Section 129 that protective headgear be worn by persons driving or riding on motorcycles in public places, unless the State legitimately frames rules under the proviso to provide limited exceptions.
- Rule-making: If the State believes exceptions are appropriate, it must exercise its rule-making power and frame rules in accordance with law; the executive cannot rely on the G.O. to grant a blanket exemption from the statutory mandate.
- Precedential note: The Court applied existing Supreme Court reasoning (Ajay Canu) in support of its interpretation. The opinion does not purport to create a novel legal principle beyond applying Section 129's plain meaning and controlling precedent; no broader new precedent was announced by this judgment beyond its application to the facts before the Court.
Disposition: The writ petition was disposed of. No order as to costs.
JUDGMENT B. Sudershan Reddy, J.
1. Dr. (Prof.) C.S. Subba Rao and Mr. S.N. Rao, practicing advocates of this Court invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India in purported public interest and accordingly pray for issuance of appropriate directions directing the respondents herein to implement the provisions of Sections 128 and 129 of the Motor Vehicles Act, 1988 (for short 'the Act') requiring compulsory wearing of protective headgear (helmet) by two wheeler drivers and pillion riders.
2. In the letter addressed to the Honourable the Chief Justice, Mr. Rao (first petitioner) inter alia states that
"due to non-wearing of helmets every month hundreds of two wheeler riders are dying in Hyderabad city and in rest of the State. So this mandatory provision of the Motor Vehicles Act must be strictly implemented forthwith."
3. The petitioners further state that two wheeler vehicle is very vulnerable as its balance can be tilted with a slight touch by another vehicle, skidding and individual losing balance due to absent mindedness. They have given variety of reasons for the fall of a scooter by itself. It is further stated that
"two wheeler can fall on its own if a small stone negotiates its front wheel tyre and when the driver or the pillion rider also falls and dashes his head against the pavement or a stone there will be a visible or invisible damage. Even though no head injury may be seen the brain inside will get the shock of the accident whenever the head hits against hard matter on the road."
4. It is further averred that the leave alone the individual and the pillion rider who ventures to ride with the courageous driver both not wearing the Helmets, the fate of the members of their family depending on them for their livelihood will be deplorable. No sensible man whether in the medical or legal profession, be a social worker or a politician ought to oppose this helpful device of wearing a crash helmet for the safety of both the two-wheeler driver and its pillion rider.
5. It is under those circumstances, the petitioners invoke the jurisdiction of this Court under Article 226 of the Constitution of India in purported public interest.
6. This Court having taken up the writ petition on file directed notices to be served upon the respondents herein. Notices are accordingly served on all the respondents. In response to the notices, the Inspector General of Police (Headquarters), A.P., Hyderabad filed a detailed affidavit, in which it is conceded that Section 129 of the Act and Rule 437 of the Andhra Pradesh Motor Vehicles Rules prescribe that the wearing of protective headgear is mandatory while driving a two-wheeler in a public place. It is also conceded that many accidental deaths are being reported due to head injuries to the two-wheeler drivers. In the year 1999 alone 1250 two wheelers were involved in road accidents, whereas in the year 2000, up to 30-4-2000, 466 two wheelers were involved in road accidents in Hyderabad City alone. The Inspector General of Police proceeds to state that in the year 1989 wearing of headgear was made compulsory in Andhra Pradesh but due to protest and demand by the large section of citizens the Government of Andhra Pradesh issued G.O.Ms. No. 303, Transport, dated 23-12-1989 directing the wearing of headgear as optional. It is under those circumstances, the Transport and Police Officials are not insisting the public for wearing helmets.
7. In the counter affidavit, it is, however, contended that the decision of the Government vide G.O.Ms. No. 303, dated 23-12-1989 reflects the policy decision of the State, and the question as to whether the wearing of such headgear is to be made compulsory being a policy matter is under re-consideration of the government.
8. The question that falls for consideration is as to whether the Government could have at all issued notification vide G.O.Ms.No.303, dated 23-12-1989 directing that wearing of protective headgear (Helmet) under Section 129 of the Motor Vehicles Act, 1988 to be optional in respect of every person driving of or riding on a motor cycle including scooter and moped?
9. In order to consider the said question, it is necessary to notice Section 129 of the Act, which is a piece of central legislation:
129. Wearing of protective headgear: Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear protective headgear conforming to the standards of Bureau of Indian Standards:
Provided that the provisions of this section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban:
Provided further that the State Government may, by such rules, provide for such exceptions as it may think fit.
Explanation: "Protective headgear" means a helmet which,-
(a) by virtue of its shape, material and construction, could reasonably be expected to afford to the person driving or riding on a motor cycle a degree of protection from injury in the event of an accident; and
(b) is securely fastened to the head of the wearer by means of straps or other fastenings provided on the headgear.
10. A plain reading of Section 129 of the Act makes it clear that every person while driving or riding on a motorcycle of any class or description in a public place is required to wear protective headgear (helmet) conforming to the standards of Bureau of Indian Standards. The only exemption that is made is in favour of a person who is a Sikh and that too if he is, while driving or riding on a motor cycle, in a public place, wearing a turban and no further exemption whatsoever is made in favour of any other class of persons.
11. However, the State Government is clothed with the power to make rules for providing such exceptions as it may think fit. The State government can always make rules and provide for exceptions in the matter of wearing of protective headgears.
12. In the counter affidavit, it is not stated that the State Government in exercise of its rule making power made any such rules making any such exceptions in its discretion.
13. The proviso to Section 129 of the Act does not authorise the State Government to make rules providing for total exemption from the requirement of wearing of protective headgears. The said proviso merely authorises the State Government to make rules providing for such exceptions as it may think fit. But under no circumstances, the State government can grant a total exemption or exception from the operation of provisions of Section 129 of the Act. The proviso does not confer any such power to grant wholesale exemption from the operation of the Section itself. Power conferred upon the State Government to provide exceptions in its discretion does not include the power to grant total exemption from the operation of provisions of the Act. Any such interpretation may result in defeating the very object of the Act.
14. Suffice it to notice that there are no rules as such framed by the State Government providing for exceptions from the operation of the provisions of Section 129 of the Act which requires mandatory wearing of protective headgear by the motorcycle drivers and riders while driving or riding on motor cycles of any class or description in a public place.
15. G.O.Ms. No. 303, Transport, Roads & Buildings (Transport-II) Department, dated 23-12-1989 is stated to have been issued in purported exercise of the power conferred by the second proviso to Section 129 of the Motor Vehicles Act, 1988 (Act 59 of 88). The Government in its discretion and wisdom thought it fit to direct the wearing of protective headgear (helmet) to be optional in respect of every person driving of or riding on a motorcycle including scooter and moped. The notification vide G.O.Ms. No. 303, dated 23-12-1989, in our considered opinion, is ultra vires.
16. The second proviso to Section 129 of the Act merely enables the State Government to make rules for providing such exceptions as it may think fit. The State Government undoubtedly is clothed with the jurisdiction to frame the rules in order to provide such exceptions as it may think fit in the matter of wearing of protective headgear by the person while driving of or riding on a motor cycle in a public place. It does not authorise the State Government to make rules altogether exempting or granting exceptions from the operation of Section 129 of the Act itself. The State Government can only provide for such exceptions as it may think fit. At any rate, in the instant case, there are no rules as such framed by the Government. Instead, it had chosen to issue the notification vide G.O. Ms. No. 303, Transport, dated 23-12-1989.
17. We find it difficult to accept the contention raised in the counter affidavit that the requirement of wearing of headgear by a motorcycle driver or rider is under the realm of policy decision and it is always open to the State Government to frame such policy as it may consider necessary in the broad public interest. The public policy requiring to wear headgear itself is reflected in Section 129 of the Act which is mandatory in its nature. The executive cannot have its own policy contrary to the provisions of the Act.
18. The constitutional validity of Rule 498-A of the Andhra Pradesh Motor Vehicles Rules, 1964 and notification dated July 8, 1986 issued by the Commissioner of Police, Hyderabad in exercise of his powers under Section 21 (1) of the Hyderabad City Police Act, inter alia directing that in order to ensure adequate safety of two-wheeler riders, wearing of protective helmets to be compulsory for riders of motor-cycles and scooters, came up for consideration before the Supreme Court in Ajay Canu V. Union of India1.
19. Rule 498-A as it stood at the relevant time provides as follows:
"498-A. Crash helmets to be worn.- No person shall drive a motor cycle or a scooter in a public place unless such driver wears a crash helmet:
Provided that nothing in this rule shall apply to a person professing Sikh religion and wears a turban."
20. The Apex Court while dealing with the question of constitutional validity of the said Rule observed:
"There can be no doubt that Rule 498-A is framed for the benefit, welfare and the safe journey by a person in a two-wheeler vehicle. It aims at prevention of any accident being fatal to the driver of a two-wheeler vehicle causing annoyance to the public and obstruction to the free flow of traffic for the time being. It is difficult to accept the contention of the petitioner that the compulsion for putting on a headgear or helmet by the driver, as provided by Rule 498-A, restricts or curtails the freedom of movement. On the contrary, in our opinion, it helps the driver of a two-wheeler vehicle to drive the vehicle in exercise of his freedom of movement without being subjected to a constant apprehension of a fatal head injury, if any accident takes place. We do not think that there is any fundamental right against any act aimed at doing some public good."
21. Same principle of interpretation would be applicable for the interpretation of Section 129 of the Act. The public policy enshrined and inbuilt in Section 129 of the Act is loud and clear. It is mandatory in its nature. It aims at prevention of any accident being fatal to the driver of a two-wheeler vehicle. Such wearing of headgear, in our considered opinion, does not curtail or restrict the freedom of movement in whatsoever manner.
22. It is needless to observe that all the statutory authorities including the Government is bound to implement and enforce the enactments enacted by the law making bodies. It is nobody's case that Section 129 of the Act has not come into force as on the date. Therefore, the respondents cannot refuse to implement the provisions of the Act.
23. In such view of the matter, we find it difficult to sustain G.O.Ms. No. 303, Transport, dated 23-12-1989 issued by the Government in purported exercise of power under Section 129 of the Act. It is ultra vires.
24. For the aforesaid reasons, G.O.Ms.No.303, Transport, Roads & Buildings (Transport-II) Department, dated 23-12-1989 issued by the Government making wearing of protective headgear (Helmet) as optional in respect of every person driving of or riding on a motor cycle including scooter and moped is set aside as the same is ultra vires the Section 129 of the Act.
25. Consequently, there shall be a direction directing the respondents herein to implement and enforce the provisions of Section 129 of the Act with such exceptions as the State Government may think fit and proper in its discretion, for which purpose the State Government may have to make rules in accordance with law.
26. The writ petition is accordingly disposed of. No order as to costs.
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