R.Muthukrishnan v. The Secretary to Home DepartmentGovernment of Tamil NaduSecretariat

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 31.08.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MS. JUSTICE K.SUGUNAW.P. NOS. 18708, 18665 & 19187 OF 2007ANDM.P. NOS. 2 OF 2007W.P. NO. 18708 OF 2007 :R.Muthukrishnan.. Petitioner - Vs -The Secretary to Home DepartmentGovernment of Tamil NaduSecretariat, Chennai 600 009... Respondent W.P. NO. 18665 OF 2007 :J.S.N.Nimmu Vasanth.. Petitioner - Vs -1. The State of Tamil Nadu rep. by Secretary to Government (Transport) Home Department Government of Tamil Nadu Secretariat, Fort St. George Chennai 600 009.2. The Special Commissioner and Transport Commissioner Government of Tamil Nadu Ezhilagam, Chepauk, Chennai – 5... Respondents W.P. NO. 19187 OF 2007 :K.Pushparaj.. Petitioner - Vs -1. The Secretary to Government Home (Transport) Department Secretariat, Fort St. George Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Special Commissioner and Transport Commissioner Ezhilagam, Chepauk, Chennai – 5. .. Respondents W.P. No.18708 of 2007 filed for the issuance of a writ of certioraricalling for and quashing the order G.O. Ms. No.292, Home (Tr. V)Department, dated 22nd February, 2007, issued by the respondent holding itas arbitrary, patently illegal, unconstitutional for it lacks authorityand is inconsistent with or in derogation of Article 19 (1) (d) andArticle 21 of the Constitution of India and further for the reason thatthe said order is misconceived and impracticable of its implementation.W.P. Nos. 19187 & 18665 of 2007 filed for the issuance of a writ ofcertiorari calling for and quashing the order G.O. Ms. No.292, Home (Tr.V) Department, dated 22nd February, 2007, and quash the same.For Petitioner : Mr. R.Muthukrishnan in WP 18708/07 (Party-in-Person) Ms.J.S.N.Nimmu Vasanth in WP 18665/2007 (Party-in-Person) Mr. M.Gnanasekar in WP 19187/2007 (No Appearance)For Respondents : Mr. K.Elango, Spl. G.P. COMMON ORDERS.J.MUKHOPADHAYA, J.In all these writ petitions as common order is under challenge andcommon question of law involved, they were heard together and disposed ofby this common judgment.2. The petitioners have challenged G.O. Ms. No.292 dated 22nd Feb.,2007, issued from Home (Tr. V) Department, Government of Tamil Nadu,Chennai. By the said order, giving reference to Section 129 of the MotorVehicles Act, 1988 (hereinafter referred to as 'MV Act'), wearing ofheadgear (helmets) have been made compulsory for drivers and pillionriders of all two wheelers.3. Mr.R.Muthukrishnan, advocate of this Court, who is the petitionerin W.P. No.18708/07, made the following submissions :- https://hcservices.ecourts.gov.in/hcservices/ a) The impugned order is arbitrary, patently illegal andunconstitutional, being in derogation of Article 19 (1)(d) of theConstitution of India as it restricts the freedom of movement of twowheeler riders and pillion riders.b) The said order infringes the personal liberty protected underArticle 21 of the Constitution of India.c) The order being misconceived, it is impracticable forimplementation of such order.Further, according to the petitioner, there are about 1.5 Crores ofcitizens living in the State of Tamil Nadu. They are living in ademocratic country having civil rights. No person can force such personsto wear headgear or helmet, as in no manner it will affect any othercitizen of the country. The safety of a person can be seen by the personconcerned and no law could be enforced on the ground of safety of a personconcerned, who do not want it.The petitioner, Mr.Muthukrishnan, has also challenged the authority ofthe person, i.e., the Secretary to Government, Home (Tr. V) department,Government of Tamil Nadu, who signed and issued G.O. Ms. No.292 dated 22ndFeb., 2007, on the ground that he has no jurisdiction to issue such order,which could be done by issuance of a rule under the MV Act. Further,according to him, Section 129 of the MV Act is declaratory in nature andnot mandatory. It is an enabling provision to enforce such law, which isa benign Act and could be enforced only by the State in exercise of powerconferred by Section 138 by framing a rule. The Secretary to theGovernment, according to him, having no law making power, is incompetentto issue any order, including the impugned order in question.It was further submitted by Mr.Muthukrishnan, that the Bureau ofIndian Standards has not prescribed any standard of design of a helmet asevident from their letter dated 2nd March, 2007, wherein it is stated thatthe Indian Standards for protective helmets for scooter and motor cycleriders is prescribed in IS 4151 : 1993 and as on the date this IS 4151 isnot covered under mandatory BIS certification as per provision of clause14 of BIS Act, 1986. The prescription of a helmet as per requirement ofBureau of Indian Standards as laid down under the impugned order dated 22ndFeb., 2007, according to the petitioner, has been inserted withoutapplication of mind.4. The petitioner, Ms.J.S.N.Nimmu Vasanth, in W.P. No.18665/07appeared in person and adopted the arguments advanced by Mr.Muthukrishnan,who is the petitioner in the first case. She relied on second additionalaffidavit and submitted that though there was no direction given by thiscourt in any of the writ petition, but the impugned G.O. Ms. No.292 dated22nd Feb., 2007, was issued on the presumption as if there was a directiongiven by this Court in another case. She relied on Section 212 of the MVAct to suggest that public opinion ought to have been obtained prior toimplementation of Section 129, but the impugned order dated 22nd Feb.,2007, was issued without obtaining public opinion. Reliance was placed onnotification contained in G.O. Ms. No.797, Home (Tr. V) Department dated4th June, 2007, published in the Extraordinary Tamil Nadu Government https://hcservices.ecourts.gov.in/hcservices/ Gazette, wherein, in exercise of powers conferred by 2nd proviso to Section129 of MV Act, categories of persons, i.e., those who belong to 'MeivazhiSabha', who wear turban while they ride on motor cycle, women and childrentravelling in motor cycle as pillion riders, proposal has been made toexempt them and for that objections or suggestions have been called for asrequired by sub-section (1) to Section 212 of the said Act. According tothe petitioner, similar objection should have been called for prior toissuance of the impugned G.O. Ms. No.292 dated 22nd Feb., 2007.Ms.Nimmu Vasanth, the petitioner of W.P. No.18665/07, relied on para-3of her additional affidavit, wherein following plea has been taken :-a) Persons find wearing of helmet extremely uncomfortable and facesuffocation, excess sweating in the ear, nauseated feeling due to blockageof ears, etc.b) Ladies and girls with simple hairdos attending their day to dayactivities and having hairdos with flowers with mild or heavy jewelleryand bindi, etc., as per traditional Indian culture, when attend functionssuch as wedding, etc., it is difficult for them to wear helmet.c) People with various attire participating in fancy dresscompetitions or representing various other religious sentiments other thanturban wearing Sikhs, they also feel difficulty in wearing helmet.There are other examples given with regard to religious heads,practitioners and/or followers such as Pundits, Vadhiyars, Swamijis,Christian Fathers, Islam embracing Priests/practitioners, etc., it wassubmitted that all of them should be exempted from wearing helmets.5. Though the same order is challenged in W.P. No.19187/07, neitherthe petitioner nor any counsel on behalf of the petitioner appeared, butthe same order having been challenged and case being analogous, we havealso gone through the averments made in the writ petition and thedocuments filed therein.6. According to the State of Tamil Nadu, the Government of Indiahaving enacted law relating to compulsory wearing of helmets by twowheeler riders and pillion riders u/s 129 of the MV Act, it was cast uponthe State Government to enforce such law. The orders issued in G.O. Ms.No.292, Home (Tr. V) Department, dated 22nd Feb., 2007, is in the nature ofdirection to authorities to enforce the law. Nobody should be aggrievedif law is enforced. Further, according to the State of Tamil Nadu, helmetis the most known form of protective device to guard against possiblemajor injuries to brain cells. Advantage of wearing helmet will outweighthe temporary discomfort in not wearing them. In an accident, not onlythe motorist or the driver is affected, but also the society in generaland the MV Act envisages certain safety standards and traffic regulationsto ensure safe journey, which cannot be discontinued on the pretext ofpersonal liberty, etc. Wearing of helmet is an act of traffic regulationrather than dressing sense and it is not correct to say that Section 129of the MV Act is only advisory in nature. There being nounconstitutionality in the Government order or in the Central MotorVehicle Act, 1988 or Central Motor vehicle rules, 1989, the Act havingenacted by Government of India making wearing of helmet compulsory, it is https://hcservices.ecourts.gov.in/hcservices/ the duty of the State Government to enforce the same. The number of majoraccidents on the road is on the increase and the State Government and theauthorities have taken all possible steps to ensure adequate supply ofquality helmets. Though accident occurs due to several reasons, butwhatever the reasons, the two wheeler riders are more prone to accidentand also sustain head injuries. Helmets will certain act as a protectivedevice for averting major injuries to the brain cells and its importancecannot be excluded.7. While we agree with the submissions made on behalf of the State ofTamil Nadu, make it clear that Section 129 of the MV Act, 1988 ismandatory in nature, as will be evident from its plain reading.So far as exemption is concerned, the 1st proviso to Section 129 hasis specific with regard to Sikhs, who wear turbans while driving or ridingon two wheelers in a public place. Under the law they have been exempted.So far as the 2nd proviso to Section 129 is concerned, power has beendelegated to the State Government to provide for such exemption in othercases at it may think fit, but such power could be exercised only byissuance of rules. It is in this background, for the purpose of framingrule granting exemption in favour of one or others, such as women,children, etc., as required under sub-section (1) to Section 212,objections and suggestions have been called for vide G.O. Ms. No.797, Home(Tr. V) Department, dated 4th June, 2007, published in the ExtraordinaryGazette of Tamil Nadu. Section 129 being mandatory in nature, no separaterule is required to be framed, which could be given effect to by mereissuance of a Government circular.8. Article 166 of the Constitution deals with conduct of business of aGovernment of a State, empowers execution of Government Orders and otherinstruments in the name of the Governor in the manner as may be specifiedunder the rules (Rules of Executive Business). Under such rule, theofficials of the rank of Secretary having been empowered to execute theorders and instruments in the name of the Governor, the impugned G.O. Ms.No.292, Home (Tr. V) Department, dated 22nd Feb., 2007, issued cannot beheld to be without jurisdiction.9. The High Court, under Article 226 of the Constitution, cannotdetermine the question whether wearing of protective headgear (helmet)should be made mandatory or optional if it is uncomfortable for certainpersons or affects the hairdos of a lady. It is for the Legislature todetermine, who, should be exempted. Section 129 of the MV Act having beenenacted, all concerned, including the State Governments, are bound to giveeffect to it. In this case, we are not inclined to deliberate on theissue as to which category of persons should be exempted from wearingheadgear (helmet).10. Article 19 of the Constitution of India guarantees freedom to movefreely throughout the territory of India, apart from freedom of speech,expression, etc., it is in addition to the right to personal libertyguaranteed under Article 21. While orders violating such right cannotstand the test of Articles 19 and 21, it is always open to the State toimpose permissible restriction without interfering with the basic rights https://hcservices.ecourts.gov.in/hcservices/ to move freely or personal liberty guaranteed under Articles 19 and 21 ofthe Constitution of India. By the impugned G.O. ms. No.292 dated 22ndFeb., 2007, the Government has not restricted physical movement orpersonal liberty of any person. It is open to a person to move at anyplace with complete liberty without any restriction. But, for the purposeof movement in a vehicle no person could claim any fundamental right tomove in a vehicle in any manner the person so desires, which could beregulated by reasonable restrictions, if imposed under the law. There arereasonable restrictions imposed under the MV Act for driving a vehicle.For example, a person cannot drive a motor vehicle without a licence.Similarly, u/s 124, a person is prohibited to enter or remain in any stagecarrier for the purpose of travelling therein without a proper pass orticket.Safety measures for drivers and pillion riders may not be afundamental duty of the State, but public health being concern of theState, it is always open to a welfare State to enact the provisions forsafety measures for the drivers and pillion riders. For example Section128 of the MV Act, prohibits the driver of a two wheeler to carry morethan one person in addition to himself on a motor cycle, and no person cansit at any place except on a proper seat, which has been framed as safetymeasure not for others but for the drivers and pillion riders.11. The argument of the petitioner, Mr.Muthukrishnan that as thematter relates to how he will be leading his life is his concern and nosuggestion or direction is required from the State, cannot be accepted. Amotor vehicle, including two wheeler, cannot be taken on road withoutvalid insurance. In case of death, even though not caused by any otherperson, but the driver himself, it is not the driver of the pillion rider,who may die, their family is directly affected because of such death. Insuch case, because of the fault on the part of the driver or pillionrider, and even for no fault, the insurance company becomes liable forpayment of compensation to the family of the deceased. Therefore, itcannot be stated that State has no role to play for safety of the driveror the pillion rider of a two wheeler.12. It has been brought to out notice that a number of public interestlitigations were preferred for implementation of Section 129. Though nospecific direction was issued by the Court, during the pendency of thecase, the State of Tamil Nadu of its own implemented the law vide impugnedG.O. Ms. No.292 dated 22nd Feb., 2007 and for the purpose of grant ofexemption in appropriate cases, draft Gazette notification under 2ndproviso to Section 129 has been issued on 4th June, 2007, calling forobjections and suggestions.Learned counsel for the State has also brought to our notice that oneW.P. No.4740/05 was filed by one Mr.N.Balakrishnan against the impugnedorder dated 22nd Feb., 2007, before the Madurai Bench of this Court and thesaid case was dismissed on merits on 24th May, 2007. Another writ petitionpreferred by V.Rajalakshmi in W.P. No.13257/07, wherein the same G.O. Ms.No.292 dated 22nd Feb., 2007, was challenged was also dismissed by aDivision Bench of this Court on 12th April, 2007. https://hcservices.ecourts.gov.in/hcservices/

13. In view of the findings as recorded above and similar writpetitions having already been dismissed, we are not inclined to interferewith the impugned G.O. Ms. No.292, Home (Tr. V) Department, dated 22ndFeb., 2007 and allow the State Government to implement the order andprovision of law in its letter and spirit in respect of all, except thosewho may be excluded from the provision. There being no merit, all thewrit petitions are dismissed. Consequently, connected miscellaneouspetitions are also dismissed. However, there shall be no order as tocosts.GLNSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Secretary to Government Home (Transport) Department Secretariat, Fort St. George Chennai 600 009.2. The Special Commissioner and Transport Commissioner Ezhilagam, Chepauk Chennai – 5.3. The Secretary to to Government, Home Department Fort Saint George, Chennai 600 009.+3 ccs to Mr.R.Muthu Krishnan, Advocate Sr.No.54438.SSV(CO)dcp/31.8 W.P. NOS. 18708, 118665 & 19187 OF 2007