Judgment:
ORDER
J.B. Koshy, J.
1. These two original petitions relate to implementation of Section 128 and 129 of the Motor Vehicles Act, 1988. Therefore, they are disposed of together. Section 128 of the Motor Vehicles Act reads as follows :
'128. Safety measures for drivers and pillion riders :
(1) No driver of two wheeled motor cycle shall carry more than one person in addition to himself on the motor cycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the Motor Cycle behind the driver's seat with appropriate safety measures;
(2) In addition to the safety measures mentioned in Sub-Section (1) the Central Government may prescribe other safety measures for the Drivers of two wheeled motor cycles and pillion riders thereon.'
Section 129 of the Motor Vehicles Act reads as follows :
'129. Wearing of protective head gear :
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 a protective head gear of such description as may be specified by the State Government by rules made by it in this behalf, and different descriptions of head gears may be specified in such rules in relation to different circumstances or different class or description of motor cycle;
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 fastening provided in the head gear.'
O.P. No. 5245 of 1993 is filed for a direction to forbear the respondents from implementing Section 129 as the above provisions are violative of Article 19 of the Constitution of India. It is stated that it is filed by a citizen based on public interest and on behalf of all two wheeler drivers and pillion riders. O.P. No. 17480 of 1998 is filed for the issuance of a mandamus to the respondents to implement Section 128 and 129 of the Motor Vehicles Act. According to the petitioner in O.P. No. 17480 of 1998, in majority of two wheeler motor cycle accidents death is caused due to head injury. In spite of the representations the provisions are not implemented. The safety of the citizen has to be kept intact by the State and State has duty to Implement the above provisions. This petition was filed by a public spirited citizen who is an advocate by profession. Immediate provocation for filing this petition is, it is stated, the tragic death of his neighbour by head injury due to scooter accident, which according to medical opinion could have been avoided by wearing a helmet.
2. In O.P. No. 5245 of 1993 the State has taken a contention that the Parliament had considered the matter and in the interest of general public the above provisions were made. In O.P. No. 17480 of 1998 the contention of the Government is that immediate implementation of the above provisions will cause difficulties and if Court orders they will be implemented.
3. In O.P. No. 5245 of 1993 it is contended that Section 129 of the Motor Vehicles Act is unconstitutional and is violative of Article 19(1)(d) of the Constitution of India as it is unreasonable and puts restriction on freedom. It is not disputed that there is legislative competence for the Parliament to enact such legislation. The presumption is always in favour of the constitutionality of an enactment unless otherwise established as held in Madhu Limaye v. S.D.M. Monghyr, AIR 1971 SC 2486, Freedom granted under Article 19(1)(6) to move freely is subject to Article 19(1)(d) and State is not prevented from making any reasonable restriction in the interest of general public. Though the Court starts with the assumption that the legislative is the best Judge of what is good for the community and what is public interest, it is open for judicial review as held in Pathumma v. State of Kerala, AIR 1978 SC 771. But reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interest of general public, and not on the point of few persons who object to such restriction. The underlying purpose of the restriction imposed also has to be considered. As a matter of fact it is not disputed that 80% of the fatal accidents involving two wheeler are caused by head injury. Considering the directive principles especially Article 38(1) and 47 and considering the health and welfare of citizen in this welfare State and considering the object of the legislation, it cannot be stated that Section 129 of the Act is putting unreasonable restriction on the freedom guaranteed under Article 19 of the Constitution. In fact Article 21 of the Constitution of India mandates the legislature to pass such enactment, as right to life is a fundamental right. Protecting life of the citizen is important and it is the obligation of the State to protect it. Attempt to commit suicide is an offence and no one can say that it is an infringement of the right of freedom of the citizen. Right of freedom cannot be misused and Section 129 of the Act is not unconstitutional.
4. One of the contentions raised by the petitioner is that it will be against the religious canon of Jacobite Priests and Muslims, but Sikhs are only exempted. There Is discrimination and violation of Arts. 14 and 25 of the Constitution of India. It is not disputed that caps used by the Orthodox/ Jacobite Priests does not give any protection to the head and it is made by cloth only. Similar is the case with caps of Muslims also. In any event, it is not like a Turban. Therefore, there is no violation of Article 14. No religious canon or rules were produced before this Court to show that wearing of helmet while travelling to two wheeler for safety of life is against the religion so as to attract Article 25.
5. Another complaint of the petitioner is regarding the corruption that may be committed by the Police Officials. If the two wheeler riders observe the above rule there is no scope for such allegation. It is averred that in other countries such a rule is not in existence. But Government Pleader submits that in all developed countries wearing of helmet by two wheelers is made compulsory. The law is made by the Parliament and not by authorities in Kerala State. Therefore allegation of mala fide to help the helmet manufacturers cannot be alleged. So long as provisions of the Act are there the authorities are bound to obey the same. It was pointed out that it will cause much inconvenience to ladies and pillion riders and in certain States pillion-riders are exempted from this provision. Section itself authorises the State Government for granting exemption by rules. Therefore, if pillion riders or ladies or senior citizens or any class of citizens can make representation to the State Government to exempt and if such representations are received it shall be considered by the Government and pass such rules giving exemption considering the representations, as it may deem fit, without forgetting the underlying principle and object of legislation and mandate of Article 21 of the Constitution of India and also Inconveniences and practical problems raised by them.
6. The next question to be considered is whether a statutory provision validly made can be refused to be implemented by the officials. The matter was considered by a Division Bench of the Delhi High Court in Pt. Parmanand Katara v. Union of India, AIR 1998 Delhi 200 and found that the above provisions are to be Implemented and direction was issued to all officials to strictly implement the provisions of the Act and violators should be punished. In that case it is also directed that the Commissioner of Police should take appropriate action against the officials in case they did not Implement the provision.
7. The legislature has framed the enactment after considering various circumstances. The elected representatives of the people, that is member of Parliament, have considered the matter and passed the law. The Executives cannot say that the Acts of Parliament duly passed by the Parliament will not be implemented. It is presumed to have taken into consideration all the relevant aspects at the time of framing of the Statute. Once an Act has come into force, authorities cannot ignore the provisions of the Act on the ground of inconvenience or there are some difficulties in implementation, so long as no rule exempting the provisions as authorised in the Act is made. The predominant object incorporating this provision is to avoid head injury. Eventhough it may be inconvenient to wear helmet, wearing of helmet will give protection to drivers and pillion riders of two wheeled motor cycles. Once an Act has come into force, there is no fundamental right to disobey the rule which is enacted for the public. These sections are enacted in exercise of the legislative power of the Parliament and the provisions are not violative of Arts. 14, 19 and 25 of the Constitution of India as alleged by the petitioner in O.P. No. 5245 of 1993.
8. Petitioner in O.P. No. 17480 of 1998 described various accidents caused due to head injury to the two wheeled motor cycle drivers. It is also pointed out that number of two wheelers are in increase and two wheeler accidents are also in increase. It is not disputed by the Government Pleader that most of the deaths of the two wheeler drivers are due to head injury. In these circumstances there is no reason for non-implementation of Section 129 of the Motor Vehicles Act. He pleaded that he has not requested the Court to make any new rule or for a direction to the Government to make any rule, but only prays for a direction to the Executive machinery to implement already existing law enacted by the Parliament. It is also noted that wherever exemption is necessary that has also been mentioned in the section itself and the State Government is also authorised to frame rules granting further exemption.
9. In the above circumstances, I direct the State of Kerala and Director General of Police to see that Section 129 of the Motor Vehicles Act is strictly implemented. They should issue Circulars and a time of three months should be given so that existing drivers and pillion riders can purchase helmets. Government should also publish this matter so that all two wheeler drivers and pillion riders can be aware of this and authority should strictly implement the above provision within three months. Non-implementation of the provisions of the Act passed by the Parliament will be an offence. The two wheeler riders are also directed to fully cooperate for implementation of the provision. Being a welfare State, State is also interested in the welfare of the citizen and two wheelers cannot be allowed to say that they are not interested in wearing helmet and therefore, they should be left free and allowed to break the law legally laid down even if it amounts to commission of suicide.
In the above circumstances, O.P. No. 17480 of 1998 is allowed and O.P. No. 5245 of 1993 is dismissed.