In absence of a clear legislative mandate there are two popular dispositions inherent in lawyers and judges. The first is a liberal philosophy which junks formalistic, technical approaches in favor of equitable outcomes. The second one appears as its older conservative cousin looking narrowly at the existing law and likes to stick within the legislative mandate. Hence when there is an absence of a legislative provision rather than indulging in some clever statutory construction, the conservative court stays its hands. Usually when the first one is invoked it is prefaced with hoary rhetorical phrases such as, “the court cannot be a mute spectator” and “we cannot sit idle”. The second one is much more of scrooge on this account when it invokes, “judicial restraint”.
Both have its share of adherents and dissidents however it is more often due to the result as opposed to the approach which is undertaken by a Court. The result draws the attention after which the mental pincers dissect the judgment.
Let us take two recent rulings relating to traffic management and road safety which have invited considerable attention in the mainstream press. Both these rulings affect me personally as well as other commuters who travel by cars.
The first is the judgment of the Hon’ble Supreme Court in Avishek Goenka vs Union Of India where it banned car owners from installing films on their cars. This judgment which was rendered in a public interest petition, justified such an imposition morally on the basis that cars with black films reduced the ability of police to detect rapes and crimes which were committed inside cars. To give it an appearance of being within the legislative framework the Court analyzed and applied provisions of the Motor Vehicles Act. However having done so, it did it somewhat problematically. The Motor Vehicles Act or the rules made under it no where expressly prohibited owners from installing such films after the purchase of the car. However they did state that the owners shall not modify the car from the specifications contained the certificate of registration. It is pertinent to note that the certificate of registration does not contain the transparency level of films since car manufactures do not install them in the first place itself. It is a custom installation which is usually done by the customer. Infact there is enough indication in the rules that they do not contemplate for the transparency to be installed at the time of manufacture.
This case becomes all the more curious since the one of the judges in the Avishek Goenka case passed a similar order in Court in Its Own Motion v. Union of India in 2007 in the Delhi High Court, ordering a total prohibition on installation of black films on cars. This 2007 Order came under a challenge by film manufactures and dealers and the Delhi High Court set it aside. I am extracting parts of the Order dated 21.09.2001 by which the ban was set aside:
The rule does not forbid manufacture or use of glass with a higher visual transmission than the minimum prescribed, nor does the rule forbid use of films on the windscreens and side windows, so long as the same do not reduce the visual transmission below the minimum prescribed by the rule. The direction issued by this Court forbidding the use of black films of “any transparency”, therefore, appears to us to be in conflict with the statutory provision made by Rule 100(2) of The Central Motor Vehicles Rules, 1989 (supra).
The Avishek Goenka judgment though cites other cases, it somehow seems to omit reference to the 2007 judgment of the Delhi High Court or the Order which set it aside. It is these deficiencies which are reasoned by me to be a product of judicial overreach.
It is not only me, prompted by this judgment, the traffic police have enthusiastically started prosecuting violators. Not only this gives the police an opportunity to increase the official coffers through fines but it also allows them take bribes by helping commuters avoid them. Many commuters who travel in cars having film transparencies of 10-20% have had such a run in and the only word which fits their experience is harassment. In many ways my analysis of Avnish Goenka is incomplete and pithy, however I would bet, anyone who has been prosecuted by the traffic police will agree that the judiciary has entered into a policy thicket.
Now let’s come to the second case and the flipside of such judicial activism. The second case concerns an Interim Order in a public interest petition which is presently pending in the Delhi High Court being Nyaya Bhoomi v. Govt. of NCT (WP(C) NO.380/2012). The petition challenges the legality of the dysfunctional 6 kilometer BRT Corridor from Chirag Dilli till Moolchand Hospital.
When I say it is dysfunctional, it is dysfunctional for the commuters who travel by cars on the narrow two lane stretch and not the lane reserved for buses. Though this is contradicted by the latest court mandated study carried out by Central Road Research Institute which states that the overall commuting time decreases on the corridor when the lane demarcation is removed most studies conducted prior to it point as to the benefit it provides lower income commuters who do not own cars. These studies even point to a decrease in traffic accidents. From a purely legal perspective though the case involves issues of public interest, the Delhi Government has made a conscious policy decision to go with the BRT on the basis of such studies and now wants to extend it all over the National Capital Region.
This clearly seems like one of the same cases of judicial overreach where the Court would often stay its hands. However car commuters do not see it this way. They will tell anecdotal evidence as to the number of minor traffic accidents, the massive traffic pile ups and the flawed construction to commend the court. These people would include me. These people will also include the same class of commuters who curse the discretionary power of courts when they sit in a smoldering hot car with no window films.
Hence, ideological consistency as opposed to consistency in personal interest, is well, convenient. It is a virtue which is not only difficult to preach but also to practice. All this may seem obvious but we do not pause to factor this, given how well we reason with ourselves to give an external veneer of uniformity to our actions. I think more than anyone, its lawyers who are most susceptible to this, since we are obligated not to have a personal disposition in our professional representations. So our overall position often depends on which lane we drive in. Even though they may be low cement dividers which demarcate the lanes, there is always the temptation to jump over to the lane which has faster flowing traffic. That is the burden of ideology and the temptation of convenience. Sometimes tipping over may not be such a bad thing, given you throw away the shackles of self rationalization and consciously realize you are doing it.
(Picture from Comic Star Trek Vol 2 #11, The Trial of James T. Kirk, Part 2 of 3)
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