Upgrad LLM

judgement view


sir i had 2 judgements delivered today for my pils in sc. 285/2010 and 265/2011 but the judgements are not visible either in the judgement info. system or case status .... does it take time fr them to be updated .... sine i am pet.in person i am not well versed with the process !! can someone guide please ?? thanks.

 
Reply   
 
practicing advocate

I think it takes time to upload the judgement.
 
Reply   
 


ADVISOR

 

                                                                    1

                                         REPORTABLE
            IN THE SUPREME COURT OF INDIA
              CIVIL ORIGINAL JURISDICTION


         WRIT PETITION (CIVIL) NO. 265 OF 2011


Avishek Goenka                                     ... Petitioner
                            Versus
Union of India & Anr.                          ... Respondents



                        JUDGMENT



Swatanter Kumar, J.


1.   Alarming rise in heinous crimes like kidnapping, s*xual

assault on women and dacoity have impinged upon the right

to life and the right to live in a safe environment which are

within the contours of Article 21 of the Constitution of India.

One of the contributory factors to such increase is use of

black films on windows/windshields of four-wheeled vehicles.

The petitioner, as a public spirited person, has invoked the

extra-ordinary jurisdiction of this Court under Article 32 of the

Constitution in the present public interest litigation, praying

for certain directions to stop this menace.    According to the

petitioner, this Court should issue a writ or direction requiring

use of such safety glasses on the windows/windshields in
                                                                     2

vehicles having 100 per cent Visual Light Transmission (for

short `VLT') only and, to that extent, the petitioner challenges

the correctness of Rule 100 of the Motor Vehicles Rules, 1989

(for short "the Rules"). He also prays for prohibition on use of

black   films   on   the   glasses   of   the   vehicles,   proper

implementation of law in that behalf and finally, for taking

stringent actions against the offenders, using vehicles with

black filmed glasses. He also prays that a larger police force

should be deputed to monitor such offences.


2.   The use of black films upon the vehicles gives immunity

to the violators in committing a crime and is used as a tool of

criminality, considerably increasing criminal activities.       At

times, heinous crimes like dacoity, rape, murder and even

terrorist acts are committed in or with the aid of vehicles

having black films pasted on the side windows and on the

screens of the vehicles.    It is stated that because of non-

observance of the norms, regulations and guidelines relating

to the specifications for the front and rear windscreens and

the side windows of the vehicles, the offenders can move

undetected in such vehicles and commit crimes without

hesitation.
                                                                   3

3.   The word `tinted' means shade or hue as per the

dictionary. The rear and front and side glasses of vehicles are

provided with such shade or tint, and therefore, they are

widely referred to as `tinted glasses', which is different from

`black films'. The glasses of the vehicles having a coating of

black films cannot be termed as `tinted glasses' because they

are not manufactured as such.


4.   Besides aiding in commission of crimes, black films on

the vehicles are also at times positively correlated with motor

accidents on the roads.       It is for the reason that the

comparative visibility to that through normal/tinted glasses

which are manufactured as such is much lesser and the

persons driving at high speed, especially on highways, meet

with accidents because of use of black filmed glasses.


5.   The use of black films also prevents the traffic police

from seeing the activity in the car and communicating with the

driver of the vehicle. The petitioner also cites that the number

of fatal accidents of vehicles having black films is much higher

in India than in other parts of the world.    The black filmed

vehicles have lower visibility and therefore, the chances of

accident are increased by 18 per cent to 38 per cent due to
                                                                      4

low visibility.   He has also referred to the World Health

Organization's data, pertaining to deaths caused on roads,

which, in India have crossed that of China, though the latter

has more vehicles, population and area in comparison to

India.   A device called luxometer can measure the level of

opaqueness in windows owing to the application of black films

but this device is a scarce resource and is very scantily

available with the police personnel in India.


6.   The Court can take a judicial notice of the fact that even

as per the reports, maximum crimes are committed in such

vehicles and there has been a definite rise in the commission

of heinous crimes, posing a threat to security of individuals

and the State, both.


7.   Whatever are the rights of an individual, they are

regulated and controlled by the statutory provisions of the Act

and the Rules framed thereunder.       The citizens at large have

a right to life i.e. to live with dignity, freedom and safety. This

right emerges from Article 21 of the Constitution of India. As

opposed to this constitutional mandate, a trivial individual

protection or inconvenience, if any, must yield in favour of the

larger public interest.
                                                                        5

8.     The petitioner claims to have received various replies

from the police department of different States like Tamil Nadu,

West Bengal, Delhi and Ministry of Home Affairs, New Delhi.

On the basis of the replies received under the provisions of the

Right to Information Act, 2005, copies of which have been

annexed to the writ petition, it is averred that these

authorities are of the unanimous opinion that black films

should be banned. Black filmed glasses help in commission of

crime as well as hiding the criminals even during vehicle

checks at `Naka' points. Non-availability of electronic devices

to measure violations and lack of police force to enforce the

Rules are also apparent from these replies. The petitioner also

states that the use of black films is not prevalent in developed

and/or developing countries all over the world.           In fact, in

some    of   the   countries,   it   is specifically   banned.    In

Afghanistan, Belarus, Nigeria, Uganda and even in Pakistan,

use of black films on the vehicle glasses is banned. Use of

black films is not prevalent in United States of America,

United Kingdom, Germany and other countries as well.


9.     In order to examine the merits of the prayers made by

the petitioner in the present application, it will be necessary
                                                                        6

for us to refer to the relevant laws.


10.   The Motor Vehicle Act, 1939 was enacted to consolidate

and amend the laws relating to motor vehicles. This Act was

subjected to various amendments. Finally, the Motor Vehicles

Act, 1988 (for short `the Act') was enacted, inter alia, with the

object and reason being, to provide for quality standards for

pollution   control   devices,   provisions   for   issuing   fitness

certificate of the vehicle and effective ways of tracking down

traffic offenders.    Section 190 of the Act provides that any

person who drives or causes or allows to be driven in any

public place a motor vehicle or a trailer which has any defect,

or violates the standards prescribed in relation to road safety,

or violates the provisions of the Act or the Rules made therein,

is punishable as per the provisions of the Act. In other words,

alteration to the conditions of the vehicle in a manner

contravening the Act is not permissible in law.       Section 52 of

the Act declares that no owner of a motor vehicle shall so alter

the vehicle that the particulars contained in the certificate of

registration are at variance with those originally specified by

the manufacturer. However, certain changes are permissible

in terms of the proviso to this Section and that too with the
                                                                         7

approval of the Central Government/competent authority.            In

terms of Section 53 of the Act, if any registering authority or

other prescribed authority has reason to believe that any

motor vehicle within its jurisdiction is in such a condition that

its use in a public place would constitute a danger to the

public, or that it fails to comply with the requirements of the

Act or the Rules made thereunder, whether due to alteration

of vehicle violative of Section 52 of the Act or otherwise, the

Authority may, after giving opportunity of hearing, suspend

the   registration   certificate   for   the   period   required   for

rectification of such defect, and if the defect is still not

removed, for cancellation of registration.        In exercise of its

power, under various provisions of the Act, the Central

Government has framed the Rules.           Chapter V of the Rules

deals with construction, equipment and maintenance of motor

vehicles. Rule 92 mandates that no person shall use or cause

or allow to be used in any public place any motor vehicle

which does not comply with the provisions of this Chapter.

There are different Rules which deals with various aspects of

construction and maintenance of vehicles including lights,

brakes, gears and other aspects including overall dimensions

of the vehicles. Rule 100 of the Rules concerns itself with the
                                                                      8

glass of windscreen and VLT of light of such glass windscreen.

It specifically provides for fixation of glasses made of

laminated     safety   glass   conforming   to   Indian   standards

IS:2553-Part 2 ­ 1992 and even for the kind of windscreen

wipers required to be fixed on the front screen of the vehicle.

Relevant part of Rule 100, with which we are concerned, reads

as under:-


     "100. Safety glass.--(1) The glass of windscreens
     and the windows of every motor vehicle 188[other
     than agricultural tractors] shall be of safety glass:

     Provided that in the case of three-wheelers and
     vehicles with hood and side covers, the windows
     may be of 189[acrylic or plastic transparent sheet.]

     Explanation.--For the purpose of this rule,--

       (i)     "safety glass" means glass conforming to
               the specifications of the Bureau of Indian
               Standards       or    any      International
               Standards and so manufactured or
               treated that if fractured, it does not fly or
               break into fragments capable of causing
               severe cuts;

       (ii)    any windscreen or window at the front of
               the vehicle, the inner surface of which is
               at an angle more than thirty degrees to
               the longitudinal axis of the vehicle shall
               be deemed to face to the front.

     [(2) The glass of the windscreen and rear window
     of every motor vehicle shall be such and shall be
     maintained in such a condition that the visual
     transmission of light is not less than 70%. The
     glasses used for side windows are such and shall
                                                                     9

      be maintained in such condition that the visual
      transmission of light is not less than 50%, and
      shall conform to Indian Standards [IS: 2553-- Part
      2--1992];

      (3) The glass of the front windscreen of every
      motor vehicle [other than two wheelers and
      agricultural tractors] manufactured after three
      years from the coming into force of the Central
      Motor Vehicles (Amendment) Rules, 1993 shall be
      made of laminated safety glass:

      Provided that on and from three months after the
      commencement of the Central Motor Vehicles
      (Amendment) Rules, 1999, the glass of the front
      windscreen of every motor vehicle other than two-
      wheelers and agricultural tractors shall be made of
      laminated safety glass conforming to the Indian
      Standards IS: 2553--Part 2--1992.

      Explanation.--For the purpose of these sub-rules
      "laminated safety glass" shall mean two or more
      pieces of glass held together by an intervening
      layer or layers of plastic materials. The laminated
      safety glass will crack and break under sufficient
      impact, but the pieces of the glass tend to adhere
      to the plastic material and do not fly, and if a hole
      is produced, the edges would be less jagged than
      they would be in the case of an ordinary glass."



11.   From the above provisions, it is clear that the Rules deal

with every minute detail of construction and maintenance of a

vehicle.      In   other   words,   the   standards,   sizes   and

specifications which the manufacturer of a vehicle is required

to adhere to while manufacturing the vehicle are exhaustively

dealt with under the Rules.         What is permitted has been
                                                                      10

specifically provided for and what has not been specifically

stated would obviously be deemed to have been excluded from

these Rules.    It would neither be permissible nor possible for

the Court to read into these statutory provisions, what is not

specifically provided for.   These are the specifications which

are in consonance with the prescribed IS No. 2553-Part 2 of

1992 and nothing is ambiguous or uncertain.         Let us take a

few examples.     Rule 104 requires that every motor vehicle,

other than three wheelers and motor cycles shall be fitted with

two red reflectors, one each on both sides at their rear. Every

motor cycle, shall be fitted with at least one red reflector at the

rear. Rule 104A, provides that two white reflex in the front of

the vehicle on each side and visible to on-coming vehicles

from the front at night.     Rule 106 deals with deflections of

lights and requires that no lamp showing a light to the front

shall be used on any motor vehicle including construction

equipment vehicle unless such lamp is so constructed, fitted

and maintained that the beam of light emitted therefrom is

permanently deflected downwards to such an extent that it is

not capable of dazzling any person whose eye position is at a

distance of 8 metres from the front of lamp etc.       Rules 119
                                                                   11

and 120 specify the kind, size and manner in which the horn

and silencer are to be fixed in a vehicle.


12.   These provisions demonstrate the extent of minuteness

in the Rules and the efforts of the framers to ensure, not only

the appropriate manner of construction and maintenance of

vehicle, but also the safety of other users of the road.


13.   Rule 100 provides for glass of windscreen and windows

of every motor vehicle. The glass used has to be `safety glass'.

Then it provides for the inner surface angle on the windscreen.

Rule 100 (2) provides that the glass of the windscreen and

rear window of every motor vehicle shall be such and shall be

maintained in such a condition that VLT is not less than 70

per cent and on side windows not less than 50 per cent and

would conform to Indian Standards [IS:2553-Part2-1992].


14.   The said IS, under clause 5.1.7, deals with VLT

standards and it provides for the same percentage of VLT

through the safety glass, as referred to in Rule 100(2) itself.


15.   Having dealt with the relevant provisions of law, we may

also refer to a statistical fact that the number of violators of

Rule 100 has gone up from 110 in the year 2008 to 1234 in
                                                                    12

the year 2010, in Delhi alone. This itself shows an increasing

trend of offenders in this regard.


16.   In face of the language of the Rule, we cannot grant the

petitioner the relief prayed for, that there should be 100 per

cent VLT.     This Court cannot issue directions that vehicles

should have glasses with 100 per cent VLT. Rule 100 of the

Rules is a valid piece of legislation and is on the statute book.

Once such provision exists, this Court cannot issue directions

contrary to the provision of law.    Thus, we decline to grant

this prayer to the petitioner.


17.   However, the prayer relating to issuance of directions

prohibiting use of black films on the glasses of vehicles

certainly has merit.   On the plain reading of the Rule, it is

clear that car must have safety glass having VLT at the time of

manufacturing 70 per cent for windscreen and 50 per cent for

side windows. It should be so maintained in that condition

thereafter.    In other words, the Rule not impliedly, but

specifically, prohibits alteration of such VLT by any means

subsequent to its manufacturing.      How and what will be a

"safety glass" has been explained in Explanation to Rule 100.

The Explanation while defining `laminated safety glass' makes
                                                                     13

it clear that two or more pieces of glass held together by an

intervening layers of plastic materials so that the glass is held

together in the event of impact. The Rule and the explanation

do not contemplate or give any leeway to the manufacturer or

user of the vehicle to, in any manner, tamper with the VLT.

The Rule and the IS only specify the VLT of the glass itself.


18.   Two scenarios must be examined. First, if the glass so

manufactured already has the VLT as specified, then the

question of further reducing it by any means shall be in clear

violation of Rule 100 as well as the prescribed IS. Secondly,

the rule requires a manufacturer to manufacture the vehicles

with safety glasses with prescribed VLT. It is the minimum

percentage that has been specified.      The manufacturer may

manufacture vehicle with a higher VLT to the prescribed limit

or even a vehicle with tinted glasses, if such glasses do not fall

short of the minimum prescribed VLT in terms of Rule 100.

None can be permitted to create his own device to bring down

the percentage of the VLT thereafter.        Thus, on the plain

reading of the Rule and the IS standards, use of black films of

any density is impermissible. Another adverse aspect of use

of black films is that even if they reflect tolerable VLT in the
                                                                   14

day time, still in the night it would clearly violate the

prescribed VLT limits and would result in poor visibility,

which again would be impermissible.



19.   The legislative intent attaching due significance to the

`public safety' is evident from the object and reasons of the

Act, the provisions of the Act and more particularly, the Rules

framed thereunder.     Even if we assume, for the sake of

argument, that Rule 100 is capable of any interpretation, then

this Court should give it an interpretation which would serve

the legislative intent and the object of framing such rules, in

preference to one which would frustrate the very purpose of

enacting the Rules as well as undermining the public safety

and interest. Use of these black films have been proved to be

criminal's paradise and a social evil.      The petitioner has

rightly brought on record the unanimous view of various

police authorities right from the States of Calcutta, Tamil

Nadu and Delhi to the Ministry of Home Affairs that use of

black films on vehicles has jeopardized the security and safety

interests of the State and public at large. This certainly helps

the criminals to escape from the eyes of the police and aids in

commission of heinous crimes like s*xual assault on women,
                                                                    15

robberies, kidnapping, etc.    If these crimes can be reduced by

enforcing the prohibition of law, it would further the cause of

Rule of Law and Public Interest as well.


20.   This Court in the case of Hira Tikoo v. Union Territory of

Chandigarh [(2004) 6 SCC 765], while dealing with the

provisions of town planning and the land allotted to the

allottees, upon which the allotees had made full payment,

held that such allotment was found to be contravening other

statutory provisions and the allotted area was situated under

the reserved forest land and land in periphery of 900 meters of

Air Force Base. The Court held that there was no vested right

and public welfare should prevail as the highest law.      Thus,

this Court, while relying upon the maxim "salus populi est

suprema lex", modified the order of the High Court holding

that the allottees had no vested right and the land forming

part of the forest area could not be taken away for other

purposes. Reference can also be made to the judgment of this

Court in Friends Colony Development Committee v. State of

Orissa [AIR 2005 SC 1], where this Court, while referring to

construction activity violative of the regulations and control

orders,   held   that   the   regulations   made   under   Orissa
                                                                       16

Development Authorities Act, 1982 may meddle with private

rights   but   still   they   cannot   be   termed    arbitrary   or

unreasonable. The private interest would stand subordinate

to public good.


21.   In the present case as well, even if some individual

interests are likely to suffer, such individual or private

interests must give in to the larger public interest. It is the

duty of all citizens to comply with the law.         The Rules are

mandatory and nobody has the authority in law to mould

these rules for the purposes of convenience or luxury and

certainly not for crime. We may also note that a Bench of this

Court, vide its Order dated 15 th December, 1998 in Civil

Appeal No. 3700 of 1999 titled Chandigarh Administration and

Others v. Namit Kumar & Ors., had permitted the use of `light

coloured tinted glasses' only while specifically disapproving

use of films on the vehicles. Subsequently, in the same case,

but on a different date, another Bench of this Court vide its

order reported at [(2004) 8 SCC 446] made a direction that

mandate of sub-Rule (2) of Rule 100 shall be kept in mind

while dealing with such cases.
                                                                        17

22.   Rightly so, none of the orders of this Court have

permitted use of black films.    Rule 100(2) specifies the VLT

percentage of the glasses at the time of manufacture and to be

so maintained even thereafter. In Europe, Regulation No. 43

of the Economic Commission for Europe of the United Nations

(UN/ECE) and in Britain, the Road Vehicles (Construction and

Use) Regulations, 1986, respectively, refer to the International

Standard    ISO   3538   on   this   issue,   providing   for   VLT

percentage of 70 and 75 per cent respectively.


23.   In light of the above discussion, we have no hesitation in

holding that use of black films or any other material upon

safety glass, windscreen and side windows is impermissible.

In terms of Rule 100(2), 70 per cent and 50 per cent VLT

standard are relatable to the manufacture of the safety glasses

for the windshields (front and rear) and the side windows

respectively. Use of films or any other material upon the

windscreen or the side windows is impermissible in law.         It is

the VLT of the safety glass without any additional material

being pasted upon the safety glasses which must conform

with manufacture specifications.
                                                                     18

24.   Another issue that has been raised in the present Writ

Petition is that certain VIPs/VVIPs are using black films on

their vehicles for security reasons.   Even this practice is not

supported by law, as no notification by the competent

authority has been brought to our notice, giving exemption to

such vehicles from the operation of Rule 100 or any of its

provisions.    Be that as it may, we do not wish to enter upon

the arena of the security and safety measures when the police

department and Home Ministry consider such exemption

appropriate.      The cases of the persons who have been

provided with Z and Z+ security category may be considered

by a Committee consisting of the Director General of

Police/Commissioner of Police of the concerned State and the

Home Secretary of that State/Centre.         It will be for that

Committee to examine such cases for grant of exemption in

accordance with law and upon due application of mind.

These certificates should be provided only in relation to official

cars of VIPs/VVIPs, depending upon the category of security

that such person has been awarded by the competent

authority.     The appropriate government is free to make any

regulations that it may consider appropriate in this regard.
                                                                     19

25.   The competent officer of the traffic police or any other

authorized person shall challan such vehicles for violating

Rules 92 and 100 of the Rules with effect from the specified

date and thereupon shall also remove the black films from the

offending vehicles.



26.   The manufacturer of the vehicle may manufacture the

vehicles   with   tinted   glasses   which   have   Visual   Light

Transmission (VLT) of safety glasses windscreen (front and

rear) as 70 per cent VLT and side glasses as 40 per cent VLT,

respectively.     No black film or any other material can be

pasted on the windscreens and side glasses of a vehicle.


27.   For the reasons afore-stated, we prohibit the use of black

films of any VLT percentage or any other material upon the

safety glasses, windscreens (front and rear) and side glasses of

all vehicles throughout the country. The Home Secretary,

Director General/Commissioner of Police of the respective

States/Centre shall ensure compliance with this direction.

The directions contained in this judgment shall become

operative and enforceable with effect from 4 th May, 2012.
                                                                               20

28.   With the above directions, we partially allow this writ

petition and prohibit use of black films of any percentage VLT

upon the safety glasses, windscreens (front and rear) and side

glasses. However, there shall be no order as to costs.



                                 ......................................CJI.
                                           (S.H. Kapadia)



                                 .........................................J.
                                        (A.K. Patnaik)



                                 .........................................J.
                                                 (Swatanter Kumar)

New Delhi
April 27, 2012
                                                                         
 
Reply   
 
ADVISOR

Mr. Goenka

Both the judgements of the Supreme Court have been provided above.

In future you be better advised that you provide case type .

 
Reply   
 
ADVISOR

Originally posted by :B.K.GUPTA
"
 
1

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 285 OF 2010



Avishek Goenka ... Petitioner
Versus
Union of India & Anr. ... Respondents



JUDGMENT



Swatanter Kumar, J.



1. The petitioner is a businessman engaged in the business

of distribution of pre-paid virtual and tangible calling value for

mobile phone subscribers and also sells new customer

acquisition packs and follows it up, by collection of customer

application forms and executing tele-calling, to verify customer

credentials. In this Public Interest Litigation, the petitioner

has attempted to highlight the grave issue of non-observance

of norms/regulations/guidelines related to proper and

effective subscriber verification by various service providers.

In fact, according to the petitioner, there is rampant flouting of

norms/regulations/guidelines relating to this subject matter
2

and there is no proper verification of the subscribers prior to

selling of the pre-paid mobile connections to them.

2. The Telecom Regulatory Authority of India (for short,

"TRAI") is the regulatory body for the telecommunications

sector in India and the Union of India has responsibility to

issue guidelines and frame regulations and conditions of

licence, in consultation with the TRAI, to ensure coordination,

standardization and compliance with the regulations, as well

as protecting the security interests of the country.

3. It is the averment of the petitioner that the telecom sector

has witnessed the most fundamental structural and

institutional reforms since 1991. This sector has grown

significantly in the last few years. As per the Annual Report

for 2009-2010 of the Department of Telecommunication,

Ministry of Communications and IT, Government of India (for

short "DoT"), as on 31 st December, 2009, the Indian telecom

sector had about 5622.11 million connections. The tele-

density per hundred population, which is an important

indicator of telecom penetration in the country, has increased

from 2.32 per cent in March, 1999 to 47.88 per cent in

December, 2009. The Eleventh Five Year Plan for 2007-2012

had provided a target of 600 million connections, but the
3

industry has already provided around 700 million

connections, thus far exceeding the target. Different random

studies in relation to pre-paid Subscriber Identity Module

(SIM) cards show widespread violation of guidelines for Know

Your Customer (KYC) and even other common guidelines.

The SIM cards are provided without any proper verification,

which causes serious security threat as well as encourages

malpractices in the telecom sector. It appears that 65 per cent

of all pre-paid SIM cards issued in Jammu & Kashmir and 39

per cent of all pre-paid SIM cards in Mumbai, may have been

issued without verification; which means that 1 out of every 6

pre-paid SIM cards is issued without proper verification. The

averment is that such unverified SIM cards are also used in

terrorist attacks.

4. This Court, in the case of State (NCT of Delhi) Vs. Navjot

Sandhu alias Afsan Guru [(2005) 11 SCC 600] had, with some

caution, referred to a large number of calls which had been

made by terrorists from instruments containing unverified SIM

cards. It is further averred by the petitioner that around 80

per cent of the pre-paid SIM cards may be purchased in pre-

activated form which is in violation of the notifications issued

by the DoT, dated 22.11.2006 and 23.3.2009 respectively,
4

banning the sale of pre-activated SIM cards. Another

significant fact that has been brought out in this petition is

that, pre-paid SIM cards, which are the most commonly issued

without verification, constitute 96 per cent of the total SIM

cards sold. This indicates the seriousness of the problem as

well as the security hazard that emerges from the telecom

sector.

5. Thus, the petitioner has prayed that there should be

strict implementation of subscriber verification guidelines,

physical verification be compulsory in future and physical re-

verification of existing subscriber base be conducted in a

transparent manner. He also seeks the prevention of inflated

subscriber base. On all matters in relation to these prayers, he

pleads for issuance of appropriate writ, orders or directions.

Upon notice, the DoT as well as the TRAI had put in

appearance and placed on record the guidelines issued by the

DoT, as well as the comments of TRAI, respectively.

6. The petitioner, during the pendency of the petition, filed

an Interim Application, I.A. No. 6 of 2012, wherein he referred

to a circulation containing the draft norms prepared by the

Government of India (DoT) in relation to :

· Re-verification of existing customer base.
5

· Verification process as followed in Assam, J&K to

be extended across country.

· Mail of SIM card and activation details to the

address of the subscriber, both being sent

separately. This method is similar to that of

delivery of debit, credit cards.

· Refuse to recognize government ID cards as

sufficient proof, etc.

7. According to the petitioner, these norms have not been

adhered to and in fact, the present instructions / guidelines

formulated by DoT are at variance to the norms, ignoring

essential precautions for verification of subscriber identity and

safe distribution of pre-paid SIM cards.

8. We have already noticed that the rapid expansion of the

telecom sector and its impact on development, both, equally

impose responsibility on the Government of India, the

regulatory body and the various stakeholders in the telecom

sector to carry out proper verification of the pre-paid SIM

cards and ensure national safety and security. To achieve

this object, it is primarily for the expert bodies and the

Government of India to act and discharge their respective

functions.
6

9. In terms of Section 11 of the Telecom Regulatory

Authority of India Act, 1997 (for short, `the Act'), it is a

statutory obligation upon the TRAI to recommend a regulatory

regime which will serve the purpose of development, facilitate

competition and promote efficiency, while taking due

precautions in regard to safety of the people at large and the

various other aspects of subscriber verification. Similarly, the

DoT is responsible for discharging its functions and duties as,

ultimately, it is the responsibility of the Government to provide

for the safety of its citizens. The TRAI has to regulate the

interests of telecom service providers and subscribers, so as to

permit and ensure orderly growth of telecom sector. The

Government of India and TRAI, both, have to attain this

delicate balance of interests by providing relevant instructions

or guidelines in a timely manner and ensuring their

implementation in accordance with law.

10. While referring to the guidelines issued by DoT and the

comments of TRAI thereupon, the petitioner has raised, inter

alia, but primarily, the following objections :

(i) Despite clear guidelines and decision to complete re-

verification of existing customer base, scheduled to be

completed between 1st November, 2009 to 31st October,
7

2010, which time was further extended to 31 st December,

2010, no effective steps have been taken to complete this

exercise.

(ii) Re-verification has been left in the hands of the

interested stakeholders, i.e., the service providers

themselves, who are not taking appropriate and effective

steps to complete the re-verification exercise.

(iii) The delivery of the pre-paid SIM card to the prospective

subscribers should be effected by registered post and

home delivery process, so as to provide basic verification

of the address of the subscriber.

(iv) There should be no relaxation of requirement for

photograph of the subscriber in the Customer

Acquisition Forms (CAF).

(v) Lastly, that there should be heavy penalty for violation of

the guidelines and particularly, for providing pre-paid

SIM cards to subscribers whose identity and addresses

are unverified.

11. Before this Court, the DoT filed its instructions dated 14 th

March, 2011, relating to various aspects involved in the

present case and specifically, on the manner of verification of

new mobile subscribers (pre-paid and post-paid). These
8

instructions, inter alia, dealt with the verification and

activation of mobile connections, special guidelines for issue of

mobile connections to foreigners and outstation users, bulk

mobile connections, change in the name of subscriber,

disconnection, lodging of complaints and even imposition of

penalties. Clause 3(vii) of these instructions provided that

pre-activated SIM cards are not to be sold. In case of sale of

pre-activated SIM cards, a penalty of Rs. 50,000/- per such

connection shall be levied upon the service provider/licensee,

in addition to immediate disconnection of the mobile

connection.

12. Most of the grievances raised by the petitioner have been

appropriately dealt with under these instructions. But,

however, some of the issues have not been comprehensively

provided for. The TRAI filed an affidavit dated 14 th March,

2012, dealing with the instructions of the DoT, dated 14 th

March, 2011. In the said affidavit, however, TRAI suggested

certain variations as provided in Annexure R-I to their

affidavit. According to TRAI, the verification of identity is dealt

with differently in different countries, some have provided

stringent standards of documentation of identification while

others have not issued any guidelines and left it to the
9

discretion of the service provider. In India, TRAI

recommended that the Customer Acquisition Form (CAF) have

a "unique" number, which may be affixed at a central

warehouse, rather than prior to distribution. TRAI also

recommended that the CAF form should be simpler in its

content as the form presently in use is not serving its purpose

adequately. TRAI has annexed to its affidavit, as Annexure I,

the sample form which should be adopted as a regular form to

be filled in by the subscriber. According to TRAI, in a manner

similar to bulk users, even individual users should disclose all

the SIM cards and connections in the name of such individual,

with due verification by the licensee. Also differing with the

instructions of DoT on the issue of manner of conversion from

pre-paid to post-paid connections and vice-versa, as well as

regarding the transferability of mobile connections, TRAI

submits that the both should be permissible, the former being

treated as a change in tariff plan (not as a fresh or a

transferred connection) and the latter as a new mobile

connection, subject to consent of the existing owner of the

mobile connection.

13. The other issue on which DoT and TRAI differed is,

whether the employees of the licensee/service provider should
10

be required to personally update the subscriber details in the

database. While according to DoT, this should be carried out

by the employees of the licensee itself, however, according to

TRAI, it can be done by their authorized representatives,

keeping in view various factors, like expense, time, efficiency

and practicability. Both TRAI and DoT are agreeable that

such a database of all the registered subscribers should be

maintained by the licensee and the same be made accessible

to the security agencies. Giving an example of the Nigerian

Communication Commission, which maintains a similar

database of all registered subscribers, TRAI concludes that

even the general evidence demonstrates that such database

makes verification and tracing of the identity of the subscriber

easier, particularly in absence of the Unique ID cards. Some

of the licensees and service providers intervened in the

present writ petition and have taken a stand that they are, in

fact, maintaining database details of all registered subscribers.

Such information is also made available to the Government

Department or security agencies on demand and in

accordance with law.

14. If one examines the powers and functions of TRAI, as

postulated under Section 11 of the Act, it is clear that TRAI
11

would not only recommend, to the DoT, the terms and

conditions upon which a licence is granted to a service

provider but has to also ensure compliance of the same and

may recommend revocation of licence in the event of non-

compliance with the regulations. It has to perform very

objectively one of its main functions, i.e., to facilitate

competition and promote efficiency in the operation of the

telecommunication services, so as to facilitate growth in such

services. It is expected of this regulatory authority to monitor

the quality of service and even conduct periodical survey to

ensure proper implementation.

15. What emerges from the above discussion is that the

stakeholders DoT, TRAI and the licencees are ad idem in

regard to most of the issues in terms of the instructions

prepared by the DoT. However, there are certain points on

which there is a difference of opinion between the DoT and the

TRAI. This limited divergence is required to be resolved by

further clarification and issuance of more specific instructions.

These issues fall under two categories: - firstly, what has been

pointed out by the petitioner and secondly, where the DoT and

the TRAI hold different opinion as noticed above. Proper

deliberation between the stakeholders possessed of technical
12

knowhow can resolve such issues usefully and effectively.

16. The abovementioned points of divergence between TRAI

and DoT are matters which will have serious ramifications not

only vis-à-vis the regulatory authorities and the licensees but

also on the subscribers and the entire country. These aspects

demand serious deliberation at the hands of the technical

experts. It will not be appropriate for this Court to examine

these technical aspects, as such matters are better left in the

domain of the statutory or expert bodies created for that

purpose. The concept of `regulatory regime' has to be

understood and applied by the courts, within the framework of

law, but not by substituting their own views, for the views of

the expert bodies like an appellate court. The regulatory

regime is expected to fully regulate and control activities in all

spheres to which the particular law relates.

17. We have clearly stated that it is not for this Court to

examine the merit or otherwise of such policy and regulatory

matters which have been determined by expert bodies having

possessing requisite technical knowhow and are statutory in

nature. However, the Court would step in and direct the

technical bodies to consider the matter in accordance with

law, while ensuring that public interest is safeguarded and
13

arbitrary decisions do not prevail. This Court in the case of

Delhi Science Forum & Ors. v. Union of India [AIR 1996 SC

1356 = (1996) 2 SCC 405], while dealing with provision of

licences to private companies as well as establishment,

maintenance and working of such licences under the

provisions of the Telegraph Act, 1885, applied the `wednesbury

principle' and held that `as such the Central Government is

expected to put such conditions while granting licences which

shall safeguard the public interest and the interest of the

nation. Such conditions should be commensurate with the

obligations that flow while parting with the privilege which has

been exclusively vested in the Central Government by the Act'.

It is the specific case of the petitioner and some of the affected

parties in the present proceedings that certain very important

aspects, including security, have not been appropriately dealt

with in the instructions dated 14th March, 2011.

18. Some divergence on certain specific issues of the

regulatory regime has been projected in the instructions and

comments filed by TRAI and DoT. They need to be resolved

but, in absence of any technical knowhow or expertise being

available with this Court, it will not be appropriate to decide,

by a judicial dictum, as to which of the views expressed by
14

these high powered bodies would be more beneficial to the

regulatory regime and will prove more effective in advancing

the public interest. Essentially this should be left to be

clarified and the disputes be resolved by the expert bodies

themselves. It is a settled canon of law that in a regulatory

regime, the terms and conditions imposed thereunder should

be unambiguous and certain. It is expected that the

authorities concerned would enforce the regulatory regime

with exactitude. Therefore, it is not only desirable but also

imperative that TRAI and DoT seriously cogitate on the issues

where divergence has been expressed between them and bring

unanimity in the terms and conditions of licences which would

form an integral part of the instructions dated 14 th March,

2011.

19. It may be noticed here that, as interveners, some of the

licensees and/or service providers had criticized some of the

terms and conditions of licence proposed under the

instructions dated 14th March, 2011. These interveners not

only made some suggestions with regard to the ambit and

scope of the guidelines and instructions by TRAI or DoT but

also intended to raise certain disputes vis-à-vis DoT in the

capacity of licensees subject to the impugned instructions.
15

Without any reservation, we make it clear that we are not

directly or indirectly entering upon the adjudication of any

dispute or even differences between the service

provider/licensee on the one hand and TRAI or DoT on the

other. If they or any of them have any claim or dispute with

the other, they should resolve the same by taking recourse to

independent proceedings in accordance with law.

20. In view of our above discussion, we partially allow the

writ petition. The instructions dated 14 th March, 2011 issued

by DoT be and hereby are accepted by the Court subject to the

following conditions:

(i) We hereby direct the constitution of a Joint Expert

Committee consisting of two experts from TRAI and two

experts from DoT to be chaired by the Secretary, Ministry

of Communications and Information Technology,

Government of India.

(ii) This Committee shall discuss and resolve the issues on

which TRAI in its affidavit has given opinion divergent to

that declared by DoT in its instructions dated 14th March,

2011. Following are the points of divergence that require

examination by the Joint Expert Committee :

(a) Whether re-verification should be undertaken by the
16

service provider/licensee, the DoT itself or any other

central body?

(b) Is there any need for enhancing the penalty for

violating the instructions/guidelines including sale

of pre-activated SIM cards?

(c) Whether delivery of SIM cards may be made by

post? Which is the best mode of delivery of SIM

cards to provide due verification of identity and

address of a subscriber?

(d) Which of the application forms, i.e., the existing one

or the one now suggested by TRAI should be

adopted as universal application form for purchase

of a SIM card?

(e) In absence of Unique ID card, whether updating of

subscriber details should be the burden of the

licensee personally or could it be permitted to be

carried out through an authorized representative of

the licensee?

(f) In the interest of national security and the public

interest, whether the database of all registered

subscribers should be maintained by DoT or by the

licensee and how soon the same may be made
17

accessible to the security agencies in accordance

with law?

(iii) The above notified Committee shall resolve the above

specified issues and any other ancillary issue arising

therefrom and make its recommendations known to the

DoT within three months from today.

(iv) The DoT shall take into consideration the

recommendations of the Joint Expert Committee. The

instructions issued by DoT dated 14 th March, 2011 shall

thereupon be amended, modified, altered, added to or

substituted accordingly. They shall then become

operative in law and binding upon all concerned.

(v) Composite instructions, so formulated, shall positively be

issued by the DoT within 15 weeks from today and report

of compliance submitted to the Registry of this Court.

21. The writ petition is disposed of with the above directions.

There shall be no order as to costs.

......................................CJI.
(S.H. Kapadia)



.........................................J.
(A.K. Patnaik)
18


.........................................J.
(Swatanter Kumar)
New Delhi
April 27, 2012
"
 
Reply   
 
ADVISOR

Originally posted by :B.K.GUPTA
"
 
1

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION


WRIT PETITION (CIVIL) NO. 265 OF 2011


Avishek Goenka ... Petitioner
Versus
Union of India & Anr. ... Respondents



JUDGMENT



Swatanter Kumar, J.


1. Alarming rise in heinous crimes like kidnapping, s*xual

assault on women and dacoity have impinged upon the right

to life and the right to live in a safe environment which are

within the contours of Article 21 of the Constitution of India.

One of the contributory factors to such increase is use of

black films on windows/windshields of four-wheeled vehicles.

The petitioner, as a public spirited person, has invoked the

extra-ordinary jurisdiction of this Court under Article 32 of the

Constitution in the present public interest litigation, praying

for certain directions to stop this menace. According to the

petitioner, this Court should issue a writ or direction requiring

use of such safety glasses on the windows/windshields in
2

vehicles having 100 per cent Visual Light Transmission (for

short `VLT') only and, to that extent, the petitioner challenges

the correctness of Rule 100 of the Motor Vehicles Rules, 1989

(for short "the Rules"). He also prays for prohibition on use of

black films on the glasses of the vehicles, proper

implementation of law in that behalf and finally, for taking

stringent actions against the offenders, using vehicles with

black filmed glasses. He also prays that a larger police force

should be deputed to monitor such offences.


2. The use of black films upon the vehicles gives immunity

to the violators in committing a crime and is used as a tool of

criminality, considerably increasing criminal activities. At

times, heinous crimes like dacoity, rape, murder and even

terrorist acts are committed in or with the aid of vehicles

having black films pasted on the side windows and on the

screens of the vehicles. It is stated that because of non-

observance of the norms, regulations and guidelines relating

to the specifications for the front and rear windscreens and

the side windows of the vehicles, the offenders can move

undetected in such vehicles and commit crimes without

hesitation.
3

3. The word `tinted' means shade or hue as per the

dictionary. The rear and front and side glasses of vehicles are

provided with such shade or tint, and therefore, they are

widely referred to as `tinted glasses', which is different from

`black films'. The glasses of the vehicles having a coating of

black films cannot be termed as `tinted glasses' because they

are not manufactured as such.


4. Besides aiding in commission of crimes, black films on

the vehicles are also at times positively correlated with motor

accidents on the roads. It is for the reason that the

comparative visibility to that through normal/tinted glasses

which are manufactured as such is much lesser and the

persons driving at high speed, especially on highways, meet

with accidents because of use of black filmed glasses.


5. The use of black films also prevents the traffic police

from seeing the activity in the car and communicating with the

driver of the vehicle. The petitioner also cites that the number

of fatal accidents of vehicles having black films is much higher

in India than in other parts of the world. The black filmed

vehicles have lower visibility and therefore, the chances of

accident are increased by 18 per cent to 38 per cent due to
4

low visibility. He has also referred to the World Health

Organization's data, pertaining to deaths caused on roads,

which, in India have crossed that of China, though the latter

has more vehicles, population and area in comparison to

India. A device called luxometer can measure the level of

opaqueness in windows owing to the application of black films

but this device is a scarce resource and is very scantily

available with the police personnel in India.


6. The Court can take a judicial notice of the fact that even

as per the reports, maximum crimes are committed in such

vehicles and there has been a definite rise in the commission

of heinous crimes, posing a threat to security of individuals

and the State, both.


7. Whatever are the rights of an individual, they are

regulated and controlled by the statutory provisions of the Act

and the Rules framed thereunder. The citizens at large have

a right to life i.e. to live with dignity, freedom and safety. This

right emerges from Article 21 of the Constitution of India. As

opposed to this constitutional mandate, a trivial individual

protection or inconvenience, if any, must yield in favour of the

larger public interest.
5

8. The petitioner claims to have received various replies

from the police department of different States like Tamil Nadu,

West Bengal, Delhi and Ministry of Home Affairs, New Delhi.

On the basis of the replies received under the provisions of the

Right to Information Act, 2005, copies of which have been

annexed to the writ petition, it is averred that these

authorities are of the unanimous opinion that black films

should be banned. Black filmed glasses help in commission of

crime as well as hiding the criminals even during vehicle

checks at `Naka' points. Non-availability of electronic devices

to measure violations and lack of police force to enforce the

Rules are also apparent from these replies. The petitioner also

states that the use of black films is not prevalent in developed

and/or developing countries all over the world. In fact, in

some of the countries, it is specifically banned. In

Afghanistan, Belarus, Nigeria, Uganda and even in Pakistan,

use of black films on the vehicle glasses is banned. Use of

black films is not prevalent in United States of America,

United Kingdom, Germany and other countries as well.


9. In order to examine the merits of the prayers made by

the petitioner in the present application, it will be necessary
6

for us to refer to the relevant laws.


10. The Motor Vehicle Act, 1939 was enacted to consolidate

and amend the laws relating to motor vehicles. This Act was

subjected to various amendments. Finally, the Motor Vehicles

Act, 1988 (for short `the Act') was enacted, inter alia, with the

object and reason being, to provide for quality standards for

pollution control devices, provisions for issuing fitness

certificate of the vehicle and effective ways of tracking down

traffic offenders. Section 190 of the Act provides that any

person who drives or causes or allows to be driven in any

public place a motor vehicle or a trailer which has any defect,

or violates the standards prescribed in relation to road safety,

or violates the provisions of the Act or the Rules made therein,

is punishable as per the provisions of the Act. In other words,

alteration to the conditions of the vehicle in a manner

contravening the Act is not permissible in law. Section 52 of

the Act declares that no owner of a motor vehicle shall so alter

the vehicle that the particulars contained in the certificate of

registration are at variance with those originally specified by

the manufacturer. However, certain changes are permissible

in terms of the proviso to this Section and that too with the
7

approval of the Central Government/competent authority. In

terms of Section 53 of the Act, if any registering authority or

other prescribed authority has reason to believe that any

motor vehicle within its jurisdiction is in such a condition that

its use in a public place would constitute a danger to the

public, or that it fails to comply with the requirements of the

Act or the Rules made thereunder, whether due to alteration

of vehicle violative of Section 52 of the Act or otherwise, the

Authority may, after giving opportunity of hearing, suspend

the registration certificate for the period required for

rectification of such defect, and if the defect is still not

removed, for cancellation of registration. In exercise of its

power, under various provisions of the Act, the Central

Government has framed the Rules. Chapter V of the Rules

deals with construction, equipment and maintenance of motor

vehicles. Rule 92 mandates that no person shall use or cause

or allow to be used in any public place any motor vehicle

which does not comply with the provisions of this Chapter.

There are different Rules which deals with various aspects of

construction and maintenance of vehicles including lights,

brakes, gears and other aspects including overall dimensions

of the vehicles. Rule 100 of the Rules concerns itself with the
8

glass of windscreen and VLT of light of such glass windscreen.

It specifically provides for fixation of glasses made of

laminated safety glass conforming to Indian standards

IS:2553-Part 2 ­ 1992 and even for the kind of windscreen

wipers required to be fixed on the front screen of the vehicle.

Relevant part of Rule 100, with which we are concerned, reads

as under:-


"100. Safety glass.--(1) The glass of windscreens
and the windows of every motor vehicle 188[other
than agricultural tractors] shall be of safety glass:

Provided that in the case of three-wheelers and
vehicles with hood and side covers, the windows
may be of 189[acrylic or plastic transparent sheet.]

Explanation.--For the purpose of this rule,--

(i) "safety glass" means glass conforming to
the specifications of the Bureau of Indian
Standards or any International
Standards and so manufactured or
treated that if fractured, it does not fly or
break into fragments capable of causing
severe cuts;

(ii) any windscreen or window at the front of
the vehicle, the inner surface of which is
at an angle more than thirty degrees to
the longitudinal axis of the vehicle shall
be deemed to face to the front.

[(2) The glass of the windscreen and rear window
of every motor vehicle shall be such and shall be
maintained in such a condition that the visual
transmission of light is not less than 70%. The
glasses used for side windows are such and shall
9

be maintained in such condition that the visual
transmission of light is not less than 50%, and
shall conform to Indian Standards [IS: 2553-- Part
2--1992];

(3) The glass of the front windscreen of every
motor vehicle [other than two wheelers and
agricultural tractors] manufactured after three
years from the coming into force of the Central
Motor Vehicles (Amendment) Rules, 1993 shall be
made of laminated safety glass:

Provided that on and from three months after the
commencement of the Central Motor Vehicles
(Amendment) Rules, 1999, the glass of the front
windscreen of every motor vehicle other than two-
wheelers and agricultural tractors shall be made of
laminated safety glass conforming to the Indian
Standards IS: 2553--Part 2--1992.

Explanation.--For the purpose of these sub-rules
"laminated safety glass" shall mean two or more
pieces of glass held together by an intervening
layer or layers of plastic materials. The laminated
safety glass will crack and break under sufficient
impact, but the pieces of the glass tend to adhere
to the plastic material and do not fly, and if a hole
is produced, the edges would be less jagged than
they would be in the case of an ordinary glass."



11. From the above provisions, it is clear that the Rules deal

with every minute detail of construction and maintenance of a

vehicle. In other words, the standards, sizes and

specifications which the manufacturer of a vehicle is required

to adhere to while manufacturing the vehicle are exhaustively

dealt with under the Rules. What is permitted has been
10

specifically provided for and what has not been specifically

stated would obviously be deemed to have been excluded from

these Rules. It would neither be permissible nor possible for

the Court to read into these statutory provisions, what is not

specifically provided for. These are the specifications which

are in consonance with the prescribed IS No. 2553-Part 2 of

1992 and nothing is ambiguous or uncertain. Let us take a

few examples. Rule 104 requires that every motor vehicle,

other than three wheelers and motor cycles shall be fitted with

two red reflectors, one each on both sides at their rear. Every

motor cycle, shall be fitted with at least one red reflector at the

rear. Rule 104A, provides that two white reflex in the front of

the vehicle on each side and visible to on-coming vehicles

from the front at night. Rule 106 deals with deflections of

lights and requires that no lamp showing a light to the front

shall be used on any motor vehicle including construction

equipment vehicle unless such lamp is so constructed, fitted

and maintained that the beam of light emitted therefrom is

permanently deflected downwards to such an extent that it is

not capable of dazzling any person whose eye position is at a

distance of 8 metres from the front of lamp etc. Rules 119
11

and 120 specify the kind, size and manner in which the horn

and silencer are to be fixed in a vehicle.


12. These provisions demonstrate the extent of minuteness

in the Rules and the efforts of the framers to ensure, not only

the appropriate manner of construction and maintenance of

vehicle, but also the safety of other users of the road.


13. Rule 100 provides for glass of windscreen and windows

of every motor vehicle. The glass used has to be `safety glass'.

Then it provides for the inner surface angle on the windscreen.

Rule 100 (2) provides that the glass of the windscreen and

rear window of every motor vehicle shall be such and shall be

maintained in such a condition that VLT is not less than 70

per cent and on side windows not less than 50 per cent and

would conform to Indian Standards [IS:2553-Part2-1992].


14. The said IS, under clause 5.1.7, deals with VLT

standards and it provides for the same percentage of VLT

through the safety glass, as referred to in Rule 100(2) itself.


15. Having dealt with the relevant provisions of law, we may

also refer to a statistical fact that the number of violators of

Rule 100 has gone up from 110 in the year 2008 to 1234 in
12

the year 2010, in Delhi alone. This itself shows an increasing

trend of offenders in this regard.


16. In face of the language of the Rule, we cannot grant the

petitioner the relief prayed for, that there should be 100 per

cent VLT. This Court cannot issue directions that vehicles

should have glasses with 100 per cent VLT. Rule 100 of the

Rules is a valid piece of legislation and is on the statute book.

Once such provision exists, this Court cannot issue directions

contrary to the provision of law. Thus, we decline to grant

this prayer to the petitioner.


17. However, the prayer relating to issuance of directions

prohibiting use of black films on the glasses of vehicles

certainly has merit. On the plain reading of the Rule, it is

clear that car must have safety glass having VLT at the time of

manufacturing 70 per cent for windscreen and 50 per cent for

side windows. It should be so maintained in that condition

thereafter. In other words, the Rule not impliedly, but

specifically, prohibits alteration of such VLT by any means

subsequent to its manufacturing. How and what will be a

"safety glass" has been explained in Explanation to Rule 100.

The Explanation while defining `laminated safety glass' makes
13

it clear that two or more pieces of glass held together by an

intervening layers of plastic materials so that the glass is held

together in the event of impact. The Rule and the explanation

do not contemplate or give any leeway to the manufacturer or

user of the vehicle to, in any manner, tamper with the VLT.

The Rule and the IS only specify the VLT of the glass itself.


18. Two scenarios must be examined. First, if the glass so

manufactured already has the VLT as specified, then the

question of further reducing it by any means shall be in clear

violation of Rule 100 as well as the prescribed IS. Secondly,

the rule requires a manufacturer to manufacture the vehicles

with safety glasses with prescribed VLT. It is the minimum

percentage that has been specified. The manufacturer may

manufacture vehicle with a higher VLT to the prescribed limit

or even a vehicle with tinted glasses, if such glasses do not fall

short of the minimum prescribed VLT in terms of Rule 100.

None can be permitted to create his own device to bring down

the percentage of the VLT thereafter. Thus, on the plain

reading of the Rule and the IS standards, use of black films of

any density is impermissible. Another adverse aspect of use

of black films is that even if they reflect tolerable VLT in the
14

day time, still in the night it would clearly violate the

prescribed VLT limits and would result in poor visibility,

which again would be impermissible.



19. The legislative intent attaching due significance to the

`public safety' is evident from the object and reasons of the

Act, the provisions of the Act and more particularly, the Rules

framed thereunder. Even if we assume, for the sake of

argument, that Rule 100 is capable of any interpretation, then

this Court should give it an interpretation which would serve

the legislative intent and the object of framing such rules, in

preference to one which would frustrate the very purpose of

enacting the Rules as well as undermining the public safety

and interest. Use of these black films have been proved to be

criminal's paradise and a social evil. The petitioner has

rightly brought on record the unanimous view of various

police authorities right from the States of Calcutta, Tamil

Nadu and Delhi to the Ministry of Home Affairs that use of

black films on vehicles has jeopardized the security and safety

interests of the State and public at large. This certainly helps

the criminals to escape from the eyes of the police and aids in

commission of heinous crimes like s*xual assault on women,
15

robberies, kidnapping, etc. If these crimes can be reduced by

enforcing the prohibition of law, it would further the cause of

Rule of Law and Public Interest as well.


20. This Court in the case of Hira Tikoo v. Union Territory of

Chandigarh [(2004) 6 SCC 765], while dealing with the

provisions of town planning and the land allotted to the

allottees, upon which the allotees had made full payment,

held that such allotment was found to be contravening other

statutory provisions and the allotted area was situated under

the reserved forest land and land in periphery of 900 meters of

Air Force Base. The Court held that there was no vested right

and public welfare should prevail as the highest law. Thus,

this Court, while relying upon the maxim "salus populi est

suprema lex", modified the order of the High Court holding

that the allottees had no vested right and the land forming

part of the forest area could not be taken away for other

purposes. Reference can also be made to the judgment of this

Court in Friends Colony Development Committee v. State of

Orissa [AIR 2005 SC 1], where this Court, while referring to

construction activity violative of the regulations and control

orders, held that the regulations made under Orissa
16

Development Authorities Act, 1982 may meddle with private

rights but still they cannot be termed arbitrary or

unreasonable. The private interest would stand subordinate

to public good.


21. In the present case as well, even if some individual

interests are likely to suffer, such individual or private

interests must give in to the larger public interest. It is the

duty of all citizens to comply with the law. The Rules are

mandatory and nobody has the authority in law to mould

these rules for the purposes of convenience or luxury and

certainly not for crime. We may also note that a Bench of this

Court, vide its Order dated 15 th December, 1998 in Civil

Appeal No. 3700 of 1999 titled Chandigarh Administration and

Others v. Namit Kumar & Ors., had permitted the use of `light

coloured tinted glasses' only while specifically disapproving

use of films on the vehicles. Subsequently, in the same case,

but on a different date, another Bench of this Court vide its

order reported at [(2004) 8 SCC 446] made a direction that

mandate of sub-Rule (2) of Rule 100 shall be kept in mind

while dealing with such cases.
17

22. Rightly so, none of the orders of this Court have

permitted use of black films. Rule 100(2) specifies the VLT

percentage of the glasses at the time of manufacture and to be

so maintained even thereafter. In Europe, Regulation No. 43

of the Economic Commission for Europe of the United Nations

(UN/ECE) and in Britain, the Road Vehicles (Construction and

Use) Regulations, 1986, respectively, refer to the International

Standard ISO 3538 on this issue, providing for VLT

percentage of 70 and 75 per cent respectively.


23. In light of the above discussion, we have no hesitation in

holding that use of black films or any other material upon

safety glass, windscreen and side windows is impermissible.

In terms of Rule 100(2), 70 per cent and 50 per cent VLT

standard are relatable to the manufacture of the safety glasses

for the windshields (front and rear) and the side windows

respectively. Use of films or any other material upon the

windscreen or the side windows is impermissible in law. It is

the VLT of the safety glass without any additional material

being pasted upon the safety glasses which must conform

with manufacture specifications.
18

24. Another issue that has been raised in the present Writ

Petition is that certain VIPs/VVIPs are using black films on

their vehicles for security reasons. Even this practice is not

supported by law, as no notification by the competent

authority has been brought to our notice, giving exemption to

such vehicles from the operation of Rule 100 or any of its

provisions. Be that as it may, we do not wish to enter upon

the arena of the security and safety measures when the police

department and Home Ministry consider such exemption

appropriate. The cases of the persons who have been

provided with Z and Z+ security category may be considered

by a Committee consisting of the Director General of

Police/Commissioner of Police of the concerned State and the

Home Secretary of that State/Centre. It will be for that

Committee to examine such cases for grant of exemption in

accordance with law and upon due application of mind.

These certificates should be provided only in relation to official

cars of VIPs/VVIPs, depending upon the category of security

that such person has been awarded by the competent

authority. The appropriate government is free to make any

regulations that it may consider appropriate in this regard.
19

25. The competent officer of the traffic police or any other

authorized person shall challan such vehicles for violating

Rules 92 and 100 of the Rules with effect from the specified

date and thereupon shall also remove the black films from the

offending vehicles.



26. The manufacturer of the vehicle may manufacture the

vehicles with tinted glasses which have Visual Light

Transmission (VLT) of safety glasses windscreen (front and

rear) as 70 per cent VLT and side glasses as 40 per cent VLT,

respectively. No black film or any other material can be

pasted on the windscreens and side glasses of a vehicle.


27. For the reasons afore-stated, we prohibit the use of black

films of any VLT percentage or any other material upon the

safety glasses, windscreens (front and rear) and side glasses of

all vehicles throughout the country. The Home Secretary,

Director General/Commissioner of Police of the respective

States/Centre shall ensure compliance with this direction.

The directions contained in this judgment shall become

operative and enforceable with effect from 4 th May, 2012.
20

28. With the above directions, we partially allow this writ

petition and prohibit use of black films of any percentage VLT

upon the safety glasses, windscreens (front and rear) and side

glasses. However, there shall be no order as to costs.



......................................CJI.
(S.H. Kapadia)



.........................................J.
(A.K. Patnaik)



.........................................J.
(Swatanter Kumar)

New Delhi
April 27, 2012
"
 
Reply   
 

 

In India cars are like 2nd home to the citizens of India. Therefore the prohibition of using films on the glasses will be the violation of article 21 of Constitution of India.How ever as mentioned in the point 10. of the judgement , the colour of the glass or visibility of the glass is not mentioned in any registration certificate..  So there is no violation of that section.  Rule 100 of The Central  Motor Vehicles Rules, 1989 deals with the use of safety glass on the windscreens and windows of every motor vehicle other than agricultural tractors.

Relevant part of Rule 100, with which we are concerned, reads

as under:-


"100. Safety glass.--(1) The glass of windscreens
and the windows of every motor vehicle 188[other
than agricultural tractors] shall be of safety glass:

Provided that in the case of three-wheelers and
vehicles with hood and side covers, the windows
may be of 189[acrylic or plastic transparent sheet.]

Explanation.--For the purpose of this rule,--

(i) "safety glass" means glass conforming to
the specifications of the Bureau of Indian
Standards or any International
Standards and so manufactured or
treated that if fractured, it does not fly or
break into fragments capable of causing
severe cuts;

(ii) any windscreen or window at the front of
the vehicle, the inner surface of which is
at an angle more than thirty degrees to
the longitudinal axis of the vehicle shall
be deemed to face to the front.

[(2) The glass of the windscreen and rear window
of every motor vehicle shall be such and shall be
maintained in such a condition that the visual
transmission of light is not less than 70%. The
glasses used for side windows are such and shall
be maintained in such condition that the visual
transmission of light is not less than 50%, and
shall conform to Indian Standards [IS: 2553-- Part
2--1992];

(3) The glass of the front windscreen of every
motor vehicle [other than two wheelers and
agricultural tractors] manufactured after three
years from the coming into force of the Central
Motor Vehicles (Amendment) Rules, 1993 shall be
made of laminated safety glass:

Provided that on and from three months after the
commencement of the Central Motor Vehicles
(Amendment) Rules, 1999, the glass of the front
windscreen of every motor vehicle other than two-
wheelers and agricultural tractors shall be made of
laminated safety glass conforming to the Indian
Standards IS: 2553--Part 2--1992.

Explanation.--For the purpose of these sub-rules
"laminated safety glass" shall mean two or more
pieces of glass held together by an intervening
layer or layers of plastic materials. The laminated
safety glass will crack and break under sufficient
impact, but the pieces of the glass tend to adhere
to the plastic material and do not fly, and if a hole
is produced, the edges would be less jagged than
they would be in the case of an ordinary glass."


      In this point the visibility from which direction i.e from inside the car or outside the car is not specified. Because even in a non tinted or glasses without film has difference of Visibility from both the directions. Sometimes the visibility from outside becomes zero if sunrays are coming at an angle suitable for total internal reflection but at that time also the visibility from inside the car remains near about 99%.

  • Reading the points specified in the  Rule 100 of The Central  Motor Vehicles Rules, 1989  it seems that the visibility mentioned is from inside such that the driver can see properly from inside so that he can avoid accidents.
  • Rule 104 requires that every motor vehicle, other than three wheelers and motor cycles shall be fitted withtwo red reflectors, one each on both sides at their rear. Every motor cycle, shall be fitted with at least one red reflector at the rear. Rule 104A, provides that two white reflex in the front of the vehicle on each side and visible to on-coming vehicles from the front at night. Rule 106 deals with deflections of lights and requires that no lamp showing a light to the front shall be used on any motor vehicle including construction equipment vehicle unless such lamp is so constructed, fitted and maintained that the beam of light emitted there from is permanently deflected downwards to such an extent that it is not capable of dazzling any person whose eye position is at a distance of 8 metres from the front of lamp etc . . *  This simply implies the visibility from inside the car.

In Europe, Regulation No. 43
 of the Economic Commission for Europe of the United Nations (UN/ECE) and in Britain, the Road Vehicles (Construction and Use) Regulations, 1986, respectively, refer to the International Standard ISO 3538 on this issue, providing for VLT
percentage of 70 and 75 per cent respectively.

  • Though the cases of Europe has been mentioned , those places are cold in comparison to India. The questioned is that why we need the black filmed glass? So that A/c s in the car work properly and the harmful sunrays can be banned. A rticle 21 of Indiqan Constituon saus Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
  • This may contrary to the article 21 of the constitution. As the citizen of India has no problem in maintaining the Minimum VLT prescribed in the rule 100 of the said Act.
  • There is no doubt that certain crimes has been commited iin the vehicles having pasted black films. But What is the number of cars which has black films but no crime was done?
  • Then similarly having s***al intercourse should also be banned as it may spread AIDS.
  • Regarding the reports of Police departments from various states. I think police can be authorized to ask the citizens to lower the window glass in Naka checks so that the officer can vigil upon any crime inside.
 
Reply   
 
ADVISOR

IA  filed in 265/2011 is listed on June11,2012.

 
Reply   
 
ADVISOR

The next date of listing is 09/07/2012

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

  Search Forum








×

Menu

CrPC MASTERCLASS!     |    x