Musings on time, space and Human Race blog by Amolakh Nath Segal

Friends I guess many of you would like to read the judgement and hence I thought it best to put it up here. Many people have been trying to read it to understand it better. There are two important points here:
1) use of any kind of Films on car window is banned
2) exception are their for VIP depending on MHA classification

The source of this judgement copy is Indrani Basu <indrani.basu@timesgroup.com> from Times of India who had written the article in times of India on the same subject. She has sent it to me via email on Mon 5/7/2012 9:36 PM

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

J U D G M E N T

Swatanter Kumar, J.

1. Alarming rise in heinous crimes like kidnapping, sexual 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 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. 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 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.

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 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 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 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 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 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 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 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 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 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 sexual assault on women, 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 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 15th 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.

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.

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.

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

4th May, 2012.

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

Musings on time, space and Human Race blog by Amolakh Nath Segal

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Wednesday, May 9, 2012

Judgment by Supreme Court of India banning use of any kind of films on cars in India