Jawahar Lal Gupta, C.J. (Oral)

Is the State bound to enforce the mandate of Sec. 129 of the Motor Vehicles Act, 1988 that "every person driving or riding on a motor cycle shall, while in a public place, wear protective headgear"? This question was answered in the affirmative by Koshy J. in.O.P.No. 17480 of 1998. The decision was challenged in W.A.No. 1980 of 1999 on the ground that by Act 54 of 1994, S.129 had been amended to provide that the headgear should conform "to the standards of the Bureau of Indian Standards." The appeal was allowed as "the change made to S.129," had not been noticed. However, in this petition, it has been pointed out that factually there is no difference in ISI and BIS marks. In view of the public importance of the issue, the matter has been referred to this Bench.

2. The petitioner is an unfortunate parent. On February 9, 2000, his son Ranjit, a young man of 26 years, was riding a motorcycle. It hit against an electric pole on the highway. He suffered a serious head injury. It meant an instant end. The petitioner lost his only child. He complains that the State and its officers had failed to perform their duty. He laments - if the drivers and riders had been forced to wear helmets, the accident might not have proved fatal. His son might have survived. He prays that a writ of mandamus be issued directing the State and its officers to enforce Section 129 of the Act.

3. In the counter affidavit filed on behalf of the respondents, the mandate of law is not disputed. The necessity of "wearing of protective head gear has been recognized." In view of the increase in the number of accidents, the need for 'stringent steps' is acknowledged. It has, however, been pointed out that the second proviso enables the Government "to provide for such exceptions as it may think fit." In the exercise of this power, the State Government had issued a Notification on January 27,2000 inviting objections and suggestions regarding its proposal to grant exemption to "any person riding on a two wheeler other than the dreiver thereof." The allegation that the Government has shown apathy, indifference or reluctance in enforcing Section 129 has been described as 'absolutely incorrect." It has been "stoutly denied."

4. Learned Counsel for the parties have been heard. On behalf of the petitioner, Mr. S.Parameswaran has contended that the State is bound to enforce the provision of law as contained in S.129. On the other hand, Mr.Roy Chacko submits that the respondents have not acted in violation of any law.

5. The 1939 Act was replaced by the Motor Vehicles Act, 1988 to take care of the 'fast increasing number' of vehicles; 'adoption of higher technology'; the free 'flow of passenger and freight with the least impediments'; the 'concern for road safety statndards' and other similar reasons. The Act of 1988 lays down 'stricter procedures relating to the grant of driving licences and the period of validity thereof.' It lays down 'standards for the components and parts of motor vehicles' and the issue of 'fitness certificates.' The apparent legislative intent is to keep pace with the progress. The dominant purpose is to make driving and roads safe for the drivers and riders.

6. Chapter VIII of the Act provides for control of traffic, specification of parking places, driving regulations, duty to obey traffic signs, provision for signals and signaling devices, etc. All these measures are calculated to make driving easy and the roads safer. The purpose is to ensure safety of the person and property. The provisions promote public interest. These have to be followed by every driver. The default carries penalty. The provisions have to be followed by the people and enforced by the State.

7. Section 129 of the Act is one of the safety measures provided by the Parliament. In fact, Sections 128 and 129 regulate the use of two wheelers. Section 128 inter-alia provides-"no driver of a two-wheeled motorcycle shall carry more than one person in a