Above: The petitioner has linked the exemption given to women and children from wearing helmets in MP to safety issues/Photo: UNI

A PIL by a law student in Bhopal has drawn the attention of the state government to an anomaly in the law that exempts women and children from wearing helmets on two-wheelers

By Rakesh Dixit in Bhopal

Women not wearing helmets while driving two-wheelers on roads in Madhya Pradesh are routinely challaned under Section 129 of the Motor Vehicles (MV) Act, 1988, which makes wearing of the protective headgear mandatory. The police are merely following the law, you would think. However, they are actually violating it.

Women who are caught riding without headgear may not be aware of the exemption they enjoy under Rule 213 (2) of the Madhya Pradesh Motor Vehicle Rules, 1994. The rule not only exempts them but also children aged 12 or less from wearing a helmet while driving or pillion riding.

However, this exemption has now come under legal scrutiny. Himanshu Dixit, a third-year student of the National Law Institute University, Bhopal, has filed a Public Interest Litigation challenging the legality of the exemption in the Madhya Pradesh High Court on the grounds that it exposes women to the danger of fatal accidents.

Acting on the PIL filed on October 24, a division bench of Acting Chief Justice Sanjay Yadav and Justice Vijay Kumar Shukla sought a reply from the state government within 15 days and posted the matter for further hearing in the week commencing November 11.

The 22-year-old law student argued that the rule not only violates Articles 14, 15(1), 21 of the Constitution, but is also ultra vires the parent statute (MV Act of 1988).

The petitioner pointed out that the traffic police campaign “no helmet, no petrol” required both men and women to wear helmets when they went to a petrol pump to get fuel for their vehicles. The plea also cited data on women two-wheeler riders involved in fatal accidents. It said that fatal accidents on India’s roads claimed thousands of lives as both men and women driving two-wheelers did not wear helmets.

Close to 43,600 two-wheeler riders without helmets died in road accidents in 2018, which is 21 percent higher than the previous year (35,975), according to the Transport Research Wing of the Ministry of Road Transport & Highways. The share of pillion riders without helmets who were killed stood at about 15,360 in the same period.

The figures provided by state governments come as a grim reminder of the critical role played by helmets in saving lives amid reports that Gujarat and Jharkhand have announced exemption for pillion riders over wearing of safety gear despite the law asking them to do so.

While 958 two-wheeler drivers without helmets were killed in Gujarat last year, the number of helmet-less pillion riders killed was 560. Similarly in Jharkhand, the number of such drivers and pillion riders killed stood at 790 and 450, respectively, according to a media report. Uttar Pradesh reported the maximum number of helmet-less two-wheeler riders dying in 2018 (6,020). This was followed by Maharashtra (5,232).

The recently notified amendments to the Motor Vehicles Act, 2019, make it mandatory for all two-wheeler riders to wear helmets except turbaned Sikhs. Though there is a provision to make helmets mandatory for children above four years, the government will notify this provision later considering that there are not enough numbers of helmets available to meet the requirement.

Citing contradictions in the Motor Vehicles Act, 1988, and Madhya Pradesh Motor Vehicle Rules, 1994, the petitioner stated that in 25 years since the rules were introduced, many women have been issued challans for not wearing a helmet. The Madhya Pradesh government, however, is reported to be amenable to change in the helmet exemption rule for women and children.

The Kamal Nath government has refrained from implementing the new MV Act, 2019, citing “unacceptably” high fines for traffic violators. But its objection is essentially to the harshness of the fine, it is not against uniform rule on wearing helmets, regardless of gender. Sources in the law department said that in the next hearing slated on November 11, the government lawyer will tell the Court that the exemption rule is being done away with.

A senior officer in the department admitted that the exemption for women is incongruous with not only the MV Act but also with the spirit of the Constitution. He expressed surprise as to why the previous governments had let this anomaly remain unchanged.

The anomaly came into sharp focus in 2016 when the Madhya Pradesh traffic police launched its “No helmet-No petrol” campaign. On the directive of the district administration across the state, traffic police tried hard to implement the “No helmet-No petrol” rule even though its own website mentioned that “total exemption is given by Rule 193 MP Motor Vehicle Rules 1994 to all women from the requirement of wearing protective headgear while driving or riding two-wheelers”.

The then transport commissioner of Madhya Pradesh, Shailendra Shrivastava, had admitted the existence of the anomaly but clarified that no proposal from traffic police or anyone had come to amend this rule.

“If someone approaches us with the request to change the exemption rule, we will change it. Since no one approached the transport department with a proposal for change, the exemption rule has remained. And despite the exemption, women are issued challans for not wearing helmets,” he admitted.

The Motor Vehicles Act, 1988, provides exemption from wearing helmets only for Sikhs. Section 129 of the Act says: “Every person driving or riding (otherwise than in a side car, on a motor cycle of any class or description) shall, while in a public place, wear protective headgear conforming to the standards of Bureau of Indian Standards. The provision of this Section shall not apply to a person who is a Sikh, if he is, while driving or riding on the motor cycle, in a public place, wearing a turban.” However, the same Section also provides that the “State Government may, by such rules, provide for such exceptions as it may think fit”.

 

It is this provision in the MV Act, 1988, which the Madhya Pradesh government availed of in order to extend exemption to women and children by incorporating Rule 213 (2) in the Madhya Pradesh Motor Vehicle Rules, 1994.

Significantly, the new MV Act, introduced this year, doesn’t exempt even Sikh men or women from wearing helmets unless they are turbaned. Last month, the Chandigarh traffic police clarified that it will no longer go easy on women not wearing helmets and exemption will only be given to turbaned persons, male or female.

The Punjab police have said that the provision given under Section 124 of the Act to state governments to draft exceptions to this rule had been taken away. The law which states that only turbaned Sikh men and women will be exempted will now be followed.

In October 2018, Sikh women in Chandigarh had been exempted from wearing helmets by a Union home ministry order. It directed the Chandigarh administration to implement an amendment to the MV Act that was carried out by the Delhi government.

The decision followed a meeting between then Union Home Minister Rajnath Singh with the Shiromani Akali Dal leaders led by former Chief Minister Parkash Singh Badal and party president Sukhbir Badal.

In 1999, the Delhi government had made wearing helmets an option for all women. This rule, however, was later changed in 2014 when only Sikh women were granted the exemption.

The Department of Transport, Delhi Government, in a June 4, 1999, notification had amended Rule 115 of the Delhi Motor Vehicle Rules, 1993, making it optional for women “whether riding on pillion or driving motorcycle to wear a protective headgear”. The rule was further amended through another notification dated August 28, 2014, whereby the word “women” was replaced by “Sikh women”.

While Chandigarh exempted all women riders from wearing helmets, the states of Punjab and Haryana have exempted only Sikh women. On April 21, 2018, following Punjab and Haryana High Court directions, the Chandigarh UT administration proposed that all women, except for turbaned Sikhs, wear helmets. The High Court had in December 2017 initiated suo motu proceedings on increasing road fatalities involving two-wheeler women riders, and asked the administration to consider measures to prevent such mishaps.

About 24 women in three years had lost their lives and 85 were injured in two-wheeler accidents on the roads of Chandigarh. A High Court ruling in 1998 to restrict the exemption only to “Sikhs wearing turban while driving” had been resisted by Sikh bodies and Chandigarh had witnessed protests. Sikh bodies had argued that their tenets forbade the wearing of any cap.

In 2004, the Supreme Court, too, ruled that the state had powers to relax rules in a particular area. Following this, Chandigarh relaxed the norms and exempted all women from wearing helmets. Madhya Pradesh had relaxed such a rule even earlier.

The 22-year-old student’s legal activism has finally opened the Madhya Pradesh government’s eyes to a 25-year-old anomaly in the MV Act.