SAVELIFE FOUNDATION & ANR Vs. UNION OF INDIA & ANR

Tags PIL

Supreme Court of India (Division Bench (DB)- Two Judge)

Writ Petition (Civil), 235 of 2012, Judgment Date: Mar 30, 2016

We also direct that the scheme framed by the  Central  Government  and
this order be widely published through electronic media and print media  for
the benefit of public so that public  is  made  aware  and  that  serves  as
impetus to good Samaritans to extend timely help  and  protection  conferred
upon them without incurring the risk of harassment.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.235 OF 2012

Savelife Foundation & Anr. … Petitioners

Vs.

Union of India & Anr. … Respondents

JUDGM ENT

ARUN MISHRA, J.

1. The petition has been filed under Article 32 of the Constitution of
India in public interest for the development of supportive legal framework
to protect Samaritans i.e. bystanders and passers-by who render the help to
the victims of road accidents. These individuals can play a significant
role in order to save lives of the victims by either immediately rushing
them to the hospital or providing immediate life saving first aid.
2. The petitioner is ‘SaveLife Foundation’, a non-profit, non-
governmental organization registered as a Public Charitable Trust and had
been established in 2008. The petitioner aims to create a unique network
of medical responders to come to the victim’s aid. The petitioner has also
drafted recommendations to address the critical deficiencies in the Motor
Vehicles Act, and other laws governing road safety.
3. The Department of Road Transport is responsible for framing motor
vehicle legislation and evolving road safety standards in India. The WHO
in its ‘World Report on Road Traffic Injury Prevention, 2004’ has projected
that by 2020, road accidents will be one of the biggest killers in India.
It also emphasized that in low income countries, the most common desisting
factor restraining the public from coming forward to help victims, is the
apparent fear of being involved in police cases. There is need to build
confidence amongst the public to help road accident victims. Bystanders
should not be insisted to divulge their personal particulars or detained in
the hospital for interrogation. People are hesitant to render immediate
help to the road accident victims. The victims lay wounded on the road for
some time till the arrival of police. Delay rendering medical help in such
cases sometimes is fatal. Good Samaritans have the fear of legal
consequences, involvement in litigation and repeated visits to police
station. There is urgent need to tackle these issues. There is need to
establish legal framework so that Good Samaritan is empowered to act
without any fear of adverse consequences or harassment. Save life must be
the top priority.
4. Several countries have enacted such laws. In England and Wales, the
Parliament has enacted the Social Action, Responsibility and Heroism Act
2015 which provides for certain factors to be considered by the Court while
hearing an action for negligence or breach of duty. Section 2 of the Act
provides that the Court must consider whether the respondent was acting for
the benefit of society or any of its members. Section 5 of the Act further
provides that the Court must consider whether the respondent was acting
heroically by intervening in an emergency to assist an individual in
danger. In Ireland, section 51D of the Civil Law (Miscellaneous
Provisions) Act 2011 provides that a good Samaritan will not be liable in
negligence for any act done in emergency to help person in serious and
imminent danger. In Australia, protection to good Samaritan is provided in
several states. In New South Wales and Victoria, for instance, a good
Samaritan is protected from personal civil liability with respect to
anything done in state of emergency or accident by virtue of Civil
Liability Act 2002 and Wrongs Act 1958 respectively. In Canada, various
states like Ontario, Alberta and British Columbia offer protection to good
Samaritans. In Ontario, the Good Samaritan Act 2001, by Section 2 (1),
provides that except for gross negligence, a person is not liable for
damages resulting from his acts during aid in emergency. Similar protection
is provided in states of Alberta, British Columbia and Nova Scotia by
Emergency Medical Aid Act, Good Samaritan Act and Volunteer Services Act
respectively. Similar protection to good Samaritans is to be found in
different states’ laws in the USA. States of Alabama, Alaska, Arizona,
Arkansas, California and New York, to name a few, provide that if a person
lends emergency assistance or service to another person in good faith, he
is not liable in civil damages with respect to his act or omission.
5. Accident cases require fastest care and rescue which could be
provided by those closest to the scene of the accident. Bystanders clear
support is essential to enhance the chances of survival of victim in the
‘Golden Hour’ i.e. the first hour of the injury. As per the WHO India
Recommendations, 50% of the victims die in the first 15 minutes due to
serious cardiovascular or nervous system injuries and the rest can be saved
through by providing basic life support during the ‘Golden Hour’. Right
to life is enshrined under Article 21 which includes right to safety of
persons while travelling on the road and the immediate medical assistance
as a necessary corollary is required to be provided and also adequate legal
protection and prevention from harassment to good Samaritans.
6. In letter dated 9.9.2004, Joint Secretary, Department of Road
Transport and Highways addressed to all the State Governments and Union
Territories, it has been highlighted that the WHO in its World Report on
Road Traffic Injury Prevention, 2004 has pointed out that “while in high-
income countries, there is a reasonably well-organised ambulance based
rescue system, in middle and low-income countries, assistance by bystanders
is most common. In our country, while organizing of trauma care apart of
intervention is also required, there is another factor, namely, relative
ignorance on part of public to come forward to help the road crash victims,
for apparent fear that they might be involved in “police cases.” The
letter further states that Research shows that a number of the accident
victims can be saved if they receive immediate medical attention.” The
letter also admits that due to fear of harassment people do not always come
forward to attend them.”
The Department of Road Transport and Highways had also sent letter dated
19.2.2004 to the States and Union Territories enclosing a Circular issued
by the police authorities in Delhi in order to build confidence in the
public for helping road accident victims. The Circular stated that it is
likely that the person who brings the injured to the hospital would
hesitate to provide his particulars, and in such a case, it should not be
insisted upon. Furthermore, it was also stated therein that the escorters
or the person who bring the victims to the hospital should, under no
circumstances, be detained in the hospital for interrogation. It was
suggested in the said letter that action on similar lines may be considered
by the States and UTs.
7. The people have the notion that touching the body could lend them
liable for police interrogation. Passerby plays safe and chose to wait for
the police to arrive whereas injured gradually bleeds to death. People are
reluctant to come forward for help despite, desperate attempts to get help
from passerby, by and large they turn blind eyes to the person in distress.
Sometimes those who help are rebuked due to ignorance by the others on
touching the scene. In the case of a convoy even when there are several
vehicles in the convoy, people wait for the ambulance to arrive and also
for the concerned police help. There are several desisting factors which
are required to be taken care of such as fear of legal consequences if once
action is ineffective or harmful to victim, fear of involvement in
subsequent prolonged investigation and visit to the police station. There
is need to evolve the system by promptly providing effective care system
with certain ethical and legal principles. It is absolutely necessary that
Good Samaritans feel empowered to act without fear of adverse consequence.
There is need to provide certain incentives to Good Samaritans. There is
also dire need to enact a Good Samaritan Law in the country since there is
a felt need of legislation for affording protection to Good Samaritans.
8. While issuing notice on 17.8.2012, this Court has observed:
“It remains undisputed before us that it is not insufficiency of law but it
is implementation of law which is a matter of concern. Different
guidelines including guidelines for ambulance Code, emergency care and
appropriate directions to the hospitals on the highways for handling the
accident trauma patients, as a top priority are stated to have been issued.

Learned counsel appearing for the parties submit that an expert
committee would need to be constituted to monitor the various directions
issued for their due compliance.
Learned counsel for the parties even propose to make joint
suggestions in this regard after consulting the relevant Ministries and
NHA. The counsel appearing for the petitioner has vehemently argued that
the joint suggestions now to be filed should also consider the directions
and safeguards that could be provided to the passers-by or informers of the
accident. This will even help the expeditious disposal of criminal cases.
Let this aspect be also examined by the learned counsel appearing for the
parties who are to submit the joint suggestions.”

9. This Court vide order dated 11.12.2012 has constituted a Committee
consisting of 8 members and to submit the suggestions before this Court.
The members of the said Committee are as follows:
Additional Secretary of Ministry of Home Affairs;

Secretary and or his nominee, Ministry of Health and Family Welfare to be
nominated in consultation with Directorate General Health Services;

Secretary and or his nominee from Ministry of Law and Justice;

Jt. Commissioner (Traffic) – Delhi Police;

Chief of the AIIMS Trauma Centre;

The Director General or his nominee not below the rank of the Additional
Director General of the Protection Road Organizations;

Save Life foundation representative;

Mr. M.P. Tiwari or his nominee from any of the NAOS John Ambulance
representative.

The scope of reference of the Committee inter alia included following
aspects with which we are concerned in the instant matter;
“(ix) Identify the root causes for fear of harassment and legal hassles
in general public regarding helping injured victims.
Deliberate and develop a set of guidelines for protecting Good Samaritans
from police harassment and legal hassles. The guidelines will aim to
address the root causes for fear of harassment and legal hassles in general
public regarding helping injured victims. These guidelines will also serve
as a foundation for further legislative work in the area of protecting Good
Samaritans.”

The Committee was required to submit report to this Court within three
months. On 14.8.2014, this Court passed an order to have the views of
concerned ministries of Union of India. This Court observed in order dated
24.9.2014 that in this petition the only issue which is required to be
addressed is with regard to ‘Good Samaritans’. All other issues that arise
in the writ petition have already been referred to the Committee headed by
Mr. Justice K.S. Radhakrishnan, former Judge of this Court.
10. This Court on 29.10.2014 has passed an order in view of affidavit
filed on behalf of Ministry of Road Transport and Highways wherein it has
been stated that the recommendation made in the Skandan Committee’s report
regarding protection of good Samaritans has been accepted by the said
ministry and also by Ministry of Law & Justice. This Court directed both
the ministries in consultation with each other to issue necessary
directions with regard to protection of good Samaritans until appropriate
legislation is made by the Union Legislature.
On 7.8.2015, this Court has noted that notification dated 12.5.2015
laying down ‘Good Samaritan Guidelines’ has been issued by the Ministry of
Road Transport and Highways, Government of India. Suggestions were invited
so as to give more teeth to the guidelines.
On 27.11.2015, this Court was informed by the learned Additional
Solicitor General that the suggestions given have been incorporated in the
form of Standard Operating Procedure which has been issued as an Office
Memorandum. The views of Ministry of Health and Family Welfare, Ministry
of Home Affairs and Ministry of Law and Justice are awaited. This Court
issued a direction to look into the possibility of giving statutory status
to the Standard Operating Procedure either in the form of a notification or
regulations or guidelines.
11. The Ministry of Road Transport and Highways has issued a notification
containing guidelines on 12.5.2015 published in the Gazette of India para 1
of Section 1 of the Notification dated 12.5.2015 for protection of good
Samaritans and a further Notification has been issued on 21.1.2016 in
accordance with para 1(7) and 1(8) of the guidelines dated 12.5.2015 which
required standard operating procedures to be framed and issued for
examination of good Samaritans by the police or during trial. It has been
mentioned in the affidavit filed by Ministry of Road Transport and
Highways, Government of India that in the absence of any statutory backing,
it is felt that it will be difficult to enforce these guidelines issued on
12.5.2015 and standard operating procedures as notified on 21.1.2016. It
has also been mentioned that the notified guidelines in relation to
protection of a bystander or good Samaritan are without prejudice to the
liability of the driver of a motor vehicle involved in the road accident,
as specified under section 134 of the Motor Vehicles Act, 1988.
Notification dated 12.5.2015 issued by the Ministry of Road Transport
and Highways containing guidelines for protection of good Samaritans to be
in force till appropriate legislation is framed by Union Legislature, is
extracted hereunder:
“No.25035/101/2014-RS.—Whereas the Hon'ble Supreme Court in the case of
Savelife Foundation and another V/s. Union Of India and another in Writ
Petition (Civil) No. 235 of 2012 vide its order dated 29th October, 2014,
interalia, directed the Central Government to issue necessary directions
with regard to the protection of Good Samaritans until appropriate
legislation is made by the Union Legislature;
And whereas, the Central Government considers it necessary to protect the
Good Samaritans from harassment on the actions being taken by them to save
the life of the road accident victims and, therefore, the Central
Government hereby issues the following guidelines to be followed by
hospitals, police and all other authorities for the protection of Good
Samaritans, namely:-
1. (1) A bystander or good Samaritan including an eyewitness of a road
accident may take an injured person to the nearest hospital, and the
bystander or good Samaritan should be allowed to leave immediately except
after furnishing address by the eyewitness only and no question shall be
asked to such bystander or good Samaritan.
(2) The bystander or good Samaritan shall be suitably rewarded or
compensated to encourage other citizens to come forward to help the road
accident victims by the authorities in the manner as may be specified by
the State Governments.
(3) The bystander or good Samaritan shall not be liable for any civil and
criminal liability.
(4) A bystander or good Samaritan, who makes a phone call to inform the
police or emergency services for the person lying injured on the road,
shall not be compelled to reveal his name and personal details on the phone
or in person.
(5) The disclosure of personal information, such as name and contact
details of the good Samaritan shall be made voluntary and optional
including in the Medico Legal Case (MLC) Form provided by hospitals.
(6) The disciplinary or departmental action shall be initiated by the
Government concerned against public officials who coerce or intimidate a
bystander or good Samaritan for revealing his name or personal details.
(7) In case a bystander or good Samaritan, who has voluntarily stated that
he is also an eye-witness to the accident and is required to be examined
for the purposes of investigation by the police or during the trial, such
bystander or good Samaritan shall be examined on a single occasion and the
State Government shall develop standard operating procedures to ensure that
bystander or good Samaritan is not harassed or intimidated.
(8) The methods of examination may either be by way of a commission under
section 284, of the Code of Criminal Procedure 1973 or formally on
affidavit as per section 296, of the said Code and Standard Operating
Procedures shall be developed within a period of thirty days from the date
when this notification is issued.
(9) Video conferencing may be used extensively during examination of
bystander or good Samaritan including the persons referred to in guideline
(1) above,who are eye witnesses in order to prevent harassment and
inconvenience to good Samaritans.
(10) The Ministry of Health and Family Welfare shall issue guidelines
stating that all registered public and private hospitals are not to detain
bystander or good Samaritan or demand payment for registration and
admission costs, unless the good Samaritan is a family member or relative
of the injured and the injured is to be treated immediately in pursuance of
the order of the Hon’ble Supreme Court in Pt. Parmanand Katara vs Union of
India & Ors [1989] 4 SCC 286.
(11) Lack of response by a doctor in an emergency situation pertaining to
road accidents, where he is expected to provide care, shall constitute
“Professional Misconduct”, under Chapter 7 of the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulation, 2002 and
disciplinary action shall be taken against such doctor under Chapter 8 of
the said Regulations.
(12) All hospitals shall publish a charter in Hindi, English and the
vernacular language of the State or Union territory at their entrance to
the effect that they shall not detain bystander or good Samaritan or ask
depositing money from them for the treatment of a victim.
(13) In case a bystander or good Samaritan so desires, the hospital shall
provide an acknowledgement to such good Samaritan, confirming that an
injured person was brought to the hospital and the time and place of such
occurrence and the acknowledgement may be prepared in a standard format by
the State Government and disseminated to all hospitals in the State for
incentivising the bystander or good Samaritan as deemed fit by the State
Government.
(14) All public and private hospitals shall implement these guidelines
immediately and in case of noncompliance or violation of these guidelines
appropriate action shall be taken by the concerned authorities.
(15) A letter containing these guidelines shall be issued by the Central
Government and the State Government to all Hospitals and Institutes under
their respective jurisdiction, enclosing a Gazette copy of this
notification and ensure compliance and the Ministry of Health and Family
Welfare and Ministry of Road Transport and Highways shall publish
advertisements in all national and one regional newspaper including
electronic media informing the general public of these guidelines.
2. The above guidelines in relation to protection of bystander or good
Samaritan are without prejudice to the liability of the driver of a motor
vehicle in the road accident, as specified under section 134 of the Motor
Vehicles Act, 1988 (59 of 1988).
Sd/- Jt. Secy.”
12. [pic]Para 1(7) and 1(8) of the guidelines dated 12.5.2015 required
standard operating procedure to be framed for the examination of the good
Samaritans. The Central Government, Ministry of Road Transport and Highways
has issued notification on 21.1.2016 which is as under:
“No. RT-25035/101/2014-RS.—Whereas, the Hon'ble Supreme Court in the case
of Save Life Foundation and another Vs Union of India and another in Writ
Petition (Civil) No. 235/2012 vide its order dated 29th October 2014, inter-
alia, directed to issue necessary directions with regard to the protection
of Good Samaritans until appropriate legislation is made by the Union
Legislature;
And whereas, the Central Government published the guidelines in the Gazette
of India, Extraordinary, Part I, Section I dated 12th May 2015 for
protection of the Good Samaritans, i.e. a person who is a bystander or a
passer-by, who chooses to assist an injured person or a person in distress
on the road;
And whereas, as per para 1 (7) and (8) of the said guidelines dated 12th
May, 2015, Standard Operating Procedures are to be framed for the
examination of Good Samaritans by the Police or during trial;
And whereas, the Central Government considers it necessary to issue
Standard Operating Procedure for the examination of Good Samaritans by the
Police or during trial and here by issue the following standard operating
procedure, namely:—
1. 1. The Good Samaritan shall be treated respectfully and without any
discrimination on the grounds of gender, religion, nationality, caste or
any other grounds.
2. Any person who makes a phone call to the Police control room or Police
station to give information about any accidental injury or death, except an
eyewitness may not reveal personal details such as full name, address,
phone number etc.
3. Any Police official, on arrival at the scene, shall not compel the Good
Samaritan to disclose his / her name, identity, address and other such
details in the Record Form or Log Register.
4. Any Police official or any other person shall not force any Good
Samaritan who helps an injured person to become a witness in the matter.
The option of becoming a witness in the matter shall solely rest with the
Good Samaritan.
5. The concerned Police official(s) shall allow the Good Samaritan to leave
after having informed the Police about an injured person on the road, and
no further questions shall be asked if the Good Samaritan does not desire
to be a witness in the matter.
2. Examination of Good Samaritan by the Police
i. In case a Good Samaritan so chooses to be a witness, he shall be
examined with utmost care and respect and without any discrimination on the
grounds of gender, religion, nationality, caste or any other grounds.
ii. In case a Good Samaritan chooses to be a witness, his examination by
the investigating officer shall, as far as possible, be conducted at a time
and place of his convenience such as his place of residence or business,
and the investigation officer shall be dressed in plain clothes, unless the
Good Samaritan chooses to visit the police station.
iii. Where the examination of the Good Samaritan is not possible to be
conducted at a time and place of his convenience and the Good Samaritan is
required by the Investigation Officer to visit the police station, the
reasons for the same shall be recorded by such officer in writing.
iv. In case a Good Samaritan so chooses to visit the Police Station, he
shall be examined in a single examination in a reasonable and time-bound
manner, without causing any undue delay.
v. In case the Good Samaritan speaks a language other than the language of
the Investigating Officer or the local language of the respective
jurisdiction, the Investigating Officer shall arrange for an interpreter.
vi. Where a Good Samaritan declares himself to be an eye-witness, he shall
be allowed to give his evidence on affidavit, in accordance with section
296 of the Code of Criminal Procedure, 1973 (2 of 1974) which refers to
Evidence in Formal Character on Affidavit.
vii. The complete statement or affidavit of such Good Samaritan shall be
recorded by the Police official while conducting the investigation in a
single examination.
viii. In case the attendance of the Good Samaritan cannot be procured
without delay, expense or inconvenience which, under the circumstances of
the case, would be unreasonable, or his examination is unable to take place
at a time and place of his convenience, the Court of Magistrate may appoint
a commission for the examination of the Good Samaritan in accordance with
section 284 of the Code of Criminal Procedure, 1973 (2 of 1974) on an
application by the concerned.
3. The Superintendent of Police or Deputy Commissioner of Police or any
other Police official of corresponding seniority heading the Police force
of a District, as the case may be, shall be responsible to ensure that all
the above mentioned procedures are implemented throughout their respective
jurisdictions with immediate effect.
Sd/- Jt. Secretary.”
Prayer has been made on the part of the Ministry of Road Transport
and Highways of Government of India that the guidelines notified on
12.5.2015 and the standard operating procedure notified on 21.1.2016 may be
declared to be enforceable by this Court so that it is binding on all the
States and Union Territories until the Union Government enacts a law to
this effect.
13. In Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244 in the
matter of inter-country adoption and so as to prevent malpractices and
trafficking of children under the guise of adoption, this Court has laid
down certain principles and norms to be followed in the cases of such
adoption in detail, as there was absence of statutory provisions with
respect to inter-country adoptions.
14. In D.K. Basu v. State of W.B. (1997) 1 SCC 416, this Court
considering the fact that the custodial violence, torture, rape, death in
police custody/lock-up infringes Article 21 as well as basic human rights
and strikes a blow at the rule of law, directions have been issued for
compliance by Police personnel while arresting or detaining any person as
preventive measures in addition to constitutional and statutory safeguards
and previous directions of this Court.
15. In Vishaka and Ors. v. State of Rajasthan & Ors. (1997) 6 SCC 241
considering the absence of enacted law to provide for effective enforcement
of the basic rights to gender equality and guarantee against sexual
harassment and abuse, more particularly against sexual harassment at
workplaces, this Court has laid down guidelines and norms for due
observance at all work places or institutions until the legislation is
enacted for the purpose.
16. In Vineet Narain & Ors. v. Union of India & Anr. (1998) 1 SCC 226
this Court has referred to various decisions in which guidelines and
directions have been issued in exercise of powers of this Court under
Article 32 read with Article 142. The relevant portion is extracted
hereunder :
“51. In exercise of the powers of this Court under Article 32 read with
Article 142, guidelines and directions have been issued in a large number
of cases and a brief reference to a few of them is sufficient. In Erach Sam
Kanga v. Union of India [WP No.2632 of 1978 decided on 20.3.1979) the
Constitution Bench laid down certain guidelines relating to the Emigration
Act. In Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244 (In re,
Foreign Adoption), guidelines for adoption of minor children by foreigners
were laid down. Similarly in State of W.B. v. Sampat Lal (1985) 1 SCC 317,
K. Veeraswami v. Union of India (1991) 3 SCC 655, Union Carbide Corpn. v.
Union of India (1991) 4 SCC 584, Delhi Judicial Service Assn. v. State of
Gujarat (1991) 4 SCC 406 (Nadiad case), Delhi Development Authority v.
Skipper Construction Co. (P) Ltd. (1996) 4 SCC 622 and Dinesh Trivedi, M.P.
v. Union of India (1997) 4 SCC 306 guidelines were laid down having the
effect of law, requiring rigid compliance. In Supreme Court Advocates-on-
Record Assn. v. Union of India (1993) 4 SCC 441 (IInd Judges case) a nine-
Judge Bench laid down guidelines and norms for the appointment and transfer
of Judges which are being rigidly followed in the matter of appointments of
High Court and Supreme Court Judges and transfer of High Court Judges. More
recently in Vishaka v. State of Rajasthan (1997) 6 SCC 241 elaborate
guidelines have been laid down for observance in workplaces relating to
sexual harassment of working women. In Vishaka (supra) it was said: (SCC
pp. 249-50, para 11)
“11. The obligation of this Court under Article 32 of the Constitution for
the enforcement of these fundamental rights in the absence of legislation
must be viewed along with the role of judiciary envisaged in the Beijing
Statement of Principles of the Independence of the Judiciary in the LAWASIA
region. These principles were accepted by the Chief Justices of Asia and
the Pacific at Beijing in 1995 (*) (As amended at Manila, 28th August,
1997) as those representing the minimum standards necessary to be observed
in order to maintain the independence and effective functioning of the
judiciary. The objectives of the judiciary mentioned in the Beijing
Statement are:
“Objectives of the Judiciary:
10. The objectives and functions of the Judiciary include the
following:
(a) to ensure that all persons are able to live securely under the rule of
law;
(b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between persons and
the State.”
Thus, an exercise of this kind by the court is now a well-settled practice
which has taken firm roots in our constitutional jurisprudence. This
exercise is essential to fill the void in the absence of suitable
legislation to cover the field.
52. As pointed out in Vishaka (supra) it is the duty of the executive to
fill the vacuum by executive orders because its field is coterminous with
that of the legislature, and where there is inaction even by the executive,
for whatever reason, the judiciary must step in, in exercise of its
constitutional obligations under the aforesaid provisions to provide a
solution till such time as the legislature acts to perform its role by
enacting proper legislation to cover the field.”

17. In Union of India v. Association for Democratic Reforms & Anr. (2002)
5 SCC 294, the decisions in Vineet Narain (supra), Vishaka (supra) and
other decisions have been followed and this Court has laid down the law
that an exercise to fill the void in the absence of suitable legislation is
now a well-settled practice which has taken firm roots in our
constitutional jurisprudence. Similar is the decision in Kalyan Chandra
Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. (2005) 3 SCC 284. In
Common Cause v. Union of India (2015) 7 SCC 1, law to the same effect has
been reiterated thus :
“7. In the earlier order dated 23-4-2014 (2014) 6 SCC 552, this Court,
after holding that reasonableness and fairness consistent with Article 14
of the Constitution would be the ultimate test of all State activities
proceeded to hold that the deployment of public funds in any government
activity which is not connected with a public purpose would justify
judicial intervention. We would like to say something more.
8. Part IV of the Constitution is as much a guiding light for the Judicial
organ of the State as the Executive and the Legislative arms, all three
being integral parts of the “State” within the meaning of Article 12 of the
Constitution. AIR 1967 SC 1, (1973) 4 SCC 225. A policy certainly cannot be
axed for its alleged failure to comply with any of the provisions of Part
IV. Neither can the courts charter a course, merely on the strength of the
provisions of the said Part of the Constitution, if the effect thereof
would be to lay down a policy. However, in a situation where the field is
open and uncovered by any government policy, to guide and control everyday
governmental action, surely, in the exercise of jurisdiction under Article
142 of the Constitution, parameters can be laid down by this Court
consistent with the objects enumerated by any of the provisions of Part IV.
Such an exercise would be naturally time-bound i.e. till the legislature or
the executive, as the case may be, steps in to fulfil its constitutional
role and authority by framing an appropriate policy.”

18. In view of the aforesaid discussion, it is apparent that guidelines
and directions can be issued by this Court including a command for
compliance of guidelines and standard operating procedure issued by
Government of India, Ministry of Road Transport and Highways, till such
time as the legislature steps in to substitute them by proper legislation.
This Court can issue such directions under Article 32 read with Article 142
to implement and enforce the guidelines which are necessary for protection
of rights under Article 21 read with Article 14 of the Constitution of
India so as to provide immediate help to the victims of the accident and at
the same time to provide protection to Good Samaritans. The guidelines will
have the force of law under Article 141. By virtue of Article 144, it is
the duty of all authorities – judicial and civil – in the territory of
India to act in aid of this Court by implementing them.
19. We have carefully gone through the notification dated 12.5.2015.
However, as per the guidelines contained in para 13, the ‘acknowledgement’
if so desired by Good Samaritans, has to be issued as may be prescribed in
a standard format by the State Government. In our opinion, till such time
the format is prescribed, there should be no vacuum hence we direct that
acknowledgement be issued on official letter-pad etc. and in the
interregnum period, if so desired by Good Samaritan, mentioning the name of
Samaritan, address, time, date, place of occurrence and confirming that the
injured person was brought by the said Samaritan.
We have also gone through the notification dated 21.1.2016 with
respect to the examination of Good Samaritan by the Police as contained in
para 2(vii) which we modify and be read in the following manner :
“The affidavit of Good Samaritan if filed, shall be treated as complete
statement by the Police official while conducting the investigation. In
case statement is to be recorded, complete statement shall be recorded in a
single examination.”
Remaining guidelines in the notifications dated 12.5.2015 and
21.1.2016 are approved and it is ordered that guidelines with aforesaid
modifications made by us be complied with by the Union Territories and all
the functionaries of the State Governments as law laid down by this Court
under Article 32 read with Article 142 of the Constitution of India and the
same be treated as binding as per the mandate of Article 141.
20. We also direct that the court should not normally insist on
appearance of Good Samaritans as that causes delay, expenses and
inconvenience. The concerned court should exercise the power to appoint the
Commission for examination of Good Samaritans in accordance with the
provisions contained in section 284 of the Code of Criminal Procedure, 1973
suo motu or on an application moved for that purpose, unless for the
reasons to be recorded personal presence of good Samaritan in court is
considered necessary.
21. Affidavits have been filed on behalf of State of Tripura and State of
Orissa. They have issued the notification. However, the treatment shall not
be less favourable than the one as provided in the aforesaid guidelines
which are issued by the Ministry of Road Transport & Highways which have
been made a part of this Order, and the guidelines issued by the state
Governments in consonance thereof shall also be binding upon all concerned
to be complied with scrupulously. However, it is clarified that guidelines
in relation to protection of a Good Samaritan are without prejudice to the
liability of the driver of a motor vehicle involved in a road accident as
specified under section 134 of the Motor Vehicles Act, 1988.
22. We record our appreciation for the efforts made in formulating
guidelines by all concerned, the members of Committee, concerned
Department, learned Solicitor General and positive attitude of the counsel
for the other parties who have readily agreed that guidelines be approved
and be enforced as binding till appropriate legislative provisions are
made.
23. We also direct that the scheme framed by the Central Government and
this order be widely published through electronic media and print media for
the benefit of public so that public is made aware and that serves as
impetus to good Samaritans to extend timely help and protection conferred
upon them without incurring the risk of harassment.
24. In view of the aforesaid directions, the writ petition stands
allowed. No order as to costs.

…………………………….J.
(V. Gopala Gowda)

New Delhi; …………………………..J.
March 30, 2016. (Arun Mishra)

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