DIPAK MISHRA, J. - (1.)The cardinal and centripodal issue that emanates for consideration in this writ petition is whether a provision providing wearing of protective headgear which is principally meant to protect one from injury, a resultant factor of hazardous happenstance and a chance casualty, should be regarded as an elevated primrose path in a legitimate body polity governed by Rule of Law that forms the bedrock of real welfare society which effectively encompasses and engulfs the constitutional frame-work of should be viewed as a provision inviting the wrath of Article 14 being arbitrary, unreasonable and discriminatory, a transgression and infringement of freedom of movement as enshrined under Article 19 and also destructive of essential conception of Article 21 of the Constitution of India. The challenge, quintessentially put, is to the constitutional validity of Section 129 of the Motor Vehicles Act, 1988 (for brevity the Act') on the bedrock of the aforesaid three Articles and prayer is to declare the said provision of the Act as unconstitutional in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution.
(2.)The facts which are imperative to be exposited are that the petitioner is a citizen of India and is grieved by requirement that has been provided under Section 129 of the Act. It is contended that Section 129 has been brought into the statute book on an assumption that helmet protects from head injury in a case of accident but the research clearly discloses disturbing facts about the helmet inasmuch as wearing helmet is more injurious in comparison to a person being bare headed. It is urged that it is the Government and certain private companies which are engaged in manufacturing helmets that have made a propaganda that wearing helmet is useful and protective and such a view has been calculatively propogated to usher in the idea that helmet may be useful. But. in such propagation others facets have been totally neglected that is how the use of helmet may cause danger to life and how a person becomes more prone to loose his life. It is the stand in the petition that only use of helmet has been taken note of but scientific validity, efficacy and disadvantages of the use of helmet have been totally ignored and a provision has been incorporated by employing mandatory language which makes the provision one without guidance arbitrary and unreasonable.
(3.)A reference has been made to an Article "why helmet increase the danger!" by Tony Pan Sanfelipo, former six year member of Wisconsin Motorcycle Safety Advisory Board wherein the learned member has opined that trauma is a type of injury which affects the body by external force being applied in a violent and sudden manner. While dealing with motorcycle accident it is also important to understand the types of forces which a rider is subjected to and how the body reacts to certain inertia of G-forces. The learned author has defined different types of trauma. In the petition a reference has been made to G-forces having effects over helmet. The said paragraph as reproduced in the petition reads as under :
"'G-Forces' are what determines the extent of injury to the head or neck in many motorcycle accidents. When a body is stopped (due to crashing into a stationary object) or is hurled into space with a three pound helmet flexing the neck, the force of gravity causes the body to weigh many time its actual weight. For example, a male human head, without helmet, weighs about 10 pounds. If subjected to 10 'Gs', that head briefly weighs about 100 pounds, passing that stress and load into neck. Consider adding a 3 pound helmet, and you begin to appreciate the forces your neck has to contend with. Going a little further, using a full form human dummy, developers of the Head and Neck Support (HANS) device found that the head briefly experiences 25 'G's' and weighs about 250 pounds in 35 mile-per-hour impact. With those forces in play, the delicate human brain bounces around in side skull (coup /contrccoup) with a force equal to weighing 75 pounds. A normal brain weighs about 3 pounds. Combined with this is the fact that rotation of the head and neck during one of these crashes severe treating and stretching of the tissues of the brain and brain stem. No helmet can prevent this collision of the brain within the skull."