Jolly, acting for Delhi resident Rohini Jolly, today challenged the notification in the Delhi high court for being contrary to the provisions of the Act under which it was issued, for having retrospective effect and for discriminating arbitrarily between classes.  Additionally, he argues, that the government is breaking the rule of erecting traffic signs informing citizens that the notification is effective from 15 April 2016 to 30 April 2016.

Jolly has prayed to the court to strike down the notification. If the notification remains he has asked that the court direct the Delhi government to erect traffic signs with information about the notification before implementing it, to exempt all women – regardless of occupying a car driven by a male driver - from the notification, and to exempt all citizens driving cars purchased before the date of the notification.

Jolly has pointed out several flaws in the Delhi government’s enactment and implementation of the odd even notification, as grounds in his petition.

1. The fault in inconveniencing old cars

Jolly has stated in the petition that the odd-even notification is delegated legislation and that the courts have settled that delegated legislation cannot have retrospective effect unless the law under which the delegated legislation is made allows it to have retrospective effect. Section 115 lacks such a provision.

“[…]has retroactive effect insofar as that a person purchasing a motor vehicle before the Notification and having been granted a registration number by the registration authority and without him having a choice of the registration number (unless extra expenditure is incurred for special numbers) is now restricted from using the vehicles on specified dates without even having any recourse for change in the registration number[…]”

2. The fault with wild classification

He explains in the petition that vehicle registration number does not form the “class” of vehicles envisaged under Section 115, because this number is simply issued on a “first-come-first-serve” basis, instead of any rational nexus for classification:

“the registration number of a vehicle is granted by the registration authority on a running/first come first serve basis and does not, in any case, form a class or description of motor vehicle on the basis of which a restrictive or prohibitory notification can be issued under Section 115”

“[…] Notification restricting the movement of non-transport four-wheeled vehicles on odd and even days on the basis of registration number of such vehicles has been issued under Section 115 read with Section 2(41) of the Motor Vehicles Act 1988 (the “Act”) without appreciating that the power to issue Notification under that Section does not extend to creating a classification of vehicles on the basis of its registration number. The creation of a sub-class on the basis of registration number is beyond the powers conferred under Section 115 of the Act[…]”

He has argued that the notification arbitrarily discriminates between women who can drive and women who cannot drive, by allowing women who can drive to be exempt from the notification on the grounds that single women drivers are unsafe in Delhi. He asserts that women in cars driven by male drivers, because they are unable to drive, have been irrationally excluded from this “class within the class”.

3. The fault with using Motor Vehicles Act for pollution control

The purpose of the Motor Vehicles Act is vehicular traffic management, whereas the purported object of the odd-even notification is pollution control. But the notification was ordered under the Motor Vehicles Act – specifically under its Section 115. This, he argues, is unacceptable.

“[…] Section 115 occurs in Chapter VIII of the Act which deals with control of traffic. Therefore, the restrictions on plying of vehicles imposed under Section 115 of the Act must naturally be towards control of movement of traffic and therefore, the words “in the interest of public safety or convenience” must be read in a manner to mean inconvenience from movement of vehicles and not pollution for vehicles which can happen even from stationary vehicles. […]”

4. The fault with not presenting observed benefits

Jolly has argued that despite the Delhi high court’s directions to the government, on 11 January 2016 – which was during the last time the government had enforced the odd-even rule – the government has not presented any evidence demonstrating that the benefits achieved from such a legislation outweigh the inconvenience caused to the public at large.

During the Delhi government’s last round of this notification – 1 January 2016 to 15 January 2016 – the Delhi high court declined to interfere with the legislation.

Picture by Dahlstorms

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