By- Kumar Aditya
Maharashtra and states like, Delhi and Karnataka jumped on the bandwagon banning the operation of bike taxis in their respective jurisdictions. Karnataka banned the operation of the bike-taxis way back in 2016. Thereafter, many state governments joined the chain in banning the operation in their respective states Maharashtra Government notified the ban on the operation of the bike taxi vide notification, dated 19th of January, 2023. As per the notification, the government banned non-transport vehicles, including two-wheelers, three-wheelers and four-wheelers, for ride pooling and aggregations. Subsequently, Rapido approached the concerned department to obtain a bike-taxi aggregator license, which was denied on the basis of reliability on the notification. Rapido moved the Bombay High Court, challenging the notification after the department refused the permit to operate as a bike taxi aggregator. However, to its utter disappointment, the high court rejected the plea by the aggregator. Even the Supreme Court denied the relief it sought against the Maharashtra Government’s refusal of the license. The government informed the Supreme Court that it is in the process of framing the scheme to regulate the operation of such a class of vehicles. As of now, four states permit the operation of bike taxis. Out of which, two states have given provisional licenses.
The author finds the notification in conflict with the law made by the central government and therefore is not tenable and must be rendered infructuous. The article has exposed the inconsistency between the state government’s notification and the notification of the central government and pointed to some constitutional provisions and case laws allied thereto in showing such repugnancy renders the state law invalid, and the law made by the parliament takes precedence over such law. The 7th the schedule classifies road transportation into the concurrent list.
THE ORDER OF THE STATE GOVERNMENT IS INCONSISTENT WITH THE CENTRAL LAW
The regulation of bike-taxis is complex. Till now, there is no settled law to regulate the operation of these vehicles. Road Transport falls within the Constitution’s concurrent list; and therefore, the central and the state government possess the requisite authority to regulate the subject matter. The primary issue sweeping over this situation is, when the Union allowed the operation and the registration of bike taxis through its numerous notifications, orders, and committee reports, can the state government’s order to ban the operation take precedence over the permission of the operation by the central government? The author would address the issue in this article and back the assertion with some landmark precedents and constitutional provisions.
Sub-section 2(7) of the Motor Vehicles Act, 1988 defines Contract Carriage as reproduced hereunder:
““contract carriage” means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such a vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such…”
The Carriage Contract means a motor vehicle that carries a passenger for hire and reward and is engaged under a contract and one of the parties to the contract must be the one who holds a permit to drive such a vehicle. The contract must be for the journey from one point to another or to pick up at one location and to drop at another location in return for some reward. Motor Vehicle, as defined in the act, excludes the two-wheeler vehicle from its ambition and therefore such a vehicle cannot operate as a Contract Carriage. Irrespective of that, the central government has been considering the regulation of the bike taxi for long. In effect, it came up with a notification in 2004 bringing motorbikes within the term Transport, thereby permitting the operation and registration of such vehicles as transport. The Committee constituted by the Ministry of Road Transport and Highway vouched for bike-taxi permits like the one issued for city taxi and recommended guidelines to operate the same. The Committee didn’t let it go unrecognized that allowing bike taxis would facilitate last mile connectivity and offer convenient and affordable options to consumers.
Furthermore, the Ministry of Road and Transport has confirmed that the state government ‘can’ issue a license for the motorbike to operate as a taxi under S. 72 and S. 73 of the Motor Vehicle’s Act, 1988. As held by the apex court, non -issuance of a separate license for the operation of bike taxis doesn’t bar such classes of vehicles from operating. Presuming the Central Government would be apprised of such rulings, it considered the operation of bike taxis legal and allowed its operation on the Indian roads. Even if the word “can” indicates the state government has the discretion to allow the operation, the legislative intent, in light of the rulings of the court, is to allow the operation and explicitly announce such operations to be legal.
The notification issued by the government under law is considered to have the force of law. The same is deemed to be legislated by the appropriate legislature, and therefore, the notification has the force of law as if made by the legislature itself.
Article 254 of the Constitution provides, “(1) If any provision of a law made by the Legislature of a State is representative to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such a State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the reputation, be void”.
If any law made by the state legislature is inconsistent with any law made by the parliament for any subject matter falls under the concurrent list, then the law made by the parliament will prevail and the parliamentary law overrides the law made by the state legislature. Considering the legality and the permit of the bike taxi recognized by the central government through the issuance of notifications, iterations made by the MoRTH and the committee reports of the governmental organization, the notification issued by the Maharashtra government banning the operation of the bike taxi is not tenuous and is invalid.
Article 254(2) provides for the exception to Article 254(1) by stating if any law enacted by the state government which is representative to federal law is reserved for the assent or assent by the president, then such law would prevail over the law enacted by the union. In this case, the notification of the state government is neither reserved for the assent of the president nor has the assent been obtained. Therefore, the exception is not applicable. Hence, the argument invalidating the notification stands valid.
in Express Newspapers (Private) Ltd. v. The Union of India as well as in The State of Bombay v. RMD Chamarbaugwala, the Supreme Court held a law creating a state monopoly directly impinges upon any part or provision of Article 19(1) would not be valid. In the instant case, the state is using the monopoly to ban the operation of bike taxis; in consequence, a large chunk of bike taxi drivers got out of business. In my view, the act of state when tested on the anvil of Article 19 did not pass muster.
BIKE TAXI DRIVER DOESN’T REQUIRE SEPARATE PERMIT
In a catena of rulings, the Supreme Court held that motorbike drivers do not require a separate license or permit to drive such a vehicle for transportation or carriage services. in Mukund Dewangan v. Oriental Insurancethe Supreme Court held that the person holding the license to drive two wheelers vehicle doesn’t require a separate permit to use it for commercial purposes placing reliance on another judgment of the apex court in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir. The matter was addressed in the backdrop of the contradictory position of the Supreme Court in its various judgments. As per S. 10 of the Motor Vehicles Act, the license is required based on the class of vehicle, not the type of the vehicle and there are different classes of vehicles. In a similar vein, the apex court in United India Insurance Co. Ltd v. Beepasha held a person holding a license to drive a light motor vehicle registered for private use would not require a separate endorsement or a license to drive such a vehicle for carrying passengers for hire and reward or for some other commercial purposes. Notably, no law requires aggregators to get registered with the concerned authority to operate. It would not be out of place to mention that the aggregators are operating without registration in many states. In the individual capacity, it is firmly established that the bike taxi driver doesn’t require a separate permit to operate. The aggregator is servicing such drivers by linking them with customers and providing affiliation.
In view of the above judgments and the notification issued by the central government, the notification issued by the Maharashtra government in banning the operation of bike taxis is inconsistent and not tenable. The benefits of the operation of such taxis must push the governmental authorities to promote the plying of bike taxis on the road. Even Niti Aayog, in its report on shared mobility refers to motor bike carrier for carrying a passenger for hire and reward as a low-cost option for first and last-mile connectivity and lists a number of models, mainly docked, dockless and peer- to-peer basis bike sharing.
(Kumar Aditya is a law undergraduate at Chanakya National Law University, Patna. The author may be contacted via email at [email protected]).
Cite as: Kumar Aditya‘Ban on the operation of Bike-Taxi is bad in law- An analysis of the Maharashtra Government’s Decision’)