Debating India new hit and run law (GS Paper 2, Polity and Constitution)
Why in news?
- Transporters and commercial drivers from States like Maharashtra, Chhattisgarh, West Bengal, and Punjab have staged protests against the recent legislation concerning hit-and-run incidents.
Details:
- Section 106 (2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) stipulates a penalty of up to 10 years in jail and a fine for fleeing an accident spot and failing to report the incident to a police officer or a magistrate. This law is in addition to the colonial-era provision on causing of death due to rash or negligent acts under Section 304A of the Indian Penal Code, 1860.
- Protestors are demanding the withdrawal or amendment of Section 106 (2), backed by the threat of a nationwide strike if their demands are not met.
- They argue that while strict action in hit-and-run cases is necessary, the new law has several flaws that need reconsideration.
What are the demands of protesters?
- Transporters have raised concerns that the offence provides for stringent punishment even where the accidents are unintentional.
- Their primary concern is the severe punishment of 10 years imprisonment and ₹7 lakh fine for drivers who flee the scene of an accident without reporting the same.
- They protest that this penalty is excessive and that it fails to consider their challenging work conditions, including long driving hours and difficult roads.
- Additionally, they argue that accidents may be caused by factors beyond the driver’s control, such as poor visibility due to fog. The same, combined with fears of mob violence against drivers in the event that they stop to assist the injured at accident sites, has fuelled the protests against the law.
Concerns raised by drivers:
- The general perception among drivers is that they are often unfairly blamed for accidents, regardless of the actual circumstances. They argue that the punishment provided by the law is disproportionate and does not align with the realities of road transport and the nature of accidents.
- The drivers are also concerned that the law may be abused by law enforcement agencies to their detriment. They think that these harsh penalties could have a negative impact on the transport industry as a whole given that stringent punishments may deter many from joining or continuing in the profession.
What is the need for the law?
- The new law comes in the backdrop of concerning figures related to road accidents in India. In 2022, India registered the highest count of road crash fatalities, exceeding 1.68 lakh deaths. This unsettling statistic translates to an average of 462 deaths daily.
- Despite a 5% global decrease in road crash deaths, India witnessed a year-on-year increase of 12% in road accidents and 9.4% in fatalities in the same year. The country averages 19 deaths due to road accidents every hour which amounts to nearly one death every three and a half minutes.
- Over half of all road fatalities occurred on national and State highways, which form less than 5% of the total road network.
- With only 1% of the world’s vehicles, India accounts for about 10% of crash-related deaths and incurs an economic loss of 5-7% of its GDP annually due to road crashes.
What is the principle underlying the law?
- The National Crime Records Bureau recorded 47,806 hit and run incidents which resulted in the deaths of 50,815 people in 2022. All penal laws carry with them certain justifications for punishment.
- The side of the coin seeking stringency in punishment appears to lie in an expressive function of the law which wants to deter drivers from engaging in rash and negligent driving that may lead to death.
- On the other side, however, the intent is to punish an offender in the event that they attempt to escape the law after causing death due to rash and negligent driving. Here, the law creates a positive obligation on part of the offender to report such an incident to the police or magistrate.
- They are also provisions to criminalise the omission in the performance of such a duty. The imposition of this legal duty clearly arises from a legislative intent to enforce moral responsibility on the part of the offender towards the victim of a road accident. Such conversion of moral responsibility into a legal duty is not new to cases pertaining to motor vehicle accidents.
- For instance, Section 134 of the Motor Vehicles Act, 1988, requires the driver of the vehicle to take all reasonable steps to secure medical attention for the injured person unless it is not practicable on account of mob fury or any other reason beyond his control.
- Similarly, the question of whether the offender fled from the spot was identified as a significant factor in the scheme for motor accidents claim formulated by the Delhi High Court in the case of Rajesh Tyagi versus Jaibir Singh (2021).
Penalties under the law:
- The widely circulated view that Section 106 (2) of the BNS stipulates an imprisonment of up to 10 years and a fine of ₹7 lakh for fleeing an accident spot and failing to report the incident to a police officer/magistrate is grossly incorrect.
- While this Section discusses a maximum punishment of 10 years and a fine, there is no actual mention in the BNS about the fine being ₹7 lakh. Section 161 of the Motor Vehicles (Amendment) Act, 2019, provides compensation for victims of hit-and-run accidents.
- The compensation for death is ₹2 lakh and for grievous hurt it is ₹50,000. Unlike Section 106 (2) of BNS, the compensation in this case is not recoverable from the drivers.
- Sub-section 1 of Section 106 of the BNS applies to rash or negligent driving where if the driver reports the matter to the police, they shall incur a punishment of up to five years with a fine.
- However, in the latter case of 106 (2), if the driver fails to report the matter and escapes, they will be imprisoned for up to 10 years. Despite increase in the quantum of punishment in this section, the offence has not been made non-bailable.
Need to reexamine the law:
- The way forward is to revisit and reconcile these two clauses so that more than 35 lakh truck drivers in the country are not treated unfairly, apart from individual vehicle drivers.
- For instance, an exception has been made under 106 (1) of the BNS for doctors in the event of rash or negligent acts, where the punishment will be up to two years with a fine.
- This limited categorisation is problematic and is against the principles of equality, as the liability of a wide variety of people working in other sectors also needs to be moderated.
Rash and negligent driving:
- Section 106 (2) is particularly contested and protested by truck drivers, and this section has the scope to be revisited. This section does not differentiate between rash and negligent driving as two separate types.
- In order to provide a graded liability and commensurate punishment, the acts of rash driving and negligent driving must be separated and placed under different degrees of liability so that all incidents of this nature are not bracketed into one, causing prejudice to the actors.
- Arguably, this determination of the actor’s liability has to consider contributory factors in negligent acts such as the behaviour of commuters, road conditions, lighting on the road, and other similar factors.
- In such a situation, the applicability of one clause fitting to all categories will serve as prejudice against drivers in different circumstances.
- Instead of ruling 10 years of imprisonment for all cases, the same could be categorised in different scales based on liabilities so that the apprehensions of the drivers could be put to rest. Further, there are many ambiguities about this clause, particularly among drivers.
- Hence, it is necessary to mention that in cases of accidents resulting in grievous/straightforward injuries, the corresponding classified clauses of liabilities will apply, and that the applicability of Section 106 (2) will be invoked only in the event of death due to an accident.
- The road accidents resulting in minor injuries ought not to be equated with criminal acts. Here measures like community service or revoking of driving licences or mandatory driving retests etc. could be the ways to criminalise.
