The new hit-and-run law, under Section 106 of the Bharatiya Nyaya Sanhita, 2023 has triggered concerns among transport workers. How can we balance the need for lowering deaths due to vehicular accidents with the concerns of transport workers?
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INDIA has the second largest road network in the world, about 63.32 lakh kilometres, as per the 2022–23 Annual Report of the Ministry of Road Transport and Highways.
This comprises national highways, expressways, state highways, major district roads, other district roads and village roads. This vast road network has proven to be a significant driver of India’s economic growth and connects the countryside to metro cities, opening up opportunities for development in the countryside.
Trucks, buses and tanks are the blood of this circulatory system of the Indian economy.
However, recently India witnessed a major clog in its arteries as a large number of vehicles lined up at petrol stations. The gatherings were due to truck, bus and tanker drivers calling for a three-day strike in response to the new ‘hit-and-run’ law incorporated in the recently passed Bharatiya Nyaya Sanhita (BNS), 2023.
Section 106 describes the offence of “causing death by negligence” and “failure to inform the authorities of the death so caused”.
The issue stems from Section 106 of the BNS. Section 106 describes the offence of “causing death by negligence” and “failure to inform the authorities of the death so caused”.
More specifically Section 106(2) of the BNS has put a spanner in the works of truck, tanker and bus drivers.
Section 106(2) prescribes a term of imprisonment of ten years and a fine for failure to inform authorities about death in a hit-and-run case. Many transport workers have responded to this new law with reservations.
The law
Till now, death caused due to rash and negligent driving was punishable under Section 304A of the Indian Penal Code (IPC), 1860.
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The High Court of Delhi, in Shalinder versus State of Haryana, observed, “In order to establish the guilt against the petitioner, prosecution is required to prove the essential ingredients of the offence beyond all shadows of doubt and in case of offence punishable under Section 304A of the Penal Code, 1860 prosecution is required to establish the following ingredients:
(i) Death of person in question.
(ii) Accused has caused such death.
(iii) The act of the accused was rash and negligent not amounting to culpable homicide.”
Further, the abovementioned explanation was affirmed by the Delhi High Court in Narender versus State (Govt. Of NCT of Delhi).
On the other hand, for offences under Section 106(2) of the BNS, the essential ingredients which must be met are:
- Death of a person not amounting to culpable homicide.
- By rash and negligent driving of the vehicle.
- The driver of the vehicle flees from the site without reporting the incident to a magistrate or police.
Since ‘rash and negligent’ driving is a common element in the old as well as the new law, it becomes necessary to get a clear understanding of the term.
The Supreme Court, in Rathnashalvan versus State of Karnataka, elaborated on the law involving rash and negligent acts, noting, “Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case.
Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that they will not. Negligence is a breach of duty imposed by law.”
Government’s stand
As per NCRB data, a total of 446,768 road accident cases were reported during 2022. Road accident cases in the country have increased from 403,116 in 2021 to 446,768 in 2022.
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The fatalities in road accidents have increased by 9.9 percent (from 155,622 in 2021 to 171,100 in 2022).
The 446,768 road accidents caused 171,100 deaths and injuries to 423,158 persons during 2022. India ranks first in the number of persons killed in road accidents among 207 countries, as reported in the World Road Statistics, 2020.
The BNS has put a spanner in the works of truck, tanker and bus drivers.
The legislative intent behind introducing the law is to prevent the driver from evading the moral responsibility towards the victim. The punishment is stringent as the government’s objective is to ensure deterrence against the rising rate of deaths and injuries being caused due to rash and negligent driving.
The sense of legal duty introduced under Section 106(2) of the BNS is novel. Section 134 of the Motor Vehicles Act, 1988 only affords protection from civil and criminal action to a person who causes death or injury in the course of securing medical or non-medical care and assistance— the so-called ‘good samaritan’ provision. But does not make such acts mandatory.
Rule 136 of the Central Motor Vehicles Rules, 1989 provides for a driver of a vehicle with dangerous or hazardous goods to report to the nearest police station as soon as possible.
The Road Accidents in India, 2022 report, released in November 2023, says that the number of deaths reported in India due to road crashes in 2018 was 150,785 and it rose to 153,792 in 2021. The number was 1.3 lakh in 2010.
The theory of deterrence, which seems to be the legislative intent behind introducing the law, for the issue of death and injury arising from rash and negligent driving, has been underlined by the Supreme Court in Dalbir Singh versus State of Haryana, where the court states, “While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence.
“A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion.
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“This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.”
While dealing with the question of sentence in case of rash and negligent driving, the Supreme Court held in State of Karnataka versus Sharanappa Basanagouda Aregoudar, that the sentence imposed by the courts below should have a deterrent effect on potential wrongdoers and it should be commensurate with the seriousness of the offence.
Plight of workers
The government has clarified that the law has been made not only for heavy vehicles but applies to all vehicles, i.e., bikes, cars, auto rickshaws, trucks and tankers. The reading of Section 106(2) does not hint in any manner that the law will apply only to trucks and buses.
Still, historical and anecdotal data suggests that the brunt of the Section will be borne by transport workers.
While the government intends to bring down the rising death rates due to road accidents, there is a need for a proper redress of the problem from the worker’s side as well.
Transport workers have expressed concerns regarding the stringent punishment for imprisonment of up to 10 years and a fine of ₹7 lakh. While the punishment for failing to inform the police or magistrate is imprisonment for a period of a maximum of 10 years, the fine amount of ₹7 lakh is nowhere mentioned in the BNS and is grossly incorrect.
India ranks first in the number of persons killed in road accidents among 207 countries, as reported in the World Road Statistics, 2020.
Instead, under the Motor Vehicle (Amendment) Act, 2019, victims are awarded a compensation of ₹2 lakh in case of death and ₹50,000 in case of grievous hurt.
Workers have reservations regarding the punishment as it is too harsh even when they are at no fault. They fear that the law will make their lives difficult on top of the already tense work environment they live in.
Then there remains a looming threat of an emotionally charged mob causing danger to their lives.
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In India, there is a general tendency to blame heavy vehicles in case of an accident, without any justifiable case. This issue was also pointed out by the High Court of Delhi, in State of NCT Delhi versus Jagbir Singh, where it held, “It is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is a dominant factor in cases of accident.”
The deterrence effect which seems to be the jurisprudence of the law is not the only recourse available to the government. The government should ponder upon incorporating the ‘correction principle’ instead.
The Supreme Court of India, in the Rattan Singh versus State of Punjab judgment being delivered by Justice V.R. Krishnan Iyer, in Para 5 observed, “Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb.
“The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences.”
It is not always the heavy-vehicle drivers who are at fault, there are cases in which the driver, while taking proper care and caution on the road, meets with an unfortunate incident, as is often seen during winters due to poor visibility. Often it has been observed that the road conditions are not appropriate to ride vehicles.
The Road Accidents in India, 2022 report, released in November 2023, says that the number of deaths reported in India due to road crashes in 2018 was 150,785 and it rose to 153,792 in 2021.
After the strike of the transport workers, there have been assurances from the government that the law will be enforced only after due deliberations with the transport sector. Union home secretary, Ajay Bhalla, has assured transport workers that the government will implement Section 106(2) of the BNS only after proper consultation with the All India Motor Transport Congress.
Requiring reconsideration of the law
The intention of the government behind the law is laudatory, but there are certain issues to be dealt with. Imprisonment for up to ten years, and that too for a person who may be the only bread earner for his family, is problematic.
The 18th Law Commission suggested in its on Legal Reforms to Combat Road Accidents that a new clause be inserted in the IPC titled 304B for “causing death or injury by rash and negligent driving”. It suggested imprisonment of up to 7 years and a fine as appropriate for such offences. Many characterised that as a punishment too harsh.
While the government intends to bring down the rising death rates due to road accidents, there is a need for a proper redress of the problem from the worker’s side as well.
The stated aim of the BNS is to be a justice-centric and not a punishment-centric law. Doesn’t Section 106(A) do a hit-and-run on this approach?
