INTRODUCTION
In our Country, we have witnessed outrageous protests by the transportation drivers leading to massive scarcity of petrol and diesel, vegetables and other daily usage products. But Why are they protesting? As most of us know the Parliament recently changed the Criminal Laws. IPC[1] Replaced by BNS[2], CrPC[3] replaced by BNSS[4], and IEA[5]was replaced by BSA[6]. There is a significant change in Penal Hit and Run Laws which was formerly enumerated in S.304-A of IPC and now finds its place in S.106 of the newly enacted BNS. So the Driver protest is regarding the newly changed provision of hit and run laws which increases the punishment of Hit and Run cases or you may better be called it ‘Death Caused by Rash and Negligent Act’.
WHY THE PARLIAMENT CHANGED THE LAWS?
It has been laud indication by the law commission as well as by the Ministry of Transport and Highways of India[7] to increase the punishment of hit-and-run offences because it has been seen that the deaths caused by Rash and Negligent driving is significantly increasing on a year-to-year basis.
As per the Report of the Ministry of Transport and Highways, during the year 2021, a total number of 4,12,432 road accidents have been reported in the country, claiming 1,53,972 lives and causing injuries to 3,84,448 persons. Every year, approximately 1.5 lakh people die on Indian roads, which translates, on average into 1130 accidents and 422 deaths every day or 47 accidents and 18 deaths every hour.[8]
In another data figure, ‘overspeeding’ accounts for 71.7% of total road accidents, 69.6% of total deaths and 72.9% of total injuries. The number of accidents due to “overspeeding” increased by 11.4%. The data for 2021, however, reveals that 46.9% of accidents, 54.2% of deaths and 46.9% of injuries occurred in an open area (locations which normally do not have any human activity).[9]
According to the National Crime Records Bureau, in 2022, a total of 47,806 incidents of Hit and Run occurred in India and killed 50,815 people. It means that nearly 6 people were killed in hit-and-run cases every hour and 140 lost their lives per day[10].
These figures are head-wrenching. The rapid increment of deaths caused by road accidents, in particular, by hit-and-run cases paved the way for the parliament to increase the punishment. Now the punishment is increased from two years imprisonment to 5 years and in the second case which provides for 10 years imprisonment in case the offender fails to report the crime to the Police or Magistrate.
ANALYSIS OF CHANGE IN HIT-AND-RUN LAWS
As Parliament has brought new Criminal Laws. These three laws were published in the official Gazette and received the President’s assent on 25th December 2023. But the govt. officials are stating that these new laws are yet to be enforced. The Union Ministry Stated that these new Criminal laws will be enforceable on 26 January.[11]Bhartiya Nyaya Sanhita, BhartiyaSakshyaAdhiniyam and BhartiyaNagrik Suraksha Sanhitya would replace the Indian Penal Code, Indian Evidence Act, and Criminal Procedure Code Respectively. The Hit and Run Law is mainly governed by S. 304A of IPC which says that any person who acted in a Rash and Negligent manner and caused death due to the said act would be punished with two years imprisonment with a fine. This Provision of IPC takes place in BNS in section 106 with modification in punishment. The punishment is now increased to five years. It added a proviso that reduces the punishment to two years when the offence is committed by a Medical Practitioner.
It added another clause. this new clause provides for a punishment of ten years imprisonment for those who escape the place of the incident without informing to Police or Magistrate.
If we look into the provision of Section 304-A of IPC, the two main ingredients present in the section are RASH and the NEGLIGENT Act. In Layman’s view, these two terms may be of the same meaning but in Law, Both terms have completely different meanings. These two terms are best explained by Straight,J. in Empress Idu Beg Case[12]– “Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal Negligence on the other hand, is the gross and culpable neglect or failureto exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen”. The Hon’ble Supreme Court in BalchandraWamanPathe vs State of Maharashtra has adopted this particular view[13]. For Instance, if someone is driving a car, even after seeing that a person is crossing the road, he does not reduce the speed or apply break and hit the pedestrian, this act is termed as Rash. However, where if someone is overspeeding the vehicle, in speed restricted and hits someone without the apprehension or knowledge that someone may get hit, this act is a negligent act.
These two ingredients are present in the newly enacted laws, but the drivers are protesting majorly about the second clause of S.106 of BNS, which prescribes ten years of punishment.
WHAT ARE THE DRIVER’S CONCERN?
The driver’s concerns primarily focused on section 106(2) of BNS which provides for a punishment of ten years imprisonment. They viewed that ten years imprisonment with a seven lakh fine is excessive in nature and the punishment is disproportionate to the offence concerned. as the offence of Rash and Negligent act is not required by Mens rea, or it can be said that mens rea (guilty mind) is not a sin qua non for the offence.
They further took the plea that they couldn’t be able to report the accident due to the fear of mob in those cases also where the accident was not covered by the Rash and Negligent act and the accident occurred without any fault on their part.
WHAT WOULD BE THE POSSIBLE SOLUTION?
If we try to figure out why only Commercial Transportation Drivers are protesting and not the individual private ones?, we would come to the conclusion that these drivers are mostly affected by the changed provisions (Supra). There are more than 35 lakh drivers working in this profession and they mostly are poor and middle-class people. The Stringent Punishment with a fine would put their life at peril along with their family members.
Also, there has been a proviso added in S.106(1) of BNS, which exempts a medical practitioner from these stringent punishments. In Simple words, unlike the Drivers, If a medical practitioner commits medical negligence, he/she would have to go only two years imprisonment.Thus from this point of view, this categorisation would violate the equality clause of the COI[14] by creating different punishments for the same offence.
The Government needs to relook at these provisions once more and strive to eliminate any sort of inequality if arises and maintain proportionality for the offence. The Government may consider reducing the punishment from ten years to seven years for offences relating non reporting under section 106 (2) of BNS and the proviso for separate categorization of medical practitioners in Section 106(1) BNS should be eliminated.
As far as the fines are concerned, it is nowhere mentioned in the provisions for INR 7 Lakhs. The imposition of fines would be at the discretion of the Judge who would impose the fine after ascertaining the facts and circumstances of the case. Thus the drivers association should be aware of this misconception.
CONCLUSION
Law is never static, it always changes as the time and situation of society, which would be governed, change. Our Constitution is made flexible in order to meet the changes when required. To say specifically, Criminal Laws should change if the situation demands, these changes can be made either by creating new offences or increasing/reducing the punishment of existing offences. But these amendments should be made for the betterment of the society and the people it governs. There are more than 35 lakh truck drivers protesting which comprises significant numbers, they surely have a cause to protest. The Government should coordinate with them for a possible solution because if the protest continues and the government does not step back, it would impact the National Economy and Citizens would have to suffer.
Author(s) Name: Md. Sajid Ansari (University of Delhi)
Reference(s):
[1] Indian Penal Code,1860
[2]Bhartiya Nyaya Sanhita,2023
[3] Criminal Procedure Code,1973
[4]BhartiyaNagrik Suraksha Sanhita,2023
[5]Indian Evidence Act,1872
[6]BhartiyaSakshya Adhiniyam,2023
[7] Law Commission,Legal Reform to Combat Road Accident (DO No.6(3)133/2008) para 8.1
[8] Ministry of Transport and Highways, Road Accident Report 2022(MoTH 2023) para 1.3 Section1
[9] Ibid
[10]Prakrit Sen Gupta, ‘Crash course on new Law and Trukers’ Strike’ News18 (New Delhi, 2 Jan 2024)
[11]Dilip Singh , ‘Govt to Notify New Criminal Laws by January 26’ Bussiness Line (New Delhi, 2 Jan 2024)
[12] [(1881) 3 All 776]
[13] (1968 SCD 198)
[14] Constitution of India,1949
