By Waseem Khaliq and Showkat Ahmad Mir
The changes in the 19th century in Europe had not only led to the emergence of industrialization, but the process of rationalization overtook the socio-political landscapes as never seen before. Thereafter, the advent of sovereign states and the emergence of new laws gave rise to new dynamics of Colonialist-colonized dichotomy. In the 21st Century, Old laws became obsolete and new laws were framed however, there had always been some political and ideological interests behind the door. Some thinkers saw the law in a utilitarian framework while others found it in the brackets of ‘habitual command’ necessary to be followed. In the same vein, recently in India, the government claims to have streamlined the criminal major laws in the country by replacing the existing Penal Code, Criminal Procedure Code and The Evidence Act with Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA). This act has started another debate in the context of colonialist-colonized framework.The legal intellectuals and experts present dissimilar viewpoints on the same, while some welcomed the new criminal law as post-colonial and Indianized in essence, others presented them as variegated pictures with patches or re-colonizing laws in modern attire. Common people, usually unfamiliar with legal technicalities although exhibited a silent approach against these laws so far, but the driver community has sent shockwaves to the entire country by calling strikes and colossal protests against the new hit-and-run law introduced by section 106(2) of the BNS. Truck, Bus, and Taxi drivers believe that the new hit-and-run law is more draconian and stringent as it would discriminately victimize the drivers.
Understanding this law and dispelling the fear
Section 106 of the BNS provides punishment for a death caused by a rash or negligent act. While subsection 1 provides the punishment of imprisonment of up to 5 years and a fine, on the other side section 106 (2) provides enhanced imprisonment of up to 10 years and a fine in the case where a person after causing death by rash and negligent driving escapes the place of occurrence without informing the police or magistrate. Widely known as hit-and-run law this provision has replaced earlier Penal law which provided imprisonment of up to 2 years for causing the death of any person by rash or negligent act. The offence was bailable under the old law but the new criminal law BNS has made this offence more severe by making it non-bailable and imposing stringent punishment. Though this law is still to come into force, it has caught the attention of drivers throughout the country. Believing it as discriminatory and unreasonable drivers apprehend that this law is likely to be misused against them, thus victimizing them even without their being any fault. This fear constrained them to call strikes and hold long demonstrations against the hit-and-run law. The enhanced punishment under section 106 (2) is not attracted where the driver informs the police or magistrate about the occurrence, in that case, section 106(1) applies which provides a punishment of up to 5 years with a fine only. The enhanced punishment is not applicable even in non-serious accidental cases, where no death is caused. However, the drivers apprehend that people around the occurrence place respond to the accidents impulsively and are adverse to them, which may even cause physical and mental torture. This apprehension though justifiable cannot be an excuse to get a free hand for an act which is itself an offence.
Why the strict hit–and–run law is needed
Stringent punishment for serious accident cases can be viewed as a remarkable move by the Centre because the old laws did not provide adequate punishment for the offence of death by rash and negligent driving. Law Commission in its 234th report had recommended 10 years of rigorous imprisonment for the offence of causing death by rash/reckless driving. In the same report, the commission also recommended a minimum imprisonment of 2 years for causing death by driving under the influence of liquor. A report titled ‘Road Accidents in India-2022’ released by the Ministry Of Road Transport and Highways shows a huge surge in the number of accidental fatalities in 2022. Over 1.5 lac people died and around 4.5 lac suffered injuries due to accidents. The major causes of such accidents were rash/negligent driving, driving under the influence of alcohol/ intoxicating drugs, over speeding, driving on the wrong side/ lane of the road, jumping a red light and using of mobile phone while driving. Hit-and-run law in its present form may prove to be a golden law in combating the terror of reckless driving. It exhibits a deterrent approach towards carelessness and negligent driving, which in turn would check the menace of hit-and-run cases. It will boost the speedier investigation of serious accident cases, identification and apprehension of the accused as well as immediate assistance to the victim. Furthermore, it aids Section 134(2) of the Motor Vehicle Amendment Act 2019 which imposes a duty on the driver of a vehicle involved in an accident to report the circumstances of occurrence to the nearest police station.
Challenges surrounding this law
The hit–and–run law in its present form is susceptible to ambiguities and interpretational conjuncture. There seems an absence of reasonable nexus between the gravity of failure to inform authorities and the severity of punishment provided for it. Escaping without reporting cannot be taken as grave as the substantive offence of causing death by rash and negligent driving, thus mere failure to inform the police should hardly warrant a fine or imprisonment of up to a few months. The provision would be subjected to multiple interpretations. It stipulates information to concerned authorities after the accident, but how? Is the driver supposed to go to the police station or the magistrate in person and inform them about the occurrence or mere telecommunication or other instant modes of communication will suffice? In the latter case to escape the enhanced punishment, the accused would just hit a call to police about the occurrence and leave the spot, thus defeating the purpose of this provision. Again expecting the Instant information to police after the accident by the accused is obscure for the reason that the person’s mental health at the time accident is affected severely. The aftershock and mental trauma to the Accused at the occurrence should have been taken into contemplation by the legislature and limited time say 12 or 24 hours should have been allowed him to inform the police station or a magistrate. Furthermore, the driver is bound to inform the police or magistrate before leaving the spot only where death is caused. What if a person survives and only grievous hurt or simple hurt is caused? He can flee the spot without informing the authorities. This shows a huge discrepancy in the law which makes it subject to reconsideration.
Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer
- Waseem Khaliq has studied Law at Aligarh Muslim University and works as Advocate in J&K and Showkat Ahmad Mir is a Research Associate in the ICSSR research project at the Central University of Himachal Pradesh. They can be contacted at: [email protected], [email protected]
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