Opinion Truckers’ protest against hit-and-run law: Why this reform is much needed

These predicaments have led countries across the world to enforce strict laws mandating those involved in grave motor accidents to stay on the accident spot and intimate law enforcement agencies at the earliest. Failure to do so can result in penalties up to €75,000 (Rs 68,27,550) in France and imprisonment for up to 10 years in Virginia (the US). In the UK, death by dangerous driving is punishable for up to 14 years. The Road Safety Annual Report 2022 by the International Transport Forum and OECD suggests that nations with strict hit-and-run laws recorded lower road accident deaths, such as the US (42,915), France (2,944), and the UK (1,608).

Unfortunately, India leads the global road accident fatalities chart, followed by China with only half the numbers at 61,703 deaths. According to MoRTH data, most of these deadly accidents occur due to overspeeding (71.2 per cent), driving without a licence (7.8 per cent), driving on the wrong side of the road (5.4 per cent), drunken driving (2.5 per cent) and mobile phone use (2 per cent). The colonial-era Indian Penal Code’s (IPC) Section 304A has failed to deter such rash or negligent acts due to a limited punishment of up to two years of imprisonment or a fine. Post-independence, countries like Sri Lanka, Bangladesh, and Singapore, which inherited the same IPC, increased the punishment to five years. On the other hand, India continued to witness significant disparities in sentencing for road-related fatalities due to the poor demarcation between 304A cases and vehicular homicides (punishable with 10 years imprisonment under Section 304). This has led to deaths caused by deliberate dangerous driving going under-punished. With the introduction of Bharatiya Nyaya Sanhita, 2023 (BNS), India has attempted to redress this through Section 106 which enhances the maximum punishment for hit-and-run cases to 10 years and a fine.

Addressing the truckers’ concerns

The primary concern among truckers revolves around the fear of facing mob violence or lynching if they stop at the accident site to report to the police/magistrate or aid the victim. However, a close examination of the contentious Section 106(2) of the BNS will alleviate these worries. It holds an individual liable who causes death by rash and negligent driving and escapes without reporting it to a police officer or magistrate soon after the incident.

Here, the term “soon after” must be read in conjunction with a similar statutory duty imposed upon the motorist by Section 134 of the Motor Vehicles Act, 1988. This provision acknowledges that the law never forces someone to do the impossible (lex non-cogit ad impossibilia) and, hence, if the driver apprehends “mob fury”, he is exempted from the duty to take the injured person to a doctor immediately. He can instead report the accident to the nearest police station “as soon as possible”, within 24 hours. This position aligns with the various Supreme Court rulings. In Surinder Singh vs State of Haryana (2014), it was affirmed that “soon” does not mean “immediate” in the expression “soon before” under Section 304B (dowry death) of the IPC. The same was reiterated in the State of MP vs Jogendra (2022), where the Supreme Court held that “soon before” contemplates reasonable time depending on the circumstance of each case.

Thus, in light of the doctrine of purposive interpretation, Section 106(2) will not be attracted in case any motorist flees the accident site fearing an attack but informs a police officer/magistrate as soon as possible. Instead, he will be tried under sub-section 1 of Section 106 with a lesser sentence of up to 5 years, which is a bailable offence. Additionally, the BNS now deters mob lynching by making it a crime under Section 103(2), punishable with a harsh penalty of life imprisonment or death.

Although the intention behind the heightened quantum is to curb the rising hit-and-run caseload, truckers fear potential unjust penalisation, especially when they are blamed for accidents which occur due to the fault of pedestrians, smaller vehicles, bad roads or weather, etc. However, the BNS addresses this problem as well by replacing “or” with “and” between the words “rash” and “negligent” in Section 106(2). This minor yet crucial alteration, absent in the IPC and the initial draft of BNS, adds an extra layer of protection. While “criminal rashness” entails risking a dangerous act with a reckless disregard for its potential harm, “criminal negligence” is a gross failure to exercise reasonable and proper care, leading to injury. Now, both the ingredients of “rashness” and “negligence” must be established beyond a reasonable doubt by the prosecution to hold the driver criminally liable under Section 106(2). Earlier, proving either sufficed. Therefore, the truckers need not worry that the occurrence of a fatal accident in itself would incur liability in a hit-and-run case.

Moreover, an additional safeguard to prevent hasty conclusions based merely on circumstantial evidence in negligence cases was set by the SC recently in Nanjundappa & Anr vs the State of Karnataka (2022). Overturning the conviction of the appellant, the court clarified that “res ipsa loquitur” (the things speak for itself) doesn’t strictly apply and the prosecution must establish a direct link between the negligent act and the victim’s death in such cases. Hence, drivers with minimal or no fault in the accident will not be convicted.

Need of the ‘Golden Hour’

The 201st Law Commission Report emphasised the need to provide swift medical aid to the victim in the critical “golden hour” which can prevent 50 per cent of fatalities. To fulfil this objective, the government had devised the Good Samaritan law to protect and encourage bystanders who provide voluntary immediate assistance. However, in remote areas where public presence is scarce, the erring driver might be the sole responder. It is for this purpose that Section 106(2) discourages a driver from abandoning the victim.

However, there’s much more to be addressed. A comprehensive plan to check overspeeding, improve infrastructure, fix the responsibility of transporters for vehicular maintenance, and ensure efficient emergency medical aid is crucial to solving the problem.

Sharma is Associate Professor of Law and Singh and Sachdeva are fourth-year students at RGNUL, Punjab