Sanjeev Ahluwalia | Punitive Laws Alone Can't De-Risk India's Highways

Christmas Day, December 25, is also Good Governance Day in India, as it has been since 2014, to coincide with the birth anniversary of the late Atal Behari Vajpayee, India’s hugely loved and respected Prime Minister. On Good Govern-ance Day last year, the Centre notified the Bhartiya Nyaya Sanhita (BNS) to replace the Indian Penal Code 1860 (IPC).

The pressure to present the BNS as a home-grown substitute for a 163-year-old colonial law on Good Governance Day seems to explain the rushed processing. The BNS was tabled in the Lok Sabha on August 11, 2023, examined by the parliamentary standing committee on home affairs, and subsequently withdrawn by the government and re-tabled as Bhartiya Nyaya (Second) Sanhita Bill in Parliament on December 12, 2023. Both the Lok Sabha and the Rajya Sabha approved it within two weeks, as 146 Opposition party members (out of a total membership of 793 in both Houses) remained suspended for protesting in the Well of the House. Whilst their absence does not undermine the legality of the BNS, it does illustrate the sharpening of, hopefully temporarily, the pre-election political discord.

The rule of law is a basic good governance principle and laws, like BNS, reflecting contemporary needs, are critical to legitimise judicial rulings. The earlier IPC and the new BNS list and describe the over 300 types of punishable crimes and define punishments for each crime.

Within days of the BNS becoming public, after approval by the President of India, it provoked unanticipated outrage and civic action from unions affiliated with vehicle drivers. Buses and trucks came to a standstill on January 1 and 2 followed by sporadic strikes by taxi unions, causing widespread disruption to the supply of goods and public transportation. Their ire was directed at the new sub-section 2 of Section 106 which provides for up to 10 years’ imprisonment (a five-fold hike) and fine for accidentally killing someone whi-lst driving a vehicle “rashly or negligently” and ther-eafter “escaping” from the scene without informing the police. In colloquial terms, a “hit and run” incident.

The urgency to curb “hit and run” cases is unambiguous. Twelve per cent of the 1.1 million unnatural deaths in 2021 (the latest year for which the National Crimes Bureau data is publicly available) are due to road accidents of which one third are “hit and run” cases. Timely medical care can save the victim. Why then the surge of disaffection with the BNS? Disproportionately punitive punishment proposed in the new sub-section is to blame.

The principle of proportionality dictates that punishment for crimes should be related to their severity. Imprisonment up to 10 years is a punishment for offences against the State or for dacoity, both of which are voluntary and intentional breaches of law. Intent matters in law. Unintentionally causing death during robbery — although an intentional breach of the law — is punishable only up to seven years’ imprisonment since the death is unintentional.

The specific crime of rash and negligent driving attracts imprisonment of up to six months and a fine. Sub-section 1 of Section 106 prescribes imprisonment up to two years for a doctor rashly or negligently causing the unintentional death of a patient. The existing provision under Section 106 for the generic offence of causing an unintentional death, by “any rash or negligent act” is imprisonment up to five years with a fine. Why doctors are privileged with a lower punishment is unclear. By these standards, proportionate punishment for rash and negligent driving resulting in an accidental death compounded by the failure to report the incident, deserves imprisonment between two years (as for doctors) and five years (for others).

Sadly, BNS sought to incentivise compliance with the law by maximising the punishment. This “Hobbesian” approach reflects a “medieval” mindset which India has abandoned long ago.

Research, including at the National Institute of Justice in the US, shows that enhancing the scale of punishment alone does not enhance compliance with the law. To motivate vehicle drivers, to be more socially responsible and report any tragic mishaps, an alternative is to reward socially appropriate behaviour by limiting imprisonment to two years (like doctors) if the offender reports the incident, with the longer sentence of up to five years reserved for those both “rash and negligent” and socially irresponsible enough to escape after committing the crime.

Truck, bus, or taxi drivers are usually not locals. It is the threat of loss of limb or even life, at the hands of locals enraged by the accident which might persuade the driver to escape.

Not being from the privileged classes (unlike owner-drivers of private vehicles), they are at the mercy of the crowd which gathers around an accident, often bent upon delivering swift, vigilante justice. Nor does a longer potential imprisonment pose a threat to habitual offenders or individuals protected by pelf and privileges. This set of errant drivers are best disciplined by unbiased investigation, aided by enhanced digital policing and determined prosecution — none of whi-ch are at present universal.

Those likely to suffer the consequences of harsher punishments under Section 106 (2) BNS are the less privileged drivers who cause a fatal accident. There are 362 million registered vehicles versus the adult (18 years plus) population of around 793 million. The number of licensed women drivers is increasing. With growing incomes and better road infrastructure, personal vehicles are expected to increase faster than safer transportation infrastructure, like controlled access to highways, road segregation via protected walkways, conveniently spaced pedestrian underpasses and overpasses, accident management services, including a national police portal for reporting accidents, getting a digital token as evidence of an accident report and better public awareness about police station jurisdictions along highways to enable recourse to the police.

The government recognises this conundrum. It speedily assured the agitators of more consultation before implementing Section 106, sub-section 2 of BNS, resulting in withdrawal of the agitation within three days. This was in sharp contrast to the extended farm laws’ agitation in 2020-2021 against the well-intentioned but poorly marketed laws, before they were finally repealed by the government a year later.

With the pressure of Good Governance Day 2023 now waning, and a year in hand to rectify errors, the next iteration of the BNS should contextualise the proportionality of punishment with the severity of the crime. Unless all segments of the rule of law machinery become more efficient, punitive punishments alone will worsen the life of all vehicle drivers caught in an unintended, tragic, road accident.