Kumar Deepraj
The newly passed Criminal law legislations are in news for all sort of reasons, be it the name of the Bills, then withdrawal of the initial Bills, followed by the approval of the Parliament amidst suspension of the opposition MPs, and now with the proposed punishment in a road accident case.
The truckers’ associations had commenced a nation-wide strike, protesting against the stringent punishment for accident cases mentioned in the new criminal law, i.e., the Bharitya Nyay Sanhita (BNS), which is a substitution of the existing Indian Penal Code 1860. Although, BNS, has received the accent of the Hon’ble President, but is still to be notified by the Central Government. Till the same is notified, the BNS is not in force, and the crime /criminals is still governed by the existing IPC.
The author in this article, shall examine the proposed law on accident cases mentioned in the BNS, and shall make a comparison with the existing law, with reference to the concern of the Truck & Bus Drivers.
What is Bharitya Nyay Sanhita?
The existing statute defining the crime and prescribing the punishment for the same, is Indian Penal Code 1860. Under the chairmanship of Lord Macaulay, the first Law Commission was constituted in the year 1834, in order to examine the power, authority, procedure and rules of the police force, and criminal laws. One of the recommendation of the abovementioned commission was the Indian Penal Code 1860, which is still continuing with some amendments from time to time.
A statute enacted by the British Government a century ago, was refurbished from time to time; however, this time, the Government decided, to change it completely rather than upgrading it from time to time.
The Statement of Objects and Reasons of Bharitya Nyay Sanhita, is reproduced herein for the sake of ready reference –
- In the year 1834, the first Indian Law Commission was constituted under the Chairmanship of Lord Thomas Babington Macaulay to examine the jurisdiction, power and rules of the existing Courts as well as the police establishments and the laws in force in India.
- The Commission suggested various enactments to the Government. One of the important recommendations made by the Commission was on, the Indian Penal Code, which was enacted in 1860 and the said Code is still continuing in the country with some amendments made thereto from time to time.
- The Government considered it expedient and necessary to review the existing criminal laws with an aim to strengthen law and order and also focus on simplifying legal procedure so that ease of living is ensured to the common man. The Government also considered to make existing laws relevant to the contemporary situation and provide speedy justice to common man. Accordingly, various stakeholders were consulted keeping in mind contemporary needs and aspirations of the people with a view to create a legal structure which is citizen centric and to secure life and liberty of the citizens.
- It is proposed to enact a new law, by repealing the Indian Penal Code, to streamline provisions relating to offences and penalties. It is proposed to provide first time community service as one of the punishments for petty offences. The offences against women and children, murder and offences against the State have been given precedence. Some offences have been made gender neutral. In order to deal effectively with the problem of organised crimes and terrorist activities, new offences of terrorist acts and organised crime have been added in the Bill with deterrent punishments. A new offence on acts of armed rebellion, subversive activities, separatist activities or endangering sovereignty or unity and integrity of India has also been added. The fines and punishments for various offences have also been suitably enhanced.
- Accordingly, a Bill, namely, the Bharatiya Nyaya Sanhita, 2023 was introduced in the Lok Sabha on 11th August, 2023. The Bill was referred to the Department-related Parliamentary Standing Committee on Home Affairs for its consideration and report. The Committee after deliberations made its recommendations in its report submitted on 10th November, 2023. The recommendations made by the Committee have been considered by the Government and it has been decided to withdraw the Bill pending in Lok Sabha and introduce a new Bill incorporating therein those recommendations made by the Committee that have been accepted by the Government.
- The Notes on Clauses explains the various provisions of the Bill.
- The Bill seeks to achieve the above objectives.
The Bharatiya Nyaya Sanhita was introduced in the Parliament by the Sh. Amit Shah, the Union Home Minister on 11th August 2023 proposing to replace the Indian Penal Code. It was examined by the Standing Committee of Home Affairs. Subsequently, on the recommendation of the Standing Committee, this Bill was withdrawn, and a second Bill, i.e., The Bharatiya Nyaya (Second) Sanhita, 2023 was introduced on December 12, 2023. The Bill received the positive voting from the Lok Sabha on 20.12.2023, and from the Rajya Sabha on 21.12.2023. Eventually it received the assent of the Hon’ble President of India on 25.12.2023, which elevated the status of Bill to an Act. However, as stated above, the date of enforcement is yet to be notified by the Central Government.
Section 106 of the Bharatiya Nyaya Sanhita; the issue of controversy
The bare language of Section 106 of the BNS, which is the issue in controversy, is reproduced herein for the sake of ready reference –
106. Causing death by negligence.
(1) Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.
Explanation.— For the purposes of this sub-section, “registered medical practitioner” means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.
(2) Whoever causes death of any person by rash and negligent driving of vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.
The issue in controversy is the punishment prescribed in the sub section (2), which has been enhanced to 10 years. The maximum punishment as prescribed in this abovementioned section has been drastically increased if compared to Section 304A of the IPC 1860.
Section 304A of the IPC, prescribed only 2 years of punishment, and therefore this agitation. Section 304A of the IPC, also did not listed out a separate offence for hit and run. Section 304A states:
304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The reference to hit & run in the proposed law, has not become a hot topic. The practical difficulty which the truck association is highlighting is that many – a times, after an accident, the crowd goes unregulated, and therefore, if a driver doesn’t escape from the site, he may eventually lose his life, or may be seriously injure.
The act of criminals by deliberately coming before a vehicle also cannot be ruled out. A lot of cases has come in recent past of criminal deliberately coming before vehicle to get hit, and when the vehicle stops to check, he gets looted.
The objective of the legislature by incorporating this provision, seems to punish those driver who drives recklessly and after committing accident, rather than doing the first aid or taking the injured to hospital, runs away from the spot. Report also suggests that many injures (of road accident) could be saved if the injured is taken to hospital in time.
The objective of the legislature is genuine and warranted; however, the negative effect of the same also cannot be ruled out. An explanation to the section, may solve the grievance of the stake holder, and an innocent can be saved from this draconian law.
Author of this article Kumar Deepraj is an Advocate, practising in the Hon’ble Supreme Court of India and the Hon’ble High Court of Delhi, New Delhi.
He may be reached at
mail@advkumardeepraj.com