By: Dipak Kurmi
Every December 25 in India is not just Christmas but also Good Governance Day, a tradition since 2014 in honor of the late Prime Minister Atal Behari Vajpayee. Last year on Good Governance Day, the government introduced the Bhartiya Nyaya Sanhita (BNS) to replace the archaic Indian Penal Code 1860, marking a significant legal shift.
The urgency to present the Bhartiya Nyaya Sanhita (BNS) as a homegrown replacement for a 163-year-old colonial law on Good Governance Day appears to have driven a swift process. The BNS made its debut in the Lok Sabha on August 11, 2023, underwent scrutiny by the parliamentary standing committee on home affairs, and was later withdrawn by the government. It resurfaced as the Bhartiya Nyaya (Second) Sanhita Bill in Parliament on December 12, 2023. In a remarkable turn of events, both the Lok Sabha and the Rajya Sabha gave their approval within a fortnight, with 146 suspended Opposition members highlighting the pre-election political tensions. Their absence, while not questioning the legality of the BNS, paints a picture of heightened discord.
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A fundamental tenet of good governance is the adherence to the rule of law, wherein laws such as the Bhartiya Nyaya Sanhita (BNS) play a crucial role in addressing contemporary needs and legitimizing judicial decisions. Both the outdated Indian Penal Code (IPC) and the recently introduced BNS meticulously outline and categorize over 300 punishable crimes, assigning specific punishments to each offense.
In a surprising turn of events, shortly after the public announcement and presidential approval of the Bhartiya Nyaya Sanhita (BNS), it sparked unexpected fury and civic activism among vehicle driver unions. The streets saw a halt in bus and truck services on January 1 and 2, accompanied by intermittent strikes from taxi unions. This upheaval caused widespread disruptions in the flow of goods and public transportation. The crux of their discontent centered around the newly introduced sub-section 2 of Section 106, prescribing a substantial escalation in penalties, including up to 10 years of imprisonment and fines, for individuals accidentally causing harm while driving recklessly or negligently and subsequently fleeing the scene without reporting to the police – a colloquially termed “hit and run” incident.
The imperative to address “hit and run” incidents is crystal clear. In 2021, out of the 1.1 million recorded unnatural deaths (as per the latest available data from the National Crimes Bureau), 12% were attributed to road accidents, with one-third of these falling under the category of “hit and run” cases. Swift medical intervention has the potential to save lives in such situations. So, what’s behind the sudden discontent with the Bhartiya Nyaya Sanhita (BNS)? The root cause appears to be the disproportionately harsh penalties outlined in the new sub-section, triggering widespread dissatisfaction.
In the realm of justice, the principle of proportionality guides that the punishment for crimes must align with their severity. A noteworthy point of contention arises when considering that imprisonment up to 10 years, a penalty reserved for offenses against the State or dacoity, applies to voluntary and intentional violations of the law. Intent, undoubtedly a crucial factor in legal matters, takes center stage. Interestingly, the unintentional causing of death during a robbery, an intentional transgression, carries a comparatively lighter sentence of up to seven years’ imprisonment, reflecting the nuanced interplay between severity and consequence in the legal landscape.
Examining the legal landscape, we find that the specific offense of rash and negligent driving carries a penalty of up to six months of imprisonment and a fine. In contrast, Section 106, Sub-section 1, stipulates a potential imprisonment term of up to two years for a doctor found guilty of rash or negligent actions leading to the unintentional death of a patient. Notably, the existing provision under Section 106 for the broader offense of causing unintentional death through “any rash or negligent act” imposes a more severe penalty – up to five years of imprisonment, coupled with a fine. The intriguing question arises: why do doctors seem to enjoy a privileged status with a milder punishment? Following these benchmarks, one could argue that a proportional penalty for rash and negligent driving resulting in accidental death, compounded by a failure to report the incident, should fall between two years (mirroring the doctor’s penalty) and five years (in line with other offenses).
Regrettably, the Bhartiya Nyaya Sanhita (BNS) aimed to encourage adherence to the law by maximizing punitive measures. This “Hobbesian” strategy reflects a mindset reminiscent of the medieval era – a stark departure from the progressive trajectory India embraced long ago.
Studies, including those conducted at the National Institute of Justice in the US, highlight that simply increasing the severity of punishments does not necessarily improve law compliance. A more effective approach to encourage vehicle drivers to act responsibly and report unfortunate incidents is to incentivize socially appropriate behavior. One proposed alternative is to offer a limited imprisonment term of two years (similar to the penalty for doctors) for those who promptly report the incident. In contrast, a more extended sentence of up to five years could be reserved for individuals found both “rash and negligent” and socially irresponsible enough to evade responsibility after committing the offense.
Truck, bus, or taxi drivers are often not from the local community. The potential danger of facing harm, including the risk of injury or even loss of life, at the hands of locals angered by an accident, serves as a motivating factor for drivers to consider fleeing from the scene.
Lacking the privileges enjoyed by owner-drivers of private vehicles; these drivers find themselves vulnerable to the whims of the crowd that assembles at an accident scene, often driven by a desire for swift, vigilante justice. Moreover, an extended potential imprisonment doesn’t necessarily deter habitual offenders or those shielded by wealth and privileges. Effectively disciplining this group of wayward drivers requires an impartial investigation, supported by advanced digital policing and resolute prosecution – elements that are currently far from universally implemented.
The ones most likely to bear the brunt of the intensified penalties under Section 106 (2) of the Bhartiya Nyaya Sanhita (BNS) are the less privileged drivers responsible for fatal accidents. In a landscape of 362 million registered vehicles compared to an adult population of approximately 793 million, the surge in licensed women drivers is noteworthy. Anticipating a rise in personal vehicles due to increasing incomes and improved road infrastructure, the need for a swifter expansion of safer transportation infrastructure becomes evident. This includes controlled access to highways, road segregation with protected walkways, strategically placed pedestrian underpasses and overpasses, accident management services, a national police portal for accident reporting, obtaining a digital token as proof of a report, and enhanced public awareness about police station jurisdictions along highways to facilitate recourse to law enforcement.
Acknowledging the complexity of the situation, the government swiftly addressed the concerns by assuring protestors of further consultations before the enforcement of Section 106, Sub-section 2 of the Bhartiya Nyaya Sanhita (BNS). The outcome was the prompt withdrawal of the agitation within a mere three days. This stands in stark contrast to the prolonged agitation against the well-intentioned yet inadequately communicated farm laws in 2020-2021, which ultimately led to their repeal by the government a year later.
As the influence of Good Governance Day 2023 diminishes, and with a year available to address shortcomings, the upcoming version of the Bhartiya Nyaya Sanhita (BNS) should emphasize aligning the proportionality of punishment with the gravity of the crime. Unless every facet of the rule of law machinery improves efficiency, relying solely on punitive measures may exacerbate the challenges faced by all vehicle drivers entangled in unintentional and tragic road accidents. (The writer can be reached at dipaknewslive@gmail.com)
