India, on the path to becoming a developed nation, found itself confronting a sobering reality: the persistent threat of hit-and-run accidents. To confront this challenge, the Bharatiya Nyaya Sanhita (BNS) 2023, had provisions delivering long-overdue justice to victims and their grieving families.

Yet, amidst the promise of reform and rectification, a chorus of dissent rose from the ranks of transporters and commercial drivers, casting shadows of doubt upon the efficacy and fairness of the new provision in BNS. The countrywide truckers’ strike was only called off after the government assured that it would consult stakeholders before implementing a contentious law against hit-and-run.

 Earlier law and need for change

The new law came in the backdrop of concerning figures related to road accidents in India. In 2022, India recorded over 1.68 lakh road crash fatalities, averaging 462 deaths daily. India experienced a 12% increase in road accidents and a 9.4% rise in fatalities, while global road crash deaths decreased by 5%. On average, there were 19 deaths per hour due to road accidents in India, almost one death every three and a half minutes.

More than half of road fatalities occurred on national and State highways, which made up less than 5% of the total road network. India, with only 1% of the world’s vehicles, contributed to about 10% of crash-related deaths and suffered an annual economic loss of 5-7% of its GDP due to road crashes.

The landmark case of State of Maharashtra v. Salman Khan highlighted the lacunae in the existing law related to hit-and-run incidents. Initially convicted by the Trial Court, the Bombay High Court eventually acquitted Salman Khan, whose actions had resulted in the death of one person and serious injuries to several others.

This case and several other incidents underscored the importance and need for stringent legal measures to ensure justice for victims and to deter future offences.

For decades, India had grappled with the harrowing consequences of hit-and-run incidents, regulated by Section 304A (causing death by negligence) of the Indian Penal Code (IPC), a provision that imposed a maximum jail term of merely two years or fine or both. The offence was bailable and did not tackle the ‘run’ aspect in hit-and-run cases.

Due to the inadequacies in the provisions of the IPC, many persons who were involved in hit-and-run incidents had simply chosen to run away or flee from the crime scene and then very easily and quickly secured pre-arrest anticipatory bail. On the other hand, the victims had been left to die or left severely injured with no intimation to the police or access to medical support systems. If the incident occurred during the night or in a sparsely populated area, the victims faced a horrendous situation. They were deprived of crucial support during the ‘golden hour’, which was a critical period immediately after the incident during which lives could be saved if medical support had been promptly provided.

Such shortcomings of the provision in the IPC apparently had a direct link with increased fatalities and trauma arising out of hit-and-run incidents. Therefore, the need arose for a robust and comprehensive legal framework which considered all dimensions of hit-and-run incidents.

The introduction of the new hit-and-run law, as delineated in Section 106 (2) of the BNS, attempted to attend to the lacunae of the IPC provision. The new provision introduced heightened penalties targeting accused who fled accident scenes without promptly reporting to authorities. The offence was also classified as non-bailable.

The rationale behind such escalation in punishment was rooted, on the one hand, in the gravity of hit-and-run accidents, which often resulted in loss of life, severe injuries and profound trauma for victims and their families when crucial support had been deprived during the golden hour. On the other hand, the new law attempted to target the running away or escaping element by the accused, making it a separate offence.

The new Hit-and-Run law: A paradigm shift in legal enforcement

The hit-and-run provision was part of the Bharatiya Nyaya Sanhita (BNS), which replaced the colonial-era IPC.

Section 106(2) of the BNS, 2023 stipulated a penalty of up to 10 years in jail and a fine for fleeing an accident spot and failing to report the incident to a police officer or a magistrate. However, if the driver reported the incident immediately after the accident, they were charged under Section 106(1) instead of Section 106(2).

Section 106(1) provided for a punishment of up to five years for causing death by any rash or negligent act not amounting to culpable homicide.

The principle underlying Section 106(2) of hit-and-run law was to deter rash and negligent driving and to punish those who fled the scene without reporting or helping the victims. The law reflected the legislative intent to enforce moral responsibility on the offender towards the victim.

Drawing parallels with existing laws, such as Section 134 of the Motor Vehicles Act, 1988, highlighted the government’s commitment to ensuring a prompt and responsible response from drivers in the aftermath of accidents. Section 134 of the Motor Vehicles Act, 1988, required the driver of the vehicle to take all reasonable steps to secure medical attention for the injured person unless it was not practicable on account of mob fury or any other reason beyond his control.

Furthermore, Section 161 of the Motor Vehicles (Amendment) Act, 2019, provided compensation for victims of hit-and-run accidents. The compensation for death was Rs 2 lakh and for grievous hurt, it was Rs 50,000. Unlike Section 106 (2) of BNS, the compensation in this case was not recoverable from the drivers.

Dissent in the face of change

The opposition against the new hit-and-run law, particularly voiced by transporters and commercial drivers, stemmed from a multiplicity of concerns which were directly related to their livelihoods and working realities. These stakeholders expressed grave apprehensions regarding its potential ramifications. At the heart of their dissent lay a palpable fear of the law’s adverse impact on their means of sustenance and the intricate web of challenges they navigated daily.

Concerns of the protesters

1. BNS Section 106 (2) of the BNS, 2023: Transporters and commercial drivers demanded the withdrawal or amendment of BNS Section 106 (2) of the BNS, 2023. Protesters argued that the prescribed penalties, including a 10-year imprisonment and Rs. 7 lakh fine, were excessively severe.

The widely circulated view that Section 106 (2) of the BNS stipulated imprisonment of up to 10 years, and a fine of Rs. 7 lakh for fleeing an accident spot and failing to report the incident to a police officer/magistrate, was grossly incorrect. While this Section discussed a maximum punishment of 10 years and a fine, there was no actual mention in the BNS about the fine being Rs 7 lakh.

2. Challenging Conditions: They argued that the penalty was excessive and failed to consider the challenging work conditions of drivers, such as long driving hours and difficult roads. Transporters also argued that accidents might be caused by factors beyond the driver’s control, such as poor visibility due to fog.

Furthermore, the fear of mob violence loomed large in the minds of drivers, adding another layer of complexity to their opposition. Concerns about potential reprisals from bystanders or aggrieved parties at accident scenes deterred drivers from stopping to render aid, fearing for their own safety and well-being.

This apprehension, rooted in the harsh realities of roadside confrontations and escalating tensions, underscored the need for a nuanced approach to addressing hit-and-run incidents that considered the broader socio-cultural context in which they occurred.

3. Perceived Unfair Blame: Drivers argued that they were often unfairly blamed for accidents, irrespective of the actual circumstances. The legislation’s punitive approach might exacerbate this perception of unfairness and contribute to a negative impact on the transport industry.
4. Possible Misuse by Authorities: They were concerned that the law might be abused by law enforcement agencies and that the harsh penalties could hurt the transport industry as a whole.
5. Unfair Treatment and Limited Categorization: The current legislation raised concerns about the fairness of penalties imposed on truck drivers and individual vehicle drivers. For instance, an exception had been made under 106 (1) of the BNS for doctors in the event of rash or negligent acts, where the punishment would be up to two years with a fine.

This limited categorisation was problematic and was against the principles of equality, as the liability of a wide variety of people working in other sectors also needed to be moderated.

6. Lack of Differentiation: BNS Section 106(2) lacked differentiation between rash and negligent driving, which were two distinct types of offences with different degrees of liability.

They also contended that the section did not consider the contributory factors in negligent acts, such as the behaviour of commuters, road conditions, lighting on the road, and other similar factors, which might affect the driver’s responsibility.

Applying one clause to all situations might unfairly prejudice drivers in different circumstances.

Upholding accountability in the pursuit of safety

With a staggering 1.68 lakh deaths (as reported in January 2024) recorded in 2022 alone, the magnitude of this crisis could not be overstated. The National Crime Records Bureau recorded 47,806 hit-and-run incidents which resulted in the deaths of 50,815 people in 2022.

Beyond the imperative of addressing the immediate toll of road accidents, the new hit-and-run law was underpinned by a broader commitment to fostering a culture of responsibility and safety on India’s roads. By holding perpetrators accountable for their actions, the law sought to cultivate a sense of civic duty and respect for the sanctity of human life. Through deterrence and enforcement, it endeavoured to create an environment where every driver understood their role in ensuring the well-being of fellow road users.

However, the 246th report of the Parliamentary Standing Committee suggested limiting the scope of Clause 106(2) to motor vehicle accidents, altering the language for clarity, and defining the timeframe for reporting incidents. It also expressed concerns about potential violations of Article 20(3) of the Constitution, which stated “No person accused of any offence shall be compelled to be a witness against himself”. It recommended a re-drafting of the clause in consultation with the Ministry of Law & Justice to address these issues comprehensively.

Conclusion

Several countries had strict laws on hit-and-run crimes. Eventually, a culture of stopping and calling the authorities and support systems during the golden hour had evolved in such countries, saving numerous lives.

While the new hit-and-run law in the BNS might have faced opposition, its merits could not be understated. While concerns raised by transporters and commercial drivers were valid, measures could be implemented to safeguard their interests, such as public awareness campaigns and initiatives to address the root causes of accidents.

Ultimately, the new law signified a commitment to creating safer roads and a fearless environment for all stakeholders.