India, on the path to becoming a developed nation, finds itself confronting a sobering reality: the persistent threat of hit-and-run accidents.

To confront this challenge, the Bharatiya Nyaya Sanhita (BNS), the proposed penal legislation, has provisions delivering long-overdue justice to victims and their grieving families. Yet, amidst the promise of reform and rectification, a chorus of dissent rises from the ranks of transporters and commercial drivers, casting shadows of doubt upon the efficacy and fairness of this new provision in BNS. The cacophony of objections makes it worthwhile to evaluate the pros and cons of the disputed provision.

Earlier law and need for change

For decades, India 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 is bailable and does not tackle the ‘run’ aspect in hit-and-run cases. Such shortcoming of the provision in the IPC apparently has 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 considers all dimensions of hit-and-run incidents.

The Salman Khan Case

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 resulted in the death of one person and serious injuries to several others. This case and several other incidents underscored the importance and need of stringent legal measures to ensure justice for victims and to deter future offences.

Due to the inadequacies in the provisions of the IPC, many persons who were involved in hit-and-run incidents used to simply choose to run away or flee from the crime scene and then very easily and quickly secure pre-arrest anticipatory bail. On the other hand, the victims were 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 scarcely populated area, the victims faced a horrendous situation. They were deprived of crucial support during the 'golden hour' which is a critical period immediately after the incident during which lives can be saved if medical support is promptly provided.

A paradigm shift in legal enforcement

The introduction of the new hit-and-run law, as delineated in Section 106 (2) of the BNS, attempts to attend the lacunae of the IPC provision. The new provision introduces heightened penalties - including imprisonment for up to 10 years and fines - targetting accused who flee accident scenes without promptly reporting to authorities. The offence is also classified as non-bailable. The rationale behind such escalation in punishment is rooted, on the one hand, in the gravity of hit-and-run accidents, which often result in loss of life, severe injuries and profound trauma for victims and their families when crucial support is deprived during the golden hour. On the other hand, the new law attempts to target the running away or escaping element by the accused, making it a separate offence.

Dissent in the face of change

The 246th report of the Parliamentary Standing Committee suggests 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 expresses concerns about potential violations of Article 20(3) of the Constitution, which states “No person accused of any offence shall be compelled to be a witness against himself”. It recommends a re-drafting of the clause in consultation with the Ministry of Law & Justice to address these issues comprehensively.

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

Foremost among their grievances is the perceived severity of the penalties outlined in Section 106(2) of the BNS. Opponents argue that these punitive measures, including up to 10 years of imprisonment and hefty fines, fail to take into account the nuanced complexities of their profession. Long driving hours - often stretching into the dead of night - coupled with the treacherous conditions of Indian roads, pose significant challenges that cannot be overlooked. Moreover, the penalties appear disproportionate when juxtaposed with the myriad external factors that may contribute to accidents, including poor visibility due to inclement weather or inadequate road infrastructure.

Furthermore, the fear of mob violence looms 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 deter 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, underscores the need for a nuanced approach to addressing hit-and-run incidents that considers the broader socio-cultural context in which they occur.

Upholding accountability in the pursuit of safety

With a staggering 1.68 lakh deaths (as informed by Union Minister for Road Transport & Highways Nitin Gadkari in January 2024) recorded in 2022 alone, the magnitude of this crisis cannot be overstated.

Beyond the imperative of addressing the immediate toll of road accidents, the new hit-and-run law is 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 seeks to cultivate a sense of civic duty and respect for the sanctity of human life. Through deterrence and enforcement, it endeavours to create an environment where every driver understands their role in ensuring the well-being of fellow road users.

Conclusion

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

While the new hit-and-run law in the BNS may face opposition, its merits cannot be understated. While concerns raised by transporters and commercial drivers are valid, measures can be implemented to safeguard their interests, such as public awareness campaigns and initiatives to address the root causes of accidents. Ultimately, the new law signifies a commitment to creating safer roads and a fearless environment for all stakeholders.

Satya Muley is an Advocate practicing at the Bombay High Court and the founder of the law firm Satya Muley & Co.