About Author
Aneeta Nirmal Mamen final year student {LLB(Three year)} from Government Law College, Thrissur
With the enforcement of the revamped criminal laws – Bharatiya Nyaya Samhita, Bharatiya Nagarik Suraksha Samhita and the Bharatiya Sakhshya Adhinayam, 2023, it is necessary to understand its impact on diverse spheres of the society. Regardless of the various sections which require clarity, the new Acts have also been successful in introducing reforms such as the ‘community service’ punishment. However, this article doesn’t want to focus on all the merits and demerits of the new laws but rather bring to the attention of the readers on Section 106(2) of the Bharatiya Nyaya Samhita, 2023.
As of July 2nd 2024, due to the continuous efforts of the All India Motor Transport Association and its dialogues with the Government, the implementation of Section 106(2) has been put on hold. The apprehensions of the Truck Motorists about the said section include:
■Punishment is excessive and fails to consider the challenging work conditions of drivers, such as long driving hours and difficult roads.
■Transporters also argue that accidents may be caused by factors beyond the driver’s control, such as poor visibility due to fog, and fear of mob violence against drivers if they stop to assist at accident sites.
WHAT DOES THE LAW SAY?
Section 106(2) states that, “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 10 years, and shall also be liable to fine”.
Article 20(3) states, “No person accused of any offence shall be compelled to be a witness against himself”. This basic fundamental right ensures that no person regardless of whether he is a citizen or not, can be subjected to self-incrimination. As our country follows the accusatorial system of criminal justice system and Blackstone’s ratio, every penal law has to be made in accordance to this fundamental principle.
Sec. 106(2) stands in contravention to this basic principle. The provision has two parts to it – firstly, the perpetrator of negligent rash driving which causes death of a person not amounting to culpable homicide must inform the police officer or a Magistrate; secondly, if he does not inform duly and leaves the scene shall be punished with imprisonment of either description of a term which may extend to 10 years and shall be liable to fine. In the first part, it becomes his duty to inform the police officer or Magistrate and non-compliance would attract penalty. Stating such incident to the Magistrate would be held under S. 164 of the CrPC ( Section 183 of BNSS, 2023) which would amount to recording a confessional statement. In the second part, if he leaves the scene without informing, he is still punished but with a much severe punishment. In both the cases, he is compelled to be a witness for himself which is violative of Article 20(3) of the Constitution of India.
[In the 246th report of the Parliamentary Standing Committee, with regard to S. 106(2), the Committee suggested that this provision should be limited to motor vehicle accidents and should be improved to bring in clarity. Along with this, they also raised concerns on it violating Article 20(3) of the Constitution and recommended re-drafting.]
IS THIS PROVISION NECESSARY?
In countries like US and UK, it is the duty of the person involved in an accident to inform the police at the earliest. Even in case of an accident which does not involve deaths of the victim, the driver has to inform about the incident. In UK, such an accident would be considered a misdemeanour and otherwise a felony. In the US, leaving the scene when there was a death or serious injury to another person will typically result in significant jail term and fines of up to $20,000/-.
According to the Ministry of Road Transport and Highways’ annual report on road accidents in October 2023, the states and Union Territories (UTs) reported 461,312 incidents in 2022, which caused injuries to 443,366 people. 2023 marked an increase of 11.9 per cent in accidents, 9.4 per cent in fatalities, and 15.3 per cent in injuries compared to 2021. The alarming increase of 22.7% from 2021 – 2022 of the fatalities of victims within the age group of 18-45 years is a serious concern.1 Even though Section 134 of the Motor Vehicles Act, 1988 requires the driver to provide medical assistance to the victim, it is not followed obligatorily.
The reasons for these road accidents are numerous such as the unsafe road conditions, bad infrastructure, neglect by pedestrians in following traffic rules, increasing influx of motor vehicles etc. However, one of the major contributions to this predicament is the severe lack of critical and emergency medical services that could prove to be the difference between life and death. It is established that 50% of these road crash deaths can be averted if victims receive definitive medical care within first hour.2This, coupled with the ‘by stander effect’ creates a dangerous situation.
Thus, would not an amended S.106(2) help in prevention of such loss?
Moreover, India needs to develop a network for Emergency Trauma Care. In a country which promotes medical studies, it is high time that Emergency Trauma Care is promoted. 91% of the hospitals had in house ambulance services, but the percentage of trained paramedics required to assist these ambulances was at 34% as per a survey conducted by AIIMS, Delhi and NITI Aayog in 2020. The very same report also stated, “With more than 150,000 road traffic related deaths, 98.5% ‘ambulance runs’ transporting dead bodies, 90% of ambulances without any equipment/oxygen, 95% of ambulances having untrained personnel, most ED doctors having no formal training in EMS, misuse of government ambulances and 30% mortality due to delay in emergency care, India portrays a mirror image of the U.S. of the 1960s.” 4
Currently, to be a professional in EMT care, a person’s physique and high school level education is the minimum requirement. Our country does have ANGELS (Active Network Group of Emergency Medical Services), IIEMS (Indian Institute of Emergency Medical Services) and organisations like IMA (Indian Medical Association) working tirelessly to improve EMT facilities. However, much needs to be done. Considering the number of medical aspirants in the country, (about 14 lakh students appear for the NEET exam and about 7 lakh students qualify*), creating an awareness of such opportunities and inculcating a culture of helping accident victims can forever change the tide of road accident prevention, thereby implementing the ‘Good Samaritan’ Law 5 in a full-fledged scale. India, should not put its focus solely on creating better penal laws but also consider creating a conducive environment to flourish good practices for the welfare of the nation. The purpose of S. 106(2) should thus come into fruition.
REFERENCES & FOOTNOTES:
1.,2. https://scroll.in/article/1068217/death-by-delay-revamping-indias-ambulance-services- could-save-lives-lost-to-road-crashes
3.https://www.business-standard.com/india-news/road-accident-fatalities-highest-in-nearly-two-decades-shows-data-123103101249_1.html
4.https://www.niti.gov.in/sites/default/files/2021-12/AIIMS_STUDY_1.pdf
5.https://morth.nic.in/good-samaritan
6.https://timesofindia.indiatimes.com/city/nagpur/bns-hit-and-run-clause-put-on-hold/articleshow/111417316.cms
*subject to change.
