Understanding The Controversy Surrounding 'Hit and Run' Provision Under BNS

Recently, the All India Transporters has called on a nationwide strike to register their protest against a  provision contained in the Bhartiya Nyay Sanhita (BNS) prescribing harsher punishment for causing death in a hit and run cases.  

What does the new law say on hit-and-run cases?

Section 106 (2) of BNS stipulates 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 ten years, and shall also be liable to fine”.

This means, if a death is caused to a person through the negligent driving of a vehicle, then the person causing the death shall inform about the incident to the police officer or a magistrate, failing which it may attract imprisonment for up to 10 years and fine. It is important to mention that a driver informing the officials about the accident would attract a lesser punishment - imprisonment for a term up to 5 years and fine as per Section 106(1).

Hence, the intention of the Parliament is to impose a harsher punishment on the driver who escapes from the accident site after causing death to a person while driving negligently and a lesser punishment for informing police or magistrate about the incident.

Drivers apprehend that staying in the place of the accident might subject them to mob violence. It is the fear of mob violence which forces many truck drivers to flee, they claim.

The BNS has a provision to deal with mob violence in Section 103 (2) which says,“When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.” However, it is important to mention that the plain reading of the clause penalizes the act done by five or more persons in concert, strictly on the grounds mentioned in the clause but otherwise. Because, Section 103 (2) of BNS punishes the act by a concert causing death exclusively on the communal, religious and linguistic grounds.

 If a driver causes death of a person deliberately, then such act of the driver attracts the provisions of murder, because there is a clear intention to kill a particular person. Moreover, if a driver drives a vehicle rashly and negligently without an intention to cause death of a person, then it would attract the punishment up to the term of 5 years and fine as mentioned under Section 106 (1) of BNS.

In nutshell, the basic difference between the sub-sections to Section 106 is that sub-section (2) contains an aggravated form of punishment up to a period of 10 years as the intention of the law is to deprecate the practice of drivers fleeing from the place of incident.

In the wake of the protests, the Government clarified that the provision will be invoked only after consultations. A press release issued by the Ministry of Home Affairs states that the decision to invoke Section 106 (2) of the Bharatiya Nyay Sanhita will be taken only after consultation with the All India Motor Transport Congress. The excerpts of the press release read as follows:

“The Government of India has taken cognizance of the concerns of truckers regarding the provision of 10 years imprisonment and fine, under Section 106 (2) of the Bharatiya Nyay Sanhita and held detailed discussion with the representatives of the All India Motor Transport Congress today.

The government wants to point out that these new laws and provisions have not yet come into force. We would also like to point out that the decision to invoke Section 106 (2) of the Bharatiya Nyay Sanhita will be taken only after consultation with the All India Motor Transport Congress.

We appeal to All India Motor Transport Congress and all the drivers to return to their respective jobs.”

It is also interesting to note that Section 106 of the BNS prescribes lesser punishment to doctors in cases of death caused due to medical negligence.

The new provision says, 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.

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