This form of sentencing, for a country with over 1.3 billion people seeing over 1.5 lakh deaths each year due to negligence, seems to be more than inadequate. The Government must answer, even after decades, why there has been no amendment to enhance punishment under Section 304-A .

 

“India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel they are the ‘Emperors of all they survey’. Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilised persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as ‘larger than life’. In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinise, relook and revisit the sentencing policy in Section 304-A IPC. We say so with immense anguish…” These are the lines by the Apex Court in its order of 26th August 2016, in a SLP, which it kept alive, inspite of there being no merit in it. In the backdrop of the above lines, the case was  again heard on 12th January 2018, when the then learned ASG submitted in the court that “…the Central Government has already proposed to amend the IPC and Section 304-AA is being introduced, after obtaining necessary comments from the State Governments, and the matter was referred to the Law Commission of India where it is stated to be pending for consideration for making its recommendation…” Convinced that the Government is taking appropriate steps in the matter, the Apex court found no reason to keep the SLP alive and the same was then dismissed. But, unfortunately, the matter has remained pending till date.

Going back some more years, in 2007, the Apex Court favoured amending the Section 304-A IPC to enhance the punishment of two-year imprisonment for rash or negligent driving that claims about 60,000 innocent lives across the country every year. This observation was made in a case where the bus driver killed a 10-year old schoolboy in Kozhikode in Kerala by rash driving. In this case, the trial court convicted the killer under Section 304 part-II, which was affirmed by the High Court. But, the Supreme Court agreed with the convict’s contention that the case was covered under Section 304-A for which maximum punishment is two-year imprisonment. In the same judgment, the Apex court observed that “in addition to the devastating human toll, the economic impact of road crashes is also enormous, many of those injured or killed are wage earners, leaving their families destitute and without means of support.” The court further said “human toll in such accidents is tragic. Survivors and family members are affected not only by an immediate death or disability, but also lifetime psychological and physical suffering. Crashes often result in orphans, and some victims, as young as infants, spend the rest of their lives with medical facilities.”

This issue has been of concern for the courts time and again. The Apex Court made similar observations in yet another case (The State of A.P. vs. Ramchandra Rabidas) decided on 4th October 2019. Reference was made to case titled Guru Basavaraj vs. State of Karnataka [(2012) 8 SCC 734] wherein the following observations were made: “We may note with profit that an appropriate punishment works as an eye-opener for the persons who are not careful while driving vehicles on the road and exhibit a careless attitude possibly harbouring the notion that they would be shown indulgence or lives of others are like ‘flies to the wanton boys’. They totally forget that the lives of many are in their hands, and the sublimity of safety of a human being is given an indecent burial by their rash and negligent act. There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored.”

In a celebrated judgment of the Apex Court (Alister Anthony Pareira vs. State of Maharashtra, 2012), the court made observations in the sentencing sphere in the following words:“when automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost case and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.” The court further observed, “while considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence.”

In addition to the above and many other cases where the top court has shown urgency to amend Section 304-A, the urgency is also reflected from the National Crime Records Bureau, Ministry of Home Affairs annual publication of “Accidental Death and Suicides in India” report pertaining to the year 2018. In this report dated 23rd December 2019, it was confirmed that during 2018, a total of 4, 45, 514 cases of road accidents were reported which rendered 1, 52, 780 deaths. The numbers remained more or less same for the preceding years as per NCRB. Despite the number of deaths, the State has failed to act reasonably, much less swiftly. The sections is bailable and invariably the accused is granted bail immediately. Even if the accused is convicted by the Magistrate court, the convict has two appeals before going to the Supreme Court during which appeals invariably the sentence is suspended. The appeals incur inordinate delays and the accused roams freely while the families of the victims continue to suffer.

Keeping in mind the report of NCRB, it will not be wrong to say that the country is witnessing over 1.5 lakhs road deaths due to negligence and despite courts favouring amendment in Section 304-A for over two decades or even more, the amendment has not seen light of the day yet.

Among others, the following Bills proposing amendments to Section 304A were introduced in either the Rajya Sabha or the Lok Sabha but till date the law of “upto 2 years imprisonment or fine or both” remains the law:

30th November 2007, a bill was introduced in the Rajya Sabha proposing “imprisonment upto three years and fine upto one lakh rupees”. This bill also proposed to make the section non-bailable.

24th April 2015, a Bill was introduced in the Rajya Sabha, where it proposed punishment of “upto 5 years imprisonment or with fine not less than 50,000 or with both”.

25th October 2016, another bill was introduced in the Lok Sabha proposing punishment of “upto 10 years imprisonment and with fine upto 5 lakhs”.

4th June 2019, yet another bill was introduced in the Lok Sabha proposing punishment of “upto seven years imprisonment or fine not less than 75,000 or both”.

It is interesting to see that the bill of 2019 proposed “imprisonment or fine” while the earlier bills of 2007 and 2016 proposed “imprisonment and fine”. Nevertheless, these bills remained on paper and did not enter the statute book. On one hand, the Government, for one reason or the other, have not been able to carry out amendment in Section 304-A for decades and on the other hand it has, hurriedly, brought new Acts in the statute books to tackle financial crimes, which Acts are already facing constitutional challenges in the court of law.

In the era of economic frauds, need to address the issue of deaths due to negligence seems to have lost its place. “Jaan hai to jahaan hai”, the country has been hearing this phrase. Does it not apply to the lives we are losing due to negligent acts of others (keeping in mind we are seeing over 1.5 lakhs death every year)? The Government is finding the vaccine to curb deaths due to pandemic and rightly so but what about the vaccine to curb lakhs of innocent deaths each year due to negligence of others. Due to the present “lenient sentencing” under Section 304-A (provides for maximum two years imprisonment , or with fine, or with both), we have seen that convicts invariably get even more leniency or no jail at all and get away with only fine. This form of sentencing, for a country with over 1.3 billion people seeing over 1.5 lakhs deaths each year due to negligence, seems to be more than inadequate. The Government must answer, even after decades, why there has been no amendment to enhance punishment under Section 304-A despite knowing the statistics published by NCRB, despite knowing the kind of sentences being awarded to the convicts, despite knowing the leniency in bail under 304-A and despite knowing the observations made by courts time and again. Why has there been such a laxity for decades and yet no one talks about it anymore. It appears that the country is more concerned with the economic frauds than the life lost in a road accident, invariably of a poor person, who has a whole family dependent upon him. This appears to have become a new normal. Speaking of economic frauds, it will not be out of the place to mention that the government, on the contrary, acted swiftly, introduced & passed Bill and consequently the Motor Vehicles Amendment Act, 2019 was brought in whereby monetary penalties have been enhanced. It is to be seen, how much such monetary enhanced penalties act as a deterrence for the drivers behind the steering wheel who many a times belong to affluent families. Time has come to relook Section 304-A of the IPC urgently in letter and spirit.

Rohan Garg is an advocate practising at the Delhi High Court and Supreme Court. He is Partner, Fox Mondal & Co., He is L.L.M (Utrecht University)