Tuesday, September 8, 2009


If the Law Commission has its way the punishment for rash and negligent driving will be increased from two to ten years and most importantly the offence will be non-bailable. In other words the police will have no power to release on bail a person accused of causing death by rash and negligent driving.

It is quite apparent that the proposal is a result of the worthies at the Law Commission becoming greatly exercised by the fact that in recent years several accused have walked free after mowing down pedestrians and other commuters. And they should rightly be.

The statistics suggests that only four per cent of all accused of rash and negligent driving in tens of thousands of cases in India ever get convicted.

But the proposal that putatively looks to steer rash and negligent drivers onto the right track is raising concerns in many quarters chiefly because it could spawn a law that could easily become an instrument for harassment in the wrong hands.

For one, it unduly tilts the balance in favour of victims, witnesses and most worryingly the traffic police. The proposal injects a degree of subjectivity - an extra judicial dimension - if you like to the whole process of assessing if the driver was rash or negligent. Can the 'friendly' traffic constable be trusted to take that call? Given the propensity of traffic policemen to act arbitrarily, to extort at the drop of a hat and to blackmail, one shudders to think of the consequences. Even a witness may be motivated by other interests to trump up charges against the driver, once again to disastrous consequences.

Then again on closer examination if the Law Commission's proposal is motivated by the need to enhance the conviction rate it may not serve that end as it doesn't do anything to guarantee justice.

A person can, after all, only be awarded a sentence after he is convicted. Denying bail to the accused won't make a difference to the outcome of a trial. In case after case where the accused has been let-off it is because witnesses have turned hostile, the forensic evidence has been destroyed or there has been large scale collusion. The Law Commission therefore needs to address the problem at a more fundamental level.

In any case the new proposed amendment will only add more clutter to what is already a fairly inscrutable penal code. A driver that runs over a pedestrian or is involved in a car crash that has resulted in a fatality can always be booked under any number of laws that already exist on the statute books to deal with such eventualities. What’s the need to add more?

Instead, the Law Commission would be better advised to look at a system that makes it difficult for witnesses to retract their statements or even at introducing steps to overhaul the system so that justice isn't delayed or denied.

History shows the fear of conviction more than anything ensures compliance with the law.

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