Section 304A IPC : Rash, Negligent, Or Reckless

Section 304-A was not part of the Indian Penal Code [IPC] as it was enacted in 1860. It was included by an amendment passed in 1870. But, interestingly, the original 1838 Draft of the Penal Code did carry an offence of Causing Death due to Negligence, in the form of Section 304. We will never know whether the 1870 amendment was merely an exercise in adding what was inadvertently excised from the Draft. What we do know, is that Section 304-A differed in a notable way from the stillborn predecessor: <> Section 304 of the 1838 Draft read "whoever causes the death of any person by any act or any illegal omission, which act or omission was so rash or negligent as to indicate a want of due regard for human life, shall be punished with imprisonment ... which may extend to two years ..." <> Section 304-A, as inserted in 1870 and continues till date, reads "whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment ... which may extend to two years ..." Section 304 of the 1838 Draft placed a barometer to measure the 'rash or negligent act': whether it "indicate[d] a want of due regard for human life". This was omitted from Section 304-A, vesting great discretion in courts for determining how an act would be deemed sufficiently 'rash or negligent' to attract criminality. However, as the next section elaborates, this alteration also affected the very essence of the crime itself. Conduct vs. Consequence, or Objective vs. Subjective Liability To understand this contention, it is first necessary to appreciate the difference between conduct based crimes and consequence based crimes. This is not a statutory distinction, but one adopted to help understand the nature of criminal liability. Conduct crimes, as the name suggests, are those where the conduct of an accused is of the essence. The idea being that society agrees that certain kinds of conduct are definitely unacceptable, and so should be punished. This sense of agreement is derived by employing certain objective benchmarks, like the reasonable person test. An example of this is endangerment offences in the IPC: they all punish my rash or negligent acts, employing different benchmarks to judge the act. Consequence-based crimes, on the other hand, are those where it is necessary that my acts bring about a particular consequence for me to held liable for that offence. The idea is that some consequences are so grave, that persons should be punished for causing them. But, to ensure fairness, it is necessary that the outcome is caused intentionally / knowingly, i.e. with some mens rea. Homicide is traditionally the most obvious example for consequence based crimes. And through that example, we can also help clarify the law in the IPC context. Like many countries, Indian law does not limit itself to only punishing the causing of death intentionally or knowingly, but also punishes causing of death without paying heed to the consequences of one's acts, i.e. rashly. Is this an objective benchmark style liability? Or is it a subjective test requiring us to inquire into whether or not the person paid heed to the consequences of her actions? The text of the provision makes it unambiguously clear that it is the latter. Because Section 300 IPC says that the person committing the act knows it is so imminently dangerous as to cause death in all probability. The text is asking us to look at the knowledge of the person concerned, and not impose any outside yardstick to judge liability. Now, compare this with Section 304-A, which punishes the causing of death by rash or negligent acts. Thus, rather than punish me for being rash as to the consequences of my acts, Section 304-A is punishing me if I simply act rashly: my act is conditioned with the adverb of it being rash. Therefore, textually at least, it is plausible to argue that Section 304-A, and Sections 279, 336, 337, and 338 IPC do not employ 'rash' like a traditional mens rea requirement. Instead, they use 'rash' and 'negligent' to describe the act itself, and employ objective standards to help courts decide whether or not the conduct warrants this description. Now, let's come back to Section 304-A and its 1838 version, and think about the two keeping in mind the distinction between conduct and consequence based crimes. The 1838 version seems like a conduct-based crime, as the essence of the crime was that it punished conduct if it met a certain objective threshold. Section 304-A IPC that we have today is also criminalizing conduct, but, it does so without invoking any objective benchmarks and harkens back to the subjectivity of consequence-based offences. The outcome is an offence that is neither here nor there. This contradiction has manifested itself in how courts...

Section 304A IPC : Rash, Negligent, Or Reckless

Abhinav Sekhri

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