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 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 have understood the words 'negligent' and 'rash' over time. Rather than go the whole hog and entirely ditch objective liability for Section 304-A, courts have driven a wedge between these two words at the heart of the provision. From as early as Idu Beg [1881 3 ILR All 776], 'negligent' has been linked with inadvertence-based liability and a reasonable person test. And 'rash' requires assessing the state of mind of a person, to prove that the actor was heedless as to the consequences of her actions, despite having considered the risks. In doing so, courts moved rashness closer to the notion of 'recklessness' as a fault requirement in Common Law. At the same time, they also made Section 304-A both, conduct and a consequence based crime, depending on whether you invoked the negligence limb or the rashness limb of the offence.
Counterpoint – Limiting Objective Liability
Now, all this criticism could be seen in a totally different light. Section 304 of the 1838 Draft provided an objective barometer to judge the rashness or negligence of acts. Removing it, the drafters of the Code could possibly be seen as removing wholly objective liability for homicide. To put it simply – criminality for homicide cannot be based on a 'reasonable man' test. It must be subjective, linked to the mens rea of the actor. This argument dovetails well with the phrasing of Section 304-A: given that both 'rash' and 'negligent' are used, surely different meanings apply to the terms. So, the argument goes, only 'negligence' refers to an objective 'reasonable man' based liability. To claim that an act was 'rash', it must be proved that the actor was heedless as to the dangerous consequences, despite having considered the risks.
Courts in India subscribed to this logic. From as early as Idu Beg v. Empress [1881 3 ILR All 776], 'negligent' is seen as involving inadvertence-based liability, while 'rash' invokes a state of mind of the accused. Naturally, the existence of concurrent civil liability for such acts requires courts to extol the grave nature of negligence/rashness displayed. But the underlying theme rarely wavers, right up to the recent decision of the Supreme Court in Sushil Ansal [(2014) 6 SCC 173]. Those familiar with common-law offences would find this concept of 'rash' as similar to the notion of 'recklessness' as a fault requirement. Links could also be drawn to the criticism faced by the so-called objective recklessness, and its ultimate upheaval in R v. G [(2003) UKHL 50].
Solutions? Different Kinds of Recklessness
It still surprises me how conspicuous 'recklessness' is by its absence throughout penal statutes in India. The Motor Vehicles Act 1939 used to carry 'reckless' in the definition of 'dangerous driving'. But this was omitted in the 1988 version of the Act. This leads to some scepticism while reading judicial decisions which don't stop at merely stating rash and reckless as literary synonyms, but go further and incorporate the use of 'recklessness' as a fault requirement. As seen from the many cases where common-law decisions are cited, Indian courts haven't been fully perceptive to the different ways in which 'reckless' is used at the common-law in context of crime.
Untangling a Gordian Knot
As the previous part explains, the language of Section 304-A IPC and the judicial engagement with that text has led to a blurring of boundaries between conduct punished as murder, with at least a sentence of life in prison, with a hybrid offence punishing death by negligence, which carries a maximum of two years in prison. We have mixed apples with oranges, and the outcome is calamitous. Since the boundaries between Sections 299, 300, and 304-A are not well-etched, with courts focusing on a kind of recklessness-based liability in both instances, the massive sentencing differential between the two sets of crimes creates an incentive for false positives and false negatives. Basically, the prosecution will want to depict 304-A cases as being something more, because those other offences are cognizable, non-bailable, and involve long-drawn trials. On the other hand, accused persons will want to depict homicide cases as actually being 304-A cases, which are relatively minor offences.
History offers a sinister example of how this sentencing differential can become a tool to promote injustice. Between 1870-1900, there were many cases where Britishers were on trial for having killed natives, and the cause of death was a ruptured spleen. Because of the vagueness of Section 304-A, and the common bias of courts towards white people in colonial India, this meant that hardly any of these cases were charged as culpable homicide. Instead, most were punished as rash or negligent acts causing death. In spite of the fact that the beating administered could be severe. Today, we are perhaps again witnessing something similar in context of drunk-driving cases, where the influential few try and make use of the leniency of Section 304-A to escape liability for getting behind the wheel knowing that the car was as bad as a gun in their hands.
What I am trying to suggest, is that the theoretical problems plaguing Section 304-A IPC manifest themselves in very real ways, with very real consequences. Looking to other countries with a colonial past and which adopted the Indian Penal Code, one finds that a choice to continue with the 1870 variant of Section 304-A is an exceedingly rare one indeed. Most countries have chosen to amend this provision. The specifics may vary, but almost all of them have taken steps to reduce the sentencing differential and escalate the punishment imposed by Section 304-A [See e.g., Section 298 in the Sri Lankan Code, Section 304A in the Singapore Code, Section 304A in the Bangladesh Code.].
Taking such baby steps will also be progress in India's case, but ultimately, merely escalating the punishment clause is not going to untangle the Gordian Knot. For that, we must go back to the drawing board and sketch clearer boundaries between culpable homicide, and death caused by rash or negligent conduct. In this regard, the experience of Myanmar might prove instructive, which besides increasing the punishments also tried to resolve the theoretical conundrums. Where India has made 304-A a mixture of both objective and subjective liability as a result of judicial innovation, Myanmar has chosen to do so by statute. It amended 304-A way back in 1948, to clearly indicate that causing death by rash or negligent acts was referring to a conduct crime, which imposed liability by turning to a reasonable person test. On top of this, Myanmar inserted a new subjective limb, imposing a higher punishment where death was caused by an act "done with knowledge that it is likely to cause death." This clearly invoked subjective liability by referring to the actor's knowledge, and at the same time, chose a standard different from the imminently dangerous test imposed in the murder provision (Section 300).
The antiquity of things, including that of the IPC, has often been used as an argument to suggest they work. Anybody who takes a long and hard look at Section 304-A must surely agree that the same cannot be said for this statutory provision. Rather than hide behind the comforts of antiquity and permit more uncertainty to muddy the waters of the law, the legislature should take charge by amending Section 304-A, and help usher our criminal laws in the vague direction of fairness, one small step at a time.
Abhinav Sekhri is a Delhi based Lawyer.