Historical Lack of Clarity of Section 106 BNS (Part 2) – The RMLNLU Law Review Blog

Before diving into the conceptual distinctions between rashness and negligence, it is pertinent to analyse the interpretation of negligent acts under this section. The essential components of criminal negligence require (a) existence of a duty of care owed by the defendant to the complainant; (b) breach of the said duty; (c) damage causally connected to such breach. In essence, criminal negligence results from a gross or culpable failure to exercise reasonable care, which was the imperative duty of the accused. Evidently, criminal law imports the objective standard of reasonable man from tort law, failure of which would incur punishment. Lastly, to fasten liability in criminal law, the degree of negligence must be higher than in civil law; thus, the element of mens rea becomes essential when determining a charge under criminal negligence.

Rashness versus Negligence

Rashness is often wrongly conflated with negligence and dismissed as just another form of it. This confusion arises due to several reasons; First, both terms appear alongside each other in the same provision, and carry identical punishments. Second, the phrasing of the provision as a rash or a negligent act creates ambiguity about whether the terms are disjunctive or conjunctive. Finally, in everyday language, rashness is often seen as a type of negligent behaviour. For instance, when someone acts rashly, they behave in a negligent manner, failing to consider the consequences of their actions.

This semantic similarity is echoed by the courts, too. For instance, in Tika Ram, the court acknowledged the distinction between rashness and negligence but then tried to reject it. The court considered negligence as a ‘species’ of which rashness was a mere ‘genus’. Again, in Smith, the court opined that culpable rashness or negligence depends directly on the degree of care and circumspection a prudent and reasonable man would deem sufficient.

A general trend seen in such pronouncements is courts often attributing the same objective test of negligence to rashness, thereby erasing its distinctive feature of subjective knowledge. This confusion was only worsened in Caldwell, where Lord Diplock read the objective standard of ‘obvious and serious risk’ into the subjective basis of recklessness. By adopting such a standard, the court ignored considerations such as the accused’s age, maturity, and mental capacity, which are all essential to ascertain subjective foresight of risk under the concept of recklessness.

In this context, the critical question becomes, how do we then differentiate between the two concepts? In this regard, Austin’s distinction between negligence non faciendo (negligence in not acting) and negligence in faciendo (negligence in acting) – which he termed as heedlessness or rashness – becomes relevant. In the latter form, the party foresees probable mischief, but assumes that it would not follow due to misapprehension.

This theoretical distinction exists in the United States too, where rashness requires an apparent risk of death or other bodily harm perceived by a common observer.

Onwards to India, courts at times have drawn a clearer line between negligence and recklessness. In Balachandra Waman Pathe, the court clarified that while criminal negligence is the failure to exercise reasonable and proper care, culpable rashness is acting with the consciousness that the mischievous acts might follow, yet hoping they would not. The court further clarified that between rashness and negligence, rashness is undoubtedly the graver offence, since it requires the accused to have actual knowledge of the potential injury. Therefore, while both yield undesirable results, only rashness involves foresight of consequences.

Confusion of the terms under Indian Law

Although the two terms have been distinguished on a conceptual level, courts often convict under s. 304A without specifying whether the act was rash or negligent. This is because such conception of rashness has limited practical application, applying only to a narrow subset of ‘daredevils’ inclined towards conscious risk-taking. Professor Andrew Ashworth highlights three reasons for this dilemma. First, the line between awareness and non-awareness is so narrow that proving fleeting awareness of consequences is nearly impossible. Second, the term ‘reckless’ is much wider than awareness of risk in ordinary circumstances. Third, Ashworth contends that comparing ‘blameworthiness’ in the two situations – failure to foresee risk and seeing the risk and knowingly taking it – might be problematic.

A better illustration comes from Andrews v. DPP, where a driver killed a pedestrian while overtaking another car. Though resembling involuntary manslaughter by recklessness, the court instead convicted him under gross negligence. Thus, there is a general uncertainty as to what conduct is blameworthy to justify conviction for such manslaughter (rash acts) as opposed to circumstances of manslaughter by gross negligence (negligent acts).

Due to similar reasons, Indian courts at times have confused the requirements for rash and negligent acts.

For instance, in Meera Puri, the accused fired a rifle with the knowledge that there were children nearby, causing death of a child. the court erroneously held that this amount to ‘culpable negligence and rashness’ rather than a mere error of judgment. A similar instance of such conflation happened in Shiva Ram v. State, who dozed off while driving a truck with defective brakes, and subsequently crashed into a tree. At first glance, this might appear to be a case of negligence. However, the court noted that the driver had ‘foreseen the risk’ of driving without rest and proceeded in the hope that no misfortune would follow. Since foresight or consciousness of risk constitutes rashness, the logical conclusion would have been to hold the accused liable under the ‘rash’ requirement of s. 304A. Ironically, the court once again confused the concepts and instead held the accused liable for negligence.

CONCLUSION

There is a fundamental problem within the IPC, stemmingfrom a plethora of factors ranging from definitional uncertainty to a lack of clarity in the concepts of ‘rash’ and ‘negligent’ . While some jurisdictions, such as Singapore, have addressed these concerns by providing separate provisions for rash and negligent conduct, Indian law continues to conflate the two within a single section. This calls for urgent legislative reform, whereby different degrees of mens rea should be addressed through separate statutory provisions and sentencing guidelines.

Unfortunately, the BNS, despite being a unique opportunity to rectify these doctrinal gaps, has failed to resolve this confusion. Instead, it merely rephrased the provision and increased the punishment without engaging with the conceptual flaws that plague the original section. The BNS, therefore, represents a missed chance to evolve our criminal jurisprudence meaningfully.

The problems with the current regime may be summarised as follows: First, while concrete conceptual distinctions exist, courts fail to translate theory into practice, leading to judicial missteps, often omitting classification of offence either as rash or negligent. Second, this failure by courts at times blurs the boundaries between subjectivity and objectivity of the two theories, leading to misapplication of law.

The introduction of separate statutory provisions and sentencing guidelines for rash and negligent acts to reflect their distinct culpability would certainly help. Nevertheless, there is an urgent need to stimulate discussion in judicial and legislative circles to resolve what can be termed as ‘one of the most contentious legal issues of all time’.