I've spent the last few days pondering over a few provisions in the IPC - the set of offences based on 'rash or negligent' acts (Sections 279, 304-A, 336, 337, and 338 IPC), together with those on culpable homicide and murder (Sections 299 and 300). The purpose behind these repeated readings was trying to understand, primarily, how the IPC criminalises different kinds of homicide. Is there a tidy division between acts causing death which amount to culpable homicide (viz. Sections 299 and 300) and those that do not? What is the standard of fault required for acts to be 'rash or negligent'? Is the absence of 'recklessness' as a term describing the culpable mental state, or mens rea, of the accused a material fact to further our understanding? Some thoughts follow
299-300 vs. 304-A and Line-Drawing Exercises
Section 304-A was not part of the IPC as it was enacted in 1860. But it was part of the first few amendments brought about in 1870. An offence of causing death due to negligence was Section 304 of the initial 1838 draft of the Penal Code prepared by the Law Commissioners; so it could be that the amendment was an exercise in damage limitation. Upon comparing the two, we find important differences though. I’ve reproduced the texts of the two provisions below:
- 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 makes the offence similar to, say, Section 279 IPC, which also labels driving ‘rash or negligent’ if it endangers. This barometer was omitted from Section 304-A, leaving great discretion in determining how an act would be deemed sufficiently ‘rash or negligent’ to attract criminality.
In my opinion, the change was undesirable and, as time has proven, propagated unnecessary confusion over the standard required to attach criminality for offences under Section 304-A. This change further confused the distinction that could be drawn between the offences of culpable homicide (and, by extension, murder) between death caused by rash or negligent acts. 140 years hence, it remains difficult to argue with certainty whether an act is merely negligent, or rash, or possibly demonstrating reckless knowledge – all three situations attract different punishment. Not only this, the peculiar phrasing of Section 304-A creates other problems. By framing the actus requirement as "doing any rash or negligent act not amounting to culpable homicide", Section 304-A suggests that there may be rash or negligent acts that amount to culpable homicide. This is problematic, for Section 299 in explaining culpable homicide is clarifying that mere negligence or rashness is insufficient to satisfy the requirements of the offence. But reading the two provisions together, the argument is certainly plausible, especially since there is no express prohibition contained in either Section 299 or Section 300.
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 nicely dovetails 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 the 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 the decision in Idu Beg v. Empress [1881 3 ILR All 776], ‘negligent’ is seen as involving inadvertence based liability, while ‘rash’ invokes the state of mind of the accused. Naturally, the existence of civil liability for such acts requires courts to extol the particularly 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’ displaying similarities with the notion of ‘recklessness’ as a fault requirement. Links could also be drawn to the criticism faced by so-called objective recklessness, and its ultimate upheaval in R v. G [(2003) UKHL 50].
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 naturally leads to some skepticism 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.
A consequence-based offence (murder) is different from a conduct-based offence (endangerment), and reckless when used in context of these different kinds of offences, should mean different things. A person may be reckless as to the consequences of acts (e.g. the formulation in Idu Beg), or a person may simply act recklessly. If I fire a loaded gun while standing in front of a crowd of people, I am rightly said as being reckless as to the consequence of my act causing death. But when I drive dangerously, my act of driving rightly conditioned with the adverb of it being reckless. According to this understanding, Sections 279, 336, 337, and 338 don’t employ ‘rash’ as an adjective for the mens rea traditionally understood. It uses the term ‘rash’ to describe the act itself, and employs objective standards to help arrive at that description. Transposing this understanding to the offence of Section 304-A makes the problem apparent – the section is inherently contradictory. It criminalises conduct, but it makes that same conduct be treated differently on the basis of a resulting consequence.
It is fascinating that although courts in India are yet to apply this logic, the Supreme Court has on multiple occasions favourably referred to the decisions of the House of Lords in Caldwell [(1982) AC 341] and Lawrence [(1982) AC 510] in cases under Section 304-A [see e.g., Jacob Mathew v. State of Punjab, (2005) 6 SCC 1; Naresh Giri v. State of M.P., (2007), Kuldeep Singh v. State of H.P., (2008) 14 SCC 795]. Both decisions expanded the understanding of ‘recklessness’ to include an objective standard. This was primarily to exclude a possible defence, that an accused should not be held liable merely because the risk was not contemplated. I’ll step aside from the various criticisms levelled against the two English decisions here and also from the fact that the Supreme Court sadly ignored how both these decisions were no longer good law by the time they were relied upon. This fact is mentioned only to note how relying on them can be used to introduce a similar strand of relatively objective liability when considering the offence under Section 304-A by focusing on its basis of a conduct crime.
I have tried to argue here that the basis of imposing liability under Section 304-A can be looked at a different way, which offers more coherence both doctrinally and practically. Interpreting 'rash' as not being a traditional mens rea term but an adverb conditioning behaviour helps the trial at large, and also upholds various principles grounding criminal liability - those of certainty, correspondence and fair labelling, to begin with. The Supreme Court has been erratic and unprincipled in looking abroad to derive meaning for 'rash or negligent' found in the IPC. A more thorough approach could expose the inherent faults of that logic applied by the House of Lords (as criticised by various commentators) to help inform Indian jurisprudence better. The ideas proposed here are drawn from various academic texts. But they had overlooked one nugget of history, and it was revelatory to find a deep resonance of this argument in the 1838 Draft of the IPC. Maybe, we need to go back to the start.