Newspapers are full of articles on the problem of road traffic deaths and injuries in India. Television channels have ample opportunity for breaking news about death and accidents on roads.
Annually, 1,50,000 people die on the roads of India. There are prolonged discussions on how to reduce these deaths. Stricter punishments - from heavy penalties to imprisonment - are regularly presented as solutions.
Recently, the death of a young pedestrian on the road by a luxury vehicle driven by a juvenile provoked a hue and cry in the media, with everyone gunning for arrest and exemplary punishment not only of the juvenile, but also his father.
As these cars are owned by the rich and famous, the class difference evokes a greater sense of anger and protest. Everyone rightly sympathises with the emotions of the relatives of the poor victim.
Is the Driver Always to Be Blamed?
A few days down the line, everyone forgets about the accident and nothing happens until another person is killed. Editorials are written on the need for exemplary punishment, debates go on endlessly on TV channels with ‘experts’ articulating the need to change our penal system to prevent ‘this murder on the streets’.
There is a need to understand the evolution of the definition of crime and punishment in any civil society. For any crime, intent and motive are important considerations. In a crash and death on the road because of faulty design of the roadway, whom do you blame as the culprit?
The victim who was killed on the road, but who should have been on the pedestrian pathway and not on the road; the driver who crashed because of the poor design of roads; the builder who built them; the designer who designed them; the bureaucrat who approved the project; the international agency that funded the project; or the politician who finally sanctioned everything?
Eye for an Eye: Taking the Law in Your Own Hands
Or maybe we should penalise all the vehicle manufacturers that put these killer machines on the roads. Or we should go far back in time and blame the inventor of the car itself.
If it was purely an ‘accident’ with no motive or intent, where is the ‘crime’ and why and who should be punished?
We have evolved from the barbaric times where ‘justice’ was delivered instantly by people involved. Any harm was avenged by harming the other. Eye for an eye, tooth for a tooth. Death was avenged by killing the killer.
The era of duels at appointed times to settle scores made romantic tales more romantic. Bollywood- or Hollywood-style justice delivery where the hero kills the villain well before the police arrive is popular with the masses.
At least in reel life they can see justice delivered by their ‘heroes’. However, deaths continue in real life.
People in villages and cities have in many situations taken the law into their own hands and beaten up drivers and burnt the vehicles involved in crashes. Many a driver has been lynched. This is worse than the maximum punishment for even murder.
It is common to see drivers involved in crashes run away from the accident site for fear of being lynched by the mobs. So, a driver who may have had no fault will now seem to have a ‘motive’ as he had run away from the scene of the ’crime’. Society has successfully created a crime out of an accident.
So reminiscent of Raskolnikov’s predicament in Dostoevsky’s ‘Crime and Punishment’.
In civilised societies, the power to avenge the death of a kin by killing the killer was taken away from the individual and given to the state. The victims could have the satisfaction of a surrogate execution in punishment by the state.
Lessons From Europe and Elsewhere
Michel Foucault. the French philosopher, wrote that “in the execution of the most ordinary penalty, in the most punctilious respect of legal forms, reigns the active forces of revenge”.
In 19th century Europe, exemplary punishments were given in the hope that it would prevent other people from committing the crime. Public hanging and public flogging was done to deter others from even thinking about the crime. But did it?
In a classic story where a pickpocket was being publicly hanged, a large crowd had gathered to witness the event. Even as the pickpocket was hung, the other pickpockets of the city had a field day picking the pockets of the people gathered there to watch the hanging!
Europe moved away from public punishments and the prison system evolved, where the criminal was isolated from society as a corrective measure. Death penalty was executed in private with only a handful of officials to witness the event.
Physical pain and torture were taken off the list of measures for corrective action in penal codes. Legal executions in the US are done first by giving an injection that renders the prisoner unconscious, then an injection that paralyses, and lastly an injection that causes death by cardiac arrest.
So much effort to ensure that the execution is painless.
If strict punishment could control crimes in society, raising the bar of punishment should significantly reduce the bar graph of crime in cities.
By the same logic, a death penalty should give us a crime-free society. But does it or has it? Has the death penalty in some countries eliminated drug trafficking in these countries?
In some indigenous communities heavy penalties beyond the affording capacity of teenagers caught for drunken driving have only resulted in many ending up in jails for not affording to pay the fine.
In jails, interaction with hardened criminals lands them in more serious criminal situations. Many shift from alcohol to hard drugs. Keeping penalties affordable could have saved many of these.
Of High Penalties and Rampant Bribing
Increasing penalties only increases the temptation to give and receive bribes. For a Rs 5000 fine for jumping a red light both the violator and the enforcer would find it convenient to strike a deal at Rs 500 or, at worst, Rs 1000.
Encouraging corruption through policy and legislation!
While penalties are intended to punish, they are also supposed to correct or reform the person being punished. How often do they reform?
Fear of penalties and harassment by police of injured coming to hospitals regularly forces them to lie about the cause of injury. Many an injured strike deals with private nursing homes to ensure that a medico-legal case is not made for the injury.
Andha Kanoon: Examples From Our Judicial History
The due process of law must look at all the evidence to ensure that an innocent person is not sentenced to a death penalty. The scales of justice are held by a blindfolded woman. This is to ensure that justice delivery is not coloured by who or what the person is or what his associations are.
The Indian judicial system has not been able to develop legal principles with regards to sentencing. The honourable Supreme Court in State of Punjab v Prem Sagar & others (2008) noted:
In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts. except making observations with regard to the purport and object for which punishment is imposed upon an offender, had not issued any guidelines.
The only requirement the courts are required to follow is to state the reasons for sentencing as mandated under Section 354(2) of the CrPC.
The court in the aforementioned judgement stated that there have been anomalies in punishments meted out to convicts for same offence in similar circumstances due to lack of guidelines and wide discretion given to the judges.
In 2013 the Supreme Court, in the case of Soman v State of Kerala, also observed the absence of structured guidelines:
Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges.
The Supreme Court in Alistair Anthony Pereira v State of Maharashtra (2012) looked at the question of sentencing involving Sections 304 and 304A in a drunk driving case and found that punishment must be commensurate with the crime and that deterrence was a primary consideration when deciding on the severity of the sentence where rash or negligent driving was involved.
The court further noted that “the objectives of sentencing policy are deterrence and correction. The sentencing should be passed keeping in mind the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances”.
The Supreme Court’s judgment in Soman v State of Kerala (2013), the court cited a number of principles that it has taken into account “while exercising discretion in sentencing,” such as proportionality, deterrence, and rehabilitation. As part of the proportionality analysis, mitigating and aggravating factors should also be considered.
In road accidents, every police report has a statement on ‘rash and negligent driving’ because the policeman who investigates the case is trained only for that.
‘Rashness and negligence’ are the terms that help nail the ‘criminal driver’. Here lies the catch: an accident may have nothing to do with rashness or negligence; it may be due to faulty design of the road or the vehicle; and so many crashes have no witnesses. How does one prove ones innocence there?
Trials by the Media
Quite often it is a system failure (Normal Accidents: Living with High-Risk Technologies, Updated edition, Charles Perrow, author), then whom do you catch and punish?
If media keeps bringing the victims’ version and cries of “give exemplary punishment”, “he deserves to be taught a lesson”. does the judge order exemplary punishment?
In the 19th century, Europe stopped public hangings. Today’s trial by media has restarted a public spectacle of the accused. Everyone can sit back in the comfort of their living rooms and watch the spectacle of an accused being ‘ripped apart’ by experts who sit in judgement.
You can say the judges need not be influenced by the media. But can everyone remain uninfluenced by all the hype that is created?
Surely some Judges will be vulnerable to media pressure? With the experts in the media acting like the judge and the jury, where do you draw the line between freedom of press and irresponsible journalism?
Foucault was very clear that “the best way to prevent a crime is to increase the perception that your probability of being caught and punished is higher if you commit the offence”.
The degree of penalty or punishment is not critical. So the system needs to ensure that the offender is caught every time there is a violation. Increasing penalties in penal codes or the Motor Vehicles Act will not work.
In US and Europe, people are less likely to commit a traffic offence not because they are better disciplined or penalties are higher but because they know that they cannot escape the law. They know they could lose their licence.
Defining crimes and deciding the nature and extent of punishments is a serious social science. It should be the domain of criminologists, sociologists, psychologists and jurists with expertise and experience in the matter.
It should not be left to be influenced by laypersons, the bureaucracy, politicians or the media. Or even relatives of the victims.
Until we take steps scientifically based on evidence, we will keep hearing cries of ”‘we are an undisciplined lot, our system is corrupt, and nothing can be done here”.
Media trials and legislations on stiffer penalties and stricter punishments will continue, ‘accidents’ will continue to occur on the roads and people will continue to be killed on the roads while policy makers continue to tinker with punishments for ‘crimes’ on our roads.
(The writer is an orthopaedic surgeon actively involved in injury prevention and control. The views expressed in this article are the author’s own.)
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