New Delhi, Oct. 27 -- Over two years after the Bharatiya Nyaya Sanhita (BNS) replaced the Indian Penal Code, the provision to punish drivers who cause a death through rash driving and then flee (Section 106(2)) remains on the books but out of force. Recently, two high-profile crashes- one involving Sia, a motorcyclist hit on Gurugram's Golf Course Road in September, and the deaths of three people hit by a speeding Mini Cooper near Kerala's Nedumbassery in October- drew markedly different criminal charges, exposing the hole left by the dormant clause. The Gurugram police added an attempt-to-murder charge after examining CCTV footage, while Kerala police registered a case of culpable homicide not amounting to murder, in the absence of the provision. Shubham Kumar, who leads policy advocacy at Crashfree India, said the clause in question was meant to address the additional culpability of leaving a fatal crash without reporting it, rather than treating every fatal collision as an intentional act. "When a serious crash happens and gets in the media glare, there is understandable public pressure to invoke the strongest possible charge. But attempt to murder has specific legal ingredients, including the relevant intention or knowledge, and the prosecution has to prove them. The seriousness of the outcome, or even evidence of speeding, does not by itself settle that question. A charge has to fit the conduct and the evidence; otherwise, it may be difficult to sustain through prosecution and trial." Section 106(2) prescribed up to 10 years in prison and a fine for causing death by rash and negligent driving and then failing to report the incident to a police officer or magistrate soon after the crash. In January 2024, the government said it would consult the All India Motor Transport Congress before deciding whether to bring the clause into force after transport workers and forums raised concerns about the severity of the proposed punishment and the risk of mob violence at crash sites. But when the BNS took effect on July 1, 2024, Section 106(2) was left out of the commencement notification. Amarjeet Singh, a Supreme Court advocate and director of PRAN (Plebeians Research and Academic Network) Foundation, said the provision also aimed to encourage reporting of incidents and prompt medical assistance. "In a serious accident, every minute matters. When Section 106(2) is not in force, the specific offence of causing death through rash and negligent driving and then escaping without reporting cannot be invoked," Singh said. "Drivers' fear of mob violence deserves serious consideration, but it cannot eclipse victims' right to timely assistance. The law should be enforced with safeguards that allow drivers to report crashes safely," he said. Similarly, Piyush Tewari, founder & CEO, SaveLIFE Foundation, said, "Such (murder) charges may appear stringent at the outset but can become difficult to sustain through investigation, prosecution and judicial scrutiny, ultimately weakening the prospects of conviction." He said the answer is not to stretch existing criminal provisions beyond their intended scope, but to ensure that the law properly recognises and penalises the conduct in question. "Parliament has already legislated for this distinction. The government must now operationalise Section 106(2), while ensuring that its enforcement is accompanied by appropriate safeguards and clear procedures for drivers to report crashes and secure emergency assistance for victims." The penalty ladder is missing a rung. Section 106(1) (causing death by negligence) is in force and carries a maximum five-year term, but creates no aggravated offence for fleeing without reporting. Section 106(2) would raise that ceiling to 10 years. The gap widens when the victim survives. Kumar pointed to a wider legislative gap that would stay even if Section 106(2) were brought into force. "The provision is confined to fatal crashes. BNS Section 125(b) already penalises grievous hurt caused by rash or negligent conduct, but there is no corresponding aggravated offence for fleeing without reporting. A victim may survive with permanent disability, yet the law does not specifically recognise the additional culpability of fleeing in such cases,"he said. Lawmakers tried to close this gap nearly five decades ago. A 1978 amendment bill to the Indian Penal Code proposed a new Section 304B to cover deaths, or injuries likely to cause death, caused by rash or negligent driving when the driver left without informing a police station within a reasonable time. It passed the Rajya Sabha but lapsed in 1979 when the Lok Sabha was dissolved. The Law Commission returned to the problem in its 156th report in 1997 and its 234th, "Legal Reforms to Combat Road Accidents", in 2009, recommending stronger provisions on deaths caused by negligent driving. While tougher penalties alone cannot solve the road safety problem, their enforcement remain a necessary lever under the safe systems approach's broader umbrella , said Bhargab Maitra, IIT Kharagpur professor and advocate for safer speed as in many West European cities. "Enforcement...must go hand in hand with safer road engineering, speed management, public awareness, vehicle safety and effective post-crash care. When a crash goes unreported, it is also a missed opportunity to understand why it happened and take corrective steps to prevent similar crashes," he said....