[This Article has been authored by Nitin Kumar Sharma, a 2nd Year B.A.LL.B. student at National Law School of India University, Bengaluru.]

Introduction

In criminal law, understanding the state of mind of the accused person is an essential element besides the wrongful act, or the actus reus. The state of mind of the accused at the time of commission of the offense determines the liability and the quantum of the punishment of the offense, therefore, the distinction among the states of mind becomes vital for justice and fairness. Negligence and recklessness are two different states of mind; however, the variance between them has remained a grey area in criminal justice systems across the world. India too is not an exception to this, as here also such nebulousness in the understanding of negligence and recklessness exists. Although the new penal code, Bhartiya Nyaya Sanhita, 2023 (BNS), which has replaced the Indian Penal Code (IPC), 1860, has come into force with some new offenses introduced in it, most sections of the IPC have been retained in the new code. Hence, we are proceeding to new penal laws with some old ambiguities, including those between negligence and recklessness. Section 106(2), BNS, introduces the offense of hit and run. However, the words used are “rash and negligent,” instead of “rash or negligent” as in other sections such as Section 106(1) and Section 281, BNS. The change, although seems minor, can lead to ambiguities in the understanding of two distinct concepts.

The aim of this article is to critically analyze the distinction between these two concepts on the basis that both terms represent different states of mind and to highlight the need to recognize these two terms as different offenses under different sections of the penal code. This article will be limited to the criminal perspective of these terms. 

Distinction Between Negligence and Recklessness

Negligence is defined as when a person acts in a way in which a reasonable prudent person would not act or does not act in those circumstances when a reasonable prudent person would act. Hence, in those circumstances where a person is acting negligently, he may not have foreseen the consequences of his actions. Therefore, to define the liability in the case of negligence, the actions of a reasonable person should be considered by the courts. Hence, the test of negligence is an objective test—irrespective of the accused’s state of mind and his actions, the actions of a reasonable person would be looked into—rather than a subjective test where the Court looks into the mind of the accused and considers his actions.

On the other hand, reckless behavior is determined based on the subjective test. The Court in R v. Cunningham has defined recklessness as follows:

“the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it”

Hence, the major distinction between recklessness and negligence is the difference between advertence and inadvertence i.e. when a person is reckless, he is aware of the risk associated with his acts, but either he does not pay attention to it or hopes that the risk will not occur. Whereas in the case of negligence, the accused is not aware of the results of his acts. Therefore, as per this difference, courts have applied a subjective test for determining the offense of recklessness.

Indian Context of Negligence and Recklessness

The penal law in India does not explicitly define the terms “negligence” and “recklessness.” Moreover, the word “reckless” does not appear either in the IPC or in BNS; the word used instead is the “rash act.” The Law Commission of India mentions that rashness conveys the idea of recklessness or doing an act without due consideration, while negligence is defined as an omission that a reasonable prudent person would or would not do in similar circumstances. Hence, rashness and recklessness convey the same meaning for the purpose of IPC and now for BNS.

In the context of Section 304A, IPC (now Section 106, BNS), the Court in the case of Empress of India v Idu Beg, distinguished rashness and negligence as follows:

“criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury or knowledge that it will probably be caused…criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care that was the imperative duty of the accused person to have adopted.”

Hence, in the case of rashness, the liability lies in the fact that the accused is indifferent towards the risk, while in negligence it lies in not taking reasonable care.

However, there exists confusion in the Indian criminal justice system to understand these terms. For instance, in the case of Tika Ram v Rex, the High Court, although, distinguished between negligence and rashness but termed rashness as the species of the genus named negligence. This species-genus relation between negligence and rashness would mean that every act of rashness can be classified as negligence but not vice versa. However, as both terminologies represent different states of mind of the accused, there cannot exist such a kind of classification between negligence and rashness. 

Even after having the separate penal code in India, such misunderstandings of the terminologies can be attributed to the absence of the explanations of these terms. The ground of this ambiguity seems to be in the fact that both the terms appear together in the same section of IPC, which is coupled with the same punishment for both the offenses. This ambiguity persists in the new penal code as well as section 106 of the BNS retains the phrase “rash or negligent act.”

The introduction of new section 106(2), however, in the BNS has led to more ambiguities in the understanding of these terms. This section makes “rash and negligent driving” an offense. The word ‘and’ in a statute is ordinarily used as a conjunctive, i.e., when two or more words are joined using ‘and,’ it requires that all conditions it joins should be fulfilled. Hence, to prove the offense under this section, the prosecution will be required to establish that both, rashness and negligence were present at the time of driving the vehicle. As both the terms define different states of mind, therefore, it seems quite illogical to say that the accused was both rash and negligent at the same time. Because, to establish rashness, it shall be proved that the accused has foreseen the risk, and he chose to be indifferent towards it, while to prove the offense of negligence, it should be established that the accused deviated from the care that a reasonable person would take. It should be noted that there is no foresight of the risk in negligence. To sum up, to be convicted under Section 106(2), BNS, either accused should have both foreseen and not foreseen the risk at the same time, or he is doing an act negligently while being aware of the risk involved. It is submitted that the first condition is unreasonable to occur while the second condition can be treated as rashness only. Therefore, the introduction of the phrase “rash and negligent driving” can lead to some more complications in already complicated concepts.

Need for Changes: Removing the Ambiguities

Based on the above premise, it is submitted that some changes are required in the BNS relating to the offenses of rash and negligent acts to make them coherent with the principles of justice and fairness. Firstly, there should be separate provisions for both offenses along with the explanations of both terms to avoid any overlapping. Secondly, the use of ‘and’ in the phrase “rash and negligent driving” in section 106(2) of the BNS should be omitted to avoid any ambiguities, and the cases where the accused leaves the site after causing death by negligent driving should be separated from the case where the accused leaves the site after rash driving. 

Apart from legislative amendments in the BNS to remove ambiguities, judicial interpretation can also resolve these ambiguities, especially the one introduced by Section 106(2), BNS. In Ishwar Singh Bindra v State of UP, the Court held that ‘and’ can be read as ‘or’ to carry out the intention of the legislature. In the Section 106(2), BNS, it reads as ‘rash and negligent,’ while in other sections, such as Section 106(1), BNS, ‘rash or negligent’ is used. Therefore, to give Section 106(2), BNS, a meaning aligning with the legislature, the Court can interpret ‘and’ as ‘or.’

Conclusion

In the field of law, words that appear to be similar in the common understanding can be very different from each other. Such is the case with the understanding of legal terminologies negligence and recklessness. In the case of negligence, the accused is not aware of the risk, while recklessness or rashness, in Indian law, is that state of mind when a person having acknowledged the risk involved with his acts, continues to proceed further with his acts, hoping that adverse consequences will not follow. As we are moving to new penal codes, it is the right time to address the ambiguities in the understanding of rashness and negligence that persisted in the IPC, and this can be addressed by adding separate provisions for each offense with clear definitions for each term.