By Parth Jaisinghani ~ Symboisis Law School, Hyderabad
The Indian Penal Code, 1860 (hereafter IPC) is the main criminal code of India. It extends to the entire nation, including Jammu and Kashmir. This article is going to deal with the chapter XV of the act with scrutinizing on Section 304 of IPC. Also, this article is going to follow the IRAC method. According to a study by the British Safety Council in 2017 – 48,000 workers died in India from an occupational accident. Also, there are many cases like Satnam Singh v State of Rajasthan it was not proven that the truck driver had deliberately crushed the person on the scooter; hence the truck driver was charged with section 304(A) of IPC. The same type of incident has happened in Murari v. State of Madhya Pradesh. India had witnessed many accidents like:
- Bhopal Gas Tragedy where 5,294 people died.
- The Korbes Chimney Collapse of 2005 taking away 45 deaths.
- The GAIL pipeline blast of 2014 took 15 lives, (4) The Vizag Gas Leak in 2020 took 15 lives.
According to the Labour and Employment Minister in the year between 2014-16, 3,562 workers died in a factory accident.
Generally, in case of fatal industrial accidents in India, the in charge of the factory, i.e. the owner or managing director is charged under section 304(A) of IPC (causing death by negligence). It is a bailable offence with two years of imprisonment or fine or both. Whenever a person is found guilty under this section, he is always accompanied by section 336, section 337 and section 338 of IPC, which deals with endangering life and personal safety of others. Still, they provide for even shorter prison term or fine as compared to section 304 of IPC that is culpable homicide not amounting to murder.
Also, one of the main issues why this section 304(A) of the IPC is popular is because the state forces police to file complaints under it not in Sec.304 as it has demoralizing value on businessmen.
But this is quite a contrast to Australia. There Section 39G of Occupational Health and Safety Act, 2004(Vic) states that a person negligently causing the death of a workman shall be imprisoned for 25 years and Section 49D of Crimes Act, 1900, provides imprisonment for 20 years.
So, comparatively, we can see that in India it is the need of an hour to have more strict punishment. A section was introduced in India- the Occupational Safety, Health and Working Condition Code, 2019 it stated that the accused shall be punished with two years of imprisonment or five lakhs of fine or both. But in Section 2(u) of the act, it states that a factory can comply only in this act if it has 10+workers in the Factory or Plant. So, because of this provision, many factories were exempted from this act.
Also, in the United Kingdom, there is an act- The Corporate Manslaughter and Corporate Homicide Act, 2007. This act can be an idealistic act for India. It states that there shall be infinity fine bearing in factor like the breach of duty to making a profit, the degree of risk taken, and the extent of danger involved.
Why do we need an amendment now?
Today it is crucial to take this act serious as if a factory or a plant do not follow government norms against COVID-19 like social distancing, sanitizing or disinfecting in the factory, the death toll will be inevitable and also their owner or managing director of the factory will escape under the ambit of section 304(A) of IPC. Also, there is direct competition between Pharmaceutical Companies to find vaccine and medicine for this disease as the financial reward for the same is above the sky, so for that, they can have improper trials which can be a threat to human life.
Now the question is what can be the road map for this reform. The reform should be based on the principle- ‘Salus Populi suprema lex esto’ which means the health of the people should be the supreme law. Till now the government had focused on amendments to the existing law, but now it is the need of an hour to make new offences, reclassification, or removal of existing offences and change in the quantum of rights of victims. Also, the act must have a retrospective effect as no accused should be left free. Now for this, we can have a combination of different theories of crime which includes; deterrent theory- this theory is used to set examples in the society; preventive theory- this theory is used so as the accused do not commit the crime again. This theory means to prevent crime by sending the accused to jail; Expiatory Theory- this theory is used to pay the compensation to the victim by the accused. So, we should reform the three theories. Now the question is, can a corporation be imprisoned?
Corporations are not imprisoned for severe crimes as there is no soul, so, nobody hence no imprisonment. But later by the 41st Law commission report, it was stated that if the corporation commits a crime, then the corporate members will be held liable as they are the brain of the corporation.
The following steps should be taken while making reform-
- Determining the seriousness of the offence- the committee should see how foreseeable was the injury, what requirement did the accused fail to take care of, was it reasonable and what was the intention of the accused?
- Check whether the proposed fine is proportionate or not- the next step is to impose the penalty on the accused based on his turnover that the fine should be reasonable to the company’s turnover.
- Check the totality principle – if the accused is found guilty for more than one offence, consider whether the total sentence is just and reasonable or not.
Also, the new reform should take crux from the Corporate Manslaughter and Corporate Homicide Act 2007 of the UK and Section 39 G of Occupational Health And Safety Act, 2004(Vic) of Australia, like imprisonment, should be increased from 2 years to 25 years. Fine should be infinity and imposed by seeing the intention of the corporate bodies (how much profit they want to make, how much risk they have undertaken, what was their intention). A company can be charged with both fine and imprisonment. Judiciary can impose fine by also seeing the turnover of the company that is – is fining reasonable? Also, the fine should be in such a manner that it should set an example in society. Also, the accused should be entitled to take some due care of the workmen who lost their lives.
The major drawback of the act is that all these fines and imprisonment are for factories or plants having 10+ workers because of these many factories are exempted, so there should be an amendment to this clause, and there should be no minimum limit of workers to impose this act. These are the reforms which the government should take against corporate homicide. Hence these are the reforms I would like to suggest to the National Level Committee for Reforms in Criminal Law.
-  Satnam Singh State of Rajasthan, AIR 2000SC 423
-  HT Correspndent, Accident at NTPC plant: India’s worst industrial disasters, Bhopal to Korba, Hindustan Times (Nov.1,2017), https://www.hindustantimes.com/india-news/boiler-explodes-at-ntpc-plant-india-s-worst-industrial-disasters-bhopal- to-korba/story-a60C113OGSSvbez8lDn7wM.html
-  Smita Tripathi, Vizag tragedy: Bhopal, Chasnala among India’s worst industrial disasters, Telegraphindia (Sep.17 2020), https://www.telegraphindia.com/india/vizag-gas-leak-tragedy-bhopal-chasnala-among-indias-worst-industrial- disasters/cid/1771142.
-  Express News Service, Vizag gas leak: Fire Department reached LG Polymers 16 minutes late, states High-Power Committee findings, IndianExpress (July.11, 2020), Vizag gas leak: Fire Department reached LG Polymers 16 minutes late, states High-Power Committee findings
-  Radheshyam Jadhav, 3 workers die, 47 are injured every day in factory accidents, The Hindu (Feb.26, 2019), https://www.thehindubusinessline.com/companies/3-workers-die-47-are-injured-every-day-in-factory- accidents/article26378544.ece
-  Pjoychen Pulinkalayil, Rajasthan directs cops not to invoke section 304 in industrial accident cases, Times of India (Jun.29, 2017), https://timesofindia.indiatimes.com/city/jaipur/rajasthan-directs-cops-not-to-invoke-section-304-in-industrial- accident-cases/articleshow/59374841.cms.
-  Crimes Act 1900 (Cth) s 49D (Austl.).
-  THE OCCUPATIONAL SAFETY, HEALTH AND WORKING CONDITIONS CODE, 2019, §2, No. 186, Acts of Parliament, 2019 (India).
-  Corporate Manslaughter and Corporate Homicide Act 2007, 2 Vict.c. 19(Eng).
-  Id.