Drink and Drive: Know the Law and Punishment in India

Introduction

India, a country with only 1% of motor vehicles in the world, accounts for 11% of the total road accidents that take place all over the world. That means 53 incidents of road accidents every hour, killing 1 person every 4 minutes, one of the highest in the world, according to the World Bank Report [1]. But do you know the reason why so many road accidents take place in India? The major reasons cited by the experts are poor law enforcement, distracted drivers, the influence of alcohol or drugs, over-speeding and failure to wear seat belts or helmets.

Driving under the influence of alcohol can be very harmful as it slows the central nervous system, leading to drowsiness, impaired vision, lowering concentration and reaction time, and consequently disobeying rules. The National Crime Records Bureau [2] confirmed that out of all the road accidents that take place in India, 2% of them are related to drunk driving. Over the years, there has been a significant rise in the number of cases of drunk driving related accidents, i.e., from 12,000 in 2018 to 12,256 in 2019. To tackle this situation, the government came up with the Motor Vehicle Act of 1988.

The Motor Vehicle Act,1988

As our society is growing at a fast pace, leading to an increase in the number of vehicles, both personal and commercial, so do road accidents. For this purpose, the parliament came up with the Motor Vehicle Act of 1988 [3], which came into effect from 1 July 1989. This act covered almost all aspects of concern. For instance, road safety standards, standards for transportation of different materials, pollution-control measures, issuance of licenses, driving schools, deterrent punishments for the offender, etc.

The Motor Vehicle Act of 1988 has undergone a major amendment in 2019.The Motor Vehicle (Amendment) Act of 2019 was similar to the bill that was passed by the Lok Sabha in 2017 that envisaged body cameras for traffic cops and RTO police to check corruption. It also increased the existing punishment of 2 years for drunken driving deaths to 7 years, mandatory insurance of third party for all vehicles and stricter penalties to reduce road accidents. The Bill lapsed in the Rajya Sabha as it was sent to the Select Committee for scrutiny.

The Motor Vehicle (Amendment) Act of 2019 [4] was a major improvement to the MVA Act of 1988. It tried to cover all the different aspects that were relevant in the current scenario. For instance, expansion of remuneration for the deceased family, establishment of the National Road Safety Board and Motor Vehicle Accident Fund by the central government for all road users, protection for good Samaritans, third party insurance, recall of vehicles, etc. The most remarkable aspect of this amendment was the increase in penalties. For example, the maximum penalty for driving under the influence of alcohol has been increased from Rs 2,000 to Rs 10,000, i.e., a 400% increment. These penalties could be increased by the central government up to 10% every year.

The Motor Vehicle (Amendment) Act, 2019 was criticized as the law was made applicable all over India, and since road safety is a concurrent subject, i.e., both the states and the Centre can make laws on it, it was contested that it infringes upon the states’ rights to make laws. Secondly, the increased fines were also contested because they affected people disproportionately, as people were heftily fined even for petty offences for which they were charged even more than their vehicles’ actual cost or their salary. Therefore, many states that initially began executing this law decreased the penalties over a period of time.

Provisions regarding Drink and Drive law

Driving under the influence of alcohol or drugs is defined under Section 185 of the Motor Vehicles Act 1988 [5] as:

“Whoever, while driving or attempting to drive a motor vehicle, has in their blood alcohol exceeding 30mg per 100ml detected by a breath analyzer test, or is under the influence of drugs to such an extent that they are incapable of exercising proper control, shall be punished with imprisonment for up to 6 months, or a fine of up to two thousand rupees, or both.”

Blood Alcohol Content (BAC) is the concentration of alcohol in one’s blood, and is used for medical or legal purposes. For legal purposes, it is used to determine whether a person was intoxicated or not, and to determine the level of impairment while engaged in a road crash. The current permissible blood alcohol content in India is 0.03% per 100ml of blood.

In India, alcohol falls under the category of state subject, labeled as item no. 51 in the state list under the seventh schedule of the Constitution of India. As a result, the sale and consumption of alcohol varies from state to state, i.e., in some states, such as Gujarat, Bihar, Nagaland, and Mizoram, alcohol consumption is prohibited, whereas in other states, consumption is permitted but a legal age has been established, which may differ from state to state, i.e., the drinking age in Delhi is 21, but it is 25 in Haryana and 18 in Andhra Pradesh.

In view of the rising number of cases of drunk & driving incidents, the Supreme Court in the matter of State of Tamil Nadu and Ors. v K. Balu & Anr, 2016 [6] came up with a major verdict that put a blanket-ban on the sale of liquor shops within 500 meters of the national and state highways. The exception to this was that in the case of an area comprising of local bodies with a population of 20,000 people or less, the distance of liquor shops shall be reduced to 220 meters. This decision drew certain criticisms from hotel and restaurant owners who claimed loss of livelihood due to the closing of liquor shops near the highway.

Can Drinking be Considered a Fundamental Right?

This issue of whether drinking is a fundamental right or not has come many times in front of the courts. The Bihar High court in the case of Shailesh Kumar Sinha vs The State of Bihar & Ors 2016 [7], cited that peaceful consumption of alcohol on one’s premise of land as a fundamental right to life and liberty under article 21 of the Constitution. This judgment locates the right to eat and drink what one wishes, as drawing out the same from Article 21 itself, as part of the liberty enjoyed by all. The judge in this case made a very strict interpretation of fundamental rights, drawing an analogy from the supreme court’s verdict in Confederation of Indian Alcoholic Companies Vs. State of Bihar [8], wherein it denied the complete prohibition of alcohol as it was in violation of Article 19 (1) (g), the fundamental right to carry out any trade or business to all citizens residing within the jurisdiction of the state, instead of looking for a wider consequence in real life.

However, in 2017, the Kerala High Court in the case of M.S. Anoop vs State of Kerala [9] unequivocally stated that drinking alcohol doesn’t fall under article 21, which is the fundamental right to life and liberty. The Supreme Court has also, in many cases, stated that restrictions can be imposed on things that concern the public at large. The same is also mentioned under Article 47 of the Constitution, which provides for the State’s duty to raise the level of nutrition, standard of living, and improve the state of public health. This imposes a high degree of responsibility on the state to ensure that drinking or drugs which are injurious to human health are prohibited. 

Impact of Drunk Driving on Vehicle Insurance Policy

The claims for motor insurance in drunk and drive cases are not permitted because the economic costs of these accidents are very high. However, one can claim their insurance if he or she can show that the BAC level was less than 0.3% at the time of the accident.

Although the insurance policy doesn’t get cancelled due to the accident, since it’s a one-time payment, the insurer may, after repeated acts of drunken driving by the insured, cancel his/her insurance. 

Conclusion

“If the punishment for a crime is a fine, then that law exists only for a lower class“

The high fines can affect poor people disproportionately, whereas upper-class people can simply get away with paying the fine, as giving Rs 10,000 out of their monthly salary of Rs1 lakh would be much less, whereas giving the same to a lower-class person who only earns Rs 15,000 a month means losing 67% of their salary. As a result, lawmakers must keep in mind that fines should vary from case to case, i.e., a significant percentage of their salary with a minimum threshold. A fine of 50% of monthly salary with a threshold of 10,000 will be the same as paying a maximum of 10,000 and 50% of salary, so a person earning 1 lakh will be eligible for a 50,000 fine and can’t get away easily with it, so that it can create a deterrent rather than create a ground for more corruption.

The consequences of drinking and driving can vary from less serious (you may just have to pay a fine and get away with it) to very serious (it may result in the loss of life, which can lead you to end up behind bars or leave you in a permanent state of disability). Taking necessary precautions, like hiring a cab or asking someone to drive for you, may help in avoiding this situation. Remember, when you drive in a state of intoxication, you not only put yourself at risk but also endanger the lives of all the people using that road at that particular point of time.

This article is authored by Neha Bhardwaj, student at Institute of Law, Nirma University

References

1. https://www.thehindubusinessline.com/news/india-accounts-for-11-per-cent-of-  global-death-in-road-accidents-world-bank/article33834556.ece
2. https://ncrb.gov.in/sites/default/files/Chapter-1A-Traffic-Accidents_2019.pdf
3. https://en.wikipedia.org/wiki/Motor_Vehicles_Act
4. https://www.drishtiias.com/daily-updates/daily-news-editorials/the-motor-vehicles-bill-for-road-safety
5. https://indiankanoon.org/doc/139481594/
6. https://indiankanoon.org/doc/23113316/
7. https://indiankanoon.org/doc/194572130/
8. https://indiankanoon.org/doc/11481944/
9. https://www.lawyerservices.in/MS-Anoop-Versus-State-of-Kerala-represented-by-Principal-Secretary-Department-of-Taxes-and-Others-2017-01-12

Other References

1. https://www.acko.com/car-insurance/drunken-driving-and-motor-insurance-in-india/
2. https://en.wikipedia.org/wiki/Alcohol_prohibition_in_India
3. https://www.mondaq.com/india/rail-road-cycling/1051856/critical-analysis-of-motor-vehicle-act-201
4. https://prsindia.org/billtrack/the-motor-vehicles-amendment-bill-2019