In this article, Chirali Jain discusses why duty to rescue should be made a legal duty under the penal laws.

In a recent case, Kanhaiya Lal desperately cried for help but motorists swerved straight past him where the splayed bodies of his wife and infant daughter lying next to the mangled motorbike. A young cyclist in Karnataka lay bleeding on a road and cried for help after being hit by a speeding vehicle but none came forward to help and resulting in his death. According to Doctors, help given earlier could have possibly saved the boy.[1]

When a road accident occurs, bystanders will usually try to help the injured, or at least call for help. But in India it’s different. In a country with some of the world’s most dangerous roads, victims are all too often left to fend for themselves. Is India a nation of heartless Indians? Why are people in India reluctant to help someone in conspicuously dire need of it?

The Law Commission of India states that 50% of those killed in road accidents could have been saved had timely assistance been rendered to them but instead people prefer to click selfies at such incident spots and create fuss which makes one wonder if India should have a legal code that makes it mandatory for people to help accident victims.

Click Here

Where people are left to die, raises questions about the intrinsic nature of human beings and civil society. Most human beings find it hard to connect with sufferings happening at a distance, we don’t consider it our obligation to help unless we see someone dying first hand, but do if the person is dying in front of us. The impediment is whether it is wrong to not offer help to someone dying? There have been more public displays of dehumanization in recent months and no justified explanation could be given for the inane humanity and total lack of empathy.[2]

There are some countries in the world that already have such legal arrangements. In Quebec, it is a criminal offence not to provide assistance to someone in need. Its Charter of Rights states, “Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person.”[3]

In German Criminal code, whoever does not render assistance during accidents or common danger or need, although it is required and can be expected of him without possessing any substantial danger to himself shall be punished.[4]

Northern Territory Criminal Code Act imposes a general duty to rescue, stating that any person who is able to provide rescue, resuscitation, medical treatment, first aid or succor of any kind to a person who is urgently in need of it.[5]

In France, anyone who fails to render assistance to a person in danger will be found liable before French Courts (civil and criminal liability). The penalty for this offence in criminal courts is imprisonment and a fine while in civil courts judges will order payment of pecuniary compensation to the victims.[6]

In certain countries, where there is a “no duty to rescue” rule, a BPL analysis by Judge Learned Hand’s can show how inefficient it can be. The burden (B) to the potential rescuer can be slight; the loss to the potential victim (L) will probably be great; and the probability of the loss occurring (P) shall be greater. Thus, the probability of harm being caused to the victim shall be much more that it cannot be outweighed by the trivial difficulties being caused to the rescuer.

In the criminal law, failure to act, i.e. an omission, will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty.[7] So, creation of such a legislation is necessary to impose a “duty to rescue” in order to give it a criminal character.

If social contracts were created for the purpose of peace and justice in society, where people live harmoniously with one-another, then perhaps introducing a “duty to help” law that punishes people for inaction should be introduced to keep the vices of human beings in check. Also, there is a very strong possibility that the rescues might become the victim one day in future.

Even though letting someone bleed to death on the side of the road does not necessarily disrupt the “greater good”, it does, however, cause upset. It leads one to wonder about the values of its society and whether they will be helped in the time of need[8].

Given our past experiences with police and courts, many of us think it is prudent to stay clear of trouble, including accident sites and victims. But the excuse is no more valid. Last year, the Supreme Court approved the guidelines for the protection of Good Samaritans at the hands of police or any other authority. Under the new law, people who volunteer to help victims can no more be harassed by the authorities. Sadly though, the fine piece of law is being undone by our selfishness.[9]

The counter argument would be that one might say whether or not to perform a good deed is a personal decision, a private matter for an individual and her conscience and that to invade that sphere is a threat to individual autonomy. Moral issues and legal duties are distinct and should stay that way but then, law and morality cannot be separated from each other.[10] Duty to Rescue should not only be followed in one’s conscience but also a fear must be created in the minds of the people in order to achieve the greater good of the society.

To create such a law where people are punished for not extending help when they can is the need of the nation in the present times. Though this can be said to be a restriction on their “liberty” but constitution has the power to impose reasonable restrictions for the protection of society. No human being can be dutiful without the hand of governance looming over them. Though we are standing up to the national anthem in rapt attention these days, but we have let our humanity slip. In order to protect this mortality, a strong deterrent towards criminal apathy is what we need.

[1]http://www.hindustantimes.com/opinion/help-be-human-it-s-time-law-punished-people-who-watched-cyclist-bleed-to-death/story-zeN2gJweqTjtHQV8SjW1DL.html

[2] http://www.lifeofthelaw.org/2013/05/wait-what-no-duty-to-rescue/

[3] Quebec Criminal Code, 1985

[4] Section 323c, German Criminal Code, 1998.

[5] Clause 155, NT Criminal Code, 1983.

[6] Article 223-226, French Penal Code, 1810.

[7] Section 120, Indian Penal Code, 1860.

[8] https://www.sydneycriminallawyers.com.au/blog/is-it-a-crime-not-to-help-someone-in-danger/

[9]http://www.indiatimes.com/news/india/two-bleeding-people-left-to-die-in-one-week-does-india-need-a-duty-to-help-law-270772.html

[10] Law, Ethics, and the Good Samaritan: Should There Be a Duty to Rescue?, Santa Clara Law Review, Vol. 40, Page 16.