Basics of law: Mens Rea: A Justifiable Crusade of Criminal Liability

INTRODUCTION

Crime is a prevalent construct in a society. Imagining a society without crime is an utopian notion. Often, there is a paradox of fixation of criminal liability with respect to "mens rea" which means guilty mind. The presence of mental element is necessary to hold a person accountable for the crimes being committed. The court adjudges a matter of criminal culpability on the account of mens rea apart from the act [criminal act]. The penal structure of India recognizes mens rea as an important component in determining the guilt of a person charged of an offence.

It is an idealised notion in the Indian context that to constitute a crime, the two basic elements, i.e. mens rea and actus reus, both must be present.

MENS REA Under International Criminal Order

"Mens rea" is a Latin term that denotes 'guilty mind'. It carries itself a mental element imbibing determination of culpability of a person with respect to an offence. There are instances where the element of mens rea is forsaken for the greater/collective good of the society, like in case of strict liability.

In the international criminal law order, there is Dolus Directus (where harmful desire is there followed by foreseen consequences) , Dolus Indirectus ( it appears when some secondary instances occur which were not desired) and Dolus Eventualis (harmful consequences occur and there is a likelihood of their occurrence), along with the scale of Dolus Specialis i.e. the special requirement of intent in case of Genocide and Crimes Against Humanity.

Under Article 30 of the Rome Statue of 1998, the International Criminal Court accounts for the presence of mental element as per the elements of four core crimes mentioned in the Statue, i.e-

1. Genocide- Special intent is required to eradicate the population wholly or partially that belongs to a particular group.
2. Crimes Against Humanity - it requires that an attack directed against humanity should be widespread and systematic.
3. War Crimes - it applies both at times of international and non-international armed conflict. Special intent is sought with regards to treacherously committing it.
4. Crimes of Aggression- it is done in view wherein there are instances of crimes against the peace and tranquility.

The major roadblock in determination of culpability is the mental element which poses a tussle in identification of the guilty mind with which the act was done. Mens rea deals with establishing accountability for those whose acts are aligned with the forces of degrees of knowledge or intent. The foundation of the conceptualization of mens rea owes it to the maxim-"Actus non facit reum nisi mens sit rea", meaning that an act alone does not qualify for a criminal behavior but it does so if it was done with the guilty mind. This maxim is followed by "actus me invito factus non est mens actus" which implies that the act must not be done against the will, if it is done against will then it will not incorporate guilty mind.

Mens rea generally plays by the recognition a person has of an intention which is wrong which holds a person culpable for his crimes. It plays a crucial role in determination of guilty mind i.e. in pursuits of the manifestation of mens rea in its different variants,-intention, knowledge, recklessness, willfulness, etc., that are recognized under the penal laws.

The element of mens rea is concerned with demarcating a special outlook to the criminal acts that requires gravity and intention with other factors to hold an individually liable for the criminal act. Lord Diplock said that “An act does not make a man guilty of a crime unless his mind be also guilty”.

The Philosophy Behind Mens Rea

Determination of criminal culpability and its uniform fixation requires a set standard in its objective and subjective manifestations. It fulfills the criteria and provides a justification with regards to existence of liability by reason of fault or crime. Mens rea deals with different angles of awareness to determine the criminal liability index of a person. The aim of incorporation of mens rea is due to the seriousness of the criminal acts and their serious implications on the society. Mens rea provides an lens to weigh the guilty mind with which the act is committed that intended to cause harm to the society.

The reason for fixation of culpability is as-

1. To assure "No liability without fault".
2. To instill a sense of security among the people that liability fixation is done on reasonbale grounds.
3. To instill a sense of security among the people that liability fixation is done on reasonbale

The 4 manifested versions of mens rea as recognized in India are-

Intention

Intention, thus purports to the desire a person has with respect to the results an act would have. For example, when a person A was shooting person B, A was intending to kill B.

Knowledge

It is the awareness that a person has with respect to the ramifications of an act that is done. For example, a person A aims to shoot a rabbit behind the bushes but he is aware that B is hiding behind the bushes and thereby shoots B, herein, A had the Knowledge of the act.

Recklessness

Recklessness deals with foreseeing the act along with the probable outcomes that the act might pose. Herein, the desire is absent, i.e. the person does not intend for the act to happen per se.

Negligence

Negligence incorporates the element of "due care and precaution". It implies that the event could not be foreseen but the criminal act occurred due to the absence of due care and precaution. For example, A as a doctor have the obligation to perform the surgery diligently with due care and precaution but he did not do so and as a result the cotton was left inside the body, this would amount to negligence.

EXCEPTIONS TO MENS REA

Generally, it is taken into essence that presence of mens rea is crucial in determining the culpability of an offence. But under certain scenarios, the mental element is left off to make a law stricter in terms of its application. Generally, under strict liability, mens rea is waived off. It is meant to establish that no guilty mind is required as such but because a criminal act is done that is detrimental and grave for the society in large scale.

For example, in India under the NDPS Act, 1985, and under certain provisions of environmental law, the element of mens rea is waived off in most provisions to make it stricter, i.e. imposition of stricter liability is there.

CONCLUSION

Mens rea is a crucial player in setting of the guilt of a person and is construed in different variations depending upon the gravity it carries. The implementation of mens rea is sometimes waived off to have a strict vigilance over the act as those acts carry serious threat to the society and in such scenario determination of mens rea become a difficult task.

Refrences

1. MENS REA OF A CRIMINAL
2. Doctrine of mens rea and actus reus
3. Elements of Crime
4. All you need to know about Mens Rea