The mens rea or mental element of the crime is one of the important elements of the definition of any crime. But the doctrine of Strict liability is a exception from this requirement of mens rea. It has given rise to many strict liability offences with the changing time. With this in mind, this article examines the doctrine of strict liability. Certain offences where Indian penal code is likely to tilt towards strict liability doctrine i.e. absence of mens rea are also listed. Lastly the difference between strict liability offences under criminal law and under tort has discussed.
The fundamental principle of criminal liability is that there must be a wrongful act- actus reus combined with a wrongful intention. In criminal law, mens rea is a technical term, generally taken to mean some blameworthy mental condition, the absence of which on any particular occasion negates the condition of crime. It is one of the essential ingredients of criminal liability. But there are certain offences where a defendant can be convicted notwithstanding that he did not have any mens rea. These offences are generally referred to as offences of strict liability.
Mens rea is not essential with following offences in Indian penal code:
waging or attempting to wage war or abetting to wage war, against government of india : This offense has been included in this code because a person should be self-evaluative of his action before doing it. Sometimes the action does harm to such a large extent that the injury is beyond repair. It is immaterial if the intention was to do so or not. This offense is considered as a very serious offense as it has been provided with the death penalty as the highest punishment for such crime.
Sedition The law of sedition in India has been attributed as a controversial offence largely because of its strict curtail on the constitutional provision of freedom of speech and expression guaranteed as a fundamental right under Article 19 (1) (i) of the Constitution of India. This law is stated in Section 124 A and 153A of the Indian Penal Code, 1860 and in other statutes. This offense is based on the principle that state should have the power to punish the offenders.Thus, the doctrine of mens rea cannot be applied in such crimes. Mere actus reus is sufﬁcient to hold such offender liable for the offense of sedition.
Public Nuisance This is recognition of the civil principle which states that one can enjoy his or her own property but cannot injure the right of another at the time of enjoyment of his right. This means one should exercise his right vis- a- vis his duty of non- interference in other's right. It does not matter if you intended to create such nuisance or not. You will be held responsible for such nuisance if you have caused common injury, danger or annoyance to the public or people at large with regard to their public rights. Intention here plays no role. You will be strictly liable for your action only. The guilty intention will be presumed.
Rape The second exception to this provision lays down the concept of statutory rape in case of a man having sexual intercourse with his wife below the age of 15 years even with her consent will be held responsible for the offense of rape. It is immaterial whether the man intended so or not. The mens rea or guilty intention is presumed here. By virtue of his act of having intercourse with her wife below the age of 15 years, he is liable for the said offense.Further, in the same provision, the sixth description states that even if a female is consenting completely for the sexual act but is below the age of 18 years, then the consensual sexual act will be molded as an instance of statutory rape. It will rape because the statute declares it to be so. It does not matter if the parties have the guilty intention or not.
Difference between strict liability in Tort Law and Criminal Law:
Rule of strict liability in tort was first laid down by the House of Lords in Rylands v. Fletcher, where also it held that a person may be liable for harm even though he was not negligent, or he had no intention to cause harm or he may have done some positive efforts to avert the same. While remedy in tort is damages, in criminal law the defendant is punished. Tort damages are understood as a form of taxation on dangerous enterprise or imposed as a “cost of doing business”. This view of sanction is compatible with the notion of liability without wrongdoing; one need not do anything wrong to incur a tax or a business cost. But strict liability in criminals cannot be imposed by analogous meaning. Being sentenced to jail or even being censured by the court- cannot be thought of as a tax or doing business. For convenience, the phrase “strict liability” used henceforth is to be understood in a criminal sense.
It has always been prerogative of the legislature to make laws, which includes the power to define what constitutes a crime and what are the elements of a particular crime. In defining crime, the legislature is competent to legislate in respect of a particular crime to omit the essential requirement of mens rea. But many of the enacted legislation neither mention that the mens rea is not an essential element of the offence concerned nor does it state that mens rea is an essential ingredient of the crime. This silence makes the role of judicial interpretation more crucial and this has led to the creation of judge-made law resulting in confusion and contradiction when offences are interpreted by various High Court in India differently. The fact that the defendant can be convicted without proof of his mens rea does not infringe the right to free trail.
Clg name : Punjab school of law, punjabi University University patiala