Though mens rea is often used in association with criminal jurisprudence in reality, it is equally applicable to civil liabilities as well. The compartmentalization of criminal and civil laws here is unrealistic. In civil law, in many an occasion where the principle of strict liability is applicable, the burden to disprove his liability is cast on the defendant. The cases in civil law where the doctrine of strict liability is applicable, is comparable to the situations in criminal law where one could be convicted without proving mens rea. In both cases, the law operates in identical manner in the same direction. In civil law where strict liability principle is applicable, the defendant has to prove that he is not liable. The burden of proof is on him, which is an exception to the ordinary principles in civil law which cast the burden of proof on the plaintiff. In ordinary criminal law, similarly, the burden to establish mens rea is cast on the prosecution, but when the statute presumes mens rea or as is commonly understood when the statute does not require mens rea, the burden to prove that he is innocent is on the accused. Therefore, both in civil law as well as in criminal law, the mens rea or guilty mind does not become irrelevant. In tort where principle of strict liability is applicable, the defendant could still prove his innocence and the moment he is able to establish his innocence, he is discharged of his liability. In the same manner, in criminal law where the statute presumes mens rea or where an offence is committed even in the absence of mens rea, the accused could still secure an acquittal by establishing that he had no guilty mind or in other words that he was innocent.
The point therefore to be clearly understood is that the law here is in not conflict with the lay man's concept of justice. He does not care whether a tortuous act or a crime is called civil or criminal. He does not understand the concept of onus of proof, but he still perceives that to punish whether in civil law or criminal law an innocent man is unjust. Coming to a concrete example where a business man who had issued cheques while borrowing money for the purpose of his business with all commitment to honour it, but could not honour those cheques because his business has failed and he had become bankrupt, could still plead before a criminal Court that he ought to be acquitted as he had no mens rea and that his cheques happened to be bounced for reasons beyond his control. Here the law presume him to be guilty as the cheques issued by him had been dishonoured, but does not bar him of his right to rebut the presumption and still plead honestly that he owe the debt, the cheques had been bounced but still not guilty as he had no mens rea. In a larger sense, the concept of mens rea, namely, that no innocent man shall be penalised, is equally applicable to civil and criminal laws. The only difference is that the consequence of a conviction in a criminal case vis-Ã -vis a finding of a liability in a civil case being different and the former could entail a prison term, the burden of proof to discharge the presumption of liability or guilt is different.
The Chief Justice of India, in one of the interviews given during his retirement, when pointedly asked about the hardships caused by the strict interpretation of law, retorted that he did not enact any new law but only implemented it. All the legal principles has its foundation at the concept of equity, fair play and justice and if laws are to be properly interpreted in its spirit and if its letter is interpreted in consonance with its spirits, court could always implement a law without causing injustice and could do justice without doing violence to the letter of the law. Further, so long as the Constitution remains, all laws ought to be interpreted so as to sub serve the concept of fairness and equity embodied in Article 14 and any interpretation of a law contrary to Article 14 is itself a violation of Article 14 and any law which is in conflict with Article 14, be it Chapter XVII of the Negotiable Instruments Act or any other economic legislation, they are unconstitutional.
In countries where no power of judicial review is available to courts, if a law is un just, the remedy is to change such unjust law which may even require a struggle to bring about changes in such societies which makes unjust law, howsoever, challenging and time consuming could be that. But in India we are lucky that without blood shed nay even without a legislative correction, by judicial review all unjust laws could weeded out. That is the greatness of our democracy. All that we need is scholarly and conscience judges who could hold to their heart that truth is justice.
(Mathew Nedumpara is a corporate lawyer and lives his life shuttling between Mumbai, New Delhi and Cochin)About the AuthorMathews J Nedumpara He is a lawyer...Read Morefirst published:February 16, 2007, 14:48 ISTlast updated:February 16, 2007, 14:48 IST
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In criminal law the traditional concept is that no one could be punished in the absence of 'mens rea' or in other words a guilty mind. In the Indian Penal Code, despite this accepted preposition very often, the requirement of mens rea is reiterated by defining an offence with the qualifying words 'knowingly', 'intentionally', etc. In the 20th century, the concept of mens rea was diluted by express provision in many statutes where mens rea is presumed. The repealed Foreign Exchange Regulation Act and many an economic legislations and of late Chapter XVII of the Negotiable Instruments Act which make dishonour of a cheque a punishable offence are a few examples of such laws. However, what exactly is the import of such legislations on the concept of mens rea. Does it entail to a situation where an innocent man could be nay, ought to be punished. Section 138 of the Negotiable Instruments Act could lead to a conviction where a cheque issued in discharge of a debt is dishonoured. A plain interpretation of the Act does not afford any defence to a drawer who, for reasons beyond his control and thus, innocently is unable to honour the cheque where he honestly admits that he had indeed issued the cheque in discharge of a debt. There could be innumerable but genuine circumstances where one is not able to honour his cheque. Business failures and bankruptcy is one such genuine reason. The question therefore is; a business man who had issued cheques in the course of his business genuinely expecting to honour it, but for reasons beyond his control could not honour it, has no defence at all, but to go to the jail. All this confusion is due to a misunderstanding of the concept of mens rea.
Though mens rea is often used in association with criminal jurisprudence in reality, it is equally applicable to civil liabilities as well. The compartmentalization of criminal and civil laws here is unrealistic. In civil law, in many an occasion where the principle of strict liability is applicable, the burden to disprove his liability is cast on the defendant. The cases in civil law where the doctrine of strict liability is applicable, is comparable to the situations in criminal law where one could be convicted without proving mens rea. In both cases, the law operates in identical manner in the same direction. In civil law where strict liability principle is applicable, the defendant has to prove that he is not liable. The burden of proof is on him, which is an exception to the ordinary principles in civil law which cast the burden of proof on the plaintiff. In ordinary criminal law, similarly, the burden to establish mens rea is cast on the prosecution, but when the statute presumes mens rea or as is commonly understood when the statute does not require mens rea, the burden to prove that he is innocent is on the accused. Therefore, both in civil law as well as in criminal law, the mens rea or guilty mind does not become irrelevant. In tort where principle of strict liability is applicable, the defendant could still prove his innocence and the moment he is able to establish his innocence, he is discharged of his liability. In the same manner, in criminal law where the statute presumes mens rea or where an offence is committed even in the absence of mens rea, the accused could still secure an acquittal by establishing that he had no guilty mind or in other words that he was innocent.
The point therefore to be clearly understood is that the law here is in not conflict with the lay man's concept of justice. He does not care whether a tortuous act or a crime is called civil or criminal. He does not understand the concept of onus of proof, but he still perceives that to punish whether in civil law or criminal law an innocent man is unjust. Coming to a concrete example where a business man who had issued cheques while borrowing money for the purpose of his business with all commitment to honour it, but could not honour those cheques because his business has failed and he had become bankrupt, could still plead before a criminal Court that he ought to be acquitted as he had no mens rea and that his cheques happened to be bounced for reasons beyond his control. Here the law presume him to be guilty as the cheques issued by him had been dishonoured, but does not bar him of his right to rebut the presumption and still plead honestly that he owe the debt, the cheques had been bounced but still not guilty as he had no mens rea. In a larger sense, the concept of mens rea, namely, that no innocent man shall be penalised, is equally applicable to civil and criminal laws. The only difference is that the consequence of a conviction in a criminal case vis-Ã -vis a finding of a liability in a civil case being different and the former could entail a prison term, the burden of proof to discharge the presumption of liability or guilt is different.
The Chief Justice of India, in one of the interviews given during his retirement, when pointedly asked about the hardships caused by the strict interpretation of law, retorted that he did not enact any new law but only implemented it. All the legal principles has its foundation at the concept of equity, fair play and justice and if laws are to be properly interpreted in its spirit and if its letter is interpreted in consonance with its spirits, court could always implement a law without causing injustice and could do justice without doing violence to the letter of the law. Further, so long as the Constitution remains, all laws ought to be interpreted so as to sub serve the concept of fairness and equity embodied in Article 14 and any interpretation of a law contrary to Article 14 is itself a violation of Article 14 and any law which is in conflict with Article 14, be it Chapter XVII of the Negotiable Instruments Act or any other economic legislation, they are unconstitutional.
In countries where no power of judicial review is available to courts, if a law is un just, the remedy is to change such unjust law which may even require a struggle to bring about changes in such societies which makes unjust law, howsoever, challenging and time consuming could be that. But in India we are lucky that without blood shed nay even without a legislative correction, by judicial review all unjust laws could weeded out. That is the greatness of our democracy. All that we need is scholarly and conscience judges who could hold to their heart that truth is justice.
(Mathew Nedumpara is a corporate lawyer and lives his life shuttling between Mumbai, New Delhi and Cochin)
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