Public Welfare Offences and Mens Rea - The Red Carpet


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Friday, June 4, 2021

Public Welfare Offences and Mens Rea


Mens rea as an essential element or ingredient of crime, though an universally accepted principle, is not without its limitations. In the last few decades, an entire range of social or public welfare legislations have been conceived in such a manner that the law makes the mere omission or commission of acts punishable. In other words, no mens rea or legal fault is required for imposing criminal liability.

It must be appreciated that one is living in a world of machines. Industrialisation is widespread and growing rampantly. High-powered machines are the order of the day. Very often, these machines are dangerous and may pose a health hazard to the worker employed. The experience of the Bhopal Gas tragedy showed the world that compromising on safety standards is the first thing that industries do to cut costs. In respect of hazardous industry, the threat may not be just to the workers of the factory as seen in Bhopal, but also to persons residing in and around that area. So, it is in the interest of larger good that there are laws, which lay down standards and regulate the functioning of the industries.

For instance, the Factories Act 1948, stipulates that machinery should be adequately fenced; there must be signboards which indicate danger areas etc. It further provides that minimum facilities like drinking water, separate toilets for men and women, dining rooms, rest rooms, safety clothing etc are provided to the workers employed in factories. This Act is labour welfare legislation and compliance with its provisions is essential. So, for a violation of the Act, mens rea is not necessary. The management of the factory is responsible to comply with the provisions of the Act and it is liable for breach, even if there is no mens rea or guilty mind.

There are a host of other labour laws like the Minimum Wages Act 1948, the Payment of Wages Act 1936, the Employees Provident Fund Act 1952, the Employees State Insurance Act 1948, for which mens rea may not be necessary.

The state, in order to ensure that the public at large is not put to risk or cheated in the profit making ventures of the industries, has enacted Acts such as the Prevention of Food Adulteration Act 1954,  the Essential Commodities Act 1955.  Courts have held that mens rea is not essential for offences under these laws.

Courts have taken similar view in respect of the Foreign Exchange Regulation Act 1947, (Now Foreign Exchange Management Act, 1999 (42 of 1999)) designed to safeguard and conserve foreign exchange which is essential to safeguard the economy; the Protection of Civil Rights Act 1955, and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, social legislations enacted to protect the rights of dalits or the Scheduled Castes and Scheduled Tribes; the Contempt of Courts Act, 1971, which recognises the inherent power of courts to punish persons who obstruct or interfere with the administration of justice.

The necessity for mens rea has been dispensed with in respect of social or public welfare legislations. All these laws have been enacted for the larger good of the society. Insisting upon the existence of mens rea to punish persons for violation of these enactments, may frustrate the purpose of the Act s and the objects for which they have been enacted.

The IPC deals with the traditional common law offences that deal with offences against the person, property, state and public morals. All these offences consist of specific acts of aggression that have been recognised as crimes per se or mala in se. But these public welfare offences are creations of the statutes. The purpose of these Act s is regulatory. Imposing a penal liability is merely a mode of enforcing the regulations.

Courts have also justified the non-requirement of mens rea on the grounds that many of these Acts impose only payment of fines as punishment or even if imprisonment is provided, very rarely do courts award it. Moreover, conviction for committing these public welfare offences does not attach to itself the same kind of social stigma and damage to reputation that for example, a conviction under the IPC would attract.

It is quite interesting to note that the concept of strict liability or the liability for the negative consequences of any act, regardless of fault in criminal law, has grown parallel to the concept of strict liability and vicarious liability in civil law like under the Motor Vehicles Act 1988, the Workmen's Compensation Act 1923 etc.

It has always been the prerogative of the legislature to make laws, which includes obviously the power to define what constitutes a crime. It can decide what are the elements of a particular offence. In doing so, the legislature is well within its power to legislate that in respect of a particular offence, the existence of mens rea is not an essential requirement.

But curiously, the legislatures have taken the easy way out. In most of the public welfare statutes, nowhere is it stated that mens rea is not an essential element of the offence concerned. Nor is it stated that mens rea is an essential ingredient of the crime. This silence has left the field wide open for judicial interpretation. So, the creation of judge made law has not been without its share of confusions and contradictions.

However, it may be pointed out that the absence of mention of intent or mens rea in an enactment does not necessarily mean that the statute automatically excludes mens rea. Courts have held that mens rea, as an essential element of crime, is so much an integral part of the definition of crime itself that it needs no specific mention. A Court has to presume its requirement for imposing criminal liability, unless a statute, expressly or by necessary implication, excludes mens rea. Its exclusion cannot be inferred simply because a statute intends to combat a grave social evil or to attain socio-economic welfare. Delving into the implied exclusion of mens rea in s 7 of the Essential Commodities Act of 1955, the Supreme Court inNathulal v State of Madhya Pradesh held that:

Mens rea is an essential ingredient of a criminal offence. ... [U]nless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated.

In determining whether a statutory provision does or does not create an offence of strict liability the following considerations seem to be relevant: (1) phraseology of the statutory provision creating an offence of strict liability, particularly expressions indicating or excluding the mental element required, (2) object of the statute, (3) the nature of public purpose purportedly preserved by the statute, and (4) the nature of the mischief at which the provision or statute is aimed and whether the imposition of strict liability will tend to suppress the mischief, although the strict liability should not be inferred simply because the offence is described as a grave social evil.

(The content of this post is taken from PSA Pillai’s Criminal Law. The reading of this post is just for research and educational purposes and it is not being used for any commercial purpose)

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