Any offence in criminal law can only be termed so if it contains both its constituents, namely actus reus and mens rea. Actus reus refers to the outward circumstances of an offence, the commission or omission of a deed. Mens rea is the mental drive behind the crime, the volition or blameworthy mental condition. Hence it can be concluded that a person can be convicted only if the prosecution can prove both actus reus and mens rea. However, in some uncommon situations, the common law does not require mens rea . In recent times, a particular principle has emerged in certain kinds of offences. According to this principle a person can be convicted purely on the basis of actus reus,, without consideration of the mental element underlying the act. This principle is known as the Principle of Strict Liability.
The most predominant case under strict liability is R v Prince, in which the defendant was convicted for taking an unmarried girl under the age of 16 out of the possession of her father, despite his doing so based on the girl telling him she was 18. Although he did not possess mens rea, the conviction was upheld as the statute did not require mens rea.
Historical Reasons for the Development of Strict liability
Strict liability, as a doctrine, developed in the 19th century due to many reasons. These are primarily – Legal Positivism, Protection of minors and regulatory statutes.
Legal positivism. In the democratic societies of the 19th century, legislatures were predominantly kept at a much higher pedestal than the judiciary. This is because the legislatures were democratically elected and their word indirectly reflected the will of the common populace, while the judiciary was meant to only apply the letter of the law established by the legislature to court cases. This meant that courts were extremely deferential to the parliament, and it was assumed that if a statute lacked mens rea, it was intentionally omitted by the legislature, and the letter of the statute would be followed.
Protection of minors. – Many laws that imposed strict liability dealt with laws that were enacted for the purpose of protecting minors. Kidnapping of minors or sexual activity with minors or serving them alcohol were offences in which the accused was held strictly liable – no matter what the mens rea of the accused, if the person in question was below a particular age, then liability would be imposed, This was because minors were a particularly vulnerable group, and their protection was considered overarchingly important.
Regulatory statutes – With a proliferation of trade and market practices , there was also an increased tendency of deceitful trade practices involved in the manufacture and sale of articles. In order to protect consumers, statutory regulations were passed that would hold these fraudulent merchants strictly liable for their acts, and impose mild penalties upon them, such as fines.
Strict Liability in Indian Courts
There are many sections in the Indian Penal Code which applies the principle of strict liability. For example Section 124A, which relates to sedition, punishes people who, by their actions incite hatred so as to imperil the safety and security of the state. Since the existence of the state itself may be in jeopardy, actus reus alone is sufficient to impose liability. Similarly, acts highlighted under section 375 of IPC, under rape, constitute offences of strict liability. As per the provision, a genuine, consensual sexual act can be considered rape if the woman is below the age of 18, even if the man does not possess any mala fide intention.
Apart from these provisions many statutory laws , such as The Motor Vehicle Act, the Arms Act, NDPS act, 1985, can presume mens rea. However, this presumption is not invariable, and can be altered according to the terms of the provision or statute, or issue it deals with.
Through a vast majority of judgments, the Apex court has ruled that a person cannot be found guilty of an offence without having a guilty mind, unless the contrary is stated by the statute, either in an explicit or in an implicit manner.
This means that either the letter of the law needs to be worded in such a way that it unequivocally excludes the need for the mens rea component, or there needs to be other “compellingly clear evidence” that indicates so. Compellingly clear evidence can be inferred in various ways. One way is to compare and contrast different sections of the statute. If some parts of the statute are worded in such a way that they unequivocally demand a component of mens rea to establish guilt, while other parts of the same statute do not, this can be taken as an indication of the fact that the latter are sections that follow strict liability. In addition to comparing between sections of the same statutes, other statutes that proscribe offences that are similar in nature can also be analysed in order to gather whether the common class of crimes was generally intended be offences of strict liability. Many a times, the court also takes the social background and context of the issue in question.
Evaluating Strict Liability in criminal law
According to Fitzerald, P.J. strict responsibility “has become a necessary evil”. Although on the face of it, the principle of strict liability seems unjust and antithetical to the primary axioms of criminal justice, it comes with many inimitable advantages that has enabled the principle to thrive.
First and foremost is the rationale of deterrence. As outlined by Michael Yeng, the imposition of strict liability will have the effect of encouraging those engaged in the particular activity regulated to redouble their efforts to ensure that breaches do not occur, thus en kindling deterrence. The deterrent effect is much higher as compared to regular offences as offenders know that the chance of being acquitted is much lower when there is no requirement of fault in the first place, and merely being “caught in the act is enough”
Secondly, it allows for efficient trials. Offences that are grave and widespread creates an insurmountable bulk of cases for the courts. Given the complexity of establishing guilt; Investigation of the mens rea, gathering evidence and establishing substantive proof results in lengthy onerous trials and procedures, which adds to the burden of the courts, and the already overwhelming number of backlog in the court cases. Sidestepping this procedure of proving mens rea alleviates this burden and allows for quicker trials.
The most intuitive and powerful argument for strict liability in NDPS is that of deterrence.
However, this argument of deterrence is questionable, on 2 levels. On the first level, Jerome Hall rejects the argument that a strict liability statute is a more efficacious deterrent than an ordinary criminal statute for at least two reasons as one cannot suppose that the “strictness” of the liability renders it more of a deterrent than the liability of ordinary criminal statutes. This means that it’s not necessary that a person engaged in a certain kind of activity would be more careful precisely because he knew that this kind of activity was governed by a strict liability statute.
Even if strict liability does create a deterrent effect, imposing criminal liability in situations where the violation is not accompanied by a mental element would be akin to tarnishing the moral credibility that underlies the criminal justice system. If the criminal law takes punitive measures that are unwarranted, its ability to stigmatize, and thereby deter is greatly debilitated.
As was held in State of Maharashtra v. M. H. George, “Merely because a statute deals with a grave social evil is not sufﬁcient to infer strict liability, it must also be seen that whether imposition of strict liability would assist in the enforcement of the regulations. Unless this is so, there is no reason in penalizing him and cannot be inferred that the legislature imposed strict liability merely in order to ﬁnd a luckless victim”.