Exclusion of Mens Rea and Socio-Economic Offences in India.

Abstract

This note explores the criminality of socio-economic offences with specific emphasis on the concept of mens rea. It is argued in this note that socio-economic offences should be treated as ‘violations’ or ‘quasi-criminal offences’ and not as ‘crimes’. When mens rea has been expressly or impliedly (including when it is not expressly excluded) excluded in a statute, courts cannot read such a requirement into the language of the statute. If it is deemed to be a social welfare legislation which incidentally penalises a particular conduct, court cannot read mens rea (which is a criminal law requirement) into the provision. If it is deemed to be a criminal statute, courts still cannot read into the words of a statute a mens rea requirement, as a criminal statute is required to be constructed strictly. These problems deny us the opportunity of deducing a coherent principle which can be used in such a case. A way out if this anomaly would be insertion of a Social Welfare Offences Code, as suggested by Malimath committee and looking for alternative methods of punishment that can effectively increase the stigma against the offenders.

1. The Problem of Definition and a Possible Solution

Nearly everyone works with someone else in order to earn a living. Men are interested in getting a maximum return for a minimum expenditure of effort and energy – there is a common economic drive to “get rich quick." [1] In the wake of industrialisation, rapid urbanisation and changes in institutions, norms and values, material advancement has become one of the main or the main goals of life. The story of socio-economic offences in India represents the ‘strain’ that Durkheim referred to when he called crime to be a one possible response to the strains produced by the unequal opportunities available for achieving success. [2] 

There are various dimensions in which the issue of ‘socio-economic offences’ have been discussed. It is argued by some to be found to be at the intersection of civil and criminal law or the tort/crime distinction. [3] Others view it as a component in the interaction between criminal law and morality. [4] Some others view it as an encroachment on individual liberty. First, we will consider whether we can identify peculiar characteristics of these offences and whether they can be called ‘crime’ in the traditional sense.

Ashworth calls criminal liability “the strongest formal condemnation the society can inflict and it may also result in a sentence which amounts to a severe deprivation of the ordinary liberties of the offender." [5] It is the condemnation that requires a social justification. There are some activities that the criminal law condemns and others which it controls. The activities which are condemned (murder, for e.g) must be contrasted with those which are controlled (prostitution [6] , for e.g).

The problem of defining crime has been called the ‘constant core of criminal law’. As criminal law symbolises the most extreme form of state power on individual liberty, when a conduct or result of a conduct is ‘criminalised’, it has wide connotations in terms of status, social stigma and public perception. The classical approach simplifies it by stating that what the state declares to be a crime is a crime. But this approach is circuitous in nature – it is a crime when state defines it as one and state defines it as one when it assumes the characteristics crime. Criminology on the other hand is concerned with the question ‘what ought to be a crime?’

It is argued that crime is primarily a construct of particular social and legal systems, reflecting temporarily and geographically parochial interests and arrangements. [7] Thus, the assumption that criminal law deals with a unitary, discrete category may not be desirable. [8] In this context, let us analyse what has come to be called ‘socio-economic offences’ and how we have dealt with them – can we define it? Do we need to define it?

A definition ideally (i) includes what is generally accepted as properly within this sphere, (ii) exclude what is universally regarded as not being it and (iii) include or exclude borderline cases in the light of a reasoned comparison of the phenomena in question. [9] 

The term ‘socio-economic offence’ should be contrasted and if and when necessary, differentiated from terms (which are its manifestations) like ‘white collar crimes’, ‘victimless crimes’, ‘public welfare offences’, ‘organized crime’, ‘corporate crime’, ‘economic crime’, ‘regulatory offences’, ‘statutory offences’, ‘quasi-criminal offences’, ‘anti-social offences’, ‘civil offences’ etc. The overlapping nature of several conducts within these categories makes it difficult to compartmentalize offences under them. If socio-economic offences are defined as those which affect the socio-economic condition in the country, all criminal statutes, both major and minor, will find its way into the list.

White Collar Crimes

The Committee for Prevention of Corruption, 1993 [10] based its conclusions on the concept of ‘white collar crimes’, when dealing with the issue of corruption. The law commission, in its 29th report [11] also approached the subject of ‘socio-economic offences’ from the angle of white collar crimes. The report states that it has been defined “approximately as a crime committed by a person of respectability and high social status in the course of his occupation." [12] These crimes were “very serious in nature and deserved punishment even if there was no express intention to do the crime". [13] The ‘approximate’ definition, formulated by Edwin Sutherland has been a subject of criticism from several quarters. [14] There has been no official or legal decision on the definition anywhere, and the term remains ambiguous, uncertain and controversial. [15] Sutherland himself had to defend his thesis because of the controversial conclusions of his study. [16] His argument was that as (a) they were recognized in law as injurious to the public, (b) there were appropriate legal sanctions prescribed as penalties for such violations and (c) the behaviour involved in the violations was generally ‘wilful’ and ‘intentional’ in the sense of not being accidental and as not happening without awareness on the part of the offenders. [17] It is not clear why Sutherland wanted to dispense with the traditional mens rea doctrine even though he concluded that there was intention on the part of the offenders. Sutherland’s project, which led to the definition, was a comprehensive one, but based on narrow considerations. [18] It had as its objective the need to relocate the emphasis of criminal law (which was then on economically backward people or ‘blue-collared criminals’). He was concerned with whom the alleged perpetrator was rather than what was done. But, it should not be confused with ‘ordinary’ criminal law crimes of upper class people. [19] This was obviously not unjustified considering the growth of managerial positions and their ability to influence administrative officers. But, it is just one minute aspect of the category, the ingredients of which we are trying to portray. However, the ‘ambiguous’ concept did influence studies in a tremendous way. It led to identification of those activities which had a harmful impact but was never noticed either because of the treatment (different enforcement machinery and processes) or non-treatment (which was previously considered merely unethical, like ambulance chasing, lawyers guiding the criminal activities of corporations etc.) [20] 

Moreover, white collar crimes have evolved into organized crime (wherein the traditional criminals collaborate with business houses for securing harmful ends like mafia, underworld etc. Criminalization of politics can be linked with this category [21] ) and corporate crime (violations of human rights by multinational corporations), which makes it a different area of study altogether. Thus, white collar crimes can be called a subset of, and which no longer needs to be confused with or replaced by socio-economic offences. Socio-economic offences and white collar crimes can be regarded as intersecting circles. [22] 

Public Welfare Offences

The other term deserving analysis is ‘public welfare offences’ coined by Francis Sayre in a classic article. [23] He used it to denote “a group of offences and public nuisances punishable irrespective of the actor’s state of mind." [24] Stewart describes it as “an almost limitless realm of statutory offences in which there is only a minor breach, if at all, of the rules of morality." [25] Sayre observed that they could be roughly classified into subdivisions of (i) illegal sale of intoxicating liquor, (ii) sales of impure or adulterated food or drugs, (iii) sale of misbranded articles, (iv) violations of anti-narcotic acts, (v) criminal nuisances, (vi) violations of traffic regulations, (vii) violations of motor-vehicles laws and (viii) violations of general police regulations passed for the safety or well-being of the community. [26] 

Industrialization and urbanization has made it necessary that certain standards of citizen behaviour must be observed to safeguard individual interests and the efficient flow of activities which make up present day community life (employer’s liability, social security, purity and quality of foods, drugs and medical preparations, road traffic regulations etc.). [27] He had in mind those regulatory offences like Factories Act and other industrial and labour laws. In such offences, criminal law does not ‘punish’ in the traditional sense, but places certain standards of behaviour for streamlining conduct.

Victimless Crimes

Next, let us consider the term ‘victimless crimes’. Victimless crimes are created when “we attempt to ban through criminal legislation the exchange between willing partners of strongly desired goods and services." [28] Prostitution is a clear example. But, in such cases, there may be certain objective consequences (enforcement of morality, in the case of prostitution) regardless of victimization. As the ‘victims’ are diverse and unorganized, it is the duty of the State to protect them.

“New Forms of Crime"

The Santhanam Committee report observed that, “the Penal Code does not deal with any satisfactory manner with acts which may be described as social offences having regard to the special circumstances in which they are committed and which have now become a dominant feature of certain powerful sections of modern society." [29] The committee broadly categorised the offences as

offences calculated to prevent or obstruct the economic development of the country and endanger its economic health;

evasion and avoidance of taxes lawfully imposed;

misuse of their positions by public servants in making of contracts and disposal of public property, issue of licenses and permits and similar other matters;

delivery by individuals and industrial and commercial undertaking of goods not in accordance with agreed specifications in fulfilment of contracts entered into with public authorities;

profiteering, black marketing and hoarding;

adulteration of foodstuffs and drugs;

theft and misappropriation of public property and funds; and

trafficking in licenses, permits, etc.

The committee went on to endorse the view that these offences should be included in a new chapter in the Indian Penal Code so that they “will find a prominent place in the general criminal law of the country." [30] 

Considering the comparisons made above, we could attempt to particularize those elements of socio-economic offences that are unavoidable. In most of the offences which the Santhanam Committee has identified, there is an undeniable element of economic benefit (in terms of actual monetary value) or advantage (in terms of comparative enrichment). The law commission, in its 29th report identified the following common features:

the offences are committed by the ‘upper classes’ of society

those upper classes themselves set the moral standards of society, and hence a serious view is not taken of these offences;

the victims of the offences are unascertainable persons (usually the State or community), as contrasted with the Indian Penal Code, where most of the offences are against a specified individual. [31] 

But these features are based on ‘white-collar crimes, which as stated earlier is only a sub set of socio-economic offences, as it is not necessary that ‘upper classes’ of society are involved in every case (for e.g, beggary, though its nature as an offence is controversial).

In its 47th report, the commission noted the following salient features

‘Motive’ of the criminal is avarice or rapaciousness (not lust or hate).

‘Background’ of the crime is non-emotional.

‘Victim’ is usually the State or ‘consuming public’.

Mode of operation is fraud, not force.

Act is deliberate and wilful.

Social interest is protected for preservation and augmentation of general economy. [32] 

This seems to be an acceptable set of features. Based on these observations, if we attempt to define a socio-economic offence, it can be broadly termed as an activity that harms the allocation and organization of resources in a society. A purely social evil like sati or atrocities towards members of scheduled caste/ scheduled tribe (creating lack of opportunity for those involved to access the resources) and a purely economic conduct like tax evasion find a justifiable place in such a list. But, consider the counter-argument that even murder deprives the society of a valuable human resource and so, all offences are essentially anti-social. [33] What differentiates these offences from those penalised as offences against property or person in the Indian Penal Code? It is submitted that in the case of socio-economic offences, the injury to the society is predominant, unlike other offences, where injury can be traced to a particular individual. [34] 

It is submitted that, by virtue of these offences being defined on the basis of motive and a criminal policy of social welfare, they should be treated as ‘violations’ and not as ‘crimes’. This does not mean that they are harmless or trivial in nature. On the other hand, they are more sinister than many ‘true’ crimes. Since these offences easily permeate the social structure, they are virtually legitimised ultimately (like corruption). Considering the vulnerability of the society to such offences, they should be treated differently.

This is where the importance of our approach towards such offences comes up i.e it is the attitude towards the offender that marks the distinction. In India, we have criminalized many of these offences. The issue is whether we approve of the efforts to curb these activities through criminal law.

2. Redefining our Response to Socio-Economic Offences?

Two issues merit consideration: (i) In most cases, such offences are strict liability offences i.e they exclude or modify the requirement of, mens rea. To what extent is this practice justified? To what extent is the judicial practice of reading mens rea into such statutes justified? and (ii) what would be the most appropriate response to such offences? Issue (i) will be dealt with here leading to a conclusion based on issue (ii). [35] 

This is not to say that there are no other issues. On the other hand there are plenty (vicarious liability, situational liability in statutory offences etc.). Nor does it mean these issues are the most important. However, these issues signify what has been the prime concern of debates and discussions in relation to socio-economic offences.

At the outset, it is submitted that when mens rea has been expressly or impliedly (including when it is not expressly excluded) in a statute, courts cannot read such a requirement into the language of the statute. If it is deemed to be a social welfare legislation which incidentally penalises, court cannot read mens rea (which is a criminal law requirement) into the provision. If it is deemed to be a criminal statute, courts still cannot read into the words of a statute a mens rea requirement, as a criminal statute is required to be constructed ideally. A way out if this anomaly might be insertion of a Social and Economic Offences Code, as suggested by Malimath committee and looking for alternative methods of punishment that can effectively increase the stigma against the offenders.

Mens Rea in Socio-Economic Offences

The Indian approach to the problem suffers from the same kind of inconsistencies as the English one because our criminal law has its roots (and form?) and is constantly supplemented by principles of common law. There are offences in the Indian Penal Code, for which no element of mens rea is required (waging war against the government is an example). But, even in such cases courts have applied the doctrine of mens rea. [36] 

First, let us view the development of the issue in common law. Most of the enactments focus their attention on the acts themselves, irrespective of the mental intention. This is one reason why some others refuse to consider it a ‘crime’, as it does not punish a guilty mind. [37] Many attempts have been made to separate this class of offences from those of obvious criminality. Such attempts resulted in the classification of these offences in the category of ‘administrative penal law’ and ‘public welfare offences’. [38] As Sayre asks, “are we to look forward to a day when criminality will be based on external behaviour alone irrespective of intent?" [39] 

In a developing country like India, constraints of economic resources have necessitated the imposition of certain social controls to promote planned development (licensing, regulation, distribution of scarce commodities etc.) [40] To some extent, it is imperative to impose strict liability for laying down standards of behaviour. [41] This is because the aim is public welfare. [42] But, is it justified in all cases? It should be noted that what we are discussing is the criminalization of productive social and economic conduct.

Mens rea requirement is a common law legacy. However, there are instances in common law where the doctrine is dispensed with (like public nuisance contempt of court and libel). This was justified because (i) it was difficult to prove mens rea in some cases, (ii) as they were penalised under social welfare legislations, a purposive construction was required to further the objectives of the act. (iii) punishment in these cases is usually light and (iv) they are offences which are in the nature of mala prohibita and not mala in se. [43] 

Glanville suggests that the kind of fault generally required for criminal liability should be laid down and this requirement should be implied by law where it is not expressly laid down. [44] This is because there is a possibility that strict liability offences may lead to loss of confidence in the administration of the law. This would not lengthen the court proceeding because the fault element has to necessarily be considered by the magistrate in order to mitigate punishment, even in strict liability offences. There are of course cases where the requirement is impossible. The regular practice is to state the prohibited act without ‘bothering’ to specify a fault element. It can be assumed that (i) parliament intended to create strict liability and this is confirmed by the fact that when the courts also exclude mens rea, the provisions are left unamended. Or (ii) parliament intended that the casus omissus be filled by the courts, which fact is confirmed by the parliament not making the provision more severe when courts do so and by the parliament making amendments when courts do not do so. It cannot be argued that in minor offences, efficiency of the system makes it imperative to dispense with it. In minor case, negligence has a role to play. [45] If people getting away because of dishonest defences are the problem, the same can be solved by shifting the burden of proof. Strict liability requires proof that the act was done in breach of a statute. But, even in that case, it should be asked whether prosecution should not at least prove negligence?

The authorities on strict liability are so conflicting that it is impossible to abstract any coherent principle on when form of liability arises and when it does not. [46] The result is that “in the absence of strict words of the statute, judges can generally attach any fault element, or refuse to attach any fault element." [47] As remarked, “It is high time that judges made their minds upon what absolute or strict liability means." [48] 

Strict liability is said to be imposed when the offence is the result of ‘modern legislative policy’ and not of traditional morality, or in other words where it is a matter of malum prohibitum and not malum in se. Mala prohibita are sometimes called ‘quasi-criminal’ offences. It was held in Sweet v. Parsley [49] that strict liability applies to purely ‘technical offences’. Now, the pendulum has swung back with regard to strict liability in criminal law. [50] 

Now, let us consider approaches taken by courts in India. The law and the confusion created by it in England were incorporated into our legal system also. The 1965 case of Mayer Hans George v. State of Maharashtra [51] continues to be the locus classicus on the issue because of the divergent views on the same issue. The dissenting minority judgment of Subbarao J strongly emphasized the common law presumption of mens rea asserting that a court cannot “ignore mens rea on a slippery ground of a welfare measure unless the statute compels it to do so." [52] The nature of mens rea that will be implied in a statute creating an offence depends on the object of the act and the provisions thereof. [53] The presumption of mens rea can be displaced by ascertaining whether it is overborne by the language of the statute, read in the light of the objects and purposes of the statute and whether the purpose of the statute would be rendered futile if the requirement is found to be necessary. [54] Thus, according to the dissenting judge, the question whether mens rea is an essential ingredient of a ‘criminal’ offence will be decided by the court, when a case comes up. This is where the doctrine that, “unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of crimes, the court should not find a man guilty of the offence unless he had a guilty mind" comes into play. [55] This doctrine could be utilized in those socio-economic offences, where the penalty is small. [56] 

This proposition cannot be accepted because it creates unwanted indeterminacy in law, especially criminal law, which is not desirable in terms of individual liberty. The majority judgment also took the same approach but reached a different conclusion, because it thought smuggling to have the effect of “disturbing very rudely the national economy of the country." [57] In another case, it was held that where it cannot be said that the object of the statute would be defeated if the mens rea is read as an ingredient, courts should be slow to dispense with it. [58] The common law presumption was thus ingrained into the Indian law. For example, in a prosecution under the Prevention of Food Adulteration Act, it is no defence that the vendor was ignorant that the article being sold is misbranded or adulterated. [59] The question, whether the liability under a statute is absolute, is ultimately one of construction of the statute and the answer will depend on the language of the statute and the policy behind it and how far enforcement would be affected by adhering to the doctrine. It is more a matter of pragmatism than criminal law.

M H George was relied by various courts in the country, mostly rebutting the mens rea presumption. A servant who sold adulterated food on behalf of his employer was held to be liable under an act, which was “a welfare legislation to prevent health hazards by consuming adulterated food". [60] Provision in an act enacted with a view to safe-guard the interest of the public regarding trust money was held to be an absolute offence, as “it was punishable only with fine" and “carries no stigma with it." [61] The trend seems to be changing with the apex court decision in Union of India v. Dharmendra Textile Processors and Ors., [62] which held that “legislative cassus omissus cannot be supplied by judicial interpretative process" when considering whether mens rea should be considered or not. [63] There are other cases which refused to go into the aspect of mens rea at all. [64] The attitude of the court, it is submitted, in Dharmendra seems to be the appropriate position to take because of the following reasons:

The statutes creating new crimes represent the attempts of the legislature to give effect to the criminal policy of the moment. Legislature is thus primarily concerned with finding the best way of dealing with a particular mischief and its decisions are not reached by a careful regard to the general principles of criminal law. [65] The law commission observes that, as these statutes reflect a particular criminal policy, it should not be seen in conjunction with the offences in the Indian Penal Code or in other words, that it should be seen as ‘quasi-criminal’. Moreover, “the legislature and the government may try to equip the enforcers of law at any time with powers required at that time, considering the prevailing circumstances, the nature and extent of activities of evaders and the extent of power requisite for the officers enforcing the law, including rules and notifications to deal with offenders." [66] 

In strict liability offences, the enforcement agency like the police and government agencies do not “come down like wolf on the fold." They generally consider the question of fault when deciding to prosecute. But, this approach may delegate the aspect of fault to the enforcer which may not be desirable.

Further, lack of intention can be seen in two contexts – ignorance either of law or the relevant facts. The duty of the individual is greater in these circumstances because of the inherently dangerous activity involved. In cases of ignorance of fact a fair approach would be to ask: has the defendant’s conduct exhibited an unreasonable disregard for apprising himself of the true facts involved? [67] What is suggested here is that though some situations warrant imposition of strict liability there are other situations wherein the reasonableness of the actor’s conduct may be considered.

There are two competing principles of construction. One favours the individual. The other disfavours a construction that unreasonably hinders the task of prosecution. [68] 

Earlier, legislature was not thought to be competent to override the established rules of common law. But, today supremacy of legislature cannot be doubted. [69] 

In commercial matters, the taking of precautions costs money, and if perfection was really insisted upon, the cost of the product would rise substantially, without compensating advantage to the consumer.

The law commission identified four types of offences within socio-economic offences:

Offences which ‘undoubtedly’ require mens rea. [70] 

Offences, which though require mens rea, has a special requirement of their own;

Offences, which ‘with a fair measure of accuracy’ can be called strict liability offences;

Acts, the moral culpability of which is a controversy (tax avoidance, for example). [71] 

The above discussion assumes that the parliament has the power to enact a law dispensing with the traditional requirement of mens rea. It is another issue to be looked into whether the constitution restricts the enactment of a statute that excludes the mental element. [72] 

3. Conclusion

Let us consider a statement – ‘[w]hen the criminal law invades the spheres of private morality and social welfare, it exceeds its proper limits at the cost of neglecting its primary tasks’. By a criminal, people in general understand not only a person who is liable to be punished, but also a person who ought to be punished. The instrument of criminal law is punishment. In contrast, the instruments of ‘moral’ law are teaching, training and exhortation.

The communist government of the erstwhile Soviet Union went to the extent of punishing certain economic crimes with death penalty. [73] American courts, on the other hand and almost during the same period, held imprisonment for imputed liability to be violative of ‘due process’ clause guaranteed under the constitution.

The virtual absence of any serious social stigma against economic offenders is definitely a problem. This may defeat the preventive purpose for which a socio-economic legislation is enacted. There is no doubt that such behaviour creates a significant degree of social disutility. We could look for means to prevent it effectively other than by criminal law, if we can answer the question – whether the effects of criminalizing this type of behaviour would produce other disadvantageous consequences which might outweigh the benefits of thus extending the criminal law?

This question must be analyzed in the context of what is called ‘over criminalization’. The law commission noted this in 1966 as “intensive multiplication of offences". [74] As Darryl Brown observes, “criminal codes expand but don’t contract. The result is ever expanding codes that have moved us ever closer to a world where the law in the books makes everyone a felon." [75] The ‘phenomenon’ peculiar in the Untied States has prompted even the courts to observe that, “If we use prison to achieve social goals regardless of the moral innocence of those we incarcerate, then imprisonment loses its moral opprobrium, and our criminal law becomes morally arbitrary." [76] 

It is submitted that the appropriate punishment should be one of “re-integrative shaming." Shaming theorists advocate publicizing crimes for serious offences. Punishment strategies can exploit the fact the people who are involved in these offences care for their reputation. [77] 

The Committee on Reforms of Criminal Justice System [78] suggested that offences may be classified into four codes – (i) Social Welfare Offences Code – for offences which are ‘social in origin or nature’ and for which ‘community service is preferred to jail sentence’, (ii) Correctional Offence Code – which would include offences which are punishable with less than 6 months imprisonment and which ‘may not be considered as crimes’, (iii) Criminal Offences Code – which would ‘really be the “Crime" part of the offences’ consisting of serious offences and (iv) Economic and Other Offences Code – which would include offences like tax frauds, cyber crimes etc which would be punished with a combination of ‘jail sentence, imprisonment and community service’. [79] The report, though did not deal with it exhaustively considering it a policy issue.

Thus, a classification of mala prohibita offences may be desirable. Those which are considered as seriously harmful by the criminal policy must be criminalised. Those which are minor must be considered as ‘contraventions’ or ‘violations.