Whether mens-rea is foundation stone of crime or is there any exception of it - Somdutta Singh

Author :   Somdutta Singh [LL.B Hons.]
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Durkheim in his book Crime as a Natural Phenomenon stated “A society composed of persons with angelic qualities would not be free from violations of the norms of that society”.

Mens rea refers to criminal intent. The literal translation from latin is “guilty mind.” The plural of men rea is mentes reae. Justice Holmes famously illustrated the concept of intent when he said “even a dog knows the difference between being stumbled over and being kicked.” Earlier in the 12^th century mens- rea was not an element of crime, the wrongdoer used to get punish regardless the fact that whether the act done was intentional or not. The concept of mens rea in the 17^th century mens- rea means “An intention to do a forbidden act.” the terms mens rea is not defined in the Indian Penal Code. It is defined as the mental element necessary to constitute criminal liability. According to Samshul Huda, an eminent jurist  “the very corner stone of criminal jurisprudence is the mens- rea.” It is expressed in the Latin Maxim ‘actus non facit reum nisi mens sit rea’ as a fundamental principle for penal liability it means the act itself does not constitute guilt unless done with a guilty mind simply we can say that a person to be held guilty of a crime, it is necessary that he had intention to do it similarly, a person to be held guilty of theft, it should be establish that he had an intention to steal.  When we can find out intention then firstly we understand meaning of intention is the purpose or desire with which an act is done. To intent is to have in mind a fixed purpose to produce a particular result. 

• ·  Negligence is not taking care where there is a duty to take care. negligence or carelessness indicates a state of mind, viz., absence of a desire to cause a particular consequences. In criminal law the negligent conduct amount to mens-rea.
• ·   Recklessness occurs when the actor does not desire the consequences, but foresees the possibility and consciously takes the risk. It is classified with intention for all legal purpose.
• ·   Most crimes require general intent, meaning that the prosecution must prove only that the accused meant to do an act prohibited by law.
• ·  Malice is the intent without justification excuse or reason to commit a wrongful act that will result in harm to another.
• ·      Something premeditation is planned in advance and has purpose behind it. In other words it is not an Incident. A premeditation crime involves careful plan and research before it happens.

 

Felony Murder Rule states that if a person commits a violent felony and another person dies as result, the criminal can be charged the murder and all participants in that felony can be same charge as long as there is a casual connection

In England, mens rea is an essential ingredient of a crime /an offence. It is applied in all common laws cases (judge made laws) without any reservations. It is also applied in statutory offence with certain reservations like R. V. PRNICE (1875) 2 CCr154, R. V. Mrs. TOLSON, R. V. WHEAT & STOCK (1921) 2 K.B.119.

                         

In India application of doctrine of mens-rea has been has been applied by the Indian courts. But it has been applied in different aspects firstly, the actual intent required for the offence was used in defining the offence and secondly the expression fraudulently, dishonestly, voluntarily, and intentionally etc. are used in the definition to indicate the criminal intent.

                       

How to establish mens rea -  It is difficult to give a portrait of the  accusers mind or intention at the given moment as intention is an abstract idea, it is difficult to establish it and the help is taken of surrounding facts or factors:

1.  Previous relation between the accused and the victim, any object of hostility between them.
2.  Existence of instigation i.e. whether accused was hired and what prompted him to commit crime.
3. Whether the accused had something to gain out of the whole affair.

Thus, guilty intention is always preceded by a motive or real causal factors.

“Actus non facit reum, nisi mens sit rea”

The fundamental principle of penal liability is actus non facit reum, nisi mens sit rea, i.e., the act itself is not criminal unless accompanied by a guilty mind. It may be noted that mens rea must extend to all the three parts of an act, viz.-

1. The physical doing or not doing,
2. The circumstances, and
3. The consequences. If the mens rea does not extend to any part of the act, there will be no guilty mind behind the act.

Mens-rea is an essential ingredient of an offence but, it’s not essential in respect of some offences like as waging war against government of India ,sedition, kidnapping, Abduction,  coins etc. the framers of Indian Penal Code, while drafting code use the words voluntarily ,fraudulently ,dishonestly ,corruptly, malignantly, maliciously and wantonly  which are equivalent to the word “mens-    rea in several cases MOLHAN K.A. V. KORA BIBI KUTTI (1996) SCC281, NATHULAL VS. STATE OF M.P. AIR 1996SC43

GENERAL EXCEPTIONS : According to wright. J. the mens rea is an essential ingredient in every offence except in three cases:-

• ·        Cases which are not criminal but which are prohibited in the public interest are penalty.
• ·        Public nuisance.
• ·    Cases in which the form of criminal cases but actually are for enforce a civil right.

In Indian Penal Code general exceptions has been provided to subject matter of interpretation under section 76 to 106 of IPC but some situations given below where mens rea is an silent

1.  Material fact relating to an accident as under section 80.

2.  Submission relating to Minor as under section 83.

3.  Subject matter relating to unsoundness of mind under sec 84.

4.  Intoxicated person sec 85 and 86.

And so many exceptions tutored in statutory provision whether act was done in incidental or in any other ways. Therefore, there can be no crime without an evil mind and hence, the essence of an offence is mens rea .

The End

 

This article has been written by Mr. Somdutta Singh, a student of LL.B Hons. at CALC permanently affiliated to University of Lucknow. 

SELF-RELIANT INDIA: THE ATMANIRBHAR BHARAT - Diksha Viswakarma

Author :   Diksha Vishwakarma [LL.B Hons.]
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By reading the title of this article we can proudly say "WE THE ATMANIRBHAR PEOPLE OF INDIA". With no offence to the Preamble of our constitution we will be discussing in detail the meaning, critics, etc., of the title 'Atmanirbhar Bharat'.

The concept of Atmanirbhar is inspired from the Gandhian era of 'swadeshi or khadi' use, which no doubt indicates that PM Modi is admirer of Gandhi and more often chooses events related to Gandhi's life to announce his big projects.[1]

Just like he announced his first big project "Swachhata Abhiyan" after assuming the PM office on 2nd October 2015. More often he takes personal interest in the promotion of khadi.

Gandhiji used to say that " the soul of India lives in the villages". He is very fond of the village system and this was the main reason behind proposing gram swaraj, to make the villages independent. Gandhiji's economic ideas have always been ignored by the political successors of Gandhi. Now the same ideas have been getting recognition in this COVID-19 pandemic, what an irony!

By the repeated use of the word ''atmanirbhar'' PM Modi induced a sense of positivity among those who are distressed. He mainly focused on making India a self-reliant economy with minimum, to no use of foreign goods.

ATMANIRBHAR BHARAT 

INTRODUCTION:

Atmanirbhar Bharat means a country which is reliant upon oneself and trust on one’s own power or judgment. It is a vision introduced by PM Narendra Modi on 12th May 2020. This vision of Atmanirbhar Bharat is the vision of our honourable PM Narendra Modi so that he can make India “a bigger and more important part of the global economy”.

The vision of Atmanirbhar Bharat in pursuing the policies that are efficient, competitive and resilient, being self-sustaining and self-generating. This vision focuses mainly on utilising and making local things, means the things which are made in the country itself.

To promote this Atmanirbhar Bharat there has been taken the initiative of domestic manufacturing of arms, ammunition.

INITIATIVE TAKEN TO MAKE THE VISION SUCCESSFUL:

• FIVE PILLARS OF ATMANIRBHAR BHARAT FOCUSES ON:[2]

1. ECONOMY

2. INFRASTRUCTURE

3. SYSTEM

4. VIBRANT DEMOGRAPHY AND

5. DEMAND

• THE FIVE PHASES OF ATMANIRBHAR BHARAT ARE:

1. BUSINESS INCLUDING MSMEs

2. POOR INCLUDING MIGRANTS AND FARMERS

3. AGRICULTURE

4. NEW HORIZONS OF GROWTH

5. GOVERNMENT REFORMS AND ENABLERS

• SLOGANS USED :

1. VOCAL FOR LOCAL

2. MAKE FOR THE WORLD

• MEANING OF THE SLOGAN :

1. VOCAL FOR LOCAL

Vocal for local means things which are made in our own country i.e. the domestic products especially manufacturing of arms and ammunition for the promotion Atmanirbhar Bharat.

NDA Govt. will focus on the domestic manufacturing of arms and ammunition and other security products to promote the “Atmanirbhar Bharat Abhiyan”. Said by Union Minister G. Kishan Reddy. He also said that “Atmanirbharta” (self-reliance) is not just a dream but a well thought out roadway for a future ready India.

OEMs (Original Manufacturers Equipment) will be used for procuring the arms and ammunition.G-e-M (Government-e-Marketplace) portal will be used for the promotion of domestic products.

2. MAKE FOR THE WORLD

Make for the world means make in India for the world. Modi Ji in more emphasized way focused on the products which are manufactured in India and which will be used to export in foreign countries, which will increase the economy of our country.

As India is well known for its ‘culture and tradition’ domestic and local products will be centre of attraction for the foreign countries and will increase the exportation of the local products with traditional and cultural touch of India. India exports many products to foreign countries.

The latest available countries specific data shows that 54.8% of the products exported from India were bought by importers in United States (16.8% of the global total), United Arab Emirates (9.2%), China (5.3%), Hong Kong (3.5%), Singapore (3.3%), United Kingdom (2.7%), Netherlands (2.7%), Germany (also 2.7%), Bangladesh (2.6%), Nepal (2.2%), Belgium (2.6%) and Malaysia (1.9%).[3]

From a continental perspective 47.8% of India’s exports by value were delivered to fellow Asian countries, while 19.3% were sold to European Importers.[4]

INDIA’S TOP 10 PRODUCTS WHICH ARE IMPORTED TO DIFFERENT COUNTRIES:[5]

1. Mineral fuels including oil: US$44.1 billion (13.7% of total exports)

2. Gems, precious metals: $36.7 billion (11.4%)

3. Machinery including computers: $21.2 billion (6.6%)

4. Organic chemicals: $18.3 billion (5.7%)

5. Vehicles: $17.2 billion (5.3%)

6. Pharmaceuticals: $16.1 billion (5%)

7. Electrical machinery, equipment: $14.7 billion (4.5%)

8. Iron, steel: $9.7 billion (3%)

9. Clothing, accessories (not knit or crochet): $8.6 billion (2.7%)

10. Knit or crochet clothing, accessories: $7.9 billion (2.5%)

CRITICS OF THE VISION:

• People are criticising the vision of Atmanirbhar Bharat because of the decreasing GDP rate of the country. People’s view regarding this vision is that they are thinking that this vision will take many years to settle down and increase the growth rate of the economy, till then the labourer sector will suffer a lot. They are also thinking that there will be a less of opportunities for.
• PM Modi push for self-reliance is a long time coming to revive local industries and create jobs.[6]
• Modi emphasis on self-reliance is just another costless catchphrase which will be forgotten soon.[7]

HOW DOES THE VISION AFFECTS THE GDP OF THE COUNTRY:

The Indian Economy shrank 23.9% year on year in the second quarter 2020, much worse than market forecasts of an 18.3% drop.[8] Between the year 1953-1950, the export of India fell by whooping 2\3rd from already meagre 1.4% to an almost insignificant 0.5%.[9]

The main reason behind criticising the vision is because of the decreasing economy rate the country which has decreased less than 24.4% for several decades.

HOW THIS VISION WILL WORK IN THE EYE OF THE PEOPLE OF INDIA:

This vision requires and implies a need to carry out administrative reforms and, more specifically, reform of the legal system. Prime Minister Modi had clearly mentioned “Law” as one of the pillars of his vision.

When the law and order of the country will be improved the vision will have a positive impact on the people, because now a days the increasing rate of crimes in the country have made people think and worry about the legal system.

CONCLUSION:

The Atmanirbhar Bharat have some positive as well as negative impact among the people. Firstly the word “Atmanirbhar” itself creating negative impact on the people, they are thinking that by being Atmanirbhar they have to do things by their own , there will be less opportunities, their productivity will decrease and so on, they are not thinking that “Atmanirbhar” or “self-reliance” also means a commitment to resilience at multiple levels- at a National level, an industry level, and an individual level.

People need to understand that Atmanirbhar Bharat is not just a slogan but a deep root in the intellectual tradition in India. It’s a stage to make people stand confidently in the world, rather to isolate behind the “narrow domestic walls” of the society. This vision is made to enhance the direct productivity of the materials and eliminate the mediocre. By this the farmers will get the actual value of their products without giving any extra tax to the mediocre.

People are showing their negative aspect because of the recent pandemic of this COVID-19 and due this the GDP has gone down and all the industries have suffered a huge loss.

After suffering huge loss this vision has came up with a slogan “vocal for Local” which means to enhance the local products globally, So the industries which are doing their business with foreign countries how are they supposed to enhance the local products after this huge loss in the pandemic.

SUGGESTION:

PM Modi should reconsider this vision once and give some more time until this pandemic gets over or until the vaccines are available, to the industrialists to gain their losses and continue the business with foreign countries and after gaining the losses they can enhance the local products.

REFRENCES:

[1] https://timesofindia.indiatimes.com/blogs/voices/pm-modis-recontextualizing-gandhi-in-21st-century/ PM Modi’s recontextualising Gandhi in the 21st century.

[2] Source; www.india.govt.in\ Building Atmanirbhar Bharat and overcoming COVID-19

[3]Source; http://www.worldstopexports.com/indias-top-10-exports/Worlds top exports

[4] ibid.

[5] ibid.

[6] Source; https://theprint.in/talk-point/vocal-for-local-can-india-afford-self-reliance-or-is-it-a-slogan-to-please-swadeshi-l obby/420667/ Ashwani Mahajan, National co-convener of Swadeshi Jagaran Manch

[7]Ibid; Arjun Jayadev, Prof. of Economics at the School of arts and science, Azim Premji University.

[8]Source; www.tradingeconomics.com \ India GDP Annual Growth Rate

[9]Source; https://indianexpress.com/article/explained/explainspeaking-atmanirbhar-bharat-a-brief-and-not-so-affectionate-history-6556627/ Why Atmanirbhar Bharat Abhiyan should not make India turn away from International trade.

The End

 This Article has been written by DIKSHA VISHWAKARMA a Student of LL.B (HONS) 10th Semester at CALC permanently affiliated to University of Lucknow.