FROM ‘MEA CULPA’ TO ‘MENS REA’

Mea culpa, mea culpa, mea maxima culpa…” – the Latin refrain for admission or confession of guilt was not just limited to the ‘Confiteor’, a prayer of confession. Confession remained the goal in any trial by ‘ordeal’ or by ‘inquisition’. In medieval Europe, subjecting an ‘accused’ to the ‘ordeal’ of fire or drowning, and barring confession, depending upon Divine intervention to prevent or limit his injuries, was commonly accepted as reliable jurisprudence. A 1215 CE papal decree prohibited priests from overseeing this practice, purely because it was thought inappropriate to seek such miraculous interventions so routinely! However, ‘trial by inquisition’ was back with a vengeance in 1478 CE with the Spanish Inquisition using physical torture as a means to extract confessions. The guiding principle remained ‘guilty until proved innocent’ with a confessional ‘mea culpa’ as the best, and often the only evidence offered.

Fear of authority and the ‘law’ as laid down by it formed the bedrock of the system. In ancient India, Manu had sternly declared that “the whole world is controlled by punishment for a guiltless man is hard to find…”. Kautilya’s ‘Arthashastra’ spoke of ‘danda’, (force or punishment) as one of the four ‘upayas’ (strategies) of statecraft to control both subjects and adversaries. In medieval Europe, using the fear of punishment as a tool to enforce submission to the ruler’s ‘law’ was extensively described by Niccolo Machiavelli in his famous treatise, ‘The Prince’. Machiavelli concluded that fear “holds by the apprehension of punishment, which never leaves men” and was thus best suited to ensure submission to the ruler’s will. Trials by ‘ordeal’ or by ‘inquisition’, based essentially on the ‘guilty until proved innocent’ principle, are tailormade for engendering fear of authority; so it comes as no surprise that political sovereigns the world over made this the primary and fundamental basis for the juridical system they imposed on their subjects.

This cynical axiom of political power saw an exception though, in the course of human history. Reformation came to Europe with its ‘Magna Carta’ of political rights. The ‘enlightenment’ in social and political mores, no matter what its underlying drivers may be, saw maxims and slogans like ‘Liberty’, ‘Equality’ and ‘Fraternity’ and concepts like ‘the rule of law’ and ‘the greatest good of the greatest number’ gain ground. With this came the accompanying legal principles, ‘innocent until proved guilty’, the right to legal representation in a court of law and last, but not least, the requirement of ‘Mens Rea’, (criminal intent or literally, a guilty mind), to render an allegedly illegal or criminal act culpable.

Taking ‘mens rea’ into account when determining the existence and extent of culpability perhaps represents the pinnacle of achievement for humane jurisprudence. Thus, for most ‘traditional’ crimes, Indian criminal law, earlier the IPC and now the BNS, requires both proof of a defined criminal act, (actus reus), along with malicious criminal intent; (mens rea). On a case by case basis, courts are empowered to identify and differentiate between instances of lack of ‘mens rea’, or even reduced criminal intent, which may lead to the accused being absolved of a charge or becoming liable for a lesser offence than the charge made and therefore carrying a reduced penalty. Originally, only a few exceptions were made to this, related to ‘strict liability offences’, for example those impacting public welfare, traffic regulation, environmental protection or food safety laws. Some socioeconomic and regulatory laws, such as those related to narcotics or some specific economic offences have been added to this. For the rest however, consideration of the ‘mens rea’ factor remained mandatory.

This new regimen effectively turned earlier historical juridical practice on its head. Not only did the plaintiff party, (in civil matters), or the prosecution, (in criminal cases), now have the onus or ‘burden’ of proof placed squarely on its shoulders, the bar set in criminal matters was ‘proof beyond reasonable doubt’. Civil respondents and criminal accused were legally required only to make specific statements of denial of claims or charges with the accused being protected from having to testify against themselves. The accused’s ‘right of silence’ has perhaps been best exemplified by a remark ascribed to an unknown judge – “What you don’t say can’t hang you”.

Succeeding years however have seen a slew of legislation leaning towards trial by inquisition. New laws on money laundering, crimes against women and children, legally defined vulnerable sections of society and a host of legislation on subjects like national security, state sovereignty, maintenance of public order and even corruption, to name just some broad areas, often have some elements in common. These relate to powers, and sometimes duties, to effect preliminary arrests and seizures, stringent requirements for bail for the accused and an ‘inquisitorial’ trial process in which the accusation of wrongdoing is prima-facie presumed true, although rebuttable. Here, whatever the legal technicalities may say, the layman’s perception that these are essentially based on the ‘guilty till proved innocent’ maxim, rather than otherwise, is hard to avoid. For the incarcerated accused facing denial of bail, the process becomes the punishment irrespective of the judicial resolution of the matter.

For investigating and prosecuting agencies caught between the public outcry for quick resolution and the insufficient time and resources available for a fair and meticulous investigation, the Hobson’s choice often demands speedy prosecution regardless of the final judicial outcome. The situation is best described perhaps by a story told about Sher Shah Suri. This medieval ruler reportedly decreed that where a murder went unsolved within a specified period, the area ‘kotwal’, (police chief), should be hung. Since there is no record of ‘kotwals’ being put to death, we can only surmise that they always found some suitable neck to fit the noose!

These are dark days indeed for the principle of ‘innocent until proved guilty’.

THE VIEWS EXPRESSED BY THE AUTHOR ARE PERSONAL

Anirban Mukhopadhaya, Retd. IAS officer