This article is written by Millia Dasgupta, from Jindal Global Law School. This article discusses the need for a separate doctrine for mens rea.


It was Jerome Frank who had said that justice is what the judge ate for breakfast. When he said that, he meant that despite the particular wordings of a certain law, the judges will interpret the law based on previous policy ideologies or preconceptions that the judges have. This is why despite uniform laws, we see different judges have different opinions. When you read certain opinions of judges after they decide a case, they quote legal principles such as ‘de minimis non curat lex’ and ‘iudex non calculat’ when they interpret the law. One of these established principles is ‘mens rea’ which means that one should have a guilty mind to be held guilty for a crime. 

But if one takes a glance at the Indian Penal Code (IPC), it is very evident that the doctrine of mens rea is embedded in the very text of the IPC. like how one must have ‘wrong intentions’ to commit theft or how an act must be committed ‘fraudulently’ to become a crime. What is the need for a separate doctrine of mens rea? Should judges take the liberty to interpret the presence or lack of presence of mens rea criminal principles when it is already established in the code?. 

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In this article, we shall see that. Readers should note that the debate between the doctrine of mens rea and the IPC boils down to a debate between following common law (principles or laws established by courts) and codified law. Thus, this article shall contemplate the aspects of this debate and argue why judges should follow codified law and if they choose to deviate, they should do so with caution. 

How judges can approach the interpretation of the code 

Judges should take a holistic view

While there is statutory law based on codified law, common law is made from the decisions of the judges and how they interpret the code. While deciding cases, judges usually follow the law but they may also follow general legal principles established through precedents. This system of common law is certainly admirable. While relying on general principles like mes rea makes sense, the judges must also take into account the deliberations that took place when establishing certain laws. Framers of the code and lawmakers took into account the degree of mens rea required and in which instances it should be applied and in which instances it should be not. 

Thus, if judges were to stray away from these certain qualifications that have been codified and they wish to apply a more general principle of law, they should take into account for what reasons the qualifications of mens rea were put into place. When these laws were established, the framers also took into account general principles of law and how they are related to the crime. While judges may seem it is beneficial to interpret these codes in the light of general principles, it is better to stick to the wordings of the code. 

To further elaborate we shall see other countries that have common law jurisdictions such as Australia and England. The mental or the fault aspect for murder and involuntary manslaughter have been developed in very poor fashion in these countries. Judges have dealt with the fault elements for these two separate crimes as two different entities. It is uncertain what level of fault element is required for murder and for unintentional manslaughter. The level of moral culpability is also set too low to cause any conviction for these serious crimes. The Indian Penal Code on the other has embraced a fully schematic approach to separate the two offence and to define when a crime is a murder and when a crime is manslaughter and can not be given the same criticism. While it is understandable that just because a law is codified, does not mean it is sound law but it is extremely important to analyze the position of the law or the code before establishing a decision. 

Strive for simplicity 

When codifying the law, the framers made sure that the certain law would be easily understood and readily accessible to the public. The Indian Penal Code has successfully achieved this. A testament to this is a comment made by James Fitzjames Stephen who had come to India and had stated that many would carry pocket editions of the code and the public knew it very well. The problem with establishing criminal law through common law is that the public will be confused about how they should act and what is considered criminal behaviour or not.

The judges and their attitudes change with every unique situation and the passing of time, and unlike a code, their opinion is not uniform. Their opinion is also not accessible. The general public may not be able to understand the various law principles used or even the wordings of the judge. They may also not be able to track the change in the common law. The public would understand an established law on the mental element of the law, rather than an interpretation of the principle of mens rea which differs in unique situations. 

With regards to Australia, in the case of Viro v. The Queen, the High Court took decades to decide what constitutes self-defence and what constitutes murder with regards to the mental element. After years of deliberation, the High Court stated that self-defence would be applicable if the person had reasonable grounds for it and if the jury is left without any reasonable doubts on this matter. The Court also stated that this definition of self-defence would not be limited to just cases of homicide. The reason the court deliberated so much was to some extent because the laws on self-defence were complex. 

On the other hand, the Indian Penal Code lays down what constitutes self-defence in a simple manner. Thus, we must note that the law itself must be clear and less complex. If the law is amended to be clear, it would be much easier not only for the public but for lawyers and judges. They would not have to rely on multiple interpretations in cases to understand the law. 

Judges should follow the wording of the code

The law is intended to be clear, exhaustive and comprehensive and thus the judges should look forward to the law before relying on any previous principles or judgements. While this may seem obvious, we see that is not the case in some countries that have common law jurisdiction. For example, in the case of Brennan v. The King, the High Court established that judges should first take the code into consideration before straying from it. The fact that this had to be stated in the judgement meant that judges tend to stray away from the established code.

An explanation for such behaviour may be that some judges assume that code is a merely codified common law from the time it was established, thus, it is permissible to draw from current time common law. Another reason could be the familiarity that judges have with common law due to their practice or their training. It is in the opinion of Stanley Yeo in the paper ‘The Symbiosis between Criminal Codes and the Common Law’ that judges should stick to the plain meaning of the text and only when there are confusions about the law, should they then apply common law.


The case of Jobidon v. The Queen is an example of a departure from the plain meaning of the code. In this case, the appellant had been convicted for manslaughter for killing a deceased in a fistfight despite the fact that they both consented. The criminal code clearly stated that physical assault occurs without the consent of the other person then it would be considered a crime. The majority of the Supreme Court had backed the conviction by citing English common law. Had the judges taken into account the wording of the code and the law in general, they would have been able to have an in-depth discussion about the nature of the law and why they would oppose it. But not following this approach, they deprived the courts of a case that would go into the depth of the laws or why they opposed it. 

In India, there are case authorities that go against the provisions in the Indian Penal Code. one example is the provision on provocation. There is no mention of what is considered provocation in the code itself, instead of the qualifications on what provocation is taken from English common law. In the case of Akhtar v. State, Justice Beg acknowledges that the code is silent on what is considered a provocation and gives a reason why English common law is used. 

Judges should follow caution during wording 

There will always be ambiguities in the way the law is written. This may be because of poor drafting or because societal values and expectations have changed with time. It is because of these reasons that judges will look into common law. Despite this, the judgments should be in line with the code. Words in the code should be analysed to see if they shed light on any confusement. They should also consider other codes or sections that are close to the code in question. Only after this, should common law be looked into. Such analysis shall provide more depth to the discussion on the code instead of relying on a general principle of law such as ‘mens rea.’

Possible alternatives to common law

Criminal law is essential for the protection of society. Thus judges have a critical role during the interpretation of these principles. These laws not only ensure the safety of society but are also guidelines on how society should act. It is thus important that judges follow the code closely due to its uniformity. When the code does not give a clear answer, the judges should only then look towards general principles. 

We must also be wary of the fact that criminal law is never static but changes in response to the change in community values and expectations. As expected, code jurisdictions have a harder time accommodating this change as compared to common law jurisdictions. Residual provisions that talk about the common law in brief as seen in the Canadian courts have helped with this issue. 

However, a downside of this is that it creates two types of laws. Another procedure that could help when judges are confused about the mental element of a case is a procedure that lets the Attorney General refer points of law to the courts for clarification. This helps in quickening the process of amending the law. However, such a process is only temporary as it depends on the Attorney General noticing the defect and giving it to the judges for clarification. A measure proposed by Macaulay himself suggests that ambiguous points found in court should be presented to the Parliament with requests to amend the code. This is done by the Law Commission of India.


In this article, the author has relied heavily on the paper ‘The Symbiosis between Criminal Codes and the Common Law’ written by Stanley Yeo. In this article, the author has stated that judges should take a holistic view when interpreting the mental element of laws as these laws are already based on the legal principle of mens rea. The qualification of the mental element should be paid attention to.

The author has also stated that the reason why judges should not rely on a general principle like mens rea is because their interpretation will be different in each case and shall be confusing for the general public. Uniform code ensures that law is simple and easily accessible to the public. Judges should follow the wording of the code first and explore all options before referring to common law and even if the wording lacks, they should make sure their interpretation is within the bounds of the code. The author has also gone ahead to discuss the possible alternatives to common law. 


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