consistently affirmed that a crime is not just an act (actus reus) but must be accompanied by the appropriate mental state.

However, the recent enactment of the Bharatiya Nyaya Sanhita, 2023 brings this age-old principle into sharp focus. While the BNS largely retains the architecture of the IPC, critics and legal scholars have raised concerns about whether it sufficiently acknowledges and protects the mental element of crime. Certain provisions under the BNS, such as criminalizing abandonment of dependents (Section 85), mob lynching (Section 103(2)), and offences against the state, may impose liability with ambiguous mental standards. In some cases, the language appears to allow punishment without requiring a clearly defined mens rea, thus inviting fears of over-criminalization.

This shift is not merely academic—it raises deep constitutional questions. Article 21 of the Constitution guarantees the right to life and personal liberty, which includes protection against arbitrary deprivation of liberty. If a person is to be imprisoned without proof of intention or knowledge, it challenges the very essence of due process. The Supreme Court in State of Maharashtra v. M.H. George (1965) held that strict liability in criminal law must be narrowly construed and used only when absolutely necessary for regulatory offences, not for general criminal jurisprudence.

Further, in Gian Kaur v. State of Punjab (1996), the Court emphasized that criminal liability must be based on individual blameworthiness. The danger of removing or diluting mens reais that it paves the way for punishing the morally innocent—a clear violation of both fairness and proportionality in sentencing.

The BNS has made attempts to modernize and simplify the law. It removes colonial terminology, addresses emerging offences like mob violence and data theft, and prioritizes victims’ rights. However, the broad phrasing of some offences risks disregarding the foundational requirement of mental culpability. In recent debates, legal commentators have cautioned against a trend toward ‘outcome-based’ criminality, where mere consequences of actions, regardless of mental state, determine guilt.

This issue has come to the forefront in ongoing challenges before High Courts in cases involving provisions of mob lynching and digital misinformation under BNS. In the People’s Union for Justice v. Union of India case (pending before the Delhi High Court), petitioners argue that criminal provisions targeting misinformation do not clearly specify intent, thereby criminalizing negligent or innocent communication. The case may well become a landmark in testing the balance between societal interests and individual mental culpability.

Moreover, the debate reflects an international concern. Jurisdictions across the world have reaffirmed the importance of mens rea. The UK’s Sweet v. Parsley (1970) and U.S. Supreme Court's Morissette v. United States (1952) both underscored that strict liability must be rare and justified only where public welfare demands it. India, in attempting to reform its penal laws, must not abandon these well-established protections.

In conclusion, the essence of criminal liability lies in conscious wrongdoing. As India charts a new course under the BNS, it must revisit and reaffirm mens rea as the moral compass of its penal law. Reform is necessary, but not at the cost of justice. The challenge for lawmakers, courts, and scholars is to ensure that in making criminal law more efficient, we do not make it less just.