Aaron Swartz’s Prosecution in violation of International Law and Equity

Death of a crusader!

English: Aaron Swartz at a Creative Commons event.

English: Aaron Swartz at a Creative Commons event. (Photo credit: Wikipedia)

Aaron Swartz was a champion of the cause of free information. More so the freedom from intermediaries. First about his recent cause. JSTOR is a website which holds more than 1,400 journal titles in more than 50 disciplines from about 800 Universities, in a digital format. The authors of these articles get nothing from sharing their content but the JSTOR pays to the Publishers for participating the content in its database. BTW JSTOR also charges a fee for accessing its content.
Aaron was bulk downloading the contents via Massachusetts Institute of Technology’s  data network. JSTOR discovered and caught hold of Aaron. The matter was settled and Aaron returned the downloaded content to JSTOR. After the civil dispute between the affected parties was over, FBI arrested Aaron alleging wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer and claiming to be acting under Computer Fraud and Abuse Act {18 U.S.C. § 1030}. The question is:

Was prosecution of Aaron, even if legal, justified in overall circumstances? or was it a persecution to deter him from being a crusader of free information cause? Continue reading

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Terrorist and Disruptive Activities Act

The word harbours used in TADA must be understood in its ordinary meaning as for penal provisions. It is therefore reasonable to attribute a mental element (such as knowledge that the harboured person was involved in a terrorist act) as indispensable to make it a penal act. That apart, there is nothing in the Act, either expressly or even by implication, to indicate that means rea has been excluded from the offence

A juristic entity which could not have mens rea cannot be prosecuted and convicted. There is no question of company to have had the mens rea even if any terrorist was allowed to occupy the rooms in the Hotel The company is not a natural person. In many recent penal statutes, companies or corporations are deemed to be offenders on the strength of the acts committed by persons responsible for the management or affairs of such company or corporations e.g. Essential Commodities Act, Prevention of Food Adulteration Act etc. But there is no such provision in TADA which makes the company liable for the acts of its officers. (See Kalpnath Rai v. State (through CBI), 1998 CrLJ 369: AIR 1998 SC 201 : 1998 SCC (Cr) 134 : 1998 CAR 33 : 1997(4) Crimes 227 : 1997(4) Rec CrR 788)

Foreign Exchange Regulation Act, 1947

"The Old Bailey, Known Also as the Centra...

“Mens-rea” is a state of mind. Under the criminal law, means-rea is considered as the “guilty intention” and unless it is found that the “accused” had the guilty intention to commit the “crime” he cannot be held “guilty” of committing the crime. An “offence’ under Criminal procedure Code and the General clauses Act, 1897 is defined as any act or omission “made punishable by any law for the time being in force”. The proceedings Under Section 23(1)(a) FERA, 1947 are “adjudicator” in nature and character and are not “criminal proceedings’. The officers of the Enforcement Directorate and other administrative authorities are expressly empowered by the Act to “adjudicate’ only. Indeed they, have to act “judicially” and follow the rules of natural justice to the extent applicable but, they are not “Judges’ of the “Criminal Courts” trying an “accused’ for commission of an offence, as understood in the general context. They perform quasi-judicial functions and do not act as “Courts” but only as “administrators’ and “adjudicators’. In the proceedings before them, they do not try “an accused” for commission of “any crime” (not merely an offence) but determine the liability of the contravenor for the breach of his “obligations” imposed under the Act. They impose “penalty’ for the breach of the “civil obligations’ laid down under the Act and not impose any “sentence” for the commission of an offence. The expression “penalty’ is a word of wide significance. Sometime, it means recovery of an amount as a penal measure even in civil proceedings. An exaction which is not compensatory in character is also termed as a “penalty’. When penalty is imposed by an adjudicating officer, it is done so in “adjudicator proceedings’ and not by way of fine as a result of “prosecution” of an “accused’ for commission of an “offence” in a criminal Court. Therefore, merely because “penalty’ clause exists in Section 23(1)(a), the nature of the proceedings under that Section is not changed from “adjudicator’ to “criminal’ prosecution. An order made by an adjudicating authority under the Act is not that of conviction but of determination of the breach of the civil obligation by the offender.

It is thus the breach of a “civil obligation” which attracts “penalty” Under Section 23(1)(a) FHRA, 1947 and a finding that the delinquent has contravened the provisions of Section 10 FERA, 1947 would immediately attract the levy of “penalty’ Under Section 23, irrespective of the fact whether the contravention was made by the defaulter with any “guilty intention” or not. Therefore, unlike in a criminal case, where it is essential for the “prosecution” to establish that the “accused” had the necessary guilty intention or in other words the requisite “mens-rea’ to commit the alleged offence with which he is charged before recording his conviction, the obligation on the part of the Directorate of Enforcement, in cases of contravention of the provisions of Section 10 of FERA, would be discharged where it is shown that the “blameworthy conduct” of the delinquent had been established by wilful contravention by him of the provisions of Section 10, FERA, 1947. It is the delinquency of the defaulter itself which establishes his “blameworthy” conduct, attracting the provisions of Section 23(1)(a) of FERA, 1947 without any further proof of the existence of “mens-rea”.(See Director of Enforcement v. MCTM Corporation Pvt. Ltd., 1996 CrLJ 1623: AIR 1996 SC 1100: 1996 SCC (Cr) 344)

Note: The above provision is an example of principle of strict liability.

Essential Commodities Act

Mens rea or ‘Guilty Mind’ is an essential ingredient of a criminal offence.

Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof.

Having regard to the object of the Essential Commodities Act, namely, to control in general public interest, among others, trade in certain commodities, it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. The provisions of the Act do not lead to any such exclusion. Indeed, it could not have been the intention of the Legislature to impose heavy penalties like imprisonment for a period upto 3 years and to impose heavy fines on an innocent person who carries on business in an honest belief that he is doing the business in terms of the law. Having regard to the scope of the Act it would be legitimate to hold that a person commits an offence under Section 7 of the Act if he intentionally contravenes any order made under Section 3 of the Act. So construed the object of the Act will be best served and innocent persons will also be protected from harassment. (See Nathulal v. State of Madhya Pradesh, 1966 CrLJ 71 : AIR 1966 SC 43 : 1965 Mah LJ 783 : 1965 MPLJ 832 : 1966 Mad LJ (Cri) 679)

Corporate immunity and Mens rea

Prosecution of Officers of the company

The persons managing the affairs of such company cannot use the juristic entity and corporate personality of the company as a shield to evade themselves from prosecution for offences under the Penal Code, if it is established that primary object of the incorporation and existence of the company is to defraud public. But, at the same time, while taking cognizance of alleged offences in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the share holders which constitute one offence or other under the Penal Code, Court must be satisfied that prima facie an offence under the Penal Code has been disclosed on the materials produced before the Court.  For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such persons become liable to punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed. The prosecution has to prove that the appellant as promoters or directors, had dishonest intention since very beginning while collecting the moneys from the applicants for the shares and debentures or that having collected such moneys they dishonestly misappropriated the same. The ingredients of the different offences under the Penal Code need not be proved only by direct evidence, they can be shown from the circumstances of a particular case that the intention of the promoters or the directors was dishonest since very inception or that they developed such intention at some stage, for their wrongful gain and causing wrongful loss to the investors.

Radhey Shyam Khemka v. State of Bihar, 1993 CrLJ 2888 : 1993 CrLR (SC) 358 : 1993(1) Crimes 1132 : 1993(3) SCC 54.