Indian penal code project, Papers of Law

Download Indian penal code project and more Papers Law in PDF only on Docsity! 1 DR. B.R. AMBEDKAR NATIONAL LAW UNIVERSITY Subject- Criminal Law I Code- 503 PRINCIPLE OF LEGALITY, AND, CORPORATE CRIMINAL LIABILITY Submitted To Submitted By Dr. Sonia Himadri Badoni Date: 2nd November, 2022 Roll No.: 2001037 Section A 5th Semester 2 ACKNOWLEDGEMENT I express my gratitude towards my professor, Dr. Sonia Dahiya for assigning me this topic. While working on this project, I not only enhanced my knowledge but also got a different perspective on Criminal Law in India. I am also grateful to the Hon’ble Vice-Chancellor of the institution and my parents for providing me with adequate means to complete the assigned project. Sincerely Himadri Badoni 5 PART A: THE PRINCIPLE OF LEGALITY Nullum crime sine lege or the principle of legality is considered a mandatory requirement for a fair trial. Not recognizing the nullum crime sine lege will not only deprive individuals of the ability to regulate their conduct, but will also remove the limits of the state’s penal powers. And more generally, the principle is not limited to prohibitions on the application of the law after the fact, but also implies other guarantees. The principle of legality consists of the following four guarantees: first, the requirement that the criminalization of certain behaviour must be foreseeable (nullum crimes sine lex praevia); second, the requirement that laws must be interpreted restrictively, leaving no room for judicial creativity. Furthermore, the principle of legality means that the criminal law that provides for an act or omission to be a criminal offense must be enacted and executed before the offence is committed (nullum crime sine lege praevia). 1. Nullum crimen sine lege; nulla poena sine lege This maxim means that only the law can classify a crime and qualify a penalty, and it is primarily viewed as a law adopted by a state legislature. In any case, the term "law" refers to both written and unwritten law and implies qualitative requirements, particularly those of accessibility and predictability. Accessibility requires that every person should have the opportunity to learn about existing criminal laws, which includes the obligation of the state to make them public in some way. 2. Nullum crimen sine lege certa; nullum crimen sine lege stricta According to this principle an offence must be clearly defined in the law and this must be foreseeable for any person. The requirement is satisfied where a person can know the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what act or omission will make him criminally liable. But a consequence of the principle that laws must be of general application is that the wording of the statues is not always precise. 6 ORIGIN AND CONCEPTION OF THE PRINCIPLE OF LEGALITY 13 trials were held at the Nuremberg trials in the late 1940s under the supervision of judges from the four main allies: the United States, Britain, France, and the Soviet Union. 177 Germans and Austrians were charged in these trials. Of those, 35 were found guilty, 25 were put to death, 20 were given life sentences, and the remaining 97 received lesser sentences. Low level soldiers were also convicted in these trials. Prior to World War II, only senior commanders or heads of state were subject to prosecution. In court, the prosecution of Nazis invoked the defence of superiority, which was a recognised legal doctrine. On the grounds that their actions were against humanity, the prosecution was not granted protection from this retroactive criminal legislation throughout the trials.1 The Nuremberg trial served as a model for the 1948 Universal Declaration of Human Rights (UDHR) and the 1949 Geneva Convention III. The definition of the principle is structured by Article 11(2) of the Universal Declaration of Human Rights (UDHR), which states: ‘No one shall be held guilty of a penal offence for an act or omission that did not constitute a penal offence under national or international law at the time it was committed.’ ‘No harsher penalty shall be imposed than that which was applicable at the time the penal offence was committed.’2 1 Principle of Legality in International and Comparitive Criminal Law, available at: https://www.cambridge.org/core/books/abs/principle-of-legality-in-international-and-comparative-criminal- law/legality-in-criminal-law-its-purposes-and-its-competitors/E90DE2935156E2D2AD3EBD1E29C33A4B, (last visited on October 31st, 2022) 2 Non Retroactivity of Criminal Law, available at: https://blog.ipleaders.in/non-retroactivity-of-criminal-law- principle-and-its-position-in-constitution-and-international- law/#:~:text=The%20nullum%20crimen%20sine%20lege,declares%20particular%20conduct%20as%20crimin al. (last visited on October 30, 2022). 7 PRINCIPLE OF LEGALITY IN INDIA The concept of legality, or nullum crimen, nullum poena sine lege, has been incorporated into the Indian Constitution. No person shall be convicted of any offence except for violating a law in effect at the time the Act charged as an offence was committed, nor shall they be subject to a penalty greater than that which may have been imposed under the law in effect at the time the offence was committed, according to article 20 (1) of Part 3 of the Fundamental Rights under the Rights of Freedom in the Indian Constitution. Article 20(1) of the Indian constitution can be understood in two parts: • The first part implies that a person is only convicted of violating a law which was in force when the act charged was being committed. A law enacted after, an act done earlier (not an offence when done) as an offence, will not make the person liable for being convicted under it. For example, ‘The Dowry Prohibition Act, 1961 came into force from 20.5.1961. A person guilty of accepting dowry is punishable under the Act after 20.5.1961 and not before 20.5.1961.’ • The second part immunes a person from a penalty more than what he might have incited at the time of his committing the crime. Meaning that an ex-post-facto law or retroactive law, cannot make a person suffer more than what he was subjected to at the time of committing the offence. For example, Satwant Singh vs Punjab[7]. Satwant Singh was charged according to section 420 of Indian Penal Code (IPC). According to Sec. 420 IPC, an unlimited fine can be imposed for offence punishable under this provision. Later, an ordinance laid down the minimum fine which a court must inflict on a person convicted u/s 420 IPC. The Supreme Court held that article 20(1) was not infringed by the ordinance because the minimum penalty fixed by it could not be said to be greater than what could be inflicted. The definition in section 3 (37) of the general clauses act is applied as there is no definition of offence in the constitution and for application of article 20(1) there has to be an ‘offence.3 3 Daniel Gradinaru, “The Principle of Legality” Grădinaru, Daniel, The Principle of Legality (November 20, 2018). RAIS Conference Proceedings - The 11th International RAIS Conference on Social Sciences, Available at SSRN: https://ssrn.com/abstract=3303525 10 Corporations have a separate legal personality distinct from natural persons like members, directors, employees etc. who make the corporations. Due to this, liability on corporations is imposed separately from any criminal liability which may be imposed on the individual members for any wrongdoing. The basic rule of criminal liability is based on the maxim- actus non facit reum nisi mens sit rea; an act is not wrongful unless accompanied by a wrongful state of mind. Companies should be subject to criminal liability for offences that occur in the course of their business operation for which they bear responsibility. Corporations may be convicted in a criminal court for acts that violate the penal law of the jurisdiction in which it is tried. 5 THE CONCEPT OF CORPORATE CRIMINAL LIABILITY The essential cornerstone of corporate liability laws all around the world is the recognition of the corporation as a separate legal entity. Courts, on the other hand, struggled to hold corporations liable for acts that were considered criminal offences on two fronts: 1. assigning mens rea, or a criminal intent factor, to fictional entities such as corporations; and 2. punishing corporations where statutory punishments were mostly corporal in nature, requiring imprisonment. The idea of corporate criminal liability arose in response to this necessity, allowing courts to hold individuals accountable for illegal activities performed in the name of corporations. The simple response the courts came up with for offences that did not require the proof of mens rea was to create a modified version of the Doctrine of Vicarious Liability, under which the company’s controlling persons would be held accountable. However, soon after, business directors were held accountable for criminal activities for which criminal intent had to be established. For this, the ‘Identification’ or ‘Attribution’ theory was used, which is a modified form of vicarious responsibility in which the person in charge of the 5 India: Corporate Criminal Liability, available at: https://www.mondaq.com/india/crime/882614/corporate- criminal-liability, last visited on 31st October 2022). 11 firm’s affairs and the corporation were deemed one and the same for the purposes of the criminal act. The doctrine of attribution suggests that the criminal purpose of the company’s or body corporate’s “alter ego”, i.e., the person or group of people, who run the company’s operations, is ascribed to the corporation. On the basis of the company’s alter ego, mens rea is thus assigned to it. THE GENESIS AND DEVELOPMENT OF CORPORATE CRIMINAL LIABILITY IN INDIA In the past, Indian courts have held that corporations could not be tried for offences requiring mens rea, which is an essential requirement for the bulk of crimes, and that corporations could not be prosecuted for offences requiring imprisonment because corporations could not be imprisoned. Furthermore, stakeholders argued that by dividing responsibilities among board members, if the firm confronts criminal liability, the director assigned to manage that aspect of its operation will be held criminally liable. The legal approach, on the other hand, has been a little more difficult. Two corporations were charged with fraud under the Indian Penal Code in A.K. Khosla v. T.S. Venkatesan. The defendants’ counsel claimed in the Calcutta High Court, among other things, that the corporations, as juristic persons, could not be punished for IPC offences requiring mens rea. The court agreed, stating that there were two prerequisites for prosecuting corporate bodies: mens rea and the ability to impose the mandatory sentence of imprisonment, and that a corporate body could not be said to have the necessary mens rea or be sentenced to imprisonment because it lacked a physical body. Similarly, the court dismissed a case made against Zee Telefilms Ltd. under Section 500 of the IPC in Zee Telefilms Ltd. v. Sahara India Co. Corp. Ltd. According to the lawsuit, Zee aired a program that was based on lies and thereby defamed Sahara India. The court found that one of the primary aspects of criminal defamation was mens rea, and that a corporation could not have the required mens rea. 12 Thus previously, Indian courts only recognized that companies may act through their managers and directors, but the judgments as it exists now solidifies the view that companies are just as guilty as any living person and can be tried and punished for it. This was governed by two major decisions in this regard. The first is the case of Standard Chartered Bank v. Directorate of Enforcement, in which the Supreme Court’s constitution bench held that no company is immune from prosecution for serious crimes simply because the prosecution would result in a mandatory prison sentence. Large-scale financial irregularities are perpetrated by numerous corporations that control a significant amount of the industrial, commercial, and sociological sectors; therefore, the corporation’s compliance with criminal law is necessary for a peaceful society with a stable economy and as a result, a corporation can be charged with and convicted of a crime requiring a minimum sentence of imprisonment. Secondly, in Iridium India Telecom Ltd. v. Motorola Inc., where the issue was whether a company could be held liable under Section 420 of the Indian Penal Code, 1860, the Apex Court answered affirmatively and clarified that even if the offence requires proof of mens rea, a company can be held liable to the act as the guilty mind of the person in control of the company will be ‘attributed’. As a result, the doctrines of attribution and imputation were accepted. THE ISSUE OF IMPRISONMENT A person is defined in Section 11 of the Indian Penal Code, 1860 (“the Code”) as “any Company, Association, or a group of persons, whether incorporated or not.” and according to Section 2, every individual shall be liable to punishment under this Code. As a result, section 2 of the Code, with no exception for corporations, punishes everyone, which plainly includes corporations. By reading these two clauses, the notion of corporate criminal liability may be developed, albeit it is not the only legislation that provides for the punishment of corporate bodies; others include the Companies Act of 2013, the Income Tax Act of 2013, and so forth. However, in 15 In the recent case of Shiv Kumar Jatia v. State of NCT of Delhi, the Supreme Court rejected criminal proceedings that were brought solely on the basis that the accused was the company’s managing director and the only non-independent executive director. He was not, however, vicariously responsible under the IPC since there was insufficient proof of his active engagement combined with criminal intent. Therefore, until there is adequate evidence against the individual in question, the Indian courts have taken a cautious stance and have generally safeguarded corporate officials from harassment by investigating authorities. CONCLUSION In summation, any neglect or repeal or dilution of the nullum crimen sine lege shall not only ooze out rights guarantees under the principle that are recognized both in national and international law; but also systematically disadvantages an accused in a criminal trial wherein unfair, inequitable, and unreasonable burden is placed on him for proving his innocence. This is coincidental with the abandonment of the idea of Rule of Law and embraces of an authoritarian state as, in history, it was exemplified by Nazi law in 1935 by repudiating the long-standing principle of legality in the German Criminal Code. Thus, this principle serves as a necessary safeguard in a liberal constitutional order, where the State’s unconstrained and indeterminate powers to criminalize are prohibited by upholding the liberty of an individual. Moving on to the liability of a corporation, as previously stated, the primary premise of strict interpretations of criminal statutes binds the hands of justice. With corporate scandals aplenty, it’s more important than ever to revamp the regulatory regime and statutes to make corporate criminal liability more robust and purposeful, while also striking a balance by relieving executives of the fear of being held criminally liable simply because of their position. While combating crime, it is critical for legislation to achieve a balance between the functioning of society and the overall benefit of the economy. 16 As a result, major changes in relation to the criminal liability of Indian corporations must be adopted in order to strike a balance, as the statutes are out of sync with these developments. 17 SOURCES USED 1. SCCOnline 2. JSTOR 3. IPleaders 4. Mondaq.com 5. SSRN Journals