The IUP Journal of Law Review
The Dynamics of Corporate Criminal Liability in India

Article Details
Pub. Date : Oct, 2018
Product Name : The IUP Law Review
Product Type : Article
Product Code : IUPLR61810
Author Name : M Srinivas
Availability : YES
Subject/Domain : Law
Download Format : PDF Format
No. of Pages : 07

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Abstract

For a long time, criminal liability of corporations remained a niche and an unaddressed issue. But times have changed and a corporate entity now cannot escape criminal liability for the reason that it has “no soul to damn and no body to kick”. To get over the problem of imputing intention to the company, Identification Approach method was evolved in the UK which considers the intention and act of the senior management of the company as that of the company itself. In contrast, in the United States, the approach has always been to employ the device of vicarious liability. All that is required in the US is that an employee should have committed the offense in the course of employment. However, the law in India has not properly addressed the problem of corporate criminal liability relating to mens rea offenses. Higher judiciary has expressed different opinions in different judgments for the questions like whether a corporation can commit an offense that requires mens rea, and what punishment is to be imposed on the corporation when imprisonment is mandatory? Though the area of law on corporate criminal liability is continuously evolving in India, what is required is the certainty. This paper makes an attempt to analyze the legal systems that deal with the corporate criminal liability in countries like the UK and US, with special reference to India.


Description

Law recognizes a corporation as a separate legal entity and this juristic person is also liable under criminal law under certain circumstances. The recognition of corporate criminal liability for corporate personality has been slow in coming in the law.1 The Indian law on corporate criminal liability is no exception to this view. ‘Mens rea’ combined with ‘actus reus’ form the basis for identifying crime and the punishment that follows. While there can be no dispute about the efficacy of this test as far as human criminals are concerned, it runs into rough weather when the situation is otherwise. For a long time, criminal liability of corporations remained a niche and an unaddressed issue. In Royal Mail Steam Packer vs. Braham,2 a corporation was described as a ‘person’ for the first time, which marked the beginning of corporate criminal liability jurisprudence in UK. The Criminal Law Act, 1827 provided that the word ‘person’ in statutes could be construed to include corporations in the absence of a contrary intention. It was not until this was repeated in the Interpretation Act of 1889 that courts began making extensive reference to it. However, some jurists like Lord Edward, for instance, remarked on the impossibility of holding corporations liable when they had “no soul to damn and no body to kick.”3 But times have changed and a corporate entity now cannot escape criminal liability for reason that it has “no soul to damn and no body to kick.” Most of the judicial systems have evolved some mechanism to place criminal liability on the corporate entities.

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