ISSN 2455-4782

USE OF CRIMINAL VICARIOUS LIABILITY FOR IMPOSING CORPORATE CRIMINAL LIABILITY

Authored by: Richin Jacob*, Kanishka Shankar** & Kang Lama***

* 3rd year BBA L.L.B (Hons.) Student, Symbiosis Law School, Pune **3rd year BBA L.L.B (Hons.) Student, Symbiosis Law School, Pune ***3rd year BBA L.L.B (Hons.) Student, Symbiosis Law School, Pune ______

ABSTRACT

In this research paper, we discuss the various elements of corporate criminal liability and vicarious corporate criminal liability both in India and on an international level with Multinational corporations. A strong emphasis has been laid on why this is important and why it is necessary that a uniform system be implemented internationally for presiding over corporations for committing wrongful criminal acts and for their employees committing wrongful acts leading them to be vicariously liable.

We focus on the Indian view with what Indian legislation is capable to handle corporate criminal situations and also analyse international law and the capabilities of the International Criminal Court and their jurisdiction to preside over international crimes committed or can be committed by multinational corporations such as war crimes, crimes against humanity, etc.

At the end of this paper, we provided our comments and suggestions for how we can better analyse and decide cases of corporate criminal liability and vicarious liability in corporate criminal liability.

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INTRODUCTION

The personality, functioning and presence of a corporation as a legal entity were things the courts pondered for a long time. Owing to their earlier industrial revolutions and subsequently, development; this issue was solved by the West. Namely, England, The United States and Canada. English courts recognized corporate criminal liability earlier in the 19th century, after it was established that there is such a thing as corporate personhood, separate from the employees that works for the corporations, and that the corporation, just like people, enjoy legal rights and are just as equally punishable by the law for actions that violate the law.

In the western world it is the United States Federal judiciary that largely implemented the use of vicarious liability for holding corporations liable for actions done by their employees acting within the realm of their contractual obligation to their corporation. It is to be noted however, that it is in fact the English courts that actually brought about this concept, however, they shifted away from the concept of vicarious liability with regard to corporate criminal liability, at least. The same has occurred with Canada as well, who has also rejected the concept of vicarious liability to the extend of corporate criminal acts.

In the modern world, with massive corporations some worth trillions in US Dollars, indirectly and sometimes directly, govern a lot of what happens in and around cities, and a lot of times, unknown to the common man, in rural areas, especially in poorer countries. Keeping a check on these corporations and their activities, ensuring that there are no acts of criminal intent within their structure or their day to day activities is essential in maintaining social peace and also order. This is why it is important that a proper system be developed for punishing corporations, their leaders, and also their employees, if it comes down to it and when necessary.

LITERATURE REVIEW

1. Brent Fisse and John Braithwaite - Corporations, Crime and Accountability: Brent Fisse and John Braithwaite’s Corporations Crime and Accountability focuses on corporate crime in the modern world. This piece of literature does an ecstatic job in analyzing and determining, in an international perspective what is missing in terms of

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holding corporations accountable is missing. It also explains in depth, the varying degrees of corporate criminal liability that should be implemented in the modern world.

A main upside and highlight to this work for me would be the suggestions given with regard to how we can stop corporations from getting away with the criminal acts that they do. Fisse and Braithwaite claim that it is absolutely necessary for a system to be created in which we can more accurately determine the liability of a corporation for an alleged crime and the same goes for vicarious liability. To this regard, they claim it is necessary for experimentation and empiricism to be conducted and performed to accurately observe and determine the results necessary for the law to be carried out to full effect.

2. Abhinandan Bassi - Corporate Criminal Liability: An analytical study with special reference to penal laws in India: This paper focuses highly on white collar crime in India by corporations both domestic and multinational. The high note is on whether or not the Indian Penal Code is accurately able and capable of dealing with issues regarding criminal corporate liability on a small scale and large scale level.

This paper discusses in detail, the Indian Income Tax Act, 1961, and how it indirectly acts as a reference point and guidelines for dealing with corporate fraud and determining corporate liabilities across the board, even on matters not even remotely related to income tax. It also elaborates on the importance and need for the penal laws to formally adopt the law in this matter so as to accommodate space for members of the judiciary to be able to interpret the income tax act or just to implement the same guidelines and standards put forward in the ITA into the penal law, so that it is more clear, concise and direct.

3. John Paul Angesso - An exploration of Corporate and Criminal Liability in International Law for aiding and abetting International Crimes in Africa: This paper focuses strongly on Australian and African penal law and their acceptability of corpporations and other artificial persons and their commissions of crimes and the liability faced by the same, and also the extent to which this goes. It also focuses

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strongly on the same with an international perspective, critiquing the International Criminal Court, and so on.

Many different models of corporate punishment and models of deciding liabilities were given in South Africa with a strong emphasis on the physical and mental elements during the commission of the wrongful criminal act to determine accurately whether or not a corporation will be vicariously liable. A strong emphasis is also given on criminal aid and abetting by organizations toward people and other organizations that are not directly involved with them, etc.

RESEARCH QUESTIONS

1. Whether the Indian penal system and/or other Indian legislation, in their current form, are able to effectively handle situations of vicarious liability and liability in general with regard to corporations and their employees.

2. How to solve the issue of Corporate Criminal Liability in case of Multi-national Corporations

RESEARCH OBJECTIVES

1. To clearly determine whether or not the Indian Penal system and/or other legislature are capable of determining matters of corporate criminal acts and determining the liability of corporations of the same, particularly with respect to cases of vicarious liability.

2. To better understand the situation of corporate criminal liability with vicarious liability on an international scale in the case of multinational corporations, and determining whether or not the current systems in place accurately preside over and can decide cases of corporate criminal acts and determining the liability of corporations of the same.

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*Note: In all discussions on the international level, corporations refers to multinational corporations unless stated otherwise

METHODOLOGY – Doctrinal Methodology

For my method of research, I have decided to go forward with the doctrinal methodology method. My focus on this research paper has been on reading and analysing journals, law reports and extracts to further improve my knowledge on the subject of corporate criminal liability and vicarious liability combined with corporate criminal liability, so as to better be able to understand the concepts that I have explained in my analysis.

A common challenge faced whilst using this methodology is that it focuses more on legal theory and not at all on the applicability and practicality of the concepts explained, but I digress as I believe the suggestions I have made in this research paper are true to the real world and their applicability is on par with the standards of current law, and in my opinion, is entirely possible.

In this research paper, I have put a strong emphasis on my research and learning that I have made. I have read a variety of different papers and law reviews alongside extracts from books and domestic and international legislation and case law to be able to write this paper and come to the conclusions that I have come to, and believe also that the research is on par with what is to be expected of a student of this fine institution.

WHETHER THE INDIAN PENAL SYSTEM, IN ITS CURRENT FORM, IS ABLE TO EFFECTIVELY HANDLE SITUATIONS OF VICARIOUS LIABILITY AND LIABILITY IN GENERAL WITH REGARD TO CORPORATIONS AND THEIR EMPLOYEES.

Under the law, everything and everyone is liable. For this matter, it is necessary first of all in all types of law, that there be a liability and then only can this be remedied. In the case of corporate criminal liability as well, it is important first of all to establish a criminal liability in the hands of ta corporation for the theories of corporate criminal liability to kick in.

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There are two major models of corporate criminal liability followed in India. These are:

I. Derivative model: In this model of corporate criminal liability, the liability of an organization is derived. It is derived from the employees of the organization or from any of the people the organization works with closely. The derivative model is further split in two.

A) Identification Doctrine: This doctrine aims to identify the key persons who act in the organization, ie the directors, officers (CEOs. CFOs. COOs, etc.) among others who play an integral role in the day to days of the company in the long run and are what keep the company floating, making all the big decisions. When found liable whilst acting within the scope of employment, the corporation is held liable.

B) Vicarious Liability: Vicarious liability is applicable in criminal as well as civil cases. Indian courts follow the example set by the west years ago when they stated corporations to be artificial persons and thus vicarious liability is applied in the same way even for corporate criminal liability.

*Identification doctrine can informally be said to be a part of vicarious liability, as they both in general have the same concept of holding the organization responsible for acts of employees done in the course of their employment.

II. Organizational Model: This model helps in defining the corporate liability of an organization in criminal cases. The larger issue at hand with regard to this specific model lies in proving mens rea for the organization. When an employee does a wrongful act, it has to be proven at least to a certain extent that the corporation did in fact approve of the wrongful act done by the employee

DERIVATIVE MODEL - VICARIOUS LIABILITY

It was given in United States v Phillip Morris USA, Inc1 that ‘Corporations may be held liable for the specific intent offenses based on the “knowledge and intent” of their employees.’

1 United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1118 (D.C.Cir. 2009).

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If mens rea and actus reus exists in a particular instance and the employee is acting on behalf of the organization, i.e. on the basis of orders or instructions given to them(within the scope of their employment), then the organization can be held liable with no personal criminal liability arising for the employee. Adding to this, it is also necessary that the employee must directly intend that the corporation derives some benefit from the act done.

A company cannot think and act on its own. The company and its mindset works through that of its employees.2 As discussed in the identification doctrine, it is through the officers and directors of the corporation that all the big decisions of the corporation are made. On the grassroots level, it is the staffed employees, those on standard weekly and monthly wages, that usually directly communicate with the customers, whilst representing the corporation. The mental states of the employees are directly attributed to the company, thus, when an employee behaves negatively to a customer, the negative behaviour is attributed directly to the company.

The corporations have a responsibility to make sure their employees, as a part of their organization are happy and well performing, as this ensures max satisfaction for all.

It was also given in Iridium India Telecom Ltd. V Motorola Inc.3 that a company is criminally responsible for the action of its employees when acting within the scope of employment. Iridium had brought forward a case of cheating in the delivery of a property under section 420 IPC4

Motorola in this case had full right to hold their employees liable within the scope of their organizations rules and regulations, however, under the eyes of the Supreme Court of India, Motorola themselves were liable. Motorola had tried to claim that being an artificial person, a suit cannot be brought forward to them, but this plea was rejected by the Supreme Court swiftly.

With regard to the identification doctrine, it was held by the Supreme Court that without a statutory exception, an employee, in this case, the director of the company cannot be held

2 Tesco Supermarkets LTD v Nattrass 1971 1 ALL ER 127 3 Iridium India Telecom Ltd. V Motorola Inc 1 (2010) 14 (ADDL) SCR 591. 4 Indian Penal Code, 1860

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The same was given in the case of S.M.S. Pharmaceuticals Ltd vs Neeta Bhalla & Anr6 on 20 February, 2007, in which it was said that a director of the company who committed a wrongful act during the course of employment, may not be held personally liable for commission of said offence, they would be held vicariously liable for the same.

Corporations, under Section 141 of the Negotiable instruments act, 18817 also have a defence against directors or officers who committed wrongful acts in the course of employment when the offence is under section 138 of the Negotiable instruments act. Every person at the time the offence was committed, was in charge and was responsible to the company for the conduct of the business of the company, shall be deemed to be guilty and may be punished accordingly, on the underlying condition that they were aware of the same.8 The same was given by the US Supreme Court that the person who has a responsible relationship to a corporate activity or to the day to days of a company and the same leads to criminal liability is personally liable for the same, as this indirectly amounts to criminal negligence.

The income tax act, 19619, is another such act that prescribes criminal punishment for tax offences committed by directors and officers of a company acting vicariously. The ITA has provisions for holding the company criminally liable as well as the directors, officers, etc. of the company.

Specifically, in section 278B, vicarious criminal liability is imposed directly on the directors and officers of a company. And as explained before, if an accused person can prove that at the time of the commission of the offence, they can prove their absence, they cannot be held liable for the same. Within the realms of Section 278B a person that is a part of the key management

5 Bharti Mittal v Central Bureau of Investigation, Criminal Appeal No 34 of 2015(arising out of special leave petition no. 2961 of 2013) 6 S.M.S. Pharmaceuticals Ltd vs Neeta Bhalla & Anr on 20 February, 2007 Appeal (crl.) 664 of 2002 7 Negotiable Instruments Act, 1881 8 Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. [2007 (2) SCALE 36] 9 Income Tax Act, 1961

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Under the Indian Companies Act, 2013, vicarious liability is automatically assumed of the key management staff, ie the directors as is given under section 2(60) of the companies act, whilst also criminalizing a variety of economic acts under the sun, holding both the corporation and making room for holding the upper management staff personally liable.

A lot of different categories and different acts can and are held to be liable under the Indian companies act, 2013.

One of these categories that are very surprising in nature, is the category of anyone responsible for ‘maintaining accounts and records’. This holds practically all administrative staff, accounting staff and also the directors and officers of the companies liable in case of wrongdoing in case of their presence. Two conditions have to be fulfilled however, these are:

i) The board must give the accused person the relevant responsibility and ii) The accused person must have consented to taking the responsibility.

ORGANIZATIONAL MODEL

It is frequently a question of deliberation whether or not is acceptable to punish an artificial person such as a corporation, as it is not capable of thought like a natural person. Corporate bodies have no thought process and do not think on their own.11 However, I digress, taking away the liability of corporations are subject to mass repercussions as this would infinitely make the corporations invincible. Even holding their employees accountable for the actions of the organization would not stop it, as employees are very easy to replace no matter what restrictions are put in place.12

The concept of corporate criminal liability is the only thing stopping corporations from using dirty tactics and violating all of the ethical notions put forward my mankind over the years.

10 K.K. Ahuja v V.K. Vora, MANU/SC/1111/2009. 11 Jeffrey D. Clement’s Corporations Are Not People: Why They Have More Rights Than You And What You Can Do About It 12 B Fisse and J Braithwaite Corporations, Crime and Accountability

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These corporations have great capital and labor power and, as stated earlier, if not watched carefully, can be directly or indirectly be made a host of criminal activity, if not regulated.

With regards to the organization model, The United States federal court system prefers the identification approach, which as mentioned in the introduction, was pioneered and developed by the English court system.

It was provided in United States v A & P Trucking Co13. that a corporation may be held criminally liable for the act of any of its agents who

[1] Commit a crime

[2] Within the scope of employment

[3] with the intent to benefit the corporation.

As previously mentioned, Indian courts for a long time, deliberated whether or not corporations can be held liable the same way as a natural person can, as being an artificial person they do not actually possess a mind. However, as explained, this view was changed in India Telecom Ltd v. Motorola Inc.14 and Others in October 2010 and also in Tesco Supermarkets LTD v Nattrass15

It is rather unfortunate, but many countries in the world still do not recognize that corporations or other such bodies that countries such as India, The US, Canada, etc. recognize as artificial persons, are capable of committing a crime. And thus, many a times, the corporation itself, which has its own money, with independent shareholders, etc. will not be held criminally liable on actions done collectively by its employees, or in certain cases where an act is done but cannot be traced back to certain employees or natural persons working with the organization, no criminal liability will be impeded on them as no natural person was found performing the act whilst working for/with the organization. In our next research objective, we will further explain, with an international perspective, how this can be improved.

HOW TO SOLVE THE ISSUE OF CORPORATE CRIMINAL LIABILITY IN CASE OF MULTI-NATIONAL CORPORATIONS

13 United States v. A & P Trucking Co., 358 U.S. 121, 124-27 (1958) 14 Iridium India Telecom Ltd. V Motorola Inc 1 (2010) 14 (ADDL) SCR 591. 15 Tesco Supermarkets LTD v Nattrass 1971 1 ALL ER 127

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On the 1st of July, 2002, the Rome Treaty was enacted on to establish the International criminal court for presiding on issues regarding crimes against humanity, war crimes, genocide, crimes of aggression and much more. By nature, the international criminal court presides over international crimes caused by natural persons and the Rome Statute does not actually acknowledge the jurisdiction of the ICC in presiding over the same crimes done by artificial persons. So, by nature, there is very little that can be done. Which brings us back to my question of research on how the issue of corporate criminal liability and the punishment of corporations on an international level can be brought on in the case of multinational corporations.

We read that in the proposal for the creation of the Rome treaty particularly in the official preparation works (travaux préparatoires du statut de rome) that it was proposed that the International Criminal Court also have jurisdiction to preside over and infringe liability on artificial persons, including corporations. The report created by the preparatory committee of 1996 show us that there was indeed a proposal providing for criminal responsibility for both natural persons and artificial persons (referred to as physical and juristic, in the report). It was explicitly given in said report of 1996 that: ‘The Court [International Criminal Court] shall be competent to take cognizance of the criminal responsibility of: (a) Physical persons; (b) Juristic persons, with the exception of States, when the crimes committed were committed on behalf of such juristic persons or by their agencies or representatives’ Section B refers to vicarious liability of corporations based on acts done by their employees in the course of their employment to the corporations. However, it is to be noted that though stated, it is implied, the same in similar matters previously explained in this paper, that employees acting together, doing individual tasks given to them by the organization, not having full mens rea of what the end goal of their collective tasks are, if lastly, the collective culmination of their act is one that is criminal in nature, the organization can be held liable.

It is important to understand why the panel decided to reject the proposal for the liability extended by the International Criminal Court toward artificial (juristic) persons was rejected in the first place. The following points explain methodically why it was so.

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1. Many countries on their own did not recognize corporations and artificial persons, and thus by default, were of the opinion that they could do no wrong. Only a few countries, mostly developed, The US, UK, Canada, Australia and a few others such as India considered corporations and other such bodies to be embodiments of the officers and directors of the corporations forming itself as an artificial body. And thus, corporations on their own could be held criminally liable.

2. No uniform approach existed toward determining whether or not a corporation or any artificial person was to be held criminally liable or not. The members of the Rome Conference were of the opinion that the methods used for deciding this was rather arbitrary.

3. The delegates did not have enough time to ponder over this issue, as it reached a level of complexity far too much that would’ve prolonged the creation of The Rome Statute and subsequently, the creation of the International Criminal Court.16

Excluding the third reason, the first two reasons to the omission of artificial persons, are fair ones. However, being the International Criminal Court, I’m of the opinion that they have a responsibility to find a way, through methodious research and deliberation, a way to fairly and properly be able to preside over artificial persons with regard to criminal activity on their behalf.

What we constantly forget is that some of these multinational corporations are worth trillions of dollars, they have countless activities and events going on all over the world, with regulation being an absolute necessity for ensuring their activities stay legal and benefit the people of the world, in all aspects.

However, with regard to vicarious liability, the International Criminal Court does have a system of dealing with issues. An employee acting in the course of employment,

16 Andrew Clapham ‘The Question of Jurisdiction under International Criminal Law over Juristic persons: Lessons from the Rome Conference on an International Criminal Court’

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committing a wrongful criminal act will lead to the corporation being vicariously liable for the actions of the employee.17

Regardless, we am of the opinion that the International criminal court, themselves have a responsibility to all countries and their people with regard to accurately and properly being able to preside over international criminal acts done by both people and organizations, including acts of war crimes, crimes against humanity, etc.

To achieve this, I believe the International Criminal Court need to do a few things. i) Create a universal approach to establishing criminal liability for corporations and their employees, acting both within and outside the course of employment. This can be done with the help of governments that already recognize criminal liability for organizations and their employees, separately and together. ii) Create a guideline system for other countries that do not recognize artificial persons as capable of committing criminal acts and being held liable for the same. iii) Creating a jurisdiction system that enables the criminal court to only preside over matters of utmost importance to the world on an international scale, with much more small scale matters being held domestically and at the same time giving the judiciary of different countries a guideline system for the same, but also giving them enough freedom to decide on their own whether or not they should be presiding over the same.

CONCLUSION

Throughout this research paper, my primary aim was to establish why it is important for corporations to be able to be held liable for their actions. In India, and in most other capable democratic countries, it is largely accepted that corporations are artificial persons that live through their employees, and as a result, are capable of committing criminal acts, and subsequently, the law has a responsibility to hold them accountable for the same. In India, I am of the opinion, that this is, for the large part, done rather well.

17 "Employer Liability for Employee Fraud: Apparent Authority or Respondent Superior?" South Dakota Law Review 47 (fall): 554–582.

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The Supreme Court, in the case of Iridium India Telecom Ltd. V Motorola Inc18, proved the same, by rejecting the plea that artificial persons are not capable of committing crimes.

The same cannot be said for other countries around the world, as there are still quite a few countries that do not recognize that corporations and other such artificial persons are capable of crime and can be held liable on their own. Vicarious liability as well in these countries, do not go to the fullest extent as it is, and most of the time, only really affects the employees. The International Criminal Court has a huge role in changing this for the better, and with their guidelines, corporate crime can be abolished, or at least corporate activity can be regulated to a better extent, preventing large scale corporate crimes from happening.

RECOMMENDATIONS

1. A uniform system be created for the procedural intricacies of deciding the liability of a corporation or artificial person. 2. A uniform system be created for the punishments that can be implemented on corporations that varies on the degrees of the wrongful criminal act committed. 3. Corporations be found guilty not just for committing a criminal act but also for abetting them. *For all, on both a domestic level in India and on an international level by the International Criminal Court.

REFERENCES & BIBLIOGRAPHY

Journals, Papers, Law Reviews, International Instruments, etc.  European Convention on Human Rights, 1950  Statute of the International Criminal Court (1996)  Statute of the International Criminal Court (1998)  United Nations Convention against Corruption (2003)  "Employer Liability for Employee Fraud: Apparent Authority or Respondent Superior?" South Dakota Law Review 47 (fall): 554–582

18 Iridium India Telecom Ltd. V Motorola Inc 1 (2010) 14 (ADDL) SCR 591

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 Andrew Clapham - The Question of Jurisdiction under International Criminal Law over Juristic persons: Lessons from the Rome Conference on an International Criminal Court  Jeffrey D. Clement - Corporations Are Not People: Why They Have More Rights Than You And What You Can Do About It  Brent Fisse and John Braithwaite - Corporations, Crime and Accountability  Abhinandan Bassi - Corporate Criminal Liability: An analytical study with special reference to penal laws in India – Rajiv Gandhi National University of Punjab Press 2016  Peterson Purvis Law Canada - Identification Theory: A Continuum of Personal Liability  John Paul Angesso - An exploration of Corporate and Criminal Liability in International Law for aiding and abetting International Crimes in Africa – University of Witwatersand

Domestic Case Law  Iridium India Telecom Ltd. V Motorola Inc 1 (2010) 14 (ADDL) SCR 591.  Bharti Mittal v Central Bureau of Investigation, Criminal Appeal No 34 of 2015(arising out of special leave petition no. 2961 of 2013)  S.M.S. Pharmaceuticals Ltd vs Neeta Bhalla & Anr on 20 February, 2007 Appeal (crl.) 664 of 2002  Saroj Kumar Poddar v. State (NCT of Delhi) and Anr. [2007 (2) SCALE 36]  K.K. Ahuja v V.K. Vora, MANU/SC/1111/2009.

International Case Law  United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1118 (D.C.Cir. 2009).  Tesco Supermarkets LTD v Nattrass 1971 1 ALL ER 127  United States v. A & P Trucking Co., 358 U.S. 121, 124-27 (1958)

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