Juvenile Delinquency Laws in India and Emerging Issues

Saumyata Panwar, Student, B.B.A. L.L.B.(Hons.), Batch of 2012-2017, Gujarat National Law University

A Critical Analysis on the Juvenile Justice (Care and Protection of Children) Act, 2000

‘Juvenile delinquency’ has occupied an important place in the discussions regarding criminal law in the country. The Juvenile Justice (Care and Protection of Children) Act, 2000 in India was enacted to ensure protection of the rights of juveniles and lays down provisions to be adhered to while dealing with a juvenile in conflict with law. For this purpose, the Act provides for several bodies to be set up across the country. The paper attempts to analyse the degree of implementation of this legal framework post a decade since its enactment. After the ‘Delhi gang-rape’ case the issue with respect to penances prescribed under the Act is much-debated. While a maximum period of imprisonment is laid down, there has been no attempt to grade the offences as per their nature or gravity. In light of the present scenario, does the established age of criminal responsibility justify leniency in punishment to a juvenile offender compared to that for an adult for the same crime? The paper attempts to answer this question especially with reference to cases involving heinous crimes.

International Provisions

In 1989, world leaders decided that children needed a special convention exclusively for them because they often need special care and protection that adults do not. Further, the leaders also wanted to ensure that the countries recognize that children also have human rights. Thus the General Assembly of the United Nations adopted the Convention on the Rights of the Child (CRC).

The Convention prescribes a set of standards to be adhered to by all State-parties in securing the best interests of the child on the principles of non-discrimination and non-exploitation. It sets a standard in legal and social services. Also, it emphasises on social reintegration of child victims without resorting to judicial proceedings to the extent possible. The Government of India ratified the CRC in the year 1992 agreeing to hold itself accountable for its actions before the international community.

In November 1985, the General Assembly adopted the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) which aims to further the well-being of juveniles and their families. It states that a person is most susceptible to deviant behaviour when he is a juvenile. Hence, juveniles require extra attention so that they do not take up a path of crime and delinquency. They should be humanely dealt in conflict with the law ((U.N. General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Res. 40/33, Sess. 40, A/RES/40/33, 3, (29/11/1985) available at https://www.ncjrs.gov/pdffiles1/Digitization/145271NCJRS.pdf last seen on 27/05/2014)). Judicial offenders should, moreover be treated impartially irrespective of race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status ((Ibid)).

Other resolutions dealing with this subject are: UN Rules for the Protection of Juveniles Deprived of their Liberty ((U.N. General Assembly, United Nations Rules for the Protection of Juveniles Deprived of their Liberty, Res. 45/113, Sess. 45, A/RES/45/113 (14/12/1990) available at http://www.crin.org/docs/UN_JJ_standards.doc  last seen on 21/04/2014)), UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) ((U.N. General Assembly, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), Res. 45/112, Sess. 45, A/RES/45/112 (14/12/1990) available at http://www.crin.org/docs/resources/publications/HRBAP/IHCRC/UnitedNationsGuidelinesforthePreventionofJuvenileDelinquency.pdf last seen on 21/04/2014)), Guidelines for Action on Children in the Criminal Justice System- Economic and Social ((Economic Social Council, Guidelines for Action on Children in the Criminal Justice System- Economic and Social, Res. 1997/30, Sess. 18,  E/RES/1997/30 (21/7/1997) available at http://www.un.org/en/pseataskforce/docs/guidelines_on_justice_in_matters_involving_child_victims_and.pdf last seen at 15/05/2014)), Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime- Economic and Social ((Economic Social Council, Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime- Economic and Social, Res. 2005/20, Sess. 14,  E/RES/2005/30 (22/7/2005) available at http://www.un.org/en/pseataskforce/docs/guidelines_on_justice_in_matters_involving_child_victims_and.pdf last seen at 15/05/2014)).

Position in india

The Constitution of India through several provisions grants important rights to children of the country. It also lays down duties for the State to ensure that their needs are met and rights safeguarded.

While Article 15(3) provides for special provisions to be made for children by the State, Article 39(e) states that the State shall direct its policy toward ensuring that the tender age of children is not abused.  Moreover, opportunities and facilities are to be provided to children so that they may develop in a healthy manner, in conditions of dignity and freedom, and protected against exploitation, moral and material abandonment ((Art. 39(f), the Constitution of India)). Free and compulsory education is desired to be provided to all children up to the age of fourteen ((Art. 45, the Constitution of India)).

The comprehensive Integrated Child Protection Scheme (ICPS) introduced in 2009-2010 brings together multiple schemes of the Ministry of Women and Child Development under one umbrella. Several existing child programmes are consolidated with improved norms for protecting children and preventing harm.

The first legislation dealing with children in conflict with law in our country was the Apprentices Act, 1850 binding over children under the age of 15 years committing petty offences as apprentices. The Reformatory Schools Act, 1897 subsequently provided that children up to the age of 15 years may be sent to reformatory cell. Then the Juvenile Justice Act, 1986 was enacted to introduce a uniform system of juvenile justice mechanism in the country. Under this Act, Section 2(a) defined the term juvenile as a “boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years.”

This was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000. As per this Act, a “juvenile” or “child” means a person who has not completed eighteenth year of age ((Section 2(k), Juvenile Justice (Care and Protection of Children) Act, 2000)). The relevant date for determining the age of the juvenile would be one on which the offence has been committed and not when he is produced in court ((Pratap Singh v. State of Jharkhand and Anr., AIR 2005 SC 2731)). The purpose of this Act is to ensure the protection of children who require care, keeping in mind their developmental needs. The legislation adopts an approach which strives to take measures in the best interests of the child during adjudication and disposition of cases. It deals with both- children requiring care and juveniles in conflict with law.

Rights of juveniles in conflict with law

Juveniles in conflict with law are those juveniles who are alleged to have committed an offence ((Section 2(l), Juvenile Justice (Care and Protection of Children) Act, 2000)). The Juvenile Justice (Care and Protection of Children) Act, 2000 confers several rights on juveniles in conflict with law in order to protect them.

The media is prohibited from disclosing the name, picture, address, school or any other particulars which may lead to the identification of the juvenile. However, if such disclosure is in interest of the juvenile, the authority holding the inquiry may permit so for genuine reasons ((Section 21, Juvenile Justice (Care and Protection of Children) Act, 2000)). This is in consonance with the right to fair and just trial of the child. Section 51 states that the report of the probation officer or social worker considered by the competent authority is to be treated as confidential and not to be disclosed to anyone except parents/ guardians that too when justice requires. His identity, privacy and innocence are to be respected at all costs. It is essential to uphold such a right of fair trial. This Section is also important as it prevents the consequences of labelling a child as a ‘criminal’.

Further, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. Thus, separate trials take place in cases where a juvenile is accused along with adults. This is also done in order to give special attention to the juvenile.

The Act punishes those who are in charge of children and are guilty of abandoning, assaulting or wilfully neglecting them along with those who employ children to beg, or offer them intoxicants. Exploitation of child employees is also punishable. When a juvenile is accused of committing an offence, an inquiry against him must be completed within a period of four months unless the Board requires more time on reasonable grounds.

If the inquiry once completed reveals that the juvenile is guilty of the crime, the Board may allow the juvenile to go home after advice or admonition; order the juvenile to be sent to a special home on certain conditions; direct the juvenile (above 14 years) or his parent to pay a fine; direct the juvenile to participate in group counselling and similar activities; perform community service; or release him on probation of good conduct and place him under the care of any parent, guardian or other fit person ((Section 15, Juvenile Justice (Care and Protection of Children) Act, 2000)).

An important provision in the Act is that no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security. This is because emphasis on punishment rather than prevention and rehabilitation is neither philosophically sound nor effective.

Bodies under the justice system

The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for several bodies to be set up across the country in order to fulfil its purpose of reformation and rehabilitation of the juvenile offenders. Juvenile Justice Boards are set up ((Section 4(1), Juvenile Justice (Care and Protection of Children) Act, 2000))in various districts by the State governments. Their purpose is to hold the inquiry in accordance with the provisions of the Act and make such order in relation to the juvenile as they deem fit ((Section 14, Juvenile Justice (Care and Protection of Children) Act, 2000)). These boards have the exclusive power to deal with such proceedings. In order to ensure effectiveness, no member of such a board must lack knowledge or training in child welfare and child psychology ((Section 4(3), Juvenile Justice (Care and Protection of Children) Act, 2000)).

During the pendency of trial, a juvenile in conflict of law is to temporarily reside in an Observation Home. This may be set up by the State government in collaboration with voluntary organisations in every district ((Section 8(1). Juvenile Justice (Care and Protection of Children) Act, 2000)). It provides for temporary reception of any juvenile in conflict with law during the pendency of any inquiry. Special homes are also to be set up by the State governments for reception and rehabilitation of a juvenile in conflict with law as per Section 9 of Act. At the end of financial year 2011-2012, about 733 juvenile justice homes in India had received grants under the Integrated Child Protection Scheme (ICPS] ((Asian Centre for Human Rights, India’s Hell Holes: Child Sexual Assault in Juvenile Justice Homes (March 2013) , http://www.scribd.com/doc/137150275/India-s-Hell-Holes-Child-Sexual-Assault-in-Juvenile-Justice-Homes)).

The Act also provides for setting up of Child Welfare Committees ((Section 29, Juvenile Justice (Care and Protection of Children) Act, 2000))and Children’s homes ((Section 34,  Juvenile Justice (Care and Protection of Children) Act, 2000))that shall take care of children in need of care and protection. Shelter homes are to be established ((Section 39, Juvenile Justice (Care and Protection of Children) Act, 2000))to function as drop-in-centres for the children in the need of urgent support. The main purpose of a shelter home is restoration of and protection to a child deprived of his family. Also, the State Government or local authority may create a fund ((Section 61, Juvenile Justice (Care and Protection of Children) Act, 2000))for the welfare and rehabilitation of the juvenile.

While such policies under the Act have a good intention, in reality they lack efficient implementation. Years after its introduction, many states have failed to incorporate the policies in their legislative apparatus or dispose the necessary measures to render the law efficacious ((F. Ferrara and V. Ferrara, The Children’s Prison: Street Children and India’s Juvenile Justice System, 9 (2005).)). The infrastructure of the observation homes is often sub-standard and lacks a hygienic atmosphere. The home often provides clothes and food of low quality ((S. Farooqui, Reforming the juvenile (homes) first, DNA, Bangalore (September 2, 2013), http://www.dnaindia.com/analysis/standpoint-reforming-the-juvenile-homes-first-1883447)). Another major problem is that the homes are mostly under-staffed and lack existence of trained counsellors and psychiatrists. This in turn obstructs the proper reformation of a child based on his education, behaviour and crime committed. It cannot be disputed that in the absence of good infrastructure and other basic facilities, the juveniles cannot be reformed psychologically.

It is abhorrent that a place where a juvenile needs most attention, he/she is being exploited not only mentally but physically. Astonishingly, sexual abuse is rampant at these places and thus it is justified to label them as “India’s hell holes ((Supra 18)).” Several cases of repeated rape, sodomy, sexual harassment by the staff- security guards, wardens, cooks, senior inmates etc. have been reported. Such offences have not only taken place in privately run juvenile homes by NGOs but also in government-run homes. Both lay and professional works emphasize the possible emotional consequences of child sex, including severe depression, psychosis, and suicide ((F. RUSH, BEST KEPT SECRET- SEXUAL ABUSE OF CHILDREN, 7 (1980).)). In such an environment, the victims are unable to protest and are also forced to remain silent for long periods without any aid.

Even the Integrated Child Protection Scheme facesadministrative problems- lack of updated data and regular reporting. Even though there is an urgent need to increase budget allocations, the ICPS faced a reduction by 100 crores this year ((HAQ: CENTRE FOR CHILD RIGHTS, BUDGET FOR CHILDREN 2013-14, A FIRST GLANCE, 6 (2013).)). In such a scenario, a robust child protection system cannot be built.

Sadly, most of the observation homes are in dilapidated conditions ((Pamposh Raina, Life in India’s Juvenile Homes, New York Times (August 1, 2013), http://india.blogs.nytimes.com/2013/08/01/life-in-indias-juvenile-homes/?_php=true&_type=blogs&_r=0)). Rule 63 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 mandates the Inspection Committees to “visit and oversee the conditions in the institutions” at least once in every three months to ensure safety, well-being and permanence of the institutions and look out for any incidence of violation of child rights, but such inspections seldom take place. On adding up all of the above, we can conclude that the condition of the justice system is pitiable.

Age of criminal responsibility

Children are qualitatively different from adults and for this reason, child and youth crime are alarming. As per the Beijing Rules, legal systems recognizing the concept of the age of criminal responsibility for juveniles, should not fix the beginning of that age at too low an age level. Emotional, mental and intellectual maturity must be born in mind while determining such age ((Supra 1, at 4)). It is important to fix such an age because in its absence, the notion of responsibility would hold no meaning. Owing to culture, history, tradition and other factors this age varies across countries.

In the U.S.A, the age to determine juvenility varies from state to state- while in most of the states it is 18 years, in few it is 16 or 17 years. In U.K, a child between the ages of 10 to 18 years becomes criminally responsible for his actions. He can be tried by the youth court or an adult court as per the severity of the offence committed.  In Canada, the Youth Criminal Justice Act governs the application of criminal and correctional law to those who are twelve years old or older, but younger than 18 at the time of committing the offence. Although trials take place in a Youth Court, a youth may be awarded an adult sentence for certain offences and in certain circumstances.

In September 2013, a 12-year-old girl was gang-raped by five of her friends in Assam. The ages of the accused range between 15 and 16 years. This is just one of the several cases which show that an increasing number of crimes are being committed by juveniles, especially between the ages of 15-18 and the crimes committed are not just petty in nature.

After the ‘Delhi gang-rape’ case, a debate cropped up whether the age of a juvenile should be lowered from the present 18 years. This was because while the other 5 convicted were sentenced to death penalty, the 17-year old convict was only sentenced for a term of 3 years. This is the maximum punishment that could be imposed as per the juvenile laws ((Section 15(1)(f), Juvenile Justice (Care and Protection of Children) Act, 2000)). In fact, he was only a couple of months short of attaining majority. Millions were infuriated and demanded for a stricter punishment for the juvenile for the heinous crime committed by him- rape of a woman inflicting injuries which ultimately led to her death.

Owing to such a scenario, outrage and concern follow. The question arises whether juvenility is a justified reason for lenient punishments especially when they crimes of heinous nature are committed. Is merely age the correct basis to determine one’s state of mind? Is it acceptable to let juveniles go scot-free for crimes committed by them only because of the benefit of falling younger by a couple of months?

Before answering this question, it is important to identify the reasons of such delinquent behaviour among juveniles. A disturbed life, poor role models or influential delinquent groups are a few. While not class-linked, self-reported delinquent behaviour is most prevalent among the lowest socio-economic groups ((C. A. Hartjen and S. Priyadarsini, Delinquency In India – A Comparative Analysis (1984), https://www.ncjrs.gov/App/publications/abstract.aspx?ID=93313)). Poverty can compel juveniles to resort to illegitimate means to achieve socially valued goals. Children are ‘hired’ by criminals to do jobs for them so that strict punishment is not inflicted, in some situations. Juvenile delinquency is a modern phenomenon that emerged in response to changes in larger society ((T. J. Bernard, Cycle Of Juvenile Justice (1992), https://www.ncjrs.gov/App/publications/abstract.aspx?ID=133564)). The theory of ‘social disorganisation’ suggests that instances of crime have increased due to the breakdown of institutions like family, school etc. When a child fails to associate himself to others, he is compelled to take actions which may or may not be rational.

A considerable section of the society now believes that the age of criminal responsibility should be lowered and strict punishments should be imposed on the delinquents. Age should not be the biggest defence for committing a crime. Such a section advocates that children today lose their innocence and mature earlier as compared to ancient times. They are more aware of the ramifications of their acts. They are exposed to the world and understand it better because of amalgamation of cultures, influence of media and an increasing overall social awareness.  The issue of reduction in the age of juveniles from 18 to 16 years, as it was in the Juvenile Justice Act of 1986, was also raised in the Lok Sabha on 19th March, 2013, during the discussion on the Criminal Law (Amendment) Bill, 2013, but was rejected by the House.

Such a realisation led to the moving of a petition in the case of Salil Bali v. Union of India & Anr to the Supreme Court of India contending that the age of criminal responsibility must be lowered ((AIR 2013 SC 3743)). It was urged that it is necessary for the provisions of Section 2(k), 2(l) and 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000, to be reconsidered in the light of the spurt in criminal offences being committed by persons within the range of 16 to 18 years.

It must be noted that the age of responsibility of understanding the consequences of one’s actions has been recognized as 12 years in the Indian Penal Code. The provisions of the Child Labour (Prohibition and Regulation) Act, 1986 also treat children up to the age of fourteen years differently from children between the ages of fourteen to eighteen, for the purposes of employment in hazardous industries. Hence, a conflict arises under the present juvenile justice system and criminal jurisprudence regarding the age of understanding. It was also contended in the above case that no protection must be granted to those accused less than 18 years of age in serious offences like rape and murder and that they must be tried under the normal law. Also, the investigating agency should be permitted to keep the record of such offenders to take preventive measures to enable them to detect repeat offenders and to bring them to justice.

However, the Supreme Court held that the age should not be hampered with and rejected the petition to lower the age. The Apex Court observed that the age had been decided taking into consideration the general trend of legislation, internationally and within the country as well. Such age is fixed on account of understanding of experts in child psychology and behavioural patterns which indicate that the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions. Mental growth is highly important in assessing the maturity of a person. Therefore, till such an age the children in conflict with law can be restored to society.

Author’s view

Keeping in mind the present situation, it can be said that the number of crimes committed by juveniles need to be checked. The crimes committed are even of a heinous nature insofar as juveniles are committing acts of murder and rape. Age must not be the sole criteria to award a lenient punishment to the offender. Section 376A and 376E of the Indian Penal Code have been inserted in the year 2013 and impose death penalty on those who are convicted for rape. In contrast to this, Section 15 of the Juvenile Justice (Care and Protection of Children) Act imposes only a sentence of 3 years. This period of maximum three years is laid down without any reference to the nature of crime committed. It is not justified to let perpetrators of such crimes get off with such leniency. No mercy should be bestowed on someone who does not show mercy to the victim. A correctional course is thus required to be undertaken in this regard.

The country cannot afford the misuse of the present legislation at the hands of the offenders. It is not only unfair to the victims but also creates an unsafe, chaotic environment. It is important to distinguish minor delinquents from “hard-core” type of criminals ((A. V. CICOUREL, THE SOCIAL ORGANIZATION OF JUVENILE JUSTICE, 120 (1995).)). A serious attempt is to be made to grade the nature of offences to suit the reformation contemplated by the Act so that it benefits the society. It seems rather unreasonable to impose the same punishment on juveniles in conflict with law, irrespective of the gravity of the offences committed by them. A petty theft cannot be compared with the offence of raping a woman that puts her into a vegetative state. Heinous crimes of rare nature are a class of their own and hence should not be considered akin to petty crimes. The issue regarding extent of punishment with regard to the nature of crime needs to be addressed in such a manner as would make the juvenile system more effective.

In light of the present laws, there is a need to amend the existing laws or bring in new legislations to address this issue. The age of criminal responsibility can be lowered as a whole. Offences can be classified on the basis of their nature in order to impose punishment accordingly. Alternatively, a provision can be made for exercise of discretion by the courts while awarding sentences when it comes to heinous crimes committed by juveniles on a case-to-case basis, in order to ensure deterrence.

Moreover, in order to reform the juvenile in conflict with law, the juvenile system as a whole needs to be reformed first. The ramshackle conditions of the observation homes and juvenile justice boards need to be addressed immediately. The nation must strive to provide education, health-care, sanitation and housing to every child. Families must instil moral values; core social institutions need to be strengthened and immediate intervention of child offenders needs to be undertaken ((R LOHRLR, D.P. FARRINGTON AND J.  JUSTICE,   NEVER TOO EARLY, NEVER TOO LATE: RISK FACTORS AND SUCCESSFUL INTERVENTIONS FOR SERIOUS AND VIOLENT JUVENILEOFFENDERS, 2 (1998).)). Another strategy must promote delinquency prevention, and identify and control the group of serious, violent, and chronic juvenile offenders ((J. C. Howell, Guide For Implementing The Comprehensive Strategy For Serious, Violent, And Chronic Juvenile Offenders, Office Of Juvenile Justice And Delinquency Prevention
US Dept Of Justice (1995).)).Only then will crimes gradually reduce. The juvenile justice system will prove beneficial only if the Juvenile Justice (Care and Protection of Children) Act, 2000 is implemented effectively and efficiently.

After all, the fact that a rape victim herself is affected for a life term is not in balance with the lenient punishment for the same imposed on a juvenile delinquent. Much needs to be done so that the letter of the law coincides with the spirit of law.

Criminal Law, Terrorism and Human Rights

Dr. N S Soman, ((B.Sc., D.S.S., LL.B (Kerala), LL.M, Ph.D (Cochin).))Associate Professor, School of Legal Studies, Cochin University of Science and Technology, Kochi-22, Kerala.

There are universally accepted norms for the Protection of human rights. International standards and norms for the protection of human rights are incorporated in the International Bill of Human Rights comprising of Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights. Efforts are also made in national level to protect basic rights of individuals in their confrontation with the state authorities. Recognition and protection of common law rights in U.K., elevation of these rights into the level of constitutional rights through a set of Bill of Rights as the case in U.S. and India are some of the notable instances.

Both in national as well as in the international scheme of protection of human rights there is room for the government to take steps to see that individual rights does not go against larger social interests. Inherent limitations of the rights themselves as well as the reasonable restrictions that could be imposed on the exercise of the recognized rights are instances of the power of the government to interfere in the area of guaranteed fundamental rights. Apart from this there could also be total negation of the guaranteed rights by the government when the situations are such that such extreme steps are required for the preservation of the national interest. International Human rights law also recognizes the need for such derogation from the obligations for the protection of human rights. This power is conceded to the national states on strict international supervision. Even in cases where it is permitted the derogation could be resorted only to the extent required to meet the emergency. Such derogation could be extended only to the shortest period required for tiding over the difficulty faced by the government. This paper is an attempt to study the emergency powers exercised by the executive under special legislations and the response of Indian Supreme Court towards these extraordinary measures. It is also attempted to examine how the international machinery responds to the government of India’s move in this direction.

National Security Act

Challenges to national security ((“National Security can be defined as part of the Government policy, having as its objective the creation of national and international conditions, favorable to the protection or extension of vital national values against existing and potential adversaries” .K.M.Mathur, Challenges to Police Human Rights and National Security, Kalpoz Publications, Delhi (2003) at p. 233.))prompt states to adopt special legislations, which grant extensive powers of arrest and detention as well as use of force. The National Security Act, 1980 was enacted to use in areas of armed conflict against those who are engaged in such conflict. However in several instances its provisions were resorted to by the governments to deal with ordinary criminals in relatively calm states and areas ((This was despite an assurance given by the Government of India to the United Nations Working Group on Enforced or Involuntary Disappearance in 1997 that the Act had only been implemented ‘in periods of crisis in order to protect the citizens against terrorism.’ Report of the Working Group on Enforced or Involuntary Disappearance, U.N.Doc.E/CN4/1997/34 at 36 as cited in Venkat Iyer, Dtate of Emergency, The Indian Experience, Butterworths India, New Delhi, (2000) at p. 217)). By this unintended use of the special legislation the government circumvents the obligation under the ordinary law to produce the arrestee before a magistrate within 24 hours. This gives the authorities ample time to subject the detainees to lengthy interrogation, including under torture, without the fear of judicial intervention ((This was the finding of an official commission of enquiry headed by a high court judge, C.S. Tiwana, J., which investigated the arrests. Amnesty International, India: The Need to Review Cses against 324 Sikhs Held for more than Four Years in Jodhpur Jails, Rajasthan, London, September, 1988, A1 Index: ASA 20/03/88 at 9-10 as cited in Venkat Iyer, State of Emergency, The Indian Experience, Butterworths India, New Delhi, (2000) at p. 217-218)).

Preventive Detention

India is the only country where preventive detention is resorted to in peacetime. Attempts to challenge the preventive detention scheme, was unsuccessful. In A.K. Gopalan ((A.I.R. 1950 S.C. 27))the court ruled out the possibility of reading into the constitution any concept of fairness or natural law elements and took a narrow view of the issue and allowed the positivistic doctrine to have its say in the matter. The position has changed in Maneka Gandhi ((A.I.R.1978 S.C. 597))decision. The newly found out ‘just, fair and reasonable’ procedure gave an opportunity to challenge the preventive detention law in A.K.Roy v. Union of India ((A.I.R. 1982 S.C. 710)). The Supreme Court upheld the Constitutional validity of the National Security Act.The principles of natural justice were resorted to by the petitioner to challengethe procedure laid down in sections 10 and 11 of the National Security Act, 1980. It was argued that the denial of the right to cross examine the detaining authority and the persons on whose statements the order of detention is founded is violative of natural justice and the procedure thereby becomes unfair. It was also argued that since the Act neither give the detenu the right to present oral and documentary evidence in rebuttal of the allegations made against him nor the right to be represented by a lawyer of his choice before the advisory board it is violative of constitutional rights. The Supreme Court did recognise the importance of natural justice principles, which constitute the core of just process. The court pointed out that the above-mentioned rights are essential to disprove the allegations made against a person and to establish the truth. But the court observed that there is no prescribed standard of reasonableness. That being so what kind of procedural rights should be made available to a person depends upon the proceeding in relation to which the rights are claimed. It is also made clear by the court that the question as to what kind of rights are available to the detenu in the proceedings before the advisory board has to be decided in the light of the constitutional provisions. Preventive detention being provided under the Constitution, the court observed, the statutory provisions to that extent do not offend the Constitution. In short the court refused to examine the justness or farness of the procedure adopted in preventive detention.

The court refused to accept the claim of right to cross-examine the witnesses in proceedings before the advisory boards. The rules of natural justice being one capable of fluidity and varying content the ambit of those rules must vary according to the context, the court observed. The elements of natural justice to be allowed in a particular instance have to be tailored to suit the nature of proceedings in relation to which the particular right is claimed as a component of natural justice. The question for consideration of the advisory board is not whether the detenu is guilty of any charge but whether there is sufficient cause for his detention, which is decided on subjective satisfaction of the detaining authority. The proceeding of the Advisory Board has therefore to be structured differently from the proceedings of judicial or quasi-judicial tribunals ((Id. at p. 749)). In such a context, the court observed, there is no relevance for the right of cross-examination ((Cross –examination may be necessary in proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. Cross –examination is a powerful weapon to expose the untruthfulness of such evidence. The detention is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt.)). Another reason pointed out by the court is the unwillingness of the witnesses to come forward and the impracticability of conceding the right of cross-examination to a detenu in such cases. There may also be cases in which the sources of information of detaining authority cannot be disclosed without detriment to public interest. In these circumstances it is not possible to give to he detenu the right of cross-examination of witnesses. However, it is open for the detenu to lead evidence in rebuttal. It is within the power of the advisory board to regulate its own procedure and limit the time within which the detenu must complete the evidence. This is to ensure that the board could complete the proceedings within a limited period.

The right to consult and defended by a legal practitioner of his choice is a guaranteed right for any person arrested and detained ((Constitution of India 1950, Article 22 (2).)). However this right is not conceded to a person arrested and detained under any law of preventive detention ((Id. Article 22 (3).)). In view of this, the court observed, it is difficult to hold that the detenu has the right of legal representation before the advisory board. Since the Constitution itself contemplates that such a right should not be made available to a detenu, its denial cannot be said to be ‘unfair, unjust or unreasonable’. Though he court stick on to the requirement under Article 21 that the procedure adopted to curtail liberty must be ‘fair, just and reasonable’ it is not ready to go to its logical conclusion. The court reasoned that when the Constitution itself provides a yardstick, it would be difficult to hold that lack of legal representation is unfair, unjust or unreasonable. A holding to the contrary ought to have possible had the constitution been silent on this matter. That choice was not open to the courts because of the express language of Article 22 (3) (b) read with Article 22 (1). ((Supra. n. 6. at p. 745))The court added that no party, neither the government nor the detaining authority, nor the detenu would have legal representation before the board. If the detaining authority or the government takes the aid of a legal practitioner before the board, the detenu must be allowed to have the same facility. If this were not done it would amount to a breach of Article 14. The court banned the practice of government officers appearing before the board to justify detention orders by pointing out that this amount to doing ‘indirectly’ what could not be done ‘directly’. These officers should also be regarded as legal practitioners, the court pointed out.  The court observed further that regard must be had to the substance and not the form. In Nandlal v. State of Punjab ((A.I.R 1981 S.C. 2041)), while denying the request for legal assistance by the detenu the board allowed legal representation to the detaining authority. The court held that this is an arbitrary action and vitiates the impugned order. The court clarified the position that though the detenu had no right to legal assistance in the proceedings before the board, the board was not precluded from allowing such assistance. This is more so when the board allowed legal representation to the state. Arbitrariness of procedure adopted by the advisory board would vitiate the order of preventive detention ((The court emphasized that the board’s procedure must be just and fair to both the parties. The court went on to suggest that Parliament should provide for legal representation before the advisory board in the law.)).

International response

Section. 8(2) of NSA allows the authorities to keep the grounds of arrest secret from the detainee, and s. 11 provides a period of up to seven weeks for the review of detentions by an Advisory Board. Even where the grounds of arrest are given, their communication to the detainee may take up to five days in normal circumstances, up to ten days in ‘exceptional’ circumstances. These provisions in the National Security Act was found to be incompatible with art 9 of the Covenant which requires that any arrested person be informed of the reasons for his arrest ‘promptly’ ((ICCPR Article 9 (2). Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.))and be given an opportunity to take proceedings before a court so that it is be able to decide ‘without delay’ on the lawfulness of the detention ((Id. Article 9  (4). Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful)). These periods ‘are very considerably longer than would be compatible with art 9(4) of the Covenant’ ((U.N.Doc.CCPR/C/SR.1041, para 62. Professor Higgins drew the attention of the Attorney General of India to the fact that the United Kingdom, which had legislation that provided for administrative detention for the much smaller period of up to seven days, found it necessary to enter a derogation under art 4 of the Covenant. This criticism was repeated in 1997 by another member of the Committee, Mr. Fausto Pocar, who said that ‘a five-day period for informing detainees of the grounds for their detention and a three-week period for bringing them before the Advisory Board [are] incompatible with art 9, para 3 of the Covenant’-U.N.Doc.CCPR/C/SR.1604, para 31)).

The Committee was, concerned over the inordinately long period for which a person could be kept in preventive detention under the Act ((The period is 12 months under NSA.)). This was pointed out as against the ‘principle of proportionality’ ((U.N.Doc.CCPR/C/SR.1603,para 76 (remarks of Mr. David Kretzmer); see also, U.N.Doc CCPR/C/SR.1064, para 16 (remarks of Mr. Eckart Klein).)). This aspect of the law was pointed out as contrary to art 14(3) of the Covenant ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).)).

The Committee has also expressed the view that preventive detention being a restriction of liberty imposed as a response to the conduct of the individual concerned, ‘the decision as to continued detention must be considered as a determination falling within the meaning of Article14, para 1 ((Supra n. 14 Article14 (1). All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.)), of the Covenant’. That being so ‘the question of continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with that article’. ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).))The Committee was not persuaded that the Advisory Boards as constituted at present met that standard. It was pointed out that the ‘members of the Advisory Board were appointed by the executive, which would mean that they could also be dismissed by the executive’. This was pointed out, as a provision appeared to contravene a detainee’s right under art 14 ((Remarks made by Mr. Fausto Pocar during the examination of India’s third periodic report, U.N.Doc.CCPR/C/79/Add.81,para 24.)). The Committee rejected the government of India’s argument that art 14 did not apply to preventive detention because criminal proceedings proper had not begun at that stage. It was pointed out that though that may be true in case of Indian domestic law, but care should be taken to avoid too literal an interpretation of the expression “determination of any criminal charge” in [art 14 (1)] of the Covenant’. ((U.N.Doc.CCPR/C/SR.1606, para 41 (remarks of Mr.David Kretzmer).))Furthermore, the Committee has expressed concern over the prolonged failure of the Government of India to bring into force s. 3 of the Constitution (Fourty-fourth Amendment) Act 1978 which introduced certain safeguards for persons subject to preventive detention.

Thus, the Human Rights Committee raised serious issues of concern, on the compatibility of the security legislation with India’s obligations under the Covenant. They referred to the reservation concerning art 22 of the Indian Constitution, which provided for preventive detention without the legal safeguards embodied in art 9 of the Covenant. By introducing such sweeping reservations, the Government of India had tried to circumvent the need to enter formal derogations under art 4. This strategy is adopted whenever the Government failed to give full effect to the Covenant’s provisions ((U.N.Doc.CCPR/C/SR.1042, para 7 at 2)). The reservations made by India were pointed out as ‘incompatible with the object and purpose of the treaty’ ((U.N. Doc. CCPR/C/SR.1604 dated 7 November 1997, Para 34 (Comment of Mr. Prado Vallejo).))a course of action which member-states were expressly forbidden to adopt ((General Comment No.24 of the Human Rights Committee, adopted on 2 November 1994, U.N.Doc.E/1995/49.)). The Committee has repeatedly called upon India to review its reservations with a view to withdrawn them ((U.N. Docs. CCPR/C/SE.1039, para 24; CCPR/C/SR 1042, paras 3, 7, 19, 21 and 28 ; CCPR/C/79/Add.81,para 14.)).

Special Emergency Legislations

Special legislations purported to be enacted to use in unusual circumstances incorporate provisions in variance from the ordinary criminal procedure. It establishes special courts with power to sit anywhere including in camera. It can also keep identity and addresses of witnesses’ secret ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 12(2) The Committee noted the wide divergence of the Act from the fair trial guarantees contained in art 14 of the Covenant. Referring to the secrecy provisions in TADA, it was observed thus: Witnesses could keep their identity and address secret, the court [could] determine where it would hold its hearings and the decisions would not be published. My question is how can one reconcile such provisions with the Covenant, particularly Art 14, since these courts dealing with terrorist activities may pass death sentences?[1][Remarks of Mrs. Chanet, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11- summarised in U.N.Doc.CCPR/C/Sr.1041, para 67])). It incorporated provision, which authorized detention in police custody up to 30 days ((Terrorist Affected Areas (Special Courts) Act 1984, s. 15 (2).))or even 60 days ((Terrorist and Disruptive Activities (Prevention) Act 1985, s.17 (2) (b).)), where the normal rule limits it to 15 days ((The Code of Criminal Procedure, 1973 s. 167 (2) (a).)). An accused could be kept in judicial custody pending investigation up to one year ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 15(2).)). The Act empowered the executive Magistrates to examine and remand accused persons ((Terrorist and Disruptive Activities (Prevention) Act 1985, s. 20 (2) and (3).)). They can record statements and confessions ((Ibid.)). Bail made very difficult by requiring hearing the Public Prosecutor before issuing an order on the bail application of the accused ((The Terrorist Affected Areas (Special Courts) Act, 1984 s. 15(6).)). The confessions made to the police officer made admissible in trial ((Terrorist and Disruptive Activities (Prevention) Act 1985, s.15.)). It also incorporated presumption of guilt in certain cases ((It is provided that a presumption of guilt is to be drawn in cases where arms and explosives are recovered from the possession of the accused or his finger prints are seen in the scene of crime or his co-accused made a confession or the accused himself made a confession to any person other than a police officer. [This aspect of TADA was found by the Human Rights Committee as incompatible with art 14 of the ICCPR. [Section 21, TADA 1987] This provision was characterized as ‘completely unacceptable’. [Remarks of Mr. Aguilar, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11-])). The above-mentioned special provisions, which are in variation from the general law of the land, were found to be in tune with the Constitutional Guarantee of Fundamental Rights ((Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569[the grounds included: Parliament’s lack of competence in enacting the Act, having regard to the fact that ‘law and order’ was a state subject and not a federal subject; the vagueness of certain terms used in the Act, eg. ‘abetment’ of terrorism; the Act overlap with ordinary criminal law and the possible discrimination this may led to in the launching of prosecutions; the extreme harshness of some of the Act’s provisions, eg. The presumption of guilt when a person is found with or near a cache of arms and ammunition; the Acts breach of well-recognised fair-trial norms, eg. The power of designated courts to hold trial’s in camera and keep the identity of witness secret; the Act’s contravention of the constitutional doctrine of division of powers, eg. By allowing executive magistrate to perform judicial tasks; and the Act’s disregard of the principles of natural justice, eg. By the absence of a requirement that an accused person be heard before his case is transferred from a designated court in one state to that in another. The petitioner also raised the question as to whether some of the curtailments of fundamental rights and freedoms which proceeding under the Act entailed could be justified in the absence of a formal proclamation of emergency.])). The court rejected most of the challenges and ruled that the Act was, largely in conformity with the constitutional guarantees of individual liberty, equality and procedural fairness. In particular, the court held that it was within the competence of Parliament to treat terrorist suspects different from the suspected of ordinary crime noting that:

Everyday, there are jarring pieces of information through electronic and print media that many innocent, defenseless people particularly [the] poor, politicians, statesmen, government officials, police officials, army personnel…have been mercilessly gunned down. No one can deny these stark facts and naked truth by adopting an ostrich-like attitude completely ignoring the impending danger ((Id. at pp. 621-22.)).

 Of course they did point out some areas, which require reconsideration to make the law fairer. The court suggested to constitute Committees to carry out periodic reviews to ensure that no area continue to be designated as ‘terrorists affected areas’ for longer than is strictly required ((Id at p. 711 para362. [The Human Rights Committee has also questioned the unduly long periods for which declarations of ‘disturbed areas’ have been in force, and noted that the terms of the Act allowed for such declarations to run indefinitely without any review of the factual situation which gave rise to them. This was clearly contrary to art 4 of the Covenant, which required all exceptional measures derogating from states-parties’ obligations under the Covenant to be of a strictly temporary nature.[The Human Rights Committee, in its General Comment No.5, has expressed the view that: measures taken under art 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that in time of emergency the protection of human rights become all the more important, particularly those rights from which no derogation can be made.])). The court also emphasized the need to disclose the identity, names and addresses of witnesses appearing in special courts before the commencement of the trial, unless there are weighty reasons for concealment of this information ((Id. at p. 689 para 290)).

It is to be noted that the court is not unaware of the misuses of the law by the police. The court observed thus:

We have come across cases wherein the prosecution unjustifiably invokes provisions of the TADA with an oblique motive of depriving the accused person from getting bail and in some cases when the courts are inclined to grant bail in cases registered under the ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of TADA in cases, the facts of which do not warrant it, is nothing but sheer misuse of the Act by the police ((Id.  at p. 707 para 352.[ Members of the Committee also assailed the indiscriminate application of the Act. Professor Higgins, for instance, deprecated the practice whereby TADA has been used in states such as Gujarat to tackle ordinary crime. She found this ‘disturbing’, because it detracted from the government’s own self-proclaimed policy of enacting the law to fight terrorism and As with the other special security legislation, the Committee was concerned that TADA had been used without a proper derogation being filed under art 4 of the ICCPR, even though it derogated from several of the Covenant’s rights. Emphasizing that any such derogation had to be justified by reference to the terms of that article, members doubted if the Act met the ‘strictly required’ test laid down therein. [Remarks of Professor Higgins, U.N.Doc.CCPR/C/SR.1042, para 14.] They believed that TADA, along with the Armed Forces (Special Powers) Act, effectively established ‘a continuing state of emergency’ without one being declared as such and without it being subjected to any time limit.[U.N.Doc.CCPR/C/SR.1030, para 42 (remarks of Mr. Agilar).][Remarks of Mr. Aguilar, cited in Amnesty International, India: Examination of the Second periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at 11- See also, U.N.Doc.CCPR/C/SR.1041, para 63.])).

However, the court seems to have influenced by the need to resort to stringent provisions to combat terrorism even at the cost of denial of procedural fairness to the persons caught in the web of criminal law. Thus, it could be seen that the constitutional scheme of protection of fundamental rights does not prevent the legislature and the executive from adopting extraordinary measures. This position is not in tune with what the International Human Rights jurisprudence require.

Torture is universally disapproved. Right against torture is a non-derogable right. And all the advanced legal systems provides for exclusion of confessions obtained through coercion and torture. It is also to be noted that exclusion of evidence obtained through such violations also reduce the possible abuse of the power by the police authorities considerably. Indian law requires that an arrested person have to be produced before the magistrate within 24 hours of his arrest ((Supra, n.32 s. 57)). Prolonged detention in police custody is to be adopted only if the magistrate authorized it ((Id. s. 167 (2) (a).)). Again in no case the magistrate can authorize detention in police custody for more than 15 days ((Ibid.)). It is also provided that a confession made to a police officer is inadmissible ((Indian Evidence Act, 1872 s. 25)). All these requirements under the general procedural law have been tilted under the special emergency law adopted by the Parliament. Now it is possible for the police to extract confessions by using the unusual powers. For remanding a person into police custody it does not require the intervention of a judicial officer. It is sufficient if an executive magistrate authorizes it. The executive magistrate could record confessions. Moreover the confessions given to a police officer could be proved before the court. Coupled with these relaxations of the procedures the adverse presumption of guilt, which the court could draw, adds to the peril of the accused. All these factors create a situation wherein the procedural safeguards against possible abuse of power by the police, available under the normal procedural law, no longer available for a person caught under the special legislations. This makes the position of the accused person precarious and is liable to compromise in his liberty.

Under the international human rights law deviation from the basic obligations created therein is possible in specified cases. For example Article 4 of the ICCPR ((Supra n. 14  Article 4 (1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. (2) No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. (3)  Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.))provides for derogation. Derogation can be exercised in case of public emergency, which threatens the life of the nation. It is required that the existence of such an emergency shall be officially proclaimed. When these conditions are satisfied the state parties could resort to measures derogating from their obligations under ICCPR. This derogation shall only be to the extent strictly required by the exigencies of the situation. It is provided further thatthe measures so adopted under the power of derogation shall not be against any other international obligations. Again such a measure shall not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Any state which avails the right of derogation is duty bound to inform other state parties through the Secretary-General of the United Nations. This notification shall contain the provisions from which the state has derogated as well as the reasons for the same. Termination of the derogation shall also be notified likewise.

In this context it is to be noted that the actions of the Government of India is criticized as incompatible with the requirements under the international human rights obligations. It was pointed out that the laws resorted to by the Government of India, infringed a large number of rights guaranteed by the ICCPR. The Government of India resorted to this unusual emergency measures, which are incompatible with the ICCPR, without entering formal derogations under art 4 of the Covenant ((It raised this issue as far back as 1984 during its examination of India’s first periodic report, but received no satisfactory response from the Government which merely insisted that ‘the rights specified in art 4 from which no derogation was allowed were fully preserved under the Indian Constitution even during emergency’-see, U.N. Doc.CCPR/C/SR.493, para 20, and CCPR/C/SR.498,para 8)). The Human Rights Committee has expressed deep concern over this practice. It has been repeatedly pointed out that special security legislation ((The National Security Act, the Armed Forces (Special Powers) Act and the Terrorist and Disruptive Activities (Prevention) Act))contained provisions, which effectively derogated from the rights contained in arts 6 ((Supra n. 14  Article 6: 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.)), 9 ((IdArticle 9: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation))and 14 ((IdArticle 14: 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.))of the Covenant ((U.N. Doc.CCPR/C/SR.1041, para 61-63 (remarks of Prof Higgins); ibid para 76 (remarks of Mr.El-Shafei); U.N.Doc.CCPR/C/SR.1042,para 16 (remarks of Mr.Aguilar).)). This practice of the Government of India resulted in a situation of a continuing state of emergency without it being officially proclaimed as such ((U.N.Doc.CCPR/C/SR.1039, para 42 (remarks of Mr. Aguilar).)). It was aired the concern whether the special laws enacted by India met with the test of ‘strict requirement’ laid down in Art. 4 ((U.N.Doc.CCPR/C/SR.1042, para 14. [. For the text of Article 4 see supra. n.48])). The Government of India tried to justify the practice by pointing out that the special laws are enforced in some regions only and not through out India. The Human Rights Committee rejecting this justification observed that ‘they are still derogations of rights under the Covenant and would require notification to [the Committee]’ ((Remarks of Prof Higgins, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Committee, London, March 1993. AI Index: ASA20/05/93 at 7)). The special law has been seen to contravene the guarantee of the right to life contained in art 6 of the Covenant. The existing practice, the Committee pointed out, led to ‘de facto declaration of emergency which were not in line with the Covenant’s provisions’ ((U.N.Doc.CCPR/C/SR.1603, para 73 (remarks of Mr. David Kretzmer).)).

The Constitution of India does not provide for any non-derogable rights in par with the requirements of article 4 of the Covenant ((U.N.Doc.CCPR/C/SR.493 (remarks of Sir Vincent Evans during the Committee’ examination of India’s first periodic report).)). Committee has questioned the rationale of this constitutional position ((Except the right to life and personal liberty (art 21) and the prohibition against retroactive legislation (Art 20).)). The provisions in the Constitution of India, allows automatic suspension of various fundamental rights during emergencies. The Committee wondered whether there existed any legal mechanism to ensure the proportionality principle implicit in the Covenant ((U.N.Doc.CCPR/C/SR. 494, para 7 (remarks of Mr.Christian Tomuschat). The Attorney General of India did not make any direct response to this query.)).

Armed Forces (Special Powers) Act

The Armed Forces (Special Powers) Act empowered the civil authorities to resort to the help of Army to repress civil disturbances from the part of militants. As such army personnel are deployed in specified areas to resort to drastic powers to bring the ‘disturbed areas’ under control and bring them back to normalcy. However in practice the powers seen to work against the normal administrative system resulting in situation wherein the civil authorities are made helpless and powerless and the Army was running a parallel government. In this context the following observation is relevant.

“The civil law has, unfortunately, ceased to exist in Senapati District in Manipur due to the excesses committed by the Assam Rifles with complete disregard shown to civil administration. The Assam Rifles are running [a] parallel administration in the area. The Deputy Commissioner and Superintendent of Police were wrongly confined, humiliated and prevented from discharging their official duties by the Security Forces ((Cited in Amnesty International, India: ‘Operation Bluebird’-A Case Study of Torture and Extra Judicial Execution in Manipur, London, October, 1990 AI Index: ASA 20/27/90 at pp. 60-61 as quoted in Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 250.)).”

The Joint Secretary for Home who, after a visit to the area along with the Chief Minister of the state, wrote as follows endorsed this complaint:

“The Assam Rifles authorities have been behaving with the civil administration in an extremely contemptuous manner and treat virtually every civil functionary as anti-national. This has led to a virtual collapse of civil administration in the area as the government official[s] visiting the area is scared of torture/harassment at the hands of [the] Assam Rifles ((Cited in Amnesty International, India: ‘Operation Bluebird’-A Case Study of Torture and Extra Judicial Execution in Manipur, London, October, 1990 AI Index: ASA 20/27/90 at p.61 as quoted in Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 251.)).”

The constitutional validity of The Armed Forces (Special Powers) Act was challenged in Naga People’s Movement of Human Rights v. Union of India (([1998] 2 S.C..C. 109)). The Supreme Court rejected the challenge and held it to be constitutionally valid. Section 3 of the Act, authorized the government to declare an area as ‘disturbed area’. This provision was challenged before the Supreme Court. It was argued that the provision is vague and fails to provide any guidelines in identifying an area as ‘disturbed area’. The court rejected the argument and held that the requirement that there must exist a grave situation of law and order, which warranted the use of armed forces in aid of the civil power, was sufficient guidance ((Id. at p. 140)). However the court took care to read into the statutory scheme an implied duty on the government to review periodically the gravity of any situation, which gives rise to declaration of ‘disturbed area’. The court further held that such reviews must take place at least once in every six months. The court further added that even in cases where the government finds it necessary to continue a declaration, it is duty bound to look at the feasibility of reducing its geographical extent ((Id. at p. 141.)).

Though it was attempted to challenge the provisions of the Act as arbitrary since it conferred extensive powers (including the power to use lethal force) on relatively low ranking non-commissioned officers, the court refused to accept the argument. Such officers, said the court, usually had considerable status and experience and could be trusted with important powers ((Id. at p. 143-144.)). The court also rejected as untenable the argument that the power to open fire (even to the causing of death) conferred by the Act was unreasonable and arbitrary. The court pointed out that these powers are conferred with sufficient safeguards. In order to exercise the powers certain conditions are to be satisfied. Firstly there should exist a prohibitory order at the time. Secondly the circumstances should be such that opening of fire is required to maintain public order and lastly, due warning had been given for the intended action ((Id. at p. 145)). The Act requires that a person arrested by the armed forces is to be handed over to the nearest police station ‘with the least possible delay’. The court construed the provision to mean that every such person would have to be taken to the nearest police station soon enough as to enable him or her to be produced before a magistrate within 24 hours of arrest, as required by Art. 22 of the Constitution ((Id. at p. 146)). It was also ruled by the court that there is a duty to hand over any property or arms, ammunition or explosive substances seized by the armed forces to the nearest police station ‘with the least possible delay’. This, the court said, is implicit in the Act. The reason for such a reading is that such property or material would be required to be tendered in evidence in any criminal proceedings that may follow ((Id. at p. 147)). According to section 6 of the Act prior sanction of the government is required to initiate legal proceedings against any member of the armed forces acting under the Act. This was challenged as discriminatory and arbitrary. It was argued that the provision conferred arbitrary power to government since the Act does not provide for any guidelines in exercising the power. The court rejected the plea and pointed out that such a distinction had already existed under ordinary law, and this had been held to be lawful by previous judgment of the court ((Id. at p. 150 The reference here is s.197 of Cr.P.C and the decision in Matagog Dubey v. H.C.Bhari, (1955) 2 S.C.R. 925.)). However the court took care to specify that any order of the government granting or refusing sanction must be accompanied by reasons ((Id. at p. 150)).

The argument that the Act had been abused was not found favor with the court as a relevant factor in deciding the constitutional validity of the Act. The court accepted the government’s statement that members of the armed forces had been issued with detailed instructions by the army headquarters in the form of ‘dos and don’ts’ concerning the Act, and that violations of the instructions were made punishable under the Army Act. The court stressed the binding nature of the instructions and emphasized the need for the government to punish those found infringing them ((Id. at p. 150-151.)). The court also directed the government to incorporate in the instructions the various safeguards which had been laid down in relation to the use of the Act:

“In order that the people feel assured that there is an effective check against misuse or abuse of powers by the members of the armed forces, it is necessary that a complaint containing an allegation about misuse or abuse of the powers conferred by the Act should be thoroughly inquired into and, if it is found that there is substance in the allegations, the victim should be suitably compensated by the state and the requisite sanction under s.6 of the Act should be granted for institution of prosecution and/or a civil suit or other proceedings against the person/persons responsible for such violation ((Id. at p. 152)).

The Court limited its power of review to the determination of the relevance of the material tendered by the government in support of its decision to invoke such laws ((Venkat Iyer, State of Emergency The Indian Experience, Butterworths India, New Delhi (2000) at p. 255)). It was ruled by the court that it could not independently assess the sufficiency of the material placed by the government for invoking the provisions of the Armed Forces (Special Powers) Act ((Ibid.)).

International response

The sweeping powers granted by Armed Forces (Special Powers) Act to the armed forces were a matter of concern for many members of the Human Rights Committee. These powers, they believe, were open to abuse. According to the Members of the Committee these powers were ((U.N.Doc.CCPR/C/SR.1040, para 55 (remarks of Mr. Amos Wako).))‘too broad’ and went beyond the Committee’s General Comment on art 6 of the Covenant ((General Comment 6 on art 6 reads in part: The protection against arbitrary deprivation of life…is of paramount importance. The Committee considers that state-parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the state is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.)), as well as the Commentary to art 3 of the Code of Conduct for Law Enforcement Officials ((Adopted by the UN General Assembly on 17 December 1979 (Res.34/169). The Commentary on art 3 of the Code reads in part: (a) This provisions emphasises that he use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorised to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected ogffenders, no force going beyond that may be used… (c) …The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain and apprehend the suspected offender…)). One member highlighted the dangers of the width. The Act empowered the soldiers to shoot to kill anyone acting in contravention of a law prohibiting the assembly of five or more persons. Since the violation of the prohibition is not qualified it can even take in assemblies of person joining together for harmless purposes such as marriage or other ceremonies, which has nothing to do with the keeping of law and order. It was pointed out by way of criticism that the wording here is so broad that it could cover lawful exercise of basic liberties ((Remarks of Mr. Rajsoomer Lallah, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Committee, London, March 1993, AI Index: ASA 20/05/93 at9. To this, the Attorney General of India replied that the use of firearms was only authorised to break up assemblies, which had been declared illegal under an order by a magistrate, but he provided no legal authority for this.)).’

The Committee has expressed  its concern about the provision, which confers immunity on members of the armed forces from prosecution. It was pointed out as one which ran counter to the terms of art 2[3] ((This article requires states-parties to ensure that an effective remedy is provided to anyone whose rights had been violated ‘notwithstanding that the violation has been committed by persons acting in an official capacity.’))of the Covenant. It was pointed out that the phrase ‘acts purported to be done under the Act’ could justify any officer who makes a plea that he was under the notion that he was performing his duty while by killing a person. It was pointed out that such a phrase is highly dangerous when one is dealing with right to life ((Remarks of Mr. Rajsoomer Lallah, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Commottee,  London, March 1993, AI Index: ASA 20/05/93 at 9)).The Committee noted with disapproval the unduly long periods for which declarations of ‘disturbed areas’ have been in force. It was observed by the Committee that the terms of the Act allowed for such declarations to run indefinitely without any review of the factual situation, which gave rise to them ((U.N.Doc.CCPR/C/SR.1041,para 77 (remarks of Mr. Omran El-Shafei).)). This position runs counter to the requirement under Article 4 of the ICCPR which required all exceptional measures derogating from states-parties’ obligations under the Covenant to be of a strictly temporary nature ((The Human Rights Committee, in its General Comment No.5, has expressed the view that: measures taken under art 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that in time of emergency the protection of human rights become all the more important, particularly those rights from which no derogation can be made.)). It also expressed doubt as to whether the Armed Forces (Special Powers) Act could be justified under art 4 of the Covenant as a law that was ‘strictly required by the exigencies of the situation.’ The Government tried to justify the Act by pointing out that the provisions authorizing use of firearms were rarely used. But it was pointed out that if that is the case these provisions cannot be considered as “strictly required by the exigencies of the situation” and it could be better to get rid of them ((Remarks of Professor Higgins, cited in Amnesty International, India: Examination of the Second Periodic Report by the Human Rights Commottee,  London, March 1993, AI Index: ASA 20/05/93 at 10)).

CONCLUSION

Protection of societal interest even at the cost of denial or restriction on basic individual rights are the norm accepted both in national legal systems as well as international human rights jurisprudence. International Human rights law recognizes the need for such derogation from the obligations created under ICCPR for the protection of human rights, though under strict international supervision. This is visualized as an emergency power to be resorted to temporarily and to the extent require meeting the emergency. Such an emergency measures shall last for the shortest period required for tiding over the difficulty faced by the government. The National Security Act, 1980 that provides for preventive detention in peacetime, is in variance with the international human rights norm that insists for declared emergency and public derogation from the obligations created by ICCPR as a prerequisite for exercise of such powers. Indian Supreme Court refused to look into the ‘fairness, justness and reasonableness’ of the preventive detention law. It justified the law of preventive detention on the ground that the Constitution provided for it. The court reasoned that when the Constitution itself provides a yardstick, it would be difficult to hold that lack of legal representation as ‘unfair, unjust or unreasonable’. However the court conceded a limited right to be represented by lawyer in cases where the government avails such a right. The Human Rights Committee observed that the provisions in the National Security Act is incompatible with art 9 of the Covenant which requires that any arrested person be informed of the reasons for his arrest ‘promptly’ and be given an opportunity to take proceedings before a court so that it is be able to decide ‘without delay’ on the lawfulness of the detention. The period for which a person could be detained without the opportunity of examining the legality of such detention was pointed out by the Committee as ‘…very considerably longer than would be compatible with art 9(4) of the Covenant’. The Committee was, concerned over the inordinately long period for which a person could be kept in preventive detention under the Act. This was pointed out as against the ‘principle of proportionality’. This aspect of the law was pointed out as contrary to art 14(3) of the Covenant.

‘The question of continued detention should be determined by an independent and impartial tribunal constituted and operating in accordance with Article14, para 1. The Committee was not persuaded that the Advisory Boards as constituted at present met that standard. Thus the Human Rights Committee raised serious issues of concern, on the compatibility of the security legislation with India’s obligations under the Covenant.

Special legislations, which incorporate provisions in variance from the ordinary criminal procedure, were found to be in tune with the constitutional guarantee of Fundamental Rights. Thus it could be seen that the constitutional scheme of protection of fundamental rights does not prevent the legislature and the executive from adopting extraordinary measures. This position is not in tune with what the International Human Rights jurisprudence require and invited criticism that the actions of the Government of India is incompatible with the requirements under the international human rights obligations.

It infringed a large number of rights guaranteed by the ICCPR resulting in a situation of a continuing state of emergency without it being officially proclaimed as such. The Human Rights Committee has questioned the rationale of not providing for any non-derogable rights under the Constitution of India.

The Armed Forces (Special Powers) Act was held to be constitutionally valid by the Supreme Court. The sweeping powers granted by Armed Forces (Special Powers) Act were criticized by the Human Rights Committee as one open to abuse. These powers were ‘too broad’ and went beyond the Committee’s General Comment on art 6 of the Covenant, as well as the Commentary to art 3 of the Code of Conduct for Law Enforcement Officials. Thus it could be seen that Government of India is at the receiving end in the matter of protection of human rights and the legal framework existing in India does not guarantee adequate protection to basic rights. This is specifically true with regard to emergency powers. The courts also take hands off position and fail to discharge its basic obligation to safeguard the liberty.

Inherent Powers of High Court in Quashing Criminal Proceedings against Companies

Rohit Nandakumar, Student of Law, NUALS, Kochi

A criminal proceeding, according to the law Lexicon, refers to a proceeding instituted and conducted for the purpose either of preventing the commission of a crime or for fixing the guilt of a crime already committed and punishing the offender. In L. Choraria v. State of Maharashtra ((L. Choraria v. State of Maharashtra , A.I.R. 1969 SC 938)), the term has been pointed out as meaning a criminal enquiry or trial before a court. Where the proceedings are irregular, void, or defective, the courts will quash them, i.e. make them null and void.

It is usually the case that companies indulge or participate in activities within the nature of criminal offences like forgery, cheating, falsification of accounts fraud etc. and criminal proceedings being initiated against them. In these cases, such companies often attempt to quash the proceedings initiated against them to escape from the criminal liabilities that may be imposed against them, as far as possible during the initial stages itself. The inherent powers vested with the High Court under Section 482 of the Code of Criminal Procedure are often relied upon by the companies to quash such criminal proceedings that have been initiated against them.

Section 482 of the code of criminal procedure reads as follows: “Saving of inherent powers of High Court – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” Inherent power is therefore vested upon High Courts to:

  1. To give effect to provision of the Cr.P.C;
  2. To prevent abuse of court proceedings; and
  3. To secure ends of justice.

APPLICATION OF INHERENT POWERS OF THE HIGH COURT

The inherent power of the court to quash a criminal proceeding in company cases pending before subordinate courts is to be exercised sparingly in the rarest of rare cases ((Sasthi Sood v.Asst. Registrar of companies, West Bengal & Anr, (2001) 1 CALLT 184 (HC).)). In R.P. Kapur v. State of Punjab ((R.P. Kapur v. State of Punjab,A.I.R. 1960 S.C. 866 (869).)), Justice Gajendragadkar pointed out that, “It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice”. It is not to be exercised to disturb a legitimate prosecution. In cases wherever the proceedings initiated and continued against a suspect person amounts to abuse of court proceedings or wherever quashing the proceedings would secure the interests of justice, such proceedings ought to be quashed by the court.

To decide as to whether a case falls within the category of ‘rarest of rare cases’ for the application of the inherent power, due regard is to be given to;

  1. the facts and circumstances of the case at hand,
  2. the affected parties, and
  3. the possible implications of the decision.

Courts have often expressed the view that High courts are not to embark on an enquiry as to whether the evidence or allegations are reliable or not when it considers a petition relating to quashing of criminal proceedings in company cases. Whether, the FIR or the petition of complaint does not disclose the offence or is otherwise frivolous vexatious or oppressive; it is open to the High Court to interfere under section 482 Cr.P.C and to quash a criminal proceeding ((Sasthi Sood v.Asst. Registrar of companies, West Bengal & Anr, (2001) 1 CALLT 184 (HC).)).

Moreover, when the material on record is per se sufficient for the Court to form an opinion that the accused have committed the offences alleged against them and frame the said charges, there is no reason why a charge sheet against the Appellant should be quashed at such a preliminary stage when he has only been summoned to stand trial ((Sajjan Kumar v. Central Bureau of Investigation,(2010) 9 SCC 368)). This means that the High Courts would not exercise its inherent powers under S.482 Cr.P.C, so as to quash criminal proceedings, if there exist, a case prima facie. In such a situation, the court should direct the applicant to stand trial and to prove in innocence. Criminal cases are offence against public at large, and where a criminal case exist prima facie, it should be, in the interest of justice be bought to stand for trial and to be decided on merits.

The application of the inherent powers of the High Court to quash a will depend always on the facts and circumstances of each case. But the court would always have to ensure that such application has not been brought forth with an intention to interfere with the existing prosecution and to adversely affect the case. The saving of the High Court’s inherent powers is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice ((State of Karnataka v. L. Muneswamy, (1977) 2 SCC 699)).

The scope and power of High Courts under S.482 Cr.P.C to quash criminal proceedings in company cases was dealt with in detail in the case of Sushil Suri v. C.B.I ((Sushil Suri v. C.B.I ,(2011) 5 SCC 708)).The Apex Court pointed out in Sushil Suri’s case that, High Courts should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. The court also pointed out that in cases of a mixed civil and criminal nature exists, and the civil dispute being settled does not mean that criminal proceedings should be quashed. As pointed out by the court, an argument that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility and, therefore, should be quashed holds no good. The fact that the offence may be one compoundable under the Criminal Procedure Code is not relevant to the courts when in considers matters in consideration of its exercise of the inherent powers under Section 482 Cr.P.C. The mere fact that the offence is compoundable under provisions of the Criminal Procedure Code does not limit the inherent powers of the High Court to quash criminal proceedings. This case laid down a rule as against the one lay down in the case of Nikhil Merchant v. Central Bureau of Investigation ((Nikhil Merchant v. Central Bureau of Investigation , (2008) 9 SCC 677)), where it was said that the continuance of the criminal proceedings after the compromise arrived at between the parties would be a futile exercise of the inherent powers. The court held in Sushil Suri’s case ((Supra n.7))that the rule laid down in Nikhil Merchant v. Central Bureau of Investigation ((Supra n.8))is not an absolute proposition, every case coming before the a court depends on the facts of that particular case, there may be similarities with other cases, but even a single difference in detail may alter the entire aspect – themodus operandi of the appellants were relied upon in Sushil Suri’s ((Supra n.7))case to distinguish from Nikhil Merchants Case ((Supra n.8)).

Section 463 INDIAN COMPANIES ACT, 2013 & Section 482 of the Code of Criminal Procedure 1973

Section 463 Of Indian Companies Act, 2013 provides for the power of the court to grant relief in certain cases. But, the courts power to grant relief under Section 463 of the Companies Act is limited to proceeding for negligence, default, breach of duty, misfeasance or breach of trust against an officer of a company. In such proceedings, if it appears to the court that the officer had acted honestly and reasonably and that owing to the circumstances he ought to be excused, the court can relieve the officer wholly or partly from his liability. The High Court also has the power to grant the relief in cases where such proceedings are reasonably apprehended by the officer. In such cases the High Court has the same power to relieve him as it is the Court before which a proceeding against that officer.

But the powers under this section of the Indian Companies Act will not be applicable in cases of prosecutions involving any criminal liability. This means that the provisions of Section 463 of the Companies Act, 2013 will not help in any way to wholly or partially relieve the officer of a criminal liability in a prosecution.  In such cases the power to quash the proceedings can be found only under Section 482 Cr.P.C. Moreover, the power under Section 633 Companies Act will not enable the quashing of the proceedings as such; it would only relieve the officer wholly or partly from his liability. Any proceeding that exists against the company as such may continue.

CONCLUSION

Most of the criminal cases against companies deal with either the misrepresentation of documents of the company for the purpose of getting loans or of misusing it or with relation to the directors misappropriating the funds of the company.  The only check existing upon such mismanagement of loans by the companies is the police investigation or investigations from other investigating agencies that occur when the loan providing person/institution complain about default in payment. As it can be seen from the facts of several decided cases, on the institution of a criminal charge in such circumstances against the companies, the accused try to quash the criminal proceeding, initiated against them, by invoking the inherent power of the High Court to quash such proceedings. At this juncture, the company even goes to extend of repayment of the money taken by them to the complainant, so that they settle the civil dispute that is associated with their case. This often enables the accused also to escape liability as it is often followed that whenever a dispute between the parties, having overtones of a civil dispute with criminal facets is settled between them, continuance of criminal proceedings would be an exercise in futility. But in these circumstances the criminal offences done by the companies often goes without being properly noticed, an offence against the public at large is often ignored.

Although it was laid down by the Apex Court in Sushil Suri’s ((Supra n.7))case that High Court, and also Apex Court, should not order quashing of cases involving crimes against society, it is not often put into practice. The courts have to ensure that criminal offences like fraud and misrepresentation committed by directors of any company be dealt with in a stringent manner. Moreover, proper measures must be taken to impose severe penal provisions, under law, to desist the directors of companies from involving in such activities and to ensure that such activities are nipped at bud. Measures must be taken to ensure that the directors/officials of companies who are involved [convicted] in such criminal activities be barred from taking up the director/official of a company for either a period of time or permanently. A proper scrutinisation procedure must be adopted by the banks and financial institutions before granting loans. Such procedures may be established by the banks in sync with the Ministry of Corporate Affairs. The MCA21 facility may be further leveraged to establish a uniform and efficient system of perusal of companies by banks and financial institutions.

Various other allegations which warrant prosecution under the penal laws of the country have surfaced in the recent past. In 2012 criminal proceedings were initiated against a number of I.T companies like Microsoft India, yahoo India, etc. for hosting objectionable contents in the world wide web the proceedings against yahoo India, and Microsoft India was later quashed by the Delhi High Court ((INTERNET, HC Quashes Criminal Proceedings Against Microsoft India, Business World, March 18, 2012, http://www.businessworld.in/en/storypage/-/bw/hc-quashes-criminal-proceedings-against-microsoft-india/r394643.0/page/0 See also, P.T.I. New Delhi, Delhi High Court quashes criminal proceedings against Yahoo India, India Today, March 2, 2012, http://indiatoday.intoday.in/story/delhi-high-court-quashes-criminal-proceedings-against-yahoo-india/1/176120.html)).  A constant check has to be kept on the criminal activities of companies and criminal proceedings taken against companies. Severe provisions have to be brought forth by the government to prevent companies from indulging in criminal activities. A criminal offence is an offence against the public at large, and measures should be taken up by appropriate authorities from saving the general public from harm’s way. Considering the enormous powers vested with the High Courts by virtue of S.482 Cr.P.C, the courts are to exercise these powers with utmost care and caution and even when there is a slightest probability of the trial resulting in a conviction, the case must be allowed to stand, for serving the interest of justice. As pointed out in the case of Gian Singh v. State of Punjab, ((Gian Singh v. State of Punjab,2012 (9) SCALE 257))court shall exercise its inherent power to quash proceedings in order to meet ends of justice.

General Exception and Difference in Liability

Author: Ria Tandon, Research Associate

Criminal liability has been clearly defined by the lexicon dictionary as something where there is a presence of accountability and responsibility to the other person by the ways like that of criminal sanction ((The Lexicon, 3 rd edition)). Through this paper the author wishes to bring forth the meaning the liability with reference to exceptions like intoxication, mistake, legally abnormal person and compulsion.

The provision of the exception cases are dealt with the Indian Evidence Act section 105 which talks about the burden of proving that the case of the offender comes under the exceptions. It states that when a person has been accused of some offence, then the burden to prove the circumstances of the offence to fall under the criteria of exception in Indian Penal Code, or any proviso ((Anthony F., Law of Evidence, pp-337, Dhingara and Company , Patna Law House.))present in that code lies on him.

Defenses in general- In Halsbury’s Laws of England ((4 th ed, Vol XI ,Para 19, Page 22)), it is explained as follows – The general principle when it comes to common law is that  the prosecution has to prove the guilt of a defendant beyond all the reasonable doubt; it is not upon the defendant so as to establish his innocence. While when it comes to the justification in the common law, such things like  accident , consent , compulsion, drunkenness, self defense , the burden of proving all this lies on the prosecution.  The burden of proving the insanity lies with the defense ((Raghavan V.V, Law Of Crimes, 3 rd ed, pp-127, Orient Law House)).

Whatever be the position of the enactments of the Indian Evidence Act earlier, section 103 and 105 of the Evidence places the burden of proof on the accused himself. It is not solely on the defense to prove his innocence; he has to also base his arguments on basis of the proof provided by the prosecution. It is upon the court to decide whether the evidence provided by the defense was falling under the ambit of the exception ((Mst. Anandi v. Emperor, 24 Cr Lj 225)).

Private defense or self defense of personal property is of the most prime importance to be discussed when we speak of the general defenses. Self defense is known to be the clearest of all the laws: and this very fact they didn’t make it ((Douglas Jerrold)). When we talk about the mental capacity, then in this case insanity is taken to be a valid defense. General exception is found ((Ratanlal and Dhirajlal, Law of Crimes, 23 rd ed, pp-191, Bharat Law House PVT. Ltd))to be in the law where it is developed with respect to the state of mind of the person who commits an offence because mental element is of great importance.

COMPULSION

Duress or The act of compelling or the state of being compelled; the act of driving or urging by force or by physical or moral constraint; subjection to force. The compulsion which will excuse a criminal act must be present, immediate and impending and of such a nature as to induce a well- grounded apprehension of death or serious bodily harm. To constitute ((Henry Campbell Black, Black’s Law Dictionary, 5 th ed, pp-260, West Publishing Company))“compulsion” or coercion rendering payment involuntary, there must be some actual or threatened exercise of power possessed, or supposedly possessed, by payee over payer’s person or property, from which payer has no means of immediate relief except by advancing money.

This has been stated as the meaning of compulsion by Black’s Law dictionary.

The accused who is forced in committing a crime claim at times compulsion as a defense. Compulsion gives rise to four major ((Chandrasekharan Pillai K.N., General Principles of Criminal Law , pp- 264, Eastern Book Company))problems like;

(1) What kind of crime can be excused under compulsion?

(2) What are the ingredients of compulsion?

(3) How close would the commission of a crime be to the coercion which takes place?

(4)  A person is of the honest belief that in a threat sufficient or it is necessary for a belief to be reasonable?

The Penal Code has basically incorporated the English position:

Acts through which a person is compelled

Section 94 of the Indian Penal Code reads Act to which a person is compelled by threats- Except for the murder and the offences which are committed against the state. There are two instances where a person will liable or not based on the two situations.

Firstly -Where a person because of the threat like being beaten up, join a group of violent people , knowing their character , cannot take the defense of being forced and will be held liable for the act.

Secondly- A person who is being compelled by a gang of dacoits ((http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=2769))and is threatened by the threats of his death to do an illegal act as stated by the statutes.

Murder aspect

Murder is defined under section 300 ((Section 300 of Indian Penal Code))of the IPC. Any other offence which is found to be against the state including the factor of culpable homicide wherein the intention is not of murder but is committed because of threat is considered to be under the protection.

Instant Death

Under the fear of death that is instant in nature will only be considered as a valid point for the defense under the exception duress or compulsion and not fear of distant.

The IPC (Amendment) Bill, 1972 ((http://www.shareyouressays.com/118500/section-94-of-indian-penal-code-1860-explained))vide clause 31 had suggestion of widening the ambit of the scope of section 94 , so as to include point of the physical hurt of the victim as well the threat to his / her family but this suggestion was not take up .

INTOXICATION

For understanding the liability in case of intoxication we basically deal with two sections 85 and 86 ((Section 85 and 86 of Indian Penal Code))which talk about intoxication in IPC. Section 85 states that a person commits a crime without knowing the nature of act under the influence and the wrong committed by him without his knowledge about the thing which intoxicated him. Section 86 talks about the aspect where a person has the intention and full knowledge about the act and he will be held liable whether he does it under intoxication or he does it when he doesn’t know the thing which intoxicated him.

Intoxication is basically by way of consumption of alcohol or drugs which affect the person’s judgment power, perception and the self-control. These things may cause a person to commit crime.

The attitude ((Chandrasekharan Pillai K.N. , General Principles of Criminal Law , pp- 267, Eastern Book Company))of courts in the Common law countries like India or UK has been ambivalent. In theory they detect that there is no element of mens rea in a crime committed by a drunken person. Though Drunkenness doesn’t serve any good to the society at large but Criminal Law distinguishes it as voluntary intoxication and involuntary intoxication. Though voluntary intoxication is never a defense but always the aspects of mens rea are seen.

MISTAKE OF FACT

Mistake of Fact ((Chandrasekharan Pillai K.N. General Principles of Criminal Law , pp- 274, Eastern Book Company))can be taken as a defense only when it helps in negating the material elements in the crime. Mistake prevents a person from forming mens rea for example when the accused mistakes women’s consent for sexual intercourse. The mistake of fact leads to the distortion of the surrounding of a crime scene where the offender believes that he is being attacked while in the real sense he is being arrested lawfully.

Section 79 of IPC explains the act which is justified by the person based on mistake of fact ((Section 79 of the Indian Penal Code))made by him which is in the rightful justification by the law.

Illustration so as to explain is A sees Z committing an Act of murder as it seem to A .  Hence A in good faith seizes Z in order to bring the act of Z before the proper authorities. So in this case A has not committed any offence per se but it can seem as if he committed it in self defense.

This is kind of analogous of section 76 ((Section 76 of the Indian Penal Code))which talks about the fact that person who commits some act will not be liable for it if there is a mistake of fact and not the mistake of law with reference to the act he believes is bounded by law.

A person will be justified in doing an act even the following condition

(1) When his or her country is between war.

(2) Where is some kind of destruction as like rebellion and

(3) When the act is done by the state based on the instructions from the Centre or by the subsequent satisfaction ((Forester, 12 BLR (SC) 12; See also Kamatchi Bai Sabeha, 13 Moor PC Cases 22; Hari Bhanji, 5 Mad 273))or the when the Martial Law ((Channappa Shantirappa V Emperor, AIR 1937 Bom 57))is promulgated.

Section 79 makes offence as a non-offence, only on the fact when the offending turns to an act which can be justified by Law or in bona fide intention it is seen to be in the mistake of fact something which is to be justified ((Raj Kapoor, AIR 1980 SC 605 1980 Cr LJ 436: 1980 UJ (SC) 180)).

LEGALLY ABNORMAL PERSON

The definition of the term legally abnormal person is not very clear but here we take insanity as abnormal attributes since Insanity has been defined by Black’s Law Dictionary as a social or legal term rather than a medical condition in this case. The person is seen to be unfit to enjoy liberty of action since his actions are not reliable.

Insanity as a defense to Crime

There are various ways by which court tests the criminal liability of a person. The test is provided under the Model Penal Code ((Black’s Law Dictionary, 5th ed))where it states that a person  is not responsible for criminal conduct if during the time of the conduct because of the mental illness or that he lacks the proper thinking capability.

The basis which is looked after when it comes to the aspect of Insanity as an excusatory defense is based on the assumption that the offender does not possesses the element of malice aforethought ((This means that the offender does not have the capacity to entertain a guilty before committing the act)). The person does not possess a normal working mind. Hence it is very clear fact that the person does not voluntarily commit the particular act. However these acts surely affect the society at large.  The criminal law has taken this issue very seriously so that is why it has made some special provisions which are govern the punishment and the criminal liability of the such people who are seen to be abnormal.

The element of morals is totally absent when it comes to abnormal person since they lack the “free will” and the autonomy which is in possession of the law. There is really no point in granting punishment to the offenders since they are unlikely to understand any command of law covering the wrongful act committed by them.

CONCLUSION

Through this paper the author tries to bring forth the various instances which exist in the different exceptions of the criminal Law. Paper answers the incidents like Intoxication where the liability of a offender lies where the stress lies on the knowledge of the act done again it can same be as mens rea. While on the other hand a person can take protection intoxication too. Then when we talk about abnormal persons wherein a person of unstable mind is taken to be safe from the liability of the criminal punishment. Although both of these exceptions are against the public. Mistake of facts is can be taken as a defense while in case of the mistake of law is not considered as a defense. In case of compulsion where the person is under threat of some person with regards to his instant death without knowing the outcome of act is held liable.

Analysis of Corporate Criminal Liability in India

Sibani Panda, Research Associate

A company can only act through human beings and a human being who commits an offence on account of or for the benefit of a company will be responsible for that offence himself. The importance of incorporation is that it makes the company itself liable in certain circumstances, as well as the human beings – Glanville Williams

Corporations are considered to be an integral part of the society. Besides the governmental agencies, the corporations are deemed to be the effective agents of action in our society.  But, corporations, as it is understood today, have not been same in the past. But over a period of time, the development of the society has had a direct influence on the structure and functions of the corporation. This had led to an ever increasing demand for the law to recognize the change and suit its applications ((Balakrishnan. K; “Corporate Criminal Liability – Evolution of the concept” (1998) Cochin University Law Review p.255)). Over the last few decades, lot of complexities has evolved in the corporate sector because of globalization and privatization of different kind of business entities all over the world. The word ‘Corporation’ has no strictly technical or legal meaning ((Stanley, Re [1906] 1 Ch. 131)). It may be described to imply an association of persons for some common object. The purposes for which people may associate themselves are multifarious and includes economic and non- economic objectives. But in common parlance, the word ‘corporation’ is normally reserved for those associated for economic purposes, i.e., to carry on a business for gain. A corporation is an artificial entity that the law treats as having its own legal personality, separate from and independent of the persons who make up the corporation ((Salomon v. Salomon (1897) AC 22)). A corporation has an independent existence which is separate from the shareholders constituting it. The corporations are run by natural persons and these people’s actions can be criminal in nature and can sometimes even result in great economical as well as human loss to the society.

CRIMINAL LIABILITY: THE CONCEPT

Criminal Liability is only attached to those acts in which there is violation of Criminal Law ((Abhishek Anand, Holding Corporations Directly Responsible For Their Criminal Acts: An Argument, www.manupatra.com)). The basic rule of criminal liability revolves around the basic Latin maxim actus non facit reum, nisi mens sit rea which means in order to make a person or entity criminally liable, it is required to establish that an act or omission has been committed which is forbidden by law and it has been done with guilty mind. So every crime constitutes two elements ((Russell, W.O., Russell on Crime p.17-51 (J.W.C. Turner Ed., New Delhi; Universal Law Publishing Pvt., 2001).  )):

  • Actus reus: Actus reus connotes those result of human conduct which is forbidden by law and hence constitutes of Human action; result of conduct and act prohibited by law.
  • Mens rea. On the other hand, mens rea is generally considered as blame worthy mental condition.

CONCEPT OF CORPORATE CRIMINAL LIABILITY:

Corporations play a significant role in creating and regulating the business activities and also in managing the lives of the common people, as a result of which, the modern criminal law systems overlooked the possibility of holding the corporations criminally liable for the commission of a criminal offence.

The doctrine of corporate criminal liability turned from its infancy to almost a prevailing rule ((Thiyagarajan, T. Sivananthan; “Corporate Criminality-concept”, available at: http://www.manupatra.com/Articles/artlist.asp?s=Corporate/Commercial)). It is very difficult to define corporate criminal liability in the present day scenario as it covers wide range of offences. However for understanding its purpose, it can be defined as an illegal act of omission or commission, punishable by criminal sanction committed by an individual or group of individuals in the course of their occupation ((Williams, K.S.; “Text Book on Criminology”, Universal Law Publishing Pvt., New Delhi, 2001, p.64)).  It can be even defined as socially injurious acts committed in course of occupations by people who are managing the affairs of the company to further their business interest ((Siegal, L.J.; “Criminology” , Wadsworth/ Thomson Learning, London, 2000, pp.398-99)). Corporate criminal liability also represents a kind of instrumentalities through which the trust of the people continues to be betrayed by persons in positions of responsibility, authority and power in the business sector. Corporate crime has been defined as “the conduct of a corporation or of employees acting on behalf of a corporation, which is prescribed and punishable by law ((Braithwaite, John ; Corporate Crime in the Pharmaceutical Industry, 1st Edition, Routledge and Kegan Paul, London, 1984, p.6.)).” Thus the “Corporate criminal Liability” refers to the imposition of criminal liability on either the corporation or its employees and agents and it is also referred to as white-collar crime.

ORIGIN OF CORPORATE CRIMINAL LIABILITY

During the early sixteenth and seventeenth centuries, the general notion was that corporations could not be held criminally liable. In the early 1700s, corporate criminal liability faced four obstacles:

  • First obstacle was attributing acts to a juristic fiction, the corporation. During Eighteenth-century, courts and legal thinkers approached corporate liability with an obsessive focus on theories of corporate personality; a more pragmatic approach was not developed until the twentieth century.
  • The second obstacle was that legal thinkers did not believe corporations could possess the moral blameworthiness necessary to commit crimes of intent.
  • The third obstacle was the ultra vires doctrine, under which the courts would not hold corporations accountable for acts, such as crimes, that were not provided for in their charters.
  • The fourth obstacle was court’s literal understanding of criminal procedure; for e.g. the Judges required the accused to be brought physically before the court ((V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 Harv. L. Rev. 1477; Beck & O’Brien, Corporate Criminal Liability, 37 American Criminal Law Review 261; Reinier H. Kraakman, Corporate Liability Strategies and the Costs of Legal Controls, 93 Yale L.J. 857, 857-58 (1984).)).

In the modern era, the activities of the corporations has had a tremendous impact on the society and it has also helped in the development of the society to a large extent  but at times, the activities of the corporation has also been proved disastrous to the society which then falls under the category of corporate crimes. Despite those disastrous activities of the corporations, the law was not willing to impose criminal liability upon corporations because ((Zee Tele films Ltd. v. Sahara India Co. Corporation Ltd., 2001 (3) Recent Criminal Reports (Criminal) 292; Motorola Inc. v. UOI, 2004 Cri LJ 1576)):

  • Corporations cannot have the mens rea or the guilty mind to commit an offence;
  • Corporations cannot be imprisoned.

Even the common law did not impose criminal liability on corporations because it was based on the belief that a corporation lacked moral blameworthiness and the requisite mens rea, which is an essential element of a crime. Further, the thought that was prevalent was that a corporate has ‘no soul to damn and no body to kick’. But from the early 20th century onwards, the importance of the criminal liability of the corporation was recognized by various courts.

THEORIES OF CORPORATE CRIMINAL LIABILITY

  • Theory of Vicarious Liability – The doctrine of vicarious liability recognizes that a person may be bound to answer for the acts of another. Similarly in the case of corporations, the company may be liable for the acts of its employees, agents, or any person for whom it is responsible. The traditional theory of vicarious liability holds the master liable for the acts of the servant in the course of the master’s business without proof of any personal fault on the part of the master.
  • Identification theory– In this theory, the corporations are held criminally liable for true crimes and regulatory offences. This theory recognizes that the acts and state of mind of certain senior officers in a corporation are the directing minds of the corporation and thus deemed to be the acts and state of mind of the corporation itself. The corporation is considered to be directly liable under this theory.
  • Aggregation Theory- – Under the aggregation theory, the corporation aggregates the composite knowledge of different officers in order to determine liability. The company aggregates all the acts and mental elements of the important or relevant persons within the company to establish whether in toto they would amount to a crime if they had all been committed by one person.180 According to Celia Wells, aggregation of employees’ knowledge means that corporate culpability does not have to be contingent on one individual employee’s satisfying the relevant culpability criterion ((Celia Wells, Corporations and Criminal Responsibility, 2nd ed. (Oxford: Oxford University Press, 2001) p. 156.)).

POSITION OF CORPORATE CRIMINAL LIABLITY IN INDIA:

Until recently, courts in India were hesitant to attribute criminal liability to a company for an offence that required a criminal intent and they were of the opinion that they could not prosecute companies for offences that entailed a mandatory sentence of imprisonment because the corporations could not be criminally prosecuted for offenses requiring mens rea as they could not possess the requisite mens rea.

In A. K. Khosla v. S. Venkatesan ((A. K. Khosla v. S. Venkatesan  (1992) Cr.L.J. 1448)), two corporations were charged for committing fraud under the Indian Penal Code. The Magistrate issued orders against the corporations and the Court observed that in order to prosecute corporate bodies, there were two pre-requisites, the first being that of mens rea and the other being the ability to impose the mandatory sentence of imprisonment. A corporate body could not be said to have the necessary mens rea , nor can it be sentenced to imprisonment as it has no physical body.

In Oswal Vanaspati & Allied Industries v. State of U.P. ((1993 1 Comp LJ 172)), the Full Bench of the Allahabad High Court held that a company being a juristic person cannot obviously be sentenced to imprisonment as it cannot suffer imprisonment.

In Zee Tele films Ltd. v. Sahara India Co. Corp. Ltd ((2004 Cri LJ 1576))., the court dismissed a complaint which was filed against Zee Tele films under Section 500 of the IPC. In this case, it was alleged that Zee had telecasted a program which was based on falsehood and thereby defamed Sahara India. The court held that mens rea was one of the essential elements of the offense of criminal defamation and that a company could not have the requisite mens rea.

In Motorola Inc. v. Union of India ((Motorola Inc. v. Union of India,(2004) Cri.L.J. 1576)), the Bombay High Court quashed a proceeding against a corporation for alleged cheating and the court concluded that it was impossible for a corporation to form the requisite mens rea, which was the essential ingredient of the offense. Thus, the corporation could not be prosecuted for cheating under section 420 of the IPC.

In the case of The Assistant Commissioner, Assessment-II, Bangalore & Ors.  v. Velliappa Textiles ((The Assistant Commissioner, Assessment-II, Bangalore & Ors.  V. Velliappa Textiles, (2004) 1 Comp. L.J. 21)), a private company was prosecuted for violation of certain sections under the Income Tax Act. Sections 276-C and 277 of the Income Tax Act provided for a sentence of imprisonment and a fine in the event of a violation. The Supreme Court held that the respondent company could not be prosecuted for offenses under certain sections of the Income Tax Act because each of these sections required the imposition of a mandatory term of imprisonment coupled with a fine and the court could not only impose fine on the corporation. After strict interpretation, the Court held that a corporation did not have a physical body to be imprisoned and therefore could not be sentenced to imprisonment. The Court also noted that while interpreting a penal statute, if more than one view is possible, the court is obliged to lean in favor of the construction that exempts an accused from penalty rather than the one that imposes the penalty.

In MV Javali v. Mahajan Borewell & Co and Ors ((AIR 1997 SC 3964))where the Supreme Court held that mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, but where it cannot be imposed ,namely on a company then fine will be the only punishment.

Thus the Indian courts never felt about inclusion of company on certain criminal liability.

The legal difficulty arising out of the above situation was noticed by the Law Commission and in the 41st Report of Law commission of India, the Law Commission suggested amendment to Section 62 of the Indian Penal Code by adding the following lines:

  • “In every case in which the offence is only punishable with imprisonment or with imprisonment and fine and the offender is a company or other body corporate or an association of individuals, it shall be competent to the court to sentence such offender to fine only.”
  •  In every case in which the offense is punishable with imprisonment and any other punishment not being fine and the offender is a corporation, it shall be competent to the court to sentence such offender to fine.
  •  In this section, “corporation” means an incorporated company or other body corporate, and includes a firm and other association of individuals.

But this bill prepared on the basis of the recommendations of the law commission lapsed and it did not become law. However few of these recommendations were accepted by parliament and by suitable amendment some of the provisions in the taxation statutes were amended. The Law Commission has tried consistently to find a formula which would solve the problem of fixing appropriate punishment for the Corporations which commit offences; this has been done with a view to punish a corporation where mandatory minimum punishment is both punishment and fine, in such a case it needs to be fixed as to how the law courts would advance if this question comes up before them.

But the view of the courts on corporate criminal liability was changed in a landmark case of Standard Chartered Bank and Ors. v. Directorate of Enforcement (([2005] 4 SCC 530)). In this case, Standard Chartered Bank was prosecuted for the alleged violation of certain provisions of the Foreign Exchange Regulation Act, 1973 and the Supreme Court did not go by the literal and strict interpretation rule required to be done for the penal statutes and held that the corporation could be prosecuted and punished with fines, regardless of the mandatory punishment required under the respective statute. The Court observed that all the penal statutes are to be strictly construed in the sense that the Court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have included if thought of ((Tolaram Relumal and Anr. v. The State of Bombay MANU/SC/0057/1954)).

After the decision of the Standard chartered bank case, the courts were generally of the view that the companies won’t be exempted from prosecution merely because the prosecution is in respect of offences for which punishment prescribed is a mandatory imprisonment.

In Iridium India Telecom Ltd. v. Motorola Incorporated and Ors ((AIR 2011 SC 20)), the Hon’ble Supreme court held that a corporation is virtually in the same position as any individual and may be convicted under common law as well as statutory offences including those requiring mens rea. The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it would be necessary to ascertain that the degree and control of the person or body of persons is so intense that a corporation may be said to think and act through the person or the body of persons. In this case, it was also held that the corporations can no longer claim immunity from criminal prosecution on the grounds that they are incapable of possessing the necessary mens rea for the commission of criminal offences.

In CBI v. M/s Blue-Sky Tie-up Ltd and Ors ((CBI v. M/s Blue-Sky Tie-up Ltd and Ors ,Crl. Appeal No(s). 950 of 2004)), an appeal arose from criminal application which was quashed by the Calcutta High Court. The Appellant filed criminal applications against the respondents for committing criminal offences under the provisions of the Indian Penal Code and under Section 13(2) read with 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. Pursuant to that, the Respondents filed applications under Section 482 of the Criminal Procedure Code for quashing of the said proceedings. The Calcutta HC quashed the proceedings against the Respondent No. 1 on the false premise that the company being a body corporate cannot be prosecuted, but the Supreme Court held that the companies are liable to be prosecuted for criminal offences and fines may be imposed on the companies.

The criminal intent of the ‘alter ego’ of the company or corporate body, i.e. the person or group of people that guide the business of the company would be imputed to the corporation. It is now an established legal position in India that a corporation can be convicted of offences that require possession of a criminal intent, and that corporation cannot escape liability for a criminal offence, merely because the punishment prescribed is ‘imprisonment and fine’.

But it is always a controversial issue that Corporations cannot be sentenced to imprisonment and since, there is no explicit provision relating to it, the Supreme court  have held in various cases that it is better to impose fine upon the corporation even in the cases where there is a punishment for imprisonment. The imposition of fines may be made in four different ways as provided in the IPC. It is the sole punishment for certain offences and the limit of maximum fine has been laid down; in certain cases, it is an alternative punishment but the amount is limited; in certain offences, it is imperative to impose fine in addition to some other punishment and in some it is obligatory to impose fine but no pecuniary limit is laid down ((Angira Singhvi ,”Corporate Crime and Sentencing in India: Required Amendments in Law”, International Journal of Criminal Justice Sciences ,Vol 1 Issue.2 July 2006)). Section 357, Cr PC, empowers a Court imposing a punishment of fine or a sentence of which fine forms a part, to order payment of compensation, out of the fine recovered, to a person for any loss or injury caused to him by the offence.

Even the environmental degradation arising out of industrial pollution in recent years has become a positive danger to social security. Thus, Legal provisions have been incorporated in the Indian Penal Code ((Indian Penal Code, 1860 S. 277. Fouling water of public spring or reservoir: Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.)), to punish industrial and business organizations which pose danger to public life by polluting water ((Water Pollution (Amendment) Act,1978)), and District Magistrate can initiate proceedings against them under Section 133 of the code of Criminal Procedure, 1973.

Section 16 of Environment (Protection) Act, 1986 and Section 47(2) of the Water (Prevention and Control Pollution) Act, 1974 also explicitly lays down provision for the offences by companies. It states companies can be prosecuted under certain circumstances and thus, reflects the concept of vicarious criminal liability.

Corporate liability may appear incompatible with the aim of deterrence because a corporation is a fictional legal entity and thus cannot itself be “deterred.” In reality, the law aims to deter the unlawful acts or omissions of a corporation’s agents. To defend corporate liability in deterrence terms, one must show that it deters corporate managers or employees better than does direct individual liability ((Lewis A. Kornhauser , An Economic Analysis of the Choice Between Enterprise and Personal Liability for Accidents, 70 CAL. L. REV. 1345 passim (1982).)).

CONCLUSION:

At one point of time, the concept of a separate legal personality of a corporation was exploited by individuals to evade personal liability. But now it is well established that a corporation cannot escape liability for offences simply on the basis that they have no body or soul and cannot possess any mental state. The statutes in India are not in pace with these developments and they do not make corporations criminally liable and even if they do so, the statutes impose no other punishments except for fines. The laws relating to corporate criminal liability in India are vastly insufficient. The legislature needs to be active in this regard and form certain concrete laws which would ensure that the corporations do not go unpunished and a better social order needs to be established. Certain Provisions relating to procedural law also needs to be created and modified so that the corporations can be adequately dealt with. It is therefore recommended that amendments should be carried out by the legislature to avoid the judiciary from defining the law and make certain provisions relating to procedural laws so that the corporations can be adequately dealt with and the courts are also required to make the statutes fit for strict interpretation by providing for infliction of criminal liability on the corporations as also providing for various kinds of punishments apart from fines only.

Theories of Punishment – Overview

Aviral Umrao, Research Associate

The object of punishment has been very well summarised by Manu, the great Hindu law giver, in following words: punishment governs all mankind; punishment alone preserves them, punishment wakes while their guards are asleep; the wise considers the punishment (danda) as perfection of justice ((Institute of hindu law(translated by Haughton,G.C. 1835) ch.7, para 18 p. 189)). The general view that the researcher finds is that the researcher gathers is that the theories of punishment being so vague are difficult to discuss as such. In the words of Sir John Salmond, “The ends of criminal justice are four in number, and in respect to the purposes served by the punishment can be divided as ((PSA Pillai’s criminal law, tenth edition, 2008)):

  1. Deterrent theory
  2. Retributive theory
  3. Preventive theory
  4. Reformative theory
  5. Expiation theory

Of these aspects the first is the essential and the all-important one, the others being merely accessory. Punishment before all things is deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him.

Deterrent Theory: 

The object of punishment is not only to prevent the wrong-doer from doing a wrong a second time, but also to make him an example to other persons who have criminal tendencies. Salmond considers deterrent aspects of criminal justice to be the most important for control of crime ((Salmond on jurisprudence 12th ed.,(1966) pp. 94-100)). The chief aim of the law of crime is to make the evil-doer an example and a warning to all that are like minded. One of the primitive methods of punishments believes in the fact that if severe punishments were inflicted on the offender would deter him form repeating that crime. Those who commit a crime, it is assumed, derive a mental satisfaction or a feeling of enjoyment in the act. To neutralize this inclination of the mind, punishment inflicts equal quantum of suffering on the offender so that it is no longer attractive for him to carry out such committal of crimes. Pleasure and pain are two physical feelings or sensation that nature has provided to mankind, to enable him to do certain things or to desist from certain things, or to undo wrong things previously done by him. The basic idea of deterrence is to deter both offenders and others from committing a similar offence. But also in Bentham’s theory was the idea that punishment would also provide an opportunity for reform ((OP Srivastava’s Principles of Criminal Law, EBC, fifth edition, 2010)).

In earlier days a criminal act was considered to be due to the influence of some evil spirit on the offender for which he was unwillingly was made to do that wrong. Thus to correct that offender the society retorted to severe deterrent policies and forms of the government as this wrongful act was take as an challenge to the God and the religion.

But in spite of all these efforts there are some lacunae in this theory. This theory is unable to deter the activity of the hardcore criminals as the pain inflicted or even the penalties are ineffective. The most mockery of this theory can be seen when the criminals return to the prisons soon after their release, that is precisely because as this theory is based on certain restrictions, these criminals are not effected at all by these restrictions rather they tend to enjoy these restrictions more than they enjoy their freedom.

Retributive Theory:

The person wrongdoer was allowed to have revenge against the wrong doer. The principle of an eye to eye, a tooth to tooth, a nail to nail, limb for limb was basis of criminal administration ((Shiv ram v. state of U.P, AIR 1998 SC 49)).

“An eye for an eye would turn the whole world blind” – Mahatma Gandhi.

The most stringent and harsh of all theories retributive theory believes to end the crime in itself. This theory underlines the idea of vengeance and revenge rather than that of social welfare and security. Punishment of the offender provides some kind solace to the victim or to the family members of the victim of the crime, who has suffered out of the action of the offender and prevents reprisals from them to the offender or his family. This theory is based on the same principle as the deterrent theory, the Utilitarian theory. To look into more precisely both these theories involve the exercise of control over the emotional instinctual forces that condition such actions. This includes our sense of hatred towards the criminals and a reliance on him as a butt of aggressive outbursts. Thus the researcher concludes that this theory closely related to that of expiation as the pain inflicted compensates for the pleasure derived by the offender. Though not in anymore contention in the modern arena but its significance cannot be totally ruled out as fear still plays an important role in the minds of various first time offenders. But the researcher feels that the basis of this theory i.e. vengeance is not expected in a civilized society. This theory has been severely criticized by modern day penologists and is redundant in the present punishments.

Preventive theory:

Object of punishment is prevention or disablement offenders are disabled from repeating the offences by awarding punishment, such as death, exile or forfeiture of an office. Unlike the former theories, this theory aims to prevent the crime rather than avenging it. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements ((Ratan Lal Dhiraj Lal: Indian Penal Code Hindi (2 Vols): thirty first edition, 2008)).

Thus one an easily say that preventive theory though aiming at preventing the crime to happen in the future but it still has some aspects which are questioned by the penologists as it contains in its techniques which are quite harsh in nature. The major problem with these type of theories is that they make the criminal more violent rather than changing him to a better individual. The last theory of punishment being the most humane of all looks into this aspect.

Reformative Theory:

According to the reformative theory, the objective of punishment is the reformation of criminals. But that is the beginning of a new story, the story of the gradual Renewal of a man, the story of his gradual regeneration, of his Passing from one world into another, of his initiation into a new Unknown life. It emphasizes on the renewal of the criminal and the beginning of a new life for him.

The most recent and the most humane of all theories is based on the principle of reforming the legal offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crimes. Though it may be true that there has been a greater onset of crimes today than it was earlier, but it may also be argued that many of the criminals are also getting reformed and leading a law-abiding life all-together. Reformative techniques are much close to the deterrent techniques ((PSA Pillai’s criminal law, tenth edition, 2008)).

This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix up with the other members of the community.

Expiation Theory

Expiation Theory states that compensation is awarded to the victim from the wrong-doer, awarding compensation from the accused, accused is not physically punished. He is economically punished, and such compensation is awarded to the victim or victim’s family members. This also becomes a lesson to the remaining public. Purpose of this theory is generally, in other system of punishment, the victim is not taken into consideration. The present criminal justice system concentrates only on punishing the criminal. The Courts are not in position to point out the grievance of the victim or his family members.

In case of State vs. Sayyaduddin ((1996 HC 345 AP)), Justice Motilal Naik observed: “By imposing imprisonment on the accused could not be helpful to the family members of the victim. In my opinion, it is better to help the victim’s family members, as there is no one to look after them after the death of the bread-earner.

The victim or his family members satisfy with the money and can lead their remaining life safely. It also creates repentance in the minds of the criminals. Modern criminologists, jurists, penologists, jurisprudents, sociologists, etc. support the idea of victimology and expiation theory.

Current position and Problems: (Authors view)

One of the major problem which comes out in counter of deterrent theory, is that as one of the major function of the criminal administration is for sending a message to society or like mind people by the conviction of a criminal in order to make them aware that same will happen to them also in case same criminal act will be performed by them in similar situation or different situation.

But looking it to current system of judicial administration for criminal case, judiciary is not meeting the expectation of deterrent as due to backlog of case, sometime even trial court took more than 3-4 years for its completion of trial proceedings. And this happens in most of the cases and then appeal for it and sometime further appeal and mercy petition is also in the same row.

Let us take an example, if some person kills a man in a cross road and most of people present at that time watched the same, and handed over the convict to police and proceedings started against it took almost 2-3 years and mean while people forgot the happening and continued with their daily affairs and later only family of convict and accused have concern with it and this process in most of the cases took around 10 to 15 years and then there is no such strong message which goes to society as most of them forgot about it an new generation is not aware of all that event at all then what’s the use of such system if it is not fulfilling the major role of it. What we can do any in order to make this theory work as per as its meaning, making judicial system work with the concept of speedy trial. One of the good examples of such case is that of Rajiv Gandhi assassination case.

Secondly, important problem is with the preventive theory of punishment as this theory is prevention or disablement offenders are disabled from repeating the offences by awarding punishment, such as death, exile or forfeiture of an office. Unlike the former theories, this theory aims to prevent the crime rather then avenging it. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements.

This theory is fine till this limit but what is happening now a day’s concept of capital punishment is developing sometimes it prevails and some time it does not( as precedents are not followed). If this system of capital punishment will followed then objective of preventive theory will not be obtained as convicts of capital punishment will not be given with chance to come in to mainstream and no chance to improve themselves. According to me capital punishment should be abolished. Everyone have equal right to live in this world and country like India gives freedom to live in its constitution should never go for capital punishment. So if the person does any criminal activities and may be that it may be heinous but is giving death penalty is the only solution to curb out the crime from the country. And if death penalty is awarded to any murderer then what is the difference between that murderer and the judge except for that that judge has been given the right to award death penalty and the murderer has been not.

I don’t think that giving death sentence is right because up to what extent we will be doing this. We need to remove the crime first; other thing will be done automatically.

Medical Negligence and Criminal Law : An Indian Perspective

Authors : Prashant R Dahat & Puneet Yadav

Negligence is a term of art, but has distinct meanings in different jurisdictions. In ‘Tort’, damage is an essential ingredient but that element is not necessary in the law of master and servant. In criminal law, there are series of offences based on negligence in which loss or injury is not material, it is enough if the act is likely to cause injury or endanger life. Operation of patient without consent is an example of negligence (Statutory Damage) even without actual apparent damage.

Dictionary meaning of term ‘Negligence’ is ‘Lack of Proper Care’. As defined by Baron Alderson negligence means: “Omission to do something which a reasonable man guided by those consideration which regulate conduct of human affairs would do, or doing something which a reasonable man would not do”. Same definition is quoted in many decisions of the court. Continue reading “Medical Negligence and Criminal Law : An Indian Perspective”