A study on the derivative responsibility principle in India

Introduction

Through the judicial system or legal framework, the law is tasked with punishing those who facilitate the commission of a crime and those who commit the crime. The entire process involves several procedures, from filing a complaint to passing a judgement in a court of law. Each of these procedures involves a myriad of theories and principles to be kept in mind. When the issue of initiating criminal charges is brought to the forefront, identifying the culprits is one of the first elements to be dealt with. Assigning responsibility or liability for the crime is vital, as it can make or break the case outcome. However, complications may arise in identifying those directly involved in the case and those who may have been involved in the case indirectly. For this reason, legislatures worldwide must apply various theories of culpability in their criminal laws. This reduces ambiguity and assists the police and prosecution ensure convictions for serious crimes. Below, the various theories of culpability, i.e., liability, that are applied in India’s criminal justice system are explained.

Theories of culpability

It is easier to understand the theory of culpability if one considers the following: Usually, people are charged for the crimes they choose to commit. In the theories of culpability, people are charged with crimes others commit. Given that India has primarily based its laws around the Common law, it is necessary to begin by familiarizing ourselves with the principles of Common law regarding culpability. In the complicity doctrine, more than one individual shall be responsible for the crime. These individuals may have been involved before and after the crime. The conduct of all the individuals results in the crime, and they shall be charged accordingly. The first-degree perpetrator is charged first. Only after this can the accomplices be brought under trial.

Four parties in a crime were recognised by Common law¹:

1. The actual perpetrators of the crime (first degree) – those who were directly involved in the commission of the offence
2. The aiders and the abettors (second degree) – those who assisted in the commission of the crime by indirect means
3. The aiders and the abettors (those involved before the fact) – the individuals who facilitated or planned for the offence prior to the commission of the crime
4. The aiders and the abettors (those involved after the fact) – the individuals who assisted the perpetrators after the crime was committed

To better understand the same, an illustration can be referred to. The murder of ‘E’ is planned by ‘A’ and ‘B’. ‘A’ kills ‘E’ by using a gun given by ‘C’, who was aware of the intentions of ‘A’. After the murder, ‘A’ seeks the help of ‘D’ to hide the murder weapon and for assistance in evading the police officers.

In this illustration:

1. ‘A’ is the actual perpetrator of the crime of murder (first-degree)
2. ‘B’ is the co-conspirator (second-degree)  
3. ‘C’ is the abettor before the crime, who supplied ‘A’ with a gun
4. ‘D’ is the abettor after the crime, who helped ‘A’ by concealing his location from the police and hiding the murder weapon.

When aiders or abettors are prosecuted under this doctrine, there is a need for the intention to commit a crime.

A closely related theory of culpability is the theory of vicarious liability. In vicarious liability, two parties exist – the principal and the agent. The agent acts on behalf of the principal. Thus, when the agent (the perpetrator) commits a crime, the principal is also liable for the same, as the agent performs the actions instructed by the principal. However, in criminal law, the principal is not responsible for any independent act the agent does.² In criminal law, this principle is mainly used based on public policy, i.e. in matters where subordinates commit crimes and the higher-ranking officers are punished.

In the theory of derivative complicity, the liability of an abettor or aider stems from the perpetrator’s crimes. For instance – if the perpetrator merely attempts a crime, the abettor will be charged for the attempt. However, if the perpetrator fails at the attempt to commit a crime, then the abettor will not be charged for anything.

Professor Glanville Williams, in his textbook³ has shared his thoughts on derivative liability, summarised as follows: ‘The offence of invitation is said to be committed when one person enables another to commit a crime, whether as a perpetrator or as an abettor, and whether the incited person commits the crime.’

Essentially, derivative liability is a mechanism to make liable a person who incites or assists another to commit a crime. This is irrespective of whether the actus reus or mens rea elements are completely satisfied by the abettors/co-conspirators. The liability of the abettors is essentially derived from the perpetrator’s liability. However, this theory does not make clear the degree to which the abettors can be made liable – whether to the same degree as the perpetrators or a lesser degree.⁴

However, in the judgement of R v. Jogee⁵, the Supreme Court of the United Kingdom has held that the derivative liability, when applied, shall require substantial assistance or encouragement on the part of the abettor. The intention is vital to this theory. There are several levels to the derivative liability theory.⁶ The first is where the abettor has the same level of liability as the perpetrator. This is the equivalence theory.

The agency theory is derived from the civil law rule of agency. So, the effect of an agent’s actions is extended or attributed to their principal. Therefore, the principal derives his liability from the actions of the agent. This theory is not widely used as there are considerable differences between civil and criminal law.

The other theory is called the association theory. By associating an abettor with the perpetrator’s actions, the abettor is liable. It is based on mere participation. This is slightly different from the theory of derivative complicity/liability discussed, as it does not include the incitation element.

Another vital doctrine relating to derivative liability is the natural & probable consequences doctrine. Here, if a perpetrator commits another crime (apart from the abetted/conspired crime) which was a natural consequence of the abetted/conspired crime, then the abettors or conspirators would also be liable for the second crime.⁷

The other side of criminal law that uses culpability theories is Corporate Criminal law. Most legal scenarios involving companies are in administrative or civil law. When white-collar crimes are committed, multiple companies evade punishment as they are legal entities. It was nearly impossible to prosecute legal entities due to the difficult task of determining mens rea and actus reus. Companies could pay the penalty and continue their business with no other consequences. Thus, it is crucial to understand the derivative liability theories that currently govern India’s corporate criminal law system.

Indian corporate criminal law is based on two models of culpability.

1. Derivative model – In this, the liability of an organisation or a legal entity is derived from the actions and decisions of those who control the organisation. In company law, there is a well-known saying – the Board of Directors or the Management are the company’s brains, whereas the company is merely the body that does the brain’s bidding. Without the directions or orders of the management, the company cannot carry out any actions. Thus, it is because of the management that corporate crimes take place.

The derivative liability model is further divided into vicarious liability (discussed above) and the identification doctrine. In the identification doctrine, the key individuals of the company are identified.⁸ These key individuals act on behalf of the corporation, thereby making vital decisions for the company.

• Organizational model⁹ – The entire company is considered while determining liability, not just the key persons of management. It is well known that the two essential elements necessary for any criminal offence are mens rea and actus reus. However, with a company being a legal person, the requirement of mens rea is impossible to satisfy. So in this model, the environment created by the company for the commission of the crime or the existing environment that facilitated the company’s crime is looked into. The environment that existed or was created may benefit the company in many ways.

In India, the courts apply a combination of both models of liability.

The Indian Penal Code, 1860 and culpability

1) Based on the doctrine of complicity, the provisions of the IPC from Sections 34 to 38 were drafted, drawing from the fact of common intention.

Section 34 concerns act done by multiple people with a common intention. This includes criminal acts, and all the individuals shall be liable as if they carried out all the acts in furtherance of that common intention.

Section 35 entails derivative responsibility in the context of a criminal act carried out by several persons with criminal knowledge as if an individual did the acts.

Under section 37, if an offence is carried out, and for the commission of that offence, multiple acts were committed, anyone who cooperates for any of those acts shall be said to have committed the offence.

Section 38 provides some clarity as to the charges by stating that several persons who are engaged in committing a crime may be guilty of different offences because of the crime.

2. Abetment sections under Chapter 5 (Sections 107 to 120) are based on derivative responsibility.

Abetment is a request, a command or an urging made by one person to another or among multiple people for the commission of a crime. It includes incitement, inducing statements, commands, encouragements, enticement, requests or even advice given.

Under the IPC, instigation, criminal conspiracy or intentional aiding are the three ways a crime can be abetted. Active complicity is essential for abetment at any point in time before the offence is committed. Abetment is a separate offence, provided that the object of the primary action is an offence.

Under Section 107 (Abetment of a thing), the first kind is instigating a person to any other person to carry out an act. The second kind is a person co-conspires for a crime by an illegal act or an illegal omission. The third kind is if the person intentionally aids another in a crime by any act or an illegal omission. 

Section 109 provides for the punishment of abetment where there is no express provision for its punishment. In such cases, the punishment for the offence will be extended to the abettor. The punishment of the offence extends to the abettor if they have a different intention than the perpetrator (Section 110).

Under Section 119, a public servant who intends to facilitate or knows that his act shall facilitate an offence that he must prevent (as per his duty as a public servant) does so for an offence that is committed; the public servant shall be punished with the term of the offence which is ½ the most extended term of imprisonment or fine or both. If the offence is not committed, the term of imprisonment shall be ¼ of the longest term, a fine, or both. If the offence is punishable by death or life imprisonment, the public servant shall be imprisoned for up to ten years.

There is some ambiguity regarding conspiracy and abetment by conspiracy. Abetment by conspiracy [Section 107(2)] requires an overt act or an illegal omission that is done following the conspiracy. An abettor may only be convicted if the charges against the other conspirators have succeeded. In Section 120A (Criminal conspiracy), a mere agreement is enough to commit a crime. The section has a broader scope than Section 107(2). Section 120A is an independent charge, whereas Section 107(2) is a charge in addition to another offence.

3. Section 120-A of the IPC also draws from the same principle of complicity.

Conspiracy is an agreement made to complete an unlawful objective by unlawful methods. There is no need for a written agreement.¹⁰ Per Section 120A, conspiracy is explained as an illegal act or an act which is not illegal by any illegal methods agreed to be done by two or more people. For conspired acts that are punishable with death, life imprisonment or rigorous imprisonment, the punishment is that of abetment of the offence. For other conspired crimes, the punishment is imprisonment for six months or more, a fine or both. For conspiracies, there must be a meeting of the minds, and an intention between the co-conspirators, post which the crime is committed, an attempt is made, or pre-planned actions are made to attempt the offence eventually.

4. Section 154 of the IPC is based on vicarious liability.

Under Section 154, if an unlawful assembly or riot takes place on land, the owner or occupier of that land is liable for the same and punishable if the owner/occupier/agent/manager does not report the same to the nearest police station at the earliest and does not use lawful means to disperse the crowd or suppress the riot.

5. Section 111 of the IPC relates to the natural & probable consequences doctrine.

The liability of an abettor when they abet one act but carry out another is discussed. In this case, the abettor is liable for the act committed as if he was directly involved in its abetment. The act done must be a probable consequence of the abetment.

Cases by the Indian Courts

• Kartar Singh v. State of Punjab¹¹ – Supreme Court of India

When a question arose regarding the derivative liability based on abetment in TADA, 1987, it held that mens rea is not necessary for abetment charges if mens rea is not essential in the substantive offence. However, concerning the provision solely concerning abetment, the court held that it means the association or the communication with one or more persons, with the knowledge that such person or persons shall engage in terrorist activities. Clarity was given to the abetment provision in the IPC.

• Sanju v. State of MP¹² – Supreme Court of India.

In this case, the husband told the wife to ‘go and die’. The wife killed herself a few days later, and the question was whether the husband had a derivative liability or abetment to her death. It was held that there is no derivative liability as the phrase ‘go and die’ does not amount to abetment. There is a requirement of mens rea, which was not satisfied. Additionally, the suicide took place two days after the fight, so there was no correlation between the fight and the wife’s death. It can be inferred from the judgement that, when it comes to abetment, there is a vital requirement of mens rea, and mere statements do not amount to incitement of an action.

• Somasundaram v. State¹³ – Supreme Court of India

In this case, the apex court held that abetment is a substantive offence, and its punishment is circumstantial. The abettor cannot escape punishment even if the perpetrator is not criminally liable for the act that led to the commission of the offence.

Concerning Corporate Criminal Liability, the following cases are of relevance:

• Standard Chartered Bank v. Directorate of Enforcement¹⁴ – Supreme Court of India

It was held that no company could have a blanket immunity against prosecution of serious offences just because the punishment includes mandatory imprisonment. This case was crucial for laying the foundation for future corporate criminal cases with derivative liability.

• Iridium India Telecom Limited v. Motorola Incorporated¹⁵ – Supreme Court of India

In this landmark judgement, the hon’ble Supreme Court attributed mens rea to the companies themselves. Iridium was a company charged with criminal conspiracy in the case at hand. The question arose about how a corporation can be charged with criminal conspiracy. The court held that a company might also be convicted for statutory offences that require mens rea, as is the case with individuals in society. When an offence is committed by a person in charge of the company’s affairs, the company can be held criminally liable for the same. The degree of control of such persons must also be assessed to attribute the criminal responsibility of the company.  This case changed the narrative of the company’s escaping liability, citing the lack of mens rea. It involved the management of derivative liability.

• Sunil Bharti Mittal v. CBI¹⁶ – Supreme Court of India

This case was regarding the 2G spectrum scam. Certain board members of the companies in question were designated as the ‘coordinating mind and will’ of the companies, so these individuals were issued a summons. This meant that the criminal acts of the companies were attributed to the top management. Thus, derivative responsibility was applied, and the criminal liability of the management was attributed even without any conclusive finding that the management was guilty. Summons was issued merely on the derived liability principle based on the company’s criminal liability. Derivative liability was explicitly applied by the court in this case, thereby passing a landmark judgement on the matter.

Conclusion and Suggestions

Thus, as seen above, there are multiple theories of culpability, of which derivative responsibility theory has a broad scope of application in Indian criminal law. It drives home the idea that no one should encourage/incite/assist the commission of crimes, and those who do so can be punishable by law, despite not being perpetrators.

The following are certain suggestions regarding the theories and laws discussed above.

• Civil agency rules must not be applied to criminal laws as there is a distinct difference between civil and criminal law.
• There needs to be more clarity concerning the IPC provisions on abetment. While there is an express provision for abetment by aiding with a fault element, there is no express indication towards other forms than aiding, such as instigation. To clarify this, inserting a proviso that the fault element shall include knowledge or intention can be made. Therefore, innocents who unknowingly abetted a crime without knowledge or intention can be protected from prosecution.
• Another section with a broad scope for misuse is Section 120A. Here, any agreement intending to breach a contract or commit a tort, followed by an action regarding the agreement, can be punishable by law. This would extend to petty crimes and civil offences as well. The scope for charging people under this section is broad and results in an unnecessarily large number of convictions. The derivative liability is not needed for such petty offences. The Law Commission recommended¹⁷ in 1971 to limit this section to crimes that were punishable with minimum 2-year imprisonment.

References

1. K N Chandrasekharan Pillai, General Principles of Criminal Law, Chapter 4 (Eastern Book Company, 2^nd edition, 2011)
2. Id.
3. Glanville Williams, Textbook of Criminal Law, Chapter 19 (Steven & Sons, 2^nd edition, 1983)
4. Bo Wang, Participation in Crimes: An End to Derivative Complicity Liability?, Page 4 (Law Press, 2018)
5. R v. Jogee, (2016) UKSC 8 (United Kingdom)
6. Supra note 3, at 21 – 24.
7. Sanjana Nayak, The Innocent Abettor – A Comprehensive Study of Section 111 of the Indian Penal Code, 1860, 3, INT’l MGMT. & HUMAN., 927, 928 (2020)
8. Rohit Dhingra & Shruti Kakkad, Corporate Criminal Liability: An Emerging Issue, 4 (2), International Journal of Law Management & Humanities, 1003, 1012 (2021)
9. Id. at 1013
10. Supra note 1
11. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 (India)
12. Sanju v. State of MP, (2002) 5 SCC 371 (India)
13. Somasundaram v. State, (2020) 7 SCC 722 (India)
14. Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530 (India)
15. Iridium India Telecom Limited v. Motorola Incorporated, (2011) 1 SCC 74 (India)
16. Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 (India)
17. Law Commission of India, Forty-Second Report – Indian Penal Code, Ministry of Law – Government of India, 355 (Jun. 1971) https://criminallawreforms.in/reports/lcireports/42nd%20Report%20on%20the%20Indian%20Penal%20Code.pdf

This article is authored by Vibha Chinni Krishnan, a student of Symbiosis Law School, Hyderabad.