e – Voice Of Human Rights Watch – e-news weekly
Spreading the light of humanity & freedom
Editor: Nagaraj.M.R….vol.4 . issue.48……29/11/2008
TO PROTECT HUMAN RIGHTS OF INNOCENTS VISIT ,http://www.amnesty.org
Editorial : PRESTIGE Apartment collapse & Raid by Karnataka lokayukta on police officials
– seizure of crores worth illegal wealth
In Bangalore in the month of November 2008 , an apartment building owned by an influential politician collapsed. Even after days neither the police , corporation authorities or BDA officials or labour officials , were forthcoming to remove the debris , to rescue those entangled inside. First of all this collapse would not have happened if the BDA & BBMP engineers strictly verified the construction project , in India everything building plan , etc can be purchased. The second folly is the police nor the labour officials were doing their duties after such a big accident, why ?
Even in mysore , accidents have taken place at INFOSYS construction campus , but the concerned people have managed it so well that , no complaint is either registered with police or labour department , why ?
WHY NOT THE CONCERNED PUBLIC SERVANTS ARE SUBJECTED TO POLYGRAPH , LIE DETECTOR TESTS , AS THE RECORDS ARE CONCOCTED FAVOURING THE RICH CRIMINALS ? THE RECORDS DON’T SPEAK TRUTH.
The saving grace is honourable Karnataka lokayukta took the lead to investigate this case. Hereby , we urge honourable Karnataka lokayukta , to legally prosecute BDA ,MBBMP engineers , fire & labour department officials who have given their official approval to this project. Just imagine if the building has collapsed after it is occupied by people.
KINDLY REVIEW ALL THE PREVIOUS OFFICIAL ACTIONS OF THESE CORRUPT OFFICIALS AS THERE ARE EVERY POSSIBILITY OF INNOCENTS SUFFERRING INJUSTICES & RICH CRIMINALS GOING SCOT FREE.
in our neighbourhood , in our society private sector employees earning rs.10000 monthly income are finding it hard to meet ends , whereas many of the government officials earning lesser salary than that are leading luxurious lifestyles , how ?
Just yesterday Karnataka lokayukta raided & apprehended high police officials for possessing crores worth illegal wealth much above their stated legal incomes.
recently in the last week Karnataka lokayukta raided , seized illegal wealth of corrupt police , transport officials. The corruption is wide spread in public service including Karnataka lokayukta , central vigilance commission & CBI itselves. In 2006, when Karnataka lokayukta arrested 5 corrupt police officials & taking them in police jeep , 2 corrupt police officials escaped like petty criminals in cinematic manner.
There are vast number of corrupt public servants who are continuing their crimes unabetted due to their sharing arrangements with their higher ups. Only a minute number of corrupt are being booked, by the efforts of honest few in Karnataka lokayukta , CVC & CBI . The paradox is that the government instead of legally prosecuting those criminals – corrupt officials , is sitting over their files for years & have reinstated , promoted tainted officials.
Why do rich people / criminals pay bribe to police ? definitely not for charity , but not to mention their names in the FIR , to let them continue their crimes unabetted , to suppress evidences / witnesses , not to make their arrests , to conduct improper investigations , to close a case with B report , not to produce evidences / witnesses before the court , to fix-up poor innocents , to force the poor innocents to do the bidding of rich criminals , etc .
As a result of these sell out of police duties , rich criminals are going scot free , poor innocents are suffering in jail & corrupt police are amassing illegal wealth.
In the same way corrupt health department officials / doctors are selling out post mortem reports , medical certificates for a price , giving out certificates of legal compliance to adulterated food / medicine manufacturers , thereby killing thousands of people in their selfish greed to make more money.
The labour / pollution control board officials are selling out certicates , to criminal industrialists who are indulging in unfair labour practices , occupational hazards , thereby killing poor people , in their greed to make a fortune.
The tax officials are making lesser / favourable tax assessments favouring industrialists /traders for a price, aiding them to evade tax. As a result the public exchequer is loosing money , for it’s social welfare , defence , other programmes. The ill-gotten wealth of industrialists / traders ie BLACK MONEY is disturbing our national economy & finding it’s way to underworld , mafia & terrorist outfits.
The corrupt police , tax officials , public servants are worse parasites than britishers . the threat & damge to india’s security , integrity is more from these criminals – corrupt public servants than from USA , CHINA or PAKISTAN.
Judicial probe sought into building collapse
The Building Labourers Welfare Kriya Samiti has called for a judicial probe into the recent collapse of portions of the 18-floor Prestige Shantiniketan apartment near Whitefield Main Road.
Talking to presspersons here on Monday, the Samiti blamed the police, fire department and the BBMP for their alleged negligence in the matter. The key eyewitness Shivanna was found dead under mysterious circumstances, but the City Police Commissioner Shankar Bidari had maintained that he was drunk and was found near the railway track, the Samiti members observed.
M Venkatesh Swamy, President of Samatha Sainik Dal, Prof Hassan Mansoor – President PUCL, Kumar Samathala from Karnataka Jana Para and Aditya leader of the Building Labourers Welfare Kriya Samiti were present on the occasion.
The Samiti has requested retired High Court judges and Human Rights activists to be a part of the judicial probe. If judicial probe is not ordered, the Samiti has threatened to stage a protest in front of the chief minister’s house.
Why do people invest in property at premium price with top builders?
– by concerned citizen
- Trust that apartment delivered will be of highest quality.
- Confidence that the project will be delivered on time.
- Hope that the hard earned money will be invested in right channel.
- Faith that you will not be cheated.
Few portion of Under construction building collapsed in Prestige Shantiniketan. This incidence has shaken my confidence with these builders. I just hope that Brigade has taken utmost care on construction quality and I wish that government does proper inspection before releasing occupancy certificate.
BANGALORE: Four persons were injured and another 100 construction workers had a providential escape when a part of a 15-storeyed concrete structure under construction of the Prestige group crashed at Whitefield here on Thursday.
The block which collapsed is part of the 20 blocks under construction by Prestige in a joint venture with Shantiniketan. The top floor slab which collapsed first was laid only a few days ago.
The police told The Hindu that the accident occurred around 5 p.m. when a small portion of the top floor collapsed resulting in the slab of the floor below it collapsing in a short while. Owing to sheer weight, the slabs of the lower floors collapsed subsequently, all in a span of 50 minutes, although the embedded steel rods prevented the slabs from falling in a heap.
The injured were identified as Srinivas (20), Dasharat (25), Mahendra Prasad (25) and Dadudar (30). Dadudar is said to be a native of Bihar and the other three residents of Kadugodi and surrounding areas in Bangalore. They sustained minor injuries when they were running out of the building, and were initially taken to Vydehi Hospital and after first aid were reportedly taken away by the site engineers for further medical attention. The workers were evacuated from the site. Complete information relating to the building collapse is yet to be made available to the police. The Prestige Shantiniketan complex comprises several towers, each of them of several storeys and located in the vicinity of the International Technology Park. There is no information on the strength of the work force at the construction site. A Malaysian construction company (IJM) was building the superstructure for the Prestige Group, which has undertaken the joint venture project with Shantiniketan (Chaitanya Properties) of D.K. Audikesavalu.
Nayeem Noor, vice-president (public relations) of the Prestige group said the collapse occurred after the top floor slab was cast. “The super structure is intact and there are no casualties.” A head count at the construction site has been conducted and it is confirmed that there is no casualty including injury suffered by any person, he added.
Enough time to escape
N.M. Nachappa, security guard at the site, told The Hindu that “the entire building crashed in 50 minutes. There was enough time for all the workers to escape.”
According to an eyewitness, around 4.50 p.m., the slabs of the building started to collapse. Then there were around 120 people, including women and children. “Immediately after the incident, the workers at the construction site had left. Very soon they were sent to isolated places in a few trucks.”
“A Few officers, perhaps from the contractors side, had shifted all the workers to some other location immediately. They instructed the security guard and other workers at the construction site not to answer the media or the police,” he said.
The Bruhat Bangalore Mahanagara Palike has taken a serious note of the accident. Directions have been issued to stop construction pending an inquiry.
Several superstructures are under construction in the vicinity of the ITPL.
One should investigate and follow up with their respective builders on Quality Process followed before occupying the apartment. We also need to do our part whether we have the insurance to cover natural disasters and accidents and whether there are devices available to alert and protect you in case of fires.
By concerned citizen
Prestige Shantiniketan Commercial “C” tower which was under construction collapsed. Whether this building collapse was due to sloppy construction or it was an accident or combination of both we will come to know after government investigation. But this incidence is an eye opener for me or whoever has plans to live in a high rise tower.
I am traveling in a local train, reading newspaper and going to office but I am not able to concentrate on the news that Sensex is down by 1000+ points. There are volley of questions shooting my mind – What should be my next step? What measures should I take before occupying the apartment? The focus has shifted from Children Bed Room Theme and Interior Design to safety.
In next few weeks I will focus my energy on following topics.
- What are the Quality standards and testing process available in market for construction Industry?
- What are Quality standards and Testing process followed by Brigade Metropolis?
- If a Builder claims they are ISO 9001 certified, What does it mean?
- Who does the testing in Brigade Metropolis? Internal Audit or External Audit?
- If Internal audit then why not External audit?
- What was the testing results from Internal/External audit?
- Can the audit results be shared with the investors? That’s again a big question mark whether builder will be transparent enough to provide correct information.
- What are the action taken by Brigade Metropolis from the Internal/External audit?
- What type of audits are done by Government Authority before issuing occupancy certificate? Any examples where occupancy certificate was denied due to violations? What happened next?
- What happens if there is a major flaw in the design or construction? Will investors have to accept because building has been constructed or Builder will go back to their design workshop and rectify the problem? Any case study where it has happened?
- What are the insurance policy available for Fire, Earthquake, any natural disasters or an mankind accident?
- Which is the nearest Fire Station in Whitefield? Does this Fire Station have the capability to fight fire at 20th Floor?
- Does every apartment has Fire alerts? Fire Alarm, Water Sprinkler etc
- What measures should I take for Fire? May be install Fire Extinguisher. Just having Fire Extinguisher may not be sufficient, I also need to learn how to use it.
CRACKDOWN BY KARNATAKA LOKAYUKTA
– Nine public servants in the net
BANGALORE: The Lokayukta police on Thursday searched the residences of nine government officials, who have been accused of possessing assets disproportionate to their known sources of income. Till now, the police have found assets worth Rs. 17.77 crore.
The highest haul is from Deputy Superintendent of Police, Gangavati, Raichur district, D.A. Suryavamshi, who was found having assets worth Rs. 5.07 crore. Among the assets found include three cinemas, two petrol stations, two bar and restaurants, 22 acres of coconut garden, eight wheelers. Mr. Suryavamshi joined service as police sub-inspector in 1979 and has a total salary income of Rs. 25 lakh.
Deputy Superintendent of Police, Tumkur, T.R. Krishnamurthy, was found to have assets worth Rs. 3.31 crore; Depot Manager of Karnataka State Road Transport Corporation Srinivasapura, G. Govinde Gowda (Rs. 2.52 crore); Superintendent of Police Mysore K.T. Balakrishna (Rs. 1.62 crore); Deputy Superintendent of Police, Gokak, Basavaraj Bavlatti (Rs. 1.51 crore); Assistant Conservator of Forests, Sirsi, Shashidhar Ganapathi (Rs. 1.29 crore); Inspector of Motor Vehicles, Raichur, Syed Nisar Ahmed (Rs. 95.98 lakh); Junior Engineer, Hadagali Zilla Panchayat, Prabhakar J.E. (Rs. 71.02 lakh); and Road Transport Officer, Davangere, Shivaraj Patil (Rs. 76.08 lakh).
The raids were conducted simultaneously in Bellary, Huvina Hadagali in Bellary district, Sirsi, Shimoga, Belgaum, Bagalkot, Mysore, Gulbarga and Tumkur.
Among the interesting facts that have come to light include the investment made by Mr. Shivaraj Patil.
“He has spent money on the election campaign of his wife Sujatha, who was the BJP candidate for Devadurg Assembly constituency. We estimated it at Rs. 10 lakh, though it might not be the real sum,” Lokayukta N. Santosh Hegde told presspersons on Sunday.
The other assets of Mr. Patil include two houses in Bangalore, 40 acres of land in Devadurg and two-storeyed building in Gulbarga.
Mr. Shashidhar Ganapathi has a two-storeyed farmhouse on a 9.3-acre farm in Sirsi with banana and sapota, besides 65 Jersey cows. He has four acres of land, 1.5 kg of silver and 6 kg of sandalwood.
Mr. Balakrishna built a commercial complex in Saraswatipuram and purchased 1.16 acres of land in Mysore when was the Deputy Commissioner of Police.
Mr. Govinde Gowda was found running two schools and a residential school at Hunkalli village, 39 acres of land, three houses and three sites.
Mr. Krishnamurthy has been found having four houses in Bangalore, a house in Tumkur, six sites and 72 acres of land.
Mr. Syed Nissar Ahmed has been found living in a five-storeyed palatial house in Bellary. Mr. Hegde said with Thursday’s action, the Lokayukta police had raided and booked 104 officials for possessing assets disproportionate to their known sources of income in the period between November 2007 and November 2008. As many as 249 officials had been caught while allegedly accepting bribe during the last 11 months.
“There has been an increase in the information we are getting. We want more people to come forward to give us complaints,” Mr. Hegde said.
Corporate Crime Condoned
On November 26, 2003, 150 people were poisoned when chlorine gas leaked from Mangalam Drugs and Chemicals, an infamous chemical factory near Sangamner town on the Nashik-Pune highway. The incident took place roughly a week before the 19th anniversary of the Union Carbide gas disaster in Bhopal, but caused barely a stir outside the small industrial town where the incident occurred.
For years before the incident occurred, residents had complained to regulatory authorities and the district administration about the pollution from the factory. Emissions from the chemical plant had made life unliveable for the communities. Last year, the company was given closure orders by the Pollution Control Board. But the High Court set aside the order, and allowed the plant to operate until the tragedy occurred where 150 were injured and 18 seriously poisoned.
A day later, in an unrelated incident in Gaya, Bihar, Satyendra Dubey was murdered by “unidentified assailants” for blowing the whistle on the corrupt contracts that characterised the project. Dubey had conveyed the details of irregularities in the project through a confidential letter to the Prime Minister’s Office. A leak, allegedly from the PMO, alerted corporate interest(s) who set their goondas to silence Dubey.
The Dubey murder and the Sangamner poisoning share a common thread. Both are instances of corporate crime – of a crime perpetrated by a business interest against workers, consumers, the government, communities or shareholders.
Corporate crime results from a business house’ motive to profit at any cost. In the Mangalam case, the company has chosen to save on costs for maintaining safety and environmental quality. With Dubey, the company acted in revenge or to prevent the engineer from leaking any more information about their wrong-doings. In both cases, earlier warnings – and in Dubey’s case, requests for confidentiality – by the victims were ignored by the authorities.
Depending on the stakes, corporations deploy various tools to ensure the security of their businesses. Some of the favourite tools corporations use to neutralise threats include paying bribes, issuing counter-threats, harassment (transfers, suspension, false cases against community or labour activists), police action, political pressure, physical violence or even murder. This is by no means an exhaustive list of tools available at the corporation’s disposal.
A limited liability corporation is the perfect vehicle for a crime. A company can poison an entire reservoir or river, or wipe out a town, run away with your grandmother’s term deposit, or convert corporate crimes the sacred lands of native people to radioactive wastelands. For the worst of these, the liability is limited to civil damages not exceeding the assets of the company. And, any creative accountant will tell you how to manage your assets in times of liability.
Corporations usually have other powerful allies on their sides – the law, the law-makers and the law-enforcers. The courts have had a difficult time coming to grips with the corporation as a criminal. The company’s criminality is seen to arise from the criminal acts of those who manage or direct it.
“[S]ince company is a legal abstraction without a real mind of its own, it is those who in fact control and determine the management of the company, who are held vicariously liable for commission of statutory offences. The directors of the company are, therefore, rightly called upon to answer the charge, being the directing mind of the company,” clarifies the Supreme Court in the 1985 Shriram Oleum gas leak case.
Rather than creatively explore the prospect of criminal liability for companies, the companies’ directors are the only ones left with the responsibility of discharging criminal liabilities. “[T]he corporation has been above the law by the simple device of not being squarely in it,” sums up New Delhi-based legal researcher Usha Ramanathan.
In a 2:1 decision on September 16 (Criminal Appeal No. 142 of 1994 Asst Commr, Assessment II, Bangalore & Ors v. Velliappa Textiles Ltd & Ors), the Supreme Court ruled that a corporation cannot be charged with crimes that carry mandatory sentencing of imprisonment and fine. Because a company cannot be imprisoned, the Supreme Court reasons that it can only be charged with crimes carrying sentencing of a fine even if graver offences are committed.
Ramanathan writes that the observation of the two judges “can be seen by some as a failure of legal imagination. If imprisonment means drawing a convicted offender into a pre-set confined space as a prison, it is arguable that an offending corporation cannot be imprisoned. But, the constituents of imprisonment include detention, restriction of certain liberties and, more recently, it has been held to be about productive work while in prison the wages for which would go to repair the victims’ lives. These are certainly capable of being imposed on a corporation. The notion of imprisonment clearly needs to be re-visited. So too do other possibilities of sentencing of a convicted corporation.” [Ecologist Asia, December 2003]
Unfortunately, Dubey’s death and the poisoning of the Sangamner residents will both go unavenged, with no lessons learnt from the tragedies, and with no insights gained into the insidious menace of corporate crime. Evidence to convict a corporate criminal is not easy to come by, especially if people like Dubey don’t speak out for fear of losing their job or life. In Dubey’s case, the highest offices in the country are charged – with or without intent to cause him harm – with leaking Dubey’s identity and sealing his fate.
The law offers no protection to “whistleblowers” – those who risk their jobs and even lives – to alert the authorities or the public about criminal dealings within an institution. The absence of such laws prevents any but the most courageous from exposing wrong doings in high places.
Even worse, awareness about or acknowledgement of the seriousness of corporate crimes is yet to permeate the corridors of power. The National Crime Records Bureau, for instance, has little data on white-collar or corporate crimes. Such crimes, however, represent a monumental loss of public money – the bank scams, the bankrupt NBFCs, the non-performing assets in public sector banks, illegal lockouts, and the numerous violations of food, product, environmental and workplace safety regulations.
Ralph Nader, an American consumer activist and candidate in the last US presidential polls, identifies corporate crime as one of the most pressing issues facing society. Citing various governmental and industry sources, Nader establishes that white-collar and corporate crimes in the US are far more damaging than street-level crimes.
Health care fraud, for instance, costs the US some $100 million; anti-trust violations about $250 million. “By comparison,” Nader writes, “the FBI estimated that in 2002, the nation’s total loss from robbery, burglary, larcenytheft, motor vehicle theft and arson was less than $18 billion – less than a third of the estimated $60 billion Enron alone cost investors, pensioners and employees.”
In India, this pattern is not likely to be vastly different. Efforts to tackle such crime are grossly inadequate. Only 4 percent of the white-collar criminals get convicted in the Supreme Court, according to a PTI report of November 2003 that quotes C.L. Ramakrishnan, former director of Vigilance and Anti- Corruption. The report also notes that “criminals escape with fines of few thousand rupees for offences running to several hundred crores.”
Criminal charges seldom reach the stage of sentencing. The Union Carbide case in Bhopal presents a classic example of corporate crime gone unpunished. Union Carbide Corporation’s status as a US multinational, no doubt, added a further complicating factor. Immediately after the disaster, the US courts refused to hear the plaints for compensation filed by Bhopal victims on grounds that the forum (in the US) was inappropriate given the robustness of the Indian judicial system. The US court, instead, exhorted Carbide and its officials to cooperate with Indian authorities.
The company and its chief executives did nothing of that sort. They fled to seek refuge in their home country to escape liability that could arise from their crimes in Bhopal if convicted.
Both Union Carbide and Warren Anderson, the chairman of Union Carbide at the time of the disaster, are proclaimed absconders by the Chief Judicial Magistrate’s court in Bhopal for their failure to honour summons issued by the court.
Both Carbide and Anderson face charges of “culpable homicide not amounting to murder” and other crimes. A notice of extradition for Warren Anderson was served more than 10 years after the order seeking his extradition was given. The US Government is yet to respond to the request.
In the meantime, Carbide has added insult to injury by reappearing in India, albeit in proxy. In February 2001, the company merged with US-based Dow Chemical. Although Dow acquired Carbide with full knowledge of the latter’s pending criminal and civil liabilities in India, Dow has made clear that it will not address any of Carbide’s Bhopal liabilities. So certain is it about its position and security of its assets that Dow has opened several offices in India, including the manufacture and marketing of Dursban (chlorpyriphos), a deadly pesticide, in collaboration with National Organic Chemcials Industries Limited (NOCIL). Meanwhile the Indian Government seems in no hurry to challenge Dow’s version of law.
At least part of the blame for the predicament we find ourselves in lies with the fact that our society sees a corporate criminal as undeserving of the strict punishment meted out to common criminals.
Senior corporate executives, like Warren Anderson, who make decisions that kill, poison or rob people often pass off for respectable law-abiding citizens. Unlike the stereotypical common criminals, the top directors of corporate criminals – even convicted criminals – often smell good, drive expensive cars and can legitimately gain access to the policy-making circles of the world governments.
When corporate crimes involve premeditated murder, as in the case of Dubey, the law is clear on the fate of at least the human perpetrators.
But what about poisoning that results from wilful negligence? Not all corporate criminals set their goons to murder those who stand in the way of their money.
Some like Mangalam still exhibit the same depraved indifference to human life and environment in their pursuit for money that they subsidise their production by feeding off the health of the communities and the environment.
The courts are clear about murder, but seem confused about whether or not a little poisoning is inevitable and should be allowed in the interests of “development.”
CORPORATE CRIMES IN INDIA
By Kunal Mehta
Much of our lives and daily routines are affected by corporate activities. To a great extent, companies provide the food we eat, the water we drink, the necessities and luxuries of everyday living. Increasingly, particularly with growing privatisation, it is not the State that provides these amenities – but companies. Such companies generate wealth for the economy and their shareholders and provide employment for much of the population. Short of a revolutionary restructuring of the economy and the political institutions of the country, it is certain that the power and influence of companies will grow and not diminish in the foreseeable future.
But, with great power comes great responsibility. Just as individuals owe a duty not to harm or injure others in society without justification, so do companies owe a duty not to poison our water and food, not to pollute our rivers, beaches and air, not to allow their workplaces to endanger the lives and safety of their employees and the public, and not to sell commodities, or provide transport, that will kill or injure people.
One was again reminded of the corporate crimes when on 19th July, the Supreme Court of India ordered the government to pay a remaining $325.5 million (15.03 billion rupees) due to Bhopal gas tragedy victims. The U.S. based Union Carbide Company, now owned by Dow Chemical Co., paid $470 million in compensation to victims in 1989. But distribution of most of that money was held up by bureaucratic disputes over the categorization of victims. At last on 19th July the victims or their representatives got justice 20 years after the tragedy took place.
The story goes back to the 1984 Union Carbide accident in Bhopal, India, which released a cloud of methyl isocyanate (MIC), hydrogen cyanide, and other toxins. Somewhere between 4000 and 8000 people died at the time, and victims’ advocates estimate that in total over 20,000 have died as a result of this largest industrial accident ever, with 1,50,000 suffering continuing injuries and medical problems.
The cause was extreme corporate malfeasance. The plant was not up to minimal Union Carbide safety standards – large quantities of MIC were unwisely stored in a heavily populated area, the refrigeration unit for the MIC (which is supposed to kept at temperatures below 32 F) was deliberately kept turned off to save $40 per day in costs, the safety systems were dismantled, and the alarm system was turned off. This was in spite of the fact that the same plant had earlier suffered potentially lethal accidental releases of gases like the deadly nerve agent phosgene.
There are a number of corporate crimes that have come into light now days. One of the major havoc that is created in present times is because of mysterious disappearance of corporations. Of the 5,651 companies listed on Bombay Stock exchange, 2750 have vanished. It means that one out of two companies that come to the stock exchange to raise crores of rupees from investors, loot and run away. Even big names like `Home Trade’ (remember Sachin, Sharukh, Hrithik saying Life means more) came up with huge publicity stunts but after raising money, vanished into the thin air. About 11 million investors have invested Rs. 10,000 crore in these 2750 companies. We have Securities Exchange Board of India, Reserve Bank of India and Department of Companies Affairs to monitor the stock exchange transactions but none has documented the whereabouts of these 2750 odd companies suspended from the stock exchange. Many of the promoters and merchant bankers who are responsible for these are roaming scot-free. The market regulators and stock exchanges are unable to penalize them or recover their funds. The regulators have been able to identify only 229 of 2750 vanishing companies so far.
Corporations also commit a number of crimes against their own workforce. With increasing globalization workers find themselves being pushed against the wall and shrinking revenues for redressal. Now days the debates and rage over corporate scams talks only of the interest of shareholders. Nowhere is there a mention of the employee who suffers the most. Take the case of public sector undertakings where many irregularities can be seen in. Factories were opened in some areas where the raw material was not available and where the location was correct, imported machinery was defective. Lavishness on the part of management was one of the factors, which led to these institutions becoming sick. No doubt that the labourers suffers the most in such cases. The plight of Mumbai’s textile workers is even worse. Legal dues have not been paid to 2 lakhs jobless mill workers. Trade unions are fighting with the reality of worker suicides and growing unemployment and the worker’s families are struggling to get over their misery, leave alone fight for dues from faceless management.
The government across the world have given a free hand to corporations to exploit the natural and community resources, while depriving the common people of their right on these resources. For instance, in India, Corporations at Eloor, Kodaikanal and Gujarat have not only destroyed the water and land resources in these areas, but also impoverished communities by degrading their livelihood resources and health. All these communities suffer from disasters similar to Bhopal. Inaccessible to clean and safe drinking water was found to be a major problem in all these areas. The companies either pollute the water resources to an extent where it is no more portable or over exploit it till the water table goes down or dry up the wells. A befitting example could be of Coco Cola bottling plant in Kerala where the company extract excess amount of water from the ground due to which the water level has gone very low and the near by villages are suffering from scarcity of water.
Much has been talked about the pollution created by corporations. A train ride from Mumbai to Ahmedabad would be sufficient to realize the seriousness of industrial pollution the companies cause in this Golden corridor. It is important to note that most of the damages caused to the environment is irreversible.
Adulteration and contamination of food items also have a prominent place in the list of corporate crimes. Last year a PIL was filed by a Delhi based NGO, Srishti, which focused on food safety and quality. It pointed out the incidence of contamination through out the food chain, from the production, marketing to the consumption end. The writ said that consumers are ill aware of the consequences of such contamination or about remedial measures. According to an ICMR bulletin reports, residue data on pesticides on samples of fruits, vegetables, cereals, pulses, grains, oils, eggs, meat, butter and cheese in India indicates their presence in sizeable amount, this in turn affects the health of consumers. Various studies conducted have shown that very high level of extremely toxic pesticides has been found in human blood, fat and milk samples in India. Last year, to one’s utter surprise, it was found that many brands of so called `pure’ and `safe’ bottled drinking water and also cold drinks contain deadly pesticides beyond acceptable limits.
Also, have any one noticed that how much the convicted corporations are involved into dirty game of politics. Corporate Crime Reporter, a U.S. based legal newsletter published a report in July 2003 titled as `Dirty Money: Corporate Criminal Donations to the Two Major Parties.’ This report grew out of the question that how much money are common criminal corporations dumping into the Republican and Democratic parties in U.S.?
The report found that 31 corporate criminals gave more than $9 million to the Democratic and Republican parties during the 2002 election cycle, which runs from January 1, 2001 to December 31, 2002. These corporate criminals gave $7.2 million to Republicans and $2.1 million to Democrats. Many of these corporate criminals are large, multinational corporations, with billions of dollars in assets.
To get a sense of this, let’s look at the top two corporate criminal donors to the Republican and Democratic parties. Archer Daniels Midland (ADM) tops the list. ADM pled guilty in 1996 to one of the largest antitrust crimes ever. The company paid a $100 million criminal fine — at the time, the largest criminal antitrust fine ever. Same is the case in India. These corporate criminals give huge sums of money to the political parties in return of favours from these parties. Who suffers the most is the common man including the shareholders and workers.
Holding Corporations responsible for their criminal acts
In India and internationally, laws to hold corporations accountable are systematically being dismantled, even as corporations and other agents of globalisation dictate policies of nations. The corporate sector enjoys far more rights than the common people. With the onset of the new trade regime, national laws are being changed to empower corporations with the right to hire and fire at will, to get the first right over natural and community resources.
Now it’s high time to put a control over these crimes. There has been a debate as to whether a Corporation can be held criminally liable. There are two theories regarding this- `Nominalist’ and `Realistic’. Nominalist theory of corporate personality view corporations as nothing more than collectives of individuals. In this an individual first commits the offence; the responsibility of that individual is then imputed to the corporation. According to Realist approach corporations have an existence, which is to some extent independent of the existence of its members. Here, the responsibility of corporation is primarily. The `Realist’ theory looks more convincing and practically applicable.
The argument in favour of corporate being criminally liable is that in many cases it is the corporation itself, through its policies or practices, that has done wrong and prosecution and punishment should be directed at the real wrongdoer. In many cases there is no individual who, alone, has committed a crime. It is the conjunction of the practices of several individuals, all acting in compliance with a company’s sloppy or non-existent procedures, that has caused the harm. Alternatively, in many cases companies have complex structures with responsibility buried at many different layers within the corporate hierarchy making it difficult, if not impossible, to determine where the true fault lies.
The common law jurisdictions have adopted the approach and recognize that corporations may be held criminally liable. However, they do highlight the conceptual difficulty in applying a theory of criminal liability based on a view of fault centered on the psychological processes of humans to what is simply a fictional person. There is an apparent need, now, to adapt the notion of fault to the structure and particular modus operandi of corporations. The existing mechanisms used to attribute criminal liability to corporations are but a partial solution, and should be improved.
In so far as negligence as a fault element is concerned, it might be necessary to provide that criminal negligence refers to a significant departure from the standard of conduct of a prudent and diligent corporation. Corporate negligence is established by proof of negligence of its employees, agents or officers or, if no one individually is negligent, that the body corporate’s conduct, viewed as a whole, is negligent. This collective negligence may be established by proof that the prohibited conduct was substantially attributable to inadequate management control or supervision, or failure to provide adequate systems for conveying information within the body corporate.
The Doctrine of direct Liability (Theory of corporate organs): This doctrine, which was specifically developed for the purpose of imposing liability on corporations, seeks, in fact, to imitate the imposition of criminal liability on human beings. The direct doctrine relies on the notion of personification of the legal body. It identifies actions and thought patterns of certain individuals within the corporation called corporate organs who act within the scope of their authority and on behalf of the corporate body, as the behaviour of the legal body itself. Hence, the name of the doctrine: the theory of corporate organs or the alter ego doctrine referring to these individuals as the embodiment of the legal body. In its wake corporation can be rendered criminally liable for the very perpetration of the offences, resembling the liability imposed on a human perpetrator, subject to the natural limitations that follow from the character of the corporations as a legal personality.
But, the procedure to prove corporations criminally liable is, prima facie, rather complex. If intention, knowledge or recklessness is an essential ingredient of the offence, these fault elements must be attributed to the body corporate if it expressly, tacitly or impliedly authorized or permitted the commission of the offence. First, the corporation’s fault will be established (vicarious liability) if the body corporate’s board of directors intentionally, knowingly or recklessly carried out the wrongful conduct, or expressly or by necessary implication authorized or permitted the commission of the offence. Second, the corporation’s fault may be established by evidence that a high managerial agent of the company intentionally, knowingly or recklessly engaged in the relevant conduct or expressly, tacitly or impliedly authorized or permitted the commission of the offence. In this second case, however, the corporation will not be liable if it proves that it exercised due diligence to prevent the conduct. Third, the corporation’s fault may be established by proof that a corporate culture existed within the body corporate that encouraged, tolerated or led to non- compliance with the relevant provision. Fourth, the corporation’s fault may be established by proving that it failed to create and maintain a corporate culture that required compliance with the relevant provision.
The notion of corporate culture as a foundation for corporate criminal liability
Generally speaking, it can be said that corporate culture refers to a “pattern of shared beliefs and values that give the members of an institution meaning and provide them with the rules for behavior in their organization”. This rather broad notion can be used for many purposes, and is helpful in analyzing a corporation’s personality in many respects. For the purposes of attributing criminal liability, corporate culture refers primarily to the chain of command, the decision-making structure and the general atmosphere concerning obedience to the law. The following indicators are often singled out as pointing to facets of corporate culture that are relevant in the context of criminal liability.
First, the development within the corporation of clearly defined responsibilities concerning the creation, evaluation and application of standards and procedures designed to ensure compliance with the law by employees would be a significant indicator of a corporate culture that is heedful of compliance with the law. If, for example, the corporate structure is so organized as to deprive senior managers of the information they need to exercise such powers, this would indicate a corporate culture that is designed to elude law enforcement. Generally, deficient structures for the dissemination of information within the firm would also be suspect. Indeed, providing that a deficient corporate culture can be the basis for a charge of intentionally committing a crime transforms into an intention what in my opinion is simply negligence but it must be proved that the corporate culture instigated, encouraged or led to the commission of the offence or that the failure to maintain a law-abiding atmosphere was deliberate.
Corporate Mens Rea Doctrine
It is often asserted that companies themselves cannot commit crimes; they cannot think or have intentions. Only the people within a company can commit a crime (Sullivan 1995). However, once one accepts that the entire notion of corporate personality is a fiction – but a well-established and highly useful one – there seems no reason why the law should not develop a concomitant corporate mens rea fiction. Most of the other doctrines – identification, aggregation etc. – involve fictitious imputations of responsibility. The real question is not whether the notion of a corporate mens rea involves a fiction, but whether, of all the fictions, it is the one that most closely approximates modern-day corporate reality and perceptions. While this inevitably will raise problems of how to assess policies and procedures to ascertain whether they reflect the requisite culpability, such a task is not impossible. The answers might not be easy, but at least this approach involves asking the right questions.
It is often argued in opposition to corporate criminal liability that the imposition of fines provides no guarantee that delinquent conduct will be deterred. The fines imposed on corporations are often minimal in comparison with the devastating effects of their wrongful acts, and virtually amount to a cost of doing business. But there is also a concern that excessive fines can have perverse effects that may have to be borne by innocent shareholders, creditors, employees or consumers.
But, it should be remembered that the punishment of companies decreases their overall wealth. Accordingly, shareholders and employees have an incentive to encourage and monitor better corporate practices. Costs can only be passed on the public to the extent that the company remains competitive. Arguments that shareholders and employees need protection must be outweighed by the greater societal interest in ensuring the safety of employees, the public and the environment.
In my opinion, there should be a distinct part of the Indian Penal Code expressly covering corporations. Criminal sanctions, in my view, are appropriate only if it is in fact the organization, its modes of operation and its deficient structures that are singled out where they produce unacceptable consequences that could have been avoided given the resources and information at the corporation’s disposal.
One of the main objects of corporate criminal liability is to ensure that companies improve their work practices. If no individual who has committed a crime can be identified and no mechanism for corporate prosecution was to exist, the harmful practices would continue unabated. Companies should be prosecuted and convicted for the same general offences as individuals and subject to the same general rules for the construction of criminal liability. The law should recognise and give effect to the widely held public perceptions that companies have an existence of their own and can commit crimes as entities distinct from the personnel comprising the company. Prosecution of companies, particularly when accompanied by media attention, can provide a significant impetus to companies to improve their practices or can prompt law reform to improve safety standards.
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