INSIGHTS
Taming the Shrew
A type of crime
The world has witnessed nuclear disasters, environmental pollution, negligence caused by giant corporates resulting in large scale death and destruction of life and property, most of whom are in no way connected with the corporate!
When giant corporations do things unintentionally or negligently that result in large scale loss of life, property or environment, it is considered as corporate manslaughter.
ManslaughterThe unlawful killing of another without malice, either express or implied; which may be either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act - BLACK’s Law Dictionary
Instances of corporate manslaughter have dated back to the 19th century. In 1980, a ship called the Herald of free enterprise capsized and sank off the Belgian coast after the bow doors of the ferry did not close resulting in water flooding the ship. Almost 200 people lost their lives.
In 1993, the owner of an adventure activity company in England was found guilty for the death of youngsters while they were kayaking in sea. It was proved that the instructors were inexperienced and did not guide the amateur kayakers in sea that resulted in death of teenagers.
The story back home
India is witness to such infamy too. One of the world’s worst industrial disaster – the Bhopal gas tragedy unfolded on a December 1984 night when methyl isocyanate (MIC) gas leaked from badly maintained faulty valves of the Union Carbide India Ltd plant set up in India. Considered the most toxic chemical, the gas rapidly spread around Bhopal. Thousands of people died due to inhalation, asphyxiation and suffocation. Lakhs of people sustained permanent injuries. Their descendants are still paying the price by having birth deformities.
In 1997, the Uphaar Cinema theatre in Delhi was engulfed in fire when a transformer that was installed near the parking lot exploded. As a result smoke entered through air conditioners and narrow hall ways into the theatre. The exits were blocked due to additional seating put right in front of them making it impossible for the audience to escape through the exit routes. This, coupled with delay by the management of the cinema theatre in seeking police and fire service rescue resulted in deaths of 59 people.
Similarly in December, 2011 AMRI hospital in Kolkata was engulfed in fire resulting in 92 people losing their lives. The fire, triggered by placing flammable chemicals stored alongside medical waste by the hospital staff. Adding to the woes, emergency equipment installed was not functioning properly.
In Chennai, in 2014 an under construction building collapsed trapping and killing several workers. The primary reason seemed to be the carelessness of the Management of the company and the structural engineer in the taking safety precautions for the construction workers. Several regulations and approvals were not complied with and obtained by the Management.
In India, there is no exclusive or express legislation for trying offences of corporate manslaughter. All such cases (including the ones mentioned above) are tried under the provisions of the Indian Penal Code (IPC).
IPC sections that are primarily invoked to try corporate manslaughter cases:
- Section 304 A – Death by negligence – 2 years imprisonment & fine
- Sections 336 to 338 – endangering life and personal safety of others – minimum 3 months’ to 2 years imprisonment or fine from Rs. 250 to Rs. 1,000 or both
- (Above sections are read with) Section 35 – aspect of common intention
A snapshot of (in)famous cases
Legal case
The staff on the factory premises and the Chairman of company were found guilty.
Penalty
Extradition and arrest of the chairman of the company and payment of USD 3.30 billion which was subsequently reduced to 470 million as result of settlement between GOI and UCC.
Current status
The Chairman could not be extradited as the US government rejected it. He was absconding and died in 2014. The settlement amount is insufficient to compensate the devastation of such magnitude. Not all affected have been compensated.
Legal case
The directors of the private company that owned the cinema theatre were arrested. The families of the perished formed an association and fought the case.
Penalty
The High Court awarded Rs. 60 crores compensation and ordered the imprisonment of the directors.
Current status
In 2017, the Supreme Court ordered the directors to pay Rs. 30 crores as compensation and awarded 1 year imprisonment to one of the directors letting go off the other director in view of his advancing age.
Legal case
The hospital license was cancelled. 6 board members were arrested.
Penalty
-
Current status
Directors got bail in 2012. Trial of the case commenced in September, 2016.
Legal case
The directors of the real estate company, were arrested.
Penalty
-
Current status
Directors got bail in 2014. Trail yet to commence.
United Kingdom is the first country to enact the Corporate Manslaughter Corporate Homicide Act, 2007 that became effective on 6th April, 2008.
For a corporate to be held liable for corporate manslaughter, there must exist gross breach of duty and or negligence on part of the senior management. This is broadly based on the principle of vicarious liability and the doctrine of identification
Simply put, vicarious liability is secondary liability wherein the superior is responsible for the acts or omissions of the subordinate, where such superior had the right and duty to control the subordinate.
Doctrine of identification
It is well established in Corporate Law that a company is an artificial person. Nevertheless it requires a set of competent people to run its affairs on behalf of the company. The doctrine of identification takes this one step further and imposes liability for a crime committed by a company / corporate on those persons or people who run and control the affairs of the company. This coupled with vicarious liability will ensure that strict action is taken against the people who control the working of the company – its senior management.
Corporate laws found wanting
In reality, convicting corporates for offences of manslaughter is very abysmal. It is challenging to prove mens rea. - that the directors, acting on behalf of the company had criminal intent to cause large scale death or loss. Also, penalties imposed on the senior management of such companies hardly justify the magnitude of the loss of life or property.
Conclusion
Like England and Hong Kong, it is essential to ensure that a separate legislation for corporate manslaughter is enacted on a war footing to address the growing cases of manslaughter by corporates. Corporates should not focus only on maximisation of profits as its sole aim. It should focus equally on duty of care and utmost caution.
A tête-à-tête with
Mr. T T Rangaswamy of the TVS group
Q&A
What has been the turning point of your life?
My employment with TVS group – Brakes India, Turbo Energy & ABI Showatech
What do you consider your greatest achievement?
Being friendly
What is the one principle that has carried you this far?
Hard work and honesty
What is the one Character trait or Strength of yours that you admire the most?
Be good and do good to others
What is the best indicator of your leadership?
Being humane & ability to understand others’ difficulties
What are your top two regular practices that have helped you in life?
Prayer and exercise
What is your most important advice for time management?
Set targets and follow up
What is the single most important factor that clinches a deal?
Negotiation
What is your definition of success?Mental satisfaction
What is the most valuable lesson learnt so far?Teamwork always pays
What is the most important factor in resolving conflicts?
Hear both sides and take an impartial view
What is the most important indicator of performance of an organization?
Profits and cash management
What is the most important factor to foster innovation?
Encouragement
What is a key factor in building and maintaining a strong team?
Understanding the issues and resolving them
If you are given an opportunity to live all over again what would you have done?
I will decline the offer and say allow me to be in peace
When you feel alone, what gives you the strength?
Note down points for which action has to be taken during the day, week and month
What is that one thing that you wish to change in this world using your talent and potential?
Tendency of people to procrastinate
What is one professional tip that you would like to share?
Use your common sense
In a first of its kind, our founder Mr. A.K Mylsamy talks about interesting legal cases argued by him. Listen in!
AT THE HELM OF AFFAIRS
INFOGRAPHIC
Cyber Law
The story of alphabet A
The first letter in the English and most alphabets derived from the Roman or Latin alphabet, which was one of several ancient Italian alphabets derived from Greek, which was adaptation of Phoenician. The First letter in the Phoenician alphabet was called “aleph”, meaning “ox”, which is also the meaning of the first letter in the Greek alphabet alpha. Alpha and the second letter of the Greek alphabet ,beta, were combined to form ”alphabet”, which is largely the same in different languages.
A in Latin and law Latin
Anglo-American law abounds in Latin and French words and phrases, and the use of A in these languages is important to the English speaking lawyer. In Latin “A” was used both as an abbreviation and as a symbol. In law Latin, ”a” means “by”, ”with”, ”from”, ”in", ”of” and “on”.
A in French and law French
In French A is a preposition,the meaning of which largely depends on context. it is usually translated as “into”, ”at”, ”tp”, ”in”, ”by”, ”of”, ”with”, ”on”, ”from”, ”for”, ”under”, ”till”, ”with-in”, ”between” etc. In law French “a” is used as a preposition meaning ”at”, ”for”, ”in”, ”of”, ”on”, ”to” and ”with”.
The word ”a” has varying meanings and uses, ”A” means “one” or “any”, but less emphaticlly than either. It may mean one where only one is intended, to it may mean any one of a great number. It is placed before nouns of the singular number, denoting an individual object or quality individualized.
The article ”a” is not necessarily a singular term; it is often used in the sense of ”any” and is applied to more than one individual object. Lewis V. Spies, 43 A.D.2d 714, 350 N.Y.S. 2d14, 17. So under a statute providing that an issuance of ”a” certificate to one carrier should not bar a certificate to another over the same route, a certificate could be granted to more than two carriers over the same route. Crown Coach Co. V. Public Service Commission, 238 Mo.App.287, 179 S.W.2d 123,127.
Article “a” in a statute making it a crime for a person to have in possession a completed check with intent to defraud includes the plural. People V. Carter, 75 C.A3d 865, 142 Cal.Rptr. 517, 520.But the meaning depends on the context. For example in Workers Compensation Act, on, or in or about “a” railway, factory, etc., but the railway, factory, etc., of the employer. Where the law required the delivery of a copy of notice to husband and a copy to wife, the sheriff’s return that he had delivered “a copy” to husband and wife was insufficient. State V. Davis, Tex.Civ.App., 139 S.W.2d 638,640.
LEGAL-EASE
A'
CIRCULARS & NOTIFICATIONS
MCA
SEBI
FEM
- Cir.dt. 06.10.2017 - Categorization and rationalization of Mutual Fund Schemes
- Cir.dt. 10.10.2017 - Non-compliance with the MPS requirements
- Cir.dt. 16.10.2017 - Criteria for settlement mode of commodity Derivate Contracts
- Cir.dt. 17.10.2017 – Securities and Exchange Board of India Guidelines 2015 Amendment
- Cir.dt. 12.10.2017 - Facilities for Hedging Trade Exposures invoiced in Indian Rupees
- Cir.dt. 12.10.2017 - Exim Bank's Government of India supported Line of Credit of USD 318 million to the Government of Sri Lanka
- Cir.dt. 12.10.2017 - Exim Bank's Government of India supported Line of Credit of USD 1 billion to the Government of Mongolia
This 1986 movie starring Robert Redford, Daryl Hannah and Debra Winger is multi genre film - comedy, thriller, court room drama. Redford plays the role of an ambitious district attorney on the way to becoming a district attorney. He is prosecuting against Chelsea Reardon (Daryl Hannah), a youngster troubled by her past and accused of stealing her own father's painting from villainous art dealer. But this is just the tip of the iceberg as he along Chelsea's lawyer played by Debra Winger, dig deeper only to find a conspiracy that threatens their very existence, if unraveled.
This legal drama series premiered on American television in June 2011. Set in a fictional law firm in New York, the show is centered around Mike Ross played by Patrick Adams. The immensely talented law school dropout sets out to work as a legal associate and helps his senior is many a case with tact and presence of mind.
(P)REVIEW
No man is above the law and no man is below it
Theodore Roosevelt
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