Disclaimer: The views expressed here are solely those of the author in private capacity and do not in any way represent the views of the Legal Ocean or its editors, or any other representatives associated with Legal Ocean.

Article 20 (3) of the Indian Constitution provides that “No person accused of any offence shall be compelled to be a witness against himself.” This article can find its roots from the maxim “Nemo Teneteur Prodre Accussare Seipsum” which means No man is bound to accuse himself. The provision borrows from the Fifth Amendment of the American Constitution which lays down that, “No person shall be compelled in any criminal case to be a witness against himself” This libertarian provision can be connected to an essential feature of Common Law that, an accused is innocent until proven guilty and the burden is on the prosecution to establish the guilt of the accused; and that the accused has a right to remain silent which is subject to his much broader right, against self-incrimination. This article discusses the privilege of corporate entity against self incrimination.

Whether corporate entities have right against self incrimination

Position in India

In State of Maharashtra v. Nagpur Electric Light and Power Co. Ltd. [1961] AIR 1961 Bom 242 Bombay High Court held that a corporate entity can be included under Article 20(3). The court referred to the Supreme Court decision in M.P.Sharma vs Satish Chandra 1954 AIR 300 which observed that to be a witness is nothing more than to furnish evidence. Bombay High Court further held that it is true that a company as such cannot give oral evidence in any case but the expression “to be a witness” has been interpreted to mean “to furnish evidence” and a company is certainly capable of furnishing documentary evidence against itself. 

 The court observed that Article 367 of the Constitution provides that “Unless the context otherwise requires, the General Clauses Act, 1897, shall … apply for the interpretation of this Constitution.” Section 3(42) of the General Clauses Act says that the word “person” shall include any company or association or body of individuals whether incorporated or not. It follows that the word “person” occurring in Article 20(3) must unless the context otherwise requires to be deemed to include companies, and unincorporated bodies. The court did not find that the context in which the word “person” occurs in Article 20(3) requires that the word should be limited to natural individuals.

A contrary view was taken in a later decision by Calcutta High Court in Godrej Soap Ltd. vs. State 1991CriLJ828 in which the court held that a corporate entity is not a person under Article 20 (3).   The court held that an artificial person cannot be a witness as under Oaths Act 1969 a witness is a person who before giving evidence must make an oath or affirmation. Since an incorporated company or other corporate bodies cannot make an oath or affirmation cannot be a witness. The court further held that Article 20 (3) only applies to an accused who if he chooses can become a witness and since a company is incapable of making nay oath cannot become a witness.

The court further observed that under Section 139 of the Evidence Act, a person summoned to produce a document does not thereby become a witness. The Hon’ble Supreme Court in M.P. Sharma ruled that this section was “meant to regulate the right of cross-examination ‘only and was'” not a guide to the connotation of the word “witness” in Article 20(3). This view in M.P. Sharma has been negatived by a larger Bench of the Supreme Court in Kathi Kalu Oghad  AIR 1961 SC 1808, and, therefore the ratio in the in Nagpur Electric Light and Power can no longer be accepted to be good law.

Position in the United States

The United States Supreme Court in U.S. vs Kordel 397 U.S 1 (1970) held that the Fifth Amendment protections against self-incrimination extend only to natural persons. In Braswell vs. U.S. 487 U.S 99 (1988) the Court has held that a corporation’s custodian of records can be forced to produce corporate documents even if the act of production would incriminate him personally.

In Hale v. Henkel, 201 U.S. 43 (1906) and later in United States v. Jasper White (322 US 694), it has been ruled that the Constitutional privilege against self-incrimination is essentially a personal one, applying to natural individuals and since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation.

Position in England

In England, corporations have claimed the privilege against self incrimination successfully since the 1938 case Triplex Safety Glass Co. v. Lancegaye Safety Glass Ltd [1939] 2 K.B. 395, 408.  In which the main issue was whether the risk of incrimination was bona fide. The court allowed the defendants to claim the privilege because the prosecution was possible, however remote. Addressing whether to grant the privilege to corporations, the court found that, although a corporation cannot suffer the physical pains of a natural person, it can suffer conviction and punishment. As a result, the company’s reputation might suffer serious damage.  Therefore, the court saw no reason why corporations could not claim the privilege. Since the Triplex, the privilege has been available to corporations without serious reconsideration by the English courts.

Position in Australia

Previously Australia followed the English rule and permitted corporations to claim the privilege.[1] However, the Australian High Court never explicitly adopted the rule and merely assumed the privilege’s applicability to corporations. In 1993, the High Court confronted the issue in Environment Protection Authority v. Caltex Refining Co. (1993) 178 C.L.R. 477 (Austl.) and abolished the privilege for corporations.

The High Court extensively reviewed the common law authorities in the United States, England, Canada, and New Zealand. Noting the contrary position taken by different countries the court concluded that the history of the doctrine was to prevent the state from compelling incriminating testimony from individual human beings and therefore the privilege of self incrimination should not be extended to corporations.

Additional Case laws

The State Trading Corporation of India Ltd. and Ors. vs. The Commercial Tax Officer, Visakhapatnam and Ors.

6. Before dealing with the arguments at the Bar, it is convenient to set out the relevant provisions of the Constitution. Part III of the Constitution deals with Fundamental Rights. Some fundamental rights are available to “any person”, whereas other fundamental rights can be available one to “all citizens”. “Equality before the law” or “equal protection of the laws” within the territory of India is available to any person (Art. 14). The protection against the enforcement of ex-post-facto laws or against double-jeopardy or against the compulsion of self-incrimination is available to all persons (Art. 20); so is the protection of life and personal liberty under Art. 21 and protection against arrest and detention in certain cases, under Art. 22. Similarly, freedom of conscience and free profession, practice and propagation of religion is guaranteed to all persons. Under Art. 27, no person shall be compelled to pay any taxes for the promotion and maintenance of any particular religious denomination. All persons have been guaranteed the freedom to attend or not to attend religious instructions or religious worship in certain educational institutions (Art. 28). And, finally, no person shall be deprived of his property save by authority of law and no property shall be compulsorily acquired or requisitioned except in accordance with the law, as contemplated by Art. 31. These, in general terms, without going into the details of the limitations and restrictions provided for by the Constitution, are the fundamental rights which are available to any person irrespective of whether he is a citizen of Indian or an alien or whether a natural or an artificial person.

[1] Pyneboard Pty. v. Trade Practices Comm’n (1983) 152 C.L.R. 328, 335 (Austl.), Controlled Consultants v. Commissioner for Corp. Affairs (1985) 156 C.L.R. 385, 394 (Austl.),  Concrete Constrs. Pty. v. Plumbers and Gasfitters Employees’ Union (1987) 71 A.L.R. 501, 518 (Fed. Ct. Austl.)

Leave A Comment

Your email address will not be published. Required fields are marked *