PROJECT REPORT ON

BECCARIA AND CRIMINAL THEORY

SUBMITTED BY:
PANKHURI DWIVEDI

In partial fulfillment for the course of

INDIAN PENAL CODE
(IVTH SEMESTER)

DECLARATION / UNDERTAKING

Respected Maam,
I represent that the Project is original, has never appeared in any other publication, and is not
copyrighted by anyone or any firm. I further represent that this Project has not been
simultaneously submitted to any other publication for consideration.
I represent that this Project contains no violation of any existing copyright or other third party
right or any material of an obscene, indecent, libelous or otherwise unlawful nature and that to
the best of our knowledge this Project does not infringe the rights of others.
I represent that the text reported in the project is the outcome of our own efforts and no part of
this project assignment has been copied in any unauthorized manner and no part has been
incorporated with due acknowledgement.
Moreover, proper citations/references have been given for such use of other materials in this new
work.
Sincerely,
PANKHURI DWIVEDI

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RESEARCH METHODOLOGY
I.

RESEARCH QUESTION

1. What are the basic principles deviating from the concept of separate legal personality of a
company?
2. What are the various statutory provisions and doctrines which aims to strike a balance
between the importance of separate legal personality of a company and lifting of
corporate veil in due and proper case?

II.

SCOPE & LIMITATION

The scope of this paper extends Indian as well as English law. However, some judicial decisions
of the Court of Hong Kong have also been used to further elaborate on the concept. Primary
statutory acts which have been used are the Indian Companies Act and the UK Companies Act.
III.

OBJECTIVES

This paper attempts to carve out a clear picture as to various statutory provisions and principles
which deviate from the concept of separate legal personality of a company. The paper also aims
to discuss many contemporary issues and problems which have been persisting in the corporate
world pertaining to the importance of upholding the concept of separate legal personality of a
company while at the same time the need for piercing the corporate veil of the entity.

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TABLE OF CONTENTS

ABOUT CESARE BECCARIA............................................................................................................6

II.INTRODUCTION TO BECCARI'S CRIMINAL THEORY .................................................................6
III. STATUTORY PROVISIONS VIS--VIS LIFTING OF CORPORATE VEIL.......................................7
1. POWER

OF INSPECTOR TO INVESTIGATE AFFAIRS OF ANOTHER COMPANY IN SAME GROUP OR

MANAGEMENT...............................................................................................................................7

[i] Privilege as to report about related companies..................................................................7

[ii] Duties of Inspector.............................................................................................................8
2. DISCLOSURE OF INTEREST BY DIRECTOR.................................................................................8
3. LIABILITY FOR FRAUDULENT CONDUCT OF BUSINESS..............................................................9
[i] Intent to defruad...............................................................................................................10
[ii] Carrying on business with willful blindness....................................................................11
4. REDUCTION OF MEMBERSHIP BELOW STATUTORY MINIMUM..................................................11
5. MISDESCRIPTION OF NAME ....................................................................................................12
6. REGISTER OF DIRECTOR' SHAREHOLDINGS.............................................................................12
7. DIRECTOR, ETC., NOT TO HOLD OFFICE OR PLACE OF PROFIT.................................................12
IV. JUDICIAL INTERPRETATIONS VIS--VIS LIFTING OF CORPORATE VEIL...............................12
V. CONCLUSION.............................................................................................................................15

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CESARE BECCARIA AND CRIMINAL THEORY

I.

ABOUT CESARE BECCARIA

Cesare Beccaria was born on March 15, 1738, in Milan, Italy. In the early 1760s, he helped form
a society called "the academy of fists," dedicated to economic, political and administrative
reform. In 1764, he published his famous and influential criminology essay, "On Crimes and
Punishments." In 1768, he started a career in economics, which lasted until his death on
November 28, 1794, in Milan, Italy. Beccaria wrote On Crimes and Punishments (1764). Some
background information was provided by Pietro, who was in the process of authoring a text on
the history of torture, and Alessandro was an official at a Milan prison had first hand experience
of the prison's appalling conditions. The brief work relentlessly protests against torture to obtain
confessions, secret accusations, the arbitrary discretionary power of judges, the inconsistency
and inequality of sentencing, using personal connections to get a lighter sentence, and the use of
capital punishment for serious and even minor offenses. Almost immediately, the work was
translated into French and English and went through several editions. Philosophers of the time
hailed it, and several European emperors vowed to follow it. Beccaria continued to gain official
recognition and held several nominal political positions in Italy. Separated from the invaluable
input from his friends, though, he failed to produce another text of equal importance.

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II.

BECCARIA

ON CRIME AND PUISHMENTS

Beccaria opens his work describing the great need for reform in the criminal justice system, and
he observes how few studies there are on the subject of such reform. Throughout his work,
Beccaria develops his position by appealing to two key philosophical theories: social contract
and utility. Concerning the social contract, Beccaria argues that punishment is justified only to
defend the social contract and to ensure that everyone will be motivated to abide by it.
Concerning utility (perhaps influenced by Helvetius), Beccaria argues that the method of
punishment selected should be that which serves the greatest public good.
Contemporary political philosophers distinguish between two principle theories of justifying
punishment. First, the retributive approach maintains that punishment should be equal to the
harm done, either literally an eye for an eye, or more figuratively which allows for alternative
forms of compensation. The retributive approach tends to be retaliatory and vengeance-oriented.
The second approach is utilitarian which maintains that punishment should increase the total
amount of happiness in the world. This often involves punishment as a means of reforming the
criminal, incapacitating him from repeating his crime, and deterring others. Beccaria clearly
takes a utilitarian stance. For Beccaria, the purpose of punishment is to create a better society,
not revenge. Punishment serves to deter others from committing crimes, and to prevent the
criminal from repeating his crime.
Beccaria argues that Punishment should be swift since this has the greatest deterrence value. He
defends his view about the swiftness of punishment by appealing to the theory of the association
of ideas. Given the fact that the swiftness of punishment has the greatest impact on deterring
others, Beccaria argues that there is no justification for severe punishments. In time we will
naturally grow accustomed to increases in severity of punishment, and, thus, the initial increase
in severity will lose its effect. There are limits both to how much torment we can endure, and
also how much we can inflict.

Beccaria touches on an array of criminal justice practices, recommending reform. For

example, he argues that dueling can be eliminated if laws protected a person from
insults to his honor. Laws against suicide are ineffective, and thus should be eliminated,
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leaving punishment of suicide to God.]He argues that laws should be clear in defining
crimes so that judges do not interpret the law, but only decide whether a law has been
broken. Punishments should be in degree to the severity of the crime. In "On Crimes and
Punishments," Beccaria identified a pressing need to reform the criminal justice system, citing
the then-present system as barbaric and antiquated. He went on to discuss how specific laws
should be determined, who should make them, what they should be like and whom they should
benefit. He emphasized the need for adequate but just punishment, and went so far as to explain
how the system should define the appropriate punishment for each type of crime.Unlike few
documents before it, "On Crimes and Punishments" sought to protect the rights of criminals as
well as the rights of their victims. Hestressestheimportanceoflawsbeingclearandknown
becausearationalpersoncannotmakearationalchoicenottocommitanactifheorshedoes
notknowthattheactisprohibited.Iflawsareclear,neednointerpretationandareknowntothe
publicthancrimewillgodown.Beccariahadmanythingstowriteconcerningtheprinciplesof
punishmentifonceanindividualisfoundguiltyofcommittingacrime.Thetwomainprinciplesis
thattobeeffectivepunishmentsmustbecertainandprompt.Hestatesthat,"thecertaintyofa
punishment,evenifitbemoderate,willalwaysmakeastrongerimpressionthanthefearof
anotherwhichismoreterriblebutcombinedwiththehopeofimpunity"Tobuildtheconnection
betweenthecrimeandthepunishmentitisessentialthatthepunishmentisprompt.Itiswritten
inthetreatiseof"OnCrimesandPunishments"that"themorepromptlyandthemoreclosely
punishmentfollowuponthecommissionofacrime,themorejustandusefulwillitbe.Inorder
forapunishmenttobeeffectiveinstoppingfurthercrimesthepunishmentmustbecertainand
prompt. on a social contract foundation: state sovereignty, Beccaria writes, is the
sum total of the freedom that individuals relinquish in exchange for a measure of
security, and, in this sense, the political sovereign is vested with the legitimate right
to provide security and to embody the public well-being. I

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III.

SOCIAL CONTRACT THEORY

According to Beccaria in 'Crimes and Punishments,' all human beings have three fundamental
things: free will, the capability for rational and self-interested notion and manipulability.
Beccaria also said and claimed as to what ultimately caused people to perpetuate crimes and sad
that the options they voluntarily and freely make in their own self-interest at times conflict with
the interests of society at large. Beccaria, further, believed in most classical theorists that free and
voluntary will facilitates people to make various choices. He also postulated that people have a
coherent and rational manner which they aptly apply toward making choices that aids them to
accomplish their own personal gratification. In Beccarias interpretation, law exists to preserve
the social contract and benefit society as a whole. But, because people act out of self-interest and
their interest sometimes conflicts with societal laws, they commit crimes. The principle of
manipulability refers to the predictable ways in which people act out of rational self-interest and
might therefore be dissuaded from committing crimes if the punishment outweighs the benefits
of the crime, rendering the crime an illogical choice.
Beccaria expresses not only the need for the criminal justice system, but also the governments
right to have laws and punishments. He believed in the social contract, or the idea that freewill
and rational individuals made a choice to live in a society instead of living alone. When one
chooses to live in a society, then one chooses to give up some personal liberties in exchange for
the safety and comfort of a society. Laws are designed as the framework of the society and the
rules for which acts are encouraged or prohibited. Laws are the conditions of a society of
freewilled and rational individuals. There is a need to have some system set up in order to ensure
that the individuals in the society are protected against any individual or groups that want to take
back the personal liberties forfeited in the social contract and those who want to also harm the
personal liberties of others in the society.So there is a need for and a right to have laws and a
criminal justice system to ensure that all individuals in society obey or follow the social contract.

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IV.

RATIONALITY OF PUNISHMENTS
With the creation of criminal laws and a criminal justice system, a rational form of
punishment must also be created. Beccaria was very much against the cruel and
arbitrary punishments of the day, but he did feel that the government had the right and
duty to punish those individuals that threatened the society. The government had only
the right to inflict punishments that were necessary for the crime, he stated, "for a
punishment to attain its end, the evil which it inflicts has only to exceed the advantage
derivable from the crime; in this excess of evil one should include the certainly of
punishment and the loss of the good which the crime might have produced Any
punishment that grossly or even slightly goes over the amount necessary to stop
individuals from committing prohibited acts would be considered unjust. Certainty of
punishment simply means making sure that punishment takes place whenever a
criminal act is committed. Beccaria believe that if individuals know that their
undesirable acts will be punished, they will refrain from offending in the future.
Moreover, their punishment must be swift in order to deter crime. The closer the
application of punishment is to the commission of the offense, the greater the
likelihood that offenders will realize that crime does not pay.
Since people are rationally self-interested, they will not commit crimes if the costs of
committing crimes prevail over the benefits of engaging in undesirable acts. Beccaria
infuses the notion of proportionality with a retributive character. Beccaria argues that
there should be a fit between the crime and punishment and that this fit is necessary
to reinforce the association: The punishment should, as far as possible, fit the nature
of the crime; this, he adds, serves admirably to draw even closer the important
connection between a misdeed and its punishment. If the sole purpose of punishment
is to prevent crime in society, Beccaria (1963) argued, punishments are unjust when
their severity exceeds what is necessary to achieve deterrence. Excessive severity
will not reduce crime, in other words, it will only increase crime.

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V.

CLASSICAL UTILITARIANISM

Beccaria nevertheless embedded a utilitarian core into his analysis. The limitations on the right to
punishjustified only to the extent necessary to produce security and orderare precisely what
allow individuals to enjoy the greatest possible liberty that is left to each and every one of them.
The juster the punishments, Beccaria emphasized, the more sacred and inviolable is the
security and the greater the freedom which the sovereign preserves for his subjects.41 The
metric of just punishments and of just lawsthe metric of justiceis precisely the greater good
of the individuals, or, as Beccaria writes in his very Introduction, whether or not [the laws]
conduce to the greatest happiness shared among the greater number. Justice, Beccaria
emphasizes to his reader, is what is socially useful, and it is in this manner that Beccaria
weaves together contract theory and utilitarianism
The notion of maximizing social welfare is thus at the heart of Beccarias work; however, the
relationship between his utilitarian analysis and the retributive elements in his writings is a
source of continuing debate and it would be nave to label Beccaria purely utilitarian.48 By
placing the right to punish squarely within a social contract framework, Beccaria had drawn on
notions of rights and duties that provide independent limits and constraints on the sovereigns
power to punishalong lines that are more familiar to retributive theory. For Beccaria, the two
frameworkssocial contract and utilitarianismoverlap, coincide, and there is no theoretical
tension or potential conflict between the different principles and rationalities.

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VI.

AGAINST CAPITAL PUNISHMENT

For Beccaria, history portrays that the capital punishment does not succeed to prevent
determined and hardened criminals. Essentially, human nature also advocates that it has nominal
deterrence and avoidance value. A sturdy example over a lengthy period of time is more helpful
in fostering moral habits than is a single appalling example of an execution and putting to death.
He also puts forth his point that continuous slavery is a more helpful deterrent than capital
punishment. Thus, we should aptly choose that form of deterrence and the least severe form of
punishment which aids us in achieving our purpose and in furtherance of this; perpetual slavery
should ideally be the preferred mode of deterrence method. From the spectator's standpoint,
scrutinizing and observing perpetual slavery will have a more long-lasting notion than capital
punishment. Also, perpetual slavery will be deemed more dreadful from the spectators point of
view, than from the criminal himself. Beccaria elucidates the psychology of the criminal who
desires to revisit to the state of nature pertaining to the nasty unfairness between the rich and the
poor. In furtherance of this, long-lasting slavery is again the preeminent deterrence against this
motivation. Beccaria argues additional that the death penalty in fact has awful ramifications on
society by trimming down their compassion to human suffering. Further, beccarias intelligent
argument against the death penalty is in large part what drives his treatise to renown and fame.
His argument surfaced, time and again, in social contract: individuals only give the smallest
amount and bit of freedom to the sovereign in order to get safety, and this could by no means
incorporate the right of the sovereign to execute a subject. Life is the utmost good of all, not a
few minute measure of liberty.
The social contract itself would put in restrictions on the sovereigns right to penalize. Observe
the political theory dimension of Beccarias analysisas contrasting to a probable religious or
natural law foundation. Beccarias work was a giving to politics, not, as he elucidated, to
theology or natural law. In this sense, he was one of the first theorists who postulated that
punishment as a subject of state authority and political compulsion, rather than from a ethical or
pious point of view what malevolence people or sinners ought to have deserved. Lastly,
Beccarias fundamental arguments against the notion of capital punishmentspecifically, that
the brutalizing and inhumane effects of the death sentence prevail over their deterrent and
preventive effect and that more effectual deterrence can be accomplished by means of life
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sentenceswere experimental in nature; although there was deficiency of any empirical

substantiation and evidence.

VII.

CONCLUSION
Beccarias work On Crimes and Punishments has become the groundwork in which
many criminology theories use to put up and develop. The numerous and various
uses, critiques, deployments, appropriations, and readings of Beccarias work
comprises of an chart of a history of criminal law theory, or at least an vital sequence
of some of the foremost involvement in the field. In duly becoming a classic text that
has been so extensively and widely cited, although little read today, On Crimes and
Punishments may be used as an important tool for numerous key projects over the
past two centuries and a half in the field of penal law and punishment theory. In the
end, we may learn as much about those who have appropriated and used Beccaria
than we would about Beccaria himself and perhaps more.
Further, it may be possible, on the basis of the manifold receptions of Beccarias
treatise, to write a history of the foundations of criminal law. The uses, critiques,
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deployments, appropriations, and rereadings of Beccarias work constitute an outline

of a history of criminal law theory, or at least an important series of some of the major
interventions in the field. In becoming a classic text that has been so widely and
varyingly cited, though perhaps little read today, On Crimes and Punishments may be
used as a mirror on the key projects over the past two centuries and a half in the
domain of penal law and punishment theoryand I hope to have contributed, in a
small way, to such an endeavor. In the end, we may learn as much about those who
have appropriated and used Beccaria than we would about Beccaria himselfperhaps
more.
Lastly, from what has thus far been established, one may infer a general theorem of
substantial utility, though hardly conformable with custom, the usual legislator of
nations; it is this: In order for punishment not to be, in every instance, an act of
violence of one or of many against a private citizen, it must be essentially public,
timely, essential, the least possible in the given circumstances, in proportion to the
crimes, as mandated by the laws.

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BIBLIOGRAPHY
BOOKS & ARTICLES
Cesare Beccaria, On Crimes and Punishments and Other Writings [XXXI] (Richard
Bellamy ed., Richard Davies trans., 1995)
Marcello Maestro, Cesare Beccaria And The Origins of Penal Reform 5 (1973)
Louis P. Masur, Rites of Execution: Capital Punishment and The Transformation of
American Culture, 17761865, at 52 (1989)
Krista L. Patterson, Acculturation and the Development of Death Penalty Doctrine in the
United States, 55 DUKE L.J. 1217, 1226 (2006).
Dr. James J. Megivern, Our National Shame: The Death Penalty and the Disuse of
Clemency, 28 CAP. U. L. REV. 595, 59596
Steven H. Jupiter, Constitution Notwithstanding: The Political Illegitimacy of the Death
Penalty in American Democracy, 23 FORDHAM URB. L.J. 437, 478 n.198 (1996).
Terry Brennan, Natural Rights and the Constitution: The Original Original Intent, 15
HARV. J.L. & PUB. POLY 965, 97174 (1992).
Gnter Frankenberg, Torture and Taboo: An Essay Comparing Paradigms of Organized
Cruelty, 56 AM. J. COMP. L. 403, 413 (2008)
Parker B. Potter, Jr., Antipodal Invective: A Field Guide to Kangaroos in American
Courtrooms, 39 AKRON L. REV. 73, 83 (2006)
Michel Foucault, Discipline & Punish: The Birth of the Prison 36, 1213 (Alan
Sheridan trans., 1995)

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 Isaac A. Linnartz, The Siren Song of Interrogational Torture: Evaluating the U.S.
Implementation of the U.N. Convention Against Torture, 57 DUKE L.J. 1485, 149193
(2008)

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