Tuesday, February 23, 2016

The IPC and Conspiracy

Inchoate offences are perhaps the most theoretically engaging area of the criminal law. On this blog, we ran a couple of posts discussing the issues surrounding criminal attempts (which you can access here and here). Attempts, as we discussed, are however not in vogue as tools for the prosecution in India. What the prosecution does resort to, and nearly always in corruption cases, is the charge of criminal conspiracy under Section 120-B IPC. The one-size-fits-all strategy that is the zeitgeist makes conspiracy one of the most important offences to understand today. Which makes it a fit thing to do on this blog. In this post, I'll just throw out issues arising from a reading of the IPC.

Conspiracy and Inchoate Liability
Think of an offence as a transaction, which begins with some conduct on part of an individual [accused] and ends with logical consequence that the interests of another person are affected [victim]. Sometimes, there are certain circumstances surrounding this transaction that lend it a criminal colour. Now, the legislature may either deem an offence to occur upon the occurrence of conduct, or the consequence. When the line is drawn, especially at the consequence stage, it sometimes appears illogical and arbitrary to allow individuals to proceed that far before criminal liability kicks in. Why wait for the killer to shoot the victim when you knew she had a gun and was aiming at her? 

This idea, of drawing the line of criminality earlier by deriving it from the parent offence, is inchoate liability. By its very definition, it is relative to another offence. Two things here. First, its clear that inchoate liability can affect the accused himself, or persons surrounding the accused. After all, the law should be equipped to stop someone else from goading the accused to kill a person and handing her a loaded gun. Such abetment is necessarily criminalised. Second, inchoate liability qua the accused ends when the parent offence is committed. I am not liable for attempt when my attempt succeeds in the offence itself, nor am I abetting someone when I go beyond the shouting and fire the gun myself. 

What is conspiracy, then, and where does it fit? Section 120-A of the IPC answers the first question and defines a criminal conspiracy as "when two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy". This is limited by a proviso, that "no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties in pursuance thereof." It is also explained, that "it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." Given this definition, conspiracy appears to be a hybrid form, combining the inchoate liability attracted by the accused and an abettor to make them one enterprise. This is obviously supported by the fact, that inchoate liability through conspiracy already existed as a form of abetment under Section 107 of the IPC. 

120-B and More Questions Than Answers 
Let me acknowledge the big elephant in the corner by saying that yes, by punishing mere agreements to commit offences the IPC comes as close to a generic thought-crime as you get outside of 1984. What's more, the current offence is amazingly overbroad and criminalises potential agreements to commit civil wrongs following erstwhile British law. I think some constitutional challenges could yet be made to the offence under Section 120-B IPC, but that is beyond this post. From a mere reading of the IPC, several interpretive questions arise that are very interesting. Foremost among them, the paradox posed by criminal conspiracy at large - that it is an inchoate offence that can be punished even after the primary offence is complete. Even after the gang executes its masterplan to rob a bank concocted in shady corners and dark alleys [this is nearly para-phrasing the Supreme Court, mind you], not only would liability for the resulting offences follow, but also liability for conspiring to commit the primary offence of robbery and other offences. The hybrid nature of conspiracy goes beyond the persons attracted category, it seems.

Second, and peculiar to India, is the co-existence of the independent conspiracy offence under Section 120-B IPC with it being a form of abetment as explained under Section 107 IPC. The difference is simple: conspiring to commit offences is punishable under Section 120-B without any act/illegal omission being performed in pursuance of the conspiracy. Conspiracy to be punished as abetment always requires some acts/illegal omissions to follow. Neat? Not quite. To prove a criminal conspiracy, the prosecution necessarily requires some acts/illegal omissions to show for it. When you have those acts/omissions, it would make the conspiracy a form of abetment as well. So how do we logically choose? The choice in practice is clear with prosecutions rarely arising for conspiracy under abetment today across the country. This obviously has got to do with (a) the increased punishment possible for conspiracy, and (b) evidentiary relaxations under Section 10 of the Evidence Act that the prosecution gets when alleging a conspiracy exists. But theoretically, no clear answer can be found.

The idea of agreeing to commit an offence is the fulcrum of a conspiracy which can be punished. But what does this agreement entail, and what is special about it? Should the conspirators have the same intention with respect to each other, and the offence in question? If I agree with you to commit an offence, but don't actually want to commit any offence, would it be an agreement? Does everyone need to know what the other is doing, or would the exceptions akin to those under Explanation 5 to Section 108 apply? Would an agreement to commit an offence with a minor, or an insane or intoxicated person, amount to a conspiracy for the purposes of this section? The explanation to Section 120-A makes clear that the 'illegal act' in question need not be 'ultimate object' of the agreement. So for a transaction to be punished as a criminal conspiracy, should there be agreement as to the exact manner of carrying out that transaction - every illegal act involved requires prior agreement? Or is it allowing for a criminal conspiracy charge to follow whenever two persons agree to commit an offence in the course of a larger criminal transaction? 

And what about the way new offences don't require intention or knowledge requirements as are prevalent across statutes today. Can I conspire with others to commit such offences of strict liability? Or can I conspire to attempt to commit offences? The former is especially important, in light of the manner in which certain cases are proceeding on Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988. Likewise, if an offence requires a specific mental state as to circumstances for its commission (recklessness as to consent in rape, for instance), would it be sufficient for conspirators to be merely reckless as to those circumstances, or should they have intended the circumstances exist? The questions are nearly limitless, but rarely do they get addressed systematically in the standard textbooks available in the market. I hope to have sufficiently roused your curiosity for this area of criminal conspiracy with this taster, and in the next post we'll consider particular issues in some detail.

[This post was corrected on 24.02.2016 to remove certain typographical errors. All thanks to Ms. Juhi Gupta and Mr. Kartikeya Panwar] 

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