The Law Commission of India has twice recommended (in its 42nd and 156th Reports) that Section 107 of the IPC be amended to remove the part of abetment by conspiracy. This recommendation argues that in light of Sections 120-A and 120-B having been inserted into the IPC, there is no need for the abetment by conspiracy clause. But these recommendations have not been implemented. How should we be treating these recommendations? Maxwell on Interpretation of Statutes suggests that recommendations not being accepted indicates the Legislature disagrees with the view promoted by the recommendation. So in this case, that would lead us to argue that the Legislature considers the conspiracy clause in Section 107 useful and not redundant. The inertia that plagues India's legislature offers an easy counterpoint; of this being just another instance of legislative oversight with the recommendations having been buried beneath all the protests happening in Parliament at that time. Does retention of abetment by conspiracy under Section 107 IPC together with the independent conspiracy offence under Sections 120-A and 120-B IPC reflect legislative intent or is it mere inertia? This post grapples with this question. Given no parliamentary debates are available online on this aspect, all I can offer is my take.
Demarcating Spheres of Influence
For abetment by conspiracy, there must be a conspiracy, and an act/illegal omission must be committed in pursuance of it. For the offence defined under Section 120-A, there is no need for any act/illegal omission to be committed so long as the conspiracy involves an agreement to commit an offence. Barring this distinction, it is clear that Section 107 and Section 120-A are covering more or less the same field. Interestingly, Section 120-B punishes conspiracy by relying upon the abetment provisions [Section 120-B(1) IPC: "whoever is party to a criminal conspiracy ... shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."].
Why did the need arise to insert the broader offence? Some answers lie in the position of the IPC before the Criminal Law (Amendment) Act, 1913 inserted Sections 120-A and 120-B. Prior to this, conspiracy was criminalised generally under Section 107 IPC, and also through specific provisions, such as Section 121-A IPC. It was only these specific conspiracy offences that did away with the act/illegal omission requirement. The early 20th century was a time heady with revolutionary movements, especially in Calcutta following the Partition of Bengal. Reading reported decisions on conspiracy from High Courts around this time, one finds the accused persons were nearly always alleged revolutionaries. Section 120-A allowed the police to cast a wider net than before and would have been very desirable from a colonial law-enforcement perspective.
With this context, the demarcation of what Section 107 and Section 120-A cover should be clear. Both criminalise agreements (read conspiracies) to do a thing where some act/illegal omission is committed in pursuance thereof. But Section 120-A also creates an exception for this act/illegal omission requirement, where the conspiracy involves an agreement to commit an offence.
Judicial Appreciation of the Problem
The existence of two separate frameworks criminalising conspiracies was not lost on the courts. Different High Courts came to the conclusion that having Section 107 IPC together with Sections 120-A and 120-B IPC curtailed the application of the latter. Section 120-A was found to be applicable only where the allegations involved a conspiracy without any commission of substantive offences. As soon as any act/illegal omission occurred towards commission of the offence, the case became one of abetment and excluded Section 120-A IPC. This view was held by the Madras High Court in Re Mallimoggala Venkatramiah & Ors. [AIR 1938 Mad 130], by the Patna High Court in Jugeshwar Singh v. Emperor [AIR 1936 Pat 346], and also in S. Satyanarayana v. Emperor [AIR 1944 Pat 67].
This, in my opinion, was a smart move that prevented Section 107 from being rendered completely otiose. What's more, it also led to understanding the 'offence' of conspiracy under Section 120-A in tune with its purportedly inchoate nature. Even in the Law Commission Reports lamenting Section 107 IPC, we find conspiracy is characterised as an inchoate offence. By restricting charges under Section 120-B to cases where there was nothing but a conspiracy, the High Courts merely reinforced this logic. After all, if a person committed an offence pursuant to a conspiracy, it made little sense to charge him for the original inchoate crime too. It made more sense to hold persons liable as abettors, rather than conspirators.
Conclusion - An Opportunity Lost?
India's unintentionally unique statutory framework allows for a lot of clarity in employing conspiracy. There is significant literature in the USA criticising the broad nature of the conspiracy offence, and how it remains separately chargeable despite the main offence having been committed in execution of the conspiracy. Here, the combination of Section 107 IPC and Section 120-A IPC allowed Indian courts to restrict conspiracy to a purely inchoate offence. The prosecutors didn't lose much either, as they could use the abetment route to rope in the various persons jointly liable.
That there is perhaps no decision today that questions the usage of Section 120-B where offences committed pursuant to a conspiracy are complete shows how the logic that I advertise has been significantly brushed aside. Rather than having a line of cases where the boundaries of Section 120-B were clearly drawn out, we find that today the opinion of the Law Commission seems to have become received wisdom. An opportunity lost, then, for the IPC provided a unique solution to some common problems faced by various jurisdictions while prosecuting conspiracies.
Demarcating Spheres of Influence
For abetment by conspiracy, there must be a conspiracy, and an act/illegal omission must be committed in pursuance of it. For the offence defined under Section 120-A, there is no need for any act/illegal omission to be committed so long as the conspiracy involves an agreement to commit an offence. Barring this distinction, it is clear that Section 107 and Section 120-A are covering more or less the same field. Interestingly, Section 120-B punishes conspiracy by relying upon the abetment provisions [Section 120-B(1) IPC: "whoever is party to a criminal conspiracy ... shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."].
Why did the need arise to insert the broader offence? Some answers lie in the position of the IPC before the Criminal Law (Amendment) Act, 1913 inserted Sections 120-A and 120-B. Prior to this, conspiracy was criminalised generally under Section 107 IPC, and also through specific provisions, such as Section 121-A IPC. It was only these specific conspiracy offences that did away with the act/illegal omission requirement. The early 20th century was a time heady with revolutionary movements, especially in Calcutta following the Partition of Bengal. Reading reported decisions on conspiracy from High Courts around this time, one finds the accused persons were nearly always alleged revolutionaries. Section 120-A allowed the police to cast a wider net than before and would have been very desirable from a colonial law-enforcement perspective.
With this context, the demarcation of what Section 107 and Section 120-A cover should be clear. Both criminalise agreements (read conspiracies) to do a thing where some act/illegal omission is committed in pursuance thereof. But Section 120-A also creates an exception for this act/illegal omission requirement, where the conspiracy involves an agreement to commit an offence.
Judicial Appreciation of the Problem
The existence of two separate frameworks criminalising conspiracies was not lost on the courts. Different High Courts came to the conclusion that having Section 107 IPC together with Sections 120-A and 120-B IPC curtailed the application of the latter. Section 120-A was found to be applicable only where the allegations involved a conspiracy without any commission of substantive offences. As soon as any act/illegal omission occurred towards commission of the offence, the case became one of abetment and excluded Section 120-A IPC. This view was held by the Madras High Court in Re Mallimoggala Venkatramiah & Ors. [AIR 1938 Mad 130], by the Patna High Court in Jugeshwar Singh v. Emperor [AIR 1936 Pat 346], and also in S. Satyanarayana v. Emperor [AIR 1944 Pat 67].
This, in my opinion, was a smart move that prevented Section 107 from being rendered completely otiose. What's more, it also led to understanding the 'offence' of conspiracy under Section 120-A in tune with its purportedly inchoate nature. Even in the Law Commission Reports lamenting Section 107 IPC, we find conspiracy is characterised as an inchoate offence. By restricting charges under Section 120-B to cases where there was nothing but a conspiracy, the High Courts merely reinforced this logic. After all, if a person committed an offence pursuant to a conspiracy, it made little sense to charge him for the original inchoate crime too. It made more sense to hold persons liable as abettors, rather than conspirators.
Conclusion - An Opportunity Lost?
India's unintentionally unique statutory framework allows for a lot of clarity in employing conspiracy. There is significant literature in the USA criticising the broad nature of the conspiracy offence, and how it remains separately chargeable despite the main offence having been committed in execution of the conspiracy. Here, the combination of Section 107 IPC and Section 120-A IPC allowed Indian courts to restrict conspiracy to a purely inchoate offence. The prosecutors didn't lose much either, as they could use the abetment route to rope in the various persons jointly liable.
That there is perhaps no decision today that questions the usage of Section 120-B where offences committed pursuant to a conspiracy are complete shows how the logic that I advertise has been significantly brushed aside. Rather than having a line of cases where the boundaries of Section 120-B were clearly drawn out, we find that today the opinion of the Law Commission seems to have become received wisdom. An opportunity lost, then, for the IPC provided a unique solution to some common problems faced by various jurisdictions while prosecuting conspiracies.
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