(I am delighted to host a guest post from Nishant Gokhale. Nishant studied law at NUJS and Harvard Law School, practised law in Delhi in between, has been doing field-work across India, and is now enrolled to pursue his Ph.D. at the University of Cambridge. Views expressed are personal)
Thinking of committing a crime is vastly different from committing it. Expectedly, the law treats these two situations of ‘offending by thinking’ and ‘offending by doing’ differently. Any failure to do so, brings us perilously close to Orwellian “thought crimes”.
But, criminal conspiracy is a crime under section 120-A of the Indian Penal Code, 1860 (“IPC”). It was however, not a crime till well over half a century after 1860. Conspiracy was punishable as a form of abetment and required doing a criminal act pursuant to conspiracy. In 1870, a very narrow exception was introduced into the IPC making it a crime to conspire about “waging war against the government” by introducing section 121-A. This limited exception to criminal law principles requiring a criminal act to follow criminal thought survives even today. Criminal conspiracy as a distinct offence however, did not exist till 1913. The trigger for this change was an incident a few days shy of Christmas, 1912.
The year 1912 was a turbulent time for the British in India. Just a year before, a decision was taken to shift the capital of British India’s government from Calcutta to Delhi. This decision was resented by Calcutta merchants who saw the shift as adversely affecting their fortunes. Some British officials, including Lord Curzon who oversaw the painful partition of Bengal, feared this would make the British Indian seat of government even more remote from Rangoon and Madras. What prompted the decision to shift capitals, apart from the Calcutta weather and demands for self-rule, was a spate of murderous assaults on prominent British officials in the preceding years. The move to Delhi however, would not provide any measure of respite as the then Viceroy Lord Hardinge, would soon discover--- nearly at the cost of his life.
On 23rd December, 1912 Lord Hardinge and his wife rode into Chandini Chowk on elephant as part of a state procession to the new capital. Huge crowds had gathered to witness the pomp and splendour of the British Empire in India. What the crowd would witness however, would soon be known infamously as the “Delhi Conspiracy Case”. A bomb was hurled from a nearby building housing a branch of the Punjab National Bank. It exploded right behind Lord Hardinge instantaneously killing an Indian attendant, and leaving the Viceroy bloodied and unconscious. Lady Hardinge was unconscious, though unhurt. This audacious attack on the head of the British Empire in India, would not go unpunished.
There was an uproar in the British Parliament and MPs demanded to know “what steps are being taken to hunt down anarchists in India, in view of the fact that the Viceroy has publicly stated that the recent outrages are the outcome of organised conspiracy?”
The British Government’s response came in the form of the Criminal Law (Amendment) Act, 1913. The statement of objects of the act noted that “Experience has shown that dangerous conspiracies are entered into in India, which have for their object aims other than the commission of the offences under section 121-A and that the existing law is inadequate to deal with modern conditions. …The Bill makes criminal conspiracy a substantive offence...”.
Under this new law which introduced section 120-A punishable by section 120-B into the IPC, it was a crime when two or more persons agreed to (i) commit an illegal act or (ii) commit a legal act by illegal means. Of these, only (ii) required any overt act to be done. A bare agreement to commit an illegal act without any further steps being taken became punishable.
Criminal law theorists wrote about the 1913 Amendment with an acid pen. Generally, crimes are believed to have four stages. The first involves forming criminal intent. The second involves preparation to commit a crime. The third involves actually attempting and the fourth, actual completion of the crime. Crimes are generally punishable when they reach the stage of attempt. Only two are punishable at the stage of preparation due to the danger that stage itself poses. These are preparation to commit dacoity, and preparation to commit depredations against Asiatic allies. The only crime which was punishable at the stage of intention itself, until 1913, was conspiring to waging war against the Government.
Syed Shamsul Huda, in his celebrated Tagore Law Lectures found the changes “rather drastic” and felt they sacrificed the 1860 penal code’s consistency wherein conspiracy was only made punishable as abetment only if followed by an overt act. Huda remarked that “…law can only deal with matters and not merely with mind save as manifested by action.” He concluded that “There probably would have been no danger and no inconvenience if the law in India were left exactly where it was before the Conspiracy Act (1913 Amendment) was passed.” This criticism is especially courageous, for at the time, it may have itself amounted to an offence of causing “disloyalty” against the British government, if broadly interpreted, in the IPC or other laws meant to muzzle criticism of the government. In 2005, the Indian Law Institute’s Essays on the IPC noted that the 1913 Amendment was “hurriedly enacted and inconsistent and unintelligible principles of law were put into action. It may be suggested that the sweeping provision of S.120-A, IPC needs re-examination and irrationality which has imperceptible crept into the Indian law may require elimination.”
While conspiracy was widely used to supress the nationalist movement by the British, conspiracy has survived into Indian independence and the adoption of the constitution relatively unscathed. The Supreme Court, in many cases, including the Rajiv Gandhi assassination case, embraced it. It recognized that conspiracies are often secretly hatched and no direct proof may be available. Conspiracies could themselves shift shape mid-way as both objectives and members could change. It also noted that like umbrella-spokes different conspirators need to know others and only have one central point of contact. The court however cautions that conspiracy “is exception to the general law where intent alone does not constitute crime”. It also notes that the accused, tried as co-conspirators, may be prejudiced since all and sundry could find themselves in the dragnet without regard to their relationship with the main offender.
The seemingly boundless scope of criminal conspiracy is something that is liable to be misused since all that is required to be proved is a bare agreement to commit illegal acts. Since direct evidence in many complex crime is rarely obtained, weaker forms of evidence such as approver testimony and circumstantial evidence routinely take its place to prove this agreement. This de facto lowering of evidentiary standards, has resulted in conspiracy charges proliferating and becoming, as described by American Judge Learned Hand, “the darling of the modern prosecutor’s nursery”. While no statistics on conspiracy in India are published by the National Crime Records Bureau (“NCRB”), experience suggests that it remains a popular charge.
While the media may revel in disclosing lurid details of “plots” ranging from the genuinely frightening to the absolutely fantastic, it is important to remember that the law related to criminal conspiracy needs urgent re-examination. Despite its current popularity to crush political dissent, its history reveals itself to be little more than a reactionary and colonial-era measure to supress the nationalist movement. When freedoms of speech and expression, assembly and association are constitutionally guaranteed, the offence seems overly broad.
The line between culpability for thought and culpability for action is an easy one to unwittingly cross. We must, however, repeatedly remind ourselves of this line for this may be the demarcation between a tolerant democracy and a totalitarian state.
Links to Sources Reporting Some Perspectives of the Delhi Conspiracy Case:
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