Conspiracy: The Substantive Offence (Part I)

 (This is the first of a multi-part series on conspiracy. For the introduction post, see here)

Over the next two posts, we will discuss the substantive offence of conspiracy. We will first  try and identify what purpose is this offence of conspiracy designed to serve, its costs and benefits,  and only then turn to the Indian statutory provisions in the next post. 

At the outset, a word about the existing literature on theoretical issues surrounding conspiracy in criminal law. There is a whole lot of it, but very little (if any) critical engagement with conspiracy law seems has happened within the Indian context. Most of the Indian literature has either been focused on the statutory regime or interpretations adopted by specific judgments, and few if any pieces turned to issues such as the threats posed by conspiracy law to free speech — an issue that got significant attention in the United States during the late 1940s till the debates around the Model Penal Code (which came to inform the conspiracy definition in the penal statutes of many American states). For those interested, a small list of informative pieces / books is at the end of the post.

The Conspiracy Offence

Criminal law 101 is that for anything to constitute an offence, it must consist of two parts: The actual physical conduct (act / omission to act) which causes harm, which must be accompanied by a requisite mental element to confirm that the egregious conduct was engaged in wilfully [On how this kind of thinking is a common feature of communication, see this paper by Arudra Burra and Joshua Knobe]. And, the burden to prove that both these requirements were met in any given case, lies with the prosecution. 

As Nicola Lacey demonstrates in her book, it is probably be inaccurate to think that this is how criminal liability was always understood. Rather, this notion of operating with a presumption of innocence and focusing on a personal criminal responsibility, by trumping up the intentional or wilful nature of the purportedly egregious conduct, came to be a feature of society only once notions of personal liberty and equality began to assume importance. Persons were not branded criminal for who they are, but what they did, and this demanded clearly spelling out a zone of prohibited conduct to, in turn, maximise the scope of liberty. 

This liberty-maximising notion of how to define criminal laws is not the only strand of thought which has played out over time in how ideas of criminal liability have developed. Coexisting with this logic are other strands which play up the security interests of society. Thus, while a liberty-maximising view would refrain from coming down with the hard hand of criminal law before an actual crime has been committed, these security interests push for drawing the line at an earlier point in time. The core idea is simple — if you see a truck is going to crash from a mile away, shouldn't the law be allowed to intervene before the damage is done? There was a recognition that an element of harm and a risk to society subsisted in conduct besides the fully consummated crime, which led to acceptance for punishing attempts to commit offences, aiding and abetting of crime, and conspiring to commit crimes.

Much like notions about criminal law and responsibility, notions about conspiracy also gradually changed over time. At its inception the concept only attacked persons acting together to accused another person falsely, and only after the accused person was acquitted. It was the notorious Star Chamber which led to expanding conspiracy to also cover agreements shorn of this requirement of a subsequent acquittal. This recognition that the essence of a conspiracy consists of persons agreeing to commit a crime has remained with us till date. A century or so later, the scope of conspiracy was broadened to go beyond agreements to frame a person, and cover agreements to commit any crime. It was only in 1832, through R v Jones, that the definition of conspiracy which we are familiar with came to have a foothold, that conspiracy is an agreement either to do an unlawful act, or a lawful act by unlawful means.  

Thus, the line is drawn at the planning stage itself for conspiracy, where such planning occurs between two or more persons. This idea of people acting in concert, of secretly congregating in numbers to plan commission of crimes, was seen as too dangerous to be allowed to flourish even without any steps being taken to pursue the specific object of such criminal agreements. This "group danger" logic was exhorted by the U.S. Supreme Court in Rabinowich (238 U.S. 78)

For two or more persons to confederate and combine together to commit or cause to be committed a breach of the criminal laws is an offense of the gravest character, sometimes quite outweighing in injury to the public the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices, and it is characterized by secrecy, rendering difficult of detection, requiring more time for its discovery and adding to the importance of punishing it when discovered. 

A Liberty Minimising Conundrum

The re-drawing of the line for attracting criminal liability to a stage where persons might just be thinking about engaging in an illegal act, simply because they are doing this not as individuals but in a group, carries serious implications for the liberty-maximising logic that was described above as being central to ideas of criminal responsibility. For starters, conspiracy is effectively a free-pass for police to make allegations by relying upon what is seemingly innocent conduct to round up people using coercive powers, without any real harm having materialised. As a 1959 article commented, "conspiracy doctrine comes closest to making the state of mind the occasion for preventive action against those who threaten society but who have come nowhere near carrying out that threat." This possibility of transforming criminal law into a preventive action tool using conspiracy charges is amplified by two related issues: the idea of "illegality", and that of "agreement". Let's look at both in turn.

As we know, the notion of "illegal" does not cover that idealised narrow zone of conduct in the form of proscribing murder, robbery, rape, and the like. For centuries, the state has used its power to define criminal laws to render illegal whatever it felt like, and for whatever reason it felt like — be it the Black Acts, to the tearing off mattress tags. Today, states need not go so far as to render innocuous conduct criminal per se. A simple trick for minimising the zone of freedom is to criminalise what is, on its face, relatively benign conduct, but by associating it with drastic kinds of criminal intent or creating a rebuttable presumption about the intended / known effect of the acts. Through this device, one man's peaceful speech to a crowd becomes another man's seditious libel or terrorist act, and this very essence of personal liberty in a democratic setup — speaking, writing, protesting — becomes subject to a state-sponsored narrative about devious intents and disastrous effects. 

The vehicle of a conspiracy empowers the state to not only quell such 'undesirable' activity before it takes place, but draw the net of liability as far and wide as it desires by relying upon the hazy idea of an "agreement" between persons. We will return to this issue when we turn to issues of proof and procedure in the context of conspiracy, but at this preliminary stage it will be sufficient to flag that an agreement, by definition, does not really mean much — it could be anything from a blood-pact to a general assent with someone's plans. Conspiracy paints all of this with the same broad brush, and because of this "agreement" it then foists liability for this amorphous group's actions upon everyone in equal measure, even if all members of this group did varyingly different things, and came to join in this 'agreement' at different points in time. In one fell swoop, the conspiracy crime drastically whittles away the zone of free expression and expand the zone of prohibited conduct which attracts potential criminal liability. At the same time it also drives a stake through the idea of criminal responsibility being of a personal nature, as even for conduct that someone else engaged in, without me knowing about it, I am vicariously liable because of my supposed assent to the overarching object of our common conspiracy. 

Conclusion

Legal systems, including India's, are too accustomed to the conspiracy offence and unassumingly accept a need for it, schooled as we are in believing the group danger rationale. The purpose of this post was to highlight that embracing conspiracy comes at a cost to the sphere of exercising basic freedoms. Conspiracy can very easily become a "dragnet device capable of perversion into an instrument of injustice", allowing police to go after people by trumping up the threat of what they are planning to do but for actually doing very little, or joining dots that otherwise could not be joined. The only thing preventing the law of conspiracy from being taken to its draconian logical conclusion is a degree of sensible enforcement, both at the levels of police and courts. That, one would agree, is hardly a foolproof safety valve to have. 

The comments above are focused on the premise of conspiracies to commit offences; once we move to the other wing of conspiracy i.e., agreeing to do a lawful act by unlawful means, the scope for abuse widens even further. When the going is good, the brunt of conspiracy is usually felt only by those involved in some kinds of harmful conduct - its unfairness restricted to the wrongly charged person in a drug conspiracy or corruption racket. But when the state starts to fear its weakness and imagines any expression of disagreement with existing power structures as a threat, conspiracy becomes to go-to tool for enforcement agencies to quell dissent, and cast a chilling effect on how we exercise our most basic freedoms.       

It is not without basis that Justice Robert Jackson, himself a prosecutor (who was also part of the Nuremberg hearings) before becoming a Justice of the U.S. Supreme Court, went after the conspiracy crime at length in his concurring opinion in Krulewitch (336 U.S. 440). The extract is lengthy, but deserves reading in full:

Its [conspiracy's] history exemplifies the 'tendency of a principle to expand itself to the limit of its logic.' The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice. The modern crime of conspiracy is so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always 'predominantly mental in composition' because it consists primarily of a meeting of minds and an intent. The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. 'Privy conspiracy' ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history. But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a lone wrongdoer. It also may be trivialized, as here ... However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case. ... 

[Emphasis supplied]

The next post will turn to conspiracy in the Indian statutory context. 

Reading List (in no order):

1. Patrick A. Broderick, 'Conditional Objectives of Conspiracies' 94(4) Yale Law Journal 895 (Mar., 1985).
2. Note, 'Conspiracy and the First Amendment', 79(5) Yale Law Journal 872 (Apr., 1970).
3. Fred J. Abbate, 'The Conspiracy Doctrine: A Critique', 3(3) Philosophy and Public Affairs 295 (Spring, 1974).
4. Solomon A. Klein, 'Conspiracy — The Prosecutor's Darling', 24(1) Brooklyn Law Review 1 (1957).
5. Richard Arens, 'Conspiracy Revisited', 3(2) Buffalo Law Review 242 (1954).
6. Abraham S. Goldstein, 'Conspiracy to Defraud the United States', 68 Yale Law Journal 405 (1959).
7. CR Snyman, 'The History and Rationale of Criminal Conspiracy', 17(1) Comparative and International Law Journal of Southern Africa 65 (Mar., 1984).
8. Alvin H. Goldstein Jr., 'The Krulewitch Warning: Guilt by Association' 54(1) Georgetown Law Journal 133 (1965).
9. Phillip E. Johnson, 'The Unnecessary Crime of Conspiracy' 61(5) California Law Review 1137 (Sep., 1973).
10. James W. Bryan, The Development of the English Law of Conspiracy (1909).