Guest Post: Rethinking the Mental Element in Section 295A of the Penal Code

(This is a guest post by Lahar Jain)

Amish Devgan v. Union of India, is a curious judgment which stands out amongst the religious hate speech litigation in recent times. The TV anchor was being prosecuted for uttering an insult against a saint, which resulted in 7 FIRs being lodged against him. While the legal issue at hand was limited to the quashing of these proceedings, the 128-page judgment takes a step towards refining the test to interpret S. 295A of the Indian Penal Code 1860 [“IPC”], which criminalises religious hate speech. However, as I argue in this post, it is a step in the wrong direction. 

S. 295A IPC punishes deliberate and malicious acts intended to outrage religious feelings of a class. The same has been invoked in the past years for a wide spectrum of circumstances, from the arrest of a comedian for a joke he did not make to prosecuting a Netflix show for a kissing scene shot near a temple. The rising intolerance in the form of FIRs and threats have not only compelled the creators of these works to withdraw their art, but also discouraged others from rejecting the dominant discourse in society. Hence, the central question I aim to answer is whether the law envisages the prosecution of these artists and other nonchalant speakers. Further, how does the law deal with the interplay of ‘offending’ speech and ‘intolerant’ beliefs, and which one does it protect.

The Supreme Court has answered this by devising a three-prong test centred around the tendency of speech to result in violence. The standard for all prongs was set to be objective, in the sense that the same would be fulfilled if a “strong-minded” individual would be outraged to violence after hearing it. I argue that the court has erred by adopting this harm-based objective standard for judging religious hate speech, whereas a subjective standard for the same is appropriate. Adopting an objective standard would either lead us to penalize the free speaker and protect the intolerant or acquit the ‘scurrilous scribbler’ causing public havoc. Both of which the law can't seem to desire. 

I will do three things to complete my argument: First, establish that the rationale behind criminalising religious hate speech is due to our model of secularism, rather than the public order exemption in Article 19(2). Second, I will use this understanding to reject the harm-based objective test propounded in Amish Devgan. Third, I will replace the Amish Devgan test with a subjective malicious intention test to argue that the same must be the sole criteria for deciding S. 295A cases. 

‘Positive Secularism’: A justification for religious hate speech laws

It is a social fact that most hate speech legislations in the country have spurred out of public agitation and demonstrations against ‘offensive’ speech. In fact, a pamphlet ‘Rangila Rasul’ ignited communal tensions across Punjab which ultimately necessitated the drawing up of S. 295A of the IPC. Understanding this context for the formulation of S. 295A is crucial because public order concerns forms the core of every case decided under this section ever since. Courts have continued to penalise speech based on its ‘incitement value’ or its propensity to violence, in furtherance of maintaining public order. But this is incongruous to the very raison d'etre behind criminalising the same: India’s model of secularism.

India’s model of secularism is unique because as opposed to the western model, it does not advocate for a strict separation of the state and religion. This means that state reformation of religion is encompassed in the same and the state is responsible to ensure that everyone has the freedom to practice and propagate their own religion. Hence this model of secularism places a positive obligation on the state to ensure that nobody infringes upon another’s right to religion. This almost horizontal right provides for the genesis and justification of religious hate speech laws in the country. 

Simplistically, when hate speech is meted out against a certain religion, the harm that is caused is the marginalisation of that class and a violation of their dignity. In a society that is inherently unequal and prone to skewed power relations, it is the positive obligation of the state to protect this class of people. Hence, any form of speech will have to be balanced against this positive obligation to decide which one prevails. This aligns with Anushka Singh’s understanding of sedition being criminalised due to the ‘public order’ conception as opposed to the ‘affective’ conception. The former would criminalise hate speech because it involves public violence. The latter would criminalise hate speech because it gives rise to ‘bad feelings’ against a particular class. While most speech crimes (like sedition) are legally based in the ‘public order’ conception, religious hate speech is different as the ‘harm’ being criminalised is the effect the speech may have on a class being able to exercise their right to religion.

The complexity lies in deciding the extent of public duty, and the proportional response in the form of a restriction that criminalises written or spoken words. S. 295A is constitutional to the extent that ‘insulting or attempting to insult the religious beliefs of a class’ violates the right to religion and dignity of a class. Having established that the core of religious hate speech laws in the country corresponds to its model of secularism rather than public order, it will be observed that Amish Devgan furthered an incorrect test based on an objective standard for S. 295A.

Amish Devgan: Who is a reasonable person?

The facts in Amish Devgan are quite crisp to the extent that the journalist is being prosecuted for uttering the phrase- “aakrantak Chishti aya... aakrantak Chishti aya... lootera Chishti aya... uske baad dharam badle” – while hosting a debate. Pir Hazrat Moinuddin Chisti is a saint, who is highly revered by the Muslim community. As many as seven FIRs were lodged against the petitioner, who approached the Supreme Court under Article 32 for interim relief. The primary argument put forth by the petitioner was that these “words were uttered inadvertently” and he did not have the malicious and deliberate intent to outrage religious feelings. The prosecution on the other hand, based their case upon the actual textof the phrase uttered to show that the petitioner wanted to malign a pious saint, hence intended to outrage religious feelings. It is important to note that the prayer of the petitioner was limited to quashing of the FIRs registered against him. However, the court makes extensive remarks on the definitional and legal standard for hate speech in the country. 

The judgement houses a curious reasoning of hate speech centred around disruption of public order, especially when Khanna, J. mentions that “a universal definition of 'hate speech' remains difficult, except for one commonality that 'incitement to violence' is punishable.” In fact the judgement settles the central question of the type of test to be applied quite simply by stating that it is an objective one. The only reasoning it provides is that a subjective understanding of hate speech would curtail the freedom of speech to the whims and fancies of the authorities. 

The court opined that the standard of S. 295A is fulfilled owing to three elements:

1. Content-based element – using words or any other gestures that are considered to insult the religion or religious beliefs of a class in the society. The standard to judge the same is an objective third-person standard. This has been defined in the case of Ramesh Dalal v. Union of India as: “the effect of the words must be judged from the standard of reasonable, strongminded, firm and courageous men and not by those who are weak and ones with vacillating minds.” This is an objective test.
2. Intent-based element – the section explicitly mentions that only deliberate and malicious intent is punishable. The primary indicators of intention is the language and words used itself. This means that if a reasonable person uttering these words would have intended to insult the class, then the standard is fulfilled. This is also an objective test.
3. Harm-based element – the harm perceived must have a proximate and direct nexus with ‘public order’. As laid down in Shreya Singhal v. Union of India, evidence must be produced to show the direct causal links between the impugned act and its effect. Further, the court adopted the American standard of ‘imminent lawless action’ which measures the propensity to violence after said speech. This is an objective test.

It is hence clear that the three-pronged test to decide matters of religious hate speech is an objective one according to the Supreme Court. It has also relied on case law from a variety of hate speech sections like S. 153A IPC, S. 66 IT Act, S. 505(2) & (3) IPC, to propound such a standard. 

Objectivity in a Subjective Test: A way forward?

The correct test to be adopted under S. 295A is this: if a person uses speech where the sole intention appears to be to marginalise or strip a class of its dignity, it will fulfil the standard of S. 295A. What is central in this test is the idea of subjective mens rea; which means that the person uttering the speech, their identity, the identity of the class of people addressed in the speech, the words and the context must all be taken into consideration while determining ‘deliberate and malicious intention’. This is because the same speech directed at different groups will have a different impact on their ability to practice their religion. This is why speech calling for genocide on a particular religious group must not be protected, as against an attempt of historical research into a religious leader. 

The causal link to be determined is not the one between the act of ‘insulting or attempting to insult’ and the harm perceived to be inflicted; but rather between the ‘deliberate and malicious intention’ and the act of ‘insulting or attempting to insult’. This means that as long as the speech is a result of this malicious intention of attacking the dignity of a class, it fulfils the standard. I will make three arguments to establish the same: 

Firstly, a textual and intra-textual interpretation of the section warrants that the consequence of the act (harm-based element) plays no role in deciding culpability. Further, that the act of ‘insulting or attempting to insult’ is not an objective content-based test, but rather a causal test with intention. For this let us first look at the text of the section:

S. 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. —

a. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, 

b. by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class,

c. shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

(emphasis supplied)

Part (a) corresponds to the intention or mens rea, Part (b) corresponds to the actus reus and Part (c) corresponds to the punishment. It is important to note that there is no mention about the standard of harm that is perceived to be inflicted, or even a mention about disrupting public order. That is to say, that this section is oblivious to the effect that the malicious and deliberate act will have on the society, or even on that class of persons that is targeted. This is unique as most other IPC offences punish the commission of the offence (harm/injury), and not merely the act or attempt of the same. 

The IPC has provisions that punish four different levels of commission of an offence. It punishes merely intent, like criminal conspiracy; the preparation, like collecting arms for waging war; the attempt, like attempt to commit robbery; and lastly, the commission, like murder. In fact, S. 300 (1) explicitly mentions “an act by which murder is caused”, laying out the perceived consequence which is punishable. S. 295A merely punishes the attempt to insult religious feelings. The harm to be inflicted on public order or the incitement of violence does not amount to culpability. So, there is no reason for the ‘harm-based element’ to form the standard for judging S. 295A cases.

Secondly, precedent has been erroneously used to supply this standard. It is abundantly clear that the court imports this objective standard from several common law jurisdictions, primarily from the United States. While the court provides no justification for this, it must be noted that these precedents are inapplicable to the Indian courts due to its model of secularism, as explained in the previous section. Moreover, the Indian precedents are in complete opposition to interpreting S. 295A as an objective standard. 

Rangila Rasul while interpreting S. 153A IPC disregarded its effect on public order, and judged the pamphlet solely from the standard of intention. While interpreting content, which is the primary indicator of intention, the court made important observations on a ‘scurrilous attack and satire’ while acquitting the accused. After introduction of S. 295A, the court in Shri Shiv Ram Das v. Punjab, alluded to a subjective standard by stating that the manner of speech trumps the matter of it. Although the landmark judgement of Ramji Lal Modi has several discrepancies, as forwarded in my next argument, it laid emphasis on a “calculated tendency” to disrupt public order. This clearly alludes to a subjective intention of causing harm.

More recent judgements have strongly expressed their preference of a subjective standard, solely based on intention to judge religious hate speech cases. Prof. Laine, a U.S. scholar, found himself in an unnerving situation when his book ‘Shivaji: Hindu King in Islamic India’ attracted brutal opposition and attacks. The court quashed all the FIRs against the book and found that historical work, whose content may objectively hurt religious sentiments, would not be punishable as the author had no intention to do the same. It made an interesting observation regarding public order: that it was a positive obligation of the state to maintain public order, which goes to show that the same is not instrumental in fulfilling the standard of S. 295A.

Thirdly, the ‘content-based’ and ‘harm-based’ elements are inapplicable in deciding S. 295A cases, and the test for intention must be subjective. The reasoning of Ramji Lal Modi is highly inconsistent with the policy of religious hate speech clauses in India. It upheld the constitutionality of S. 295A IPC by reading ‘in the interest of public order’ more widely than ‘maintenance of public order’. The case conflated ‘public order’ and ‘malicious intent’. That is to say it assumed that every insult maliciously and deliberately made has an effect of public order. This is clearly erroneous. Hence, the tendency of speech to disrupt public order must have no bearing on culpability. This is for two reasons:

• First, if the court adopted an objective standard for harm. This would mean that culpability is dependent upon if a strong-minded individual would incite violence after listening to the speech. This standard would clearly defeat the purpose of protecting public order, as a society is never made up of these ‘strong-minded’ individuals.
• Second, if the court adopts a subjective standard for harm. This would means that culpability is dependent upon the state-of-mind of whoever the speech is directed to. This would prove to be a fetter on the right to speech, as a weak-minded and intolerant citizen would be able to curtail the same. Hence, defeating the purpose of Article 19. 

The test of intention must be a subjective one. S. 295A explicitly mentions “deliberate and malicious” intention, which is clearly a higher standard to be fulfilled. The standard to be applied is not what the judge himself, a strong-minded person, or even a weak vacillating mind, would have intended. Rather, it is subjective to the extent that we must place ourselves in the shoes of the person accused to decide whether the malicious and deliberate intention is present. I have hence argued that the court must dispense with the ‘content-based’ and ‘harm-based’ elements of their three-pronged test; and adopted a subjective intention test as the sole criteria for deciding religious hate speech cases. 

Conclusion

The goal of criminal law is deterrence, and can never be social control. This case comment has highlighted the trend of courts misunderstanding the religious hate speech standard in India, which came to a boil in Amish Devgan. Curbing speech on the basis of propensity to violence is incongruous to the aim of preventing marginalisation of communities. There exists an inherent antithesis in adopting an objective violence-based standard for religious hate speech, as dominant classes are more prone to be violent and less prone to marginalisation. 

Indefinite Incarceration of Approvers — In Need of Necessary Amendments

Prologue: The Budget Leaks of 1956

Aschara Lal Mehra was, presumably, one of many Sales Managers in Bombay's Mercury Paints and Varnishes Ltd.; a pre-independence firm which continues to exist today. Perhaps Mehra was dissatisfied with the income Mercury Paints gave him, because when he was introduced to one Davinder Pal Chadha from Delhi in February of 1955, he agreed to help him in a little money-spinning scheme that Chadha had devised. After working him for months, Chadha had managed to coax one of the officers involved in printing of the Budget to leak some inputs regarding the impending changes to taxation regimes. Mehra agreed to help Chadha sell this information, for a cut of the profits. 

Mehra helped Chadha make contact with one of his former employers Hira Lal Kothari, a stockbroker. Kothari promised "suitable compensation" if he made profits on the information. Mehra also setup a meeting with Nand Lal More, who said it was too late to fully use the information, but he would still share his profits if there were any. When the Budget was announced the next day, February 28, 1955, Chadha's inputs were proved correct, and both he and Mehra made good money from their escapade. While giving them Rs.500, Nand Lal More told them to try and bring the information earlier next year. Which is exactly what they did. In 1956, Chadha managed to sneak a copy of the entire Budget proposals out almost a week prior to it being tabled. He took a first class train to Bombay on February 21, taking with him two copies of the Budget. Mehra did one better and made notes on the proposals, and together they met various persons to sell these secrets. Chadha left before the Budget was announced on February 29, where his information was proven accurate yet again. 

This time, though, there was a problem. Persons to whom they sold information, and persons to whom this was probably relayed ahead, had been too obvious in their movements that it quickly became apparent in the news that something was amiss. A newspaper had reported on February 29 itself that the conduct of Mill-owners in Ahmedabad suggested they knew that excise duty on cloth would be increased. A big hue and cry followed in Parliament where on Saturday, March 3, a formal motion for adjournment was moved citing the alleged leak of budget proposals in Bombay. Understandably, Mehra was agitated when Chadha told him about taking his cut from the money Messrs Kothari and More had paid. Mehra's instincts were to be proven correct this time. Upon reaching Delhi on March 8, Davinder Pal Chadha was arrested from the railway station, and two days after that the police landed up at Mehra' door. They searched his house, found the notes he had made of the Budget proposals, and placed him under arrest.

Mehra decided to turn his back on Chadha and the rest: He sought to be made an Approver in the case, and on March 23 the Additional District Magistrate granted him a pardon under Section 337 of the Code of Criminal Procedure 1898, on the condition of him making a full and true disclosure regarding the whole circumstances pertaining to the case. Upon being granted a pardon Mehra was sent to jail. The reason was a legal mandate, prescribed in Section 337(3) of the old Code, which corresponds with Section 306(4) of the present Criminal Procedure Code of 1973. It says that every person accepting pardon "shall, unless he is already on bail, be detained in custody till the termination of trial" This mandate is the subject of this post.

The Logic: It is for your own Good

Why must the law require that an approver should be detained in custody till the termination of trial? For their own good, primarily, and as a result for the good of the case. The 'turncoat' approver was not just another witness. Rather, he was seen as being at high risk of being accosted by his former confederates, thereby rendering jail a safer place. In the words of the Court of the Judicial Commissioner for Sind, the approver needed to be in custody because "not only is he likely to abscond and not appear when he is wanted, but there is every fear of his being tampered with and of his tampering with other prosecution evidence." [Abdul Majid v. Emperor, AIR 1927 Sind 173]. The Madras High Court put it more eloquently in 1952 when it compared the need for this provision akin to the need to keep a sealed will locked up in a will forgery case, and justified the need for detention until conclusion of the trial by reminding us that “Truth at the trial, in the case of an approver, does not mean sticking to the very statement given by him before the District Magistrate in the committal court, but speaking to the true facts as they occurred, for Truth is one, and not two.” (emphasis in original)

There can be no qualms with this logic. But does it warrant the legal regime put in place by Section 337(3), and now by Section 306(4), is the question. Two things stand out: firstly, that necessary custodial detention is only specified for one sub-class of approvers but not all of them, which does not make sense as approvers already out on bail would equally be susceptible to pressures leading them to resile from their version. Secondly, more importantly for this post, is the absolute nature of this mandate — a person shall be detained. Is not a total ban on release arguably contrary to the logic of saving the approver for the case, for what if the approver falls sick, or what if undue delay in proceeding with the trial leads the approver to change his mind, especially if his former friends are out on bail as accused persons? 

Which brings us back to the case of Aschara Lal Mehra, the approver. Granted pardon on March 23,  1956, Mehra would have undoubtedly been wooed by the police with promises of a speedy trial to offset any reservations he and his lawyers might have had given the mandate of Section 337(3). This was not to be, as Mehra suffered the entire Delhi summer in custody, while waiting for the investigation to conclude and trial to begin. Moreover, throughout this period, his (presumably) former friends were all enjoying life out on bail. When the police finally filed a report in July of that year, Mehra's counsel presumably saw an opportunity to get his client out of custody. He argued that Mehra had been pardoned for offences under, amongst others, the Prevention of Corruption Act 1947, but the police had filed a report alleging offences punishable under the Official Secrets Act. This meant that he was just another accused, and ought to be granted bail on parity with the other accused persons. He could not convince the trial court, but won in a revision before the Sessions Court, and got his client out in one case. 

But Mehra could not be released because the main case, where was indeed an approver, was at a standstill.  There was no alternative but move a petition before the High Court of Punjab and Haryana (which, at that time, held jurisdiction over Delhi as well), which gave its decision on June 25, 1957.  

Carving out scope for Judicial Discretion

Mehra's counsel argued that it was a "strange irony of fate" that while the accused were out on bail, his client continued to languish in custody. "If a murder can be released on bail" he argued, then "why a person who had been granted pardon should not be accorded a similar facility?" The answer for the High Court was simple — because Section 337(3) said the same facility could not. At some length, the Court in A.L. Mehra v. State discussed the provision, and concluded that: (i) there was no power left with a court to release the approver, and asking for "bail" was inaccurate as anyway we were dealing with a witness; (ii) a court did not have inherent powers to grant release either, and; (iii) the "shall" was mandatory, and the best a Court could do if faced with a situation of mounting delays was to direct an expeditious hearing. Indeed the High Court observed it would be a "travesty" if Mehra remained confined as "it could not have been the intention of the legislature that a person who has been granted pardon should be kept in confinement for an indefinite period." 

Curiously, after handing down these findings, the order took a very different turn. The High Court noted that the clause referred to termination of a trial. This had to imply that "there is a trial in progress and its object is to secure the evidence of the approver". In the facts of this case, it appeared that the prosecution had not made its mind up about whether the accused would even be prosecuted for all the offences. In such a situation, where "there is no trial and no likelihood of trial" then the inherent powers of the High Court would allow directing release. Which is what was finally ordered — Mehra was released. He went on to fulfil the conditions of his pardon at the trial which ended up in convictions for all accused [Two of whom, Messrs. Kothari and More, overturned their convictions in appeal, which provided the facts which I have extensively used thus far].   

New Code, Same Woes

As we already know, the enactment of a new Criminal Procedure Code in 1973 did not change the position in respect of allowing release of approvers already in custody at the time they were granted pardons. This was in spite of the Law Commission taking note of the difficulty this clause could pose in its 41st Report, especially given a gradual decline in how quickly trials proceeded. The Commission was of the opinion that the powers of High Courts to grant release in appropriate cases would prove sufficient to remedy any injustices, hinting at an approval of the stance taken by the High Court in A.L. Mehra which we discussed above.

This view was crystallised by two Full Bench decisions, one from the Delhi High Court and another from the Rajasthan High Court, delivered around a decade after the new Code was passed. Both Courts agreed that Section 306(4)(b), as it now stood, could not be read as erecting an absolute prohibition on releasing approvers. Besides general considerations of common sense, these Courts found support in the new life breathed into the fundamental right to life and personal liberty after Maneka Gandhi. A law that eschewed all judicial discretion and mandated custodial detention surely could not withstand scrutiny under the "just, fair, and reasonable" standard now espoused by the Constitution. Accordingly, both these Courts read into Section 306(4)(b) a measure of judicial discretion which allowed the High Court to exercise its inherent powers and release approvers in appropriate cases. That these verdicts were also guided by a vein of practicality is made apparent in the order of the Single Judge which referred the matter to a Full Bench of the Delhi High Court, where specific remarks were made about the increasing delays in trials and the demoralising effect that a mandatory custodial detention would have on getting accused persons to turn approvers.    

In the years since, this view has been followed consistently by the Delhi and Rajasthan High Courts. It has also been adopted by the High Courts of Kerala, Madras, Bombay, and Chhattisgarh (in various cases, of which only one is referred to here). Importantly, more than one High Court has doubted the validity of Section 306(4)(b) shorn of the necessary judicial discretion that has been read in. The Supreme Court, till now, has not issued any opinion engaging with the issue. 

There has also been a degree of consistency in the circumstances in which these courts have been compelled to order release of approvers. For instance, in almost all of the cases, the approver's testimony had been recorded in court. Another circumstance which compelled courts to order release was delay in the case, departing slightly from the view in A.L. Mehra by granting relief even if trials had begun but looked unlikely to finish anytime soon (especially if some of the accused persons were absconding).

Solution? A Necessary Amendment 

It is arguable that the status quo does enough to remedy any injustice resulting from Section 306(4)(b); in line with how the Law Commission viewed the situation in 1969. I would argue that it is not. Rather, what we have is a near-perfect case where the law ought to be amended. Why is the current position inadequate to remedy injustice? Primarily, because the High Court as a site of litigation is necessarily exclusive, to the detriment of many potential litigants in the criminal process. Funnily enough, the Law Commission noticed this in the same 41st Report in another context — anticipatory bail — which is why it granted Sessions Courts concurrent jurisdiction with High Courts.      

A wholesome change would go ahead and reconsider the distinction between persons already on bail and those in custody at the time of being granted a pardon and confer powers on courts to detain any approver in custody where it is in the interests of justice. This would do away with a classification that many High Courts have found troubling, viewing it as somewhat contrary to the overall object of protecting approvers for the trial. It is understandable that a legislature which is concerned with more serious matters such as curbing voter fraud through privacy infringing measures may not be able to do this. Which is why I would suggest a more simple amendment to concretise what multiple High Courts have desired, while expanding the reach of remedies for those less privileged and unable to access these High Courts. Bring us back to how Section 209 of the Code dealt with the issue in 1861: Remove the "shall", replace it with a "may", to once again allow a Sessions Court to release witnesses who have no business being behind bars. 

Conspiracy — The Birth of the Substantive Conspiracy Offence in India

[This entry is part of a multi-post series on conspiracy. For earlier entries, click here]

The previous post considered some broad, theoretical issues, regarding the offence of conspiracy. This one takes a hard look at the offence of conspiracy within the Indian context. The focus is not jurisprudential yet but historical, and so this post will end with the birth of India's standalone conspiracy offence, in the form of Section 120-A and 120-B in the Indian Penal Code. It's a long post, but an interesting one I hope.

Common Law and Conspiracy

Today's standard understanding of the "conspiracy offence"—two or more persons agreeing to commit an unlawful act, or a lawful act by unlawful means—is more or less directly attributable to developments in law made by the infamous Court of Star Chamber during the 17th Century. It was largely due to the Poulterer's Case that the law on conspiracy branched out from being solely concerned with agreements to level false accusations / launch malicious prosecutions where a prosecution could only be instituted by the acquitted party after the trial, to cover all agreements whose object was the commission of any unlawful act. It was held that an indictment was sufficient simply against such an agreement, without any crime having been committed consequently.  

James W. Bryan, in the excellent Development of the English Law of Conspiracy (1909), has demonstrated the significance of this shift beyond the realm of false prosecutions. It was momentous, not only because it vastly broadened the horizons of what was criminal, but also how these crimes could be prosecuted. To prosecute a conspiracy earlier, one needed a trial where the falsity in the testimony and hints of an illegal nexus coming through, and an acquitted defendant to bring the case. Now, with conspiracy itself seen as a separate crime independent of the offence which was sought to be committed, it placed a great degree of emphasis on filtering flimsy and baseless prosecutions, since such allegations were easy to make. 

This line of thought prompted some resistance to the sudden widening of criminal conspiracy in the 18th Century, Bryan's book suggests. It took some time, but rather than go back to a narrower construction of what was a criminal conspiracy, the development of the Common Law turned towards the regulation of how conspiracy prosecutions would be launched. The judges acknowledged that, in theory, the conspiracy offence required nothing more than an agreement to commit a crime. But criminal intent could only be rendered manifest before a jury through something beyond a mere accusation in the form of the overt acts of the accused. A successful indictment would still need examples of overt acts, even though technically the offence of criminal conspiracy stood complete without parties taking any steps towards achieving the object of their conspiracy, because otherwise it would be a useless exercise to go ahead with the trial. 

The Codification Experiment

Bryan's book suggests that by the first half of the 19th Century, the Common Law approach to the criminal conspiracy was almost certain: Lord Denman's 1832 explanation (extracted in here) that a successful conspiracy indictment must at least demonstrate an agreement to achieve an unlawful act or a lawful act by unlawful means, was to quickly find widespread agreement [Bryan demonstrates that the "at least" was lost to history]. But crucial to preventing frivolous conspiracy prosecutions was the process — while the offence required nothing more than an agreement, it would be almost impossible to lead a trial without any evidence of external conduct manifesting this criminal intent.

Famously, many influential Britons disliked the Common Law approach, such as Messrs Jeremy Bentham and Thomas Babington Macaulay. The case-by-case approach to law left it too uncertain and by no means a method availing itself to universal application. Which is why the Utilitarians managed to convince many that codification was a more suitable approach for lands such as India, and began the codification process in earnest. One of the first products of this codification exercise was the Penal Code prepared by the Law Commissioners (headed by Macaulay), which was published in 1837. 

What was their approach to conspiracy? First, conspiracy was not made an offence per se but it was part of the Chapter on Abetment. Clause 86 of the Law Commissioners 1837 Code defined previous abetment of a thing as, amongst other things, "[engaging] in any conspiracy for the doing of that thing" [Subsequent abetment, if you're curious, covered persons aiding or abetting after commission of a crime]. Whoever previously abetted by engaging in a conspiracy was punished with the punishment prescribed for the offence, if such abetment led to commission of that offence [Clause 95]. On the other hand, if the offence did not take place, a person was liable to be punished with up to one-fourth the punishment prescribed, as long as "any act or illegal omission takes place in pursuance of that conspiracy, and in order to the committing of that offence." Nowhere did the Code define conspiracy. But at the same time, it indicated that only those conspiracies were punishable where some act or illegal omission took place in pursuance of the conspiracy, and in order to achieving its object.

We know that the Penal Code prepared by the Law Commissioners underwent revisions between 1837 and 1860, when it emerged as the Indian Penal Code [Sadly, I have not been able to trace the reports revising the Code during the intervening years online]. These revisions also affected the Chapter on Abetment. In Section 107 of the Indian Penal Code of 1860, a person "abets" by engaging "in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing." The Penal Code did not define conspiracy either, but this change did away with a technical distinction in the 1837 Code between punishable conspiracies and those which weren't. Section 107 clarified that the only kind of conspiratorial conduct which could be "abetment", was one where some act or illegal omission followed towards executing the conspiracy. As a result, the punishment scheme was simplified. All kinds of abetment (whether by conspiracy or otherwise) which resulted in commission of offences attracted the same punishment as that of offence (unless specified otherwise) [Section 109]. When the offence was not committed, abetment was punishable up to one-fourth the specified punishment [Section 116]. Besides rationalising the scheme, it also made it mildly more lenient, as persons could not be punished for abetting commission of crimes not punishable with imprisonment, where the crime was not committed.

Drifting away from the Common Law, only to Explosively Return 

On the face of it, the Indian Penal Code did not punish criminal conspiracies like the Common Law — so goes the received wisdom. Well, did it really? The Penal Code did not define conspiracy, so it wouldn't be correct to suggest that that it defined it differently from the Common Law. Could one not argue that what the Penal Code tried to do was to codify the Common Law approach to conspiracy, whereby it codified the regulatory tool which ensured that only conspiracies in pursuance of which some act / illegal omission took place could be prosecuted. The Penal Code didn't specify just what this act or illegal omission might be, and so it was open to contend that the requirement was not onerous at all but much like the Common Law itself where the courts had doing anything could be suggestive of the conspiracy. 

That, of course, is a road not travelled. For by 1870 Sir James Fitzjames Stephen had amended the Penal Code to introduce a specific conspiracy offence — Section 121-A — and hinted that there was, indeed, a divergence between the Indian Penal Code and Common Law approaches to conspiracy. I was unable to find many decisions within the period from 1860 to 1900 where courts contended with this issue. But what I did find was a referencer from 1890, a guide-book of sorts, for Civil Service aspirants which carried a helpful table of differences between English Law and Indian Law; one point of difference noted in the said table was the law on Conspiracy, where it noted that conspiracies were only punishable "if any act takes place in pursuance of the conspiracy" unlike English Law where conspiracy was punishable even if no act took place in pursuance thereof.

Courts in the 20th Century certainly abided by this logic of difference as well which, arguably, had by now been espoused by the legislature as well with the passage of Section 121-A. The Madras High Court in N.A. Subrahmania Ayyar (1900; appealed to the Privy Council in 1901) and Tirumal Reddi (1901) stated this loud and clear:

"Under the English law the agreement or combination to do an unlawful thing or to do a lawful thing by unlawful means amount in itself to a criminal offence. The Indian Penal Code follows the English law of conspiracy only in a few exceptional cases which are made punishable under Sections 311 (Thug), 400 (belonging to a gang of dacoits), 401 (belonging to a gang of thieves) 402, (being a member of an assembly of dacoits,) and 121A (conspiring to wage war). In these cases whether any act is done or not or offence committed in furtherance of the conspiracy, the conspirator is punishable and he will also be punishable separately for every offence committed in furtherance of the conspiracy." (Tirumal Reddi)

The divergence between English Law and Indian Law was, therefore, well established for about 50 years in 1912. But at the same time, upon recognising this divergence, it is critical to remember that nobody was suggesting that the Indian approach was worse off for not having fully embraced English Law. Return to the foundations of the codification enterprise: It was an attempt to streamline the "mess" of the Common Law. Thus, if the conclusion is that the Penal Code had forsaken the Common Law of conspiracy to a certain degree, then it was for good reason and not by accident. Indeed, even as he introduced Section 121-A into the Penal Code to bring it more in line with what was then English Law, it was not Stephen's case that the limited adherence to the Common Law of conspiracy was an error in the scheme of the Code. One might argue that he believed in the correctness of this divergence, which he kept up through Section 10 of the Indian Evidence Act which he played a key role in drafting. 

All this changed with an explosion in Chandni Chowk on December 23, 1912. In a previous post on this Blog, Nishant Gokhale described this turn of history as follows: 

"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 bomb might have missed its target, but that did not matter. What mattered was the conspiracy which was allowed to flourish unchecked for as long as it was, ultimately culminating in Basanta Kumar Biswas lobbing the bomb on December 23. In that moment, a worried Parliament and India House could not turn to the slew of repressive powers authorised over the course of the previous decade in a bid to address the growing revolutionary violence stemming out of events in Bengal, including passing of laws such as the Seditious Meeting Act (discussed here in some detail). This would indicate that a bomb could be thrown at the Viceroy due to ineptitude in how the colony was run. Instead, the response was to point to a "flaw" in the law itself, and suggest that it was because of this flaw the powers-that-be could not root out such evil conspiracies before they were allowed to blossom. 

This "flaw" was the above-noted divergence between Common Law and the Indian Penal Code in respect of criminal conspiracy, and the decision was to urgently remedy it by way of the Criminal Law (Amendment) Bill which was introduced on March 5, 1913 and in the words of the mover of the Bill Sir Reginald Craddock, the Bill sought to "introduce a new offence, the offence of criminal conspiracy."    

A Substantive Conspiracy Crime for India

Thanks to the Indian Parliament digitising archives of parliamentary proceedings, everyone can now read the brief, but fiery, proceedings which led to the passing of the 1913 Criminal Law Amendment Act and the addition of Sections 120-A and 120-B to the Penal Code. At the outset, I must admit that reading these debates on the Criminal Law Amendment Bill of 1913 at a time in independent India's history where laws are being introduced without adequate notice, are not referred to Committees for proper deliberation, and are then bulldozed through Parliament using the brute force of numbers, was an odd experience. Both Mr. Banerjee and Mr. Vijayraghavachariar called out the egregious procedure adopted by the Government and the "unseemly haste" in getting the amendment through.  

The amendment was billed by Sir Craddock as the solution to remedy a flaw in India's laws which allowed an assassination attempt of the Viceroy, which was unsuccessful only due bad luck. It was not a failure on part of the police to detect this conspiracy or many others, the argument went, but a gap in the legal system, because of police were unable to go after the masterminds of these anarchical conspiracies, who remained in hiding while others did their bidding. The mover of the Bill pointed to the existence of many such dangerous conspiracies throughout the country which necessitated the urgent and immediate passage of the Bill to ensure that yet another bomb could not be lobbed and pistol would not be fired in the open, and ordinary Indians could experience a measure of public safety yet again. 

Not even three months had passed since the attempt on the Viceroy's life at this point. Given that most of the native members also harboured sentiments of loyalty to the Crown, it was unsurprising that many of them openly spoke of their sense of shame at the "dastardly" deed committed by one of their countrymen. Sir Craddock called it the "duty" of the House to pass the Bill unanimously to send a message, and all but two of the members of the House heard his plea. The two dissidents, Mr. Surendra Nath Banerjee and Mr. Vijayraghavachariar, had the temerity to oppose the Bill outright on March 5. Once they lost that motion, put up a slew of amendments to curb what they saw as an unprincipled and unfathomable expansion of the repressive powers of the police. The point was simple — the absence of conspiracy was not a flaw but by design. These members argued it was a sleight of hand to suggest that the police which had at its disposal vast powers of arrest but had been unable to crack various cases would suddenly gain detective abilities by creating a new crime. If anything, this new, boundary-less crime, would greatly enhance scope for police oppression and false accusations.  

The multiple amendments moved by them sought to restrict the scope of the proposed conspiracy offence by tying it to only specific objectives — commission of public order offences, for instance. This was a lost battle from the start given how radically this altered the concept of the Bill itself, and also as the Select Committee had already created some measure of relief by requiring an overt act where conspiracies were to commit lawful acts by unlawful means. 

Much more effort was placed in trying to provide adequate safeguards against police powers and false prosecutions. The Select Committee had provided a mechanism by which prosecutions for conspiracies to commit offences against the state, or offences punishable up to two years, could not be launched without proper sanction. This was better than nothing, but as Mr. Vijayraghavachariar explained to the House, "give me less if you like, but let me have something tangible and really useful" (19th March, 1913). A more meaningful protection in his eyes was to render all conspiracies non-cognizable and bailable, or require prior sanction for all such prosecutions where the object of the alleged conspiracy was the commission of a cognizable crime. It was a salient point, because all it sought to curb was the power of arrest where the only suspicion was that the person had agreed to commit a crime — where police could show more, then arguably such powers would still be available given that abetment was cognizable if the main offence abetted was cognizable. The point was lost on the House though, which saw any suggestions to curb police powers beyond the limited ones already agreed to as undermining the very purpose of moving the amendment in the first place. 

Crisis Lawmaking, and a Dire Warning 

The proceedings on March 19 continued well past six in the evening. After all but one of the amendments had been voted down, it fell to the members to make some remarks to wrap up the debate. Curiously, more than one native member now admitted to having had misgivings when the Bill was first introduced on the floor of the House, but each of these members found themselves on much surer footing with the changes brought about by the Select Committee. Mr. Madhu Sudan Das was evocative in explaining his position, which he felt was the logical position to take for every member, when he reportedly said that:

"I fully share the feeling of shame which my Hon'ble friend Babu Surendra Nath Banerjee said he has when he hears of these things; but then I ask myself, have I been able to help Government or those responsible for the administration of the country, to get rid of these people, through these outrages are committed against my own countrymen, my kith and kin. What have I done? That is really the thing. Two facts stand out prominently before us. They are that the Government has failed to do anything; the people have failed to do anything; to get at these criminals. We don't know where they are and consequently the time is come if they are not to be found in the broad daylight, if they hide themselves in dens, in secret places, something must be done to get at them, and the Conspiracy Bill is nothing but this. If we can't get hold of these men when they have committed overt acts let us try if we can reach them when they are hatching their plots. Now, for instance, taking an analogy from the plague, it is really a case like this: if we can't get hold of the rat when he comes out of his hole and tries to go about the house and spread infection, let us try to enter the hole and kill him there if we can. Well, whether this will succeed or not it is very difficult to say, but certainly I felt that I should not be justified (when I cannot do anything to stamp out this evil from my country) in opposing Government when those people who are responsible for the administration of the country say this is a measure they want to give a trial."

These remarks could well be transported across space and time and attributed to men in parliaments, at the battlefront, election rallies, or even in a household. It is the reaction commonly seen in response to a crisis — something must be done. Since you and I have no idea what that must be, let us defer to the counsel of the voice in the room which ventures forth with a suggestion. We are invited to accept the many assumptions that this measure is driven by. We do not know if that will work or whether the assumptions are reasonable, but something is being done. No matter if it arms the police with more powers, threatens individual liberty; all this is better than the alternative, which is nothing. And, after all, innocent persons need not fear bad laws.

Of course, some are able to look past the blinkers placed upon their foresight by a crisis and question these assumptions and the proposed benefits of measures. History is kinder to these voices, such as that of Mr. Vijayraghavachariar. At the time the proceedings were winding up, he reiterated that the "gap" argument was deeply flawed and would worsen the existing law — a point which was supported by the eminent jurist Shamsul Huda some years later in his famous Tagore Law Lectures — and declaimed with utmost conviction that the proceedings of the past two days had convinced him that the "Conspiracy Bill" was unnecessary. He reminded the members that by passing such a law, what they had sanctioned was not only more arrests but also more coerced confessions by police as they gathered evidence of the conspiracies being hatched in secret by shady conspirators. Ultimately, in his eyes, the British Government was using an unfortunate, even tragic event, as cover to arm itself with yet another repressive law. And it was doing so without arming the Indian subjects of the Queen with those safeguards against police power that were enjoyed by their fellow subjects back in London, reminding us that "it is very serious mistake to say that a because a man is innocent, therefore he should not be afraid of bad laws and the abuse of laws."

What path has the substantive conspiracy offence travelled during the century since these heated debates before the Governor General in Council? That will be the focus of the remaining posts in the series.  

Guest Post: "Remedial Injustice" — Delays in Preventive Detention rendering it a Meaningless Remedy

[This is a guest post by Varun Ahuja]

On December 23, 2021, the Madras High Court quashed the order authorising preventive detention of one Mr. Kishore K Swamy, under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Goondas, Immoral Traffic Offenders, Forest­-offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act of 1982, which in the interest of brevity is commonly referred to as the Tamil Nadu Goondas Act. Kishore Swamy, who has been referred to in reports as a ‘prolific troll’, was well-known for harassing and targeting women journalists on twitter. His preventive detention was authorised for circulating defamatory posts against Tamil Nadu Chief Minister MK Stalin and former DMK leaders Annadurai and M Karunanidhi. While the Act itself is arguably overbroad and its application in the present context warrants scrutiny, this post is restricted to analysing the delay in disposing off the Habeas Corpus petition by the High Court. 

One of the many arguments raised on behalf of the detenu while challenging the preventive detention order was a delay in considering the representation submitted by the detenu against the detention order. The government contended that the detention order cannot be quashed only on the ground that there was delay in considering the representation. However, it is settled [Rekha v. State of T.N., (2011) 5 SCC 244 (Para 12)] that preventive detention orders can indeed be quashed if there is delay in passing the detention order, or delay in executing it, or delay in deciding the representation of the detenu. 

In the present case, the detention order was passed on 24.06.2021, the representation was submitted on 09.08.2021. Government asked the detaining authority to send remarks against the detention order on 11.08.2021 and they were received on 13.08.2021. And then finally, the representation was rejected on 20.10.2021. Therefore, the argument was that there was 2 days unexplained delay (between 11.08.2021 and 13.08.2021) in submitting remarks by the detaining authority and 42 days unexplained delay (there were 68 days between 13.08.2021 and 20.10.2021 but 26 days were government holidays) in considering the representation. In its short order, the Court agreed with the submissions of the petitioner that there had been a delay of 2 days by the Detaining Authority and an unexplained delay of 42 days in considering the representation (Para 10) – thereby quashing the detention order. 

Time at the High Court

Assuming that the detenu was taken into custody when the detention order was passed, i.e. 24.06.2021 (even though media reports indicate, he was arrested much earlier on 14.06.2020), the person had spent 182 days in custody till the High Court ultimately quashed the order. It is important to note, that there was no substantial question of law involved in the case. All that the High Court was asked to do was to look at the case records and require an explanation for the delay from the government. There appears to have been no real delay in filing the habeas corpus petition since the registered date of the case was 23.07.2021 (H.C.P. No.1134 of 2021). The record on the ecourts website reflects that the case was listed on three occasions – 28.07.2021, 22.09.2021, 10.12.2021 — with the judgment delivered on 23.12.2021. As I have been unable to locate order-sheets online, it is not possible to state why these adjournments were granted and, more importantly, why there were delays of 2-3 months at a time between hearings (essentially, was this due to a specific request, or down to the general backlog in the court). 

On the judgment itself, while it is understandable for judgments to be brief and to the point, perhaps in the context of preventive detention a Court ought to provide us with certain basic details about the procedural life of the preventive detention so as to enable observers and the public at large to get a glimpse of the workings of the state machinery. It might not be a need elsewhere, but since preventive detention does not involve court hearings and proceedings before advisory boards are in camera, there is very little scope for a curious and concerned citizen to know what is going on. I would go so far as to contend that it is imperative in the preventive detention context, because while use of this power is sanctioned by the Constitution, it has to be read strictly and even a minor deviation from the procedure makes the order liable to be quashed. And an unavailability of this kind of data removes any possibility to analyse how the State has been using (or abusing) its powers under preventive detention laws. 

A Meaningless Remedy

There is no context in which the homily of “justice delayed is justice denied” rings truer than for the context of habeas corpus. This remedy is at highest risk of being rendered meaningless if courts do not decide cases quickly, one way or another. Sadly, available evidence suggests that Indian constitutional courts have miserably failed to keep this in mind. In an empirical study conducted by Mr. Shrutanjaya Bhardwaj analysing habeas corpus petitions disposed by the Supreme Court from 2000-2019, it found that the Supreme Court generally took more time than the maximum period prescribed for detention (generally one year), to hear and decide a habeas corpus petition. As a result, it reduces the writ of habeas corpus to a meaningless remedy. For instance, in the previous year, the Jammu and Kashmir High Court Bar Association had written to the Chief Justice of India that after the abrogation of Article 370, when many people in the valley were detained, where the letter stated that while over 600 habeas corpus petitions had been filed by persons preventively detained before the High Court of UT of J&K at Srinagar, not even 1% of such cases were decided by the J&K High Court by then. 

The Bar Association in the letter cited the case of its President, Mian Abdul Qayoom, as an illustration of the issue. In the case of Mr. Qayoom, the detention order was passed on 07.08.2019, a single judge decided the writ petition on 07.02.2020 against which an Letter Patent appeal was preferred which was decided on 28.05.2020. Therefore, in this case too, the petition spent about 182 days (6 months) at the High Court. An appeal was preferred before the Supreme Court which was registered on 18.06.2020 [SLP(Crl) No. 002833 - 002834/2020] and finally decided on 29.07.2020. Even then, the Court did not rule on the legality of the detention order but decided the petition on the government’s concession that since the Petitioner had anyway served the maximum period of detention he shall be released. All in all, Mr Qayoom was incarcerated for the maximum period (one year) prescribed under law without trial, without ever receiving final adjudication if his detention order was indeed legal. 

The delay caused by a constitutional court in ruling on a habeas corpus petition has a dramatic effect on how much time the person serves under preventive detention, in case its judgment is challenged in appeal. A High Court being the first judicial body adjudicating on the legality of preventive detention must be more proactive in deciding habeas corpus petitions. This in turn, will allow the Supreme Court enough time in deciding the appeal and not let the remedy become meaningless.