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.