A long time ago, the Blog began a series (yet incomplete) on the blog discussing the Conspiracy offence in Indian criminal law. A couple of those posts looked at the immediate context leading to the introduction of the substantive offence — the attempt on the Viceroy's life in 1910 — and the 1913 debates in Council where the amendment bill sailed through with considerable ease.
Again, thanks to the digitisation of the Archives, one can get a glimpse of what went on behind the scenes within the machinery of colonial government. The file appears to be titled: "Enquiry into the Possibility of Strengthening the Hands of the Authorities in Dealing with Anarchical Conspiracy: Act amending the Indian Penal Code and the Code of Criminal Procedure in the matter of the law of Conspiracy". Full marks to whoever decided on this for summing up what the conspiracy offence entails.
The initial memo tabling the proposal gives a glimpse of the legal oppression wrought globally by the colonial system, for a key primary reference for introducing a law in India was introduction of a similar law in Egypt in 1910 (later notes on file also cite Ireland as another example). The Egyptian law punished as "criminal association" the act of persons who "associated together" to commit crimes, even where perpetration of crime had "only been contemplated".
The deficit in Indian law as of 1912 / 1913, was its inability to permit prosecuting persons for only "contemplating" the commission of crime. In other words, what was needed to 'strengthen' the hands of authorities, was giving them the ability to round up people pure and simple, because what one contemplates is rarely written upon one's face. Interestingly, even the Egyptian Law did not go far enough and had to be blended the Egyptian law of 1910 with older English law in his proposed draft, as the latter allowed punishing persons doing legal acts, by illegal means.
The government file is a great place to look for understanding the process of criminalisation. It is not about principles, or justice. It is, especially when a sovereign feels under threat, about what is going to be useful to contain that threat. Exchanging notes on file, the officials from the Home Department and Legislative Department speak of bringing Indian Law in line with English Law, but this is not because they are jurisprudes seeking consistency in the definition of laws. They are wanting this move, at this particular time, because having such a crime "is likely to be useful" to deal with the problem at hand.
How was a conspiracy offence proper going to be useful? Because it rid the need for finding any overt act, allowed enhanced punishments, and perhaps most importantly cheapened the kind of evidence required to prove a case. A.P. Muddiman could not have said it better when he notes: "The vagueness of the English law has its advantages ... In matters of sedition it is rather a question of policy than of jurisprudence what conduct should be punishable, and some degree of vagueness is a necessary condition of efficiency." [Pp. 2-3, Note dated 08.01.1913]. His superior in the Department, W.H. Vincent, noted that merely adding this law is not going to be enough without sufficient procedural powers to take meaningful advantage of this vagueness that the law would bring [Pp. 3-5, Note dated 14.01.1913].
Usefulness of having a dedicated conspiracy law is made plain by the Home Department. As RH Craddock records: "The proposed additions to the law will not only embrace anarchist plots to murder, but conspiracies to commit crimes of all kinds, including criminal intimidation, mischief, wrongful restraint, etc., which are the usual accompaniments of a boycott movement." [Pp. 6-7, Note dated 17.01.1913]. He really lets the cat out of the bag, in a sense. Once you are willing to take a step back, it becomes obvious that rarely will an actual revolutionary conspiracy be prosecuted without overt acts being visible. What you really need this new offence for, is to pre-emptively quell even the far lesser obvious kinds of politically undesirable acts challenging British rule.
As the proposed law goes outside the four-walls of government, the conversation loses some of its candour. We see this best expressed in the Draft Statement of Objects and Reasons that is being discussed on file. This statement is a brief description of the reasons that prompted government to propose a legislation, and will be consumed by the general public. Naturally, such a document cannot say that we need vague criminal laws to efficiently stem the rising anti-British feeling. Instead, the statement mainly gives jurisprudential reasons (there is a gap in Indian law which must be filled) and addresses the political element by simply stating that "The existing law has been found inadequate to deal with modern conditions in India ..." [Pp. 9-12].
This sanitising criminal law from the contest of politics is a sleight of hand which only history and the archives can help uncover, and give us a truer picture. It was not merely to fill some gap in law that Section 120-A was added to the Indian Penal Code in 1913, and has been retained in the Bharatiya Nyaya Sanhita a century later. It is because the offence of conspiracy contains the necessary vagueness allowing it to be used by the government in situations which it deems are undesirable. Prosecuting such conspiracies has never been about law, but have always been about pursuing government policies, and no amount of clothing in statutory or legalistic verbiage can somehow make them appear apolitical.
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