On Conspiracy — A Brief Historical Interlude

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. 

Collapsing Boundaries and Anti-Terror Laws

Anti-terror laws lend themselves to a peculiar kind of jurisprudence. Legislatures, presumably in a bid to show commitment to the rule of law (or, compliance with some international obligation), draft laws that have a variety of offences designed to curb a variety of evils. All these offences are drafted in a similarly broad fashion covering all kinds of physical acts. The difference between them is only in the nature of the alleged 'mental element' which is supposedly accompanying the physical act. 

These boundaries between offences within an anti-terror law are what one is forced to reckon with after reading the Delhi High Court's recent decision in Mohd. Abdul Rehman v. State [2024 DHC 9945 DB]. The High Court rejected the appeal against conviction for offences under Sections 18 and 18-B of the Unlawful Activities Prevention Act 1967 ['UAPA']. Section 18 punishes conspiring to commit a terrorist act or acts preparatory to commission of a terrorist act, and Section 18B punishes recruiting others for the commission of a terrorist act.

An Object-Less Conspiracy 

Dismissing an appeal is hardly novel. What makes Mohd. Abdul Rehman a decision warranting comment and discussion are its facts. Here, there were a series of circumstances implicating the appellant [see Paragraph 46 of the judgment]. They consisted of travelling to Pakistan without reason, consorting with members of terrorist organisations, giving radical speeches, and recruiting young persons for the cause of terrorism. But the prosecution was unable to point to any conspiratorial object that was being pursued by the appellant and his co-accused persons. 

Instead, the object of this alleged conspiracy was to pursue objectives antithetical to national interests. The set of circumstances gave a "cumulative effect of existence of some common design or object to achieve something which is not in the interest of the country" [Paragraph 25]. At another place in the judgment, the case is described thus: "Although, there is nothing on record to show that any particular act or object was in contemplation, however, it is the case of the prosecution that these circumstances if taken cumulatively would demonstrate that the Appellant was preparing to commit an act, which would otherwise disturb the unity, integrity, peace and tranquility of India."

The High Court's Reasoning

The reasoning of the High Court in upholding the conviction, which begins its analysis from Paragraph 47, is fairly straightforward. Essentially, it does not matter if there is no clear object being alleged to the conspiracy. The definition of 'terrorist act' is not merely limited to acts which threaten the unity etc. of the country, but also to acts which are likely to cause such an outcome. By extension, criminal conspiracies are not only those where the object is to engage in acts threatening the unity of the country, but acts likely to do so. Add to this mix the UAPA's conspiracy clause, which punishes persons for acts preparatory to the commission of terrorist acts, and you reach a place where there is no need for the prosecution to prove any clear object of a conspiracy, as long as it can show that persons are acting in concert and doing acts preparatory to acts which can threaten the country's unity — whatever that means. Thus, "indulging in conspiracy with terrorist organisations and associated with persons who are rendering support to terrorist organisations (sic)" comes within its grasp. The conclusion is elsewhere stated as "in conspiracies of this nature specific cover acts would not be required but secretive and clandestine support to declared terrorist organisations would also be sufficient." [See paragraphs 57 to 52]. 

Mohd. Abdul Rehman demonstrates the snowballing effect of the anti-terror law's multiple crimes into one broad crime. The concluding paragraphs of the High Court judgment show that the main allegation against the appellant was his consorting with a terrorist organisation. Now, the UAPA does carry a very broad conspiracy clause, Section 18, but it also carries a different set of crimes which punish supporting terrorist organisations under Section 39. For punishing a person under Section 39, you need not show that there is any concern with committing terrorist acts, but only show that a person knew that he was dealing with a terrorist organisation, and did something which he knew would offer encouragement or support to the said organisation. 

A much better fit, right? So why did Section 39 not figure at all? This is because of the sheer overbreadth of the conspiracy clause, which has the potential to easily subsume the kinds of acts which may more appropriately be criminalised through Section 39. Prosecutors thus have a choice in how to frame the case, and since Section 18 carries far more stringent punishments compared to Section 39, it is natural for them to invoke the conspiracy offence. Section 18 carries a life sentence, while Section 39 a maximum sentence of up to ten years in prison. 

Conclusion

Many hope, and some even dare to expect, courts to perform some anti-majoritarian dance of democracy. The peculiar setting of anti-terror laws reminds us just how forlorn that hope and expectation is. Faced with an existential threat to the sovereign, even object-less associations of persons assume the nature of a conspiracy, on a reductionist logic that it is only a matter of time that these associations find an object, and the law can't afford to wait. We can decry the lack of analysis on display in Mohd. Abdul Rehman, and there is certainly something to be said about how scanty the reasoning is. But when the offence itself is so broad — "whoever conspires or attempts to commit or advocates or abets or incites directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act" — then do you really need any reasoning? Law reduces itself to punishing suspicious conduct, fermented with some vague allegations of criminal intent which nobody can disprove.  

Stating the Obvious? Conspiracy as a Scheduled Offence

The crime of conspiracy was once famously called the "prosecutor's darling". The moniker has never quite gone out of fashion, because of how police and prosecutors the world over have continued to rely upon the offence to cast a wide net of liability and ensnare defendants. It is also a helpful starting point to explain the problem being discussed in this post — the presence of the conspiracy offence under Section 120-B of the Indian Penal Code 1860 [IPC] [offence defined under Section 120-A] in the Schedule to the Prevention of Money Laundering Act 2002 [PMLA] and its consequences.

A brief review of Indian anti money laundering regime is in order. India is a jurisdiction which does not apply sanctions of money laundering to the generation of tainted assets from any criminal activity. Rather, it lists out a series of predicate offences in a Schedule to the statute, and restricts the invocation of money laundering offences to any proceeds of crime that may be generated, derived, or obtained by acts relating to the commission of these scheduled offences. Sitting pretty in that list of offences along side crimes such as drug-trafficking and terrorism is the crime of conspiracy.

Having conspiracy in the list of offences to trigger the PMLA throws up a serious problem. Even though it exists as a standalone offence on the books, the very idea of a conspiracy is that one agrees with others to do something else, and it is that something else which is usually the problematic part. But at the same time, the recognition of conspiracy as an offence is a legislative statement that the act of conspiring merits sanction. This tussle of objectives is captured in the history of the conspiracy offence in India. The act of conspiring to do something was always a part of the IPC, identified as a species of abetment. Almost half a century later, a specific offence was inserted in the Code, criminalising the agreeing to commit an offence. Returning to the PMLA context, this tussle of objectives poses a very obvious problem. If we change focus from that ultimate act, to the process of conspiring itself, then essentially we open a doorway for agencies to trigger money laundering to any crime. In other words, although the idea of listing out certain offences in a Schedule was to limit application of the PMLA, the presence of conspiracy as part of the list carries the potential to remove that harness and allow the PMLA to run amok.

It was not as if the presence of conspiracy was not being so used. PMLA proceedings had been launched in cases where a set of persons were accused of conspiring to commit tax fraud — an ultimate objective which was not in the Schedule. Similarly, conspiracies to commit criminal breach of trust were made the basis for launching PMLA cases. One such case finally reached the Supreme Court and was decided recently, giving crucial clarity to how agencies and courts are to treat the presence of the conspiracy offence within the Schedule to the PMLA. 

In Pavana Dibbur v. Directorate of Enforcement [Crl. Appeal No. 2779 / 2023], the Appellant raised three primary contentions to argue that the PMLA case against her ought to be closed. One of these submissions was that the PMLA process had been initiated on the basis of predicate crimes of alleged conspiracies to commit a set of offences not covered by the Schedule to the PMLA. Such a reading of the statute, it was argued, would render the very idea of the Schedule otiose. On the contrary, the Government argued that presence of the conspiracy offence as a standalone entry in the Schedule was evidence of legislative intent to trigger the PMLA wherever a conspiracy was alleged to have begotten proceeds of crime. 

The discussion begins from Para 18 onwards. The crux is contained in Paras 24 and 25, where the Court held that the presence of conspiracy within the Schedule could not be used to defeat the idea of having a Schedule in the first place that restricted the applicability of the PMLA. The absence of several offences that may result in generation of assets from the Schedule clearly signalled a strong legislative intent to not apply the PMLA to illegal acts wholesale. In such a case, it was imperative to confer a construction upon the entries of the Schedule which did not render it contrary to legislative intent. This, the Court held, could be achieved by specifying that the alleged conspiracy must relate to commission of another Scheduled Offence to invoke the PMLA. 

Pavana Dibbur arrives at a desirable solution to a vexing problem and will restrain the application of the PMLA for the time being. Separately, it is noteworthy that the Court relied upon the principle of strict construction of penal statutes to buttress its reasoning. Recall that such a characterisation of the PMLA as a 'penal statute' was exactly what a different Bench in Vijay Madanlal Choudhary had steadfastly refused to admit by resorting to verbal acrobatics, settling instead upon calling it a 'sui generis' statute. One can only hope that the frank acknowledgment of the PMLA as a penal statute is here to stay, paving the way for jurisprudential clarity and an affirmation of constitutional and procedural rights for those caught in its unending net.    

Guest Post: A Moral Case against Criminalisation of Mere Membership in UAPA [Part 1]

(This is a guest post by Kartik Kalra)

[This is the first of a two-part series on evaluating present association-based standards and proposing new mens rea-based standards to assess the commission of membership-based offences under the UAPA. This part evaluates moral and conceptual reasons in refusing to criminalise guilt by association. The second part evaluates UAPA jurisprudence, discerning the continued criminalisation of guilt by association, and proposes mens-rea based standards to assess the commission of membership-based offences.]

“Had there been no Constitution having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act.” 

- Indra Das v. State of Assam [(2011) 3 SCC 380], a judgement acquitting the accused from the offence of joining the United Liberation Front of Assam (“ULFA”). 

The Unlawful Activities (Prevention) Act, 1967 (“UAPA”) creates presumptively strict liability membership-based offences, which call for a conviction based on membership of unlawful associations or terrorist groups. These are present u/ss. 10, 20, 38 and 39 of the UAPA, all of which criminalise the membership of entities that have been prohibited. For the offence u/s 10, one must be a member of an association declared unlawful by the government; for the offences u/ss. 38 and 39, one must be a member of a terrorist organization while having an intention to further its activities; and for the offence u/s 20, one must be a member of a terrorist organization that has committed a terrorist act. The Terrorist and Disruptive Activities Act, 1987 (“TADA”) also carried membership-based offences of a similar tenor, and Courts had successively read down its membership clause to impose a burden on the state to demonstrate the accused’s “active membership” of the impugned group. This was done in Arup Bhuyan v. State of Assam [(2011) 3 SCC 377], which pronounced the requirement of active membership while stipulating that a close connection to committing, inciting or promoting violence would be a factor in its determination (¶12). On this basis, it acquitted the accused of the offence of joining the ULFA, given that the active nature of their membership could not be established. 

Everyone’s fate, however, is not like that of the accused in Indra Das or Arup Bhuyan. 

The UAPA has been used exhaustively in recent times to prosecute persons accused of organizing the Elgaar Parishad, an event commemorating the 200th anniversary of the battle of Bhima Koregaon. Speeches were delivered, plays performed and sloganeering done, which later devolved into an unfortunate spate of violence leading to the death of one individual. In connection to this violence, the state has effected arrests of sixteen civil society activists for membership-based offences. The allegations against most are similar, which concern their membership of the Communist Party of India (Maoist) (“CPI-Maoist”), which in-turn is alleged to have organised the event. 

This membership, the state has mostly claimed, constitutes an offence irrespective of the impugned individuals’ own roles and intentions in furthering the group’s violent aims and insidious projects, if any. The question of membership is one of degree: under what conditions can it be considered that an individual was a member of a group, and what extent of membership must be demonstrated to establish the commission of a membership-based offence? Must the accused’s intent to further the aims of the group or their role in the incitement of violence be demonstrated, or is the mere possession of literature or documents sufficient to constitute a membership-based offence?

In this piece, I present a moral case against the criminalisation of mere membership in the form of possession of literature or convergence of beliefs, and argue that the principles of moral agency dictate that an organization’s acts of terror must not be unfairly imputed to a member unless they themselves partake actively in such acts. In other words, one’s non-violent convergence of beliefs or possession of literature doesn’t per se constitute an act of terror. In order to make this argument, firstly, I present arguments in favour of the criminalisation of mere association; and secondly, I rebut those arguments by demonstrating that the criminalisation of guilt by association is inconsistent with the principle of universal moral agency, and is disproportionate in nature. I argue for mens-rea based standards to evaluate the commission of membership-based offences in Part II.

Conceptual Underpinnings of the Principle Against Guilt by Association

In State of Kerala v. Raneef [(2011) 1 SCC 784], a doctor who provided medical treatment to persons accused of offences of a religious character was charged for a membership-based offence under the UAPA. Assuming that the doctor was indeed involved with the banned group in treating them, is this sufficient to constitute the commission of a membership-based offence? Does the doctor’s own act of providing medical treatment constitute an act of terror?

Andrew von Hirsch proposes that acts meriting criminalisation may be largely harmless at present, but may be susceptible to trigger a “series of events that eventually risk harmful consequences”. On this basis, the long-run harm anticipated from presently innocuous acts serves as justification enough for proscribing them. Consider the example of the consumption of drugs, which may be regarded as a prima facie self-regarding action. The harm caused by their consumption, however, may be remote: one person’s consumption of drugs may be susceptible to creating a general environment where the consumption of drugs is acceptable, which leads to lower social productivity, greater poverty, and a rise in theft. The state may, therefore, have legitimate grounds to criminalise the consumption of drugs based on this perception of remote harm.

Other scholars have applied the formulation of remote harm to membership-based offences, drawing a distinction between exclusively terrorist organizations and their ancillary counterparts. The latter refers to entities that serve multiple functions, whose link with terrorism is the solely the state’s suspicion instead of a demonstrable function of the group. For the former, it has been argued that membership of any kind, whether active or passive, be legitimately criminalised. The immense magnitude of remote harm threatened via the large-scale destruction of life and property is often considered a justification for early criminalisation. For the latter kind of groups, it has been argued that there exists greater scope for evaluating the individual’s conduct within the organization instead of criminalising mere membership.

Overall, the theoretical backing of early criminalisation rests on the presumption of the moral (and constitutional) acceptability of imputing the responsibility of the occurrence of future uncertain events on persons disconnected from them. I shall now rebut the arguments presented in this section, and argue that the criminalisation of mere membership militates against the principle of universal moral agency and is disproportionate in nature. 

Moral Agency and the Disproportion of Guilt by Association

The distinction between exclusively terrorist and ancillary organizations, along with the differential criminalisation of memberships in both, I propose, is incompatible with the minimum moral respect owed to persons for their own actions and the standard of physical violence that is tied to definitions of terrorism, including that within UAPA.

Dworkin argues that a fundamental feature of political society is that the state treats all its members as responsible moral agents (200). All persons, he argues, must be free to hear all opinions despite a possibility of their swerving towards dangerous or offensive convictions. This, I propose, applies equally to association: as long as I am a moral agent who takes responsibility for my own actions, I must be free to join whichever organization I desire as long as my own conduct doesn’t constitute an act of terror via the perpetuation or endorsement of large-scale violence. Imputing to one an organization’s acts of terror solely due to their convergence of beliefs with those of the organization, or via the possession of its literature, in disregard to their own positive acts and personal convictions that are disconnected to the endorsement or commission of violence, constitutes a case of criminalising guilt by association. 

Even for extremely offensive views that arise from one’s membership that shake one’s moral conscience but stop short of a nexus with violence, the remedy must not be found in a wanton labelling of the membership itself as a terrorist offence. In other words, criminalising mere membership as an act of terror is disproportionate. 

Conclusion

In this piece, I have argued that theories justifying the criminalisation of membership-based offences in the UAPA subordinate the principle of universal moral agency, and unfairly impute responsibility of the organization’s violent acts to the individual. An individual’s membership in the form of possession of literature or convergence of beliefs doesn’t constitute an act of terror by itself, and considering it one is disproportionate and militates against their moral agency. In Part II, I show how the UAPA continues to criminalise guilt by association, and also propose mens-rea based standards to assess the commission of membership-based offences. 

Guest Post — Conspiracy in times of the Raj (Part III)

(This is a guest post by Madhav Aggarwal, and the third in a series of posts on conspiracy)

The previous post on this blog covered the birth of the substantive offence of Conspiracy in the aftermath of the Delhi Conspiracy Case. This post will focus on the life of the substantive offence of conspiracy in Pre-Independent India. 

Introduction

The insertion of Section 120B in the Indian Penal Code 1860 through Criminal Law (Amendment) Act 1913 marked the second departure from Macaulay’s stance on criminalising conspiracies only as a form of abetment. The singing reason for the insertion of Conspiracy as a substantive offence was to ensure that “dangerous conspiracies” like the assassination attempt on the Viceroy are nipped in the bud much before they are executed. Purportedly, it was the inadequacy of Indian law and not the failure of the police to detect these crimes that interventions before the execution of the conspiracies could not be made.

Though, a look at the actual operation of the law would debunk this reasoning. I was able to review most of the reported judgments from High Courts and Chief Commissioners Courts for this period and it appears that the insertion of the clause was not working to forestall serious conspiracies from occurring. Perhaps the only big conspiracy case before commission of the dacoity or bomb-throwing was the Meerut Conspiracy Case [S.H. Jhabwala v. Emperor (1933)], where an array of accused persons were charged as having conspired to overthrow the British Government solely due to their involvement (formal as well as informal) with Communist parties of India or Great Britain. But it may be argued that even the Meerut Conspiracy Case cannot be seen as an example of Section 120-B working as intended, because firstly the accused persons had given various inflammatory speeches, and secondly the accused were not charged with S. 120-B at all but with the offence under Section 121-A of the Penal Code, that initial departure from Macaulay’s scheme. 

Submerging Section 107 within Section 120-A?

While we are aware of the stated reasons for the introduction of Section 120A and Section 120B, it remains unexplained why the legislature chose to retain Section 107. Even a plain reading of the bare act is sufficient to grasp how Conspiracy under Sections 120A 120B is unduly wide and completely engulfs abetment by conspiracy under Section 107 in its scope. 

Firstly, Section 120A provides an extended definition of criminal conspiracy covering acts which do not amount to abetment by conspiracy within the meaning of Section 107. It does away with the need for any overt act as long as the conspiracy involves an agreement to commit an offence as is required by Section 107. Then, Section 120B makes them punishable in the same manner as if they had been abetted (albeit only if the offence conspired to be committed was punishable with at least 2 years of imprisonment). Secondly, Section 120A also brings within its scope criminal conspiracies other than criminal conspiracies to commit offences, which would not have amounted to abetment. 

Conspiracy OR Abetment by Conspiracy?

So if a conspiracy under Section 120B is sought to be proved through overt acts besides the agreement, would it not mean that it amounted to conspiracy by abetment also because an overt act did follow? What decides whether a charge under Section 120B should be framed or Section 109? 

In the initial period, there were attempts to curtail the application of Section 120B by contending that use of the words “where no express provision is made in this Code for the punishment of such a conspiracy” in that clause imply that abetment by conspiracy should be resorted to when applicable. The Courts rejected this interpretation on the basis that the words used in Section 120B refer to Section 121A instead of abetment by conspiracy and concluded that it was optional for the prosecution to proceed under either. [Udhasing Tahilsing v. Emperor, 1916 SCC OnLine Sind JC 11; Kishanchand v. Emperor, 1925 SCC OnLine Sind JC 49].

Soon however, the position of law seemed to drift against this understanding. Courts started considering it appropriate to utilize conspiracy by abetment instead of Section 120B when some offence in pursuance of the conspiracy had taken place. [Jugeshwar Singh v. King Emperior (1935), Mallimoggala Venkataramiah (1937), Satyanarayana v. King-Emperor, (1943)]. 

Conspiracy to commit AND the offence committed?

Let’s now address the foundational question of the appropriateness of charge under Section 120B together with the charge of the offence conspired to be committed. The legal position in this respect remained in turmoil just as the political position of the country. 

As discussed before, one line of authorities endorsed the view that if the commission of some offence has taken place, the proper charge would be abetment by conspiracy and the offence committed instead of Section 120B. [Jugeshwar Singh (1935), Mallimoggala Venkataramiah (1937)]

The other line of authorities laid down that the accused can be separately punished for the offence under Section 120B because of it being a substantive offence. [Bala Huddar v. Emperor, 1931 SCC OnLine MP 3; Hazari Beria v. Emperor, 1928 SCC OnLine Oudh CC 172; Emperor v. Karamalli Gulamalli (1938)]

A separate, and might I add legally untenable, view was adopted by the Lahore High Court. It endorsed charging with only the commission of the offence on the basis of “shortness of time” between the hatching of a conspiracy and commission of the crime. [Punjab Singh v. Crown, 1933 SCC OnLine Lah 436; Ismail v. Emperor, 1946 SCC OnLine Lah 52]

S. 196-A: A buckler?

A definitive distinction between abetment by conspiracy and Section 120B was that the rigour of Section 196-A in the Criminal Procedure Code 1898 (CrPC) didn’t apply to abetment by conspiracy. The Criminal (Amendment) Ordinance, 1913 had also introduced Section 196-A in CrPC apart from the changes introduced in the Penal Code. The stated purpose was to “provide a safeguard against the vexatious prosecution for criminal conspiracy” with its application expressly limited to Section 120B. It provided for two classes of cases. First, where the object of the conspiracy is to commit an illegal act other than a statutory offence or a legal act by illegal means, the complaint must be made under the authority of the state. Second, where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, a sanction was required. This meant that it couldn’t ensnare anything more than petty conspiracies. 

As can be evinced, the requirement of sanction under Section 196-A in CrPC depended on the object of the conspiracy and not on the offences that may have been committed in pursuance of it. This made it quite simple to sidestep the requirement. Consider this — Even if forgery (non-cognizable offence requiring sanction) was committed in pursuance of a conspiracy, it could be alleged that the object of the conspiracy was to commit criminal breach of trust (cognizable offence not requiring sanction).

The position of law with respect to validity of a trial initiated without a sanction under Section 196-A in CrPC also remained unsettled. There was a line of cases that regarded it merely as a ‘technical defect’ and endorsed that a trial initiated without sanction that ends in conviction should be upheld. [Abdul Rahman v. Emperor (1935)] And that if no objection was taken at the stage of inquiry or trial, a trial cannot be held to be illegal for want of sanction. [Hanif v. Emperor (1932)]. 

On the other hand, there was another line of cases which held that a sanction to prosecute for criminal conspiracy, given after the filing of the complaint, does not fulfil the requirements of Section 196-A in CrPC and that a conviction for criminal conspiracy should be set aside in the absence of proof that prior sanction to initiate the proceedings had been obtained [P. Varadarajulu Naidu v. Public Prosecutor (1918) following Barindra Kumar Ghose (1909)].

“Prosecutor’s Darling” for a reason

Dire warnings of some like Mr. Vijayraghavachariar soon came true and Section 120B acquired a bad reputation. The Calcutta High Court would use the epithet “much misused provision” for it. [Ram Gobinda Ghose v. Emperor (1938)]. It wasn’t just the wide definition clause that made Section 120B prone to misuse but also the procedural advantages that it allowed the prosecution. Firstly, it eased requirements of the preciseness of charges. Secondly, it allowed numerous accused to be tried on a multiplicity of charges. Thirdly, it provided a relaxation in the rules governing evidence. 

The Precision of the charge

The purpose of framing charges is to inform the accused what the prosecution intends to prove against her. From early on, these requirements for the sufficiency of charge for conspiracy were watered down by the Courts. It was held not necessary to state the object of the conspiracy with the same degree of certainty as is required in the charge for the offence sought to be committed [Amrita Lal Hazra (1915)].

Further, it was held that it is unnecessary to specify the date of commencement of conspiracy. [Balmokand v. Emperor, 1915 SCC OnLine Lah 43], or to specify all the persons involved in a conspiracy. And though a conspiracy may be sought to be proved through overt acts committed in pursuance of it, setting them out in the charge was just “surplusage”. [Kishanchand v. Emperor, 1925 SCC OnLine Sind JC 49] 

Numerous charges, Numerous Accused, Numerous advantages

Allegations of conspiracy make it possible to try numerous accused for disparate offences only connected by the common link of conspiracy. The fundamental rule that each offence must be a separate charge and each charge must have a separate trial is laid down by Section 233 of CrPC. Sections 235 CrPC and 239 CrPC allow exceptions to this rule. Section 235 CrPC permits charging with every such offence which is so connected together to form the same transaction. Further, Section 239(1) CrPC allows persons accused of same or different offences forming the same transaction to be tried together or separately, as the court deems fit. 

This categorization of conspiracy as a “transaction” enabled the Court to try the offence of conspiracy and all the offences committed in pursuance of it together. The breadth of this stance is made apparent by this statement in Gopal Raghunath v. Emperor (1928):

“it was the working, the fruits and the result of the alleged conspiracy and if so, the separate act done by any of the conspirators in pursuance of that conspiracy could be joined in the same trial.”

The legality of this joinder of persons and charges depended on the accusations and not on the eventual result of the trial. Even an eventual failure to establish conspiracy could not vitiate the trial. The prosecution could easily invent theories of a conspiracy for their purpose.

Just at the turn of the century in Subrahmania Iyer v. King Emperor (1901), the Privy Council had disagreed with the similar reasoning advanced in respect of abetment by conspiracy that the conspiracy and all subsequent offences constituted a series of acts forming part of the same transaction. However, this case soon came to be distinguished on the basis that it pre-dated the introduction of the substantive offence of conspiracy by Calcutta High Court in Abdul Salim (1921) engaged in trying 37 charges together. Later, the Calcutta High Court in Giridhari Lal v. Emperor, 1936 SCC OnLine Cal 142, would express unease about distinguishing Subrahmania Iyer solely on this basis. It observed that a judicial committee may soon have to be asked to give an authoritative ruling to lay down the permissible procedure in framing charges with respect to Section 120B. Still, the position of law remained that all persons accused of a single conspiracy could be tried together for disparate acts done in the pursuance of a conspiracy. 

The Section 10 Concession

The old shibboleth goes — “direct proof can scarcely be afforded of a conspiracy”. Since direct proof of an agreement may be difficult to present, a conspiracy is often sought to be established by proof of other circumstances suggesting its existence. These circumstances are burnished by the ability to use evidence of out-of-court statements made by others which, in other cases, would have been inadmissible. 

The provision permitting this is Section 10 Indian Evidence Act 1872 (IEA), which provides that anything said, done or written by any conspirator in reference (not necessarily in furtherance) to their common intention since the intention of conspiracy was first entertained is relevant against each co-conspirator. It could be used for the purpose of proving the existence of a conspiracy as well as for the purpose of showing that any person was a party to it. 

In Amrita Lal Hazra (1915), the defence flagged the concern that the prosecution might indiscriminately charge persons to let their evidence in under Section 10 IEA. The Court dismissed the concern remarking that the defence may insist upon strict adherence to the provision.

Section 10 IEA is even wider than the English counterpart. Recourse to the illustration appended to this section will make its overreaching scope clear.

“The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.”

Unless the act of B in Europe bears some reference to A in Calcutta, how can it assist in proving A’s complicity? Finding it hard to rationalize the illustration, the Lahore High Court in Balmokand took a circumspect view. It remarked that the “technical relevancy” of a fact under Section 10 IEA wouldn’t amount to much if the fact is insufficient by itself for proving the complicity of the co-accused.

All that was required to open the floodgates of evidence under Section 10 IEA was “reasonable grounds” to believe that the conspiracy existed between such persons. What if the evidence received during the trial displaces this reasonable ground of belief in the existence of Conspiracy? The Privy Council in HHB Gill (1948) confirmed that the Court must later reject the evidence then. But can you really unring the bell?

Conclusion

It will be decades before some of these conflicting positions would be resolved. Some of these issues will even crop up before the Law Commission of (Independent) India. But this should at least explain what made the charge of Section 120B so expedient for the colonial law enforcement to use. Soon, Section 120B will enter the service of the Republic of India which will be covered in the next post.

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.  

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).