Guest Post: The History of Conspiracy: How Thinking about a Crime, Became a Crime

(I am delighted to host a guest post from Nishant Gokhale. Nishant studied law at NUJS and Harvard Law School, practised law in Delhi in between, has been doing field-work across India, and is now enrolled to pursue his Ph.D. at the University of Cambridge. Views expressed are personal)

Thinking of committing a crime is vastly different from committing it. Expectedly, the law treats these two situations of ‘offending by thinking’ and ‘offending by doing’ differently. Any failure to do so, brings us perilously close to Orwellian “thought crimes”. 

But, criminal conspiracy is a crime under section 120-A of the Indian Penal Code, 1860 (“IPC”). It was however, not a crime till well over half a century after 1860. Conspiracy was punishable as a form of abetment and required doing a criminal act pursuant to conspiracy. In 1870, a very narrow exception was introduced into the IPC making it a crime to conspire about “waging war against the government” by introducing section 121-A. This limited exception to criminal law principles requiring a criminal act to follow criminal thought survives even today. Criminal conspiracy as a distinct offence however, did not exist till 1913. The trigger for this change was an incident a few days shy of Christmas, 1912. 

The year 1912 was a turbulent time for the British in India. Just a year before, a decision was taken to shift the capital of British India’s government from Calcutta to Delhi. This decision was resented by Calcutta merchants who saw the shift as adversely affecting their fortunes. Some British officials, including Lord Curzon who oversaw the painful partition of Bengal, feared this would make the British Indian seat of government even more remote from Rangoon and Madras. What prompted the decision to shift capitals, apart from the Calcutta weather and demands for self-rule, was a spate of murderous assaults on prominent British officials in the preceding years. The move to Delhi however, would not provide any measure of respite as the then Viceroy Lord Hardinge, would soon discover--- nearly at the cost of his life. 

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 British Government’s response came in the form of the Criminal Law (Amendment) Act, 1913. The statement of objects of the act noted that “Experience has shown that dangerous conspiracies are entered into in India, which have for their object aims other than the commission of the offences under section 121-A and that the existing law is inadequate to deal with modern conditions. …The Bill makes criminal conspiracy a substantive offence...”. 

Under this new law which introduced section 120-A punishable by section 120-B into the IPC, it was a crime when two or more persons agreed to (i) commit an illegal act or (ii) commit a legal act by illegal means. Of these, only (ii) required any overt act to be done. A bare agreement to commit an illegal act without any further steps being taken became punishable. 

Criminal law theorists wrote about the 1913 Amendment with an acid pen. Generally, crimes are believed to have four stages. The first involves forming criminal intent. The second involves preparation to commit a crime. The third involves actually attempting and the fourth, actual completion of the crime. Crimes are generally punishable when they reach the stage of attempt. Only two are punishable at the stage of preparation due to the danger that stage itself poses. These are preparation to commit dacoity, and preparation to commit depredations against Asiatic allies. The only crime which was punishable at the stage of intention itself, until 1913, was conspiring to waging war against the Government. 

Syed Shamsul Huda, in his celebrated Tagore Law Lectures found the changes “rather drastic” and felt they sacrificed the 1860 penal code’s consistency wherein conspiracy was only made punishable as abetment only if followed by an overt act. Huda remarked that “…law can only deal with matters and not merely with mind save as manifested by action.” He concluded that “There probably would have been no danger and no inconvenience if the law in India were left exactly where it was before the Conspiracy Act (1913 Amendment) was passed.” This criticism is especially courageous, for at the time, it may have itself amounted to an offence of causing “disloyalty” against the British government, if broadly interpreted, in the IPC or other laws meant to muzzle criticism of the government. In 2005, the Indian Law Institute’s Essays on the IPC noted that the 1913 Amendment was “hurriedly enacted and inconsistent and unintelligible principles of law were put into action. It may be suggested that the sweeping provision of S.120-A, IPC needs re-examination and irrationality which has imperceptible crept into the Indian law may require elimination.” 

While conspiracy was widely used to supress the nationalist movement by the British, conspiracy has survived into Indian independence and the adoption of the constitution relatively unscathed. The Supreme Court, in many cases, including the Rajiv Gandhi assassination case, embraced it. It recognized that conspiracies are often secretly hatched and no direct proof may be available. Conspiracies could themselves shift shape mid-way as both objectives and members could change. It also noted that like umbrella-spokes different conspirators need to know others and only have one central point of contact. The court however cautions that conspiracy “is exception to the general law where intent alone does not constitute crime”. It also notes that the accused, tried as co-conspirators, may be prejudiced since all and sundry could find themselves in the dragnet without regard to their relationship with the main offender. 

The seemingly boundless scope of criminal conspiracy is something that is liable to be misused since all that is required to be proved is a bare agreement to commit illegal acts. Since direct evidence in many complex crime is rarely obtained, weaker forms of evidence such as approver testimony and circumstantial evidence routinely take its place to prove this agreement. This de facto lowering of evidentiary standards, has resulted in conspiracy charges proliferating and becoming, as described by American Judge Learned Hand, “the darling of the modern prosecutor’s nursery”. While no statistics on conspiracy in India are published by the National Crime Records Bureau (“NCRB”), experience suggests that it remains a popular charge. 

While the media may revel in disclosing lurid details of “plots” ranging from the genuinely frightening to the absolutely fantastic, it is important to remember that the law related to criminal conspiracy needs urgent re-examination. Despite its current popularity to crush political dissent, its history reveals itself to be little more than a reactionary and colonial-era measure to supress the nationalist movement. When freedoms of speech and expression, assembly and association are constitutionally guaranteed, the offence seems overly broad. 

The line between culpability for thought and culpability for action is an easy one to unwittingly cross. We must, however, repeatedly remind ourselves of this line for this may be the demarcation between a tolerant democracy and a totalitarian state. 

Links to Sources Reporting Some Perspectives of the Delhi Conspiracy Case: 

https://timesmachine.nytimes.com/timesmachine/1916/05/20/104675740.pdf

https://blogs.wsj.com/indiarealtime/2011/11/11/why-delhi-the-move-from-calcutta/

https://www.thehindu.com/mp/2004/08/02/stories/2004080200420200.htm

Conspiracy and Abetment - Legislative Oversight or Crucial Distinctions?

The Law Commission of India has twice recommended (in its 42nd and 156th Reports) that Section 107 of the IPC be amended to remove the part of abetment by conspiracy. This recommendation argues that in light of Sections 120-A and 120-B having been inserted into the IPC, there is no need for the abetment by conspiracy clause. But these recommendations have not been implemented. How should we be treating these recommendations? Maxwell on Interpretation of Statutes suggests that recommendations not being accepted indicates the Legislature disagrees with the view promoted by the recommendation. So in this case, that would lead us to argue that the Legislature considers the conspiracy clause in Section 107 useful and not redundant. The inertia that plagues India's legislature offers an easy counterpoint; of this being just another instance of legislative oversight with the recommendations having been buried beneath all the protests happening in Parliament at that time. Does retention of abetment by conspiracy under Section 107 IPC together with the independent conspiracy offence under Sections 120-A and 120-B IPC reflect legislative intent or is it mere inertia? This post grapples with this question. Given no parliamentary debates are available online on this aspect, all I can offer is my take.

Demarcating Spheres of Influence
For abetment by conspiracy, there must be a conspiracy, and an act/illegal omission must be committed in pursuance of it. For the offence defined under Section 120-A, there is no need for any act/illegal omission to be committed so long as the conspiracy involves an agreement to commit an offence. Barring this distinction, it is clear that Section 107 and Section 120-A are covering more or less the same field. Interestingly, Section 120-B punishes conspiracy by relying upon the abetment provisions [Section 120-B(1) IPC: "whoever is party to a criminal conspiracy ... shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."].

Why did the need arise to insert the broader offence? Some answers lie in the position of the IPC before the Criminal Law (Amendment) Act, 1913 inserted Sections 120-A and 120-B. Prior to this, conspiracy was criminalised generally under Section 107 IPC, and also through specific provisions, such as Section 121-A IPC. It was only these specific conspiracy offences that did away with the act/illegal omission requirement. The early 20th century was a time heady with revolutionary movements, especially in Calcutta following the Partition of Bengal. Reading reported decisions on conspiracy from High Courts around this time, one finds the accused persons were nearly always alleged revolutionaries. Section 120-A allowed the police to cast a wider net than before and would have been very desirable from a colonial law-enforcement perspective.

With this context, the demarcation of what Section 107 and Section 120-A cover should be clear. Both criminalise agreements (read conspiracies) to do a thing where some act/illegal omission is committed in pursuance thereof. But Section 120-A also creates an exception for this act/illegal omission requirement, where the conspiracy involves an agreement to commit an offence.

Judicial Appreciation of the Problem
The existence of two separate frameworks criminalising conspiracies was not lost on the courts. Different High Courts came to the conclusion that having Section 107 IPC together with Sections 120-A and 120-B IPC curtailed the application of the latter. Section 120-A was found to be applicable only where the allegations involved a conspiracy without any commission of substantive offences. As soon as any act/illegal omission occurred towards commission of the offence, the case became one of abetment and excluded Section 120-A IPC. This view was held by the Madras High Court in Re Mallimoggala Venkatramiah & Ors. [AIR 1938 Mad 130], by the Patna High Court in Jugeshwar Singh v. Emperor [AIR 1936 Pat 346], and also in S. Satyanarayana v. Emperor [AIR 1944 Pat 67].

This, in my opinion, was a smart move that prevented Section 107 from being rendered completely otiose. What's more, it also led to understanding the 'offence' of conspiracy under Section 120-A in tune with its purportedly inchoate nature. Even in the Law Commission Reports lamenting Section 107 IPC, we find conspiracy is characterised as an inchoate offence. By restricting charges under Section 120-B to cases where there was nothing but a conspiracy, the High Courts merely reinforced this logic. After all, if a person committed an offence pursuant to a conspiracy, it made little sense to charge him for the original inchoate crime too. It made more sense to hold persons liable as abettors, rather than conspirators.

Conclusion - An Opportunity Lost?
India's unintentionally unique statutory framework allows for a lot of clarity in employing conspiracy. There is significant literature in the USA criticising the broad nature of the conspiracy offence, and how it remains separately chargeable despite the main offence having been committed in execution of the conspiracy. Here, the combination of Section 107 IPC and Section 120-A IPC allowed Indian courts to restrict conspiracy to a purely inchoate offence. The prosecutors didn't lose much either, as they could use the abetment route to rope in the various persons jointly liable.

That there is perhaps no decision today that questions the usage of Section 120-B where offences committed pursuant to a conspiracy are complete shows how the logic that I advertise has been significantly brushed aside. Rather than having a line of cases where the boundaries of Section 120-B were clearly drawn out, we find that today the opinion of the Law Commission seems to have become received wisdom. An opportunity lost, then, for the IPC provided a unique solution to some common problems faced by various jurisdictions while prosecuting conspiracies.

On Abetment and the IPC

The fascination of this Blog with inchoate liability continues, and this post dips into the concept of abetment. One might say this fascination is being reflected across the board, with a high-profile investigation recently grabbing headlines for making use of abetment. This, admittedly though, is a diversion from the current project of considering criminal conspiracy on this blog. But the diversion is purposeful, as I hope will become clear during the course of this post.

Statutory Framework
I refrain from providing regular dictionary definitions of abetment, since Section 107 IPC does the defining for our purposes. According to this provision one can 'abet' a thing in one of three ways: (i) by instigating any person to do that thing, (ii) by engaging with another in a conspiracy for the doing of that thing with some act/illegal omission occurring pursuant to this conspiracy towards doing that thing, or (iii) intentionally aiding by act/illegal omission, the doing of that thing. Section 108 IPC tells us that an abettor is liable regardless of whether the principal acts on the abetment. Liability is thus one step removed from the ultimate commission of an offence, making clear the 'inchoate' nature of abetment. So, to use the statutory example: if A instigates B to murder C, and B doesn't do so, A is still liable for abetment. The commission of offences makes a difference for punishment - this is explained by Sections 109-117 of the IPC. Most prosaically, Sections 109, 115 and 116 IPC provide that different punishments are inflicted where a principal commits the offence being abetted and where no offence is committed. This provides a neat method to proceed with this post; we will first jump to rules creating liability and then turn to rules defining the extent of that liability.

Defining Abetment and Abettors
Section 108 IPC tells us that an abettor faces inchoate liability. We've discussed inchoate liability in context of conspiracy, so lets compare. Section 120-A defines conspiracy as agreeing to commit 'illegal acts', and the explanation renders conspiracies to commit offences punishable without any subsequent act resulting. Abetment by conspiracy as per Section 107 IPC always requires the occurrence of an act/illegal omission pursuant to the conspiracy. But, notice a more basic difference. A conspiracy to commit an offence means both parties have agreed at the outset that they will be committing offences. This planned cooperation is only one means of abetment, and the other forms do not require abetment of offences, but abetment of acts. So an abettor need not know the 'thing' being abetted is an offence. Section 108 supports this, and defines an Abettor as one who abets an offence, or acts that would be offences.

So, an abettor's mental element need not be that well-defined. But, given how liability can arise even if there is no act consequent to any abetment, it makes sense to demand nothing short of intention on part of an abettor to hold her liable. Further, to ensure the net of criminal law is not cast too wide, it becomes necessary to demand some acts/illegal omissions towards the doing of something for establishing abetment. Section 107 supports this conventional theory. Instigation cannot exist without intention, and always involves some express physical act. Using several synonyms, the Supreme Court has explained that 'instigation' means to "goad, urge forward, provoke, incite, or encourage" the doing of something [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 (3 Judges), at paragraph 20]. The conspiracy clause in Section 107 specifically requires that an act/illegal omission accompany a conspiracy, and this act/illegal omission must be towards the commission of the thing abetted. A pure conspiracy is not enough, contrary to the crime of Section 120-A IPC [Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 Supp. (2) SCR 297 (3 Judges), pages 318-320]. Finally, there is aiding by act/illegal omission clause which is prefaced by a requirement of intention, meaning that one must intentionally aid, not merely aid, for acts/illegal omissions to be considered abetment [Shri Ram v. State of Uttar Pradesh, (1975) 3 SCC 495].

Another interesting facet of Section 107 is its recognition that abetment can occur at any stage of the doing of some thing. I argue that there is a neat three-step division reflected in the three categories of Section 107. Instigation usually is the outset and represents a situation where A provokes/goads B to do something. Conspiracy indicates a plan between A and B to do something rather than one person provoking another towards it. Aiding indicates a situation where B is already doing something and A comes in later. Section 109 IPC seems to support me here with its explanation: "an act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment." In this account of abetment the abettor's liability itself is linked to the principal. I argue that this is important, and keeps the scope of abetment reigned in. Pedantically, then, I argue that A cannot instigate someone who is already doing that thing, when Section 107 requires the instigation must be to do that thing. Basically, if A walks in on B repeatedly stabbing C, if A now encourages B to keep on stabbing it cannot be read as being an instigation to do something [stabbing here], since it is already happening. Abetment by conspiracy is also limited to situations where the thing is yet to be done - the conspiracy must be "for the doing of that thing". Once the 'thing' is already in motion, all that is left is intentionally aiding its 'doing', either by acts or illegal omissions.

My argument on the three-step division lacks support in case law, due to my poor research (another way to say that comments are welcome!). On to more surer footing then, where we consider how the IPC accounts for the possibility of dissonance between the acts of abettor and principal.

Liability and Accounting for Variance
If we see abetment as requiring complete harmony between the acts/intentions of the abettor and principal, then we come dangerously close to conflating abetment with conspiracy. Abetment doesn't always involve an element of planning, and the law must account for imperfect associations between abettor and principal that are being created. How does it account for this possible variance? At the first step of different intentions, the law privileges the acts/intentions of the abettor. Section 110 IPC provides that where the principal carries out an act with an intention different from the abettor, the law will operate on a fiction that the principal acted with the intention held by the abettor in order to punish the abettor.

At the second step of different physical consequences resulting from abetment, the law inserts a requirement of knowledge as to probable consequences to go along with the initial requirement of intention. Recall that an offence consists of conduct, consequence and circumstance requirements acting together. For instance, certain kinds of conduct - say, sexual intercourse - becomes an offence (rape) when it is committed in certain circumstances - in the absence of consent. Similarly, certain conduct is only an offence where it results in certain consequences - murder comes in, when acts result in causing death. What mental states are associated with conduct, consequences and circumstances? The law moves on a presumption that only voluntary conduct can be considered to hold someone liable (thus creating various exceptions for insanity and intoxication). Consequences are ordinarily intended: A intends to cause death by shooting C with a gun. Circumstances are known: A proceeds to have sexual intercourse with C despite knowing there is no consent or is reckless as to existence of consent. In abetment, there is a gap between the conduct and consequence elements. The acts of firing a gun or reckless/forcible sexual intercourse are not committed by A but by another person, B. The possibility of B realising the desired consequence becomes yet another circumstance, that can only be probably known.

Thus, under Section 111 IPC an abettor is liable for even those acts that are different from the ones abetted, so long as that different act was a probable consequence of the abetment and had a relation to it. Similarly, under Section 113 IPC, where acts are abetted with the intention of causing a particular effect but result in causing a different effect, the abettor can be liable even for the different effect if she knew that the act abetted was likely to cause that effect. Interestingly, all the illustrations to Sections 111 and 113 IPC are restricted to abetment by instigation, although the proviso to Section 111 specifically lists all three forms of abetment. Going back to the argument in the previous section, can it be said that a dissonance is possible where I am aiding the doing of something by acts/illegal omissions, as the thing is already in the process of being done?

An example to round things up. If A encourages her friend B (a 15 year old)  to take her car out for a spin, A abets B 'to do a thing', i.e. drive a vehicle. This is an offence, and so A can be held liable as an abettor. If A tells B that she will arrange for a fake license to help her drive whenever needed, A now abets by intentional aiding 'the doing of that thing', i.e. continuing driving while she is not authorised. A knows that B has a habit of driving fast - B got challaned on previous occasions - but lets her continue. Tomorrow, then, if B gets into an accident while driving rashly which leads to the death of a pedestrian C, can A be held liable as an abettor? The answer would turn on whether A knew that the act abetted (B driving, in a manner known to be rash), was likely to cause that effect (causing an accident while driving). Certainly, this is not implausible by any means.

Conclusions
This post hopefully cleared some ground on abetment, and created new doubts as well. What is more important for the larger scheme of things on this blog currently is the relationship between abetment and conspiracy, which we touched on. The next post will get back to discussing this relationship more thoroughly.

The IPC and Conspiracy II: A Problem of Excess

Criminal conspiracy was something I briefly introduced on this Blog recently. There were several threads to develop, and in this rather philosophically-titled post I want to bring out an old skeleton/argument from the conspiracy closet: the offence of conspiracy must be restricted to situations where the conspiracy remains unfulfilled. When the conspiracy results in realisation of the intended/known consequences i.e. an offence, there remains no reason to separately punish the conspiracy to commit that crime. 

The Prosecutor's Darling

Conspiracy is an inchoate offence, which means that it covers incomplete acts and makes them criminal due to particular harms they present. The particular harm has been elaborated upon by courts, which have noted that there is something very dangerous about people sitting together and thinking of plans to go against the state and its laws, meriting this behaviour be deterred through penalisation [Pinkerton v United States, 328 U.S. 640 (1946)]. Now, if we agree that a conspiracy offence intends to cover the inchoate liability of people agreeing to commit offences, why do prosecutors insist upon levying conspiracy charges in cases where persons do manage to commit offences pursuant to the conspiracy? 

I argue that there are two main reasons for this, at least. The first, is the procedural benefit conferred by a conspiracy charge: a golden-lasso like quality that allows the prosecutor to rope in disparate offences and offenders in a single trial where normally they would have to be tried separately. Section 218(1) of the Criminal Procedure Code 1973 creates the rule that there must be separate charges for every distinct offence, and each charge shall be tried separately. Section 220(1) creates the exception, providing that more offences than one may be tried together if they form part of the same transaction. A conspiracy is perhaps the easiest way to create one transaction out of a variety of offences committed across space and time. While there is not much writing on this in India, there has been some commentary in England over time on this rolled-up charge of conspiracy [See references in David Ormerod 'Making Sense of Mens Rea in Statutory Conspiracies' 59(1) Current Legal Problems 185 (2006)].

The second benefit is the evidentiary relaxation provided in cases of conspiracy. In a case where Z is being tried for having committed a robbery, a statement by X that she heard Y tell her that Z was going to commit a robbery, has no value. Whatever X says is hearsay, a short term for basically saying that there is a sensory gap between X and the actual event that X is talking about - Z committing a robbery. Now flip the coin and take a case where X, Y and Z are stated to be conspirators, who committed a robbery. Suddenly, the same statement has great value. It is specifically made relevant under Section 10 of the Indian Evidence Act 1872. Having a conspiracy charge potentially allows the prosecutor to rely upon previously inadmissible evidence, naturally making it appealing. 

The Problem of Excess

The prosecutor's darling is getting overworked, sadly. Conspiracy charges are being employed ever more routinely without there being a great deal of thought, leading to unsustainable cases and easy defences. This led to courts recognising that there can be multiple conspiracies as opposed to one broad conspiracy, which would then require separate trials nonetheless. The net, thus, cannot be strung too far and wide either it would seem. Today though, there are new problems emerging particularly in the context of statutory offences, which do not require any mental element for commission of offences. Traditionally, one may recall, a crime must have an act/omission, and an accompanying mental element that makes this act/omission criminal. If I took your pen knowing its yours, its very different from me taking it absentmindedly thinking that it is mine. But as know, several offences today do not require any mental element to make conduct criminal. The circumstances and consequences hold the key. Today, for instance, Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988, simply proscribes the obtaining for any person any valuable thing or pecuniary advantage without any public interest. The Delhi High Court interpreted this clause as not requiring a mens rea requirement. There is no need for you to intentionally or knowingly have obtained that valuable thing or advantage without public interest. Your conduct is criminal as long as the circumstance - of it being without any public interest - is established.

Now, can there be a conspiracy to commit such offences which the prosecution alleges occurred without any intention or knowledge on part of the offender, but only because the circumstances were found to exist? For example, consider the case against Dr. Manmohan Singh in the coal-allocation scam. The prosecution may allege that he intentionally acted/omitted to act in a manner to obtain for other persons a pecuniary advantage without any public interest. But it is also an offence, if it can be shown that other persons benefited from the acts/omissions of Dr. Singh and this was without public interest, regardless of whether or not these acts/omissions were known/intended. Can there be a conspiracy charge in the latter? A conspiracy is premised on parties agreeing on a course of conduct with the intention or knowledge that this conduct upon completion would or would result in the commission of an offence. It would, therefore, be rather absurd to charge a person for a conspiracy where the entire case is based on the non-existence of a mental element to commit crime. The English House of Lords in R v Saik [2006 UKHL 18] and the U.K. Law Commission have considered this problem of conspiring to commit statutory offences in some detail. We remain without any comparative assessment of the problem in India.

Alternatives

These problems remain a symptom of a deeper malaise: an insistence to employ conspiracy charges where they are not meant to be. As mentioned at the outset, conspiracy is an inchoate crime. The rationale behind criminalising conspiracies is particularly attuned to its inchoate nature. If offences are eventually committed, the fact of persons having conspired to commit them remains more suited to consideration as yet another fact to appreciate the gravity of that conduct and punish appropriately, rather than insist on treating the initial agreement separately as conduct amounting to an offence.

Are there alternatives? Well, yes. It is not necessary for a prosecutor to employ conspiracy charges to round up various offences and offenders. If the allegation is that an offence is committed pursuant to the same, then there is the route of abetment by conspiracy, under Section 107 IPC. It recognises the notion that conspiracy is only facilitating the commission of other offences. If there is involvement in the commission of the offences itself - say X, Y and Z were robbing the bank together - then there is the route of group liability under Section 34 of the IPC. The procedural advantages would be retained to cover various associate offences (suppose, forging keycards to gain entry to the bank) committed in furtherance of the main offence. The fact remains though, that today employing conspiracy charges is deeply embedded in the fabric of prosecutions that this question is considered mostly academic to only be shoved under the carpet. Until these problems are faced in some high-profile cases or repeatedly seen in a particular set of offences (as happened in England for conspiracy in money laundering offences), we are unlikely to receive the thorough re-appraisal of conspiracy law that is needed today.

The IPC and Conspiracy

Inchoate offences are perhaps the most theoretically engaging area of the criminal law. On this blog, we ran a couple of posts discussing the issues surrounding criminal attempts (which you can access here and here). Attempts, as we discussed, are however not in vogue as tools for the prosecution in India. What the prosecution does resort to, and nearly always in corruption cases, is the charge of criminal conspiracy under Section 120-B IPC. The one-size-fits-all strategy that is the zeitgeist makes conspiracy one of the most important offences to understand today. Which makes it a fit thing to do on this blog. In this post, I'll just throw out issues arising from a reading of the IPC.

Conspiracy and Inchoate Liability

Think of an offence as a transaction, which begins with some conduct on part of an individual [accused] and ends with logical consequence that the interests of another person are affected [victim]. Sometimes, there are certain circumstances surrounding this transaction that lend it a criminal colour. Now, the legislature may either deem an offence to occur upon the occurrence of conduct, or the consequence. When the line is drawn, especially at the consequence stage, it sometimes appears illogical and arbitrary to allow individuals to proceed that far before criminal liability kicks in. Why wait for the killer to shoot the victim when you knew she had a gun and was aiming at her? 

This idea, of drawing the line of criminality earlier by deriving it from the parent offence, is inchoate liability. By its very definition, it is relative to another offence. Two things here. First, its clear that inchoate liability can affect the accused himself, or persons surrounding the accused. After all, the law should be equipped to stop someone else from goading the accused to kill a person and handing her a loaded gun. Such abetment is necessarily criminalised. Second, inchoate liability qua the accused ends when the parent offence is committed. I am not liable for attempt when my attempt succeeds in the offence itself, nor am I abetting someone when I go beyond the shouting and fire the gun myself. 

What is conspiracy, then, and where does it fit? Section 120-A of the IPC answers the first question and defines a criminal conspiracy as "when two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy". This is limited by a proviso, that "no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties in pursuance thereof." It is also explained, that "it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." Given this definition, conspiracy appears to be a hybrid form, combining the inchoate liability attracted by the accused and an abettor to make them one enterprise. This is obviously supported by the fact, that inchoate liability through conspiracy already existed as a form of abetment under Section 107 of the IPC. 

120-B and More Questions Than Answers 

Let me acknowledge the big elephant in the corner by saying that yes, by punishing mere agreements to commit offences the IPC comes as close to a generic thought-crime as you get outside of 1984. What's more, the current offence is amazingly overbroad and criminalises potential agreements to commit civil wrongs following erstwhile British law. I think some constitutional challenges could yet be made to the offence under Section 120-B IPC, but that is beyond this post. From a mere reading of the IPC, several interpretive questions arise that are very interesting. Foremost among them, the paradox posed by criminal conspiracy at large - that it is an inchoate offence that can be punished even after the primary offence is complete. Even after the gang executes its masterplan to rob a bank concocted in shady corners and dark alleys [this is nearly para-phrasing the Supreme Court, mind you], not only would liability for the resulting offences follow, but also liability for conspiring to commit the primary offence of robbery and other offences. The hybrid nature of conspiracy goes beyond the persons attracted category, it seems.

Second, and peculiar to India, is the co-existence of the independent conspiracy offence under Section 120-B IPC with it being a form of abetment as explained under Section 107 IPC. The difference is simple: conspiring to commit offences is punishable under Section 120-B without any act/illegal omission being performed in pursuance of the conspiracy. Conspiracy to be punished as abetment always requires some acts/illegal omissions to follow. Neat? Not quite. To prove a criminal conspiracy, the prosecution necessarily requires some acts/illegal omissions to show for it. When you have those acts/omissions, it would make the conspiracy a form of abetment as well. So how do we logically choose? The choice in practice is clear with prosecutions rarely arising for conspiracy under abetment today across the country. This obviously has got to do with (a) the increased punishment possible for conspiracy, and (b) evidentiary relaxations under Section 10 of the Evidence Act that the prosecution gets when alleging a conspiracy exists. But theoretically, no clear answer can be found.

The idea of agreeing to commit an offence is the fulcrum of a conspiracy which can be punished. But what does this agreement entail, and what is special about it? Should the conspirators have the same intention with respect to each other, and the offence in question? If I agree with you to commit an offence, but don't actually want to commit any offence, would it be an agreement? Does everyone need to know what the other is doing, or would the exceptions akin to those under Explanation 5 to Section 108 apply? Would an agreement to commit an offence with a minor, or an insane or intoxicated person, amount to a conspiracy for the purposes of this section? The explanation to Section 120-A makes clear that the 'illegal act' in question need not be 'ultimate object' of the agreement. So for a transaction to be punished as a criminal conspiracy, should there be agreement as to the exact manner of carrying out that transaction - every illegal act involved requires prior agreement? Or is it allowing for a criminal conspiracy charge to follow whenever two persons agree to commit an offence in the course of a larger criminal transaction? 

And what about the way new offences don't require intention or knowledge requirements as are prevalent across statutes today. Can I conspire with others to commit such offences of strict liability? Or can I conspire to attempt to commit offences? The former is especially important, in light of the manner in which certain cases are proceeding on Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988. Likewise, if an offence requires a specific mental state as to circumstances for its commission (recklessness as to consent in rape, for instance), would it be sufficient for conspirators to be merely reckless as to those circumstances, or should they have intended the circumstances exist? The questions are nearly limitless, but rarely do they get addressed systematically in the standard textbooks available in the market. I hope to have sufficiently roused your curiosity for this area of criminal conspiracy with this taster, and in the next post we'll consider particular issues in some detail.

[This post was corrected on 24.02.2016 to remove certain typographical errors. All thanks to Ms. Juhi Gupta and Mr. Kartikeya Panwar]