Govindaswamy v. State of Kerala

It has been an interesting week. On one hand critics and moviegoers alike have been heaping praise on Pink, dubbed the first film to raise the issues of female sexual autonomy and choice in post-1991 India. On the other, the Supreme Court set aside the conviction for murder under Section 302 IPC and the attendant death sentence in Govindaswamy v. State of Kerala [made infamous by the deceased victim’s name, which this comment desists from using]. I argue here the decision is a brave one. But as much as my biases make me support it, its reasoning is not beyond reasonable doubt.

There is little to gain by recounting but the most essential facts. An adult woman was found lying grievously hurt near train tracks near Shornur, Kerala, on the night of 1st February, 2011. She was found at the insistence of two people who believed they saw her falling from the train, convinced the fellow passenger travelling with them was wrong in saying that she had willingly jumped and fled. Her condition when they found her convinced the witnesses that she had been attacked by the suspicious one-handed man lurking about the compartment. Subsequent medical treatment proved insufficient, and the victim succumbed to her injuries on 6th February. 

The Fast Track Court convicted the accused of Murder (Section 302 IPC), Rape (Section 376 IPC) and other offences. The death sentence was recommended which the High Court confirmed. As we know, the Supreme Court altered only one aspect of the decision – the conviction and sentence for Murder. What does a conviction for murder require, then, that the Supreme Court found the ingredients lacking? Section 300 IPC defines murder (punished by Section 302 IPC). Broadly, it explains that a Culpable Homicide (defined in Section 299 IPC) can amount to Murder in certain cases, where:

1. If the act causing death is accompanied by the intention of causing death, or
2. If the act causing death is caused with intention of causing such injury that the offender knows is likely to cause death of the person to whom the harm is caused, or
3. If the act is done with the intention of causing injury, and the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
4. If the offender knows the act is so imminently dangerous that it must, in all probability, cause death or such injury likely to cause death, and commits such an act without any excuse for incurring the risk.

The first three categories require an intention, while the last can be satisfied with knowledge. To prove I intended on doing something is more onerous than proving that I knew something will happen i.e. I had foresight of the consequences of my actions. This is justified. It should not be easy to label someone as a murderer and inflict upon them the harshest sanctions of life imprisonment or death. There is a slight relaxation in the third clause – I intend the injury and not the consequence of death but a conviction is possible as long as the injury is sufficient in the ordinary course of nature to cause death. The Trial Court and High Court decisions suggest this was how the case for Murder was made out. There was no direct evidence to show that the Accused caused the injuries, though, but both courts found the circumstances clinching. 

Proving a case on circumstantial evidence is tricky business. A testifying to seeing X killing Y with a knife is quite different from A testifying to seeing X with a knife 500 meters from where Y was found dead, and then convicting X for murder. Courts acknowledge this and there is a long line of decisions holding that a conviction on circumstantial evidence can only stand if the ‘chain of circumstances’ does not allow for any other conclusion other than guilt. Let’s take this case. The Supreme Court culls out three sets of injuries suffered by the victim. The first was injuries inflicted inside the train, the second those suffered from the fall on the railway tracks, and the third was the injuries associated with the sexual assault. The medical evidence was clear that a combination of the injuries suffered from the fall on the tracks with the subsequent sexual assault is what caused death. 

So the question, then, was whether the chain of circumstances only allowed for one conclusion here: that the accused intentionally inflicted injuries which were sufficient in the ordinary course to cause death. The three judges unanimously held it was not so. There was doubt whether the accused pushed the victim off the train or she fell herself. Therefore, it was also doubtful whether he intended the injuries resulting from the fall at all. Notice how the Supreme Court framed the issue: “However, so far as Injury No. 2 is concerned, unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessarily follow.” The State argued the effects of the first injury could be seen as causing the victim to fall from the train, connecting the injuries to the accused. But the Supreme Court expressed reservations about this being the only conclusion, since a passenger near the compartment door said the victim had “made good her escape” by jumping.

Two related complaints can arise from this reasoning. First, when the medical evidence conflicted the escape theory (it could not be said the victim ‘made good her escape’), why give precedence to unverified oral testimony? Second, did it really matter whether the accused pushed the victim or she fell herself? The injuries to her head from the fall, as per medical evidence, were caused because the victim was dazed and had dulled reflexes owing to earlier injuries (not doubted as being caused by the accused). That being so, could the latter injuries from the fall not be considered as being caused by the initial attack by the accused? There is nothing to negative this causal connection on the facts. Of course the law does not allow X to walk away innocent by simply desisting from delivering the blow and causing Y to harm herself instead. But can we say that X intended those injuries or that X merely knew they are foreseeable? That, is the question.

I called this a brave decision because the Court could easily have maintained the conviction and reduced the sentence if it had doubts. Such a compromise might have been seen more appropriately in some quarters. But the Court went a step further. In doing so, it displayed a commitment to procedural rules not always easy in the face of ghastly facts. Judges are only human after all, and the perceived harshness of courts in sexual assault cases does display a tendency of playing to the pulpit, with the Supreme Court no exception. Nonetheless, the issues have not been thoroughly considered. Kerala has made a statement that it plans to file a Review Petition challenging the decision. As this comment argues, there may be enough material to warrant one.

[Thanks to Sonali Malik for her inputs]

Rash, Negligent, or Reckless - Some Thoughts

(An updated version of these thoughts has appeared in 2019, here)

I've spent the last few days pondering over a few provisions in the IPC - the set of offences based on 'rash or negligent' acts (Sections 279, 304-A, 336, 337, and 338 IPC), together with those on culpable homicide and murder (Sections 299 and 300). The purpose behind these repeated readings was trying to understand, primarily, how the IPC criminalises different kinds of homicide. Is there a tidy division between acts causing death which amount to culpable homicide (viz. Sections 299 and 300) and those that do not? What is the standard of fault required for acts to be 'rash or negligent'? Is the absence of 'recklessness' as a term describing the culpable mental state, or mens rea, of the accused a material fact to further our understanding? Some thoughts follow

299-300 vs. 304-A and Line-Drawing Exercises

Section 304-A was not part of the IPC as it was enacted in 1860. But it was part of the first few amendments brought about in 1870. An offence of causing death due to negligence was Section 304 of the initial 1838 draft of the Penal Code prepared by the Law Commissioners; so it could be that the amendment was an exercise in damage limitation. Upon comparing the two, we find important differences though. I’ve reproduced the texts of the two provisions below: 

• Section 304 of the 1838 Draft read "whoever causes the death of any person by any act or any illegal omission, which act or omission was so rash or negligent as to indicate a want of due regard for human life, shall be punished with imprisonment ... which may extend to two years ..." 

• Section 304-A, as inserted in 1870 and continues till date, reads "whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment ... which may extend to two years ..."

Section 304 of the 1838 Draft placed a barometer to measure the ‘rash or negligent act’: whether it "indicate[d] a want of due regard for human life". This makes the offence similar to, say, Section 279 IPC, which also labels driving ‘rash or negligent’ if it endangers. This barometer was omitted from Section 304-A, leaving great discretion in determining how an act would be deemed sufficiently ‘rash or negligent’ to attract criminality. 

In my opinion, the change was undesirable and, as time has proven, propagated unnecessary confusion over the standard required to attach criminality for offences under Section 304-A. This change further confused the distinction that could be drawn between the offences of culpable homicide (and, by extension, murder) between death caused by rash or negligent acts. 140 years hence, it remains difficult to argue with certainty whether an act is merely negligent, or rash, or possibly demonstrating reckless knowledge – all three situations attract different punishment. Not only this, the peculiar phrasing of Section 304-A creates other problems. By framing the actus requirement as "doing any rash or negligent act not amounting to culpable homicide", Section 304-A suggests that there may be rash or negligent acts that amount to culpable homicide. This is problematic, for Section 299 in explaining culpable homicide is clarifying that mere negligence or rashness is insufficient to satisfy the requirements of the offence. But reading the two provisions together, the argument is certainly plausible, especially since there is no express prohibition contained in either Section 299 or Section 300. 

Counterpoint – Limiting Objective Liability 

Now, all this criticism could be seen in a totally different light. Section 304 of the 1838 Draft provided an objective barometer to judge the rashness or negligence of acts. Removing it, the drafters of the Code could possibly be seen as removing wholly objective liability for homicide. To put it simply – criminality for homicide cannot be based on a ‘reasonable man’ test. It must be subjective, linked to the mens rea of the actor. This argument nicely dovetails with the phrasing of Section 304-A: given that both ‘rash’ and ‘negligent’ are used, surely different meanings apply to the terms. So, the argument goes, only ‘negligence’ refers to the objective ‘reasonable man’ based liability. To claim that an act was ‘rash’, it must be proved that the actor was heedless as to the dangerous consequences, despite having considered the risks. 

Courts in India subscribed to this logic. From as early as the decision in Idu Beg v. Empress [1881 3 ILR All 776], ‘negligent’ is seen as involving inadvertence based liability, while ‘rash’ invokes the state of mind of the accused. Naturally, the existence of civil liability for such acts requires courts to extol the particularly grave nature of negligence/rashness displayed. But the underlying theme rarely wavers, right up to the recent decision of the Supreme Court in Sushil Ansal [(2014) 6 SCC 173]. Those familiar with common-law offences would find this concept of ‘rash’ displaying similarities with the notion of ‘recklessness’ as a fault requirement. Links could also be drawn to the criticism faced by so-called objective recklessness, and its ultimate upheaval in R v. G [(2003) UKHL 50]. 

Different Kinds of Recklessness

It still surprises me how conspicuous ‘recklessness’ is by its absence throughout penal statutes in India. The Motor Vehicles Act 1939 used to carry ‘reckless’ in the definition of ‘dangerous driving’. But this was omitted in the 1988 version of the Act. This naturally leads to some skepticism while reading judicial decisions which don’t stop at merely stating rash and reckless as literary synonyms, but go further and incorporate the use of ‘recklessness’ as a fault requirement. As seen from the many cases where common-law decisions are cited, Indian courts haven’t been fully perceptive to the different ways in which 'reckless' is used at the common-law in context of crime. 

A consequence-based offence (murder) is different from a conduct-based offence (endangerment), and reckless when used in context of these different kinds of offences, should mean different things. A person may be reckless as to the consequences of acts (e.g. the formulation in Idu Beg), or a person may simply act recklessly. If I fire a loaded gun while standing in front of a crowd of people, I am rightly said as being reckless as to the consequence of my act causing death. But when I drive dangerously, my act of driving rightly conditioned with the adverb of it being reckless. According to this understanding, Sections 279, 336, 337, and 338 don’t employ ‘rash’ as an adjective for the mens rea traditionally understood. It uses the term ‘rash’ to describe the act itself, and employs objective standards to help arrive at that description. Transposing this understanding to the offence of Section 304-A makes the problem apparent – the section is inherently contradictory. It criminalises conduct, but it makes that same conduct be treated differently on the basis of a resulting consequence. 

It is fascinating that although courts in India are yet to apply this logic, the Supreme Court has on multiple occasions favourably referred to the decisions of the House of Lords in Caldwell [(1982)  AC 341] and Lawrence [(1982) AC 510] in cases under Section 304-A [see e.g., Jacob Mathew v. State of Punjab, (2005) 6 SCC 1; Naresh Giri v. State of M.P., (2007), Kuldeep Singh v. State of H.P.,  (2008) 14 SCC 795]. Both decisions expanded the understanding of ‘recklessness’ to include an objective standard. This was primarily to exclude a possible defence, that an accused should not be held liable merely because the risk was not contemplated. I’ll step aside from the various criticisms levelled against the two English decisions here and also from the fact that the Supreme Court sadly ignored how both these decisions were no longer good law by the time they were relied upon. This fact is mentioned only to note how relying on them can be used to introduce a similar strand of relatively objective liability when considering the offence under Section 304-A by focusing on its basis of a conduct crime. 

Conclusion

I have tried to argue here that the basis of imposing liability under Section 304-A can be looked at a different way, which offers more coherence both doctrinally and practically. Interpreting 'rash' as not being a traditional mens rea term but an adverb conditioning behaviour helps the trial at large, and also upholds various principles grounding criminal liability - those of certainty, correspondence and fair labelling, to begin with. The Supreme Court has been erratic and unprincipled in looking abroad to derive meaning for 'rash or negligent' found in the IPC. A more thorough approach could expose the inherent faults of that logic applied by the House of Lords (as criticised by various commentators) to help inform Indian jurisprudence better. The ideas proposed here are drawn from various academic texts. But they had overlooked one nugget of history, and it was revelatory to find a deep resonance of this argument in the 1838 Draft of the IPC. Maybe, we need to go back to the start.

Special Offences: The Supreme Court on Section 7 and 13(1)(d) of the Corruption Act

[This is the fourth post in continuation of a stop-start series  discussing issues arising from the Prevention of Corruption Act, 1988. For earlier posts, see here,  here and here]

Although an instance of malum prohibitum (acts made criminal by virtue of statute but not otherwise offences), many argue that corruption jars the moral fabric of democratic society as harshly as any act that is mala in se (murder, for instance). The criminal justice system in India seems to support this view. The space and attention devoted to public discussions of corruption allegations are a testament to it. In this discussion, the pre-eminent position has often been accorded to the Supreme Court. Circumstances have made it don the mantle of a full-service corruption dousing machine. It oversees investigations, sets up special trials, and then eventually decides cases in appeal. 

Habitual readers of this Blog (if any) would be aware that it is rather skeptical of the efficacy and accuracy with which the Supreme Court dispenses its judicial functions in this era of its heightened importance. This post on the Court's interpretation of the primary offences under Sections 7 and 13(1(d) of the Prevention of Corruption Act, 1988 [PC Act] is of a similar vein. I argue that recent decisions of the Court have conflated the two already-similar offences while ignoring their text. The Court's interpretation casts unnecessary doubts over the position of law and is thus undesirable from the perspectives of both prosecution and defence.

The Offences - Section 7 and 13

The PC Act was designed as an upgrade on its 1947 namesake by combining elements from the predecessor with a scheme of bribery-related offences previously contained in the Indian Penal Code.  Identical provisions can thus be found for most of the PC Act in these historical sources. Section 7 of the PC Act is strikingly similar to the now-repealed Section 161 of the IPC. Similarly, Section 13 is modelled on Section 5 of the 1947 Act. Section 13(1)(d) nearly identical to Section 5(1)(d).

The headnote for Section 7 reads "Public servant taking gratification other than legal remuneration in respect of an official act". The headnote for Section 13 - it criminalises various types of conduct - reads "Criminal misconduct by public servant". The scope for overlap is apparent, as taking illegal gratification falls within the larger, general, field of misconduct. The text of the provisions, Sections 7 and 13(1)(d) parts (i) and (ii) that is, make the possibility of overlaps a clear probability:

Section 13(1)(d): [A public servant is said to commit the offence of criminal misconduct] if he: (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; ...

Section 7: Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever,  other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, ... shall be punishable with imprisonment ... 

Imagine the two offences as concentric circles. The Section 7 offence can be very nearly subsumed within the broader offence created by Section 13(1)(d). Nearly and not completely subsumed, for there is one crucial difference in the preliminary conduct requirements of the two offences. Section 7 criminalises accepting or obtaining illegal gratification in a particular manner. Section 13(1)(d) only speaks of obtaining. Beyond this, the particular manner in which the illegal gratification is accepted under Section 7 can easily be classified as corrupt means and fall under Section 13(1)(d)(i).

Accepting, Obtaining, and the Supreme Court

Is there a difference between accepting and obtaining in the context so described? This question has arisen before the Supreme Court in context of the PC Act as well as the old 1947 Act and IPC regime. In Ram Kishan & Anr. v. State of Delhi [AIR 1956 SC 476] the Court while reading Section 5(1)(d) of the 1947 Act held that 'obtain' "does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver." Such sophistry was shed for clearer dictum by the Court in C.K. Damodaran Nair v. Government of India [(1997) 9 SCC 477], again a decision under the old regime. Implicitly building on Ram Kishan, the Court held that acceptance need not involve an element of demand, but obtaining necessarily involved demand on part of the public servant. Thus, demand was necessary for an offence under Section 5(1)(d) - now 13(1)(d) - whereas it was not necessary for an offence under Section 161 IPC and correspondingly an offence under Section 7 of the PC Act. This reading of the text was upheld in the context of the PC Act by the Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587].

Soon after, though, things begin to get interesting. After Subair, a spate of decisions emerged which hold that demand is the sine qua non for an offence under Section 7, and none of these cited C.K. Damodaran Nair. The list includes C.M. Girish Babu v. CBI [(2009) 3 SCC 779], C.M. Sharma v. State of A.P. [(2010) 15 SCC 1], and B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55]. Importantly, in all these cases the Appellants were alleged to have committed offences under Section 7 as well as Section 13(1)(d) based on the same underlying transaction. The cases were also factually similar - a trap was sprung to catch the public servant red-handed while taking illegal gratification, with the Accused arguing that the gratification must have been demanded for it to be an offence. Reading these decisions together with the view in Ram Kishan and C.K. Damodaran Nair makes it clear that the Court is wrong to hold that demand is a sine qua non for offences under Section 7. It is certainly necessary, though, for an offence under Section 13(1)(d). [As an aside, it is interesting that the charges against the Accused were under Section 13(1)(d)(ii) in two cases and 13(1)(d)(i) in one.] 

All these cases were decided by co-ordinate benches of two judges. A bench of three judges decided P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh [(2015) 10 SCC 152], yet another trap case involving allegations under Sections 7 and 13(1)(d)(i) & (ii). The three judges cited previous decisions noted above to conclusively opine that "the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail." Very recently in April 2016, the Supreme Court in V. Sejappa v. The State by Police Inspector, Lokayukta [Crl. Appeal No. 747/2008, decided on 12.04.2016] used an opportunity to present these decisions - excluding Subiar - as an impenetrable facade for the proposition that demand is the sine qua non for an offence under Section 7. Notably, this case also concerned allegations under both Sections 7 and 13(1)(d).

Cutting through the Rhetoric

I've been at pains to highlight the factual likeness of all the decisions mentioned above. A failure to adequately do so by the Supreme Court in these decisions is what today risks incorrectly conflating both offences. The Supreme Court, most notably in the three-judge bench decision of Satyanarayana Murthy, egregiously speaks in highly-general terms of demand being a necessary element for offences under Section 7 despite this being clearly unsupported by the text of that provision. In fact, the basic difference between the scope of offences under Section 7 and Section 13(1)(d) is the former possibly covers situations where there is no demand. 

Restricting the effect of these cases by considering their facts allows us to limit the extent of damage. Although facts are pithily discussed in the reported decisions, it is clear that the prosecution hinged its case every time on the existence of a demand and acceptance of a bribe for securing a conviction under both offences. By levelling both sets of allegations, the prosecution necessarily only argues that the Accused obtains the gratification - as Section 13(1)(d) excludes mere acceptance. Once the prosecution argues that the Accused obtains a bribe for purposes of Section 13(1)(d) it cannot also argue, on the same set of facts, that the Accused merely accepted the bribe to secure a conviction under Section 7. In this very limited context of trap cases where allegations are levelled under both Sections 7 and 13(1)(d) one can support the logic of the Supreme Court, though nothing can support the unnecessarily grandiose rhetoric.   

Conclusion

Why then, one might ask, are prosecutors insistent on levelling allegations under both sets of offences  in corruption cases despite the onerous requirements of Section 13(1)(d) - establishing both demand and acceptance? Or well, if you persist in levelling allegations for Section 13(1)(d) why must Section 7 also be added? There are reasons, of course. Prosecutors insist on Section 13(1)(d) because it carries a higher sentence - ten years, as against the seven years of Section 7. They continue on adding Section 7, however, because of evidentiary benefits that it entails at the trial. Section 20 of the PC Act contains a reverse-onus clause that applies in trials for Section 7 offences but not 13(1)(d). 

This framework is not likely to be amended anytime soon. Thus, the jurisprudence on corruption laws in India is bound to see several more cases involving laying of a trap to catch offenders red-handed, with prosecutors then levelling charges under both Sections 7 and 13(1)(d). But there will also be several more cases not involving these scenarios, with only allegations of an offence under Section 7. It is imperative that the Court appreciate the distinctions, rendered ever-so thin by its rhetoric. If not, Section 7 would then collapse completely within Section 13(1)(d) and be rendered redundant. 

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.