Crackdown on Dissent: A Conspiratorial Approach

~Sarthak Wadhwa

(This article is the first part of a two-part series)


In a recent two-part post on this blog, Shraddha and Yana present a comprehensive account of how colonial era laws are weaponized to ‘crackdown on dissent’ – against the ideals of democracy and criminal justice as found in the Indian Constitution and other salient international instruments such as the  International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. In these posts, they also touch upon the detention of activists Safoora Zargar and Disha Ravi for sundry charges including those of conspiracy u/s 120B of the IPC. This blog post focuses on the substantive charge of criminal conspiracy as yet another governmental measure to stifle dissent.

Whereas both women have since been given bail (under markedly different circumstances) by the Delhi High Court (2020 SCC OnLine Del 664) and the Patiala Sessions Court respectively – the allied charge of ‘criminal conspiracy’ per se has not received much analytical attention, especially compared to the sensational debates on sedition (u/s 124A of the IPC) and terrorism (as addressed by the Unlawful Activities (Prevention) Act, 1967). A staple in charge-sheets filed against activists and protesters (here, here), criminal conspiracy has a significant albeit latent impact on the criminalization of dissent in India. 

In this piece I, first, review the ingredients of ‘criminal conspiracy’ u/s 120A of the IPC and evaluate the burden of proof for a corresponding charge u/s 120B to be established; and, second, critique the law and its potential to be abused against dissidents. In a later piece I build upon this analysis to – juxtapose the charge against the import of Section 34 of the IPC (vide its ingredients, burdens, and impact) as an alternative to criminal conspiracy; and, demonstrate why criminal conspiracy should be struck down from the IPC altogether.

Presently, since the debate around the theoretical classification of the charge, and the historical background of the offence – have been deftly summarized on this blog before, I will focus my analysis on the substantive charge itself, and its appearance in contemporary Indian political discourse.

  1. Criminalizing Intent: Creating a Substantive Crime out of an Inchoate Offence

Added to the Indian Penal Code by the Criminal Law (Amendment) Act of 1913, following the judgment of the House of Lords in Mulcahy v R (1868) – the substantive charge of criminal conspiracy is founded on two principles: first, that the coming together of a plot in terms of obtainment of mutual promises, or actus contra actum, was an act in itself; and, second, that such agreement itself was different from, and more than, mere intention to commit a crime. Resultantly, Section 120A reads:

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 section is vaguely reminiscent of abetment u/s 107 Secondly of the IPC. It reads,

A person abets the doing of a thing, who— […] engages with one or more other person or persons 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

Notably, the former is a substantive criminal charge, while the latter is an inchoate offence. Yet, the difference evident between the two sections is that even ‘abetment’ necessitates the commission of an act/omission, whereas mere affiliation/agreement with a scheme/combination is enough to invite a charge of ‘criminal conspiracy’.

In the above paradigm,  ‘agreement’ is the sine qua non of the charge – the object per se can be lawful or unlawful (as evident from sub-sections 1 and 2 of Section 120A); knowledge of how such object may be attained, or the specific mens rea to commit the alleged illegal act in furtherance thereof – are immaterial. In State of Tamil Nadu v Nalini (Rajiv Gandhi Assassination Case), the Supreme Court ruminates on how intent and knowledge can be constructively imputed to the actions of the accused. Moreover, per the Nalini case – involvement in any stage of a conspiracy constitutes participation therein: conspiracy is a continuing offence and the conspirators joining and leaving the conspiracy does not terminate it. Such participation can be passive and may attract sanction even without a definite actus.

Essentially, the juris et de jure presumption of culpability (para 24 & 31) allows the court to rely on circumstantial evidence to find conspiracy on the part of the principal accused; the court may then extend this culpability to other alleged co-conspirators: their tangential affiliation with the principal accused can be construed to be agreement, without any specific knowledge or criminal intent as regards the alleged ‘conspiracy’. Evidently, there is a presumption of criminal intent on the part of the alleged co-conspirators, notwithstanding any conclusive proof of an ‘agreement’ between them.

Juxtaposed against the rhetoric narrative of a ‘deep rooted and sinister conspiracy’ (as seen in the Delhi riots charge-sheet) which seems to emerge in response to any form of protest or activism expressing disapprobation against the Government (here, here) – the charge of criminal conspiracy looks especially formidable.

  1. The Speculative (Ab)use of Section 120B

Two focal cases demonstrate the real harms of a charge of criminal conspiracy qua how judicial speculation and executive cynicism about “conspiracies” result in the denial of bail: first, that of Safoora Zargar; and, second, that of Ishrat Jahan.

In Safoora’s case, three material arguments were brought before the consideration of the Patiala House Court of Delhi: first, that she had not engaged in any violence during the Delhi Riots; second, that of the two inflammatory speeches alleged to have been delivered by her, one was not inflammatory in any sense and the other was never even delivered; and, third, that she was not acting in concert with anyone in allegedly blocking a public road. Effectively, her case was that her actions should be looked at individually without ascribing to her and indicting her for the actions of other individuals who were not even present on the site of her alleged crime. However, the reception of this argument can be understood from Justice Dharmendra Rana’s words, as he denied bail to Safoora:

When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire. The acts and inflammatory speeches of the co-conspirators are admissible u/s 10 of the Indian Evidence Act even against the applicant/accused.

He found a prima facie case of conspiracy to deny bail to Safoora, notwithstanding the speculative connection between Safoora and these other alleged co-conspirators, or the absurd inhumanity of confining a pregnant woman to judicial custody during a pandemic (despite multiple applications). Notwithstanding the less than fastidious charge of ‘conspiracy’ hastily put together by the Delhi Police (here, here) and the supervening lack of credible evidence to establish the same (in light of the witnesses’ identities being carelessly revealed) – it is submitted that a prima facie finding of conspiracy solely on the basis of actions imputable entirely and exclusively to other individuals, is regrettable and reprehensible.

Similarly, in Ishrat Jahan’s case – notwithstanding her charges being limited to those u/s 147/148/149/120B, and despite the Trial Court finding that the accused was simply booked for sloganeering and could not be indicted for abetment of any rioting u/s 307 – the Delhi High Court made the following observations: first, that the accused’s actions were clubbed with those suspected to have been ‘orchestrated’ by Umar Khalid – and were being investigated by a Special Cell of the Delhi Police; second, that by this reason charges under inter alia the UAPA (and other charges under the IPC) were also supplemented to her chargesheet; and, third, that she did not satisfy the conditions for the grant of bail u/s 43D(2)(b) of the UAPA. The abuse of pre-trial detention provisions under the UAPA have been debated and critiqued ad nauseam (here, here, here). However, presently, what needs to be noted is that the mere narrative of a conspiracy making way for a charge of ‘conspiracy’, allowed the Executive to import the austerity of the UAPA, to a case which was found prima facie infructuous by the court of first instance.

In light of the emergent trend in India, where instances of political collectivization against majoritarianism and authoritarianism are sensationalized as ‘conspiracies’ – the charge of ‘criminal conspiracy’ as defined u/s 120A of the IPC could potentially allow the Government to first – cast a wide net to capture all voices of dissent within the tangles of the law on circumstantial evidence; and, second – create a backdoor to the UAPA to subject such unrelated alleged ‘co-conspirators’ to the harshness of pre-trial detention.  

It is submitted that in its present form, the threat to liberty and democracy posed by Section 120B of the IPC warrants an urgent removal of the same from the statute-book. In a subsequent piece, I discuss if Section 34 of the IPC can adequately substitute the substantive charge of criminal conspiracy u/s 120B altogether once it is struck down.

[Author Bio: Sarthak is a law student at the NLSIU, Bangalore]

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