-By Abhinav Sekhri
[The article is the first part of a conspiracy series]
It would not be an overstatement to suggest that the idea of conspiracies has come to underpin almost all prosecutions where more than one person is accused of an offence, be it a blockbuster case (Elgar Parishad, Delhi Riots, Kerala Gold Smuggling, Agusta Westland, Aryan Khan, and so on) or an ordinary cheating allegation involving multiple persons.
While the big-ticket cases have attracted a lot of scrutiny in the recent weeks or months, rarely has the conversation included a discussion on the concept(s) of conspiracy. Let’s take the most recent case, Aryan Khan’s, as an example. The prosecution, so far, has been for the commission of offences under Section 29 of the NDPS Act, which punishes persons for being “party to a criminal conspiracy” to commit crimes under that Act. Even though the state’s submissions, as reported in the media, seemed to indicate that this concept of a conspiracy is all it had going against the accused — and the operative here being concept, not proof — there has been very little coverage of just what is a conspiracy in law, who can it ensnare, and how can it be proven.
Perhaps, there is minimal interest in discussing conspiracy law because at some level, everybody just knows what a conspiracy is. It is the word which we use to describe the conduct of two or more people conferring in secret to do something, illegal. All of us make plans, but we somehow know just what kind of plans the word ‘conspiracy’ is fit to describe. Plans which, for instance, involve buying and consuming drugs, bribing officials, cheating people, laundering money, and of course, doing “anti-national” activity.
All these are conspiracies. And because these plans are conspiracies, they must also be painted with that dark brush of secrecy and their executors brandished with ideas of deviousness. While we might otherwise insist on strict proof from the prosecution, we are more willing to accept a lesser burden on the police given these circumstances, permitting a relaxation on rules of proof and procedure impermissible in other contexts. Again, to take Aryan Khan’s bail hearings as an example, the prosecution seems to have suggested it did not have much material to show to the court because it was dealing with a conspiracy, as after all, “only conspirators know how they have conspired“.
Some time back, the Blog discussed conspiracy and abetment [see here], but the idea at that time was to only scratch the surface and tease out the issues. This time around, the idea is to focus on conspiracy for some time, looking at the substantive offence, the associated procedures, and the requirements for proving conspiracies in court.
The first two posts will look at the substantive offence of conspiracy — looking at the theoretical issues surrounding the conspiracy crime in general, and its specific history and development as an offence in India. The history behind the insertion of a conspiracy offence in the Penal Code was discussed by Nishant Gokhale in an earlier guest post, but this time around we will engage in some more depth with that history as well, and obviously take the story forward by focusing on how the judicial understanding of conspiracy has developed through some very special cases. In addition to this, I wanted to flag how there has been a mushrooming of special conspiracy laws along side the general Penal Code offence that continues to exist.
The hope, as always, is that the series helps make sense of the law and starts a conversation.
[The article first appeared in “The Proof of Guilt” blog]