Proving 'criminal conspiracy' remains complicated in India, but Babri Masjid case may bring clarity

A special CBI court recently charged senior BJP leaders — Murli Manohar Joshi, Uma Bharti and LK Advani — with "criminal conspiracy" in connection with the 1992 Babri Masjid demolition case. The charge of criminal conspiracy under Section 120B of the Indian Penal Code (IPC) is in addition to the charges under sections 147 (rioting), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object), 153A (promoting enmity between difference groups on grounds of religion, etc), 153B (imputations, assertions prejudicial to national integration) and 505 (statements conducing to public mischief) of the IPC. If the accused BJP leaders are found guilty of the above charges, they could face imprisonment of up to 5 years. The criminal conspiracy charges had earlier been dropped by a special court in Lucknow in 2001 on technical grounds and it was only in 2017 that the Supreme Court restored charges of conspiracy against the BJP leaders. Given that the conspiracy charges make the CBI’s case against the accused BJP leaders more buoyant, it is worth exploring the ingredients of the offence of criminal conspiracy in India and what issues are relevant for the prosecution to address in the present case.

Representational image. Reuters

Representational image. Reuters

Conspiracy under Indian Law: Indian Penal Code, 1860 and Indian Evidence Act, 1872

Section 120B contains the punishment for criminal conspiracy and section 120A defines criminal conspiracy. Section 120A defines criminal conspiracy. It says:

"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. Provided 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 to such agreement in pursuance thereof."

What this means is, "it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object".

The essential elements of Section 120A can be understood as follows:

  1. Presence of two or more persons
  2. Agreement among the said persons
  3. To either do or to cause to be done "an illegal act" or "an act by illegal means"

Generally, under criminal law, both mens rea (guilty mind or intention) and actus reus (the guilty act) must be present in order to constitute an offence. This means that "intention to commit an offence" is not by itself punishable and it's only when an act is carried out (pursuant to the intention to commit a crime) that an offence is said to be committed. For instance, mere intention of a person to carry out theft (without taking any steps to actually commit the theft), is not punishable; he must carry out an act in furtherance of his intention to commit theft. However, a unique feature of the offence under section 120A is that an "agreement to commit an offence" can by itself amount to a criminal conspiracy. This means that it is sufficient for the prosecution to prove that there was an agreement between two or more persons to commit an illegal act or an act (not necessarily illegal) by illegal means.

This also means that for the charge of conspiracy to succeed, the prosecution is not required to prove that the accused BJP leaders had carried out the demolition of the Babri Mosque themselves or that they had actually summoned the karsevaks to demolish the mosque. In fact, the offence of conspiracy was complete at the precise moment when there was an "agreement" between the accused to either commit the illegal act (demolition of the mosque) or to cause the illegal act to be done (destruction of the mosque by karsevaks).

Further, Section 10 of Indian Evidence Act, 1872 states:

“Things said or done by conspirator in reference to common design where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

In other words, anything said/done/written by a conspirator related to the "common intention" of all conspirators, after such ‘intention’ (to commit the conspiracy) was first entertained by them, is a relevant fact against each of the co-conspirators. This principle refers to the principle of collective liability where each conspirator is held liable for anything said/done/or written by his fellow co-conspirators in furtherance of their common intention to commit the conspiracy. This principle is also found in Section 34 of the IPC which describes the liability in acts done by several persons in furtherance of common intention. It says, "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

In the context of the present case, it means that even if the speech inciting the Babri mosque demolition was in fact made by only one accused, namely LK Advani, the remaining accused would also be held equally liable for Advani’s act.

An important element of Section 10 is "common intention" to carry out the conspiracy. The phrase has been interpreted and clarified several times by Indian courts.

In Hari Om vs State of Uttar Pradesh [(1993) 1 Crimes 294 (SC)], the Supreme Court held that it is not necessary that the common intention to carry out the conspiracy was pre-meditated or formed prior to the commission of the illegal act. The court said that the common intention can be formed in the course of occurrence. If we apply this principle to the present case, it means that it is not important that prior to LK Advani’s Ram Rath Yatra, the accused had conspired to demolish the mosque. The prosecution can argue that the conspiracy was hatched closer to the demolition of the mosque and perhaps even minutes before the demolition of the mosque when Advani made the alleged provocative speech.

In Sachin Jana and Another vs State of West Bengal [2008 (2) scale 2 SC], the Supreme Court recognised that direct proof of common intention is rarely available, and therefore, such intention is to be inferred from the proven facts/circumstances of the case. This means that the prosecution needn’t produce any direct evidence (for instance telephonic conversations, written communications, etc) signifying the common intention of the conspirators to demolish the mosque. It would suffice if circumstantial evidence shows that there was common intention among the conspirators to demolish the Babri Masjid.

In the conspiracy to commit rioting, etc, a possible scenario could be that one conspirator incites the public to carry out rioting whereas another conspirator supplies the tools or implements to the public to destroy public property. This is an example of circumstantial evidence indicating common intention among conspirators to cause rioting.

An important concept in understanding the common intention is the meaning of the phrase 'common intention' itself. Common intention is distinguished from 'similar intention' or 'common object'. In the former, the intention to do or cause a particular illegal act must be known to and shared by all conspirators, whereas, in case of ‘similar intention’, the intention to do/cause the illegal act is common to all the accused but there is no ‘meeting of minds’ between the co-accused. To illustrate, in the Babri case, it is likely that the accused conspirators individually wanted the destruction of the Babri Mosque, but their intention was not known to others accused of conspiracy, i.e., there was no “meeting of minds”. In this case, there was no common intention, hence, no conspiracy.

Each accused can still individually be held liable for inciting people to cause public mischief or rioting.

The above scenario is different from the situation where the conspirators exchanged their thoughts or shared their intention (to demolish the mosque) with their fellow co-conspirators, as this would imply 'common intention'.

No doubt, a host of complex legal issues are involved in this case. A crucial issue on which the case rests is whether there was an agreement between the accused to carry out the demolition, or was the demolition merely an unintended consequence of their actions? If the court rules in favour of the former, the accused could face half a decade of imprisonment and if not, they might get away with a slap on their wrist. In any case, it would be interesting to observe how the court interprets Section 120A in this case, and it is expected that any such interpretation would set the precedent for any future cases of criminal conspiracy in India.

Published Date: Jun 01, 2017 04:05 pm | Updated Date: Jun 01, 2017 04:09 pm

Also See