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A repugnant colonial law

N Dilip Kumar and Shantonu Sen question the adherence to an archaic British law instated solely for subduing Indians in India

A repugnant colonial law

Without any debate, the law of criminal conspiracy had entered the statute of 1860 in 1913. It was enacted by the British in a rush to round up our freedom fighters in the Non-Cooperation movement. Then, why is this colonial instrument of systemic oppression still a part of the law in our democracy?

The Criminal Law Amendment Act 1913 was inserted by Chapter VA (Ss. 120A & 120B) in the Indian Penal Code of 1860 to deal with dangerous conspiracies, as even the offences against the State in S.121-A of the I.P.C. was not enough. The sole motive of this was to subdue the Indian revolutionaries.

The design of the law was mischievous. For common intention and abetment, as provided in the existing law, an elaborate proof is necessary to punish people and requires laborious investigations; the colonial rulers sought an easier but effective way out by way of the amendment in 1913. They brought in serious changes: (i) conspiracy as a substantive offence; (ii) conspiracy as a form of abetment; (iii) conspiracy to wage, attempt to, or abet war against the Government of India; (iv) involvement in specific offences, for example assembling for the purpose of committing dacoity. The vital ingredient in this crime is the agreement between two or more persons to do an illegal act, the act itself being secondary. They would be punished as if they had committed the original crime itself in case of serious crimes, and with lesser punishments in case of other crimes. This penal offence means metaphorically, that if the destination of a train is an illegal act or an act which is not illegal but is done by illegal means, all seated on the train are prima facie guilty of criminal conspiracy. It is immaterial whether or not they knew that the destination was a crime. It is also immaterial if they had got on the train midway or did not travel to the destination. Such a law of oppression did serve the purpose for the British when they dealt with the freedom struggle. They could use and abuse it to incarcerate all those they assumed were part of violence against them during the Non-Cooperation Movement and other incidents of revolution, and later, in Quit India Movement so as to subjugate this country and oppress its people.

Although the colonial rule long ended, this law remains. Unfortunately, even the Indian Police find that using Section 120-B is an easy way out to rope in persons to face charges when it is expedient for the State or convenient for them. They can incarcerate not only those who committed the crime but also those in sympathy, on fringe and hangers-on by simply proffering the argument of criminal conspiracy. Since a conspiracy is hatched in secrecy, evidence in the proof is an exception to the rule. The courts too can be satisfied with the circumstantial evidence. If not conviction, police would at least succeed in getting people incarcerated till the trial is over, as it would have happened in the case of Operation Blue Star. Using this law, 1592 persons were rounded up from the Golden Temple Complex in June 1984 and they remained imprisoned for months, although most of them turned out to be part of a religious congregation. Only when the Republic, quickly and wisely, realised how a free India cannot subject its people to such trials was the case withdrawn. Similarly, another investigation of a terror crime, '93 Mumbai Blast, saw dropping off the charge of criminal conspiracy to wage war against all 189 prosecuted. Most famously, Sanjay Dutt was freed of charges for criminal conspiracy. All by the State. Thus, there is awareness that this provision is abused, yet it continues.

The abuse of these provisions by the government as an instrument to subdue its opponents, such as during the Emergency, is outright condemnable. The Baroda Dynamite Case was one such case. George Fernandes and others were named accused. Then PM, Morarji Desai, withdrew this case from the trial as free India could not use an oppressive colonial law against its own people. The prosecutions by the present government recall misuse of this law. Whether it's the prosecution; of numbers along with the former Finance Minister of India in the Aircel Maxis Case; of Delhi CM with 12 others on the incident involving the assault on Delhi Chief Secretary; of Chairperson of Delhi Women's Commission and others on appointment of people on contract; the conspiracy law is (mis)used.

Of all these cases the most glaring misuse is the matter of assault on the CS of Delhi. That there should be a meeting of minds to attract the criminal conspiracy! It is inconceivable that any CM would plan to assault his own Chief Secretary by conspiring with his MLAs in advance. Why would he do it and for what gain? If at all, the assault took place at the spur of the moment in the process of heated discussions then the question of criminal conspiracy does not arise. Moreover, when all those present were public servants, this is a case of a rough skirmish, not one of assault on a public servant performing his duty.

The scope for misuse of the law of conspiracy in many other situations, such as in dowry cases, is very wide. In a recent judgement, Supreme Court has held that the kin of the accused, against whom there are no prima facie charges of dowry harassment, cannot be roped in by citing criminal conspiracy.

The question that arises is that the British made in 1913 the law of conspiracy to protect their Colonial Empire, so why are CBI and State Police forces using, misusing, and abusing it against our own people? Why are we continuing with it even after Independence and even when several jurists have spoken against it? They opined that this law, which is hurriedly enacted, is inconsistent, and where unintelligible principles of law are put into action, is an instrument of the governmental oppression. Indeed, the vagueness of the ambit of this 'crime' that cannot ordinarily be proved and the abuse of the law at the hands of the government and law enforcers at the drop of a hat in every case possible, create a genuine fear of governmental oppression and abuse by the enforcement machinery.

This law impinges on our civil liberties and even our Fundamental Rights such as the Law of Privacy that allows a man to be present at a place of his choice, incidentally it may also happen to be a scene of the crime. By continuing with this apparent Constitutional incongruity, our democracy is threatened. It would, therefore, be a great service to the nation, if the lawmakers take notice and remove this law from the statute or if the guardian of citizen's rights, the Supreme Court, treats this as a Public Interest Litigation.

Finally, it cannot be gainsaid if we still, after seven decades of Independence, have a colonial police because our lawmakers have retained oppressive laws imposed by colonial rulers even in the statute books of the 21st century.

(Dr N Dilip Kumar is former Member of Public Grievances Commission, Delhi and Shantonu Sen is former Joint Director of CBI. The views expressed are strictly personal)

N Dilip Kumar and Shantonu Sen

N Dilip Kumar and Shantonu Sen

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