Criminal conspiracy

1. What is Criminal Conspiracy?

Criminal Conspiracy is one of the three inchoate offences. It is an independent offense wherein; an agreement is made between two or more individuals to commit a crime at some time in the future. This offense was initially developed as a procedural remedy in medieval England to combat abuses like false accusations but over time evolved into a substantive criminal offense, with a significant portion of its expansion in terms of its scope in the 17th and 18th centuries.

The rationale behind the application of the term is such that it is an anticipatory offense similar to attempt or incitement. It also highlights the risks posed by collective action, emphasizing the harm posed by group efforts. Criminal conspiracy laws are designed to prevent collaborative scheming to break the law, even if the planned crime is never completed. This ensures that preparations for crime are punished to deter unlawful agreements. In Indian jurisprudence, criminal conspiracy is considered both a substantive offense and an auxiliary offense when connected to other crimes. Courts have recognized and expanded the application of conspiracy charges in various contexts, including terrorism, corruption, financial fraud, and corporate offenses.

2. Official Definition of Criminal Conspiracy

Criminal Conspiracy as Defined in Legislations

Bharatiya Nyaya Sanhita, 2023

Criminal conspiracy has been defined in under Section 61(1) of BNS as: “When two or more persons agree with the common object to do, or cause to be done— An illegal act; or 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." Whether the illegal act was the ultimate object of such agreement, or is merely incidental to it, is considered immaterial. This section emphasizes the agreement between individuals as the core of the offense, distinguishing conspiracy from other inchoate crimes like attempt or abetment. The law does not require the illegal act to be executed for the conspiracy charge to stand, agreeing itself a punishable offense.

The Bharatiya Nyaya Sanhita takes a giant leap from the preceding IPC for it has inserted the phrase ‘with the common object’ in its definition of Criminal Conspiracy, which was absent in its IPC counterpart (Section 120A, IPC). Hitherto, conspiracy and ‘common object’ had been understood as distinct concepts in criminal law. ‘Common object’ had been used in the IPC about ‘unlawful assembly’, and unlike conspiracy, did not require a prior meeting of minds. Thus, the concept of ‘common object’ has conceptually been at odds with that of conspiracy. The reasons for such an insertion are unclear. The absence of a concise and clear definition for the term "common object" in the context of criminal conspiracy makes the provision susceptible to varying interpretations. Without a robust legislative explanation or judicial clarification, there is a risk of misuse or overreach in its application, potentially leading to unwarranted criminalization of actions that do not meet the traditional standards of conspiracy.

Legal provision(s) relating to 'Criminal Conspiracy'

Organised Crime

Organised crime involves illegal activities carried out by structured groups attempting to make money through illicit methods. Their modus operandi is quite broad. Their actions are fuelled by a sense of economic gain; much of the money made from organised crime drains away national resources, worsening social inequalities and hindering development efforts. Most of the offences defined under the section of ‘organized crime’ such as kidnapping, robbery, vehicle theft, extortion, land grabbing, and  contract killing, also continue to exist as stand-alone offences under BNS, as they did under Indian Penal Code (‘IPC’) however in the IPC there was no particular statute for Organised crime and it was clubbed under Criminal conspiracy(S. 120A, IPC). India faces significant challenges with organised crime, particularly in the realm of cybercrime. In 2022, the country reported over 740,000 cybercrime incidents, a substantial increase from previous years. The financial sector has also been heavily impacted, with bank frauds amounting to over 139 billion Indian rupees in the 2024 fiscal year. Organized crime and criminal conspiracy are closely linked because both involve criminal enterprises or activities that require planning, collaboration, and coordination among multiple individuals. In essence, organized crime can often be seen as a form of criminal conspiracy due to its structured nature and the agreement to engage in illegal activities.

Abetment

In the BNS 2023, abetment means encouraging, conspiring, or intentionally helping in an act. This includes urging others or aiding through actions. Abetment also covers acts done with the same intention.

Abetment by conspiracy requires proof of three constituent elements: (i) The abettor has engaged with one or more persons in a conspiracy; (ii) The conspiracy was for doing of the thing abetted and (iii) an act or illegal omission has taken place in pursuance of the conspiracy, and in order to 'the doing of the thing'.

Offences against the State

Criminal conspiracy can be implicated in cases where individuals agree to wage war or support acts aimed at destabilizing the government. This agreement, involving two or more persons, constitutes a criminal conspiracy under Section 61 of the BNS.This provision expands the scope of criminal conspiracy by penalizing individuals who plan or conspire to intimidate the government through criminal force or threats, even if no overt act of violence occurs.

Criminal Conspiracy as defined in International Instruments

International frameworks like the United Nations and Interpol play a crucial role in defining and tackling criminal conspiracy, particularly in the context of organized crime and terrorism.

UN Convention Against Transnational Organized Crime

The UN Convention Against Transnational Organized Crime (2000), known as the Palermo Convention, recognizes conspiracy as a core element in organized crime. It obliges states to criminalize conspiracy related to human trafficking, drug trafficking, money laundering, and other cross-border criminal activities. The UN Convention Against Terrorism also mandates the criminalization of conspiracy to commit terrorist acts.

Rome Statute of the International Criminal Court

Criminal conspiracy is a serious offense in both international law and Indian law, though there are key differences in how these two legal systems approach the crime. Both frameworks recognize conspiracy as an unlawful agreement between two or more individuals to commit a criminal act, but their scope, definitions, and application differ significantly.

Criminal conspiracy is frequently linked in international law to serious crimes, especially those pertaining to global peace and security. Most prominently, conspiracy is discussed in relation to crimes against humanity, war crimes, and genocide. Conspiracy in connection with the commission of such offenses is defined by the Rome Statute of the International Criminal Court (ICC). Individuals who conspire with others to commit an international crime, even if the crime is not carried out completely, may be prosecuted for conspiracy under Article 25 of the Rome Statute. This principle was notably applied in the Nuremberg Trials after World War II, where conspirators involved in the Holocaust were prosecuted for conspiracy to commit crimes against humanity, despite not all acts being carried out by the conspirators themselves.

Criminal Conspiracy as defined in Official Documents

While the primary legal framework for criminal conspiracy is outlined in the Bharatiya Nyaya Sanhita under Section 61, it also finds application in various special statutes addressing corruption, terrorism, drug trafficking, and corporate fraud. This concept has evolved to cover a broad range of activities aimed at preventing organized criminal behavior and ensuring accountability.

Criminal conspiracy in Indian law refers to when two or more people agree to do something illegal or achieve a legal goal unlawfully. It becomes a conspiracy if they go beyond just agreeing. Whether the illegal act is the main goal or a side effect doesn't matter.

With regards dealing with organized criminal groups that span across continents, investigations have to be conducted with Interpol letters of request for deportation of criminals to India and have to be processed by the Ministry of External Affairs with foreign embassies.

Criminal Conspiracy as defined in Official Reports

Malimath Committee Report

The Malimath Committee Report suggests that information sharing and joint task forces should be established to enhance the effectiveness of the legal and investigative processes. In particular, the report advocates for improved extradition treaties and mutual legal assistance treaties (MLATs), which would allow countries to collaborate in the prosecution of conspirators operating in multiple jurisdictions. It also highlights the need for harmonization of national legal frameworks concerning organized crime, ensuring that criminal conspiracy laws are sufficiently broad and consistent across borders.

Furthermore, the V.S. Malimath report emphasizes the establishment of specialized anti-organized crime units within national police forces to better handle the complexity of international conspiracies. It calls for the training of law enforcement personnel in understanding the cross-border nature of criminal conspiracies, which often involve complex networks operating across multiple countries, with differing laws and enforcement practices.

Organised crime (conspiracies) often spans multiple states and even countries; the interstate and transnational dimensions have emerged as serious challenges to state authority. If it is left to the States to enact their own laws, some of them would do it according to their time frame and some others may not do so at all. The growing influence of technology in international crime must be realized, particularly in cybercrimes, and underscores the importance of international treaties addressing cybercrime conspiracies, a fast-evolving area in criminal law. Even if they enact such a law, its efficiency could remain questionable because of the nature of crime being transnational. A coordinated approach is, hence, crucial in dismantling organized criminal groups that span across continents, ensuring that no jurisdiction becomes a safe haven for those involved in criminal conspiracies.

42^nd Law Commission Report

The Report suggested two reforms:

• The wide ambit of criminal conspiracy currently includes an agreement to commit an offence, an illegal but not criminal act, and a legal act by illegal means. The law commission opined that the distinction made between an agreement to commit an illegal but not criminal act and an agreement to commit a legal act by illegal means is not relevant. It proposed that whether the offense is the ultimate goal, an incidental outcome of the agreement, or involves any act or illegal omission, it should be considered immaterial
  • To make the definition precise, the Law Commission suggested that the definition should be refined to confine it to : (i) agreement to commit an offence punishable with death, imprisonment for life, or (simple and rigorous) imprisonment for a term of two or more years, and (ii) agreement to cause such an offence to be committed.
• Criminal conspiracy, under section 120B should be made punishable: (i) with the punishment provided for the conspired offence, if it is committed in pursuance of the agreement, and (ii) with imprisonment for a term up to one-half of the longest term provided for the conspired offence, or with fine prescribed therefor, if no offence is committed in pursuance of the agreement

156^th Law Commission Report

The Fourteenth Law Commission of India expressed its disagreement with the proposals of the Fifth Law Commission. They suggested that the act should be preserved in its current form as it is working satisfactorily as residuary provisions.

They emphasized the unique nature of the offence of criminal conspiracy. A petty offence may escalate into a more serious one, making it difficult to distinguish between the conspiracy and the resulting offence. Consequently, they denied adopting the definition of criminal conspiracy as proposed before.

It declined the change in punishment of criminal conspiracy as it would render the language of Section 120B unclear and ambiguous.

Criminal Conspiracy as defined in Case Laws

Mohd Arif v. State of National Capital Territory of Delhi [2022]

The case of Mohd Arif v. State of National Capital Territory of Delhi [2022] addressed the propriety of convicting a sole accused for criminal conspiracy. It was emphasized that more than one person need not necessarily be convicted for the offense of criminal conspiracy. Even a sole accused can be convicted of criminal conspiracy if there is evidence that others, besides the accused, were involved in the conspiracy. The conviction of the sole accused is justified if the prosecution can prove that they were involved in the conspiracy with others, and the court is convinced that other individuals were indeed involved in the conspiracy.

Direct Sales Co. v. United States [1943]

The case of Direct Sales Co. v. United States highlights the distinction between lawful activities that aid criminal ventures and active participation in a conspiracy. For an agreement to qualify as conspiracy, the conspirators must have a shared intention to commit a crime. Modern trends lean towards a "unilateral approach," focusing on the defendant’s intent rather than requiring mutual intent among co-conspirators. Conspiratorial intent can be difficult to establish, as it is often inferred from circumstantial evidence or specific actions, such as supplying goods for criminal purposes.

International Experience

United Kingdom

Under the Criminal Law Act 1977, conspiracy is defined as: "If a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a) will necessarily amount to or involve the commission of any offense or offenses by one or more of the parties to the agreement, or

(b) would do so but for the existence of facts which render the commission of the offense or any of the offenses impossible,

he is guilty of conspiracy to commit the offense or offenses in question."

The UK legal system differs with the one in India in that the Criminal Law Act 1977 adopts a broader and more flexible approach, particularly in terms of impossibility and the absence of an overt act requirement.

England and Wales

In English law, conspiracy is defined more narrowly than in Indian law and is treated as a common law misdemeanor punishable by fine or imprisonment at the discretion of the court, except in cases like conspiracy to murder, which carries a statutory maximum punishment of ten years. It involves an agreement between two or more persons to pursue an unlawful purpose. While committing a crime—even a non-indictable one—is clearly considered unlawful, the status of non-criminal unlawful purposes is less well-defined. However, certain non-criminal conspiracies, such as those to defraud, to commit a tort involving malice, or to cause public mischief, are generally indictable. In contrast, a conspiracy to breach a contract or to induce its breach is likely not indictable today unless accompanied by elements like malice or fraud.

The criminal law act of 1977 finally abolished all the common law variants of the said crime and thereby discontinued all the variants of the definitions that existed. All the different types and varieties of the crime were discontinued except for two- criminal conspiracy to defraud and conspiracy to corrupt public morals or outrage public decency.

As defined in the landmark judgement of Scott v Commissioner of Police of the Metropolis , section 5(2) of the Criminal Law Act of 1977 retained the conspiracy to defraud as a punishable crime under law. The element of conspiracy as defined in the act which gives object to the concerned offense in section 5(2) of the act, is: “an agreement by two or more [persons] by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled or an agreement by two or more by dishonesty to injure some proprietary right of his suffices to constitute the offence.”

This definition in the section 1(1) of the said act is: if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either – (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, [added by S.5 Criminal Attempts Act 1981]Then he is guilty of conspiracy to commit the offence or offences in question.

Ireland

The definition for the offense of conspiracy as per the The Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 in the jurisdiction of northern Ireland is:

Section 9 of The Criminal Attempts and Conspiracy (Northern Ireland) Order 1983.

(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either— will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.

(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstances necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of paragraph (1) unless he and at least one other party to the agreement intend or know that the fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place. Article 13(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (S.I. 1983/1120 (N.I. 13)) does not affect the common law offence of conspiracy so far as it relates to conspiracy to defraud.

United States

Most U.S. jurisdictions require an overt act toward furthering the agreement.  An overt act is a statutory requirement, not a constitutional one. The illegal act is the conspiracy's "target offense.” Title 18, United States Code, Section 371 defines "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

Conspiracy generally carries a penalty on its own which essentially means that even if the illegal act in question is not committed, the presence of the mental element to commit the offense and conspiracy in the same regard is enough to incriminate someone for the offense of conspiracy.​​Where no one has actually committed a criminal act, the punishment varies.  Some conspiracy statutes assign the same punishment for conspiracy as for the target offense.  Others impose lesser penalties.

Conspiracy applies to both civil and criminal offenses. For example, you may conspire to commit murder, or conspire to commit fraud. In most U.S. jurisdictions, for a person to be convicted of conspiracy, not only must he or she agree to commit a crime, but at least one of the conspirators must commit an overt act (the actus reus) in furtherance of the crime. This means that a positive act has to be done in furtherance of the act, thus mere mediation and meeting of minds is not sufficient to actually incriminate someone for the offense of conspiracy.

The distinctions between different kinds of conspiracy in question is probably one of the highest in the criminal and civil jurisdiction of the united states:

Conspiracy against the United States refers to a federal crime under 18 U.S.C. § 371, wherein two or more individuals conspire to commit an offense against the United States or to defraud the government in any way. The statute aims to punish acts that undermine the integrity of government functions and operations. Conspiracy itself is a broad crime and does not require the actual commission of the underlying offense but focuses on the agreement and overt acts taken toward achieving unlawful goals. The punishment for a conspiracy conviction can include fines and imprisonment, often depending on the severity of the underlying crime and the roles of the participants in the conspiracy.

Additionally, the United States has specific statutes dealing with conspiracies aimed at depriving individuals of rights secured by the U.S. Constitution. This is commonly referred to as conspiracy against rights. The law provides federal criminal penalties for anyone conspiring to interfere with another’s constitutional rights, such as voting rights or freedom of speech, thus extending protection against conspiratorial actions that target fundamental liberties.

The most important academic work around the concept of conspiracy revolves around the jurisprudential aspects of the crime as delineated by Wharton. Wharton’s rules serve as exceptions to the general rules of conspiracy. The Rule states that when a crime inherently requires the participation of two or more persons (like bigamy, adultery, bribery), an agreement to commit the crime cannot be separately charged as a conspiracy. Wharton’s Rule prevents the duplication of charges for the same crime which is very important. Another essential aspect of the same is the focus is on preventing over-penalization by stopping charges of both conspiracy and the substantive crime when they are inseparable. This principle by Whatron becomes essential when the courts have to prevent over-penalization of an accused in serious matters like adultery, bigamy, and bribery. Wharton argues that in such serious offenses rule applies in such cases, ensuring that only the substantive crime is charged, not the conspiracy to commit it.

International law, however, typically limits its focus on conspiracy to certain serious crimes that have an international impact, such as terrorism, drug trafficking, and environmental crimes. Conspiracy laws under international law are designed to deter activities that threaten global peace and security, with an emphasis on collective responsibility and the need for international cooperation in criminal justice. Additionally, international law permits the prosecution of individuals for conspiracy even if they are not directly involved in the commission of the crime itself, as long as they played a role in planning or facilitating the crime.

Related Terms

Inchoate offences

Inchoate offences are criminal offences designed to punish the acts which are prior to the committing of another crime. The law distinguishes between an incomplete offence and specific crimes that are part way between an intention and an actual crime. Common inchoate offences include attempting, encouraging, assisting, aiding, abetting, counselling, and procuring.

Inchoate liability refers to holding someone responsible for actions taken before the full commission of a crime, based on the parent offense. This means that inchoate liability is tied to another crime.

The Criminal Attempts Act 1981, Section 1, refines the scope of inchoate offenses by establishing a new test for attempts. Under this section, if a person intends to commit a crime and performs an act that is more than just preparatory to its commission, they are guilty of attempting to commit that crime. Although this section prevents the creation of a new offense for attempting to aid and abet, it does not absolve someone from criminal responsibility for aiding and abetting an attempt to commit a crime.

Organised Crimes

Section 111 and Section 112 of Bharatiya Nyaya Sanhita deals with organised crime and petty organised crime. Organised crime means any continuing unlawful activity by an individual, single person or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate. It can be done by use of violence or threat of violence or intimidation or coercion by unlawful means to gain an advantage.

Approver

Approver refers to accomplice to an offense who accuses others of the same offense and is admitted as a witness at the discretion of the Court to testify against his companions in guilt. Though neither defined nor used in the Criminal Procedure Code (CrPC), it is usually applied to a person, supposed to be directly or indirectly concerned in or privy to an offence to whom a pardon is granted under Section 337 of the CrPC with a view to securing his testimony against other persons guilty of the offence

Know More: Approver

Unindicted conspirator

A significant aspect of conspiracy cases in the U.S. is the concept of unindicted co-conspirators. The U.S. Attorneys' Manual generally discourages naming co-conspirators who have not been formally indicted but does not prohibit it outright. The use of unindicted co-conspirators has been a source of legal debate, with concerns over due-process violations if such individuals are publicly named without being charged. The Fifth Circuit in United States v. Briggs(1975) clarified some aspects of this issue, confirming that the practice could be permissible under specific circumstances.

The term "unindicted co-conspirator" gained national attention in the 1974 Watergate Scandal, where President Richard Nixon was referred to as such in connection with his involvement, though he was not indicted due to constitutional concerns regarding sitting presidents. The term resurfaced during the investigation into President Donald Trump’s lawyer, Michael Cohen, where Trump was named as "Unindicted co-conspirator number 1" in relation to campaign finance violations.