Criminal Conspiracy and the Problem of Agreement: Reassessing the Mens Rea of Conspiracy under Indian Law

Résumé

Criminal conspiracy occupies an unusual position within the architecture of Indian criminal law because the law criminalises an agreement before the contemplated substantive offence is necessarily attempted or completed. The Bharatiya Nyaya Sanhita, 2023 (BNS) consolidates the former provisions of sections 120A and 120B of the Indian Penal Code, 1860, in section 61 and introduces the expression “common object” into the statutory definition. This textual development raises an important question: what precisely constitutes the mental element of conspiracy, and how should courts distinguish a punishable agreement from mere knowledge, association, discussion, parallel conduct or a shared desire that an offence be committed? This article reassesses the mens rea of criminal conspiracy in Indian law. It argues that conspiracy should not be understood simply as a derivative form of intention or as a loose inference of common criminal purpose. Its distinctive culpability lies in a combination of intentional participation in an agreement and conscious commitment to the unlawful object of that agreement. The article examines the relationship between agreement, intention, knowledge and participation; analyses the significance of “common object” in section 61 BNS; and considers the evidentiary consequences of the largely circumstantial nature of conspiracy prosecutions. It further examines the interaction between section 61 BNS and section 8 of the Bharatiya Sakshya Adhiniyam, 2023. The article contends that courts should maintain a disciplined distinction between proof that an accused shared circumstances with conspirators and proof that the accused intentionally joined the unlawful agreement. A principled approach should require proof of concurrence with the common object, while permitting that concurrence to be established by a coherent body of direct or circumstantial evidence. Such an approach preserves the preventive rationale of conspiracy without allowing the offence to collapse into guilt by association