TRACING THE HISTORY OF JURY TRIALS IN INDIA

Miss. Archisha Chowdhury, Jindal Global University

Introduction to the Jury System

The trial by jury, a prided invention of the British, is a system of administering justice that relies on a verdict given by the people. A ‘jury’ comprises of the citizens of the country, who are called on duty to adjudicate upon a case in trial. This is different from the most prevalent system of bench trials, adjudicated by a judge. The jury trial is a structured process wherein firstly, the counsel for both sides select the jury members who then listen to the facts of the case and decide upon its verdict. Mostly, jurors decide the fate of individuals in criminal proceedings.

A common law innovation, jury trials are widely used in several such jurisdictions. However, some civil law jurisdictions have introduced the system for serious criminal matters.1

Jury trials have been a matter of serious debate in contemporary times. Many deem it to be biased and ineffective. However, doing so is a gross generalization as its success depends from nation to nation.

THE INDIAN CONTEXT

Pre-Independence History 

Jury trials in India came about with British rule. Indians within their locales often practised the Panchayati system, however, it was quite different from the trial by jury.2 Initially, the East India Company had refrained from enforcing the jury system under English law. They implemented it inside a dual system of courts:

  1. For Presidency Towns of Bombay, Madras, and Calcutta, the trial by jury was introduced. It was obligatory to enforce the jury system for criminal cases, with no such mandate for civil cases.3 The British, the Europeans, and in some cases Indians were tried by a jury.
  2. For Moffussils, the regions outside the Presidency Towns, there was no obligation for implementing jury trial. Company Courts were enforced and Company officials presided over cases involving the natives.4

In 1834, however, Macaulay struck down the provision, upon realization of the inequality inherent in the system. This was especially pertinent with the increase in cases of violence of colonizers towards their domestics.

With the advent of the Crown Raj in 1858, the adoption of the Indian Penal Code in 1860 and the Indian Code of Criminal Procedure in 1861 followed.5 Trial by jury for criminal cases was now obligatory in High Courts for Presidency Towns, while for Moffussils it was optional. The rule of the superiority of the majority was followed for the decision regarding acquittal or conviction. It specified that the decision agreed upon by the majority would prevail. The number of jurors was to be between 5 and 9. Later, a Code was implemented to attest the number of jurors as 3 for petty crimes and that between 3 and 9 for severe offences.6

Arguing for Abolition

  1. Procedural Delays and Costs:

The jury trial is a time-consuming process. It involves tardy processes like the summoning of individuals to act upon as jurors, their preparation, and the process of their selection by the counsel lawyers. There is also the delay in instructions given to the jury and the wait for their deliberation.7 The 14th Law Commission Report of India iterated that proceedings in jury normally followed a slow speed.8 Matters such as the facts and shreds of evidence of the case and the arguments placed by the counsel for the prosecution and the defence had to be explained in a straightforward, clear, and easy to understand manner so that the jurors could follow them. This led to delays in dispensing justice. Jury trials are also expensive and require more funds than trials by judges. Indians are paid remuneration for their service in the jury and have been found to use it as a lucrative opportunity.9 This led to bias and violated the Right to Fair Trial, enshrined in Article 21 of the Indian Constitution. 10

  1. Adjudicators: Why a Judge is better than a Jury

A judge and a jury adjudicate in manners that are radically different. A jury is generally not experienced and educated in dealing with matters of the law, however, it needn’t be. It is an institution invented to provide to the accused, substantial justice from his fellow citizens, to “relieve against the procrustean application of legal technicalities”. Members of the jury are to serve as impartial, independent individuals who administer substantial justice, even if it means deviating occasionally from the strict application of artificial distinctions and logical rules.11 However, the problem arises in ignorance of the law by the jury, as such a case leads to jury nullification, approved in the case of R v. Bushell.12 Jurors were also found engaging in corruptive activities and accepting bribes.

The argument on the flip side, and largely the trend in India, is that the jury, deemed as ‘impartial’, is more susceptible to consider external factors or adopt discriminating views, generally leading to bias. A judge is a trained professional in separating any personal or external view from the facts and the law of the case, whereas ordinary citizens are simply not. This trend is seen throughout the jury trials in India. In Rex v. Dawes (1665), the first recorded jury trial in India, the accused, Ascentia Dawes was being tried for the alleged murder of her native slave, Chequa.13  A jury of 12 persons—6 English and 6 Portuguese—was called upon to adjudicate. They held the accused guilty of the murder, however changed their verdict to not guilty on account of not holding her accountable for the crime of murder ‘in the form or manner described in the indictment’.14 This was a clear case of the racial bias that operated with verdicts by juries and invited criticisms on the ineffective functioning of juries in India.

Public sentiment and media also had a grave impact on jury decision-making in Indian history. Here, the infamous K. M. Nanavati v. State of Maharashtra (1959), becomes relevant.15 In this case, the accused K. M. Nanavati was a naval officer who was on trial for the murder of Prem Ahuja, his wife’s lover. After committing the crime, Nanavati had surrendered himself to the police. The Sessions Court had initially tried the case, but on appeal, it went to a jury of the Bombay High Court. The case received significant traction from the media, as it was one involving a Commanding Officer in the Navy. The media painted the narrative of the revered Navy man as the “deceived husband caught in a crime of passion”.16 It swayed the jury to the extent that the verdict pronounced was 8:1, not guilty. The facts of the case were misread and distorted, and despite clear evidence incriminating the accused, the jury acquitted him of the charge. This, however, was later overturned. This case uncovered the incompatibility of jury trials with India and ultimately led to the abolition of its provisions.17

Another relevant matter is that a judge is accountable for the decision he makes. This means that judges ought to deliver a judgment providing the entire rationale for their decisions. These judgments are accessible to the public at large, whereas what happens within a jury room is never disclosed. 

The Abolition

The ‘Right to Trial by Jury’ in India was not a fundamental right of the Constitution.18 The obligation of a jury trial extended only to High Courts of Presidency Towns. Its prevalence was restricted to a choice in Mofussil. With independence, it was already in decline and the Nanavati case seemed to accelerate the process of its abolition.19 The jury found no place in the Constitution and in 1958, the 14th Law report commission recommended its abolition.

Finally, it was abolished in 1969 with the removal or modification of provisions on juries in the Criminal Procedure Code.20 Sections on procedural aspects of jury trials such as the number of jurors were repealed. The provision ordering the State Government to notify the cases obligated to be tried by jury was replaced with Section 477 of CrPC, conferring to the High Courts the power to make rules on such matters.21 Contrary to the trend before, where appeals on jury verdicts could only be drawn in cases of miscarriage of justice, the CrPC was amended to allow appeals under reasonable circumstances.22

The Anomaly

Broadly, it is evident that the system of jury trials was incompatible with India at large. However, some special courts are an anomaly to this. One of them is the Parsi Matrimonial Court. It has a jury system that dispenses justice even today. The Parsis of India are a close-knit and small community, concentrated primarily in Bombay.23 Cases in the Parsi community are presided by a judge who sits over the trials and a 5 member jury (appointed delegates), who deliver verdicts on matrimonial matters. The delegates are appointed for 10 years. These delegates are drawn from a pool of 20 jurors who are nominated from the community council. They are generally the revered members of the community such as doctors and lawyers. These five-member juries, usually comprising of retired men and women, spend six hours in the Bombay High Court for up to 10 days during a single session, granting or refusing divorces to Parsi couples.24 In Naomi Sam Irani v. Union of India,25 however, this system had been challenged. The petitioner argued that this system caused delays, and her case was not taken up until 2 years later. Further, she challenged sections 18, 19, 20, 24, 46, and 50 of the Parsi Marriage and Divorce Act.26 She argued that these sections violated Articles 14 and 21 of the Constitution.27 Substantial change on this matter is, however, awaited.

In conclusion, the abolition of jury trials in India is an action that is in the interest of dispensing justice in India.

SOURCES:- 

  1. James G. Apple & Robert P. Deyling, (1995) A Primer on the Civil-Law System, HeinOnline.
  2. A.G.P. Pullan, ‘Trial by Jury in India’ (1946) Vol. 28 No. 3/4 Cambridge University Press on behalf of British Institute of International and Comparative Law.
  3. Ibid.
  4. Ibid. 
  5.  Criminal Procedure Code 1861, Act No. 25, Acts of Parliament, 1861, s 322 (India).
  6.  Criminal Procedure Code 1872, Act No. 10, Acts of Parliament, 1872 s 274 (India).
  7. Landis, Benjamin. Jury Trials and the Delay of Justice. American Bar Association Journal 56, no. 10 (1970): 950-52. 

Accessed March 8, 2021. 

http://www.jstor.org/stable/25725272.

  1.  Law Commission India Report, Ministry of Law, Rep. on Reform Of Judicial Administration 14 (1958).
  2. Report of the Jury Committee Bihar (1952), at 2.
  3.  INDIA CONST. art. 21.
  4.  FOSTER, DWIGHT, ADVANTAGES OF THE JURY SYSTEM, THE NORTH AMERICAN REVIEW 135, no. 312 (1882): 447-60.
  5.  R v Bushell (1670) 124 E.R. 1006.
  6. Sriram V, A mistress-maid case of long, long ago (2014) Vol. XXIII No. 21 Madras Musings.
  7. Ibid. 
  8.  K.M. Nanavati v. the State of Maharashtra (1959) (1961) 1 SCR 497.
  9. Bachi Karkaria, A ‘crime of passion’ that India never forgot, BBC News, May 15, 2017.
  10. James Jaffe, ‘After Nanavati: The last Jury trial in India?’ (2017) Vol. LII No. 32 Economic & Political Weekly.
  11.  INDIA CONST., Part III.
  12. Law Commission India Report, Ministry of Law, Rep. on Reform Of Judicial Administration 14 (1958).
  13.  Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1973, s 9
  14.  Ibid, s 477.
  15. Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1973, s 9
  16.  Mitra Sharafi, Law and Identity in Colonial South Asia Parsi Legal Culture, 1772-1947 (Cambridge University Press 2014).
  17.  Soutik Biswas, Parsi matrimonial courts: India’s only surviving jury trials’ (BBC, 24th September 2015)
  18.  Naomi Sam Irani v Union of India [2017] SC.
  19.  The Parsi Marriage and Divorce Act 1936, s 18, 19, 20, 24, 46, and 50.
  20. INDIA CONST. art 14, 21

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