With the screening of the Hindi feature film “Rustom” in the year 2016 - a crime thriller based on the real life incident and trial by jury of K.M. Nanavati a Naval Officer for the murder of his wife’s lover some fresh interest has been generated about the jury system of trial in India. A puerile plea has also been raised in some quarters to consider the revival of the jury system of trial in India. The suggestion and argument for revival of the jury system in India is stated to be rejected.
In common parlance a jury is understood to be a group of people randomly selected to decide whether an accused person in a criminal trial is either guilty or not guilty. A jury trial, or trial by jury, is therefore, a legal proceeding in which a jury makes a decision on findings of fact, which then directs the action of a judge. It is distinguished from a Bench trial whereunder one or more judges decide a case on the basis of its facts and the applicable law.
Prior to the advent of the Britishers in India there were numerous divergent trial practices prevailing in the mofussils. The same continued even under the East India Company. When Lord Macaulay arrived in India in 1834 as a penal law reformer he was immediately struck by the unequal system then prevailing in India and the risk of partiality, especially in cases of violence committed by colonizers towards their domestics. It was only in 1858, after the first war of independence that the powers of the East India Company came to an end and the crown government of India, known as the British Raj was established. Soon thereafter, in 1861 all pre-existing local acts were amalgamated and consolidated by way of the Criminal Procedure Code 1861. Chapter-XXIII of the 1861 Code of Criminal Procedure for the first time contained detailed provisions pertaining to Juries and Assessors in India. Section 322 of the said Code thus provided:-
“The local Government may order that the trial of all offences or of any particular class of offences by any Court of Session shall be by Jury in any District, and such local Government may from time to time revoke or alter such order. Orders passed under this Section shall be published in the Government Gazette, and in such other manner as the local Government shall direct.”
Section 323 of the aforesaid code also contained elaborate provisions as to how the jury was to be constituted for the trial of the persons belonging to certain specified class or classes. It would be of some interest and relevance to reproduce the same:
“Criminal trials before the Court of Sessions in which a European (not being a British subject) or an American is the accused person or one of the accused persons, shall be by Jury; and in such case the Jury; if such European or American desire it, shall consist of at least one-half of European (whether British subjects or not) or American, if such a Jury can be procured. Provided that in any District in which the local Government shall not have ordered that all trials or trials for all offences of the class within which the trial about to take place falls, shall be by Jury, such European or American may elect to be tried without Jury”.
In a criminal trial before the court of sessions not by jury, the trial was conducted with the aid of two or more Assessors as members of the court. They were to assist the judge in arriving at a finding of fact but their decision was not binding on the judge. The composition of jury was provided in section 327 of the code of criminal procedure 1861 and read as under:-
“In trials by Jury before the Court of Session the Jury shall consist of five persons, or of such number, being an uneven number , and not being less than five or more than nine, as the local Government by any general order applicable to any particular District or to any particular classes of offences in that District shall direct”.
The rule of unanimity was not mandatory and instead the rule of superior majority was prevalent. Section 328 of the code of 1861 provided for the same which was as follows:-
“If the Jury are unanimous in a verdict of guilty, the accused person shall be convicted. If the Jury shall consist of five persons and a majority of four find the accused person guilty, or if the Jury shall consist of seven persons and a majority of five find the accused person guilty, or if the Jury shall consist of nine persons and a majority of six find the accused person guilty, the accused person shall be convicted. If the Jury are unanimous in a verdict of not guilty, the accused shall be acquitted. If the Jury shall consist of five persons and a majority of four find the accused person not guilty, or if the Jury shall consist of seven persons and a majority of five find the accused person not guilty, or if the Jury shall consist of nine persons and a majority of six find the accused person not guilty, the accused person shall be acquitted”.
Under the dual system of administration of criminal justice which came to be introduced with the establishment of the British Raj and with the coming into existence of the presidency towns of Bombay, Calcutta and Madras and the adoption of the Indian Penal Code (1860), The Indian Code of Criminal Procedure 1861 was amended in 1861, 1882 but substantially in 1898. Under the amended Criminal Procedure Code of 1898 the High Courts of Calcutta, Bombay and Madras were invested with original criminal jurisdiction to conduct trials and the criminal jury system was made obligatory only in the High Courts of the Presidency towns. In other areas it became optional and was rarely used. Chapter XXIII of the 1898 code provided for trials before High Courts and Courts of Session. Section 266 of this Code expanded the definition of High Court and stipulated that the expression ‘High Court’ would refer to a High Court within the meaning of the government of India Act 1935 and would include such other courts as the provincial government may by notification in the official gazette declare to be High Courts for the purposes of this chapter. Sections 267, 268 and 269 of the said code contained elaborate provisions for a trial by jury or by assessors and provided as under:-
“267. All trials under this Chapter before a High Court shall be by jury. and, notwithstanding anything herein contained, in all criminal cases transferred to a High Court under this Code or under the Letters Patent of any High Court established under the Indian High Courts Act, 1861, (or the Government of India Act, 1915,) ‘(or the Government of India Act 1935), the trial may, if the High Court so directs, be by jury.
(2) The (Provincial Government), by like order, may also declare that, in the case of any district in which the trial of any offence is to be by jury, the trial of such offences shall, if the Judge, on application made to him or of his own motion so directs, be by jurors summoned form a special jury list, and may revoke or alter such order.
(3) When the accused is charged at the same trial with several offences of which some are and some are not triable by jury, he shall be tried by jury for such of those offences as are triable by jury, and by the Court of Session, with the aid of the jurors as assessors, of such of them as are not triable by jury”.
On account of such distorted, arbitrary and grossly discriminatory provisions which were decidedly in favour of the English and European accused persons and used as a privilege and concession in favour of the whites and against the non- white majority of Indians the jury trials in India was perceived as a failing of some foreign legal system rather than an advantage for the vast majority of the Indian masses. The extent of the prevalence of the jury system in the country and the category of offences to which such trials was selectively made applicable established that the same had never been adapted over a large part of the county. In its working the jury system was always perceived as an artificial transplant which was maneuvered by the English rulers to subvert a fair trial to the Indians and defeat the ends of justice. The provisions for jury trial in India with passage of time also became an escape route for English and European offenders to beat the rap i.e. (law) and get acquittals in serious criminal offences including murder against the native Indians.
Soon it was felt that the jury system in India being not an indigenous institution but an exotic growth transplanted into India by British Lawyers and jurists needs to be rejected as in its functioning it had miserably failed to prove to be useful in the Indian context. A powerful voice against the continuance of the jury system in India was raised as early as 1931 by Mahatma Gandhi who being a lawyer himself had brilliantly summed up the situation. Writing in ‘Young India’, Mahatma Gandhi had stated.
“I am unconvinced of the advantages of jury trials over those by judges. I have known juries finding prisoners guilty in the face of no evidence and even judges’ summing up to the contrary. We must not slavishly copy all that is English. In matters where absolute impartiality, calmness and ability to sift evidence and understand human nature are required, we may not replace trained judges by untrained men brought together by chance. What we must aim is an uncorruptible impartial and able judiciary right from the bottom”
The framers of the Indian Constitution accordingly, did not consider it appropriate to continue with the jury system. No constitutional right to trial by jury was provided in the constitution unlike other countries like USA, Australia and Canada. Even the earlier statutory right to a jury trial as provided under the Code of Criminal Procedure 1898 was sought to be revisited. The first law commission of Independent India was setup in 1955 and was given the task of suggesting comprehensive reforms to judicial administration in the country including measures to be taken to secure improvements and efficient working of the jury system. The law commission carried out an indepth examination of the various pros and cons of the past functioning of the jury system in India, its merits and demerits, recorded evidence and submitted a comprehensive report i.e. the 14th report of the law commission. In its report submitted in September, 1958 the law commission noted with concern as follows:-
” The survey of the extent of the prevalence of the jury system in the county and the nature of the offences to which it has been made applicable, where it prevails, indicates that it has not been adopted over a large part of the country, that its application even in areas where it has been adopted is restricted to certain classes of offences and that some States which had adopted it have decided to discontinue it.
As we have seen, the statutory right to a trial by jury which was conferred by the Criminal Procedure Code was confined to the Presidency towns where the High Courts, exercised Original Criminal Jurisdiction and it depended entirely on the Government of each province or State to decide in what areas and in respect of what offences trial by jury should be introduced in the other parts of the country. When the Constitution was framed in 1950, the Constitution-makers did not think it fit to confer on the citizen a fundamental right to trial by jury as in the United States of America. It appears that, though the system of trial by jury was introduced in some parts of the country over a hundred years age, the system has never become a recognized feature of the administration of criminal justice. Trial by jury in India to the extent it exists today is but a transplantation of a practice prevailing in England which has failed to grow and take root in this country”.
In view of its aforesaid findings the law commission in its report submitted in the year 1958 recommended ”we are convinced that the jury system in India which had such a long trial has been a failure and should be abolished”. However, it was only by way of the 41st report of the law commission submitted in September, 1969 that the government decided to finally bury the jury by recommending that all references to jury trials should be removed from the code of criminal procedure. Resultantly, in the Code of Criminal Procedure 1973 which came into force there is absolutely no reference in any chapter or section to the jury.
It needs mentioning that even in Counties where the jury system is prevalent repeated hung/deadlocked juries leading to declaration of mistrials and subsequent retrials at a huge cost has proved to be the nightmare of the government. The recent examples of Michael Slager, Ericparkar, Bill Cosby in USA is a pointer to such a trend. The OJ Simpson trial cost the US Government nine million dollars and led to huge public outcry against the jury system. As early as 1957 a feature film titled ‘Twelve Angry Men” shocked the American nation about the possible wagaries and uncertainties of the jury system.
In South Africa the jury system has been abolished in 1969 by the Abolition of Juries Act, 1969. Even in the Republic of Singapore the jury system has been abolished for all types of cases. The Architect and maker of modern Singapore Lee Kuan Yew has been prophetic in observing “I had no faith in a system that allowed the superstitions, ignorance, biases and prejudices of seven jury men to determine guilt or innocence”.
Be that as it may, in retrospect it leaves no manner of doubt that the decision of the framers of our constitution as well as our law makers to abolish the jury system lock, stock and barrel further stands vindicated.
Jana Kalyan Das is a Senior Advocate practicing in Supreme Court of India