Report No. 14
42. Trial by Jury
1. General opinion for abolition of Jury trials.-
The opinions expressed in the answers to our Questionnaire and by the witnesses examined by us were preponderatingly in favour of the abolition of trial by jury even to the extent to which it exists in certain parts of the country. There was a small section of opinion which took the view that its continuance in the Presidency towns of Calcutta, Madras and Bombay to the extent it is in force in these places was desirable. Only a few witnesses were in favour of its extension.
2. Prevalence of Jury trials.-
It is necessary first to examine the manner in which the right to a trial by jury arises in India and its extent.
In the Presidency towns.- Sections 267, 268 and 269 of the Code of Criminal Procedure constitute the statutory foundation of the right to trial by jury in India. Section 267 provides that all trials before a High Court shall be by jury. It also provides that in all criminal cases transferred to a High Court under the Criminal Procedure Code or the Letters Patent, the trial may, if the High Court so directs, be by jury. Thus, trial by jury is obligatory only in the High Courts of Calcutta, Madras and Bombay in the trial of criminal cases in the exercise of their ordinary original criminal jurisdiction. In cases transferred to themselves by the High Courts (including the High Courts in the Presidency Towns) and tried by them in the exercise of their extraordinary criminal jurisdiction, trial by jury is optional and not obligatory.
In Madras.- However, the position even in the three Presidency towns in which the High Court exercised original criminal jurisdiction has been altered by special provisions. In Madras, the Criminal Procedure Code has been amended by Madras Act XXXIV of 1955 by deleting all references to the High Court in Chapter XXIII of the Code. All criminal trials in the City of Madras now take place either before the Presidency Magistrates or the City Sessions Court.
A notification has, however, been issued under section 269 of the Criminal Procedure Code directing that the trial of certain offences in the City Sessions Court shall be by jury. They are, broadly speaking, offences against property under Chapter XVII of the Indian Penal Code. The more heinous offences are tried by the judge himself. The notification directing the trial of these offences by a jury was first brought into force in 1956 on the abolition of the original criminal jurisdiction of the High Court and has since been kept in force.
In Bombay.- The position in Bombay and Calcutta is somewhat different. In Bombay, Bombay Act XXXII of 1948 has provided that the words "or the Court of Session for Greater Bombay" be added after the words "High Court" wherever used in Chapter XXIII of the Criminal Procedure Code and Greater Bombay has been declared to be a Sessions Division. All sessions cases in Greater Bombay are tried in the City Sessions Court by jury.
In Calcutta.- In Calcutta, a City Sessions Court has been established but its jurisdiction is limited to a certain class of offences. Section 9 of the City Sessions Court Act (XX of 1953) provides that all trials before that Court shall be by Jury. Offences punishable under section 302 of the Indian Penal Code and certain other offences still continue to bd tried by the High Court. It will thus appear that a statutory right to be tried by jury exists only in the Court of Session for Greater Bombay, in the City Sessions Court of Calcutta and on the Original Side of the Calcutta High Court.
3. In the mofussil.-
Outside the three presidency towns the matter is regulated by sections 268 and 269 of the Criminal Procedure Code. Section 268 provides that all trials before a court of session shall be either by jury or by the judge himself. Section 269 empowers the State Government to order by notification in the Official Gazette that the trial of all offences or of any particular class of offences before any court of session in any district shall be by jury and that the State Government may revoke or alter such order.
At one time in the States of Madras and Bombay notifications were issued under section 269 of the Criminal Procedure Code bringing into effect trial by jury in certain areas of these States. The working of the jury system was, however, found to be unsatisfactory; and, for several years past, the system has been discontinued outside the Presidency Towns.
In the State of West Bengal, the position is, however, different. Outside the Presidency town of Calcutta the system of trial by jury obtains in twelve out of the fifteen districts of the State. The system is applicable to all offences under Chapters VIII, XI, XII, XVI, XVII (excepting offences under sections 400 and 401), XVIII and XX of the Indian Penal Code and certain other offences. It is understood that the State Government is contemplating the extension of the system to one of the three districts where it is not in force at present.
The system of trial by jury does not prevail in the States of Andhra Pradesh, Assam, Orissa, Kerala, Punjab, Rajasthan and Uttar Pradesh.
States other than those dealt with above have adopted the system partially. It prevails in ten out of the seventeen districts of the State of Bihar and the offences which are triable by jury are some of the offences against property in Chapter XVII of the Indian Penal Code. In the new State of Madhya Pradesh the system prevails only in three out of the forty-three revenue districts constituting the State and its application is restricted to certain classes of offences.
These three districts are governed in the matter of jury trial by a notification issued while they formed part of Madhya Pradesh before its reorganisation. It is understood that the Government of Madhya Pradesh is considering the abolition of jury trials in these three districts. In the reorganized State of Mysore the system of trial by jury prevails in nine out of its nineteen districts. The class of offences to which the system applied are offences against property in Chapter XVII of the Indian Penal Code.
4. Limited prevalence of jury trial.-
The above survey of the extent of the prevalence of the jury system in the country 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.
5. Jury trial not a constitutional right.-
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 ago, 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.
6. Jury trial in England.-
Even in England where the system grew out of the need for the protection of the people against arbitrary prosecution and subservient Royal judges, a large number of criminal offences are at present tried without jury. Summary offences are not triable by jury. An accused has a right to trial by jury only in the case of indictable offences; but, in a great number of them, except the more serious ones, he can ask to be tried summarily by magistrates. It appears that about eighty-five per cent. of the indictable offences are, in fact, tried summarily.
In civil litigation, trial by jury was the only form of trial in any Court of Common Law until 1854. After that date, there has been a marked decline in the popularity of trial by jury. Jury trials now take place in only two to three per cent. of the volume of litigation. It is stated that the decline is not due to the fact that the right to trial by jury has been curtailed. Even in cases in which it is open to the parties to ask for trial by jury, parties frequently prefer to have trial by the judge alone.1
1. The above information in regard to the decline of trial by jury has been taken from Trial by Jury by Sir Patrick Devlin (The Hamlyn Lectures).
7. Success in England due to special reasons.-
Notwithstanding the decline of jury trials in England, particularly in civil cases, there is still a large body of opinion in its favour. Indeed "There are many worshippers who believe that trial by jury is always the best tribunal for the trial of every question of fact."1 Perhaps trial by jury has been a success in England essentially because it is an English institution of antiquity peculiarly suited to the genius of the English people. Comparing the jury system in England with the jury system in France where it proved a failure, Sir Alfred Denning (now Lord Denning) observed: "In making these comparisons, we no doubt think our system is better but we ought always to remember that it is the system which suits the temperament of our "people.-It would not necessarily be the best system for other peoples2". The following observations of Sir Patrick Devlin in this connection are interesting:
1. Trial by Jury by Sir Patrick Devlin (The Hamlyn Lectures), p. 149.
2. Freedom under the Law by Sir Alfred Denning, p. 63 (Hamlyn Lectures).
"The English jury is not what it is because some law giver so decreed but because that is the way it has grown up. Indeed, its invention by a law giver is inconceivable. We are used to it and know that it works; if we were not, we should say that item bodies a ridiculous and impracticable idea. Consider what the idea is. Twelve (why twelve?) men and women are to be selected at random; they have never before had any experience of weighing evidence and perhaps not of applying their minds judicially to any problem; they are often, as the Common Law Commissioners of 1853 tactfully put it, 'unaccustomed to severe intellectual exercise or to protracted thought.'
The case may be an intricate one lasting some weeks and counsel may have in front of them piles of documents, of which the jury are given a few to look at. They may listen to days of oral evidence without taking notes-at least, no one expects them to take notes and no facility is provided for it in the jury-box, not even elbow room. Yet they are said to be the sole judges of all the facts. At the end of the case they are expected within an hour or two to arrive at the same conclusion. Without their unanimous verdict no man can be punished for any of the greater offences. Theoretically it ought not to be possible to successfully enforce the criminal law by such means."1
1. Devlin, Op. Cit., pp..-5.
8. Jury trial in the U.S.A.-
The early British settlers in America adopted in their home the practice of trial by jury and it later came to be embodied in the American Constitution. However, even though a right to trial by jury is conferred by the Constitution, it is frequently waived by accused persons in the United States. It is said that by reason of the wide publicity which precedes and accompanied trials, there is a real difficulty in procuring a truly impartial and unprejudiced jury. In some parts of the United States a waiver of jury trial has become common and trial by a judge is the ordinary routine. In fact "Students of criminal justice are inclined to believe that the extensive use of the waiver would, on the whole, greatly improve the efficiency of the trial process."1
1. American Legal System, Lewis Mayers, p. 169.
9. In France.-
The jury system as practised in England was tried in France for more than a century. The verdicts given by the juries were often fantastic and the system in the form in which it is in vogue in England has been abandoned since 1941. In the words of Sir Alfred Denning (now Lord Denning) "It does not work in the Latin countries with their mobile temperament, easily moved to pity or hate."1 France has now adopted a system under which lay and professional judges sit and deliberate together and arrive at a conclusion including the question of sentence by a majority vote. It is noteworthy that in no country in continental Europe there prevails today a system of trial by jury in the English form.
1. Denning, Op. Cit., p. 59.
10. Recent critics.-
The recent trend of opinion in regard to jury trials may be summarised in the following words:-
"Trial by jury has but few supporters among lawyers today, and it is indeed difficult for those familiar with its weak spots to say much in its favour. Almost its only consoling feature is the thoroughness of its decline. This process of displacing the jury by other types of criminal courts, the socalled 'correctionalization' has gone so far that in most of the larger countries only a tiny percentage of all offences are actually tried by a jury."1
1. Mannheim Criminal Justice and Social Reconstruction, p. 246.
Our task is to consider whether this exotic growth transplanted into India by British lawyers and jurists has worked well and should be continued.