Report No. 14
11. The case for the Jury (A palladium of liberty).-
Those advocating the continuance of the system have relief on its successful working in England and have particularly emphasized the reference to the jury as a palladium of justice and liberty by Blackstone and other English writers. They point out that in England, the jury has served as a check on the arbitrary power of the Crown and assured to the individual his life and liberty against encroachments by the executive. The success of the system in England has, it appears to us, not much relevance because, what may suit English conditions and the English character may not work satisfactorily in India. Nor has the historical aspect of the jury having served as a protection to the citizen against the exercise of arbitrary powers by the Crown any significance in the present conditions in India.
Checks unjustified acquittals.- It has also been suggested that the practice of the jury system on a more extensive scale in this country will control and reduce the number of the unjustified acquittals by criminal courts which are said to be on the increase. It is said that a judge has to give considered reasons for convicting the accused and that, when he is unable to give such reasons, the appellate courts set aside the conviction. But the jury is not required to give reasons for their verdict and their general good sense will not allow crime to go unpunished merely because there are discrepancies in the evidence or because a plausible defence has been raised. In our view, this reasoning proceeds upon a misunderstanding of the judicial function and ignores actual experience of jury trials which are said to have resulted, as pointed out later, in failures of justice including erroneous acquittals.
No doubt, the system of trial by jury has the advantage of associating the public with the administration of criminal justice and it serves to inculcate in the citizen a sense of duty and responsibility and a respect for the majesty of the law. The system must, however, be judged mainly by the extent to which it works efficiently. Its main purpose is the dispensation of justice. If it fails to serve that purpose, its continuance cannot be supported for other reasons.
12. Rights of appeal in Jury cases restricted.-
Broadly speaking, an accused person convicted by a court of session on a trial by jury has only a limited right of appeal. Section 418 of the Criminal Procedure Code which permits an appeal on a matter of fact as well as on a matter of law expressly bars an appeal on questions of fact where the trial has been by jury. It follows, therefore, that generally speaking, in the case of trials by jury, questions of fact cannot be agitated before the appellate court. The court of appeal would, in such cases, have to decide whether the verdict of the jury is erroneous owing to a misdirection by the judge or by a misunderstanding on the part of the jury of the law laid down by the judge.
We may refer in this connection to section 537 of the Criminal Procedure Code which provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on the ground of any misdirection in any charge to a jury unless such misdirection has in fact occasioned a failure of justice. The rights of a person convicted in a jury trial in the High Court are somewhat different and larger by reason of the amendment of the Criminal Procedure Code by Act XXVI of 1943.
Under section 411A the convicted person has a right to appeal from a judgment of the High Court in its original criminal jurisdiction on any ground which involves a matter of law only or with the leave of the appellate court or upon the certificate of the trial judge on a matter of fact or on any other ground which appears to the appellate court to be a sufficient ground of appeal. The amendment also empowers State Governments to prefer appeals from orders of acquittals passed by the High Court in its ordinary original criminal jurisdiction subject to the same restrictions as in an appeal against a conviction. The only High Court in which appeals would lie under this amendment is the High Court of Calcutta which alone tried offences in the exercise of its ordinary original criminal jurisdiction.
Contrasted with the restricted rights of appeal mentioned above, a full appeal would be available to an accused person tried by a court of session without a jury. It has been urged that the extended right of appeal which the accused would have in cases tried by the judge himself particularly in trials involving complicated questions of fact is a valuable right which would be denied in cases tried by jury where the verdict of a certain number of persons arrived at without a judicial examination of the evidence would bar an appeal by the accused on the questions of fact.
13. Jury trials-Time consuming.-
It may also be pointed out that a trial by jury invariably takes a longer time than a trial by the judge alone. The proceedings have to be conducted at a slower pace to enable the jury to understand the evidence and follow its sequence. Arguments of counsel have to be longer in order that the issues of fact and law may be put in a simple and clear manner to the jury. Further, the judge has to sum up the case to the jury.
The summing up has necessarily to be very carefully drawn and in some cases, written out in advance and then read out to the jury. In cases where the charge has not been written out in advance, the judge will have to reduce the heads of charge later into writing. All these steps result in making a trial by jury a time-consuming process, and this is a point of view of considerable importance when the courts are burdened with heavy arrears. It is needless to point out that the greater amount of time taken by a jury trial necessarily means greater expense to the State.
14. The True Test-"Fair Trial" (Actual working unsatisfactory) (In Bihar).-
It appears to us that a justification for the retention of the jury system on abstract and theoretical considerations is beside the point. The true test to be applied in determining whether the system should continue is to examine how it has worked. The Bihar Jury Committee has rightly pointed out, "that the real justification for the system, in any scheme of administration of justice, must be found in its actual working in the prevailing conditions, its practical result rather than in abstract considerations as to the value of a right to trial by jury.
In the ultimate analysis, the test must be a 'fairness of trial'-independent, impartial and just-and how far, in its practical working, the system ensures justice in its true sense."1 Judged by this test, the institution of trial by jury which has prevailed in some areas of the country for over a century has clearly failed. Opinions that have poured in from every quarter are united in their strong condemnation of the system of trial by jury as it prevails today. There have been expressions of judicial opinion on the subject which have found their way into the Law Reports. The Acting Chief Justice of Bihar, while disposing of a jury reference stated as follows:-
1. Report of the Jury Committee, Bihar, 1952, p. 2.
"The unsatisfactory manner in which the system is working is notorious and all those connected with the administration of criminal justice in the country must know of numerous cases of miscarriage of justice."1
1. Per Meredith, Ag. C.J., King v. Baldeo, 29 Pat 228 (234).
In U.P.- Similar views have been expressed by other bodies that have gone into the question. Thus, as regards Uttar Pradesh, the Wanchoo Committee pointed out that a large majority of the witnesses before it was in favour of the abolition of the jury system and that even in the few districts in which the system was working it had not been a success. The general complaint before the Committee was that jurymen were "open to approach"1 and did not give a fair verdict. The Committee recommended the abolition of this system and the repeal of all sections of the Criminal Procedure Code relating to trial by jury stating that "This Committee strongly feels that trial in Sessions Courts should be by the Judge alone."2 This recommendation was accepted and trial by jury was abolished in that State with effect from the 15th October, 1953.
1. Report of the Uttar Pradesh Judicial Reforms Committee, 1950-51, Vol. 1, p. 54.
2. Ibid., p. 55.
In Bombay.- The Bombay Government seemed to have experienced similar difficulties in the working of this system. It was found difficult to find jurors of the right type even in the advanced districts and such jurors as were available were shown to be easily approachable and moved by extra-judicial considerations. These factors and the expense and delay occasioned by jury trials led that Government to abolish trial by jury outside Greater Bombay. The Bihar Committee referred to above went exhaustively into the working of the jury system in that State for a long period and expressed its conclusion as follows:
"The Committee has been impressed by the almost (sic) consensus of opinion that the system of trial by jury has in actual practice resulted in unsatisfactory verdicts-sometimes even in miscarriage of justice-in the prevailing conditions of selection of jurors. Therefore, it recommends that serious offences shall not be triable by jury, until the full effect of the recommendations made in this report is known."1
1. Report of the Uttar Pradesh Judicial Reforms Committee, 1950-51, Vol. 1, p. 8, Op. Cit.
Among the recommendations of the Committee were those relating to the proper selection of jurors.
15. Professional Jurors.-
The Bihar Committee was satisfied that "a number of persons have made it almost a profession to get themselves chosen as jurors for the sake of the remuneration and also the illegal gratification which some of them expect to get."1
1. Report of the Uttar Pradesh Judicial Reforms Committee, 1950-51, Vol. 1, p. 9.
16. Evidence against Jury system.-
This evil of unscrupulous professional jurors was mentioned to us by some of the witnesses who gave evidence before us. It is obvious that such a state of affairs must render trial by jury almost a mockery and seriously affect the administration of criminal justice. As stated before, the opinions expressed to us whether by judges or by lawyers on the whole took the view that the system has worked unsatisfactorily excepting in the Presidency towns of Calcutta, Madras and Bombay. Even in regard to the continuance of the system in these Presidency towns, counsel with considerable experience of criminal work in the cities of Bombay and Calcutta favoured its abolition. We also understand that the High Court of Bombay has recently recommended to the State Government the abolition of the system of trial by jury even in Greater Bombay.
17. views of Mahatma Gandhi.-
A powerful voice against the continuance of the jury system in India was raised as far back as 1931. Writing in 'Young India', Mahatma Gandhi 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 at is an uncorruptible, impartial and able judiciary right from the bottom."1
1. Issue of 27th August, 1931.
18. Abolition recommended.-
For the reasons mentioned above, we are convinced that the jury system in India which has had such a long trial has been a failure and should be abolished. In view of the conclusion reached by us, we do not propose to recommend measures with a view to secure its improvement and efficient working.