JURY SYSTEM: Is it about time to have it back in our Legal System
As a law student I had always
been enamoured by English legal fiction in the form of John Grisham novels and
the legendary character of Perry Mason. Later on, I took a shining to Legal
Fiction shows such as Boston Legal and Suits to name a few. The two aspects
that I found most fascinating were namely, Class Action Law Suits and Trial
before a Grand Jury. I have always believed that Class Action Law Suits help
bring justice to a large number of people wronged by one entity or
organisation, while Jury Trials involve the society while adjudication wrongs
against society at large.
With a recent Akshay Kumar movie (which also won him a National Award) “Rustom”, based on one of the best criminal trials this
country has ever witnessed, the landmark Nanavati case, the focus seems to be
back on the concept of Jury Trials in India. The astonishing part is that most
people weren’t even aware that we had a Jury system in our country even post
independence.
While it is said that the
modern system of Jury trials has evolved from the Danish who introduced the
system in English Jurisprudence and the system found its place in the Magna
Carta wherein it was mentioned “Nullus liber homo capiatur, vel
imprisonetur, aut desseisetur de libero tenemento, vel libertatibus, vel
liberis consuetudinibus suis, sut utlagetur, aut exuletur, aut aliquo modo
destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale
judicium parium suorum, vel per legem terrae.” It has been translated thus
by Lysander Spooner in his Essay on the Trial by Jury: "No free man shall
be captured, and or imprisoned, or disseised of his freehold, and or of his
liberties, or of his free customs, or be outlawed, or exiled, or in any way
destroyed, nor will we proceed against him by force or proceed against him by
arms, but by the lawful judgment of his peers, and or by the law of the
land." The basic premise behind the concept of trial by jury is that since
a crime is a wrong against the society as a whole, a jury of people
representing various cross sections of the society are the correct is best
equipped to aid in dispensation of justice.
Since ancient times in India,
while the King used to be the ultimate arbiter of justice was supposed to be
well versed with the legal and religious norms, he still was aided by his
council of ministers that represented different sections of the society. Before
coming to the point as to why should we give Jury system a second chance or
even if it is feasible, a brief insight into why it was discontinued post
independence.
The trial of Nathuram Godse was
conducted in camera and a right to trial before a Jury was denied to him
fearing that it would rouse extreme emotions and the country was obliged to
keep it quiet as it was the murder case of the Father of Nation and an
immediately free and sovereign India could not have afforded the Mahatma’s
image to take a beating. For what it’s worth, Nathuram Godse’s closing
arguments have been hailed as one of the best ever in Indian legal history. The
final nail in the coffin came in the form of the famous Nanavati case wherein a
botched up trial and immense manipulation of public emotion by a Parsi
Newsletter painting the accused to be a Patriot and a wronged husband, led to
acquittal despite confession of culpable homicide by the accused while
surrendering to the authorities. In other evolved judicial systems, when such a
thing happens, it leads to mistrial and a fresh trial is
usually conducted in a different court.
However, the government decided
to pull the plug on the system. No consultations or debates were held and the
arguments furthered were that it was difficult to find a group of twelve people
who are technically equipped to aid in dispensation of justice and there is a
possibility of bias. Also, it was argued that Bramhin members of jury weren’t
required to take an oath in those times. Of almost all the material available
on the abolition of jury system, the move has been hailed as it has been almost
unanimously contended that dispensation of justice must be left to people who
are legally and technically equipped to dispense justice. However, all those
proponents of abolition of Jury system conveniently forget that the standard of
proof required is “beyond reasonable doubt” in the mind of a prudent
person not a legally qualified person.
Our legal system goes right to
Gram Panchayats and Gram Sabhas from Supreme Court. We have quasi judicial
bodies to deal with almost every aspect of departmental and ancillary issues.
We have consumer courts where the members of adjudication panel need not have
legal qualifications and their orders have the same legal sanctity as that of a
decree issued by a court under the CPC. We have Lok Adalats wherein a social
worker often forms the corum of the adjudication body and there is no appeal
from the award of the Lok Adalat. However, to give credit where it is due, the
orders of Lok Adalat only come out of consensus.
In all honesty, the whole
argument that only legally skilled people can aid in dispensation of justice
seems to be fundamentally flawed and fallacious. When members of executive dole
out judicially competent orders, why cannot a software programmer, a writer, an
educated farmer or even a doctor aid in dispensation of justice. Do any of
these people cannot be deemed to be a prudent person? Hardly seems right when
Arbitration and Conciliation Act allows any person to pass a technically
watertight award which is open to appeal only on grounds which are very
limited. I have had the misfortune of trying to explain the provisions of
Arbitration and Concilation Act to a Sole Arbitrator while she was busy
gobbling samosas on her table and she failed to get even a word of what I had
to say. By the time she passed an award, the claim against my client had gone
from a mere seventy thousand rupees to fifteen lakhs. Of course it only took
one hearing to get the order stayed, but we have allowed such people to dole
out judicial pronouncements, yet we cannot trust the citizenry of our country
to act prudently.
Just imagine how much fun it
would be on the jury adjudicating the Sheena Bora case. The lawyers would need
to get creative and perhaps show flowcharts to the jury to explain the role,
extent and involvement of various husbands of the chief accused, H1 was the
father, H2 provided with the logistics, H3 aided and abetted the offence. Jokes
apart, a lot of cases in our country would have been adjudicated differently if
a competent jury were to aid in dispensation of justice and I have outlined a
few such cases.
The Bhopal Gas Leak
Tragedy case is one case which must have been decided with the help of
a Jury Trial. Even though, the case was heard in a pseudo Class action case
manner with the State appearing as Parens Patriae on behalf of the aggrieved
people, there was significant political foul play and despite the best efforts
on part of the judiciary, the culprits were never brought to book and they got
away with giving peanuts for causing misery that continues to plague the life
of the victims across generations.
The Kehar Singh case
is another such case which has been hailed as a judicial murder by
biggest Constitutional Jurist of India, late Mr. H. M. Servai. Here was a guy
from the security contingent of the late Prime Minister Mrs. Indira Gandhi and
was on leave on the fateful day of her assassination. Even the charge of
conspiracy was not proved against him but he was convicted for murder and
hanged to death in an uncharacteristically speedy trial and even the Apex Court
confirmed the punishment with such speed which was unheard of Indian legal
circles. When the judiciary fails to show prudence, perhaps a group of common
prudent people would have helped save an innocent man’s life.
Upahar Tragedy Case is yet another case in
which the quantum of punishment and the compensation would have been
drastically different if a jury of common people were to aid in dispensation of
justice. Here we are talking a multibillion realty group which was the culprit
and innocent people had been condemned to death perhaps similar to the ones
faced in the holocaust camps.
The victim of Uber
Driver Rape case had go and sue for damages in a U.S. court because
well there a Jury of twelve people would help her get a proper compensation and
not the paltry sums provided by the State in our country because we just do not
have the mechanism and perhaps even will power to hold the service provider
accountable for its role.
Finally the Arushi
murder case. The case was botched up repeatedly by investigative agencies
at the State and Central level. It would not be an exaggeration to state that a
strong political statement had to be made and hence despite serious procedural
lapses and keeping the beyond reasonable doubt doctrine on a
shelf, a judgement was delivered placing such heavy reliance on circumstantial
evidence which is rarely seen in judicial pronouncements.
India today is different than
it was fifty years with more than half of its population under the age of
thirty five years. Literacy rate has gone much higher as has the awareness
level. If we want to bring accountability to our judicial system, we need to
make the citizenry aware of their civic duties in dispensation and the same
will automatically increase the legal awareness and legal responsibility among
the masses. There are rules to prevent against jury tampering and manipulation
and such safeguards must be in place. One argument is always given against such
a system is that due to overexposure by media; the jury pool gets tainted very
easily. Over exposure by media is a reality the world over and the western
countries have coped with the same and so can we.
It’s high time we start trusting and make the educated citizenry of our country
an integral part of our justice dispensation rather than letting illiterate
rogues pass dictatorial orders in Khap Panchayats and get away with them.
Unless we make people a part of the Judicial System and decision making, it
would be very difficult restore the fading faith of people in the Judicial
System. Finally, the added incentive would be that the quality of advocacy and
pleadings would become better because we will have to improve our skills to
make things simple, after all the most complex problems are solved not by
keeping them complex, but by simplifying them.
Advocate Akash Sinha
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