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