Some Notes on the 'Inherent Powers' Clause in Indian Criminal Procedure

Most people unfamiliar with law do not believe that the bulk of criminal litigation facing most High Courts is not complex appeals but various petitions filed under Section 482 of the Criminal Procedure Code, 1973 [Cr.P.C.] — which was earlier Section 561-A of the 1898 Code, and is now Section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS]. This clause, bearing a marginal heading 'Saving of Inherent Powers of High Courts', recognises that nothing in the statute can abridge the inherent powers of High Courts to pass orders for preventing the abuse of process of any court or for securing the ends of justice. 

The breadth of the heading is an indicator of the vast variety of reliefs that are sought by litigants through this clause. They range from petitions challenging police action challenging registration of cases, issuance of notices, seizure of property etc., to petitions challenging judicial orders of all hues. A sense of this dizzying breadth of inherent powers jurisdiction can be gained by turning to any standard commentary on the criminal procedure code.

This post is not a mini commentary on Section 482 Cr.P.C. / Section 528 BNSS. It is just some notes on this most interesting of clauses.

Genesis of the Clause and its Initial Days

Recently, a petition was filed before the Delhi High Court challenging an order discharging all the accused persons in the highly publicised case involving a former Chief Minister of Delhi, amongst others. Besides this challenge to the finding on discharge, a separate petition was filed which asked for expunging remarks that were made by the court against an investigating agency. 

Today, nobody doubts that such a petition can be filed, and that a High Court can direct expunction of the remarks. But it was a controversy over precisely this issue which led to the inherent powers clause being added to the 1898 Cr.P.C. The issue arose because the Allahabad High Court held in 1922 that there was no clause within the procedure code which conferred any power to expunge remarks when an aggrieved Station Master from Benaras had filed a revision petition against an order carrying unflattering remarks about how the Station Master had discharged his duties. As it so happened, the Colonial Government was in the midst of considering revisions to the Cr.P.C. at the time. This experience prompted adding another clause to the proposed amendments, which became Section 561-A of the 1898 Code in 1923 [see pg. 1199 here].

Looking at the legal commentaries from 1925 till around India's independence [pg. 1199-1200 here, pg. 1301 here, pg. 202-203 here, pg. 415-416 here]. The commentary is barely more than a couple of pages across these books spanning the first 20 years. It seems that the initial significant development was to recognise that this clause conferred no new powers upon the High Court but those which had always existed. The contours of what were these powers got determined on a case to case basis, as litigants tried their luck. Thus, a petition seeking directions to block access to a bank account got rejected as there were parallel civil remedies for this, but a petition seeking quashing of judicial proceedings at an interlocutory stage was accepted. The plea to quash proceedings at an interlocutory stage by inviting the High Court to decide whether there were any merits in the allegation was seen as an exercise of its powers to secure ends of justice. To permit continuation of proceedings where no case existed was seen as running a "mock trial" which defeated the ends of justice. 

What about a stage anterior to legal proceedings instituted in a court; could a petition be filed to quash a case still being investigated by police? This led to perhaps the most famous, and important, decision on Section 561-A prior to independence; the 1944 opinion of the Privy Council in Nazir Ahmed (for more about the litigation itself, see here). While the Privy Council reiterated that the clause gives no new powers and held that the order quashing an ongoing investigation was improper in the facts of that case, it simultaneously implied that quashing of cases where no offence is disclosed would be proper. 

The Story after Independence 

One can say that the trial-and-error approaching has continued post independence, and that after a specific point in time the novelty of petitions grew thin. The categories in commentaries such as the AIR Manual flesh out and then have remained more-or-less similar over time. Our interest shifts to considering how did courts exercised this power while dealing with the categories of cases. Also, the changes to legal practice surrounding inherent powers brought about by a new Criminal Procedure Code coming in 1973. 

On the exercise of this jurisdiction, the post-independence judiciary largely struck the same notes, and it held that the inherent powers clause did not confer new powers and it should be resorted to sparingly. One might argue that there has been some dilution of the limitation in respect of entertaining petitions for which other remedies may be available as well as using powers seemingly contrary to other provisions of the Code. For instance, the Supreme Court in 2016 has affirmed that an alternate remedy of revision does not prohibit institution of petitions invoking the inherent powers clause. It has also held that identification of only some offences as compoundable within the criminal procedure code does not prevent the closure of cases on settlement basis invoking the inherent powers clause.   

In the specific context of quashing investigations, the Supreme Court developed upon the principles that had been indicated in Nazir Ahmed. A good example of this was the 1960 decision in R.P. Kapur where the Supreme Court illustratively identified cases in which it would be justified to quash investigations, and we see that litigants relied upon the judgment across High Courts (as also the Supreme Court) thereafter with varying degrees of success. The further crystallisation of law in 1990 with Bhajan Lal (and expansion of the quashing of FIR power) which is liberally cited today can be traced back to the first steps taken by the Court in R.P. Kapur. 

Despite the greater affirmation of powers to close cases at an interlocutory stage, and recognition of some new kinds of inherent powers, one gets a sense that the total volume of petitions under Section 561-A was still manageable during the life of the 1898 Code. Especially, compared to numbers we get on databases after the 1980s. One thing that changed was the scope of revisional powers being whittled down in the new Cr.P.C. which was introduced in 1973. Earlier, a revision petition could be filed against any order. It is for this reason that older cases find a reference to both the inherent powers clause as well as the revisional powers clause in the same petition. The 1973 Cr.P.C. limited the scope of revisional powers and excluded any interlocutory order from the scope of revisional jurisdiction. Limiting the scope of revision mean that the litigant now only had one remedy against those orders — inherent powers.

The above explanation only gives a partial answer to the increase in litigation seen invoking the inherent powers clause after the 1973 Code. I wonder whether there are other reasons as well, such as new kinds of offences which were brought on to the statute book after 1973 and also situational factors such as delays in final adjudication of cases. Perhaps it is of no coincidence that the spike in quashing cases tallies with the introduction of Section 498A on the Indian Penal Code, and the Supreme Court's recognition of criminal liability for retaining stridhan. All of which occurred together with steady increase in judicial delays that have marked the decades since the introduction of the 1973 Cr.P.C. [discussed elsewhere].  

Is the 'Inherent Powers' Clause a Problem?          

Section 561-A was added to address a specific problem — recognising that the Cr.P.C. was not exhaustive, and preventing situations resulting in injustice because courts had refrained from exercising powers which even the government thought that they had. One wonders, though, whether the clause which was initially seen as a stopgap measure has itself become a problem over time. 

Litigants resort to the inherent powers clause to either challenge police action or judicial action. With the express recognition of writs under the Constitution in 1950, courts now had clear and established powers against executive action. In fact, there were decisions after 1950 recognising writ power to seek quashing of an FIR as well. In some cases against police actions like registration of an FIR, there was an invocation of Article 226 as well as Section 561-A / Section 482 of the Code. In respect of judicial action too, there came Article 227 of the Constitution which gave powers to a High Court concerning administration of justice in subordinate courts. Which then begets the question — why continue with the inherent powers clause when there was now an apparently clear remedy in law for the same action?

I also want to flag a different point. Since 1923, we have now had two full revisions (includes one revision and renaming) of the code of criminal procedure. There were also the significant revisions in 1955. During this time, the flow of litigation invoking the inherent powers clause solidified into some distinct areas. It shows to any reasonable person that some areas were unaddressed by existing provisions of the criminal procedure code, prompting invocation of the inherent powers clause. If it is so clear, why not add specific provisions to the criminal procedure code if you are going about amending it? Not only would it benefit litigants, it might even reduce the mountain of miscellaneous work brought upon High Courts because of the inherent powers clause. 

Perhaps, if the next round of revisions to the criminal procedure law has a meaningful consultation process — defined as consultations not conducted only through submission of online forms the outcome of which is not determined by secret reports not been published even two years after the law was passed — some of these issues could be discussed and considered as well to improve the administration of justice and reduce the abuse of process of law.

Guest Post: 'Complaint Cases' as Scheduled Offences under the PMLA

(This is a Guest Post by Sandeep Dash)

On 16.12.2025, a Court of the Special Judge, PMLA, in Rouse Avenue Courts, Delhi, passed a detailed order refusing to take cognizance of the Prosecution Complaint (‘PC’) under provisions of the Prevention of Money Laundering Act, 2002 (‘PMLA’) by the Enforcement Directorate (‘ED’) in the National Herald case.

The investigation and PC in the case stemmed from an order by the Court of a Metropolitan Magistrate taking cognizance of offences on a ‘private complaint’ by Dr. Subramanian Swamy against Sonia Gandhi, Rahul Gandhi and others alleging commission of offences under Sections 403, 406 & 420 read with Section 120B of the IPC, 1860. The details of the allegations in the said complaint are secondary to the present discussion.

During the pre-cognizance hearing (introduced under the BNSS), the proposed accused argued against maintainability of the PC, arguing that the ED had no jurisdiction to commence investigation under the PMLA in the absence of a First Information Report (‘FIR’) for the scheduled offence. Since the scheduled offence was based only on a complaint filed by a ‘private person’ under Section 200 Criminal Procedure Code 1973, it failed to meet the threshold requirement of an ‘FIR’ to initiate investigation and prosecution. On the contrary, the ED argued that PC was maintainable, as the scheduled offence could arise under three situations – either from a FIR, or a statutory complaint by a public servant or a private complaint.

The Court’s order hinges on the determination of a question of law that it frames early in the order – whether the registration of a FIR for the scheduled offence is a threshold requirement for investigation and consequent prosecution under the PMLA? Answering in the affirmative, the court reasoned that the ‘investigative potential of a FIR’ was much more than a ‘complaint’. In the facts of the case, I agree with the decision of the court. However, by framing the issue only around the necessity of an FIR, the court created an impression that an FIR is the only condition under which investigation and prosecution under the PMLA can be initiated.

I argue that a more general line of enquiry, with the question formulated as – ‘what is a threshold requirement for investigation and consequent prosecution under the PMLA?’ yields more appropriate answers to the when a scheduled offence is said to have been committed for triggering a PMLA investigation. In this, I argue firstly, that while it is correct that institutional investigation is a sine qua non for triggering PMLA investigation, the same can be done through ‘complaint cases’ and not necessarily only through FIRs; and secondly, that the law laid down in Vijay Madanlal Chaudhary indicates additional safeguards in such non-FIR scheduled offences.

The law on money laundering, as it is now understood in India, is hinged upon two key concepts – the ‘scheduled offence’ and ‘proceeds of crime’. Money laundering is variously described to be a ‘piggy-backing’ offence; others have called it a ‘parasitic’ and ‘dependent’ offence. What this means is that an offence of money laundering can come into the picture if and only if another offence has already taken place. This latter offence is called a ‘Scheduled Offence’, and ought to be one or more from among the various offences listed in the Schedule to the PMLA.

For instance, for laundering murder ransom money, the commission of murder is a prerequisite. The offence of ‘murder’ then becomes the ‘Scheduled Offence’ and the ransom ‘derived and obtained’ by committing this ‘Scheduled Offence’ becomes ‘Proceeds of Crime’. As soon as any dealing is done with these ‘Proceeds of Crime’ (handling, concealing, transferring, transforming, etc.), an offence under the PMLA can be said to be made out. What that means is that you may not have murdered anybody, and hence, will not be liable for the offence of murder u/s 302 of the Indian Penal Code, 1860 (S. 101 of the Bharatiya Nyaya Sanhita, 2023), but still be liable for helping move the ransom money under Section 3 of the PMLA.

For the purpose of the PMLA, when is a scheduled offence said to have been committed? Can it be said to have been committed at the moment of its actual physical commission, as in when the murderer’s axe lands on the neck of the victim, and he dies? Or can it be said to have been committed when the law is set in motion against such a murderer, as in his arrest or the making of a complaint about the murder by an eyewitness, or registration of an FIR? Or, further still, can it be said to have been committed when the issue is investigated by the police, and a formal charge is filed before the court?

Answering this question is key to understanding and answering the question facing us – at which stage can the ED jump in and initiate proceedings under the PMLA? Can it initiate PMLA proceedings, when –

1. Though a ‘Scheduled Offence’ has been committed, it has neither been reported nor investigated.
2. Though not investigated, it has been reported.
3. It has been investigated, and the perpetrator has been formally accused.

The bare statute of PMLA is not very helpful in answering this question. However, some help came in the form of Paragraph 31 in Vijay Madanlal Chaudhary: “The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression “derived or obtained” is indicative of criminal activity relating to a scheduled offence already accomplished. Similarly, in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/her, there can be no action for money-laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence.”

What we see in these paragraphs is some narrowing down of the situations when the ED can exercise the full range of its powers. Two situations emerge:

• A scheduled offence has been committed, and the said offence is registered with the jurisdictional police, i.e., an FIR under Section 154 Cr.P.C.OR
• A scheduled offence has been committed, and it is pending inquiry/trial by way of a Complaint (There is a 3rd, very important situation where the ED may jump in to a limited extent, i.e., through disclosure u/s 66(2) of PMLA, which is beyond the scope of this discussion).

Situation (i) is straightforward, and the registration of a FIR is enough for the ED to get going. This is not disputed by anybody. Situation (ii) is the tricky bit, and it is essential to understand what the words ‘Complaint’ and ‘pending inquiry’ mean here. First, what is a ‘Complaint’? Under the criminal procedure in India, the criminal law can generally be set in motion either through the police/other Law Enforcement agencies competent to file Final Reports u/s 173 Cr.P.C. or by way of complaints, made directly to the Magistrate u/s 200. We are not concerned about the police here, but rather with the route of ‘complaint’.

These complaints can be made by two kinds of persons: firstly, by private persons and secondly, by certain authorities. In case of private persons, for instance, anyone may initiate criminal proceedings by filing a ‘private complaint’ before the Magistrate, who can then either order the registration of an FIR and investigation by the police, or may take cognizance and proceed for a trial based on the material in the complaint itself. This latter route is the way that Dr. Subramaniam Swamy’s complaint came to be.

Would such a complaint, disclosing offences mentioned in the schedule to the PMLA, confer jurisdiction to the ED? Would that not mean that a complaint filed by anybody (which includes a ‘nobody’) can become the basis for subsequent action by the ED? Dr. Subramaniam Swamy perhaps has nothing to do with the National Herald, and in that sense, is not even a ‘victim’. Can such complaints, often political, be enough for the ED to move in? Will it not be an affront to justice if anybody and everybody is handed the power to potentially become the architect of a money laundering investigation?

These are legitimate questions; however, the court’s order does not venture into this territory of enquiry. Instead, it looks at the bare statute of PMLA and accompanying rules. The first proviso to Section 5(1) of the PMLA in the context of a provisional attachment order says that – “Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country”

Reading this (this is the only remaining place in the entire act, where this issue finds mention) suggests that it is only the complaints filed by the authorities investigating under the respective offences mentioned in the schedule that can be the basis of action by the ED. A similar provision is part of Rule 3(2) of the Prevention of Money-Laundering (Forms, Search and Seizure or Freezing and Manner of Forwarding the reasons and Material to the Adjudicating Authority, Impounding and the period of Retention) Rules, 2005.

A contextual reading of the order, where it interprets Vijay Madanlal Chaudhary, does reveal that the court was cognizant of the possibility of such non-FIR-based scheduled offences (See Para 151 of the order). However, the restrictive framing of the question prevented the court from delving deep into why it is only the kind of private ‘complaint’ case filed by Dr. Subramaniam Swamy that fails to meet the threshold for the ED to investigate, and not all complaint cases in general.

In the order, the court misattributes wide investigative powers (arrest, search, recording of statements, etc.) only to an Investigating Officer investigating under an FIR. The discussion by the court gives an impression of a blanket exclusion of complaint cases. But if that is the case, how would non-IPC offences, which are part of the schedule to the PMLA, but require no FIR for investigation, and are prosecuted through ‘complaints’ under Section 200 Cr.P.C., trigger a PMLA investigation?

An illustrative list of offences in the schedule that are investigated by ‘authorities’ other than police, and prosecuted by way of ‘complaints’, is useful:

Sr. No.	Act in the PMLA Schedule	Offences in the Schedule	Investigative Authorities	Empowering Section
1.	Environment Protection Act, 1986	Section 15 r/w 7 and Section 15 r/w 8	Several officers, including the District Collector, Secretary to the Ministry/Department of Environment, the Seed Inspector, Officers in the Central & State Pollution Control Boards, etc.	Section 19 r/w Notification No. S.O. 394(E), published in Gazette No. 185, dt.16.4.1987 & further amendments
2.	Customs Act, 1962	Section 135	Officers of the Customs Department	Section 137
3.	Securities and Exchange Board of India Act, 1992	Section 12A r/w 24	Securities and Exchange Board of India	Section 26 r/w 2(1)(a)
4.	Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015	51	Income Tax Department	Section 55

 

Note that many of these authorities can also exercise powers of arrest, search, and seizure, recording of statements, collection of specimens, etc., under their respective special laws, despite not being ‘police’. A cumulative reading of the statute, the schedule and the law laid down by the Supreme Court in Vijay Madanlal Chaudhary points to the fact that not all scheduled offences arising out of complaint cases are out of bounds for the ED. Complaint cases by persons authorized to investigate those offences, where there is no provision for an ‘FIR’ can be the basis for investigation by the ED.

Insofar as a ‘complaint case’ by a private person is concerned, the court was right in its order to hold that it cannot be the basis for action by the ED. Apart from the reasons discussed above, there are other logistical and ethical reasons for not allowing something like this. From the perspective of the state, collusive and weak complaints are often filed to defeat a genuine complaint, which would then defeat the PMLA case. From the perspective of the accused, as is the situation in the present case, Mr. Swamy allegedly delaying the trial in the complaint case, thereby also potentially compromising the progress of the PMLA case, is also a case in point.

The second leg of my argument is that in complaint cases, the ED cannot investigate until the court before which the complaint has been filed by the concerned authority has taken cognizance of the complaint. There are two legs to this argument. The first needs us to understand what the phrase ‘pending inquiry’ used above in Paragraph 31 in Vijay Madanlal Chaudhary. I argue that the stage of inquiry in a Complaint case is always post-cognisance by a magistrate, in terms of the ratio laid down by the Hon’ble Supreme Court in Rameshbhai Pandurao Hedau & Pradeep S. Wodeyar. In fact, in most places, complaint cases are not formally registered/numbered till the court has taken cognizance of the case. Dr. Abhishek Manu Singhvi, in an election affidavit filed before getting elected to the Rajya Sabha, gave a glimpse into this practice. The image is attached below.

This means that the ED, in case the scheduled offence is not registered by way of a FIR/Chargesheet but rather, a ‘Complaint pending inquiry’ filed by a person authorized to investigate that offence, can exercise jurisdiction if and only if the magistrate/court has taken cognizance of such a complaint. Where no cognizance has been taken in a complaint case, the ED cannot prosecute, as it would have no locus to investigate the case.

There is also a logical answer to why cognizance is important in ‘complaint cases’. Time and again, the highest courts of the country have decisively held that there ought to be a judicial application of mind before passing an order of cognizance. The summoning of an accused in a criminal trial is a serious matter, which must be done after a thorough examination of the evidence, both oral and documentary. A summoning order can be passed only after providing cogent reasons – this position of law was most recently reiterated and summarized by the Supreme Court in JM Laboratories. 

In complaint cases, this threshold must be strictly enforced. The reason is simple – investigations by the police are technically supposed to be monitored by the area magistrate where the police station falls, and thus, at least theoretically, the investigation is judicially monitored. In complaint cases, even by authorities, no such monitoring exists, and thus, greater scrutiny is warranted.

Coming to grips with the BNSS on matters of Custodial Remand

One of the more significant changes to Indian criminal procedure brought about by the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] is the regime governing remands to police custody during an ongoing investigation. 

As those familiar with the legal regime may know, Section 167(2) of the erstwhile Criminal Procedure Code, 1973 [Cr.P.C.] had been read by courts as casting two rules: (1) permitting a maximum 15 days of police custody remand during investigation (found clearly within the statute) and (2) allowing this remand to be granted only in the first fifteen days after an arrest. The BNSS has retained rule (1), and modified rule (2). Section 187 of the BNSS now permits the 15 days of police custody to be sought at any point of time within the first forty or sixty days of arrest, depending on the severity of an offence.

I'm not interested in the debates about whether this relaxation of the first fifteen days rule is good policy or bad. Instead, I wanted to flag an issue of some practical relevance arising from the changes to this regime, which has received surprisingly little attention. This is the impact on legal strategy for opposing remand and seeking bail, and pre-trial custody more generally.

Police custody remand is widely understood and accepted as being the critical investigative step in cases. It allows police practically unregulated and unhindered access to an accused for questioning in a coercive setting — since lawyers aren't permitted to participate in the questioning process. The outcome of police custody is often a confession of some sort, which leads to further clues. Usually, requests for such custody would be granted for short periods — so if police ask for a week, they normally get 3 days in which they get done whatever is needed, and come back to ask for more custody if needed.

Because of the importance wielded by police custody remand, lawyers in the grand-old Cr.P.C. days would not file for bail in serious crimes till it was clear that police custody remand was over. In most cases, this meant waiting out the first fifteen days period, and then moving for bail, because even if police had not sought police custody for that entire period, they could no longer seek such custody due to the first fifteen day rule. Courts also understood this logic and it would be an active consideration for deciding bails — if no further police custody remand was possible, it was understood that further pre-trial custody had no real investigative purpose. 

Now, though, police custody can theoretically be sought for and granted at any time till forty or sixty days of an arrest. For an rational investigator, it would make sense to not exhaust the total police custody period in the first fifteen days. This places both judges and lawyers in a bind, because now you cannot reasonably argue that there is no investigative purpose for further custody till forty or sixty days after an arrest.

How will this play out in the medium to long term? Custody periods may lengthen; some guidance may come from appellate courts on how magistrates should treat requests for police custody made belatedly, It may well not lead to any change at all, as police may rarely, if ever, ask for that period of remand that they may have been left with.        

Postscript: Three takeaways from the Story of Jury Trials in India

Before moving on to other things in the present, I thought the series on jury trials could do with a finishing touch. This postscript tries to contextualise and organise thoughts around the decade-long story that was retold across four posts; areas where this story can be useful for scholars in India as well as abroad looking to draw connections. I have tried to narrow this down to three takeaways: (i) lay participation in criminal law, (ii) searching for principles in the criminal process, and (iii) strategies of criminal justice reforms.

Lay Participation in the Process

A theme in the evolution of jury trials from antiquity till the 1950s has been the growing emphasis placed upon truly democratising and opening up the jury. From being comprised of landed elites and others having special knowledge about the area and its people, by 1950 the law in England and across many states in USA permitted almost anyone to serve on the jury. This shift in the law and perceived opening up of the criminal process saw contemporary debates about the value of lay participation in the process, and it has also been a focus of scholarly inquiry later [See, here, here, and here, for instance].  

British administrators, and later legislators, introduced the jury convinced of its relative benefits. But the worry about not having the right kind of people for this job was ever-present for the 100 or so years in which jury trials were seen in different parts of the subcontinent during various phases of colonial rule. It led to restrictive jury lists, where till the 20th Century no 'native' Indian was allowed to serve, and the opening up of jury lists still only letting in those with property and high educational qualifications. The limits on the use of juries, as well as participation in them, was one more argument in the quiver of the nationalist movement's case to demonstrate inequality under colonial laws.

You would imagine that independence, and specifically adoption of universal adult franchise as the model for a new republican state, would lead to radical enfranchisement in the jury process. As we have already seen, though, independence did not lead to any such change in attitudes. In fact, not having the right kind of people for running jury trials was one of the strongest, if not the strongest, point taken for abolishing them. The loudest voices in the room making these noises about bad jurors were usually not legislators, but lawyers and judges, who repeatedly highlighted the unique expertise demanded for administering law which was just not available with ordinary Indians.

The arguments against jurors were mostly emotive and, quite often, purely elitist. Simply put, it often reduced itself to the uneducated and illiterate person — by far a majority in 1950 — being unable to keep pace with the law's technical workings. But the entire history of juries stood as proof that the ordinary person could very often deliver justice in spite of these hindrances. And their position as laypersons gave them a unique ability to cut through the law's mirage at times, especially in police cases where a tutored witness could be identified. The available data of the time also showed as much — statistics gathered in 1953 by the Home Ministry at the insistence of Dr. Katju suggested that verdicts in bench trials were overturned as frequently, if not slightly more frequently, than in jury trials. 

By couching their argument in a point about expertise and unique ability, the lawyers and judges critical of jury trials were perhaps trying to downplay their inability to adequately simplify cases for juries to aid their decision-making. A key component of jury trials was the judge's instruction to the jury about the case: summarising the facts and explaining the law. Very often in appeal we saw that High Courts while overturning verdicts did so not because of jury incompetence but because of judicial incompetence in giving a proper instruction to the jurors about the points of law. The infamous Nanavati case was no exception. But because the official voices were often the only voices in consultations, the point about bad jurors went uncontroverted.

Which then brings up the point about jurors from a political standpoint. Why is it that a country which broke all convention and invested the populace with universal adult franchise was willing to distrust the same populace with having any role in administering the state? Perhaps, here we see a schism between periodically electing persons to positions of power, and directly holding state power accountable. This would tie in with theories about how independence and adoption of a constitution did not really alter the "conversation with power" in India. The preference still being structures which allowed the state machinery run by expert technocrats to do its own thing without meddlesome interference by the ordinary untrained man on the street.

Finding a Purpose in the Criminal Process

The discussion about jury trials was part of a much larger debate in the 1950s about the criminal process. What purposes would guide it, what values would inform it, and so on. After the initial spurt, though, we saw that the conversation turned its back on anything too radical, and settled on just one principle for the time being: Maximising Efficiency.     

One can argue that efficiency has been the only constant principle linking criminal law making before and after independence. The East India Company Regulations were driven by a spirit of efficient governance. Codification had efficiency at its heart. And a post-independence India bent on achieving social transformation had no patience for slow laws. 

The criminal procedure amendments of 1955 were run almost with a single-minded objective of making trials faster and the conversation around juries was also, quite naturally, affected by this perspective. Running the bad jurors argument a close race as the leading cause to remove jury trials was the point about this process being inefficient and hopelessly expensive.

But, is this a good argument or principle? Efficiency as a principle in organising legal process has been the subject of in-depth study in other parts of the world because more and more countries have turned to efficiency as the reason for changing parts of the criminal process [for example, here]. Quite often, lost at the altar of efficiency were the procedural protections meant to ensure fairness to persons standing trial. The jury trial, that 'palladium' of liberty, is the classic procedural protection serving this purpose, and scholars have demonstrated globally how it has been gradually eroded on account of efficiency and what this means for ideas of justice and fair adjudication in the criminal process. 

The story about the jury in India shows that this is a topic of interest even for our jurisdiction, and one that deserves greater scrutiny going ahead.  

Strategies of Reforming Criminal Justice

Lastly, I think the jury episode is also interesting from the point of view of reforms in the criminal process; a topic of contemporary relevance in India (and abroad too). In arguing for removal of jury trials - or even assessor-aided trials - from the statute book, what were the mechanics of the removal itself by the legislators? Most of them were content to remove the relevant clauses from the code, and that was that. This approach of viewing the criminal process as a modular setup is how most reforms had been carried out in the past, and arguably continue to be carried out in the present as well. Remove what you don't like (jury trials), and strap on new parts which you have a fancy for (plea bargaining).

A modular approach to understanding the criminal process may well work for some parts of that process, but it is entirely unsuited for understanding and contemplating about the process as a whole. Simply put, there are only some small aspects of this process which you can remove or add without casting a ripple effect across the entire system, and that assumption does not hold for all aspects of the process. 

Taking the jury out is one great example of fiddling with an aspect of the process that was not an appendage but had been a critical part of the statutory process as well as its judicial evolution. The assumption about expanding jury trials had been at the heart of the codification enterprise in criminal law. Many parts of criminal procedure and the law of evidence were crafted keeping in mind jury trials. Legal principles had evolved at the common law specifically keeping in mind jury trials, and Indian criminal courts imported this to the subcontinent. Many unsaid 'rules' in the system (such as corroboration of approver testimony) were all good practices which emerged to ensure fairness in running jury trials.

Can we think of removing jury trials from a system which had been dealing with them for more than a century by simply excising the set of provisions from the text of law, without grappling with any of these other aspects? You get the point. Yet, this is precisely the kind of approach that was suggested at the time. 

While it did not prove successful with jury trials, it did achieve success in many other aspects of the criminal process as it existed in the 1950s by way of the 1955 amendments, which took a wreaking ball to the existing process in the name of efficiency. Adopting a modular approach to the process, the legislature chopped and changed the criminal procedure code without giving much thought to what it would mean for the internal cohesion of the procedural scheme. This led to a strange legal process full of contradictions, which continues till today. For example, even as the law prohibits placing reliance upon police-authored testimonies as evidence, this material is still treated good enough not only for charging persons with offences but also ensuring that they remain behind bars for more than five years without trial.

Summing Up

There is a lot of rich material in Indian history waiting to be discovered and examined critically by scholars in India and abroad that would speak to many contemporary debates about the criminal process. The story about what happened to jury trials in independent India is one such example. These posts give an introduction to those interested in the field, and I hope that they can be of use to everyone who is willing answer and engage more critically with the law as it is today. If the law is an ass, which it often is, let us at least try and understand how we got here.

The End of Trial by Jury in India — Part IV: Looking Back at a Tumultuous Decade

[This is Part IV in a four-part series. Links to other parts here: Part I, Part II, Part III]

We saw in the previous post that the proposal for abolition of provisions on juries mooted by the Bombay Government was kept pending by the Centre in September 1959, on grounds that the Law Commission's findings on the jury issue were yet to be fully considered. 

Such consideration, though, was already underway by this time. A second iteration of the Law Ministers' Conference was being proposed for some time since June 1959, at which the Law Commission Report was to form a key prong of discussions. While that Conference kept getting deferred, the Report was discussed on the floor of the Rajya Sabha in November 1959. The lengthy discussion only marginally featured the recommendation on juries. Only two speakers said anything; one seeing it as a slur on national character, while the other content with the recommendation. 

The latter, J.S. Bisht, found clear vindication of the stand in a recently concluded trial: "We recently saw what happened in the Nanavati case. It is sub judice, I am not referring to it. The verdict of the jury is there, I am not commenting on it, and the Judge has referred the case to the High Court on the ground that the verdict is perverse. It proves that. There it is amply before you, and therefore I submit, Sir, that it is high time that we abolished that system." (from the uncorrected debates of November 24).

This was not all. The deferred Law Ministers' Conference was finally held in Srinagar at the end of June, 1960. Trial by jury was again on the agenda (Item No. 13), and discussed in the Committee briefly (though for longer than in 1957). The meeting took stock of the status across states and ultimately concluded that while many states had already taken steps to abolish jury trials, the others "may examine the position and come to their own decision ...". In this brief discussion, the Bombay Law Minister, Shantilal H. Shah, could not stop from making a reference to the Nanavati case as well: "Recently there was a trial by jury of a member belonging to the Defence Services and the Judge called their decision perverse. (Laughter)."

Laughter and vindication. That is what the Nanavati case actually meant for the question of trial by jury by 1960, giving laughter and vindication to the large contingent of experts who had decried the retention of this foreign transplant. 

I would call it a question and not a debate because the writing was very much on the wall by this point. Even before the time Nanavati's case began, the only real question was when juries would go, not if; and it was still a question only because the Home Ministry was reluctant to endorse abolition since it was only in 1955 that it had sponsored reforms for making it work better. As the criminal procedure reforms continued in the next decade, it came as a surprise to nobody that a new proposed code had no place for trials by jury. 

Looking at the discussion as it progressed over the decade though these posts teases at the growing inevitability about the outcome. Paradoxically, a key prong for retaining juries in 1955 was the fact that they could, practically, be rendered redundant if state governments so desired. It would seem that this quixotic logic was at play even in areas which, on the face of it, showed a continued enthusiasm for juries. Thus, in West Bengal, the State Government had withdrawn jury trials in many important kinds of cases over the decade. It was done by designating special courts, assigning the cases to them, and prescribing that trials before special courts would follow the 'warrant' procedure which meant no jury was involved.  

The Law Ministers' Conference, the Law Commission, various State-Level Committees and Legislatures, and of course, Parliament; the question of what must be done with trial by jury was extensively discussed across multiple sites. The nature of the sites framed the conversation a certain way. It privileged the view of the expert—the bureaucrat, lawyer, or judge. 

Looking at it critically today, one wonders whether this presaged the outcome to a certain extent, given the overwhelming opinion of these experts was to distrust any involvement of the layperson in what was seen as a specialist discipline demanding exclusivity and expertise. Were they being unfair in casting the layperson as entirely unable to comprehend what transpired in court? KN Katju certainly thought so, being of the firm opinion that most cases were straightforward enough and an inability to simplify facts pointed to failings in the lawyers and judges rather than jurymen.   

Voices within the establishment for retention of jury trials were very much exceptional from the point at which the question first came under scrutiny. One can only wonder how many voices outside of the circle of expert opinions held other opinions. Remember, this was the first decade of independence. As Rohit De and Ornit Shani's works have shown, members of the public were by no means strangers to the additional burdens of citizenship and desired to be participants in nation-building. 

Thus, was it really as the Bombay Government stated it in December 1958, that the public was not keen on discharging jury duty? Or was it another case of a government overstating its case to retain control of state affairs and keep citizens distant and controlled? Perhaps there is an archive out there that helps to see this side of the story around jury abolition.