If you ever ask someone what led to the end of jury trials in India, chances are that they will point you in the direction of the trial of K.M. Nanavati. A jury acquitted Nanavati, who was accused of murdering his wife's alleged paramour. The judge disagreed with the verdict and referred the matter to the High Court, which reversed the acquittal, convicted Nanavati for murder, and sentenced him to imprisonment for life [the High Court judgment, though not reported, was discussed on the blog here]. Legend has it that a jury acquitting a good-looking navy officer in the face of clinching evidence was the final straw which broke the camel's back, and convinced the powers that be that jury trials in India must go.
James Jaffe had written some time ago about how inaccurate this historical retelling is, demonstrating that not only did jury trials continue long after Nanavati, but suggesting perhaps that they were already heading for their demise by the time the jury acquitted the man in 1959. Beyond this, there is surprisingly little writing on the subject.
Through this new series on the blog, the idea is to try and help fill these gaps (to the extent possible through a blog), by taking a deep dive into the first decade of the republic and what it meant for this question of continuing with jury trials.
This first post lays out the land and takes us back to 1950, a time when there were new concerns for a new republic. One of these was how to reshape criminal justice and whether jury trials had any place in that conversation. The story moves forward in the second post to look at the debate about juries as it enters Parliament, as part of a broader discussion around framing criminal procedure for India. Part II ends with the passage of the Criminal Procedure Amendment Act of 1955, and Part III looks at the aftermath of this law and lays out the state of things as they were in September 1959 when the Nanavati jury returned its verdict. The last post closes out the series, looking back at the shifting sands and how a split verdict at the start of the decade had decisively firmed up to reject juries.
Setting the Scene: Criminal Law and the Federal Structure
Conventional retellings around law reform in the 1950s don't include practically anything about criminal law or procedure. The closest you get is preventive detention. The dominant view has been to assume that pressing administrative concerns of the time (managing post partition resettlement in the north and east, and managing economic vulnerability across the country) led to a conscious decision to not tinker with the existing criminal justice architecture. On closer scrutiny, I would argue that while this view may still hold good for changing structures of policing, it does not hold good on matters of judicial administration in the criminal law sphere. I would stake a bold claim that the changes made to criminal procedure in this decade — primarily through the 1955 amendment act — have been the most consequential changes on the subject in independent India. Far more consequential than the name-changing exercise carried out in 2023.
A little history lesson is required about legislative power on criminal law matters and the reorganisation of India's map post independence before we proceed further. Since the assumption of direct control in 1858 by the British Crown, criminal law and procedure had been subjects legislated for at the central level in British India. The famous codes — the Indian Penal Code, Criminal Procedure Code, and Evidence Act — were passed within the first 15 years of direct rule, and applied to all territories in British India by the time of India's independence in 1947.
Between this time, British India had introduced provincial legislatures, and matters of criminal law and procedure came to fall on the 'concurrent list' of legislative power. This meant that provinces could amend the law, but in case of any radical change to the scheme real power remained with the central government. The Constitution of 1950 did not change this scheme of dividing legislative power for matters of criminal law. Perhaps this is why we see that while the conversations on changing criminal procedure began at the provincial (now state, level), they were soon coopted at the central level.
Another reason for this cooption and overarching central control over the process of possible amendments was also the reorganisation of India's map post independence. Post 1947 India was an amalgamation of parts of British India with several hundreds of princely states. While many of them had treated the laws of British India as a template to frame their own laws, it was not a case of wholesale duplication. Integration of the princely states, thus, required introduction of the existing laws of British India into these areas; an exercise which naturally warranted close scrutiny from the centre.
These aspects of constitutional law and governance are of specific importance when we think about any changes to the scheme of trial by jury. As of 1950, the Criminal Procedure Code 1898 was in operation across British India. Under this Code, trials before Sessions Courts (seniormost courts at the trial level) were by default conducted without a jury, but for some offences they required the aid of assessors — two laypersons sitting with the judge to, essentially, offer a sounding board and enhance public participation in justice-delivery. The 1898 Code did provide for trial by Jury for sessions courts and High Courts (and not others), but under Section 269 left it to a State Government to decide whether to introduce the measure and to what degree when it came to sessions courts. Trials before High Courts were mandatorily by jury.
The rarity of trials being conducted by High Courts and the discretion conferred by Section 269 meant that juries were far from ubiquitous even in British India, and almost non-existent anywhere outside. Further, while assessors were mandatory in some trials within the British Indian territories, they did not exist in most princely states. Now, integration meant that at least in theory, all parts of India would require the idea of jury trials, and furthermore create new schemes for selecting and using assessors.
Jury Trials: The State of Affairs in 1950
Keeping aside the issue of assessors for a minute, let us think about this possible expansion of jury trials. Since the late 19th Century, the demand for expanding jury trials — both in terms of categories of cases to which it applies but more importantly by broadening the class of jurors to allow Indians to serve — had been part of the list of demands of the Congress Party, as well as some other political outfits. One would imagine that state governments in independent India would seize this chance to expand jury trials and democratise the administration of justice.
If a strong feeling for juries did exist within the people after independence, it was certainly absent within their representatives. The overwhelming feeling within a majority of the establishment appears to have been that juries were easily corruptible and a useless expense at a time of scarcity. A lot of this feeling was driven not by any practical experience — juries were unknown in most parts — but by received wisdom, which in most cases was received not from ordinary members of the public but the legal establishment in the form of lawyers and judges. This is seen quite well through two reports published around this time: the Report of the Uttar Pradesh Judicial Reforms Committee and the Bihar Jury Committee.
Looking back at these reports, the cynic in me finds it unsurprising that lawyers and judges wanted to keep the public at arms' length. A key element of the legal profession and administration of justice in India has been the idea of it being a specialised field requiring expertise of procedures. Juries work to democratising the field and work best with less procedural rigour, which threatens this key plank on which the entire system was based. It is difficult, therefore, to shake that feeling when reading the replies of lawyers and judges; these were not independent observers or experts, but people who had real skin in the game, and who stood to suffer instability and uncertainty in their profession if jury trials expanded.
What is surprising, though, is that the opinion against retaining juries was not restricted to areas where it was a novelty or oddity, but even those where it had been part of the lay of the land for over a century. I refer, of course, to the Presidency Towns of Bombay, Madras, and Calcutta (as they then were). It was in these parts that the idea of juries had taken deepest root over the course of the previous century.
The Madras Government gets the Ball Rolling
Within the three cities, the strongest lineage was arguably of Madras, where Sir Thomas Munro had during his reign as the Governor of Madras in the 1820s pushed aggressively for introduction of juries; a measure which came to be passed after his untimely demise, before being withdrawn under a cloud. Two chief reasons for the withdrawal of the regulation introducing jury trials in certain parts of Madras were, firstly, the failure to find the right kind of people, and secondly, the costs of the measure. Nevertheless, slowly, jury trials did start and take root in parts of Madras after this initial uproar. What would Thomas Munro think to learn that in August 1950, the Madras Government wrote to the Central Government seeking consent to enact proposals for removing jury trials precisely for these two reasons?
In this letter dated August 3, 1950, the Madras Government argued that assessors were entirely useless and an unnecessary expense, and this scheme must go. Rather than replace trials with the aid of assessors with trial by jury, it would be better to also do away with the jury trial because it was little better, and solely retain bench trials. It noted that the Judges of the High Court were in favour of these changes as well. The letter from Madras specifically asked the central government whether proposals of this nature were under consideration, and if not then would there be any objection to permit the state government in going ahead.
Prior to this letter, there had been suggestions to remove trial with the aid of assessors under consideration at the centre, (received from Uttar Pradesh) but nothing about juries. Given the preference for retaining uniformity in the general criminal process across India, it was decided by both the Home Ministry and Law Ministry that it was best if Madras was asked to wait, because it did not appear that the desire to do away with the jury was as yet uniform across the country. The course of action decided upon by the centre was to use this chance to begin nationwide consultations on the issue of jury trials, and see what it yields.
As it so happened, the Madras Government would end up waiting for five years. No sooner had replies from provinces begun coming on this issue of jury trials that the centre had begun fresh consultations on a much wider scale, inviting views on generally amending the criminal procedure. The consultative process would reach Parliament in 1952, and finally culminate in the passage of Act No. 26 of 1955. I turn to this in the next post.
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