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.
No comments:
Post a Comment