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.

The End of Jury Trial in India — Part III: The Steady Decline of the Jury, 1955-1959

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

The amendments made to the Criminal Procedure Code in 1955 abolished the post of assessors when it came to trials in Sessions Courts, retained the power of state governments to decide whether to grant the right of trial by jury before sessions courts, and also widened the scope for withdrawing the trial by jury in the High Court. Nevertheless, the amendments did not abolish the institution, which continued in various parts of the country. As it would seem, these measures did not eliminate the conversation around juries. By 1958, one year before the Nanavati Trial began, the Law Commission of India unequivocally expressed its views in favour of doing away with trial by jury. 

Given the middle path struck by the Government after a painstaking and laborious exercise just three years ago, how did the conversation around abolition restart so quickly? This post tries to explain this, and takes our story right up to the Nanavati Trial which took place in 1959. 

New Forums, New Personalities, New Conclusions

From 1950 till 1955, the work on judicial reforms within the central government appears to have been led by the Ministry of Home Affairs. For most of this period, the Ministry was helmed by the same man — KN Katju — and the nature of reforms piloted bore his indelible imprint. This included the preference to retain rather than abolish jury trials. In the middle of that year he was placed in-charge of the Defence Ministry and in his place came G.B. Pant; former premier of the United Provinces, during whose tenure a committee recommended abolition of jury trials in the  province.  

The Law Commission

For the latter half of the 1950s it appears that the Home Ministry was no longer in the driver's seat. After many years of mulling over the issue, on July 27, 1955, the Union Cabinet met and approved the proposal to set up an All India Law Commission (the other Cabinet proposal discussed that day, incidentally, was renaming Delhi's roads). 

The Commission was an all-star cast, lest we forget. It was chaired by the Attorney-General M.C. Setalvad, had sitting and retired Justices of the High Courts, and several senior advocates (some became judges of the Supreme Court later). The first item of the terms of reference for the Committee was to "review the system of judicial administration in all its aspects ..." It harked back to the letter floated by the Ministry of Home Affairs and the memo prepared by KN Katju in 1953, and suggests that everything was still on the table despite the amendments of 1955.

What is interesting here is that at least in the formative documents of the Law Commission, there is no explicit reference to the jury issue. It seems that it asked some states on how the jury trial was working (Bihar, for instance, which sent back a copy of its Jury Committee Report), but it is unclear whether any specific query on abolition was put forth. 

We do know, of course, that in Chapter 42 of the 14th Report published in 1958, the Commission dealt with the institution of trial by jury and recommended its abolition. Reading the Report, you get a sense that there were few supporters of the jury within the Commission, which at page 868 states: "Our task is to consider whether this exotic growth transplanted into India by British lawyers and jurists has worked well and should be continued." There is no mention of the demand for jury trials made by nationalist parties during the freedom struggle, and arguments in favour of juries are all seen as "theoretical". 

The test to decide whether juries should be retained was whether they worked in practice, and all evidence suggested that they did not. The issue of corrupt jurors received special mention, as well the expenditure in running such kinds of trials. Citing the experiences of Bihar, U.P., and Bombay (more on that below), the Commission concluded that the jury system in India had been a failure and should be abolished rather than remedied.     

The Law Ministers' Conference

The Law Commission's creation points to the emergence of a new site of study on issues of law reform in the latter half of the decade. It also appears to have been accompanied by the Law Ministry getting more directly involved with the matter of reforming judicial administration. 

As part of this, while the Law Commission was chugging away and preparing its report on the issue of reforms in administration of justice, for the first time in September 1957 a Law Ministers' Conference was convened in New Delhi. Organised by the Law Ministry, the Conference was attended by Law Ministers of all States (accompanied by Secretaries of the respective Law Departments), as well as the Union Home Minister of the day, G.B. Pant. 

Much like the Law Commission, the Law Ministers' Conference also does not appear to have jury trials as part of the initial agenda. The only mention appears to have occurred on the second day of the Conference, at the end of a long discussion on corruption in court administration. The Law Minister for West Bengal, S.S. Roy, lamented that the jury system is becoming "worse and worse" with people hanging about court to get engaged as jurors and receiving bribes. The Union Law Minister A.K. Sen, who was also from Bengal, chimed in assent with this view. Law Ministers from Kerala and Punjab remarked that they did not have juries, and finally the Home Minister replied to S.S. Roy, saying that they had "better abolish this system". 

No further discussion took place. However, curiously, in the summary of discussions prepared after the Conference, the discussion is recorded rather differently. It is not an offhand exchange between the Home Minister and the West Bengal representatives, but framed as a direct suggestion by the Home Minister to all states: "The Home Minister suggested that the States might consider the possibility of abolishing the system." 

The Summary of Conclusions changed things even further. It carried Agenda Item (6) under the heading "Checking of Corruption in the Administrative Machinery of Courts", stating that "The possibility of abolishing the jury system may be considered by the states in which the system is still in vogue." 

Just like that, one year before the Law Commission would publish its Report, the jury abolition issue was brought back into the judicial reforms conversation. One wonders whether it led to the specific focus on abolishing jury trials in the Commission's report too. 

The Law Ministers' Conference was quite the high-level meeting, so naturally the summary of discussions was circulated to states for their formal opinions and comments by the year end. Going through the responses received throughout 1958, we find that at this juncture, trial by jury was already practically non-existent outside of West Bengal and Bihar. Since abolition of juries seemed to carry full weight of the centre now, even West Bengal and Bihar wrote back saying that the proposal was "under consideration". By 1959, Bihar wrote an additional response to the centre, stating that the Patna High Court judges were also no longer in favour of the jury system.

Nanavati, and Trial by Jury in Bombay

I mentioned West Bengal and Bihar as bastions of jury trials in 1957-58. What about Bombay State? In the previous round of consultations lasting from 1950-54, we saw both Bench and Bar offer a spirited defence of the institution from various parts of the Bombay State, as it was then. By 1958, in no part other than Greater Bombay — the administrative name for the City — were jury trials still in operation across the entire state. How did this happen?

After passage of the Criminal Procedure Amendment Act in 1955, it appears that there was some internal review of the working of sessions trials across the state. The review condemned trial by jury in districts other than Greater Bombay largely because of the poor quality of jurors available. As a result, the Government in consultation with the High Court, withdrew jury trials from all districts other than Greater Bombay with effect from September 3, 1956. 

Another review of the sessions trials took place after reorganisation of Bombay State in 1956. To maintain uniformity of procedure, the Government decided (again in consultation with the High Court) to withdraw jury trials from Nagpur and five other newly added districts, with effect from September 2, 1957. 

I have not come across contemporary material to discern whether jury trials remained in Greater Bombay because they were a success. If anything, official papers suggest otherwise. After some deliberation and consulting with the High Court, in December 1958 the State of Bombay wrote to the Centre seeking permission to amend the law to abolish jury trials for Greater Bombay. That it came in the aftermath of the Law Ministers' Conference hints that the proposal was not entirely unrelated to the nudge from the centre. 

The State Government had not heard back on its letter by the time that Commander Nanavati infamously pulled the trigger on April 27, 1959. A reply came on September 17, while the trial was ongoing, advising the Bombay Government to wait till the proposals of the Law Commission had been finally reviewed. When the jury acquitted Nanavati next week, it did not prompt any fresh reappraisal or reconsideration on abolishing jury trials by the State Government. It waited, just as it had been advised to. 

The End of Trial by Jury in India — Part II: The Issue goes to Parliament

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

By writing to the Ministry of Home Affairs on August 3, 1950, the Madras Government had unknowingly set in motion a long consultation on the position of trials with assessors and jury in India. This consultative process, which began in 1950, soon became geared to the prospect of statutory amendment. In 1952, the wheels were set in motion in the Home Ministry, which began exploring the prospect of carrying out general amendments to the criminal procedure. While preparations were ongoing, a Private Member's Bill seeking deletion of the clauses on trial by jury and assessors was sought to be introduced in 1952 by SV Ramaswamy (Salem). Both Mr. Ramaswamy's Bill and the Government Bill introduced in 1954 were referred to a Parliamentary Committee, and the outcome of this long consultative process was the passage of Act No. 26 of 1955.  

Split Verdicts and Opinions

The Central Government mulled about the course of action for a bit and finally began to solicit opinions from states in November 1950. At this point, most experience with jury trials lay with the 'Part A' States (the British Indian provinces), and the file suggests that the government also gave more emphasis to the opinions sent by these states than the 'Part B' states (such as Rajasthan). As it so happened, the issue was alive and under consideration before a Committee appointed by the Bihar Government (headed by SK Das J., who would go to the Supreme Court in 1956), and the government wrote separately to Bihar asking for copies of that report when it was ready.

Opinions trickled in, slowly. The Bihar report itself took more than a year to come. Though even by 1952 opinions were not in from all states, a general picture had begun to emerge. There was a split where 'important' states like Madras, Punjab and Uttar Pradesh appeared against the jury trial, and other 'important' states like Bombay and West Bengal seemed wholeheartedly in favour of it. 

It is interesting to see whose opinions were being solicited by the states, in response to the letter sent by the centre. The question was never posed to the public, but to the experts: bureaucrats, judges, and lawyers. Some storied names wrote in. For instance, the Government of Madhya Pradesh sought opinions from the Nagpur High Court, where the Chief Justice Vivian Bose (later of the SC) writing that "I have no experience of trials by jury in a High Court but in general I am opposed to the jury system." His view was the majority view of that Court. Contrary to which, you had most of the Orissa and Calcutta High Court judges holding the view that the jury should be retained. 

Even within the central government, it seems that there were split verdicts and opinions. The file noting recalls that BR Ambedkar had expressed a view against retaining juries, but at the same time, it was well-known that the Home Minister from 1951—KN Katju—was very much in favour of the jury trial. Diverging opinions were also expressed by the mandarins of these ministries on the file as it went back and forth from 1950 till 1954. Their opinions offer helpful summaries of arguments that were being advanced at the time.

We know what the main arguments for removing juries were: they were inefficient, susceptible to corruption, and led to perverse verdicts. We did not have persons with the requisite character to discharge jury duty. The biggest argument against an amendment was not one of principle, but pure pragmatism: There was no need to amend law, because the flexibility within the law already allowed states to render jury trials practically redundant if they wished. The arguments about the wrong kind of persons were, again, not arguments against the system but about its workings, and this could be fixed.

In this regard, it is interesting to get a glimpse of what happened when the file went outside the narrow sphere of solicited expert establishment opinion. This is through a letter from the Bombay Bar Association sent on September 17, 1951, to the Bombay Government. The letter does what the mandarins did not; expressly link the jury to values of citizenship, democracy, and also how long and hard people had fought to get this right during colonial rule.      

Consideration in Parliament

Ultimately, since there was no consensus, the call in December 1952 was to recommend against permitting Madras to change the scheme of the law to fully abolish provisions on jury trials. 

By this time, though, talk about amending criminal procedure had assumed a wider conspectus. After a couple of months, on January 3, 1953, the Ministry of Home Affairs issued a fresh memo to states, noting that "it has been felt for some time past and particularly since the transfer of power to Indian hands in 1947 that the structure of our judicial system with the rigidity and complexity of its procedure is wholly unsuitable to modern conditions." It noted that many states had begun reviewing criminal procedure, prompting the centre to undertake this exercise. The purpose of this memo was to help the government decide whether it was necessary to set up an all-India commission for reviewing the criminal law, and to this end it had annexed a note with broad thoughts and also 23 specific questions for states to formulate the opinions. (PS: besides the letter, the Home Minister prepared a lengthy primer on this issue as well, which was printed and circulated in 1953).

One of these, question no. 8, was "Abolition of the system of trial by assessors or the curtailment of the right of trial by jury in highly complicated cases like dacoity and criminal conspiracy by providing other safeguards if considered necessary in the interest of the accused". The framing of the question — abolition for assessors, and curtailment of the jury — is perhaps indicative of the general view formed in the previous two years that it was unsuitable to abolish jury trials, and that the Minister in-charge was in favour of its retention. 

Opinion-seeking, as we have seen, takes time. Before this process could conclude, the issue of abolishing jury trials reached Parliament. SV Ramaswamy, Member of Parliament from Salem, introduced a Bill to amend the Criminal Procedure Code and abolish the systems of trial by assessors and juries in July 1952. As it so happened, he got his chance to speak again only on August 28, 1953. The lengthy debate which followed strayed far and wide from the topic and invited all members to chip in with thoughts about what was wrong with the system. 

Ultimately, a motion to circulate the bill for public opinion was accepted. This was supported by the Government. While extending his support, the Home Minister also mentioned that a bill with proposals for the "entire field of administration of justice" was also in the works and would likely be tabled by the end of the year. A draft bill published in the gazette in December, and an official bill on these lines was finally introduced in April 1954. As promised by the Minister, and teased by the correspondence which began in January 1953, it touched a wide array of matters relating to criminal procedure. What is relevant for us are clauses 41 to 59. These proposed to do away with the system of assessors, and introduce a set of provisions to streamline jury trials, including by empowering a High Court to intervene and decide if a case should not be tried by jury due to its complexity.

Public Opinion and the Committee's View

The opinions solicited by Parliament on the Ramaswamy Bill are comparably more voluminous than what the central government managed in 1950-52. Naturally, though, there was no great shift of opinions during this time. But there are some interesting ones to flag. 

There is a dilution of sorts in the view from Nagpur, with the High Court Judges only writing in support of abolishing assessors and not juries. Justice SK Das of the Patna High Court (chair of the Bihar Jury Committee) also wrote in expressing his wholehearted support of the jury trial and a need to improve rather than abolish it as "to abolish the system will be like killing the patient instead of treating him" (though, at the same time, condemning the quality of jurors). We also have future CJI Y.V. Chandrachud, writing as Hony. Secretary of the Advocates' Association of Western India, in support of retaining juries. Finally, there are powerful expositions on the values of jury trials by lawyers from Hyderabad, one of whom noted that a jury helped to keep the legal system accountable to the public, and that "one man's benevolent despotism is as detestable as single judge's benign administration of justice with unfettered discretion in law and determination." 

When the Ramaswamy Bill was taken up for consideration again on March 12, 1954, the Home Minister jumped at the opportunity to inform the House about the impending government bill and a proposal which would be made to refer that bill to a Joint Select Committee thereafter. The Minister suggested that SV Ramaswamy agree that his bill also be referred to the Committee at that time, otherwise his government would have to oppose its further consideration. Naturally, it was decided that this Bill would also be taken by the Committee, whenever it was constituted. 

The Joint Select Committee was in place by May, and submitted its Report in September 1954. The important and interesting parts of the document all pertain to topics other than what we are looking at. On the subject of assessors and juries, it simply noted at Paragraph 22 that it found the Government Bill more acceptable — delete assessors, while retaining juries. In some of the Minutes of Dissent, this stand was criticised, arguing that by permitting a de facto erosion of jury trial by leaving it up to courts and states "the real purpose of the jury is not likely to be served." At the same time, other dissents condemned the Committee for not suggesting abolition outright.

Passage into Law

The Criminal Procedure (Amendment) Bill 1954 took a while to finally clear Parliament and be gazetted in August of 1955. It was debated extensively both before and after the receipt of the Committee Report in both Houses. Only a sliver of the debate pertained to jury trials, though. In striking out assessors completely while retaining the prospect of jury trials, the government had struck a middle path. In theory, this retained the possibility for renewing jury trials in the hands of any government minded to do so. In practice, the establishment was content as long as juries were not the norm but an exception. 

One wonders how happy the Home Minister himself was with this state of play, given how vocal a proponent he was of the jury trial. As it so happened, he did not continue for long in the Home Ministry portfolio, moving out to the Ministry of Defence that year. He would not be around for the next round of conversations on the jury trial, which would resume in a couple of years.

The End of Trial by Jury in India — Part I: New Concerns for the New Republic

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

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 for an answer (in the meantime, though, in October 1950 it issued a circular withdrawing jury trials from sessions courts across the state). 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.   

BNSS and Pre-Cognizance Right of Hearing for an Accused — A Case of Perplexing 'Reform'

Going by publicity announcements surrounding the BNSS both inside and outside Parliament, one of the main reasons for ditching the 1973 procedural code was because it fostered delays in cases. With the incoming BNSS, the government boldly announced that cases will not take longer than two years to conclude. 

Not many criminal lawyers took that seriously upon reading the BNSS and seeing that it had retained the older model almost entirely. And, when it comes to cases instituted upon private complaints, lawyers had realised that the changes made to the old scheme by Section 223 of the BNSS would decidedly have the opposite effect. 

This post looks at what has been the effect of Section 223 on the ground in the year or so that has gone by since introduction of the BNSS in July 2024. My aim is to show two things here. First, explain the change made by BNSS to the older regime, and how the new scheme goes against the statute's professed reformist logic. Second, show how courts have dealt with the clause and how this engagement (so far) has only complicated the law further and made trials even slower.   

What did the BNSS Change in Private Complaint Cases

Even with introduction of the BNSS, Indian criminal procedure continues to follow a funnelling model for proceeding with a case. There are multiple stages of judicial scrutiny over the same matter, which increase in intensity with each successive stage that a case passes. The stages are: (1) Cognizance --> (2) Summoning --> (3) Charge and --> (4) Trial. In theory, this ensures that only the 'good' cases go ahead for trials, and winnows out the 'bad' cases without wasting more time on them.  

There was never a doubt about hearing the accused at the stages of charge and at trial. There was also no doubt about not hearing either complainant or the accused at the stage of cognizance. Doubts existed with respect to hearing an accused at the stage of summoning in private complaint cases, where the complainant had a clear right of audience. A decade of uncertainty around this issue was clarified by the Supreme Court decisively holding in 2002 that an accused had no right of audience at this stage and could prefer appellate remedies if so desired [see here for a longer discussion]. 

This scheme made some sense. Cognizance entailed no hearing as such and only required judicial scrutiny of the file to determine if something was totally amiss. Summoning came later, where a court would hear the complainant to determine if there were reasonable grounds to summon the proposed accused. Then you had a full-blown hearing at charge with both parties engaging with the court, and finally trial where the accused could even introduce evidence (not permitted earlier).

Now, the BNSS has upended this scheme, with Section 223(1) stating as follows:

A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard

Compare Section 223 with Section 200 of the old code, and you will see that the "provided that" part was not there earlier. 

Why do this? No answers can be found in the reports of the parliamentary committee or in parliament. No reports of the super secretive Criminal Law Reforms Committee have yet been published (maybe when the BNSS is repealed, perhaps) to know if that Committee had sponsored this amendment. If we were to go and assume reasons, then the only probable one is that this enables winnowing out the frivolous cases. This argument may seem ok if the cognizance stage is viewed in isolation, but makes no sense when we look at the system as a whole which provides ample opportunity to wean the bad cases out later. 

The need to ask for a reason behind this change comes only because this is so obviously contradictory to the entire point of making the process move faster. Earlier, cognizance was a non-affair. Now, it will take many more dates of hearing, as an accused will first have to be called to court and then heard as well. The resulting delay is precisely why the Supreme Court has now gone ahead and willy-nilly excluded an entire set of criminal cases relating to dishonour of cheques from this regime [discussed here]. 

A perplexing reform if there ever was one.   

Judicial Engagement with Section 223 and the Eternal Mystery of Cognizance

It is not uncommon to find mountains of paper being spent by thinkers about rather banal, or if not banal then seemingly inconsequential issues framed as life's eternal mysteries. Most people, other than those thinkers, would probably find the exercise a bit of a waste of time. The same could be said about how the idea of taking "cognizance" of an offence continues to occupy so much space in Indian criminal procedure. A lot of the blame for this lies with the Supreme Court which has complicated the issue giving chances for wealthy litigants to contest this non-event in the life of a case all the way up to the apex court, and win! [see here]

The already existing plethora of precedent on the issue can be divided across three issues: (i) when does the right of hearing accrue, (ii) what is the extent of the right, and (iii) in what kind of cases does it apply.

Lets look at each of these areas in turn. The first issue arises because Parliament did not bother to change the active voice ("while taking cognizance of an offence ...") in the phrasing of old Section 200 while inserting this new right of hearing through an addendum. This meant that the old metaphysical quandary of when did the court actually take cognizance remained unresolved in the statute, while giving a right of hearing to an accused before taking cognizance. 

This issue had already led to litigation in the past, creating two streams of case law that were never quite fully resolved. One view was that cognizance can be taken the first time a judge took up the case file, before examining the complainant and other witnesses, upon being satisfied that ingredients of the offence exist. Another view was that cognizance was taken at some stage during examination of the complainant or at its end, but not upon mere receipt of the case file. As you can see, both views entail different consequences for the pre-cognizance right of hearing — in the former, it takes place before the complainant is examined and the court only has the case file to go by, and in the latter it takes place after the witnesses have also been examined giving more material on record.

The two views also have a bearing on the second area identified above: what is the extent of the right of hearing for an accused. Is the accused simply to be asked questions without being given any document? Can the accused be meaningfully heard by a court without having examined the complainant? If the accused is to be heard with supplying documents, then can the accused ask for time to study the same and then make detailed submissions; even go so far as to seek (or supply) copies of additional documents that may be missing in the complaint? Does a court need to pass a detailed order dealing with all the submissions of an accused also at this stage?

All of these issues could have been dealt with if Parliament thought through the new right that it was conferring. Maybe debates in Parliament would have helped. But that ship has sailed, for now at least. This has led to courts answering the above questions, in a surprisingly consistent tone for the most part without dealing with the unresolved issues that their interpretive choices are creating:

• When does the right accrue? Almost all High Courts [Kar HC, Delhi HC, All HC, Ker HC, Gau HC] have so far held that before inviting the accused to be heard, the court should have examined the complainant and other any other witnesses. In doing so, they have clearly gone with the view that cognizance is not taken merely upon receipt of a private complaint case, but have changed the inherent fluidity of that view by fixing the stage of cognizance as necessarily after the examination of witnesses.
• To what extent does the right accrue? Again, High Courts have stressed on the innovation made by the BNSS and reasoned that Parliament could not have conferred a token right of hearing, and that the clause must be interpreted to confer a 'meaningful' right of hearing. This entails sharing papers with the accused and dealing with their objections before taking cognizance [most clearly mentioned by the All HC here]. At the same time, there is no discussion of why a court must pass a lengthy order at this nascent stage when such detailed orders need not be passed when summoning an accused and framing charges.
• As yet, issues of whether an accused can ask for copies of materials seemingly missing in the complaint or show documents seemingly suppressed by the complainant do not appear to have reached High Courts, but they are certainly being litigated at the trial courts. It may be noted that one of these issues was flagged before the Supreme Court (here) but it was not dealt with at the time.

The third area of what cases does this new pre-cognizance right extend to was interesting given the drafting of the clause, but has been made more interesting by developments in the Supreme Court. The BNSS retained the old 1973 code's approach of treating complaints lodged by public servants disclosing commission of crimes differently from complaints by ordinary citizens. While there is a need to examine the ordinary citizen complainant, this requirement is dispensed with if the public servant is filing a complaint as part of their official duty. You would think, then, that the need for any pre-cognizance hearing would also be eschewed for such scenarios, seeing as they are more similar to cases lodged by police than to cases lodged by private complainants.

The Supreme Court when presented this question in context of complaints by the Directorate of Enforcement filed under the Prevention of Money Laundering Act 2002 held otherwise and, surprisingly, without any real contest by the government. This has meant that the entire gamut of cases which are filed on a complaint by public servants — there really are several such statutes — now have an additional step in the trial process, elongated them further. Within this area, the Supreme Court is yet to address the additional issues that had been flagged at the outset by the government such as what happens when a supplementary complaint arraigning more people is filed, and what kind of material can be considered at this stage. The supplementary complaint issue has reached High Courts though, where orders have extended this pre-cognizance right of hearing to such scenarios as well.

Whether the Supreme Court will remain wedded to this approach of extending the general law as found in the BNSS to special laws where cases are instituted on private complaints is not a certainty anymore, though. As mentioned above, the Court recently excluded offences of cheque dishonour from this regime on the logic that these were under a special law which will not attract general law, without really any reasoning. Considering that the exclusion of cheque dishonour cases was more based in pragmatism than legal reasoning, it will not be surprising to see some refinement in the Court's approach if serious speed-bumps are perceived in other areas.

An interesting follow-on issue which the extension of pre-cognizance hearings for cases lodged on complaints by public servants is a constitutional one. If this right of hearing accrues to a case investigated by some law enforcement agencies, then why not all? In other words, why should the same right not be extended to police cases? Surely one cannot say that frivolous or even downright vexatious cases are not filed as a result of investigations by police. So if the idea was to ensure conferring a meaningful opportunity to an accused person to prevent them from being dragged into vexatious litigation, and now the Supreme Court has clarified that it extends to even cases investigated by law enforcement agencies, then do we not have an Article 14 problem on our hands?

Section 223 BNSS has thus ensured that cognizance does not pale into irrelevance as we carry on in the 21st Century but that it gives rise to much more litigation, reopening old questions and creating new ones. Nobody but the lawyers are rejoicing at the prospect.        

The Other Origin Story of Preventive Detention in Independent India - Article 373 and the Extension of Duration Order

Preventive Detention, the practice of arresting and detaining a person in custody without a trial in court, has a long and storied history on the Indian subcontinent. That it was not only retained by the founders of independent India, but was given place in the Constitution of India, continues to raise eyebrows and lead the curious down the alleyways of history to learn about the peculiar set of circumstances that led to insertion of Article 22 of the Constitution of India. 

On this history of Article 22 — originally Article 15-A in the Draft Constitution that was deliberated in the Constituent Assembly — there is today a lot of writing [For instance, Granville Austin's books, Rohan Alva's book, Hallie Ludsin's book, and even old posts on this blog form 2016!]. Studying this history helps retain a sense of faith (for the faithful), as it shows that Article 22 was never meant to cement or legalise preventive detention (which was done when the Assembly passed the legislative lists) but to try and make sure that there is a respectable set of safeguards that no future government can avoid as it exercises powers of preventive detention.

There is another story, though, which has not been written about as much or at all. This is about Article 373 of the Constitution and promulgation of the Preventive Detention (Extension of Duration) Order on January 26, 1950, the day India became a Republic [pg. 8 here]. Let's get to it.   

'A Disastrous Situation'

Draft Article 15-A was discussed in September 1949 in the Constituent Assembly. As mentioned above, it was intended to introduce safeguards that could bind governments while exercising preventive detention powers. The key guarantee here, arguably, was the prescription to limit the period of detention by government to three months, and permit lengthier detention only if it was confirmed by an advisory board consisting of a judicial member. 

Either knowingly or unknowingly, the Constituent Assembly had just thrown up a curveball for the mandarins responsible for administering the affairs of state. A big part of the efforts to maintain law and order in post-partition India was to use preventive detention powers and detain persons for varying lengths of time. These powers were exercised at the level of the provinces through a motley bunch of public order statutes, almost all of which permitted preventive detention but did so by prescribing differing procedures. Not all of these statutes required an advisory board with judicial members to keep persons detained. Would all persons detained under such laws have to be released at the expiry of three years when the Constitution came into force? 

It appears that the chief mandarin in the Ministry of Home Affairs, HVR Iengar, was vexed with this question. He discussed it with R. Gupta, Home Secretary in the West Bengal Government while on a visit there and brought this "difficulty" to the attention of the Drafting Committee. As he recounted to Gupta in a confidential letter dated November 12, 1949, Iengar had pointed out to the Drafting Committee that "if the constitutional position was that persons who had completed more than three months of detention would have to be released on the 26th January, 1950, then the situation, from the security point of view, would be disastrous." 

The Drafting Committee, evidently, paid heed to Iengar's concerns. It "now recommended" insertion of Article 373 to the Constitution which sought to confer a power upon the President — in short, the Executive — to pass an order which would temporarily prevent the enforcement of Article 22 in full and allow the three-month limit to be extended. The Draft Order so prepared by the Drafting Committee provided that detention of persons detained (for any litany of reasons) "may be extended" beyond three months without orders of an Advisory Board, up to a maximum period of one full year from the date of the Order.  

The disastrous situation could thus be averted, and Iengar informed Gupta that the Government was taking "necessary steps" to pass this draft order on January 26.

Extending All Detentions For a Year?

HVR Iengar's confidential letter of November 12 was sent out to all provincial governments and the States Ministry of the Government of India. There were seventy-five days left till January 26, and it made for a frantic last two months across governments to ensure that no loopholes were left which accidentally allowed detenus to be freed. To this end, the Government of India sent out instructions on December 31. 1949, to all the provinces asking them to "forward immediately by telegram a statement indicating in exact terms the grounds on which such (preventive detention) prisoners have been detained.". A separate letter of the same date shared a draft of the order to be passed, and sought comments "not later than" January 14, 1950. (All emphasis in original). A stream of telegrams followed, but very few offered substantive comments. The proposed draft of the order shared by the Government seemed comprehensive enough to them.

This process threw up a different problem for consideration too. Replying to the request for comments, the Chief Secretary to the Government of the United Provinces flagged concerns on December 19, 1949 that, while an Advisory Board already existed, there were other parts of their preventive detention law [The United Provinces Maintenance of Public Order (Temporary Act, 1947] that were inconsistent with Article 19 and 22 of the soon-to-be passed Constitution. 

We get a glimpse of how the Draft Order was understood by the Government of India in the reply letter dated January 20, 1950 issued to the United Provinces. Interestingly, this letter referred to not one but two Executive Orders that would be issued by the President for preventive detention. The first of these, to be issued on January 26, "will permit detention under Provincial Acts up to a period of one year ... and will also make it unnecessary during this period to submit the cases for review by the Advisory Boards in order to get over the limit of three months" and, critically, as a result "the extension will be automatically granted to all detentions under provincial acts by the terms of the proposed order." (Emphasis mine). In other words, while the draft had said that the period of detention "may" be extended, the Government understood this to mean that detentions shall be extended without exception. Since all detentions would be extended, there was no need felt to amend any preventive detention laws for that immediately, and "it will be sufficient if these acts are brought into accord with Article 22 of the Constitution at any time before the expiry of one year's period" (Emphasis mine) for which the Central Government would issue a second order by April 1950 detailing what changes are required in all provincial laws.

The Curious Shift in Stance

On January 26, 1950, the Gazette of India (Extraordinary) published order C.O.8, titled the "Preventive Detention (Extension of Duration) Order, 1950" issued in exercise of powers conferred by Article 373. It did not contain any exhaustive list of cases for which detention could be extended, and permitted extending the time period of detention for only three further months. This was a big change from the proposed extension of an entire year, which we know that the Government had committed to in writing less than a week prior. The seeds of this change were, presumably, sown already in the idea of passing two Presidential Orders instead of one. Since only three months were seen as being required to bring the existing legal machinery in tune with the Constitutional scheme on preventive detention, there was no need to detain persons for an entire year.

The archives suggest that not every province received copies in time or in sufficient numbers, as frantic telegrams were sent to the Central Government asking for additional copies to be sent at the earliest. It also appears that the original order issued in the Gazette had an embarrassing typographical error, having gotten the date wrongly written as January 20 (incidentally, the date of the letter sent to United Provinces), and not January 26, 1950! This was not the only problem in the Order, though, which the Home Ministry admitted on February 13, 1950 was "revised and issued at very short notice" because of which "the full implications of its provisions could not be examined in detail". The implication being referred to was this: the Order potentially created a three month upper limit even for those persons detained after January 26, 1950 under laws fully compliant with the constitutional scheme. These and other issues were "being further examined" at the time. 

Post-Script

As it turned out, the Preventive Detention (Extension of Duration) Order 1950 did not even tide over the three months as had been planned. 

The problem flagged by the United Provinces Government in December 1949 of provincial laws being inconsistent with the Constitution and therefore void was seized upon by enterprising lawyers in cases already pending at the time of the Constitution's coming into force. It led to the Patna High Court holding detentions invalid on February 14, 1950 in Brahmeshwar Prasad [AIR 1950 Patna 265] concluding that the Order could not save the provincial law itself from the vice of constitutionality (The judgment came one day after the Home Ministry's letter and interestingly also suggests that the Government Lawyer did not have access to proper copies of the Gazette with the Extension of Duration Order). 

Much before this, though, the Government of India had already begun to draw up plans to render the Presidential Order redundant by passing a Central Law on the subject. In a letter of January 31, 1950 sent by the Home Ministry to all provinces, we find reference to this plan. Perhaps the judgment of the Patna High Court, coupled with the many problems thrown up by the language of the Presidential Order, are what led to the ungodly speed with which the Preventive Detention Act was tabled and cleared on February 25, 1950 by the Provisional Parliament. And the rest, as they say, is history.

[The post is based on a file being F.No.10(95)-P/49 titled "Protection against arrests and detention in certain cases - Clause (7) of Article 22 and 373 of the New Constitution. Issue by the President of the Preventive Detention (Extension of Duration) Order, 1950". It can be viewed, for free, on the National Archives of India portal.]