1. A DEMAND FOR TRIAL BY JURY IN INDIA
R. K. Jain, president of the Supreme Court Bar Association, has recently suggested that India should introduce, rather re-introduce the Jury trial system in Indian courts. Jury system, according to him, "will go beyond the narrow confines of the law and also consider the key question of social rehabilitation in certain cases - where a more lenient attitude while sentencing might prevent the possibility of turning a repentant offender into a hardened criminal" (Gulf News). These lofty ideals do not, however, seem to be attractive to other attorneys.
L.M. Singhvi, a leading lawyer, said, "The jury system in the country, which was prevalent some decades ago, had to be abolished because it was found unsuitable for Indian conditions." He argued that for the jury system to be successful it should be applied in "small homogenous communities where a given number of persons of similar status and identical background can be found easily to sit on judgment on their peers. In India, with its vast diversity, it had not worked earlier and it would be unsuccessful again if reintroduced."
2. TRIAL BY JURY AND THE PANCHAYAT SYSTEM
The fact of the matter is that the jury system is, in some small measure, similar to the panchayat system prevalent in Indian villages. A few elders or people, considered to be upright and socially important, sat in the public square and heard the complaints brought before them. They usually settled the disputes amicably between parties by taking a middle of the road position. These panchayats were and are often caste-based, but, in many places, panchayat members hailed from a number of castes and sat together to decide on the complaints brought before them. It is also true that in this process the Dalits did not find any significant representation as panchayat members. These panchayats functioned more as a court of judges.
3. JURY SYSTEM IN ENGLAND
The jury system is considered to be a distinctive of Anglo-Saxon jurisprudence, "the favorite child of the English law" (Forsyth 1878:2), although other European nations did develop systems similar to it. Forsyth writes that many saw the origin of the jury system in England as "a national recognition of the principle that no man ought to be condemned except by the voice of his fellow citizens" (p. 4). That many saw the origin of the jury system in England as "a national recognition of the principle that no man ought to be condemned except by the voice of his fellow citizens . . . that the jury does not owe its existence to any preconceived theory of jurisprudence, but that it gradually grew out of forms previously in use, and was composed of elements long familiar to the people of this country" (Forsyth 1878: 4-5).
Forsyth's description of the jury process is still largely valid for the United Kingdom and countries related to it, such as the United States of America: "the Jury consists of a body of men taken from the community at large, summoned to find the truth of disputed facts, who are quite distinct from the judges or court. Their office is to decide the effect of evidence, and thus inform the court truly upon the question at issue, in order that the latter may be enabled to pronounce a right judgment. But they are not the court itself, nor do they form part of it; and they have nothing to do with the sentence which follows the delivery of their verdict . . . They are called upon to serve as the particular avocations and pursuits, so as to be absolutely free from any professional bias or prejudice" (p. 7).
This description should not be construed as saying that every one had an equal chance in the past to sit as a Jury in a case. Social, professional, economic and educational status of the individuals was considered in the criteria for selecting persons for jury duty in the past. Gradually democratization of some sort was accepted in jury selection.
4. INTRODUCTION OF JURY BY TRIAL IN INDIA
The brief description given above for the jury system followed in England makes it clear that the Indian panchayat system is radically different from the jury system. The British administrators introduced the jury system in India but found that this did not work well.
Struggling hard to find a system of jurisprudence that matched the genius of Indian polity while at the same it enabled them to rule India as a colony, the British administrators made several changes in the existing judicial system and brought some uniformity across the provinces. One of the things they introduced was the jury system that they were familiar with in their own homeland. As we already pointed out, the English jury system is different from the panchayat system of arbitration in India. When the English system was planted in the Indian soil, it did not really bear much fruit. Then the British Raj introduced a law which, in essence, overrode the jury verdict.
5. THE INDIAN NATIONAL CONGRESS AND JURY SYSTEM
The Indian National Congress, in its early years, did not focus on language issues in India, except making English competence as a required qualification for participants in their national sessions. However, language issues were indirectly referred to in the inaugural addresses and other speeches of the delegates. One such reference was with regard to the jury system and its abolition.
The Indian National Congress passed resolutions in 1886 for the extension of trial by Jury and for giving finality to the verdicts of Juries. Earlier the Government of India introduced the system of trial by Jury, but in 1872 made a change in the system which deprived the verdicts of Juries of all finality, and vested in Sessions Judges and High Courts powers of setting aside verdicts of acquittal by the Juries.
6. A.O. HUME AND WOMESH CHANDRA BONNERJEE ON JURY TRIAL
W.C. Bonnerjee, a highly regarded Barrister-at-Law and the first President of the Indian National Congress, was against the changes made to the Jury Law in India, and argued in 1895 in favor of the Jury system as follows:
A judge, translating in his mind the vernacular of a rustic witness, was too engrossed with the language to attend properly to the witness. Indian jurymen understanding the language would watch the demeanour of witnesses and would distinguish truthful speech from false. (Cited from Sitaramayya 1935)
This excellent point made by W.C. Bonnerjee was in favor of retaining and extending the Jury system which, introduced earlier, was just then curtailed by the British India administration, and ultimately dropped never to be revived even in free India.
Note that the argument was not intended to support the use of Indian languages in judicial processes and administration, but was in favor of the juries who would, through a better knowledge of the vernacular, be able to arrive at an appropriate verdict. While the value of Indian languages in administering justice was recognized, the idea that Indian languages could be the medium of administration of justice in courts was yet to be raised. This was not surprising since at that point of time the judges themselves were mostly British.
The value of Indian languages in arriving at appropriate verdicts was also recorded indirectly by A.O. Hume who in 1879, before the Congress was founded, recommended,
rural debt cases should be disposed of by summarily and finally on the spot by selected Indians of known probity and intelligence who should be sent as judges from village to village to settle up, with the aid of village elders, every case of debt of the kind referred to in which any one of its inhabitants was concerned. These judges would be fettered by no codes and forms of procedure and they would hear both parties stories Coram Populo on the village platform of the debtors' own village. It is needless to tell any one who knows the country that while, when you get him into court, no witness seems to be able to tell the truth, on his own village platform surrounded by his neighbours, no villager in personal questions like these seems able to tell untruth. Everybody knows every body else affairs. Let the speaker deviate perceptibly from the facts, and immediately outgo tongues all-round, and hisses and cries of wah, wah, remind him that he is not in court, and that that kind of thing will not go down at home(Cited from Sitaramayya 1935).
The claim of Mr. A.O. Hume may be treated more as a statement coming from a well-meaning admirer of India and its villages and culture than as a correct characterization or an infallible procedure to extract truth. However, there was no denying of the potential for extended participation of the village folks when the process was conducted through the local language.
7. CHANGE IN LANGUAGES AND LANGUAGE STYLES NEEDED
Jury system is not perfect, but it provides for the participation of common people in the judiciary process of their own community. It has great potential to be misused on many grounds. Political, religious, caste, ethnic, and other considerations extraneous to the administration of justice may come to play important roles in the jury awards. From fact-finding, the Jury system has moved to judicial judgements in the western nations. Moreover, the trial by jury will not be successful if changes in the language and language style employed in court procedures including arguments presented are not effected. The existing procedures and processes are too difficult even for those who have received college education.
Unfortunately, in India, our courts still use languages and styles with which common people are not comfortable. Bilingualism and formal styles that are not comprehensible to litigants still dominate even the lower courts at the taluq level. What Womesh Chandra Bonnerjee described more than a hundred years ago still describes the present situation very well. It is not just the choice of language alone that comes to determine the effectiveness and comprehensibility of the judicial deliberations. The language style is obsolete in many ways. Switching over to Indian languages as languages of judicature will not bring better participation unless the language style is also changed. The goal is not to replace the lawyers with ordinary folks to argue their cases. The lawyers are still needed because they perform a very useful function in favor of the litigants. However the language and style should be so changed that the litigants have some sense of meaningful participation in the entire judicial process.
Trial by jury as a political weapon has been used in India effectively for propaganda purposes by the leftist political groups and NGOs. The Vision 2020 proposed by the Andhra Pradesh chief minister Chandrababu Naidu was discussed in several places in Andhra Pradesh, and judgments called Prajateerpu 'People's Verdict' have been passed. However, these proceedings are modified form of trial by jury, although in the case of the proceedings of Prajateerpu quite a few specialists from various professions participated and gave testimony for or against the Vision 2020. The jury were selected by a systematic process. Yet these are political processes, not really judicial processes.
Forsyth, William. History of Trial by Jury. Cockcroft and Company, New York, 1878. Second edition prepared by James A. Morgan.
Sitaramayya, P. 1935. A History of the Indian National Congress. AIIC, New Delhi.