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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

HISTORY- II

THE EVOLUTION OF JURY SYSTEM IN INDIA

Submitted by: Submitted to:

Prarthana Gupta Prof. Uday Pratap Singh

2019BALLB26
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ACKNOWLEDGMENTS

I take this opportunity to express a deep sense of gratitude to The National Law Institute
University (NLIU) for providing me with this excellent opportunity to make this project. I
sincerely thank everybody who helped with the completion of this project.

On completion of this project it is my present privilege to acknowledge my profound

gratitude and indebtedness towards my teachers for their valuable suggestions and
constructive criticism. Their precious guidance and unrelenting support kept me on the right
track throughout the project. I gratefully acknowledge my deepest sense of gratitude to:

Prof. (Dr.) Vijay Kumar, Director, National Law Institute University, Bhopal for providing
us with the infrastructure and the means to make this project;

Our History teacher, Prof. Uday Pratap Singh, who provided me this wonderful opportunity
and guided me throughout the project work;

I’m also thankful to the library and computer staffs of the University for helping me find and
select books from the University library.

Finally, I’m thankful to my family members and friends for the affection and encouragement
with which doing this project became a pleasure.

Prarthana Gupta
2019 BALLB 26
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TABLE OF CONTENTS

Acknowledgments......................................................................................................................2
Hypothesis..................................................................................................................................3
Research Objectives...................................................................................................................3
Research Methodology...............................................................................................................3
The Evolution of Jury System in India......................................................................................4
Bibliography.............................................................................................................................13
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HYPOTHESIS

Jury System as it existed in India was a colonial gift that is not suited for a diverse country
like India.

RESEARCH OBJECTIVES

The following are the objectives with which this project has been undertaken:

1. To understand the evolution of jury system in India

2. To comparatively evaluate the jury system in India with the English common law
system.

RESEARCH METHODOLOGY

The method of research used in this project has been doctrinal in nature.
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THE EVOLUTION OF JURY SYSTEM IN INDIA

In the form that it exists now in Indian law, a jury trial is a Western invention. It is true that in
the earliest times known to us, justice was administered by arbitrators known as Panches or
Panchayats (literally, five boards) chosen from the particular caste, tribe, trade, or locality to
which the parties belonged; however, there is nothing in that system that is analogous to
English Trial by Judge and Jury in criminal cases, and no attempt has been made as yet to
introduce into Indian Trial system in civil cases.1

At first, the British recognised the country's penal rule as it was. This was Muslem rule in
Bengal and Madras, and when other provinces fell under the jurisdiction of the East India
Company, the Bengal system was expanded to the North West. 2 Only in the Bombay
Presidency, where the Mahrattas had never been conquered by the Mughals and were the
ruling caste, was Hindu law applied to Hindus and English law applied to Christians and
Parsis.

The tribunal of criminal cases was assigned to a magistrate, with two assessors trained in
Sharia (Moslem law), and while European judges were selected over time under British
administration, they often sat with Moslem lawyers as assessors.

But as Lord Bryce said: " It was inevitable that the English should take criminal justice into
their own hands-the Romans had done the same in their Provinces-and inevitable also that
they should alter the Penal Law in conformity with their own ideas”3

An Ordinance of James I dated 1623/4 instituted the trial by jury of capital offences
committed by the Company's servants, and jury trial became the law for judicial trials on the
original hand by the Supreme Court in Calcutta.4 This method inevitably went down to the
Chartered High Courts, but it accounted for such a limited percentage of the total number of
criminal cases as to be insignificant, even insofar as it served as a model for the establishment
of juries in ordinary Courts of Session.5

1
Barkan, S. Bryjak, G. Fundamentals of Criminal Justice: A Sociological View. Jones & Bartlett
Learning. (2011).
2
Newman, D. (1966) Conviction: The Determination of Guilt or Innocence without Trial 3. Ref. in Alschuler,
Albert W. (January 1979). "Plea Bargaining And Its History". Columbia Law Review. 79 (1).
3
Studies in History and Jurisprudence, Vol. I, p. 120.
4
Vouin, Robert, The Protection of the Accused in French Criminal Procedure, International and Comparative
Law Quarterly, 5(2), 157–173(1956).
5
Taylor, Natalie, Juror attitudes and biases in sexual assault cases, Semantic Scholar, (August 2007).
6

From 1793 to 1832, a series of Ordinances whittled away at certain clauses of Moslem law
that insulted European sensibilities,6 and Act VI of 1832 established a new structure that
enabled judges to enlist the help of respectable natives as panchayats in the judgement of
suits or trials. The final decision did not rest with these panchayats, but it seems that this was
meant to be the tip of the spear for the gradual implementation of the British jury system into
India.7

The attempt was not successful, indeed Sir George Campbell, writing in 1852, described it as
an entire failure. He said: " No one is compelled to serve on the jury. It is alien to the feelings
and customs of the country, and the Panchayat or Jury of arbitrators chosen by the parties to
decide between them in a civil case is a native institution, but to be summoned by
Government to decide on the guilt or innocence of a person in whom they take no interest is a
hardship and unprofitable responsibility much disliked by natives.”8

Despite the fact that Sir George Campbell's opinions were generally held by British Indian
Administrators, jury trials were formed tentatively in the Sessions Courts after the transition
of authority from the East Indian Company to the Crown under the Criminal Procedure Code
of 1861. (Act XXV of 1861).9 The Act's rules on jury trials, on the other hand, only extended
to certain jurisdictions and for the prosecution of such offences that the municipal authority
could order, which it might cancel or change at any time. In fact, the scheme was extended in
Bengal to the areas around Calcutta, Dacca, and Patna, and then to the entire state of Assam;
in Bombay to Poona, and in Madras for crimes against women.10

Trial with the assistance of assessors was the law in all other sessions districts and for other
offences, and it is still the case in the majority of India. A judge seated with assessors, who
may be two or more in number, usually three or four, is allowed to report their judgement but
is not bound by it.11 One inconvenient consequence of this procedure is that in cases where
the jury system is only used on such offences, such as in the many courts in which people are
charged with both crimes triable by jury and crimes triable by assessors, the same people
serve as jury and assessors, giving a verdict on one part of the case and an opinion only on
the other.

6
Jury Act 1977 - Sect 55f Majority Verdicts In Criminal Proceedings, www.Austlii.Edu.Au.
7
Jean-Louis Halpérin, Lay Justice in India, (25 March 2011).
8
Modern India, p 473.
9
Report of the Jury Committee Bihar, 2 (1952).
10
Law Commission India Report, Ministry of Law, On Reform of Judicial Administration 14 (1958).
11
Sir Alfred Denning, Freedom Under the Law, Hamlyn Lectures 63 (1949).
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The convicted people are charged with dacoity, which is tried by assessors, and with
disposing of stolen goods, which is tried by jurors. This practise, which is mandated by law,
results in a slew of erroneous decisions.12

There was no appeal from a verdict unless it was on a matter of fact, and no appeal from an
acquittal under the 1861 Code. The trial judge's powers were limited to accepting the
judgement of a preponderating percentage of the jurors, including six out of a jury of nine,
five out of seven, and four out of five, with the latter being the required number of jurors, and
ordering a retrial if that proportion was not met. A retrial resulted in an acquittal. 13

Due to the difficulties of getting a conviction even in simple circumstances, it became clear
that certain laws were to be drastically amended, and lawmakers went back to work. In 1872,
a new Criminal Procedure Code (Act X of 1872) was enacted, repealing the Act of 1861 and
including the following major changes of procedure: (a) the minimum number of jurors in
sessions trials was reduced to three; (b) if the court disagrees with the verdict of the jurors, or
a majority of those jurors, and considers it necessary for the ends of justice, it may submit the
case to the High Court14, and " the High Court shall deal with the case so submitted as with
an appeal, but it may convict the accused person on the facts, and if it does so shall pass
such sentence as might have been passed by the Court of Session "; (c) An appeal from an
acquittal order can be directed by the local authority. Previously, an appeal from a verdict
was limited to a matter of fact.

The right of the trial judge to refer a case to the High Court and the authority granted to the
High Court on such a referral, as well as the power of the municipal government to appeal an
acquittal decision, have remained on the Statute Book to this day. All of these laws have been
the focus of case law, and there have been two subsequent Acts, the Codes of 1882 and 1898,
but the rules have remained intact despite changes in the usage of the powers granted.15

In general, Indian courts have been unable to go to the extreme allegedly approved by the Act
of 1872, namely, disregarding the jury's findings entirely where the trial judge disagrees with
the decision and refers the matter.16 he case. Thus, at the very outset in 1873 a Bench of the
Calcutta High Court, Macpherson and Morris JJ. ruled: "I think we ought not to inter- fere
12
Sir Patrick Devlin, Trial by Jury, Hamlyn Lectures 49 (1956).
13
A.G.P. Pullan, Trial by Jury in India, 28 3/4 , Cambridge University Press on behalf of British Institute of
International and Comparative Law (1946).
14
Yoshida Narutoshi, The case for abolishing jury trial as in the English legal system analysis of the issues and
consequences, King’s College London, 16 (2015).
15
Jean Louis Halperin, Western Legal Transplants and India, 2 1, Jindal Global Law Review (2010).
16
James A. Jaffe, Custom, Identity and The Jury in India, 1800-1832, 57 1 Cambridge University Press, (2014).
8

with a verdict, unless we can say decidedly that we think that it is clearly wrong. If we are to
interfere in every case of doubt-in every case it may with propriety be said that the evidence
would have warranted a different verdict- then we must hold that real trial by jury is
absolutely at an end, and that the verdict of a jury is of no more weight than the opinion of
assessors. I presume that if this were the intention of the Legislature, it would have said so,
but the Legislature has not said so”.17

Act X of 1882 fixed the number of jurors in the High Court at nine, and retained a minimum
of three for Sessions Courts.18 It altered the wording of the section dealing with reference by
the trial judge as follows: "If in any such case the sessions judge disagrees with the verdict of
the jurors or of a majority of the jurors, on all or any of the charges on which the accused
has been tried, so completely that he considers it necessary for the ends of justice to submit
the case to the High Court, he shall submit the case accordingly, recording the grounds of
his opinion, and when the verdict is one of acquittal, stating the offence which he considers
to have been committed. In dealing with the case so submitted the High Court may exercise
any of the powers which it may exercise on an appeal, but it may acquit or convict the
accused of any offence of which the jury could have convicted him upon the charge framed
and placed before. it."19

The powers of the High Court in a normal appeal from a jury were restricted as follows:
"Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury
unless it is of opinion that such verdict is erroneous owing to a misdirection of the judge or
to a misunderstanding on the part of the jury of the law as laid down by him." However, this
was not interpreted to interfere with the verdict of the High Court on the facts of a case under
reference.

The present Act (V of 1898) laid down the number of jurors as nine in the High Court and
from five to nine in a Sessions Court, "but not less than seven or if practicable nine when the
offence charged is punishable with death" In this Act for the first time a guide is given to the
High Court as to their treatment of the verdict of the jury by the addition of the following
provision in Sec. 307:

“In dealing with the case so submitted the High Court may exercise any of the powers which
it may exercise on appeal, and subject thereto it shall after considering the entire evidence

17
Queen v. Sham Bagd, 3 xiii Bengal Law Reports (Cr), p. 19, appendix.
18
M.C. Setalvad, The Common Law in India, (Twelfth Series, Steven & Sons Limited 1960).
19
R v Bushell, (1670) 124 E.R. 1006.
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and after giving due weight to the opinions of the sessions judge and the jury acquit or
convict such accused of any offence of which the jury could have convicted him upon the
charge framed and placed before it.”

Many Indian court rulings have been focused on these pages. The overwhelming majority of
judges agree that the High Court does not overturn a jury's decision, whether unanimous or
by a majority, unless it is perverse or irrational, or, as other judges have said, such as a fair
body of men may not have provided. The other line of thinking holds that the High Court will
revisit the whole case and substitute its own verdict for that of the jury, possibly more closely
adhering to the spirit of the statute. In a few cases, a decision had to be taken regarding the
preference of judge over jury and the Calcutta High Court had preferred the decision of the
judge saying that: “he (the judge) has been trained to weigh and appreciate evidence and
further must give reasons for his opinion”20

On appeal by the Local Government from an order of acquittal by a judge sitting with
assessors, the High Court has broad powers. Previously, it was thought that the High Court
could not intervene until the lower court had "obstinately blundered" or drawn such skewed
assumptions as to create a positive miscarriage of justice “through incompetence, stupidity or
perversity”. However, the Privy Council ruled in 1934 that the High Court's authority should
not be limited until it is specifically specified in the Code, and there is little to preclude the
same rules from being applied to appeals from jury acquittals.21

The Privy Council recently determined two cases in which the powers conferred by the
Legislature on the Indian High Courts were considered, the first on an appeal and the second
on a referral by a trial judge.

In the first case, Abdul Rahim v. The King Emperor, 22 decided on February 26, 1946, by
Viscount Simon, Lords Macmillan, Wright and Simonds and Sir John Beaumont, the Board
had to decide if the High Court was empowered to (1) exclude inadmissible evidence from a
jury trial and maintain a conviction whether the evidence remaining was sufficient to warrant
it, and (2) proceed itself to consider the egregious cases of jury misdirection and non-
direction.

The Board considered the law as mentioned above, as well as two general sections, namely, s.
537 of the Criminal Procedure Code and s. 167 of the Indian Evidence Act (I of 1872), which
20
Emperor v. Ram Chamdra Roy, 4 I.L.R. 55. C., p. 579 at 886.
21
Sheo Swarup and others v. The King Emperor, I.R. 61 I.A., p. 398.
22
Abdul Rahim v. The King Emperor, (1946) 73 Ind. App. 77.
10

prevent appellate courts from interfering on the basis of misdirection or improper admission
of evidence unless the error has resulted in a miscarriage of justice. 23 The opinion of the
Board, delivered by Lord Macmillan, proceeds:

"No one can read these statutory enactments without realizing the wide disparity between the
law of India and the law of England in their respective attitudes to the verdict of a jury in
criminal cases. In India the law is purely the creation of statute, and the introduction of the
system of jury trial among a people who had no previous experience of its working was not
unnaturally accompanied with safeguards and modifications appropriate to such
circumstances. In England, on the other hand, trial by jury, the palladium of British justice,
as Blackstone terms it, is an institution deeply rooted in the minds and habits of the people,
with which they have been familiar from time immemorial. It is therefore not surprising to
find the verdict of a jury treated differently in Indian criminal legislation. To emphasize the
difference, it is enough to point out that the statute law in India in certain circumstances
permits an appeal against a jury's verdict of acquittal, and authorizes the Appellate Court to
substitute a conviction on its own consideration of the evidence. Time and again eminent
judges in India have drawn attention to the importance of bearing these circumstances in
mind, and the danger of allowing preconceptions derived from English practice to influence
the decision of Indian cases (see for example the observations of Jackson J. in the case of
Elahee Buksh (1866) 5 Sutherland's Weekly Reporter, 80 at p. 94). This is not to say that the
verdict of a jury is to be lightly regarded in India. Far from it. The Legislature has enjoined
Appellate Courts expressly to pay regard to it. But at the same time, it has thought it right
and necessary in the circumstances of India to confer upon Appellate Courts extensive
powers of over-ruling or modifying a verdict in the interests of the due administration of
justice, confident that the appellate judges who have not themselves seen and heard the
witnesses, will not exercise lightly the responsible power entrusted to them.”

In the second case, Ramanugrah Singh v. The King Emperor, decided by Lords Thankerton,
Porter and du Parcq, Sir Madhavan Nair and Sir John Beaumont on June 18 1946, the Board
was presented with a situation in which three men were shooting, two of whom were just
injured and one of whom was killed. The jury found the defendants guilty of shooting and
killing the two men who survived, but not of murdering the third man. The lawyer, who
disagreed with the jurors on the murder charge, appealed the matter to the High Court,
claiming that the jury's decision was inconsistent and that a sentence for culpable homicide
23
Christy A. Visher, Juror Decision Making: The Importance of Evidence, 11 1 Springer (1987).
11

that did not equate to murder was the correct verdict. The High Court examined all of the
facts and determined that an accusation of murder was made out, and sentenced the defendant
to life in prison.24

The opinion of the Board, delivered by Sir John Beaumont, after setting out the relevant
section of the Code, s. 307 of the Code of Criminal Procedure, Act V of 1898, proceeds:

"Under subsection (1) two conditions are required to justify a reference. The first that the
judge must disagree with the verdict of the jury calls for no comment, since it is obviously the
foundation for any reference. The second that the judge must be ' clearly of opinion that it is
necessary for the ends of justice to submit the case,' is important and in their Lordships’
opinion provides a key to the interpretation of the section. The Legislature no doubt realized
that the introduction of trial by jury in the Mofussil would be experimental and might lead to
miscarriages of justice through jurors in their ignorance and inexperience returning
erroneous verdicts. Their Lordships think that the section was intended to guard against this
danger, and not to enable the Sessions Judge and the High Court to deprive jurors acting
properly within their powers of the right to determine the facts conferred upon them by the
Code. If the jury have reached a conclusion upon the evidence which a reasonable body of
men might reach, it is not necessary for the ends of justice that the Sessions Judge should
refer the case to the High Court merely because he himself would have reached a different
conclusion upon the facts, since he is not the tribunal to determine the facts……In their
Lordships' view the paramount consideration in the High Court must be whether the ends of
justice require that the verdict of the jury should be set aside. In general, if the evidence is
such that it can properly support a verdict either of guilty or not guilty, according to the view
taken of it by the trial court, and if the jury take one view of the evidence and the judge thinks
that they should have taken the other, the view of the jury must prevail since they are the
judges of fact."

The High Court made no criticisms of the jury's decision in the case at hand, because it was
evidently a decision that was made in good faith. By following in large part the opinion of
those Indian High Courts who have held that a fair decision should not be set aside simply
because the High Court takes a different view of the facts, the Board has brought a long-
running dispute to a close.

24
J.E.R Stephens, The Growth of Trial by Jury in England, 10 3 The Harvard Law Review Association (1896).
12

The effect of these two decisions is to strengthen the position of Indian juries by assuring
them of support as long as they reach a reasonable conclusion (1) in cases where inadmissible
evidence has been presented to them but there is sufficient material for their verdict apart
from that inadmissible evidence, and (2) in cases where the trial judge and the High Court on
referral do not reach a reasonable conclusion. The jury, on the other hand, is also under
instruction. It operates in a limited portion of India and is subject to protections that are
unheard of in this region. We have arrived at a point where the highest judicial tribunal in the
Empire has recognised that the voice of the jury must be heard, and its verdict accepted on
facts, unless the verdict is perverse or unreasonable; but, as long as the provision that the
High Court will review the evidence and substitute its own finding remains in place, the
Indian jury will not be able to reach this point.25

Regrettably, those with the most familiarity with Indian juries do not hold them in high
regard. They were chosen from common people, and it is impossible to say whether or not
their countrymen consider them as neutral or incorruptible. In ethnic and communal matters,
no one can knowingly agree to a verdict made by a panel of people of a different colour or
faith. It was always important to give Europeans, whether British subjects or not, and
Americans the right to have a majority of the jury made up of Europeans or Americans, and
an Indian British subject will now say a majority of Indians. The wide range of premises on
which a challenge is permissible is instructive. They include (a) the juror's assumed or true
partiality, (c) his having relinquished all care of earthly affairs through habit or religious
vows, and (g) his failure to comprehend the language in which the evidence is given, or when
such evidence is read, the language in which it is interpreted.26

The fact that such rules are required demonstrates the enormous challenge of implementing
jury trials in a country with many different faiths, myriad ethnic and linguistic disparities,
where many of the best citizens' ideal is total renunciation of worldly affairs, and where the
quality of general education is poor. The trajectory of this experiment, which has lasted more
than a century, is not promising. The seed has been sown and re-sown, watered and tended
with patience and consideration, but the root has yet to strike deep in the hearts of the Indian
people. While English law has done much for India, and it is hard to deny that it has

25
Ram Raz, H. S. Graeme, On the Introduction of Trial by Jury in the Hon. East India Company's Courts of
Law, 3 2 Cambridge University Press, (1836).
26
Richard Vogler, The International Development of the Jury: The Role of the British Empire, 72 (2001).
13

influenced the administration of justice in many ways for all time, it is debatable if any solely
Indian rule, such as that proposed at the moment, will find a place for the jury system.27

BIBLIOGRAPHY

27
Tricia Harris, Trial by jury: Has the lamp lost its glow?, 3 2, Diffusion: the UCL an Journal of Undergraduate
Research. (2010)
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Books and Journal Articles

 M.C. Setalvad, Padma Vibhushan, The Common Law in India (Twelfth Series, Steven
& Sons Limited 1960).
 Michael Zander, Cases and Materials on the English Legal System (10th edition,
Cambridge University Press, 2007) 20.
 Sir Charles Fawcett, The first century of British justice in India: an account of the
Court of judicature at Bombay, established in 1672, and of other courts of justice in
Madras, Calcutta and Bombay, from 1661 to the latter part of the eighteenth century
(Oxford: The Clarendon press, 1934).
 Lord Hailsham of St. Marylebone, Halsbury’s Laws of England (Volume II,
Butterworths, London 1990). 6. A.G.P. Pullan, ‘Trial by Jury in India’ (1946) Vol. 28
No. 3/4 Cambridge University Press on behalf of British Institute of International and
Comparative Law.
 Christy A. Visher, ‘Juror Decision Making: The Importance of Evidence’ (1987)
Vol.11, No. 1 Springer.
 James A. Jaffe, ‘Custom, Identity and The Jury in India, 1800-1832’ (2014) Vol.57
Issue 1 Cambridge University Press.
 Jean Louis Halperin, ‘Western Legal Transplants and India’ (2010) Vol. 2 Issue 1
Jindal Global Law Review.
 J.E.R Stephens, ‘The Growth of Trial by Jury in England’ (1896) Vol. 10, No.3 The
Harvard Law Review Association.
 Ram Raz, H. S. Graeme, ‘On the Introduction of Trial by Jury in the Hon. East India
Company's Courts of Law’ (1836) Vol. 3, No. 2 Cambridge University Press.