The Colonial Difference between Law and Fact: Notes on the Criminal Jury in India

The Nanavati Case and its Antecedents

In the late 1950s, the Indian public witnessed the Nanavati case, involving the trial of an Indian Navy commander, Kawas Manekshaw Nanavati, for the murder of his wife’s paramour. The special jury in the Sessions Court in Greater Bombay, where the trial was conducted, decided that Nanavati was not guilty by a majority of eight to one. The trial judge in the Court of Sessions referred the matter to the Bombay High Court, having opined that the verdict of not guilty was ‘perverse’ in the light of the evidence presented and that it was in the interests of justice that it be reconsidered. ² The High Court overturned the verdict, commenting that while there was nothing morally wrong with what Nanavati did, a man could not be allowed to take the law into his own hands and commit murder. ³ The case was eventually resolved through executive pardon and not through a courtroom trial. Soon after the Nanavati case, trial by jury in criminal cases was abolished in India. Throughout the trial, the media, particularly the Bombay-based weekly tabloid Blitz, kept up a constant refrain for his release. ⁴ Rumour has it that the jury was greatly influenced by the frame-by-frame retelling of the trial in the local newspapers, and no less by the arresting image of a handsome Nanavati in his naval uniform. Given this sequence of events, the abolition of jury trial is attributed to the role that the media played in the Nanavati case.

Although this article takes the Nanavati case to commence an enquiry into the jury system in India, it goes beyond the question of the media’s influence on juries to critically engage the question of ‘influence’ in courts in the colonial context where much of criminal procedure was fashioned. ⁵ In addition to looking at court judgements, it tracks the rise and fall of jury trial by looking at official and non-official debates, discussions and interventions in colonial India. It demonstrates how uncovering multiple layers to the idea of colonial difference provides insights into colonial legal culture. Rather than seeing race as the sole indicator of difference, the discourse surrounding the use of juries in criminal justice administration also invoked religion and language. As much as it attempts to illuminate these questions, the article also hopes to historicise the role of a judge in contemporary India. The discussion on juries in criminal cases in the Anglo-American system typically focuses on the division of legal labour between judge and jury—the judge rules on the law, while the jury decides on facts and applies the law. The difference between ‘law’ and ‘fact’ in colonial Indian debates collapsed against the larger framework described earlier. These considerations created a judge-centric model in postcolonial India by slowly diluting the power of juries. ⁶

The focus of this article is only on the criminal jury and not the civil jury, the latter having existed for a much shorter span of time. ⁷ A significant part is devoted to legal developments in nineteenth-century colonial India. I first lay out the regulations, statutes and court practices that formed the legal basis for the jury system before criminal procedure was codified. The political impetus for the introduction of the jury system was provided as much by the European non-official population and their ‘fear’ of the arbitrary justice at the hands of the native judges as much as by the attempt by the British to educate the Indians in self-government or quell rebellion. How does this speak to the role of the judge in colonial India, the shifting character of colonial law and legal reasoning, as well as the debates on sovereignty?

Criminal Procedure in Legal Laboratories

The legal and political justifications for the jury system in colonial India predictably run closely together, especially in the nineteenth century. ⁸ As historians of colonial India have argued, the colonies functioned effectively as a laboratory for experimenting with legal reform along ‘liberal’ lines. ⁹ This particularly held true in the case of criminal law. ¹⁰ The period of codification in India between 1830 and 1870 was also the time when criminal law reform was underway in England. Elizabeth Kolsky and Radhika Singha have mapped the trajectory of such experiments, both in the case of substantive criminal law and criminal procedure. ¹¹ While Singha highlights that criminal law reform in British India—from faujdar to faujdari adalat—was addressed to a British public and frequently looked to it for approval, Kolsky highlights that the ‘civilised’ forms of criminal justice administration that were introduced still dispensed highly racialised forms of justice. Moreover, in explaining the move towards criminal codes according to which courts functioned, Kolsky clearly designates the British non-official population as being prime movers. ¹² A justification that was often mentioned was that the European British subject could not be subject to an unfamiliar system of laws, or denied any of the ‘rights’ that one would enjoy in England. Chief among these claims was the right to a jury trial, which an Englishman acquired at birth and followed him across territorial boundaries. The nature of legal reform in criminal justice administration reflected these attempts to strike a balance between British demands and native considerations, but also a tension within the liberalism of the British Empire. ¹³

John Langbein and James Oldham, among others, have demonstrated how the jury in the common-law tradition evolved as a means of laypersons participating in the adjudication of disputes, first as a self-informing jury comprising persons from the locality who would bring their understanding of the facts to the case; and later as a group of persons who would apply the law, acting upon directions from a presiding judicial officer. ¹⁴ Marianne Constable discusses the mixed jury, an institution ‘forgotten’ by history, which was put in place to ensure aliens in Britain at the time would be granted fair and equal justice. ¹⁵ Given these ‘precedents’, it is tempting to see the jury, especially the mixed-race jury, as a legal export. However, the substance of the jury system in colonial India hardly resembles its metropolitan form. There was no strict equivalent in India, although parallels have been drawn with the panchayat system of pre-colonial times. ¹⁶ It is precisely this dissatisfaction with ‘indigenous’ forms of criminal justice which forms the background to the introduction of the jury system, that would mark the liberty rights of Englishmen. The panchayati system here is automatically designated as the unorganised, arbitrary method of justice dispensation, a more communitarian/customary form. Singha describes the qazi in the Islamic criminal legal system, who took into account the social and economic status of the parties to decide punishment in the pre-company court era. ¹⁷ The discretion available to the qazi is described as being ‘exercised with venality’. The English criminal jury would improve and replace this.

The concerns about the organisation of colonial court structures were longstanding. The power struggles between the English government and the English East India Company form the background to the constant institutional reform that took place. The scattered material that formed the basis of codification of laws, the arbitrariness in the selection of the texts and translations, creating court structures and staffing the ranks of the judicial bureaucracy are adequately described in scholarship. ¹⁸ Until the introduction of the Indian Civil Service in 1855, professionally trained judges and lawyers were few and far between. ¹⁹ The office of the judge was not always thus exalted. John Norton, writing about the early colonial period, described how Collectors concerned with the revenue administration were valued more as civil servants since that was the primary objective of the Company and how those inferior in ability would be transferred to being judicial officers. ²⁰ It was often referred to as a ‘refuge for [the] destitute’. Later on, however, barristers with the requisite years of standing were appointed as judges, which raised the prestige of judicial office. During these earlier years of British colonial rule, the inexperience of the Company officials or the traders was seen to be a lesser evil than the participation of ordinary ‘native’ people in criminal trials.

Between the 1820s and 1861 (when the Code of Criminal Procedure was first introduced), the changes in the statutory framework with respect to the jury system constantly displayed a struggle with the difference in status between the non-official and official populations. Until 1861, there were parallel systems of Company Courts (where the criminal law administered was the Islamic criminal law modified by regulations of the English East India Company) and Crown courts (where the law applied was the law of England). ²¹ The apex Crown courts in the Presidency towns of Bombay, Calcutta and Madras were the Supreme Courts, whose procedures were defined separately by Letters Patent. Juries were established by Letters Patent in the Supreme Courts in 1774, 1800 and 1823 in Calcutta, Madras and Bombay respectively. ²² In the Company criminal courts in the mofussil, the judge would be assisted by a maulvi, or a native law officer who would explain Islamic law to the presiding officer and issue a fatwa, a scholarly opinion on the legal issue at hand. The Company Courts too had their version of the jury system before Regulation X of 1827 of the Madras Code made the first break with the use of native law officers, stating that circuit judges or faujdari adalats did not require a fatwa to decide guilt and it would be decided by a jury. Regulation VI of 1832 of the Bombay Code had similar provisions. Calling this move one ‘from maulvis to juries’, Singha states that this idea of using ‘respectable Indians’ in the project of a universal law reform project was one that created discomfort in religious communities. ²³ By 1864, the office of the native law officer was abolished and sessions judges were competent to take the aid of respectable natives or other persons as assessors or as a jury. The jury and assessors were to attend the trial, suggest points of inquiry and to finally deliver a verdict. ²⁴ John Bruce Norton, the Advocate General of the Madras Presidency and the Government Pleader at the time, wrote in 1853 of the provisions being a ‘dead letter’ in the Madras Presidency and almost ‘impossible’ to apply, as though the problem of the jury was to be attributed to the reluctance of Indians to participate in this system. ²⁵ Nevertheless, Norton advocated retaining the grand jury, used to determine whether a case should go to trial at all, to protect against the ‘litigious’ natives. ²⁶ The participation of Indians in the system was therefore largely seen to be disruptive in nature. At the same time, amendments to criminal procedure reflected negotiation of legal status against political status.

The enactment of criminal codes around the 1860s was also prompted by the 1857 ‘revolt’, which brought the question of conspiracies, underground communication and surveillance into prominence. ²⁷ The ‘Act for the Better Government of India’, passed in 1858, brought India under the direct rule of the Crown, reframed colonial rule as one that was in the interests of the natives, leading to eventual self-government. ²⁸ The change in the colonial discourse by this time also had an impact on the tone in which the jury system was spoken of. Singha notes how the jury system was introduced in the early nineteenth century in the wake of communal riots. Allowing the ‘natives’ to participate in the administration system was a conciliatory measure. ²⁹ It was also seen as a strategic move to prevent further discontent and rebellion. The Indian Jury Acts were also passed in 1832 and 1826, having had to contend with a number of petitions from progressive Indians. Therefore, while the jury trial was well on its way to being obsolete in England owing to the rise of prosecutorial bargaining by 1850, it was obligatory in the High Courts of Calcutta, Madras and Bombay in criminal cases heard in exercise of their ordinary original criminal jurisdiction. ³⁰

These statutory changes may be better understood in the context of those involved in and affected by the colonial government. An examination of the debates on the jury system also offers another explanation. The initial call for juries to be introduced in colonial India supports Kolsky’s thesis that non-official British populations were equally the subject of concern during the period of codification from the 1830s to the 1870s. Kolsky pointed out that European criminality posed a problem for the British administration, particularly as it went about the process of legal reform for the colonies. However, this was also a segment of the population that was very vocal about their ‘rights’ and ‘privileges’. British settlers, factory owners and traders voiced their dissatisfaction with the manner in which Company courts ‘liberally’ awarded punishments to Europeans and Americans. ³¹ There were insinuations that British trade and investment would gradually pull out if there was no legal guarantees for them. Commentators argued:

No greater or complicated effort is required from the British Parliament than it should give to Englishmen the liberty of unlicensed resort to and residence in India, with the right of trial by jury in all cases. Without such indispensable protection, no Englishman will invest capital in agricultural or manufacturing speculations and India may continue forever stationary in wealth, civilization and happiness. ³²

By 1833, when the Company’s monopoly on trade was lifted, there were greater concerns about the impact that criminal justice systems could have on the merchant and trader population. Those in support of a jury system increased. Suggestions were made that a jury that tried Europeans or Americans be composed of at least one half of their ‘peers’, that is, persons belonging to the same race. ³³ Although criminal law and criminal procedure reform was high on the priority of the First Law Commission set up with Thomas Macaulay as Law Member in the same year, it was not until 1861 that the Indian Penal Code (1860) and the Code of Criminal Procedure were brought into force in British India. The dual system of courts was abolished and High Courts were established starting in the same year. While the High Courts were to necessarily employ it in all cases specified in the 1774 Act and the later 1861 Act, for the subordinate courts, the provincial (‘local’) governments could specify in which districts and to which class of offences jury trial could be used. ³⁴ The notification of districts and classes of offences to which the jury system applied varied greatly across British India. Progressives like W.C. Banerjee and Raja Ram Mohan Roy also around the 1850s argued that it allowed Indians to have a say in judicial interpretation. ³⁵ Indeed, in some ways, these Indian elites considered it to be a privilege to serve on a jury; Stephen had predicted much the same when he wrote the History of the Criminal Law of England. ³⁶ By the 1850s, the Indian elite seemed to have agreed upon retaining a jury system. Thus, the criminal jury, which had functioned as a check on the royal prerogative in England, functioned as a means of wrangling privileges from the Crown for the economic prosperity occasioned by the English East India Company traders and merchants. Some progressive Indians in the mid-nineteenth century, inspired as they were by the very idea of legal reform at the time, seem to have found the idea of participating in criminal justice systems irresistible.

Provisos: Difference in Multiple Modes

If we examine the legislative changes closely, an explosion of discussions surrounding difference becomes visible. The rule of colonial difference is often spoken of in terms of race and no doubt, it is the most apparent distinction made in the Code of Criminal Procedure, 1861. The Code and judicial decisions under the relevant provisions become the most important historical evidence available; unlike the common law on juries in England, the power of the juries and of the courts in which they functioned were those defined in statute and no more. ³⁷ The definition section contains references to the ‘European British subject’, which is then referred to in the course of the various provisions as the exception to the rule. The provisions relating to the jury system are laid out in Chapter XXIII of the Code and much of the Chapter is devoted to specifying the exception and then the rule. However, the discussions behind the text of these provisions were built not just upon racial difference, although this is what the text records. I specifically pick up this strand from Kolsky’s work on the ways in which the Code of Criminal Procedure used and built up on the role of colonial difference. ³⁸ Chatterjee also alludes to the possibility of multiple lens through which difference could be viewed, but this is more cursory. Race is marked out to be the most important of these ‘differences’ and the most referenced. ³⁹ I will specifically look at the jury system played on differences such as religion or language, in addition to the oft-quoted reference to race. As scholarship has already demonstrated, these were not self-evident categories, but those that were actively produced and perpetuated through legal institutions and legal practice. ⁴⁰ What is further interesting about these differences was that while race was a difference that had to be justified on principle, religion and language as difference performed better because they could easily be explained away as being ‘pragmatic’ considerations in adjudication. ⁴¹

In the first instance, the statutory framework itself made distinctions on grounds of religious affiliation and religious practice. Religion had long been identified as the great divide, between populations in India as well between the British and the natives. The Regulations in the different Presidency Towns (discussed earlier) were passed after the Indian Jury Acts in the British Parliament. Under the Jury Act of 1826, if there was to be a grand jury or a jury to be formed for the trial of Christians, then the jurors had to profess the Christian faith. I take up a specific example here to illustrate how this was thinly veiled. The correspondence between Charles Grant, at the time heading the Board of Control for India and a Member of Parliament in the House of Commons and the Chairman and Deputy Chairman of the Court of Directors of the Company provides insights into the reasons for abolishing or retaining the discriminatory provisions on the jury. ⁴² Robert Campbell and John Ravenshaw wrote that ‘much reflection’ was required before Christians could be tried by Hindu or Muslim jurors on ‘questions involving life and death’. ⁴³ Replying to Charles Grant’s rather weak argument that the law only made Hindus and Muslim eligible to be jurors and did not mandate their participation expressly, ⁴⁴ they insisted that the native population were ‘unlikely’ to reach this degree of civilisation so as to develop a ‘community of feeling’ with the European or Americans who were being tried. ⁴⁵ Grant responded by saying that a ‘community of feeling’, if this was indeed the cornerstone of the jury system, did not necessarily flow from an identity of religion. Indeed, European accused would benefit from a jury of natives because they could ‘escape’ from the prejudices that were likely to prevail amongst their peers, since the European population in India was very small. ⁴⁶ Interestingly, Raja Ram Mohan Roy, who was interviewed in 1832 in London on the judicial system in India, during the time that this correspondence took place, opined that since Islamic criminal law was mostly in force in India, the jury should be composed entirely of Mohammedans, ‘until the other classes may have acquired the same qualifications, and the Mohammedans may become reconciled to cooperate with them’. ⁴⁷ Ram Mohan Roy was also involved in petitioning the Court of Directors of the Company and the British Parliament to revoke these discriminatory provisions. In 1832, against the wishes of the Company, this provision was removed. ⁴⁸

However, these debates about religion were not just confined to official correspondence or debate about legislative changes, nor did it end up with the changes made in 1832. Apart from the rumors and impassioned speeches, popular writing for and against the jury system also sought to highlight why denying a European or an American the right of jury trial by his peers was a grave injustice. In 1850, a pamphlet titled ‘Tyranny in India! Englishmen robbed of trial by jury and English criminal law’ was published in London and circulated widely. The subtitle of the pamphlet was ‘Christianity Insulted!’ and it was in response to the Act of 1849, where the specific nature of jury selection and disqualification was discussed. ⁴⁹ Trial by one’s peers was denied to an Englishman, the pamphlet called upon the British public to sympathise with those Christians who had been ‘degraded’ to the level of Hindus or Muslims by the government of India. ⁵⁰ The circulation or readership of this pamphlet is not known, and there is no compelling reason to see it as indicative of a dominant public opinion. However, its author, Lord Ellenborough, the First Lord of the Admiralty and the Governor General of India, who had completed his term in office just before this pamphlet was written, had long been a fierce advocate of a separate system of laws for the natives, on the grounds that they were accustomed to subordination and to do anything else would be in fact, unjust. ⁵¹

Inexperience was not just merely in terms of a lack of familiarity with the procedure, but in terms of a discomfort with any procedure that impacted religious practice. For instance, Singha notes how a Hindu juror declined to convict a prisoner in the face of ample evidence because he did not want blood on his hands. ⁵² Even as colonial administrators despaired of native Hindu jurors as being ineffective owing to their lack of interest in ‘worldly affairs’, scholars of the criminal jury trial in England have spoken of the great fear that Christian common law jurors in early modern England had of eternal damnation if they convicted wrongly. ⁵³ Fearing eternal damnation, in the opinion of the British administrators, the jurors selected with ‘great difficulty’ by the presiding judge would equate deciding against someone, especially another Indian, as a case of ‘snitching’. By 1840, the offices of the mullah and the gangajalli, officers who administered the oath to Muslims and Hindus in courts, were abolished. ⁵⁴ The Indian Oaths Act was passed in 1873, and jurors were to be administered the oath in line with this legislation, ⁵⁵ an attempt in the wake of the ‘universal’ criminal codes, to eliminate religious practice from all aspects of a trial. On the other hand, William Forsyth, who wrote a history of the trial by jury published in 1875 noted how ‘…little reverence the natives have for the truth, even when guarded by the sanction of an oath’. ⁵⁶ Official discourse discredited the native juror on the grounds of being inhibited by religion while popular notions of the native jurors seem to focus on their disregard for the same.

The second set of concerns surrounding the jury system was surrounding questions of language and translation. Pamphlets had already begun to speak of the small pool of people who could speak English, and therefore were eligible to serve on juries. ⁵⁷ Progressive reformers such as W.C. Banerjee and Raja Ram Mohan Roy argued to retain the system on different grounds. In the interview published in 1832 which has been referred to earlier, Roy placed his sympathies squarely with the administration, saying that ‘even the ablest and best intentioned judge’ could not keep with the overwhelming amount of judicial business being transacted in a foreign language. Indeed, he terms the lack of a common language the first obstacle to the administration of justice. ⁵⁸ English had gradually begun to replace Persian as the official court language from the eighteenth century onwards, but this was with respect to the court documents and to the court officials, reminiscent of Cohn’s ‘language of command’. ⁵⁹ A similar experience with the criminal jury in Ceylon had used Sinhala and Tamil translations for the jury members who spoke these languages, but the challenges associated with this meant that soon enough, mostly English speaking juries were being used in the courts. ⁶⁰ Lost in translation of select scriptures/texts was the power of particular communities to define themselves, as for instance, in the Great Khoja case in the Bombay High Court in 1866. ⁶¹ In these accounts, the discussion is on the interpretation of texts and the problems that might arise therein. Directing a set of jurors drawn from the ‘ordinary’ population in a courtroom would have posed its own set of challenges in terms of language barriers.

Misdirection by the judge is frequently cited by High Courts in overturning jury verdicts by Sessions Court judges and many are specifically related to language capabilities. ⁶² In others, the reference under Section 307 of the Criminal Procedure Code concerned the powers of the High Courts. Here, I pick up on three cases decided at three different points in time. In 1886, W. Comer Petheram, Chief Justice and H. Beverly, puisne judge of the Calcutta High Court were asked to decide in Jaspath Singh v. Queen Empress ⁶³ whether a jury had correctly judged a case as being one of grievous hurt or ‘homicide’. The judges at the beginning of the judgement expressed their profound disgust at the manner in which jury trials are conducted in ‘this’ country—

I do hope that Judges in explaining the law to juries in cases in which juries are to act will take more pains in explaining the sections of the Code [of Criminal Procedure] and not leave the Code to the juries for them to find out the meaning of it themselves. ⁶⁴

The judgement concludes by stating that the law must be explained to the jury in ‘popular language’, for they will be unable to understand the intricacies of the law. In 1932, in Emperor v. Rafi Mian ⁶⁵ the Chief Justice of the Patna High Court at the time, Sir Courtney-Terell argues that the statutory provision is very clear as to the powers of the High Court to reappreciate evidence. He states that this is the case in spite of ‘…only a summary version of their evidence in a foreign language [being] available’. This trend continued in the cases surrounding the jury system in postcolonial India as well. For instance, in the case of Kapil Deo Shukla v. State of U.P. ⁶⁶ a mistrial was declared when five of the nine jurors did not know English and the evidence in the case was almost entirely in this language. ⁶⁷ The case was high profile enough to be covered in the newspapers.

The lack of comprehension of ‘legal’ language was further buttressed by the image of the duplicitous native. This was related in interesting ways to the concern about the prevalence of lying in the courtroom, in line with the picture of the ‘cunning’ and ‘litigious’ natives. For if the ‘natives’ could not be trusted to approach the system for the ‘right’ purposes, how could the public be trusted to associate with it as dispensing justice? Roy refers to the prevalence of perjury, owing to this impediment. In suggesting the jury system as a manner in which this gap might be bridged, he believed that the ‘knowledge and experience of the native’ could be combined with the ‘dignity and firmness of the European’. ⁶⁸ According to these statements, the comparative ‘advantage’ of the European is being firm and therefore, there would be no ambivalence in the statements made. Indeed, the proclivity of the natives to perjury had been highlighted on many an occasion. Writing in 1853, Norton says this of the ‘people’ of the Madras Presidency:

Lying is no disgrace to them, it is more than their habit; it has become their second nature: forgery, perjury and subornation of perjury are the common weapons on both sides in a contested suit. The Judge here starts from a diametrically opposite point to that from which he does in England. The probability here is that the witness is the witness, not of truth, but of falsehood; an oath, unless indeed it be on the cow’s tail, is of no effect…Love of litigation, and love of revenge, are two of the strongest among the Native passions: and when they have such means and tools ready at hand, and are utterly unscrupulous in their use, what wonder that our Courts are daily prostituted, and made against their will to pander to these abominable vices. ⁶⁹

The ‘high rates of litigation’ and the ‘lying’ native are characterisations that have been since explained to be ideologically invested in maintaining colonial rule. ⁷⁰ Roy, in his interview, had suggested that the presiding judge would easily be able to select jurors from respectable and intelligent natives known to be well-versed in judicial station. Among those that fall in this category were vakils, retired judicial officers, mukhtars and others. ⁷¹ However, as Singha notes, this was not a particularly easy task. ⁷² Further, they proved often to be of little assistance to the judge. As George Campbell stated, ‘…they would always agree and there would be no more trouble’. ⁷³ When the jurors were drawn from outside the lawyering community, the pleaders themselves argued that they were drawn from the ‘imperfectly educated classes’ and therefore, useless in deciding a case. Here, the problem of language is not just a literal difference. The ambivalence resulting from language resulted in stereotypes of the duplicitous native. The lack of an articulate ‘public’ from which to draw a pool of jurors able and willing to participate in the administration of justice was a compelling reason why the jury system was opposed in its later editions.

The notion of religion and language as creating schisms in the ‘palladium of British liberty’, was specific to the Indian experience, while concerns about the comparable ‘intelligence’ of judges and juries was echoed in other quarters. For instance, the politically charged conditions in Ireland led the Westminister Review in 1872 to suggest that the jury was prone to misuse:

In Dublin, the jury system, in the trial of Kelly for the murder of Talbot, appeared in a highly unfavourable light; resulting in an acquittal, in the face of evidence, on the charge of an act which the nationalist press and other known partisans of the prisoner, so far from indignantly denying, claimed for him as a deed of patriotism and righteous vengeance. ⁷⁴

Notably in the light of the Irish experience where juries were ‘intimidated’, James Stephen wrote in 1883, that a trial by jury was perhaps not necessary to the administration of criminal justice. Moreover, he added, jurors frequently fell asleep, listened mechanically, took terrible notes or had thoughts about other things! In fact, he stated in support of his proposition, the criminal jury was the exception in British India, not the rule. ⁷⁵ The anxieties about the criminal jury, particularly about the mixed-race jury, were coded in the language of influence.

The Rule of Good Law: Juries as Legal Misfits

Chatterjee, in elaborating upon the rule of colonial difference makes a difference between the two phases of ‘social reform’—the first where the intervention of the colonial state was welcomed and the second, where difference was used by the Indians to argue that there were ‘private’ affairs which the state could infringe upon. ⁷⁶ The first phase is demarcated as those years from 1820–70. Kolsky’s discussion on the criminal justice system spans both phases. ⁷⁷ The broad overtones of such an argument were that a modern criminal justice system would require the participation of its equal subjects, whether they were European or Indian. However, after the enactment of codes on criminal law and procedure, difference, particularly racial difference, was written into the text. Wherever it was written out by amendment, as in the case of the criminal procedure rules, it generated anxiety, curiosity and surprise. Sir Henry Compton, on the introduction of the jury to Bombay, is reported to have said:

I must candidly confess, that my experience in India, has led me to entertain some doubt whether the natives of the three Presidencies, were yet sufficiently qualified, I mean by education to become jurors and magistrates, but I shall most cheerfully renounce my error if I shall hereafter perceive that the natives of Bombay, who I believe are the first to solicit the boon conceded to them, shall be most anxious to prove that they are most competent to the discharge of duties so closely connected with the administration of justice and with the general welfare of society. ⁷⁸ [author’s emphasis]

However, the discourse on difference could not ignore, after 1870, a newly emerging nationalism in colonial India in the final decades of the nineteenth century. Even as the civilising mission began in right earnest in British India, the initial attempts to resist the import of ‘Western’ legal institutions was made. For instance, in 1898, Wadia, a commentator on the state of the criminal legal system in India, noted that the ‘people’s voices’ were unanimously for the abolition of the jury system. He also notes that people were distrustful of it and did not believe that it had any benefits to offer. ⁷⁹ He goes on to persuade people otherwise. Official complaints raised the issue that in spite of the jury system being gradually introduced in many of the districts in the Presidency towns from 1861–90, crime rates had spiralled. Trials of murder had not been convincingly carried out. ⁸⁰ An account of cases tried by jury in the Chief’s Court in Punjab in 1867 shows that only seven cases were tried by jury and all of them were for the trial of European British subjects. ⁸¹ The benefits of the jury did not extend to all equally, although the Criminal Procedure Code did make provision for local governments to implement it to such classes of offences and to such places as they saw fit. The debate on the suitability of the jury system turned to a discussion on whether or not it was ‘Indian’, explicitly bringing up questions of national identity.

The argument that the jury system was a difficult colonial legal transplant gained currency in official circles. In February 1893, a Special Commission was set up by the Government of India, headed by H.T. Prinsep, to look into the working of the jury system, in Bengal. Even as it was established that the jury system was important, and that it had an important role to play in the administration of justice, the argument from the colonial administrators continued to be that judges were ‘strangers’ in this country and that juries granted the much needed legitimacy to the administration of criminal justice. ⁸² However, at the same time, the anxieties of those who were trying to reassert sovereignty through the jury system were voiced. A reader of the Times of India, and an ardent believer in the jury system wrote to the Editor, noting that ‘interested persons’ were trying to influence the jury by buying them meals during intervals in court. He suggested that a high property qualification or an educational qualification should be set to remove some of these troubles. ⁸³ One of the key arguments against the Rowlatt Bills was not only that the trials were to be conducted secretly; it was also to be conducted without juries or assessor. ⁸⁴ Others suggested, in the aftermath of the two Tilak trials in 1898 and 1908 that were carried out with the help of a jury, that having a jury composed of one’s own countrymen to judge political offences was absolutely essential. ⁸⁵ By 1892, a Town Hall meeting at Calcutta protested the curtailment of privileges accorded to Indians from serving on juries. The terms of the discourse were not much different from the early years of the nineteenth century. However, a perusal of the legislative changes to the Criminal Procedure Code at this time show that greater discretion was placed in the hands of the local governments regarding whether or not juries should be used. Therefore, there was uneven application of the jury system across the territories. Moreover, in the several amendments that the Code of Criminal Procedure underwent (notably in 1862 and 1882), the number of jurors required for a valid jury also steadily declined.

These arguments about the differences between an Indian and an English system continued well into postcolonial times. The Fourteenth Law Commission of India submitted its recommendations for the reform of judicial administration in 1958 and recommended the abolition of jury system unequivocally. Drawing lessons from other jurisdictions, it argued that the jury system is not suited to the sensibilities of an Indian people. The jury system was seen as impeding a free and fair trial, as opposed to facilitating one. The familiar issues of religious biases and lack of familiarity with legal language were thrown up in the course of the report. The jury system had resulted in the creation of a class of people who, in the words of the authors of the Report, had almost made it a profession of being selected to serve on a jury so that they could be remunerated, sometimes illegally. ⁸⁶ Relying on the U.P. Judicial Reform Committee, the Law Commission also opined that even in ‘advanced districts’, jurors were easily influenced and capable of delivering a particular verdict, based on extraneous factors. Papers carried reports of ‘women jurors’ who being ‘followed’. ⁸⁷ This seemed to echo, according to the Report, Gandhi’s views that a jury of laypersons, ‘brought together by chance’ was no comparison for the ‘absolute impartiality, calmness and ability to sift evidence and understand human nature.’ ⁸⁸ The Forty First Law Report of the Law Commission submitted in 1969, which was to propose changes to the Code of Criminal Procedure, 1898 noted that juries were being used only in very few cases by the Courts of Sessions and therefore, should be abolished altogether. ⁸⁹ Note that at this point the Nanavati case had long been decided and for seven years, no case had come before the High Courts on this point. The procedure proposed by the Law Commission left out any references to juries or assessors, and these proposals seem to have been accepted without controversy.

Most of the primary sources available for the operation of the jury system at the height of the freedom struggle are judgements of the different High Courts. Since law reporting, even when it officially became part of the court systems in 1875, was confined to the top tier courts, the rapid decline of the jury system between the years is difficult to capture in its entirety. From the commentaries on the different versions of the Criminal Procedure Codes, it appears that the jury system survived to a greater extent in some places and not others. At this moment, no statistical evidence exists for how frequently the provision for juries was used. Government Gazettes containing the details of notification of the courts and classes of offences to which jury trials may have been applicable could be other sources to explore, as will the lists maintained by Collectors at the district levels mentioning the names of potential jurors or assessors. The names of particular jurors, objections to those jurors who were called but declared ineligible as well as the verdict of the jury were to be made part of the case record, for instance, in the Calcutta High Court. ⁹⁰ Following any of these leads could lead to rich and textured accounts of the functioning of the jury system in the years after the initial introduction of the Code in 1861.

Studying the rise and fall of the criminal jury is useful not merely for the ways in which legal systems were complicit in producing and perpetuating categories on largely artificial categories, but more so for the ways in which postcolonial India came to be dominated by a judge-centric culture. The criminal jury (as well as the coroner’s jury in some parts of British India) was meant to prevent the troubles associated with relying on just one person. As earlier discussions in this article show, there was a slow but sure movement towards eliminating laypersons from participating in the adjudication process. In the early days of the East India Company, the emphasis was on uncovering authentic knowledge and administering justice in line with the same. ‘Classical’ prevailed over the vernacular in the understanding of the administration. Hence, the understanding of the Brahminical legal texts, mostly written in Sanskrit such as the Manusmriti, became as important as the everyday practice of dispute resolution. The gradual elimination of native law officers, beginning in 1810 and culminating in 1864, only served to entrench a judge-centered legal system more firmly. The jury too (as well as the associated system of using assessors) was progressively seen as an institution that was ‘unsuitable’. The Criminal Procedure Code also deviated from the common law, in providing an appeal to the High Court from the Sessions Court to ‘serve the ends of justice’. It indirectly emphasised the role of the judge by pointing to the differences between the judge and any other functionary, including the jury. The role of the judge in colonial times is often looked at with respect to the case before him, the litigants or with respect to how it shaped community understandings of identity or religion. ⁹¹ It is also studied in reference to the other branches of government—the executive and the legislature. Starting with the infamous Nandakumar case, where the Chief Justice of the Calcutta Supreme Court, Sir Elijah Impey was accused of ‘judicial murder’, the importance of an ‘independent’ judicial branch has been stressed. The elimination of alternate models of adjudications, such as the option of a trial by jury also contributes to ways in which legal systems in India can be understood as being judge-centered.

Both European and native judges in British India were consulted at various points to look into the desirability of a jury system. The earliest efforts to install a jury in Madras took into account judicial opinions, which predictably were sharply divided. A number of judges seemed concerned about ‘native character’, which would inevitably turn to corruption. As the results of the Prinsep Commission show, while there is still the objective of involving Indians in justice administration, there is a concurrent fear that the peculiar cultural circumstances—religion, language, caste or class as the case maybe—would take away from the ‘impartiality’ of the judicial process. Even those judges, who agreed that jurors were able to disregard these ties, were not convinced that the jury would be very useful. On the other hand, Ram Raz, a judge, in his paper presented at the Royal Asiatic Society of Bengal, notes how Brahmins do not desist from serving jury duty. This opinion is the exception rather than the rule. In such cases, judges themselves marked out their respective provinces and often asserted their superiority over juries. For instance, a ruling of the Calcutta High Court in Emperor v. Ram Chandra Roy ⁹² in 1928 notes:

The Code would not seem to put the opinion of the Jury on any higher plane than the opinion of the Judge; both should be given due weight. There is no suggestion that more weight should be given to the opinion of the Jury than that of the Judge. Speaking for myself, I should, as a general rule, be inclined to attach more weight to the opinion of the learned Sessions Judge. He equally with Jury had heard the witnesses and has been able to observe their demeanor. He has been trained to weigh and appreciate evidence and further he must give reasons for his opinion. The Jury are a body of laymen unaccustomed to weigh or appreciate evidence who give no reason for their opinion. Obviously, an opinion supported by reasons is likely to carry more weight than an opinion entirely unsupported by reasons.

On the other hand, a broad survey of colonial-era judging will show that even without the assistance of a jury, judging was not blind to native concerns and operated at many times as ‘semi-autonomous’ agents. ⁹³ Indeed, with Sections in the Code of Criminal Procedure such as Section 307, which allow for references to the High Court from the lower court if a jury verdict has to be reconsidered, the role of the High Court judge was in any case paramount and juries often lost much of their power in this manner. Indeed, the High Courts in such cases did not merely function as appellate courts, which can only look to errors on questions of law. The High Court judges here had the power to reappreciate the evidence, taking into account the opinions of the Sessions Court judge and the jury. Historicising the jury system in this fashion also helps in the understanding of the judge-dominated trial system in India today. The interaction between judge and jury—from different racial, religious, linguistic backgrounds—is properly the subject matter of another essay and might provide insights into how differences were internalised, if at all, by legal actors themselves. The direct use of laypersons in adjudication today (as opposed to experts) is almost absent and the judiciary is acknowledged as enjoying great public legitimacy. The role of a judge in India is also a historically constituted phenomenon; in many ways through the discrediting of participation by laypersons and the knowledges that they might bring to the courtroom. ⁹⁴

The discussions on the criminal jury in the nineteenth and twentieth century in India also reveal a particular understanding of what legal reasoning would look like. It would invoke notions of capacity, civility or respectability that qualified one to speak to the law. Juror lists frequently were not made up of laypersons or those who exhibited a ‘community of feeling’. They often consisted of vakils, law clerks or others who hung around the courtroom at the time, at least in the earlier times. ⁹⁵ They were not technically laypersons insofar as they had at the very least, knowledge of legal practice. However, this would carelessly abandon by the wayside any understanding of local context, that is, religious affiliation or language capabilities, which was seen to be the reason for introduction of the jury system. Because these characteristics were endemic, the impartiality of legal reasoning was always already compromised. In other words, not only were the natives not educated, they could not be educated into this system. Suggesting that these disqualifications were kinds of undesirable influences meant that the colonial state could reiterate the liberal, universalising nature of the law, the supposed equality of the subjects which it commanded. In addition to equality, liberty is also understood as being fundamental. The criminal jury is often referred to as the ‘child of liberty’. ⁹⁶ Lord Ellenborough refers to liberty as being the privilege of Englishman, no matter where he resided, including the colony. The discussion of liberty animates the changing character of sovereignty in colonial India, and with it the character of legal institutions themselves. ⁹⁷ Initially understood as protecting the liberty of the people against the sovereignty of the British Crown as exemplified in the person of the judge, it becomes a means by which the popular sovereignty of an emerging nation was contested in and around the courtroom. As late as 1946, commentators spoke of the vast religious and linguistic diversity as being a key to the downfall of the jury system. ⁹⁸ In recent times, too, the workability of the jury continues to be questioned on the basis of heterogeneous societies and legal cultures. ⁹⁹ Just as in the Nanavati trial, the question of influence on seemingly impartial legal institutions, particularly when are layperson-led, seems to threaten the fiction that the legal reasoning draws upon something that is always coherent, always accessible.