Judged by twelve

The notorious Nanavati case is being relived in Bollywood’s Rustom. A look at the jury system that the case is famously believed to have killed

August 20, 2016 04:10 pm | Updated October 18, 2016 12:38 pm IST

Commander K.M. Nanavati (left) being taken to the Arthur Road Prison in Mumbai following his arrest in September 1960.  Photo: The Hindu Archives

Commander K.M. Nanavati (left) being taken to the Arthur Road Prison in Mumbai following his arrest in September 1960. Photo: The Hindu Archives

On a typical balmy Bombay evening in late April 1959, Kawas Maneckshaw Nanavati fired three shots from his service revolver that are widely believed to have changed the face of the Indian justice system forever. Nanavati, a handsome young Parsi war veteran, was instantly propelled to the centre of the nation’s attention, through what would become one of the most high-profile trials of the era. The Akshay Kumar-starrer Rustom, running in theatres now, has brought the trial and the events surrounding it back into public attention. While only loosely based on real life, the film has faithfully reproduced the conclusion of the trial: the jury, ignoring what appeared to be overwhelming evidence confirming his guilt, acquitted Nanavati on the charge of murdering his wife’s lover.

An >October 1959 report of The Hindu paints a picture of the public frenzy outside the court, where the acquittal had prompted “wild scenes of cheering and clapping”. Presiding judge R.B. Mehta termed the verdict ‘perverse’ and referred it to the High Court for review. “I feel our whole law is on trial,” he lamented.

The Nanavati case is widely believed to have spelt the death knell for the jury system in India. However, as is often the case when dealing with the haze of history, a loud noise tends to be more audible than the faint and often obscure rumble of societal churn. Nanavati’s revolver did not single-handedly kill the centuries-old system of jury trial; the debate had preceded the case by many years and, in fact, the Nanavati case was not the last but probably the most famous jury trial.

From inception to abolition, jury trials have always divided opinion and generated controversy in India. There are isolated reports of juries being used to try cases in the courts of the East India Company in the 18th century, but the system was formally introduced to the subcontinent by the Indian Jury Act of 1826. The driving force behind the Act was the squeamishness of India’s European population at the prospect of being subject to ‘native justice’, writes Princeton researcher Kalyani Ramnath in her paper ‘The Colonial Difference between Law and Fact’.

By 1858, the rule of the British Crown arrived in India, and with it the full weight of the British justice system. The Indian Penal Code, 1861 and the Code of Criminal Procedure, 1882 marked the official arrival of jury trials for criminal cases across the Indian hinterland. But in the colonies of the Empire, trial by jury was still a privilege that was rarely accorded to subjects of colour. Ramnath notes that in 1867, only seven of all the cases tried in Punjab province involved juries. All of them involved Europeans.

The jury system, which relies heavily on the ability to draw jurors from a largely homogeneous population, was beset with woes from the very outset in the multicultural, multilingual and multiethnic India. An additional barrier was the shortage of formally literate citizens who understood the foreign legal system and could be relied upon to deliver a considered and impartial verdict. Owing to these perceived difficulties, popular opinion in British officialdom was always against the jury system. But the need to safeguard the fundamental right of a British citizen to a trial by a jury of peers ensured its survival until independence.

Almost immediately after the Indian Constitution came into effect, the abolition of the jury system began to be discussed in the corridors of power. The Hindu reported in August 1953 that S.V. Ramaswamy, an MP from Madras, moved a Bill in the Lok Sabha seeking to abolish trial by jury. The Bill was supported in many quarters, but there was also resistance, chiefly from the government of the day.

The then Home Minister K.N. Katju dismissed the popular idea that the majority of juries was “corrupt and amenable to the influence of caste”, placing the blame for problematic jury verdicts on the disconnect between the nascent Indian nation and an alien system of justice. He went so far as to propose jury trials in all Sessions Courts. However, by the time the bill was brought before Parliament in 1954, his appetite for jury trials appears to have weakened in the face of stiff opposition. The proposal was watered down, allowing States to decide what they wanted.

Over the decade that followed, many States moved to do away with the system. Bihar and Uttar Pradesh led the way, with Madras, which had been clamouring for abolition since 1950, following suit. By 1956, the State of Bombay had also done away with it, except within the Greater Bombay jurisdiction. In November 1958, half a year before Nanavati would be tried in a Bombay Sessions Court, the Law Commission of India termed the jury system a “failure” and recommended its abolition. After the astounding outcome of the trial, “perverse verdicts” became synonymous with juries, and a year later Greater Bombay had also thrown out juries.

However, the chapter of jury trials wasn’t over yet. A 1969 report of the Law Commission that reviewed the Code of Criminal Procedure noted that “juries are being used only in a very few cases by the Courts of Sessions” and repeated the call for total removal. In an email interview, Ramnath said, “Since the provision on jury trials remained part of the law after the [Nanavati] trial, it is quite possible that other criminal courts continued to use juries.”

In 1974, the Code of Criminal Procedure was fully overhauled. The new version finally removed all references to juries. Interestingly, the Parsi community continues to use juries in special matrimonial courts even today. Perhaps Nanavati’s case would have turned out differently if he had sought their counsel instead of the gun.



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