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After Nanavati

James Jaffe (jaffej@uww.edu) is fellow, Institute for Legal Studies, University of Wisconsin Law School, and professor emeritus, University of Wisconsin.

The famous Nanavati case of 1959 gave birth to two myths: that it was the last jury trial in India and that it was the prurient sensationalism of the new tabloid press, Blitz in particular, that corrupted the jury system and made its abolition necessary. It was actually the refusal of the government and the legal profession to confront class and caste differences in the courtroom, and not the popular press, that led to the abolition of the Indian jury.

The release of the film Rustom in August 2016, starring Akshay Kumar, and his winning the National Film Award for Best Actor earlier this year, has led to renewed interest in the famous Nanavati case. In September 1959, Commander K M Nanavati of the Indian Navy was led into the Bombay District and Sessions Court and faced Justice R B Mehta and a jury of nine men. Nanavati was charged with the murder of his wife’s lover. The trial that followed became a media sensation thanks largely to the efforts of the Bombay tabloid, Blitz.1 Despite overwhelming evidence to the contrary, the jury returned a verdict of innocent, which was subsequently overturned by the Bombay High Court.2 The film’s popularity testifies to the fact that the Nanavati trial still looms large in the historical memory not only of Mumbai but much of India as well. Among lawyers, judges and subsequent historians, however, the case is less well known for its lurid storyline than for the commonly held view that it was the last jury trial in India, whose perverse verdict led to the abolition of trial by jury. Yet, the history of the jury trial in India suggests that such “common knowledge” is patently false.

They Endured On

Jury trials survived well into the 1960s. As courts with original jurisdiction over criminal cases, several high courts continued to employ juries long after the Nanavati trial, as did many sessions courts. Moreover, published opinions from both the high courts and the Supreme Court reveal that those judicial bodies continued to rule on both jury trial procedures and decisions that had taken place in the high courts and sessions courts several years after Nanavati.

Jury trials survived the longest in West Bengal. The Calcutta High Court continued to empanel juries well after they had all but disappeared elsewhere. On 10 July 1963, for example, Mannalal Khatic was tried before a “special” jury in the Calcutta High Court.3 Khatic was convicted of murder by a majority vote of six to three and sentenced to rigorous imprisonment for life. Upon appeal, the jury’s verdict was vacated and the prisoner released.4 On 4 September 1964, Vivian Rodrick was convicted of murder, unlawful assembly, and rioting by a unanimous jury decision in the Calcutta High Court.5 On 16 September 1964, Panchu Gopal Das was convicted of murder by a jury’s unanimous decision and sentenced to life imprisonment.6 Five members of the Communist Party were charged with the murder of a Congress supporter after the February 1967 general election. The jury acquitted all the defendants, but was divided five to four in favour of acquittal on the murder charges against Prakash Chandra Dey and Rabindranath Dey. Prakash and Rabindranath were then retried by a “special jury” on 15 January 1973.7

Sessions courts in West Bengal beyond the Calcutta High Court’s original jurisdiction also continued to employ juries in criminal cases after Nanavati. A jury in the Sessions Court of Nadia convicted three persons of murder in February 1961.8 Ananta Kumar Karan was arrested for murder on 20 January 1961 and subsequently tried before a jury in the Sessions Court of the 24 Parganas.9 At the same time, Sekendar and Hasibuddin Sheikh were being tried by a jury on the charge of forgery before the Murshidabad Sessions Court.10

Elsewhere, jury trials did not disappear altogether after Nanavati although they were less frequent than in West Bengal. Interestingly, the Madras High Court heard an appeal from a jury trial held in Karaikal (Puducherry) shortly after the territory was incorporated formally into India, but before the full integration of the court systems. On 21 December 1963, six men were convicted of kidnapping and murder by a jury in the Tribunal Criminal. Upon appeal to the Madras High Court, Justice M Anantanarayanan noted that although the Tribunal Criminal was equivalent to a Court of Sessions, due notice had to be taken of the French rules of criminal procedure with regard to jury verdicts. His conclusion was that, according to the French code d’instruction criminelle, “the jury are the sovereign judges of fact”.11

In Bombay, Rafique Ahmed appears to have been tried by a jury in the sessions court in 1960, a year after the Nanavati trial.12 In the following year, three persons charged with forging receipts for the delivery of iron bars to the National Transport Company were tried by a jury in the Greater Bombay Sessions Court and convicted upon the jury’s unanimous decision.13

The High Court and sessions courts of Bombay do appear to have been among the leaders in dispensing with jury trials. Ironically, however, they also appear to have been among the last to eliminate coroner’s juries. Coroner’s juries could not convict a person of a crime, but could discuss and decide upon the cause of death after hearing the medical evidence. Coroner’s courts were abolished at different times in different parts of the country, Kolkata’s in 1978, but Mumbai’s not until 1999. As late as 1984, the Greater Bombay Coroner was still empanelling juries for inquests into the causes of death.14

The Myths

The question, therefore, arises as to how and why the myth arose that jury trials were abolished in 1960 after the Nanavati trial. Implicit in this assertion is the assumption that the jury’s decision to acquit Nanavati was so “perverse,” as the presiding judge described it, that a decision was made to end the role of the jury in criminal cases. However, no such decision appears to have been made at the time. There is no surviving order emanating from the Supreme Court directing the abolition of jury trials nor is there a surviving order from the executive branch to do so. Whether either branch of government had the constitutional authority to do so is certainly questionable at best. In addition, there is no surviving legislative act abolishing trial by jury. However, state governments appear to have assumed the authority to do so. The 1958 Report of the Law Commission on Reform of Judicial Administration claimed that both Madhya Pradesh and Uttar Pradesh had already done so. However, there is little or no evidence that other state governments took similar action after the Nanavati trial. Indeed, it is not until the passage of the Code of Criminal Procedure (CrPC), 1973, that the jury was written out of the criminal trial in courts of session by simply stating, “After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.”15 It was thus by an act of omission rather than an act of commission that trial by jury finally was ended in sessions courts.

Implicit also in the myth of the Nanavati trial is the assumption that the rise of the tabloid press played a significant role in trial by jury’s demise. Popular interest in the trial, it is alleged, was incited by the prurient and relentless pursuit of the story by Blitz and that its campaign in support of Nanavati ultimately swayed the jury’s decision. This is impossible to prove. Blitz’s popularisation of the trial was only striking in the sensationalist tabloid format in which it was presented, but scarcely unique in its content or the public’s reaction and interest in the trial. Popular interest and political mobilisation in response to the “moral drama” of trials had long been part of the repertoire of protest in India.16 Even if one excludes the popular reactions to overtly “political” trials, such as Tilak’s trial in 1908, an almost identical popular response and official condemnation of the press can be found in the much more widely publicised Bawla murder case of 1925. This case involved several persons of much greater notoriety than Commander Nanavati, including the Maharaja of Indore, A K Bawla, a wealthy businessman living in Malabar Hills, and the kidnapping of Mumtaz Begum, a former dancing girl at the Maharaja’s court. The Bombay High Court’s website to this day still contains the following admonition:

Long after poor Bawla was dead, two of his murderers hanged, and one of his murderers had gone raving mad and was shut up indefinitely in penal custody, the sleuths and harpies of the press pursued Mumtaz, prying into her private life, and dogging her movements at every step and every spot where she happened to travel. Such is the persistent and pernicious power of modern journalism.17

Of greatest significance, however, was the fact that the Nanavati trial attained its peculiar importance because it tapped into a series of misgivings among politicians and legal professionals about the role of the jury in general. The effect of “modern journalism” was one of these. However, there were several others, the most important of which is what the Americans call “jury nullification.” Jury nullification occurs when a jury refuses to apply the law pertaining to a crime because it believes either that the law is wrong or that the law should not be applied strictly to a particular case. Jury nullification for long has been a feature of jury systems generally, and in colonial times the British fitfully perceived it as a significant problem in the Indian judicial system.

For the British critics of the Indian jury, jury nullification always was a class and caste problem. Lord Lansdowne, India’s viceroy in the early 1890s, parti­cularly was offended by what he believed was the Indian jury’s unwillingness to convict defendants in capital cases. He set about reforming the CrPC because, as noted in one 1892 dispatch to the Secretary of State for India:

The scandal caused by the perverse acquittal of a Brahmin or other well-to-do person, and the injury to public morals by the lesson thus taught that such persons can commit crime with impunity, are very great. We consider it of the utmost importance that such miscarriages of justice should be prevented, and that no countenance should be given to the idea that the courts apply one description of justice in dealing with persons of respectable birth or traditional sanctity, and another in dealing with the landless labourer or low caste aboriginal.18

Yet, similar prejudices against popular participation as jurors in the administration of the law could be found among some of India’s most esteemed legal professionals as well through the middle of the 20th century. M C Setalvad, the first attorney general, chaired the committee that produced the Fourteenth Report of the Law Commission on Reform of Judicial Administration (1958), which recommended the abolition of trial by jury. In that report, the commission was much less forthright about the social issues involving class and caste, but they nonetheless were apparent. Regarding the workings of trial by jury in Bombay, the commission noted,

It was found difficult to find jurors of the right type even in the advanced districts and such jurors as were available were shown to be easily approachable and moved by extra-judicial considerations.19

Jury trials were condemned for issuing “unjustified acquittals,” for empanelling “unscrupulous professional jurors,” and for failing to deliver “independent, impartial and just verdicts.”

Criticism of the Indian character also crept into the opposition to trial by jury. In his 1960 Hamlyn Lectures at Cambridge, Setalvad suggested that because Indians did not have the same temperament as the English, trial by jury could not succeed on the subcontinent. He likened India to some countries of Western and Southern Europe where, in his estimation, the jury system was unsuccessful because the “mobile” temperaments of the inhabitants were too “easily moved to pity or hate.”20

All of this was overlaid with the sentiment that trial by jury was un-Indian. The jury trial was thus characterised as an “exotic growth transplanted into India by British lawyers and jurists” and the “transplantation of a practice prevailing in England which has failed to grow and take root in this country.” Gandhi’s much earlier opposition to trial by jury summarised the commission’s findings:

I am unconvinced of the advantages of jury trials over those by judges … I have known juries finding prisoners guilty in the face of evidence and even judge’s summing up to the contrary. We must not slavishly copy all that is English. In matters where absolute impartiality, calmness and ability to sift evidence and understand human nature are required, we may not replace trained judges by untrained men brought together by chance.21

 

The Nanavati story thus gave birth to two legends: first, that it was the last jury trial in India and, second, that it was the prurient sensationalism of the new tabloid press that corrupted the jury system and made its abolition necessary. Like all legends, however, the Nanavati legend obscures many inconvenient truths. The refusal of the government and the legal profession to confront class and caste differences in the courtroom, and not Blitz and the popular press, led to the abolition of the Indian jury. While the Nanavati story continues to fascinate millions of moviegoers, it also continues to mask a much more sordid past.

Notes

1 Gyan Prakash, Mumbai Fables: A History of an Enchanted City, Princeton: Princeton University Press, 2010, Chapter 5.

2 K M Nanavati v State of Maharahstra (1962): AIR, p 605; SCR Supl (1), p 1967.

3 “Special” juries differed from “common” juries in that they were drawn from a “special” list of “privileged and liable” jurors who usually were of high social status or with particular mercantile experience and expertise instead of an ordinary pool of jurors. M H Starling, Indian Criminal Law and Procedure, 3rd ed, London, 1877, p 958.

4 Mannalal Khatic v State (1967): AIR, Cal, p 478.

5 Vivian Rodrick v State of West Bengal (1971): AIR, SC, p 1584. The case later became famous for Justice S M Sikri’s decision on appeal to the Supreme Court, that the six years’ delay in hearing Rodrick’s initial appeal of his death sentence to the high court caused the defendant “unimaginable mental agony” constituted grounds to commute the sentence to life imprisonment.

6 Panchu Gopal Das v The State (1968): AIR, Cal, p 38.

7 State v Prakash Ch De and Anr (1977): Criminal Law Journal, p 863.

8 Subodh Kumar Dhar Ray and Others v State on First Information Report (1966): Criminal Law Journal, p 323.

9 Ananta Kumar Karan v State (1962): AIR, Cal, p 428.

10 Sekendar Sheikh and Another v State of West Bengal (1963): AIR, SC, p 853.

11 Rethinaswamy and Others v Unknown (1967): 2, Madras Law Journal, p 276.

12 This jury trial is referred to in the related perjury case of Shabir Hussein Bholu. See Shabir Hussein Bholu v State of Maharashtra (1963): AIR, p 816; SCR Supl (1), p 501.

13 The jury trial results were later brought up upon appeal in the case of Shiv Prasad Chunilal Jain v State of Maharashtra (1965): AIR, p 264.

14 Mrs Satrupi Tolaram Mirchandani v Coroner of Greater Bombay (1988). See http://indiankanoon.org/doc/189635/.

15 The Code of Criminal Procedure, 1973, Chapter XVIII, Sec 235.

16 See Sukeshi Kamra, “The ‘Vox Populi,’ or the Infernal Propaganda Machine, and Juridical Force in Colonial India,” Cultural Critique, Vol 72, Spring 2009, pp 164–202.

17 http://bombayhighcourt.nic.in/libweb/historicalcases/cases/BAWLA_MURDER_... (accessed on 14 January 2016).

18 Annual Register 1892, p 315.

19 Fourteenth Report of the Law Commission on Reform of Judicial Administration, Vol II: Chapters 30–57, Delhi: Ministry of Law, 1958, p 871.

20 M C Setalvad, The Common Law in India, London, The Hamlyn Trust, 1969, p 37.

21 Young India, 27 August 1931. Significantly, the commission’s insertion of ellipses into this quotation omitted the following: “In coming to a correct decision, we must not be obsessed by our unfortunate experience of the judiciary here, which in political trials has been found to be notoriously partial to the Government. At the right moment juries have been found to fail even in England. When passions are roused, juries are affected by them and give perverse verdicts. Nor need we assume that they are always on the side of leniency.”

Updated On : 16th Aug, 2017

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