LEGAL METHODS PROJECT

SUBMITTED BY:

Joshua David Nazareth

I.D. No.: 2233

Ist Year,
B.A., LL.B. (HONS.)
This paper claims that jury trials serve justice better than trials by a judge.

The jury system has its roots in the judicial machinery of civilizations as old as Ancient
Greece and Rome. It is a descendant of Great Britain, and therefore, colonization had a major
role to play in the development of the jury system globally, especially in the 18th and 19th
century. In spite of colonial influence, though, judicial systems across the world have taken
their own path, shaped by the needs and social consciences of their respective countries. In
several countries like Britain, the United States, Canada etc., juries examine the facts of the
case, and based on the accuracy of the testimony, decide, in a criminal case, the guilt of the
accused, and in a civil case, the nature and extent of liabilities.

It is not difficult for one to see the reason why so many people criticize a jury system. A jury
consists of 12 individuals, often with no prior court contact, chosen at random to dispense
with justice.1 They are tasked with deciding matters regarding the life and liberty of those
who have been charged with criminal offences, often without any training. Their
deliberations are held in secret, and their verdict is returned without any reasons. If one
describes a jury in such a manner, the vilifications poured on them are not difficult to
understand.

However, juries are the safeguard of liberty. They represent the power of democracy. Lord
Devlin once famously wrote, No tyrant could afford to leave a subjects freedom in the
hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice
and more than one wheel of the constitution: it is the lamp that shows us that freedom lives.2
A jury is an essential check on unpopular laws,3 and it introduces into the law an element of
community sentiment and fairness.4

One must also address the criticisms levelled against a system of jury trials. Some critics say
that juries are sometimes prone to show wilful disregard for the law. However, most judges
are of the opinion that juries are, in fact, extremely competent triers.

A perverse verdict wrongfully acquitting a guilty man is

naturally galling and discouraging, but such a verdict is, in
my experience very rare. During the seven years in which I

1
J. Baldwin, and M. McConville, JURY TRIALS, 1 (1979).
2
P. Devlin, TRIAL BY JURY, 164 (1956).
3
Per Humphreys L.J., (1946).
4
Lord Birkett, THE TIMES, (June 14, 1958).
 was a judge of the Queens Bench Division, I mustve
presided at hundreds of criminal trials all over the country. I
doubt whether I had as many as six cases in which the jury
failed to convict when I thought they should have done so. I
do not believe that, after all, there is more than about two per
cent of the men brought to trial who are wrongly acquitted.5
Other critics also claim that a jury is not, nor ever has been any protection against an
oppressive government. The whole point of a judiciary is protection against such a
government, through the separation of powers. However, that is not always the case. There
are often instances where the judicial system of a state gets mired in bureaucracy. In such
cases, a system of trial by judge may not be able to ensure adequate separation of the
judiciary from the state machinery. In contrast, the entire concept of a jury is a reflection of
deliberative democracy. A jury is, almost exclusively so, an excellent forum for citizens to
deliberate. This deliberation is often on issues that affect society as a whole. In this regard the
jury system has been known to be the most deliberative institution that has championed the
voices of citizens into public affairs, more so than that of advocacy, public voting, and
protests. Jury trials have thus had a positive impact on responsible citizens.

Although jurors have been criticized by some judges, lawyers and scholars as being
incompetent, there are safeguards to protect against this as well. In cases where the judge
does not agree with the decision of the jury, or if the judge feels that the jury has not
delivered a rational judgement, they can declare a mistrial. Therefore, the jury does not
function as an independent judicial organ with absolute power; it is guided at every step of
the decision making process by those well-versed in the law.

Juries play a crucial role in bringing the voice of the common man to the dispensation of
justice. They are useful and influential individuals in a deliberative democracy.6 Justice
Gibbons of the Federal Court once described jury function saying:

The jury is a sort of ad hoc parliament convened from the

citizenry at large to lend respectability and autonomy to the
process Any erosion of citizen participation in the sanction
system is, in the long run, likely, in my view, to result in a
reduction in the moral authority that supports the process.7

5
Per Lord Salmon L.J., (1945).
6
See J. Abramson, WE, THE JURY, (1994).
7
S. Adler, THE JURY: TRIAL AND ERROR IN THE AMERICAN COURTROOM, 5 (1994).
Over the years, jury trials have always been custodians of ordinary citizens against the
injustices and suppression of ordinary freedoms.8 A jury is unrivalled in making ordinary
people themselves the governors of a representative democracy. Although elections are
generally deemed to provide citizens with the power of governance through ballot boxes,
juries do this on a far more regular basis.

The jury system was originally introduced in India by the British administration in order to
find a system of jurisprudence that would enable them to rule colonial India, as a whole. In
1872, certain changes were made to the system of jury trials in India, which significantly
weakened its powers.9

In 1960, a case was brought before the courts which significantly changed the course that the
judicial machinery in India would take. In 1960, Kawas Manekshaw Nanavati was tried for
the murder of his wife Sylvias lover, Prem Ahuja. The act of killing Prem Ahuja was termed
a crime of passion by the defence, and it was argued that Nanavati was not guilty of murder
under Section 302 of the Indian Penal Code. Thus K.M. Nanavati was acquitted by the jury
presiding over the case, with an 8:1 verdict.10 This incident shook the whole nation, and led
to the abolishment of jury trials in India.

The Sessions Judge presiding over the case did not agree with the verdict of the jury, and
therefore submitted the case for reference to the High Court. The defence argued that the
High Court did not have the jurisdiction to view the case in light of the evidence submitted,
and decide whether the reference was competent or not. Competence of the reference was to
be decided only on the grounds of whether the decision of the jury could have been made by
a group of reasonable men. If the Court came to the conclusion that the decision would not
have been made, in normal circumstances, by a group of reasonable men, then the reference
was held to be competent.11 However, as per the facts of the case, the prosecution had argued
that it was premeditated murder, where Nanavati had obtained a gun from the stores of his
ship, gone to Prem Ahujas house and shot him point blank. Contrarily, the defence argued
that it was a crime of passion, where Nanavati went to Prem Ahujas house to confront him,
and upon altercation with Prem Ahuja, was provoked into shooting him. Since the facts of the
case were not clear to a jury, and it was difficult to determine which version of events was

8
Abramson, supra note 6, at 5; See
9
See S.P. Wadia, INSTITUTION OF TRIAL BY JURY IN INDIA, 24 (1896).
10
K.M. Nanavati v. State of Maharashtra, AIR 1960 SC 605 (Supreme Court of India).
11
Sec. 307, Criminal Procedure Code, 1861.
true, due to lack of witnesses, it was not proved beyond reasonable doubt that Nanavati had
committed the murder of Prem Ahuja.12 It follows that any reasonable group of people would
not hold someone to be guilty of a crime as grave as murder when the facts presented before
them were so hazy.13

The jury system in India was abolished following this case. This has led to a weakening of
the Indian judicial system. For example, the judge system has facilitated career crimes 14 in
India, and they are much more prominent here, than in countries that follow a system of trial
by jury. This is due to the fact that the system helps in creating a nexus between not only
lawyers and judges, but also criminals and judges. The number of decision makers is much
larger in a jury system than in a judge system, as a result of which it becomes impossible to
create nexuses. Another problem is that of corruption. It is much easier to bribe a single judge
than it is to bribe twelve jurors, selected at random. Further, juries have certain unique
powers as opposed to judges when it comes to decision making. Being twelve in number, and
selected at random, they have the absolute power to acquit or convict without being
accountable to anyone.

Where a judge might be hindered by his knowledge of the law in handing out justice, a jury,
comprising of twelve ordinary individuals from society, forms a rational method of deciding
a case based on its merits alone. Unlike trials by a bench, a jury is always engaged in
deliberation among itself to reach an agreement, and the jurors being strangers to one another,
this helps in bringing about diversity. Juries are ordinary human beings, and therefore they
provide a reflection of societys interests. While they might not have complete knowledge of
the law, a jury represents the views of an ordinary man towards the law and its interpretation.
These attributes have helped juries all over the world reach quality decisions. Although
citizens view jury service as a personal inconvenience, by forcing men to turn their attention
to matters other than their own, a jury helps in removing selfishness. Juries have helped
ordinary citizens act as a check on governmental tyranny and imbalance of powers. Therefore
this paper submits that the institution of the jury is preferable for the rendering of justice in
India.

12
See Sec. 302, Indian Penal Code, 1860.
13
It is clear that there were two contradicting versions of the evidence put forth by defence and the prosecution.
What is not clear is which of these versions was true. Determining the veracity of the evidence was important in
deciding whether the act of killing Mr Ahuja was a crime of passion, or premeditated murder.