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INDIAN OFFICIAL OPINIONS ON TRIAL BY
By The Hon. J. JARDINE,
Judge of the Bombay High Court. The issues raised by public opinion, on the order of the Lieutenant-Governor of Bengal, are of grave importance. They have been discussed from the official's point of view all over India, as appears from the papers published by the Government. That interesting compilation contains the history of the matter, which may be shortly stated here. In the year 1861 the first Code of Criminal Procedure for the whole of India was enacted: this empowered the local Governments to extend to interior districts the system of jury trial, which under Acts of Parliament and Charters had long existed in the Presidency Towns. Without losing time, the Government of Bengal in 1862 availed itself of this power: and ever since then, murders, robberies and many other crimes have gone before the juries in the seven great districts into which the system was introduced. Now, with the approval of the Viceroy. murders and some less important cases have been withdrawn from the juries : and will under the new order be tried by the Sessions Judge, sitting with two or more Assessors. The law requires the latter to pronounce their opinions in open Court. The Judge is bound to consider these opinions, but not obliged to follow them. Thus the responsibility for correct decision on the facts as well as the law rests with the Judge. Whereas, when a jury finds a verdict, whether it be unanimous or that of the majority, the Judge is bound to accept their view of the facts and pass judgment in accordance, unless he differs from it so completely as to make him consider it necessary for the ends of justice to submit the case to the High Court. In that event, he prepares a statement of his opinion: the record comes before the superior tribunal : the whole case
is re-argued there much in the some way as an appeal, which the law allows, as of right, from the decision of a Sessions Judge sitting with Assessors. The responsibility for correct decision is thus thrown on what I may call the Queen's Bench Division of the High Court. This machinery was designed to save the new and rather exotic institution of trial by jury from the reproach of corrupt and perverse verdicts. In Bombay, as many reported cases show, it is the practice of the High Court not to interfere with the verdict, unless it is shown to be manifestly and clearly wrong. Thus a reasonable verdict is upheld, without making a strict inquiry into its correctness. The same practice obtained for many years at Calcutta ; but, as Mr. Justice Prinsep points out in a published Minute, there have arisen different opinions among the learned Judges, some of whom hold that the High Court, once a case has been referred to it, is bound to determine not merely whether the verdict is reasonable but whether it is correct. It may be added that the Viceroy, anxious to keep up the responsibility of juries, has declined to pass a declaratory act on this vexed point of interpretation.* His Excellency has also refused to enact that whenever a Judge differs from the jury, he shall refer the case to the High Court. The only change to be made in the law is based on a suggestion of the Justices Birdwood, Candy and Telang of the Bombay High Court, to enable the Sessions Judge, “whether before or after a general verdict has been given, to take special verdicts from the jurors on particular issues of fact, and perhaps on the general credibility of particular evidence.” It remains to add that Sir Charles Sargent, the Chief Justice, and Mr. Justice Farran gave their weighty opinions against the proposed novelty in procedure.
After stating as above how the fabric of law about trial by jury stands to-day, and how it is proposed to repair it, I will proceed to the objections which have been taken to
* I refer the learned reader to the following leading cases on the point : Empress v. Itwari, I. L. R. 15 Cal. 269; Dada Ana's Case, I. L. R. 15 Bombay 452 ; Empress z'. Guruvada, I. L. R. 13 Mad. 343.
it by the various authorities whose opinions make up the printed compilation presented to the public. The sphere of trial by jury can be expanded or contracted, like hydraulic pressure, by mere order of an Indian Government, without any change in the law. The Viceroy, it appears, was informed in 1890 that “the jury system has in some degree favoured the escape of criminals,” and in May of that year he demanded from the provincial governors a report on its working, and as to “what opinion is entertained as to its merits as a means for the repression of crime.” It must be borne in mind that the Viceroy in Council bears a responsibility for the whole of India, and that an Act of Parliament confides to him the control of all the civil and military establishments. But in this particular matter, the supposed tendency of trial by jury to favour the escape of criminals, he had been forestalled in Bombay, not by the Governor, watchful over public order, nor by the High Court, anxious about justice, nor by the public, clamorous against perverse verdicts, but by an Under Secretary engaged in compiling statistics. The first batch of opinions sent up by the Bombay Judges, including the proposal about special verdicts, are comments on the Under Secretary's conclusion from statistics that the proportion of convictions by juries in murder cases was unduly low. The Under Secretary's views do not appear in the print : but we find the Bombay Government delivering opinion that throughout the Presidency murders had steadily increased, and convictions had fallen off 17 per cent in the non-jury districts, and 32 per cent. in the jury districts : that in three districts it was the general opinion that murder cases should cease to be put before a jury, and that in the Presidency Town of Bombay, and in Karachi, Poona and Thana, the system “may be considered moderately successful.” Again, it is said that the extension of the jury system does not appear desirable, one reason suggested being that the Sessions Judges, who are almost all members of the Indian Civil Service, are, from inexperience of juries, not very competent persons to guide them to a right decision.* Nevertheless Lord Harris seems to have advised to let well alone. He sees the political value of trial by jury and he drops statistics as a criterion, and after a judicial statement of the pros and cons, in which, as Sir Raymond West lately stated, he had the advantage of that distinguished colleague's advice, he delivers the following opinion—"Where, however, the jury system exists, it ought not, in the opinion of the Governor in Council, to be abolished, except on clear proof, for the particular Sessions division, of flagrant abuse or failure. Where it is retained, all cases committed for trial, and triable exclusively by the Sessions Court, ought in the opinion of the Governor in Council to be tried by jury with the exception (by mere omission) of political cases and of those relating to the Army and Navy. In particular Sessions Divisions there might be an exception also of capital cases, but this is an exception which should be cautiously made. In Ahmedabad at least, and possibly elsewhere, the exception of capital cases may be forced upon Government, but it must be remembered that any marked increase in the proportion of convictions resulting from the abolition of the jury system might tend to diminish confidence in the administration of justice. On the other hand, if there were no great increase, the change would be of no effect in making crime more perilous to the criminal.” The Viceroy's Government in reply remark that no proposal to amend the law had been sent up, and say that the reports from Bombay as well as Bengal show clearly that capital cases should be withdrawn from juries. Lord Harris is reminded that three Justices, Messrs. Birdwood, Farran and Telang had advised that this should be done in Ahmedabad, Belgaum and Surat ; and is quietly told to revise the list. So the opinion of the Under Secretary who set the ball rolling prevailed in the end.
* This reason seems to have occurred to the Bombay Government itself; at least, I do not find this objection to Sessions Judges in the opinions of the Judges of the High Court. Mr. Justice Farran says: “I would rather impress on Sessions Judges the importance of their charge to the jury, and the desirability of leading them to a correct verdict by laying the facts of the case clearly and logically before them, than the importance of correcting their verdict by a reference to the High Court.” Mr. Justice Shepherd, at Madras, notices, however, that from want of experience Sessions Judges are likely to fail to sum up with care and patience; and the Chief Justice, Sir J. Edge, at Allahabad, using his experience of trials in England, writes: "A jury in the hands of a strong Judge may go right, but in the hands of a weak Judge, or of a Judge who cannot influence his jury, the result of a trial is very doubtful.” The Bengal Inspector-General of Police thinks the present Sessions Judges have less weight with juries than those of ten years ago, because they have had less executive training. From several provinces comes also a confession that it is no easy task to charge a jury in a language foreign to the speaker.
In Assam, trial by jury has been used in six districts out of eleven since 1862 : and the Chief Commissioner, Mr. Quinton, being of opinion that the system had not favoured the escape of criminals, advised the Viceroy that no change should be made. The report of the Assam Judge, Mr. Luttman-Johnson, is very full and interesting. He shows that the Judge agrees more often with the jury's verdicts than with decisions passed by · Magistrates and open to appeal. The fact is the more remarkable, because some executive order in 1877 had practically restricted the operation of the jury system to the most serious of all crimes, namely, those in which death is caused. “Native jurymen in my division,” this Judge writes, “are like native jurymen elsewhere, loath to take the responsibility of imposing a capital sentence. Out of 403 jurymen in the division for 1890, 27 are Marwari merchants, of whom a majority are Jains, and the rest very pronounced Vishnavites. It is one of the marks of a very advanced stage of civilisation, that people grow too humane to tolerate capital punishment. The time has not perhaps come when we could safely abolish capital punishment in India, but I cannot condemn a system which gives more practical effect to the feelings of the people than the law, as it stands, contemplates. A large number of my people, certainly the more educated classes, are in advance of the law in this matter. The result of course is that I only impose the capital sentence in very heinous cases. If I