- James Jaffe *
Several years ago, I wrote a short piece for EPW on the fate of jury trials in India after the famous Nanavati trial.[1] For the last half century, that case has been acknowledged as the last jury trial in India and has made its way into popular culture through numerous films, books, and, most recently, a web series.[2] The facts of the case are so well known by now that they bear little further explication. As the current website of the Bombay Sessions Court (now the Mumbai City and Sessions Court) still proclaims, “the Nanavati case had all the ingredients of a thriller -- sex, murder, intrigue and revenge.”[3] Much of what has been written on the case focuses on the issues of the role of the mass media, the popular politics of the trial, or the trial as a lurid ‘morality tale.’
However, I would like to examine further the deeper significance of the trial in Indian socio-legal history. Of course, as I have written before, this was not the last jury trial in India. It was not even the last jury trial in Bombay. So, we can dispense with that canard immediately. More importantly, I want to discuss why, by the time of the trial in 1959, it had come to signify to many the failure of the jury system in India. In particular, I want to emphasize the role of the judiciary in this regard and especially their antipathy to the common juror, most of whom were thought of as ignorant, illiterate, and corruptible. That is, they were ‘not the right people’ to perform the juror’s role.
For those who haven’t seen Rustom or any of the other dramatizations of the trial, in 1959, Naval Commander N. K. Nanavati shot and killed his wife’s lover. He then turned himself into the local police and was put on trial for murder. Although many states had moved already to severely limit or eliminate jury trials, the Bombay Sessions Court administered one of the few jurisdictions where juries were still employed in serious criminal cases. After hearing the case, the jury there voted overwhelmingly, 8-1, to acquit Nanavati. The presiding judge declared the verdict ‘perverse’ and the case was sent up to the High Court where the verdict was overturned. The jury’s failure to convict Nanavati, it is often argued, led directly to the abolition of jury trials throughout the country.
Precisely why the jury voted to acquit Nanavati has been the subject of much discussion. The most common argument is that the new tabloid journalism provided by Blitz, “deliberately iconoclastic and irreverent,” as one admirer of the paper put it,[4] championed Nanavati’s cause and inflamed popular opinion in defense of this ‘honor killing.’ Thus, the case lay at the intersection of the rise of mass media and populist politics. Communal and class issues, it also has been pointed out, lay not far below the surface. Nanavati came from a respectable Parsi family as did Blitz’s founding editor, R. K. Karanjia. Nanavati’s victim, Prem Ahuja, on the other hand, was a Sindhi, an outsider and social climber, a wealthy and immoral philanderer, who was less than welcome in elite, cosmopolitan Bombay.
None of this, however, fully explains why the case has achieved the status of the ‘last jury trial in India.’ As I showed in the EPW article, that notion is certainly nothing more than an urban legend. There were at least a dozen jury trials after Nanavati whose verdicts were appealed up to the High Courts, most of which occurred in Calcutta although fewer in Bombay and Madras. The ‘real’ last jury trial took place in Calcutta in 1973.[5] Unfortunately, we will perhaps never know how many other jury trials took place in the Sessions courts across the country after Nanavati.
Of greater importance, however, is attempting to explain why jury trials were undermined systematically and then abolished entirely during the first decades after Independence. When I wrote that EPW article, I repeated many of the claims that others had been making for at least a century: the jury system was a foreign transplant; it was unduly complicated, lengthy, and expensive; communal suspicions and fears warped jury decisions; and, caste differences inevitably affected jury verdicts, as did class position.
However, as I undertook further research, I began to recognize that I had seriously underestimated the extent to which the judiciary itself was implicated in the abolition of jury trials. If we look at the case of Bombay, for example, it is clear that the High Court played a leading role in the eventual abolition of jury trials there. In 1956, before the the separation of Maharashtra and Gujarat, the High Court, in consultation with the Bombay State Government, agreed to abolish the jury system in the districts of Pune, Ahmedabad, and Surat.[6] Three years later, in 1959, the High Court recommended that juries be withdrawn from trials in Greater Bombay as well.[7] Finally, in January 1961, a bill to abolish jury trials in Bombay City was moved in the Maharashtra State Assembly and eventually passed later that year, but only after “the Bombay High Court had advised the State Government that the jury system had outlived its utility and had recommended that it should be discontinued in Bombay too.”[8]
Throughout this period, the opposition to jury trials was fostered most often by leading members of the judiciary. Their underlying argument was not solely about caste or foreign transplants, or communal divisions, or even the length and expense of jury trials. Almost invariably, their argument could be reduced to the claim that there were not enough educated and literate people in India to qualify as jurors. In an influential report out of Uttar Pradesh in 1950, K. N. Wanchoo, then on the Allahabad High Court and later Chief Justice of the Supreme Court, explained that there was not “a sufficient number of the right class of people” to serve as jurors in the State.[9] Thus, trial by jury should be abolished there and, by implication, elsewhere.
The notion that were not enough of ‘the right type of people’ to serve as jurors was a constant refrain in the debates about trial by jury after Independence. Perhaps the most damning of these was the attack upon the qualifications of Indians as jurors launched by M. C. Setalvad. Setalvad was, among many other things, India’s first Attorney-General and Chair of the committee that wrote the Fourteenth Law Commission Report on The Reform of Judicial Administration published in 1958. This Report reiterated many of the previous arguments lodged against trial by jury, but also emphasized the rather fantastical claim promoted by Setalvad that the Indian people were simply temperamentally ill-suited to act as jurors, a position he repeated in his lectures on the common law in India given at Oxford in 1960. Trial by jury worked in England, he argued, because the jury system was well-suited to English manners and temperaments. But the same could not be said for the more volatile temperaments of those living in warmer climes. “It is not surprising, therefore,” he said, “that this growth peculiar to the common law and the English temperament has failed to acclimatise and grow in India.”[10]
Although Setalvad’s argument was certainly a unique one, similar prejudices against the personal qualifications of Indians to act as jurors was repeated often in the debates over the reform of the Code of Criminal Procedure held in the Lok Sabha in 1953-4. There, a motion had been introduced to abolish trial by jury and the suitability of Indians to act as jurors was a constant subtext of the ensuing debates. The Home Minister, K. N. Katju, excoriated those who argued that juries were composed of “wild people and therefore the jury system should be abolished.”[11] N. C. Chatterjee, former Calcutta High Court judge and later president of the All-India Civil Liberties Council, insisted “that it will be a bad day for India to say that [the] Jury trial has completely failed and that you cannot in free India today, find a number of people, honest and fair-minded enough to help in the administration of justice and give honest judgment.”[12]
Perhaps it is fitting that I end here with the words of a Calcutta High Court judge for it was in Calcutta that trial by jury survived the longest. Chatterjee’s defense of trial by jury was based upon his experience with juries there. “Although passions had sometimes been inflamed,” he insisted before the Lok Sabha, “they [juries] behaved with full rectitude and uprightness.”[13] Indeed, although trial by jury had disappeared throughout West Bengal by the 1960s, the Calcutta High Court was unique in that it guarded jealously its original jurisdiction over major crimes in the old Presidency town and continued to try cases of murder and forgery by jury.[14] Moreover, despite the fact that the 1974 Code of Criminal Procedure omitted intentionally any mention of trial by jury, the Calcutta Court’s authority under earlier statutes to do so was not formally rescinded until July 1975. Then, taking advantage of Gandhi’s Emergency, the Governor issued an ordinance finally abolishing the last vestige of trial by jury in India.[15]
This has taken us a long way from the Nanavati trial. But what I would suggest is that much of what has been written on the trial is not wrong but incomplete. The trial was significant in Indian legal history not because of popular politics or its sensationalism. These were nothing new in India. And it certainly should not be famous for being ‘the last jury trial in India,’ which it was not. Instead, the Nanavati trial perhaps should be better remembered as the culmination of decades of anti-jury rhetoric, especially among the judicial establishment. The trial built upon and, more significantly, illustrated prior antipathies to the behaviour and qualifications of Indians as jurors. This was particularly true for some prominent members of the legal profession, such as Setalvad, but especially true for many, but certainly not all, members of the judiciary. For it was the judges’ distrust of the common people that led to the jury’s abolition.
* James Jaffe is a Fellow of the Institute for Legal Studies at the University of Wisconsin Law School and Emeritus Professor of History at the University of Wisconsin at Whitewater.
[1] James Jaffe, ‘After Nanavati: The Last Jury Trial in India?,’ (2017) EPW 52(32) 18. [2] Perhaps the most well-known academic telling is that of Gyan Prakash in Mumbai Fables: A History of an Enchanted City (PUP 2010), 158. Even greater notoriety, however, was evoked by the film Rustom (2016) for which Akshay Kumar won a Best Actor award. Previous to the release of Rustom, the case had been already the subject of at least two other earlier Bollywood films; see, ‘Akshay Kumar’s Rustom and other films that KM Nanavati case inspired’ (The Indian Express, 9 August 2016) <https://indianexpress.com/article/entertainment/bollywood/akshay-kumars-rustom-and-other-films-that-km-nanavati-case-inspired/> accessed 27 September 2020. The most recent re-tellings include the book In Hot Blood: The Nanavati Case that Shook India (2017) and the 2019 mini-series The Verdict – State vs Nanavati. [3] Mumbai City Civil Court <https://districts.ecourts.gov.in/mumbai-citycivil-court> accessed 27 September 2020. [4] Vir Sanghvi, ‘Karanjia and his Blitz’ (Hindustan Times, 3 February 2008) <https://www.hindustantimes.com/india/karanjia-and-his-blitz/story-6Ql5IRj8Jzjk6h73sRHq2K.html> accessed 27 September 2020. [5] State v. Prakash Ch. De and Anr. 1977 CriLJ 863. [6] ‘Jury System to Go,’ Times of India (1 September 1956) 5; ‘Govt. Notification is Upheld: Doing Away with Jury Trials’ Times of India (19 October 1956) 3. [7] ‘Abolition of Jury System in Bombay: Centre Studying Proposal’ Times of India (24 October 1959) 9. [8] ‘Jury Trial to Go: Proposed Bill’ Times of India (21 January 1961) 8; ‘Trial by Jury to be Ended: Bill Passed by State Assembly’ Times of India (14 March 1961) 6. [9] Report of the Uttar Pradesh Judicial Reforms Committee, 1950-51 (Vol. I, Allahabad 1952), 54-5. [10] M. C. Setalvad, The Common Law in India (London, 1960) 37. [11] Parliamentary Debates (House of the People), Sixth Session, Vol. I, 3 May 1954, cols. 6436-7. [12] Parliamentary Debates (House of the People), Vol. III: No. 18, 28 August 1953, col. 1836. [13] Parliamentary Debates (House of the People), Vol. III: No. 18, 28 August 1953, col. 1837. [14] After the introduction of the Calcutta City Sessions Court in 1953, the original criminal jurisdiction of the Calcutta High Court was limited to the boundaries of the old Presidency town. The remainder of the much larger Municipal Corporation of Calcutta was under the jurisdiction of the 24-Parganas Sessions Court held at Alipore. See Law Commission of India, The Code of Criminal Procedure, 1898 (Law Com No 41, Vol. 1, 1969), 29-30. [15] West Bengal Ordinance No. VIII of 1975: The City Sessions Court (Amendment) Ordinance, 1975, Calcutta Gazette, 17 July 1975.