Jury system
Guest
(Querist) 07 January 2012
This query is : Resolved
I believe post independence it was Jury system in vogue in this country.What happened ? Why it was changed to the present system which has collapsed (almost)?Why JURY system is not being re-introduced? Who will benefit and who shall loose and in what way? How this Jury system is being practised to perfection by our colonial masters as well as USA and such others developed countries? are YOURLORDSHEEPS the bottlenecks ? Or are the lawyers themselves are the roadblocks? Can someone provide some honest answers?
Chanchal Nag Chowdhury
(Expert) 07 January 2012
Jury system has long been abolished as it has become difficult to find honest people to come forward & spend their valuable time sitting in the jury for nothing.
Deepak Nair
(Expert) 07 January 2012
Dear Mr.Haridas,
There are other sections in this site where you can post your articles for discussions. This section is specifically for advises and guidance from experts regarding legal issues.
Therefore, plese post such issued in the forum Section.
ajay sethi
(Expert) 07 January 2012
agree with experts . do google search . however it may be pointed out tthat selecting jury is time consuming affiar .
with pendency of court cases in india if we were to select jury for each case it would have taken many more years for cases to be disposed of
Raj Kumar Makkad
(Expert) 07 January 2012
Judicial activism has come about due to the failure of the executive, but that does not mean the judiciary should dabble in all areas where the organs of State are functioning, says Colonel Anil Athale (retd)
The recent Neeraj Grover murder case and public attention due to the alleged 'love triangle' brought back memories of the famous Nanavati case (external link). Any Indian on the wrong side of their 50s remembers the case that brought traffic to standstill in Mumbai [ Images ], catapulted the tabloid Blitz to number one position, and was a great source of entertainment for the vast public.
The case had all the elements of glamour, suspense, intrigue, honour and betrayal. Public sympathy at the time was with the accused, Commander Cawas Nanavati, unlike in the present Grover case. But more than the national publicity to the Nanavati case, it also had a long term impact on our lives! Yes, one is referring here to the abolition of the jury system.
It is with some degree of trepidation and uncertainty that one sets out to write on the judiciary, partly out of lack of specialised knowledge and also the ever-present fear of contempt of court. Naturally, then, this author will confine his observations to generalities and a layman's point of view.
In 1994, a journalist friend had interviewed Karl Khandalavala in Pune. The interview of course was about his contribution as an art collector and preserver par excellence. But invariably the subject of the famous Nanavati case, in which he was the defending lawyer, inevitably came up. Karl was also of the view that the jury's 'not guilty' verdict in that case, despite clear evidence to the contrary, sealed the fate of the jury system in India [ Images ].
Why was the jury system abolished?
The hasty abolition of the jury system in India is the first judicial puzzle. Since we adopted the Anglo-Saxon system of jurisprudence, a jury is an important part of the system. It is through the jury that public opinion and common-sense enter the judicial process. In its absence, the whole process becomes purely technical and dominated by lawyers.
A classic case was the well-publicised Jessica Lal [ Images ] murder case. During the trial the judge himself admitted that he was convinced that the accused was guilty, yet he was forced to release him on a technicality. If there were to be a jury, this would certainly not happen. The jury system is also in consonance with the Indian tradition of having a 'panchayat' (five wise people) sorting out minor disputes at the village level.
Why is no one punished for perjury?
Despite not being from the legal fraternity, this author can vouch for the fact that in the last 40 years there have been just two or three cases of people being punished for lying under oath. Is one to believe that all Indians have suddenly turned virtuous? Have we ushered in 'Satya-yug'?
The Indian Penal Code under Section 191 defines perjury as giving false evidence and by interpretation it includes statements retracted as the person is presumed to have given a false statement earlier or later when the statement is retracted.
But hardly anyone, including legal experts, could recall a single case in which a person was prosecuted for making a false statement before the court. Under Section 191 of the IPC, an affidavit is evidence and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC which prescribes punishment up to seven years imprisonment.
Perjury is regarded as an extremely serious offence all over the world, but in India lying in court is routine. The fear of being jailed for perjury persuades witnesses to tell the truth. If the witness turns hostile, it will amount to perjury with no defence possible, and the judge can convict the witness on the spot. That will surely persuade witnesses that lies are less profitable than the truth.
One of the biggest charges against former US president Richard Nixon was lying -- a charge that led to his resignation and loss of presidency. On the other hand, in India, for instance, in the so-called BMW [ Images ] hit and run case, the rich man who mowed down several people due to drunken driving escaped as the main witness turned hostile.
Currently the burden of launching a prosecution against perjury rests with the prosecution. But in most high-profile cases, the prosecution is not interested in justice but actually works to help the accused.
As the courts increasingly take suo motu notice of many issues ranging from environment to black money, why can't the Supreme Court lay down the law that courts will henceforth take suo motu notice of perjury and punish the witnesses for lying under oath?
Judicial delay and indefinite bail
How is it that in so many high-profile cases -- of actors killing people in drunken driving cases, actors, cricketers caught killing the black buck (an endangered species) or even complicit in terror activities -- the accused remain on indefinite bail with no prospect of their case ever coming to a conclusion in their lifetime?
Should there not be a time limit set for bail period? Because, without such a limit, the rich and the powerful have all the incentive to delay the final verdict.
Can the highest court not lay down a reasonable time limit for bail? If a time limit for bail is set, the rich and powerful will no longer have any incentive to delay trial.
Many years ago a former high court chief justice had confided to this author that one of the biggest causes behing judicial delay is the Supreme Court itself. He explained that the correct forum for deciding the question of facts in a case is the high court. When an appeal challenges its verdict on the basis of facts, the highest court has no business in entertaining an appeal.
According to him, the Supreme Court must accept appeals only if it involves a point of law. He then went on to say that the apex court had indiscriminately accepted appeals even when there was a dispute about payment or non-payment of rent -- a case under the Rent Control Act! Is it any wonder, then, that we have a backlog of 20 million or more cases?
Judicial overreach
A recent judgment on special police officers in Naxal-hit areas has held these to be illegal and to be disarmed. This would have made perfect sense if the Naxals were peaceful Gandhians. With this judgment, the apex court has condemned SPOs to a certain death at the hands of Naxals, who are both well-armed and beyond the pale of the judges.
With a stroke of the pen, the judges have taken away the right to defend from a vast population who face the threat of armed militants in Naxal-hit areas as well as in Jammu and Kashmir [ Images ]. The fundamental flaw is that the judiciary does not understand what India faces in these areas.
In Kashmir, Manipur or Naxal-hit areas, what the State is dealing with is guerrilla war. No war can be fought under the criminal penal code. Stretching this logic, the village defence force, home guards or even the Territorial Army are illegal!
Judicial activism has come about due to the failure of the executive, but that does not mean the judiciary should dabble in all areas where the organs of State are functioning.
Conclusion
When confronted with the dismal fact that the conviction rate in India is just four percent, members of the judiciary often hide behind the argument that they can only interpret and implement laws and are helpless in the face of Parliament's failure to enact suitable laws. To a great extent this is true -- the vested interests in bureaucracy and politics make sure that laws are made in such a way that there are enough loopholes left for the rich and famous to go scot-free.
But there are areas like indefinite bail to the rich and famous or non-punishment for lying witnesses, that lie totally under judicial control. It is a puzzle as to why the otherwise hyperactive judiciary is ignoring these issues that can make a vast difference to the rule of law in the country. If paid heed to, the menace of 'stock witnesses' and the culture of impunity that lead to the rich and famous flouting the law, could be controlled
prabhakar singh
(Expert) 08 January 2012
Any way i hope you have got your answer from Mr.Makkad.
I suggest you to go with followings where any interested one may all get more than his appetite.
prabhakar singh
(Expert) 08 January 2012
There is MRCM whom you should join or take them with you and may go throw with some interesting things on site given below:
http://www.rahulmehta.com/improve_law_making.htm#a_0004
http://forums.bharat-rakshak.com/viewtopic.php?f=2&t=2180&st=0&sk=t&sd=a&start=0
http://broadbandforum.in/politics/43289-should-india-bring-back-jury/
http://www.jstor.org/pss/754658
http://www.legallyindia.com/Idle-chit-chat/168-Jury-in-India
The above are the right places you should go for a query like one you have lci expert section is not a proper place for these type of discussions.
prabhakar singh
(Expert) 08 January 2012
Rahulmehta who has immense interest in jury system of law in a note How to bring Jury System in India ? has advocated as follows:.
The question is for all those, but ONLY those, who believe that decisions of inhererently ununexused Jurors will be better than decisions of the fixed permanent judges, who are nexusprone and often nexused. To those who believe that judge system is better than Jury System, this is a non-question.
Now following is are the steps I suggest using which citizens in India can expel the judges and bring Jurors onboard.
First citizens should get LM.01-03 passed in Panchayats, Assembly and Parliament. These procedures would reduce citizens dependence on MLAs/MPs etc in getting Jury related laws passed in Panchayats, Assembly and Parliament.
Next, citizens should pass a law in Parliament using LM.03, which would give full powers the State Legislatures to draft the laws related with appointments of judges in all courts which would takes cases on issues which are State subjects. The Central government would ONLY manage the cases that are related with Central subjects.
Next, citizens should pass a law in Assemblies using LM.02, which would give full powers the Districts to draft the laws related with appointments of judges in Lower Courts, whose power is restricted to maximum punishment of 3 years and fine of Rs 100,000, and would also empower Districts to have full control over administration of such LCs.
Using LM.03, citizens can expel all appointed judges in SC and ensure that SCs has ONLY 10 judges of which all 10 are DIRECTLY elected by citizens of India. And using LM.03, citizens can pass a law that would create Jury System in Supreme Court of India.
Using LM.02, citizens can expel all appointed judges in HC and ensure that HCs has ONLY 10 judges of which all 10 are DIRECTLY elected by citizens of the State. And using LM.02, citizens can pass a law that would create Jury System in High Courts of States
Using LM.03, citizens can expel all appointed judges in LCs and ensure that LCs judges get DIRECTLY elected by citizens of the District. And using LM.01, citizens can pass a law that would create Jury System in Lower Courts.
Basically, 1st step redeuces the need to convince MLAs who are hostile to Jury System due to a mutual understainding that whereby judges will not hurt MLAs and MLAs will not hurt the judges. The second step will allow each state to decide whether they want judge system or Jury System, and how they want to manage their State courts. The third steps takes it down to district level --- for all crimes in which maximum punishment is below 3 years. Now citizens of districts are on their own --- some district may decide to continue as is with appointed judges, some may opt for elected judges with no Jury, some district may opt for elected judges with Jury System and so forth.
This may reduce uniformity, but DOES NOT result into discrimination, as inside a court, all citizens are treated equally. Such uniformity does not exist even today, as some laws under state subjects vary from state to state. Also, since Criminal Procedure Code is joint subject in India, CrPC in different states does vary. Also, since the procedures to appoint judgfes in lower courts is left to HC chief judges, they vary from State to State. So we do NOT have uniformity today. So my proposed setup DOES NOT destroy uniformity, as we dont have uniformity anyway.
Proposed improvement - CT.01 : Jury Trials over Municipality Employee
Following is the proposed administrative procedures, which are much less nexusprone that existing the above mentioned departmental inquiry :
The Mayor will appoint a JA (Jury Administrator). The Mayor may assign this responsibility to an existing Jury Administrator.
The JA will randomly select 30 citizens as the Grand Jury. Each Grand Juror will have a term of three months. So every month, 1/3rd will retire.
Any citizen who has evidences/witnesses to show that an employee of City/District Government is corrupt/inefficient/nexused, or his behaviour is much below the citizenry's expectations, he can present these evidences/witnesses before the Grand Jurors.
If over 15 Grand Jurors declare that the complain has some truth in it, JA will randomly choose 12 citizens from the city.
If over 8 out of 12 Jurors, after listening to the arguments of both sides, declare that the employee was involved in an illegal act and is unfit to serve the citizens, the Mayor will expel the employee within 24 hours.
No employee can be expelled, transferred or punished in any way without permission of Jurors. So if the Mayor, or any any senior officer has complaint against a junior officer
The Jury Administrator will also summon 50 citizens at random, who will have to attend the courts (as viewer) to observe the trial. If a citizen does NOT appear to see the trial, he will have to pay a fine of Rs 100/day and if he appears to see the trial, he will be paid Rs 50/day (the amounts can be adjusted from time to time).
Proposed improvement - CT.02 : Jury Trials over State Govt Employees
Following is the proposed administrative procedures, which are much less nexusprone that existing the above mentioned departmental inquiry :
The CM will appoint a JA (Jury Administrator). The CM may assign this responsibility to an existing JA.
The JA will randomly select 30 citizens as the Grand Jury. Each Grand Juror will have a term of three months. So every month, 1/3rd will retire.
Any citizen who has evidences/witnesses to show that an employee of State Government is corrupt/inefficient/nexused, or his behaviour is much below the citizenry's expectations, he can present these evidences/witnesses before the Grand Jurors.
If over 15 Grand Jurors declare that the complain has some truth in it, then JA will randomly select a district from the neighboring districts in the state, and forward the complain to that Grand Jury
If over 15 Grand Jurors of 2nd district also declare that the complain has some truth in it, then JA of that district will randomly choose 12 citizens from that District.
If over 8 out of 12 Jurors, after listening to the arguments of both sides, declare that the employee was involved in an illegal act and is unfit to serve the citizens, the CM will expel the employee within 24 hours.
No employee can be expelled, transferred or punished in any way without permission of Jurors. So if the CM, or any Minister, or senior officer has complaint against a junior officer, they MUST approach the Grand Jurors and ask for a Trial by Jury.
The procedure is similar to CT.01, except that complain against a State Govt officer is presided by a Jury chosen from a DIFFERENT district than the district he was serving.
Proposed improvement - CT.03 : Jury Trials over Central Govt Employees
Following is the proposed administrative procedures, which are much less nexusprone that existing the above mentioned departmental inquiry :
The PM will appoint a JA (Jury Administrator) for each district. The PM may assign this responsibility to an existing JA.
The JA will randomly select 30 citizens as the Grand Jury. Each Grand Juror will have a term of three months. So every month, 1/3rd will retire.
Any citizen who has evidences/witnesses to show that an employee of Central Govectment is corrupt/inefficient/nexused, or his behaviour is much below the citizenry's expectations, he can present these evidences/witnesses before the Grand Jurors.
If over 15 Grand Jurors declare that the complain has some truth in it, then JA will randomly select a district from the neighboring State, and forward the complain to that Grand Jury.
If over 15 Grand Jurors of 2nd district also declare that the complain has some truth in it, then JA of that district will randomly choose 12 citizens from that District.
If over 8 out of 12 Jurors, after listening to the arguments of both sides, declare that the employee was involved in an illegal act and is unfit to serve the citizens, the PM/Minister will expel the employee within 24 hours.
No employee can be expelled, transferred or punished in any way without permission of Jurors. So if the any Minister, or senior officer has complaint against a junior officer, they MUST approach the Grand Jurors and ask for a Trial by Jury.
The procedure is similar to CT.01, except that complain against a Central Govt officer is presided by a Jury chosen from a DIFFERENT state than the state he was serving.
Proposed improvement - CT.04 : Jury System in Quasi Courts
In each quasi-court, the in-charge will select and summon 30 citizens at random from the District, and form a Grand Jury. Each Grand Juror will have a term of three months. So every month, 1/3rd will retire.
Any case that comes before the quasi-court, the Grand Jurors will decide if the case requires a detailed hearing. If over 15 decide that the case requires a detailed hearing, the in-charge will summon 12 citizens from the district at random to form a Jury.
The Jurors would decide the acquital/punishment after hearing both the sides. The person would be punished ONLY if over 8 Jurors approve a punishment.
Proposed improvement - CT.05 : Jury System in Lower Courts
The District Public Prosecutor will select and summon 30 citizens at random from the District, and form a Grand Jury. Each Grand Juror will have a term of three months. So every month, 1/3rd will retire.
Any case that comes before the lower court, the Grand Jurors will decide if the case requires a detailed hearing.
If over 15 Grand Jurors decide that the case requires a detailed hearing, the in-charge will summon 12 citizens from the district at random to form a Jury.
The Jurors would decide the acquital/punishment after hearing both the sides. The person would be punished ONLY if over 8 Jurors approve a punishment, or else he will be acquitted.
Proposed improvement - CT.06 : Jury System in High Courts
There can be several ways to implement Jury System at HC level, of which I like and would propose following two ways :
First proposal :
The State public prosecutor will select and summon 30 citizens at random from the State, and form a Grand Jury. Each Grand Juror will have a term of three months. So every month, 1/3rd will retire.
Any case that comes for appeal, the Grand Jurors will decide if the case requires a detailed hearing. If over 15 decide that the case requires a detailed hearing, the in-charge of HC will summon 24 citizens from the State at random to form a Jury.
The Jurors would hear the case. And if over 16 Jurors declare the judgement of Trial Court as inappropriate, the judgement will get cancelled, or else stay confirmed.
Proposed improvement - CT.07 : Jury System in the Supreme Court
There can be several ways to implement Jury System in Supreme Court, of which I propose the following :
Any person which wants to file an appeal against a verdict of High Court will send his case to Law Minister of India who will randomly select 3 States other than the State's High Court which has given the judgement.
The appeal will be sent to the Grand Juries of these 3 High Courts.
The Grand Juries and Juries in these 3 High Courts will conduct the hearing of the appeal independently. If over 2 High Courts reject the judgement of the orginal HC, then the judgement will stand cancelled. Otherwise the judgement will be confirmed.
CT.08 : Election/recall of City Judge
The MAIN solution to the problem of nexuses (nexuses like nexuses between judges and lawyers and nexuses between judges and career criminals) is procedure "CT.06 : Jury Trial in Lower Courts". To see details of CT.06, please click here.
The Jury System empowers the Jurors to decide the facts, as well as the validity of the law in the specific case, and decide the punishment as well (below the maximum punishment stated in the law). The role of the judge reduces to advise/guide the Jurors. The procedure CT.06 drastically reduces the power of the lower court judges. So there will be fewer reason for private individuals to form nexuses with judges, and nexuses will play less damaging roles.
But still, it is necessary that Jurors get guidance from unnexused judges, who have independent minds and no fear from any other authority except the citizenry. The procedure CT.08 achieves that to a far greater extent than existing procedures of appointing judges in lower courts, where ALL power is in the hand of HCjs.
The summary of the proposed procedure CT.08 is as follows
The City/District Council will decide the number of Lower Court judges it needs, and manage the funding using wealth tax, and NO other tax
Say a city's population is 10,00,000. Such a city may need say 20-100 City Judges. Say the City Council decides to have 80 City Judges.
Then each year, citizens will elect 1/4th of Judges for a term of 4 years. In above example, each year, citizens will elect 20 Judges.
A person can serve as City Judge for at most 8 years in his life in one city/district.
The senior most City Judge will become the Chief City Judge. The seniority will be in terms of number of years he has served as City Judges, and age. The City Judges will give verdict as per the decisions of Jurors.
Expulsion rule :
If a citizen has evidences of wrong doing by a judge, he may present the evidences to the City Grand Jury. And if majority of the Grand Jurors see a prima facie case, they may call a Jury to examine the complain.
If over 8 out of 12 Jurors declare the Judge as "unfit to serve the citizens", the Chief Judge will expel him, and replacement will get elected in the next poll.
Deepak Nair
(Expert) 09 January 2012
Mr.mandal,
Great to know that your thread is resulted in such a lengthy discussion. Any ways, i hope you are satisfied now why the jury system is practiclly impossible in India
Guest
(Querist) 16 January 2012
A system which take 22.3 years on an average to deliver a justice can certainly be summed up as justice denied being delayed. And the delay only benefits the real culprits. And it is also admitted that money power and muscle power has played havoc with the present system to deny justice to the common man for which such elaborate judicial system is in place to celebrate our DEMOCRACY.
As there are many voices for and against re-invoking Jury system as a lay man I wonder is there any Anna Hazare to take up this important issue forward?
And which community would be adversely affected if Jury System is reintroduced- our Lordsheeps or the devils advocates?
V R SHROFF
(Expert) 16 January 2012
Lots of Ink spelled ,
No more to add
Usually, Your queries are PIL Related.
There is substance in it.
Cry On, all the best.
Lawyers only carry on Legal procedures, To formulate Law or procedure is not controlled by Advocates,
Haridas, You need us, and we serve you.
You have wide choice, and all won't be Devils.
R.Ramachandran
(Expert) 16 January 2012
Dear Mr. Shroff,
I am wondering why Mr. Haridas is just concerned only with jury system?
If introduced in our country even selecting an appropriate jury for a case would itself take about 20-25 years.
Instead of jury system, why can't we also think about what was the system even before the coming into being of any legal system. Might was right was it not? Can we not go back to that system. Because the issue would be settled then and there just like your 20-20 cricket?
Guest
(Querist) 16 January 2012
Jury System is not akin to Khap Panchyat and we all agree( i.e the lay man like me and Experts as well).
It is functioning well in most of the developed countries where human development index are very very high in comparison to our democracy with that colonial hangover.
And finally selection of jury system is pseudo-random and takes 10 seconds by the main frame computer. Once selected the person whether a chhote Nawab , Bade Miya , Shahensha or erstwhile kings and Queens or simply hapless half starving lower castes are to attend with no exemptions.
It has delivered and delivering in the advanced countries the justice to the people time bound.
AS the lawyers fraternity is the one ruling the ruling as well as the opposition national or notional parties in the centre and the states I thought appeal to the lawyers fraternity in this regards won't be out of the context.
And law making is done better by the people who are specialists in that subject.
