Jury Trial vs.

Bench Trial

Which is a better option for India?

FOR SUBMISSION IN THE SUBJECT OF

CONSTITUTIONAL LAW II

Submitted By

KARAN VYAS

2nd Year BA.LLB (Hons)

BA0150021

1|CONSTITUTIONAL LAW II
 CHAPTER -I

INTRODUCTION

I am unconvinced of the advantages of jury trials over those by judges. I have known juries
finding prisoners guilty in the face of no evidence and even judges 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. What we
must aim at is an incorruptible impartial and able judiciary right from the bottom.

- Mahatma Gandhi1
The jury system finds its roots in the ancient England, where the gradual development of the
jury system took place before the Norman Conquest and effectively after it. Since the
Norman Conquest there has been three modes of trail in criminal cases, trail by ordeal, trail
by battle and trial by jury. Under the legal text of Assize of Northampton (1164) and assize of
Clarendon (1176) legislated under the reign of Henry II, the provisions related to ordeal and
banishment were established.2 For trail by battle was concerned, it was an incident of appeals.
The accusation was made either by private person or appeals, by a grand jury or by the
attorney general or by master of the crown office.3 The book of Bracton, de corona, a part of
first book of Britton states trail by war as an exception plea which states that If the appellee
did not plead guilty then battle was waged between the parties, after being thoroughly
examined by the judges into the facts and circumstances of the case and shall not allow if it
was against the appellee. If the appellee is not defeated or he was victorious before the stars
appear he shall be acquitted of the appeal and if the otherwise happened then he was
supposed to be hanged. Trial by jury was also seen in various other ancient legal systems like
"Dikasteries," in Greece4, Comitia in Roman Empire5, "laugretto- madr" Norway consisting

1
Law Commission report 1958
2
Stubbs, charters, 143,150 as cited in page 251 chapter VIII ; James fitzjames Stephen; A history of criminal
law of England; Cambridge library collection (Volume 3); Cambridge university press, Cambridge
3
Ibid at page number 244 chapter VIII
4
Grote, Hist. of Greece, Vol. 5, c. 46. See also Bryce's Modern Democ- racies, Vol. i, p. 198, for an interesting
description of the workings of the Greek Dikasteries. As cited in University of Pennsylvania Law Review And
American Law Register1852 Published by the University of Pennsylvania Law School,.
VOLUME 70 NOVEMBER, 1921. NUMBER ITHE HISTORIC ORIGIN OF TRIAL BY JURY.* Robert von
Moschzisker, Chief Justice of the Supreme Court of Pennsylvania
5
Colquhoun, Rom. Civil Law, Secs. 2322-2341. As cited in University of Pennsylvania Law Review And
American Law Register1852 Published by the University of Pennsylvania Law School,.VOLUME 70
NOVEMBER, 1921. NUMBER ITHE HISTORIC ORIGIN OF TRIAL BY JURY.* Robert von Moschzisker,
Chief Justice of the Supreme Court of Pennsylvania

2|CONSTITUTIONAL LAW II
of logmann, Tingmaend In Denmark6 etc. In India the jury system was introduced in
pre-independence era with the evident of the British East India Company. Subsequently,the
takeover of India in the year 1860 lead to the rise of new laws of justice. Jury trials were
established in the Sessions Courts under the Criminal Procedure Code of 18617(amended in
1872, 1882, 1898) where such trails used to cover those offences as notified by the local
government. Amendments in the Act was made to apply the jury systems in presidency towns
as well that usually covered the offences like theft, house breaking, robbery etc. and later
manslaughter, property related offences etc.8 Under the Constitution the acts passed before
the enactment of the Constitution were continue to be in force and accordingly the
constitution remained silent on it. Afterwards the famous case of K.M Nanavati vs. Union of
India9 came which made the judiciary and the government realized the grave dangers of Jury
system in a state like India where the jury can and was easily influenced by the media reports
and public opinions rather than the merits of the case and the legal principles. Accordingly in
a brief manner the process of trial by jury was abolished and the same was stamped by the
Criminal Procedure code of 1973 and other legislations.

Trail By Bench on the other hand has now become an inevitable and inalienable part of the
Indian legal system. It is but obvious that proceedings of the court have to be presided and
adjudicated by a judge, but the sole adjudication by him is the main distinction between Trial
by Jury and Trial by Bench. After a subtle downfall of the Trial by Jury system in India the
preference was eventually given to trial by bench and in the criminal procedure code of 1973
it became the sole trial procedure in India. It was presence in both pre & post-independence
legislations and existed simultaneously alongside with Trial by Jury as it was subject to the
discretion of the court to try the cases with jury along with a list of exceptions.

6
Repp, pg. 115 as cited in University of Pennsylvania Law Review And American Law Register 1852 Published
by the University of Pennsylvania Law School,.VOLUME 70 NOVEMBER, 1921. NUMBER I THE
HISTORIC ORIGIN OF TRIAL BY JURY.* Robert von Moschzisker, Chief Justice of the Supreme Court of
Pennsylvania
7
ACT NO XXV OF 1861 available at
http://bombayhighcourt.nic.in/libweb/oldlegislation/cripc1861/Code%20of%20Criminal%20Procedure,%20186
1.html
8
Trial by Jury in India Author(s): A. G. P. Pullan Source: Journal of Comparative Legislation and International
Law , Vol. 28, No. 3/4 (1946), pp. 104-109 Published by: Cambridge University Press on behalf of the British
Institute of International and Comparative Law Stable URL: http://www.jstor.org/stable/754658
9
1962 AIR 605, 1962 SCR Supl. (1) 567

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RESEARCH OBJECTIVE

The researcher embraces the objective , making a critical study of both Jury system and
Bench system of Justice Delivery and make a brief analysis of their relevance & applicability
in Indian legal system and to find which is a better option for India - Jury Trial or Bench
Trial?

RESEARCH QUESTION

The researcher embraces the following as the primary question of research.

1. What is Jury Trial and what is Bench Trial?

2. What is the history of Jury Trial and Bench Trial in India?
3. Which is a better option for Justice Delivery system of India, Trail by Jury or Trail By
bench?

4|CONSTITUTIONAL LAW II
 CHAPTER II

WHAT IS TRIAL BY BENCH and TRIAL BY JURY

A Jury Trial is a legal proceeding in which Jury either makes a decision or makes findings
of fact which are then applied by a judge. It is distinguished from a Bench Trial in which a
judge or panel of judges.

A Bench Trial is a trial by judge, as opposed to a trial by jury. The term applies most
appropriately to any administrative hearing in relation to a summary offence to distinguish
the type of trial. Many legal systems (Roman, Islamic) use bench trials for most or all cases
or for certain types of cases.

To be Increased

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 CHAPTER III

HISTORY OF TRAIL BY JURY IN INDIA

Trial by Jury found its roots in the traditional Indian structure of Judiciary. The best
example was that of panchayat system where a jury of five panch was selected to
adjudicate upon a particular case and they decided the case based on the general norms and
customs prevalent in that village or community. In its present day format the trial by jury
system was transplant of Britishers and introduced by the East India Company in late 1600s,
mainly through Charter of 1661. It was used by the company officials to resolve disciplinary
disparities within the company.

Afterwards when the company was granted the Diwani of Bengal, Oudh and Bihar it started
to expand its jurisdiction to a variety of offences, initially house break, robbery, theft, dacoity
etc. After the 1860 when the domain of India was transferred to the crown, a new set of
legislation changed the entire law system of India. The Code of Criminal Procedure of 188210
and the letters patents of the presidency courts gave a statutory foundation to the right to be
adjudicated by a jury. Under section 267 all trails before the High court shall be by Jury.
Thus the High Courts initially enjoyed an ordinary original criminal jurisdiction and such
shall be exercised by an adjudication given by a jury. However after independence various
state amendments were made and accordingly the trial by jury became an option rather than
an obligation. For example the Madras Act, 195511 was amended to delete the word High
court and therefore jury trail shall take place before presidency magistrate or city session
court.

However the provisions of the act established that outside the presidency courts the state
governments by notification in the official gazette establish the Jury trail system in the
jurisdictions it deems fit. The constitution did not incorporate the right to trial by jury as a
right. Thus as it can be clearly seen that, even established through legal provisions it never
constituted as an important element of the Indian Legal system.12The law commission report
in 195813 advocated for the abolition of jury trial for the fact that it heavily deviated from the
primary responsibility of dispensation of justice, because though it connected the common

10
Ibid 7
11
(Act XXXIV) of 1955
12
Law commission of India 14th report reform of judicial administration. 1958
13
Ibid 12

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public from the process of administration of judiciary it became heavily influenced by it thus
causing prejudice in the mind of jury thus violating the basic natural law of adjudication of
justice without being biased. Also under the section 418 of the CrPC, 186014the right of
appeal of the person who underwent a jury trial is also restricted as the appeal on the matter
of fact is expressly barred and it cannot be agitated in an appeal. Not only did they advocated
that the jury trail takes a very long time and was empirically and statistically an
unsatisfactory system, it was also criticized that it was not a system of fair trial based on
the interviews taken by the law commission members. Just 2 years after the recommendation
by the law commission itself, all the evils of the jury trials were summed up in the famous
case of K.M Nanavati vs. Union of India.15In this case the acquittal of the naval commander
by the jury was widely recognized by legal dignitaries as failure of jury system as the jury
was heavily biased and prejudiced in favor of Commander Nanavati which eventually gave
decision in favor of K.M. Nanavati by 8:1 majority. However the decision was overturned in
the appeal to High court on the grounds of misleading of jury based on the various aspects of
the facts of the case. However not in criminal law but in civil procedure there is still a
provision for trial by jury. Under the Parsi Marriage And Divorce Act, 193816section 19 any
matter related to alimony and maintenance, both permanent as well as pendente lite; custody,
maintenance and education of children; and all matters and proceedings other than the regular
hearing of cases.17 And shall be decided by five delegates appointed by chief justice of the
presidency high court and he may preside over the trial or appoint any other justice form the
high court. The jurisdiction of the matrimonial court shall be same as that of high court and in
case of district matrimonial courts as per the jurisdiction of the city civil court under section
20.

The basic idea that lies behind the jury system is that it asses the accused on the basic laws
and morality that exist in the society and also that the serious criminal offences are
considered to be done against the state. The members of the jury are to be best described as
the representatives of the society who are familiarized with the real world and are well
aware of the nature and response a human being hold in various situations.18 These responses
or the acts of the accused are then best evaluated on the grounds of morality and laws of the
14
Ibid 7
15
Ibid 9
16
ActNo 3 of 1936 available at http://admis.hp.nic.in/himpol/Citizen/LawLib/C193.HTM
17
Parsi matrimonial courts: India's only surviving jury trials. By SoutikBiswas http://www.bbc.com/news/world-
asia-india-34322117 24 Sept 2015
18
Are Jury Trials Fair and is it Time to Scrap Them? 30 May, 2014. Author Samantha Love
https://www.oxford-royale.co.uk/articles/scrap-jury-system.html

7|CONSTITUTIONAL LAW II
society. The rationale behind it is that these jury members are believed to give a same
judgment each and every time they encounter the accused in facts already adjudicated for the
fact that these jury members have a similar experience of the society they live in and have no
reason for deviation from the same. Hence what does and does not constitute an acceptable
behavior is represented by these jury members. It safeguards the blind exercise of law on the
lives of the accused and rest the jurisprudentially tries to solve the fundamental problem of
conflict between positivist and realist view of law. The jury system evaluates the law both on
the reality based in the society and the laws prevailing in the society. Though the justice
given by the jury covers all the aspects from legal to the morals, the complexity of the law is
something that jury has many a times failed to understand let alone apply in particular case.

TRIAL BY BENCH IN INDIA

The Trial by Bench existed in India along-side with the trial by jury. Under the criminal
procedure code, 1973 Trial by bench became the sole process of trial to adjudicate upon a
case. All it came after recommendations of 14th Law commission of India, 1958 and the
detailed procedure of trial was laid down in the CrPC. As we have already seen that
legislators, judges and eminent legal functionaries disregarded trial by jury as it was losing its
ability to be fair and comply with the natural laws of justice. The Criminal Procedure Code,
1973 came to eradicate this and had accused person should get a fair trial in accordance
with the accepted principles of natural justice as one of its primary objectives.

The hierarchy of courts places Supreme Court at the top where under the Constitution its
jurisdiction and powers are defined19, there are provisions of appeal to the Supreme Court in
special circumstances and also enjoys appellate. Next to SC are the High Courts of the states
which again under Constitution have the superintendence over all courts of the state. Next is
the session courts which are established for every Session division. The judge is appointed by
the High Court. After the Division, every district is, as per the consideration of state
government, in consultation of the High court, have courts of judicial magistrates of first
class and second class to try a particular case or a class of cases.

The principle feature of a trial procedure or Bench trial is a fair trial. Under CrPC the most
indispensible condition for a fair criminal trial is to have an independent, impartial and

19
See, Articles 124, 129, 130, 132, 134, 136, 137, 138, 139, 141, 144, 145

8|CONSTITUTIONAL LAW II
competent judge to conduct the trial. Under section 479 the judge shall not be connected in
any manner with the prosecution or interested in prosecution. To secure a fair trial as
established in Kehar Singh vs. State (Delhi administration)20 a public hearing in an open
court based on certain exceptions can be done. In Moti Lal Saraf vs. State of Jammu and
Kashmir21 the court held that a Trial which drags on for unreasonably long time is not a fair
trial. Speedy trial is an essential ingredient of reasonable fair and just procedure guaranteed
by article 21 and it is the constitutional obligation of the state to devise such a procedure as
would ensure speedy trial to the accused as held in Hussainara Khatoon vs. State of Bihar22.
Hence now that we have traced the history and the significance of trial by bench in India it
would be appropriate to make a final comparative analysis of both the trial procedures.

20
1988 3 SCC 609 1988 SCC CRI 711
21
2006 12 scc 560; (2007) I scc (cri)180; 2006 Cri LJ 4765
22
1980I scc 98,107; 1980 SCC (Cri) 40,49; 1979 cri LJ 1045

9|CONSTITUTIONAL LAW II
 CHAPTER IV

IMPORTANT JUDGEMENTS

First Trial By Jury - Trial of Ascentia Daves

The first case decided by an English jury in India happened in Madras (today Chennai) in
1665. One Mrs Ascentia Dawes (probably a British woman) was charged by a grand jury
with the murder of her slave girl. Then a petty jury, with six Englishmen and six Portuguese,
found her guilty,but not in manner and form. The Governor asked the jury for a second
clearer verdict and Mrs Dawes was acquitted. This first case is almost the summary of a
rather sad story: the introduction of the jury as a biased institution in favour of British
colonies, with many acquittals taking aside acts of extreme violence committed by colonizers
against indigenous people.

To be increased.

10 | C O N S T I T U T I O N A L L A W I I
 CHAPTER V

CRITICAL ANALYSIS ON

TRIAL BY JURY vs. TRIAL BY BENCH

By making a fair analysis of both the trial procedures in India and it can be safely concluded
that there has been a growing change to rescind the jury system everywhere. In order to make
a brief summary of arguments on both sides let us take a neutral stand and ignore the present
regimes.

When an accused is being tried before a jury, the idea is that the accused is being tried by
peers rather than a single magistrate or judge, who may or may not be able to relate to
personal circumstances of the accused. With a jury trial, the decision is made by a number of
people rather than one individual and this can be reassuring for an offender, particularly a
serious one with serious potential penalties. In many states and previously in UK and India as
well, the verdict in a jury trial needed to be unanimous i.e. all the jury members need to agree
whether the defendant shall be acquitted or convicted.

The burden of proof lies, in criminal trial, on the prosecution to establish the guilt of the
accused beyond all reasonable doubt. The philosophy that lies behind the trial by jury is that
the law shall operate but within the sphere of basic human understanding and wisdom which
can be very much ignored by the judge who practise law and is confined by its boundary.
Many principles of law are found not only on basic legal provisions but on common sense
and human understanding example of which could be self-defence. Law recognises self-
defence as an exception to commit a crime. As a person trying to defend itself over a threat is
a basic human instinct.

A mere application of law would definitely hold the person defending to be a criminal but the
application of human sense and wisdom will bring out the reasonability and will accordingly
give the right decision. Also if we take the assertion on which the jury system ever came into
existence, which is, that decision of majority is right as one person can be biased but not
many. Also variety of people would represent different opinion and it is actually an
accumulation of knowledge that would help better adjudication of the case. However the pros
outweigh the cons.

11 | C O N S T I T U T I O N A L L A W I I
Due to the dynamic nature of the law and its increasing scope due to advancement in
technology and science, the law to govern the same is evolving extensively. Hence the Jury
may, with all the possibilities, fail to understand the real legal issue residing in those
technicalities. Though Trial by Jury has a better hand over bench for the fact that the jury can
constitute of experts from those fields like a case related to securities fraud can be aptly dealt
by a jury that comprises of experts from capital and financial market or a case related to
intellectual property can be dealt by the experts in that field. Additionally a new pattern has
been seen growing in countries like U.K. where the jurors were themselves on their personal
capacity were conducting investigation and obtaining information about the accused. This
deters not only the quality of the justice given by the jury members but also forms the
prejudice in the minds of the jurors about the persons and the case.

The biggest problem with trial by jury is that it can be easily influenced and altered with as
the Nanavati Case showed us that a mere publicity of a case lead to the prejudice formed in
the minds of the jury and such shall not be the case. Law commission in its 200th report on
Trial by media stated that it is not very uncommon that judges do get influenced by the media
reports and opinions published therein and how it is a clear hindrance with the administration
of justice. In recent times there have been numerous instances in which media has conducted
the trial of an accused and has passed the verdict even before the court passes its judgment.
Some famous criminal cases that would have gone unpunished but for the intervention of
media, are Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and Bijal
Joshi rape case. The media however drew flak in the reporting of murder of Aarushi Talwar,
when it pre empted the court and reported that her own father Dr. Rajesh Talwar, and
possibly her mother Nupur Talwar were involved in her murder, the CBI later declared that
Rajesh was not the killer.

So its only fair to realize what damage would it cause to society, if jury that consist of
normal people is there. Another major drawback is that the jury can very much deviate from
the basic principles of justice and deliver its decisions based on human emotions like
sympathy, anger etc. in a legal system where the rule of law is given a supreme position
human values shall not be given any preference over the present legal scenarios.

As in the case of K.M. Nanavati the decision of jury can be said to be based on the human
emotions of sympathy rather than legal reasoning. A judge even if directs the jury to ignore a
certain fact or opinion; it would still in some way or the other unconsciously make the

12 | C O N S T I T U T I O N A L L A W I I
decision biased. On the other hand a judge is someone who because of his training in the field
of law and channelized legal thinking can evaluate the arguments and facts on legal grounds
and provisions but the same has been missing when comes to the jury in every legal systems
that is and to be evaluated. This stands in direct contravention to the benefit of trial by jury on
the fact that due to such heterogeneous cultural, economic, communal, regional disparities
etc. the jurors are more encouraged to work in benefit of their particular group they associate
themselves with. Not only this, in a case Dahyabhai Chhaganbhai Thakker vs. State Of
Gujarat similar contentions were held were a man who murdered his wife claimed the
defence of insanity to escape liability. Though the accused was convicted the jury was seen as
being biased to that person based on his community. On the other hand the trial by bench is
completely a better option. Bench trial, looking at the present judicial deadlocks of delayed
justice and rising compilation of cases at the court, is the best probable solution.

A Trial by Bench is fast and speedy. The adjudication by a judge is at a much faster pace as
being familiar with the laws and the standard court and criminal procedures he can
concentrate on settling the issues and adjudicating upon the same whereas on the other hand a
jury has to be made familiar with the procedures and its selection procedures along with its
own adjudication take a long time for trial which can be afforded by the judiciary let alone it
be the parties. The biasness residing in the conscious of the jury members is an elephant in
the room.

Whereas a Bench Trial safeguards the same for the fact that due to excessive training and
aptitude of the judges they refrain to such biasness and can even be held liable, based on
proper evidence, on the other hand a jury would only be discarded and a fresh would be
constituted which neither solves the problem nor punishes anyone for such biasness. Many a
times the Trial by Bench has been a determinant to safeguard people from such biasness and
such can be seen from the cases like Visakha Vs. State of Rajasthan23 where it was
established to protect women from sexual harassment on workplace, Shah Bano vs. state of
Madhya Pradesh24 were rights of the women were held to be superior form the religious laws
related to maintenance and divorce. Hence it can be safely concluded that Trial by Bench is
the most appropriate legal procedure for Indian legal system and its incorporation has
actually saved the criminal jurisprudence of India.

23
JT 1997 7 SC 384
24
1985 AIR 945, 1985 SCR (3) 844

13 | C O N S T I T U T I O N A L L A W I I
 CONCLUSION

The above research would likely to be concluded by saying that Trial by Jury in India was an
unsuccessful system of Justice delivery and it is wide array to think what would have been
the result of the landmark judgments such as Shah Bano Case, Best Bakery Case, Dr. Rajesh
Talwar and another vs. Central Bureau of Investigation and Naaz Foundation Case.
However it would be wrong for not acknowledging the faults and drawbacks of the Bench
system. But it is clear from the above research that the pros of the Trial by Bench outweigh
its cons. The direction in which the Indian Judiciary is going seems the most appropriate for
it as even if delayed we are able to ensure a fair trial to both the prosecution and the
defendant. The main difference why Trial by Jury failed in India and is successful to its
contemporary legal systems is because of the diverse nature of the both socio-legal arena of
India. These identities with which jurors associate themselves with are inalienable from their
life and this eventually affects them. These influences are so strong that even law commission
in its 200th report on trial by mediaacknowledged that judges do get influenced from media
trials so the case of jurors have no stand. Not only does this happen it is also found in the
other legal systems as well like France and USA. Hence at last the research can be concluded
by the following notion that the present legal system of Trial by Benchis the most appropriate
system of criminal adjudication. And henceforth the focus of the legislators and the judiciary
should be on identifying and addressing the issues related to trial by bench.

14 | C O N S T I T U T I O N A L L A W I I