QUESTION. OBSERVATIONS. (Hansard, 6 February 1893)

*LORD STANLEY OF ALDERLEY

asked the noble Lord the Secretary of State for India, whether he had sanctioned abolition of trial by jury in seven districts of Bengal for 91 offences, including murder; and whether the subjects of European countries and citizens of the United States, accused of any of these offences, would lose jury trial? He said 507 he had put down this notice early in the Session because Madras and Bombay were threatened with the same ill-treatment that Bengal had received. He believed in every Assembly of Englishmen men of all shades of opinion were equally attached to trial by jury, and there would be no difference in their Lordships' House in that respect. They had regarded it not so much as the means of securing liberty as a means of ensuring the administration of justice. But some of their Lordships, mindful of the failure of juries in a disorganised part of the United Kingdom, might have doubts whether they were equally valuable outside England but he hoped they would not forget that even Irish juries would, if the venue were changed, do their duty. He would place before the House opinions front judicial and official persons in India which should have more weight than those which had induced the Bengal Government to take this resolution. An agitation had been going on in Calcutta of which he would only say that it was for the present allayed because it was hoped her Majesty's Government would be induced to reverse the action of the Lieutenant Governor. A great meeting had been held at the Town Hall, Calcutta, and speeches were delivered by Englishmen, two of them belonging to the legal profession he would not trouble the House with quotations from those speeches. There was this difference between the present agitation and that which had been excited by the Ilbert Bill, that on the former occasion the unofficial Englishmen were diametrically opposed to the Bengalis, but now the best men of the unofficial English had made common cause with the people of Bengal. What had happened Was that on the 29th October last an Order was issued, signed by the Secretary of the Bengal Government, modifying the Orders of 1862 establishing trial by jury, and withdrawing jury trial in the case of 91 offences, from murder downwards, in seven districts of Bengal—namely, the 24 Pergunnahs, Hooghly, Burdwan, Murshidabad, Nadia, Patna, and Dacca. No reason was assigned, and the Province was taken by surprise by this news. On the 12th of November last a letter was published, dated June 22nd last, from Sir John Edgar, Chief Secretary to the Government of Bengal, 508 to the Secretary of the Government of India, Home Department, from which it appears that the Government consulted, as to the merits of trial by jury as a means of repressing crime, the Chief Justice and High Court Judges, the Commissioners of the Presidency, and of Burdwan, Dacca, and Patna, the District dodges of the seven districts already mentioned, and the Inspector General of Police. The majority of these persons are said to have reported against the jury system. Eight persons are named in Sir John Edgar's letter as against it; five think it has not been altogether successful—one of them, the Commissioner of Patna, would like to substitute assessors for jurors; six think it has worked fairly well, and some of them would like to extend appeal from the verdict of the jury. These are the Chief Justice and the Justices Beverley, Trevelyan, Norris, Ghose, and Banerjee. All those were High Court Judges. There were two, High Court Judges and only two, Mr. Justices O'Kinealy and Amir Aly, who reported entirely against trial by jury, but -neither of them were Englishmen. It was to be expected that the Inspector General of Police should oppose trial by jury. Possibly many Police Inspectors in tills country would express similar opinions, especially if asked the misleading question whether the jury system favoured the repression of crime. How misleading was the question put by the Bengal Government to the judicial authorities had been well expressed by a, Hindu paper of Calcutta (Reis and Rayyet). The inquiry started with an initial mistake—a fundamental misconception of the function of trial by jury. The mistake and misconception was to regard that mode of adjudication as a special means for the repression of crimes. It was riot as such a mode that the institution arose in its original home—it was not as such that it is prized there or anywhere else. Trial by jury is not a complement to the police. It was not founded on the belief in its efficiency as an organ for hunting down criminals. It is rather a safeguard against the tyranny of the King and his minions—the State and its agents. It is in the interest of justice to the accused that it everywhere exists. It is more necessary in India than in England or the United States. It is an indispensable protection in this country with a notoriously corrupt police, and a timid ignorant population unable to help themselves, and to claim far less to defend their rights. It was in this view that the truer statesmanship of the past grafted this beneficent institution of the Mother Country on to the judicial Constitution of this country. 509 The Indian Daily News (January 6), a paper conducted by Englishmen, also points out that the question put by the Bengal Government was misleading, though it would not imply that it was so wilfully. The opinions upon which the Bengal Government relied did not, however, say more against the working of juries in India than might be said, and often had been said, in England. For instance, 180 years ago it was said that jurymen hastened to find a verdict in order to get to their dinners; and Judges even were involved in the same accusation. Now the Bengal Government made the opposite complaint, that there were no convictions, and that "wretches live that jurymen may dine." Not very long ago, owing to the writings of Charles Dickens and his school against capital punishment, juries hesitated to convict. Last Autumn only the executors of Mr. Long brought an action for the full price of a portrait; and, in spite of the Judge, the art critics, and the friends of the deceased artist, who thought the picture unworthy of the artist, the jury found a verdict in favour of the executors. There were, however, other judicial and official opinions strongly in favour of the jury system as carried out in India. These had the merit of having been spontaneous, or given in annual Reports on the working of the jury in Bengal. Some observations made a little more than a year ago by the Chief Justice of Calcutta, in his Charge to the jury at the trial of four persons connected with the newspaper Bangabasi, showed what he thought of Indian jurors. He began his Charge by saying that— Before he dealt with the facts of the case, he would like to say a wont as to what Mr. Jackson (the counsel for the defence) had said on Saturday (August 22) and to-day (August 24) with reference to the composition of the jury in this case. He hall also been struck by the small number of native names which lead been called out when the jury was being empannelled, and he had inquired of the Clerk of the Crown what was the reason of it. Mr. Apear had written to say that there were certain qualifications to entitle a gentleman to become a special juror; and that although he had made special efforts to secure the names of native gentlemen possessing these qualifications, he had not been able to induce them to come forward to serve. After mentioning further explanatory matter, the Chief Justice went on to say that— 510 He entirely agreed with Mr. Jackson that it was very much to be regretted that there were not the names of more natives on the special jury list. The Chief Justice summed up strongly against the prisoners connected with the Bangabasi for the language used in respect of the Age of Consent Bill and the occurrences at Manipur. A large majority of the jury convicted, but the Government withdrew from the prosecution. Why, therefore, should the Chief Justice have regretted so much that there were not more native jurors on the jury? He must have done so, because he felt that it was desirable to associate the natives of Bengal with the administration of justice, and that a conviction of the Bangabasi newspaper, for its undoubted exaggerations respecting the Age of Consent Bill, would have had much more weight in appeasing the alarm or disaffection Which those articles might have produced, if they were condemned by a Hindu jury or by a jury in which Hindus were adequately represented. In 1862, when the jury system was established, Mr. E. F. Lautour, Sessions Judge of Patna, had previously expressed opinions, unfavourable to juries; but on the 1st August, 1862, he wrote to Mr. Lushington, Secretary of the Government of Bengal, that he had now reason to modify Iris previously-expressed opinion, and he went, on to say— I find, after trial of a certain number of cases, that the evidence of witnesses to the fact is given in a very straightforward manner, and is perfectly free from exaggerations, whereas the evidence recorded by tutored witnesses is given in such a faulty manner, and the demeanour of the witness in the box is such as enables the Judge and jury to discern at once the worthlessness of the deposition recorded. I have found that tutored evidence invariably breaks down. I have tried ninny cases with the and of the Law Officer; but the difficulty under the old system was to pick out the truth from the statements recorded by witnesses, who were always more or less prone to exaggerate facts of the truth of which there could be no doubt. Such is not the case in cases tried by a jury, as I find the witness to the fact sticking to the fact and not deviating from the truth in any way, the witness manifestly knowing that exaggerations would be immediately detected by his countrymen. I am also of opinion that dishonest verdicts will be rarer in the Mofussil than in Calcutta, as we have rip antagonism of race in the Mofussil, but, at the same time, we cannot expect every verdict to be in accordance with the opinion of the Judges. My Lords, these was also a letter dated 19th April, 1862, from the Sessions 511 Judge of the 24 Pergunnahs to Mr. Lushington, Secretary of the Government of Bengal, in which he suggested that trial by jury should be extended to all the sections of the Penal Code and powers reserved to the Sessions Judge to hold any trial with assessors— I am of opinion, however, that trial by jury should be extended to all cases without reserve. The system is working very well, and I would much rather work with a jury than with assessors. He would now give the opinion of the late Sir George Campbell, who, after having been Chief Commissioner of the Central Provinces, was for some years a Judge of the High Court of Calcutta, and finally Lieutenant Governor of Bengal, and who left India about 1876, and who in this country was a Radical, but who had been rather of an opposite frame of mind in India. After observing that— When unamalgamated classes are living together, trial by jury is sometimes not trial by Peers. and that— When on an indigo question a native is tried by a jury of natives, or a European by a jury of Europeans, the impartial public may distrust the verdict as possibly more or less influenced by a class bias. Such a difficulty seemed to be felt not only in the Nudder Sessions Court, but also in the Consular Courts of China and Japan. He went on to write— On the other hand, I have a strong opinion, which is, I think, fully borne out by the Papers now before us, that if provision be made for exceptional eases, the use of juries is most valuable, both to improve and popularise the administration of justice, and as a means of socially and politically raising and educating the people. The experience which we have of the system in Bengal seems undoubtedly to show that it has succeeded beyond the most sanguine expectations. Therefore, I think that the proper remedy for the very few exceptional cases of wilful miscarriage which have occurred is to provide a special remedy for such cases, not to destroy or suspend the whole system either in all districts or in any district. With regard to wilful miscarriage by juries, an English Judge told him a little time ago he had tried a case with a jury, at Allahabad, and that though the guilt of the prisoner was very clear the jury acquitted him. Some time after he met the foreman of that jury and asked him how they came to acquit that prisoner, and the answer was, "Because he was so badly defended." This case, however, Lord Stanley of Alderley 512 would not tell for the Bengal Government, since all these jurors were Englishmen. The late Sir Rivers Thompson, Lieutenant Governor of Bengal, has also left behind him a strong opinion in favour of juries. After observing that juries sometimes regarded themselves as Judges rather than as a jury empanelled to give a verdict upon the evidence, he wrote— The tenour of the above remarks will point, however, to one very favourable feature as regards the conduct of juries, and that is, that whatever liability to error there may be from their ignorance of their proper functions as jurors, the will and desire to do right and justice are very manifestly present. I can confirm this from my actual experience of the trials which have come before me. They are attentive throughout the trial to the whole proceedings; they deliberate most carefully when they have retired to consider their verdict, and have shown in many instances where points of law were involved, and they had, therefore, to depend entirely upon the directions of the Court, their anxiety not to be led into error by further applications for information on points of doubt and difficulty. I cannot, therefore, but express my satisfaction with the working of the system in the past year. The presence of a jury in criminal trials has been of essential assistance to myself, and I am convinced is regarded by the natives themselves as a safeguard against errors of judgment, and a guarantee that all the details in a case will be fully understood before any conclusion is formed. Whatever confidence a native may have in the strict and unswerving impartiality of the European Judge, I am not satisfied that he ever places the same reliance in Ins power to comprehend all the intricate details which are involved in a difficult case, where only natives are concerned; and it is just in these cases, especially where questions of caste and questions involving family disputes and native social life and manners are constantly arising, that a jury taken from the body of the community and intimately acquainted with the ordinary transactions of native life, are in the best position for giving most material assistance to the Court. I should be very sorry, therefore, if upon any considerations based upon less favourable Returns from other districts, it should be necessary to propose the general abolition of the system of trial by jury. I feel sure it will be a retrograde measure.…We shall find that the diffusion of the knowledge of the laws, in the practical administration of which they take so responsible a part, will produce a more intelligent attachment on the part of the natives to the Government under which they live. It had been conceded on all hands that, whatever fitness there might be among the natives of India for the higher administrative posts, there were undoubtedly great numbers of them, and especially of Bengalis, who had filled judicial offices to the satisfaction of the Government; and if they were fitted for the high 513 office of Judge, why should they not, educated as they were, be fit for the office of jurors? There was another political reason which told against the action of the Bengal Government. It was said that about the same time that trial by jury was abolished in Bengal, the Emperor of Russia was also abolishing, jury trials in Russia. It was an unfortunate coincidence that the Lieutenant Governor of Bengal had done that which might lead people in India to say that the Government of Russia was no worse than the Government of Bengal, or that the Government of Bengal was as bad as that of Russia, or to paraphrase the comparison made in Jamaica, and to say the Emperor of Russia and the Lieutenant Governor of Bengal are very much alike, especially the Lieutenant Governor of Bengal. With regard to the statistics published in Bengal with the object of showing the failure of trial by jury, they showed a very small number of failures. They showed that in five years 1,489 cases were tried with the assistance of juries, of which 698 came under heads now withdrawn from juries. Out of these the Judge recorded his dissent from the verdict in 97 cases, or 13.8 per cent. In 62 cases, or 8.8 per cent., he referred the verdict to the High Court, under Section 307 of the Criminal Procedure Code; and in 34 cases, or 4.8 per cent., that Court revised or modified the finding of the jury. In the case of 791 cases which would still be triable by jury, the Judge differed only in 7.7 per cent. and referred only 4.1 per cent., while the High Court interfered with the verdict only in 13 cases, or 1.6 per cent., so that the practice of the Indian juries, or their acquittals, never approached the number of guilty men that it was proverbially said in England had better escape rather than that one innocent man should be condemned. Moreover, the percentage of convictions was much the same, whether the cases were tried with or without juries—in both cases about 65 per cent. Since the great meeting at Calcutta there appeared to be no doubt whether British-born subjects would or would not suffer by this notification and lose their right of trial by jury, though it had been asserted that Act 3 of 1884 placed them exactly in the same position as the natives. If they lost trial by jury they 514 would not like it, and as they retained it a wholesome check upon the administration of justice by Judges would be lost. The opinion of counsel had been published to the effect that the subjects of European countries, such as France and Germany, and the citizens of the United States of America, would no longer be able to claim a jury. This opened a vista of future complications with those Governments. In conclusion, he must assume that the Secretary of State had not, Hid would not, sanction the retrograde step taken by the Bengal Government, which would be so opposed to his own principles and to those of his colleagues, and that he could not be guilty of the inconsistency which such sanction would involve after his noble Friend had advocated the admission of some mode of election for the Legislative Councils of India, when that Act was before the House. He would not detain their Lordships by referring in detail to his noble Friend's speech on March 6th, 1890, and he thanked them for the patient hearing they had given him.