Every night on my TV screen, Alan Shore stands up in defense of a quixotic quest. Sometimes he defends the clearly guilty; sometimes he protects the innocent. But in each episode full of courtroom magic, he bends the jury to his will.
As a lawyer working in Pakistan, I have no shortage of interesting cases. But it is difficult for me to re-enact my Lahori version of Boston Legal because we have no jury trials in Pakistan.
Interestingly, the case which led to the end of jury trials in the sub-continent was certainly worthy of a Boston Legal episode, if not several.
In 1959, Kawas Nanavati, a commander in the Indian Navy, was stationed at Bombay. Married to an English beauty by the name of Sylvie, and universally described as handsome, the 34-year-old mariner seemed to have it all. Unfortunately for him, his wife was sleeping with his best friend, Prem Ahuja.
On April 27, 1959, Nanavati confronted his wife and learnt of her adultery. Pausing only to sign out a revolver from the Navy's storeroom, Nanavati then dashed off to Ahuja's house where his friend was lolling around in a towel. Nanavati asked him if he would marry Sylvie and take care of the children. Ahuja's somewhat undiplomatic response was blunt: "Will I marry every woman I sleep with?"
What happened next is unclear. Nanavati claimed that after Ahuja spotted the revolver, he and Ahuja struggled and that he shot Ahuja during that struggle. In self-defence. Three times.
The Bombay police did not agree with Nanavati's interpretation of the facts and promptly charged him with murder. The trial became a cause celebre in India. The Parsi community to which Nanavati belonged was outraged, organising rallies and petitions in his favour. Newspapers gave saturation coverage to the case, and later the trial. When Nanavati left the court room after testifying, he was showered with hundred rupee notes smeared with lipstick. Like many teen idols after him, he received marriage proposals by the handful, as India concluded that he was too good for his wife even as a penitent Sylvie, dressed in a white nylon sari, testified in favour of her husband. Bombay's merchant community also jumped in on the act, selling miniature Nanavati revolvers and Ahuja towels.
The prosecution, of course, never had a chance. Their biggest talking point was that if Nanavati had indeed struggled with Ahuja, Ahuja's towel would have come off instead of staying on. The fact that Nanavati had first dropped his family off at cinema before signing out a revolver under false pretences also seemed to indicate that he had been in control of his emotions and that the "heat of the moment" story was not true.
None of this mattered to the jury which returned a not-guilty verdict. Considering the judgment to be perverse, the trial court judge referred the matter to the Bombay High Court which ultimately found Nanavati guilty and sentenced him to life imprisonment. Shortly thereafter, the Indian government abolished all jury trials on the grounds that jury verdicts were overly susceptible to media pressures.[i]
The abolition of jury trials would appear to be a disproportionate response to one trial. But jury trial was never universally available in the sub-continent and its abolition only affected a very small minority of cases.
As is known, the British presence in the Indian sub-continent began in the 16th and 17th centuries through the establishment of "factories" located at Bombay, Calcutta and Madras (later known as the Presidency Towns). The less known fact is that the courts of East India Company applied the laws of England to all areas within their jurisdiction. This included the right to trial by jury.[ii]
As the empire of East India Company expanded, the British found it impractical to govern large tracts of India as if they were parts of Little England. A legal distinction thus developed between the laws applicable to the Presidency Towns and the rest of the areas under Company control (known as themofussil), which distinction continued even after the British Crown took over the reins of power from the East India Company in 1857.[iii] Under the Criminal Procedure Code of 1861, jury trial could be made available in such districts and for such offences as the local government saw fit. In practice, this right remained limited to the Presidency Towns, albeit with one prominent exception: "European-born British subjects" were entitled as of right to trial by jury (and that too, with a majority of European jurors). [iv]
From time to time, the British did experiment with extending jury trials to the mofussil but the experience was normally considered unsatisfactory. One 19th century English official described the experience of jury trials in his area as follows:
There is a story that on the occasion of the first trial by jury in the Patna district, the Judge, who was somewhat proud of his fluency in the vernacular, made a long and elaborate charge to the jury of seven members, pointing out that the decision rested with them, and that it...