The Colonial Difference between Law and Fact: Notes on the Criminal Jury in India

Abstract

This article tracks the rise and fall of criminal jury in colonial India through official and non-official debates, discussions and interventions. The discussion on criminal juries in the Anglo-American system has typically focused on the division of legal labour between judge and jury. In colonial India, this conventional difference between 'law' and 'fact' were shaped by notions of belonging to a different race, religion and language. These were frequently articulated as the story of the 'unreliable' juror or the 'religious' native who feared eternal damnation. From the jurors who were allegedly intoxicated by the publicity over the infamous Nanavati trial to women jurors who claimed to be followed on the way home from court, to the religious Brahmin juror who would not swear an oath, the story of the criminal jury is peopled with anxieties over undesirable forms of influence, that impinge on legal impartiality. Using the criminal jury as a lens, I look at the claims of universal legal reform as particularly lending themselves to contestations over sovereignty.

South Asian Legal History

“…These Indian lawyers undertook graduate studies in the United States, initially at law schools like Yale and Harvard for the LLM and SJD programs (for the work of one such scholar, see Kotiswaran 2011). Soon, they began pursuing PhDs in other disciplines within the humanities and social sciences, including history, political science, anthropology, and sociology, at schools like Princeton, Yale, Columbia, and Stanford (for examples of these scholars' work, see Ballakrishnen 2012, Bhuwania 2014, Dasgupta 2014, De 2010, Ramnath 2013.…”

“…Racial difference has been a focus for work on violence and criminal law (Bailkin 2006;Kolsky 2005Kolsky , 2010b and the jury in criminal trials ( Jaffe 2014;2015, pp. 167-82;Ramnath 2013) in British India. Scholars have also written on Company-era criminal regulations (Malik 1994); the Indian Penal Code (Nair 2013, Skuy 1998, Wright 2011; perjury and forgery (Raman 2012, pp.…”

Boundaries, obligations and belonging: The reconfiguration of citizenship in emergency criminal regimes

“… 22. Naturally, the jury system represents a different model of lay participation in the judicial process, stemming from different premises regarding the relation between criminal law and the political community (Ramnath, 2013). …”