– James Jaffe*
On 16 January 1973, Amrita Bazar Pratika published the following report:
“Agreeing with and accepting the majority verdict of not guilty by 8 to 1 by the Jury Mr. Justice N. C. Mukherjee presiding over the Calcutta High Court Sessions, acquitted Prokash Chandra De who was charged under Section 302 IPC for alleged murder of one Dipak Sarkar and also acquitted Rabindra Nath Dey who was charged under Section 326 IPC.”
This may surprise anyone who has been taught that the “last jury trial in India” took place thirteen years earlier when Commander K. M. Nanavati was tried for murder in September 1959. Yet, through film, television, and the print media, Bombay’s Nanavati trial has retained this unique but unwarranted position in legal, historical, and popular lore. Actually, the scene of the “real” last jury trial in India should be moved away from Malabar Hill and Cuffe Parade in elite, cosmopolitan Bombay to the less glamorous and more dangerous streets of Calcutta where elections could be literally matters of life and death. Such was the case of the Communist activists Prakash Chandra De and his brother Rabindranath, known as “Rabi”, who were charged with the murder of Dipak Sarkar in 1967.
1967 was a particularly tumultuous year. The previous year had seen almost unprecedented agitation due to rising prices and food shortages. Bandhs, hartals, and strikes were common. One American observer who travelled widely throughout the country described it as the worst year since Independence while the Delhi correspondent of The Times thought he was witnessing the disintegration of India’s democracy. The General Elections of February 1967 were only the fourth since Independence and under these circumstances, there was widespread violence across the country. In Orissa, Indira Gandhi, the Prime Minister, was hit in the face with a stone thrown from amongst the crowd at a campaign rally. Twenty-four people were injured in a melee at Indore where D. P. Mishra, the Chief Minister of Madhya Pradesh, was speaking; nineteen persons were injured in a brawl in Bihar; and, twenty-five people were injured in a clash in Delhi where two of the candidates also were arrested. Writing in The Times of India, one commentator bemoaned “the routinisation of violence” pitting the urban masses against the forces of law and order.
In West Bengal, competition and the resulting violence between the competing parties was particularly intense. In Calcutta, on 16 February, one person was stabbed during a dispute over election posters. During the month preceding the February elections, in the 24-Parganas alone there were twenty-four election clashes reported by the police, including cases of murder, assault, and arson. On 6 February, JyotirmoyBasu, Lok Sabha candidate of the Communist Party of India (Marxist) was assaulted and his car set ablaze. The Congress office on Kailash Bose Street was ransacked on 19 February. Violence flared in many constituencies, especially where CPI (M), Communist Party of India (Reform), and Congress candidates vied for election.
When the results of the election were announced on 23 February, the CPI (M) had made substantial inroads into Congress’s dominance in West Bengal. Celebrants attacked “with bombs and crackers” a small Congress club called TarunerAhvan near Srimani Market, but apparently did little damage. Three days later, an active member of the club, Dipak Sarkar, was attacked when he emerged from a neighbouring barbershop, the Saloon de Style. He was set upon by five assailants, including Prakash Chandra De and his brother Rabindranath De, both CPI (M) activists. During the confrontation, Dipak was stabbed several times and died in hospital later that day.
Prakash and Rabindranath both went into hiding and were not captured until October. An initial jury trial took place sometime thereafter in which the five assailants were charged with the common intent to murder, including Sections 302 and 34 of the Indian Penal Code. The jury returned a unanimous verdict of not guilty for three of the accused, but divided 5-4 on the charges against Prakash and Rabindranath. The judge therefore discharged the jury and ordered the two to be retried, as was permitted under the Code of Criminal Procedure.
The “real” last jury trial in India thus took place on 15 January 1973 when Prakash and Rabindranath were retried in the Calcutta High Court Sessions. This time, the pair were tried by a “special jury,” meaning nothing more than that the jury pool was comprised of persons “possessing superior qualifications in respect of property, character or education.” Both defendants faced multiple charges, including murder, acid attacks, and the use of a dangerous weapon. During the trial, forty-four witnesses were heard, including five eye witnesses. Overall, the jury found the defendants not guilty, dividing 8-1 on two counts and reaching a unanimous verdict on two other counts. Agreeing with the jury verdicts, the judge acquitted the pair and freed them.
Unfortunately, no record or transcript of this case has come to light and may never do so. The only record that we do have is the lengthy judgment upon the State’s appeal of the original case issued by Subhamay Basu, a puisne judge on the High Court. However, it is worth considering why the Nanavati case, judged more than thirteen years earlier, and not this case has become enshrined in contemporary legal and historical lore as the “last jury trial in India” and this jury trial has been effaced from Indian legal history. It is also worth considering why the Calcutta High Court was still employing juries well over thirteen years after Nanavati’s alleged last jury trial.
On one level, the fame of the Nanavati trial rests upon a unique efflorescence of media culture. Gyan Prakash has explained in detail how the tabloid Blitz elaborated, exploited, and exoticized the trial. The success of Blitz in doing so is still with us today in a variety of mediums. However, the uniqueness of the Nanavati trial often is much overstated. There had been jury trials before that were just as exotic, just as titillating, and evoked just as much (or more) popular enthusiasm. For example, in 1908, tens of thousands of Bombay millhands turned out regularly to protest the prosecution of B.G. Tilak before a special jury on charges of sedition, according to reports sent from the Viceroy to London. Shopkeepers in Bombay displayed black banners with Tilak’s image on them, outside of their stores. Certainly, the trial of the Maharajah of Indore before a special jury in 1925 for the murder of the businessman A.K. Balwa was more sensational. That trial, involving the dancing girl Mumtaz Begum, military aides of the Maharajah, Malabar Hill, and British soldiers attacking the assailants with their golf clubs drew worldwide attention. The Times of London had a reporter attending the trial and The New York Times had reports wired back to the U.S. almost daily. A silent movie of the case, Kulin Kanta, was released the same year as the trial, a tribute to Bollywood’s efficiency.
Part of the answer to the persistence of the Nanavati legend must lie in the fact that unlike the Malabar Hill murder case, the Nanavati trial keeps being retold in various formats to each new generation: film, popular and academic books, and now mini-series. However, the changing legal-political situation may have also played a role in generating the initial fame of the Nanavati case rather than that of Prakash and Rabindranath De.
In particular, the Nanavati case came amidst the post-Independence movement to abolish trial by jury and very likely added further momentum to it. The revision of the Code of Criminal Procedure had been undertaken in the Lok Sabha in 1953 and passed into law in 1955. The debates in the Lok Sabha concerning trial by jury were testy ones and the Home Minister, K. N. Katju, at length was forced to accept a compromise proposal to permit each state to decide individually whether or not to continue to employ juries. When the Code was passed into law, several local governments moved quickly to abolish trial by jury, including Bombay State (excluding Bombay City), the Punjab, Madhya Pradesh, and Delhi. Then, the passage of the 1955 Code of Criminal Procedure (Amendment) Act was followed almost immediately by the formation of the Fourteenth Law Commission, established to review and recommend reforms of civil and criminal procedure as well as the Indian Penal Code. The Law Commission itself was staffed by several notable opponents of the jury trial, especially M. C. Setalvad, its chair and the current Attorney-General. Not surprisingly, therefore, when the Commission’s report, Reform of Judicial Administration, was published in 1958, it recommended the complete abolition of trial by jury throughout India.
Thus, by 1959, when the Nanavati trial took place, the debate over jury trials was well-known in much of India’s legal-political world. And when the Nanavati jury returned an innocent verdict after Nanavati himself had pled guilty initially, this proved to several more state governments (and many observers) that the jury trial was ill-suited to the Indian criminal justice system. The notoriety of the case only hastened further efforts to abolish trial by jury. By 1961, Bihar, West Bengal (excluding Calcutta), and Bombay City also had abolished trial by jury. Thus, rather than being the actual last jury trial, the significance of the Nanavati trial was that it exemplified to many in the legal world the failure of the jury system in India and provided an impetus for further reforms. The unique combination of high drama, sexual peccadilloes, popular interest, and legal symbolism gave the Nanavati trial more substance than it merits in Indian legal history.
Yet, trial by jury continued to survive after Nanavati in several parts of India and, most importantly, in Calcutta. Of the twenty jury trials after Nanavati that I have been able to trace through published records of the High Courts or Supreme Court, fourteen took place in Calcutta. Calcutta’s unique position in this respect cannot easily be explained, but several factors suggest that the city’s legal elite as well as the judges themselves supported trial by jury and defended the Court’s authority to retain it.
Perhaps one of those influential persons was N.C. Chatterjee, at one time or another president of the All-India Civil Liberties Council, Calcutta High Court judge, a senior advocate of the Supreme Court, and president of the All-India Hindu Mahasabha. During the 1953 Lok Sabha debates on the Code of Criminal Procedure, Chatterjee was one of the most vocal supporters of retaining the provisions for trial by jury. He admitted that his position was shaped by his experiences in London where he explained, he went daily to observe jury trials in the Court of King’s Bench as well as the Old Bailey. Those courts, he continued, were “the greatest bulwark of freedom-loving people” and trial by jury “the greatest guarantee of justice.” He condemned those who claimed that Indian jurors were corruptible. “You cannot generalise and repeat charges against the jurors throughout India,” he said. “In my experience, in the Calcutta High Court sessions, there has been no charge of corruption against any juror. Although passions had sometimes been inflamed, they behaved with full rectitude and uprightness. Any Judge can go wrong but on the whole, they have been fair. It would not be right to condemn the jury system.” He insisted further “that it will be a bad day for India to say that [the] Jury trial has completely failed and that you cannot in free India today, find a number of people, honest and fair-minded enough to help in the administration of justice and give honest judgment.” And, he concluded, “although there are many defects in our system of administration of justice it will be a very unfortunate thing if you decide today that this system of the jury should go. They might have some defects in some respects but you will find the progress of democratic ideals and advance of public spirit if you maintain this system.”
Despite Chatterjee’s plea, the original jurisdiction of the High Court, and thus its authority to employ juries, was shrinking during this period. In 1953, the West Bengal government created a separate city sessions court in Calcutta to relieve the High Court of some of its caseload. The High Court’s original jurisdiction then was limited to the boundaries of the old presidency town while the remainder of the municipal corporation of Calcutta was transferred to the Alipore sessions court in the 24-Parganas. Nevertheless, within its limited jurisdiction, the High Court reserved its authority to try several offences by a jury from its sessions bench, including mutiny, murder, criminal conspiracy, and forgery. Finally, when trial by jury was abolished throughout West Bengal in 1961, the Calcutta courts continued to retain them until forced to relinquish jury trials after the introduction of the new Code of Criminal Procedure in 1974.
Even at that point, there appears to have been some resentment among members of the High Court over this aspect of the new Code. In 1974, the Court was faced with at least one instance in which an order for a jury trial had been granted before the new Code’s introduction, but the trial had commenced afterwards. The question before the court was which Code applied to the proceedings, the old Code with jury trials or the new? The facts of the case, The State v Haridas Mundhra and Ors, are not clearly laid out in the judgment issued by the three-judge bench, but the issue clearly revolved around the jury rights of the defendant. The language employed in the ruling of the High Court evinced a significant measure of dissatisfaction with the new Code. “When the old Code was in operation”, Chief Justice S. P. Mitra wrote, “the accused before a session division in a High Court had two substantive rights namely, (a) the right to be tried by a jury and (b) the right to appeal to a Division Bench of the Court. The new Code has taken away these rights. But we have found no intention of the new Code to hold that these rights have been taken away retrospectively. These rights, therefore, survive and unless the trial is held under the old Code, these rights cannot be exercised.” The use of the term “rights” is notable here. Moreover, the Chief Justice thanked the attorney general for submitting a friend of the court brief and concluded that since the new Code was not intended to apply retroactively, the accused could not be deprived of their right to trial by jury.
I must emphasize the fact that at this point it is unclear exactly why the Calcutta judicial establishment appears to have defended trial by jury so consistently whereas the High Courts elsewhere, especially in Bombay and Madras, gave up on them rather quickly. There has been little published on the topic and justices’ memoirs and biographies are not revealing. All that can be said safely is that the Calcutta bench evinced a stronger attachment to trial by jury, perhaps even as a right than benches elsewhere in the nation. Indeed, it was not until 1975 that the jury in Calcutta was abolished formally by government order. Then, after the imposition of Indira Gandhi’s Emergency, the West Bengal governor, A. L. Dias, promulgated a new City Sessions Court (Amendment) Ordinance that “omitted” the sections relating to trial by jury from the original Act. Acting while the state Legislative Assembly was out of session, there was no resistance.
Let me return at last to the re-trial of Prakash and Rabindranath in an attempt to explain why it has been forgotten. At this point, perhaps it is best to use Occam’s razor. As we have seen, when the Nanavati trial occurred, it was in the midst of a general socio-legal debate about the future of trial by jury. The jurors’ perverse verdict, in that case, appeared to have resolved that question, at least in Bombay. This is not to diminish the importance of local tabloid journalism in promoting Nanavati’s infamy, but it is to emphasize the fact that the question of jury trials in India had been under significant and widespread scrutiny for at least the previous half-decade before Nanavati and the result of that trial only offered another potent weapon to opponents of trial by jury.
However, when Prakash and Rabindranath appeared before their jury in mid-January 1973, much more important issues were absorbing the attention of India’s legal and political communities. Both Amrita Bazar Patrika and Jugantar, for example, were much more interested in following the Paris Peace Negotiations between North Vietnam and the United States. Of equal significance, a much weightier issue was being decided currently by the Supreme Court. Between 31 October 1972 and 23 March 1973, the Supreme Court was hearing arguments in the Kesavananda case, which led to the unprecedented “basic structure” doctrine.
Whether the confluence of these events obscured the apparently more trivial events taking place in Calcutta may be open to question. However, it is quite clear that the trial by jury in India ended with the Kolkata whimper of Prakash and Rabindranath De, and not the Mumbai bang of Nanavati.
* James Jaffe is Professor Emeritus of History at UW- Whitewater. He is a Fellow of the Royal Historical Society and currently a Fellow at the Institute for Legal Studies at the Law School as well as an affiliated faculty member of the CSA.
 “Found not Guilty,”Amrita Bazar Pratika, 16 January 1973.
 Norman D. Palmer, “India’s Fourth General Election,” Asian Survey, Vol. 7: No. 5 (May 1967), pp. 277-8.
 Cited in Palmer, “India’s Fourth General Election”, p. 278.
 “Brickbats for Mishra: 24 Injured in Indore”, Times of India, 19 January 1967.
 “44 are injured during election clashes in India”, The Times (London), 18 February 1967.
 S.P. Aiyar, “The Anatomy of Violence”, Times of India, 5 February 1967.
 “Poll Clash: One Stabbed”, Times of India, 17 February 1967.
 “Special Police Precautions: 24-Parganas District”, Times of India, 14 February 1967.
 “Red Candidate Assaulted Near Calcutta”, Times of India, 7 February 1967.
 State v Prakash Chandra De and Anr. on 13 September 1976. 1977 CriLJ 863.
 “Major Battle between Reds”, Times of India, 11 February 1967.
 State v Prakash, op. cit.
 Unfortunately, neither the precise date nor any extant record of this trial has been found, but all but one of the assailants were brought before the Presidency Magistrate’s Court during the third week of October 1967. See “Trial of Congress Supporter’s Death by Stabbing”, Jugantar, 21 October 1967, p. 8. Many thanks to Anwesha Maity, Ph. D., for her research assistance and translations from Jugantar.
 CPC, Ch. XXIII, §305.
 CPC, Ch. XXIII, §325.
 According to the jury rules in the CPC, judges in Sessions Court were permitted to overrule a jury and send the case to the High Court if they thought the verdict was contrary to “the ends of justice.” CPC, Ch. XXIII, §307.
 The State appealed the acquittal based upon a number of issues, including common intent and issue estoppel.
 Gyan Prakash, Mumbai Fables: A History of an Enchanted City (Princeton: Princeton University Press, 2010), Ch. 5.
 National Archives of India/Home Political/A/December 1908, Disturbances at Bombay during the Trial of Bal Gangadhar Tilak, Editor of Kesari Newspaper, Telegram No. 180 (Political), dated Simla, the 5th July 1908 and Telegram No. 228 (Political) dated Simla, the 29th July 1908.
 For example, see “Describes Rescue of Dancing Girl”, The New York Times, 29 March 1925. “Golf Clubs as Weapons”, the subtitle proclaimed. A simple search for Mumtaz Begum in The New York Times online archive reveals well over twenty articles published on the trial and its aftermath; searches in The Times of London for Mumtaz Begum and Malabar Hills Murder Case reveals approximately the same number. In comparison, Prakash cites one article each that appeared in the U.S.’s The New Yorker and Time magazines on the Nanavati trial, see p. 160. Given the more recent availability of online archives unavailable to Prof. Prakash when he wrote Mumbai Fables, one can also find that The Times of London carried three very brief reports on Nanavati, one of which was drawn from the Reuters newswire. The lengthiest report on the trial filed directly by a Times correspondent came out of Delhi and concerned the controversy in the Lok Sabha over Nehru’s unwillingness to intervene in the case. See “Mr Nehru Under Attack”, The Times (London), 15 March 1960, p. 9. The New York Times’ India correspondent also filed two very brief reports on the trial.
 Setalvad frequently claimed that Indians by nature were unsuitable to act as jurors. See, for example, M. C. Setalvad, The Common Law in India (London, 1960), p. 37.
 Parliamentary Debates (House of the People), Vol. III: No. 18, 28 August 1953, col. 1836.
 Parliamentary Debates (House of the People), Vol. III: No. 18, 28 August 1953, col. 1837.
 West Bengal Act XX of 1953: The City Sessions Court Act.
 The State v Haridas Mundhra and Ors on 17 July 1974.
 West Bengal Ordinance No. VIII of 1975: The City Sessions Court (Amendment) Ordinance, 1975, Calcutta Gazette, 17 July 1975.
 Amrita Bazar Pratika published two short articles related to the crime and the trial: “Dipak Sarkar’s Last Journey” on 28 February 1967 and “Found Not Guilty” on 16 January 1973. Jugantar published two as well: “Funeral of Dipak Sarkar” on 28 February 1967 and “Trial of Congress Supporter’s Death by Stabbing” on 21 October 1967.