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K.M Nanavati is the most well-known Jury trial case in India, one which has grown more famous after the many adaptations on the case in the forms of movies and TV series.
This case is quite interesting because of the ripple effects it had on judiciary and the legal system, but it was not the last jury case of India.
Jury trials took place till 1973 when they were finally abolished by the 1973 Code of Criminal Procedure, recommended by the law commission of India in their 14th report in 1958, except, in a specific community in our country that try cases through jury trials to this day.
The Parsis Matrimonial and Divorce Act, 1936, under section 19 and 20 codify the jury system for divorce disputes arising between members of the community.
The cases are tried by a 5-member jury (referred as ‘delegates’ in the Act) usually comprised of retired, eminent and influential members of the community appointed for a period of 10 years by the chief justice of Bombay, Calcutta and Madras High Courts and can preside over trials within the territorial jurisdiction of these courts.
This system has one integral difference from the jury trials that still take place in many countries judicial system i.e. the jury remains the same for a period of 10 years which is not a common norm in jury trial systems.
The Parsis Matrimonial and Divorce Act, 1936 doesn’t specify a time span for finalisation of a case neither does it specify when the jury is required to sit to review the cases as a result of this the juror meet only few times a year deciding all the cases accumulating over the period leading to the divorce applications being stuck in huge backlogs dating years.
In Rohinton Panthkay v. Armin Panthkay (Parsi Suit No. 20 of 2013, decided on April 3, 2014), the court observed that under Parsis law the evidence can only be collected in the presence of the jury and since there had been no sitting of jury for the last two years, the collection of evidence had been unduly delayed.
The court expressed its displeasure at this delay and slow pace of the jury calling for procedural change in this system further stating that;
“The submission regarding this being a special law for a minority community and that any change or adaptation is tampering is one that I must repel most firmly. Indeed, this is not a submission that ought ever to have been made. Belonging to any particular community is not a mantra for clinging to a system that ill serves its purpose or the interests of the community itself. A procedural reform is not a matter of faith or religion. Nor is what Mr. Khambata suggests irreligious or, in any sense, a ‘tampering’. Achieving a fair and just result by and within law is no apostasy.
No faith could possibly demand that its adherents be made to wait endlessly for their cases to be decided. Indeed, it would not be stretching it too far to suggest that the entire structure of delegates is now anachronistic, especially if it tends to delay the disposal of matters, and that there is a powerful case to be made here for doing away with the delegate system altogether, and to introduce greater conformity with other civil laws. This is what Ms. Contractor suggests, and it is hard to find fault with her submission. What is needed is greater inclusiveness, not a persistence on exclusion.”
This system came more into the limelight after the case filed in 2016 and the recent development in the case in Dec, 2019.
In 2016, Naomi Sam Irani moved the Apex court challenging sections 18, 19, 20, 21, 24, 30, 32(a), 46, 47(b) and 50 (dealing with jurisdiction, constitution and appointment mainly) of the Parsi Marriage and Divorce Act, 1936 as being violative of Art, 14 and 21 of the Constitution.
Irani had earlier filed for divorce in the Bombay high court and after close to one and half year of absolutely nothing she filed a petition in the supreme court questioning the system on their procedure for disposal stating that,
“These ‘delegates’ are, for all practical purposes, a jury where the decision on the facts shall be the decision of the majority of the delegates before whom the cases is tried.
It is a matter of fact that the Parsi Chief Matrimonial Court sits only once or twice a year and that too only short durations. Jury system which was established under the act for the purpose of speedy and effective fact finding and disposal of cases in view of divorce petitions rather impedes speedy justice.”
The system was alleged to violate article 21 as the fundamental right to life and liberty which includes the right to speedy trial being denied in the community and article 14 being violated as the system prevents Parsi women from approaching traditional family courts and availing the benefits from them.
The Supreme court thereby issued a notice to the government calling its views on the above matter. In December last year, the centre told the Supreme court that the jury system needs to be retained as it protects the customs of the minority community.
The centre stated in the affidavit that,
“Parsi community is a special community forming part of Indian societal mosaic and it was felt necessary to protect their values, customs, beliefs and practices in the field of personal law. Parsi community, owing to their scarce numbers, also requires to be protected by way of separate mechanisms. A special law (like PMD Act) for that small community, with an intelligibly different or unique structure, is permissible in law”
A view quite different from when triple talaq was found discriminatory and unconstitutional and the customs were side-lined in favour of the constitutional rights of the women, the government even introduced a Bill to criminalise the practice to correct the historic wrong done to the women stating that it went against gender justice and equality.
This now begs the question- why the contradictory stance in similar situations?
Regretfully, the answer to this is yet not known.
(The author is an undergraduate student at the University School of Law and Legal Studies, GGSIPU)