The Indian people have clamoured for trial by jury of their peers--that
is their fellow-countrymen--but it has always been refused. Government
does not say why--but the reason is well known--it is because it fears
that juries would invariably acquit. And that fear is probably
justified. Judging from what assessors do I should say it was fully
justified. They would acquit. But does not this very fact indicate
that the law and the people are at variance? It most emphatically does
not mean that the Orientals condone crime; it means that they think
that crime is now wrongly dealt with. There was a period in England
when juries would not convict. Why? Because they condoned crime? No,
but because the punishments were too brutal; and the law had to be
altered till their consciences were satisfied. That was the way the
old penal laws came to be amended. When juries won't convict it is
because their consciences are being outraged in some way. Has any
attempt ever been made to discover in what way our Courts in India now
outrage the people's consciences? Never to my knowledge. There has
been the fixed idea that our system is perfect, therefore blame the
people. "They must have Oriental minds which no one can understand."
The Indian Penal Code is the principal law relating to offences and
punishments, but there are many minor laws and all are defective in the
same way--that they have been framed out of some inner consciousness,
and not out of practical knowledge.
Take the Gambling Acts in Burma. The Burmese are a cheerful people,
and, like other cheerful human beings, they like their game of chance
sometimes. When it becomes a public nuisance, of course it must be
checked, no one doubts that; but the Gambling Acts go much farther than
that. The people have not a great variety of games, and their
principal card game is a sort of bank. It can, of course, become a big
gamble, but it can also be as innocent as penny loo. Nevertheless, it
is always illegal because there is a banker. That is the way the Act
is framed. So if five or six villagers gather in the evening for a
game at penny loo they can be raided, tried, and fined or imprisoned.
I had a Burmese subordinate magistrate once who was not only a very
"energetic" officer but a very religious officer, and he determined to
stop all this "pernicious gambling" in his township. He established a
"terror," so to speak. He had censors everywhere, and if a schoolboy
tossed another double or quits for a farthing, the law was after them.
I could not stop him because he had the law behind him, but every month
I sent for all his gambling cases on revision, and I quashed them all.
There wasn't any Appellate Court behind me in those matters and I had a
free hand. Finally, as he wouldn't take a hint, I got my too energetic
assistant transferred to other fields of usefulness.
Public-domain text, read in full here on John Shaqi.
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