But let's suppose humans were inherently devoid of malice and motivated to follow the law. What if an ideal society is imagined, a legal system with no systematic flaw, is justice guaranteed?

Alas, the answer cannot be a confident yes. This is because even if we strip humans of their conscious flaws, there will still exist unconscious ones that have the potential to vitiate the whole justice-delivering process. A study on eight parole judges in Israel confirmed that even in an idealistic society, justice cannot be expected due to human involvement. The parole judges heard parole applications the whole day, spending 6 minutes on each. Merely 35% of the requests were approved by the judges. Now the peculiar fact to refer to is that the approval rate spikes to 65% after a food break taken by the judges and drops steadily to about zero just before the meal. (Daniel Kahneman, Thinking, Fast and Slow (Penguin Books Limited 2011)) Is this justice?

My Replication of the Study: Research methodology

The study intrigued me to the extent that I replicated it on a larger scale in the Indian context. Instead of parole, I chose bail because under Indian jurisprudence, judges exercised a high level of discretion in deciding bail applications. My study included a meticulous review of 500 bail orders made by the District Courts of the state of Rajasthan. These orders were extracted from the official E-courts website. These bail orders were collected, namely, from the District Courts of Jaipur, Jodhpur, Udaipur, Sri Ganganagar and Bikaner. From each district, 100 bail orders are selected in continuity, 50 from January and 50 from June. These are the coldest and hottest months of the year in Rajasthan. The sample geographically represents the trend in the whole of Rajasthan. Furthermore, the sample consists of the top crime-ridden districts of Rajasthan, giving us a consistent stream of bail orders for a religious analysis. The bail orders were read and reduced into an Excel sheet into certain predefined variables. Following the scheme of heads and sub-heads was employed in the extraction of information:

1. Case and Court Details

a) Name of the case

b) Unique order number

c) Court name

d) Presiding officer

e) Type of bail sought (Regular/anticipatory)

f) Order date

2. Accused's Information

a) Caste category

b) Age

c) Sex

d) Criminal Antecedents

e) Similar criminal cases pending

f) Total number of accused

3. Offence category

a) Severe offences against the body

b) Less severe offences against the body

c) Offences against property

d) Narcotics. Drugs and Psychotropic Substances Act

e) Economic offences

f) Against women

g) Organised crimes

h) Other

4. Victim Information

a) Sex

5. Trial Details

6. Number of days spent in custody

7. How many applications for bail have already been rejected

8. Public Prosecutor's name

9. Trial Stage

a) Investigation pending

b) Chargesheet filed

c) Charges framed/trial commenced

d) Final arguments

10. Bail outcome

The study is aimed at identifying latent unconscious biases camouflaged in the red tape of courts. If there were factors other than legal tenets that influence a judicial officer in forming his decision, then unconscious biases have vitiated his judgment. The study seeks to find judicial motions that recur, forming a pattern which cannot be legally justified.

FINDINGS

Related to general findings

The study shows that 58.6% of the total bail applications were accepted by the judges. This is a direct reflection of the practical applicability of the bail jurisprudence in India. While bail is the rule and jail is the exception, a mere 58.6% acceptance rate paints a sordid picture. Out of the application which were rejected, 54.09% of the cases were decided in the months of January and February, the coldest months for Rajasthan, and 45.09% of them were from June and July, the hottest months for Rajasthan. An obvious hypothesis that can be tested via this trend is that judges are less likely to grant bail when the climate is hot. This is absolutely debunked, for in the hotter months, the rejection rate actually dips. The case might just be otherwise because the judges seem to be more unlikely to grant bail in colder months.

Related to dates

It is intriguing to note that there were 8 dates when all the bail applications presented before the court were accepted. Per Contra, there are 6 dates when all the bail applications presented before the court were rejected. This shows the status quo bias or the default bias that might be present. It is when a person (in this case, a judge) seems to be reluctant to think otherwise than what is already well established. This is seen directly when a bail application is one for forfeiture of bail after bail was originally granted, 85% of the time, the bail, in case of forfeiture of bond, was granted. This might mean that even an unmeritorious bail application might just get lucky if the last 10 of the bail applications are accepted.

Related to demography

Out of the 500 bail orders, 20 of them were presented by female accused, and only 4 of them were accepted. This is because all of the women accused were charged with offences of a grave nature, like murder, human trafficking, kidnapping, etc.

Next, let's test the age group of the accused and its correlation with acceptance. The accused falling in the age group of 18-25 have an acceptance rate of 65%, while the accused who are aged over 50 have merely an acceptance rate of 29.4%. This can be because often young members are the breadwinners of the family and are most productive both for themselves and the nation. But such a huge fall to half indicates a chance presence of a latent bias. The acceptance rate witnesses a dip once the age of 25 is reached.

A Muslim accused applying for bail, as per the study, has a 53% chance of acceptance, an accused belonging to the Scheduled Tribes or the Scheduled Castes or the Other Backwards Castes has a 71.43% chance of acceptance.

It is surprising to note that criminal antecedents, which seem to be a primary concern of a judge hearing bail applications, have little to no impact. On the contrary, accused with criminal antecedents have a 60% acceptance rate compared to accused with a clean history who have a 56% acceptance rate. It is uncanny that the graph of 'bail acceptance by number of cases pending' looks like a hill. It starts low, peaks and dips again. The effect of this variable is only conspicuous in the case of an accused with over 10 criminal cases pending against them.

Relating to the trial and its nature

The variables included a proceeding status indicator with options such as investigation pending, chargesheet filed, trial commenced and final arguments. A pattern was seen where acceptance rates were highest in cases at the stage of investigation. It starkly dipped in cases where charge sheets were filed by the investigative agencies and rose back again when the trial commenced, and 0% success rate when the final arguments were going on. This is because it is also seen that a first application is more likely to be accepted in comparison to the second and third, which have a lower probability of being accepted.

The study scrutinised bail orders of 27 judicial officers and their decisions. Let us juxtapose their orders to see whether there is a judicial officer who is more prone to grant bail than others. There are 5 judges whose bail acceptance rates exceed 70%. One judge even has a 100% acceptance rate, and another one has 0% acceptance rate out of all the applications heard. There are 3 judges with an acceptance rate below 30%. It is palpable from this finding that there are a few judges who are more likely to accept an application than others. This is inevitable because, naturally, a human is subjectively empathetic and thinks differently. This subjectivity of humans is palpable in these observations.

Most bail application which was rejected were economic offences, including cheating, cheating by impersonation, forgery and criminal breach of trust. After economic offences, the baton is handed over to cases pertaining to the Narcotics, Drugs and Psychotropic Substances Act, 1985, and after that to cases under the head of severe offences against the body.

Latent Unconscious Biases and its place in Decision-Making

Merriam-Webster Dictionary defines 'bias' as an inclination or prejudice for or against a person. Adding 'unconscious' and 'latent' before the word bias indicates that such a bias is not deliberate and hidden. A human cannot be devoid of bias and is subject to several unconscious biases in varying degrees. There are biases based on age, beauty, social status, social group belongingness, illusory correlation, heuristics, recency bias, etc. Judge Jerome Frank in In re J.P. Linahan, Inc. (1943) summarised this stance by saying that:

“If, however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will.”

It is merry news that the High Court of Rajasthan has taken proactive steps to counter conscious and unconscious biases. In Bishan Mev vs State of Rajasthan (S.B. Cri.Misc.Appl.No. 376/18, Rajasthan High Court, Jodhpur), the Rajasthan High Court took a historic step by disallowing the courts from displaying the caste or surnames of the accused in bail applications presented before the trial courts.

Our study, in a nutshell, was direct evidence of the fact that the contemporary legal system is influenced by matters beyond our consciousness, some elements of which were very conspicuous. This, although it is an inevitable outcome of a human function, needs to be put at the centre of the stage and discussed to control its negative implications. It is true that we cannot absolutely terminate the bias, but what we can do is control and check it by ways like the one employed by the Rajasthan High Court in the above-mentioned case.

Views are personal.