Two papers studying bias in judicial decision-making in India using large data sets have come to very different conclusions. One examines bail decisions and finds that childhood exposure to communal riots seems to influence whether a judge is likely to grant bail. The other examines convictions and finds no trace of similar bias on grounds of religion or gender. Both papers shed light, in different ways, on the working of India’s legal system and are not necessarily contradictory.
Judges are supposed to carry out their judicial duties without fear or favour, ill will or malice. Some variations of these words are found in the oaths of office administered to judges, from the chief justice of India down to the judicial magistrate. Each case before them is unique and has to be decided on its own merits. However, it is not uncommon to see allegations of bias against Indian judges, on the basis of caste, religion, gender, or other such criteria. Such allegations do have basis in reality, but is such biased decision-making among judges systematic? While there are biases, no doubt, built into the system against certain groups, does this necessarily translate into adverse verdicts against them by judges?
Two recent attempts have been made in answering this question but have arrived at what seem to be two opposite results, provoking more questions than providing answers. In “The Early Origins of Judicial Bias in Bail Decisions: Evidence from Early Childhood Exposure to Hindu–Muslim Riots in India,” Nitin Kumar Bharti and Sutanuka Roy find that district court judges in Uttar Pradesh, who have had early childhood exposure to communal riots, tend to deny bail more often than their counterparts who have not had such exposure (Bharti and Roy 2021). In “Measuring Gender and Religious Bias in the Indian Judiciary,” Elliott Ash, Sam Asher, Aditi Bhowmick, Daniel Chen, Tanaya Devi, Christoph Goessmann, Paul Novosad, and Bilal Siddiqi find that there is no “in-group” bias on the basis of religion or gender when it comes to convictions in criminal cases in trial courts (Ash et al 2021).
This story first appeared on epw.in