Should AI be used by judges in bail cases? How much of AI should be used by judges while hearing and deciding bail applications of the accused? These are relevant issues in this age of AI.

I have been arguing for bail on behalf of the accused, for thirty-three years now. Sometimes, I also oppose the bail applications of the accused, on behalf of the victims of crime. 

AI is the new buzzword in diverse economic and social sectors across the world, and law is no exception. When I started my law practice in the year 1992, lawyers and judges were habitual to the sound of the manual typewriters. The legal system was perhaps the last sector to adopt the computer and that too, it was used as a mere replacement of the manual typewriter. But today, the legal community is in sync with the latest technologies. The young lawyers are driving this revolution, forcing the old timers also to use the latest information technologies.

Bail is the most uncertain area of the criminal justice system. It’s said that a judge deciding bails has a dozen grounds in one pocket to grant bail and a dozen reasons in the other pocket to deny bail to the accused. In informal circles, we say, bail depends on the mood of the judge. I have seen many judges following the principle of ‘bail, not jail’, in other words, ‘bail is the rule, jail is an exception’ in letter and spirit. I have also seen innumerable judges at all levels, acting as bail deniers. This is especially true in the district courts.

Here are a few instances out of thousands of cases, where inconsistencies in the bail delivery system are grossly apparent.

In the case of Arnab Manoranjan Goswami v. State of Maharashtra, the Supreme Court granted interim bail in a suicide abetment case after 8 days of arrest, stressing on personal liberty and the need to protect against the misuse of state power. However, in numerous abetment of suicide cases against non-celebrities, courts have denied bail, even when FIRs didn’t make out a case of abetment.

In the case of Rhea Chakraborty v. Union of India & Ors the Bombay High Court  granted bail under NDPS Act, holding that “financing illicit traffic” wasn’t made out and Section 27A was not attracted. In contrast in many other NDPS cases, bail is refused, despite very weak evidence.

In the case of P Chidambaram v. Directorate of Enforcement, the Supreme Court granted bail, holding that “gravity of offence” alone is not a ground to deny bail. But in many other cases of economic offences, courts deny bail only on the ground of  gravity.

In the case of Indrani Mukherjea vs CBI, she was granted bail in a murder case, on the ground of her being in custody for more than six years and the evidence not having begun. In stark contrast, many under-trial prisoners languish in jail being denied bail even after spending over ten years in jail.

As a principle of law, consistency is the ornament of justice. Bail justice is not an exception. Courts should be consistent while applying the principles of law in all cases including bails. The need for consistency has been lucidly stated by Justice KS Radhakrishnan in the following words:

“Judicial discipline demands consistency in rendering judgments. A Judicial Officer may hold different views on various aspects. A Judicial Officer may err and pass contradictory orders inadvertently. But once it is brought to the knowledge of the Judicial Officer, he is duty bound to keep track of consistency. In-consistent orders passed by a judicial officer almost in the same fact situation, and that too on the same day, would give rise to complaint of discriminatory treatment, which will undermine the people's faith in judicial system and the rule of law. It will cause resentment and anguish and make an imprint in the mind of the litigant that he has been discriminated. A Judicial Officer may err and pass illegal orders, but he shall not err in consistency. He should be consistent even in illegality.”

This is where AI comes into play, so that there is consistency between judges while granting bail or denying it. AI can be a very useful tool. Let me explain this with the help of certain examples.

If in a case of cheating for an amount of, say, rupees ten crores, the Supreme Court grants bail to the accused on the basis that he has spent one year in prison, why shouldn’t this apply broadly across the entire criminal justice system in all cases, except in some cases that I shall deal with later.

Another example that can be cited is where anticipatory bail is granted to the accused liberally in certain types of cases, depending upon the punishment prescribed or nature of the offence alleged. All such cases should meet the same fate. AI can find these cases with similarities and place them before the judges, so that more consistency enters the bail justice system.

Here are certain observations of the Supreme Court, on the need for consistency in bail justice:

“We have come across various matters from the High Court of Allahabad, wherein matters arising out of the same FIR are placed before different Judges. This leads to anomalous situation. In as much as some of the learned Judges grant bail and some other Judges refuse to grant bail, even when the role attributed to the applicants is almost similar. 

We find that it will be appropriate that all the matters pertaining to one FIR are listed before the same Judge so that there is consistency in the orders passed.”

Now, let’s see the other side of the coin.

While bail justice in India imperatively needs more consistency, another principle that is of equal value, especially in bail, is the need to decide bail applications based on the facts of each case, without a general formula. The Supreme Court has time and again said that a bail application ought to be decided on the facts of the given case, on the basis of well-established bail principles. Here are passages that speak of grant or refusal of bail depending upon the facts of each case: 

“29. … There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.”

“39. Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end. 

It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”

While there is a need for more judicial consistency in granting and rejecting applications for bail - wherein lies the need and immense relevance of AI to help the bail justice system to bring such consistency - the peculiar facts of the case are as significant too, where AI cannot fill the role of judges. For instance, whether the accused seeking bail is a flight risk or whether he’s likely to tamper with evidence or threaten witnesses if released on bail, is for the courts to decide on the peculiar facts of each case.

To conclude, while AI is a very relevant tool for bringing in more consistency in bail justice, it ceases to be relevant when it comes to the peculiar facts of each case. This has to be left to the wisdom and discretion of judges, even if we say that,

“... the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable…...”

AI is a wonder for bringing in consistency in bail justice, but one cannot rely on it completely as it lacks human element to make informed decisions in the peculiar facts of each case. After all, we cannot have ‘JUSTICE AI’ who will decide all bail applications in a communist way. That would be the end of bail justice and would usher in an era of robotic justice.

About the author: Vivek Sood is a Senior Advocate. With over 30 years of experience, he focuses on criminal defence. He handles serious offences, statutory prosecutions, and key constitutional cases, with a strong practice in white-collar crime involving corporate fraud, financial irregularities, and enforcement laws.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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