Colonial Terror by Deana Heath

Author:Deana Heath [Heath, Deana]
Language: eng
Format: epub
Publisher: OUP Oxford
Published: 2021-03-23T07:00:00+00:00

The Confession, Law, and Official Discretion

… it will be infinitely for the advantage of the police, and consequently of the people at large, to make it illegal for any one, police or magistrate, to record the confession of any accused person before he is actually put upon his trial … If the police cannot obtain sufficient evidence against an accused person to send him up for trial apart from a confession, he ought not to be sent up for trial at all.48

An analysis of the law relating to confessions in colonial India reveals the degree of official discretion accorded to the police to engage in extra-legal violence. The historical power of the confession lies in its ability to provide ‘proof’ when other evidence is wanting, as well as to virtually absolve the prosecution from the difficult task of seeking such evidence.49 It is for this reason that torture has historically played such a key role in obtaining confessions. In the Roman-canon law of evidence that governed judicial procedure in Europe from the Middle Ages, torture was resorted to in order to extract a confession in cases of ‘half proof’, namely the testimony of only one eyewitness (since the testimony of two was sufficient to secure conviction without needing to resort to torture) or insufficient circumstantial evidence, although the purpose was to gather details of the crime that no innocent person could purportedly know rather than to elicit a guilty plea.50 Confessions obtained through torture had to appear, however, to be voluntary, and innumerable rules were created to ensure their reliability.51 Such practices were by no means unique to Europe. In the case of India the ancient Indian treatise on statecraft, the Arthaśātra, contains a whole chapter on the rules regarding the use of torture to elicit confessions, which has transpired later in Europe was to be applied if the defendant’s evidence could not be attested by reliable witnesses.52 As in Europe, such confessions had to be substantiated through supporting evidence, and there were other provisions to protect innocent persons from being convicted of crimes they had not committed.53

But although judicial torture may have been hedged with safeguards designed to prevent the condemnation of innocent people, such safeguards were always, as John Langbein concludes, ‘imperfect’.54 In Europe, confessions obtained through torture were only deemed valid, for example, if the accused publicly repeated their confession in a courtroom within the next twenty-four hours; if the accused, as was often the case, recanted their confession when asked to repeat it this generally led to a further ‘examination’ in the torture chamber until the desired result was obtained.55 The requirement that confessions procured through torture be verified through other forms of evidence was also not enforced in all jurisdictions, or was enforced only ‘indifferently’.56 That safeguards designed to protect the innocent from being convicted under judicial torture were doomed to failure, for Langbein, is because ‘the law of proof was absolutely dependent upon coerced confessions’.57 But it is not only in systems of judicial

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