The Truth Machines by Jinee Lokaneeta

Author:Jinee Lokaneeta [Lokaneeta, Jinee]
Language: eng
Format: epub
Tags: LAW051000 Law / International
Publisher: University of Michigan Press
Published: 2929-03-10T00:00:00+00:00

A Flawed Art of Government

I explore the contention of the Indian courts that the introduction of the investigative techniques under discussion is a shift in the nature of state power to introduce an art of governing. I take seriously the claim by the high courts that the main reason they have considered these techniques as organically acceptable means of investigation is because they are meant to replace torture. It is important to clarify that methodologically I do intentionally take the claims Page 126 →made by the state seriously on its own terms. I do that for two reasons: First, just as the claims of a state are taken seriously when the focus is on critique, a similar approach has to be adopted when there is a state articulation of an adherence to rule of law or human rights as opposed to a prima facie rejection of the state claims. Second, and a related point, is that such an approach allows one to identify the tensions within the state and legal discourse and not outside of it.

In this case I note that even if the use of these techniques represents a shift in state power as the courts claim, there is a fundamental flaw in the way the art of governing is being introduced. Although the courts are defending these techniques ostensibly to replace torture, as I will show below, the edifice that they have sanctioned is drawing upon precisely those elements that have supported the persistence of torture in postcolonial India.

The new art of government built by the courts in allowing these scientific investigative techniques has three different elements: the techniques are seen as superior to physical third degree without a clear explanation of what makes them so, doctors and medical professionals become defined as custodians of safety despite their dubious role historically, and the meaning of custody itself is transformed despite the continuing reality of custodial violence.

Human rights activists have pointed to lingering questions about the scientific validity, reliability and safety of the techniques (the safety mainly for narcoanalysis). Yet the need for scientific techniques trumps any doubts that the high courts have as they organically become a part of the investigation to protect the subjects from the third degree. Just a mention of a scientific basis for these techniques appears to be sufficient evidence for the courts to see all three as safe alternatives to physical torture.50 After all, from colonial to postcolonial times, the need for scientific means of investigation has been a dominant desire of prevailing states. In colonial times, science played a twofold role in the context of law: in introducing new forms of evidence, particularly medical testimony despite its highly contradictory character; and in the form of early experiments that took place in the colonies before those new scientific methods were introduced in the West.51

There appears to be some identifiable differences in the way postcolonial courts consider the question of due process. The Supreme Court has not uncritically accepted scientific techniques at all costs.

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