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September 7, 2020

In Conversation with Prof. Jinee Lokaneeta – The “Public Secret” of Torture, Its Dimensions and Context

Prof. Jinee Lokaneeta is a Professor and Chair of Political Science and International Relations at Drew University, USA. Her research interest include law and violence, political theory, critical and feminist theory, global human rights, and interdisciplinary legal studies. Her recent work titled The Truth Machines: Policing, Violence and Scientific Interrogations in India has been published by University of Michigan Press – Orient Blackswan (2020). She has previously authored “Transnational Torture: Law, Violence, and State Power in the United States and India” (2011) and has been co-editor, with Nivedita Menon and Sadhna Arya, of “Feminist Politics: Struggles and Issues” (2000). 
In this interview with the IJLPP she talks about her book, the motivation behind it, follow up on her past works and the need for a jurisprudence to contextualize torture in India.  
You have recently published a book “The Truth Machines: Policing, Violence, and Scientific Interrogations in India” (University of Michigan Press, Orient Blackswan) but have been researching and writing on the menace of police torture for a very long period. Can you tell us briefly about what motivated you to undertake this research for your book?
Prof. Lokaneeta: As you mentioned, my interest in torture predates this particular book. My focus is more generally on the relationship between law and violence in liberal democracies. Liberal democracies have a particularly ambivalent relationship with torture. The absence of torture is often considered a definitional (“civilizational”) feature of democracy and yet torture is present in almost all democracies. It is as if the rhetorical denial of torture foreclosed any serious examination of torture. Cases such as Brown v. Mississippi in US or DK Basu and Nilabati Behera in India were considered adequate for addressing torture. Instead in Transnational Torture: Law, Violence and State Power in the United States and India (NYU Press, 2011 & Orient Blackswan 2012), I traced how jurisprudence, considered the most legitimate state discourse, formally condemns torture yet ends up accommodating excess violence.
But how do democracies manage the violence that is accommodated even as torture is prohibited? In The Truth Machines I shifted from the jurisprudence to examining the everyday state actors who are responsible for interpreting the laws and safeguards against torture. In the 2000s, when every major case such as Aarushi- Hemraj murders, or Mumbai blasts (2006) turned to narcoanalysis or truth serums alongside polygraphs and brain scans (that I term The Truth Machines), two things intrigued me: The contrast between the human rights activists & those subjected to the techniques who argued that narcoanalysis was a form of psychological torture and the claim of forensic psychologists and police that these scientific techniques would replace physical torture, the latter logic often upheld by the State High Courts.
The Truth Machines in part emerged out of the post-emergency (1975-77) pressure created by the civil liberties and democratic rights movements to address custodial deaths (and torture) in 1980s-90s. The techniques developed from the ambitious efforts of individual forensic psychologists contingently and merged with a need of the Indian state to use science and expertise to find technical solutions for police torture. Yet, as my interviews with lawyers, police, forensic psychologists and activists in 5 Indian cities show, these techniques merely ended up creating another site for extracting confessions coercively albeit in the garb of science and expertise. Thus, the book traces the tension that liberal democracies face in disavowing the use of torture and excess violence yet continually creating ways of accommodating them in other forms.
In the article titled “Defining an Absence: Torture ‘Debate’ in India” (EPW, 2014), you term or classify torture as a “Public Secret”. It is so because of the paradox of how the State denies any instance of torture but it is a publicly accepted method of punishment. How do you see it within the realm of “Penal Populism” which is the pursuit of punishment policies based primarily on their anticipated popularity rather than their effectiveness? Is there a way out from such policy measure taken in the name of citizenry which give political mileage to not only the executive but legitimizes police brutality as well?
Prof. LokaneetaThe concept of Public Secret is of course linked to Michael Taussig’s famous work on how “the information about the act is shared yet repressed such that it ‘is generally known, but cannot be articulated.” Nitya Ramakrishnan in her influential work also noted that “the trick to the public secret is in knowing what not to know. This is the most powerful form of social knowledge.” One of the major issues that animated my EPW piece was to recognize that torture in Guantanamo, Abu Ghraib and rendition sites, all outside of the formal territory of the US, still led to a public debate on torture forcing the US to even withdraw the most egregious torture memo that enabled torture. The US Senators criticized a Hollywood film like Zero Dark Thirty for defending the efficacy of torture. 
After the brutal torture and deaths of Jayaraj and Bennix in Sathankulam, Tamil Nadu in June 2020, several commentators (in NYTimes and The Wire) asked why this incident did not become a flashpoint like George Floyd’s police killing in the US.
In addition to public acceptance for torture being high, I would identify three major reasons for the absence of a public debate on torture in India:
  1. Predominantly, the focus of the jurisprudence has been on custodial deaths rather than custodial torture (Basu & Behera cases were about custodial deaths). The NHRC has also mostly collected data on custodial deaths not torture; and its only more recently due to the impact of groups such as Asian Center for Human Rights amongst others and the debate on the anti Torture Bill that the number of torture cases were brought up directly. The effect of lack of data on torture is that custodial deaths could be explained away by a number of other reasons such as suicides or illness while physical torture was rarely admitted as a reason for torture. It’s only since 2014 that physical assault was even acknowledged as a category for explaining custodial deaths in the National Crimes Research Bureau reports. 
  2. The civil liberty and democratic rights movements domestically have also predominantly focused on custodial deaths than torture. Most of the path breaking reports by Peoples Union for Civil Liberties, Peoples Union for Democratic Rights & Andhra Pradesh Civil Liberties Committee especially in the 1980s and 1990s were focused primarily on deaths in custody. A full-fledged civil society campaign only became visible briefly in 2000s and then more recently in the efforts for the anti torture bill. 
  3. Third, there appears to be some lack of alignment between the academic and grassroots efforts regarding torture in India. Michelle Alexander notes in context of prison abolition debates in the US that it is only when the grassroots groups and academic research align that an issue becomes more publicly successful. While there is more scholarship on postcolonial Indian police (see Santana Khanikar’s work in particular on state violence, Rachel Wahl & Beatrice Jauregui) and torture (Joshua Aston) in last few years, the disciplines of political science, sociology, anthropology and law haven’t necessarily made torture and state violence a central problem of democracy and state & judicial accountability.
Yet the Jayaraj and Bennix case has led to a pretty robust debate on the need for an anti torture law for ratifying the UN Convention against Torture, on the need to implement DK Basu guidelines, criticize the glorification of torture in films and a more public campaign that hopefully will be a turning point. 
Recently, in the background of Vikas Dubey Encounter Case, the Supreme Court has directed to constitute an inquiry committee. Similar court monitored investigations and reports have been seen in the past too. However, how do we reconcile it with the standard operating procedure existing qua The Indian Criminal Procedure Code where the Judicial Magistrate has been awarded power for general investigation? Is there any inherent shortcoming in these one-off situational remedies’ issued by the Apex Court? 
Prof. Lokaneeta: My primary focus has been on custodial deaths in the contest of interrogations in Transnational Torture and The Truth Machines. However, custodial killings do not just take place within the confines of formal police or judicial custody. And to that extent extra judicial killings or encounters (and disappearances in Kashmir or Punjab) are an important site for critiquing state violence. Full and independent inquiries do have a role to play in these contexts and in some instances, Inquiry commissions such as the one in the brutal rape and murder of Manorama case in Manipur led to indictment of the state officials (in that case Assam Rifles), at least in the report. However, we do need a jurisprudence that clearly addresses the different contexts in which encounters have taken place against alleged Maoists in Andhra historically and more recently against rapists, organized criminals in Maharashtra (by encounter specialists that Bollywood has celebrated), the ones in North East, Kashmir or in Punjab and also ask whether there is popular celebration and acceptance of these acts as forms of “justice.” Here work by Haley Duschinski, Julia Eckert, Jyoti Belur (on police attitudes) and the impunity series by Zubaan may be especially important.
Finally, in the light of your 2017 piece on The Wire (2017) titled ‘Law Commission Report on Torture Is a Step in the Right Direction, but a Just Bill Is Still Some Way Off’ where you appreciated the 2018 Law Commission’s Report but criticized the appended Torture Bill, how do you see the importance of finalizing a definition of crime of torture?
Prof. Lokaneeta: I think a definition of torture has to address all the different contexts in which torture occurs in India- the routine cases of theft/crimes in everyday sense. Second, in the context of terror cases, and finally in the context of conflict areas such as Kashmir or parts of North East- the latter two enabled by the presence of extraordinary laws. We also have to recognize that torture occurs for a number of different purposes: sometimes for information, for punishment, discrimination and foreclosing dissent, and unless we address all these different forms, we wont be able to address torture adequately. Jayaraj & Bennix case helped focus on the everyday but not on the more extraordinary contexts. It is also important to recognize that laws and a will that enables impunity in one context also may have the impact of accommodating violence in the others. While torture does have the possibility of being used against anyone, it does end up getting more frequently used against those already marginalized on the basis of caste, religion, gender, class, sexuality and increasingly against those who politically dissent.
A more comprehensive bill would thus include a definition of torture that is broad, acknowledging different contexts, distinct purposes and keeping in mind the subject of torture. Living in a militarized space, in overcrowded prisons deprived of basic rights especially during COVID, delay of habeas corpus or bail or trial could all constitute torture like circumstances. Torture is ultimately a deprivation of human dignity and rights and our definition of torture has to appropriately capture these complex realities.

[This questionnaire was drafted and edited by Mr. Pranav Tanwar and Mr. Aakash Chandran, Consulting Editor,  IJLPP]

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