INTRODUCTION
In the nineteenth century, when the utilitarians’ attempts to deliver scientific jurisprudence to England fell flat, they got India as a consolation prize. In the colony, they saw opportunities to build a legal apparatus that not only would surpass what it supplanted but also would be superior to anything comparable anywhere. With important allies on their side, they would codify law free of ambiguity and dispense justice unencumbered by custom. In this way, they would transform colonial society and demonstrate what might yet be achieved in the metropole. Theirs was legal science in action; the rule of law as technology—and India was a vast laboratory for a grand experiment in modernity.
The utilitarians’ splendid vision for a system of law in which all hidden worlds would be revealed and everything disorderly would be put to order was never realized. From the outset, there were too many competing interests, too many hands at work, too many compromises demanded. Moreover, the utilitarian logics that were written into codified law had unintended consequences. Legal mechanisms designed for objectivity produced impunity. Police officers recognized that the formal bar on confessions obtained through inducement, threat, or promise did not so much prohibit torture as delineate circumstances for its use. Senior officers typically attributed custodial abuses to the purported shortcomings of colonized subjects rather than acknowledge them as the specific results of the experiment in codification.
Courts and legislators in democratic India have since tried to prevent torture, but their efforts have been contradictory and the results mixed. As Jinee Lokaneeta (Reference Lokaneeta2011) showed in her first book Transnational Torture, Indian jurisprudence is more ambivalent about torture than lawyers and human rights activists tend to think. Judges introduce legal safeguards against custodial abuses yet tolerate a lot of other practices on a spectrum of state violence that ends in torture. They also remain bound to many of the positive terms and conditions imposed by colonial predecessors as well as by their modernizing social imaginaries. Consequently, in a not-so-ironic twist, the solution for torture in India today remains what it has always been: to be more modern; to bring science to law, again.
THE TRUTH MACHINES
Enter a new class of experts promising to do just that and, with it, Lokaneeta’s (Reference Lokaneeta2020) tremendously clever, prize-winning new study The Truth Machines Footnote 1 , an inquiry into how law, science, and violence enfold in India today in ways that are at once novel and familiar. At the forefront of the narrative are the eponymous machines of the book’s title: lie detectors, brain scans, and truth serums. But the locus of the book, on which the narrative turns, is the cultural production of nominally scientific expertise through which the work of these machines is mediated and negotiated.
As in her previous book, Lokaneeta’s story is partly transnational. It begins in India, with successive reports documenting police violence and proposing procedural changes to stop it (chapter 2). The book then recounts truth machines’ origins and spread in the United States in the first half of the twentieth century (chapter 3), where they were promoted as simple, safe, and humane alternatives to the threat or use of violence during interrogation. Then it tracks the machines back to India, with polygraphs making an appearance in the 1960s and 1970s and brain scans and narcoanalysis in the 1990s—the latter, oddly, at a time when the use of pharmaceuticals to induce speech in interrogations was falling into disfavor elsewhere (Rejali Reference Rejali2007, 390–91).
The book’s protagonists are clinical and forensic psychologists. One, C. R. Mukundan, has patented a new brain scanning technique. His son runs a company selling products using the technique, which its website touts as “an aid to Criminal Investigation in hundreds of cases (including murders, terrorism, fraud, poaching, theft), by the Police” (Axxonet, n.d.). Another Gujarati, Shivarathna L. Vaya, pioneered the use of polygraphs, and, in Karnataka, S. Malini led the campaign for narcoanalysis. Lokaneeta (Reference Lokaneeta2020, 81) likens the psychologists, after Donna Haraway (Reference Haraway1991), to cyborgs. In them, she sees “a merging of human and machine … sometimes emphasizing the mechanical (science), at other times the human (therapeutic art).” This is an astute characterization that echoes Bruno Latour’s (Reference Latour1987) discussion of machinery as an array of forces organized to hold one another in check, each acting upon the other lest they fly out all over the place. That is to say, forensic psychologists are not just users of equipment designed to elicit truth about crimes and criminals. Like the officer who not only operates but also adores the apparatus of execution in Franz Kafka’s (Reference Kafka and Pasley2010) penal colony, they conjoin with their paraphernalia, intermingling with the electrodes or sensors they attach and the drugs they administer.
The machines have been controversial. But it is in the nature of machinery to excite controversy. Innovators everywhere have to establish that the phenomena their machines elicit are factual, not “artifactual” (see Golinski [Reference Golinski1998] 2005). It is not just that scientific facts do not speak for themselves. Until they are spoken for, they are not facts at all. To become facts, they need spokespeople, like the truth machines’ clinical and forensic psychologists, to mobilize allies, attract interests, and persuade audiences. To succeed, these people must culturally produce and reproduce their work until it obtains factual status. When they do, their machines are closed off from further public scrutiny—an achievement that Latour calls “blackboxing.” At this point, the machines can be incorporated without discernible resistance into larger configurations for their use—in Lokaneeta’s story, into what she refers to as the “state forensic architecture” (chapter 4).
Where they do not overcome controversy, machines themselves remain objects for scrutiny. Sometimes they fall into disuse. At other times, they remain in use but do not become standard equipment for the conduct of certain tasks. Such is the fate of India’s truth machines. Like their American forerunners, they have not found the allies they need to feature routinely in police investigations. For all the millions of criminal cases registered in India, Mukundan’s company claims to have contributed evidence to a mere six hundred or so. Lie detectors are an older and easier technique than brain scanning and are more widely used. But, even in Gujarat, where Dr. Vaya was their cyborg in chief, they factor in no more than a few hundred cases annually.
If police violence is commonplace in India, and these machines could help reduce it, then why have they not been taken up more widely? Costs and controversy are among the reasons. Cash-strapped police departments (administered by state governments) hesitate to invest in technologies that they know will be targets for criticism by lawyers, journalists, and activists, not to mention rivalrous psychologists and some prominent forensic scientists. On top of that, techniques that sit at the nexus between science, law, and state violence run unusual risks of going awry. Far from replacing torture, truth machines have in some circumstances complemented it. In one notorious incident that undermined the credibility of narcoanalysis, Dr. S. Malini was caught on film herself physically assaulting a drugged man accused of being involved in a series of bombings, asking him illogical questions to elicit answers to other questions that were edited into doctored—pardon the pun—video footage of the interrogation (chapter 6).
Given the extent to which doctors and scientists have contributed to the practice of torture over these last few centuries, particularly through the use of drugs (chapter 3; see also Rejali Reference Rejali2007, 385–401), it is hardly surprising that narcoanalysis in India not only opens up torture situations but also that, in this instance, the torture went beyond the pharmacological. But it is not the historical fact of the recurrent alliance between doctors and torturers alone that is noteworthy here. It is also the fact that the alliance is made possible by parallel ideas about how bodies can be used to produce knowledge about crimes. And it is the genius of Lokaneeta’s book that it reveals these parallels through careful description and thoughtful interpretation of ethnographic, interview, and archival data.
AN EPISTEMOLOGY OF PAINLESSNESS
While The Truth Machines does an outstanding job of documenting the vicissitudes of polygraphs, brain scans, and truth serums in India, its distinguishing accomplishment is in showing how the ostensibly modern theory behind these machines is almost identical to early modern theories of torture—to which some theorists cling even now—and, in particular, to the belief that from pain comes truth (see Rejali Reference Rejali2019). According to this belief, truth can be accessed through the body. Like an organ or tumor, it can be extracted—if need be, against the subject’s will. The only relevant question is how.
The single significant thing that differentiates the new machinery of extraction from the old instrumentation of torture is that it promises to be painless. No teeth or fingernails have to be pulled. If the drawback with the epistemology of pain that guided early modern torturers through intricate procedures to produce evidence of wrongdoing was that pain turned out to be not much good at eliciting truth as had been supposed (Silverman Reference Silverman2001), then the truth machinery’s solution is to replace the element of pain with some other element with which to have the body of the subject reveal facts to investigators. This solution is also its primary selling point: Axxonet emphasizes that its brain scans are non-invasive. They require nothing of the subject other than inertia. Unlike the torture situation, or even lie detection and narcoanalysis, the subject is not invited, let alone forced, to “say” anything at all.
The epistemology of painlessness, however, is as flawed as its antecedent. It misapprehends the practice of torture in at least two ways, both of them decisive. First, pain is not the only element in the torture situation. It is just one and a poorly theorized one at that (see Cheesman Reference Cheesman2017). It occludes other elements. What torture is primarily about is inducing a loss of control through torment, which may be more or less painful. The tormented person is rendered powerless, or given the impression that they are powerless, over their own body (see Nowak Reference Nowak, Gearty and Douzinas2012).
Lokaneeta’s book neatly reveals the symmetry between the late modern epistemology of painlessness on which the truth machines are premised and the early modern epistemology of pain that they promise to transcend. Forensic psychologists and torturers, she shows, correspond in their aspiration to control their subject’s body so as to have it reveal things against a person’s will. The Supreme Court of India glimpsed the outline of this symmetry when it decided in 2010 that the involuntary use of polygraphs, scans, and serums was unconstitutional and a form of cruel, degrading, or inhuman treatment. But, instead of prohibiting their use, it again sought grounds to mediate law’s relationship with them. On Lokaneeta’s (Reference Lokaneeta2020, 127) reading, by affirming that the techniques could be used with consent, the court reflected “a general faith and openness in the reliability of these scientific techniques,” despite their contested status. The ruling, in any event, did not draw law’s curtains on the use of these techniques. Rather, it left them wide open for negotiation.
Second, whether truth has been a goal for torturers historically or not is of little consequence today. Torturers in our time torture for a wide variety of reasons: to force the innocent to confess, to procure bribes or sex, to terrorize subjugated populations, to perform masculinity. Indian police officers who spoke to Rachel Wahl (Reference Wahl2017) insisted that certain types of people deserve to be tortured. Some promoted themselves as delivering a kind of vernacular justice through swift punishment that law courts do not deliver. On her account, serums, polygraphs, and scans would not replace torture in India even if they could extract the truth because the truth does not have anything much to do with criminal investigation.
Nor, on the surface of it, does the rule of law. But Lokaneeta wants to suggest otherwise. In doing so, she again opens up intriguing possibilities for thinking about the relation of law to science, about why it is that the utilitarian dream for India could never succeed, and why, for the same reasons, truth machines and criminal procedures can never be reconciled.
THE SCAFFOLD OF MODERNITY
Lokaneeta concludes her book by turning to the rule of law (chapter 6)—neither to belittle nor applaud it but, rather, to reconceptualize it in the entanglement of violence, politics, and science with which The Truth Machines is taken up. The rule of law in India, she says, works as a kind of “scaffold that relies on procedures to mask violence” (Lokaneeta Reference Lokaneeta2020, 137). Although criminal procedures mitigate the most egregious abuses of power, judges know all too well that torture and other forms of custodial violence persist in the interstices. Rulings like the one in 2010 are less concerned with ending custodial violence than they are with effacing it. They also betray, in their willingness to mediate rather than forbid the truth machines, an abiding “desire to modernize at all costs” (119). Despite their artifactual quality, the machines retain an allure of mechanical objectivity that the judges seem to find irresistible.
Might it also be that in these machines the judges discern something vaguely familiar—some material quality of the rule of law itself? It is no coincidence that the utilitarians embarked on their scheme for impersonal systematic law in an era of mechanical innovation and reproduction. In a classic study of objectivity in science and public life, Theodore Porter ([Reference Porter and Princeton1995] 2020, 74) writes that the idea of the rule of law contains within it an ideal of objectivity that politics shares with science, one in which personal interests and prejudices are subordinated to public standards, in which non-arbitrariness is prized, and rational consideration given to all relevant factors that pertain to a particular situation.
This conception of the rule of law has much in common with what the utilitarians wished for India and perhaps with what some Indian judges and legislators wish for it today. The trouble is that mechanical objectivity and the rule of law have different relations to power in their respective domains. The rule of law as political ideal stands for more than just non-arbitrariness. Among other things, it has the distinctive and significant telos of tempering power (Krygier Reference Krygier2019). It would be nonsensical, by contrast, to ask whether mechanical objectivity might temper scientific forces. Mechanical objectivity enlarges scientific power. That is the point of it, just as the point of the rule of law is to temper political power.
Tempering power, be it of members of a political elite or of a police force, calls for judgment about how power is used and the conditions in which it does its work. Mechanical objectivity, by contrast, aims to exclude judgment. Experimental science gains authority through processes that obviate the need for judgment of the sort on which the political ideal of the rule of law rests. Though facts might need to be spoken for, they are spoken for as if they have spoken for themselves. Scientists, by their own account, report and replicate. They do not adjudicate. That is why the utilitarian technology for codification and administration in India could not reconcile its vision of law with its longing for science. What law courts do, science disaffirms. That is also why India’s courts remain as ambivalent about truth machines as they do about state violence. There is no stable legal ground on which these machines can stand. Nor will tinkering with them make any difference. If the controversies about the reliability and validity of the machines’ results are ever resolved in their favor, then it will only make them more difficult for the courts to deal with, since their authority to speak for the adjudicator will grow, not diminish. Even as judges mediate truth machines’ parts in the criminal process, and forensic psychologists and police negotiate terms for their engagement, the modernity that the machines anticipate is one in which judges, rather than torturers, are made redundant.
