Police torture was common in twentieth-century India, despite its prohibition under both colonial and postcolonial laws. One reason for torture’s persistence through this period was that police personnel were rarely taken to court for acts of custodial violence. On the rare occasion that the police were charged with violence, they were inevitably acquitted, enabling what is commonly termed “police impunity” in committing violence. Anticolonial nationalist newspapers of the early twentieth century and political opposition in early postcolonial India attributed police impunity to a lack of government will in bringing perpetrators of violence to justice. However, the consistently poor rate of police convictions had a more structural cause—the evidentiary protocol followed in cases of custodial violence. Since police torture occurred within the closed, invisible space of custody, there were no impartial witnesses to the crime. Spurning the inherently conflicting testimony of victim and perpetrator, prosecution and defense, courts sought “objective” testimony to reach a verdict.Footnote 1 This, however, was an impossible task. This article, set in the southern province of Madras, argues that far from enabling convictions or even retrieving the “facts” of a case, evidentiary protocol that was consolidated in colonial India and inherited by the early postcolonial state further entrenched police power within local communities.Footnote 2 Police violence inside custody went hand in hand with less obviously violent manifestations of power outside the station.
Typically, courts discounted the testimony of (subaltern) victims of violence as subjective and, therefore, invalid in custodial violence trials. Instead, they privileged three seemingly objective forms of evidence—the testimony of “respectable” witnesses, medical reports, and police writing—all of which were, in fact, more easily accessible to the police than to the objects of their violence. To craft judicially verifiable narratives for the duration of custody, police personnel exploited their local networks, procuring evidence that defended their conduct. They found socially privileged eyewitnesses who attested to their presence outside the station during the moment of violence, they worked with medical officers to obtain certificates that acquitted them of violence, and they filled entries in station records that created alternative narratives for the duration of custody. The reliance on an epistemology that privileged objectivity thus served to reinforce police power and renew its alignment with the axes of class, caste, and gendered authority. Police torture, I argue, was coconstituted with seemingly nonviolent forms of power that permeated society.
The academic study of torture, overshadowed briefly by the ascendance of Foucauldian understandings of power, has reemerged prominently in recent decades, vivified by the post-9/11 US War on Terror and its attendant regimes of state violence (Levinson Reference Levinson2004; Rejali Reference Rejali2007; Hilde Reference Hilde2008; Parry Reference Parry2010; Lokaneeta Reference Lokaneeta2011; Heath Reference Heath2021). Michel Foucault’s Discipline and Punish (Reference Foucault and Sheridan1977), which commenced with a dramatic episode of torture from eighteenth-century France, traced the modern shift in forms of state punishment—from violence on the body to the disciplining of the body and the mind. More broadly, Foucault’s writings from the 1960s and ’70s on the functioning of power in modern societies redirected the priorities of social science scholarship—as much in the postcolonial world as in Europe—from the state to the formation of subjecthood, from violence to knowledge-formations. Delineating the shift from sovereign to disciplinary forms of power that had occurred in Europe from the seventeenth century onward, Foucault wrote that power was no longer concentrated in the state and manifested as violence. Instead, power was distributed across society, capillary-like, and was closely tied to influential forms of knowledge—statistical, medical, and so forth. However, since the 1990s, scholars across disciplines including legal studies, political science, and anthropology have brought naked violence back into the picture. Drawing on the works of early twentieth-century thinkers Carl Schmitt and Walter Benjamin, they have emphasized the persistence of sovereign power in liberal states (Benjamin [1955] 1978; Schmitt [Reference Schmitt1932] 1996; Agamben Reference Agamben1995; Derrida Reference Derrida and Anidjar2002; Hussain Reference Hussain2003; Das and Poole Reference Das and Deborah2004; Hansen and Stepputat 2005). With regard to torture in particular, this scholarship has shown that the practice is not restricted to the past or to contemporary authoritarian regimes, but in fact occurs in modern liberal states. Further, it is not an exceptional act in liberal democracies, but rather fits at one end of a continuum of excess violence performed by the state (Lokaneeta Reference Lokaneeta2011). Finally, it is not an aberration attributable to individual police officers or even to the police institution as a whole, but instead expresses the violence of the law (Cover Reference Cover1986; Rao Reference Rao2001). Blurring the line between legal norm and violent exception, this literature hence brings torture closer to Foucauldian conceptions of power as everyday, structurally tied to forms of knowledge, and dispersed across society.
Drawing on Foucauldian and Schmittian strands of scholarship, this article sheds light on the relationship between two forms of power that target the human body—state violence as manifested in police torture on the one hand and knowledge practices that constitute certain bodies as socially privileged on the other. Indeed, sovereign and disciplinary power are not mutually exclusive in modern societies; rather, the two coexist.Footnote 3 Moreover, neither sovereign nor disciplinary power is static or settled: the state needs to repeatedly perform violence on bare bodies to assert its sovereign power, and subjecthood is formed through routine, repetitive practices. But which bodies are vulnerable to sovereign violence, which bodies become political subjects? In Homo Sacer: Sovereign Power and Bare Life, philosopher Giorgio Agamben (Reference Agamben1995) locates the constitution of sovereign power in the moment of the ban, an action that spatially excludes the homo sacer (sacred man) from the political realm, rendering them vulnerable to sovereign violence. Homo Sacer is s/he who can be killed without legal penalty, and the space of exception where this violence occurs is the camp. In the modern era of Foucauldian biopolitics, where life is what is at stake in politics, all citizens are potentially sacred life, all space is the camp where sovereign violence can be enacted, and legal exception is permanent (Agamben Reference Agamben1995, 119). In this context, all citizens have to constantly produce their inclusion into the space of politics, their exclusion from the camp.
Governmental investigations into police torture from twentieth-century India provide a vantage point to examine the twinned working of sovereign and disciplinary power. On the one hand, these records shine a light on the police station, the site of sovereign violence on bodies excluded from politics—the camp, in short. On the other, they illuminate normal society, where bodies produced their political personhood through legally legible acts of witnessing. The boundary between the two spaces—the police station and the legal order outside, between bodies in custody that were vulnerable to violence and bodies outside that were not, was not static.Footnote 4 Rather, it was repeatedly redrawn by a range of actors and through a range of actions. Even as police violence marked certain bodies as objects of sovereign power, bearing witness produced others—respectable men, medical professionals, and literate bureaucrats—as more privileged political actors who could stay outside the space of custody. In the following pages, I examine investigations into cases of police torture from late colonial and early postcolonial Madras province to show how the policeman’s sovereign power existed in conjunction with disciplinary forms of power that permeated society. While I end this study before the infamous Indian Emergency of 1975–77, the conclusion briefly examines the afterlife of these ties between station and society into the twenty-first century.
ENCLOSING THE TIME AND SPACE OF CUSTODY
The evidentiary norms framing torture investigations in colonial India, outlined in the Code of Criminal Procedure (1898) (CCP), stemmed from two defining features of custody. One, it was a closed space whose invisibility from the public eye ruled out the option of impartial testimony, resulting in the privileging of objective evidence. Objective evidence included the testimony of respectable witnesses (whose subjectivity legal codes disregarded), written records, and science. Inasmuch as forensic science, with its claims of objectivity, was being established in metropolitan Europe in the late nineteenth century, the invisibility of custody accentuated its importance in cases of police torture. Forensic science was especially critical in the colony, which was marked by its cultural otherness, by the seeming proclivity of its natives to perjury (Adam Reference Adam2016; Burney and Hamlin Reference Burney and Christopher2019). The second feature of custody that informed evidentiary protocol was its limited duration, based on the Orientalist assumption that native policemen were culturally prone to violence (Said Reference Said1978). Accordingly, the police could hold someone in arrest for a maximum of twenty-four hours, unless they received special magisterial approval for an extension (CCP, sec. 61).Footnote 5 After the prescribed twenty-four hours, they had to either charge the arrested person with a crime and send them to magisterial remand, or, in the absence of adequate evidence, release the suspect. The limited duration of custody was productive of competing prosecution and defense narratives that drew on seemingly objective evidence to delineate a set of actions over the critical twenty-four hours surrounding a person’s death or injury.
Of course, a narrative stitched together from pieces of evidence was just that—a narrative. Legal studies scholarship has shown that far from existing in a rarefied sphere governed strictly by doctrine, legal narratives intersect with social reality (Brooks and Gewirtz Reference Brooks and Paul1996). Their claims to objective truth notwithstanding, judicial texts—including evidence, judgments, and even subaltern testimony—are embedded in structures of power that preserve hierarchies of race, class, and gender, and therefore deserve scrutiny (Amin Reference Amin1995). In colonial India, lawmakers’ attempts to circumvent the invisibility of custody by gathering objective evidence only coupled sovereign power to subtler, but more pervasive forms of power. Even as it recognized the exceptionality of the space of custody, judicial process had no means to “view” it or to penalize its violence, except through the workings of normal law, further entrenching exceptional power in normal spaces. As policemen being investigated for custodial violence drew on their local connections to marshal evidence in their favor, the ties between police power and the broader axes of class, caste, and gendered authority were solidified. In the process, state authority and the privileged status of witnessing subjects were simultaneously reaffirmed.
Police “impunity” in committing custodial violence was thus woven into the very fabric of judicial redressal; it was not simply a result of governmental apathy, as nationalist newspapers frequently claimed.Footnote 6 In fact, between the 1850s and the early twentieth century, the colonial government made several attempts to reform police functioning and streamline investigation into custodial violence. One result of these initiatives was that the police were carved out as a distinct arm of the executive branch—nominally equal but ultimately answerable to the magistracy. Consequently, a case of custodial death would be investigated by three separate agencies of government: the police themselves, but also the magistracy and the judiciary to which they were now accountable. Undoubtedly, there was collusion among members of the police, magistracy, and judiciary in several localities, ensuring that seemingly independent investigations turned into pure ritual, and I discuss this below. But, in addition, the use of the same evidentiary protocol across investigating agencies—a protocol that frequently failed to recognize custodial violence—made the punishment of torture harder. Thus, even as successive governments urged investigating institutions and individuals to adhere to objective standards of evidence, police personnel continued to go unpunished.
In response to public opinion, governments certainly addressed the issue of torture across the twentieth century. This was as true of the British government, whose legitimacy was predicated on its commitment to a putatively nonviolent rule of law, as of the postcolonial government whose hold on power directly depended on popular support. Yet, by restricting their attention to the limited time and closed space of custody, administrators artificially separated police violence from the world outside. Frequent tweaks to statutory regulation and investigatory practice—removing window bars from cells, instituting magisterial inspection of stations, mandating magisterial investigations independent of police ones—disregarded the fundamental ties between evidentiary protocol that privileged the (literate, respectable) elite and police force that targeted the (illiterate, unknown) subaltern. The resilience of investigatory procedure was further enabled by the continuities in the police organization in the first few decades after independence. As several scholars have noted, the transition from colony to democracy did not occur overnight, but was rather an extended process that began before 1947 and continued into the 1970s (Sherman, Gould, and Ansari Reference Sherman, Gould and Ansari2011; Kudaisya Reference Kudaisya2017; Prakash, Laffan, and Menon Reference Prakash, Laffan and Menon2018).Footnote 7 Birthed in the violence of the Partition of India, the new nation adopted several institutions of its colonial predecessor—including the police and the legal codes that informed policing—to ensure its stability and survival. Accordingly, the occurrence of custodial violence, the use of objective evidence to prosecute errant police personnel, and the poor rate of convictions—all of these survived India’s transition to independence.Footnote 8 Below, I unpack two examples each from the 1920s and the 1950s from over a dozen similar ones to explore the working of evidentiary protocol in the late colonial and early postcolonial eras.
INVESTIGATING A CUSTODIAL DEATH
The handful of government files labeled the “Koilpatti Torture Case” begin their story on July 14, 1923, when the police of Koilpatti station were called to Uppathur village, twelve miles away, to investigate the death of a woman belonging to the middling, but upwardly mobile, Nadar caste. Police suspicions were directed toward Mariappa Samban, a Christian Parayar (Dalit) from the adjoining village of Sankarapuram, whom the police located a week later, on July 22. Later accounts of what happened next diverge considerably. Mariappa Samban’s relatives said that he was arrested on July 22 and taken from their village to custody in Koilpatti town. But according to police narratives, Samban voluntarily went with the high-caste constable, Subramania Ayyar, to Koilpatti town. Here, he was allegedly free but kept under police surveillance for five days, and it was only on the night of July 26 that he was arrested. According to Sub-Inspector Sundaram Ayyar, once arrested, Samban agreed to turn approver and provide information regarding the murder—specifically, to show the police where jewels stolen from the murdered woman had been kept. Inexplicably, the police, including the sub-inspector and two of his constables, decided to set off that very night to Samban’s village to recover the stolen jewelry. They took the 8:45 p.m. train and followed it up with a four-mile cart ride to reach the village around midnight—too late to identify any property. Samban was confined for the night in a small, unventilated room owned by a local shopkeeper. The next morning, he was found in the room dead, hanging.
The slow wheels of bureaucratic justice were immediately set in motion. This was a consequence of much governmental intervention over the preceding two decades. Concerned by late nineteenth-century incidents of custodial death that had been ignored by the police, the government of Madras had amended procedure to make investigation automatic upon death in custody. For instance, in an 1895 case where a man of the criminalized Yerukula caste had died in custody, relatives of the deceased had run from pillar to post, complaining of torture to the local magistracy as well as to the district police superintendent, to no avail. No inquiry was launched, which provoked criticism from local newspapers. It was only then that the case came to the attention of the provincial government.Footnote 9 In the years after the National Police Commission of 1902, the central and provincial governments introduced, in stages, several measures to address the ineffectiveness of redress to torture: these changes were reflected in the inquiry that followed the Koilpatti custodial death of 1923. Earlier, while an inquiry by senior police officials was expected in cases of custodial death, it was not guaranteed. However, by the 1920s, a departmental investigation had to automatically and immediately follow a custodial death. Accordingly, the first act of Sub-Inspector Sundaram Ayyar when he discovered Mariappa Samban’s body was to inform the policemen at the Sattur police station, in whose precincts the death had occurred. This triggered an upward chain of police oversight into the case, via the deputy superintendent of police, Thoothukudi, all the way to the inspector-general of police for Madras Presidency. A second change that followed government deliberation in the early twentieth century was the requirement that an independent magisterial inquiry be conducted in all cases of custodial violence. As late as 1911, a magisterial inquiry into charges of police ill-treatment was only an ideal situation, with the government of India recognizing “the impossibility of laying down any hard and fast rules on the subject.”Footnote 10 By 1923, things were different. These changes were reflected in the Madras Police Orders, which declared a magisterial inquiry compulsory in cases of custodial death and grievous injury.Footnote 11 In accordance with these new regulations, the Sattur policemen telegraphed the Sattur stationary sub-magistrate on the morning of Mariappa Samban’s death; the magistrate reached Sankarapuram village that very afternoon to commence his inquiry into the death. This magisterial inquiry would run independent of the police inquiry, which was internal to the department.
The promptness of the magisterial inquiry notwithstanding, it was almost ten months before the final judicial verdict was delivered in the case against the Koilpatti policemen. The Sattur stationary sub-magistrate’s inquiry, which was concluded within a few days, found Sub-Inspector Sundaram Ayyar guilty. Although the sub-inspector was suspended from service at this point, a second magisterial inquiry was held the following month, this time by the slightly more senior Sivakasi sub-magistrate. In September, the highest magisterial officer of the district, the Ramanathapuram district magistrate, V. T. Krishnamachari, determined that the magisterial reports provided enough grounds for a judicial trial. Accordingly, the case was now transferred from magisterial to judicial inquiry, a process that was much slower and less in the government’s control. In addition to the normal delays that were inherent to the judicial system, additional ones were caused by the high-caste defendant Sub-Inspector Sundaram Ayyar’s skill in bureaucratic maneuvering. Mariappa Samban’s custodial death had entangled two district bureaucracies—the inspector charged was from the Koilpatti station, in Tirunelveli district, but the death had occurred in the Sattur station precincts, in Ramanathapuram district. Hence it was the Ramanathapuram magistracy that had conducted the initial inquiry, following which the case was assigned to a Ramanathapuram district court. Once the hearings had commenced, Sub-Inspector Sundaram Ayyar, presumably concerned that he was dealing with an unfriendly set of adjudicators, moved the appellate Madras High Court to transfer the case to the Tirunelveli district court. He was successful in this, and the legal proceedings had to recommence. The defendant then petitioned the government of Madras to withdraw the entire case, claiming that the evidence gathered in the magisterial inquiries had been inadequate for a charge. This time he was not successful. In fact, Fort St. George, annoyed by his delaying tactics, pushed for a speedy resolution of the case. “The petitioner has been trying to approach me through various persons for the revocation and it is the more necessary to push on,” commented one bureaucrat.Footnote 12
Sundaram Ayyar’s adeptness in assessing the Ramanathapuram court’s mood and negotiating a transfer to more familiar terrain, that is, the Tirunelveli court, may have saved him from a prison sentence, since the Tirunelveli joint magistrate, M. Shahabuddin, acquitted him of all charges.Footnote 13 Both the Ramanathapuram magistracy and the Tirunelveli court had heard the exact same evidence in the case: the first pronounced an overwhelming verdict of guilt, a second an equally unambiguous one of innocence. One reason for this gulf was that the magistracy’s mandate was merely to see if there was enough evidence to criminally prosecute a policeman. The judiciary, on the other hand, had to prove guilt beyond reasonable doubt. This was a serious procedural issue that resulted in most policemen being acquitted when charged with custodial violence. A second, related reason was that the magisterial investigation followed an inquisitorial approach, with an individual magisterial officer gathering the various pieces of evidence he needed to build a case. The judicial courts, on the other hand, followed an adversarial system where a prosecution case built on always-incomplete evidence was open to easy attack. Judicial convictions were therefore considerably rarer than magisterial ones. These caveats explain a gap in the degree of conviction reached by the magistrate and the judge, but they don’t account for their diametrically opposite determinations, which stemmed instead from their differing social positions and biases.
Faced with a wide variation in judgments and frequent acquittals, colonial lawmakers and administrators embarked on the impossible task of curbing judicial subjectivity, advocating for the use of objective evidence in custodial violence cases. In particular, lawmakers and administrators settled on three forms of evidence: the testimony of impartial observers, medical examination, and written records. The seeming objectivity of these forms of witnessing was historically specific and further consolidated through practices like witnessing. The three forms of evidence embodied, respectively, emotional detachment, scientific expertise, and automatic procedures for registering data as epistemic virtues (Daston and Galison 2007, 29). These virtues would suppress the value of familial attachment and memory in testifying to violence, as will be seen in the cases discussed below. Furthermore, Lorraine Daston and Peter Galison write that objectivity is not only an epistemology, it is also a way of defining the self: “epistemology and ethos are intertwined” (2007, 4). Accordingly, objective evidentiary protocol not only determined the outcome of custodial violence cases, it also helped produce witnesses to violence as socially privileged subjects—by reinforcing their impartiality, knowledgeability, and literacy.
Police Standing Order 145, which followed the guidelines set by the CCP to detail the procedure to be followed in a magisterial inquiry into a custodial death, included as its key elements: an inquest “in the presence of panchayatdars,” a postmortem examination of the body, and a perusal of police records to verify the date of arrest and physical condition of the deceased at the time of arrest.Footnote 14 In other words, medical science testified to the state of the deceased’s body, panchayatdars (members of the panchayat, or village council) testified to police action outside the station, and police conduct inside the station was accounted for by their own writing—station journals, crime registers, attendance records, and so on. Actual magisterial inquiries in the cases I found in the archive, including the inquiry into the death of Mariappa Samban in 1923, largely followed this three-pronged approach, with its reliance on witness testimony, medical evidence, and police writing. In the investigation into Samban’s death, for instance, the Sattur Sub-Magistrate examined twenty-nine witnesses toward piecing together key actors’ movements through several days and across several sites: from Uppathur village, where Samban was apprehended on July 22, from Koilpatti town, where he spent the next five days, and from Sankarapuram village, where he died on July 27. In addition, the magistrate sent Mariappa Samban’s body to the Sattur medical officer for a postmortem report and perused police records from the Koilpatti station. The very process of gathering this evidence produced witnessing subjects as socially privileged actors and made explicit the ties of power that linked state actors (the police) to para-state and nonstate actors (panchayatdars and medical practitioners). Below, I examine the three forms of evidence in sequence.
“Respectable” Witness Testimony
The wording in section 174 of the CCP and Police Standing Order (PSO) 145, both of which provided the guidelines for investigations into custodial deaths, raises immediate concerns about the dynamics of power embedded in the process of judicial redress. Section 174 required the magistrate to hold an investigation “in the presence of two or more respectable inhabitants of the neighbourhood” while PSO 145 required the magistrate to conduct the inquest “in the presence of panchayatdars and record their opinion” (CCP, sec. 174).Footnote 15 While the choice of panchayatdars explicitly privileged males belonging to higher castes and owning some property (for much of the twentieth century), the criterion of respectability implicitly privileged the same social group. Conversely, the very act of participating in, and giving the stamp of respectability to, proceedings that involved agents of state authority imbued certain members of the community with power, invariably reinforcing the privileged social position held by upper-caste men.
Consider the inquest that followed Mariappa Samban’s death in July 1923. It was held in the presence of the Sankarapuram village panchayatdars—of whom four belonged to the Nadar caste and one was a Brahmin. Brahmins ranked highest in the caste order. Although Nadars did not occupy an especially high social position, they were certainly ranked higher than Parayars, the “untouchable” Dalit caste to which Mariappa Samban belonged. Further, their predominance in the local panchayat suggests that they held some capital in this particular village.Footnote 16 Hence, the “public” inquest, which in contemporary England served as a site where members of the community could check the dominance of state bureaucrats and medical experts (Burney Reference Burney2000), did not quite fulfill the same role in colonial India. Instead, it bound the state machinery closer to native elite. This alliance was in evidence following Samban’s death, which the Sankarapuram panchayat unanimously declared to be “a case of suicide by hanging.”Footnote 17 Subsequent to the inquest, the investigating magistrate interviewed other residents of the village to trace the deceased’s last movements. Here too structural inequality—manifested in the social geography of Indian villages, where individual streets were occupied by members of one caste, with Dalit streets located some distance away from caste-Hindu streets—came into play. Since Samban had been (illegally) held in a room owned by a Nadar on the eve of his death, only Nadar witnesses could speak to his last hours. Significantly, the victim of the original murder for which Samban had been interrogated also belonged to the same Nadar caste. Sub-Inspector Sundaram Ayyar’s choice to confine Mariappa Samban in the Nadar street now appears strategic. He possibly trusted the inhabitants of this street to not give much away in an inquiry because he presumed their hostility to Mariappa Samban, a suspect in the murder of one of their own. Indeed, the nine Nadars who were questioned did not prove to be particularly helpful: the frustrated magistrate noted that they gave him “precious little information as to what really transpired on the night” of the death.Footnote 18 My point here is definitively not that an individual Nadar could not but behave in conformity to his caste. It is rather that police physical violence occurred in nexus with broader structural violence—in this case that of caste inequality. Equally, caste privilege was asserted through practices that tightened its ties to sovereign violence. Of course, Sub-Inspector Sundaram Ayyar may well have coerced the Nadars into silence, an option that appears even likelier in the case of Dalit testimony during the investigation. Discussing the incident in the weeks after, one police officer noted that
the deceased’s relations were also examined and Rev. Mass Roman Catholic European Missionary was also present at the inquest as the Sambans belonged to that Mission. The opinion of the panchayat was unanimous that death was due to suicidal hanging … The Sub Magistrate, at the time of the inquest, asked Rev. Mass and the deceased’s relations if they had any complaint against the Police and they had none.Footnote 19
While the officer mentioned this to demonstrate his subordinate’s innocence, reading the text against the grain suggests that the police officer either facilely interpreted the Parayars’ silence at the inquest as their acceptance of the high-caste panchayat’s verdict of suicide, or converted Parayar speech into silence because their words were not legally legible as testimony (for instance, cries of grief or anger rather than a formal complaint). Finally, the officer makes a pointed reference to the missionary’s race, suggesting that his whiteness lent more strength to his perceived objectivity and rendered his silence at the inquest more valuable. Testimony was not produced equally, but as a function of the witness’s racial, caste, and gender identity.Footnote 20 Equally, race, caste, and gender privilege were reproduced through acts of witnessing.Footnote 21 In another example from the same case, the judge dismissed the evidence of Samban’s relatives who attested to his arrest by the police on July 22. Instead, he privileged the testimony of Kichappa Naick, a high-caste local power broker, who vouched for Samban’s freedom over the next five days. On the whole, the value of “respectability” in testimony served to reinforce the bonds between Sub-Inspector Sundaram Ayyar and an array of witnesses—including his subordinates, other government employees, and village power brokers, while simultaneously marginalizing the voices of those closest to the deceased—Mariappa Samban’s Dalit family.
Even more than in cases of custodial death, witness testimony mattered in nonfatal cases of custodial violence, where the body could not emphatically speak to the violence it had endured.Footnote 22 In July 1929, Abdul Muthaliff, a private individual, filed a case against Sub-Inspector Nagabhushana Naidu of Ramanathapuram district for wrongful confinement and causing injury. The plaintiff, a local tollgate operator, claimed that the sub-inspector had wrongfully arrested him and three of his subordinates, kept them overnight at the police station, and tortured them over the course of several hours, before releasing them. A quick point of note in this file is that this was a civil suit filed by the alleged victim of violence against the policeman, not a criminal charge filed by the state. This appears to have been true of most cases where the charge was of custodial violence resulting in injury, rather than death.Footnote 23 To that extent, governmental efforts to make a magisterial inquiry automatic in cases of custodial injury as well as custodial death were not successful through much of the twentieth century.
In any event, the case did get tried. But once it entered the judicial arena, similar problems of evidentiary protocol as seen in the example of Mariappa Samban surfaced. Like Sub-Inspector Sundaram Ayyar, Sub-Inspector Nagabhushana Naidu sought to physically distance himself from his accuser and from the space of custody, claiming in his testimony that he had been absent from the station on the night of the arrest, returning only the next morning. But unlike in Sub-Inspector Ayyar’s trial, the alleged victims of violence were themselves witnesses in the case against Sub-Inspector Naidu. Consequently, this trial played out as a more direct contest between two competing, mutually exclusive, sets of evidence. In this contest, the participants on the prosecution included the victims of violence as well as other eyewitnesses. (This was possible because, according to the prosecution, after physically abusing their victims inside the station, the policemen had continued to do so for two full hours “in the verandah” outside, thereby inviting a large body of spectators.Footnote 24 ) The prosecution witnesses’ narrative was that torture had occurred—each witness had either been subject to torture or had seen it at close quarters. The defense narrative was that the charge of torture was fabricated in retaliation for the plaintiffs’ having been charged by the same policemen in a case of assault a few days earlier.Footnote 25 The invisibility of custody thus rendered testimony extra valuable, enabling policemen as well as nonstate actors to use their social networks in articulating power. Thus, either Sub-Inspector Naidu used his relationships to prove that he was away from the station and to discredit the prosecution witnesses, or the plaintiff, Abdul Muthaliff, used his relationships to claim that he had been tortured in a space into which not many had visibility.
The judge presiding over the trial, Sub-Divisional Magistrate C. T. Mudaliar, ruled in favor of the defending policemen, acquitting them of all charges. The judge’s assessment of the testimony reveals how the category of respectability reaffirmed power along the axes of class and community. A few of the prosecution witnesses were employees of the plaintiff, Abdul Muthaliff. The judge dismissed their testimony out of hand: “there cannot be any doubt that these are all highly interested witnesses,” he wrote. But the judge appeared less concerned about the possibility of the subaltern witnesses having been coerced into testifying a falsehood than about their status as servants and as Muslims. He continued, “PWs 2 5 and 6 are all Mahammadans (sic) like PW1 and his master. They are men of no status.”Footnote 26 The relatively vague concern with “respectability” enshrined in the CCP translated in the judge’s verdict into a fairly direct association with class and community. Moreover, even as the judge accounted for the possibility of social networks and bonds of community being exploited in the case against the police, he sanitized the workings of police power and the extent to which policing too was entrenched in local relationships. The prosecution had responded to the judge’s criticism that it had no independent witnesses with the claim that the police had intimidated them. The judge discounted this complaint, since “there (was) nothing on record to countenance any such suggestion.”Footnote 27 Ironically, the complacence with which the judge dismissed all of the prosecution evidence suggests that he himself might have been part of the policeman’s local network of relationships, as in the case of Sub-Inspector Sundaram Ayyar and Magistrate Shahabuddin discussed earlier.
The judge’s disbelief of the prosecution witnesses extended to their avowal of pain. The witnesses testified that the policemen had whipped them, before handcuffing two of them and making them bend down without letting their hands touch the ground. Two other victims were then made to sit on their backs, while the last two were told to sit in front of them with their hands folded in a suppliant posture. The judge, however, was skeptical, and spoke repeatedly of the improbability of anyone’s tolerance of such pain.
It looks improbable that PWs 1 and 3 could have induced [sic] the ordeal of bending themselves down with a fairly heavy load on their backs continuously for two hours, especially after they had been lashed with the whip, beaten and kicked. While in the lock up further they were starving from the night of 16-7-29. It is also improbable that if really PW1 had received so many hard strokes all over his body with a whip of the kind described by him he would have been in a position even to move about.Footnote 28
In her study of the judicial treatment of rape in colonial India, Elizabeth Kolsky (Reference Kolsky2010a) points out that Indian victims of rape faced a double burden when they sought redress: the presumption of having brought a false charge and the burden of native unreliability entailed by Britain’s cultural othering of India. Both of these burdens weighed down Abdul Muthaliff and his associates too, who were presumed to be prone to perjury and to have brought a false charge upon the policemen. But, in addition, Kolsky draws to our attention a specifically gendered aspect to the dismissal of rape victims, which was that a woman who mentioned rape was already seen as untrustworthy in late nineteenth-century India. While Kolsky’s study of rape trials reveals the ways in which gender operated as an axis of power in colonial India, a study of torture trials reveals the way in which class operated as an axis of power through much of the twentieth century. Judge Mudaliar’s disbelief of the witnesses’ pain was closely related to his scorn for their social position, as expressed more than once in his judgment. Discounting again their statements about the extent of physical abuse, he wrote that the witnesses did not “appear to be men having much regard for truth and to have given before the court quite a straightforward account of what actually occurred.”Footnote 29 Speaking about torture had already tainted the accusers with dishonesty.
Elaine Scarry’s The Body in Pain: The Making and Unmaking of the World (1985) vividly describes the difficulty of expressing physical pain, the gap between the certainty of pain experienced by the person in pain, and the impossibility of anyone else knowing for certain that another body is experiencing pain. “Pain,” she writes, “comes unsharably into our midst as at once that which cannot be denied and that which cannot be confirmed” (Scarry Reference Scarry1985, 4). Perhaps the judge’s dismissal of the victims’ pain stemmed from this broader problem of human communication, but it certainly also drew on his biases about class and community. These biases were accentuated by how witnesses framed testimony about pain, focusing on details and tropes of violence: the kicks of the inspector, the hard contact of his boots, the unbearable nature of the pain, the cries of pain (the Ayyo Ammas). At times, this attention to the actual pain came at the cost of precise details about time and place relating to the event, enabling judges to use minor factual discrepancies to dismiss witness testimony as subaltern hyperbole, as did Judge Mudaliar in the case above. However, the emphasis on violence in victim testimony is not so much a product of subaltern exaggeration or fabrication as it is a reflection of the extent to which “intense pain … destroys a person’s self and world … Intense pain is also language-destroying: as the content of one’s world disintegrates, so the content of one’s language disintegrates” (Scarry Reference Scarry1985, 35).
Judicial dismissal of “subjective” witness testimony was especially facilitated by the court’s high reliance on what was seen as objective medical evidence. Countering the “ayyo” of a victim, the defense presented cold details about the injury (“an oblique incised wound in front of lower third of the left leg about 4 inches long”), its cause, and its timing. In this case, for instance, the government doctor, Sub-Assistant Surgeon Rajaratnam, testified that the victims’ injuries were simple and were likely to have been caused a week prior to the date of the alleged torture by a cane, or even by the victims themselves through the application of a vegetable poison. Citing the discrepancy between the doctor’s testimony and the victims’ ostensibly exaggerated accounts, the judge dismissed the latter. A judicial process that privileged expert opinion over subjective experience helped construct the medical expert as a superior legal subject, while erasing the voice of the victim of state violence. More directly, the privileging of medical jurisprudence enabled custodial violence charges to be consistently dismissed through the twentieth century—not only in cases like this, where the victims had survived (and therefore seemingly did not carry sufficient trace of violence on their bodies) but even in cases where police violence was followed by a fatality. I discuss this in the following section.
Medical Expertise
Forensic medicine was a venerable branch of forensic science in the metropole, achieving courtroom credibility earlier in the nineteenth century than did other branches of the field (Adam Reference Adam2016). Its importance was amplified in the colony, which was subject to orientalist tropes of native unreliability and systemic perjury. “Expert medical testimony, important in every country, is especially so in the East, where it is often the only trustworthy evidence on which hangs the liberty or the life of a human being,” pronounced Lyon’s Medical Jurisprudence for India (Waddell [Reference Waddell1888] 1921, 2).Footnote 30 By the end of the nineteenth century, medical evidence had acquired paramount status in criminal investigation in British India. Consequently, even though the CCP presented the public inquiry and the medical examination as parallel means of investigating suspicious deaths, in practice, the medical report overrode other forms of evidence. That said, the consolidation of medical evidence was by no means an uncontested process. For well over a century, government officials, victims of police violence, and even doctors noted that potential ties between police personnel and medical practitioners impaired the objectivity of medical evidence.Footnote 31 The possibility of collusion between police and doctor in criminal investigations conducted by the police increased manifold in the case of investigations conducted into police misconduct. Indeed, a perusal of torture inquiries shows that medical evidence was neither objective nor reliable in adjudicating custodial violence. The network of local relationships in which policing was entrenched typically included the government-appointed medical officer, rendering medical evidence in custodial violence investigations suspect. Furthermore, medical evidence did not meet the burden of proof required in courts, rarely proving police guilt beyond all reasonable doubt. Ironically, the Madras government’s measures to address the issue of police cover-ups of custodial death in the early twentieth century only reinforced the primacy of medical evidence. As mentioned earlier, the government had succeeded in making inquiry automatic upon a death rather than requiring an explicit complaint, thereby bringing to light fatalities that otherwise may have been buried. It had also shifted the investigating agency away from the police toward the magistracy and the judiciary. The very availability of archival records investigating Mariappa Samban’s death stands testament to the success of these initiatives. On the flip side, these efforts assumed that policemen, as individual bad actors, were responsible for custodial deaths and their cover up; impartial judges with access to objective, in other words, medical, evidence would denounce the practice.
The active choice—across government dicta, legal commentaries, and court judgments—to privilege scientific evidence over nonstandardized forms of testimony in torture investigations was no accident. Rather, it fit within a broader discourse of power that valued economic development, the forms of knowledge that measured it, and the liberal personhood it assumed (Ludden Reference Ludden and Dirks1992). Importantly, both the colonial and postcolonial governments pursued this development agenda, which played a key role in legitimizing their power. Historian David Ludden argues that in so doing, state authority sanctioned the endurance of scientific and social scientific expertise as objective and essential forms of knowledge, often at the cost of subaltern knowledge that did not align with development goals. While certainly debates around policy began to include participants from a broader social background after independence, their “cognitive terrain remained remarkably stable” (Ludden Reference Ludden and Dirks1992, 251). Accordingly, the procedural privileging of medical expertise over individual voice in inquiries into custodial violence survived the political changes of 1947. After India won independence from colonial rule, the new nation made a commitment to correcting historic caste inequalities. This mandate was especially strong in Madras province, where, building on the strength of a long and vibrant anticaste movement, caste-based political parties came to power as early as 1967. But even as some lower caste members entered professions like medicine that had earlier been less accessible to them, this did not impact the working of disciplinary power itself. Also, Dalits, the lowest caste group, were not strongly represented in these early political waves.Footnote 32 Consequently, for several decades after independence, Dalits faced caste antagonists who also wielded the megaphone of objective expertise.
An investigation into a custodial death from the early postcolonial era illuminates the resilience of criminal procedure within the courtroom, amid a broader political context that was shifting to include Dalit voices. Andi Kudumban was a sixty-year-old Dalit (Pallar) laborer who died in the Ottapidaram Police Station in Tirunelveli on March 28, 1959. Footnote 33 At 8:00 a.m. that morning, following a complaint from a local watchman that he had seen Kudumban stealing some cotton from the field, the inspector had him arrested. He then left the station on work, consigning the day’s affairs to the station writer, Pandian Pillai. Footnote 34 Around 11:00 a.m., the writer sent the two constables who had the morning shift home, earlier than scheduled, and bid the constables of the second shift to come in around 2:00 p.m., later than their scheduled time. This left him and Kudumban alone in the station for a few hours. Around 1:30 p.m., three workers at a construction site opposite the station heard cries of pain. They looked up to see the writer beat and kick Kudumban in the station verandah and then drag him into the lockup. When the constables of the afternoon shift came in, one of them entered Kudumban’s cell to find him dead, hanging from the crossbars by the door. The writer registered the death and informed his superiors, triggering magisterial and departmental inquiries into the death. Meanwhile, the construction workers had spread the word in the village and a crowd had gathered outside the station. When it became known that Kudumban had been found dead, his nephew directly telegraphed the Minister of Harijan Welfare in the capital city of Madras, demanding an inquiry into the “murder.”Footnote 35 Within two days, the telegram had been circulated among multiple government departments, ensuring that local police and magisterial officials conducted the inquiry promptly and carefully. The very fact that there was a Ministry of Harijan (Dalit) Welfare, which could be contacted unmediated by a victim of police violence, speaks to the changed priorities of a democracy. That said, institutional procedure, sanctified as objective, remained impervious to political discourse, as seen below.Footnote 36
The Thoothukudi revenue divisional officer (RDO), who received information about the custodial death that night, commenced his magisterial inquiry at 9:30 a.m. the next morning. The inquest was witnessed by seven Panchayatdars: five of them were caste Hindus who agreed with station writer Pillai that Andi’s death was a case of suicide.Footnote 37 The sixth, Paul Ramasamy, a Christian Dalit, attributed the death to police violence, while the seventh, also a Dalit, did not opine. The inclusion of Dalits in the village panchayat was another sign of their increased power in the first decade after independence, although it would be the 1990s before caste and gender exclusion in panchayats was addressed systemically.Footnote 38 Yet, they were in the minority and the caste-Hindu voice was still the dominant one in investigating a Dalit’s death as of 1959. In addition to conducting the inquest, the RDO examined the lockup, sent the body for a postmortem examination, and held a day-long inquiry, with depositions from seventeen witnesses. Much of the evidence gathered during this process suggested that police violence had caused death. Most damning was the RDO’s observation that the height of the cell vastly reduced, if not eliminated, the chance of suicide. The crossbars from which Andi Kudumban was found hanging were only ten inches higher than the victim, implying that if he had tried to kill himself, he would have instinctively held on to the crossbar and saved himself. Witness testimony, which included statements from constables and the construction workers who had witnessed the assault, strengthened the case against the station writer. The constables indicated that the station writer had actively maneuvered to keep them away and have the station to himself for the crucial two hours. The construction workers—Muthusami, Ayyasami, and Santhanam—were part of a larger crew working on police quarters opposite the station. Around 1:30 p.m., the rest of the workers had gone home for lunch, but the three, who had brought food from home, had stayed back. Upon hearing sounds, they had looked up to find the “Writer-Sir” (Writer Ejaman) beating Andi.Footnote 39
The final piece of the evidence was the medical report. The nephew of the deceased had requested that the body be sent to the hospital in Tirunelveli, a large town at some distance from the village, for the postmortem. This was not unusual; popular suspicion that the postmortem report might cover up police violence in the wake of a fatality was quite common.Footnote 40 Unfortunately, the RDO, despite being sympathetic to the deceased’s cause, denied the request in the absence of a bureaucratically legible justification (Gupta Reference Gupta2012). The ostensible objectivity of scientific witnessing meant that personal relationships could not cloud it, at least technically. As expected, the doctor at the neighboring hospital noted no signs of external injury and pronounced the cause of the death to be asphyxiation, caused by hanging. All the same, given the strength of the rest of the evidence, the RDO was reluctant to give credit to the doctor’s report. The government of Madras shared his concerns, noting in a confidential memo that this was “a case of homicide,” and that the medical report “should be viewed with a certain amount of suspicion.”Footnote 41 This was a far cry from Lyon’s pronouncement that medical testimony was the “only trustworthy evidence” in the East. Indeed, the very sanctification of medical expertise at the cost of oral testimony had bred a network of power that brought the police and the medical expert together in tight embrace.
The exculpatory medical report notwithstanding, the magisterial inquiry had produced enough circumstantial evidence for the case against the station writer to move to the next stage, the judicial court. However, the postmortem report cast its shadow here as well, and Tirunelveli Assistant Sessions Judge Bhavani Sankar acquitted the station writer of all charges. The judge’s remarks reflect either the unproblematic privileging of medical expertise over subaltern testimony or the extent to which judicial actors who were also part of the same network of power as the police and medical experts could deploy the sanctity of medical evidence to their benefit. The judge discounted the testimonies of the three construction workers as lacking clarity and consistency and claimed that “the main evidence is that of the post-mortem certificate … The opinion of the doctor was that the man died by asphyxiation. So that, the evidence of PWs 6 to 8 that they saw at 1:30 pm Andi Kudumban being kicked by the station writer must be false.” Footnote 42 Station writer Pandian Pillai was acquitted of all charges in court.
Rule of Paper
In addition to the public inquiry and the medical examination, the final type of evidence used in investigations of custodial violence was police writing. Unsurprisingly, this too was enmeshed in the workings of violent power. Historical scholarship has shown that writing, intended to allow distant European officers to police the working of their countless native intermediaries, was a central instrument of colonial rule (Raman Reference Raman2012). Writing was especially crucial in policing the native policeman who, on the one hand, had legitimate access to violence in his role as enforcer of the law, and, on the other, was perceived as racially and culturally prone to illegitimate violence. To overcome this discordance, colonial policemen were expected to provide accountability by committing to written record their various tasks—comprising not just surveillance and investigation of crime, but even their own daily movements. Hence the position of the “head constable station writer” who would perform the clerical work of a station.
Even as colonial administrators instituted bureaucratic writing to wrest accountability from their racially othered subordinates, their ever-present fear that natives were prone to forgery led instead to an entire economy of colonial power hinged on assessing authenticity, as Bhavani Raman (Reference Raman2012) has shown. Among other changes, the East India Company had substituted the precolonial practice of juridical attestation by socially privileged groups (such as scribal castes and landed notables) with newer writing and signature practices. On the one hand, this meant a shift from a social structure where power rested with certain groups, based on their birth, to a more modern, Foucauldian one where power was determined by individual subjectivity, vested in the seemingly universal practice of writing. On the other hand, the fear of native duplicity meant that writing had to be continually policed, so that governance became the policing of attestation. In this context, the production of text was power, and the newly centralized spaces of production of juridically admissible text—such as the police station and other government offices—were spaces of power. Police writing fit precisely in this interstice between the duplicitous production of text and the state’s attempt to monitor it. In investigations into custodial violence, writing did not fulfill its stated and impossible objective of providing a continuous account of police actions. Instead, it allowed police personnel to craft alternative narratives of the crucial twenty-four hours of custody, but narratives that were stamped by judicial process as authentic by virtue of being produced within the police station.
Bureaucratic writing retained its resonance as a form of power in postcolonial India. Indeed, as the new republic embarked on its development goals through an elaborate bureaucratic apparatus, paper trails served as key witnesses to progress. Simultaneously, privileging the world of paper over the real world routinely hindered progress; “writing is a key modality by which structural violence is inflicted on the poor,” writes Akhil Gupta (Reference Gupta2012, 141). In foregrounding the problems of paper, anthropologists challenge a popularly constructed binary between good development policy and bad implementation, which allows elites to blame the failure of development on low-class functionaries rather than on the very systems of governance (Mathur Reference Mathur2016). Similarly, I suggest that the failure of written police records to bear witness to the events in custody cannot solely be attributed to the morality or training of police constables. Instead, we need to pay attention to a judicial system that bestows undue weight on police writing at the cost of subaltern testimony, thereby structurally elevating police power. Police writing was not merely a record of police action; it was, in itself, an act of police power (Gupta Reference Gupta2012, 143).
To continue with the case of station writer Pandian Pillai, on the morning of Andi Kudumban’s death, Pillai stopped by the homes of the two constables who were assigned the afternoon shift, asking them to come later than usual, at 2:00 p.m. However, when the constables, Shanmugam and Muthiah, reported for duty, he asked them to mark their entry in the station sign-in sheet as 11:00 a.m., reasoning that they could thereby collect two days’ worth of allowance instead of one. According to their testimony, both agreed to this (Muthiah after some protest). Once he had signed the sheet, Shanmugam went to check on Andi Kudumban, only to find him dead. According to the books, however, he had been in the station for the preceding three hours. Further, once constable Shanmugam reported the death to station writer Pillai, Pillai wrote the First Information Report (FIR) registering the time of report of death as 11:00 a.m. Judge Sankar used the timing recorded in both these documents (in addition to the postmortem report) to discount the construction workers’ testimony that they saw Andi being beaten at around 1:30 p.m. It required some verbal gymnastics, though.
That this discovery (of the dead body) was made at 11 o’ clock is apparent from the half-made entry in Exhibit P4 and Exhibit D18. The correct time was entered there and the evidence of the constable who had made this entry that he made the entry at 2 pm mentioning the time as 11 am must be false and seems to be an adjusted and artificial evidence … so that the First Information Report sent at 11:30 am and recorded at 11 am is absolutely correct.Footnote 43
Pillai’s writing did earn him some penalty, nonetheless. Although the court acquitted him, the police department independently conducted disciplinary proceedings against him, to unearth a couple of minor documentation errors he had committed during the case. For these errors, Pillai’s salary increment was frozen for two years, in a retaliatory use of documentary authority by senior police personnel against Pillai.
Police writing played an important role not only in showing, for judicial purposes, who was inside the station, but also in tracking absences from the station. In every example discussed in this article, the sub-inspector of the station proclaimed for himself as much distance as possible from the scene of violence. For instance, Sub-Inspector Kasi Rajan of Ottapidaram station, where Andi Kudumban died, alleged that he had been absent from the station “for investigation of a graver crime” through the fateful day, from 8:00 a.m. to 4:00 p.m.Footnote 44 This motif is a recurring one across inquiries into custodial violence. In the investigation into the death of Mani, a boy from Melur town who had died after injuries received in custody, the sub-inspector (also named Mani), who was the principal accused, defended himself in the magisterial inquiry by claiming total distance from custody. For good measure, the sub-inspector claimed that he had been away from the station from 9:30 a.m. on the morning of the arrest until 8:45 p.m. the next day, “as he was busy investigating various cases and that he had not even seen the boy.”Footnote 45 However, three other boys who had been arrested along with Mani claimed that the sub-inspector had been present in the station and had kicked Mani for disobedience. To reconcile the contradictory evidence, the magisterial officer examined other police records of the relevant two days, to observe that the sub-inspector had, in fact, signed other internal documents on the day of the arrest (when there had been no impending investigation, since the boy had been sent back home, seemingly in reasonable health). Although the decision in this case went against the Sub-Inspector’s interests, documents typically functioned as material objects of power that allowed those in control of paper to dictate stories (Hull Reference Hull2012). The level of detail Sub-Inspector Mani summoned to prove his absence on the relevant day points to his belief in the power of paper to create juridical truth. In his deposition to the magistrate, he mentioned half a dozen cases he had ostensibly been investigating in different villages over the two days. Importantly, he referred to the cases not by name but by their recorded case number, invoking the prestige of judicial documents to bolster his story. The local magistracy determined that the sub-inspector’s evidence “betray(ed) an undue anxiety” to prove that he had not been in the station, but that the charge of custodial violence was farfetched. Accordingly, the case was not taken to the courts, but instead referred internally to the police department for disciplinary action. Sub-Inspector Mani received a censure for having fudged police records.
CONCLUSION
Police custodial violence against marginalized populations and its routine exoneration are by no means unique to India. Scholars have written about the systemic violence practiced against indigenous people in the settler colonies of Australia and Canada and against blacks in the United States and the United Kingdom. Far from being aberrations attributable to errant police officers, custodial violence is structurally linked to the forms of caste, class, race, and gendered power that permeate society and manifest in judicial procedure. Sovereign violence separates those that the state and society together recognize as full citizens from those that are lesser citizens (Das and Poole Reference Das and Deborah2004, 13; Klippmark and Crawley Reference Klippmark and Karen2017; Loader Reference Loader2020). Accordingly, it is not only individual police officers, or even the police institution as a whole, who are responsible for custodial violence. Rather, an entire web of state and semistate actors, including lawyers, medical professionals, and politicians, are complicit in custodial violence (Ralph Reference Ralph2020; Lokaneeta Reference Lokaneeta2020). To this list, I add the average citizen, whose very act of witnessing violence produced them as a “normal” subject (impartial, literate) with political rights in colonial and early postcolonial India.
Indeed, it is not only custodial violence that marks certain citizens as lesser—in India or elsewhere. Tragically, the very process of investigation into violence reinforces social and political inequalities to remake privilege along the lines of race and gender. Far from retrieving the truth of custody, inquiries serve to create alternative, palatable narratives about custodial violence (Razack Reference Razack2015). First, they present custodial violence as aberrations and state violence as an exception, thereby legitimizing the institutions of the law and erasing the systemic nature of the killing from the judicial record. Second, trials narrativize difference between those subject to violence and everyone else, so that the former are represented as particularly susceptible to death. As Sherene Razack (Reference Razack2015) points out in her study of inquests into indigenous deaths in Canada, trials go as far as to shift the blame for the death on to the deceased, the actual victims of violence. Here, trials present a justificatory narrative for state violence by suggesting that indigenous people are not suitable for modern society. The same tale emerges from Australia as well, so that trials present indigenous persons as drunkards, drug addicts, liars, physically compromised, or mentally ill (Klippmark and Crawley Reference Klippmark and Karen2017).Footnote 46 Certainly, individuals—in their capacities as lawyers or doctors—resort to these stereotypes, thereby “tainting” criminal procedure. For instance, when Ms. Dhu, the indigenous woman whose custodial death Klippmark and Crawley investigate, complained of pain in her last hours, doctors dismissed her words as exaggerated. But the ubiquity of these judgmental lapses indicates that individuals are part of a social fabric that reinforces these stereotypes; in fact, stereotypes gain life from their repeated invocation by individuals in countless situations such as trials. More insidiously, investigatory procedure is itself permeated by these discourses of power, so that the words of a medical expert or the writings of a policeman have more value than those of the subaltern victim of violence. The words of those with social power have more judicial legibility than those without. Conversely, persons with judicial visibility can remake their power more easily than those without can resist it.
The intimate ties between investigative procedure and broader discourses of power explain the continuity of both torture and the acquittals that follow charges of police violence. In this concluding section, I signal to this continuity by examining the history of torture in democratic India. As is commonly known, in the face of rising political opposition, Prime Minister Indira Gandhi declared a national state of emergency in 1975. The ensuing twenty-one months saw a range of human rights violations, including custodial violence. The excesses of the Emergency, combined with the ascendance of the international human rights discourse in the 1970s, made urgent the need to address torture. Once the Emergency ended, the new government that came to power targeted custodial violence as a key area for reform, at the central and state levels. However, the Indian government’s efforts—as evidenced in executive orders and in judicial judgments—focused more on safeguarding persons in custody, and, in the event of injury, providing recompense to victims of violence, than it did to amending prosecution procedure. Political scientist Jinee Lokaneeta (Reference Lokaneeta2020) points out that these safeguards that were newly instituted did not end torture; to the contrary, they promoted a culture of bureaucratic accounting that masked state violence. Likewise, the attempts to modernize interrogation by making it more “scientific”—through the use of medically dubious techniques including narcoanalysis and brain scans—merely continued torture by another name.Footnote 47 Through this era of reform, investigatory practices themselves remained largely unchanged, privileging respectable witnesses, medical expertise, and police writing. Consequently, the meager record of police convictions continued.
Alongside the emergence of voices protesting police violence, the second half of the twentieth century also witnessed some shuffling of social hierarchies in the Tamil region. Specifically, the power of the highest castes in the early twentieth century gave way to that of elite, urban, non-Brahmin castes as well as mid-ranking rural castes (but not Dalits). To that extent, those who fit within the category of “respectable witness” shifted to accommodate lower castes. However, the category of respectability itself was not erased from judicial procedure. Further, while caste hierarchies were realigned, those of class and gender remained in place to anchor shifting definitions of respectability. A 1990s inquiry, into the custodial death of Parvathy Thevar, starkly illustrates the adaptability of evidentiary norms to changing discourses of power. In this investigation, witness testimony and medical expertise affixed themselves to sexual morality, an issue that became a serious police concern only after independence and especially toward the end of the twentieth century.
On the evening of July 1, 1995, Parvathy Thevar, a twenty-four-year-old female wage laborer, was brought to the All-Women Police Station in Thoothukudi town for questioning, following a report that she was having an affair with a married man.Footnote 48 At around 1:30 a.m. the next morning, she was found dead, hanging from the beam in the station toilet. The government instituted a public inquiry into the death, following pressure from local representatives of the Communist Party, its women’s wing, and the National Human Rights Commission. The brazenly spurious inquiry exonerated the policewomen charged with torture. The investigating officer, a retired judge, drew attention to the fact that the deceased had been married twice and was now conducting an affair with a third man to explain her mental state, which, he argued, had pushed her to commit suicide. Likewise, he challenged the credibility of Kirubarani—who had been detained at the station that night and was an eyewitness to the policewomen beating Parvathy Thevar—by alluding to her lack of respectability. “The question is whether her evidence is to be believed or not. It is seen … that she was married to one Sundar and after that Sundar deserted her and she is now living with one Alagu.”Footnote 49 Expectedly, the inquiry used the medical certificate, which declared death by asphyxia, to prove that Parvathy had committed suicide.Footnote 50 And, finally, in a tragic intersection of medical and gendered language, the policewomen claimed (successfully) that the blood on the victim’s clothes was menstrual, while the victim’s mother claimed (unsuccessfully) that Parvathy did not have her period at the time of her death. Further, the policewomen contended that Parvathy had needed to take a bath once she got her period, which was why she received access to the station toilet in the middle of the night, where she was found dead. A democracy’s recognition of caste rights thus did not end sovereign violence. Instead, the targets of violence and the forms of justifying state violence shifted in accordance with broader currents.
The parallels between physical violence within the station and discursive violence outside are as striking when we move into the twenty-first century. As discussed in a large literature (Hansen Reference Hansen1999; Chatterji, Hansen, and Jaffrelot Reference Chatterji, Hansen and Jaffrelot2019), a Hindu-right government, holding popular legitimacy, has come to power in India. Hindutva politics draw on a long genealogy of Hindu nationalism within India as well as contemporary global Islamophobia to paint the Indian Muslim as the Other of the Indian (Hindu) citizen. Notably, legal violence against alleged Muslim terrorists has escalated in this period, encompassing an array of techniques. These include numerous antiterrorism laws that give the state extraordinary powers; questionable criminal charges, convictions, and executions (such as those that followed the 2001 attack on the Indian parliament in New Delhi, and that were met by the public with exultation); and police torture of suspected terrorists.
My point here is not to bewail the persistence of police brutality but to retreat from the understanding of torture as attributable to a few bad apples. Historic attempts to tackle custodial violence—statutory measures to police the exceptional space of custody (e.g., through inspections) or judicial prosecution of errant police personnel—reflect this view that separates police violence not just from the workings of the society in which it is embedded, but even from legal violence.Footnote 51 In reality, judicially acceptable modes of witnessing in twentieth-century Madras yoked the exceptional space of custody to everyday spaces, sovereign power to disciplinary power, and state violence to social norms. The previous pages mined investigations into police torture that occurred in twentieth-century southern India to reveal ties between violent police authority and nonviolent forms of power that operated across society. Adjudication of torture cases relied on three, seemingly objective, forms of evidence: the testimony of respectable persons, medical expertise, and written police records. In practice, all of these aligned with axes of power marked by class, caste, and gender. The routine exoneration of police personnel in cases of police torture reveals the extent to which state violence was entwined with socially acceptable forms of power and the ways in which the very process of trial strengthened this bond.
Recognizing the ties between judicial process and social privilege compels us to look beyond the courts for reparation in cases of torture. Indeed, in postcolonial Madras, marginalized citizens protested police violence by gathering on the streets, in election campaign addresses, and by shaping public memories through statues that commemorated police violence (Karthikeyan Reference Karthikeyan, Gorringe, Jeffery and Waghmore2016; Kumar Reference Kumar2021).Footnote 52 In so doing, they bypassed the constraints of evidentiary protocol that masked social difference, to embrace forms of protest that shed a harsh light on structural inequality. It is not seemingly isolated instances of violence that need to be questioned, but rather the networks of power in which not just violence, but even its judicial redressal, are embedded.
