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Inherent Violence in Functioning Democracies


Mona Das

TRANSNATIONAL TORTURE: LAW, VIOLENCE AND STATE POWER IN THE UNITED STATES AND INDIA
By Jinee Lokaneeta
Orient Blackswan, New Delhi, 2012, pp. 291, Rs. 725.00

VOLUME XXXVII NUMBER 2-3 February/March 2013

Modern liberal democracies see laws based on coercion as a feature of the ancient-medieval barbaric regimes of the past or the uncivilized ‘other’. Their conception of self is based on adherence to rules and principles with no room for excessive violence or coercion. Theorists like Dworkin and Hart argue that violence occupies a secondary place in the legal process in democracies. Jinee Lokaneeta in consonance with theorists like Kaufman-Osborne and Robert Cover challenges this theoretical premise and painstakingly tries to establish that violence is inherent in the functioning of liberal democracies in exceptional circumstances as well as in routine statecraft. The author focuses on the legal and political discourse on torture—as indicative of ‘excess violence’—in the United States of America and India. While laying out the contours of the torture debate the author investigates why existence of torture is denied by democracies despite overwhelming evidence; or at best is seen as mere aberrations in exceptional situations. She argues that torture or excessive violence theoretically is a paradox for the very conception of a liberal state based on consent, freedom and dignity of the individual. Abolition of torture is essentially seen as a ‘fairy tale’ of enlightenment inspired notions of progress. The story of the United States post 9/11—when the issue of using torture as a valid method of interrogation, in a ticking bomb scenario gained prominence and acceptance—is the starting point of enquiry. Lokaneeta traces the history of jurisprudence on excess violence or torture in the US through Supreme Court judgements delivered at different points of time in history. Three pivotal points of discussion are those relating to the ‘voluntariness doctrine related to the Fifth Amendment right against self-incrimination, voluntariness related to the due process clause of the Fourteenth Amendment and Miranda regime related to Fifth Amendment’. Judgements like Bram vs United States (1897) whereby the court ensured protection against coercion, by taking into account the circumstances of interrogation, in determining voluntariness of a confession; Brown vs Mississippi (1936) which is a landmark judgement against torture as the court opined that ‘the rack and torture chamber may not be substituted for the witness stand’ are discussed. However, Lokaneeta notes that these landmark judgements may not have had a far-reaching impact in deterring torture, especially in the southern states marred by racism. In many subsequent judgements there was no unanimity on due process violations particularly if the signs of physical ...


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