The body of the condemned: An analysis of the criminal justice system in India

By Vipanchika Sahasri Bhagyanagar

Introduction

Exploring the birth of prisons in Europe, Michel Foucault’s Discipline and Punish (1995) has become the reference point for innumerable later works to conceptualise prisons and punishment. The book’s main thrust is to declare torture’s “disappearance as a public spectacle” (7). Therefore, he considers prison a disciplinary institution where torture has disappeared or is secondary only to disciplining. His book begins with a chapter, titled “The Body of the Condemned”. An initial couple of pages have a detailed description of the brutal ways in which Damiens was executed in 1757. Having undergone gruesome physical torture, Damiens succumbs to the pain in front of a crowd cheering and mourning his execution. Punishment, in the pre-modern era, was a spectacle. With the Benthamite principles shaping prison as the justice delivery system, physical torture took a back seat. The emphasis is now on rules and regulations. Such an analysis comes closer to HLA Hart and Ronald Dworkin’s assertion that the Leviathan state is nowhere in sight in “the modern societies based on rules and regulations” (Lokaneeta, 2011, 2).

Distancing themselves from the previously prevalent retributive punishment system, Benthamite principles of punishment are meant to deter others from committing crimes. Therefore, punishing is not to take revenge on a person but to set an example that their freedom will be lost if done anything against the penal code. So, inhumanity is not a necessity in the modern punishment system. In India, lie detectors, brain scans and narcoanalysis are preferred ways of extracting information from the prisoners rather than using force. As Lokaneeta (2020) would call them, these three are the “truth machines”. They are preferred for their scientific accuracy. In fact, “digital prisons” have become a trend in western nations, particularly the USA, where the convicted criminals are allowed to be released early because the state has come to realise that prison itself harbours violent attitudes. With such a pure intention of today’s liberal democracies, the punishment mechanism is now transferred to the open areas by shackling a GPS tracker to the ankle of the convict (Alexander, 2020). What may come across as humane ways to punish are not all humane. Why? Firstly, these are not prevalent ways of punishing and violence inflicted on bodies is still the primary way (Lokaneeta, 2020). Secondly, through these newer ways of punishing, the body is the site of punishment and punishment here is still a “spectacle”, in a rather different way from Foucault’s – in terms of making the identity of criminal visible in society by marking their body with, for instance, GPS anklets. Besides, the ‘crime shows’ that are watched across India and the world also seem to celebrate and mourn the torture and death of culprits.

Violence, Punishment, and the State

Vasantha Kumari, the wife of Prof G.N. Saibaba, who was arrested in the Bhima-Koregaon case, writes: “You later told me that they took you to Gadchiroli in big anti-landmine vehicles in which scores of commandos were fully armed with ultra-modern weapons …. There were twenty vehicles with armed commandos aiming their weapons in all directions. They made such a big show of things to give the impression that they had arrested a hardcore and dangerous terrorist, not a handicapped professor” (Saibaba, 2022). In their book, Why Do You Fear My Way So Much? Letters and Poems from Prison, Saibaba’s wife writes how this already ninety-five per cent disabled person was taken to prison, beat up so bad that hands – the only parts of the body that work well – have also stopped working well.

Prisons in the current form in India, no doubt, originated from Europe (Bhosale, 2014). But as one of the police officers in Uttar Pradesh confessed to Beatrice Jauregui (2016), the Indian police is modelled in lines of Irish constabulary and is not inherited entirely from the “British bobby” style, making them “violent and oppressive”.[1] And therefore, there is an urgent need to contest the popular idea that torture is only secondary to legality. These panoramic legal-philosophical views about punishment are not suitable for understanding the importance of bodies that can help us analyse the “criminal selectivity” during “punitive times”. The modern era, according to Foucault, is marked by the “punishment of a less immediately physical kind” and “the body as a major target of physical repression disappeared.” Although Foucault does acknowledge that torture of a body is still prevalent, he nonetheless argues that the power now functions to majorly discipline and create a “society of control” (Deleuze, 1992). Notable works that followed merely called torture an “exception” from the regular practice of disciplining bodies (Agamben, 1995). As written in Lokaneeta’s book, The Transnational Torture (2011), Rajiv Gandhi, the former Prime Minister of India, claimed that there was no torture in India (3). If that is the case, how can we understand the happenings in India?

Ramachandra Singh spent thirteen years from 1970 to 1983 in prison. He wrote a book, 13 Years: A Naxalite’s Prison Diary (2022), which was translated by Madhu Singh. In the diary, he illuminates the unbearable torture he was put through. Only after a couple of days inside the prison, he thought that “even if I were ever released, there would be nothing left of me. I would be a living corpse.” When he required medical attention because he could not walk, he was only given “temporary admission” to the prison hospital, where the quality of food and care was not good. This was an incident of the past, but in the last two years, 4,484 custodial deaths have been reported, and 233 alleged encounters have taken place in India (Pal, 2022). While we can see torture and brutality as indispensable parts of the criminal justice system in India, it doesn’t mean that violence is the state’s monopoly. The state (that includes the criminal justice system), if understood as a “disaggregated” entity, can be seen as both the site of oppression and opportunities and care. Therefore, the innumerable deaths and torture at the hands of police and prison guards in India are merely “orderly ethics” (Jauregui, 2016).[2]

Another solid reason for discarding the Weberian notion of the state’s monopoly over violence becomes evident when we look at how non-state actors widely use penal tactics on their fellow citizens in India. If we like to understand extra-institutional punishment by broadening our understanding of it, in India, for instance, there is a prevalence of lynching people to death these days (Ziya Us Salam, 2019). This “random punishment”[3] suspecting that someone may be carrying cow meat or looking suspicious also feeds into the “collective punishment”[4] to arouse fear in certain communities in India (Fassin, 2018). In several case studies in Ziya Us Salam’s book Lynch Files (2019), one can find the common way the cases of lynchings go: a group of right-wing youth kills a man over the suspicion that they are carrying cow meat or transporting a cow to a butchering centre and then the police book anti-cow slaughter FIR against the dead man or their family members. In all these ways – whether institutional or not, violent, or not – the body nonetheless becomes the site of punishment.

And unlike the highly glossed theories of punishment, “punishment is not merely to return evil for evil; it is to produce gratuitous suffering, which adds to the sanction, for the mere satisfaction of knowing that the culprit suffers. In the act of punishing something, therefore, resists being analysed as rational: a drive, repressed, to make suffer, which society tends to delegate to certain institutions and professions.” Besides, unlike the Foucauldian argument that punishment is not a spectacle anymore, Fassian’s view to explain the shift of punishment from scaffolds to screens again reinstates how the body still is the site of punishment and how it is both enjoyed and mourned by people and activists. To exemplify this, Fassin (2018) reminds us of Allen De Davis’s death by electrocution. Even Saddam Hussain’s execution by the American State was available on YouTube. However, this is not to argue that the “contemporary sensibilities” are the same as the past. The state’s act of punishing G.N. Saibaba and Davis and the non-state actors’ act of punishing certain groups are directed not just to body but also to their dignity and self-respect. In other words, to restate what Fassin said, the body is not the only or primary object of punishment in contemporary times.

The book Transnational Torture (2011) opens with the controversy around the film, Slumdog Millionaire (2008). The filmmakers were asked to replace the senior-level officer torturing the protagonist with a constable doing it because they did not want senior rank officers being shown administering torture. Lokaneeta expresses her surprise that torture was not entirely asked to be removed. She argues that this characterises the criminal justice system in India, where torture is normalised. Torture or not, as we have seen in the Introductory section, the body and its dignity often become the targets of punishment by both state and non-state actors in India.

Conclusion

When a Foucauldian framework rules our understanding of punishment in India or elsewhere, a researcher may tend to focus more on the disciplining power than on the punishment that is still part and parcel of justice delivery. This essay comes at a populist time in India where people and political leaders alike rally to punish those who bring dishonour to the nation and its culture. In the punitive moments we live in, it is essential to understand which bodies are punished and punishable – especially as that becomes a crucial referential point to understand populism in India. Again, to state the most apparent facts, in India, Muslims, Dalits and Adivasis are disproportionately represented in the prisons. Therefore, this paper explained the importance of not discarding the body as a punishment site by referring to certain prison notebooks and highlighting the prevalence of torture and marking bodies. Yet, this paper leaves the question: how valuable is the category of the “body of the condemned” or, more simply, “the criminal” to understand populism and notions of justice in India?

Acknowledgements

Immensely grateful to my brother, Vineeth, PhD Scholar at Jawaharlal Nehru University, for all the discussions that helped me write this paper. Thanks also to my friends Vinitha, Rochana, Akruthi and Bhagya for their constant support.

[1] This is not to suggest that torture is a feature of only the post-colonial countries like India. Innumerable studies suggest that the most outwardly democratic and civilised countries also adopt torture as their regular policing practice. United States, for instance, has invested much in arming the police and military than any other country in the world (Lokaneeta, 2011; Davis, 2003). Hence, it draws our attention to step beyond the hegemonic ideas drawn from enlightenment in political theory about the prisoner body’s torture.

[2] Jauregi (2016) attempts to understand police as a “contingent” source whose foundations are not entirely based in the violence. The use of violence by police is to ensure “order” which in itself is enmeshed in the concurrent socio-political order. Therefore, by decentring violence, Jauregi understands police as a “provisional authority.”

[3] ‘Random punishment’ is to punish individuals who may come across as criminals or may have had some past criminal record. This can be both institutional or extra-institutional

[4] ‘Collective Punishment’ involves punishing or sanctioning an entire community or group for the wrongs done by some of them in the group.

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Bio:
Vipanchika Sahasri Bhagyanagar, a PhD Candidate at Indian Institute of Technology Delhi, completed her M.A. in Political Science with the top rank at Centre for Political Studies, Jawaharlal Nehru University. Her recent review of the book Prison Notes of a Woman Activist (2021) by B. Anuradha was published in the Contemporary Voice of Dalit Journal. Punishment, Violence and Sexuality are her areas of interest.

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