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COMMENTARY

After the Law


Notes on Gujarat 2002
Moyukh Chatterjee

The lower courts of Gujarat are


rife with narratives of people
being denied justice in Gujarat
2002 riot cases. In such an
environment only the nave or
self-blinded will equate the
failure of prosecutable evidence
as the last word on justice
in Gujarat.

This article is based on my doctoral fieldwork


in lower courts of Ahmedabad between 2010
and 2013. Since 2002, I have conducted 29
months of research tracking the work of NGOs,
lawyers, and activists in the aftermath of the
Gujarat pogrom.
Moyukh Chatterjee (moyukhchatterjee@gmail.
com) is a doctoral student at the Department of
Anthropology, Emory University, the US.

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n Ahmedabad Metropolitan Court


recently dismissed Zakia Jafris
petition challenging the Special
Investigation Teams (SIT) closure report.
The verdict has been predictably hailed
in television studios as Gujarat Chief
Minister Narendra Modis much-awaited
acquittal. While Modi tweeted truth
alone triumphs, Bharatiya Janata Party
(BJP) spokespersons and the Modi for
PM juggernaut have led us to believe that
this verdict is the final word on justice in
Gujarat 2002. As the chest thumping
and chants of we were right all along
die down, we can finally ask: What does
this verdict really mean? Can a legal verdict, however historical or ordinary, be
the basis of our politics? And in the wake
of Delhi 1984, Bombay 1992, Kandhamal
2008, what justifies our expectations
of justice?
R K Raghavan, the head of the SIT told
The Hindu that I am happy SITs stand
has been vindicated (Venkatesan 2013).
Broadly, the SIT concluded that there
is no prosecutable evidence against
Narendra Modi and 59 others in the
Gulbarg Society massacre, and recommended the closure of the case, which
was subsequently challenged by Zakia
Jafri in 2013.
The recent verdict in Ahmedabad dismisses Jafris petition on largely the same
grounds as the SIT: there is no prosecutable evidence (Express News Service 2013).
However the legal battle will not end
with this verdict. Zakia Jafris legal team
will appeal this decision, and the case will
continue. However, while we await the
final decision, it seems to me that there
is much more at stake than a question of
law. While the Congress and the BJP,
along with mainstream media make
this a referendum about one politician,
let us understand this verdict beyond
the vilification or celebration of Modi.
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What we must guard against is the


unspoken strategy of the perpetrators
and champions of Gujarat 2002 to conflate and ultimately collapse the distinction between the ethical and the legal in
the aftermath of mass violence. Ironically, it was Atal Behari Vajpayee who
introduced an ethical dimension to
Modis responsibility, by asking him to
follow rajdharma on national television.
The issue of justice and responsibility in
the aftermath of pogroms like Gujarat
2002 or Delhi 1984 raise questions about
Indian democracy and legality that
cannot be wished away by focusing on
Modis individual culpability. The continuing judicial blindness to mass violence in India warns us that we cannot
let our political and ethical choices be
determined by legal decisions alone.
Beyond Modi
One way to expand on our understanding of justice in Gujarat 2002 beyond
Modi is to look outside high profile cases
like Gulbarg Society and focus instead on
ordinary courts and everyday proceedings. It is important to contextualise the
recent verdict and the SITs closure report
as part of a larger map of impunity in the
aftermath of mass violence in Gujarat
2002. While the media, academics, and
activists largely focus on the most
heinous and sensational cases like
Best Bakery and Gulbarg Society an
ethnographic fieldwork between 2009
and 2013 revealed how lower courts in
Gujarat routinely acquit perpetrators
involved in 2002-related crimes.
Local and national media often skip over
these ordinary trials where prosecution
witnesses turn hostile en masse, police
investigation presents evidence with
glaring inconsistencies and contradictions
for the defense to exploit during the trial, and in the end the judge mechanically
applies the law only to dismiss survivors testimony and acquit the accused.
While this is not true for every case,
anyone spending even half a day attending ordinary trials of 2002-related
cases in the lower courts will not be surprised that the SIT found no prosecutable
evidence against the accused in the
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Gulbarg Society case. Since 2002, I have


engaged with Survivors, lawyers and
activists in Ahmedabad to understand
this everyday process of impunity how
does it work and how does it force us to
think beyond Gujarat?
My findings suggest that the politicaljuridical structure of impunity in contemporary India does not stop at the
Gujarat border, nor can it be understood
as a sudden and spectacular breakdown
of law and order; it is instead a continuation of politics-as-usual.
The Paradox of Gujarat 2002
On a blazing hot summer afternoon in
Ahmedabad, I listened to a conversation
between a human rights worker and a
criminal lawyer on the legal aftermath of
Gujarat 2002. But is there any hope of
justice in Gujarat? asked the activist.
Without batting an eyelid, the lawyer
replied, Look, all criminal offences are
formally against the state, but if the state
is a party to the crimes, then where do the
complainants turn? This pithy summary
by the lawyer conceals several paradoxes.
The National Human Rights Commissions (NHRC) suo motu investigation as
early as 1 March 2002 reported violence
continuing in varying degrees for over
two months. Even as late as 24 April
2002 the NHRC said that the victims were
facing difficulties in recording FIR s with
the police. Similarly, the Concerned Citizens Tribunals landmark two-volume
publication of Crimes against Humanity,
and subsequent Supreme Court decisions
to reopen nearly 2,000 criminal cases
summarily closed by the Gujarat police
and transfer two major trials (Best Bakery
and Bilkis Bano) outside Gujarat show
that the paradox of justice in Gujarat is
a public secret: the production and destruction of evidence is indistinguishable in the context of state-sanctioned
mass violence. In the light of these independent commissions and the collective
testimony of survivors, only the nave or
self-blinded will equate the failure of
prosecutable evidence as the last word
on justice in Gujarat.
In the background, lower courts in
Gujarat have been acquitting hundreds of
riot cases. I attended these performances
of impunity during my doctoral fieldwork
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in 2010-11. Sitting in the last row of


different lower courts for over a year,
I watched an elaborate farce being performed in the court: voluminous files
were dutifully opened, read and closed;
the public prosecutor marked attendance
on each court date even if the accused
never showed up; the judge gave the
survivor an opportunity to tell her story
(sometimes after eight years); the accused
stood sheepishly in one corner; policemen took off their hat before entering
the witness stand and parroted meaningless words and in the end, after a
decade of adjournments and delay, the
judge dismissed survivors testimony as
inconsistent and unreliable.
A Case of Impunity Wahidabano
Wahidabano, a middle-aged Muslim
woman and her friend stepped out of
their house during a brief break after
five days of curfew in Ahmedabad. They
needed medicines from a nearby dispensary, barely a five-minute walk from
their house. While coming back from the
dispensary, close, but still outside the
gate of their Muslim neighbourhood, two
Hindu men from a nearby tailor shop
attacked them. Why are Muslim women
roaming around? Lets finish them
said one of them holding Wahidabano
down, while the other stabbed her twice
in the back on 4 March 2002.
Eight years later, I walked Wahidabano
home after yet another wasted day in
court her case was adjourned because
one of the two accused did not show up.
We quietly passed the tailor shop where
she was attacked. With the help of a good
defense lawyer, the accused managed to
lessen the charges against them, and
stalled the trial by not showing up in court.
If one showed up, but then the other
would stop coming for the next six months.
After Wahidabano was stabbed, her
husband took her to a private hospital, and
later went to the local police station to
file a complaint. The police refused to
register a complaint and threatened to
break his legs if he came again. He tried
again, this time with the help of a Muslim
army officer patrolling the neighbourhood.
When the army officer reprimanded the
police for refusing to register a complaint,
they replied, We have orders from above.

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They eventually forced the police to


accept their complaint, but after a decade
the trial is still going on.
I accompanied Wahidabano to the
Ahmedabad Metropolitan Court in
September 2010. The man who knifed
her did not come (his lawyer was present),
but the other accused came to court. The
courtroom was a large room with an
elevated table and chair for the judge and
five rows of cheap plastic chairs arranged
in front of him. In one corner of the
room, heaps of rotting and dusty files lay
next to an abandoned table and chair. On
the other side, a large metal cabinet was
filled with legal manuals. The judges
chair sat at the head of the room like a
prop in a play: a high-backed plush redleather chair. His desk was neatly decorated with small piles of Gujarati and
English editions of the Indian Penal
Code and the Criminal Procedure Code.
Wahidabano stood in a corner for her
turn to come. I stood with a paralegal
outside. The lawyer kept coming to
check with us whether our case had
been announced. Suddenly, the clerk
announced Wahidabanos name and
somewhere from the deep hollow of the
room she walked up a few steps to
appear before the judge. Next, the clerk
shouted two names, but only one man
stood up from his seat. The defense
lawyer handed the judge a sheet of
paper, and the judge adjourned the
court to meet again next month. Three
years later, nothing had changed. When
I last checked in February 2013, the case
was still being adjourned because the
knife used to stab Wahidabano has not
been transferred to it from another court.
The Case of Amalibhai
Or take Amalibhais case. In 2002, three
Hindu boys stabbed Amalibhai, a Muslim
factory worker, when he returned home
from the relief camp to get his bicycle.
Eight years later, I saw three visibly poor
boys laughing and joking outside the
court. Some hours later, we entered the
courtroom and sat in front of the judge.
Unrepentant and surly, the boys sat in
the front row. One of them kept checking
to see if their lawyer had come to court.
As soon as the clerk announced our
case number, the judge deferred the
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COMMENTARY

matter to accommodate a more urgent


matter. Meanwhile, the defence lawyer
approached Amalibhais lawyer to offer
compromise money. He even approached
the judge and whispered a few words as
soon as the clerk placed a heap of case
papers on the desk of the judge. On cue,
the judge began a short speech on the
value of compromise (samjhauta).
He said it is better if Amalibhai
reconciles with the accused. Of course,
he went on to say
it is my duty to conduct the trial and give a
judgment. But then someone will appeal and
it will go to the High Court, and then after another appeal it will go to the Supreme Court.
All this will mean unnecessary running around
for you, so isnt it better that you simply live
together with the accused?

Then he conferred with both lawyers and


adjourned the court and gave Amalibhai
a month to decide to make up his mind.
Outside the court Amalibhai and I
chatted over a cup of tea. The judges
speech presupposed that punishment
was unlikely and presented a narrative
of how the legal process would only defer
a wasteful and overwhelming process.
Between sips of hot sweet tea, Amalibhai
said, What do you expect from the
judge? Hes a Hindu, hes their judge.
Hunting Witness and Evidence
Case after case presented structural
contradictions: Why did the survivor
not go to the police station opposite her
house to lodge a FIR? (Because the
policemen in charge of the police station
told the mob in front of her house to
burn the residents alive). How can the
survivor identify the accused in court
if he was attacked by a mob? (So the
survivor can either remain and be killed
or survive and be an unreliable witness?)
Why is the survivor presenting the
names of the accused after so many
years? (Because the police refused to
write the names of the accused in 2002)
these are the stage directions of the
farce being performed in Gujarat. Most
survivors cannot say in court what is
written in brackets here, and if they say
it, then the judge points out the witnesses
are inconsistent and unreliable.
Of course, there have been landmark
convictions as well: Maya Kodnani,
Babu Bajrangi, and the Bilkis Bano sexual
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violence case. But I pose a different question: How many people must be butchered, violated, abused and humiliated
before the evidence against perpetrators
becomes prosecutable? And these would
never be possible without the courage
and perseverance of non-governmental
organisations and human rights activists.
Unfortunately, convictions are exceptions
in the aftermath of Gujarat 2002 and
similar events of mass violence in India;
only a few trials held in the glare of the
television camera or involving heinous
crimes that symbolise the horror of
the event (like Naroda Patiya) lead to
convictions. Apart from these rare media
trials, or Supreme Court monitored cases,
the criminal justice system in India only
serves to humiliate the survivor of mass
violence in India.
Scholars of violence, especially massacres, pogroms and genocide, show that
part of the evidence of such events is
that there is no evidence (Pandey 2006;
Brass 2011). This is not merely a clever
turn of phrase; it is well known that the
judicial aftermath of Gujarat is entangled in allegations like the destruction of
records, manipulation of trials through
public prosecutors, mass police refusal
to record FIRs, and even the presence of
politicians in the police control room.
So let us not reduce the problem of
accountability in the aftermath of mass
violence to an alleged meeting in a chief
ministers house during which he allegedly
ordered the police to look away. Mass
public violence against a community can
be rendered invisible only with the complicity of ordinary people, state officials, and
in some cases, even survivors. This raises
questions beyond law and evidence: What
encourages people to look away and refuse
to feel the pain and humiliation of people
who are, in the end, their neighbours?
This public sentiment underneath majoritarian violence does not take away
from what I find to be an even more
fundamental truth about Gujarat 2002.
Over the last decade, I heard countless
stories of Muslim survivors men, women
and children who lived to tell the tale.
And almost always they have survived
because some unnamed Hindu hid them
in his house while the mob hunted
for them outside; Hindu women who
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dressed Muslim friends in saris and


brought them home; or an anonymous
neighbour brought them hot meals while
they spent a night hiding in the field
this too is the story of Gujarat 2002.
The Legal and the Ethical
In an EPW article two years ago, Christophe
Jaffrelot meticulously outlined the judicial aftermath of Gujarat 2002 to make
the important point that
the failure of the rule of law whose magnitude will have to be qualified since proceedings are still underway lie in the grip that
Hindu nationalism (as an ideology and a
political movement) holds over the state
machinery (including the judicial system) in
Gujarat and the central authoritys relative
powerlessness (both at the executive and
judicial level) to counteract it (Jaffrelot 2012).

But this diagnosis of the failure of law


keeps intact the distinction between the
Hindu nationalist movement and the
the state.
What if this separation between
(rational) state and (communal) society
is untenable in contemporary Gujarat?
Recent studies of the Gujarat pogrom
show that everyday political mediations,
including citizens access to basic services
is inseparable from the networks and
agents that instigate and organise riots.
For instance, Ward Berenschot argues
that Gujarats communal violence can
be seen as an outcome of the particular
way in which the state has come to be
embedded in Gujarats society (2011).
In the light of my fieldwork which
included visiting victims homes, talking
to ordinary people, and attending dozens
of low-profile trials, I believe that Gujarat
2002 was not in fact a breakdown of law
and order but a hybrid initiative led by
militant Hindu nationalist organisations,
nurtured by state officials, and normalised by the general public.
Modis politics of Gujarati pride and
asmita has allowed him to further entangle his own culpability with Gujarats
honour. Is it surprising that Gujarats
honour flows from legal impunity, not
justice? I have attempted to follow two
separate but related issues in this essay:
the structural (or legal) follows the
activist and civil society argument that
Indian law, jurists, and courts are not
equipped to deal with mass violence
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of the kind witnessed in Delhi 1984,


Gujarat 2002, and Kandhamal 2008. But
the other question is ethical what do
we do when the law repeats rather than
addresses communal violence?
In this context, our common sense world
turns upside down, and the language of
proof and evidence becomes the language of the perpetrator. The recent dismissal of Jafris case reflects our lack of
both a language and institution to address
the consequences of impunity in the
aftermath of mass violence. The Gujarat
model has an important lesson: We
cannot derive our ethical concepts from
legal judgments (De la Durantaye 2009).

unequipped to handle events like 1984


and 2002, and can at best castigate
or express frustration at their own
limits or bemoan the infrastructure of
impunity, of which, ironically, they are
an inextricable part. But the political
and ethical question cannot be derived
from the legal, and must be thought of
independently. Legal impunity raises
uncomfortable questions with no readymade one-size-fits-all answers. How do
we deal with a popularly elected antiminority regime? What does Gujarat
2002 say about the quality of Indias
democracy? But with the elections upon
us, like the judges in Gujarat, we must
make a decision.

In Conclusion
It is not surprising that Modi and his
supporters would like us to confuse the
ethical and the legal our courts are

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References
Berenschot, Ward (2011): Riot Politics: Hindu-Muslim
Violence and the Indian State (New York:
Columbia University Press).

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Brass, Paul R (2011): The Production of Hindu-Muslim


Violence in Contemporary India (Seattle: University of Washington Press).
De la Durantaye, Leland (2009): Giorgio Agamben
a Critical Introduction (Stanford, California:
Stanford University Press), p 253. [Italian philosopher Georgio Agamben says the confusion
between the ethical and the legal is a common
mistake while thinking of the Holocaust and
the concentration camp.]
Express News Service (2013): Clean Chit to Modi:
Magistrate Relied on SIT Lawyer Arguments,
The Indian Express, 28 December, available at
http://indianexpress.com/article/news-archive/
web/clean-chit-to-modi-magistrate-relied-onsit-lawyer-arguments/, accessed on 6 March 2014.
Jaffrelot, Christophe (2012): Gujarat 2002: What
Justice for the Victims, Economic & Political
Weekly, Vol 47, No 8, p 77, 25 February, available at http://www.epw.in/special-articles/gujarat-2002-what-justice-victims.html, accessed
on 6 March 2014.
Pandey, Gyanendra (2006): Routine Violence: Nations,
Fragments, Histories (Palo Alto: Stanford University Press).
Venkatesan, J (2013): SIT Stand Vindicated:
Raghavan, The Hindu, 27 December, available
at http://www.thehindu.com/news/national/
sit-stand-vindicated-raghavan/article5505081.
ece, accessed on 6 March 2014.

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