MOYUKH CHATTERJEE
McGill University
The impunity effect:
Majoritarian rule, everyday legality, and state formation
in India
A B S T R A C T
Since the anti-Muslim violence in Gujarat, India, in 2002, NGOs,
activists, and survivors have relied on India’s criminal-justice
system to hold Hindu perpetrators accountable. But lower
courts in the city of Ahmedabad effectively immunized
perpetrators from prosecution. This impunity effect, which
allows public, even spectacular violence to go unpunished, is
produced by three interrelated techniques: documentation,
temporality, and proceduralism. These forms of legality allow
postcolonial regimes to inscribe, frame, and repackage
exceptional violence against minorities to reinforce and deepen
a form of state power based on the explicit subordination of
minorities. The Gujarat case reveals a distinctive style of
postcolonial state formation, one that is based on the ability of
a range of actors, state and nonstate, to reconcile majoritarian
rule with everyday legality. [ethnic and religious violence,
impunity, legality, majoritarian rule, state, Gujarat, India]
AMERICAN ETHNOLOGIST, Vol. 44, No. 1, pp. 118–130, ISSN 0094-0496, online
ISSN 1548-1425. 
DOI: 10.1111/amet.12430
The “perfect crime” does not consist in killing the victim or the
witnesses . . . but rather in obtaining the silence of the witnesses,
the deafness of the judges, and the inconsistency (insanity) of the
testimony.
Jean-François Lyotard (1988, 8)
n September 2010, I walked into the Bhadra City Civil and Sessions
I
Court in Ahmedabad, the largest city in India’s western state of
Gujarat. Like the lawyers who entered before me, I bowed deeply
in the direction of the judge as a sign of respect. I found a spot
at the back of the courtroom, and this was a relief, given the dan-
gers of being associated with the trial that was about to begin, pertaining
to the 2002 anti-Muslim massacre.1 I had been warned of these dangers
by Bharat, a paralegal with Justice First, a local NGO that was helping sur-
vivors of the “riot.” Some months earlier, a lawyer who had defended many
of the Hindu accused—and who was also a prominent member of the
Hindu right-wing organization World Hindu Council—confronted Bharat
outside the courtroom in full view of everyone. He shouted at Bharat and
his assistant, “You are a Hindu, and you still work against the interests of
your own community!”
With the massacre in 2002, India had witnessed one of the most
gruesome events of mass violence since Partition. Following an alterca-
tion between Muslim vendors and Hindu activists at a railway station, 59
Hindu-nationalist activists (karsevaks) died when a Muslim mob attacked
a train. In the following months, large mobs attacked Muslims. According
to human-rights organizations, over 1,000 people, mostly Muslims, were
killed, while 100,000 were displaced. Human-rights reports found the state
government, ruling politicians, and the police responsible for conniving
with Hindu “rioters” to kill Muslims and burn and loot their property.2
Scholarly, journalistic, and activist accounts of the violence converged on
a now well-documented fact: the Gujarat state government did not pre-
vent the attacks on Muslims and in some cases even encouraged them
(Brass 2004; Human Rights Watch 2002; Varadarajan 2002). The Hindu-
nationalist party, led by then chief minister Narendra Modi, was widely
C 2017 by the American Anthropological Association. All rights reserved.

Figure 1. “Say with pride, We are Hindus,” reads a billboard at a busy intersection in the city of Ahmedabad, in Gujarat state, India. The billboard, pictured
here on February 16, 2016, was sponsored by the World Hindu Council (Vishwa Hindu Parishad), a powerful Hindu-nationalist organization.
criticized for not stopping the violence. Yet in 2014, Modi
won a historic mandate to become India’s prime minister.
Although riots take place across India, Gujarat is known
as the “laboratory of Hindutva” (a term for militant Hindu
nationalism), owing to the deep roots of Hindu mobiliza-
tion in the state (Yagnik and Sheth 2005). Ahmedabad is
also one of the most riot-prone cities in India (Varshney
2002). And a vast conglomerate of Hindu-nationalist orga-
nizations, working to unite Hindus and transform India into
a Hindu nation (Hindu rashtra), mediate relations between
state institutions and citizens in Gujarat (Berenschot 2011).
On the streets of Ahmedabad, signs welcome passersby to
a Hindu rashtra, reminding them to “Say with pride, We are
Hindus” (see Figure 1).
After nearly a decade, in part because of judicial delays,
Muslim witnesses were being summoned to testify in front
of judges in various lower courts in Ahmedabad.3 Bazi, a
Muslim businessman who rented out vehicles from a ware-
house located next to Hindu-owned shops, was a key wit-
ness. He had seen a mob of his Hindu neighbors break the
lock of his shop and burn the vehicles inside. “I had a great
relationship with the Hindus. They would come home and
eat with me during festivals,” he said. When he asked a po-
lice officer for help, he was told, “Leave everything and save
your life. I have no orders, so I can’t do anything.” Eight
years later, Bazi and I listened to a series of police officers
stand in the courtroom and repeat the same few lines in
The impunity effect  American Ethnologist
response to the public prosecutor’s question, “What were
you doing during the 2002 riots?”
On 28 February 2002, I was working as a police con-
stable. I was on duty when mobs of around 100 to
2,000 gathered due to the [train] incident in Godhra
and set property on fire. There was stoning between
Hindus and Muslims. The mobs were throwing stones
and soda bottles. I did not see any of the accused [in the
courtroom] in the mob.4
After the first police officer’s testimony, I was taken by
the farcical proceedings throughout the lower courts, which
I attended from 2010 to 2013, in which the rioting cases
were finally concluding after nearly a decade of activist ef-
forts. I watched Hindu defense lawyers shout at Muslim wit-
nesses while the public prosecutor looked down and shuf-
fled papers, and the judges ruled the witnesses unreliable,
ultimately awarding a steady stream of acquittals.
This led me to ask, what is at stake for majoritarian
regimes and the citizens they seek to rule in such legal pro-
ceedings, when the institutions designed to help the sur-
vivor end up reinforcing the power of the accused? What are
the consequences in contexts like Gujarat, where the com-
plicity of the state is widely documented and the perpetra-
tors are well known to the wider public? We could readily
interpret this as the breakdown of the legal system and a
simple case of victors’ justice; the Hindus committed the
119
American Ethnologist  Volume 44 Number 1 February 2017
violence, they run the state, they operate the justice sys-
tem, and hence they can get away with anything. But that
does not account for such trials’ having allowed the Hindu-
nationalist government to reconcile everyday legality with
majoritarian rule—a form of state power based on the
explicit subordination of minorities.5
What is at stake here, then, is not simply that courts ac-
quit rioters because of their religious identity, but that this
pattern of acquittal helps us link the power of large-scale,
state-backed antiminority violence with a distinctive style
of postcolonial state formation. Widespread impunity after
police violence against black people in the United States
shows that modern states use the criminal-justice system
to absorb state violence against minorities. But what makes
Gujarat different is both the scale of state complicity in the
violence and how the Hindu nationalists mobilized regimes
of legality to legitimize a form of political rule based on
the explicit domination of minorities by the majority. This
challenges the idea that the domination of some over
others, at the heart of modern theories of state formation,
must always be masked (Abrams 1988). In Gujarat, where
the state played a key role in sanctioning and facilitating
public violence against Muslims, the impunity effect helps
explain how postcolonial states use everyday legality to
purge themselves of massive, even overwhelming, allega-
tions of complicity in violence against their own minority
citizens.
This Kafkaesque legal drama may seem extraordinary,
but it is hardly unprecedented in India. In 2012, the rate
of convictions in riot-related cases for all of India was 18.5
percent, while for 2002-related cases in Gujarat it was 1.2
percent (IHRCRC 2014, ii).6 Given that courts consistently
acquit perpetrators of state-sanctioned mass violence
(Chopra and Jha 2014), we must investigate the persistence
of forms of legality that allow public, even spectacular,
violence to become unaccountable. Such forms of legality
combine a postcolonial fetishism of formal legal procedures
(Comaroff and Comaroff 2006) with state technologies of
truth (Merry and Coutin 2014), producing forms of state
power that thrive by keeping the subjection of minorities on
the surface. This state power provides the medium through
which regimes inscribe, discuss, and debate exceptional
violence but render its perpetrators legally unaccountable.
To be clear, what is postcolonial about the impunity ef-
fect is not impunity per se, but how a majoritarian regime
conducts farcical legal proceedings that allow it to acknowl-
edge, yet benefit from, state-backed violence against mi-
norities. This entanglement between exceptional violence
and farcical legalism in postcolonial democracies with siz-
able minorities allows us to understand historical mo-
ments, like Gujarat 2002, when antiminority violence paves
the way for new forms of state power. In the context of state-
backed anti-Muslim riots in Gujarat, state officials modified
everyday legality to make Muslims subject to majoritarian
120
Hindu violence, and this process produced a new form of
majoritarian rule.
It is well known that politicians in India use communal
violence to polarize voters along religious lines for electoral
gains (Wilkinson 2005), and that Indian courts often fail
to provide justice to victims of mass violence (Mitta and
Phoolka 2007; Uma and Grover 2010). Here, however, I
focus on three interrelated legal techniques that allow
governments to extend and transform existing regimes of
legality to legitimize majoritarian rule: documentation,
temporalities, and proceduralism. These techniques pro-
duce what I call the impunity effect, by which regimes
inscribe, frame, and repackage violence to make it legally
unaccountable. This allows postcolonial states to cleanse
themselves of overwhelming complicity in violence with-
out resorting to special mechanisms of transitional justice
(Wilson 2001), staging show trials that sustain the myth of
the impartial state (Hansen 2001), maintaining the violence
as a public secret (Taussig 1999), or even having to disguise
the patently partisan nature of legal proceedings that follow
in the aftermath of state-backed violence.
State formation can be understood as a “cultural
process, rooted in violence, that seeks to normalize and
legitimize the organized political subjection of large-scale
societies” (Nugent 2010, 681). If we understand it this way,
then the impunity effect helps us see how the process of
refiguring the legal means of enclosing and disclosing vio-
lence is a key site for state and nonstate actors to legitimize
patently partisan forms of rule. Although the monopoly on
legitimate violence is key to state formation (Weber 1958),
and impunity, violence, and illegality are built into the core
of how modern states reinforce their legitimacy and power
(Agamben 2005; Comaroff and Comaroff 2006; Heyman
1999), the impunity effect as a mode of state formation
allows regimes to reconcile majoritarian rule with everyday
legality. By focusing on inscription, not erasure; on legality,
not corruption; on the quotidian, not the exceptional, we
can see clearly that the impunity effect is not the break-
down of the law. Gujarat 2002 was a historical and political
moment when a range of actors, not just state officials,
participated in state-backed anti-Muslim riots. It was a
public secret that the ruling political party, Bharatiya Janta
Party (BJP), had enabled Hindu crowds to “punish” Muslims
by holding back the police during a statewide shutdown
(bandh) of shops, offices, businesses, and transportation,
during which large, armed Hindu crowds took over the
streets (Chatterjee, forthcoming b). In the context of Hindu
nationalism in Gujarat, the impunity effect enables us
to understand the interrelated role of state documentary
practices, temporalities, and procedures in reinforcing
and deepening a form of state power based on the explicit
subordination of minorities.
Building on critical legal studies that investigate the
role of law in maintaining and challenging state power

(Lazarus-Black and Hirsch 1994; Merry 1990; Nader 1990),
anthropologists have critiqued the limitations of retributive
justice across domestic and international contexts in the
aftermath of mass violence (Hinton 2010; Shaw, Waldorf,
and Hazan 2010). Retributive-justice mechanisms, espe-
cially trials, can intensify inequalities and exclusions (Shaw,
Waldorf, and Hazan 2010) and make it difficult, if not im-
possible, to punish certain forms of violence (Kelly 2011).
These issues have been taken up in critical transitional-
justice studies, which deal with “the process of redressing
past wrongs committed in states shifting from a violent,
authoritarian past toward a more liberal, democratic fu-
ture” (Hinton 2010, 2). Trying to understand how transi-
tional justice is “increasingly destabilized by its local ap-
plications,” Rosalind Shaw, Lars Waldorf, and Pierre Hazan
conceptualize the local not as a level, but as “a stand-
point based in a particular locality but not bounded by it”
(2010, 4, 6).
The impunity effect in Gujarat reinforces the impor-
tance of “the local” in understanding forms of legality that
make public violence unaccountable. Instead of bounding
the local as either an ideology (Hindu nationalism) or a
circumscribed level (the boundaries of the Gujarat state)
that corrupts the Indian criminal-justice system, the local
is better understood as the standpoint from which distinct
forms of political rule are articulated with technologies
of government (Rose and Miller 1992). Just as politics at
the margins of the state (Das and Poole 2004) and at the
borders of the legal and the illegal (Thomas and Galemba
2013) advance our understanding of the practices that
constitute “the state,” the impunity effect shows how states
accused of exceptional violence use ordinary regimes of
legality to bolster their legitimacy.
This process is different in contexts such as East Timor
and Indonesia, where there is an “absence of functioning
institutions of justice” (Drexler 2009, 7–8). It also differs
in places where regimes use special legal mechanisms to
deepen their power, such as Rwanda in the aftermath of
the 1994 genocide, when state-backed community courts
enforced a “specific version of what happened to whom
during the violence” (Thomson and Nagy 2011, 28) that re-
inforced state power. Similarly, the South African Truth and
Reconciliation Commission was designed to avoid retribu-
tive justice and bypass existing forms of legality, thus allow-
ing elites to appropriate transitional-justice mechanisms to
legitimize the postapartheid regime (Wilson 2001).
In contrast, domestic-level courts in majoritarian
contexts, such as India under the rule of Hindu nation-
alists, can purge violent, even avowedly antiminority
regimes without resorting to special transitional-justice
mechanisms. Not only that, but in executing a mass purge
through the judiciary, such regimes legitimize a social order
based on the undisguised majority domination of religious
minorities.
The impunity effect  American Ethnologist
Legality inside and outside India’s Hindutva
laboratory
The relationship between state formation and the impunity
effect is predicated on the entanglement of “state” and “so-
ciety” in Gujarat. To grasp this relationship, and the limits
of approaching justice through legality, we must first out-
line the nature of “state” and “society” in Gujarat. Since the
1990s, Gujarat has consistently elected the BJP to power. Be-
cause of the steady rise of Hindu nationalism in the state,
Gujarat is described as the “laboratory of Hindutva.” The
2002 anti-Muslim violence was part of a longer history of
periodic communal violence in Gujarat.
State-backed Hindu supremacy meant that the Gujarat
state government openly harassed and intimidated wit-
nesses and activists. The Gujarat police and state officials
summarily closed investigations of the 2002 violence, even
as national agencies like the National Human Rights Com-
mission and the Supreme Court castigated and forced the
Gujarat government to take measures to protect its minor-
ity citizens (Human Rights Watch 2003). The Supreme Court
of India ordered the Gujarat High Court to set up fast-track
courts to hear high-profile cases relating to 2002.
In 2004, after the National Human Rights Commission
approached the Supreme Court of India, it ordered the
Gujarat police to reopen about 2,000 cases that it had
closed.7 Four years later, in 2008, the Supreme Court
appointed a Special Investigation Team to reinvestigate
nine of the most heinous and high-profile cases. These
decisions were hailed as a major victory for the “rule of law”
in India and considered a major setback for state officials
and the ruling BJP. Interventions by the Supreme Court of
India and activists’ efforts did yield important convictions,
including the imprisonment of a senior politician.8 Because
of the special nature of these cases—they were transferred
outside Gujarat, received sustained NGO support, or were
monitored by the Supreme Court under the glare of media
attention—they are helpful in understanding the different
legitimation effects of legal outcomes in the aftermath of vi-
olence. Overall, these convictions reinforced the myth of an
impartial Indian state by holding the trials outside Gujarat.
Such high-profile, mediatized trials are best understood as
“landmark cases,” in the sense used by Ronen Shamir, in
that “by occasionally overruling or annulling governmental
policies in some ‘landmark cases,’ the juridical apparatus
asserts its independence from the polity” (Shamir 1990,
783). Such cases are especially effective in legitimizing
violent regimes in the eyes of national elites and interna-
tional audiences who rely primarily on landmark cases to
ascertain the judiciary’s independence from the executive.9
I collected my case studies in local trial courts in
Ahmedabad. I first went there in 2002 as a volunteer and
worked in a relief camp in the outskirts of the city. In
2005 and 2008, I returned to Gujarat to meet survivors,
121
American Ethnologist  Volume 44 Number 1 February 2017
activists, and lawyers working for justice in the after-
math of the violence. I tracked a few select trials for a
year and half from 2010 to 2012. My initial link to tri-
als, witnesses, and the courts was through Justice First.
Justice First (JF) mostly worked with survivors who were
poor, self-employed Muslims—mechanics, shopkeepers,
and laborers—and who had no familiarity with laws of ev-
idence and court proceedings. For most, this was the first
time they had entered a courtroom. JF lawyers then filed
a vakalatnama, a document informing the courts that JF
lawyers would appear on Muslim witnesses’ behalf. JF then
paired a paralegal with a lawyer, both of whom were usually
Muslim, to make a team that was responsible for a certain
number of cases. The team’s work involved helping Muslim
witnesses correct errors in their statements, demand fur-
ther investigation or reinvestigation, add new witnesses to
their case, and testify effectively in the courtroom.
In all criminal trials in India, following British common
law, the proceedings are initiated by and in the name of
the state, and NGOs like JF did not directly represent sur-
vivors in the courtroom. JF lawyers never failed to remind
me of the very limited role available to them. Since the
state prosecutes crimes on behalf of the public, all applica-
tions and materials must pass through the state-appointed
public prosecutor. Indeed, JF could only “aid” the prosecu-
tion. This led to a peculiar situation in Gujarat: the Hindu-
nationalist government appointed prosecutors who were
also members of Hindu-nationalist organizations (like the
World Hindu Council). Ostensibly expected to prosecute
their own comrades, they went on to secure bail for the
accused (Jaffrelot 2012).
In different parts of India previous “riot” cases (espe-
cially anti-Sikh violence in Delhi in 1984) were followed by
the same farce, in which the
legal outcome is largely a foregone conclusion . . . [be-
cause] the present criminal justice system is woefully
inadequate to deal with state-sponsored genocide. The
criminal justice system assumes the existence of an in-
dependent investigating and prosecuting agency, insu-
lated from political interference, which is not the case
in Gujarat. . . . A case for the total breakdown of the
constitutional machinery needs to be made out.
(Grover 2002, 384)
But here the legal system did not quite break down. Instead,
it reinforced sectarian politics and sent a message to the
public about the real nature of “the state” in Gujarat.
One example of how this worked took place on March
4, 2002, when three Hindu boys stabbed Amalibhai, a Mus-
lim factory worker, as he went back from the relief camp to
his house to find his bicycle. Eight years later, I sat behind
Amalibhai in one corner of a large room waiting to see him
testify in front of a metropolitan magistrate judge, while the
three accused were laughing outside the courtroom. Before
122
the proceedings, I saw their defense lawyer whisper some-
thing to the JF lawyer; he was offering Amalibhai money to
“compromise,” settling the case outside the court. I gath-
ered that the money offered was negligible and Amalibhai
rejected the offer. Then the defense lawyer approached the
judge. On cue, the judge gave a short speech on the value
of compromise (samjhauta). He said it would be better if
Amalibhai reconciled with the accused, adding,
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 isn’t it better that you simply live to-
gether with the accused?
He gave Amalibhai a month to make up his mind. Out-
side the court, Amalibhai and I chatted over tea. Between
sips, Amalibhai said, “What do you expect? He’s a Hindu.
He’s their judge.” This use of the legal system to send
a larger message about the nature of majority-minority
relations within a particular context arguably does more
than simply erase and silence the victim’s experience (Ross
2003). It legitimizes the subordinate status of minorities
within a secular regime. If we approach citizenship “not
as an actual status but a legitimizing political and cultural
field” (Krupa and Nugent 2015, 6), one that is constantly
negotiated, then it becomes easier to recognize legal pro-
cesses that may at a first glance seem banal but are in fact
part of a wider struggle to define the terms of citizenship
within liberal-democratic regimes.
Such court performances of hegemony and domi-
nation (Merry 1990) ensure that legality does not disturb
structural violence in India. The country’s regimes of
legality, including police investigation, legal reasoning, and
the examination of testimony, produce a “culture of com-
promise” (Baxi 2010, 209) around rape trials. Similar to the
dynamic of Gujarat 2002 cases, in rape cases, the accused
and defense lawyers use out-of-court settlements to force
the victim to change her statement in court. But the legal
process does not record such coercive and illegal practices.
Once sexual violence is effaced from the trial, rape itself be-
comes a “public secret” (Baxi 2014, xxiii). Consider a crim-
inal case in which local villagers in India came to the court
and protected the accused by flatly denying all the state-
ments attributed to them. In such cases, the production
and presentation of legal evidence in the courtroom is used
to strengthen local ties and hierarchies—like familial ties
and village dynamics—outside the courtroom (Berti 2010).
What is different in the case of state-backed riots in
Gujarat is both the overwhelming scale of the atrocities and
the subsequent accusations that “the state” sanctioned it.
What is remarkable, then, is not impunity per se, or the
fact that most Hindu and Muslim witnesses denied their

pretrial statements before the judge, or even that perfectly
banal legal techniques were used to normalize violence
against Muslims. Rather, what is remarkable is that state
officials and the wider public seized an exceptional po-
litical moment to institute a form of domination—Hindu
supremacy—that is anything but a secret in Gujarat. For
the purposes of my argument, Gujarat 2002 shows how the
Indian state enacts sectarian politics through its legal pro-
cedures, destabilizing and constituting the Muslim witness
and community in India. The state is able to reconcile pub-
lic acts of sectarian violence as noncriminal, despite the fact
that Muslims often know the identity of the perpetrators
and in some case even identify them in the courtroom. In
the process, the forms of violence that were under scrutiny
are legitimized, which in turn allows these forms of violence
to be “linked to broader forms of cultural control” (Doughty
2014, 782). It was a process, then, that allowed spectacular
violence to become a part of governing majority-minority
relations within a secular democracy. The fact that such
techniques extend beyond episodes of exceptional violence
also strengthens my general point that the impunity effect
is neither exceptional nor distinct from everyday legality.
On and off the record
The impunity effect relies on the state’s ability to document
violence such that it both acknowledges the enormity of the
violence and prevents anyone from being held individually
liable for it. In the courtroom, official documents were used
to challenge, attack, and ultimately dismiss witness testi-
mony. When official documents designed to record criminal
culpability are used to absolve criminal responsibility, we
have to reevaluate the politics of legal evidence and, es-
pecially, the effects that state documentation has on how
Indian courts perceive witnesses of mass violence. Post-
colonial states rely on documentation to dissolve respon-
sibility, produce indeterminacy, and perpetuate structural
violence, especially because it is normatively associ-
ated with transparency and clarity (Gupta 2012; Hull 2012b;
Sharma 2013). In Gujarat, state officials created a chasm be-
tween official documentation (on the record) and forms of
evidence required to attribute liability to specific acts of vi-
olence against Muslims (off the record). They did so by har-
nessing the paradoxical quality of official documents, which
are both “malleable and constructed on the one hand yet
take on an aura of irrefutability on the other” (Tarlo 2003, 9).
The Gujarat police mobilized a range of official writing tech-
niques to transform a one-sided targeted attack on Muslim
minorities into yet another “communal riot”—a sponta-
neous violent encounter between Hindus and Muslims.
Bazi’s case was one of many “omnibus” cases filed by
the Gujarat police during the violence. This meant that the
police grouped different incidents of violence in one neigh-
borhood into a single case. At first glance, this may seem a
The impunity effect  American Ethnologist
mere technicality, but activists and lawyers who had worked
with victims of previous incidents of state violence recog-
nized this as an official tool to erase and mix up the de-
tails of specific incidents of violence. The omnibus cases be-
gan with a crucial document produced by the police called
the omnibus or First Information Report (FIR). According
to Human Rights Watch, this document was legally dubious
because it often did not mention the names of the perpe-
trators, and the accused were “identified only as an ‘unruly
mob’ or a ‘mob of 10,000’” (Human Rights Watch 2003, 5).
But the omnibus FIR is not an invention of the Gujarat
police. Human-rights lawyer and scholar Vrinda Grover
(2002) found that in writing omnibus FIRs, the Gujarat po-
lice were repeating a pattern first noticed after the anti-Sikh
massacre in Delhi in 1984. Grover further argued,
Instead of registering a separate and distinct FIR with
regard to each and every cognizable offence, a sin-
gle omnibus FIR is recorded. The contents are gen-
eral, vague and bereft of details. The incidents reported
therein relate to different places, time and accused per-
sons . . . . Such FIRs will ensure that the investigations
and prosecution of criminal offences would be no more
than an exercise in futility. (2002, 363)
Regardless of their legality, documents such as the om-
nibus FIR emphasize my wider point that the production
of unaccountability relies on existing regimes of legal in-
scription. The police do not simply erase or deny the vio-
lence but actively inscribe it such that a range of legal actors,
like lawyers and judges, interpret, discuss, and dissect the
violence in the courtroom in ways that transform targeted
violence into public rioting. Specifically, the omnibus FIR
collectivizes and aggregates specific incidents of violence,
making it very difficult to prosecute individual actors for
specific incidents of violence. This is an excerpt from one
such omnibus FIR:
Due to the burning alive of Hindu activists in Godhra
on 27.02.2002, the VHP [World Hindu Council] an-
nounced a Gujarat shutdown on 28.02.2002, during
which my staff and I were patrolling in the area. At
around 10 a.m., at the bus stand near the mosque,
an unknown mob [ajanya manasonu todu] of 3–4,000
persons assembled, and we fired tear gas and bullets.
After this the mob dispersed to start looting, burn-
ing, and destroying nearby factories, garages, mosques,
hotels, and vehicles. We rushed to [neighborhood A]
when we got a wireless message that unknown persons
were destroying it, and then we rushed to [mentions all
the Muslim neighborhoods in the area] . . . . I have en-
forced criminal procedure code 143, 147, 148, 149, 335,
435, 436, 395, 427, and 120-B against these unknown
persons.10
123
American Ethnologist  Volume 44 Number 1 February 2017
Note that the violence described in the police report
identifies no individuals or a common target. It mentions
“unknown mobs of 3–4,000 persons” looting and destroying
shops, houses, and vehicles. The fact that these belonged
almost exclusively to Muslims goes unmentioned in the re-
port. Nor does the report mention the details of a single in-
dividual incident of violence. By writing the report this way,
the police can reveal and mask, inscribe and erase, several
specific incidents of targeted violence in these areas. The
document both acknowledges the wider public participa-
tion in the violence, as well as its effects (property destruc-
tion), but it also renders the violence faceless. By framing
the violence in 2002 as anonymous communal rioting, the
police introduce a fundamental rift between collective vio-
lence and individual complaints. Compare, for instance, the
police report with what one Muslim witness told the judge:
During the Gujarat shutdown on the 28.02.2002, some
men came to my garage at around 7:30 in the morning
and asked me to close it. I don’t remember those men.
After closing my garage, I went home, which is around 2
kilometers away. Then riotous mobs began to roam the
neighborhood. At around 4 when I went to my garage,
I saw the hotel near it burning, and a mob of men that
included [A, B, C, and D] destroying my garage.
Since the omnibus FIR mentioned no specific details
of the attack on Muslims in the area, defense lawyers do
not deny the violence, but focus on what they call “con-
tradictions” between the police FIR and witness testimony
in the courtroom. During the witnesses’ cross-examination,
defense lawyers emphasized that crucial details regarding
the identity of the accused, the weapons they were carry-
ing, or their specific actions are not mentioned in the police
report. The witness then mentions that the police did not
register their complaint. And in a twist befitting the best of
Kafka’s writing, the witness loses credibility in the eyes of
the law because he cannot prove with documents that the
police have not given him any documents. When asked by
defense lawyers to explain the lack of any names in his po-
lice complaint, the witness only further weakens his case: “I
went to the police station, but they did not take my com-
plaint. I did not submit any written complaints to the police
commissioner. It is true that my statement [taken by the po-
lice] does not mention that my complaint was not taken.”11
In this way, state officials in the aftermath of violence
strategically document the violence such that it can be
legally undone in court. These absences, gaps, and differ-
ences between documentary evidence and oral testimony
allow the defense to challenge the prosecution’s case. These
courtroom practices of inscribing and interpreting evi-
dence of violence such that the violence itself is undeniable
but what is on the record contradicts what is off the record
are arguably different from legal practices that exclude, as
Elizabeth Drexler notes, “pervasive patterns of violence
124
from prosecutorial and social visibility” (2010, 52). In their
reports, the police no doubt erased a whole range of violent
actions against Muslims, but their writing does not simply
deny the violence but frames the evidence of it to discredit
victims’ testimony. This effect is partly made possible by
the adversarial legal process, in which the burden of proof
is on the state prosecution, as is the wider challenge of
establishing individual culpability for collective violence.
What is different in Gujarat is how lawyers and judges selec-
tively use official documentation to enact sectarian politics
by, for instance, ascribing “communal feelings” to Muslims.
In a different case, Gafar, an informal worker who oper-
ated a small garage from his house, came to court and iden-
tified the Hindu neighbors who burned his shop in 2002.
During his cross-examination, the defense challenged his
status as a witness. It is common for many poor workers
in the informal sector in Ahmedabad to work and live in
the same place. Gafar too lived inside his shop. The defense
lawyer questioned Gafar’s presence at the scene of the of-
fense by pointing to his inability to provide any “documen-
tation” like electricity bills or property-tax receipts. Each
time Gafar tried to establish his credentials as a witness, the
defense lawyers asked him for documents that he could not
provide the judge. He told them,
I have lived inside my shop for five years before the in-
cident. I have no documents, or a ration card to prove
that during the incident I used to live in the shop. I have
no documents to prove that I was the owner of my shop.
This shop belonged to my father. I have no documents
to prove that this shop belonged to my father.12
In this unusual case, defense lawyers used the witness’s
marginal status to challenge the survivor’s testimony. More
often defense lawyers simply contrasted the difference be-
tween oral testimony and written police documentation to
challenge Muslim witnesses. In Bazi’s case, thanks to JF’s
interventions, four Muslim witnesses were able to iden-
tify the accused in open court. But because the names of
the accused did not appear in the “original” police state-
ments (and the police did not arrest them from the scene
of the violence), the defense argued that the Hindu accused
were victims of a Muslim conspiracy. To bolster their claims
about the “unreliable” nature of the witness, the defense
cross-examined the police officers who simply reinforced
the point, over and over again, that there was nothing “on
record” (record upar) that could link the violence to specific
actors. Here are some excerpts of police statements made in
the courtroom:
It is true that I took the witness’s statement, and he did
not mention the name of the accused to me.
It is true that in my First Information Report I did not
mention the name of a single accused.

It is true that there were many incidents in different
places within the area. It is true that I did not file sepa-
rate complaints for different incidents.
Defense lawyers presented these differences between
what was on and off the record as contradictions (viroda-
bhas) in the prosecution’s case. In other words, the impunity
effect is produced not by the absence of documentation
but through strategic forms of official writing that antici-
pate legal interventions in the future. Official documents
thus allow state officials to both produce a narrative that
acknowledged the violence in 2002 and obstruct efforts to
promote accountability (Drexler 2006). Moreover, it was
precisely through documentation that formalized the “lie of
the state” (Das 2007, 165) that the Hindu-nationalist regime
forced even activists who opposed it to play by its rules.
Although the state’s ability to control what is on and off
the record seems to reaffirm the broad role of documents
in bureaucratic control and administration (Hull 2012a),
the trajectories of documentation in Gujarat 2002 outlined
above suggest more than just control. In Gujarat, a range of
temporally and spatially dispersed actors—police officers,
lawyers, and judges—harnessed the potential of official
documents in India as a regime of misrepresentation to
create a gulf between what was on and off the record. This
mode of producing evidence, in the context of Gujarat
2002, allowed defense lawyers to impute that Muslims were
falsely implicating Hindus out of enmity and rivalry. Such
forms of documentation aligned the state with a wider,
unfolding project of Hindu supremacy in Gujarat.
Temporalities of impunity
The impunity effect relies on the ability of state officials to
manipulate the multiple temporalities of law: to stall, de-
lay, defer, and, if needed, expedite processes that are an
integral part of how litigants experience the legal system.
As Mindie Lazarus-Black and Susan Hirsch note, “Allowing
time to pass is sometimes a way to oppress and at others
the expression of deep defiance” (1994, 12). In the Indian
context, in which delay is a structural issue across courts,
lawyers and judges can extend courtroom proceedings over
several years. In the meantime, survivors get frustrated with
the legal process, lose interest in their cases, and become
vulnerable to covert out-of-court settlements.
The legal process in India, even under “ideal” condi-
tions, is drawn out, circuitous, and labyrinthine. It forces
plaintiffs (and accused) to come to court multiple times
across many years just to mark “attendance,” which is prof-
itable for lawyers but yields nothing for the complainant.
In my experience of attending a few select trials over a
year and a half, court dates ended in adjournments and
were a colossal waste of time and energy for the survivor.
Sometimes there would be no change in the status of these
The impunity effect  American Ethnologist
cases over the span of a year or longer. Muslim witnesses of
Gujarat 2002 were expected to brave extraordinary delays,
such as when the accused died before the conclusion of the
trial, along with threats of violence and intimidation by the
Hindu accused.
The temporal register of state power is reflected in
Kafka’s parable “Before the Law,” which sums up the power
of state officials to endlessly defer access to the law and yet
maintain the fiction that it is open to all who seek justice
(Ferme 2013). As in the parable, police officials and defense
lawyers in Gujarat continuously deferred the trial to send a
signal to Muslims that the law is in fact not open to all, even
while maintaining the appearance of due process. But in the
Gujarat context, this is not a metaphor for the absurdity of
legal process in general, as much as a technique to promise,
delay, defer, and exhaust Muslim witnesses. Let me give an
example of how these temporalities unfolded in the court-
room. In October 2010, Rehana, the JF lawyer; Bharat, the
paralegal; and I were waiting inside the Bhadra City Civil
and Sessions Court, located inside what was earlier a 15th-
century Mughal fort in the heart of Ahmedabad, for the trial
to begin.
The accused sat some distance away from the wit-
nesses, who were passing their time eating roasted peanuts
and chewing tobacco. Finally, when our turn came, the half-
dozen defense lawyers took their places, and police offi-
cers escorted the accused, of which there were too many
to fit inside the courtroom at once, into the courtroom. Af-
ter several minutes of waiting, while the accused stood in a
queue that snaked all the way around the corridor, the de-
fense lawyers started shouting, “It is an established prin-
ciple that there cannot be a trial without all the accused
present.” Even before the judge arrived, the defense lawyers
cornered the public prosecutor and asked him to defer the
trial, since all the accused were not present in court. One
lawyer shouted that the court should reconvene after the
upcoming Hindu festival of Diwali, and the entire court-
room erupted in laughter, except the Muslim witnesses who
sat in one corner quietly watching the proceedings. Finally,
JF’s lawyer Rehana stood up and pointed to the four men
sitting at the back. “They have been coming to court,” she
said, “but the accused never show up. They should be com-
pensated.” “If you want the trial to proceed,” a defense
lawyer shouted back, “why don’t you bring the accused to
court?”
Later, Rehana confided to me that not showing up to
court was a common defense strategy across 2002-related
cases. The accused took turns coming; a few would show up
one day, but then when the others would come to court, the
first set would disappear. The police kept telling the judge
that the accused could not be found, even in cases in which
JF paralegals and the witnesses knew their whereabouts.13
Muslim witnesses lost a day’s worth of wages every time
they attended the trial, only to find that the case was
125
American Ethnologist  Volume 44 Number 1 February 2017
adjourned for a variety of reasons: the material evidence
or papers had not arrived from another court; the police
investigation officer was absent, busy, or unavailable; the
judge was on leave or had been transferred to a different
court in the middle of the trial; the case was in the “de-
partment,” and no one knew its status. Rather than seeing
these deferrals as yet another instance of bureaucratic
inefficiency, we can better understand them as techniques
of power that progressively enclosed Muslim witnesses
within a distinct temporality, one that reminded them of
the futility of seeking justice within a temporal scale that
reinforced their powerlessness (Auyero 2012).
But the temporalities of the impunity effect appeared
in other guises as well. For example, defense lawyers
and judges would draw attention to the timeliness of
complaints being registered—even when the entire legal
process was marked by multiple delays that were often
outside the witness’s control. For instance, defense lawyers
routinely used the category of “delay” to weaken a victim’s
testimony. In the previous section, I described how witness
statements were challenged because they were not “on
record.” When witnesses somehow placed testimony on
record (by submitting new statements in writing), the de-
fense questioned the evidentiary value of these statements
because of their belatedness.
For instance, in his cross-examination, Bazi told the
judge, “I went to the police station two days after [my shop
was burned], but the police officers did not record my state-
ment.” Neither the judge nor the prosecution asked the po-
lice officers to respond to this allegation. But because of
such temporal discrepancies between the offense and its re-
porting, the defense argued in their written submission to
the judge that, “it is not possible that the police will not ac-
cept a complaint of such a serious crime; therefore the wit-
ness’s testimony is not credible.”14 Timing, and especially
delay, were key components of the defense’s oral and writ-
ten arguments. The fact that the police arrested the accused
after a long time in turn enabled the defense to allege that
the “police have arrested the accused only in order to show
that they are doing their job.”15
In this way, defense lawyers and judges brought up the
temporality of police documentation—discontinuous with
the experience of survivors—to question the reliability of
the witness. They did this even as activists and the media
provided unprecedented documentation of the Gujarat
government’s response, or the lack of it, in the aftermath
of the pogrom.16 In the reports, Muslims repeated their
reasons for being reluctant, if not terrified, to approach the
Gujarat police. In Bazi’s neighborhood, witnesses alleged
that police officers came in jeeps to fire on Muslims, killing
one and injuring several others (Concerned Citizens Tri-
bunal 2002). The National Human Rights Commission of In-
dia found that even as late as April 24, 2002 (two months af-
ter the violence), “The victims of atrocities were facing great
126
difficulty in having FIRs recorded, in naming those whom
they identified and in securing copies of their FIRs.”17
Regardless of such public knowledge about police inaction,
defense lawyers used the ability of the police to determine
not only what comes on record, but when, to insinuate
that Muslim witnesses were giving “false testimony” (khoti
jubaani) to implicate “members of the Hindu community.”
State officials can control when violence appears in the
official archive, and when it is discussed, to elide discus-
sions of what actually happened, exhaust witnesses, and
mask the agency of state officials in public violence. Police
officials and lawyers used delay and deferral to question the
reliability of evidence and insert forms of suspicion at the
beginning of the legal process. They thus enclosed Muslim
witnesses within temporal registers that not only exhausted
them but also made their testimony suspect in the eyes of
the judges.
Proceduralism: Legitimizing the illegitimate
Eight years after Hindu mobs in Vatva looted and burned
Muslim shops, garages, restaurants, and other businesses,
including Bazi’s shop and house, the judge acquitted all the
accused. All 27 prosecution witnesses turned hostile. And
all 15 material witnesses [panch], who were selected by the
police to be present when they recovered evidence from the
homes of the accused, also turned hostile in court. Thus,
the entire case hinged on Bazi and three other Muslim
witnesses.
The judgment, which is over 50 pages long, includes a
five-page description of all the looted materials (cloth and
a television) and weapons (swords and knives) recovered
by the police from the homes of the Hindu accused, only
to dismiss the evidentiary value of this material evidence.
Without the corroboration of material witnesses (selected
by the police), the judge did not accept the recovery of
these items as evidence against the accused. The judge
noted that because “it is an established principle that while
the investigating officer’s deposition can prove the recovery
of material evidence, for that the investigating officer
must convincingly explain how and in front of whom this
evidence was recovered.”18 But those witnesses came to
court and told the judge that they were either not present
at the scene of the recovery or the police asked them to sign
on blank documents. Such courtroom performances of
proceduralism strengthen my argument that the impunity
effect is not a form of legal blindness or failure in the face
of collective violence (Chatterjee, forthcoming a); defense
lawyers and judges actively deployed existing legal proce-
dures and categories to make the violence both cognizable
and unaccountable.
Proceduralism (Sharma and Gupta 2006)—routine
and repetitive practices regarding rules—helped the state
to refigure procedures regarding legal due process to

reinforce the hierarchy between Hindus and Muslims in
Gujarat. For instance, when the prosecution argued that
the Hindu accused constituted an “unlawful assembly with
the common objective of damaging Muslim property,” the
judge stated, “It is an established principle that simply the
presence of the accused at the site of the offense is not
enough.” The prosecution, he added, had failed to prove
that the unlawful assembly had gathered with the “com-
mon objective” of damaging Muslim property.19 This use of
legal proceduralism, in turn, aggregates and transforms the
rioting crowd into a passive Hindu public.
The “Indian state is often characterized as one in
which ‘rule-following’ behavior is the bureaucratic norm”
(Sharma and Gupta 2006, 12). Such mundane but excessive
adherence to rules is also a way for state officials to absorb
extraordinary forms of violence within their everyday prac-
tices. The complexity of procedural legality allows state of-
ficials and lawyers to mask these performances as apoliti-
cal and technical: as authorless actions untraceable to any
specific political ideology (Ferguson 1994). By fixating on
procedural legality, the Gujarat judicial apparatus was able
to overwrite the arbitrariness, sheer violence, and illegality
that marked the cases. In Gujarat, however, this manipula-
tion of proceduralism did not simply reinforce the power of
the state to operate in the mode of erasure (Sharma 2013);
rather it became part of a larger process of destabilizing and
producing a certain type of minority identity—the Muslim
as unreliable and malicious.
The acquittal of the accused ultimately rests on the un-
reliability of the witness. The judge found that the presence
of all three witnesses at the scene of violence is suspect.
Even though the judge gave 11 reasons for dismissing the
case, his arguments fundamentally reinforced the common
point that the Muslim witnesses gave false testimony (khoti
jubaani). This mode of raising doubt about testimony is not
limited to this particular case. Defense lawyers presented
the differences between what is on record (anonymous vio-
lence) and witness testimony (violence by specific individ-
uals) as contradictions (virodhabas) that rendered the wit-
ness suspect. By controlling what gets “on record” (record
upar), the police and defense lawyers can turn the case on
its head. As the judge summed up Bazi’s case, some of his
arguments directly attacked the witnesses:
1. It appears that all three witnesses have tried to
forcibly implicate the accused.
2. The witnesses have given testimony that differs
[vadharani] from their statements to the police on
record.
3. The presence of the accused at the scene of offense
as witnesses is suspect.
4. In this case, none of the accused were arrested on
the spot during the offense, but were implicated after-
ward only on the basis of witnesses’ statements.20
The impunity effect  American Ethnologist
Police officials and defense lawyers in Gujarat mobilized ex-
isting legal techniques of suspicion to attack the witness.
Thus, the impunity effect does not lead officials to merely
acquit alleged perpetrators of violence but to attack the wit-
ness. Witness testimony does not merely disappear into the
abyss between what is on and off the record; it renders the
witness unreliable and his motivations for testifying sus-
pect. The witnesses are not only unreliable but also Muslims
who, out of malice and envy, are implicating members of
the “Hindu community.” By the end of the trial, the accused
had become the victims. In the Gujarat case we find that
the state can mobilize proceduralism to stage legal perfor-
mances that are procedurally banal but politically salient.
Thus, without taking any exceptional measures, the state le-
gitimizes the subjection of minorities.
The impunity effect
In light of the meteoric rise of Hindu nationalism in India,
first locally in Gujarat and then nationally, the impunity
effect sheds light on the entanglement of law, violence,
and state power within postcolonial democratic regimes.
It helps us understand regimes of legality that allow public,
even spectacular, violence to be seen, celebrated, inscribed,
investigated, debated, and yet dismissed, which in turn al-
lows majoritarian regimes, like Hindu nationalists in India,
to use antiminority violence as a form of government. In
this context, regimes use the enclosing and disclosing of vi-
olence as key techniques to inscribe, frame, and repackage
violence in ways that keep it visible but unaccountable.
In the aftermath of the public anti-Muslim massacre,
the Hindu-nationalist regime in Gujarat struggled to dis-
tance itself from accusations regarding its complicity with
the rioters, especially when many perpetrators and Hindu-
nationalist organizations openly described their role in the
massacre. When growing national and international de-
mands for accountability and justice became impossible to
ignore or dismiss, and activists and NGOs brought Mus-
lims to the courts, the government built a legal scaffolding
that allowed it to both discuss spectacular violence and ab-
sorb it within a wider project to establish a Hindu majori-
tarian form of rule. For Muslims, this reality made testifying
in court a dangerous, even farcical, exercise in which vio-
lence in broad daylight by well-known persons was exam-
ined, discussed, and debated, but not punished.
In an important debate concerning the aftermath of vi-
olent conflict, John Borneman has argued, “Legal account-
ability is not just desirable but also necessary, although only
in democracies” (2011, 74). But in democracies like India,
which have large minority populations and which speak
the language of legitimacy associated with democracy (“due
process” and “the rule of law”), particular regimes can
effectively use the legal process to legitimize antiminor-
ity violence (Chatterjee 2014). No doubt some cases that
127
American Ethnologist  Volume 44 Number 1 February 2017
were moved out of Gujarat produced important results. But
the underlying premise that criminal investigation and the
prosecution of perpetrators would produce accountability
and justice was not questioned.
In hindsight, it would be easy to understand the events
in Gujarat as yet another case of victors’ justice, demon-
strating the law’s ability to reinforce the hegemony of
the dominant group. What is different here is how the
very processes of recording and interpreting the violence
were transformed by state actors to enact sectarian politics
against Muslims, religious minorities within a secular state.
Activists in Gujarat attempted to use official regimes of evi-
dence and due process to challenge impunity and break the
silence surrounding the attacks against Muslims. But every-
day legality—techniques of delay and deferral, the politics
of police writing, and the techniques of doubt and suspi-
cion built into the adversarial legal system—were ironically
set aside under the familiar but ultimately unhelpful ideas
of state failure. The legal language of evidence and proof, es-
pecially the need to produce documentary evidence, forced
survivors and activists to “engage and audit the state in its
own idiom” (Sharma 2013, 310).
Instead of “vernacularizing” human-rights discourses
(Merry 2006) within the legal context in Gujarat, pursu-
ing the pursuit of justice had the opposite effect: the
legalism of the trial disabled accountability. Because the
Indian state has a functioning and well-respected judicial
system, perpetrators and state officials transformed rou-
tine evidentiary and documentary techniques to coalesce
Hindu supremacy with bureaucratic processes. The Hindu-
nationalist regime galvanized the violence and its aftermath
into a larger project of transforming the idiom of statecraft
itself, one that openly privileges Hindus over Muslims. Once
we understand precisely how locally engaged justice initia-
tives can fold into, and reinforce, structures of social and
political exclusion, even as they attempt to contest injustice,
we can focus on why the criminal-justice system in mod-
ern states very easily absorbs exceptional violence against
minorities. This finding should give pause to human-rights
activists and civil-society actors who want to use the law to
fight impunity, helping them reconsider the role of ordinary
law in legitimizing extraordinary violence.
Finally, how does the impunity effect help us under-
stand the state and state formation differently? Although
masking and invisibility (Abrams 1988) are integral to state
power, in some contexts regimes are only too happy to
unmask the partisan nature of “the state” and “the law.” If
we unhinge the idea of the state from notions of erasure,
invisibility, and illegibility—notions that invite us to unveil
the hidden violence of the state underneath its so-called
rational order—then we can reexamine the power of dis-
closures, documents, and techniques that remains on the
surface of modern states but is often ignored. While recent
work on the state has focused on the invisible, the margins,
128
the hidden, and the magical aspects of state formation, the
Indian case shows that in some contexts, the explicit parti-
san nature of the state and its everyday rituals strengthens
its legitimacy and power to govern. The Indian case also
demonstrates that impunity is not merely a problem of
“weak states” or of societies undergoing radical transitions,
but a resource and feature of modern states everywhere.
Notes
Acknowledgments. I am grateful to AE’s anonymous reviewers
for helping me to see this article in a fresh light, and to editors
Niko Besnier and Pablo Morales for their generous feedback. I
wish to acknowledge the financial support of the Program in
Global Governance, funded by the Erin Jellel Collins Arsenault
Trust, at the Institute for the Study of International Development,
McGill University. The research for this article was supported by
the Wenner-Gren foundation and versions of this article were
presented at the American Anthropological Association meetings
(Chicago), South Asia Legal Studies preconference workshop
(Madison), Emory Postcolonial and Colonial Studies workshop,
and Law and Social Science Network Conference (Sri Lanka). I am
grateful to the organizers and the audiences for their comments.
I am indebted to Hemangini Gupta, Saygun Gokariksel, Ram
Natarajan, Zinaida Miller, V. N. Rao, Navyug Gill, Gyan Pandey,
and Bruce Knauft for their feedback on earlier drafts. I wish to
thank David Nugent for his comments on innumerable drafts and
for inspiring many of the arguments. Ram Narayan Kumar, Harsh
Mander, Johanna Lokhande, and Prita Jha have supported my
research in Gujarat. Thanks also to my friends at JF, especially Afroz
Apa and Kishorebhai, for their generosity. I am grateful to Johanna
Lokhande and Krishan Singh for translating the abstract into
Gujarati and Hindi. I am solely responsible for any errors in the
article.
1. All names are pseudonyms. For a detailed overview of steps
taken by the Gujarat government to intimidate human-rights
activists and impede survivors’ attempts at accountability, see
Human Rights Watch 2004.
2. I have used the following human-rights organization reports
on the 2002 violence: Concerned Citizens Tribunal 2002; Helie et al.
2003; Human Rights Watch 2002, 2003, 2004.
3. Judicial delays are also a structural aspect of Indian courts. Ac-
cording to one estimate, more than 30 million cases are awaiting
decisions in different courts across India (Krishnan and Thomas
2015).
4. Unless otherwise indicated, all courtroom quotations are
from my field notes. Other quotations come from courtroom pro-
ceedings and legal documents, including police FIRs and judg-
ments, which I have translated from Gujarati to English. To preserve
the anonymity of people who appear in these documents, I have re-
placed their names and other identifying details with letters (A, B,
C, etc.).
5. Borrowing from critical legal theorists, I understand legality
as a way to distinguish between two different understandings of
the law. Everyday legality is understood less as a definite system of
rules and more as a culture of legality that includes an “indeter-
minate system of meanings manipulated in actual social practice”
(Heyman 1999, 11) by a range of state and nonstate actors across
social fields (Falk Moore 1978).
6. This data comes from a report (IHRCRC 2014) on the legal af-
termath of the 2002 violence prepared by the International Human
Rights and Conflict Resolution Clinic at Stanford Law School in col-
laboration with human rights lawyers, community activists, and

nonprofit organizations. The lack of accountability in Gujarat is not
unprecedented; the overall conviction rate for all riot-related cases
in Gujarat, according to the Stanford report, is 9.6 percent (IHRCRC
2014, 25).
7. The Supreme Court of India reopened nearly 2,000 cases out
of 4,252 that the police had closed. It also transferred a few cases
out of Gujarat because a fair trial there was impossible. It later set
up a special investigation team that concluded there was “no pros-
ecutable evidence” against Narendra Modi and other state officials.
An amicus curiae, however, suggested that Modi could be prose-
cuted for “promoting enmity among different groups on grounds
of religion” (Times of India 2012).
8. Gardiner Harris and Hari Kumar, “Stiff Sentence for For-
mer Gujarat Minister,” New York Times, August 31, 2012, accessed
March 15, 2015, http://india.blogs.nytimes.com/2012/08/31/stiff-
sentence-for-former-gujarat-minister/.
9. Ibid. One of the major events marked by a New York Times
time line of the Gujarat riots is the “intervention of the Supreme
Court of India” and coverage of the landmark cases in which the
courts actually convicted a minister (Sinha and Suppes 2015).
10. First Information Report, no. 70/02, Vatva Police Station,
Ahmedabad.
11. Bazi’s cross-examination in Metropolitan Magistrate Court
no. 13, 28 July 2011, p. 3.
12. Gafar’s cross-examination in State of Gujarat v. Girishbhai
Revabhai and Others, Sessions Case no. 474/09, Court of the City
Sessions Judge Court no. 15, Ahmedabad, 29 October 2010, p. 2.
13. The fact that most Hindu accused in Gujarat 2002 cases se-
cured bail very easily and roamed freely, even if the police briefly
detained them during their investigation, sent a strong message to
Muslim witnesses that court proceedings would end up being a fu-
tile exercise and may even jeopardize their personal safety. For in-
stance, a Hindu man who stabbed a Muslim witness was out on bail
and living in the same neighborhood as the witness.
14. Written defense arguments in State of Gujarat v. Nareshramji
Chamar and Others, Sessions Case no. 157/05, Court of Additional
Sessions Judge Court no. 9, Ahmedabad, 4 January 2013, p. 14.
15. Ibid., p. 3.
16. For a compilation of independent fact-finding reports and
analyses, see Varadarajan 2002.
17. Following a visit to Gujarat by the members of the com-
mission, on April 1, 2002, the National Human Rights Commis-
sion of India (NHRC) passed a suo motu order outlining its sug-
gestions to improve the human-rights situation in Gujarat: Order
on Gujarat Dated 31st May, 2002 (Substantive Recommendation),
Case no. 1150/6/2001-2, May 31, 2002, accessed March 15, 2015,
http://nhrc.nic.in/gujratorders.htm. The report notes that the Gu-
jarat government’s response to the violence “was often abysmal, or
even non-existent, pointing to gross negligence in certain instances
or, worse still, as was widely believed, a complicity that was tacit if
not explicit” (point no. 24).
18. State of Gujarat v. Nareshramji Chamar and Others, Sessions
Case no. 157/05, Court of Additional Sessions Judge Court no. 9,
Ahmedabad, 4 January 2013, p. 45.
19. State of Gujarat v. Girishbhai Revabhai and Others, Sessions
Case no. 474/09, Bhadra City Sessions Court no. 15, Ahmedabad, 29
October 2010, p. 26.
20. State of Gujarat v. Nareshramji Chamar and Others,
pp. 50–51.
References
Abrams, Philip. 1988. “Notes on the Difficulty of Studying the State
(1977).” Journal of Historical Sociology 1 (1): 58–89.
The impunity effect  American Ethnologist
Agamben, Giorgio. 2005. State of Exception. Translated by Kevin At-
tell. Chicago: University of Chicago Press. First published 2003.
Auyero, Javier. 2012. Patients of the State: The Politics of Waiting in
Argentina. Durham, NC: Duke University Press.
Baxi, Pratiksha. 2010. “Justice Is a Secret: Compromise in Rape Tri-
als.” Contributions to Indian Sociology 44 (3): 207–33.
———. 2014. Public Secrets of Law: Rape Trials in India. New Delhi:
Oxford University Press.
Berenschot, Ward. 2011. Riot Politics: Hindu-Muslim Violence and
the Indian State. New York: Columbia University Press.
Berti, Daniela. 2010. “Hostile Witnesses, Judicial Interactions and
Out-of-Court Narratives in a North Indian District Court.” Con-
tributions to Indian Sociology 44 (3): 235–63.
Borneman, John. 2011. Political Crime and the Memory of Loss.
Bloomington: Indiana University Press.
Brass, Paul R. 2004. “The Gujarat Pogrom of 2002.” Social Sci-
ence Research Council website. Accessed December 22, 2014.
http://conconflicts.ssrc.org/archives/gujarat/brass/index.html
#e4.
Chatterjee, Moyukh. 2014. “After the Law.” Economic and Political
Weekly 49 (16): 12–15.
———. Forthcoming a. “Against the Witness: Hindu Nationalism
and the Law in India.” Law, Culture and Humanities. Published
electronically April 8, 2016. doi:10.1177/1743872116643693.
———. Forthcoming b. “Bandh Politics: Crowds, Spectacu-
lar Violence, and Sovereignty in India.” Distinktion. Pub-
lished electronically December 8, 2016. doi:10.1080/1600910X
.2016.1258586.
Chopra, Surabhi, and Prita Jha. 2014. On Their Watch: Mass Vio-
lence and State Apathy in India. New Delhi: Three Essays Collec-
tive.
Comaroff, Jean, and John L. Comaroff. 2006. Law and Disorder in
the Postcolony. Chicago: University of Chicago Press.
Concerned Citizens Tribunal. 2002. Crime against Humanity: List of
Incidents and Evidence. Vol. 1 of An Inquiry into the Carnage in
Gujarat. Mumbai: Citizens for Justice and Peace.
Das, Veena. 2007. Life and Words: Violence and the Descent into the
Ordinary. Berkeley: University of California Press.
Das, Veena, and Deborah Poole, eds. 2004. Anthropology in the
Margins of the State: Comparative Ethnographies. Santa Fe, NM:
School for Advanced Research Press.
Doughty, Kristin C. 2014. “‘Our Goal Is Not to Punish but to Recon-
cile’: Mediation in Postgenocide Rwanda.” American Anthropol-
ogist 116 (4): 780–94.
Drexler, Elizabeth. 2006. “History and Liability in Aceh, Indonesia:
Single Bad Guys and Convergent Narratives.” American Ethnol-
ogist 33 (3): 313–26.
———. 2009. Aceh, Indonesia: Securing the Insecure State. Philadel-
phia: University of Pennsylvania Press.
———. 2010. “The Failure of International Justice in East Timor and
Indonesia.” In Transitional Justice: Global Mechanisms and Lo-
cal Realities after Genocide and Mass Violence, edited by Alexan-
der Laban Hinton, 49–66. New Brunswick, NJ: Rutgers University
Press.
Falk, Moore Sally. 1978. Law as Process: An Anthropological
Approach. London: Routledge.
Ferguson, James. 1994. The Anti-politics Machine: “Development”
and Bureaucratic Power in Lesotho. Minneapolis: University of
Minnesota Press.
Ferme, Mariane C. 2013. “Introduction: Localizing the State.”
Anthropological Quarterly 86 (4): 957–63.
Grover, Vrinda. 2002. “The Elusive Quest for Justice: Delhi 1984 to
Gujarat 2002.” In Gujarat: The Making of a Tragedy, edited by
Siddhartha Varadarajan, 355–88. New Delhi: Penguin.
129
American Ethnologist  Volume 44 Number 1 February 2017
Gupta, Akhil. 2012. Red Tape: Bureaucracy, Structural Violence, and
Poverty in India. Durham, NC: Duke University Press.
Hansen, Thomas Blom. 2001. “Governance and State Mythologies
in Mumbai.” In States of Imagination: Ethnographic Explorations
of the Postcolonial State, edited by Thom Blom Hansen and Finn
Stepputat, 221–54. Durham, NC: Duke University Press.
Helie, Anissa, Farah Naqvi, Sunila Abeysekara, Gabriela Mis-
chkowski, Meera Velayudan, Nira Yuval-Davis, and Rhonda
Copelon. 2003. Threatened Existence: A Feminist Analysis of the
Genocide in Gujarat. Mumbai: International Initiative for Justice
in Gujarat.
Heyman, Josiah McConnell. 1999. States and Illegal Practices.
Oxford: Berg.
Hinton, Alexander Laban. 2010. Transitional Justice: Global Mecha-
nisms and Local Realities after Genocide and Mass Violence. New
Brunswick, NJ: Rutgers University Press.
Hull, Matthew S. 2012a. “Documents and Bureaucracy.” Annual Re-
view of Anthropology 41: 251–67.
———. 2012b. Government of Paper: The Materiality of Bureaucracy
in Urban Pakistan. Berkeley: University of California Press.
Human Rights Watch. 2002. “We Have No Orders to Save You”: State
Participation and Complicity in Communal Violence in Gujarat.
New York: Human Rights Watch.
———. 2003. Compounding Injustice: The Government’s Failure to
Redress Massacres in Gujarat. New York: Human Rights Watch.
———. 2004. Discouraging Dissent: Intimidation and Harassment
of Witnesses, Human Rights Activists, and Lawyers Pursuing Ac-
countability for the 2002 Communal Violence in Gujarat. New
York: Human Rights Watch.
IHRCRC (International Human Rights and Conflict Resolution
Clinic). 2014. When Justice Becomes the Victim: The Quest for Jus-
tice after the 2002 Violence in Gujarat. Palo Alto, CA: Stanford Law
School.
Jaffrelot, Christophe. 2012. “Gujarat 2002: What Justice for the Vic-
tims?” Economic and Political Weekly 47 (8): 77–89.
Kelly, Tobias. 2011. This Side of Silence: Human Rights, Torture, and
the Recognition of Cruelty. Philadelphia: University of Pennsyl-
vania Press.
Krishnan, Jayanth K., and Patrick W. Thomas. 2015. “Surveying Key
Aspects of Sociolegal Scholarship on India: An Overview.” An-
nual Review of Law and Social Science 11:337–52.
Krupa, Christopher, and David Nugent. 2015. State Theory and An-
dean Politics: New Approaches to the Study of Rule. Philadelphia:
University of Pennsylvania Press.
Lazarus-Black, Mindie, and Susan F. Hirsch. 1994. Contested States:
Law, Hegemony, and Resistance. New York: Routledge.
Lyotard, Jean-François. 1988. The Differend: Phrases in Dispute.
Translated by Georges Van Den Abbeele. Minneapolis: Univer-
sity of Minnesota Press. First published 1983.
Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal
Consciousness among Working-Class Americans. Chicago: Uni-
versity of Chicago Press.
———. 2006. “Transnational Human Rights and Local Activism:
Mapping the Middle.” American Anthropologist 108 (1): 38–51.
Merry, Sally Engle, and Susan Bibler Coutin. 2014. “Technologies
of Truth in the Anthropology of Conflict: AES/APLA Presidential
Address, 2013.” American Ethnologist 41 (1): 1–16.
Mitta, Manoj, and Harvinder Singh Phoolka. 2007. When a Tree
Shook Delhi: The 1984 Carnage and Its Aftermath. New Delhi:
Lotus Collection.
Nader, Laura. 1990. Harmony Ideology: Justice and Control in a Za-
potec Mountain Village. Stanford, CA: Stanford University Press.
Nugent, David. 2010. “States, Secrecy, Subversives: APRA and Polit-
ical Fantasy in Mid-20th-century Peru.” American Ethnologist 37
(4): 681–702.
130
Rose, Nikolas, and Peter Miller. 1992. “Political Power Beyond the
State: Problematics of Government.” British Journal of Sociology
43 (2): 173–205.
Ross, Fiona C. 2003. “On Having Voice and Being Heard: Some
After-Effects of Testifying before the South African Truth and
Reconciliation Commission.” Anthropological Theory 3 (3): 325–
41.
Shamir, Ronen. 1990. “‘Landmark Cases’ and the Reproduction of
Legitimacy: The Case of Israel’s High Court of Justice.” Law and
Society Review 24 (3): 781–805.
Sharma, Aradhana. 2013. “State Transparency after the Neoliberal
Turn: The Politics, Limits, and Paradoxes of India’s Right to In-
formation Law.” PoLAR 36 (2): 308–25.
Sharma, Aradhana, and Akhil Gupta. 2006. “Introduction: Rethink-
ing Theories of the State in the Age of Globalization.” In The An-
thropology of the State: A Reader, edited by Aradhana Sharma
and Akhil Gupta, 1–41. Malden, MA: Blackwell.
Shaw, Rosalind, Lars Waldorf, and Pierre Hazan. 2010. Localizing
Transitional Justice: Interventions and Priorities after Mass Vio-
lence. Stanford, CA: Stanford University Press.
Sinha, Shreeya, and Mark Suppes. 2015. “Timeline of the
Riots in Modi’s Gujarat.” New York Times, updated Au-
gust 15. Accessed November 15, 2016. http://www.nytimes
.com/interactive/2014/04/06/world/asia/modi-gujarat-riots-
timeline.html.
Tarlo, Emma. 2003. Unsettling Memories: Narratives of the Emer-
gency in Delhi. Berkeley: University of California Press.
Taussig, Michael T. 1999. Defacement: Public Secrecy and the Labor
of the Negative. Stanford, CA: Stanford University Press.
Thomas, Kedron, and Rebecca B. Galemba. 2013. “Illegal Anthro-
pology: An Introduction.” PoLAR 36 (2): 211–14.
Thomson, Susan, and Rosemary Nagy. 2011. “Law, Power and
Justice: What Legalism Fails to Address in the Functioning of
Rwanda’s Gacaca Courts.” International Journal of Transitional
Justice 5 (1): 11–30.
Times of India. 2012. “Gujarat Riots: Amicus Curiae Says Naren-
dra Modi Can Be Prosecuted,” May 7. Accessed March 15,
2015. http://timesofindia.indiatimes.com/india/Gujarat-riots-
Amicus-curiae-says-Narendra-Modi-can-be-prosecuted/
articleshow/13034965.cms.
Uma, Saumya, and Vrinda Grover. 2010. Kandhamal: The Law Must
Change Its Course. New Delhi: Multiple Action Research Group.
Varadarajan, Siddharth. 2002. Gujarat: The Making of a Tragedy.
New Delhi: Penguin.
Varshney, Ashutosh. 2002. Ethnic Conflict and Civic Life: Hindus
and Muslims in India. New Haven, CT: Yale University Press.
Weber, Max. 1958. “Politics as a Vocation.” In From Max Weber: Es-
says in Sociology, edited by C. Wright Mills and Hans H. Gerth,
77–83. Oxford: Oxford University Press. First published 1918.
Wilkinson, Steven. 2005. Religious Politics and Communal Violence.
New York: Oxford University Press.
Wilson, Richard. 2001. The Politics of Truth and Reconciliation in
South Africa: Legitimizing the Post-apartheid State. New York:
Cambridge University Press.
Yagnik, Achyut, and Suchitra Sheth. 2005. The Shaping of Modern
Gujarat: Plurality, Hindutva, and Beyond. New Delhi: Penguin.
Moyukh Chatterjee
Institute for the Study of International Development
McGill University
3460 McTavish Street
Montreal, Quebec, H3A OE6, Canada
moyukh.chatterjee@mail.mcgill.ca