India: After the Law - Notes on Gujarat 2002 | Moyukh Chatterjee

Economic and Political Weekly, Vol - XLIX No. 16, April 19, 2014

After the Law: Notes on Gujarat 2002

by 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 naïve or self-blinded will equate the failure of "prosecutable evidence" as the last word on justice in Gujarat.

Moyukh Chatterjee (moyukhchatterjee@gmail.com) is a doctoral student at the Department of Anthropology, Emory University, the US.

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.

An Ahmedabad Metropolitan Court recently dismissed Zakia Jafri’s petition challenging the Special Investigation Team’s (SIT) closure report. The verdict has been predictably hailed in television studios as Gujarat Chief Minister Narendra Modi’s 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 SIT’s 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 Jafri’s 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 Jafri’s 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.

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 Modi’s 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 Modi’s 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 SIT’s 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 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 political-juridical 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 Commission’s (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 FIRs with the police. Similarly, the Concerned Citizens Tribunal’s 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 naïve 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 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? Let’s 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”. 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 judge’s chair sat at the head of the room like a prop in a play: a high-backed plush red-leather 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 Wahidabano’s 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 Amalibhai’s 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 matter to accommodate a more urgent matter. Meanwhile, the defence lawyer approached Amalibhai’s 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 isn’t 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 judge’s 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? He’s a Hindu, he’s 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 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 minister’s 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 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 authority’s 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 “Gujarat’s communal violence can be seen as an outcome of the particular way in which the state has come to be embedded in Gujarat’s 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.

Modi’s politics of Gujarati pride and asmita has allowed him to further entangle his own culpability with Gujarat’s honour. Is it surprising that Gujarat’s 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 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 Jafri’s 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).

In Conclusion

It is not surprising that Modi and his supporters would like us to confuse the ethical and the legal – our courts are 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 ready-made one-size-fits-all answers. How do we deal with a popularly elected anti-minority regime? What does Gujarat 2002 say about the quality of India’s democracy? But with the elections upon us, like the judges in Gujarat, we must make a decision.

References

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

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-mag..., 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/arti..., accessed on 6 March 2014.