For several weeks in the early months of 2002, a pogrom singularly targeting Muslims was executed in the western Indian state of Gujarat. The violence resulted in deaths numbering in the thousands, egregious forms of sexual harm against women, massive displacements and loss of property, hearth and home. ‘Gujarat 2002’, as the pogrom has come to be popularly called, is independent India's most litigated and mediatised event of anti-minority mass atrocity. In the two decades since 2002, there has been much contestation over memory and forgetting related to the pogrom, played out in multiple sites such as litigation, films, literature, art, reportage, the economy and, of course, electoral politics. Of these sites, this book engages with judgments and films, by far the most ‘publicly available commemorative symbols, rituals, and technologies’ of collective memory of the pogrom.

The pogrom's legal and cinematic representations continue to provoke debates regarding state impunity, minority rights, liberalism, justice and the very meaning of India as a secular, constitutional democracy. Central to these post-pogrom debates is a concern with collective memory: the ways in which the pogrom and its aftermath are remembered through ‘shared meanings’ in public discourse, how these memories are invoked through ‘circuit[s] of culture’ like law and films, by whom and to achieve what end.

This book reads judgments and films—two key narratives of India's secular legal imagination9—as a posteriori sites of collective memory where the contestations about the Gujarat pogrom have been most pronounced. The first of these two narratives is written into the texts of four judgments of the Best Bakery case—a landmark criminal trial related to the massacre of a Muslim family in the city of Vadodara on 1 March 2002. The second narrative is framed in the images and sounds of three Bollywood films about the pogrom, namely Dev (2004), Parzania (2007) and Kai Po Che (2013).

These two narratives have had a shared temporal journey—the three films span a period of nine years (2004–13), coinciding closely with the years through which the trial in the Best Bakery case ran (2003–12) (Figure 1.1).

This chapter uses the J-A approach to read the memory of the pogrom that is recorded in the texts of the judgments of the Best Bakery trial, one of the most publicised and controversial cases arising out of the Gujarat pogrom. The Best Bakery case, as it has come to be popularly called, ran from 2003 to 2012, covering the whole hierarchy of the Indian criminal justice system. This chapter will focus specifically on four judgments: one by the sessions court in Vadodara, one by the Gujarat High Court in Ahmedabad and two by the Supreme Court of India in New Delhi.

While the reasoning and outcomes of the judgments differed across the courts, they were unanimous in their condemnation of the violence. My reading identifies a set of words as aesthetic tropes—‘rhetorical or figurative’ expressions that ‘are a feature of all [legal] discourses’5—which recur in the judgments. The use of these tropes valorises legalism, secularism and developmentalism as part of a particular state-making and state-preserving rationality.

I begin by providing a detailed re-description of the Best Bakery case and its judgments. The judges have organised the writing of all the judgments under two heads—judgment and reasons. I specifically attend to this organising structure of the texts to signpost the aesthetic tropes that each of the judgments deploys to build their narratives. I then use the J-A approach to read the texts of the judgments by paying particular attention to their forms of writing. These forms are categorised as record, image and mnemohistory.

Ways of Remembering has examined the role secular law plays in the ways in which the Gujarat pogrom is collectively remembered in the New India. In this regard, I worked with two interrelated aims. The first was to offer a critical reading of two memorial narratives of Gujarat 2002 from the disciplinary vantage point of law in/as aesthetics scholarship. The second was to expand the understanding of what constitutes secular law by considering how law and justice are imagined in a broader cultural context, both inside and outside of conventional sources. The book has pursued these aims by developing a methodological orientation that enables the reading of the narrative compact of law and cinema in the making and ordering of collective memory. What has my reading shown, and what is the significance of what has thus emerged? This concluding chapter is organised around these two questions.

I have offered an account of the Gujarat pogrom by unpacking the shared narrative in the texts of the judgments of the Best Bakery case that ran from 2003 to 2012, and in three Bollywood films whose release coincided with this period (2004–13). I have read these texts by developing a novel methodological orientation which I have called the jurisprudential-aesthetic (J-A) approach. This reading has shown that law and cinema, together, are key elements shaping the collective memory of the pogrom. This shared narrative participates in the production, circulation and maintenance of ways of remembering which both condemn the violence and simultaneously facilitate a particular kind of state-making and state-preserving rationality that masks secular law's complicities with religious violence. This rationality is composed by the triad of secularism, legalism and developmentalism.

I locate this inquiry within a temporal and ideological frame called the New India. The first post-pogrom decade is surveyed as a concentrated period of collective memory making. It is in this decade, buoyed by the success of the Hindutva project in Gujarat, that Narendra Modi became India's prime minister in 2014.

This chapter uses the J-A approach to read (see and hear) three Bollywood feature films that make the Gujarat pogrom central to their plots. The films are Dev, Parzania and Kai Po Che, whose release dates span the period 2004–13, overlapping with the Best Bakery case. Attention to this shared memorial journey of the judicial and the cinematic will further reveal their narrative compact in the making and ordering of collective memories of the pogrom.

I show how narrative tropes and cinematic techniques are used and repeated in the films to reconstruct the memory of the pogrom and project imaginations of justice. The J-A lens examines how the films mobilise spectatorial publics, by bestowing on them the authority to pass judgment on both the cinema and the pogrom. The films severally and collectively train their publics in ways of remembering the pogrom as a story of the triumph of secular law over religious violence. In this way of remembering, the lineaments of the New India—the work of the state-making and state-preserving rationalities in legalism, secularism and developmentalism—become visible in the texts of the films.

In my J-A reading of the texts of judgments in the previous chapter, the judgment form was considered to be a record of images, by way of the aesthetic tropes embedded in their language. In my J-A reading of the films in this chapter, I will pay attention to how the cinematic form brings together word, image and sound to mobilise judgment.

The chapter opens with a brief explanation of how each of these films inaugurates a relationship between cinema and the spectator through the use of a specifically Indian practice of state-sanctioned legal certification and a standard disclaimer.

This book studies two narratives of collective memory of the 2002 anti- Muslim pogrom in Gujarat from a law in/as aesthetics perspective. The first is written into the texts of the judgments of the Best Bakery case, a key criminal trial related to the pogrom, and the second is captured in the images and sounds of three Bollywood films that make the pogrom central to their plots. I have developed the jurisprudential-aesthetic (J-A) approach as a lens for reading the texts of the judgments and films not as discrete narratives but as a shared one. My J-A reading will show that collective memories of the pogrom are shaped by the workings of a postcolonial state-making and state-preserving rationality.

This chapter describes the J-A lens as a critical legal approach to interpret my material. To discuss how I constitute the J-A approach, first, I explain why it is necessary to understand law's aesthetic dimensions as a minor jurisprudence. Second, I argue in favour of considering this minor jurisprudence of law and aesthetics as a narrative compact. Third, I animate the workings of the narrative compact as law in aesthetics and law as aesthetics. This chapter shows how law permeates cinema's imagination and how the J-A approach becomes necessary for an appreciation of cinema's lawscape. To do this, I indicate the key concerns that a study of law in/as cinema addresses, connect law in/as cinema scholarship and Indian film studies to describe the aesthetic specificities of the Bollywood genre and discuss what work the J-A approach will do to show how law and justice feature in Bollywood's cinematic imagination.

Constituting the J-A Approach

Law and cinema are, arguably, the two most publicly available records of collective memory of Gujarat 2002. The pogrom has been one of postcolonial India's most litigated events of mass violence, and by far the most mediatised of all anti-minority religious conflagrations. The Best Bakery case—whose judgments are the focus of Chapter 3—attracted huge media attention as the first high-profile trial related to the pogrom. The three Bollywood films (which I study in Chapter 4) released across theatres all over India are now available on DVD, have been broadcast on television and are streaming on online platforms.

‘Testimonial to a Lack’

What is Upendra Baxi's contribution to jurisprudence in India? If one were to engage in a playful speculation about the ways in which lawyers will answer this question, what might some imaginative responses yield? If you are a practising lawyer—I am not, so this is a hazardous guess—he will be considered a respected legal academic who has written a lot on the Constitution and the Supreme Court, but hopelessly theoretical for a practitioner's use. If you are a judge (am I bordering on contempt?)—his stature would invite the salutation ‘brother’, but he will also be considered too much of a polemicist who will tear through the myth of judicial propriety. If you are a practising lawyer of the human rights kind—which also I am not, but can risk a more favourable guess—he is a key figure who extols the power of social action litigation, and has encouraged many law students (who have been either taught by him or have read or heard him) to not go down the path of taking up a corporate law job but to dedicate themselves to litigating against the impunity with which the state and corporations perpetuate violence against the poor, despised, and suffering. If you are an activist (which I have been in a past life with some remaining traces, so can speak with contingent authority), Baxi's own activism offers strategies for how law can be used by lawyers and people's movements for social transformation, while you continue to subject law to ethical interrogation.

If you are a legal academic (which is the skin that I have lived in for a fair bit of time now), he is a Dumbledoreesque figure2 for those few in India who engage in what can broadly be called critical legal scholarship or legal theory on the left or activist scholarship.

INTRODUCTION

The growth of the international women's rights movement and its emergence as a field of research and advocacy has led to a valuable but increasingly self-contained discourse, often cut off from developments in postcolonial conditionalities (‘Postcoloniality’), on the one hand, and conceptions of the different legal contexts in which international human rights operate, on the other. Such a trajectory of ‘development’ in human rights standards for women have no doubt had an enormous impact on women's lives worldwide, but simultaneously it is also culpable of creating the ‘woman-as-victim’ subject, ‘geographically captive’ in the ‘barbaric’ cultures of the ‘Third World’.

In this article I will briefly map the developments that led to the integration of gender into the international human rights law discourse and examine how the language of ‘violence’ and ‘respectable victim hood’ (from Vienna 1993 to Beijing 1995) has been privileged leading to the dislocation of ‘discrimination’ as envisaged by the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), as the primary index for measuring women's human rights violations. […]

A critique of the international asylum adjudication system is necessary to do a reality check with regard to what it can exactly offer when it comes to drawing the fundamentals of refugee rights guarantees from the basic principles of international human rights law.