Normalizing Violence: Transitional Justice and the Gujarat Riots


NORMALIZING VIOLENCE: TRANSITIONAL
JUSTICE AND THE GUJARAT RIOTS

RATNA KAPUR*

How does it feel to be Indian Muslim? To be constantly told by
rabid elements that your real home is across the border?'

In February and March of 2001, the Vishwa Hindu Parishad
(VHP-World Hindu Council), a religious-based organization set up to
mobilize "the Hindu masses," sounded the drum roll of the Ram Mandir
(Ram Temple) movement. The primary objective of the movement is to
construct a temple on the very spot in Ayodhya where the mobs of the
Hindu Right tore apart a sixteenth century mosque with their bare hands in
December 1992. The VHP declared that the mosque stood precisely on the
spot where "God" was born and determined to carry out its objective of
constructing the temple in pursuit of the broader mission of the Hindu
Right, the establishment of a Hindu state for a nation consisting primarily of
Hindus.2 In preparation for the event, their foot soldiers visited the site of
the now cordoned off area to pay respects and prepare for the bhumipuja
(grand prayer). While some of these participants were returning from the
site by train, allegedly shouting god chants, ("hail 'ram rajya "'--Hail to the
Rule of Lord Ram) and anti-Muslim slogans ("Muslims Bharat chodo!"--
Muslims leave India!), their bogey was purportedly set alight by mobs of

* Director, Centre for Feminist Legal Research, New Delhi, India. The author is
currently a visiting faculty member at the Geneva School for Diplomacy and International
Relations. An earlier version of this paper was presented at the workshop on Gender and
Transitional Justice, organized by the Centre for Transitional Justice in Bellagio, Italy,
March 17-21, 2004. I am grateful to all the participants for their helpful comments and
suggestions.

1 DEV (Applause Entertainment, Udbhav Dreamzone 2004).

2 K.C. Sudarshan, the former appointed leader (sarsanghachalak) of the Rashtriya

Swayamsevak Sangh (RSS) (Association of Nationalist Volunteers), the ideological
component of the Hindu Right, stated that every citizen in India is a Hindu, for Hinduism is a
way of life and not a religion. "As the people living in France are called French, those in
Russia Russians, those living in Hindustan should be called Hindus." Every citizen of India
is a Hindu: Sudarshan, REDIFF ON THE NET, Apr. 6, 2002,
http://www.rediff.com/news/2002/apr/06rss.htm.



Columbia Journal of Gender and Law

Muslims as the train moved through Godhra station in Gujarat. The
carnage that followed left fifty-eight Hindus dead. This event ignited the
second catastrophic event-the slaughter of over two thousand Muslims
throughout the state of Gujarat both within sight of the state's law
enforcement officers, who simply stood by as witnesses to the massacre,
and, in some cases, with the active support of state officials.4

Dev, a Bollywood film directed by reputed filmmaker Govind
Nihalani, depicts the isolation of the Indian Muslim in the post-Gujarat
scenario where even secularists turned partisan, rendering the country's law
and order machinery into a force capable of the most horrifying violence.
At the center of the power game are two police officers-Dev Pratap Singh,
(Amitabh Bachchan) and Tejinder Khosla (Om Puri). Although the film is
located in Bombay, it serves as a metaphor for what happened in the
Gujarat riots in 2002. Dev, the Joint Commissioner of Police, is a proud and
seasoned police officer representing the liberal subject with complete faith
in the supremacy of law. Dev is the conscience of the film, and has a tough
time comprehending the real politics behind the riots. He is initially simply
disgusted, and refuses to see how the majoritarianism of the Hindus has
turned into a process of gradual disentitlement and marginalisation of the
Muslims. His "neutral" stance and fence-sitting political ideology persists

3 Rama Lakshmi, Mob Attacks Indian Train, WASH. POST, Feb. 28, 2002, at A13.

4 See also PEOPLE'S UNION FOR CIVIL LIBERTIES, AN INTERIM REPORT TO THE
NATIONAL HUMAN RIGHTS COMMISSION (2002), http://www.pucl.org/Topics/Religion-
communalism/2002/gujarat-nhrc-submission.htm [hereinafter PUCL INTERIM REPORT]

(discussing how some residents of Sama appealed to the Councillor of their region for
assistance, but the Councillor claimed he could not do anything). The Councillor

ranted at length about the unpatriotic and criminal nature of the Muslim community
(such as for instance their habit of abducting Hindu girls), and dwelt on the desirability
of Muslims going and living in "their own areas." He also produced a list which, he
explained, showed the voting patterns... in the most recent assembly bye-election, and
how Muslim localities had voted against the BJP. On being repeatedly asked whether he
could assure that there would be no further violence in the area, he replied that he could
not do so, and one of his associates explained that what had happened that day (Feb.
28th) was "only a sample," and that it was best to be prepared for what would follow
the next day.

Id. at annexure 2; see also Police: Criminals in Uniform, COMMUNALISM COMBAT,
Mar.-Apr. 2002, http://www.sabrang.com/cc/archive/2002/marapril/police.htm; Concerned
Citizen's Tribunal--Gujarat 2002, Annexure 9: Police Dereliction of Duty, 1 CRIME
AGAINST HUMANITY: AN INQUIRY INTO THE VIOLENCE IN GUJARAT 225 (2002), available at
http://www.sabrang.com/tribunal/tribunal 1 .pdf [hereinafter CRIME AGAINST HUMANITY].

[Vol. 15:3886



Normalizing Violence

throughout the film, until he is attacked by a young Muslim, Farhan
(Fardeen Khan), an unemployed law graduate who holds Dev responsible
for his father's death. Farhan's father, Ali Saheb, was accidentally shot and
killed by the police during a march protesting police injustices against the
Muslim community. Ali Saheb infused Farhan with ideas of patriotism,
non-violence, and faith in the democratic process and rule of law, which are
the very same liberal values to which Dev subscribes, but the violent death
of his father leaves Farhan emotionally orphaned and disillusioned. He
chooses the path of violence and joins forces with a corrupt and ambitious
politician, Lati, with the intent to kill Dev.

Unlike Dev, who goes through a process of gradual realization of
the enormity of the politics behind the isolation of minorities in India,
Tejinder represents a one-dimensional, almost villainous communalization.
He is a boorish communal cop who throws shocking lines into the film's
narrative. "They're all terrorists," claims Tejinder, who lives by his
communal convictions until the very end, including at the moment of his
suicide.

The untangling of the complex ideological tension between the
films main protagonists is set against a subtext-Bollywood's mandatory
romantic interlude. A rather infantile love story unfolds during the time of
the communal riots, where Farhan's attachment to the young Muslim
woman next door, Aaliya (Kareena Kapoor), is celebrated through furtive
glances thrown at one another from a terrace. Aaliya's role is modeled on
Zaheera Sheikh, a key eyewitness in the real life Vadodara's Best Bakery
Case being fought through the courts in India, which has become
emblematic of the destruction and killings that took place in the Gujarat
riots.6 In what constitutes perhaps a climactic moment in the film, Aaliya, at
the behest of Dev, comes forward before the police commission to expose
the powerful rioters. She steps forward to reveal the names of the politicians
and police officers who encouraged the rapes and murders of hundreds of
Muslims, including members of her own family and friends. Aaliya's
testimony represents a moment of complex subjectivity. It is not expressed
exclusively through the lens of victimization, nor as a free agent exercising
her freedom to complain about the violation of her individual rights. She is
aware that her act is condemned by members of her own community who
are convinced that no justice can be secured from a Hindu dominated
structure, process,, and state, and that justice can only be attained through

5 DEV, supra note 1.

6 See infra Section VII.

2006]



Columbia Journal of Gender and Law

violent revenge. At the same time, members of the Hindu Right, including
the chief minister of the state (mimicking the real life staunch Hindu
nationalist Chief Minister of Gujarat, Narender Singh Modi), seek to
characterize her accusations, as well as Dev's efforts to bring the truth
before a commission of inquiry, as further examples of appeasement of the
minorities and a failure to recognize that the riots were simply an
expression of anger on the part of Hindus against decades of oppression by
the Muslim minority. Aaliya's complex subjectivity is constituted in and
through the discourses of Hindu majoritarianism and Muslim religious
identity.

The film ends with Farhan assuming his lawyerly robes to complete
Dev's task of securing justice for the battered Muslim community. But Dev
himself is killed by his lifelong friend Tejinder, who is unable to
comprehend Dev's defense of these "traitors" and "foreigners" whose holy
land lies outside of India, and whose loyalties are always suspect. Dev's
murder exposes how transitional justice does not find a neat and tidy
resolution in and through the establishment of a commission of inquiry and
an emphasis on prosecutions. The legal, political, and religious discourses
of the Hindu Right that constitute the space, location, and subjectivity of
Aaliya and the entire Muslim community remain unaddressed, and continue
to proliferate even after such inquiries are brought to a close.

Dev becomes the point of departure for my discussion of the large-
scale riots that took place in Gujarat, a western state in India, in 2002. 7 My
discussion of the riots illustrates how transitional justice cannot be limited
simply to a focus on the victim subject and repair through the criminal
justice process. It is about how the past informs the present and the future,
and how discursive practices can themselves produce the large-scale
traumas of the sort that took place in Gujarat.

Transitional justice is a term that generally refers to justice that is
provided to individuals or groups during a period of transition, which
usually takes the form of prosecuting perpetrators for gross human rights
violations and obtaining redress for the victims of horrific crimes. 8

Historically, these mechanisms have been set up in societies that are
ostensibly in transition, such as from military to democratic rule, as in

7 For continuous update on the progress of the prosecutions and other issues related
to the Gujarat riots, see The Gujarat Riots Homepage,
http://www.rediff.com/news/godhra.htm (last visited Jan. 18, 2006).

8 See Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights
Violations of a Prior Regime, 100 YALE L. J. 2537, 2544 (1991); David A. Crocker,
Reckoning with Past Wrongs: A Normative Framework, 13 ETHICS & INT'L AFF. 43 (1999).

[Vol. 15:3



Normalizing Violence

Chile, or from apartheid to democratic rule, as in South Africa. In such
instances, mechanisms such as truth commissions or prosecutions, as well
as other forms of legal accountability and institutional reform, are set up to
bring about some form of acknowledgment of the harm done-redress as
well as closure. While the primary focus of transitional justice on "gross
human rights violations" in the form of killings, disappearances, custodial
torture, and abductions/illegal imprisonment is important, it remains
"caught up in a liberal, legalistic, and state-oriented approach, despite the
failures of such an approach to address the most important sources of
human rights violations and anti-democratic power." 9 What this focus
leaves out is how the institutional arrangements and structures may be
deeply implicated in the production of the violation or the harm in the first
place. It tends to draw clear straight lines between guilt and innocence,
leaving a sense that the very state responsible for the violent ruptures is able
to reincarnate and bring about reconciliation and repair. It achieves this by
interpreting "suffering, violence, and moral violation" through a clear set of
moral or legal rules in a way that enables "the identification and punishment
of specific-individual or collective-perpetrators, while simultaneously
protecting oneself against any implication in the violation." 10

This Article focuses on how the Gujarat riots in the post-colonial
context of India appear to fall outside the traditional assumptions and
framework of transitional justice. The Article moves beyond such
traditional assumptions, critically examining how injustices are normalized
by demonstrating how the violence against the Muslim community, and
Muslim women in particular, was partly a product of the legal, political, and
religious discursive practices of the Hindu Right. The story of the Gujarat
riots and subsequent efforts to address the harms and injuries through
prosecution and apology does not pay attention to the institutional and
discursive mechanisms within a democratic polity that can produce
moments of extreme violence, moments that cannot be written off as
aberrational and deviant. This Article endeavors to expose how the Gujarat
riots of 2002 cannot be addressed exclusively within a prosecutorial or
reparations framework that seeks to prosecute individual wrongdoers who
carried out such atrocities and provide compensation to those who suffered.
It exposes how the riots were a logical product or outcome of a discursive

9 Vasuki Nessiah & Alan Keenan, Human Rights and Sacred Cows: Framing
Violence, Disappearing Struggles, in FROM THE MARGINS OF GLOBALIZATION: CRITICAL
PERSPECTIVES ON HUMAN RIGHTS 261, 281 (Neve Gordon ed., 2004).

10Id. at 286.

2006]



Columbia Journal of Gender and Law

strategy pursued partly in and through liberal rights discourse and not in
opposition to such rights.

This Article focuses on at least two discursive shifts in the strategy
of the Hindu Right. The first is the pursuit of equality rights discourse to
advance its majoritarian agenda in ways that seem highly logical,
persuasive, and have come to constitute part of common sense. The second
is to cast Muslims as constantly appeased, fomenting the ire of Hindus
within the nation. The Muslim is depicted as dangerous, alien, and lustful-
an alien "other" from whom the honor and integrity of Hindu women must
be protected. Gujarat symbolizes the culmination of a strategy that justifies
retribution for the oppression and violence inflicted by the Muslim minority
on the Hindu majority, including its women, as an act of self-defense on
behalf of Hindu women as well as the Hindu nation.

The ability to use rights discourse to pursue a deeply ideological
agenda exposes how a project conceived in terms of progress and
emancipation has a dark side which is not addressed within traditional
transitional justice frameworks of redress. At the same time, the so-called
"extraordinary violence" that took place within the context of Gujarat,
resulting in the large scale massacre of Muslims and rapes of Muslim
women, comes to be situated within the enabling conditions of normalized
violence, including the historical predicament of Muslim minorities in
India, the ideologies of Hindu majoritarianism built into dominant ideas of
the nation-state, and the assumptions about women's roles in the normative
family and the cause of the nation. While the focus on individual
prosecutions and accountability is important, my concern is with the
broader discursive framework that normalizes extraordinary violence and its
common sense appeal.

1. THE CONTEXT: HINDU MAJORITARIANISM

The Hindu Right is a contemporary right-wing religious and
nationalist movement that is dedicated to the ideology of Hindutva-the
establishment of India as a Hindu State. It is a political ideology completely
distinct and separate from Hinduism, the religion, though the Hindu Right
has been quite successful in its efforts to blur this distinction. The Hindu
Right refers to the main organizations and political parties in the current
phase of Hindu communalism in India-namely, the Bharatiya Janata
Party (BJP-Indian People's Party), the political wing of the Hindu Right,11

the Rashtriya Swayamsevak Sangh (RSS-Association of National

" The BJP led the national coalition government between 1999 and 2004.

[Vol. 15:3



2006] Normalizing Violence 891

Volunteers), which is the main ideological component of the movement, 2

and the Vishwa Hindu Parishad (VHP-World Hindu Council), the
promoter of the religious ideology of the party.' 3 The VHP was established
and trained by the RSS. Its top leaders are all members of the RSS, and
many are also members of the BJP. Other smaller bodies include the
militant and virulently anti-Muslim Shiv Sena (SS-"foot soldiers of Lord
Shiva") and the Bajrang Dal (BD-Hanuman Squad). The BD, the official
youth wing of the VHP, was established in the mid-1980s. The BD is
deployed primarily for vendettas and in what one scholar describes as "tit-
for-tat situations."'

14

The basic precepts of the ideology of the Hindu Right are that
Muslims and Christians are to be considered suspect because, unlike
Hindus, their holy lands lie outside of India.' 5 Even though they share the

12 The RSS was founded in 1925. It has small training units, shakhas, operating

throughout the country. These units hold ideological and combat training sessions on a daily
basis. The training is a blend of physical exercises, martial arts, speeches and tales, songs
and theatre, games, and organized sports. Each effort replicates the same message and sense
of purpose in a different medium. They also run schools, leisure centers, cultural
organizations, welfare societies, tribal and slum-level educational projects, and audio and
video stations. They control temple networks, associations of priests, and sadhus (holy men),
and, as in the case of Gujarat, they sometimes rule over states. For a detailed analysis of the
RSS, its ideology, history, politics, and leadership, see DES RAJ GOYAL, RASHTRIYA

SWAYAMSEWAK SANGH (2000); PRALAY KUNUNGO, RSS'S TRYST WITH POLITICS: FROM

HEDGEWAR TO SARVARKAR (2002); Ainslie T. Embree, The Function of the Rashtriya
Swayamsevak Sangh: To Define the Hindu Nation, in THE FUNDAMENTALISM PROJECT:

ACCOUNTING FOR FUNDAMENTALISMS 617 (Martin E. Marty & R. Scott Appleby eds., 1991).

13 The creation of the VHP in 1964 was founded at the behest of the RSS, with the
intention of infusing the politics of Hindutva with a specifically religious vision. Unlike the
RSS, which had functioned as an elite organization, the VHP was intended to popularize
Hindutva identity among "the masses." This phase of populism has been characterized by
increasingly extreme and violent anti-Muslim rhetoric, which, in the contemporary period,
has been repeatedly (and successfully) defended in the courts as an exercise of the right to
free speech. For more on communalism, see BIPAN CHANDRA, COMMUNALISM IN MODERN

INDIA (1984); GYANENDRA PANDEY, THE CONSTRUCTION OF COMMUNALISM IN COLONIAL

NORTH INDIA (1990); AFTER COLONIALISM: IMPERIAL HISTORIES AND POSTCOLONIAL

DISPLACEMENTS (Gyan Prakash ed., 1994).

14 Tanika Sarkar, Semiotics of Terror: Muslim Children and Women in Hindu

Rashtra, 26 ECON. AND POL. WKLY. 2872, 2874 (2002).

15 The Hindu Right has its basis in revivalist and nationalist movements of the
nineteenth century, which sought to revitalize Hindu culture as a strategy for resisting
colonialism. As it developed through the twentieth century, it began to take on its
distinctively right-wing, anti-minority stance, particularly in the 1920's with the publication
of Vinayak Damodar Savarkar's Who is A Hindu?, and the founding of the RSS. See
PANDEY, supra note 13, at 210. Sarvarkar developed the idea of Hindutva, a communal



892 Columbia Journal of Gender and Law [Vol. 15:3

same "Fatherland," India, their allegiances are often questioned on the
grounds that they have their religious fealties in foreign lands. Thus, the
Hindu Right and the political philosophy of Hindutva are antagonistic to
difference. Madhav Sadashiv Golwalkar, who led the RSS from 1940-1973,
for example, stated:

[A]I1 those ... can have no place in the national life, unless they
abandon their differences, and completely merge themselves in
the National Race. So long, however, as they maintain their
racial, religious and cultural differences, they cannot but be only
foreigners .... [T]he strangers have to acknowledge the National
religion as the State religion and in every other respect
inseparably merge in the National community. 16

A central paradoxical strategy of the Hindu Right is to install
religion and culture as primary attributes of nationalism and national
identity and, at the same time, deploy the discourse of secularism, free

discourse, which seeks to constitute Hindu subjects to understand the fractured society in a
particular way. As Basu and others have stated: "[alt the heart of Hindutva lies the myth of a
continuous thousand-year old struggle of Hindus against Muslims as the structuring principle
of Indian History. Both communities are assumed to have been homogenous blocks--of
Hindu patriots, heroically resisting invariably tyrannical, 'foreign' Muslim rulers." TAPAN
BASU ET AL, KHAKI SHORTS, SAFFRON FLAGS: A CRITIQUE OF THE HINDU RIGHT 2 (1993);
CHETAN BHATT, HINDU NATIONALISM: ORIGINS, IDEOLOGIES AND MODERN MYTHS (2001)
(arguing that, while the Hindutva movement has been of relatively recent origin, the Hindu
nationalist political and ideological processes have been in formation since the nineteenth
century and continue to impact on contemporary politics); see also CONTESTING THE NATION:
RELIGION, COMMUNITY AND THE POLITICS OF DEMOCRACY IN INDIA (David Luden ed., 1996);
THE SANGH PARIVAR (Christophe Jaffrelot ed., 2005); Paul Brass, The Gujarat Pogrom of
2002, CONTEMPORARY CONFLICTS: GUJARAT, http://conconflicts.ssrc.org/gujarat/brass/ (last
visited Mar. 23, 2006) (stating that the BJP party signature rally is of support for Hindu
political unity, at the expense of disenfranchising Muslims and Christians by supporting
violent outbreaks against both groups).

16 MADHAV SADASHIV GOLWALKAR, WE OR OUR NATIONHOOD DEFINED 53-54 (4th

ed. 1947). Golwalkar was very clear that there was no place for religious minorities who
failed to assimilate: they must

los[e] ... their separate existence ... to merge themselves in the national race .... [T]hey
must cease to be foreigners, or may stay in the country, wholly subordinated to the Hindu
Nation, claiming nothing, deserving no privileges, far less any preferential treatment-not
even citizen's rights.

Id. 55-56. The Hindu Nation was thus constituted in the writings of Golwalkar
through an attack on the very legitimacy of religious minorities, and on a denial of any
protection of minority rights within the Hindu Nation.



Normalizing Violence

speech, and equality to pursue what is in fact an anti-secular agenda-that
is, the establishment of a Hindu State. The Hindu Right works in and
through the discourse of rights, including secularism, equality, and free
speech, to pursue its religious and cultural vision. This vision is consistent
with and corresponds to the ideology of Hindutva-the casting of the
Muslim "other" as intolerant, suspect in terms of his loyalty to the nation,
and a threat to the security of the Hindu majority and the Indian nation. This
strategy reflects how the Hindu Right is engaged in a discursive struggle in
which they are attempting to establish their vision of Hindutva as
ideologically dominant. Through their collective efforts, they are seeking to
naturalize the ideas of Hindutva by making these ide
as a part of the "common sense" of an increasingly large segment of Hindu
society.

The Hindu Right has sought to promote and spread this
communalized discourse to an increasingly large segment of Hindu society,
through legal, political, and religious discourse. 17 Hindutva is a call to unite
against religious minorities; at best it is a call to assimilate these minorities
into the ostensibly more tolerant fabric of Hinduism, and in its more radical
form, it is a call to simply destroy them. In either mode, Hindutva is an
attack on the rights, and indeed, on the very legitimacy of religious
minorities. As a call to assimilate or otherwise undermine the very identity
and integrity of minority communities, it is based on a total disregard and
lack of respect for other religious groups."

17 The Hindu Right has continued to use Hindutva to attack the legitimacy of

minority rights. Hindutva continues to mean the assimilation of all minorities into the
majoritarian way of life. The concept of Hindutva retains its oppositional meaning: that is, it
continues to be constituted largely in relation to that which it opposes-Muslims and
Christians. For the ideologues of the Hindu Right, it is this effort to assimilate minorities
back into the folds of Hinduism that has given Hindutva its political character. The current
phase of popularizing the agenda of the Hindu Right through the VHP has not fundamentally
changed this political attack, but rather simply popularized it through the invocation of
religious discourse.

18 Unfortunately, even the Indian Supreme Court has failed to recognize this
political deployment of the term, which can only be seen as promoting enmity, disharmony,
and often hatred between religious groups. It has simply collapsed Hindutva with Hinduness
and as a description of the way of life for people living on the Indian subcontinent. Prabhoo
v. Prabhakar, A. I. R. 1996 S. C. 1113. For a full discussion of the case and its implications
on the meaning of secularism in India, see BRENDA COSSMAN & RATNA KAPUR,

SECULARISM'S LAST SIGH? Hindutva AND THE (MIs)RULE OF LAW (2001).

2006]



Columbia Journal of Gender and Law

II. THE GUJARAT RIOTS: EXTREME POLITICAL VIOLENCE
OR ORDINARY COMMON SENSE

In light of the ideological context and discussion of the politics of
Hindutva, the riots in Gujarat cannot be understood simply within the
confines of the notions of "gross human rights violations" or acts of
extreme political violence on which transitional justice claims are based.
The relationship of the riots with the prevailing notions of Muslims as
outsiders, an understanding constructed in and through political as well as
legal discourse, has simply become a part of common sense.

A central tool in producing such narratives includes the revising of
educational texts in the state-run schools. 19 The willingness to perpetrate
such extreme violence against Muslim neighbors was partly nurtured
through a conscious campaign to rewrite the educational curriculum
through the standpoint of Hindutva. The former Minister for Human
Resource Development, Murli Manohar Joshi, was a former regional leader
of the RSS. During his tenure between 1999 and 2004, he sought to
incorporate Vedic mathematics and astrology into the national educational
curriculum. At the state level, textbooks in Gujarat taught of Nazi Germany
by criticizing "German nationalism not for genocide, war, pogroms, and
book-burning, but merely for a false superiority complex" and
conspicuously left out any mention of the Holocaust. 20 Also, students were
encouraged to view minority religious groups as foreigners, intent on
colonizing India, who needed to be resisted.21

9 Anna Bigelow, Hulladiya Hanuman: The Return or the End of History?,

CONTEMPORARY CONFLICTS: GUJARAT, http://conconflicts.ssrc.org/gujarat/biglow/ (last
visited Apr. 23, 2006).

20 See, e.g., Siddhartha Deb, Textbook Troubles, BOSTON GLOBE, June 10, 2003, at

D I, available at http://www.countercurrents.org/comm-deb 100603.htm; see also Golwalkar,
supra note 16, at 43 ("German race pride has now become the topic of the day. To keep up
the purity of the Race and its culture, Germany shocked the world by her purging the country
of the semitic Races-the Jews. Race pride at its highest has been manifested here. Germany
has shown how well nigh impossible it is for Races and cultures, having differences going to
the root, to be assimilated into one united whole, a good lesson for us in Hindusthan to learn
and profit by.).

21 See also HUMAN RIGHTS WATCH, "WE HAVE NO ORDERS TO SAVE YOU": STATE

PARTICIPATION AND COMPLICITY IN COMMUNAL VIOLENCE IN GUJARAT, 14:3 (2002) 43,
available at http://hrw.org/reports/2002/india/gujarat.pdf [hereinafter WE HAVE NO ORDERS
TO SAVE YOU] (stating that the goal of the RSS was to introduce anti-minority propaganda
onto the streets and inside the classrooms); Smita Narula, Overlooked Danger: The Security
and Rights Implications of Hindu Nationalism in India, 16 HARV. HUM. RTS. J. 41 (2003)

[Vol. 15:3



Normalizing Violence

The prevailing narrative of Hindus as victims who were expressing
their suppressed anger persists in the statements of the Hindu Right in the
post-Gujarat scenario. The Chief Minister of Gujarat, Narendra Modi, a
hardcore member of the RSS, worked with the VHP, the religious wing of
the Hindu Right, to frame the February riots as an understandable
expression of the anger of Hindus in response to the Godhra killings. The
Godhra incident was cast as the murder of Hindu martyrs by Muslim rioters
and terrorists. 22 For Modi, the response to the Godhra killings was
completely understandable. He stated that the killings in Gujarat were
nothing more than a Newtonian law in action, a view that is founded on the
belief that Muslims do not belong to India, in much the same way as Hitler
thought the Jews did not belong in Germany and as white supremacists
believe that non-whites do not have a right to live in countries ruled by
whites. 23 In a press interview, Hareshbhai Bhat, the vice-president of the
BD and one of the architects of the BD in the 1980s in Gujarat, expressed
his belief that "[t]here was no rioting. This was just an expression of the
way the majority community has felt . . . . Most of the shops and
establishment burned down do not belong to Hindus. People wanted their
revenge for Godhra and they got it."'24 The Chief Minister added that, "[i]t
wasn't merely a communal riot, but something like a mass agitation. There
was already great anger against terrorism and anti-national activity. The
Godhra episode symbolized that. 25 While condemning the massacre, the

[hereinafter Overlooked Danger] (analyzing the implications of the 'communalization' of
India's educational system by the Hindu Right).

22 Modi is a pracharak, or regional leader within the RSS hierarchy. This position
requires him to be celibate, without any ties of family or job, and immerse himself totally in
the work of organizing, teaching, and disseminating the values of the Hindu Right. It is life
dedicated to spreading the message of hate. Sarkar, supra note 14, at 2875.

23 ISLAMIC HUMAN RIGHTS COMMISSION, GUJARAT: ONGOING GENOCIDE 28 (2002),

available at http://www.ihrc.org.uk/file/02novI 5gujaratongoinggenocide.pdf; SMITA
NARULA, HUMAN RIGHTS WATCH, COMPOUNDING INJUSTICE: THE GOVERNMENT'S FAILURE

TO REDRESS MASSACRES IN GUJARAT, 15 INDIA 12 (2003), available at
http://www.hrw.org/reports/2003//india0703/India0703full.pdf; Rajdeep Sardesai, Op-Ed.,
Did the media ransack shops, take lives, Mr. Modi?, INDIAN ExPRESS, Mar. 7, 2002,
http://www.indianexpress.com/ie20020307/opl .html.

24 Shabanaflays RSS leaders, HINDU, May 3, 2002, http://www.hinduonnet.comI
2002/05/03/stories/2002050307121100.htm; A.G. Noorani, Playing out a farce?,
HINDUSTAN TIMES, March 19, 2002, at 12.

25 Abdul Gafoor Noorani, Modi and His Visa, FRONTLINE, Mar. 12-25, 2005, at 42,

50, available at http://www.hinduonnet.com/fline/fl2208/stories/20050422000704700.htm;
see also V. Shankar Aiyar & Uday Mahurkar, It Wasn't Merely a Communal Riot, it was

2006]



896 Columbia Journal of Gender and Law [Vol. 15:3

RSS also stated that the violent aftermath of Godhra was a "natural
reaction., 26 The RSS further pointed out in its all-Indian general council
resolution that Muslims' "real safety lies in the goodwill of the majority. 2 7

Even the then Prime Minister endorsed this position, stating at the National
Executive Committee meeting of the BJP in Goa that the massacres in
Gujarat were a direct fall-out of the Godhra killings. He asked: "Who lit the
fire? How did the fire spread?" 28 Thus the killing of the Hindus in the train
at Godhra was projected as a very calculated and premeditated action on the
part of the Muslim community in Gujarat and served as a reminder to the
insecurity of Hindus within their own country.

The casting of the Hindus who were killed in Godhra as martyrs,
and the Muslims as terrorists and rioters, was played out in several
responses to the riots by both the State and the central government. Modi
ordered that the victims of Godhra, the Hindus, be awarded twice the
amount of compensation than the Muslims who had been slaughtered in the
subsequent rioting were awarded.2 9 Secondly, although over 2000 Muslims
were killed in the state, over sixty Muslims were arrested under the
Prevention of Terrorism Act of 2002.30 Not a single Hindu was arrested or

Like a Mass Agitation, Interview with Narendra Modi, INDIA TODAY, Mar. 18, 2002,
http://www.bjpguj.org/interviews/itwas.htm.

26 2 CRIME AGAINST HUMANITY, supra note 4, at 60 (2002).

27 Id.; So kind of the RSS!, HINDUSTAN TIMES, Mar. 19, 2002, www.india-

ewsbehindnews.com/mycgi/aianewsagency/editorials/article/11728/2681 .html; Pradeep
Kaushal, RSS's Latest: To Earn Goodwill, Condemn Attacks on Hindus, INDIAN EXPRESS
Mar. 28, 2002, www.indianexpress.com/ie20020328/top2.html.

28 Atal Bihari Vajpayee, "Who are These People Accusing Us, India was Secular

Even Before Muslims and Christians," INDIAN EXPRESS, Apr. 24, 2002,
http://www.indianexpress.com/fullstory.php?content id=1402.

29 2 CRIME AGAINST HUMANITY, supra note 26, at 77; see also GENOCIDE IN

GUJARAT: THE SANGH PARIVAR, NARENDRA MODI, AND THE GUJARAT GOVERNMENT 8 (2005),
available at www.coalitionagainstgenocide.org/reports/2005/cag.02mar20005.modi.pdf.

30 HUMAN RIGHTS WATCH, DISCOURAGING DISSENT: INTIMIDATION AND

HARASSMENT OF WITNESSES, HUMAN RIGHTS ACTIVISTS, AND LAWYERS PURSUING

ACCOUNTABILITY FOR THE 2002 COMMUNAL VIOLENCE IN GUJARAT 4-5 (2004), available at

http://hrw.org/backgrounder/asia/india/gujarat/; WE HAVE NO ORDERS TO SAVE YOU, supra
note 21, at 50-51. The Prevention of Terrorism Act (POTA) was repealed by the newly
elected United Progressive Alliance (UPA) coalition in 2004 and replaced by the Unlawful
Activities (Prevention) Amendment Act, 2004 (UAPA). The repeal of POTA does away with
some of bail and confessions provisions that had the effect of eroding the personal liberties
of the accused as well as violating the rights to due process. However, the provisions dealing
with the definition of terrorist acts, banning of terrorist organizations, and interception of



2006] Normalizing Violence 897

detained under these provisions. 31 They were primarily detained under
provisions of the Indian Penal Code (IPC), where their rights to due process
and a fair trial were assured.32 Indeed, the Godhra killings were used as an
opportunity for the government to rush through the renewal of the
Prevention of Terrorism Ordinance, which was due to expire in April, 2002.
The fact that only Muslims were arrested under its provisions in the context
of the Gujarat riots speaks to the concerns that many human rights and civil
liberties groups expressed during the debates on introducing such
legislation-that it would be used against minorities and other groups that
the government does not like or wants to eliminate.33 In the prevailing
climate of that elusive and ill-defined "war on terror," the Hindu Right had
at hand the rhetoric and justification for enacting such legislation in the
name of the security of the nation and protection of the citizens (Hindus)
from the dangerous "others" (Muslims).

III. TRANSITIONAL JUSTICE AND THE LIBERAL RESPONSE

There has been intensive documentation of the violence and abuse
that took place during the Gujarat carnage.34 These reports suggest that the
death toll resulting from the riots was as high as 2,000. In addition, the
Indian government estimates that 98,000 more became refugees living in

electronic communication are all retained under the UAPA of 2004. A specially constituted
Review Committee is to sift through the cases filed under the POTA, identify those where
trials should continue as if the act existed, and drop charges in all cases where there is
evidence of the misuse of POTA. PEOPLES UNION FOR DEMOCRATIC RIGHTS, OBSESSIVE
PURSUIT (2004) at 4 available at http://www.pudr.org/pages/ObsessivePursuit.pdf. For
more on the antecedents of POTA and the impact of its provisions, see Jayanth K. Krishnan,
India's "Patriot Act": POTA and the Impact on Civil Liberties in the World's Largest
Democracy, 22 LAW & INEQ. J. 265 (2004) (analyzing the key legislative elements of POTA
and its impact on the rights of those who have been arrested or tried under its provisions);
Manas Mohapatra, Learning Lessons from India: The Recent History of Antiterrorist
Legislation on the Subcontinent, 95 J. CRIM. L. & CRIMINOLOGY 315 (2004).

31 Editorial, On the Ground in Gujarat, THE HINDU, Oct. 26, 2003,

http://www.hindu.com/2003/10/26/stories/2003102600081400.htm.

32 PUCL INTERIM REPORT, supra note 4, at ch. 4 The situation in and around

Vadodara (stating that, while Muslims were arrested under more severe legal provisions,
Hindus were generally arrested under more innocuous sections, such as violating curfew
timings).

33 Overlooked Danger, supra note 21, at 58.

34 See, e.g., WE HAVE NO ORDERS TO SAVE YOU, supra note 21; see generally PUCL
INTERIM REPORT, supra note 4.



898 Columbia Journal of Gender and Law [Vol. 15:3

relief camps run by NGOs, 35 although NGO reports put the refugee
numbers at 150,000. 36 These refugees fear returning to their homes,
knowing that they are members of a despised minority group.37

Several mechanisms have been set up to try and secure justice for
the Muslims and specifically the women who experienced horrific violence
during the Gujarat riots. The primary mechanism established to inquire into
the Godhra incident and Gujarat riots, is the "fast track" court. The clear
emphasis is on prosecution and conviction of those involved in the violence
and to demonstrate in the most visible way that action is being taken by the
State. However, in one of the first cases to be decided by the court, The Best
Bakery Case, which arose out of the killing of fourteen people on the nights
of March 1 and 2, 2002, in a building named Best Bakery, the court
acquitted all of the twenty-one accused.38 Many of the key eyewitnesses
turned hostile, refusing to repeat testimony that they had previously given to
the police for fear that they would be subjected to reprisals. 39 Subsequently,
the National Human Rights Commission (NHRC) successfully appealed to
the Supreme Court to set aside the orders of acquittal and secure a retrial of
the case outside of Gujarat.40

The second mechanism established by the government to
investigate into the Godhra incident, as well as subsequently into the
massacres that took place during the Gujarat riots, and to place its
recommendations before Parliament, is the Nanavati Commission.41 The

35 WE HAVE NO ORDERS TO SAVE YOU, supra note 21, at 6.

36 CENTER FOR THE ADVANCED STUDY OF INDIA, DOING BUSINESS IN INDIA:

POLITICAL, SOCIAL AND CULTURAL OVERVIEW: IDEOLOGY, POLITICS AND REFORM-THE
NATIONAL DEMOCRATIC ALLIANCE IN INDIAN POLITICS, 1999-2004, at 2 (2004), available at
http://www.sas.upenn.edu/casi/publications/DBI/DBIl2004.pdf.

37 WE HAVE NO ORDERS TO SAVE YOU, supra note 21, at 59; Jill McGivering,
Gujarat 's Muslims Live in Terror, BBC NEWS, May 9, 2002,
http://news.bbc.co.uk/2/hi/south-asia/1977246.stm.

38 State v. Baria, (Best Bakery Case) No. 248/2002 (Gujarat Fast Track Ct. June

27, 2003), available at http://www.sabrang.com/cjp/best/vadjudgement.pdf. The acquittals
were subsequently upheld by the Gujarat High Court.

39
d.

40 See Human Rights Commission v. State of Gujarat, Special Leave Petition

(Criminal) of 2003 (India 2003), available at http://www.ielrc.org/content/c0302.pdf; Sheikh
v. State of Gujarat, (2004)4 S. C. C. 158.

41 Commissions of Inquiry are set up under the terms of the Commissions of
Inquiry Act, No. 60 of 1952. On March 6, 2002, the Nanavati Commission was constituted



2006] Normalizing Violence 899

Commission has yet to submit its report to Parliament. The establishment of
commissions of inquiry is a part of a long tradition in India of investigating
events that are catastrophic and demand redress. 42 Such commissions have
not tended to provide justice in a substantive sense.43 As Upendra Baxi has
stated, "momentarily distressed regimes have used this mechanism, with
some success in order to provide the appearance of a short term rule of law
oriented state action, which in the long term divests victims of any
semblance of effective redress." 4 The scope of this commission's terms of
reference was initially limited to investigating the "Godhra incident," but
was subsequently expanded to include an investigation into the acts of
senior state government officials relating to the Godhra train carnage and
the 2002 Gujarat pogroms against Muslims.

The National Human Rights Commission (NHRC) has also played
a role by publishing a report of its findings on the Gujarat riots and
intervening at the level of the Supreme Court to challenge the ineptitude
and inertia on the part of the Gujarat state government in pursuing criminal
prosecutions.45

by the Government of India, led at that time by the BJP, to conduct an investigation into the
riots that took place in Gujarat in 2002. The commission has received over 3000 affidavits
from riot victims, which have included allegations that the police and government machinery
were involved in provoking the riots. Narula, supra note 23, at 26-27.

42 A recent famous example is the report of the Nanavati Commission on the 1984
anti-Sikh riots submitted to the government in February 2004, concluding its inquiry into the
riots that erupted following the assassination of the former Prime Minister, Indira Gandhi,
where hundreds of Sikhs were slaughtered in what was characterized as an act of retaliation
for the assassination. The Commission suggested that a number of sitting members of
parliament belonging to the Congress Party, the part led by Mrs. Gandhi, were involved in
orchestrating the riots and made recommendations regarding compensation to the victim's
family. See Nanavati Commison Report of 1984 Anti-Sikh Riots Submitted, Hindu, Feb. 10,
2005, http://www.hinduonnet.com/2005/02/10/stories/2005021005880900.htm.

43 Shrimovee Ghosh & Tarunabh Khaita, Human Rights Violations: A Comparison
of the NHRC and the Commision [sic] of Enquiries, Alternative Law Forum,
http://www.altlawforum.org/Resources/lexlib/moifloppy (last visited Mar. 27, 2006).

44 Id. (quoting Quoting Upendra Baxi).

45 The National Human Rights Commission (NHRC) has strongly condemned the
Gujarat government for its failure to deliver justice to the riot victims. National Human
Rights Commission, New Delhi, India, Case Details of File Number: 1150/6/2001-2002,
http://nhrc.nic.in/ (search for 1150/6/2001-2002 under "Status of a Complaint Filed"). For
more information about the various interventions by the NHRC in the Gujarat riot cases see
generally Homepage of the National Human Rights Commission, New Delhi, India,
http://www.nhrc.nic.in (last visited Apr. 18, 2006); see also Human Rights Commission v.
State of Gujarat, Special Leave Petition (Criminal) of 2003 (India 2003),



900 Columbia Journal of Gender and Law [Vol. 15:3

Several non-government initiatives were also set up to investigate
into the riots. This included a specific initiative to investigate the gendered
nature of the violence inflicted during the course of the Gujarat riots. The
panel report of the International Initiative for Justice (IIJ) was prepared with
the objective of securing justice for women harmed during the riots,
guaranteeing their basic rights to citizenship, as well as ensuring that
democracy provided security to all. 46 The panelists drew attention to the
fact that the sexual violence and killings of Muslim women constituted
genocide as increasingly recognized and defined in international law and
jurisprudence.47 The report also declared that Hindutva was a genocidal

http://www.ielrc.org/content/c0302.pdf (where the NHRC petitioned the Supreme Court for
a retrial and transfer of the Best Bakery Case). The NHRC is an autonomous statutory body
constituted under the Protection of Human Rights Act, 1993. It has the same powers as a
civil court to call witness, record evidence, compel production of documents, requisition
relevant public documents, and issue commissions for the examination of witnesses and
documents. The findings of the NHRC are not legally binding.

46 INTERNATIONAL INITIATIVE FOR JUSTICE, THREATENED EXISTENCE: A FEMINIST

ANALYSIS OF THE GENOCIDE IN GUJARAT 7 (2003) available at
http://www.onlinevolunteers.org/gujarat/reports/iijg/2003/fullreport.pdf [hereinafter IIJ]. The
panelists included Sunila Abeysekara, Director of Inform, Colombo, Sri Lanka; Rhonda
Copelon, Professor of Law, City University of New York, Director, International Women's
Human Rights Law Clinic; Annisa Helie, Women Living Under Muslim Law, UK; Gabriela
Mischkowski, historian and co-founder of Medica Modiale, Germany; Nira Yuval-Davis,
Professor of Gender and Ethnic Studies at the University of Greenwich, UK; Uma
Chakravarti, feminist historian, Delhi University; Vahida Nainar, Researcher of International
Law, board member, Women's Initiative for Gender Justice, Netherlands, board member,
Women's Research and Action Group, Bombay; Farah Naqvi, co-founder of Nirantar, and
independent writer and consultant on issues of women, democracy and development; and
Meera Vellayudan, Institute for Environmental and Social Concerns, Coimbatore. The panel
was constituted to address the issue of gender violence in Gujarat in the context of the
following:

*An understanding of sexual violence against women and how this can be effectively

addressed by a legal system not equipped to deal with crimes of this nature and scale.

*The historical context of the Indian subcontinent, where divisions along religious

community and caste lines, along with the rise of Hindu fundamentalism, have led to
immense violence, intolerance and divisiveness.

*The globalised representation of the "Muslim" as a terrorist worldwide and the alliances
and attacks that this has fostered over the various Muslim communities all over the world.

Id. at 5.

47 Id. at 87-88;.see Elements Annex of the Rome Statute of the International
Criminal Court art. 6(b) n.3, PCNICC/2000/l/Add.2 & PCNICC/2000/Add.2 (July 17, 1998);



2006] Normalizing Violence 901

project and that sexual violence against Muslims was integral to this
project. 48 At the same time the report acknowledged that reparations and
justice in such a complex context would be difficult to secure, though
recognition of the State's failure to prevent the massacres was nevertheless
important. As the report pointed out, the Gujarat government has been
careful not to use the word "reparation," but rather "assistance," "aid," and
"relief," thus absolving it of any sense of entitlement or accountability to
the affected citizen.49 The recommendations focused primarily on the
international and legal mechanisms that needed to be applied to establish
that the Gujarat riots constituted genocide and crimes against humanity and
that the harms experienced by women had to be specifically addressed. 50

The panelists also emphasized that justice for Muslim women had to be
addressed separately from the justice to be secured for the community as a
whole.

Another major independent non-governmental mechanism was the
Concerned Citizen's Tribunal, consisting of eight eminent members from
the country and constituted in consultation with a large number of groups
within Gujarat and across the country. 51 The Tribunal's report
acknowledged the particularly horrific nature of the sexual violence
perpetrated against the Muslim community during the Gujarat riots. 52 It

see also Prosecutor v. Kovac, et al., Case No. IT-96-23 & IT-96-23/1-A, Judgment (June 12,
2002), available at http://files.findlaw.com/news.findlaw.com/hdocs/docs/icty/kunarcjdgnmnt
22201.pdf; Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Sept. 2, 1998), available at
http://69.94.11.53/default.htm (follow "Status of Cases" hyperlink; then follow "AKAYESU,
Jean Paul (ICTR-96-4)" hyperlink under "Completed Cases"); Prosecutor v. Delalic, Case
No. IT-96-21-A (Feb. 20, 2001); Prosecutor v. Furundzija, Case No. 3 IT-95-17/1-T (Dec.
10, 1998), available at http://www.worldlii.org/int/cases/ICTY/1998/3.html.

48 IIJ, supra note 46, at 111.

4 9 
Id at 72.

50 Id. at 117-20.

51 1 CRIME AGAINST HUMANITY, supra note 4, at 7. The members of the Tribunal

included VR Krishna Iyer and P.B. Sawant, both retired Justices of the Supreme Court of
India; Hosbet Suresh, retired judge of the Bombay High Court; Aruna Roy, Magasaysay
Award winner for community leadership; K.G. Kannabiran, senior counsel in the Kamataka
High court; K.S. Subramaniam, the former Director General of Police; Ghanshyam Shah,
Professor of Political Science at Jawaharlal Nehru University, New Delhi; Tanika Sarkar,
Professor of History, Jawaharlal Nehru University. Id.

52 2 CRIME AGAINST HUMANITY, supra note 4, at 38-43.



902 Columbia Journal of Gender and Law [Vol. 15:3

stated that rape was used in the riots as an instrument for the "subjugation
and humiliation" of a community.53 The Tribunal noted:

[a] chilling technique, absent in pogroms unleashed hitherto but
very much in evidence this time in a large number of cases, was
the deliberate destruction of evidence. Barring a few, in most
instances of sexual violence, the women victims were stripped
and paraded naked, then gang-raped, and thereafter quartered and
burnt beyond recognition.54

The Tribunal documents many of these cases in graphic detail, asserting
that such violence in "post-independent, democratic and secular India" is
shocking and demands justice as well as reparations. 55

The Tribunal recommended that the central government enact
legislation to "implement the Genocide Convention, which India has signed
and ratified, and must use these measures to prosecute and punish all those
who participated in the planning and the execution of murder, sexual
violence, theft, and destruction in the state of Gujarat during the communal
carnage." 56 The Tribunal also found that the state-sponsored crimes
committed in Gujarat amounted to genocide and crimes against humanity.57

It recommended that the Chief Minister Narender Modi and his ministerial
colleagues be prosecuted under the relevant provisions of the IPC, POTA of
2002, and the Unlawful Activities Act of 2001.58 It further recommended
that the activities of the VHP and BD be curtailed and possibly banned for
disturbing the law and order of a democratic country such as India.59 It also
proposed that a reparations tribunal for victims be established to provide

53 Id. at 38; see also Gujarat Muslim Women "Rape Victims," BBC NEWS, Apr.
16, 2002, http://news.bbc.co.uk/2/hi/south asia/1933521.stm.

54 2 CIME AGAINST HUMANITY, supra note 4, at 38.

55 Id. at 43.
56 1d. at 169.

57Id. at 153. The current Congress-led coalition government has begun work on
drafting a comprehensive law against communal violence. The Prevention of Genocide and
Crimes Against Humanity Act of 2004 is being drafted by jurists and human rights activists
and may include provisions for investigations by a central agency, prosecution by special
courts, and uniform compensations to victims.

58 Id. at 162. These recommendations were submitted prior to the repeal of POTA.

59 Id. at 54.



Normalizing Violence

compensation for the loss every individual suffered during the violence,
including the impact of sexual assaults on women and their families.6 °

More specifically, on the issue of gender, the Tribunal
recommended some long term measures, including expanding the definition
of rape. In situations of mass rapes and gang rapes, as occurred in Gujarat,
it would be impossible to collect evidence and to apprehend the rapists. In
such situations the Tribunal recommended that the onus of proof in all such
cases of mass and gang rapes rest on the accused and not the victims. 61 The
testimony of witnesses in cases where women have been burnt or killed
would be given considerable weight and the concept of justice in such cases
would be widened.62 According to the Tribunal, justice meant not simply
"punishment of those found guilty of the crime, but also ... reparation for
the women who suffered physical and mental injuries, since such assaults
further curtail women's rights to be a part of mainstream social life, besides
inflicting a damning long term impact on the coming generation." 63 The
failure to protect the basic human rights of these citizens placed an
obligation on the state to provide them with reparations. In addition, since
all individual women were not in a position to register their complaints, the
Tribunal recommended that reparations be provided to all women of the
affected community.

64

IV. LIMITS OF TRANSITIONAL JUSTICE AND THE VICTIM
SUBJECT

The trouble with each of the initiatives generated to provide
transitional justice to the victims, especially women, is that they tend to
focus on the victimization of women and the community. These initiatives
focus almost exclusively on providing redress through the mechanisms of
international legal instruments dealing with genocide as well as
prosecutions under the criminal law at the domestic level. These efforts,
although important, tend to negate the broader discursive practices of the
Hindu Right and the history of Hindutva in constructing subjectivities as
well as producing the violence unleashed in Gujarat.

60Id. at 171.

61 Id. at 177.

62 Id.

631d. at 178.

2006] 903



904 Columbia Journal of Gender and Law [Vol. 15:3

Although these mechanisms provide important forums for victims
to give voice to the harms inflicted on them and form the basis for a
historical record of the violence, it is not evident that they have addressed
the broader discursive context in which the violence took place, which has
constituted the Muslim as the perpetrator and the Hindu as a victim. In
particular, the treatment of women in Hindutva politics is an extremely
complex one and cannot be reduced either to simply vicious or barbaric
behavior or understood within the confines of a system of justice focused on
individual human rights violations. It needs to be understood within the
context of the ideology of the Hindu Right.

There is no doubt that women were subjected to extraordinary
violence during the Gujarat riots. During the course of the riots, there were
innumerable reports of rapes and mutilations of women.65 Many women
were gang-raped by public officers and rioters before being burned alive.66

Even the police physically, verbally, and sexually abused women, paraded
them through the streets, and beat them. 67 Many of the survivors of these
rapes and tortures testified before the Nanavati Commission of Inquiry set
up to investigate into the riots.

65 Id. at 39-43, 177-78; I1J, supra note 46; SYEDA HAMEED ET. AL., How HAS THE

GUJARAT MASSACRE AFFECTED MINORITY WOMEN: THE SURVIVORS SPEAK (2002), available
at http://www.msu.edu/-swamyraj/guj/survivorsspeak.htm (documenting the harms and
injuries inflicted on women, and concluding that crimes against women, in both urban and
rural areas, were grossly underreported and under-recorded by the police); CPI(M) and
AIDWA on Violence in Gujarat, PUCL BULL., Apr. 2002, http://www.pucl.org/Topics/Relig
ion-communalism/2002/gujarat-cpm.htm (Apr. 2002).

66 WE HAVE NO ORDERS TO SAVE YOU, supra note 21, at 16, 27-29; see also Hameed
et al., supra note 65; IIJ, supra note 46.

67 PUCL INTERIM REPORT, supra note 4, at 6: ("In Bahaar colony of Ajwa Road,

women went out to request the police to set up a police point as tension had been increasing
in the face of violence. The police refused to listen to the women and in fact, laathi (baton)
charged to force them into their homes. At Rain Basera, Machchipith, under Karelibag
Police Station, several women were assaulted by the police during "combing operations."
Four policemen entered the basti (poor neighborhood) at around 3:00 pm on March 16, 2002
and started beating them indiscriminately-Sairaben Shaikh, Faridabanu Shaikh, Hamidabibi
Pathan all aged between 30 and 45 were among those who were beaten so badly that their
wounds are still visible. Faridabibi [sic] was hit on her chest by a laathi, and Hamidabibi in
her pubic region. In Bahaar colony, women were pulled out of their homes by dragging them
by their breasts. Even 18 year old girls were not spared-they were threatened with swords
and sticks by the police. Rukiabibi, a 70 year old woman in Kasamala Kabristan, who went
out to prevent the police from taking away her young son, was hit by the laathi so hard that
her head split open.").



2006] Normalizing Violence 905

The nature of the violence inflicted on women in Gujarat seemed to
be particularly brutal and sadistic. As Flavia Agnes, a leading feminist
activist who testified before the Nanavati Commission of Inquiry in June
2002, stated, the "scale and extent of atrocities perpetrated upon innocent
Muslim women during the recent violence[] far exceeds any reported sexual
crime during any previous riots in the country in the post-independence
period., 68 Martha Nussbaum argues that the complete incineration even of
the body can be explained in terms of the feminist conception of
"objectification. ' 69 Nussbaum borrows from the account of misogynistic
disgust sketched by Andrea Dworkin in her book, Intercourse, as well as in
Nussbaum's own book, Hiding from Humanity. 70 She argues:

Objectification is treating as a mere thing what is really not a
thing. It has multiple aspects, including the denial of autonomy
and subjectivity and the ideas of ownership, fungibility (one is
just like the others), and violability (it's all right to break the
thing up or abuse it) .... In the domain of human relations...
sinister connections begin to be woven among these different
aspects. At the heart of all of them, I would argue, is the idea of
instrumentality: a thing, unlike a person, is an instrument or
means to the ends of persons; it is not an end in itself. The
objectification of women is primarily a denial that women are
ends in themselves. It is because one has already made that
denial, at some level of one's awareness, that it becomes so easy
to deny women autonomy, to deny that their subjective
experience matters, and, even, to begin to ignore qualitative
differences between one and another, as pornography so easily
does.

71

Nussbaum uses this account to present a more universal thesis
about psychological dynamics that are widespread in gender relations. In

68 Flavia Agnes, Experts from the Perspective Affidavit on Sexual Violence, in OF

LOFTY CLAIMS AND MUFFLED VOICES 71 (Flavia Agnes ed., 2002).

69 Martha Nussbaum, Body of the Nation: Why women were mutilated in Gujarat,

BOSTON REV.: A POLITICAL AND LITERARY FORUM, Summer 2004, 33, 33, available at
http://www.bostonreview.net/BR29.3/nussbaum.html [hereinafter, Nussbaum, Body of the
Nation]; ANDREA DwORKIN, INTERCOURSE (1987).

70 MARTHA C. NUSSBAUM, HIDING FROM HUMANITY (2004) (elaborating on this

thesis of the presence of disgust and shame in law and its impact on women); see also
MARTHA C. NUSSBAUM, SEX AND SOCIAL JUSTICE (1999).

71 Nussbaum, Body of the Nation, supra note 69, at 34-35.



Columbia Journal of Gender and Law

Gujarat, she explains, they took a "particularly anxious and aggressive form
in this concrete political context. '

,
72 This instrumentalist analysis is used to

explain why women are burned, raped, abused, and killed, that is, why they
are violable. In the Gujarat riots, the Muslim female body represented the
recalcitrant part of the nation that was yet to be dominated by Hindu male
power. Although one response to domination might have been to abduct
women and use them for procreation of the Hindu species, when viewed as
instruments, their bodies could also be, and indeed were, used in horrific
ways to satisfy the desire for power, honor, and security.

Nussbaum concludes that Muslim women in the Gujarat riots were
victims of extreme violence and that the assault on the Muslim community
as a whole constituted genocide. As she argues, the centrality of rape in the
riots, usually followed by murder, was evidence of the intent to destroy the
Muslim minority community in all of the ways specified under Article 2 of
the U.N. Convention on Genocide.73 She argues that the riots signaled a
fundamental breakdown of the rule of law and promoted hate and fear. She
relies on the recommendations of the Concerned Citizens' Tribunal for the
trial and punishment of the main offenders as a mechanism for
reconciliation, democratic consolidation, and restoration of faith in the law.
She asserts that the politics of difference and the pluralism of Indian society
must be restored, and can only be grounded in traditional notions of
citizenship, equality, and rights.74

Tanika Sarkar, a leading Indian historian, was one of many
individuals and social activists who investigated the events that took place
in Gujarat. She drew particular attention to the harm inflicted upon women,
arguing that the preoccupation with destroying women's sexual organs

72 Id. at 34.

73 The Convention defines genocide as

any of the following acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing
serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring
children of the group to another group.

Convention on the Prevention and Punishment of the Crime of Genocide, art. 2,
Dec. 9, 1948, 78 U.N.T.S. 277, available at http://www.unhchr.chlhtml/menu3/b/pgenoci.ht
m.

74 Martha Nussbaum, Genocide in Gujarat: The International Community Looks
Away, DISSENT MAG., Summer 2003, at 15.

906 [Vol. 15:3



Normalizing Violence

revealed "a dark sexual obsession about allegedly ultra-virile Muslim male
bodies and over-fertile Muslim female ones, that inspire[s] and sustain[s]
the figures of paranoia and revenge. ' 5 The incitement to violence, which
was in evidence in the some of the literature discovered in the riot-torn
areas, represented an anxiety about (Hindu) male sexuality, and the
treatment of women resulting in acts of sadism that seemed to go beyond
mere revenge.76

Sarkar argues that the violence cannot be explained merely in terms
of a collapse of state machinery, but rather by the

[plenetration of state and grass roots institutions-from police to
hospitals-by the Sangh parivar (family of the Hindu Right).
When talking of Gujarat events, it is very common to use terms
like the failure of the Modi government, the weakness of the
state, or the limits of the BJP-led coalition at the centre. I would
strongly insist that, on the contrary, the Modi government as well
as the Sangh as a whole, have been spectacularly successful in
their agenda. What is happening in Gujarat is not a mark of
weakness or inadequacy but a sign of the strength of the Sangh
parivar, its firmness of resolve, its ideological consistency. 77

According to Sarkar's analysis, the initiatives of the Tribunal, the
arguments based on the objectification and victimization of women, and a
focus on reparation tend to miss the broader ideological agenda and
discursive elements of the Hindu Right that have gone into constituting the
subjectivities of both the majority and minority, including the subjectivity
of Muslim women. Sarkar does not simply emphasize the incineration of
the Muslim women's body. She argues that bodies, houses, shrines, and
mosques disappeared overnight. In their place, roads were laid, and Hindu
temples were built where Muslim homes used to be. Complete identities
were erased. In the relief camps for those rendered homeless by the riots or
too scared to return, they had "neither documents nor identification papers
of any sort to prove that they ever had property, jobs, bank balances, land,
families, Indian citizenship., 78

75 Sarkar, supra note 11, at 2874.

76 Id. at 2875.

17 Id. at 2872.

78 Id. at 2873.

2006] 907



Columbia Journal of Gender and Law

Sarkar goes on to provide an explanation that is ideologically
consistent with the goals and concerns of Hindutva. It is a concern about the
increasing fertility rates of Muslims, of the uncontrolled breeding, and the
imminent outnumbering of the Hindu majority.79 Such myths and doubts
fed the riots and the specific attacks on women and children and have
become a part of common sense thinking. The violence, in other words, was
not aberrational. It was justified on the basis of a discursive strategy that has
come to constitute the Muslims as unacceptable, as foreigners, and as
oppressors of the majority community. 80

The layers of meaning are completely lost in a focus on the victim
subject, an emphasis on prosecution, and an instrumentalist analysis of
Muslim women. These layers of meaning also remain unaddressed in the
recommendations of the tribunals and panels set up to provide transitional
justice for the women and the Muslim community. A reassertion of the
values of liberty, equality, and secularism fails to appreciate how these very
values have been used to pursue the ideology of Hindutva and assimilative
politics that strip the Muslim of his or her cultural and religious identity.
Even the broader analysis of the IIJ, which addresses the context within
which the Gujarat riots took place and the role of women in the ideology of
Hindutva, ends up describing Hindutva as a genocidal force, and thus once
again situates the project outside of the very liberal values that actually
helped to constitute the project.

A response that attends to the injuries inflicted on Muslim women
exclusively through the lens of victimization, objectification, prosecution,
and reparation does not address how the attack on Muslim women
constitutes a central element in the discourse and ideology of the Hindu
Right. An instrumental analysis fails to take into account the problems with
victimization rhetoric and the gender and cultural essentialism it produces.8 1

The analysis ignores the complex understanding of the ways in which
women's lives and experiences are mediated by religion and the history of
the colonial encounter, amongst many other factors. Nor does it address the
ways in which liberal rights discourse has produced and reinforced specific
subjectivities in the hands of the Hindu Right, rather than serve
emancipatory political goals. The analysis and the recommendations do not
assist in achieving the stated goal of transnational justice-contributing to

79 1d. at 2875.

80 See supra Section II.

81 RATNA KAPUR, EROTIC JUSTICE: LAW AND THE NEW POLITICS OF
POSTCOLONIALISM 95-136 (2005).

[Vol. 15:3



Normalizing Violence

an alleviation or elimination of the violence experienced by Muslim
women, together with Muslim men. Indeed, it may be missing the point
altogether.

V. GENDERED SUBJECTS AND THE DISCOURSE OF THE
HINDU RIGHT

The discursive strategies of the Hindu Right constitute women's
subjectivities in ways that are consistent with their vision of Hindutva.
Indeed, women have become a site of contest in the struggle to redefine
Indian identity. Hindutva's discourse on women seeks to rearticulate
women's identities as wives and mothers, and casts women's issues within
a revivalist and familial discourse that seeks to restore women to the
position of respect in their roles as wives and mothers that they are alleged
to have enjoyed in the mythical, golden age of Hindu society. It is an
identity imbued with the rhetoric of tradition and culture, but which is
thoroughly modern, responding to contemporary social and economic
demands placed on women.

It is important to recognize at the outset that the Hindu Right does
not speak with a single voice on the issue of women and equality rights.
Some of the more orthodox elements within the RSS-VHP-BJP have
adopted a reactionary position on women and the family, calling, for
example, for a return to the laws of Manu, a restoration of polygamy, and
the glorification of sati82 These views, however, are not representative of
the position of the Hindu Right as a whole on the question of women's
issues. The women's wings of the Hindu Right organizations-such as the
Rashtra Sevika Samiti (National Corps of Women Volunteers) and the
Mahila Morcha (Women's Front) of the BJP-have all articulated more
moderate positions, denouncing discrimination against women and

83promoting equality. The BJP has similarly increasingly adopted positions
formally denouncing atrocities against women, and promoting women's
equality. The Hindu Right does not speak with a single and homogenous
voice on the question of women, but rather is characterized by diverse and
conflicting positions.

82 See Manini Chatterjee, Saffron Extremism, FRONTLINE, Jan. 16-29, 1993, at 5

(discussing how the sants and sadhus ("saints" and "holy men") within the Sangh Parivar are
calling for a restoration of Hindu polygamy).

83 See Tanika Sarkar, The Woman as Communal Subject: Rashtrasevika Samiti and

Ram Janmabhoomi Movement, 26 ECON. & POL. WKLY. 2057 (1991); see also Amrita Basu,
Women's Activism and the Vicissitudes of Hindu Nationalism, 10 J. WOMEN'S HIST. 110
(1999).

9092006]



Columbia Journal of Gender and Law

The more moderate position promoting women's equality that is
increasingly visible within the Hindu Right is one that does not
fundamentally challenge women's traditional roles as wives and mothers. It
is a discourse that plays an increasingly important role in the discursive
struggles of the Hindu Right, not only in its assault on minority rights, but
also in its efforts to forge a new identity for Hindu women as well as Hindu
men.

The Hindu Right's official position on women is filled with
commitments to equality. 84 The BJP in particular pledges itself to restore to
women the position of equality with men that the Indian tradition proposed
and accepted. 85 The discourse of equality is fused with a more revivalist
discourse that seeks to reclaim a glorious and ancient past. The objective of
equality becomes the restoration of women to the position that they
ostensibly enjoyed in this "golden age." But the meaning of their
commitment to women's "equality with men" is unclear. In a telling
statement, the BJP asserts "[m]en and women are equal but they are not the
same." 86 With a single stroke, the BJP both invokes the discourse of
women's equality and at the same time undermines any real entitlement to it
by stating that women are different. If women and men are equal, at the
same time as women and men are not the same, then equality cannot mean
sameness and equal treatment. The question of what equality does mean in
this context remains unanswered.

The answer to this riddle of equality lies in a deeper exploration of
the BJP's policies and statements on women. It is within these policies and
statements that we can begin to see more clearly the way in which women
are to be treated, the position of "equality" to which they are to be restored,

84 See e.g., the BJP's introductory remark in the "Empowerment of Women"

section of Chapter 10 of its Election Manifesto, which states:

It is not enough to talk about removing discrimination against women and establishing
gender equality. We need to create new mechanisms for the social, political and economic
advancement of women as also to generate social awareness on gender issues. One such
mechanism is empowerment, including empowerment through enactment of laws.

BJP, ELECTION MANIFESTO Ch. 10, available at http://www.bjp.org/manifes/chapl
O.htm (last visited Jan. 20, 2005); see also BJP, ELECTION MANIFESTO: OUR SOCIAL
PHILOSOPHY Ch. 9, available at http://www.bjp.org/manifes/chap9.htmc (last visited Jan. 20,
2006).

85 Ratna Kapur and Brenda Cossman, Women and Hindutva, 5 WOMEN AGAINST

FUNDAMENTALISM 42 (1994), available at http://waf.gn.apc.org/j5p42.htm.

86 id.

[Vol. 15:3



Normalizing Violence

and the understanding of equality that underlies this policy. The BJP policy
on women often focuses on the roles in the family that have traditionally
been allocated to women according to the sexual division of labor. For
example, the BJP policy focuses on women's healthcare, including maternal
and natal care, female feticide, smokeless stoves, and sanitation facilities
for poor, rural, and slum women. 87 Policies that reinforce women's role in
the family as mothers and wives are supported as part of women's equality
rights. In so doing, the Hindu Right reinforces the assumption of natural and
essential differences between women and men. Women are mothers and
wives-they are matri shakti (the power of the Mother)-they are different,
and these differences must be honored and protected.

Equality, in the hands of the Hindu Right, remains an elusive, but
enormously useful, concept. It is, on the one hand, consistently deployed as
equal treatment to attack the rights of religious minorities. But, in the
context of gender, such consistency seems to evaporate. Two very different
models of equality are simultaneously deployed in the Hindu Right's
political rhetoric on women. In the context of Hindu women, equality for
women is understood as harmony in diversity. Hindu women need not be
treated the same as men in order to be treated equally. Rather, they need
only be treated with respect, and with due recognition of the "natural"
differences between the sexes. Within this model, there is a celebration of
difference and a quest for harmony. But, in the context of minority women,
the two models of equality converge. There is an insistence that all women
be treated the same-that Muslim women be treated the same as Hindu
women. The equality rights of minority women are framed within the
Hindutva discourse of secularism and formal equality-wherein all
religious communities must be treated the same, and in turn, wherein all
women within different religious communities must also all be treated the
same. Here, there is no talk of harmony, nor celebration of difference, only
a quest for assimilation and sameness.

While both Hindu and Muslim women are constituted through this
discourse, they are differently located in relation to it. Hindu women are to
be restored to the position of respect they enjoyed within their own culture.
Muslim women, however, must be restored to the position of respect
enjoyed by Hindu women before they were degraded by the influence of

87 Shankar Agarwal, A Grand Show in Women 's Empowerment, ORGANISER, Dec.

25, 2005, at 23, available at http://www.organiser.org/dynamic/modules.php?name=Content
&pa=showpage&pid=109&page=23; see also Check Female Foeticide, Expand Girl Child
Education: Advani, OUTLOOK INDIA.COM, Dec. 3, 2005,
http://www.outlookindia.com/pti news.asp?id=339322 (calling on women to adopt the
mission of "small family-literate family-happy family").

2006]



Columbia Journal of Gender and Law

and conversion to Islam. The phenomenon that led to the downfall of
women is ultimately identified as the same: the invasion of India by foreign
(Muslim) influences. One VHP advertisement rather blatantly states:
"Women lost all their glory and liberty in the dark period of history when
India was invaded by barbarians."'8 8 The revivalist discourse attempts to
restore all women to the position they enjoyed prior to the invasion of, and
resulting downfall of, Hindu culture. The unstated reference point is the
Muslim invasion of Hindu culture. At the core of this revivalism is a highly
communalized discourse, deployed to promote anti-Muslim sentiment. In
this respect, the gendered discourses of Hindutva can be seen as part and
parcel of the Hindu Right's assault on minority communities. The problems
that women face in contemporary society can be blamed on a fall from
grace-but blame for this fall from grace can be and is placed on Muslims.

The extent to which BJP policy supports women in their familial
roles can be seen in a number of statements by its members on women's
issues. Dr. Murli Manohar Joshi, former education minister and a member
of the RSS, discussing the Beijing Women's Conference in 1995, stated:

In India, social relationships and institutions are patterned in such
a manner that an evolving structure of balanced social amity is
created. The family is an important institution. It is only through
a happy family that an aware society is bom. In this society
woman has an important role to play. She is not merely a
domestic community. At all times she has made an overall
contribution to the growth of the social order. Right from the
vedic period the Indian woman has made a sincere effort to keep
the home protected. The family has fallen apart in the West and
has created a society where all relationships are founded on
selfishness. The growth of the single parent family in the West is
a direct outcome of this.89

88 Ammu Joseph & Kalpana Sharma, Between the Lines: Women's Issues in

English Language Newspapers, 26 ECON. & POL. WKLY. WS-75, WS-80 (1991) (citing a
VHP advertisement that appeared in THE INDIAN ExPREss) (internal quotation not cited in
original); see also PAOLA BACCHETrA, GENDER IN THE HINDU NATION: RSS WOMEN AS
IDEOLOGUES 100 (2004) (discussing how the RSS "depicts Muslim males as the eternal
enemies of the Hindu 'community,"' and considers "that all Muslim males are anti-national,
and that they disrespect and violate femininity"); Sarkar, supra note 11, at 2873; Satish
Nandgaonkar, VHP Serves Them Cocktail of Karate and Culture, MUMBAI NEWSLINE, Nov.
13, 2002, http://cities.expressindia.com/ifullstory.php?newsid=35015.

89 Murli Manohar Joshi, Women 's Liberation: The Indian Way, ORGANISER, Dec.

24, 1995, available at http://bjp.org/major/mmj-wlib.html.

912 [Vol. 15:3



Normalizing Violence

Issues such as free sex, artificial insemination, or lesbianism raised
at the meeting are considered antithetical to Indian womanhood-defined in
and through women's natural roles as mothers and wives. Free sex, artificial
insemination, and lesbianism undermine these roles; thus, they cannot be
supported. Such issues also deflected attention from what should have been
the main focus of the conference-that is, gender discrimination. 90

The BJP policy on women also includes issues of women's
education and employment-issues that seem to bring women out from
within the narrow confines of the family. The BJP has identified women's
socio-economic dependence as a main cause of women's oppression and,
accordingly, the party supports programs designed to improve their socio-
economic status, including increased employment opportunities,
particularly in areas that suit women most.91 Women's illiteracy is also seen
to contribute to this poor status, and must therefore be eliminated through
improved access to education. 92 Yet the support for women's socio-
economic independence or education does not disrupt women's role in the
family-as mothers and wives-which remains the cornerstone of the BJP
approach to restoring women to the position of equality reserved for them in
Indian tradition.93

There is increasing evidence of the extent to which the traditional
discourse of women as matri shakti (the power of "the mother") infuses BJP
policies. Indeed, it is this image of matri shakti that can be seen to underlie
the very understanding of women's equality. Man and woman will remain
the two wheels of the chariot of the family and of the nation.94 Equality
does not mean treating women the same as men. Rather, equality becomes
an affirmation of the difference between women and men. The BJP

90 Id.

91 AMRITA BASU, UNRISD OCCASIONAL PAPER 5: WOMEN, POLITICAL PARTIES AND

SOCIAL MOVEMENTS IN SOUTH ASIA 24 (2005). Examples of the type of employment
encouraged by the BJP for women included nursing, teaching, part-time work, and
employment in the service sector.

92 See BJP, ELECTION MANIFESTO: NARI SHAKT, supra note 84, Ch. 10, available at

http://www.bjp.org/manifes/chap 1O.htm (Point seventeen of the Manifesto identifies a goal of
creating "functional literacy programmes for women who have been denied access to
education").

93 Tanika Sarkar, Heroic Women, Mother Goddesses: Family and Organisation in
Hindutva Politics, in WOMEN AND THE HINDu RIGHT: A COLLECTION OF ESSAYS 181, 209-14
(Tanika Sarkar & Urvashi Butalia eds., 1997).

94 BACCHETTA, supra note 88, at 1-60.

2006] 913



Columbia Journal of Gender and Law

approach to equality within the context of women, initially somewhat
elusive, begins to emerge. The very meaning of the concept of equality
begins to shift away from sameness and equal treatment towards diversity
and differential treatment.

This harmony in diversity approach is also very different from a
substantive approach to equality. It has little to do with the systemic or
historic disadvantage of women. While there are overtones of historic
disadvantage in the discourse of restoring women to the position they once
occupied in the golden age of Hindu culture, the vision of the Hindu Right
is very different from the one contemplated by substantive equality. Within
this vision, "historic oppression" refers only to the oppression and
degeneration of Hindu society at the hands of foreign (Muslim) invaders.
There is virtually no attention to systemic or historic disadvantage or
discrimination against women within Hindu culture. There is no recognition
of gender as a socially constructed category, but simply an affirmation and
celebration of natural and essential differences.

This general discourse on equality and women constitutes the
subjectivities of women, both in the majority as well as minority religious
communities. Women's issues are being framed within (a) a revivalist
discourse that seeks to restore women to the position of honor and respect
they enjoyed in a reconstructed and mythical "Golden Age," and (b) a
dominant familial discourse, through which women's identities and roles as
wives and mothers within the family are being reinscribed. It is an approach
to equality that underlies the Hindu Right's appropriation of these women's
issues-an approach that emphasizes women's differences in relation to
men, but women's sameness in relation to all other women.

VI. VIOLENCE AGAINST WOMEN AND COMPLEX SUBJECTS

While these subjectivities are constituted in a number of areas, it is
the issue of violence against women that illustrates most vividly how the
focus of transitional justice on "victims" and prosecutions may not
necessarily produce the repair and reconciliation that it ostensibly seeks to
bring about.

Violence against women has become a prominent issue within the
Hindu Right.95 To the extent that the manifestos of the BJP have addressed
issues of concern to women, violence against women is always
condemned. 96 The BJP policy document for women stresses the need for

95 BJP, ELECTION MANIFESTO, supra note 84, items 18-25.

96 Id. item 24.

914 [Vol. 15:3



Normalizing Violence

inducting more women into the police force to deal specifically with cases
of atrocities against women.97

The Hindu Right's appropriation of the issue of violence against
women should not be seen as a wholesale adoption of the framework within
which the women's movement has understood this violence. In stark
contrast to the secular women's movement's emphasis on women's rights
and men's violence, the Hindu Right has framed the issue of violence
against women within the broader political and cultural discourses of
Hindutva. It is a discursive strategy that involves, firstly, the
communalization of sexual violence, through which responsibility for
violence against women is seen to lie within the Muslim community,
specifically with Muslim men. A second, related move is the justification
for the violence inflicted on Muslims by the majority community as an
expression of Hindu anger against the appeasement of Muslims, in defense
of Hindu women and the Hindu nation.

The recognition of sexual violence within the public sphere is
framed within a communal discourse. The perpetrators of sexual violence
are constructed as the Muslim "other." Sexual violence is thereby seen as
that which (Hindu) women experience at the hands of Muslim men. The
rape of Hindu women by Muslim men during communal riots is
highlighted.98 The rape of Hindu women by "Muslim fundamentalists," for
example, is a recurrent theme in RSS literature, and often provides the
rationale for providing Hindu women with RSS-style physical training. 99

97 id.

98 See Pradip Dutta et. al, Understanding Communal Violence: The Nizamuddin
Riots, 25 ECON. & POL. WKLY. 2487 (1990); see also EMBODIED VIOLENCE: COMMUNALISING
WOMEN'S SEXUALITY IN SOUTH ASIA (Kumari Jayawardena & Malathi De Alwis eds., 1996).

99 For a general discussion on the role of women in the RSS as well as the specific
focus on the physical training of women, see Sarkar, supra note 83. See also BACCHETTrA,

supra note 88; see also Rashtra Sevika Samiti: A Resume of Activities,
http://www.hindubooks.org/rssw/chl.htm. The RSS women's affiliate, Rashtra Sevika
Samiti, was set up in 1936 to organize Hindu women. Rashtra Sevika emphasizes physical
training, on the principle that strong Hindu women produce a strong Hindu nation. See also
Kalyani Devika Menon, We will Become Jijabai: Historical Tales of Hindu Nationalist
Women in India, 64 J. ASIAN STUD. 103 (2005) (discussing how Jijabai, the mother of the

seventeenth century Hindu king, Shivaji, has become the icon of Hindu nationalism, who the
Samiti women deify. She is cast as a mother worthy of emulation, who fought bravely for the
Hindu nation through her son, Shivaji, by inculcating into him values about strength,
patriotism, and ideology. Jijabai serves as a role model for Hindu women, facilitating the
cultural and political renaissance of a Hindu nation by breeding and molding strong sons);
Focus on Women's Roles at Mausiji 's Celebrations, INDIA ABROAD, Sept. 23, 2005, at C5;
Report: National Convention of Rashtra Sevika Samiti: A Study in Organization, Discipline
and Dedication, ORGANISER, Dec. 11-18 2005, at 9, available at

2006]



Columbia Journal of Gender and Law

This construction of the Muslim "other" as the perpetrator of sexual
violence fits all too neatly with the stereotype of Muslim men as lustful that
has long been part of the discourse of Hindutva. As Sarkar has observed,
"[flrom Sarvarkar's formative writing on Muslim rule in India, the
stereotype of an eternally lustful male with evil designs on Hindu women
has been reiterated and made a part of a historical common sense.' 00

This communalization of sexual violence operates simultaneously
to reinforce the demonization of the Muslim community, while deflecting
attention away from sexual violence within the Hindu community.' 0 ' The
violence that women may experience within the public sphere can thereby
be addressed with demands for harsher penalties for the perpetrators,
without threatening the patriarchal authority of Hindu males. The call for
harsh penalties becomes in effect a call for the punishment of Muslim men
who have dishonored Hindu women, and, by implication, the Hindu
community.

Within this communalized discourse of sexual violence, the harm
associated with rape becomes the harm to the community. Rape is
understood not as a violation of an individual woman's right to bodily
autonomy, but rather, in a more traditional and patriarchal discourse, as a
violation of a woman's honor. This honor is in turn closely associated with
a family's honor, and the honor of the broader community. As Amrita Basu
has observed, "[t]he BJP has made the raped Hindu woman symbolic of the
victimization of the entire Hindu community., 10 2 This communal discourse
further provides women within the Hindu Right with a legitimate focus for
their personal and political anger about sexual violence. As Sarkar suggests,
"[t]he hindu [sic] woman is given an externalized enemy to focus on that

http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid= 1 08&pag
e--9. For a detailed study on the ideology that produces the militant Hindu female nationalist,
see Paola Bacchetta, Militant Hindu Nationalist Women Reimagine Themselves: Notes on
Mechanisms of Expansion/Adjustment, 10 J. WOMEN'S HIST. 125 (1999).

100 Tanika Sarkar, The Women of the Hindutva Brigade, 25 BULL. CONCERNED

ASIAN SCHOLARS, Oct.-Dec. 1993, at 16.

101 BACCHETTA, supra note 88, at 80 (arguing that "the violence internal to the

regime (the self-hatred, the misogyny, the aggressivity and violence which would otherwise
run afoul between Hindu males, and between them and Hindu women) is projected onto 'the
Muslims"').

102 Amrita Basu, Feminism Inverted: The Real Women and Gendered Imagery of

Hindu Nationalism, BULL. CONCERNED ASIAN SCHOLARS, Oct.-Dec., 1993, at 25-29.

916 [Vol. 15:3



Normalizing Violence

helps obliterate and displace personal and immediate experiences of
oppression within the family."1' 3

While the condemnation of violence against women is shared by
the secular women's movement and the women's wing of the Hindu Right,
the underlying understandings are very different. Within the secular
women's movement, violence against women is an issue of individual
women's rights-the right to be free from violence, the right to life, and the
right to equality, both substantive and formal. Within the Hindu Right, the
denunciation of violence against women is far removed from the discourse
of formal or substantive equality for women. Ending violence against
women has nothing to do with treating women the same as men. Nor does it
have much to do with the historic and systemic oppression of women.
While there are overtones of historic disadvantage within this discourse, it
is clearly a very different vision than that contemplated within a substantive
model of equality. In the revivalist discourse of the Hindu Right, "historic
oppression" refers to the oppression and degeneration of Hindu society
overall, including the position of respect and honor enjoyed by Hindu
women, at the hands of foreign (Muslim) invaders. Overcoming this historic
disadvantage means restoring women to the pedestal of respect and honor
that was rightfully theirs in the golden age. It is a vision of equality that
celebrates their harmonious difference.

At the same time, the gender discourse of the Hindu Right seeks to
reconstitute women as strong. A strong Hindu woman becomes essential to
a strong Hindu society, particularly since women are responsible for
breeding and grooming the next generation, with appropriate values,
discipline, and culture. And yet, the very discursive framework ensures that
women's strength does not challenge or undermine their position within the
family. Women's strength is located and contained within the confines of
the family-their strength is intended to serve the higher cause of the family
and through it, the higher cause of the community and the nation.

A second, related discursive move is the justification for the
infliction of violence on women in the minority community. Anti-Muslim
violence is legitimized in the name of securing the Hindu nation and
protecting the Hindu honor by protecting Hindu women. 10 4 In this process,
emphasis is placed on the construction of Hindu masculinity. Early
ideologues, such as V.D. Sarvarkar, condemned Hindu men as too weak to

103 Sarkar, supra note 100, at 23.

104 Dibyesh Anand, The Violence of Security: Hindu Nationalism and the Politics

of Representing 'the Muslim' as a Danger, 94 ROUND TABLE 203,206 (2005).

2006] 917



Columbia Journal of Gender and Law

challenge the Muslim, and in fact argued that the Hindu male's effeminacy
permitted Muslim atrocities against Hindus. 10 5 The transformation of the
Hindu male from a weak, effeminate man into a virile militant warrior
became a central plank in the Hindutva project at the beginning of the
twentieth century. 10 6 As Paola Bachetta argues, in the context of Hindu
nationalism the Hindu male came to be cast as virile and militaristic. The
unacceptable Hindu male was sexually promiscuous, materialist,
westernized, and effeminate. 10 7 In his macho and more militant incarnation,
he had to be heterosexual, even though he might be celibate in order to
commit himself to the nation.10 8 All other sexual identities within the nation
came to be categorized as non-Hindu, primarily as Muslim, or as foreign
(namely "western") contaminants.

The construction of Hindu masculinity must be located within the
broader agenda of the Hindu Right, which is to either force Muslims to
"assimilate" or to be exterminated from India. Madhav Sadashiv Golwalkar,
the second Sarsanghchalak, or supreme leader, of the RSS, stated that:

[T]he non-Hindu people in Hindustan must either adopt the
Hindu culture and language, must learn to respect and hold in
reverence Hindu religion, must entertain no idea but those of the
glorification of the Hindu race and culture, i.e., they must ...
cease to be foreigners, or may stay in the country, wholly
subordinated to the Hindu Nation, claiming nothing, deserving no
privileges, far less any preferential treatment-not even citizen's
rights. 1

0 9

Indira Chowdhury and Charu Gupta have demonstrated how the
creation of an image of "effete" Hindu manhood during the colonial period
and the nationalist incarnation of Hindu masculinity as strong and virile was

105 Purshottam Agarwal, Surat, Savarkar, and Draupadi: Legitimizing Rape as a

Political Weapon, in WOMEN AND THE HINDU RIGHT: A COLLECTION OF ESSAYS (Tanika

Sarkar & Urvishi Butalia eds., 1995).

106 See generally CHARU GUPTA, SEXUALITY, OBSCENITY, COMMUNITY: WOMEN,

MUSLIMS, AND THE HINDU PUBLIC IN COLONIAL INDIA 230-35 (2002).

107 Paola Bacchetta, When the (Hindu) Nation Exiles its Queers, SOCIAL TEXT,

Winter 1999, at 141, 150 [hereinafter Bacchetta, When the (Hindu) Nation Exiles its Queers];
see also BACCHETTA, supra note 88, at 99-100.

o Id. at 143.

109 Golwalkar, supra note 15, at 56.

918 [Vol. 15:3



2006] Normalizing Violence 919

an important transformation in the construction of male subjectivity. 10 The
construction of this virile figure was partly produced by the specter of
Muslims as proliferating at a rapid rate to the point where the very survival
of the Hindu race was at stake. Women were called upon to restore the
manhood of the Hindus by producing strong sons. Il ' There were increasing
verbal attacks on the Muslim "other," especially on their sexual life and
preferences, including the practices of the Prophet and Allah, as perverse
and constituting part of the essence of Islam that was a threat to all
Hindus.

1 12

There was a simultaneous fear over the procreative capacity of
Muslim women, and the aggressive lust of the Muslim male, who would
abduct and rape Hindu women. Hindu-owned newspapers began to carry an
increasing number of reports of abduction and violation of Hindu women
after the 1920s. 113 Hindu women were instructed to protect their chastity
and, in the process, the honor of the community. Women's mobility was to
be curtailed and the Hindu male was urged to become more aggressive and
kill the enemy. Violence based on retribution was advocated in the work of
V.D. Savarkar in his Six Glorious Epochs of Indian History. 114 In this work,
Muslims are cast as enemies and traitors intent on the destruction of the
Hindu State and the establishment of Muslim domination throughout the

110 
INDIRA CHOWDHURY, THE FRAIL HERO AND THE VIRILE HISTORY: GENDER AND

THE POLITICS OF CULTURE IN COLONIAL BENGAL (1998); CHARU GUPTA, SEXUALITY,

OBSCENITY, COMMUNITY: WOMEN, MUSLIMS, AND THE HINDU PUBLIC IN COLONIAL INDIA

(2001).

11 One reason for the establishment of the Rashtra Sevik Samiti had to do with the
assumption that Hindu men had been too weak to defend Hindu woman. As Menon states:

Several members of the Samiti asserted that the existence of violence against women today
testifies to the fact that men cannot defend women effectively and that women must learn to
defend themselves not only by increasing their physical strength but also by ensuring that
they help promote the right values in their families and change the nature of society.

Menon, supra note 99, at 109.
1 2 BHAGWAN JOSH, STRUGGLE FOR HEGEMONY IN INDIA, 1920-47: THE COLONIAL

STATE, THE LEFT AND THE NATIONALIST MOVEMENT 218 (1994); see also GUPTA, supra note
110, at 246-47 (illustrating how the sexual life of the Prophet Muhammad was addressed in
abusive and degrading terms).

113 GUPTA, supra note 110, at 247-56.

114 
VINAYAK DAMODAR SAVARKAR, THE SIX GLORIOUS EPOCHS OF INDIAN HISTORY

(1971).



Columbia Journal of Gender and Law

country.' 15 The Hindu male must rise against the threat and demonstrate his
manhood and masculinity. Hindu men must abandon the image of
effeminacy and chivalry, and begin the process of legitimate retribution to
defend the honor and dignity of Hindu women and the Hindu nation.

What is evident from this discourse is that the discussions on
equality and violence against women are not necessarily progressive in
nature. While transitional justice is directed at pursuing rights in ways that
will bring resolution and repair to victims of atrocious violence, it ignores
how groups with less progressive agendas have appropriated and deployed
rights discourse in ways that have set the framework and context for the
emergence of such violence. The Hindu Right has been quite successful in
articulating its political agenda within the language of secularism and
equality, at the same time as its vision undermines much of the prevailing
understandings of these concepts. With regard to women, the Hindu Right
has articulated women's issues within the language of rights, while
simultaneously attempting to reinscribe women's traditional roles within the
family. At the same time, it is casting the Muslim as a threat, existing
outside the values of liberal democracy-opposed to the principles of
equality and secularism. The threat is manifested in terms of the sexual
violence and rape of Hindu women perpetrated by Muslim men. Retributive
violence against the Muslim community is justified because Muslims do not
deserve due process or human rights protections, as they stand in opposition
to these very protections. Furthermore, Hindu men are justified in avenging
the honor of their women. The rights discourse combined with familial
discourse cast the violence as a normalized and natural outcome. The Hindu
Right is pursuing a political agenda diametrically opposed to the agendas of
progressive social and political movements, yet it has appropriated their
languages and is operating with the language of rights.

VII. THE LAYERING OF THE SUBJECT POSITION: THEBEST
BAKERY CASE

In light of the above analysis, this Article examines how the
judiciary has dealt with the harms committed during the Gujarat riots,
including the way in which Muslim women are addressed in this tragedy
through a discussion of the Best Bakery Case.'"6 The case arose from the
killing of fourteen people on the night of March 1, 2002, in the Best Bakery

115 Id. at 143-44.

116 State v. Baria, (Best Bakery Case) No. 248/2002 (Gujarat Fast Track Ct. June

27, 2003), available at http://www.sabrang.com/cjp/best/vadjudgement.pdf.

920 [Vol. 15:3



Normalizing Violence

building situated in the Hanuman Tekri area of Vadodara, Gujarat. The
Trial Court acquitted all twenty-one accused after all the eyewitnesses and
many other key witnesses, turned hostile before the court, fearing reprisal if
they dared repeat the statements they had earlier made to the police.117 The
judgment stated that it was proven beyond doubt that a "violent mob had
attacked the bakery and that the lives of 14 persons were lost ... but the
prosecution has not led any acceptable legal evidence to prove that the
accused . . . had committed any such offences." 1

1
8 The judgment was

critical of the police delay in registering the first information reports of
victims, not investigating the incident properly, and harassing innocent
people. National and international newspapers reported that key witnesses
in the case had lied in court out of fear for their lives as they had been given
death threats.

Among those key witnesses who turned hostile was Zaheera
Sheikh, the daughter of the bakery owner. She is described in one paper as
"the 19 year-old with vulnerable eyes and schoolgirl plaits."' 19 According to
her original testimony to the police and the NHRC, 500 people armed with
petrol bombs had attacked the bakery. She also accused the BJP and other
party politicians of threatening and harassing them into withdrawing their
testimony. Zaheera Sheikh was heralded by non-governmental
organizations and human rights groups seeking "justice" in Gujarat as a
"star attraction," an anti-establishment heroine, lionized for "taking on" the
system.

Subsequently, the NHRC requested that the Supreme Court set
aside the order of acquittal.120 The Supreme Court ordered a re-trial of the
case, offering hope that the injuries and harms inflicted on the community
would be addressed. Zaheera Sheikh decided to return as the State's witness
to give evidence in the retrial. The Gujarat government also sought a retrial
of the case and the police registered a case against a BJP legislator for

1
7 Id. at 11; Meena Menon, A Test Case in More Ways than One, HINDU, Mar. 3,

2001 http://www.hindu.com/2005/01/03/stories/2005010303341300.htm ("in the trial at
Vadodara, out of the 73 witnesses who deposed, 37 turned hostile").

118 State v. Baria, (Best Bakery Case) No. 248/2002 (Gujarat Fast Track Ct. June
27, 2003), at 9, available at http://www.sabrang.com/cjp/best/vadjudgement.pdf.

119 Ashish Khetan, The Buying of Zaheera Sheikh, TEHELKA: THE PEOPLE'S PAPER,

Jan. 1, 2005, http://www.tehelka.com/storymain 10.asp?filename=ts010105The Buying.as
p.

120 National Human Rights Commission, NHRC Moves the Supreme Court in Best

Bakery Case, http://nhrc.nic.in/disparchive.asp?fno=561 (last visited Mar. 23, 2006).

2006]



Columbia Journal of Gender and Law

intimidating the witnesses of the incident. The Gujarat government admitted
that there were lapses on the part of the police in registering and recording
the first information report in the case, and on the part of the prosecution in
recording the evidence of witnesses.

In November 2004, Zaheera Sheikh once again retracted her
statement. She stated that the original judgment passed by the Gujarat trial
court was correct. 12 1 She claimed that all the statements she made were due
to pressure exerted by her activist lawyer, Teesta Setalvad, who worked
with the non-governmental organization, Citizens for Peace and Justice. 22

In an instant the Gujarat government, who had earlier portrayed Zaheera as
a liar, offered her complete state protection and special care and
treatment. 123 For Zaheera, the pursuit of justice by the non-governmental
organization could not bring an end to the communal discourse, the
majoritarian politics, and constant representation of the Muslim as the
"enemy" and "traitor." She was ultimately forced to choose between her
identity as a Muslim, an outsider, and the vulnerable place accorded to a
Muslim woman in a Hindu dominated state, or to align with the Hindu
community in order to ensure her safety and right to life. Her alignment
with the Hindu Right ultimately exposes the tension between the
assimilative gestures on which justice can be secured, and the exclusive
impact of liberal democratic politics and the rule of law.

In the context of Zaheera Sheikh, the woman was reduced to a
victim by all sides of the debate. She was transformed into a victim by the
non-governmental organization pursuing justice seeking solutions-at the
time of the riots as well as when she turned hostile. Even after she turned
hostile, the social justice groups continued to cast Zaheera as a mere victim,
a pawn, whose right to justice has to nevertheless be pursued if the Muslim
community was ever to find faith in the Indian body politic, the legal
process, and as citizens of the country. They sought to rescue and
rehabilitate her, and restore the faith of the Muslims in the rule of law. At
the same time, the non-governmental organization also felt the need to

121 Dionne Bunsha, Zahira's Somersault, FRONTLINE, Nov. 20- Dec. 3, 2004, at 40-
41, available at http://www.frontlineonnet.com/fl2124/stories/20041203003304000.htm.

122 This is the same NGO that initiated the Concerned Citizens' Tribunal.

123 Zaheera is under Vadodara Police Protection: Commissioner, REDIFF ON THE

NET, Nov. 4, 2004, http://in.rediff.com/news/2004/nov/04best.htm; see also 'Zaheera got Rs
18 lakh to recant,' REDIFF ON THE NET, Dec. 23, 2004,
http://in.rediff.com/news/2004/dec/22best.htm.

922 [Vol. 15:3



Normalizing Violence

present their "neutral" (read secular) credentials, to prove they were not
aligning with the Muslim community against the Hindus. They argued that
they were also involved in the process of providing justice to the families of
those killed in the Godhra train carnage. Yet this position utterly fails to
address the broader discursive context within which the real Zaheera Sheikh
has to live and survive.

The riots were cast as an aberration by the Hindu Right and Zaheera
as a victim of vicious anti-Hindu hate propaganda. She was represented
initially as a liar and enemy by the Hindu Rights, but subsequently as a
victim of Muslim-run organizations and anti-Hindu advocates. As long as
she remained allied to the Hindu majority, her security was assured. On
December 24, 2004, Zaheera was ousted from the Muslim community on
the grounds that she was lying constantly. This decision received the
endorsement of the Muslim personal law board. 124 She finally came to be
rendered as a traitor to the Muslim community and ostracized from her
religious community. In August 2005, Zaheera was indicted by a Supreme
Court-appointed committee "as a 'self-condemned liar' falling to
'inducements' by 'certain persons' to give 'inconsistent' statements during
the trial of the case."1 25 In February 2006, nine people were convicted of
murder in a retrial of the case by the Sessions Court in Mumbai. 126 In
March 2006, the Supreme Court convicted and sentenced Zaheera to one
year in prison for perjury. 127 The end result reflects the paradox, where a
Muslim woman who was a victim of the Gujarat riots, finds herself
incarcerated. While a commonly told story of transitional justice and the
rule of law can only lead to such an end, it misses out entirely on the
broader discursive narrative, which includes the role of Hindu
majoritarianism'. 128

124 Majlis-e-Shura declares Zaheera an outcast, REDIFF ON THE NET, Dec. 24,
2004, http://in.rediff.com/news/2004/dec/24best.htm.

125 Zaheera Sheik a 'self condemned liar': SC panel, ExPREss INDIA, Aug. 30,

2005, http://www.expressindia.com/fullstory.php?newsid=53608.

126 Best Bakery Case: 9 accused convicted, REDIFF ON THE NET, Feb. 24, 2006,

http://in.rediff.com/news/2006/feb/24gujarat.htm.

127 Lying in court: 1-year jail for Zaheera, REDIFF ON THE NET, Mar. 8, 2006,
http://in.rediff.com/news/2006/mar/08godhra.htm.

128 Supreme Court Panel Calls Zahira a Liar, REDIFF ON THE NET, Aug. 29, 2005,

http://www.rediff.com/news/2005/aug/29best.htm.

2006] 923



Columbia Journal of Gender and Law

VIII. CONCLUSIONS

It is imperative that the story of the Gujarat riots is not reduced to
one of mere victimization. Such a linear and monochromatic analysis
evades the discursive struggle that has been taking place both within as well
as outside of the legal arena over who constitutes the authentic Indian
subject, the location of women within that struggle, and representation of
the "other" in liberal rights discourse as invariably different-someone who
must either be tamed or assimilated through some form of cultural strip.
Refusal to conform is either treated as an immutable condition or, as in the
case of the discourse of the Hindu Right, cast as "other," foreign, and
threatening, such that incarceration and even elimination are justifiable in
the interests of the security of the nation or to protect liberal democracy and
the rule of law from that which has no regard for it and threatens to destroy
it.

This is not to suggest that the Hindu Right has been a strong
advocate of the democratic process. Indeed, Gowalkar, second chief of the
RSS and main ideological exponent of the Hindu Rights politics, had a
particular disdain for democracy. However, when India gained
independence and adopted a Constitution based on adult universal
franchise, regardless of religion, gender, caste, and class, such positions
were muted. In the contemporary period the BJP formulated a strategy for
engaging with rights discourse. Its agenda is not being pursued in
opposition to the constitutional principles of secularism and equality, but
rather in and through them. The Muslim is thus constructed as utterly
"other" or outsider, who must either assimilate or be incarcerated or
annihilated if he fails to conform. Both responses are justified; the former in
and through liberal rights discourse of equality which emphasizes sameness,
and the latter by casting the Muslim as existing outside the norms of liberal
democracy and values, and hence needing to be contained or even
eliminated.129 This general sentiment of Hindus as oppressed is then often
followed by increasingly brutal rhetoric that calls on Hindus to fight back
against these Muslim oppressors and often expressly calls for violent
confrontation. A rights approach is pursued alongside the promotion of a
militant Hindutva and a militaristic nationalism by the RSS, together with

129 Ileana Porras, On Terrorism: Reflections on Violence and the Outlaw, in AFTER

IDENTITY: A READER IN LAW AND CULTURE 308 (Karen Engles & Dan Danielson eds., 1994)
("The rhetorical transformation of terrorists into frightening alien outlaws suggest a
justification for repression by the state .... "); see also id at 294 (examining the literature on
terrorism and how the Muslim/Arab "other" comes to be constituted and rendered as a threat
and as existing outside of liberal democracy).

924 [Vol. 15:3



Normalizing Violence

the popularization of Hindutva by the VHP amongst exploited social
groups.

The various forums set up to examine the bloody riots that took
place in Gujurat in 2002 and to investigate claims that the police and
political machinery played a critical role in permitting the unleashing of
horrendous violence on the Muslim minority community are functioning
with complete fealty to the norms and tenets of the liberal notions of justice
and resolution. The ultimate function of initiatives such as the Nanavati
Commission is to report on its findings, and it will be for the government to
decide if any action is to be taken on these findings. There is no doubt that
the Commission and comparable forums provide an important space where
victims can voice their grievances and receive powerful forms of redress for
those who have experienced such horrific carnage. They serve as forms of
repair to the damage inflicted on the psyche of the minority community in
India. However, the layering and complexity of the subjects, as discussed in
the earlier sections or as depicted in Dev, are absent. What the structures of
transitional justice do not address are the normative aspects of these
struggles. They deal with immediate justice and facts, but do not consider
the broader discursive context in which the issues of communalism and
majoritarianism have emerged. It is a history that defines the Muslim as an
alien (so how can they be victims?), as oppressing the majority (read
Hindu) community (so how can they claim to be persecuted?), and as
threatening to the security of the nation-state and liberal democracy (and
hence not entitled to the same protections and notions of justice that apply
to the liberal subject).

This brings me back to the story of Zaheera Sheikh and the Gujarat
riots. By situating her almost exclusively as a victim, as the social justice
groups and non-governmental organizations did, merely addresses the
immediate, individual harm or injury she suffered or experienced. But it
fails to engage with this broader discursive construction of Muslim and
Hindu subjectivity in the discourse of the Hindu Right and how these
subjectivities have come to be embedded in law. The dynamics of
transitional justice in Gujarat cannot be limited to the violence that erupted
during those few days in March 2002. It needs to consider much more: the
discursive contest that produced this kind of violence and the subjectivities
of the different communities. It must broaden its lens of inquiry to
understand how ordinary common sense is linked to the extraordinary
infliction of political violence. The riots were not simply a vicious
expression of uncivilized hoards. It was indeed an expression that was
produced as a result of the successful discursive battle waged by the Hindu
Right, partly in and through law.

2006] 925



Columbia Journal of Gender and Law

Neither the terms of the commission nor the court cases address the
role of rights discourse in producing this event. This Article's argument is
that we need to engage with the goals of transnational justice and rights
claims differently-in ways that are constantly disruptive. The intention is
not to create more uncertainty, nervousness, or anxiety, but to ensure that
complacency or surrender to the haughty claims of rights and justice do not
become the substitute for a transformative politics and an alternative
political vision.

Transitional justice focuses on gross human rights violations, rather
than the everyday, ordinary forms of violence. As a result, it not only
distorts and individualizes the abuse, it tends to treat it as an aberration, as
outside the terms of liberalism and liberal rights. It also limits the range of
victims and those who are accountable. As discussed in this Article, this
limited understanding of transitional justice masks the deeper ideological
and discursive practices that have produced the context within which the so-
called gross violations take place. For example, by focusing on the killings,
abuses, and disappearances in the Commission of Inquiry, the structural and
ideological factors that have produced the victimhood of Muslim minorities
in India remain unaddressed. A focus on individual acts of human rights

abuse cannot capture this broader canvas. 30 It does not address the
structures and relations of power that sustain both routine and extraordinary
forms of violence-that is, how there is a relationship between ordinary and
extraordinary forms of political violence.1 31 There is no pressure to find
political alternatives, but focus merely on the guilt or innocence of the
different parties involved. Such commissions of inquiry need to go beyond
this simple formula to address the issue of victimization against the broader
ideological context.

Even courts need to move beyond their limited focus on the
individual rights violations to address the broader systemic and ideological
context that enables the production of extraordinary violence. The Gujarat
riots need to be located in the context of the enabling conditions of
Hindutva and its anti-Muslim ideology. The ideologies of majoritarianism,
as well as the colonial legacies that drove an arbitrary wedge between these
communities, have increasingly defined the meanings of equality,
secularism, and the right to free speech in India. Justice for victims must
move well beyond the liberal, legalistic, victim-focused, and state-oriented
approach.

130 Nessiah & Keenan, supra note 9, at 272-81.

131 Id. at 275.

[Vol. 15:3926



Normalizing Violence

Coming back to the discussion of Dev with which this Article
began, a legalistic and state oriented strategy fails to offer redress, though
the community representatives, including Farhan and Aaliya, want very
much to believe that in the end, justice will be done. Yet, the film itself was
subject to the very discursive practices that this Article addressed in the
context of the Gujarat riots. The film was protested in the Gujarat at the
moment of its general release. One resident from a small town in Gujarat
filed a case against Nihalani, the director, for making a film that threatened
to ignite communal clashes between two communities. The complainant
requested an injunction against the screening of the film in any part of the
country, "either by himself, through his agents or distributors; or even on
television."' 132 According to the complainant, there were many dialogues
and scenes in Dev that would hurt the feelings of Hindus as well as
Muslims. Some of these dialogues and scenes were so sensitive that they
could do great harm to the faith and respect for their respective religions.
The fact that the film was challenged in the state that was still under the
stewardship of Narender Modi was not a coincidence.

After the defeat of the Hindu Right wing led government in May
2004, the suit was dropped before the court heard arguments and the present
government granted permission to screen the film on January 26, 2005,
India's National Republic Day, on the state-run television channel. It was
hailed by human rights and social justice groups as a move to restore liberal
democracy. And yet, Zaheera lingers in jail, the entire Muslim community
is reminded of the injustices of 2002, and the ideological edifice of the
Hindu Right remains intact.

132 Haresh Pandya, Govind Nihalani's Dev in Trouble, REDIFF ON THE NET, June

16, 2004, http://in.rediff.com/movies/2004/jun/16dev.htm.

2006] 927