The Illusion of a 'Just Law' in the Nation-State: Britta Ohm reviews 'Ways of Remembering'

Britta Ohm

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In 2002/2003, the filmmaker and television producer Rakesh Sharma became an important interlocutor during my fieldwork for my PhD thesis on the interplay between the rise of Hindutva and transnational television, particularly Rupert Murdoch's STAR TV. This was not only because he had played a leading role in re-conceptualising STAR for Indian audiences in the 1990s. By the time we spoke, he had already dropped out of the television business. Instead, he was on and off collecting and shooting material in Gujarat for a film project on the massive, state-orchestrated anti-Muslim violence that had rocked the country in early 2002 and the legal and cinematic memorialization of which is now the central focus of Sircar's important and innovative book.

Sharma's work then resulted in Final Solution (2004), the award-winning, over two hours-long documentary that meticulously assembles the preparations and aftermath of what 'we' – i.e. people critical of Hindutva – had already come to refer to as 'the Gujarat pogrom', if not 'Gujarat genocide' (a term the use of which Sircar acknowledges in the context but neglects for operational reasons in his own analysis; Sircar, 8, 32, 129). From my conversation with Sharma, which was extensive and in parts very emotional (not least from my side), I took away one particular point that Sharma repeatedly returned to and that has never really left me: 'What really worries me is this blind trust that people have in the Supreme Court. That is probably the greatest danger we're in.'

At the time of our conversation, the infamous 'Best Bakery case', which makes for the prime example in Chapter 3 - 'Aesthetics of Judicial Memory' - of Sircar's book, must already have been tried in the Vadodara Sessions Court in Gujarat itself (in June 2003). Most probably, our recursions to the legal system, aside from the large question of 'justice' that hovered over the scene at the time, were also infused by the scandalous acquittance of all accused and the transfer of the case to the next judicial level. As far as I remember, though, Sharma's warning of a 'danger of trust' in ultimate court justice was motivated mainly by concerns about an increasing undermining of the judiciary by populating it with pro-Hindutva personnel. This was a realistic enough problem then, and is even more so today, after a decade of Narendra Modi's BJP in the central government. Only last year, in 2024, I was fortunate enough to spend time with a lawyer at the Supreme Court who took me to a lecture at the Indian Society of International Law in Delhi. Attendance was good, though not overwhelming. One floor down, however, the much larger convention hall was packed with lawyers organized in the openly pro-Hindutva Akhil Bharatiya Adhivakta Parishad (ABAP, All India Lawyers' Council) who were holding a parallel event. With the ABAP claiming association with prominent justices on their website, the likelihood of facing an ideologically committed judge has obviously risen considerably. And we only need to look to the current developments in the US and many other democratic countries to know how crucial the filling of key positions in the legal system is in order to ensure particular judgements on important societal and political issues.

At the same time, it is equally crucial to keep in mind that, as long as the very framework of the state is not changed and the democratic constitution not abolished, the two very different lawyers' associations I encountered operate under and with the same law, and this is the level of reflection and understanding that Oishik Sircar's analysis takes us to. The problem of law, particularly in situations of state-supported violence, is not simply a question of ideological subversion, manipulation, bending, changing, or even interpretation, but – as my Delhi lawyer-friend put it – it is a matter of law as political practice, or, as Sircar calls it: ‘performance of state legalism’ (116). It is here that Sircar's key term of aesthetics enters the fray to grasp the performative power of a legal system that continues to pass as secular and that creates narratives it passes off as justice. Like the state, like television, like cinema – the last of which is Sircar's second field of aesthetic analysis (Chapter 4) – law is a quantitative organising apparatus in the broadest sense, which engages in the meaning-making, normalization and memorialization of qualitative ideas, of which Sircar centralises three: secularism, legalism and developmentalism.

It thus becomes clear that the actual law that was applied to try the cases filed in the context of the Gujarat pogrom was neither a law that was pro-Hindutva, nor was it a law that particularly complicated Hindu-nationalist practice (among various examples Sircar refers to is the Supreme Court's citation of the ancient Hindu text of the Manusmriti to establish its judgement on the turned-hostile Muslim key witness Zahira Sheikh in the 'Best Bakery case'). Applied was the law of the Indian state, in the very formation of which, already under Nehruvianism, the qualitative ideas of secularism, legalism and developmentalism coalesced into nationalist ideologies that now serve legal performance in the 'New India’. This history, transformed into memory, conditions the performative judicial dualism of 'both condemning the violence and simultaneously facilitating a particular kind of state-making and state-preserving rationality that masks secular law's complicities with religious violence' (Sircar, 157), which constitutes Sircar's main argument.

Two questions have formed during my fascinated reading of the book. The first grows straight out of the above-mentioned context: If the applicable Indian law is not particularly pro-Hindutva, is there at all a place for a 'just law' within the confines of the nation-state? I do not mean this with regard to the known dictum of the difference between law and justice (which Sircar also refers to) but in terms of the law potentially always protecting the state against accusations of its own brutalities and complicities. This question resonates with the contemplation of whether there is an actual place for democracy in the territorial and ethnic logic of the nation-state that Judith Butler and Gayatri Spivak, for instance, have reasoned with, and appears particularly pertinent in the current historical moment where we see, after India having taken the lead for many years, an increasing number of (officially still) democratic states employing applicable law in order to defame and detain critical citizens as terrorists and enemies of the state (and its basic ideologies). It is in this context that I find the figure of Zahira Sheikh, the 'ideal witness' (84) in Sircar's analysis, so illuminating, particularly in relation with the cinematic imagination of justice in the three films – Dev (2004), Parzania (2007), and Kai Po Che (2013) - that he chooses for close scrutiny. The witness Zahira becomes 'ideal' for the state precisely because she has seen everything – the culprits of a Hindutva mob that slaughtered her family – but could be made to not have seen anything by various legal instances that insisted on her formally guaranteed freedom of testimony in the court room at the expense of considering her organised intimidation through these very mobs in the course of the trials.

For the courts to acknowledge Zahira's seeing, and thus to honour the function of witnessing, would have meant to fundamentally shift the 'original sin' (Sircar, 88) that the state, every state, will under nearly all circumstances first try and locate with 'the other'/the declared outsider (in this case with 'Muslim terrorists' made responsible for the burning coach of the Sabarmati Express train). It would have meant to acknowledge the 'own' aggression and violence as the source of the judicial case at hand, which inherently borders the capacity of national law to work against its own political framework (and which indicates the necessity of international jurisdiction in cases of genocidal violence). Blindfolding and sentencing Zahira, in the last instance, of perjury not only buttressed the narrative of an impartial and secular judiciary vis-à-vis a Muslim victim of horrific public violence, whose credibility as a witness seemed naturally doubtless at first. It also delineated the ultimate limit of the legitimately seeable and hence determined the desirable (legalism, developmentalism) in the context of the Gujarat pogrom, of which popular films, even very critical ones like Parzania, virtually became the greater public narrators.

Against this background, it is only coherent that Rakesh Sharma's Final Solution was banned by the Central Board of Film Certification (CBFC) upon its completion and was only released after sustained citizen and activist protests and signature campaigns. Even though the film's supporters thus, in their quest for seeing the legitimately unseeable, positioned themselves somewhat outside the state, and its laws, one wonders if the images of Final Solution have not also become, somewhere, part of a collective memory of the Gujarat pogrom. For this memory - bolstered, as Sircar so impressively shows, by both state and societal authorities - serves not simply to solidify the popular vilification of ‘the Muslim’ as ‘untruthful by nature’. It also remains caught up in itself  through its dependency on recycling and confirming the same narratives of legalism, secularism, and developmentalism, forever active in fading out what was actually visible (and recorded) and hence unable to come to terms with what happened, until today.

The second, related, question that grew on me during my reading the book is rather one that I remembered and that concerns my own astonishment – naive in hindsight – in view of people appealing, through various media, to the Modi government to respect the rule of law. What sense does it make, I thought, to expect a sense for justice from notorious lawbreakers? Is it not obvious that these are the wrong addressees? It is maybe only now that 'we', i.e., people in Western democracies, are becoming busy with writing and signing the same appeals to our governments that I really realize that we are doing exactly the same – because there simply is no other addressee, at least as long as international judicial or administrative institutions are not directly relevant. This circularity, which borders on the absurd, is inscribed in the logic of the nation-state and its potential of turning against its own citizens. Not engaging against that, though, despite its immediate futility, means to give up on the very idea of justice in the immediate existential context. The spaces in which this idea can be conjured may be already pre-defined and contingent, such as the ideal secular court room in Parzania, but they cannot be understood as such if they are considered worthless in the first place.

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Britta Ohm is a senior lecturer and researcher at the Institute of Film, Theater, Media and Cultural Studies, Department of Cultural Studies and European Ethnology, University of Mainz, Germany. She specializes in political media anthropology and has researched and published extensively on the media landscapes of India and Turkey in the context of technology transformations and mediatisation, statehood, democracy, populism/fascism and activism. She has been awarded numerous grants and fellowships for her work (Swiss National Science Foundation, Thyssen Foundation, International Institute for Asian Studies, Leiden/NL, among others). Having circled the conditions and ramifications of the Gujarat pogrom in her publications for many years, she is currently finalizing a book manuscript on public crime and mediatised complicity.