Harsh Mander: Why a special court judge had jailed BJP MLA Maya Kodnani for 26 years

What transpired in 2002 is today mired in strenuous denial and clouds of bitter controversy. Much has either been sought to be deliberately erased from public memory or is acrimoniously contested.

The truth of what actually happened during those dark and stormy months is perhaps best illuminated by the judgements of the few upright judges who fought the prevailing prejudice and partisanship of their times and convicted rioters and their leaders for a horrific series of collective hate crimes, mass murder, rape, and arson.

Among these, the 2017 judgement of the Mumbai High Court punishing the attackers of Bilkis Yakub Rasool offers particular hope. This came at the end of an epic and heroic legal battle for justice fought by this barely lettered wife of a small Gujarati cattle trader. Her struggle seemed at times without end, “but when you are on the side of truth, you will be heard, and justice will be yours in the end”.

Fifteen years had passed since 19-year-old pregnant Bilkis Yakub Rasool was gang-raped and left naked and unconscious by men of her village, the head of her three-year-old child smashed to the ground, and 13 other family members killed during the gale of hate violence that swept Gujarat in 2002. She ensured, ultimately, that not just the men who raped her and brutally killed her daughter and family, but also the policemen and doctors who tried to protect these criminals and hide their crimes, would be punished by the law of the land and spend many years behind prison walls.

The Mumbai High Court on May 4, 2017 upheld the life-sentences awarded to the 11 men who had been convicted by the lower court but also set aside the acquittals of seven police persons and doctors for tampering with and destroying crucial evidence. There are few examples of any comparable punishment given to public officials for protecting hate criminals in any case of mass communal violence in India, although such malfeasance by police persons and doctors is far from rare. Bilkis Bano said that her rights “as a human being, as a citizen, woman, and mother’ had been ‘violated in the most brutal manner”.

She was still haunted by nightmares, and she would be filled with revulsion still as she remembered that day 15 years before the judgement. In Radhikpur village in Dahod, 200 km from Ahmedabad, her neighbours had set fire to each one of around 60 Muslim homes. As Bilkis and her terrified family ran into the fields behind their house, she turned to catch the last sight of their burning house. In the exodus that followed, Bilkis and her family sought refuge first at the residence of the village Sarpanch, then in a school in the village of Chunadi, and thereafter in the village mosque of Kuvajal. Here, Shamim, a cousin of Bilkis, delivered a baby girl at the house of a midwife.

The next day, the family fled again, knowing that they were not safe. Hiding in the shadows and overgrowth of the surrounding forests, they avoided the big highways to reach a Muslim majority settlement. Along this scary journey, they were shielded by and taken care of by compassionate people. As Special Judge Salvi was to observe later in his judgement that despite its gruesomeness, the case also brought to light acts of human kindness shown by neighbours and acquaintances towards victims of the massacre, as they gave shelter to people on the other side of the communal divide. The search for a safe location set them on the path to village Pannivel but they were not to reach their destination.

On the kachha road to the village, two trucks full of around 20 to 30 people brandishing swords and sickles suddenly obstructed their truck. Bilkis recounted how men from their village, people they knew, shouted “Aa rahya Musalmano, emane maaro, kaato” – these are the Muslims, kill them, cut them. Among the assailants was the son of a medical practitioner who treated Bilkis Bano’s father and lived right across the street, a man who owned a bangle shop at the village, another who owned a hotel in the neighbourhood where her family resided, and the husband of an elected member of Gram Panchayat. Years later, Bilkis said that what rankled her the most about her memories from that day was the fact that men she had known since her childhood were the ones who brutalised her so mercilessly.

Bilkis was clutching her three-year-old daughter, Saleha, in her arms when one of the men snatched the little girl away and smashed her head to the ground, killing her instantly. Three men, all from her village, grabbed Bilkis and tore away her clothes, even as she pleaded that she was pregnant. They ignored her entreaties that they were like her brothers and uncles and raped her in turn. In the mayhem around her, the 14 members of her family were raped, molested, and hacked to death by the mob. Shamim who had just delivered a child the day before was killed along with her infant. When Bilkis ultimately lost consciousness, the assailants mistook her for being dead and they left the scene of the carnage.

When she regained consciousness, she found herself naked, surrounded by the corpses of her family. She covered her body in a petticoat and ran up a hillock, spending a night in great dread, foreboding, and mourning. The next day, when looking for water, she came upon an Adivasi woman near a hand pump who gave her some clothes. She then spotted a uniformed police officer and approached him for help. He took her to the Limkheda Police Station in his vehicle.

Bilkis was the lone witness and survivor of eight gang-rapes and 14 murders. She knew the names of her attackers and recounted to the policeman the incidents in painful detail. But the Police Head Constable, Somabhai Gori, refused to register her complaint. He despatched her instead to a relief camp, where she was reunited with her distraught husband Yakub Rasool, sharing their unthinkable grief and suffering of having lost their daughter and so many family members.

Yakub recalled that day 15 years later to Scroll. When he searched for his wife after the riots, he found her sitting silent in a dark corner of the Godhra riot relief camp, alone and buried in grief. He had heard of what had happened to her from others at the camp. “I put everything aside – the riots, the family we had lost,” he said. “I spoke to her with love, I tried to bring her out of the pain she had endured.” He added: “Since then, I have heard Bilkis testify a million times, to NGO workers, to lawyers, to journalists, but I have never asked her – what happened to you? Who did what? You have heard the words too, but every time, I have felt them in my heart.”

No inquest

Two days after the killings, some local photographers found eight bodies of the massacred family, and it was this public exposure that forced the police to act. Bilkis was devastated when she identified the dead bodies of her family members including her three-year old daughter. Four days after her rape, Bilkis was medically examined at Godhra Civil Hospital and biological samples were sent to the local pathology lab. Meanwhile, no inquest was carried out on the massacre as required by law and the bodies were left to rot away. The doctors performing the post-mortem did not collect any blood or biological samples, evidence that they knew would be crucial. It was later proved that the bodies were buried in unmarked mass graves on the directives of the police.

In 2004, when the bodies were exhumed as part of a fresh investigation by the Central Bureau of Investigation, they found that none had skulls. It seems that they were decapitated after the post-mortem to prevent identification (talk about mutilating bodies!) and salt was sprinkled on the corpses so that they would decompose faster. A prosecution witness testified that he was taken by the police to the place where the bodies were buried in unmarked graves and he found two doctors there as well. He buried the corpses with two other men whom the police brought in for digging the pits for the clandestine mass burial, and they paid each of them Rs 250 for their labours and silence.

Fifteen years later, the High Court of Mumbai described these police persons as “villains”, who “wanted to suppress the fact of rape committed on Bilkis”. They manipulated the evidence, thwarted the investigation and probe by ensuring that the post-mortem of the dead bodies was not done properly, and also that they did not take Bilkis to the spot of incident for identifying the victims, even though she was at the police station at that time. This “tainted” their investigation, reflecting “dishonesty and callousness”.

Fifteen days after her rape, supported by her husband, she finally managed to register her statement to the police in the Godhra relief camp. The police placed her thumb impression on a blank sheet and obliterated all significant details in her statement including the names of the men who raped her. She could do nothing at that time as she was barely literate and powerless. The police dismissed Bilkis’s repeated pleas and ultimately the Judicial Magistrate on March 25, 2003, closed the case for want of evidence, claiming that there were inconsistencies.

Undeterred, Bilkis moved the Supreme Court of India with the assistance of the National Human Rights Commission. The Supreme Court ordered the Gujarat government to stop the state investigation, as the state crime agency, the Criminal Investigation Department, had begun to harass and intimidate Bilkis and her family in 2003. Two months later, it asked for an independent Central Bureau of Investigation investigation into the murders and rapes. The CBI team seized police documents, photographs, reports and evidence, recorded Bilkis’s statement and those of the other witnesses, and exhumed the remains of seven of the victims including four females and three children. The bodies of seven others were never found.

The CBI investigation was exemplary for its independence, fairness, and professionalism. “On May 12, 2004, the CBI submitted its final report to the Supreme Court in which it catalogued the complicity and involvement of the Gujarat government in the cover-up which followed the March 2002 crime.” Most significantly, Siddharth Varadarajan observes,

  “it asked that the criminal trial be held outside the state, i.e., that the government of Narendra Modi, who was chief minister at the time, could not even be trusted with the conduct of court proceedings in the matter. The Supreme Court concurred and on August 6, 2004, ordered the trial venue shifted from Gujarat to Maharashtra.”

For six years, much of which she and her family spent in hiding, Bilkis Bano fought her case with robust and unshaken resolve, supported by fine activists like Farah Naqvi and Madhavi Kuckreja of Sadbhavna Trust and Gagan Sethi of Jan Vikas. They guided her through the legal process and provided much-needed moral support. Yakub, Bilkis’s husband, remained steadfast in his support during the many years of their legal battle. The family was in effect exiled from their village because of safety concerns. They shifted from place to place, their identities hidden, and appearing in public meetings and courts with covered faces.

The Special Court in Mumbai on 18 January 2008 sentenced 11 men to life imprisonment (one of the accused men had died), and incarcerated a policeman for three years for destroying evidence. It also convicted Somabhai Gori, the sub-inspector of Limkheda police station, for refusing to record Bilkis’ initial complaint. This case marks the rarest instance of punishment for sexual violence committed during a communal massacre. Even so, the special court did not punish the doctors and other police persons, who buried the victims’ bodies and destroyed evidence of the crime. It is this part of its order that the Mumbai High Court reversed 15 years later.

The CBI had also in its appeal sought death penalty against the 11 accused men. They argued that the case was one of “mass murder” as 14 members of a family had been killed in a single instance. The riots had caused an “exodus” and thus belonged to the “rarest of the rare” category. The High Court did not concur, and upheld life imprisonment terms for the guilty. “We do agree that it is a rare massacre manifesting ugly animosity and hostility,” they noted. But the accused are not “history-sheeters or hard-core criminals”.

  “They were part of a mob on account of the Godhra incident […] in search of Muslims. They were boiling with revenge […] We do agree that the crime is uncommon and a large number of persons from the Muslim community were murdered, however, the sentencing policy is also required to be balanced on the scale of proportionality […] We also cannot be unmindful of the fact that the incident occurred in 2002, fifteen years have elapsed since then. These accused have been in custody all this while. Looking to this fact, after a gap of 15 years, we are not inclined to enhance the sentence.”  

In a stark but telling coincidence, the day after the Bilkis Bano ruling, the Supreme Court upheld death penalty for the men convicted for the gruesome gang-rape and murder of Jyoti Singh Pandey, the paramedical student in Delhi, on 16 December 2012 much to the country’s jubilation. The judges described this as a “barbaric crime” that created a “tsunami of shock”. It is hard to understand why one crime, in which infant children were smashed against rocks and killed, eight people were gang-raped and 14 people killed in a frenzy of mob hate, was less grievous than the other. Surely, the learned bench was not suggesting that the “boiling for revenge” after the Godhra train burning created a context that somehow mitigated the hate crimes that followed?

Remembering Bilkis’s words

Human rights workers and feminists including this writer are emphatic that we do not support the demand for the death penalty for any crime, even those as brutal as ones endured by Bilkis Bano and Jyoti Singh Pandey. And when reporters asked Bilkis if she wanted the death penalty for her rapists, she replied with great dignity, “I do not seek revenge. I seek justice.”

The extraordinary judicial triumph of upholding the life-terms for the killers but also punishment for the police persons and doctors who protected the hate criminals was made possible because of many extraordinary people. Bilkis Bano and Yakub Rasool’s singular and exemplary courage and perseverance was possible because of the support they received from human rights activists like Farah Naqvi, Madhavi Kuckreja and Gagan Sethi. Not to mention the unparalleled role played by the National Human Rights Commission under the leadership of Justice JS Verma, the independence and professionalism of CBI officers and the contribution of judges at various levels and times.

But it is sobering and instructive to remember that all of this became ultimately possible only because the case was moved out of Gujarat where, as this judgement establishes, police officers felt free to destroy evidence with impunity and to protect those who committed the gravest hate crimes. There can be little doubt that they derived their impunity from the top brass. The judgement is a glowing example of what institutions of secular democracy can accomplish if they are fair-minded, just, and compassionate. But it is also a reminder of what transpires when they are wilfully subverted. It calls to question the innocence of those under whose watch the carnage of 2002 unfolded, but even more importantly, under whose watch justice was deliberately, cynically and criminally subverted. With Amit Shah as Home Minister and Narendra Modi as Chief Minister, did officials at various levels feel secure in committing and enabling these hate crimes, and cynically destroying the judicial process of investigation, prosecution and trial?

In today’s times, when we are witnessing a countrywide climate of mounting hostility and hatred, it is imperative to heed the words of Bilkis Bano after the judgement.

  “To fellow Indians, I appeal to all of you, at a time when we hear news every day of people being attacked and killed because of their religion or community, please help affirm their faith in the secular values of our country and support their struggles for justice, equality, and dignity.” 

And yet we also need to be conscious of the reality that while her tormentors may be in jail, she and her family have been banished from their native village. For 15 years, they have been unable to live a normal life, moving homes over 20 times from one secret location to another. There seems to be no end to this kind of life. Fear, Yakub told the Indian Express, has become a “constant presence” in their lives. “Why don’t people understand that we don’t have any security? …. Do you know that the convicts were not always kept in Mumbai jails? They kept getting parole. We are not free. When they are out on parole and in the area, we feel insecure.”

Bilkis is wistful as she remembers her village. “I miss Randhikpur. … Yaad to bahu aave che pan shun kariye? Mane daar lage che.” I miss my village very much but what can be done? I am afraid. Yakub also cannot find work. “My forefathers have all been cattle traders, we deal in meat,” he said. “Our livelihood has become dangerous – people are being lynched under suspicion of killing cows or selling beef. What other work am I supposed to find?”

Think of this: long years later, but Bilkis Bano and Yakub Rasool remain near-destitute refugees with their children, having become fugitives of hate, probably for their entire lifetimes. But as Bilkis Bano had declared after the special court verdict sentencing the accused men to life imprisonment,

 “This judgment does not mean the end of hatred that I know still exists in the hearts and minds of many people . . . but it does mean that somewhere, somehow, justice can prevail.”  

Bilkis and her husband have heroically seized justice from a system that very rarely cedes this to survivors of communal violence. However, we – the state, the courts, you and I – have done nothing to free them from a life of fear and exile.

The other most noteworthy judgement related to the Gujarat carnage is the ruling by special court judge Jyotsna Yagnik who awarded the highest punishments to influential political leaders for leading one of the worst communal attacks in India’s history. In the past, occasionally the footsoldiers of communal massacres have been punished. But this is one of the first criminal cases in the history of the Indian republic in which a person holding high public office was convicted for leading a communal massacre. In her ruling, she expresses her compassion for the victims, most of whom were Muslim migrants from states like Kerala, Uttar Pradesh, Rajasthan and Maharashtra, and belonging to the poor and working class. She describes the massacre as “extremely brutal, gruesome, condemnable, inhuman”, “a case of race multiple murders” and a “cyclone of violence, one of the black chapters in the history of democratic India”. Her judgement, running into over 2,000 pages, recreates the unimaginable horrors that unfolded in Naroda Patiya on February 28, 2002.

The events of February 28 which emerge from her verdict are grisly and horrific. She found, based on the evidence presented before her, that around 9.30 am on the morning of February 28, the day when the Vishwa Hindu Parishad had called for a Gujarat Bandh, riotous mobs poured into the Naroda Patiya settlement from all directions. These comprised volunteers of the Vishwa Hindu Parishad, Rashtriya Swayamsevak Sangh and the Bajrang Dal, and were led by local leaders from the Bharatiya Janata Party. They wore saffron head bands, khaki pants, and carried weapons like trishuls and swords. With calls of violence, including “Maaro, Kaato” (Slaughter, Cut). “Ek bhi Miyan Bachna Nahi Chahiye” (Not a single Muslim man should be able to survive) and “Jai Shri Ram” (Victory to Lord Ram). The crowds swelled further and were driven to fever-pitch after Maya Kodnani arrived in Naroda Patiya and gave a fiery hate speech, inciting the already violent mob to rape, loot, and kill en masse. Maya Kodnani, a gynaecologist and MLA, was later appointed Minister for Women and Child Welfare by Narendra Modi.

According to Judge Yagnik’s findings, the violence thereafter took a steady turn for the worse when angry crowds spread out into Muslim chawls. They set on fire houses that they knew to be inhabited by Muslim families, pelted stones on Muslims, and shouted violent slogans against them. They also stoned and desecrated the local Noorani mosque and exploded gas cylinders inside the mosque. The rioters were equipped with many cooking gas cylinders, as well as kerosene and petrol cans. They threw burning rags immersed in petrol and kerosene into Muslim houses to set these ablaze. They looted, ransacked and destroyed the properties of the Muslims. The rioters, armed with deadly weapons, including what are called guptis (small knives), sharp-edged tridents, scythes, spears, and swords, ruthlessly attacked the inhabitants, raped and killed women, torched men, women and children, maiming them, and in some cases, burned them to death.

Not only did the police refuse to act, several testimonials established that the police fired upon many innocent men and women while they were desperately trying to escape the mobs. Some terrified Muslim residents tried in vain to seek shelter inside the Noorani mosque. When rioters detonated cooking gas cylinders inside the mosque, the police fired at the terrorised and screaming victims trying to flee. They also lathi-charged the escaping crowds, beating them back with police batons, to deliberately push the fleeing Muslim victims back into their houses. Since the mobs were raiding their houses, they were thrust by the malign police into a death trap.

The ‘kingpin’

Based on the testimonies and evidence before her, the most sensational conclusion that Judge Yagnik reached was that the “kingpin” of the entire operation was MLA Maya Kodnani.

Eyewitness accounts successfully established that a mob, coming from the direction of Krishnanagar and Natraj Hotel, had gathered between the Noorani Masjid and the ST workshop where Maya Kodnani had come with her bodyguard Kirpal Singh, and had incited and excited the crowd to attack and kill Muslims and also attack and brutalise women. Encouraged to violence and assured of protection by an elected member of the ruling party in power, members of the murderous mob began their attack on Noorani Masjid and set it on fire while the police watched. It was the confidence and protection afforded by a powerful person in this case, Maya Kodnani, an elected MLA, that emboldened the mob.

This also establishes a chain of command responsibility, from those who conspired and those who physically instigated to those who actually implemented the criminal conspiracy. Those in the mob who successfully carried out the criminal intent carried deadly weapons and inflammable substances like kerosene and petrol. …Several of the violent incidents that are linked to the same act of criminal conspiracy continued throughout the day and again Maya Kodnani and other accused persons had been seen between 12.30 and 1.45 pm coming in a vehicle, alighting, taking out swords from the car and distributing these weapons. …Gas shortages for ordinary residences in Naroda Patiya area for weeks before the incident point to a sinister premeditation that precedes even the mass arson of the Sabarmati S-6 coach at Godhra on February 27, 2002.

Significantly, Judge Yagnik found the police investigation shoddy, deliberately inept, ineffective, and biased. Such defective investigation has marred most of the criminal cases filed after the 2002 carnage. She noted in her judgement that the “police was not inclined to record certain names.The Court is not sitting in Ivory Tower and it is fully aware and conscious as to what kind of devices and tactics are being played in hiding the real culprits, and more particularly when that real culprit is VIP….” In a later part of the judgement regarding the culpability of the influential MLA gynaecologist Maya Kodnani, she says that “the police took all care to see to it that in all the statements of the eyewitnesses recorded there has to be a common recitation which was to the effect that ‘I am injured, my family members died or injured, my house and all property were ruined and looted by the mob of the miscreants but I do not know anyone of them’.”

The judge noted and rejected attempts by defence lawyers and certain police officers to project the communal riots as a “free fight” between Hindu and Muslims. The “free fight” theory was rejected on the factual basis that less than 5% of those involved in the fighting were Muslims, and that almost all of the around 125 people killed and injured were Muslims, while the mob was almost entirely Hindu.

At the time of the massacre, Maya Kodnani was a member of the Gujarat legislature. Chief Minister Modi thought it fit to elevate her after the massacre to the high office of a minister in his cabinet. Not just this, he gave her the portfolio of Women and Child Welfare. For a woman charged credibly with leading a massacre which took the lives of large numbers of women and children, this was a particularly bitter blow. I cannot tell with surety if the irony was intended, but it was cruel.

As I said, this was the first judgment that I can recall in which a senior political leader has been punished for abetting mass murder since Independence. Judge Yagnik found Kodnani’s role to be so central to the massacre that she punished her with 26 years in jail. But shortly after Modi was voted to power in Delhi in 2014, Maya Kodnani was granted bail on grounds of ill health. Selfies of her in yoga camps surfaced occasionally. Finally, in April 2018, the Gujarat High Court acquitted her of all charges.

Excerpted from Beyond Memory and Forgetting: Massacre and the Modi Years in Gujarat, Yoda Press, 2019.