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Delay and Deference in India’s Courts and Other Institutions have Normalised the Government’s Disregard of Laws and Constitutional Guarantees

Samar Halarnkar

Five minutes.

That was roughly the difference between the transcript of a supposedly inflammatory speech made by innovator, educator—and now detainee under the National Security Act (NSA)—Sonam Wangchuk and the actual speech, which, according to the State, was responsible for violent September 2025 protests demanding statehood in Leh, the capital of the union territory of Ladakh.

“Your translation goes on for 7 to 8 minutes, but the speech is for 3 minutes,” Supreme Court Justices Aravind Kumar and P B Varale told the State on 17 February 2026. “What he relied upon and what you say are different.” The defence pointed out that the transcript accused Wangchuk, 59, of things he never said, such as provoking Ladakhi youth to violence by referring to a youth rebellion in Nepal. Six days earlier, the same Justices said the union government was “reading too much” into Wangchuk’s statements.

One of the most unbelievable arguments was that Wangchuk had referred to the union government as “them” and to Ladakhis as “us”. This, according to the solicitor general—who accused Wangchuk of instigating Gen Z to “civil war” and “indulge in bloodbath (sic)”—was grounds for detention under the NSA, which allows for detention without formal charges for up to a year.

It is clear that the Supreme Court is sceptical of the State’s gossamer-thin arguments. Yet, it has allowed Wangchuk’s case to meander along for five months. With the next hearing on 23 February, there is no sign of a quick resolution, as is required in a habeas corpus (literally, ‘produce the body’) case, which his wife filed. It is meant to compel the State to produce a detained person before the court and justify the detention.

A day after the argument over the Wangchuk speech transcript, the National Green Tribunal (NGT), India’s apex court for environmental matters, cleared a Rs 92,000-crore port-airport-city plan that experts say will devastate one of India’s last pristine rainforests, the homes of two tribes on Great Nicobar island and numerous rare and endangered species. One expert told us the project, on India’s southernmost tip, endangered “unknown unknowns”, a reference to species and effects not yet recorded or studied.

One of the affected communities, the Shompen—an isolated tribe whose language remains undocumented—could not conceivably have given informed consent, contrary to claims by the government of Prime Minister Narendra Modi. The other, the Nicobarese, were displaced from their ancestral islands by the great tsunami of 2004 and have since been prevented from returning. Most are now labourers. The government shows their ancestral lands as “uninhabited”.

The NGT cleared “India’s alternative to Hong Kong” despite ample evidence, as Article 14 reporting has shown over nearly three years, that the government had lied or otherwise misrepresented facts about local consent, the scale of destruction and environmental clearances, which it is accused of manipulating.

The Signal to the Government

Judicial meekness—and at times an outright refusal to intervene—have had the effect of normalising ecological destruction, the erosion of liberty and repression, signalling to the government that such actions carry little cost, even as dissent and protest are increasingly criminalised on implausible grounds and laws and constitutional guarantees meant to protect citizens, communities and natural resources are steadily discarded.

Often, anxious to placate the executive, India’s higher judiciary has recently reversed its own decisions and resolve. A recent example is the evident reluctance (here, here and here) to address the proliferation of hate speech, in contrast to the resolve it displayed between 2021 and 2024: In 2022, the Supreme Court ordered the police to take suo moto action—meaning, without waiting for a complaint—against hate speech. Earlier this week, the Supreme Court refused to entertain a petition against UP chief minister Yogi Adityanath and Assam chief minister Himanta Biswa Sarma, the latter accused of running xenophobic campaigns against Muslims.

Instead, the Supreme Court questioned the neutrality of the petitioners in targeting, as the Chief Justice put it, “only selected individuals”, ignoring the fact that the BJP chief ministers mentioned are India’s leading purveyors of hate speech. Go instead to the high court, said the Chief Justice.

The retreat of India’s institutions goes beyond the judiciary.

The Election Commission’s credibility and competence are in free fall: about 65 million voters have been struck off the rolls, even as efforts to deliberately remove Muslims grow, such as in Rajasthan, West Bengal, Madhya Pradesh and Gujarat (When deletions were challenged before the Supreme Court, it said no one had complained. When they did, the Chief Justice said, appeal to the high court). The government uses legal fixes and delays to cripple or hinder the public’s right to information. The government auditor, once known for adversarial audits that shaped Parliamentary debate, is neutered, with reports falling by 75% in five years. Parliament itself has become a rubber stamp of the government.

A Great Acceleration

The decline of India’s institutions began on a recognisable scale when former Prime Minister Indira Gandhi launched a wide-ranging assault on them in the 1970s. Yet, democracy and its institutions rebounded in fits and starts, remaining relatively robust through the turn of the century. But the rot lingered.

In 2015, just after Modi had taken office, then President Pranab Mukherjee called India’s institutions the “infrastructure” of the idealism that reshaped ancient values into a modern context and institutionalised various freedoms. Yet, he warned, “Our institutions of democracy are under stress.” That stress has greatly accelerated over the past decade.

The result is a government that now operates with minimal checks and balances, each institutional retreat encouraging and lowering the cost of the next act of repression.

Our reportage over the past five years has documented this spiral. Those opposing India’s discriminatory citizenship law have been jailed under terrorism and sedition provisions. Adivasis and environmental activists resisting mining, cement plants, or land acquisition have been branded as security threats. Muslims have been arrested for interfaith relationships, prayer, or simply making a living. Christians have been prosecuted for praying or alleged conversion. Journalists have been prosecuted for—well—journalism.

If institutional decline escapes the scrutiny that it requires, that is because the fight appears to have gone out of many of us. Indeed, there appears to be a growing tendency to align with the government and its priorities, possibly a function of the takeover or realignment of the mass media and the relentless social-media barrage of hatred, majoritarianism, and adulation of the great leader.

“The democracy that we have practised so far since Independence is at a crossroads today, and a kind of cultural conformism is taking hold of the citizens of India,” P D T Acharya, a former secretary general of the Lok Sabha, Parliament’s lower house, wrote in The Tribune earlier this month, arguing that Parliament’s collapse was a reflection of the citizenry it represented. “They do not seem to worry about the perceptible decline of institutions of democracy any longer.”

I am not as despairing. There are millions who will not conform. They cherish India’s hard-won freedoms and remain willing to fight for them, like the thousands, if not millions of workers who—ignored by the media—protested new labour codes. But sentiments like Acharya’s are a reminder that there is far more to worry about than many of us are prepared to admit.

(Samar Halarnkar is the founding editor of Article 14. Courtesy: Article 14.com, a joint effort between lawyers, journalists, and academics that provides intensive research and reportage, data and varied perspectives on issues necessary to safeguard democracy and the rule of law.)

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The Communal, Criminal Injustice of the Stories of Bilkis Bano and Maya Kodnani

Harsh Mander

In over a decade of the stewardship of prime minister Narendra Modi, India’s criminal justice system has become nakedly, unapologetically, even stridently communally partisan. This partisanship is not new. Virtually every regime – with the arguable partial exception of Jawaharlal Nehru’s tenure as prime minister and the Left state governments – has displayed this partisanship.

However, after 2014, the Indian criminal justice system has bared its unrepentant, even defiant partisan character.

There are no pretences now. There is no need for them.

One of the striking ways in which the rankly communal partisanship of state institutions manifests is in the many ways that the state has ensured impunity for perpetrators of grave hate crimes and mass murder that target India’s Muslim minorities. I will illustrate this with two stories of how impunity was sought for persons convicted for the gravest mass hate crimes. Both relate to the mass murder in the Gujarat carnage of 2002.

The first is the aborted bid to secure remission for the mass rape of Bilkis Bano and the slaughter of 14 members of her family including her young daughter.

And the second is the story of the acquittal of Maya Kodnani, a former minister in the cabinet of chief minister Narendra Modi in Gujarat, who was convicted for the largest single massacre during the communal carnage in 2002 in Gujarat. She was slapped with perhaps the highest punishment given to a senior public servant in communal riots in the history of the Indian republic, of 28 years of life imprisonment.

She is now fully acquitted of all charges.

Remission on Independence Day

The Gujarat government celebrated the 75th anniversary of India’s Independence in an unorthodox way. It did this by setting free 11 men who had been sentenced to life in prison for gang-raping Bilkis Bano who was five-months pregnant and five other women, and murdering 14 members of her family – including smashing her three-year-old daughter’s head with a stone.

As I heard the stunning news of this Independence Day remission, I began to wonder what freedom meant. Freedom from what? Freedom for whom?

My thoughts went then to words I wrote after the Bombay High Court had confirmed in 2017 the conviction of these 11 men for the unspeakable crimes that they had perpetrated on Bilkis Bano, her three-year-old child and 14 members of her extended family:

“Nightmares still haunt Bilkis Bano,” I wrote, “and even now she gets sick when she remembers that day in 2002”. In Radhikpur village in Dahod, 200 km from Ahmedabad, her neighbours had set fire to all of around 60 Muslim homes there. As she and her terrified family ran into the fields behind their house, she turned around for one last look at their burning home.

In the exodus that followed, Bilkis Bano 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, her cousin, delivered a baby girl in the house of a midwife.

The next day, the family fled again, knowing that they were not safe. Hiding in the shadows and the overgrowth of forests all the way and avoiding the big highways, they tried to reach a Muslim-majority settlement. Along the scary journey, they were shielded and provided for by compassionate people.

As Special Judge UD Salvi of the Mumbai sessions court observed in his judgement in 2008, despite its gruesomeness, the case also brought to light instances of human kindness shown by neighbours and acquaintances of victims of the massacre who gave shelter to those on the other side of the communal divide. The search for a sanctuary set them on the path to Pannivel village. But they were never to reach their refuge.

On March 3, 2002, on the kachha road leading to the village, two truckloads of 20 to 30 people brandishing swords and sickles obstructed their truck. “Aa rahya Musalmano, emane maaro, kaato,” they shouted – These are the Muslims, kill them, cut them.

They were all men from their village, people they knew and had been raised with. Among them 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 in the village; another who owned a hotel in the neighbourhood where Bilkis Bano and her family resided; and the husband of an elected member of gram panchayat. Bilkis Bano would say years later that what rankled her most in her memories of that day was that men she had known since she was a child were the ones who brutalised her so mercilessly.

Bilkis Bano 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 on the ground, killing her instantly. Three men, all known to her and from her village, grabbed Bilkis Bano and tore her clothes away even as she pleaded that she was pregnant. They also ignored her entreaties that they were like her brothers and uncles, and they raped her by turn. In the mayhem around her, the 14 members of her family were being raped, molested and hacked to death by others in the mob. Shamim, who had delivered a child the day before, and her infant child were also killed. When Bilkis Bano ultimately lost consciousness, the assailants took her for dead and after their pillaging, left the scene of the carnage.

When she regained consciousness, she found herself naked, surrounded by the corpses of her family members. She covered her body in a petticoat lying nearby and ran up a hillock, and spent a night there in dread, foreboding and mourning. The next day, she came upon an Adivasi woman near a hand pump when looking for water. The woman 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 Bano was the lone witness and survivor of eight gangrapes and 14 murders. She knew the names of her attackers, and told the policeman all that had happened in painful detail. But the 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, and told him of her unthinkable suffering, and how they had lost their daughter and so many members of their family.

Two days after the killings, some local photographers found some of the bodies of the massacred family – and it was this public exposure that forced the police to act. Bilkis Bano was devastated as she identified the bodies of several members of her family, including her three-year old daughter. Four days after her rape, she was medically examined at Godhra Civil Hospital and biological samples were sent to the local pathology lab, after she had been sent to the Godhra relief camp.

Meanwhile, no inquest was carried out as required by law and the bodies were left unguarded to rot away. Doctors performing the post-mortem did not collect any blood or biological samples, and recorded evidence and opinions that they knew to be false. It was later proved that the bodies were buried in unmarked mass graves on the orders 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 had been decapitated after the post-mortem to prevent identification, and salt had been sprinkled on the corpses so that they would decompose quickly. 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 the help of two other men the police had brought in to dig the pits, and they were each paid Rs 200 for their labours and silence.

Fifteen years later, the high court was to describe the policemen as “villains” who “wanted to suppress the fact of rape committed on Bilkis”. They manipulated evidence, ensured the post-mortem of the dead was not done properly, and they also did not take Bilkis Bano to the crime spot so that she could identify it, even though she was at the police station at that time. This “tainted” their investigation, reflecting “dishonesty and callousness”.

Fifteen days after her gang rape, Bilkis Bano finally managed to register her statement to the police in the relief camp. The police made her place her thumb impression on a blank sheet, and obliterated all significant details in her statement like the names of the men who had raped her. She could do nothing at that time as she was both unread and powerless. The police dismissed her 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 Bano moved the Supreme Court with the assistance of the National Human Rights Commission. The Supreme Court ordered the Gujarat government to stop the state investigation, as the Criminal Investigation Department had by 2003 begun to harass and intimidate Bilkis Bano and her family. Two months later, it asked for an independent investigation by the Central Bureau of Investigation into the murders and rapes. The Central Bureau of Investigation team seized police documents, photographs, reports and evidence, recorded the statements of Bilkis Bano and other witnesses, and exhumed the remains of seven of the victims, four females and three children. The bodies of the other seven were never found.

The investigation was exemplary both 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,” reads a report in The Wire. “Most significantly, it asked that the criminal trial be held outside the state… 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 were forced to spend in hiding, Bilkis Bano fought her case with robust and unshaken resolve, supported all along by fine activists like Farah Naqvi and Gagan Sethi of Jan Vikas. These human rights workers did all they could to bolster her morale, and guide her through the intricacies of the legal process. Yakub Rasool, Bilkis Bano’s husband, remained steady in his support to her through these many years of legal battle. The family was in effect exiled from their village, because they would not be safe there. They shift from place to place, their identities hidden, their faces covered when they appear in public meetings and courts.

On January 18, 2008, the special court in Mumbai sentenced the 11 accused to life imprisonment (one had died), and incarcerated a policeman for three years for trying to destroy evidence. This case marked the rarest instance in which sexual violence during a communal massacre was punished. Even so, the special court refused to punish the doctors and policepersons accused of burying the bodies of the victims to destroy evidence of the crime. It did, however, convict Somabhai Gori, the head constable of Limkheda police station, who had refused to take down Bilkis Bano’s initial complaint. It is this part of its order that the Bombay High Court reversed 15 years after the hate crime.

The Central Bureau of Investigation, in its appeal, sought the death penalty for the 11 convicts. They argued that the case was one of mass murder as 14 members of a family had been killed, and that the riots had caused an exodus and, thus, belonged to the rarest of rare category. The High Court did not concur, and maintained the punishment of imprisonment for life. “We do agree that it is a rare massacre manifesting ugly animosity and hostility,” it noted.

But it added that the convicted men 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, 15 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 the death penalty for four men convicted of the gruesome gangrape and murder of a paramedical student in Delhi on December 16, 2012, to celebratory headlines across the country. The judges described this as a “barbaric crime” that had created a “tsunami of shock”. That it was, no doubt, but it is hard to understand why one crime – in which the face of a child was also smashed, eight people gangraped and 14 people killed in a frenzy of mob hate – was more grievous than the other.

Surely, the learned bench could not be suggesting that “boiling for revenge” after the Godhra train burning created a context that somehow mitigated the hate crimes that followed? Some unconfirmed news reports indicate that Bilkis Bano and Yakub Rasool would have preferred the death penalty for the rapists and killers. But human rights workers and feminists (including this writer) are emphatic that they do not support the demand for the death penalty for any crime, even those as brutal as those endured both by Bilkis Bano and the young woman in Delhi.

The judicial triumph of upholding the life terms of the killers but also punishment for the policemen and doctors who tried to save them was made possible because of many extraordinary people. Bilkis Bano and Yakub Rasool’s singular and exemplary courage and perseverance. The steady and understated – and, therefore, even more precious – support they received from human rights activists like Farah Naqvi and Gagan Sethi. The unparalleled role played by the National Human Rights Commission under the leadership of the late Justice JS Verma. The independence and professionalism of the officers of the Central Bureau of Investigation. And the contribution of judges at various levels and times.

But it is sobering and instructive also 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 and protect those who committed the gravest hate crimes. There can be little doubt that they derived their impunity from the top. The judgement is a glowing endorsement 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 if these are wilfully subverted.

It calls to question once again claims that courts have established the freedom from guilt of those on whose watch the carnage of 2002 unfolded, but even more importantly, on whose watch justice against the perpetrators of these crimes was deliberately, cynically and – yes – criminally subverted. With Amit Shah as home minister and Narendra Modi as chief minister, did not officials at various levels feel secure in committing and enabling hate crimes, and cynically destroying the process of just investigation, prosecution and trial?

I wrote at that time that we – the citizens of India – also “need to carry on our conscience the reality that her tormentors may be in jail but she and her surviving family remain banished, probably for a lifetime, from the village of their birth and from a normal life. For 15 years, they have rarely been able to live in one place. They keep shifting from one secret location to another, and there seems no end to this kind of life”. Fear, her husband Yakub Rasool 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,” he said.

And I recalled that Bilkis Bano was wistful as she remembered 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.] “Think of this”, I wrote. Fifteen years had passed, “but Bilkis Bano and Yakub Rasool remain refugees with their children, fugitives from hate, probably for their lifetimes”.

Bilkis Bano had declared after the special court verdict in 2008 sentencing the accused men to life imprisonment, “This judgement 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.”

I wrote after the High Court confirmed life sentences for the rapists and killers of her family, “Bilkis Bano and her husband may 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”.

Fast-forward now to the time that Bilkis Bano’s killers, after spending 14 years in prison – with frequent interludes of parole – walked free.

As her rapists and the murderers of 14 members of her family including a three-year-old child stepped outside the jail gates, crowds greeted them with garlands and sweets at the office of the Vishwa Hindu Parishad. The BJP legislator CK Raolji defended the remission recommendation with the words: “They were Brahmins and Brahmins are known to have good sanskaar (values). It might have been someone’s ill intention to corner and punish them…”

Bilkis Bano, who had earned the admiration and gratitude of the nation for the extraordinary courage with which she fought a 15-year-long battle for justice against all odds, now said she was “bereft of words” and “numb”.

“Today, I can only say this – how can justice for any woman end like this? I trusted the highest courts in our land. I trusted the system, and I was slowly learning to live with my trauma. The release of these convicts has taken from me my peace and shaken my faith in justice. My sorrow and my wavering faith are not for myself alone but for every woman struggling for justice in the courts,” Bano declared to Article 14. “I appeal to the Gujarat government, please undo this harm. Give me back my right to live without fear and in peace. Please ensure that my family and I are kept safe.”

Her lawyer Shobha Gupta said that “we thought about appealing against lesser punishment – 14 murders, five gang-rapes, a pregnant woman gang raped – we felt life imprisonment was mild and inadequate for the heinous offence. But the thought was that let peace come, let her live peacefully now, let us accept the judgment and allow the matter to have closure”. She continued, “We have seen cases where the death penalty has been given for a single murder. This was a serious crime. Fourteen murders, gang rapes, the gang rape of a pregnant woman and her child thrashed on a stone and murdered in front of her eyes. What more should there be for it to be a death penalty case? In my practice of 25-26 years, this was 100% a death penalty case”.

She continued, “They have been convicted by one court, a second court, and a third court and their review (petition) was dismissed. Every single court has made serious observations against them. Do you not ask the victim that we know you have suffered for the past 20 years and (has) safety concerns?…It is a matter of judicial record that she is living the life of a nomad, running from place to place to ensure that she is surviving. We don’t know the committee officers who passed the order, but isn’t it a constitutional duty to consider and ensure that she is feeling safe and has a sense of fulfilment?”

She also expressed grief at the public celebration. “For what? They are convicted of rape and murder by the highest court in the country. My heart bleeds when I see this kind of society. A gang rape convict, a person convicted for 14 murders, comes out and is publicly facilitated and honoured…What is happening to our society? Even that village has women. What would women be thinking? How could women dare after this to make a complaint?”

When influential voices from India and the world questioned the Gujarat government for its decision to recommend the remission of the sentence of Bilkis Bano’s tormentors, it diverted responsibility to the Supreme Court and the union government. It said that the Supreme Court had asked the state government to consider the remission application, for which it established a committee headed by the district collector and with two BJP MLAs as members. The committee was unanimous in recommending their premature remission. The proposal was sent to the union government, where it was approved by the union home minister headed by Amit Shah. The file moved with exceptional speed, as though to meet the deadline of Independence Day.

The Supreme Court on January 8, 2024, just short of five months after the remission of 11 convicts sentenced to life imprisonment for the gang rape of Bilkis Bano and murder of her family, reversed this order. It directed that the men be returned to jail within two weeks of the order. It held firstly that the Gujarat government was not the appropriate government to consider the remission petition.

It annulled the May 2022 order of the Supreme Court that had directed the Gujarat government to consider the remission petitions, ruling that this was obtained through fraud and suppression of facts before the court. It held that the appropriate government for considering the remission petitions in the instant case was Maharashtra and expected that it would consider the remission petitions in accordance with law and the guidelines laid down by the Court.

The grounds cited by the highest court for striking down this remission order are for me disappointingly technical rather than delving into deeper questions of the ethics of punishment and reformation and laying down guidelines for the future.

Justice BV Nagarathna, who authored the judgment, however does quote the Greek philosopher Plato to justify directing the convicts back to prison: “… punishment is to be inflicted not for the sake of vengeance but for the sake of prevention and reformation. In his treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the doctor who does not apply his drug with a view to still the pain only, but to do the patient good”.

The sentencing, bail and acquittal of Maya Kodnani

A gynaecologist by training, Maya Kodnani was a member of the Gujarat legislature at the time of the Gujarat communal carnage of 2002. She was later elevated to the position of a minister for women and child welfare in chief minister Narendra Modi’s cabinet.

Maya Kodnani went on to be convicted of instigating and leading the largest single communal massacre in Gujarat, in the village Naroda Patiya in which 89 people, the majority of whom were women and children. Her punishment, of 28 years imprisonment, was probably the highest penalty for a public official in anti-Muslim violence in the history of the Indian republic.

Come 2014 with a change in the government in Delhi and first she is given long-term bail (in the way that Sadhvi Pragya Thakur who was charged with terror crimes was also freed from jail). Her sentence is suspended.

And then she is acquitted of all crimes.

Kodnani spent a cumulative total of approximately three years and five months in jail across two separate periods and is at the time of writing a free woman.

The brief facts are that on February 28, 2002, a day after the fateful fire broke out in a train compartment in the Sabarmati Express at Godhra killing around 59 people, a murderous mob of nearly 1500 people gathered in Naroda Patiya, a Muslim majority neighbourhood in the suburbs of Ahmedabad.

The law took many years to catch up with Maya Kodnani. After the carnage, chief minister Modi thought it fit to elevate Kodnani, a gynaecologist, into his cabinet. I do not know if the irony was intentional, that she was allotted the portfolio of women and child welfare even though she was being investigated for leading a massacre in which the majority of victims were women and children.

Finally, in 2008, the Supreme Court-appointed a Special Investigation Team led by former CBI director RK Raghavan to investigate the carnage. In February 2009, the SIT declared Kodnani an absconder after she failed to appear for her deposition. A month later, the Gujarat High Court revoked her anticipatory bail and she was arrested. She resigned as minister of state for women and child development.

According to the Special Investigation Team report, a crowd had gathered in Naroda Patiya to enforce a bandh called by the Vishva Hindu Parishad to protest the deaths in fire of persons in the train at Godhra the day before. Maya Kodnani, then an MLA, and VHP leader Jaideep Patel arrived separately at the site in their respective vehicles. Eleven witnesses confirmed that both of them made hateful speeches to instigate the already agitated mob. Kodnani allegedly incited the mob to kill Muslims.

The carnage that followed went on for 10 hours. At least 97 people (according to the official toll) were killed, many of them stabbed and burnt alive. An uncounted number were looted, raped and sexually assaulted. A local mosque was vandalised.

Witnesses testified to the special SIT court that she handed out swords to rioters, exhorted them to attack Muslims and at one point fired a pistol. Even phone records placed Kodnani in Naroda at the time of the incident, contrary to what Amit Shah was to testify later.

I quote from a couple of witness statements. We “went near Natraj Hotel, saw a mob of 5 to 10 thousand persons, Mayaben came there in (a) Maruti Frontie with her PA. They got down from the car. By seeing her (sic.), the people who were standing there shouted the slogans of ‘Jai Shri Ram’. Mayaben delivered a provoking speech, the gist of speech spelling her instigation to the mob (sic.) is, “I have seen dead bodies of Kar Sevaks at Godhra. You Ram Bhakta – devotees of Ram should kill Muslims here, cut them, as the Babri Masjid had been demolished, the Masjid here also should be destroyed, I am with you etc.”, you will have no difficulty. She then left”.

And another witness: “Dressed in a white saree with a saffron scarf on her neck she then went in her white Maruti car to….. the S.T Workshop Gate. Mayaben …..was followed by a Trax Jeep. Mayaben gave (a) signal to the mob near Natraj and she called upon the mob (near) the Gate of S.T. Workshop by indicating to them to come. About 100 leaders came ….Mayaben was discussing something with all of them and then instructed her P.A., the P.A. took out the weapons from the Trax Jeep, the weapons were swords, Bhala (spears),Trishul (tridents), revolvers etc. Under the instructions, her P.A. gave all these weapons to the leaders of the mob.. After Mayaben went away, the men of the mob including the P.A. had attacked (the) Nurani (Masjid). …Mayaben said “Kill them. I am and will be with you always. You will always have my backing.”

In August 29, 2012, the special SIT court judge, Jyotsna Yagnik, convicted Kodnani under Indian Penal Code sections for murder, conspiracy, and inciting hatred. She was held to be the “kingpin” and “principal conspirator” of the massacre. The judgement said Kodnani was “proved to be the kingpin of the entire communal riot and one of the principal conspirators who has actively instigated the rioters and has abetted them to form unlawful assembly to execute the conspiracy hatched under her leadership with other co-conspirators. Judge Yagnik sentenced Kodnani to 28 years in prison (10 years for unlawful assembly + 18 years for murder, to run consecutively).”

In April 2013, the Gujarat state government initially prepared to file an appeal seeking the death penalty for her but withdrew this decision in May 2013. In 2021, senior advocate Kapil Sibal highlighted in the Supreme Court this failure to challenge her acquittal, as unmistakable indications of executive partisanship. But in November 2013, she was granted interim bail for three months to treat intestinal tuberculosis and heart health issues.

Her fate turned after Modi’s election in May 2014. On July 30, 2014, the Gujarat High Court suspended her sentence and granted her regular bail on grounds of ill health. It noted that she was suffering from “intestinal tuberculosis with IBS [irritable bowel syndrome] and gastro reflux disease and with severe weight loss”. She surfaced before the public eye from time to time, such as in yoga camps. In September 2017, Amit Shah, then BJP national president, appeared as a star defense witness in her defence. He testified that he saw Kodnani in the Gujarat Assembly and at the Sola Civil Hospital on the day of the riots, contradicting the SIT’s claim that she was at the crime scene during those hours.

Finally, on April 20, 2018 a division bench of the Gujarat High Court overturned her conviction and acquitted her of all charges. It cited to justify its decision “contradictions” in witness testimonies. It noted that none of the 11 key witnesses named her when the police first registered the case in 2002; her name only appeared later when the SIT took over in 2008. The court gave her the “benefit of doubt”. However, although the same witnesses testified against Bajrang Dal leader Babu Bajrangi, the court upheld his conviction, although it reduced the quantum of his punishment.

Bilkis Bano’s appeal

The words of Bilkis Bano after the judgement in 2008 convicting the 11 men responsible for the mass rape and slaughter of her family, keep coming back to me:

“To fellow Indians, I appeal to all of you, at a time when we hear news everyday 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.”

Confronted by a nakedly partisan criminal justice system, I wonder what she would say to her fellow citizens today.

[Harsh Mander, justice and peace worker and writer, leads Karwan e Mohabbat, a people’s campaign to counter hate violence with love and solidarity. He teaches at FAU University of Erlangen-Nuremberg, and Heidelberg University, Germany; Vrije University, Amsterdam; and IIM, Ahmedabad. Courtesy: Scroll.in, an Indian digital news publication, whose English edition is edited by Naresh Fernandes.]