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What Amit Shah’s Testimony in the Maya Kodnani Trial Means

Manoj Mitta, author of The Fiction of Fact-finding: Modi and Godhra, and Siddharth Varadarajan discuss Amit Shah’s testimony in defence of Maya Kodnani, and the 2002 riots.

On September 18, BJP president Amit Shah stood before the trial court in Gujarat  as defence witness for BJP leader Maya Kodnani, accused of conspiring to murder 11 people, all Muslims, at Naroda Gam in Ahmedabad on February 28, 2002. In an interview with The Wire, Manoj Mitta, journalist and author of a book on the Gujarat violence, explains the significance of his testimony, and of the Naroda Gam case in general.

Siddharth Vardarajan: Welcome to this Facebook live video at The Wire with Manoj Mitta, author of The Fiction of Fact-finding: Modi and Godhra. Mitta’s is arguably one of the most comprehensive books to emerge out of the 2002 Gujarat massacre. It is unique because it comes at the end of the process of investigation and prosecution and is essentially a critique of the special investigative team’s efforts in probing the Gujarat violence in general, and in particular the manner in which it discharged its duty on the task of ascertaining whether the then chief minister of Gujarat, Narendra Modi, along with 60 plus other political and state officials, had a case to answer for when it came to their alleged complicity in the 2002 violence.

The immediate peg for our discussion is the testimony that Amit Shah, the BJP president, gave on September 18 in the trial court for the Naroda Gam massacre case. This was testimony he was asked to give as a defence witness for Maya Kodnani who, at the time of 2002 massacre, was simply a BJP leader. She was elevated to cabinet by Narendra Modi in 2007. Even though there were allegations in the previous five years of her involvement in the Naroda Patiya massacre – for which she has since been convicted – and Naroda Gam, Modi took her in and she resigned only after she was convicted by the trial court in the Naroda Patiya massacre for playing a central role in directing the mobs and being part of the conspiracy to massacre over 90 people. She was sent to jail and she is out on bail right now. The issue at hand is her alleged involvement in the Naroda Gam case. She had earlier complained to the court that she had been unable to reach Amit Shah, and finally Shah was summoned and then he appeared. There he corroborated her claim, that at two moments in the morning, around 8 to half past 8 and at 11 am, Amit Shah corroborated her claim that she was in the first instance in the assembly building and in the second instance in the hospital with her. Some eyewitnesses say she was at Naroda Gam around those times. So Manoj, start by giving us your assessment  about the significance of Shah’s testimony in the context of what she has been saying and in the context of the Naroda Gam case itself.

Manoj Mitta: As you said this is something that happened rather belatedly and since it is in the run up to the Gujarat elections, it has raised eyebrows. It triggered speculation about whether it’s something that’s going to have a major political impact. I wouldn’t go into any of that. But to suggest that all of this provides Maya Kodnani an alibi would be a little bit of a misreading because as you said, what Amit Shah did was a corroboration of her claim that she was present at these two places at the morning of February 28, 2002. But as it also happens, this is also a corroboration of what the prosecution said about her. This was a matter of record. This is there even in that SIT report on Zakia Jafri’s complaint against Modi and others, where it gives  a sequence of events after the Godhra incident.

The bodies were brought from Godhra. Early in the morning, they arrived in Ahmedabad and were taken to Sola Civil hospital and the interesting thing is as many as 54 bodies were brought because four bodies were taken by the relatives in Godhra itself. Fifty-four bodies were brought here not by the police, at least not officially. On record it was the Vishwa Hindu Parishad (VHP) which was given the custody. A particular leader called Jaideep Patel was given custody. There was a letter to that effect from the Godhra district administration handing over custody to this man. And this was when VHP had already declared a bandh  – they were up in arms – a bandh which was, strictly speaking, not legal. The government, very evidently – it can be seen on the record – went out of its way to help the cause of those who called for the bandh. The VHP were given the satisfaction of getting possession of these bodies. Now, as per the law, you can’t give the body of somebody to anybody who claims to be associated with the bodies. So it’s only the next of kin who should have been given them, but they made that very significant deviation and it was on the basis of a letter that a district official, the mamlatdar of Godhra, Mahendra Nalwaya, gave to Jaideep Patel. It was on the basis of that letter that Sola civil hospital took possession of these bodies because you need documentation. There should be official communication on the basis of which you took possession of these bodies. Amit Shah said he was there at the hospital for a while because among other things post-mortem was being conducted; that’s a little inaccurate. The post-mortem was done in Godhra itself, right on the platform of the Godhra railway station. What was holding up these bodies at the Sola civil hospital for a while was the process of identification – many bodies could not be identified, as many as 19 out of 54 bodies ultimately could not be identified and they were disposed of as unidentified.

SV: Could not be identified at all?

MM: At all. They were therefore cremated and disposed of as unidentified bodies. So to say they were all VHP members would be misleading because among all those who are identified, not all are VHP members. For all we know, some of the unidentified persons might not have been even Hindus. I mean, this is a matter of speculation. The fact that they remain unidentified leaves open the possibility. Anyway, be that as it may, it was the process of identification that was holding up the release of those bodies. And it was during that time a big mob had collected there. That is what Amit Shah was referring to and its all a matter of recording. The testimonies before the SIT, whether it is Maya Kodnani or Amit Shah, had already said this. And nothing really hinges on the fact that she was there at some point, at around 11 or 11:30 in the Sola hiospital, that is what Shah testifies and that is what broadly corroborates what the prosecution SIT also said. And the fact that early in the morning, around 8:30 am, there was a special session of the assembly called to pass a condolence motio was also a matter of record. It is reasonable to conceive that all the BJP MLAs – especially those from Ahmedabad city itself as Maya Kodnani herself was – would be present there. And these two localities, Naroda Patiya and Naroda Gam, happened to fall in her constituency and she was a practicing doctor, gynaecologist and these were her parts of the town.

Now the question is what happened between these two points of time – at 8:30, there were so many MLAs and Shah did testify he noticed her there. Fair enough. No problem with that. And then he says he saw her next in the hospital around 11-11:30. Now that does not preclude the possibility of what several eye witnesses said in the Naroda Patiya case, and so in the Naroda Gam case that they saw her in her Naroda area. They saw her vehicle and supplying swords, instigating mobs talking with

SV: And they saw that happening around 9:30 or so?

MM: Yes, they saw her during that time.

SV: In between those two times?

MM: In between those two events.

SV: Where Shah corroborates she was present [where she said she was].

MM: So to somebody who does not have an idea of what is already known, it might seem that Shah at this belated stage in the run-up to the Gujarat election, is providing an alibi to her. But this is firstly not saying anything new. Secondly, it does not rule out, does not discredit in any way or put a question mark in any way, on the eyewitness testimonies that are there in both these cases.

SV: So to that extent this is really…

MM: Questions, optics. What I find significant though is this case itself. See, this case is not significant only because Maya Kodnani is implicated.

SV: Now the actual death toll at Naroda Gam is …

MM: Eleven people. Naroda Patiya is 96 people. That was the biggest massacre that took place. And all these –Gulbarg society was the biggest massacre that took place in the afternoon where 69 people died. And in Naroda Patiya the violence began in the morning and towards the evening. Around 40-50 bodies were recovered from that place. So its something that happened through the day.

Credit: ANI

Credit: ANI

Similarly, in Naroda Gam too it dragged on, its not like let’s say those two incidents – Gulbarg Society and Naroda Patiya, one big massacre. It happened over a period in Naroda Gam which is in the vicinity of Naroda Patiya. Now what is significant about Naroda Gam is not that Maya Kodnani is implicated in it because she is already implicated in Patiya – and convicted. That was a historic happening for those of us who have been tracking communal violence because never has been there an incident in the history of independent India of a political leader being convicted. So that was a very significant event. Now, when she was being convicted–she was called the kingpin of the massacre there. And she was given as much as 28 years of sentence. So in Naroda Gam, if she is convicted, this would be the second case. Therefore its not so significant in itself. What is more significant about Naroda Gam is it also implicates another important leader of the Sangh parivar, whom we just discussed right now, Jaideep Patel.

Why is Jaideep Patel so important? Because like in the case of Maya Kodnani, what we noticed was that there was extensive telephone evidence and phone calls which showed this man was in touch with several police officials. He was also in touch with Sanjay Bhausar who was in the chief minister’s office, one of the private secretaries, in the personal staff of Modi. It was because he was in touch with them in Godhra that he had enough clout to pull off such a letter. Such a huge crime takes place, and all the bodies are officially formally handed over to him. Now there’s a letter that’s never really been denied, its part of the public record based on which some inquiries were also conducted. It elicited all sorts of very strange response, like Modi said, I do not remember seeing [Jaideep Patel] at the meeting in the evening that was held in Godhra on February  27th at the collectorate. But very interestingly, and significantly Jayanti Ravi, the collector, said in her testimony to the SIT that, ‘Yes, Jaideep Patel was very much present’ in that meeting where the decision to send the bodies to Ahmedabad the very next morning was taken. Where she corroborates Modi is in the claim that they didn’t decide to give the bodies to Jaideep Patel because as I said earlier that was patently against the law, they couldn’t admit that. So what they instead said was that this Mahendra Nalwaya, the mamlatdar, a junior district official, gave this letter on his own. Now this is hard to believe on the face of it and its all the more difficult to believe because Jayanti Ravi admits that again late in the night before the bodies were sent off from Godra, she admits that she met [Jaideep Patel]. So we are being asked to believe that while Jayanti Ravi met Patel while the bodies were being sent off from Godhra, the author of the letter that was sent by he administration to this man – that is such a crucial basis on which bodies were being transferred – [was someone else]. You can’t just decide verbally and transfer because now there’s a legal matter because of an FIR, and its not the murder of one or two persons its the murder of 58 people…  A crime of that magnitude, you don’t casually send something. The basis on which this transfer took place is very important to recall, to remember that the transfer of the bodies took place from Godhra to Ahmedabad in these very dubious circumstances.

SV: This established..

MM:…Very tell-tale circumstances.

SV: And to your mind this establishes the clout of Jaideep Patel in the entire sequence of events.

MM: And it also establishes how the government was being soft on those who organised the protest, this violence and was mobilising these mobs, and sure enough out of those 54 bodies that were there at the Sola civil hospital – ten of them were taken in a big procession to the crematorium close to the Naroda Patiya area and eye witness accounts and contemporary reports of the media and others say that this was the source of the trouble. It was when people were mobilised. So this means Jaideep Patel was, you know, there was this kind of call data record available against him. Now significantly, this call data record did not come into being in the routine course and when anything like this happens –for instance, a few months before the Godhra incident took place, there was the parliament attack in Delhi. Now that was cracked on the basis of call data records. But somehow the Modi administration, despite his reputation of being very strong in law and order issues, and when I say Modi administration I don’t only mean the chief minister, the home minister who also happened to be Modi right? In spite of his presence in the political leadership of that state somehow it did not occur to the Gujarat police in the matter of course to look at the call data record evidence. It was left to whistleblower called Rahul Sharma who happened to be abruptly transferred out of his district because he…

SV: ..So he was in Bhavnagar…

MM: He was in Bhavnagar. He was doing a very good job.

SV: There were a few policemen who upheld the law during those difficult days.

MM: Bhavnagar, Surat..There were some districts like that where the police officers were very efficient and were firm in controlling the violence. So he was, within a few days of that, transferred to Ahmedabad and he came to be associated with the investigation of Naroda Patiya and Gulberg Society. There, he said, given his background in IIT, but even otherwise as I said its a logical thing to do, he asked for records from the two telecom companies and that’s how the call data records came into being. But even at that stage he was again transferred out of that place, so no action was taken on the call data records. Then he brings it up two years later before Nanavati Commission in 2004 and that is when, because he brought it up and put it on record, then it becomes public. Indian Express did a number of stories carrying details. Now the most important revelation made by the call data records was about Maya Kodnani and Jaideep Patel about the kind of calls they were making during that very significant period – February 27th, 28th..they tell us what’s going on. Their complicity, high level complicity between the political leaders and the officials and all that, leading to this kind of violence. Yet no further action was taken, because the matter, if you firmly recall, was under the Gujarat police. It was only later, when the Supreme Court handed over these significant cases – after they tried the Gujarat legal system to make amends with Best Bakery and the gangrape case of Bilkis Bano. When both these didn’t work and they had to take remedial action by transferring them out, it was at that stage that the Supreme Court handed over several of the major cases to the SIT, that’s when they create this SIT. One such case was Naroda Patiya and the other such case was Naroda Gam. Now, when they were looking at thi,s it was only in 2008 they started examining these..

SV: Call data records?

MM: [of ] these two people [Maya Kodnani and Jaideep Patel]. And it was found that there was a very significant discrepancy between what the call data records tell us about them and what they were claiming in their testimony. They were denying they were anywhere near Naroda Patiya, Naroda Gam, in those troubled spots. They were saying they were not there that time when the violence was going on. But the call data records showed something else, that in the morning when the violence began there were these movements. Not just these movements but these things were coming out of that. Because of these very serious discrepancies, it was incumbent on the SIT to take action against them. But then they were going soft on these two because of their political clout. Remember in 2007 when Modi won the elections, it was at that stage that he elevated Kodnani, an MLA, to minister. She was minister of women and child development. She was part of his government so they were dragging their feet and in January 2009, as any other police in their place would have done, they should have straightaway arrested her. Instead they gave  notice to her to come and appear before them. Although they had already interrogated her and recorded her statement! But they adopted the same method and that gave her the time to..

 SV: ..To flee.

MM: To flee. We had this odd sight of a minister going underground and seeking bail.

SV: This was all 2009

MM: This was all 2009. Early 2009. January they initiate that process, in January she succeeds in getting anticipatory bail from the subordinate court. So then these people go to the high court, both of them were acting in tandem, both Maya Kodnani and Jaideep Patel. Its another matter that when subsequently the investigation was completed by the SIT and the chargesheet was filed, they implicated Jaideep Patel only in the Naroda Gam case and not in the Naroda Patiya case. Hence the significance of the Naroda Gam, because he did not figure in Naroda Patiya. Naroda Gam is thus the only case which will establish this man’s complicity, if at all.

SV: And the fact that Jaideep Patel–there are call records that show he was in touch with Sanjay Bhavsar, who worked in Mr Modi’s office when he was chief minister..

MM: ..Till the end.

SV: Creates a different kind of dynamic.

MM: He also testified before the SIT because all of this was a matter of record, they had to investigate all these leads, so it was also there on that record, and it was only when they appealed against anticipatory bail before the high court did they succeed in getting it cancelled. It was at this stage, Kodnani had to come over ground and quit as minister. And that was when these two leaders–Maya Kodnani and Jaideep Patel, the link between them was there all through and now if you have a case where eye witnesses are testifying against her as they did in the case of Naroda Patiya and if on that basis she is convicted here as well, and if on the basis of that kind of evidence Jaideep Patel is also convicted,  it can be a huge step forward. If you see it from Jaideep Patel’s angle, this case assumes greater significance.

SV: So Maya Kodnani is a secondary player you are saying, in terms of the significance of the case.

MM: Yes, I mean what is equally significant in Maya Kodnani’s matter would be while all this drama going on in this very protracted trial in the Naroda Gam case which as you said is the smaller case actually. The appeal proceedings in the Naroda Patiya case has reached a very advanced stage. The arguments are over, judgment is reserved. On the face of it, whatever [Amit Shah] should not make difference to the Naroda Gam case or the Naroda Patiya case, because he doesn’t deviate from what is already known.

SV: And her conviction in the Naroda Patiya case is a product of many other factors.

MM: So if she still thought it would make a big difference to her case – it was at her initiative that at this belated stage … he is now the second most important political leader in the country – if he was brought in as witness it was purely at her insistence. She probably calculated the optics of it – that if he will say something that will play a major role, influence the mind of the court. But on the face of it, it should not, since he didn’t say anything that was not already known and it does not detract from that the eye witnesses said.

SV: Perhaps she is hoping the high court would be influenced in some way even though there is no locus at all.

MM: That clearly seems to be the calculation because he didn’t say anything that will resolve her alibi or that should help her.

SV:And its interesting that during Naroda Patiya trial she made no effort to make Amit Shah testify as a defence witness!

MM: This was just one very desperate move on her part while she is dealing with this. She is also hoping to take advantage of the environment that is there now. Since 2014 there has been  state of reversals in many Gujarat riots cases, fake encounter cases and Hindu terror cases. So she is hoping to take advantage of that.

Amit Shah during a news conference in New Delhi July 9, 2014. Credit: Reuters

Amit Shah during a news conference in New Delhi July 9, 2014. Credit: Reuters

SV: If I can be perhaps a bit cynical but also factual– she decided to not call Amit Shah during the Naroda Patiya trial because he was himself accused, he was charged with the murder of Kausarbi, Sohrabuddin and Tulsiram Prajapati, and wouldn’t have been the best character witness at that stage. But not that he has been discharged in the murder of those three and is now BJP  president…

MM: You hit the nail on the head. From the evidence point of view [his testimony] has no great significance. But from a political point of view, yes, probably. She is hoping it would influence the outcome of the judgment on the basis of these extraneous considerations. We can only hope that the judge will not be swayed by these considerations and that he will go strictly on the basis of merit, as did the judge in the Naroda Patiya case.

SV: I think we have dealt with these cases quite comprehensively but right now I want to take advantage for a few minutes, because apart from being an expert on the 2002 killings you are also somebody who studied the 1984 genocide and killings extensively and also have written on the legal cases. When you said Kodnani was the first politician to be convicted for involvement in a communal massacre case,  she wasn’t the first politician of course suspected of playing a role. There were very very credible allegations and several eye witness accounts against HKL Bhagat, Sajjan Kumar and Jagdish Tytler in the 1984 massacre of Sikhs. None of those cases reached fruition, but you know, in one of those cases clearly involving Sajjan Kumar a different kind of outcome may be expected.

Credit: Reuters

Credit: Reuters

MM: Since you drew this parallel I am happy to point out another reason why Kodnani’s presence in [the assembly and the hospital on the morning of the Naroda Gam massacre] is not going to count for much.

The allegation against her is of conspiracy. The conspirator doesn’t necessarily need to be physically present there. Because nobody said she personally killed anybody. The allegation is she was there at some point in the morning, and instigated and went to supply arms and so on. Now in the case of ’84, there were such allegations against HKL Bhagat. The reason I am comparing her to Bhagat is because Bhagat happened to be from the constituency that was worst hit, East Delhi. Trilokpuri is in East Delhi. It was nobody’s allegation that he was himself there on the streets leading the mobs or, you know, being part of the mob that killed anybody. But significantly, in the case of Sajjan Kumar who was an MP of an even larger constituency, Outer Delhi, such allegations were made, extensively. Sultanpuri, Mongolpuri, Delhi Cantt., these are all outlying areas of Delhi. There witness after witness said this man, who  was much younger then and part of the Sanjay Gandhi brigade, he was physically there leading the mobs– there were lots of eye witnesses. So I find it significant that the allegations against [Kodnani] fall somewhere in between. She was there on the spot but like in Bhagat’s case, she was not leading the mobs. But the allegations against Sajjan are further – that he was leading the mobs. In spite of that kind of evidence there were some cases in which he got acquitted, but there is one such case that is pending before the high court. Those of us who studied the case, lawyers like H.S. Phoolka – co-author of my book –  were all very confident that this is a clear case of conviction. Yet on some technicalities, some basess that are very questionable, this man was acquitted in the trial. But fortunately, the high court appeal is pending before a very upright judge, Gita Mittal, who has taken this appeal seriously enough to listen to this hearing twice a week. And she is asking the right kind of questions and the defence is finding it very hard. A very good lawyer representing he CBI, Cheema, he is playing a stellar role in placing the evidence on record. So we are hoping for the first time in three decades – after the Kodnani precedent of being convicted in the Naroda Patiya trial – we might see such a thing happening in Delhi. If that happens it will be a huge filip to the rule of law and there will be a huge dent in the impunity for communal violence.

SV: Manoj we will have to leave it there. Thank you so much for your expertise on the topic. Before we go, we have seen whether its ’84 or 2002, Maya Kodnani or Sajjan Kumar, or any other politician, politicians may differ when it comes to ideology or political views but they can often be partners in crime when it comes to genocide or massacres that we have seen in these two situations and others. The struggle for justice, whether pf the 1984 victims or 2002 victims, has been long and difficult. But in the case of Naroda Patiya and presumably and hopefully  in the case of Naroda Gam and Delhi Cantt, where the role of politicians has long been suspected, justice may be finally done.