Last week, those opposed to capital punishment stopped holding their breath for a while. Once a high court passes or confirms a death sentence, the convict appeals to the Supreme Court. If the apex court upholds the sentence, the convict could ask it to review its own order. These, according to the Supreme Court Rules, were reviewed in circulation, that is, in chambers by the judges.
On 2 September, acting on a writ petition by several prisoners on death row, the Supreme Court’s constitutional bench amended its rule to allow open-court hearings of review petitions on death sentences that it has already upheld. If technicality of writing prevented a point from getting across, it could now be orally put across to a judge in a courtroom. TEHELKA had reported on this last week (A big step farther from the hangman, 13 September).
A number of death-row convicts heaved a sigh of relief, as did Surender Koli, convicted for one of the murders in the infamous Nithari killings. In 2006, 19 skeletons were found in Nithari village, behind Sector 29 of Noida, Uttar Pradesh. The bodies were discovered in a sewerage drain behind house No. D-5, where businessman Moninder Singh Pandher resided along with Koli, who worked as his domestic help.
The investigation agencies labelled them as the work of a serial killer. During the CBI investigation, angles of necrophilia and cannibalism were thrown in as motives. Other probable motives such as organ trade and trafficking were not properly investigated and set aside.
Pandher was picked up just before the bodies were discovered in a different case. It turns out that he had been picked up in connection with a fabricated complaint about the disappearance of a commercial sex worker, whose services he would employ from time to time. Koli, who was at his native village in Almora at that time, was sent for to answer the police’s queries at that time.
While they were in custody, the bodies were ‘discovered’ and since Pandher and Koli were in custody for the disappearance of a girl, they were implicated in this case too, since the bodies were discovered behind Pandher’s residence. Later, the ‘disappeared’ girl turned up by herself. Soon, the spotlight conveniently shifted from Pandher to Koli, a poor, uneducated Dalit from Uttarakhand.
Koli has told his current lawyers that he was tortured for several days leading to his confession to the police and then the statement confirming the same to a magistrate.
Of 16 trials in the gruesome killings, Koli was convicted for the killing of Rimpa Halder and given a death sentence. The Allahabad High Court confirmed the death sentence and the Supreme Court upheld it during the appeal and dismissed the review petition. This was despite the then pending writ petition that death row convicts had filed for open-court review hearings in death sentences.
Earlier this year, Koli wrote a letter (one of several such communications) to the Chief Justice, raising some issues about his case. The apex court registry turned Koli’s letter into the said review petition.
Koli employed the services of a group of lawyers calling themselves the Death Penalty Litigation Group only a day before this review hearing and they raised several issues about the review and asked for more time, as reported by TEHELKA (Hanging Koli may bury the truth of Nithari killings, 30 August.)
The pleas were not heard, but the 2 September judgment should have made it amply clear that Koli was to get another chance before the apex court.
Now, here Koli’s life takes a bizarre twist, into a reality that is more bizarre than the Nithari killings and its so-called investigation.
While the apex court judgment was making frontpage news across the country, the CBI was moving for a swift execution. On 3 September, a court in Ghaziabad issued the death warrant for Koli — the final piece of paper that sanctions a government to take away a man’s life.
According to reports, the ‘black’ warrant was to be executed around 12 September. This gave the lawyers around nine days to file the review and get a stay order from the apex court. Note here that there are 15 more trials still going on in the Nithari killings, in which, Koli himself is a key witness.
A nervous Koli called for his lawyers and met with him, but neither he nor his lawyers were given a copy of the exact warrant. This would have allowed them to prepare the case properly. The lawyers told Koli of their plan.
The next few days were suspense-ridden for Koli as he kept hearing about the executioner visiting the jail and inspecting the premises and equipment meant for hanging. Until there is a formal court order staying the execution, how can a person on death row, especially one with a black warrant, breathe peacefully?
At around 9 pm on 7 September, things took a sudden turn for the worse, if that were possible. A report by the news agency, IANS, placed the time of hanging as 5.30 am on 8 September. It also had some morose quotes about Koli’s last days and how he had gone silent.
Koli’s lawyers were informed of this report. At 9.50 pm, they swung into action, trying to get a confirmation and simultaneously requesting the Supreme Court registrar (vacations) to take it up. The apex court could pass an urgent stay order based on its 2 September ruling.
The SC registrar (vacations) wanted a confirmation, but, it was late Sunday night and many bureaucrats had their phones switched off. Those who responded to the calls would neither confirm nor deny the death warrant. These included Meerut District Collector Pankaj Yadav and jail officials such as the superintendents of Dasna jail (where he was initially held) and the high-security Meerut jail (where he was later transferred to).
In reporting, one often comes across this government drama of refusing to confirm or deny an event, especially impending ones. However, when a man is to be hanged, why would the bureaucrats be opaque about the date and time? And why not inform the man who is to be hanged and surely his lawyers?
The team of lawyers, Yug Chaudhry, Siddhartha Sharma, S Prabhu Ramasubramanian, Paarivendhan, S Gowthaman and Ragini Ahuja, were in a race against time and with no cooperation from the apex court registry or the Uttar Pradesh bureaucracy.
In hindsight, there should have been a mechanism for the apex court’s officers to directly communicate with the government (state or Central) about this issue, but there wasn’t one.
Koli’s legal team engaged senior advocate Indira Jaising, and by around 11 pm, they were camping outside the residence of Justice HL Dattu, the second senior-most judge in the country and designated to take over as the next Chief Justice.
At around 1 am, they sent in the application to stay Koli’s execution, along with a personal affidavit of the counsel stating that there was an urgency that required the judges’ attention, considering that a man’s life hung precariously in the balance.
Between 1 and 2 am, they shuttled between the residences of Justices Dattu and Anil Dave till getting a stay order from the judges at around 2.30 am. Then too the registry was not willing to convey the urgent stay to the prison authorities. The lawyers personally went to the prison and handed over the stay order to the authorities.
What was the need for this mystery and secrecy around the hanging? This was not a man who was to be hanged “in the interest of national security” or any other such concern that the government seems to be overtly concerned about. At least that was what the UPA government professed during the hanging of 26/11 perpetrator Ajmal Kasab and the controversial execution of Afzal Guru, convicted in the Parliament attack case.
This is without even considering that Koli’s case has several holes and that the judiciary should have seen through them to establish the truth.