Nithari case: How the judiciary ruled against bloodlust

A mere glance at the comments section below any news item in Indian news websites to do with the death penalty would be sickening: the extent of blood lust is one thing. More than that, the lack of knowledge of the cases and circumstances in which they were adjudicated is highly frustrating, not to mention the utter disregard for the many arguments against the death penalty, arguments that have persuaded more than 140 countries to be abolitionist in law or practice. And so it must have taken much courage and wisdom on the part of Chief Justice DY Chandrachud and Justice PKS Baghel of the Allahabad High Court to have arrived at the judgment they did late in January 2015 in the "Nithari Killings" case.

The judges did not go into the merits of Surinder Koli's conviction or sentencing. The indigent Dalit was not afforded proper legal counsel and his confession statement, on which his conviction relied heavily, had specifically stated that he had been tortured and tutored. He had "confessed" to several killings, rapes and cannibalism.

Investigators and the lower courts had failed to follow the organ trade angle that was specifically pointed out by a high level committee of the Ministry of Women and Child Development. The committee had by implication cast doubts on Koli's role, by noting that the bodies found had been handled with surgical precision.

Judges Chandrachud and Baghel confined themselves mostly to the manner in which his petitions were handled and the opportunity not afforded to Koli to appeal in good time.

They ruled that there had been "avoidable, prolonged and unnecessary" delay in disposing of his mercy petitions. They found fault with the way in which the Uttar Pradesh government and the governor had handled his appeals.

Moreover, Koli was kept under solitary confinement "even when he was not under an executable sentence of death," warrants of death issued on three occasions did not follow due process of law and no mental health evaluation was made prior to issuing them, they said.  

The judges came up with some fine prose:

"Any delay which is regarded as prolonged and unnecessary imposes upon the convict an additional period of incarceration which is not within the contemplation of the law. A convict under a sentence of death is subject to an intense psychological stress, caused by the trauma of the uncertainty of life itself. Judicial recognition of what is described as the death row phenomenon has evolved into a constitutional standard that the execution of a sentence of death should not be unnecessarily prolonged."

Even more brilliantly, Justices Chandrachud and Baghel went on to say:

"In recognising every person's right to live and to be secure against the deprivation of that right except by a procedure which is fair, the Constitution values the human being in every person including a convict. The offence committed is not obliterated but neither is the human element in every person effaced either in fact or by a fiction of law."

What the judges did not do was go into was the merits of Koli's conviction, since appeals rarely ever concern themselves with the evidence considered - or not - by trial courts.

Nevertheless a word they used in their judgment might well reflect on not only those handling post-sentencing procedures in Uttar Pradesh, but in fact some of India's highest constitutional entities.

While noting that the principal secretaries in charge of the department of home and law in Uttar Pradesh had bungled in dealing with the Koli case, they said: "Surely, a matter as serious as one impinging upon the right to life of a convict cannot be dealt with in such a cavalier fashion."

"Cavalier" might well characterise the manner in which the Supreme Court of India dealt with Koli's appeal on October 28, 2014 when it dismissed his review petition which, incidentally, was argued by one of India's most famous lawyers, Ram Jethmalani.

He pointed out the he was appearing pro bono as he was convinced that Koliwas not given proper legal assistance and had been wrongfully convicted.

But the Supreme Court bench including Chief Justice HL Dattu dismissed the plea, saying trial courts would ensure that the accused in other cases get proper legal assistance. This was tantamount to saying "we'll let Koli hang even though he was poorly represented but in future we'll see that others are well defended".

Incidentally, the review petition hearing itself had resulted from a midnight coup pulled off by Yug Mohit Chaudhry, Indira Jaisingh and other lawyers on September 8. They relied on a Supreme Court verdict of September 2 that said all review petitions pertaining to the death penalty should be heard in open court. Those which had been dismissed in chambers were to benefit from the order.

After the Supreme Court dismissed the review petition on October 28, the People's Union for Democratic Rights moved the Allahabad High Court on grounds of delay in handling the mercy petitions of Koli, who was first arrested in December 2006. It was only in February 2011 that his criminal appeal had been rejected by the Supreme Court.

The "Nithari killings" have made for front page headlines given their gruesome nature. Most newspapers refer to Koli as "Nithari killer", without looking into the full details. And the predominant majority of those commenting on these reports call for summary execution and express extreme anger over the appeals process.

That the man in whose house Koli worked as a servant, Maninder Singh Pandher, went from death penalty to acquittal seems to evoke little comment.

What needs to happen now is a fresh investigation of the "Nithari killings", especially the organ trade link so that the real culprits behind the episode are brought to book. In the process, the extent of Surinder Koli's implication or lack thereof in it can also be established.

And it would be good if journalists desisted from eating out of police investigators' hands and reporting as fact what might well be fabrication and thereby stoking blood lust that influences some judges to seek to satisfy "the collective conscience of the society".