Today, three judges will hear afresh Surinder Koli’s review petition against the death sentence handed out to him by the Sessions Court in Ghaziabad in February 2009, which was upheld by the Allahabad High Court in September 2009 and the Supreme Court in February 2011. Koli was to be hanged on 12 September this year, but at 1.30 am of that day, Senior Advocate Indira Jaising and her team of lawyers persuaded Supreme Court Justices Dattu and Dave that Koli deserved another day in court.
On 15 February 2011, a Supreme Court bench comprising Justices Markandey Katju and Gyan Sudha Misra had held that Koli—indicted for raping, murdering and cannibalising a girl named Rimpa Haldar and who allegedly killed several children from 2005 onwards—appeared to be a serial killer and deserved death by hanging as his case could be categorised as “rarest of the rare” (the Supreme Court’s criterion for awarding capital punishment). The evidence against Koli was purely circumstantial—there was no unimpeached eyewitness testimony or forensic evidence to link him to the offences alleged. His confession, given during custodial interrogation and subsequently confirmed as legally valid by a magistrate, formed the sole basis for holding that the charges were proved beyond reasonable doubt.
Did this voluntary admission of guilt meet the legal standards of substantive fairness? Not quite, as veteran legal correspondent V. Venkatesan contends in Frontline magazine. For one, all through the proceedings in the various courts, Koli had maintained that the confession was extracted under torture—a claim that, if proven true, would suffice to render his conviction, and therefore the capital sentence, to a nullity. But the magistrate who gave his seal of approval, and both the sessions court and high court refused to test the veracity of his claims. The Allahabad High Court, in its judgement, noted the contention of Dr Sushil Balwada, the court-appointed lawyer assigned to Koli’s defence, that the allegedly voluntary confessional statement was inadmissible as evidence, but left it at that. Even the Supreme Court, without assigning any reason, expressed its satisfaction at the confession having legal sanctity.
Besides this evidently contentious ground for pronouncing him guilty, another aspect of Koli’s case points to something deeply amiss—and that is Koli’s mental condition, which could have a profound bearing on the outcome. In its second charge sheet, the CBI is reported to have said that he was a necrophiliac and displayed strong psychopathic tendencies. During his interrogation and incarceration, he admitted to having been overwhelmed by feelings that he couldn’t describe, and he could not remember whom he had allegedly brutalised and when.
Deciding whether Koli deserves the death penalty is the prerogative of the Supreme Court, though one might raise questions as part of the larger discussion on the grounds for either retaining or abolishing capital punishment. But the mere fact that none of the three judgements rendered by the courts even address the issues of a confession obtained by duress and possible mental illness (a mitigating factor in criminal law that has enabled acquittals of many an accused) undoubtedly raises the fundamental question of whether Koli received a fair trial. Did his defence counsel press these crucial contentions before the courts? If they did not, or if they pressed these issues in only a perfunctory manner, it can only mean that the legal representation Koli received was woefully inadequate and ineffective, especially in light of the allegations against him.
The facts suggest that from the beginning till the end, Koli, too indigent and beleaguered by circumstances to afford a lawyer, did not get the legal representation that would meet the minimum standards of litigating an adversarial criminal trial. The Noida and Ghaziabad Bar Associations, labelling him too odious to deserve the fundamental right to legal representation at trial, imposed an embargo on any of its members defending him, and some conscientious lawyers who came to his aid were browbeaten into withdrawing.
Even after the appeal against conviction and death penalty is dismissed by the Supreme Court, the accused is entitled to file a review petition as a measure of last resort. It does not need to be said that this petition must be drafted and argued with maximum persuasiveness. Bereft of the services of a competent lawyer, Koli’s “review petition,” which the court summarily dismissed on 25 July this year, was a long letter to the Chief Justice of India, in which a man who might not be of sound mind protested his innocence and pleaded for his life. It was the Supreme Court Registry that treated this rambling monologue as a petition and presented it before the judges.
Going by a Supreme Court ruling from 26 years ago, the glaring absence of effective legal representation would have been sufficient grounds for invalidating the conviction and sentence and demanding a retrial. In M.H. Hoskot, Justice VR Krishna Iyer—aware of the fact that equality before law has no meaning unless the accused has a lawyer to not only fend off the criminal charges levelled against him, but also to enable him to stand up to the natural and inevitable superiority of the State—held that if the accused is virtually unable to exercise his right of appeal for want of legal assistance, in order to do complete justice as mandated by Article 142 of the constitution and to uphold his fundamental right to life under Article 21, the court must assign to the accused a competent lawyer, as long as the former does not object to having such counsel represent him. And, as Justice Sutherland of the United States Supreme Court put it succinctly in Powell v. Alabama (1932), imposing capital punishment despite ineffective legal representation is nothing short of “judicial murder.”
Even though access to legal aid is a fundamental right, its implementation in India has been desultory. Efforts have been made only to increase access, but not to ensure that the quality of such services is commensurate with the elementary standards of fair and just lawyering.
One could very well contend that the standard is inherently deficient in light of the UN’s Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, which mandate the availability of legal aid from the moment one interacts with the first tier of the criminal justice system, the police. Given that police brutality—including false implication of innocents and the use of custodial torture to cover up shoddy investigations—is part of the reality of India's criminal system, this rule would be particularly critical here. But here, the accused is entitled to a lawyer at the expense of the state only at the trial stage; there is no one to ensure that the evidence marshalled by the prosecution is not vitiated by illegalities.
The Supreme Court’s ruling in the Parliament attack accused Afzal Guru’s case in 2005 worsened the situation. Afzal, who was subsequently executed, had claimed deprivation of a fair trial because the legal aid lawyers provided to him were not only incompetent, but also openly hostile—one of them had called him a jihadi and Pakistani terrorist while arguing his case in court. (Indira Jaising included this in her curative petition listed in Appendix II of the book 13 December: A Reader.) A hapless Afzal, with no training in the law, had no option but to cross-examine 80 prosecution witnesses all by himself, and withstand the onslaught of a phalanx of the best lawyers the government had lined up against him, all of whom were determined to prove him as one of the masterminds of the terror attack.
Justice PV Reddi, who wrote the judgement, had an opportunity to salvage Afzal’s fundamental right to life, but instead, condemned him to death by laying down a fatally flawed precedent. There was no violation of Afzal’s right to effective legal representation, he ruled, because all the criteria of the “Strickland Test” had been fulfilled. He was going by the United States Supreme Court’s decision in Strickland v. Washington (1984), which laid down a two-pronged test to determine if the legal assistance was adequate. Adopting a “highly deferential attitude” to the lawyer’s performance, and proceeding on the presumption that the representation was effective, the court would require the accused to prove, one, that counsel’s performance was deficient, and, two, that this deficiency in performance prejudiced the defence so seriously as to deprive him of a fair trial, a trial whose results are reliable. The court demanded an “objective standard of reasonableness” without laying down any, and cautioned against the “distorting effects of hindsight” when confronted with a situation that called for invalidating a trial because the standard has not been met. But that case had also seen a dissenting opinion—that of Justice Marshall, who felt that rather than automatically give lawyers the benefit of doubt, much of what could be considered a reasonable defence could “profitably be made the subject of uniform standards.” Further, he held that trial proceedings had to be fair. He wrote: “The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree.” Justice Marshall’s dissent sums up the failings of the Strickland Test.
On 21 January this year, the Supreme Court in Shatrughan Chauhan acknowledged the parlous state of legal aid for prisoners on death row, and gave a list of directions aimed at correcting this grave anomaly. However, the blemish of how it acted on Afzal’s case and Koli’s appeal remains. If the court today does not demonstrate any salutary lessons drawn from these two instances, equal and complete justice shall remain a chimera.
UPDATE: Earlier today, the Supreme Court rejected Surinder Koli’s plea to recall the judgement upholding his death sentence. News agencies reported that "the court has directed that in future the trial court will ensure that the accused in other cases be given proper legal assistance by a lawyer of expertise and who can devote time."