OFTEN, YOUNG LAWYERS ASK ME: “How shall we plan our careers?”. I tell them I never planned mine. What you need is to be able to realise the purpose for being a lawyer, and be prepared to do your jon. The call can come at any time. Your career will plan itself.
Speaking for myself, I have an abhorrence towards the death penalty and this is the reason why any time there is a knowledge of an impending execution, it puts me on high alert
On September 7, 2014, there were several news reports circulating about an impending hanging. I also received phone calls from lawyers in Bombay that Surendra Koli was due to be executed the following morning at 5:30 AM.
The case had been in news for some time and had evoked strong sentiments among the general public since it involved allegations of sexual abuse of children whose limbs were found in the drains outside the Noida home of a businessman for whom Surendra Koli was working as a servant. Knowing how public opinion worked, I knew that no one would shed any tears on his execution. For me, however, it was simply a question of commitment to the rule of law.
At that time, a recent judgment of the Supreme Court had held that all review petitions for death penalty cases should be heard by a Bench of three judges in open court. Surendra Koli had not had his day in court and hence it was clear to me that the execution should not go ahead until his lawyers had a chance to file and argue the review petition in open court.
When the call came from his lawyers, my legal instinct was to get up and run to court for an order to stay the execution. However, I was deeply conscious of the fact that the Supreme Court had repeatedly said that they do not act on news reports nor could I depend only on the oral instructions of the lawyers and, therefore, before I could make any move it was important for me to confirm this information with the jail authorities .
In Uttar Pradesh, I had no direct access to the prison authorities, but I had friends who helped me get access, and after running around a little bit, at around 12 AM, I was able to contact the Director General of Police in Uttar Pradesh at that time. I got on the phone to get a personal confirmation from him whether the execution was due at 5.30 AM.
All this while as I was making these phone calls, I was waiting on the pavement outside Justice H.L. Dattu's house (who was set to become the Chief Justice of India twenty days later). I did not actually have the courage to enter his house and wake him up until I had the confirmation and in any event, there is a protocol prescribed for approaching judges, which is that you have to get in touch with them through the Registrar of the Supreme Court of India and all of that takes its own time.
However, the court staff also recognised the absolute urgency of the situation and they cooperated. They did contact Justice Dattu and informed him that there is an application for an urgent hearing at that very moment. All this while, I continued waiting outside Justice Dattu’s residence on the pavement. Eventually I did get the news that Justice Dattu had sent for Justice Anil R. Dave to constitute a Bench of two judges to hear this application. And to his credit, he passed the order on the basis of my written application alone, on my word without insisting on an official confirmation in writing from the jail authorities
Much later, Justice Dattu told me that he was not aware of the fact that I was waiting outside his house on the pavement, and that had he been aware, he would have invited me in. However, there was a specific protocol in place and I did not want to breach the protocol.
Then, the rest is history, well documented in the orders of the Supreme Court. It is ironic that the review petition when heard in open court was rejected. But that did not mean that Suremdra Koli was executed. He had a long legal journey ahead of him. Ravi Garia, one of my juniors, represented Surendra Koli in the trial court and in that capacity he had occasion to meet him personally. While I have not met Koli personally, in a recent conversation I had with Ravi, he informed me that Koli had told him that he owed his life to this critical midnight intervention. Koli also told Ravi that the jailers told him that this was the first time that they had seen someone literally come back from the dead.
Since it was at about 3 AM before the order reached the jail, Koli was already being prepared for the execution which was to take place at 5.30 AM in the morning. I had however alerted the Director General of Police that such an order was passed and to await the order .Koli told Ravi that, ironically , after this incident, he was treated with much respect in the jail, and he was told by his jailers that surely he must have been innocent to have received such an intervention to be brought back from the jaws of death. They treated him with a new kind of respect.
I was happy to read about his acquittal. To me, his case represents the need to abolish the death penalty. Apart from being a cruel and unusual punishment, it fails to address the question of miscarriage of justice. His acquittal has come in a curative petition after all his appeals for a mercy petition were rejected by the President of India and the courts had awarded him life imprisonment after commuting the death penalty.
This case shows that judges are not infallible and the window of opportunity to reverse the miscarriage of justice must always be kept open. Unlike other countries (see, for instance), India has no mechanism to review cases where the accused feel that there has been a miscarriage of justice, other than the process of judicial review. But when the very process of judicial review is in question, there have to be established frameworks to review the question of miscarriage of justice.
Curative petitions are rarely entertained, but this happens to be one of the cases where such a petition was entertained by enlightened judges. This is the reason why I say that the death penalty must be abolished. I was appalled to read in the newspapers yesterday that the Supreme Court is considering alternative options to death by hanging, by administering intravenous lethal injections, treating them as an act of kindness. The Supreme Court must avoid cruelty in its decision making, whether it is death by hanging or death by lethal injection. And by the way, there is enough data to indicate that death by lethal injunction is not less if not more cruel than death by hanging.
Urgent interventions in urgent times
This is not the first time I have had occasion to approach the Supreme Court for late night hearings.
I recall the case of Baby Manji, a child born of surrogacy in India in July 2008 who was being denied the right to be under the care of her Japanese grandmother who had come to India to look after her. The baby's grandmother was due to be deported back to Japan. On the other hand, Japan was unwilling to accept Baby Manji as a citizen (the Japanese Civil Code did not allow for the transmission of the father’s citizenship to a surrogate child born abroad) and hence the baby was not being given a visa to travel to Japan.
One day in August 2008, the grandmother’s deportation was due for the following morning and it was in these circumstances that I had again approached the judges of the Supreme Court of India to stay the deportation until such time as some arrangements could be made for the grandmother and grandchild to be together. It entailed a cumbersome process — of waking up court staff, ensuring that they approached the Chief Justice, who could then constitute a Bench and issue an order.
Activists later lobbied with the Embassy of Japan to enable Baby Manji to be united with her father who was already in Japan. Following the case, in December 2008, the Japanese legislature passed a bill to grant citizenship to children born out of wedlock to foreign women and Japanese men. Baby Manji was eventually given a visa to return to Japan with her grandmother.
There are many situations in which such orders may be necessary having regard to the justice of the case. Each such urgent intervention rests on a critically important issue, where a single wrong step could be at the cost of the fundamental human rights of those concerned. And so I say to the young lawyers who approach me for advice on how to “plan “ their careers: Stay alert to the ‘call of justice’. Wait for the midnight knock and when it comes don’t refuse to open the door.