Surendra Koli and Memories of a Midnight Intervention

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 job. 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