Nithari case: Throwing the Evidence Act to the wind
The Supreme Court on Tuesday rejected a review petition, observing that “no grounds have been made to persuade us to reconsider earlier decision”.
No grounds, Your Honours?
This was a case based on only a confession. The man who made the confession, Surinder Koli, states that he has been tortured. He states that he has been tutored. Even if we ignore these claims as ones that someone in his situation would make, there are his descriptions of the murders he is confessing to. Seventeen times, for 17 murders in Noida’s Nithari village, he describes what happened. In their details, those 17 descriptions are so similar as to be essentially identical.
What else does this suggest but a tutored confession?
What else should apply to it but Section 24 of the Indian Evidence Act, which rules such a confession inadmissible? After all, that Section was formulated to address such situations of police excess. Why wasn’t it applied to this confession?
But if it is indeed accepted as true, Koli’s descriptions of the crimes raise troubling questions about his mental condition. When his master MS Pandher brought sex workers home, he says, a “pressure built in my mind for sex ... wrong feelings [made me want to] kill someone and hack [them]”. At the least, there is evidence here of a disturbed mind responding uncontrollably to triggers. Since this confession was treated as evidence, we might ask: What are we doing, executing a mentally ill man?
It was suggested during the review petition that Koli had poor legal aid during his trial. This is partly because the Noida Bar Association had resolved not to represent Koli in court, given the heinousness of his alleged crimes. In 2007, its secretary Manoj Bhati said: “Law and the Constitution are for human beings and not for devils who killed innocent children of poor people.” Clearly he had no use for a fundamental principle of his profession: The man is innocent until proven guilty. Besides, Bhati and whoever else thinks this way might remember: The law and Constitution are for every single Indian. Regardless of how ghastly the crimes are that she or he is accused of.
As a result of the resolve of Bhati and colleagues, Koli had to rely on legal aid to defend him. That legal aid in India is not treated seriously is no secret. A more diligent and committed lawyer may have made more, for example, of the doubts about the confession and the Evidence Act. But that didn’t happen, and that can only raise questions about the kind of representation Koli had in court. In a sense, the judges acknowledged this by observing, in response to this mention of poor legal aid, “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”.
After all, would a Supreme Court Bench make such an observation if it was satisfied that Koli had indeed got “proper legal assistance” during his trial? No, it would have dismissed the suggestion, perhaps by noting: “We are convinced that the accused did indeed get adequate legal assistance by a lawyer of expertise who devoted time.”
Instead, their Honours make a promise about assistance in future cases. Apart from the absence of any mechanism to enforce that promise, there’s the question of what that does for Koli’s case now.
If justice was not served in his case, how does it help him to promise improvement for other cases in the future? How will it help him once he is executed? For yes, we will soon execute this man Surinder Koli.
Somehow I don’t feel that makes my country any safer for children.
Dilip D’Souza is a Mumbai-based author
The views expressed by the author are personal