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.