On the 2nd day of August, my Senior Lawyer, Senior Advocate of the Supreme Court of India, Mr. Colin Gonsalves, went to the United States, Atlanta to be exact, to collect an award from the American Bar Association.

On the 3rd day of August, at some time in the night, President Kalam announced his rejection of the Mercy Petition before him, confirming as he did the execution of one Dhananjoy Chatterjee. The first man to be executed in India for seven years (according to the NCHR data – although how accurate that is, is anyone’s guess). The Order was communicated to the ‘Correctional Facility’ in Alipore, West Bengal, and the time and date was set:

Dawn, August 14th: Dhananjoy’s Birthday, & Independence Day weekend for India.

Just one more reason in Modern India, for Gandhiji to not look on with pride.

On the morning of the 4th day of August, we found out the news of the night before. Mr. Gonsalves and I spoke by phone, and he told me to take charge of the case. So I began to finalise and formalise a work that had been hanging in the air whilst we awaited The President, on which Dhananjoy’s hopes hung by a thread, whilst all the media were hanging on every word that was said…

We had previously received word from Mr. Bikram Jeet Batra of Amnesty International, at 7:30pm on the 21st June, that the execution had been scheduled for the 24th at dawn. We filed a Special Leave Petition (SLP) to stay the execution of Dhananjoy on the 23rd June, 2004, drafted in two long nights, by my team.

We drafted at some speed. Sunil (‘The Chairman’) Mow (Head of the ‘Criminal Justice Initiative’ at The Human Rights Law Network (HRLN)), Ms. Magali Jandaud (Jurist and ‘the most diligent women on Earth’) and I did the legal research, I constructed and wrote the draft, and Ms. Priyanka Chirimar (a junior lawyer) and Sanjay Dhadwal (Assistant National Director and all-round nice guy) finished off the formalities of the Petition and formatted it correctly. Bikram went home around 1am.

Priyanka and I then integrated the legal stuff that I’d found to be of most importance, into the Draft, and then she went home at 3am, leaving Sanjay and I to complete formatting, and me to proof, style and polish it. We went to my apartment, just 3 minutes away from the office, and Sanjay slept at 4am, while I continued until 5, falling asleep with the Draft and pen in my hand…

We slept through all alarms, and missed our 7:30am rendez-vous at the office as ordered by Mr. Gonsalves the night before. I woke as if struck by lightening at 9:15. Sanjay woke smiling, peaceful, saying “what can we do?” happily, walked into the bathroom, poured a bucket of water over his head, and walked out of the front door. He would walk to the office in 3 minutes, and I told him I would be there in 10.

The Supreme Court was on summer recess, for the month of June. The SLP had been filed, it’s urgency understood (after a certain resistance from a filing director), two TV channels and a newspaper company had called, and we had to race to the Judge’s house. Sent back to the Supreme Court, we were told to await two judges who we were to see in their Chambers.
Potenetially soon-to-be Chief Justice, M.G. Balakrishnan, asked we three with a slightly sinister smile, “Why are you here…? We have already confirmed this sentence” And in 36 hours a man will be killed accordingly.

Justice P.V. Reddi appeared more inclined to hear us out, whispering in his gentle way to his peer, that they should hear this petition in court, or words, I’m sure, to that effect. A two-day ‘stay of execution’ was granted.

The next day, the 24th day of June, we had our day in Court. On the street, as I rushed to the office after a few hours sleep, I got picked-up by chance by Priyanka, on her way to the Supreme Court. “Perfect timing”, I said as I got into the car: “let’s go.”

Mr. Gonsalves was at the Supreme Court, Court Number 4, our case the only one being heard this day. In fact, the Supreme Court was only open because of and for us. Security was tight, well-armed, and plentiful. Six or seven media companies were there to cover it. In the Court, it was disclosed that the matter was under Presidential Prerogative, awaiting the First Citizen’s decision. The Supreme Court declined to interfere until the President had exercised his prerogative. The ‘stay of execution’ was extended, pending the President’s decision…

And so, on the 4th day of August, I drafted the Writ Petition to attempt to save a man’s life. We couldn’t file it until Mr. Gonsalves returned, so I had a few days, and nights, and I used them to the full. Often working alongside my colleague and French jurist, Mademoiselle Magali Jandaud, who I had asked to do case research for me to integrate into the draft. Instead of drafting a Petition along the lines of the previous ‘stay’ SLP, I started drafting something new.

But I was under instructions to include the previous three grounds, those of ‘delay’, ‘denial of legal aid’, and ‘procedural impropriety.’ As well as to question the merits of the case by pleading for a DNA test, on the basis of the effect that the ‘revelation of DNA testing’ has on any reasonably astute mind, as it clearly did on Mr. Gonsalves, during his trip to the States. Try as I might, however, Mr. Gonsalves did not seem to understand that we were not permittied to examine ‘the merits’ of the case at this stage, but rather could only contest ‘the sentencing.’ I also knew that what I drafted would have to be accepted by my Senior, Mr. Gonsalves, and that would be the first huge hurdle to pass. The second would be whether the Supreme Court would admit the Petition to be heard. And the third would be how well our performance went in Court. My Petition, I felt, would have to be heard, but would Mr. Gonsalves accept it, when it was so much beyond any prior thoughts that he had on the subject, and therefore would he be well enough prepared to fight this case?

I worked within the instructions as much as I was able. I expanded and embellished the ‘delay’ ground, since it was a very strong part of our case. It was also a ground that Mr. Gonsalves seemed capable of understanding. I removed the ‘denial of legal aid’ ground, replacing it with a ‘lack of offer of legal aid’, but for both of which, I could find no evidence. They were nevertheless included as grounds, purely at the insistence of Mr. Gonsalaves (after all: ‘legal aid’ was his business). Alas, though I had beseeched Mr. Gonsalves to contact and invite Dhananjoy’s lawyer of 11 years (one Mr. J. Bagshi) to help with the case, Mr. Gonsalves prohibited me from doing so until the day before the case (as ‘the panic’ sets in…) I included Mr. Gonsalves’s new buzzword ‘DNA’ without opening the can of worms (even within our own office) that would be occasioned by attempting to re-open the merits of the case (our Advocate-on-Record had refused to work on the case, on the basis that she did not ‘defend rapists’…so clearly, the merits had already been decided within our office, and feelings were running high). At this stage, though, it did seem sensible for me to start from the stand-point that Dhananjoy was guilty, that was my stand-point in the draft, and thus in this writ petition I intended a plea entered only with respect to the sentencing.

So I looked for fundamental conflicts in the case with the Indian Constitution. With International Law obligations. With the intentions of Parliament. With Procedural Law. With the Administration and Criminal Justice systems. With Natural Justice. Anything that could impact on the interests of justice involved in confirming any death sentence, and specifically, this death sentence. And I found plenty…