A recurring theme in conversations with lawyers who oppose the death penalty, and who have been involved in defending convicts from capital punishment, has been their aim of making the death penalty procedurally impossible to inflict. Stated simply, this goal is to ensure that the State cannot, in fact, execute a person without considerable difficulty, finally rendering the death penalty itself unviable, and therefore, undesirable.

This goal was evolved as a response to the fact that the judiciary has refused to declare the death penalty unconstitutional, and the fact that there is little legislative will to do away with the punishment. The goal, if achieved, would work to ensure that the state discovers that there is no procedurally acceptable way of imposing the death penalty, and therefore ensure that such sentences are not carried out. As the final assault, the uselessness of the penalty on the statute book would be discovered, and the penalty dropped completely as even a theoretical possibility. Of course, this method was fraught with dangers, the prime one being the State becoming much more efficient at imposing the penalty, following the procedure as provided, and rendering the entire argument fallacious.  But given the limitations that have been outlined above, this was all these lawyers had. This short comment argues that the case of Yakub Memon shows the limitation of the strategy that was adopted by death penalty abolitionist lawyers, and the way the state has circumvented the entire argument points in a dangerous direction, where instead of increased efficiency and compliance, procedure is violated completely.

Let’s call the argument of the abolitionist lawyer the impossibility thesis. To be fair, this line of reasoning has had considerable success till very recently, aided by a judiciary which has successively increased procedural requirements for the taking of life by the state but always shied away from declaring the penalty unconstitutional. Of course the genesis of the impossibility thesis may not be accurately identified. However, Bachan Singh and Machhi Singh ensured that the death penalty was recognised judicially as a class of punishment of its own and to be imposed only in the “rarest of rare” cases. The constitution bench of the Supreme Court in rendering S.303 of the IPC unconstitutional was another victory, ensuring that the death penalty could not be mandatorily imposed under ordinary criminal law. Of course, the Indian Supreme Court was aware of what was happening throughout the world on matters of capital punishment, mostly the SCOTUS, which having rendered the death penalty, as practiced, unconstitutional in Furman in 1972, allowed the penalty to be restored in 1976 in Gregg v. Georgia.

The impossibility thesis scored another major victory in the case of Triveniben v. State of Gujarat, where delay on death row was recognised as a factor on which the death penalty could be commuted by the judiciary. That case was referred to a constitution bench because lower strength benches had differed in the precise effect of such delay, T.V. Vatheeswaran v. State of Tamil Nadu declaring even a delay of two years to be unduly long delay entitling the prisoner to commutation.

The impossibility thesis has been based largely on the procedural safeguards that a prisoner on death row is entitled to. The Constitution having guaranteed consideration for mercy at the hands of the executive, a prisoner could apply for the same and if there was delay in the rejection of such a petition, the prisoner could approach the judiciary on that ground. As thinking on the death penalty evolved globally, the Indian judiciary adopted several other safeguards as well, such as insanity at the time of execution being a ground to commute the sentence, recognition of the death  row syndrome etc. Finally, the impossibility thesis saw what can be called its greatest victory in the case of Shatrughan Chauhan v. Union of India, where the Supreme Court commuted fifteen death sentences on several grounds.

However, some cases have increasingly displayed that the reaction to making the death penalty more difficult to execute has been, in part, to ensure that the procedures which are guaranteed by law are not followed and the prisoner is executed. As the death penalty is irreversible and final, there is nothing which can be done once the actual execution is carried out. The cases where procedural violations have deliberately been carried out by the state leading up to an actual execution are all examples of terror related cases. One saw the same happening in the case of Ajmal Kasab, where the Maharashtra Prison Manual was violated and top ministers of the state had gone on record to say that the penalty has been carried out in secrecy precisely to ensure that Kasab could not approach the courts. Again, in the case of Afzal Guru, one may point out to factors in the actual execution that were violated. In the case of Yakub Memon, the execution showed that there are procedural violations committed, and which were condoned by the judiciary. In fact, this case displayed how determined the government was that the sentence be carried out on the same day as fixed by a legally flawed death warrant. It may, in a perverse way, be called efficient to reject the mercy petition on the same day it was referred to the Home Ministry, and by the Governor, minutes after the dismissal of his petition before the Supreme Court on 29th July. Leaving aside the procedural rules violated, such as the Mercy Petition Rules notified by the Home Ministry, which mandate a period of at least fourteen days after the rejection of any mercy petition before the sentence can be carried out, one may see that government action has been to ensure that the prisoner cannot take advantage of his ordinary rights under Article 32. Whether Yakub would have challenged the rejection of his mercy petition on the grounds on which executive action can be challenged, one does not know. But it cannot be said that he was not entitled to challenge it. Of course, fidelity to the law, as laid down by the Supreme Court itself, should have ensured that the letter of the law be followed. However, the entire state machinery ensured that it was not.

It seems therefore, that the impossibility thesis has been outwitted by a system where procedural safeguards may be discarded at will by the government in power to ensure that the penalty is carried out. The only justification coming from the other side seems to be that this case involved an instance of terror. But I would caution against celebrating the defeat of the impossibility thesis as any triumph for brilliant legal thought. It is in fact, quite the reverse. It is a deliberate blindness to an instance of illegality.•