There is a worrying certainty around the hanging of Yakub Abdul Razak Memon, convicted for planning and executing the 1993 Mumbai serial blasts. The Maharashtra government seems determined to execute him on July 30 despite several omissions on its part and constitutional options still remaining open for Memon. These concerns have gone unaddressed, given the obsession with both the manner in which Memon is likely to be executed and his demeanour on hearing his fate. Unfortunately, there has been virtually no discussion around the death warrant proceedings of April 2015 at the TADA court in Mumbai, which have now come to light. There is even less reportage on the multiple legal options available to him, the exercise of which is his constitutional right, and on which the crimes he has been convicted for have no bearing. The widespread sentiment appears to be that this is the end of the road for Memon, though this is far from true.

Death warrant or ‘black’ warrant proceedings, as they are colloquially called, are held in the court that first ordered the sentence of death. The contents of a death warrant can be found in the Code of Criminal Procedure, in the innocuously named Form No. 42. The form states the name of the person to be executed, the offence for which he was originally sentenced and, most critically, the time, date, and place of execution. This kind of specificity is embedded in the procedure to avoid unnecessary conjecture, and to ensure that the prisoner is not traumatised by speculation around the timing of his death.

Issuing a death warrant

Ideally, ‘black’ warrant proceedings ought to take place only after a prisoner has exhausted all legal remedies. Yet there is very little clarity in the law, and consequently in the actions of State governments, on precisely when a death warrant can be issued. Recently, there have been demonstrable lapses on the part of State governments, notably in the case of Surinder Koli, who was convicted in the serial Nithari killings in Noida. Three ‘open-ended’ death warrants were issued against him by the sentencing court in Ghaziabad. The High Court of Allahabad while commuting his sentence in PUDR v. Union of India (January 2015), however, read in basic rules of procedural fairness into the process for issuing death warrants. These principles have now been affirmed by the Supreme Court in Shabnam v. Union of India (May 2015). The basis for the writ petition in Shabnam was the hasty, almost enthusiastic, manner in which the sentencing court in Moradabad issued death warrants against Shabnam and Salim, lovers who killed seven of the girl’s family members, ordering that their executions take place ‘as soon as possible’ despite a host of legal options remaining open.

Unfortunately, what governments ignore is the unimaginable impact of unnecessary, premature, open-ended or multiple death warrants against a prisoner — that of swinging between life and death, or living with an indeterminate fate.

“Ideally, ‘black’ warrant proceedings ought to take place only after a prisoner has exhausted all legal remedies.”

As the law stands after the decision of the Supreme Court in Shabnam, a black warrant proceeding cannot take place without the accused and his lawyer being present. Shabnam now requires that five elements be satisfied: that a convict be given prior notice of the death warrant proceeding; that the warrant specify the exact date and time of execution and not a range of dates; that a reasonable period of time be fixed between the date of the order on the warrant and the date set for execution to enable the convict to meet his family and pursue legal remedies; that a copy of the execution warrant be made available to him; and that he/she be given legal aid at these proceedings.

In Memon’s case, the death warrant that was issued on April 30, 2015 scheduling his execution for July 30, 2015 was unnecessary and invalid in law. The Maharashtra government should have known that Memon still had the option of filing a curative petition. Before proceeding to execute an individual, it is the government’s obligation to ensure that all legal options have been explored. Moving for an execution in a clandestine manner, hoping that the prisoner would not exercise his constitutional options, reeks of vengeance. The fact that the Maharashtra government thought it fit not to give notice of the death warrant proceedings to Memon or his lawyers casts a serious shadow over the manner in which the government sought to proceed on the matter.

Many discrepancies

Curiously enough, when the first news stories broke about Memon’s scheduled execution on July 30, they also indicated that the Supreme Court would consider his curative petition on July 21, 2015. This happened much before the official notification of it being listed appeared on the Supreme Court’s case status platform or his lawyers were officially informed.

Another glaring inconsistency in the state’s actions is the assumption that Memon’s curative petition would be undoubtedly rejected on July 21. Ideally, the state ought to have cancelled the death warrant upon knowing that a curative petition was pending before the Supreme Court, and issued a fresh warrant. The fact of the matter is that the conduct of the Maharashtra government in obtaining a death warrant for Memon suffers from serious constitutional infirmities that must result in it being set aside.

Apart from challenging the validity of the death warrant, Memon has other legal remedies that remain unexplored. The Supreme Court in Shatrughan Chauhan v. Union of India (January 2014) once again affirmed the rights of death row prisoners to challenge the rejection of their mercy petition on certain grounds. Memon has now filed a fresh mercy petition in his name (the earlier one was by his brother on different grounds) and the Governments of Maharashtra and India will now have to consider the grounds raised in it. If the concerned governments choose to reject his mercy petition, Memon can, based on the judgment in Shatrughan Chauhan, ask the courts to examine the rejection on various grounds, including that of procedural impropriety.

For those waiting impatiently for Memon’s execution, these might appear to be unnecessary details. But the nature of a society that runs on the rule of law demands that individual rights are not sacrificed merely because sections of society find it inconvenient. Constitutional safeguards allow prisoners on death row, regardless of the offence they may have committed, to exhaust all legal remedies and to be spared hurried, arbitrary and secret executions. Yakub Memon cannot be denied the opportunity to exercise his legal options, and it would be a dangerous precedent to preclude him from doing so. The taking of life by the state must be subject to the highest levels of constitutional scrutiny. To deny someone fundamental rights on the basis of public demands for revenge would cast serious questions over our claim of being a modern constitutional democracy.