Art. 161 c.f. Art. 72 in cases of death sentence

 Some authorities on Indian Constitutional Law are of the view that in a case of death sentence,  the Governor has no power of pardon but he can remit, suspend or commute the death sentence . Some other would say that the Governor has no power at all regarding death sentence. The position is confusing. Art. 161does not specify the offences or sentences to which it is applicable. i.e. death sentence is not excluded from the jurisdiction of Governor. Art. 72 (1) (c) empowers the President to grant pardon etc. in all cases where the sentence is a sentence of death. In my opinion, here the words “all cases” is to be marked. It covers matters under Art. 72 (1)(a) (b) as well as well as Art. 161. It means where death sentence has been awarded for an offence relating to a matter to which executive power of the State extends, the President as well as the Governor both are competent to exercise their powers under Arts. 72 and 161 respectively.

Recently in a PIL, Bani Kanta Das and Anr.     v.  State of Assam and Ors (WRIT PETITION (CIVIL) NO. 457 OF 2005) decided on 8/5/09 , the supreme court has set aside the commutation order of the Governor on the ground that the order was non speaking. The supreme court has remanded the application to the Governor for reconsideration.

By the said order the Governor of Assam had directed to commute the sentence of death awarded to the accused to that of life imprisonment. The death sentence awarded to the

convict by the trial Court was confirmed by the Guwahati High Court and was upheld by Supreme Court.

In this case, basically two grounds were taken before the Supreme Court 1- that no reason has been indicated to direct such commutation and 2- apparently the order of commutation had its foundation on recommendations made by  the National Human Rights Commission .