The sentencing option of imprisonment for life without the possibility of remission or commutation is available to both the trial court and the High Court, but not to the Supreme Court unless it is exercising its powers under Article 142 of the Constitution.

BASANT, J.

(i) Do Session Judges have the power to impose the harsher variety of life sentence which is recognised by Swamy Shraddananda (2) Versus State of Karnataka[2008 (13) SCC 767] as an option available in law for the courts to avoid the harshest, irreversible and incorrect able sentence of death? Is that sentencing option available only to the Supreme Court under Article 142 of the Constitution? Is that sentencing option available only to constitutional courts - the High Courts and the Supreme Court?

(ii) Consequently is it necessary for the Session Judges to consider whether that alternative option [the harshest sentence of life authorised by Swamy Shraddananda (2)(supra)] is also unquestionably foreclosed in the facts and circumstances of a given case before choosing to impose the sentence of death?

(iii) Is it necessary for this Court to declare the law authentically and insist that before the sentence of death is imposed by any Sessions Court, such consideration must invariably precede?

These questions occurred to me when some of the Death Sentence References and connected appeals came up for hearing. It is true that no counsel specifically had raised these questions in the Memoranda of Appeals or other pleadings. But I felt that such questions have got to be considered and the system cannot avoid these questions for long. There are 10 death sentence references pending before this Court now and as directed, all the 10 D.S.Rs have been taken up together for consideration of the general and common questions raised.

2. We have spent precious and long time of the Court for hearing arguments on this general aspect. Arguments have been advanced by counsel appearing for the accused persons as also the learned Director General of Prosecution and the Additional Director General of Prosecution. Arguments could be completed only on 11.04.2012. In the course of the discussions at the Bar, some disagreements on vital aspects have arisen between me and Honourable Justice K. Vinod Chandran in the matter. Since I am to demit the office on superannuation and today happens to be the last sitting day for me, I am obliged to dictate this order now on the Bench. Needless to say, normally I would have preferred to reserve the order and pronounce the same after elaborate discussions with my learned brother and exchange of draft judgments. But the peculiar circumstances and the time crunch oblige me to dictate this order on the Bench now. As there are certain areas of disagreement in the course of discussions. I make it clear that I speak only for myself in this order.

1. Whether to resort to judicial extinguishment of precious human life or not? This question has worried mankind and civilisations all through. The dispute between abolitionists and retentionists is still going on. Search for the final answer is still continuing. The final answer has not been found yet.

1. The constitutionality question has come up before two constitution Benches of the Supreme Court. The Constitution Benches twice, in the Judgments in Jagmohan Singh versus Stateof U.P[1973 SCC (Cri.) 169] and Bachan Singh versus State of Punjab[(1980 SCC (Cri) 580], have chosen not to interfere with the wisdom of the retentionist parliament by invoking its power of judicial review. The death penalty is; and continues to be constitutionally valid. The Benches have held that it does not call for interference invoking the power of judicial review. Many in this country may have the opinion that it is time now for a reconsideration of the question of constitutionality of the death sentence -more than two decades having elapsed from the Bachan Singh(supra) decision. Is it time now for the lone voice of dissent of Justice Bhagwati in Bachan Singh [1982 (3) SCC 24] to be accepted by the system? That and that alone, I feel, is the question to be considered now by the constitutional court if at all the issue were to be reconsidered. That the voice of dissent of Justice