MANJULA CHELLUR, C.J.

Full Bench was constituted on account of difference of opinion among the Judges, which led to present reference on the question of imposition of harsher variety of life sentence as indicated in Swami Shraddananda (2) v. State of Karnataka (2008 (13) SCC 767) : (AIR 2008 SC 3040). Initially the above Death Sentence References (for short, DSR) came up before the Division Bench, wherein the following three questions were taken up for consideration:

(i) Do Section Judges have the power to impose the harsher variety of life sentence which is recognised by Swamy Shraddananda (2) v. State of Karnataka (2008 (13) SCC 767 : (AIR 2008 SC 3040) as an option available in law for the Courts to avoid the harshest, irreversible and incorrectable 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 hashest sentence of life authorised by Swamy Shraddananda (2) (AIR 2008 SC 3040) (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?

2. However, the Honourable Judges of the Division Bench differed in their opinion by order dated 13-4-2012, which necessitated reference of the matter to a third Judge. The third Judge ultimately placed the matter before the Honourable the Chief Justice to constitute a Larger Bench as provided under the proviso to Section 392 of the Code of Criminal Procedure to consider the following two questions:

(1) Do the Sessions Judges have the power to impose the harsher variety of life sentence awarded in Swami Sradhanandha v. State of Kerala (2008 (13) SCC 767) AIR 2008 SC 3040 : 2008 AIR SCW 5110 and (2) Whether the interpretations of Swami Sraddananda (2) case in State of Kerala v. Navas (2010 (2) KLT 542) : (2011 Cri LJ (NOC) 15 (Ker) that the said power is available to all Sessions Courts requires reconsideration.

3. Justice R. Basant, one of the Judges of the Division Bench Judges, after an elaborate discussion at paragraph 35 of the order dated 13-4-2012, summarised his conclusion as under :

35. One can always dream of the ideal law. When that will come into existence, we will have to wait and see. But I have no hesitation to agree that the ideal law ought to be that all Courts - from the Sessions Court to the Supreme Court, have the sentencing options generated under Swami Sradhanandha (AIR 2008 SC 3040) (2). Ideal law must insist that all Judges from the level of the Sessions Judges must consider whether all the alternative options are unquestionably foreclosed before choosing to direct extinguishment of life by exercise of judicial discretion. To me, it appears that it is time that the law is changed by the legislature (or progressively interpreted judicially) to ensure and insist that a Sessions Judge who feels that the gravest from of life sentence permissible under Swami Sradhanandha is insufficient to meet the ends of justice in a case, must make a reference to the High Court and not proceed to choose to himself impose such harshest sentence. When it comes to the High Court for decision on the question of sentence (or confirmation), the ideal law must certainly insist that not 2 Judges, but at least a Bench of 5 Judges must consider the question of imposition of sentence. The system owes at least that to Indian and human civilization and to persons who are being deprived of their life by invocation of the State power to extinguish life. I go a step further and observe that unless the 5 Judges Bench would unanimously come to the conclusion tha