A lawyer has moved the Supreme Court challenging provisions that permit judicial officers to head prosecution offices. The plea by advocate Subeesh PS questions Sections 20(2)(a) and 20(2)(b), arguing such appointments undermine prosecutorial independence and constitutional separation of powers.
NEW DELHI: A lawyer has approached the Supreme Court to challenge the provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which permits serving or retired judicial officers to be appointed as heads of prosecution offices under the control of State governments.
The petition, filed by advocate Subeesh PS, targets Section 20(2)(a) and Section 20(2)(b) of the BNSS. These provisions allow Sessions Judges, Magistrates, and retired judicial officers to be appointed as Directors, Deputy Directors, and Assistant Directors within State-run prosecution departments.
The petitioner argues that this setup allows judges to operate within an executive-managed prosecutorial hierarchy, which undermines judicial independence and violates the constitutional principle of separation of powers.
The plea notes that a similar provision existed in the pre-independence Code of Criminal Procedure of 1898 but was removed in the CrPC of 1973. According to the petition, the 1973 CrPC marked a significant shift in Indian criminal jurisprudence by establishing that investigation, prosecution, and adjudication should function as distinct yet interrelated activities, each shielded from the influence of the others.
Rather than enhancing this framework, the BNSS of 2023 disrupts it by recentralizing authority in the executive through the establishment of the Directorate of Prosecution, the petitioner contends.
Under Section 20 of the BNSS, each State can create a Directorate of Prosecution headed by a Director of Prosecution. This law places the Directorate under the administrative control of the State Home Department, making all public prosecutors and assistant public prosecutors subordinate to it.
The provisions allow serving or retired judicial officers to take up senior positions within this framework, which the petitioner argues results in judges who are expected to be impartial adjudicators being integrated into an executive structure that oversees investigation decisions, prosecutions, and appeals.
According to the petition, this arrangement blurs the constitutionally mandated separation between the judiciary and the executive. The petitioner references Articles 50 and 235 of the Constitution, which were established to ensure that the judiciary remains independent from executive influence. Article 50 mandates the separation of the judiciary from the executive, while Article 235 grants exclusive control over the subordinate judiciary to the High Courts.
The plea contends that placing judges in executive-controlled prosecution roles directly contradicts this constitutional framework. It claims that once a judicial officer operates under the Home Department, even temporarily, it compromises both the perception and the reality of judicial independence.
The petition traces the issue back to the colonial criminal justice system and the pre-independence CrPC, where executive and judicial powers were intertwined. Magistrates often oversaw investigations and prosecutions while also undertaking adjudicatory responsibilities. The petitioner asserts that this system facilitated executive interference, undermining guarantees for fair trials.
The plea emphasizes that post-Independence reforms, including the 1973 CrPC, were intentionally designed to dismantle this colonial structure by clearly differentiating investigation, prosecution, and adjudication. It argues that the BNSS provisions have revived this discredited colonial model.
Moreover, the petitioner submits that the prosecution should operate as an independent body of justice, aiding courts rather than functioning as an extension of the government. By placing the entire prosecution framework under executive control and allowing judges to lead it, the plea argues that prosecutors become subordinate to political and administrative powers.
This dynamic, according to the petitioner, jeopardizes the fairness of criminal trials and violates the right to a fair procedure as guaranteed under Article 21 of the Constitution. Furthermore, the plea claims that these provisions are arbitrary and infringe upon Article 14, as they lack safeguards to prevent executive interference in judicial officers fulfilling prosecutorial roles.
The petitioner has urged the Supreme Court to annul Section 20(2)(a) and 20(2)(b) of the BNSS to the extent that they authorize serving or retired judges to take on roles in executive-controlled prosecution offices. Alternatively, the plea seeks directives to restructure prosecution departments in strict accordance with Article 50 of the Constitution, ensuring judicial officers do not serve within executive hierarchies.
Additionally, the petition calls for measures to strengthen independent prosecution cadres in line with the recommendations of the 14th Law Commission of India.
The Supreme Court has yet to take up the matter. The petition has been filed through advocate Suvidutt MS.