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Lawyer challenges BNSS provision allowing sitting, retd judges in prosecution roles
PIL in the Supreme Court says the BNSS provision violates separation of powers and undermines judicial independence by allowing judges to head prosecution departments
New Delhi: A petition has been filed in the Supreme Court challenging a provision of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, that allows sitting or retired judicial officers to hold top posts in the prosecution department, citing concerns that it violates the separation of powers and undermines judicial independence.
P.S. Subeesh, a practising criminal lawyer for over two decades, filed the petition on Friday through advocate M.S. Suvidutt, challenging the provision under Section 20 sub-clauses (2)(a) and (2)(b) of the BNSS.
The provision in question under Section 20(2) states: “A person shall be eligible to be appointed,— (a) as a Director of Prosecution or a Deputy Director of Prosecution, if he has been in practice as an advocate for not less than fifteen years or is or has been a Sessions Judge; (b) as an Assistant Director of Prosecution, if he has been in practice as an advocate for not less than seven years or has been a Magistrate of the first class.” This provision proposes the establishment of a Directorate of Prosecution in all states.
The petition said that while the provision aims to strengthen the prosecution, in effect, it subjects it to executive control and disrupts the constitutional balance between the judiciary, executive, and prosecution.
“By permitting serving or retired judicial officers to occupy prosecutorial leadership roles, the provision erodes prosecutorial autonomy and revives an impermissible fusion of powers,” Subeesh said.
This further weakens institutional safeguards, compromises prosecutorial independence, and undermines the integrity of the criminal justice system, he argued.
“Having had direct, first-hand insight into how prosecutorial discretion and institutional control shape criminal trials in courts,” Subeesh said, constitutional guarantees of fairness and personal liberty are most “acutely tested in such situations, and impermissibly merging judicial and executive functions ‘subverts judicial independence’.”
“Such induction violates the doctrine of separation of powers, which forms an essential feature of the constitutional scheme. The said provisions, therefore, infringe the Petitioner’s fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India,” the petition said.
The petition explains that traditionally, investigation comes within the domain of the police, prosecution lies within the discretion of independent Public Prosecutors, while adjudication rests exclusively with the judiciary. “Section 20 of the BNSS brings these otherwise distinct stages into a single executive-controlled prosecutorial framework and, when read with sub-sections (2)(a) and (2)(b), permits judicial officers to function within that framework,” Subeesh said.
As a result, judicial officers constitutionally entrusted with adjudication are statutorily enabled to exercise, supervise, or influence prosecutorial and investigative functions, dismantling the functional demarcation that the Constitution mandates among the three organs of the state, he added.
The petition states that under Section 20 BNSS, sub-sections (7), (8), (9), and (10) vest the Directorate of Prosecution with wide-ranging authority, including the power to scrutinise police reports, monitor criminal investigations, oversee prosecutions based on the gravity of offences, expedite proceedings, and advise on the filing of appeals.
The entire prosecution machinery — Public Prosecutors, Additional Public Prosecutors, and Assistant Public Prosecutors — functions under the executive control of the state Home Department. “The prosecution wing is placed squarely within the administrative command of the political executive, thereby compromising its independence as an officer of the court,” the petition said.
The Union government, through the Ministry of Home Affairs and the Ministry of Law & Justice, has been named as a party in the petition filed by Subeesh on Friday.
