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SC quashes plea challenging law on prosecution dept hiring
The Supreme Court upheld a BNSS provision allowing judicial officers in prosecution roles, dismissing a challenge as "misconceived" and lacking legal basis.
The Supreme Court on Wednesday refused to entertain a challenge to specific provision in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) permitting sitting or retired judicial officers to assume top posts in the prosecution department terming such a plea as “misconceived” having no “legal foundation”.
A bench headed by Chief Justice of India (CJI) Surya Kant, however, clarified that at best, the provision is only an eligibility condition which allows a person who “is or has been a Sessions Judge” to occupy the post in the prosecution wing as the requirement of law states clearly that a person cannot be prosecutor and judge at the same time.
The petition filed by a lawyer PS Subeesh challenged Section 20 sub-clauses (2)(a) and (2)(b) of the BNSS which permits the appointment of serving or retired judicial officers as Directors, and serving judicial officers as Deputy Directors and Assistant Directors of Prosecution.
While the provision aims to strengthen the prosecution, the petition said, “In effect, it subjects it (judiciary) to executive control and disrupts the constitutional balance between the judiciary, executive, and prosecution.” The petitioner PS Subeesh, who has been practicing criminal law for over two decades, said, “By permitting serving or retired judicial officers to occupy prosecutorial leadership roles, the provision erodes prosecutorial autonomy and revives an impermissible fusion of powers.”
Advocate MS Suvidutt representing the petitioner said, “The provision violates separation of power as Article 50 requires the state to ensure the judiciary is kept separate from the executive in the public services of the state.” He further stated that judicial postings should be functionally autonomous and a serving judicial officer or one who has been a judicial officer cannot head the prosecution department.
This further weakens institutional safeguards, compromises prosecutorial independence, and undermines the integrity of the criminal justice system, he argued.
The bench, also comprising justices Joymalya Bagchi and Vipul M Pancholi said, “What is wrong if a person who has been a Sessions Judge is considered eligible? He is better qualified than a lawyer with 15 years of experience.”
Refusing to entertain the challenge, the bench said, “The misconceived challenge to section 20(2)(a) that it violates fundamental rights has no legal foundation and is dismissed.”
The court read the provision in question which 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.”
The court clarified, “The words ‘is or has been’ is to be read as an eligibility and not that a serving Sessions Judge is to hold the position. The only requirement of law is that he should not be the prosecutor and judge at the same time.”
