Challenge to BNSS Provisions on Judicial Officers in Prosecution Roles

Introduction

A Public Interest Litigation (PIL) has been filed before the Supreme Court of India challenging provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 that permit sitting or retired judicial officers to hold leadership positions within the prosecution framework. The petition raises significant constitutional concerns relating to separation of powers, judicial independence, and prosecutorial autonomy. The case has implications for India’s criminal justice architecture and the balance among the three organs of the State.

Background: Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

The BNSS, 2023 replaces the Code of Criminal Procedure, 1973 (CrPC) and forms part of India’s criminal law reform package alongside the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023. One of its notable institutional reforms is the establishment of a Directorate of Prosecution in all States, with defined eligibility criteria for leadership roles under Section 20.

Statutory Provision Under Challenge: Section 20(2) BNSS

Section 20(2) of the BNSS provides eligibility criteria for appointment to senior prosecution posts:

  • Section 20(2)(a): A person is eligible to be appointed as Director of Prosecution or Deputy Director of Prosecution if he or she has practiced as an advocate for at least fifteen years or is or has been a Sessions Judge.

  • Section 20(2)(b): A person is eligible to be appointed as Assistant Director of Prosecution if he or she has practiced as an advocate for at least seven years or has been a Magistrate of the First Class.

These provisions permit sitting or retired judicial officers to transition into executive prosecution leadership roles.

Petitioner and Legal Representation

The petition has been filed by P.S. Subeesh, a practising criminal lawyer with over two decades of experience, through Advocate M.S. Suvidutt. The Union of India, represented through the Ministry of Home Affairs and the Ministry of Law and Justice, has been impleaded as a respondent.

Core Constitutional Challenge: Doctrine of Separation of Powers

The petitioner argues that Section 20(2) violates the constitutional doctrine of separation of powers, which is recognised as part of the basic structure of the Constitution of India. According to the petition, adjudication is the exclusive domain of the judiciary, prosecution is the domain of independent public prosecutors, and investigation lies with the police. By allowing judicial officers to occupy executive prosecutorial posts, the BNSS allegedly collapses these constitutionally distinct functions.

Relevant Constitutional Provisions

  • Article 50: Mandates the State to separate the judiciary from the executive in the public services of the State.

  • Articles 124, 217, and 235: Provide constitutional safeguards for judicial independence, including security of tenure and control over subordinate judiciary.

  • Articles 14 and 21: Guarantee equality before law and protection of life and personal liberty, which the petitioner claims are infringed by compromised prosecutorial independence.

Alleged Impact on Judicial Independence

The petition asserts that permitting serving or retired judges to head prosecution departments undermines the perception and reality of judicial independence. Judicial officers are constitutionally entrusted with adjudication, and their involvement in prosecution could create conflicts of interest, institutional bias, and erosion of public confidence in the impartiality of courts.

Executive Control Over Prosecution Under BNSS

The petition highlights that the Directorate of Prosecution operates under the administrative control of the State Home Department. This executive oversight is argued to compromise the role of prosecutors as independent officers of the court. The prosecution machinery—including Public Prosecutors, Additional Public Prosecutors, and Assistant Public Prosecutors—would function within a politically accountable executive framework.

Expanded Powers of the Directorate of Prosecution

Sub-sections (7) to (10) of Section 20 BNSS confer wide powers on the Directorate of Prosecution, including:

  • Scrutinising police reports and charge sheets

  • Supervising criminal investigations

  • Monitoring prosecutions based on the gravity of offences

  • Expediting criminal proceedings

  • Advising on filing of appeals

The petitioner contends that when judicial officers exercise such powers, they indirectly influence investigative and prosecutorial decisions, violating the constitutional demarcation among State organs.

Judicial Precedents on Separation of Powers and Judicial Independence

Kesavananda Bharati v. State of Kerala (1973)

The Supreme Court recognised separation of powers and judicial independence as part of the basic structure of the Constitution, limiting Parliament’s amending power.

Indira Nehru Gandhi v. Raj Narain (1975)

The Court reaffirmed that separation of powers is an essential feature of the constitutional framework.

Union of India v. Sankalchand Himmatlal Sheth (1977)

The Court emphasised that judicial independence is fundamental to the rule of law and democratic governance.

Supreme Court Advocates-on-Record Association v. Union of India (2015) (NJAC Case)

The Court held that judicial primacy in appointments is integral to judicial independence and part of the basic structure.

State of Bihar v. Bal Mukund Sah (2000)

The Court highlighted that prosecutors must act as ministers of justice and not as agents of the executive.

Vineet Narain v. Union of India (1998)

The Court stressed the need for institutional independence in investigative and prosecutorial agencies to prevent executive interference.

Doctrine of Prosecutorial Independence

The petition invokes the principle that prosecutors are officers of the court and must function independently of political or executive pressures. The fusion of judicial and prosecutorial roles is argued to revive a colonial-era model where executive dominance undermined fair trial guarantees.

Fundamental Rights Concerns: Articles 14 and 21

According to the petition, compromised prosecutorial independence threatens the fairness of criminal trials, directly affecting the right to equality before law and the right to life and personal liberty. Fair investigation, impartial prosecution, and independent adjudication are integral components of procedural due process under Article 21.

Structural Implications for Criminal Justice System

The petition warns that Section 20 BNSS dismantles functional demarcation among investigation, prosecution, and adjudication. It argues that judicial officers exercising supervisory authority over prosecution could influence case outcomes, appellate strategies, and investigative directions, creating systemic bias.

Parties to the Petition

The Union Government, through the Ministry of Home Affairs and the Ministry of Law and Justice, has been named as a respondent, reflecting the central role of the executive in criminal law reforms.

Legal and Policy Significance

This PIL raises fundamental questions about criminal justice governance, institutional design, and constitutional fidelity. If the Supreme Court finds Section 20(2) unconstitutional, it could reshape the architecture of prosecution services across India and reinforce the separation between judiciary and executive.

Conclusion: Constitutional Test for BNSS Reforms

The challenge to Section 20(2) BNSS places India’s criminal law reforms under constitutional scrutiny. The outcome will determine whether judicial officers can be integrated into executive prosecutorial roles or whether such integration violates the basic structure doctrine. The case has the potential to set a landmark precedent on prosecutorial independence, judicial neutrality, and the constitutional balance of powers.


Location: Varanasi, Uttar Pradesh, India

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