The Supreme Court on Wednesday refused to entertain a plea against a specific provision in the Bharatiya Nagarik Suraksha Sanhita Act, 2023 (BNSS) that allows serving or retired judicial officers to hold senior positions in the prosecution service and termed the plea as “erroneous” and having “no legal basis”.
However, a bench headed by Chief Justice of India, Surya Kant, clarified that at best, this provision is only an eligibility requirement allowing a person “who is or has been a sessions judge” to hold the post in the prosecution wing as the requirements of the law clearly state that no person can be a prosecutor and a judge at the same time.
The petition filed by Advocate BS Subhesh challenged Section 20 sub-paragraphs (2)(a) and (2)(b) of the BNSS which permits appointment of serving or retired judicial officers as Directors, serving judicial officers as Deputy Directors and Assistant Directors of Prosecutions.
While this clause aims to strengthen the Public Prosecution, the petition said: “It actually subjects it (the judiciary) to the oversight of the executive power and upsets the constitutional balance between the judicial, executive and public prosecutors.” Petitioner P.S. said: “By allowing current or retired judicial officers to assume leadership roles in the prosecution, this ruling undermines the independence of the prosecution and revives an impermissible merger of powers,” said Subhish, who has been practicing criminal law for more than two decades.
“This ruling violates the separation of powers as Article 50 requires the state to ensure that the judiciary remains separate from the executive in the public services of the state,” said advocate MS Sovidutt, who represents the petitioner. He also stated that judicial positions must be functionally independent and that a current judicial employee or who was a judicial employee cannot head the Public Prosecution.
He added that this further weakens institutional safeguards, threatens the independence of prosecutors, and undermines the integrity of the criminal justice system.
“What is wrong if a person who has been a sessions judge is considered qualified? He is better qualified than a lawyer with 15 years of experience,” the bench, also comprising Justices Joymalia Bagchi and Vipul M Pancholi, said.
The judge refused to accept the appeal, saying: “The erroneous challenge to Article 20(2)(a) that it violates fundamental rights has no legal basis and has been rejected.”
The court read out the ruling in question which reads as follows: “A person shall be eligible for appointment: (a) Director of Public Prosecutions or Deputy Director of Public Prosecutions, if he has practiced the profession of law for a period of not less than fifteen years or is or has been a Sessions Judge; (b) Assistant Director of Public Prosecutions, if he has practiced the profession of law for a period of not less than seven years or is a judge of first class.”
The court clarified that “the phrase ‘he or was’ should be read as being competent and not that it is the sitting Sessions Judge who holds that office. The only requirement of the law is that he should not be the prosecutor and the judge at the same time.”
