The Supreme Court on Wednesday refused to entertain a petition challenging the provisions of the Bharatiya Nagarik Suraksha Sanhita Act, 2023 (BNSS) that allows serving or retired judicial officers to hold senior positions in the prosecution department, terming the petition “misconceived” and lacking any “legal basis”.
However, a bench headed by Chief Justice of India Surya Kant clarified that the provision in question only lays down the eligibility criterion. It observed that the law clearly prohibits any person from acting as a prosecutor and a judge at the same time and that this provision allows only a person who “is or has been a Sessions Judge” as eligible for appointment to posts in the prosecution wing.
The petition, filed by advocate BS Subesh, challenged Section 20 sub-paragraphs (2)(a) and (2)(b) of the BNSS, which allows serving or retired judicial officers to be appointed as Directors of Public Prosecutions, and serving judicial officers as Deputy Directors and Assistant Directors of Public Prosecutions.
While acknowledging that this clause aims to strengthen the public prosecution system, the petition asserted that “in fact, it subjects (the judiciary) to executive control and disturbs the constitutional balance between the judicial, executive and public prosecutors.”
“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 Sobeish, who has been practicing criminal law for more than two decades.
While appearing before the petitioner, Advocate MS Sovidutt contended that this provision violates the principle of separation of powers, noting that Article 50 of the Constitution obliges the state to ensure that the judiciary is kept separate from the executive in public services. He said that judicial positions should remain functionally independent and that a current judicial officer, or a person who previously held a judicial position, should not head prosecutors.
He further emphasized that this ruling weakens institutional safeguards, weakens the independence of the prosecution, and undermines the integrity of the criminal justice system.
The bench, also comprising Justices Joymalia Bagchi and Vipul M Pancholi, disagreed. “What is wrong with considering a person who has been a sessions judge qualified? He is better qualified than a lawyer with 15 years of experience,” the court observed.
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 judgment which reads as follows: “A person shall be eligible for appointment – (a) a Director of Public Prosecutions or a Deputy Director of Public Prosecutions, if he has practiced as a lawyer for not less than fifteen years or is or has been a Sessions Judge; (b) an Assistant Director of Public Prosecutions, if he has practiced as a lawyer for a period of not less than seven years or is a First Class Judge.”
Explaining its interpretation, the court said: “The phrase ‘he or he was’ should be read as a condition of eligibility and does not mean that the sitting Sessions Judge is the one holding that position. The only requirement of the law is that he should not be the public prosecutor and the judge at the same time.”
This provision stipulates the establishment of a Directorate of Public Prosecutions in all states. The petition argued that investigation traditionally falls within the scope of the police, prosecution falls to independent prosecutors, and adjudication falls exclusively to the judiciary. By enabling judicial officers to exercise, supervise or influence prosecutorial functions, this provision is said to blur the constitutionally mandated functional demarcation between the three organs of state.
