A lawyer has moved the Supreme Court challenging provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) that allow serving or retired judicial officers to be appointed as heads of prosecution offices functioning under the control of State governments.

The plea by advocate Subeesh PS assails Section 20(2)(a) and Section 20(2)(b) of the BNSS. These provisions permit Sessions Judges, Magistrates and retired judicial officers to be appointed as Directors, Deputy Directors, and Assistant Directors of Prosecution in State-run prosecution departments.

The petitioner contends that this arrangement allows judges to function within an executive-controlled prosecutorial hierarchy, which, according to him, strikes at the core of judicial independence and violates the constitutional doctrine of separation of powers.

Such a provision existed in the pre-independence Code of Criminal Procedure of 1898 though it was done away with in the CrPC of 1973, the plea points out.

According to the petition, the CrPC of 1973 represented a watershed moment in Indian criminal jurisprudence as it institutionalised the understanding that investigation, prosecution, and adjudication must operate as distinct yet complementary functions, each insulated from the other’s coercive influence.

The BNSS of 2023, instead of building upon this framework, has disrupted it by recentralising authority in the executive through the Directorate of Prosecution, the plea contends.

Under Section 20 of the BNSS, every State may establish a Directorate of Prosecution headed by a Director of Prosecution. The law places this Directorate under the administrative control of the State Home Department. All public prosecutors and assistant public prosecutors are made subordinate to this Directorate.

The provisions make serving or retired judicial officers eligible to occupy senior positions within this structure.

The plea argues that this results in judges, who are constitutionally expected to act as neutral adjudicators, being placed within an executive framework that supervises investigation decisions, prosecutions, and appeals.

According to the petitioner, this blurs the constitutionally mandated line between the judiciary and the executive.

According to the plea, Articles 50 and 235 of the Constitution were specifically enacted to ensure that the judiciary remains insulated from executive influence.

Article 50 mandates separation of the judiciary from the executive, while Article 235 vests exclusive control over the subordinate judiciary in the High Courts.

The plea argues that allowing judges to take up executive-controlled prosecution posts directly defeats this constitutional design.

It claims that once a judicial officer functions under the Home Department, even temporarily, the perception and reality of judicial independence are both compromised.

The petition traces the issue back to the colonial criminal justice system and the pre-independence Code of Criminal Procedure (CrPC) where executive and judicial powers were fused. Magistrates often supervised investigations and prosecutions while also performing adjudicatory functions.

According to the petitioner, this system enabled executive interference and eroded fair trial guarantees.

The plea points out that post-Independence reforms, including the Code of Criminal Procedure of 1973, were specifically designed to dismantle this colonial structure by clearly separating investigation, prosecution, and adjudication.

It argues that the BNSS provisions have revived this rejected colonial model.

The petitioner further submits that the prosecution is meant to function as an independent officer of justice, assisting courts rather than acting as an arm of the government.

By placing the entire prosecution machinery under executive control and allowing judges to head it, the plea argues that prosecutors become subordinate to political and administrative authority.

This, according to the petitioner, undermines the fairness of criminal trials and violates the right to a fair procedure guaranteed under Article 21 of the Constitution.

The plea also claims that the provisions are arbitrary and violate Article 14, as they lack safeguards to prevent executive influence over judicial officers functioning in prosecutorial roles.

The petitioner has therefore, urged the Supreme Court to strike down Section 20(2)(a) and 20(2)(b) of the BNSS to the extent that they permit serving or retired judges to be appointed to executive-controlled prosecution offices.

In the alternative, the plea seeks directions to restructure prosecution departments strictly in line with Article 50 of the Constitution, ensuring that judicial officers do not function within executive hierarchies.

The petition also seeks directions to strengthen independent prosecution cadres in line with recommendations of the 14th Law Commission of India.

The matter is yet to be taken up by the top court.

The petition has been filed through advocate Suvidutt MS.