Supreme Court Dismisses Challenge To S.20(2)(a) BNSS Allowing Appointment Of Sessions Judge As Director Of Prosecution
The Supreme Court on Wednesday dismissed a writ petition which challenged the constitutional validity of Sections 20(2)(a) and 20(2)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which allowed judicial officers to be appointed as Director of Prosecution, Deputy Director of Prosecution or Assistant Director of Prosecution.
A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi observed that there was no legal foundation in the challenge and that it was misconceived.
Advocate Suvidutt MS, for the petitioner, submitted that the provision violated Article 50 of the Constitution which mandated the separation of the judiciary and the executive. He submitted that by allowing judicial officers to head the prosecution, this separation was breached.
As per Section 20(2)(a), person shall be eligible to be appointed 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.
As per Section 20(2)(b), a person can be appointed 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 petitioner said that the objection was with respect to the provision stating that the person "is or has been a Sessions Judge".
"What is wrong with it? A person who has been a Sessions Judge is better than a practising advocate. What is wrong with that?" CJI asked. The petitioner submitted that the use of the word "is" indicated that a serving Sessions Judge can be appointed as Director of Prosecution.
The bench said that it was only prescribing an eligibility. "It is eligibility, it is not a question of a Sessions Judge holding the post of Director of Prosecution as on date," Justice Bagchi said.
"The only requirement is that at the same time you should not be a judge and a prosecutor, that is all," CJI said. The counsel submitted that it will affect the neutrality of a judge if he had headed the prosecution.
The bench, dismising the petition, observed, "The misconceived challenge on the premise that it violates constitutional provision has no foundation."
The plea contends that the impugned provisions blur the constitutionally mandated separation between the judiciary and the executive, and erode prosecutorial autonomy.
“By permitting serving or retired Judicial Officers to occupy prosecutorial leadership roles, the provision erodes prosecutorial autonomy and revives an impermissible fusion of powers. These features weaken institutional safeguards, compromise prosecutorial independence, and undermine the integrity of the criminal justice system”, the plea further states.
The petition, filed by Advocate Subeesh PS through Advocate-on-Record Suvidutt Sundaram, contends that the impugned provisions permit serving or retired judicial officers, including Sessions Judges and Magistrates, to be appointed to leadership posts within a Directorate functioning under the administrative control of the State Home Department.
Section 20 provides that the Directorate of Prosecution shall function under the administrative control of the Home Department in the State, and confers powers on the Director, Deputy Director and Assistant Director of Prosecution to monitor cases based on the gravity of offences, scrutinise police reports, expedite proceedings, give opinion on filing of appeals and deal with and be responsible for all proceedings under BNSS.
The petition highlights that the entire prosecution machinery, including Public Prosecutors, Additional Public Prosecutors and Assistant Public Prosecutors, is made subordinate to the Directorate.
The petitioner has argued that this structure results in a merging of executive, prosecutorial and judicial functions. It is contended that the impugned provisions violate Articles 50 and 235 of the Constitution which mandate separation of the judiciary from the executive and vest control over the subordinate judiciary in the High Courts, respectively.
The petition states that the Criminal Procedure Codes of 1861, 1872, 1882 and 1898 fused executive and judicial authority. It submits that this colonial model was consciously dismantled after Independence through Articles 50 and 235 of the Constitution and through the Code of Criminal Procedure, 1973.
“Sub-clauses (2)(a) and (2)(b) of Section 20 of the BNSS, 2023 revive this repudiated colonial model by statutorily inducting judicial officers into an executive-controlled Directorate of Prosecution, a course fundamentally incompatible with the constitutional guarantees of separation of powers, judicial independence, and fair trial”, the plea states.
The plea further states that the impugned provisions violate Articles 14 and 21 by undermining right to fair trial and equality before law.
The petitioner has sought for striking down of the offending part of Sections 20(2)(a) and 20(2)(b) of the BNSS to the extent that they enable the appointment of serving or retired judicial officers to posts within an executive-controlled Directorate of Prosecution.
In the alternative, the plea seeks a declaration that the impugned provisions in their entirety are unconstitutional and violative of Articles 14, 21, 50 and 235 and the basic structure.
Case no. – Diary No. 7857/2026
Case Title – Subeesh P. S. v. Union of India