New Delhi, Feb 6 A plea has been filed in the Supreme Court challenging the constitutional validity of certain provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) as they allow appointment of serving or retired judicial officers as directors and serving judicial officers as deputy directors of prosecution and assistant directors of prosecution.
The plea filed by petitioner Subeesh P. S. through advocate Suvidutt M S challenged the validity of provisions contained in Section 20 sub-clauses (2)(a) & (2)(b) of the BNSS.
"The challenge arises on the ground that the impugned provisions, though purportedly enacted to strengthen the prosecution machinery, in effect subvert judicial independence by inducting members of the judiciary into executive-controlled prosecutorial posts, thereby impermissibly merging judicial and executive functions," the plea said.
It added that such an induction violates the doctrine of separation of powers, which forms an essential feature of the constitutional scheme.
"The said provisions, therefore, infringe the petitioner's fundamental rights guaranteed under Articles 14 and 21 of the Constitution and violate the constitutional mandate embodied in Articles 50 and 235 thereof," the writ petition said.
The plea sought direction of the court to strike down the "offending part" of Section 20 sub-clauses (2)(a) and (2)(b) of the BNSS to the extent that the said provisions permit or enable the appointment of serving or retired judicial officers, including sessions judges and magistrates, to posts within an executive-controlled directorate of prosecution, as being unconstitutional, void and ultra vires the Constitution, while leaving the remaining portions of the said provisions intact and operative.
The petitioner, in the alternative, sought a direction declaring Section 20 sub-clauses (2)(a) and (2)(b) of the BNSS, 2023, in their entirety to be unconstitutional, void and ultra vires the Constitution as being violative of Articles 14, 21, 50 and 235 of the Constitution and the basic structure.
The petitioner, who is a practising advocate, said that he was aggrieved by the enactment of Section 20 sub clauses (2)(a) and (2)(b) of the BNSS, 2023, which, while purporting to strengthen the prosecution, in effect subjects it to executive control and disrupts the constitutional balance between the judiciary, executive and prosecution.
"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 said.
It added that the challenge is founded on tangible institutional harm that impairs the fairness of criminal trials rather than abstract policy disagreement.
"The issues raised implicate fundamental rights under Articles 14 and 21 and raise questions of constitutional importance concerning the administration of criminal justice," it said.
The petitioner further said that a cursory reading of Section 20 of BNSS may create an impression that the intention of the lawmakers is laudatory; however, a closer scrutiny reveals that the provision effects a structural alteration which fundamentally disturbs the constitutional balance between the executive, the judiciary, and the prosecution.
It said that a plain reading of the aforesaid provision reveals that Section 20 of the BNSS provides for the establishment of a directorate of prosecution under the administrative control of the home department of each state government.
"The provision authorises the appointment of a director of prosecution (DOP) and such number of deputy directors of prosecution (DDP) and assistant directors of prosecution (ADP) as the Government may deem fit.
"Significantly, sub-sections (2)(a) and (2)(b) render serving or retired judicial officers, including sessions judges and magistrates, eligible for appointment to these posts, alongside advocates possessing the prescribed professional experience," the plea said.
It added that such an arrangement impermissibly blurs the constitutionally mandated separation between the judicial and executive domains, thereby striking at the heart of the doctrine of separation of powers and undermining judicial independence.
The petitioner said traditionally, investigation falls within the domain of the police, prosecution within the discretion of independent public prosecutors and adjudication exclusively within the jurisdiction of the judiciary.
"Section 20 of the BNSS brings these otherwise distinct stages into a single executive-controlled prosecutorial framework and when read with sub-sections (2)(a) and (2)(b) permits judicial officers to function within that framework.
"The result is that officers constitutionally entrusted with adjudication are statutorily enabled to exercise, supervise or influence prosecutorial and investigative functions, thereby dismantling the functional demarcation that the constitution mandates among the three organs of the State," it said.
