A constitutional challenge has reached the Supreme Court of India, questioning whether judges can legally head prosecution departments that work under the control of State governments. The petition targets key provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), India’s new criminal procedure law that replaced the Code of Criminal Procedure, 1973.
The case raises a larger question that goes beyond statutory interpretation: can judges, serving or retired, function within an executive-controlled prosecution system without compromising judicial independence?
Background of the Case
The writ petition has been filed by Advocate Subeesh P.S., who challenges Sections 20(2)(a) and 20(2)(b) of the BNSS. These provisions allow Sessions Judges, Magistrates, and retired judicial officers to be appointed as Directors, Deputy Directors, or Assistant Directors of Prosecution in State-run Directorates of Prosecution.
Under Section 20 of the BNSS, every State is permitted to establish a Directorate of Prosecution. This body functions under the administrative control of the State Home Department. All Public Prosecutors and Assistant Public Prosecutors are placed under its supervision.
According to the petition, this structure marks a departure from the post-Independence criminal justice framework, which deliberately separated investigation, prosecution, and adjudication.
What the Petitioner Argues
The petitioner contends that these BNSS provisions allow judicial officers to operate within an executive hierarchy. In his view, this directly undermines the constitutional principle of separation of powers.
“The Constitution envisages judges as neutral arbiters, not participants in executive decision-making,” the plea states.
Advocate Subeesh argues that Articles 50 and 235 of the Constitution were enacted precisely to insulate the judiciary from executive influence. Article 50 mandates the separation of the judiciary from the executive, while Article 235 vests exclusive control over subordinate courts in the High Courts.
Placing judges-serving or retired-under the administrative control of the Home Department, even in prosecutorial roles, defeats this constitutional design, the petition claims.
Colonial Roots and Post-Independence Reforms
The plea traces the issue back to colonial-era criminal laws. Under the Code of Criminal Procedure, 1898, executive and judicial powers were often fused. Magistrates supervised investigations, controlled prosecutions, and also decided cases.
According to the petitioner, this system enabled executive interference and weakened fair trial protections.
Post-Independence reforms, particularly the CrPC of 1973, consciously dismantled this structure. Investigation, prosecution, and adjudication were treated as distinct functions, each meant to operate independently.
“The BNSS revives a model that India deliberately rejected after Independence,” the petitioner argues.
Concerns Over Prosecutorial Independence
The petition also focuses on the role of prosecutors. It submits that prosecutors are meant to act as officers of justice, assisting courts rather than functioning as extensions of the government.
By placing the entire prosecution machinery under executive control-and allowing judges to head it-the BNSS turns prosecutors into subordinates of political and administrative authority, the plea claims.
“The bench has repeatedly emphasised that fairness in criminal trials depends on prosecutorial independence,” the petition notes, adding that the impugned provisions violate the right to a fair procedure under Article 21 of the Constitution.
The plea further alleges that the provisions are arbitrary and violate Article 14, as they contain no safeguards against executive influence over judicial officers appointed to prosecution posts.
Reliefs Sought Before the Supreme Court
The petitioner has urged the Supreme Court to strike down Sections 20(2)(a) and 20(2)(b) of the BNSS to the extent that they permit the appointment of serving or retired judges to executive-controlled prosecution offices.
In the alternative, the plea seeks directions to restructure State prosecution departments in strict compliance with Article 50 of the Constitution, ensuring that judicial officers do not function within executive hierarchies.
The petition also asks the Court to strengthen independent prosecution cadres, in line with the recommendations of the 14th Law Commission of India.
The matter is yet to be listed for hearing before the top court.
Case Title: Subeesh P. S. v. Union of India
Case No.: Diary No. 7857/2026
