No Separation Of Powers Violation: Supreme Court Upholds BNSS Provision Allowing Ex-Judges as Directors Of Prosecution

The bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi held that the challenge was misconceived and lacked any legal foundation.

The petition, filed through AoR Dr. Suvidutt MS under Article 32 of the Constitution by an advocate practising criminal law for over two decades, contended that the impugned provisions violated the doctrine of separation of powers and undermined judicial independence. The petitioner argued that permitting serving or retired Sessions Judges and Magistrates to head or serve within the prosecution machinery resulted in an impermissible fusion of judicial and executive functions, contrary to Articles 50 and 235 of the Constitution.

Section 20 of the BNSS provides for the establishment of a Directorate of Prosecution in every State under the administrative control of the Home Department. Under Section 20(2)(a), a person is eligible to be appointed as Director of Prosecution or Deputy Director of Prosecution if he has practised as an advocate for at least 15 years or “is or has been” a Sessions Judge. Section 20(2)(b) similarly allows appointment as Assistant Director of Prosecution for those with seven years’ practice as an advocate or who have served as a Magistrate of the first class.

The petitioner took specific objection to the phrase “is or has been a Sessions Judge”, arguing that the use of the word “is” suggested that even a serving judicial officer could be appointed to an executive-controlled prosecutorial post. This, it was contended, compromised neutrality and diluted High Courts’ control over the subordinate judiciary.

During the hearing, the Bench expressed scepticism about the premise of the challenge. “What is wrong with it? A person who has been a Sessions Judge is better than a practising advocate. What is wrong with that?” the Chief Justice asked.

Advocates Deepika Singh and Disha Purii also appeared for the petitioner.

The petitioner insisted that the provision breached the constitutional mandate requiring separation of the judiciary from the executive and argued that induction of judicial officers into the prosecution structure revived a colonial-era model of criminal administration, where executive and judicial functions were intertwined.

The Bench, however, clarified that the provision merely prescribed eligibility criteria and did not mandate that a serving Sessions Judge would simultaneously function as a judge and a prosecutor. “It is eligibility, it is not a question of a Sessions Judge holding the post of Director of Prosecution as on date,” Justice Bagchi observed.

The Chief Justice further remarked, “The only requirement is that at the same time you should not be a judge and a prosecutor, that is all.”

The Court was not persuaded by the submission that the provision structurally undermined prosecutorial independence or violated the basic structure of the Constitution.

The petitioner had relied on historical developments relating to separation of powers, Constituent Assembly debates, Law Commission reports and constitutional jurisprudence emphasising judicial independence. It was also argued that placing the Directorate of Prosecution under the Home Department subjected prosecutorial discretion to executive control and eroded fair trial guarantees under Articles 14 and 21.

Rejecting the challenge, the Bench held that the apprehensions raised were unfounded. In its oral observation while dismissing the petition, the Court stated that “the misconceived challenge on the premise that it violates constitutional provision has no foundation.”

With this, the writ petition was dismissed, leaving intact the statutory framework under the BNSS that allows experienced judicial officers, subject to service conditions, to be considered for leadership roles within the prosecution machinery.