Wednesday the Supreme Court refused to consider a petition challenging the validity of some acts in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) permitting the appointment of serving or retired judicial officers to senior posts in the prosecution. The court also referred to the plea as misconceived and not having a solid legal foundation.
A court bench headed by the Chief Justice of India, Surya Kant, made it clear that the controversial clause only spells out the qualification of such appointments. The court pointed out that the law does not allow a person to act as a judge and at the same time as a prosecutor. Rather it merely stipulates that an individual who is or has been a Sessions Judge may be eligible to be appointed to positions in the prosecution wing.
The petition submitted by an advocate PS Subeesh directly questioned the Section 20(2) (a) and 20(2) (b) of the BNSS. These provisions allow serving or retired judicial officers to be appointed to the office of Director of Prosecution, serving judicial officers to be appointed to the office of Deputy Director or Assistant Director of Prosecution.
Although the petitioner admitted that the aim of the provision can be to bolster the prosecution system, he claimed that it might adversely affect the independence of the judiciary. Based on the plea, the constitutional balance between the judiciary and the executive can be upset by letting judicial officers play a role in the executive-related prosecution.
There was however no argument in which the Supreme Court saw merit and refused to intervene and so it is important to note that the provision does not blur institutional boundaries but merely provides qualification requirements to certain posts.