"In republics, it is plain that as many formalities at least are necessary as in monarchies. In both governments they increase in proportion to the value which is set on the honor, fortune, liberty, and life of the subject. In republican governments, men are all equal; equal they are also in despotic governments: in the former, because they are everything; in the latter, because they are nothing."
-Montesquieu, Chapter 17 on Constitutional Government, The Spirit of Laws (1748)
Section 20 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) reads:"Directorate of Prosecution. (1) The State Government may establish,—(a) a Directorate of Prosecution in the State consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit; and (b) a District Directorate of Prosecution in every district consisting of as many Deputy Directors and Assistant Directors of Prosecution, as it thinks fit. (2) A person shall be eligible to be appointed,—(a) 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;(b) 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. (3) The Directorate of Prosecution shall be headed by the Director of Prosecution, who shall function under the administrative control of the Home Department in the State.(4) Every Deputy Director of Prosecution or Assistant Director of Prosecution shall be subordinate to the Director of Prosecution; and every Assistant Director of Prosecution shall be subordinate to the Deputy Director of Prosecution. (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1) or sub-section (8) of section 18 to conduct cases in the High Court shall be subordinate to the Director of Prosecution. (6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3) or sub-section (8) of section 18 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 19 shall be subordinate to the Deputy Director of Prosecution or the Assistant Director of Prosecution.(7) The powers and functions of the Director of Prosecution shall be to monitor cases in which offences are punishable for ten years or more, or with life imprisonment, or with death; to expedite the proceedings and to give opinion on filing of appeals.(8) The powers and functions of the Deputy Director of Prosecution shall be to examine and scrutinise police report and monitor the cases in which offences are punishable for seven years or more, but less than ten years, for ensuring their expeditious disposal.(9) The functions of the Assistant Director of Prosecution shall be to monitor cases in which offences are punishable for less than seven years.(10) Notwithstanding anything contained in sub-sections (7), (8) and (9), the Director, Deputy Director or Assistant Director of Prosecution shall have the power to deal with and be responsible for all proceedings under this Sanhita.(11) The other powers and functions of the Director of Prosecution, Deputy Directors of Prosecution and Assistant Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution or Assistant Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.(12) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor."
Section 20(2)(a) and Section 20(2)(b) of the BNSS permit Sessions Judges, Magistrates and retired judicial officers to be appointed as Directors, Deputy Directors, and Assistant Directors of Prosecution in State-run prosecution departments.
This arrangement allows judges to function within an executive-controlled prosecutorial hierarchy, which, according to him, strikes at the core of judicial independence and violates the constitutional doctrine of separation of powers. Such a provision existed in the pre-independence Code of Criminal Procedure of 1898 though it was done away with in the CrPC of 1973, the plea points out.
The CrPC of 1973 represented a crucial moment in Indian criminal jurisprudence as it institutionalised the understanding that investigation, prosecution, and adjudication must operate as distinct yet complementary functions, each insulated from the other’s coercive influence.
Under Section 20 of the BNSS, every State may establish a Directorate of Prosecution headed by a Director of Prosecution. The law places this Directorate under the administrative control of the State Home Department. All public prosecutors and assistant public prosecutors are made subordinate to this Directorate.
The provisions make serving or retired judicial officers eligible to occupy senior positions within the specified structure.
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