The Appointment Process of Public Prosecutors in High Courts of India

Every criminal trial before a High Court in India has a lawyer who stands on behalf of the State – presenting evidence, arguing legal points, and ensuring justice is not left to chance. That lawyer is the Public Prosecutor. But who decides who gets this critical role, and what does it actually take to qualify? The answer lies in a carefully structured appointment process under Indian law – one that balances governmental authority with judicial independence. Understanding how Public Prosecutors and Additional Public Prosecutors are appointed for High Courts is essential for any law student serious about criminal justice in India.

Who is a Public Prosecutor? 🔗

A Public Prosecutor is a legally trained officer who represents the State in criminal proceedings. In India, crime is treated as an offence against society and, by extension, the State – which is why the State, not the victim, prosecutes the accused. The Public Prosecutor’s role begins after the police file the charge sheet in court. From that point, the Prosecutor takes charge of presenting the case, examining witnesses, arguing on points of law, and assisting the court in arriving at a just verdict.

The statutory definition comes from Section 2(u) of the Code of Criminal Procedure, 1973 (CrPC) – a Public Prosecutor is any person appointed under Section 24 of that Code, or anyone acting under the directions of such a person. With the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has replaced the CrPC, the equivalent provisions now appear under Section 18 of the BNSS. The substantive framework for High Court appointments, however, remains largely consistent between the two laws.

The legal framework: Section 24 CrPC and Section 18 BNSS 🔗

Both the old CrPC and the new BNSS establish a clear framework for appointing Public Prosecutors at different levels – High Courts, district courts, and for special cases. For the purposes of High Court appointments, the key provision is sub-section (1) of both Section 24 (CrPC) and Section 18 (BNSS).

Section 24(1) of the CrPC mandates that for every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor. The government may additionally appoint one or more Additional Public Prosecutors. These appointees are tasked with conducting prosecutions, appeals, and other proceedings on behalf of the respective government in the High Court.

Section 18(1) of the BNSS mirrors this structure with one significant addition: a special proviso for the National Capital Territory of Delhi. Under this proviso, only the Central Government – not the State Government – shall appoint the Public Prosecutor or Additional Public Prosecutors for the High Court of Delhi, and this must be done after consultation with the High Court of Delhi. This reflects the unique constitutional status of Delhi, where the Central Government holds primary authority over law and order.

Who has the power to appoint? 🔗

The appointing authority for High Court Public Prosecutors is either the Central Government or the State Government, depending on which government is conducting the prosecution or appeal before that High Court. In practice, this means:

When the Central Government is prosecuting a matter – say, a case under a central legislation – it appoints its own Public Prosecutor for the High Court. Similarly, when the State Government is conducting a prosecution or defending a state interest in appeal, the State Government makes the appointment. As clarified by the Supreme Court in Jayendra Saraswathi Swamigal v. State of Tamil Nadu, the State Government’s power to appoint extends only to prosecutions, appeals, and proceedings within that state’s own courts.

This dual structure ensures that whichever government is the “party” before the High Court retains control over who represents it – while still being subject to the mandatory consultation requirement with the High Court itself.

Why High Court consultation is mandatory 🔗

One of the most important procedural safeguards in this appointment process is the mandatory consultation with the High Court. Neither the Central nor the State Government can appoint a Public Prosecutor or Additional Public Prosecutor for a High Court without first consulting that court.

This requirement is not a formality. It serves a deliberate institutional purpose. The High Court is best placed to assess the professional calibre, courtroom conduct, and ethical standing of advocates who appear before it regularly. The Law Commission of India, in its 197th Report on Public Prosecutor Appointments, emphasized that consultation mechanisms are essential checks against arbitrary or politically motivated appointments – appointments that could compromise the independence of the prosecution.

The Public Prosecutor is not meant to function as a mouthpiece for the government or the police. The Supreme Court has consistently held that a Public Prosecutor is an independent statutory authority – not an agent of the investigating agency. Requiring consultation with the High Court before appointment helps insulate the role from executive overreach and ensures that the person appointed will discharge duties with the impartiality that the position demands.

The eligibility requirement: seven years of advocacy practice 🔗

Not every lawyer can be appointed as a Public Prosecutor or Additional Public Prosecutor for a High Court. The law prescribes a clear minimum qualification. Section 18(7) of the BNSS (previously Section 24(7) of the CrPC) states that a person is eligible for appointment as a Public Prosecutor or Additional Public Prosecutor only if they have been in practice as an advocate for not less than seven years.

This seven-year threshold applies specifically to appointments under sub-sections (1), (2), (3), and (6) – which cover High Court appointments, district-level appointments, and appointments from the regular cadre of prosecuting officers. The rationale is straightforward: High Court matters – particularly criminal appeals, revisions, and serious prosecutions – demand a seasoned advocate who is comfortable with complex legal arguments, evidence assessment, and appellate procedure.

How prior prosecution service counts toward the seven-year requirement 🔗

An important clarification under Section 18(9) of the BNSS (identical to Section 24(9) of the CrPC) addresses how the seven-year period is calculated. The law provides that the period during which a person has served as a Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor, or any other Prosecuting Officer – by whatever name called – shall be counted as period of practice as an advocate. This means a career prosecutor who has spent years in the prosecution department is not penalised for not being in private practice – their service years count towards the eligibility bar. The intention is to broaden the pool of qualified candidates without compromising the experience requirement.

Additional Public Prosecutors: an optional but practical appointment 🔗

While the appointment of a Public Prosecutor for every High Court is mandatory, the appointment of Additional Public Prosecutors is discretionary. The government “may” appoint one or more Additional Public Prosecutors depending on the volume of cases and the workload at the High Court. In practice, High Courts with a large pendency of criminal cases – such as the Allahabad High Court or the Bombay High Court – tend to have multiple Additional Public Prosecutors handling different categories of matters.

Additional Public Prosecutors carry out the same functions as the Public Prosecutor – they can independently appear in prosecutions, appeals, and other criminal proceedings. Their appointment is subject to the same eligibility criteria (seven years of advocacy practice) and the same consultation requirement with the High Court. There is no hierarchy of authority between a Public Prosecutor and an Additional Public Prosecutor in terms of their courtroom role; the distinction is largely administrative.

Special Public Prosecutor: a different category entirely 🔗

It is worth distinguishing the role of Public Prosecutor and Additional Public Prosecutor from that of a Special Public Prosecutor. Under Section 18(8) of the BNSS, the Central or State Government may appoint a Special Public Prosecutor for any specific case or class of cases. The eligibility bar here is higher – the person must have been in practice as an advocate for not less than ten years.

Special Public Prosecutors are not attached to any particular court. They are appointed for particular matters – high-profile corruption cases, terrorism-related prosecutions, or cases under special statutes like the PMLA or NDPS Act. The Supreme Court has held that appointment of a Special Public Prosecutor without disclosing a specific reason is legally unsustainable, reinforcing that this provision cannot be used routinely.

The Delhi exception under BNSS: a notable departure 🔗

As noted earlier, the BNSS introduces a notable departure from the CrPC framework specifically for Delhi. Under the older CrPC, both the Central and State Governments had concurrent authority to appoint Public Prosecutors for the Delhi High Court. Under Section 18(1) of the BNSS, this power for Delhi now vests exclusively with the Central Government, exercised after consultation with the High Court of Delhi.

This change reflects the broader constitutional position on the NCT of Delhi – where the Central Government holds superior authority over certain matters compared to the Delhi government. It is a significant legislative update that law students should be aware of, especially given the ongoing tussle over administrative jurisdiction in the capital.

Why this appointment process matters 🔗

The framework for appointing Public Prosecutors at the High Court level is not merely procedural red tape. It reflects a deeper constitutional value: the separation of the prosecutorial function from political influence. The Law Commission has repeatedly emphasised that the Public Prosecutor must be independent of the executive and all external pressures – including the police and the investigation agency. The mandatory consultation with the High Court, the seven-year experience requirement, and the clear designation of the appointing authority are all designed to protect this independence.

When these safeguards are bypassed – through ad hoc appointments, political patronage, or the sidelining of the consultation process – it directly affects the quality of prosecution and, in turn, the outcome of criminal trials. A weak or compromised Public Prosecutor at a High Court can undermine entire cases that have taken years to reach the appellate stage.

What do you think? Given that the appointment of Public Prosecutors requires mandatory High Court consultation, do you think the current framework adequately protects prosecutorial independence from executive influence? And with the BNSS concentrating Delhi’s prosecutorial appointments exclusively in the Central Government’s hands, does this strengthen or weaken the principle of separation of powers in the capital’s criminal justice system?

References

1. https://legal-wires.com/lex-o-pedia/55702/
2. https://latestlaws.com/bare-acts/central-acts-rules/bnss-section-18-public-prosecutors
3. https://indiankanoon.org/doc/1271595/
4. https://indiankanoon.org/doc/151456189/
5. https://vidhiadda.com/section-18-of-the-bharatiya-nagarik-suraksha-sanhita-2023-bnss/
6. https://marriagesolution.in/bnss_section_/section-18-of-bnss/
7. https://thelegalquotient.com/criminal-laws/bharatiya-nagarik-suraksha-sanhita/public-prosecutor-power-functions-and-role/3815/
8. https://www.apnilaw.com/bare-act/bnss/section-18-bharatiya-nagarik-suraksha-sanhita-bnss-public-prosecutors/