Challenges and Structure of the Prosecution System in India

India’s criminal justice system rests on three pillars – the police, the judiciary, and the prosecution. Of these, the prosecution is arguably the least discussed yet most consequential. A public prosecutor (PP) stands between a police investigation and a court verdict, deciding how the state presents its case. But in India, this role has long been undercut by structural dependence, political manipulation, and chronic under-resourcing. The result, as multiple Law Commission reports have observed, is that prosecution has become the “weakest link of the criminal justice system.” Understanding why – and what’s being done about it – matters enormously for anyone studying criminal law in India.

The statutory framework: who are public prosecutors?
The Directorate of Prosecution
The core problem: independence from police and executive
Political interference: the Section 321 problem
Appointment and accountability gaps
What the BNSS 2023 tries to fix
Remaining concerns and the limits of statutory reform
The path forward: what reforms are needed

The statutory framework: who are public prosecutors?

Public prosecutors in India derive their authority from statute. Under the now-replaced Code of Criminal Procedure, 1973 (CrPC), Section 24 defined and governed their appointment. This provision has been replicated, with some modifications, in Section 18 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the CrPC and came into force on 1 July 2024.

The law recognises three broad categories of prosecutors. First, Public Prosecutors and Additional Public Prosecutors appointed for each High Court by the Central or State Government after consulting the High Court. Second, district-level PPs appointed by the State Government from a panel prepared by the District Magistrate in consultation with the Sessions Judge. Third, Special Public Prosecutors appointed for specific cases, typically involving serious or sensitive offences, who must have at least 10 years of practice as an advocate. For regular appointments at the district level, a minimum of seven years as a practising advocate is required.

For Magistrate courts, Assistant Public Prosecutors (APPs) handle day-to-day criminal prosecution. A critical safeguard – present in both the CrPC and the BNSS – is that no police officer who participated in investigating a case can be appointed as APP for that same case. This separation of the investigative and prosecutorial roles is foundational to avoiding bias in trial.

The Directorate of Prosecution

A major structural reform came with Section 25A of the CrPC (introduced in 2005), which allowed states to establish a Directorate of Prosecution (DoP) – a body that would oversee and supervise prosecution independently from the police. The BNSS has gone further. Section 20 of the BNSS mandates a structured Directorate at both the state and district levels, with clearly defined roles for the Director, Deputy Directors, and Assistant Directors of Prosecution. Unlike the vague discretion allowed under the old CrPC, the BNSS specifies the seniority of cases each tier must monitor – the Director handles cases involving sentences of 10 years or more, Deputy Directors oversee sentences between 7-10 years, and Assistant Directors manage cases below 7 years. On paper, this is a significant improvement in accountability.

The core problem: independence from police and executive

Despite the statutory framework, the reality of prosecutorial independence in India has remained troubled. Research by the Vidhi Centre for Legal Policy documents how, historically, prosecution in India operated under the control of police or district administration. Key prosecutorial functions – including gathering evidence, initiating prosecution, and even withdrawing cases – were often performed by police officers rather than trained legal professionals. The problem wasn’t just practical; it was structural. Police officers, by their very role, are focused on securing convictions. The Law Commission observed that this mindset is fundamentally incompatible with the detached, impartial duty expected of a prosecutor, who must place all evidence before the court – including evidence that may favour the accused.

Section 25 of the CrPC addressed this by explicitly barring police officers from being appointed as APPs. Yet structural independence remains incomplete. There is no statutory requirement for police to consult a prosecutor during investigation. The Supreme Court in R. Sarala v. T.S. Velu (AIR 2000 SC 1731) held that police may consult a prosecutor, but are not compelled to. In practice, prosecutors receive case files only after investigation is complete – leaving them no role in shaping the evidentiary foundation of the case they must argue.

Political interference: the Section 321 problem

Nowhere is the tension between law and practice sharper than in the exercise of the power to withdraw from prosecution. Under Section 321 of the CrPC (replicated in BNSS), a Public Prosecutor may withdraw from prosecuting a case with the court’s consent. The Supreme Court has consistently held that this discretion belongs to the PP alone – the government may suggest withdrawal, but cannot compel it. Courts are required to verify that the PP has acted as “a free agent, uninfluenced by irrelevant and extraneous considerations.”

However, as analysts at Vidhi have pointed out, multiple state governments have amended their rules to require prosecutors to obtain bureaucratic sanctions before withdrawing a case. This effectively subordinates prosecutorial judgment to executive approval. Given that PPs are appointed by state governments and serve at their pleasure, the practical pressure to comply with government directions on case withdrawal – particularly in politically sensitive prosecutions – is substantial. This is a recurring pattern in high-profile cases across India, where the withdrawal of cases against politicians or activists has triggered accusations of selective prosecution.

Appointment and accountability gaps

The appointment process itself is a source of vulnerability. While the CrPC and BNSS both require a panel prepared by the District Magistrate in consultation with the Sessions Judge, the Law Commission’s 197th Report flagged that several states substituted the mandatory word “shall” with “may” in Section 24(6), effectively allowing state governments to bypass the regular cadre and appoint prosecutors directly from the Bar – opening the door to politically motivated appointments. The Commission recommended that at least half of all Additional PP posts at the district level be filled from members of the Bar who had personally conducted a substantial number of Sessions cases, with character verification by the Sessions Judge.

Beyond appointment, there is a near-total absence of objective performance metrics, structured training programmes, and service conditions that would attract competent advocates. Poor service conditions and lack of professional development mean that prosecution as a career is often unattractive to the most capable lawyers, perpetuating the cycle of weak institutional performance.

What the BNSS 2023 tries to fix

The Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the CrPC, introduced several reforms aimed at professionalising prosecution. The structured Directorate of Prosecution under Section 20 is the most significant. Rather than leaving the role of the DoP undefined (as under the old Section 25A), the BNSS assigns specific supervisory responsibilities to each level of the Directorate. The Director’s mandate includes advising the government on whether to file appeals in serious cases, bringing a degree of expert legal oversight to what was previously a political decision. Additionally, the new law mandates Directorates of Prosecution in every state at both state and district levels, whereas under the old law, several states had simply not established them.

The BNSS also allows victims to engage their own advocate to assist the prosecution with the court’s permission – a meaningful shift that gives complainants a direct stake in ensuring effective prosecution, reducing sole dependence on a state-appointed PP who may be under executive pressure.

Remaining concerns and the limits of statutory reform

Despite these improvements, a scholarly analysis published in Lex Localis (2025) cautions that statutory reforms alone cannot transform prosecutorial functions. The paper identifies political culture, administrative inertia, and a lack of awareness among legal practitioners as factors that impede full compliance. Critics of the BNSS, including former Union Minister P. Chidambaram, have warned that without complementary police reform and investment in judicial infrastructure, new laws risk becoming cosmetic exercises. The Indian Express editorially observed that criminal justice reform cannot be “a one-time solution” confined to the statute books.

The deeper issue is institutional: as long as PPs are appointed by and answerable to state governments, their formal independence will remain legally stated but operationally constrained. Most state-level Directorates of Prosecution that exist today are not genuinely autonomous – they remain under the administrative control of the Home Department, creating a structural conflict between independence and accountability. Meaningful reform requires not just new legislation but clear, merit-based appointment processes, security of tenure for prosecutors, enforceable ethical codes, and a cultural shift within the criminal justice ecosystem that treats prosecution as a safeguard for justice rather than a tool of state power.

The path forward: what reforms are needed

A range of experts and bodies have converged on several key reforms. First, establishing truly independent Directorates of Prosecution – insulated from the Home Department and governed by independent oversight bodies – on the model of Crown Prosecution Service in the UK. Second, enacting objective, transparent criteria for the appointment and removal of PPs, replacing the current system where political patronage can dominate. Third, building a structured training framework so that prosecutors have the evidentiary and procedural knowledge to handle complex cases competently. Fourth, expanding the prosecutor’s role to include pre-charge advisory functions – allowing them to review police investigations before a chargesheet is filed, as is standard in several Commonwealth jurisdictions. Fifth, implementing digital case management systems and data-driven performance tracking to bring accountability and efficiency to prosecution workflows.

India’s pending caseload – running into crores of cases – is partly a symptom of weak prosecution: cases that are poorly prepared at the trial stage drag on for years. Strengthening prosecution is therefore not just a matter of institutional justice; it is a direct contributor to reducing judicial backlog and restoring public confidence in the legal system.

What do you think? If public prosecutors are appointed by the very governments whose decisions they may sometimes need to challenge, can genuine prosecutorial independence ever be achieved under the current framework? And does giving victims the right to engage their own counsel – as the BNSS now allows – go far enough as a safeguard against executive pressure on prosecution?

References

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Table of Contents

The statutory framework: who are public prosecutors? 🔗

The Directorate of Prosecution 🔗

The core problem: independence from police and executive 🔗

Political interference: the Section 321 problem 🔗

Appointment and accountability gaps 🔗

What the BNSS 2023 tries to fix 🔗

Remaining concerns and the limits of statutory reform 🔗

The path forward: what reforms are needed 🔗