Reforming the Prosecutorial System in India: A Path Towards Justice

India’s criminal justice system rests on three pillars: investigation, prosecution, and adjudication. Of these, prosecution is arguably the most under-examined – and the most in need of urgent reform. The public prosecutor stands between the police and the court, theoretically independent of both, yet in practice entangled with the executive in ways that fundamentally compromise the integrity of criminal trials. Low conviction rates, politically influenced case withdrawals, and a chronic absence of gender diversity in prosecutorial appointments are all symptoms of a system that has long needed structural change.

The historical roots of a weak prosecution system
The problem of executive control over prosecutors
The case for an independent prosecuting agency
Strengthening prosecutorial autonomy in practice
Merit-based appointments and security of tenure
Defining the prosecutor’s role in the pre-trial stage
Learning from comparable jurisdictions
Gender equity in prosecutorial appointments
The BNSS reforms and what remains unfinished

The historical roots of a weak prosecution system

The problems with India’s prosecutorial system are not new. Prior to independence, there was no requirement for a public prosecutor to even be a lawyer – the role was typically held by police officers serving a colonial state that used prosecution as a tool of repression. This deeply flawed foundation was only partially corrected after 1947.

The Law Commission of India, in its reports of 1958 and 1969, repeatedly recommended the creation of an independent prosecution agency, but these calls went largely unheeded. It was only with the new Code of Criminal Procedure (CrPC) enacted in 1974 that public prosecutors were required to be advocates with a minimum of seven years of practice. Even then, structural independence remained elusive. Police commissions continued to argue that a more independent prosecution weakened conviction rates – a claim that confused coordination with control, and prioritised institutional dominance over justice.

The problem of executive control over prosecutors

The most fundamental challenge facing India’s prosecution system is its lack of independence from the state executive. In most states, prosecutors function under the administrative control of the Law or Home Department, making them subordinate to executive authority rather than functioning as autonomous officers of the court.

This subordination has real consequences. Under Section 321 of the CrPC (now mirrored in the Bharatiya Nagarik Suraksha Sanhita, 2023 or BNSS), a public prosecutor can apply for withdrawal of a case – a significant discretionary power. But in practice, decisions on withdrawal are taken entirely by the executive, with prosecutors merely forwarding the government’s wishes rather than applying independent legal judgment. Courts have consistently held that withdrawal must reflect the prosecutor’s independent mind, but ground-level compliance with this principle is inconsistent at best.

Similarly, the power to appoint Special Public Prosecutors (SPPs) under Section 24(8) of the CrPC has been widely misused. Governments frequently appoint SPPs in politically sensitive cases to sideline regular prosecutors, ensuring executive influence over high-profile trials. Legal scholars note that this provision has actually reduced incentives to reform the general prosecution system – because when the government needs a conviction in an important case, it simply imports a handpicked lawyer rather than strengthening the system as a whole.

The case for an independent prosecuting agency

The demand for a structurally independent prosecution service is not a new idea in India – it is a well-documented, repeatedly recommended reform that has never been fully implemented. The Law Commission’s 197th Report on Public Prosecutors’ Appointments made clear that the public prosecutor must be independent of the executive, of the police, and of all external influences. It recommended merit-based selection through a state-level committee comprising a retired or sitting High Court judge (nominated by the Chief Justice), the Law Secretary, a senior state officer, and the Director of Prosecution.

The 2005 amendment to the CrPC introduced Section 25A, which mandated the establishment of a Directorate of Prosecution (DoP) in each state, separate from police control and under the administrative oversight of the Home Department. However, many states failed to implement this provision meaningfully. Multiple states bypassed the requirement to consult the judiciary in appointments, refused to establish a prosecutorial cadre, or structured the DoP in ways that preserved executive dominance.

Under the BNSS 2023, Section 20 now establishes a more structured Directorate of Prosecution at both state and district levels, clearly defining the roles of the Director, Deputy Director, and Assistant Directors of Prosecution, and classifying oversight responsibilities based on case severity. The Director oversees cases involving sentences of ten years or more, life imprisonment, or the death penalty; the Deputy Director supervises cases with sentences between seven and ten years; and Assistant Directors handle lighter offences. This is a more granular framework than what existed under Section 25A of the CrPC.

However, concerns remain. A recent Supreme Court challenge has targeted Sections 20(2)(a) and 20(2)(b) of the BNSS, which permit serving or retired judges to be appointed as Directors and Deputy Directors of Prosecution under state Home Departments. The petition argues that placing judges within an executive-controlled prosecutorial hierarchy undermines judicial independence and revives a colonial-era model that the CrPC of 1973 had specifically discarded. This challenge highlights a fundamental tension that persists in India’s reform efforts: legislative changes alone cannot ensure genuine institutional independence.

Strengthening prosecutorial autonomy in practice

Structural reform through legislation is necessary but not sufficient. The prosecution system has long been described as the “weakest link of the criminal justice system,” with problems in selection, training, service conditions, and independence all contributing to its dysfunction. Any credible reform agenda must address these operational dimensions directly.

Merit-based appointments and security of tenure

One of the most critical reforms is insulating appointments from political discretion. States must establish objective, transparent standards for the appointment of public prosecutors, with the judiciary playing a meaningful role in screening candidates. Prosecutors appointed on political recommendations without any examination or merit assessment are unlikely to exercise the independent judgment the role demands. Several reform proposals, including those from the Prime Minister’s Office itself, have suggested that public prosecutors be selected through Public Service Commissions after rigorous examination and screening.

Security of tenure is equally essential. Since prosecutors hold their posts at the pleasure of the executive that appoints them, they are structurally vulnerable to manipulation. Fixed terms with removal only through a defined disciplinary process – similar to protections available to judicial officers – would go a long way in enabling prosecutors to act on their independent legal judgment without fear of removal.

Defining the prosecutor’s role in the pre-trial stage

A recurring gap in India’s prosecution model is the near-total exclusion of prosecutors from the investigation stage. There is currently no statutory compulsion for police to consult prosecutors before filing a charge sheet, even though the Supreme Court in R. Sarala v. T.S. Velu (AIR 2000 SC 1731) held that such consultation is permissible. In contrast, many Commonwealth jurisdictions require the prosecution to advise on the legal sufficiency of evidence before charges are framed. Formalising this advisory relationship – without allowing it to become a subordinating one – would reduce weak prosecutions, improve charge quality, and ultimately result in better-prepared trials.

Learning from comparable jurisdictions

The UK’s Crown Prosecution Service (CPS) offers a widely cited model. The CPS is a statutory, independent body headed by a Director of Public Prosecutions, which advises investigating authorities, decides which cases to prosecute, and frames charges in serious cases – all independently of both police and government. Its accountability is maintained through published annual reports and performance evaluations. India does not need to transplant this model wholesale, but the core principle – operational and financial independence for the DoP – is directly applicable. States like Maharashtra have begun moving in this direction, with measures to strengthen DoP independence and improve police-prosecutor coordination, though inconsistencies remain.

Gender equity in prosecutorial appointments

Prosecutorial reform in India cannot be complete without addressing the significant gender gap in the composition of the prosecution service. The broader crisis of women’s underrepresentation in India’s legal institutions is well documented. Only 13.4% of High Court judges are women, and in some High Courts there are either no women judges or just one. The prosecution service, though less studied, reflects similar imbalances.

A significant gap still remains in the representation of women across India’s legal institutions, requiring more affirmative action to achieve a balanced and inclusive system that upholds constitutional values of equality. In the context of prosecution, this matters for several reasons. Cases involving sexual violence, crimes against women and children, and domestic abuse are better prosecuted when the prosecutorial team includes women who can build trust with survivors, manage sensitive disclosures, and bring an informed perspective to case strategy.

Several structural barriers drive this underrepresentation. Women face a “funnel effect” – with limited representation as senior advocates and bar council members, the pool of eligible women candidates for higher appointments is artificially restricted before any formal selection process even begins. Rigid transfer policies, the absence of maternity-sensitive leave provisions, a lack of crèche facilities in court complexes, and the expectation of continuous practice without career breaks all compound these barriers.

Reform proposals here are clear and actionable. Gender diversity must be made an explicit criterion in prosecutorial appointments, not an afterthought. Mentorship programmes, gender-sensitisation training, and gender-representative selection committees are among the structural measures needed to build a stronger pipeline of women prosecutors. Kerala’s model of reserving 50% of lower judiciary positions for women has been cited as a useful precedent for other states. The BNSS’s new framework for the Directorate of Prosecution, which defines appointment eligibility criteria more clearly, should be supplemented with explicit gender representation mandates at all levels of the prosecutorial hierarchy.

The BNSS reforms and what remains unfinished

The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 represents the most significant legislative intervention in India’s criminal procedure in five decades. The BNSS establishes district-level Directorates of Prosecution responsible for oversight, monitoring appeal decisions, and ensuring timely filings, with targets for charge-sheet completion within 60-90 days and measurable improvements in conviction rates for serious offences. The introduction of e-prosecution systems in states like Madhya Pradesh and the push for digital case management are further steps in the right direction.

Yet the gap between legislative intent and institutional reality remains wide. Many of the same structural problems that plagued Section 25A of the CrPC – executive dominance over appointments, unimplemented cadre structures, inconsistent state compliance – risk replicating themselves under Section 20 of the BNSS unless states are held to account. The ongoing Supreme Court challenge against provisions allowing judges to occupy executive prosecution roles is a reminder that legal reform without principled institutional design can create new vulnerabilities even while addressing old ones.

A genuine reform of India’s prosecutorial system requires convergence across several fronts: statutory independence of the Directorate of Prosecution from both police and executive; merit-based, judicially supervised appointment processes; security of tenure to enable fearless professional judgment; formalised pre-trial advisory roles for prosecutors; and proactive gender equity measures at every level of the prosecutorial hierarchy. These are not radical demands – they reflect recommendations that the Law Commission, the Supreme Court, and civil society organisations have made over decades. The question is no longer whether reform is needed, but whether the political will exists to implement it fully.

What do you think? Should India enact a standalone Prosecution Service Act – similar to the UK model – to give the Directorate of Prosecution full statutory independence from the Home Department? And given that a significant portion of criminal cases involve crimes against women, is there a compelling constitutional argument for mandating gender-balanced prosecution teams, especially in sensitive cases?

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Table of Contents

The historical roots of a weak prosecution system 🔗

The problem of executive control over prosecutors 🔗

The case for an independent prosecuting agency 🔗

Strengthening prosecutorial autonomy in practice 🔗

Merit-based appointments and security of tenure 🔗

Defining the prosecutor’s role in the pre-trial stage 🔗

Learning from comparable jurisdictions 🔗

Gender equity in prosecutorial appointments 🔗

The BNSS reforms and what remains unfinished 🔗