Executive Protocol Cannot Dilute Constitutional Safeguards, Rules Kerala High Court in P.S. Subeesh v. State of Kerala
Case: Adv. P.S. Subeesh v. State of Kerala & Ors.
Date of Judgment: 23 October 2026
Court: Kerala High Court
Coram: Justice Raja Vijayaraghavan V and Justice K.V. Jayakumar
Proceedings: W.P.(PIL) No. 165 of 2025
Court Observation
“An executive protocol cannot dilute the safeguards guaranteed by the Constitution and the governing statute, whether directly or through procedural arrangements that have the effect of discouraging compliance with them.”
Summary
The Kerala High Court has struck down portions of the State Government’s guidelines requiring an accused to be produced before a Judicial Officer “as far as possible” between 10 AM and 5 PM, and after 5 PM only in “exceptional circumstances”. A Division Bench held the provisions constitutionally invalid for violating Article 22(2) of the Constitution of India and Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The Court ruled that an executive protocol cannot dilute constitutional safeguards, whether directly or through procedural arrangements that have the effect of discouraging compliance with them. It emphasised that the 24-hour limit is an outer ceiling and not an entitlement to defer production, and that Article 22(2) and Section 58 of the BNSS impose a separate duty to produce the accused without unnecessary delay. The Court held that validity must be judged by the practical operation of the provisions: the phrases “as far as possible” and “exceptional circumstances”, taken together, disincentivised prompt production outside court hours. The requirement of prior intimation to the Magistrate for production after 5 PM was, however, upheld.
Key Holdings
- The State guidelines requiring production of an accused “as far as possible” between 10 AM and 5 PM and only in “exceptional circumstances” thereafter violate Article 22(2) of the Constitution and Section 58 of the BNSS, 2023, and are constitutionally invalid.
- An executive protocol cannot dilute safeguards guaranteed by the Constitution and the governing statute, directly or through procedural arrangements that discourage compliance with them.
- The 24-hour limit for producing an arrested person before a Magistrate is an outer ceiling, not an entitlement to defer production; Article 22(2) and Section 58 impose a distinct duty of production without unnecessary delay.
- The requirement of prior intimation to the Magistrate for production of an accused after 5 PM is valid and was upheld.
Directions Issued
- The State shall issue fresh guidelines governing the production of accused persons before Judicial Officers, in conformity with the judgment.
Background
The guidelines were originally framed by the State in September 2023 after the Kerala High Court, following the death of Dr. Vandana Das, a house surgeon at the Taluk Hospital, Kottarakkara, directed the formulation of a protocol for producing accused persons before doctors and Judicial Officers. The petitioner, an advocate, challenged the clauses of the guidelines concerning the hours of production as chilling the duty under the BNSS to produce arrested persons without unnecessary delay. During the pendency of the writ petition, the State modified some of the impugned clauses, but the Court struck them down even in their modified form.
Disclaimer: This is a summary prepared for informational purposes only and does not constitute legal advice. Readers should refer to the official judgment for the authoritative text.
