Flawed Definition Of Public Servant Helps POCSO Accused Legislators
G Rokesh
On December 23, 2025, a Division Bench of the Delhi High Court suspended the life sentence imposed on former BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case, granting him bail pending appeal. Sengar, convicted in 2019 for raping a minor, had been sentenced to life imprisonment under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for aggravated penetrative sexual assault.
The High Court's prima facie view was that the aggravated offence under Section 5(c) of the POCSO Act—committed by a "public servant"—was not made out, as Sengar, an MLA, does not qualify as a public servant under the definition adopted by the POCSO Act. Consequently, the offence reverted to basic penetrative sexual assault under Section 3, punishable under Section 4. Having served over 7 years and 5 months, suspension of sentence was warranted. The Trial court had treated Sengar as a "public servant," invoking the aggravated provision.
The POCSO Act does not independently define "public servant." Section 2(d) incorporates definitions from the IPC, CrPC, Juvenile Justice Act, and IT Act—primarily relying on Section 21 IPC. Under Section 21(12)(a) IPC, legislators like MLAs/MPs are not public servants, as they are not employed by the government nor remunerated for performing public duties at its behest. This was settled by the Supreme Court in R.S. Nayak v. A.R. Antulay (1984), where the Constitution Bench held that an MLA does not fall under this clause.
In contrast, the Prevention of Corruption Act, 1988 (PC Act) adopts a broader, purposive definition under Section 2(c)(viii), including "any person who holds an office by virtue of which he is authorised or required to perform any public duty." This explicitly covers elected representatives. POCSO deliberately references the narrower IPC framework, despite being enacted in 2012—long after the PC Act's 1988 expansion.
Parliament amended anti-corruption laws in 1988 to "get over" the restrictive Antulay interpretation but failed to update the IPC definition. Even with the Bharatiya Nyaya Sanhita, 2023 (BNS) replacing the IPC, the definition of public servant remains substantially unchanged, preserving the gap for ongoing cases. POCSO's adoption of the colonial-era IPC definition in 2012—despite awareness of elected officials' immense influence—creates an anomalous protection. A government employee committing the same offence would face aggravated charges and life imprisonment, while an MLA/MP escapes this merely due to technical drafting.
Non-inclusion of MLA or MP under Section 5 of POCSO Act is actually protecting a class of persons without there being any rationale for doing so. In fact, an MP or MLA indulging in such crimes is more serious than a small Govt. Official committing such acts. This undermines POCSO's protective intent.
The judiciary is bound by statutory text and binding precedents; it cannot rewrite definitions to import the PC Act's broader scope into POCSO. The High Court's order is legally sound on prima facie merits but substantively distressing. When the appeal reaches the Supreme Court, a larger bench could reconsider Antulay in POCSO's context or interpret "public servant" purposively. However, the true resolution lies with Parliament: amend POCSO (and BNS) to align with the PC Act's inclusive definition, ensuring elected representatives face enhanced penalties for abusing power against children. Until then, such technicalities risk diluting child protection laws, prioritising form over substantive justice in cases of egregious abuse by the powerful legislators.