Unnao verdict: When MLA isn’t ‘public servant’

THe new delhi heights margaret court’s conclusion to debar the life sentence of expelled Bharatiya Janata Party MLA Kuldeep Singh Sengar in the 2017 Unnao rape case has triggered legal and public debate, not just because of the seeming injustice of it all, but because it relies on a technical yet far-reaching question of statutory interpretation: is a legislator a “public servant” under the Protection of Children from Sexual Offences (POCSO) Act.At the heart of the controversy lies the court’s prima facie finding that Sengar, despite being an elected MLA at the time of the offence, does not fall within the category of “public servant” under Section 5(c) of POCSO or Section 376(2)(b) of the Indian Penal Code (IPC), which provides for the punishment of imprisonment for remainder of his natural life.Relying heavily on the Supreme Court’s landmark judgment in AR Antulay (1988), the bench of justices Subramonium Prasad and Harish Vaidyanathan Shankar held on Tuesday that while legislators may be treated as public servants under the Prevention of Corruption Act, that definition cannot be automatically imported into POCSO. It ordered Sengar’s release pending his appeal, noting that he has already undergone about 7 years and 5 months of imprisonment following his conviction by a trial court. The period of his incarceration, it said, exceeded the minimum punishment of seven years that a person can be given under Section 4 of the POCSO Act, prior to the 2019 amendment which enhanced the minimum to ten years.A public servant has a higher sentence than a person who is not a public servant. If the accused is not a “public servant”, the offence falls under Section 4 of POCSO, which prescribes a minimum of 7 years rigorous imprisonment (10 years after the 2019 amendment), extendable to life, instead of the minimum 20 years to life imprisonment under Section 5.Given the gravity of the offence, the statutory purpose of POCSO, and the wider implications of the order for cases involving political power and sexual violence, a close examination of the Delhi High Court’s reasoning is crucial to understand not just what the court held, but also what it consciously declined to do while citing procedural fidelity and doctrinal consistency.The statutory architectureA key pillar of the high court’s reasoning lies in the structure of the POCSO Act itself. Unlike many other statutes, POCSO does not define the term “public servant”. Instead, Section 2(2) of the Act adopts a limited incorporation clause that words not defined in POCSO but defined in the Indian Penal Code (IPC), CrPC (Criminal Procedure Code), the Juvenile Justice Act, or the Information Technology (IT) Act shall carry the meanings assigned to them in those laws.This legislative choice proved determinative. The high court noted that “public servant” is defined only in Section 21 of the IPC and nowhere else among the statutes listed in Section 2(2) of POCSO. A reading of Section 21 IPC, which exhaustively enumerates various categories of public servants, does not include members of legislative assemblies.The bench emphasised that once Parliament consciously restricted the definitional borrowing under POCSO to four specific enactments, courts could not expand that list by implication. In that sense, the judgment is rooted in a strict textual approach that if the Prevention of Corruption Act is not among the statutes referenced in Section 2(2), its expansive definition of “public servant” is simply irrelevant for POCSO prosecutions.This reasoning also explains why the trial court’s reliance on judgments such as LK Advani (1997), which interpret “public servant” in the context of corruption law, was found legally untenable. The high court made it clear that definitional flexibility across statutes cannot override explicit legislative boundaries, even in cases involving morally reprehensible conduct.The shadow of the Antulay judgmentThe second and perhaps most contentious strand of the judgment is its reliance on AR Antulay Vs Ramdas Sriniwas Nayak, a Constitution bench decision that held that an MLA is not a public servant under Section 21 of the IPC.The Delhi High Court reproduced large portions of the order in that case to underscore two ideas that remain legally relevant: first, that the position of an MLA is not easily equated with an “office” in the conventional sense contemplated by Section 21; and second, that the coercive powers referred to in clauses dealing with confinement, policing or adjudication cannot be attributed to legislators merely because they are part of a law-making body.Importantly, the order in that case did not deny that legislators exercise enormous political influence. What it rejected was the idea that such influence, by itself, satisfies the technical elements of “public servant” under the IPC. The Delhi High Court followed this distinction closely, refusing to treat political power as synonymous with statutory authority.This is also where the judgment departs from popular sentiment. From a lay perspective, it may appear counterintuitive that an MLA, who shapes laws, influences administration and commands local authority, does not qualify as a public servant in a statute meant to protect children from sexual exploitation. Yet the high court made clear that criminal liability cannot be expanded on intuitive or moral grounds but that it must be anchored in legislative text and binding precedent.Why the court refused to widen the netFaced with the narrowing effect of the “public servant” finding, the survivor’s counsel pressed an alternative route that Sengar fell within Section 5(p) of POCSO or Sections 376(2)(f) and (k) IPC, which deal with offences committed by persons in a position of trust, authority, control, or dominance.The high court, however, declined to entertain this argument at this stage. It noted that an application to add these charges had been expressly rejected by the trial court in 2019, that CBI had not supported their invocation, and that the order rejecting them was never challenged. Allowing those provisions to be resurrected at the appellate stage, the bench reasoned, would amount to reconfiguring the prosecution’s case beyond the scope of Section 389 of the CrPC that pertains to regular suspension of sentence during the pendency of the appeal.“The appellant also cannot come within the four corners of Section 5(p) of the POCSO Act, as being in a position of trust or authority in relation to the Victim/Survivor, as there is no foundational basis, argument or finding by the learned trial court to this extent…” it noted.The case for clarityThe Delhi high court was careful to emphasise that its conclusions are prima facie and limited to the question of sentence suspension. Yet the legal reasoning it adopts exposes a deeper fault line in India’s criminal law framework -- the uneasy coexistence of narrow statutory definitions with the lived reality of political power.If legislators are public servants for the purposes of anti-corruption law but not for sexual offences against children, the inconsistency is not judicial -- it is legislative. That gap can only be resolved by an authoritative pronouncement or statutory clarification.Given the gravity of the offence, the stakes involved for survivors of sexual violence, and the broader implications for accountability of elected representatives, an authoritative judgment by the Supreme Court on whether and how legislators should be treated under POCSO is not merely desirable, but also imperative.Equally, the controversy underscores the necessity for Parliament to step in and provide statutory clarity on whether elected representatives fall within the aggravated-offence framework of POCSO, so that questions of such gravity are not left to be resolved through narrow definitional cross-references and judicial improvisation.