MLA Not a Public Servant, Justice Lost in Interpretation in Unnao Rape Case
On December 23, 2023, the Delhi High Court in the case of Kuldeep Singh Sengar versus Central Bureau of Investigation ruled that Section 21 of the Indian Penal Code does not cover or apply to a Member of the Legislative Assembly in the definition of “public servant.” Therefore, the submission that an MLA would be comprehended in clause (7) of Section 21 as a public servant must be rejected.
Clause (7) of Section 21 reads: “Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement.” Subsequently, the Supreme Court stayed this High Court order on December 29, 2023, citing substantive questions of law in the Special Leave Petition, including the definition of “public servant.”
This ruling, and the legal reasoning behind it, exposes significant gaps in India’s criminal justice system and raises troubling questions about the fate of survivors seeking justice against powerful perpetrators.
The Case and Its Context
Kuldeep Singh Sengar, a former MLA, was convicted in the Unnao rape case and was serving a life sentence following the trial court verdict in 2019. The case had already become a national symbol of the abuse of power, the failure of institutions, and the courage of a survivor who fought for justice against a powerful political figure.
The survivor’s story had galvanised public outrage. She had been raped by Sengar in 2017 when she was a minor. Her father had died in custody under suspicious circumstances after lodging a complaint against Sengar. The case was transferred to the CBI and then to Delhi for trial, to ensure a fair process away from local influence.
The trial court convicted Sengar, finding him guilty under multiple provisions, including those that carry enhanced punishment when the perpetrator is a public servant. It was this enhanced punishment that became the focus of the High Court’s scrutiny.
The Definitional Labyrinth
The Delhi High Court rejected the trial court’s adoption of the definition of public servant from the Prevention of Corruption Act, 1988. The High Court reasoned that “in the opinion of this Court, the definition of ‘public servant’ in the Prevention of Corruption Act would be of no use in the present case, for the reason that Section 2 of the Protection of Children from Sexual Offences Act does not include the Prevention of Corruption Act.”
The court inferred that “Public servant has not been defined in the POCSO Act, Section 2(2) of the POCSO Act reads as under: ‘(2) The words and expressions used herein and not defined but defined in the Indian Penal Code, the Code of Criminal Procedure, 1973, the Juvenile Justice Act, and the Information Technology Act, 2000 shall have the meanings respectively assigned to them in the said Codes or the Acts.”
Since the POCSO Act does not define “public servant” and only refers to definitions in the IPC, CrPC, JJ Act, and IT Act, and since none of those Acts provided a definition that clearly included an MLA, the court concluded that Sengar could not be treated as a public servant for the purposes of enhanced punishment.
The Troubling Logic
How does the lack of a definition in a particular law become grounds to provide the benefit of the doubt to a convict, irrespective of holding the position of an MLA? Yet, this is what happened in the ruling.
The deeply disturbing concern is the court’s simplifying statement. It stated: “In view of the specific inclusion of IPC, CrPC, JJ Act and IT Act in Section 2 of the POCSO Act, this Court cannot take aid of definition of ‘public servant’ from any other Act other than IPC, CrPC, JJ Act and IT Act. Notably, CrPC, JJ Act and IT Act do not provide for the definition of ‘public servant’.”
Therefore, the court concluded that the appellant cannot come within the scope of Section 5(c) of the POCSO Act, and the same reasoning applied for the appellant’s conviction under Section 376(2)(b) of the IPC. The court confined itself to the definitional aspect of “public servant,” aggravating the travesty of justice for the Unnao rape survivor.
The Suspension of Sentence
Another disturbing aspect is the High Court’s retrospective application of the POCSO Act, 2012, to Sengar, concluding that “the appellant has already undergone about 7 years and 5 months under incarceration, which is more than minimum number of years under Section 4 of the POCSO Act prior to its amendment in 2019. This court is inclined to suspend the sentence of the appellant.”
The court considered the earlier provision of POCSO, 2012, to argue that the appellant has already served the prescribed term, justifying suspension until the appeal’s finality. This reasoning ignores that Sengar was convicted under the amended law, with higher minimum sentences, and that he was found guilty of multiple offences, not just a single count.
The court failed to acknowledge the threat to the survivor and her family while refuting the argument for keeping the appellant in custody. Extending the benefit of Section 389 CrPC to the appellant, it held: “Courts cannot keep a person in custody being apprehensive that the police/paramilitary may not do its job properly. Such an observation or such a thought process would undermine the laudable work of our police/paramilitary forces.”
This observation seems remarkably naive given the history of the case. The survivor’s father had died in custody after complaining against Sengar. Witnesses had been threatened. The entire case had to be transferred to Delhi because of local influence. To now say that the court cannot be concerned about witness safety is to ignore the very realities that made this case notorious.
The Critical Issues
The court granted the benefit of the doubt to the appellant rather than the survivor and overlooked the gravity of the crime. Discrepancies around the survivor’s date of birth in government and private school records, and medical statements, worked in favour of the convict rather than the survivor’s justice. The absence of a definition of “public servant” in the IPC cannot become a ground to suspend a life sentence to a rape convict.
It is the duty of the court to identify an appropriate law defining “public servant” when a lacuna exists in clause (7), Section 21 of the IPC. The High Court’s reasoning for declining the trial court’s Prevention of Corruption Act definition negates well-settled principles of natural justice and criminal law.
The Way Forward
Legal gaps should not allow future criminals and rapists to escape punishment. The government of India must act quickly to rectify such loopholes by bringing elected representatives within the ambit of the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the POCSO Act, explicitly including MLAs, MPs, and local government members in the definition of public servant.
Retrospective application of POCSO, 2012, to suspend Sengar’s life sentence erodes public confidence in the courts and has serious implications for the criminal justice system and investigative agencies such as the CBI. When a convict can have his sentence suspended on technical grounds, it sends a message that power and legal sophistication can overcome justice.
The court failed to uphold the morale of both the CBI and the survivor. While Article 21 and the right to liberty are important, these rights must be exercised with utmost restraint. This seems to be missing in this verdict.
Conclusion: Justice Undone
The Unnao rape case has been a long and painful journey for the survivor and her family. They fought against a powerful man, against a system that seemed designed to protect him, against threats and intimidation. When the trial court finally convicted Sengar, it felt like justice had been done.
The High Court’s ruling, and the reasoning behind it, threatens to undo that justice. Technicalities about definitions, about which law applies, about minimum sentences under older versions of statutes—these should not determine whether a convicted rapist walks free.
The Supreme Court’s stay of the High Court order is a temporary reprieve. The substantive questions of law remain to be decided. The hope is that when they are finally decided, justice for the survivor, and for all survivors of sexual violence at the hands of powerful men, will prevail.
Q&A: Unpacking the Unnao Rape Case Ruling
Q1: What was the core legal issue in the Delhi High Court’s ruling?
The core issue was whether an MLA qualifies as a “public servant” under Section 21 of the IPC for the purpose of enhanced punishment under POCSO. The High Court ruled that an MLA is not covered under clause (7) of Section 21, which defines a public servant as someone empowered to place or keep any person in confinement. Since POCSO adopts IPC definitions and excludes other Acts like the Prevention of Corruption Act that do define MLAs as public servants, the court concluded Sengar could not be treated as a public servant for enhanced punishment.
Q2: How did the court justify suspending Sengar’s life sentence?
The court applied the pre-2019 version of POCSO Section 4 retroactively, noting that Sengar had already served 7 years and 5 months, which exceeds the minimum sentence under that version. The court reasoned this justified suspending his sentence pending appeal. This ignores that Sengar was convicted under the amended law with higher minimum sentences and for multiple offences, not just one count.
Q3: What was the court’s reasoning regarding witness safety concerns?
The court dismissed concerns about threats to the survivor and her family, stating that keeping a person in custody based on apprehension that police might not do their job properly would undermine the work of police and paramilitary forces. This reasoning seems naive given the case’s history—the survivor’s father died in custody after complaining against Sengar, witnesses were threatened, and the trial had to be transferred to Delhi due to local influence.
Q4: What legal gaps does this case expose?
The case exposes gaps in the definition of “public servant” across different statutes. POCSO adopts definitions from IPC, CrPC, JJ Act, and IT Act, none of which clearly include MLAs. The Prevention of Corruption Act does define MLAs as public servants, but POCSO does not reference that Act. This technical gap allowed a convicted rapist to challenge his enhanced punishment. The case highlights the need for consistent definitions across criminal statutes.
Q5: What reforms are needed to prevent such outcomes?
The government must explicitly include MLAs, MPs, and local government members in the definition of public servant under the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the POCSO Act. Clear, consistent definitions across all criminal statutes are essential. Courts must also be cautious about applying older versions of laws retroactively when convicts were sentenced under newer provisions. Legal gaps should not allow powerful perpetrators to escape justice.
