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Unnao Gangrape Case: A Tale of Two Standards of Justice
The Unnao gangrape case has sparked outrage and raised questions about the Indian justice system’s treatment of public servants. In this case, a constable is considered a public servant, but an MLA (Member of Legislative Assembly) isn’t, at least according to a Delhi High Court ruling. This distinction has significant implications for sentencing, with public servants facing harsher penalties under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The Case
Kuldeep Singh Sengar, a former BJP MLA, was convicted of raping a 17-year-old girl in Unnao, Uttar Pradesh, in 2017. The trial court sentenced him to life imprisonment, but the Delhi High Court suspended his sentence, citing that an MLA isn’t a public servant under the POCSO Act. The Supreme Court has since stayed this order, questioning why an MLA shouldn’t be considered a public servant.
The Supreme Court has pointed out the absurdity of this distinction, asking, “Is a constable a public servant, but not an MP/MLA?” The court has emphasized that an MLA, being in a position of power, should be held to a higher standard.
Implications
The case highlights the need for clarity on who constitutes a public servant under the POCSO Act. If MLAs aren’t considered public servants, it could lead to lenient sentencing and undermine the law’s intent.
However, the situation becomes strange and legally confusing when other criminal laws are applied.
Aggravated Offence Under the POCSO Act
Under Section 5 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), if a “public servant” commits penetrative sexual assault on a child, the offence becomes “aggravated penetrative sexual assault”, which attracts harsher punishment.
Now the critical question arises — if an MP or MLA commits sexual assault on a minor, can he be charged under this aggravated provision of the POCSO Act? The answer is no longer obvious.
Absence of a Definition in the POCSO Act
The POCSO Act itself does not give a definition. Instead, it says that words not defined in the Act should take their meaning from other laws like the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973, the Juvenile Justice Act, 2015, and the Information Technology Act, 2000. Out of these laws, only the IPC defines “public servant”.
Definition of Public Servant Under the IPC
Section 21 of the IPC says that a public servant is a person who is in the service of the government, or paid by the government, or paid fees or commission for performing public duties assigned by the government. This definition becomes crucial.
Supreme Court Constitution Bench Ruling
This issue was decided by the Constitution Bench of the Supreme Court in R.S. Nayak vs A.R. Antulay (1984) 3 SCC 183. The Supreme Court held that “MLAs do not fall under any category mentioned in Section 21 of the IPC. In other words, MPs and MLAs are not ‘public servants’ under the IPC”.
Legal Reasoning
The Court embarked on a meticulous examination of IPC Section 21, particularly clause (12)(a), to determine whether Antulay, as an MLA, fits the definition of a “public servant.”
Key Issues Considered by the Court
| Aspect | Court’s Interpretation |
|---|---|
| Definition of “Public Servant” | Section 21(12)(a) encompasses individuals “in the service or pay of the Government” or those “remunerated by fees or commission for the performance of any public duty by the Government.” |
| Meaning of “In the Pay of the Government” | This phrase refers to persons compensated directly by the Executive branch of the Government for performing duties on its behalf. It does not include remuneration received from the Legislative branch or independent bodies. |
| Separation of Powers | The Constitution draws a clear distinction between the Executive and the Legislature. While the Executive is responsible for policy execution, the Legislature exercises legislative authority and controls public finance. |
| Historical Context | Amendments and committee recommendations relating to Section 21 never intended to include MLAs within the category of “public servant.” |
Final Finding in Antulay’s Case
Ultimately, the Court determined that Antulay, as an MLA, does not fall within the definition of “public servant” under Section 21(12)(a) of the IPC, since his remuneration is not connected with the execution of duties on behalf of the Executive Government.
Subsequent Legislative Developments
Prevention of Corruption Laws
- The old Prevention of Corruption Act, 1947 was replaced by the Prevention of Corruption Act, 1988.
- The 1988 Act significantly expanded the definition of “public servant.”
- Despite this expansion, the POCSO Act did not adopt the wider definition and instead relied on the IPC definition, which is colonial and outdated in nature.
Impact of the Bharatiya Nyaya Sanhita, 2023
The uncertainty does not end here. Under Section 64 of the Bharatiya Nyaya Sanhita, 2023 (BNS), if a public servant commits rape on a woman who is in his custody, or in the custody of a subordinate public servant, the punishment may extend to imprisonment for life.
Applicability to MPs and MLAs
A serious legal question arises: if an MP or MLA is accused of rape, will Section 64 of the BNS apply to him? Grievously, the answer appears to be negative.
This is because Section 2(28) of the BNS, 2023 has retained the same definition of “public servant.” Since the Supreme Court in Antulay (supra) held that MPs and MLAs are not public servants under the IPC, this interpretation may continue to apply even under the new criminal law.
Need for Clarity in Kuldeep Sengar’s Case
The Supreme Court now needs to determine the definition of “public servant” in the context of Kuldeep Sengar’s case. This determination is crucial to clarify whether an MLA falls within this category for the purpose of liability under the POCSO (Protection of Children from Sexual Offences) Act, 2012.
Delhi High Court Order and CBI Appeal
- The Delhi High Court suspended Sengar’s life sentence on the ground that he was not a public servant at the time of the crime.
- The Central Bureau of Investigation appealed this decision, contending that Sengar’s position as an MLA rendered him a public servant, thereby attracting the provisions of the POCSO Act.
