Written by: Shashank Maheshwari
5 min readDec 29, 2025 06:52 PM IST
First published on: Dec 29, 2025 at 06:52 PM IST
On December 29, the Supreme Court stayed the Delhi High Court’s order granting bail to former UP MLA Kuldeep Singh Sengar under the POCSO Act, 2012. The bench noted, “There are substantial questions of law involved, which require consideration by this Court”. The intervention by the apex court has rightly shown its judicial discomfort with the High Court’s limited interpretation of “public servant” in the POCSO Act.
The High Court relied on R S Nayak v. A R Antulay (1984), where the Supreme Court held that an MLA is not a “public servant” under Section 21(12)(a) of the Indian Penal Code (IPC). That decision was rendered in the context of section 2 of Prevention of Corruption Act, 1947, which expressly tethered the meaning of “public servant” to Section 21 IPC. That judgment should be looked through the eyes of the constitutional position of legislators vis-à-vis the executive. To mechanically transpose that reasoning into POCSO without interrogating the distinct object and structure of the statute is legally impermissible.
Section 21(12)(a) IPC defines a public servant to include any person “in the service or pay of the Government” or “remunerated by fees or commission for the performance of any public duty by the Government”. Crucially, the provision uses disjunctive phrasing. Even if legislators are not “in the service” of the executive government, the inquiry cannot end there. The decisive element is “public duty”. The IPC itself does not define this expression. However, the Prevention of Corruption Act, 1988, enacted precisely to widen the net of accountability, defines “public duty” under Section 2(b) as a duty in the discharge of which “the State, the public or the community at large has an interest”.
By any constitutional measure, the functions of an MLA or MP are not restricted to their work of lawmaking; they are representatives of their constituency, and thus their work and duties are intertwined with the interests of the community at large. To suggest otherwise is to adopt a formalistic understanding of public power divorced from constitutional reality. Legislators wield influence that is not merely symbolic; it is structural, material, and capable of profound misuse, especially in contexts involving vulnerable victims.
The Supreme Court, while holding that stamp vendors are “public servants” under the 1988 Prevention of Corruption Act in Aman Bhatia v. State (NCT of Delhi) (2025), emphasised that modern anti-corruption and accountability statutes are concerned less with traditional status and more with the nature of the duty performed. Relying on State of Gujarat v. Mansukhbhai Kanjibhai Shah (2020), the Court explicitly noted that the focus has moved from those who are traditionally called public officials to those who perform public duties. If licensed stamp vendors, performing a narrow statutory function, can be brought within this fold, it is normatively incoherent to exclude elected representatives exercising far greater authority over public life.
POCSO, like the PC Act, is a purposive statute. Its objective is not merely to punish sexual offences but to recognise and respond to aggravated forms of abuse, particularly where there is an abuse of power, authority, or trust. Section 5(c) reflects this logic by enhancing punishment where the offender is a “public servant”. The aggravation lies not in formal designation but in the capacity to intimidate, silence, or manipulate systems — capacities that legislators disproportionately possess.
The Supreme Court’s intervention in Attorney General of India v. Satish (2021) (the infamous skin-to-skin controversy) is important here. Rejecting the narrow interpretation of “physical contact” under POCSO by the Nagpur Bench of the Bombay High Court, the Court warned that literalism that defeats statutory purpose amounts to judicial abdication. Accepting technical exclusions that hollow out child-protective legislation, the Court held, would lead to outcomes that frustrate legislative intent and trivialise harm. The same warning applies with equal force to the interpretation of “public servant” under Section 5(c).
The question is not to challenge the vires of the Antulay judgment, but whether its legal precedence can govern a 2012 child-protection statute enacted in a vastly different constitutional and social landscape. The Supreme Court must recognise that statutory interpretation cannot be frozen in time. If POCSO is to remain faithful to its protective mandate, “public servant” under Section 5(c) must be read expansively to include legislators. Anything less risks turning the law into a shield for power, rather than a safeguard for children.
The writer teaches at Jindal Global Law School
Kuldeep Singh Sengar 
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