The Supreme Court on Monday (December 29) stayed the operation of a Delhi High Court order that had suspended the life sentence of former BJP MLA Kuldeep Singh Sengar in the 2017 Unnao rape case.
Although Sengar was not set to be released immediately — he is serving a concurrent sentence in a custodial death case — the intervention by the top court pauses the relief granted to him just last week.
The stay order, issued by a vacation Bench led by Chief Justice of India Surya Kant, hinges on what the court characterised as a “substantial question of law”: Is an elected Member of Legislative Assembly (MLA) a “public servant” under the Protection of Children from Sexual Offences (POCSO) Act?
To understand the Supreme Court’s intervention, the reasoning used by the Delhi High Court on December 23 must first be recalled.
Sengar had been convicted by a trial court in Delhi under Section 376 of the Indian Penal Code (IPC) for rape and Section 5(c) of the POCSO Act in 2019. Section 5(c) deals with “aggravated penetrative sexual assault”, specifically when committed by a “public servant”. The logic is that a crime is more heinous when committed by a person in a position of authority.
However, the POCSO Act does not have its own definition of a “public servant”. Instead, it refers to the definition provided in Section 21 of the IPC.
The High Court noted that while the Prevention of Corruption Act (PCA) explicitly includes MLAs and MPs as public servants, Section 21 of the IPC does not explicitly list elected representatives. Based on this, the High Court, while suspending Sengar’s life sentence, made a prima facie observation that Sengar would not be covered within the ambit of Section 5(c) of the POCSO Act.
The Central Bureau of Investigation (CBI), which had appealed the Supreme Court against the High Court’s order, in a note filed with the apex court, argued that definitions in law cannot be read in isolation. The agency pointed out that the POCSO Act’s definition clause begins with the phrase “unless the context otherwise requires”.
The CBI argued that the “context” of the POCSO Act is to protect children from those in dominant positions. Section 5 lists various authority figures – police officers, armed forces personnel, jail staff and teachers. It contended that an MLA, who holds immense sway over the constituency where the victim resides, comes within this same category of dominance.
It argued that the term “public servant” in POCSO must be interpreted broadly to include anyone in a position of power, rather than following a “pedantic interpretation”. The SC prima facie accepted this argument.
On Monday, the SC Bench, comprising CJI Surya Kanth and Justices J K Maheshwari and Joymalya Bagchi, pointed out a potential absurdity in the law if the High Court’s view were to be upheld.
The court observed that under the High Court’s interpretation, a police constable or a patwari (village accountant) — who are clearly defined as public servants under the IPC — would face the harsher punishment of “aggravated” assault for the same crime. In contrast, an elected MLA or MP, who wields significantly more power and influence, would be exempted from this aggravated category.
Beyond the definition of a public servant, the CBI raised another critical point regarding the sentence itself.
Even if one assumes Sengar is not a public servant under POCSO, he was also convicted under Section 376(2) of the IPC, which punished rape by a person in a position of trust or authority or rape of a woman under sixteen years of age.
The CBI argued that the punishment for rape under the IPC, even as it stood in 2017, allowed for imprisonment for life. The trial court had specifically sentenced Sengar to remain in prison for the “remainder of his natural life”.
The agency argued that the Delhi HC, in suspending the sentence, focused heavily on the technicality of the POCSO Act and the minimum mandatory sentence of seven years, while ignoring that the trial court had exercised its discretion to award a life term under the IPC as well.
The Supreme Court has issued a notice to Sengar and given him four weeks to file a counter-affidavit. The stay on the High Court’s order means that the suspension of his sentence is effectively cancelled for now.