The Kuldeep Singh Sengar case exposed the deep structural ambiguities in India's child protection jurisprudence. Contrary to the popular perception, the controversy was not primarily rooted in the disputed facts, but in a doctrinal mismatch between nineteenth-century statutory definitions and twenty first century demands of child centric criminal justice. This article examines the interpretative conflict arising from the Protection of children from sexual offences (POCSO) Act, 2012, specifically its aggravated-offence framework. By relying on the “public servant” definition in the section 21 of the Indian Penal Code, 1860 which is a colonial provision arguably excludes elected representatives which inadvertency creates the vacuum in the law. This article argues for a legislative reform to ensure that the political power does not grant the immunity from the aggravated liability.
The litigation surrounding Kuldeep Singh Sengar revealed an interpretive crisis that strike at the heart of India's rule of law. It illustrated how excessive legal formalism, when applied to welfare statutes, can neutralize the legislative intent. The core conflict is not factual, but a collision between colonial- era penal code and modern legislation designed to protect the vulnerable.
The rationale is simple and straightforward that the IPC was designed by a colonial power to protect the “state” from its “subjects”. The definition of public servant was narrow because the british only wanted to protect their own appointed officers. Now here comes the maxim, the cessante ratione legis, cessat ipsa lex which loosely translated into “When the reason for the law ceases, the law itself ceases. In a democracy, “public servants” are those who exercise public power, including the elected official. When the “reason” (protecting colonial officers) became irrelevant to a democratic republic, the narrow definition lost its moral and logical validity, even if it retained its statutory validity. In arguendo, the primary function to check the validity of the law that it should pass the constitutional test, that which article 13 says that the pre-constitutional laws are only valid insofar as they do not violate the fundamental rights. Courts have frequently struck down part of the IPC like section 377 or the adultery law) decades after 1950, proving that a law can be applied for 70 years and still be declared unconstitutional or outdated.
In the context of this article, the term “public servant” defined under the IPC came into existence in 1860. The same was drafted in accordance with the evolving needs of the society prevalent at that time. We vehemently oppose the approaches taken by the Supreme Court and other High Courts that the literal interpretation rule should be the guiding star towards justice in welfare statutes such as POCSO.
The term “public servant” is not defined in the POCSO Act. Neither is it defined in the rules made thereunder. In circumstances like these, we need to take the definition of the term from the Indian Penal Code, 1860. Pursuant to Section 21(12)(a) of the IPC, “Every 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 shall be considered as a public servant.” From the bare reading of this definition, it must be understood that the MLA's/ MP's are neither explicitly excluded nor included within the ambit of the definition. In such a scenario, the Courts should adopt the literal interpretation in such a manner that the purpose of the welfare statutes such as POCSO is not kept at abeyance. Therefore, we are of the opinion that the combine reading of the literal and purposive rule would best serve the spirit of Constitutionalism nurtured through our Constitutional fathers.
This method of Interpretation is not peculiar to the POCSO Act. It reflects a deeper judicial instinct that runs through Indian Welfare jurisprudence, so when a protective law is silent on a key definition, courts do not treat that silence as a loophole. They treat it as a space to interpret the law in a manner that advances its purpose.
Protective statutes, especially those concerning children, are not meant to be defeated by technical omissions. Judges have consistently emphasised that the words of such laws must be read in the harmony with their larger mission. In Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate (1958), the Supreme court laid down an enduring principle, when there is ambiguity in statutory language, the words must be understood in the way that best aligns with the object of the enactment. In that case, the court ensured that labour protections were not narrowed by rigid textualism. The reasoning applies with the equal force to child-protection laws today.
The juvenile justice (care and protection of children) Act, 2015 offers a telling parallel. Like POCSO, it does not create a standalone definition of “public servant”. Instead, it borrows from the IPC framework and applies it broadly to secure a wide protective net for the children. Section 31(1)(ii), for instance, empowers “any public servant” to bring a child in need of care before a child welfare committee. The phrase is not read narrowly. It is understood expansively, in keeping with the Act's stated objective, to provide care, protection and rehabilitation through humane and child friendly processes.
The judiciary has reinforced this approach in numerous decisions involving children who stand at the intersection of vulnerability and minor conflict with law. The emphasis has been on reintegration and reform, not on procedural rigidity. Courts have also relied on interpretative tools such as ejusdem generis which means reading general words in the context of the statute's broader scheme to prevent narrow readings from the frustrating legislative intent. A similar purposive approach has shaped anti- corruption jurisprudence under the Prevention of Corruption act, where courts have looked beyond formal labels to the nature of the public power exercised.
The underlying philosophy is consistent that the beneficial legislation must be interpreted in a way that furthers its protective function. In B. Shah v. Presiding officer , labour court (1977), while interpreting the Maternity Benefit Act, the Supreme Court observed the welfare laws must be read purposively so as to effectuate the object of the legislation. That principle has become a touchstone in Indian social- welfare jurisprudence.
The broader message is clear. When parliament enacts law to protect workers, mothers or children, courts do not treat the statutory silence as invitation to retreat into literalism. They read the law as part of a larger constitutional promise, one that places the protection of the vulnerable to the core. The task of the interpretation, in such contexts, is not merely grammatical. It is structural and moral. It ensures that the law's underlying rhythm its commitment to care, accountability and social justice and that is not disrupted by technical gaps.
The doctrinal symmetry impels a parallel trajectory for the POCSO Act, absent an indigenous definition, the IPC's section 21 must be purposively stretched via harmonious construction with constitutional imperatives under Article 15(3) and 39(f) to envelop the MLAs and MPs within “public servant”, lest the statute's safety armour against the child sexual offences be pierced by exclusionary literalism. By this intricate interlace, the courts can transcend historical colonial vestiges of the IPC, adapting it to contemporary constitutionalism's demand for unyielding vigilance over society's most vulnerable, ensuring that elected custodians of public trust are not inadvertently insulated from mandatory reporting duties that underpin POCSO's edifice.
In PV Narsimha Rao v. State, the Supreme court had already settled that the MPs and MLAs are “public servants” for the purposes of the corruption because they perform the public duties.
In an ideal situation, the court would have argued that if an MLA is a public servant when they take a bribe, they must a fortiori be a public servant when they commit an aggravated offence against the child. To have two different definitions of “public servant” for the same individual across two different criminal statutes creates a “jurisprudential schizophrenia” that undermines the predictability of the law. Moreover, this splits approach to defining “public servant” does more than create legal confusion which it quietly builds a hierarchy of immunity that weakens the victim-centric foundation on which the POCSO stands. A closer look at the Antulay precedent shows that its reasoning is rooted in a colonial framework, where Section 21 of the IPC drew a sharp line between those paid by the executive and those holding the legislative office. That distinction made sense in a different constitutional era, but it no longer reflects the realities of the post-independence governance.
Today, MLAs and MPs are not confined to law-making alone. Their roles have expanded to include the oversight of public welfare schemes, control over discretionary development funds, and influence over local administration. These functions often place them in positions of direct authority over citizens particularly over the vulnerable groups such as children. To ignore this transformation is to treat the constitutional office as static, when in fact they have evolved into centres of real, and sometimes coercive, power.
The tension becomes sharper when viewed through the Supreme Court's recent emphasis on political accountability and democratic trust, especially in cases examining electoral transparency and public finance. The court has increasingly described holders of public power as trustees of constitutional responsibility. If elected representatives exercise authority in a fiduciary capacity on behalf of the people their exclusion from the category of “public servants” under POSCO becomes deeply problematic. It undermines the very logic of the law, which seeks to impose harsher consequences where abuse flows from unequal power relations.
In effect, such exclusion reverses the legislative intent, those with the greatest social influence are subjected to the least scrutiny. This anomaly need not await legislative correction. Courts can resolve it by adopting it by the context-specific, functional approach where it examines whether an elected representative, in a given case, exercises authority comparable to that of a public servant as defined under the IPC. This tension becomes sharper when viewed through the Supreme court's recent emphasis on political accountability and democratic trust, especially in cases examining electoral transparency and public finance. The court has increasingly described holders of public power as trustees of constitutional responsibility. If elected representatives exercise authority in fiduciary capacity on behalf of the people their exclusion from the category of the public servants under POCSO becomes deeply problematic. It undermines the very logic of the law, which seeks to impose harsher consequences where abuse flows from unequal power relations.
Ultimately the court should have invoked Article 14. To treat the government clerk as a “public servant” (liable for the aggravated punishment) while treating an MLA as a “private citizen” (liable only for the simple punishment) for the same crime creates a privileged class of offenders. This lacks any “rational nexus” to the object of the law and violates the core of our constitutional morality.
In this sense, the purposive interpretation pf statutes like POCSO or the Juvenile Justice Act is not judicial activism. It is judicial fidelity to the constitutional commitment that welfare legislation must work in practice, not merely on paper.
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