If a Member of Parliament or Legislative Assembly (MP/MLA) is involved in a corruption case, can he be charged under Section 7 or 11 of the Prevention of Corruption Act 1988 [PC Act 1988] ? The answer is obvious! The definition of “public servant” under PC Act 1988 includes a person who holds an office by virtue of which he is authorised or required to perform any public duty.

As per Section 5 of the Protection of Children from Sexual Offences Act, 2012 [POCSO Act], a public servant who commits penetrative sexual assault on a child, is said to commit the offence of “aggravated penetrative sexual assault”. If the same MP/MLA is involved in a sexual assault of minor, can he be charged under Section 5 of the POCSO Act? The answer is not that "legally" obvious though it may seem so ! 

The POCSO Act does not define the term “Public Servant”. Instead, it says that the undefined words and expressions shall adopt the meaning from Indian Penal Code, the Code of Criminal Procedure, 1973, Juvenile Justice (Care and Protection of Children) Act, 2015 and the Information Technology Act, 2009. From these, only IPC defines a “public servant”. Section 21 IPC provides that 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 would be a public servant. Is an MP/MLA (i) in the service of the Government; or (ii) in the pay of the Government; or (iii) remunerated by fees or commission for the performance of any public duty by the Government? This issue was answered by the Constitution Bench of the Supreme Court four decades ago in RS Nayak vs AR Antulay [(1984) 3 SCC 194]. It was held that M.L.A. is not a public servant  under any of the categories listed in Section 21 IPC. It may be noted that this interpretation was done in the context of holding that sanction under Section 6 of the Prevention of Corruption Act, 1947 [PC Act 1947] is not necessary to prosecute MLA/MP.  

Later, the PC Act 1947 got replaced by the PC Act 1988 and the definition of “Public Servant” changed. In L.K. Advani vs Central Bureau Of Investigation 1997 CRLJ 2559, the Delhi High Court noted that the Parliament while enacting the PC Act 1988 enlarged the definition of 'public servant' so as to embrace within its domain each and every person whosoever holds an office. Therefore, it was observed that no member of the Executive, Judiciary and Legislature should be immune from the operation of the PC Act 1988. While the Supreme Court dismissed the appeal against this Delhi HC judgment, it did not answer this “question of considerable importance” itself. 

Interestingly, POCSO Act of 2012 adopts the meaning of “public servant” from IPC and not PC Act of 1988. Also as per Section 64 of Bharatiya Nyaya Sanhita 2023, if  a public servant, commits rape on a woman in his  custody or in the custody of a public servant subordinate to him, he shall be punished with minimum ten years rigorous imprisonment and it may extend to imprisonment for life. If an MLA/MP is the accused in a rape case, will it attract Section 64 BNS? It may seem strange. But some facts are stranger than fiction: BNS does not change the IPC definition of “public servant” which as per Anthulay judgment, does not include MP/MLA.

Ideally, after the PC Act defined “public servant” bringing MP/MLA under it, the later laws viz. POCSO Act and BNS should have adopted it. But strangely, it adopts the “old” and “colonial” definition from IPC.  As noticed by the Supreme Court in Antulay, at the time when IPC was enacted, there was no elected legislature and that explains why it did not include MLA/MP in the definition of “public servant.” But now, we have an elected legislature who makes laws like the BNS and POCSO Act and does not adopt a definition of "public servant" which include themselves in it.

So the question whether an MLA/MP is a “Public Servant” for the purpose of offences under POCSO Act/IPC/BNS is still relevant. In the Antulay case, the context is also important.  In that case, the term “public servant” was interpreted against the interest of the accused MLA who wanted to avail “sanction” protection under Section 6 PC Act 1947 ! Can this interpretation of “public servant” for the purpose of “sanction requirement” under Section 6 PC Act 1947 be adopted for the purpose of penal provision like Section 5 of POCSO Act or Section 64 BNS? Let the Supreme Court itself answer it soon ! 

Sometimes, law is not common sense. But it should not be nonsense either. To say that, while construing penal provisions, a police officer or a Government official is a “public servant” but an MLA/MP who practically has more control over the system is not, looks quite nonsensical. 

Addendum:  Section 2 of the POCSO Act has two clauses. The first one starts with In this Act, unless the context otherwise requires– and then defines various terms. If a term is not defined in clause (1), clause (2) allows adoption of the meaning of that term as defined in Indian Penal Code, Code of Criminal Procedure etc.   So for all practical purposes, what clause (2) does is to virtually put the words and expressions undefined in the POCSO Act in clause (1) like the following  illustration.  

“Public Servant” is not defined under the POCSO Act. So clause (2) adopts it from IPC and puts it in clause (1) in such a way that it reads as follows: Unless the context otherwise requires, “public servant” shall have the same meaning as assigned to it in the Indian Penal Code, 1860.  

The Supreme Court in K. V. Muthu vs Angamuthu Ammal AIR 1997 SC 628, held that  the interpretation placed on a definition should not only be not repugnant to the context, It should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted. Where the definition or expression is preceded by the words "unless the context otherwise requires", the said definition set out in the Section is to be applied and given effect to. But this normal rule may be departed from if there be something in the context to show that the definition could not be applied. In Whirlpool Corporation vs Registrar Of Trade Marks, Mumbai, the Supreme Court observed that phrase "Unless the context otherwise requires" is meant to prevent a person from falling into the whirlpool of "definitions" and not to look to other provisions of the Act which, necessarily, has to be done as the meaning ascribed to a "definition" can be adopted only if the context does not otherwise require.

If Antulay + IPC definition of “public servant” is blindly adopted for the purpose of Section 5 of POCSO Act, without considering the context, then it cannot include MLA/MP. But the context in which “public servant” is used in Section 5 of the POCSO Act is important. It imposes higher punishment on a “public servant” who commits the offence of “penetrative sexual assault”. While considering this context, the definition of "public servant" can be adopted from other sources too, including the common meaning given to it or from the definition given in the Prevention of Corruption Act.