Indian criminal laws like POCSO and BNS still rely on the old IPC definition of “public servant”, which excludes MPs and MLAs. This creates a legal loophole where elected lawmakers may avoid stricter punishment for serious crimes, raising concerns over accountability and justice.
A serious legal question arises when lawmakers themselves are accused of crimes. If a Member of Parliament or a Member of a Legislative Assembly (MP/MLA) is involved in a corruption case, can he be prosecuted under Sections 7 or 11 of the Prevention of Corruption Act, 1988? The answer is clear and straightforward — yes.
The Prevention of Corruption Act, 1988 clearly defines a “public servant” in a wide manner. It includes any person who holds an office and is authorised or required to perform any public duty. Under this law, MPs and MLAs are treated as public servants, and therefore they can be prosecuted for corruption without confusion.
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However, the situation becomes strange and legally confusing when other criminal laws are applied.
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.
The problem lies in how the POCSO Act defines the term “public servant”. 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 (IPC), the Code of Criminal Procedure, the Juvenile Justice Act, and the Information Technology Act. Out of these laws, only the IPC defines “public servant”.
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.
This very issue was decided by the Constitution Bench of the Supreme Court nearly four decades ago 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.
It is important to understand the background of this judgment. The interpretation was made in the context of deciding whether prior sanction was required under Section 6 of the Prevention of Corruption Act, 1947 to prosecute an MLA. The Court held that since MLAs were not public servants under IPC, no sanction was needed.
Later, the old Prevention of Corruption Act of 1947 was replaced by the Prevention of Corruption Act, 1988. This new law expanded the definition of “public servant” significantly.
In L.K. Advani vs Central Bureau of Investigation (1997) CRLJ 2559, the Delhi High Court observed that Parliament deliberately widened the meaning of “public servant” under the PC Act, 1988. The Court noted that the intention was to ensure that every person holding public office is covered, and that no member of the Executive, Judiciary, or Legislature should be outside the reach of anti-corruption law. Although the Supreme Court dismissed the appeal against this judgment, it did not directly decide this specific legal question and left it open.
Despite this expansion under the PC Act, the POCSO Act of 2012 strangely chose not to adopt the wider definition. Instead, it relied on the IPC definition, which is outdated and colonial in nature.
The confusion does not stop there. 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. Now another serious question arises — if an MP or MLA is accused of rape, will Section 64 of BNS apply to him?
Shockingly, the answer may again be no.
The BNS has retained the same IPC definition of “public servant”. Since the Supreme Court in the Antulay judgment held that MPs and MLAs are not public servants under the IPC, this interpretation may still apply even under the new criminal law.
This leads to an absurd legal situation. After the PC Act, 1988 clearly brought MPs and MLAs within the definition of “public servant”, later laws like the POCSO Act and BNS should logically have adopted the same definition. But instead, they continue to rely on an old colonial definition framed at a time when India had no elected legislature.
As even the Supreme Court observed in the Antulay case, when the IPC was drafted, there were no elected MPs or MLAs. That explains their exclusion at that time.
But today, in a democratic country with elected lawmakers who exercise enormous power, it makes no sense to keep them outside the definition of “public servant” for serious criminal offences.
This brings us back to the central legal question — whether an MP or MLA can be treated as a “public servant” under the POCSO Act or the Bharatiya Nyaya Sanhita is still unresolved.
Another important point must be noted. In the Antulay case, the interpretation of “public servant” went against the interest of the accused MLA who wanted protection of prior sanction.
The Court denied him that protection. But can the same interpretation now be used to protect MPs and MLAs from harsher punishment under penal laws like POCSO or BNS? This question has far-reaching consequences.
Only the Supreme Court can finally settle this issue.
Sometimes, law may not fully match common sense. But it should never become illogical. It appears completely unreasonable that while a police officer or a government clerk is treated as a “public servant” for strict punishment, an MP or MLA — who often exercises much greater control over the system — escapes that label. That outcome does not serve justice and looks plainly irrational.
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Disclaimer:
The views and opinions expressed in this article are solely those of Advocate Ashok Kini, the author, and are presented in his personal capacity for legal discussion and academic analysis. They do not necessarily reflect the views of any institution, organisation, or platform where the article is published.
