-Bhushan Raut
Introduction
The most difficult cases in criminal law are not the ones where the law is silent, but where it speaks and it produces an answer that feels normatively unsatisfying. The Delhi High Court’s order in the Unnao rape case is one such instance. Few cases more starkly demonstrate the abuse of power, institutional failure and silencing of the survivor. However, the objective of the blog is to deal with a single issue in the case, specifically with regards to whether an MP/MLA should come under the definition of public servant. This blog does not intend to take sides in the controversy, nor does it seek to minimize the seriousness of the offence. The following discussion treats the case as a vehicle for analysing principles of statutory interpretation in criminal law, rather than as a commentary on the outcome of the proceedings or the conduct of the parties.
The Unnao Case and the Question Before the Court
The brief and necessary facts of the case for our discussion are as follows. The accused was an MLA who was convicted by the learned Trial Court for raping a minor under the IPC read with sections 5(c) of the POCSO Act (hereinafter ‘Act’) and sentenced to life imprisonment under section 6 of the Act. The convict then filed an appeal for seeking regular suspension of sentence during the pendency of the appeal in the High Court of Delhi. The Delhi High Court suspended the sentence of the appellant on the basis that an offence under section 5(c) of the Act is not made out, as an MP/MLA does not fall under the definition of public servant, and only an offence under section 3 of the Act is made out. Since the minimum punishment prescribed for an offence under section 3 read with section 4 of the Act is 7 years, and the appellant has already served more than the prescribed limit under incarceration, hence the Delhi High Court suspended the sentence. A few days later, the Supreme Court of India stayed the operation of the order of the Delhi High Court.
The Statutory Architecture: POCSO, the IPC, and Public Servants
It is necessary to dissect the statutory provisions to identify the peculiarity of the issue. Section 5(c) of the Act reads as follows-
“Section 5- Aggravated Penetrative sexual assualt
(c) whoever being a public servant commits penetrative sexual assault on a child;”
Now, the Act nowhere defines who all are included in the definition of “public servant”. Instead, under section 2(2) of the Act, an incorporation clause directs the courts to refer to other statutes to look for their meaning as defined in them. It is an exhaustive list of statutes, namely, IPC, CrPC, Juvenile Justice Act and the Information Technology Act. Now, out of these statutes, only the IPC contains a definition of the term public servant. It is to be noted that the Prevention of Corruption Act (PCA) has its own definition of public servant under section 2(c). However, when we compare this with the definition of public servant under section 21 of the IPC, the former adopts an expansive conception of public office and public duty. This is evident with clause (viii) of section 2(c) of PCA, which reads as “any person who holds an office by virtue of which he is authorised or required to perform any public duty”, wide enough to include MPs/ MLAs within the meaning of public servant.
The Supreme Court has had the opportunity to decipher whether an MP/MLA would fall under the definition of public servant under IPC in the landmark case of AR Antulay v. RS Nayak, with the Court answering in the negative. Soon after this, the PCA was passed, which broadened the ambit of public servants to include MPs/ MLAs, which was supported by the decision of PV Narasimha Rao and in Sita Soren (Sita Soren overruled PV Narasimha Rao on the question of parliamentary privilege, but it does not disturb the latter’s premise on MPs/MLAs being public servants). But it is to be noted that both Narasimha Rao and Sita Soren held MPs/MLAs to be public servants under the PCA and not under the IPC, owing to an express statutory expansion. Their status is therefore statute-specific, not automatic, which is a crucial distinction of central importance when interpreting criminal legislation such as the POCSO Act, which expressly incorporates IPC definitions and not those of the PCA.
Judicial Restraint and the Pull of Purpose
Criminal law has historically responded to such under-inclusive discomforts through restraint rather than expansion. Enhanced punishments, like aggravated form of rape which carries life imprisonment under section 6 of the Act, affect liberty in its most severe form, and the principle of legality demands that such consequences flow from clear legislative command, not judicial inference. Therefore, in situations where the legislature chooses to define a term by reference to another statute, it becomes an issue of boundary rather than interpretative ambiguity.
Text, Purpose, and Penal Boundaries: Scalia and Breyer–
This tension becomes clearer when we view it through competing interpretive philosophies. A judge who is a strict textualist, like Justice Scalia, will have little patience for purposive expansion in a criminal statute. Since the text is clear and unambiguous, his inquiry would end with the text, and its incorporated definitions, and any broader reading would amount to judicial lawmaking. Contrasting this approach with someone like Justice Breyer’s, who is more sensitive to purpose and consequences, might initially appear more sympathetic to a broader inclusion. Justice Breyerargues that “criminal law incorporates important moral values of a society, and if you discover in interpreting or enforcing a criminal law which runs counter to a basic moral intuition, the Courts ought to pause.” Yet, even Justice Breyer has consistently cautioned against interpretive creativity in criminal law as it undermines legal notice and institutional competence.
Purposive Interpretation and Its Limits: A Barakian Lens
Aharon Barak’s theory of purposive interpretation provides a useful framework for understanding the difficulty posed by the present case. At its core, Barak conceives interpretation as the task of identifying the legal meaning of a text from among a range of meanings its language can reasonably bear, with the purpose of the text operating as the guiding criterion.
Purpose, in Barak’s account, is further composed of two foundational elements, namely subjective purpose and objective purpose. Subjective purpose reflects the actual goals, interests, and values that the specific author(s) (e.g., testator, legislative body) sought to achieve when creating the text. On the other hand, the objective purpose reflects what a reasonable author would have intended, consistent with the fundamental values and principles of the contemporary legal system. This dimension is explicitly normative, as it draws upon constitutional commitments such as democracy, accountability and rule of law.
Barak proceeds on the assumption that both forms of purpose are relevant, though neither is conclusive, and both operate as rebuttable presumptions. Therefore, the role of a judge is to determine the ultimate purpose, which is achieved by balancing and synthesizing the subjective and objective purposes. Let’s understand the subjective and objective purposes through the present context. The Parliament, while drafting the Act, did not include MPs/MLAs as a class of public servants. This reflects a subjective purpose. But, when we look through the lens of objective purpose, rape by a public servant was categorised as an aggravated offence because the law seeks to impose heightened public accountability and guard against the misuse of official power, which recognizes the inherent imbalance of power between the offender and the victim. So, an objective purpose would point towards the inclusion of an MP/MLA within the meaning of public servant.
But a Barakian analysis would also focus on determining if this omission constitutes a gap in the law and whether the law’s ultimate purpose demands its inclusion. Barak draws a crucial distinction between interpretation in the narrow sense (giving meaning to what “is”) and interpretation in the broad sense, which involves correcting or filling in a gap (lacuna or casus omissus).
Applying this to the present case, a literal reading of the Act shows MP/MLAs fall outside the definition of “public servant”. In situations where the language of the statute cannot reasonably accommodate their inclusion, the court cannot travel beyond the limits set by the text, and hence an interpretation in a narrow sense must come to an end. At the same time, this exclusion may be understood as an omission leaving the statute underinclusive when viewed against its broader purpose. From a purely purposive interpretation, this omission appears difficult to justify, particularly given the objectives that underlie aggravated offences.
Legality, Notice, and the Constitutional Bar on Retrospective Punishment
Article 20(1) of the Constitution protects individuals from ex post facto laws, whereby no person can be punished for an act which was not an offence at the time it was committed and cannot be awarded a more severe punishment than what was prescribed then. This does not deny the gravity of the offence; it reflects the distinctive discipline of criminal adjudication. Criminal law operates on this principle, and individuals can only be punished for conduct that was clearly illegal at the time of its commission, encapsulated in the Latin phrase nullum crimen, nulla poena sine lege. While the offence itself was unquestionably punishable, the application of aggravated punishment raises a separate issue. As the law stands, elected representatives have never been treated as “public servants” under the IPC, a position expressly carried into the POCSO Act through its definitional scheme and also by the decision of the judiciary, routed through AR Antulay. If we were to expand that category judicially after the commission of the offence, it would not merely reinterpret the statute, but it would also retrospectively attach enhanced penal consequences to a status that the law had not previously recognized.
Legislative Silence and Institutional Responsibility
It is also worth locating responsibility where criminal law doctrine insists it belongs. The difficulty in treating elected representatives as “public servants” under the POCSO Act is not the result of judicial timidity, but of legislative design. Parliament was well aware that an MPs/MLAs do not fall within the definition of “public servant” under the IPC, and it has elsewhere demonstrated its ability to expressly include them when it so intends. The decision not to amend the POCSO Act despite repeated opportunities, therefore, cannot be dismissed as inadvertence. The fact that the legislature did not include MPs/MLAs within the definition of public servants shows an active choice on its part. In such circumstances, it is not for the courts to correct such under-inclusiveness and cross institutional boundaries; it lies with the legislature that chose not to redraw them.
Conclusion
The Unnao rape case thus exposes a deeper and harsher truth about criminal law. In such hard cases, a strict commitment to legality might lead to outcomes that might feel incomplete and even unjust. Yet the alternative, where we allow the courts to insert a meaning into a statute which the legislature has consciously left out, poses a risk which the criminal law has chosen to avoid for a long time. All eyes will now be on the approach of the Supreme Court and how it navigates through this delicate case and articulates the legal justification underlying its conclusions.
The author is an Assistant Professor of Law at School of Legal Studies, CMR University.