On December 29, the Supreme Court stayed the Delhi High Court’s order granting bail to former UP MLA Kuldeep Singh Sengar under the POCSO Act, 2012. The bench noted, “There are substantial questions of law involved, which require consideration by this Court”. The intervention by the apex court has rightly shown its judicial discomfort with the High Court’s limited interpretation of “public servant” in the POCSO Act.

The High Court relied on R S Nayak v. A R Antulay (1984), where the Supreme Court held that an MLA is not a “public servant” under Section 21(12)(a) of the Indian Penal Code (IPC). That decision was rendered in the context of section 2 of Prevention of Corruption Act, 1947, which expressly tethered the meaning of “public servant” to Section 21 IPC. That judgment should be looked through the eyes of the constitutional position of legislators vis-à-vis the executive. To mechanically transpose that reasoning into POCSO without interrogating the distinct object and structure of the statute is legally impermissible.