Last month, an administrative embarrassment unfolded in India’s capital while the whole world watched Delhi Police mistreats rape survivor who sat in court with her mother and again demanded justice.
On December 23, 2025, the Delhi High Court ruled exposed the life imprisonment of four-time Bharatiya Janata Party (BJP) Member of Legislative Assembly (MLA) Kuldeep Singh Sengar in the infamous Unnao 2017 Gang rape case of a minor. The then incumbent MLA allegedly raped the minor at his residence in June 2017. Due to suspicions of police brutality and intimidation, the case was transferred to the Central Bureau of Investigation (CBI) in April 2018 and the trial was shifted to Delhi as per the directions of the Supreme Court (SC).
That was stayed by a three-judge bench of the SC on December 29 after the CBI challenged this order on the ground that an MLA holds a constitutional office, exercises public power and therefore should be considered a public servant.
Source: FII
In September 2019 Sengar was convicted convicted by a court and sentenced to life imprisonment. While a conviction automatically means the end of the “presumption of innocence,” the verdict can still be appealed. While the appeal is pending, the convicted person can apply for a suspension of the execution of the sentence and, if he is in custody, apply for release on bail in order to avoid serving the sentence.
Two notable factors are: First, “suspended sentence” is merely a delay in the execution of the sentence and not a determination that the convict is “not guilty.” Secondly, the Supreme Court itself noted that the case raises significant questions of law and how absurd it is that a police officer is considered a public servant but not a lawmaker.
In parallel with these legal anomalies, the dismissal of the survivor, her mother and her activists by the paramilitary personnel, the blocking of their communication with the media and the forcing of the elderly women to jump from a moving bus reflect a frightening state of affairs.
“We didn’t get justice” says the mother of the Unnao survivor
“Suspension” is a judicial discretionary power that applies to short-term or fixed-term sentences when this is the rule and to serious crimes when this is the exception. The latter is usually a life sentence. Unless there are exceptional circumstances, a short-term sentence may be suspended on appeal in accordance with the court’s ruling Bhagwan Rama Shinde Gosai in the state of Gujarat (1999).
“Suspension” is a judicial discretionary power that applies to short-term or fixed-term sentences when this is the rule and to serious crimes when this is the exception.
However, following § 389 StPO which is now section 430 of the Bharatiya Nyaya Sanhita, 2023A suspension of sentence is a rare order that is only issued after careful consideration of the factors. Sengar’s case, who was sentenced to life imprisonment for raping a minor, falls into this category.
Source: FII
In an acid attack in 2024 Shivani Tyagi v. State of Uttar Pradesh, The SC explained that the nature and seriousness of the offense must be taken into account when deciding on the advisability of bail.
Central Reserve Police Force (CRPF) personnel claimed that the survivor, her mother and the advocate activist were not given permission to protest in India Yogita Bhayana. Since there were no women CRPF officers on the bus, the three were arrested. As the mother approached the gate of the bus, the officers elbowed her and asked her to get off. As she did so, the bus carrying the survivor drove away.
In one Statement to the media The mother said: “We have not received justice.” My daughter was held captive. It seems like they want to kill us. CRPF men took the girl and dropped me on the road. We will give up our lives.
The officials claimed that the survivor was taken to her house where she was living under CRPF protection after a series of tragedies that saw intimidation and killings of her family over the last eight years.
The officials claimed that the survivor was taken to her house where she was living under CRPF protection after a series of tragedies that saw intimidation and killings of her family over the last eight years.
‘How can the justice system do this to us?‘
The Delhi High Court allowed Sengar’s sentence to be suspended citing his conviction Section 5(c) of the Protection of Children from Sexual Offenses (POCSO) Act, 2012 It criminalizes “aggravated penetrative sexual assault” by a public servant against a person under 18 years of age and the penalty is specified in Section 6. The criminal law sections state that crimes committed by people in positions of authority such as the police, civil servants, hospital, prison or educational institution employees are considered “serious” and are punished solely because they exploited the vulnerability of the victim in the light of the status hierarchy.
While the term “public servant” is not defined in the POCSO Act, the Indian Penal Code (IPC) 1860 defines it as a person belonging to the category of judges, military officers, police officers, returning officers, etc., who is not elected as a legislator under Section 21.
Source: FII
Relying on the case, RS Nayak vs AR Antulay (1984)The Delhi HC ruled that Sengar, a four-time MLA, was not a “public servant” under the IPC and therefore the POCSO Act. The court of first instance referred to this instead in 2019 Section 2(viii) of the Prevention of Corruption Act (PCA) 1988 According to this, every person who holds an office in order to carry out public functions is considered a “civil servant”.
I am of the view that in view of this fact, Sengar’s case does not fall under Section 5(c) of the POCSO Act or Section 376(2)(b) of the IPCthe “suspension of sentence” was approved. The HC also took note of the fact that he had already served his sentence for over seven years and referred to it Kashmira Singh v. State of Punjab (1977) claiming that prolonged incarceration could result in injustice if the conviction of the sentence were later changed.
The survivor expressed shock in a press statement and was determined to demand an emergency hearing in the Supreme Court. She said: “How can the judiciary do this to us?” And in obvious concern at the documented history of systematic intimidation, she added: “This Kuldeep Singh has the money and the power to impose his will and we must suffer.”
She said: “How can the judiciary do this to us?” And in obvious concern at the documented history of systematic intimidation, she added: “This Kuldeep Singh has the money and the power to impose his will and we must suffer.”
Sengar was also convicted Section 304(II) of IPC for the custodial death of the the survivor’s father, the indifference of the police and the truck-car accident in 2019 that killed her two aunts. CRPF protection was subsequently granted in August 2019.
However, the Delhi HC held that “suspended punishment” could not be denied on the grounds that the paramilitary forces or the police would fail in their duties.
‘My family is not safe‘
The Delhi HC is right in refusing to elaborate the definition of “public servant”, but the anomaly in the Pocsoso Framework was also reported by the SC. However, activists claim that offenses under Section 5(c) are much more serious than corruption allegations against lawmakers under the PCA. Furthermore, since POCSO is a victim-centered law enacted specifically to protect children, it must take into account the severe physical and psychological trauma inflicted on the minor, which has long-term social consequences for him.
Source: FII
In Attorney General for India v. Satish (2021)the SC strongly cautioned against the literal interpretation of the POCSO in a case where groping of a minor’s clothes without ‘skin-to-skin’ contact was considered permissible doesn’t matter “Touch” or “physical contact” and therefore the offense of sexual assault did not fall under Section 7 of the POCSO Act. The Supreme Court took a similar approach in criminalizing marital rape when the wife was between 15 and 18 years old Independent Thought vs. Union of India (2017).
Recently in the case of Chhotelal Yadav vs State of Jharkhand (2025)The Supreme Court ruled that “suspended sentence” in life imprisonment cases is justified only when a fair chance of acquittal is undermined and a gross error in the trial court’s judgment is sufficient to show that the appeal can succeed and result in acquittal. In Sengar’s case, lengthy imprisonment and Section 5(c) alone were considered sufficient grounds for granting “suspended sentence”.
This dismisses several other proven allegations of intimidation, threats, witness tampering and violence. The survivor’s mother told the press: “We have been fighting for justice for nine years and I lost my husband in the process.” The police intimidate us and mistreat us. “My family is not safe.”
New battles in the new year for the Unnao rape survivor
This stay of the PC is not the end, but the beginning of another ordeal for the survivor and her family. On the CBI’s appeal, the SC has notified the HC and this case will be formally admitted for reconsideration in the Supreme Court where both sides will re-present their arguments. The suspension will remain in place for an indefinite period until it is lifted by the SC or until the decision on the appeal is made.
On the CBI’s appeal, the SC has notified the HC and this case will be formally admitted for reconsideration in the Supreme Court where both sides will re-present their arguments.
The court has given Sengar four weeks to file a counter affidavit. The CBI will most likely file a rejoinder and detailed hearings will follow to determine whether:
- MLAs are “public servants” within the meaning of the POCSO Act.
- In this case it is a serious sexual assault
- The Delhi HC was right or wrong in granting the “stay of sentence”.
The case also opens up the possibility of a legislative reconsideration of who the term “official” actually includes. However, laws, even if expanded, are not retroactively enforceable unless exceptionally noted.
Source: FII
This represents a legal and moral challenge for the judiciary, given that supposed justice now appears to be delayed and denied. Finally, for the justice mechanism of India, this is another case in history where Sexual violence survivors continue to “survive” every day and fight against retraumatization by the system.
Second year student of Media Studies at CHRIST (Deemed to be University), BRC, Bangalore. A trained Kathak dancer, theater artist and political nerd.