Definition of Public Servant

Why in News?

A bench of Justice Sabyasachi Bhattacharyya held that an employee of Cooperative Bank not controlled of funded by government is not a public servant under Section 21 of the Indian Penal Code, 1860 (IPC).

• The Calcutta High Court made this observation in the case of Malda District Central Cooperative Bank Employees Association and others v. The Election Commission of India and others.

What was the Background of Malda District Central Cooperative Bank Employees Association and others v. The Election Commission of India and others Case?

• The members of the petitioner association no. 1, who were employees of a District Cooperative Bank, were appointed as Polling Officers for the ongoing parliamentary election under Section 26 of the Representation of the People Act, 1951 (RP Act).
• The Election Commission of India (ECI) relied on Section 21 of the IPC to appoint the employees of the Cooperative Bank as Polling Officers.
  • The petitioner no. 1 is an association of employees of the District Cooperative Bank, representing the interests of such employees.
  • The petitioner no. 2 is the Secretary of the petitioner association no. 1.
• The Cooperative Bank is registered under the West Bengal Cooperative Societies Act, 2006, but it is not controlled or funded by any government.
• The petitioners filed a writ petition in the Calcutta High Court, challenging the appointment of the members of the association as Polling Officers.
  • Another writ petition was also filed in the Calcutta High Court on the same issue, involving employees of the Mugberia Central Cooperative Bank.
• The petitioners argued that the employees of the Cooperative Bank cannot be appointed as Polling Officers under Section 26 of the RP Act, as the Bank does not come within the purview of Section 159(2) of the Act.
• The petitioners contended that the Cooperative Bank is not established under a Central, Provincial, or State Act, and is merely registered under the West Bengal Cooperative Societies Act, 2006.
• The petitioners challenged the ECI's reliance on Section 21 of the IPC to appoint the employees as Polling Officers.

What were the Court’s Observations?

• The court observed that Section 21 of the IPC defines the term "public servant" within the context of the IPC itself, and this definition cannot be extended to a different statute like the RP Act, which operates in a different field altogether.
• The court observed that the Cooperative Bank was not controlled or financed by any government and was merely registered under the West Bengal Cooperative Societies Act, 2006, but not established by or under that Act.
• The court allowed the writ petitions and set aside the requisition and appointment of the members of the petitioner associations working for the Cooperative Banks as Polling Officers.
• However, to avoid hampering the ongoing election process, the court allowed the appointments to be valid for the present ongoing election but directed that the observations shall be given effect from the next elections.

Who are Public Servants under New and Old Criminal Law?

Old Law (IPC)

Section 21 of the IPC states that the words “public servant” denote a person falling under any of the descriptions hereinafter following, namely:

• Military Personnel (Second Clause):
  • Every Commissioned Officer in the Military, Naval or Air Forces of India
• Judges and Judicial Officers (Third Clause):
  • Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions
• Officer of Court of Justice (Fourth Clause):
  • Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties
• Jurors and Assessors (Fifth Clause):
  • Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant
• Arbitrators and Persons Appointed by Courts (Sixth Clause):
  • Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority
• Persons Empowered to Confine Others (Seventh Clause):
  • Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement
• Law Enforcement and Public Safety Officers (Eighth Clause):
  • Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience
• Government Revenue and Property Officers (Ninth Clause):
  • Every officer whose duty it is as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government
• Local Authority Revenue and Property Officers (Tenth Clause):
  • Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district
• Electoral Officers (Eleventh Clause):
  • Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election
• Government and Public Sector Employees (Twelfth Clause):
  • 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
  • Every person in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956.

New Law (Bharatiya Nyaya Sanhita, 2023)

• Section 2 (28) of BNS defines public servant.
• Section 2 (28) uses updated terminology compared to Section 21 of the IPC.
  • For example, it refers to “Government company as defined in clause (45) of Section 2 of the Companies Act, 2013” instead of the Companies Act, 1956 mentioned in Section 21 of the IPC.
• Section 2 (28) defines “local authority” by referring to clause (31) of Section 3 of the General Clauses Act, 1897.
  • Section 21 of the IPC does not provide a specific definition for "local authority".