Thursday, October 21, 2010

Delhi High Court: Dowry vs. Bribery

1. On October 20, 2010 the Delhi High Court in Pooja Saxena v. State held that a family that pays dowry in the fear that their daughter’s marriage will be called off if they do not make the payment, and in order to preserve the family's honor, will not be said to have committed an offence. The Dowry Prohibition Act, 1961 renders both giving and taking dowry an offence. While interpreting section 7(3) of the statute, the Delhi High Court has in its order recognized that the giver of dowry is in some circumstances a victim.

2. On September 24, 2010 the Delhi High Court in Aniruddha Bahal v. State held that a journalist who attempts to bribe a public official in a sting operation was not committing an offence under the Prevention of Corruption Act. Incidentally, the case involved the infamous cash for questions scam, from which at least one leading Supreme Court precedent has emerged [Raja Ram Pal v. Speaker] [discussed here]. The High Court recognized that there is an element of public interest in carrying out such sting operations: given the "fundamental right" to a corruption free system, and the corresponding constitutional duty to expose corruption.

The question which I wanted to put to debate was: are these two cases capable of being linked? Both cases recognize that under certain circumstances making a payment prohibited by law, either dowry or bribery, is justified. The dowry case recognizes that the person making the payment is a victim, who the law should not punish. The cash-for-questions case recognizes that the person making the payment did not “intend” to commit the crime, but acted in the public interest. The question is: can a bribe payer, in some limited circumstances, be seen as a victim of the system, who must either abide by its rotten conventions, or fall by the wayside?

Of course, one would find it extremely hard to consider the corporation which greases palms in order to do business in India, or the multinational accused of committing FCPA violations in India, a “victim” of bribery in any way, as opposed to a facilitator. But what of the common man? Is he, although to a much lesser extent than the family forced to pay its last rupee to marry their daughter off, a victim? I do not intend by posing this question to equate the grave ill of dowry in India to corruption. But in trying to disincentivize illegal payments, does our law punish the victim?
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