A look at two cases where a high court's decisions break away from the convention of strictly interpreting penal statutes.

Two recent decisions of the Delhi High Court issued within four weeks of one another tend to demonstrate the law's increasing refusal to treat victims of crime as having committed a crime themselves. In Pooja Saxena v. State (October 20, 2010), the Delhi High Court exonerated a father who paid dowry to have his daughter married, despite the edicts of the Dowry Prohibition Act, 1961, which punishes both the giver and receiver of dowry. Similarly, in Aniruddha Bahal v. State (September 24, 2010), the Delhi High Court exonerated journalists who paid money allegedly to 11 members of Parliament as part of a sting operation to expose them on camera, despite the mandate of the Prevention of Corruption Act, 1988 which punishes both the giver and receiver of a bribe. While the reasons offered by the court in support of its conclusions vary, the underlying theme of the two decisions appears to point to the premise that Indian law must no longer punish the victim of an offence in attempting to create disincentives against its commission.

In Pooja Saxena's case, the petitioner complained that her father was asked at the time of her engagement ceremony for a television set, gold and diamond ornaments, clothes, and either a car or its equivalent in cash, failing which the marriage would be called off. However, while making her complaint against the demand for dowry, the girl admitted that her father had already made several dowry payments to the prospective groom's family.

The Dowry Prohibition Act, 1961 punishes both the giving and receiving of “dowry”, i.e. any property or valuable security given in connection with marriage. The law views “dowry” in any form as a social evil which must be deracinated, and finds its motive force in the principle that a girl child should not be considered a financial “burden”. However, in its zeal to disincentivise dowry payments, the law perhaps fails to view the girl's family on whom dowry demands are made as victims of the offence. A father forced to pay money to have his daughter married does so, more often out of compulsion than by his own free will. Punishing the father of the bride arms the demander of dowry, more than it does the father or the bride. Again, this is not the only Indian law which punishes victims. The Indian Penal Code considers suicide to be an offence, and requires an attempt to commit suicide to be followed by prosecution, not rehabilitation. In fact, until a decision of the Supreme Court in 1990, the victim of rape was considered an accomplice to the crime.

In order to turn the tables on Pooja Saxena, her prospective groom contended that she had admitted in her petition to the payment of dowry by her family, and had accordingly admitted to the commission of an offence. The High Court disagreed, holding that under section 7(3) of the Act a person aggrieved by an offence could not be prosecuted for “a statement made” in complaint. However, going a step further, the court held that even the dowry payment was justified, given that the girl's family was a “victim of circumstances”. The court found that since the dowry demand was made at the engagement ceremony, the girl's father was faced with the “unenviable” choice of either conceding to the demand or facing “the loss of honour of [his] family in … society”. Given these circumstances, the payment of dowry was held justified despite an express legal prohibition.

Cash-for-questions case

In the “cash-for-questions” case, the journalist petitioners had conducted “Operation Duryodhan”, an infamous sting operation where members of Parliament were allegedly caught on camera accepting money to ask questions in the House. The court noted that even over a year and a half after the tapes were aired on television, the police had still not registered a single FIR against the Parliamentarians accused. Instead, the police chose to go after the journalists themselves, bolstered by the dictates of the Prevention of Corruption Act, 1988 which also punishes the bribe giver.

In its classic substantive due process style, the court articulated a “fundamental right against corruption”, holding that every citizen has the right to a clean and incorruptible judiciary, legislature and executive, and each citizen has a corresponding duty to expose corruption. The court held that in such circumstances, the bribe giver does not really intend to commit the crime, and acts in the public interest.

The Delhi High Court's two decisions bear strong resemblance to one another. At a more basic level, both cases involved illegal payments, dowry and bribery, and in both cases the court seemed to hold that the accused was justified in “breaking the law” given the circumstances. However, at a higher level of abstraction, the law in both cases attempted to punish persons who were really “victims” of the offence committed. In Pooja Saxena's case, the girl's family was a victim of the demand for dowry, and was sought to be punished notwithstanding. In the cash-for-questions case, the journalists as citizens of India were “victims” of corruption, and were sought to be punished in their attempt to cleanse the system. The Delhi High Court's decisions arguably recognise the proposition that these victims cannot be punished by the law in a bid to disincentivise the commission of the offence.

It remains to be seen if, going forward, the law will view all bribe-givers as “victims” of corruption in India. It is certainly hard to fathom the thought of the affluent corporation which greases palms in order to do business in India, or of the multinational accused of committing Foreign Corrupt Practices Act (FCPA) violations in India, being considered a “victim” and not a facilitator of the offence of corruption. But what of the common man, whose ordinary interactions with the government are frequently punctuated by “speed payments”? The average Indian citizen is perhaps a “victim” of corruption every time he is compelled to part with hard earned money in order to inspire public servants into action, although to a lesser extent than the family forced to pay its last rupee to marry their daughter off.

In either event, the Delhi High Court's decisions commendably break away from the convention of strictly interpreting penal statutes, and demonstrate that the Supreme Court is not the only place where good law is made.

(The writer, a graduate of Harvard Law School, is an associate attorney at a law firm in the U.S. The views expressed are personal.)

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