Political expediency cannot trump justice

Amitabha Pande

NEVER before in its history has the Indian Administrative Service witnessed a perversion of justice as terrifying as that evidenced in the conviction of HC Gupta (former Coal Secretary) for his role in the alleged coal scam. Gupta is not just another retired senior civil servant but an icon who represents the gold standard for rectitude and probity in public service. When such an officer is made a scapegoat, we realise how deep the rot has gone into the entrails of our government and body politic.What really is the case against HC Gupta? 

The charge is that Gupta, as Chairman of the Screening Committee for coal block allocations, conspired to ignore a deliberate misrepresentation of facts by the applicant relating to his company's net worth and existing capacity to secure an allocation despite his ineligibility under the Ministry guidelines. Though the final decision was taken by the Ministers and the Secretary Coal was only making a recommendation, this negligence on the part of Gupta and his two junior colleagues meant that the Ministers were misled into accepting the recommendation. 

This "lack of due diligence" amounted to a conspiracy to cheat involving criminal misconduct because the applicant indirectly derived a pecuniary benefit from this "omission". In all this, did Gupta and his colleagues derive any pecuniary or other benefit themselves? No. Was there any mala fide intention on their part? Was the due procedure for processing applications circumvented or short-circuited? Were any of the multiple levels of scrutiny in that an application must go through, avoided? Is there any evidence or charge that the officers succumbed to political pressure in making their recommendation? Was there any knowing conspiracy to withhold information from the decision-makers? Were the three officers convicted the only ones who handled this and 1,422 other applications for 38 coal blocks and were they personally responsible for proper verification of the information provided to them? Have others in the long chain of scrutiny and screening of these applications been charged or convicted? Have the Ministers in charge of taking the final decision on all applications been charged with conspiracy? Have officials down the chain of command in different ministries responsible for scrutiny been similarly charged? Have five years of investigation into allegedly one of the biggest “scams” in government history yielded any evidence of large-scale bribery, political-level corruption, deal fixing, blatant cronyism, political manipulation and extortion that allegedly took place and have any persons been charged for these offences? No, no and no.

Is this then not bizarre and perverse? We need to unravel the multiple layers of perversity in which this case is wrapped to fully understand its ramifications.

First, at the macro political level. CAG Vinod Rai's disastrously flawed audit of coal block allocations perversely interpreted the screening-committee procedure for allocations — a practice based on the extant policy — as an irregularity that had caused a massive presumptive revenue loss. This, in turn, was made out to be a "scam". Practices are based on policy and policy choices are exercised for a variety of political and economic considerations. Successive governments had followed the screening-committee procedure. While it is one thing to critique it and suggest changes, the logic behind presenting it as a mega scam was not just flawed, it was absurd.

When a self-righteous CAG declared the coal allocations to be a monumental scam (immediately after the 2G scam) an outraged public was ready to believe the worst about its government. In a situation so shrouded in miasma, perceptions hardened into immutable "facts", routine transactions were seen as criminal acts and opinions led to convictions. The political compulsion for finding a scapegoat became obsessive and “facts” were then constructed to fit a predetermined conclusion. No one was prepared to consider that if five years of investigation could not find any evidence of large-scale wrongdoing then there may not have been a scam at all. Minor procedural lapses, painfully extracted, had to be shown as proof of a scam and someone found to pin the blame on — someone neither as big as the Prime Minister nor as small as an Under Secretary. The Secretary, Joint Secretary and Director were the perfect choice — vulnerable enough not to hit back and yet important enough to satisfy the political demand for action. 

The second layer of perversity relates to law. In a weak State, deficiencies in governance, enforcement and the legal, judicial system are sought to be covered by constantly making laws even more draconian, judicial processes weighted in favour of prosecution, and punishments more severe. The amendment of the Prevention of Corruption Act in 1988 (courtesy PC Chidambaram) to introduce Section 13(1)(d), made it unnecessary to show mala fide intent, “mens rea” or any pecuniary benefit to the public servant himself to prove charges of corruption. As long as it could be shown that an irregularity had been committed by a public servant that had led to pecuniary gain, however indirect, to someone else it was deemed criminal misconduct. Prosecution has never had it so easy. HC Gupta and his two colleagues are among the first major, high-profile victims of this perverse provision of law, 

Gupta's case shows a complete reversal of one of the first principles of good administration, that ultimate responsibility vests in the authority designated to take the final decision — in the instant case, the ministers concerned. The responsibility does not get diluted if the authority does not have all the facts or is misled into accepting a recommendation from below. In this case, this essential principle has been abandoned and the Minister/Prime Minister absolved because they were said to have been “misled”.  Sadly, it is a clear signal to the higher echelons of the bureaucracy that honesty, sincerity of purpose and being fearless in decision-making does not matter. Time-serving does. In future, witch hunts will acquire institutional legitimacy and political expediency will trump justice. 

The writer is a former IAS officer