The former coal secretary, H.C. Gupta’s case, shows that a distinction needs to be made between administrative oversights and criminal acts, to ensure that civil servants are not easy scapegoats in the system.
The prosecution of an extraordinarily honest civil servant like H.C. Gupta on some alleged coal block irregularities has shocked the civil service. Questions are being raised on the ability of our institutions to develop an honest civil service, when people like Gupta are being left with no option but to go to jail because they have no money to defend themselves. This incident has raised several issues.
There is a strong belief amongst civil servants that if you are honest, then no one can harm you. Unfortunately, this case has demolished this belief. Many civil servants, when they join the service, have a strong value system. The national academy teaches that if you are honest, you can take on any challenge. During the course of training in the districts, these values are further strengthened. Peers and colleagues strongly disapprove of any deviant behaviour. Since there are many decisions which civil servants takes during their long careers (of nearly four decades), there is this basic principle which guides all situations: be upright and honest and make the best decision in the interest of the people. In many cases there may be a bonafide mistake. But as long there is no illegal benefit received from them, the officers are not guilty.
This principle is under serious attack today and is in the process of getting demolished. This situation, if not remedied, signals the end of our quest for a corruption free system of governance.
The decision attacks the very foundation of the system of decision making followed in all nations to ensure transparency and fair play. The system of governance in our country strongly revolves around this. It was followed in the recommendations for coal blocks. The recommendations of the committee in this case was unanimous. No ministry raised questions after it was discussed in the committee. In all such decisions, the good faith of all stakeholders is implicit. The facts given by different ministries are checked by their officers and not the chairman. No one starts checking the facts given de novo by officers in such inter-ministerial consultations unless some blatant inaccuracy is evident. In all such cases the chairman of the committee assesses the consensus which then, becomes the committee decision. It is not the decision of the chairman but of the group. Attributing criminality to the coal secretary, who was chairman of the committee, when the recommendations in all these cases were unanimous is strange.
The case also ignores the need for distinguishing between administrative oversights and criminal acts, which is otherwise well recognised. The case has been filed under section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988. Under this provision any pecuniary advantage given by a public servant to any person is punishable unless it is in public interest. The law provides for mensrea or malafide acts as essential for taking criminal action. The acts done in good faith are thus not being protected.
After the reforms of 1990s, private investment has picked up and many licences and natural resource allocation have been made to private players to expand economic growth. So, some private player is being benefitted all the time. What one committee may decide was done in public interest, another may question. These decisions are made under different laws and often in consultation with the state government. It is hardly possible to argue that in all such cases no mistake will be made, or that the concept of public interest won’t differ. This could also be due wrongly furnished facts, or simply bad decisions. Unless there is clear proof of malafide decisions made by the officers and clear benefit received by them, criminality cannot be assigned.
The crux of the matter is the ability to identify persons who acted in a malafide manner and prosecute them. If the current practice is followed, the officers will hesitate to make any decisions at all.
In the past, the government has followed a policy of correcting errors that have come out of bad decisions, by cancelling them. In 2002, a number of allocations of petrol pump and gas agencies were made, based on the recommendation of district selection boards headed by some judges or persons with judicial background and oil company representatives. Realising that a mistake had been made, the government cancelled all such allocations. Later these were reviewed by an independent committee which found that about 75% of the allocations were against norms. Finally the Supreme Court in 2008, ordered the cancellation of 159 outlets. But no one was sent to jail for making a wrong recommendation.
The case also highlights another dimension of serious harassment faced by retired and honest civil servants. It is perhaps this, which is forcing Gupta to take the extreme step of wanting to fight the matter from jail, since he has no resources to seek bail.
The decision on the coal blocks case was taken in three meetings. Separate cases have been filed against individual recommendations of the committee meetings. This means an enormous amount of running around is required for each case. Also, the Supreme Court has barred all appeals to higher courts, possibly to expedite decision making. In the process, however, it has curbed the basic constitutional right of the former coal secretary for filing appeals. Considering that approaching the highest court is difficult and involves a different set of lawyers which he cannot pay for, this decision needs a review.
The government has announced its strong commitment to protecting honest civil servants to ensure faster decision making. If this policy can be reflected in protecting Gupta, the former coal secretary, the faith of civil service in the government’s commitment will be strong. It will be good for India’s economic growth story.
The author is a former cabinet secretary and member, planning commission now called Niti Ayog.