The con­vic­tion of a top IAS of­fi­cer for cor­rup­tion sends shock­waves through the bu­reau­cracy and threat­ens to paral­yse govern­ment

India Today - - INSIDE - By Asit Jolly and Sh­weta Punj

Will they be pe­nalised for de­ci­sions in cases that turn con­tro­ver­sial?

On May 22, the Cen­tral Bu­reau of In­ves­ti­ga­tion’s spe­cial court in Delhi sen­tenced for­mer coal sec­re­tary H.C. Gupta and two other serv­ing govern­ment of­fi­cials—K.S. Kropha and K.C. Sa­maria—to a two-year prison term. Ear­lier pro­nounced “guilty” of wrong­do­ing in the al­lo­ca­tion of a coal block in Mad­hya Pradesh to a pri­vate firm, Ka­mal Sponge Steel & Power Lim­ited (KSSPL), in 2008, the three were also or­dered to pay in­di­vid­ual fines of Rs 1 lakh each. Be­sides the bu­reau­crats, the court im­posed a Rs 1 crore penalty on the com­pany and a per­sonal fine of Rs 30 lakh and three-year jail term for its MD, Pawan Ku­mar Ah­luwalia.

What should or­di­nar­ily have passed off as just an­other ju­di­cial de­cree sud­denly had the en­tire civil bu­reau­cracy on its feet. The con­vic­tions, in par­tic­u­lar that of the for­mer coal sec­re­tary, have left many aghast. Gupta, a 1971 batch IAS of­fi­cer of the Ut­tar Pradesh cadre, is widely re­spected for his per­sonal in­tegrity. When the CBI first charged him, Gupta, who is known to live fru­gally, caused some con­ster­na­tion by re­fus­ing to ap­ply for bail, ask­ing the court to send him to jail in­stead. His col­leagues said, “He sim­ply didn’t have the means to hire ex­pen­sive ad­vo­cates to fight his case.”

Gupta, coal sec­re­tary from De­cem­ber 31, 2005, to Novem­ber 2008, then joint sec­re­tary Kropha and

then di­rec­tor Sa­maria in the coal min­istry were held guilty by the court for ir­reg­u­lar­i­ties in al­lo­ca­tion of the Th­es­gora-B Ru­dra­puri coal block in MP to KSSPL. The court held the bu­reau­crats guilty of crim­i­nal con­spir­acy and cheat­ing un­der the In­dian Pe­nal Code and for cor­rup­tion un­der the Pre­ven­tion of Cor­rup­tion Act (PCA).

The CBI al­leged the firm had mis­rep­re­sented its net worth and ex­ist­ing ca­pac­ity. While fram­ing charges against the bu­reau­crats last Oc­to­ber, the court said Gupta had kept for­mer prime min­is­ter Man­mo­han Singh (who held ad­di­tional charge of the coal min­istry) “in the dark” on the coal block al­lo­ca­tion.

Gupta’s court-or­dered in­car­cer­a­tion marks the first of what could be a string of sim­i­lar con­vic­tions re­sult­ing from the suc­ces­sive scams dur­ing the Con­gressled United Pro­gres­sive Al­liance’s sec­ond ten­ure (2009 to 2014).

The coal scam or ‘Coal­gate’ sur­faced in 2012 af­ter the Comptroller and Au­di­tor Gen­eral’s re­port al­leged that in­ef­fi­cient al­lo­ca­tion of coal blocks had re­sulted in wind­fall gains to pri­vate com­pa­nies, amount­ing to Rs 1.86 lakh crore. Sub­se­quently, the CBI reg­is­tered 53 cases wherein coal blocks had been al­lot­ted in vi­o­la­tion of govern­ment pol­icy. Some 33 of these per­tained to al­lo­ca­tions made to 168 firms from 2006 to 2009. Sev­eral of­fi­cers, then at the helm of the coal min­istry, were charged. Be­sides the MP al­lo­ca­tion in which he was con­victed, Gupta is fac­ing seven other chargesheets in Coal­gate, one of which in­cludes an­other for­mer coal sec­re­tary, P.C. Parakh.

An­other case which could see many babus cool­ing their heels in jail is the six-year-old 2G spec­trum al­lo­ca­tion scam, in which for­mer tele­com min­is­ter, A. Raja, DMK MP Kan­i­mozhi, for­mer tele­com sec­re­tary Sid­dharth Be­hura, Raja’s aide R.K. Chan­do­lia and a whole ret­inue of cor­po­rate ex­ec­u­tives stands chargesheeted. Fi­nal hear­ings in the case were con­cluded in the last week of April in the CBI spe­cial court in Delhi.

For­mer chief elec­tion com­mis­sioner S.Y. Qu­raishi, of the same IAS batch as Gupta, says the con­vic­tion was “very un­for­tu­nate”. Qu­raishi in­sists the for­mer coal sec­re­tary got en­tan­gled in a tech­ni­cal­ity of the anti-cor­rup­tion law that serves to crim­i­nalise even rou­tine ad­min­is­tra­tive de­ci­sions taken in good faith. “Such verdicts,” he says, “will dis­cour­age bu­reau­crats from tak­ing de­ci­sions.”

The con­vic­tion of Gupta and the oth­ers has set off a clam­our of protest among the civil bu­reau­cracy de­mand­ing ur­gent amend­ments to the Pre­ven­tion of Cor­rup­tion Act of 1988. For­mer bu­reau­crats like Qu­raishi in­sist that in its cur­rent form, the Act “is opaque and must be re­placed by a more spe­cific law that pre­vents cor­rup­tion, but doesn’t trap in­no­cents”.

The crux of these com­plaints is the highly con­tentious Sec­tion 13(1)(d), which man­dates that a pub­lic ser­vant stands guilty of cor­rup­tion “if he, by cor­rupt or il­le­gal means, ob­tains for him­self or for any other per­son any valu­able thing or pe­cu­niary ad­van­tage”, or “by abus­ing his po­si­tion as a pub­lic ser­vant, ob­tain for him­self... any valu­able thing or pe­cu­niary ad­van­tage”, or “while hold­ing of­fice as a pub­lic ser­vant, ob­tain for any per­son any valu­able thing or pe­cu­niary ad­van­tage with­out any pub­lic in­ter­est”.

NITI Aayog CEO Amitabh Kant is em­phatic in his sup­port for Gupta. “The Act needs to be amended quickly,” he says. “Gupta is a man of im­pec­ca­ble in­tegrity. This is a sad story of an up­right, hon­est man han­dling a file. There is no penalty in the govern­ment for not tak­ing de­ci­sions. Ev­ery de­ci­sion you take will cause pe­cu­niary ad­van­tage to some­one and we take thou­sands of de­ci­sions.”

For­mer cab­i­net sec­re­tary Naresh Chan­dra too holds that Gupta may have been con­victed on a “per­ni­cious prin­ci­ple”. He says the court ap­pears to have no con­cep­tion of the govern­ment’s work­ing and seems to have re­lied en­tirely on the pre­sen­ta­tion of the in­ves­ti­gat­ing of­fi­cer. “The court ought to have had an am­i­cus to brief it on gov­ern­men­tal func­tion­ing,” he says.

Chan­dra says a sec­re­tary-level of­fi­cer head­ing a com­mit­tee can­not be ex­pected to check ev­ery doc­u­ment be­fore him. “Gupta couldn’t have seen each and ev­ery pa­per. Can a judge check whether all the af­fi­davits (in a case) are cor­rect?” he asks. He warns that if the law, in its present form, is more widely ap­plied, “many more sec­re­taries will go to jail. Or worse, gov­ern­ments could use it to fix of­fi­cers (they see) as loyal to pre­vi­ous gov­ern­ments”.

The in­dict­ment of Gupta and the oth­ers raises a very per­ti­nent ques­tion: how ef­fec­tive has an anti-cor­rup­tion law framed in pre-lib­er­al­i­sa­tion times been?

Not much, in the view of most serv­ing and for­mer civil ser­vants. Cor­rupt of­fi­cers, ca­pa­ble of ma­nip­u­lat­ing the sys­tem, never leave a pa­per trail. Only hon­est peo­ple work­ing by the rule­book get trapped. Of­fi­cers say rather than at­tribut­ing crim­i­nal­ity to what could well have been an er­ror of judge­ment or ad­min­is­tra­tive lapse caus­ing pub­lic loss, the govern­ment ought to deal with such cases ad­min­is­tra­tively—by with­hold­ing pro­mo­tions or in­cre­ments.

For­mer bu­reau­crats sug­gest de­part­men­tal in­quiries to pe­nalise ad­min­is­tra­tive lapses. “In case of neg­li­gence, de­part­men­tal in­quiries would be more ap­pro­pri­ate than crim­i­nal ac­tion,” says for­mer Gu­jarat chief sec­re­tary Sud­hir


Mankad. “Crim­i­nal ac­tion is jus­ti­fied only when there is quid pro quo or con­nivance be­tween of­fi­cers and ben­e­fi­cia­ries, which would prove the of­fi­cer has gone the ex­tra mile to favour a com­pet­ing party, set­ting aside rules.”

Qu­raishi goes fur­ther. “There was a scam and some­one must have ben­e­fit­ted from it. Who are those per­sons? It is sad that all the big fish are out and hon­est bu­reau­crats be­come scape­goats,” he told in­dia to­day in Delhi.

There is no ev­i­dence to sug­gest that Gupta made money; it is ei­ther an is­sue of over­sight or er­ror of judge­ment,” says a se­nior bu­reau­crat who is hope­ful that key amend­ments to the PCA would be tabled in the mon­soon ses­sion of Par­lia­ment, slated to com­mence on July 18. “To at­tribute crim­i­nal­ity is far­fetched and this will fur­ther ag­gra­vate fear. This pro­vi­sion (Sec­tion 13(1)(d) needs to go if In­dia has to be­come a ma­jor econ­omy,” he adds.

Bu­reau­crats ar­gue that the mere ex­is­tence of a law does not curb cor­rup­tion; what’s needed are sys­temic mea­sures, in­ter­nal checks and con­trols. A re­tired bu­reau­crat sug­gests bring­ing in more lat­eral hires—of do­main ex­perts—for a du­ra­tion of three to five years.

“Such a move does shake up the sys­tem. But be­yond a level, one can­not have a high level of pro­tec­tion for civil ser­vants,” says a serv­ing civil ser­vant in Delhi. “Even if there is pri­vate gain, the rule of rea­son should ap­ply, not pre­sump­tion of guilt.”

With the pres­sure to amend PCA—more specif­i­cally ex­punge the ‘of­fend­ing’ Sec­tion 13(1)(d)—mount­ing, it will be quite a tightrope walk for the Naren­dra Modi govern­ment to bal­ance its anti-cor­rup­tion stance and pacify bu­reau­crats gripped with fear af­ter the Coal­gate con­vic­tions.

The govern­ment is in the throes of a war against cor­rup­tion and can per­haps be cred­ited with re­duc­ing cor­rup­tion in the high­est ech­e­lons—mid­dle­men are out of

“The prob­lem with the Act is that it au­to­mat­i­cally im­putes cor­rup­tion. You need to en­sure this sword of Damo­cles does not hang over ad­min­is­tra­tions” K.M. Chan­drasekhar For­mer cab­i­net sec­re­tary “PCA is opaque and must be re­placed by a more spe­cific law that can pre­vent cor­rup­tion, but doesn’t trap in­no­cents” S.Y. Qu­raishi For­mer chief elec­tion com­mis­sioner “If the law were ap­plied more widely, many more sec­re­taries would go to jail. Gov­ern­ments could use it to fix of­fi­cers seen as loyal to pre­de­ces­sor gov­ern­ments” Naresh Chan­dra For­mer cab­i­net sec­re­tary

work and kick­backs are no more the news. But keep­ing the civil bu­reau­cracy mo­ti­vated and pro­duc­tive, par­tic­u­larly af­ter Gupta’s in­car­cer­a­tion, will be a big chal­lenge for PM Modi and his col­leagues.

As part of its many prom­ises, the BJP-led Na­tional Demo­cratic Al­liance govern­ment had re­it­er­ated the need to amend the Act. Union fi­nance min­is­ter Arun Jait­ley has been em­phat­i­cally ad­vo­cat­ing this. At a pub­lic event in Delhi in March, Jait­ley made a strong case for amend­ing the Act, say­ing the dis­tinc­tion be­tween er­ro­neous and cor­rupt de­ci­sions is very thin in the law.

An at­tempt to fix the anti-cor­rup­tion law was made in the lat­ter half of UPA-II. But the Pre­ven­tion of Cor­rup­tion (Amend­ment) Bill, 2013, in­tro­duced by the UPA, could not be passed in Par­lia­ment. It sought to re­de­fine crim­i­nal mis­con­duct to in­clude mis­ap­pro­pri­a­tion of prop­erty and pos­ses­sion of dis­pro­por­tion­ate as­sets. The bill, which re­mained a draft, also in­cluded the of­fence of giv­ing bribe to a pub­lic ser­vant, in­clud­ing bribes by a com­mer­cial or­gan­i­sa­tion.

Draft amend­ments to the Act, pro­posed in May 2015, re­placed “valu­able thing or pe­cu­niary ad­van­tage” with “un­due ad­van­tage”. Un­due ad­van­tage was de­fined as any grat­i­fi­ca­tion other than le­gal re­mu­ner­a­tion. The amend­ment also in­cludes the re­quire­ment of prior sanc­tion to pros­e­cute any serv­ing pub­lic or re­tired of­fi­cial (in cases per­tain­ing to the of­fi­cer’s ser­vice).

Re­ferred to the par­lia­men­tary stand­ing com­mit­tee (Se­lect Com­mit­tee of the Ra­jya Sabha), which gave its rec­om­men­da­tions on Au­gust 12, 2016, the bill is yet to be tabled in Par­lia­ment. But in the wake of the up­roar over the con­vic­tion of Gupta, Kropha and Sa­maria, there are in­di­ca­tions that the Pre­ven­tion of Cor­rup­tion (Amend­ment) Bill will be in­tro­duced in the mon­soon ses­sion of Par­lia­ment.

But even as the din amid the civil bu­reau­cracy grows and the Modi govern­ment seems to be cav­ing in to their de­mand to ex­punge Sec­tion 13(1)(d), a sig­nif­i­cant num­ber of con­trary voices within the IAS com­mu­nity have spo­ken out. Known to take tough po­si­tions, for­mer cab­i­net sec­re­tary T.S.R. Subra­ma­nian be­lieves di­lut­ing the law to pro­tect hon­est bu­reau­crats would mean open­ing a con­ve­nient win­dow for scores of cor­rupt of­fi­cers to slip through. “Gupta was hon­est but he had cer­tainly erred in be­ing neg­li­gent. He kept his eyes closed when the loot hap­pened. It was his duty to pro­tect na­tional in­ter­est. You have to be not just fi­nan­cially hon­est but in­tel­lec­tu­ally hon­est too,” Subra­ma­nian told in­dia to­day. Di­lut­ing the law, he says, would be a big blun­der that would sig­nif­i­cantly blunt the Modi govern­ment’s cam­paign against cor­rup­tion.

Subra­ma­nian bri­dles at the sug­ges­tion that de­ci­sion­mak­ing and de­liv­ery of gov­er­nance will slacken in the wake of Gupta’s con­vic­tion. “That’s hum­bug!” he ex­claims.

While this is clearly a mi­nor­ity opin­ion in bu­reau­cratic cir­cles, Subra­ma­nian is not alone. On May 22, Ashok Khemka, the Haryana cadre IAS of­fi­cer who hit the head­lines in 2012 af­ter he set aside a lu­cra­tive land deal be­tween a firm owned by Robert Vadra and realty ma­jor DLF, tweeted his re­sponse to Gupta’s con­vic­tion: “In­ac­tion abet­ting pub­lic cor­rup­tion is a so­ci­etal crime. Pub­lic ser­vants are pub­lic trus­tees.”

Widely known, and even frowned upon by some of his own ilk, for the great lengths he is will­ing to go to serve what he per­ceives as ‘pub­lic in­ter­est’, Khemka ve­he­mently dis­agrees with sug­ges­tions that the Act needs to be tin­kered with. “They (bu­reau­crats de­mand­ing amend­ments to the law) all want Sec­tion 13(1)(d), which holds ‘wil­ful in­ac­tion lead­ing to a crime’, to be scrapped. I sim­ply don’t buy that ar­gu­ment,” says Khemka. Cit­ing a hy­po­thet­i­cal in­stance of govern­ment premises that are in the care of an of­fi­cer, he asks: “Should (the of­fi­cer) be ab­solved and ac­quit­ted of any re­spon­si­bil­ity if the place is used for some crim­i­nal ac­tiv­ity, if he chooses to look the other way?”

Khemka also ques­tions how the ‘per­sonal in­tegrity’ and ‘hon­esty’ of spe­cific of­fi­cers (Gupta in this case) was be­ing held up to sug­gest that a trav­esty of jus­tice had oc­curred. “What’s this con­cept of per­sonal in­tegrity? What value does such in­tegrity have for the pub­lic?” he asks.

Sim­i­larly, many po­lice of­fi­cials are voic­ing sup­port for the Coal­gate con­vic­tions. Re­ject­ing con­tentions that Gupta was ‘in­no­cent’ since he did not per­son­ally or un­law­fully ben­e­fit from the wrong­ful coal block al­lo­ca­tion, se­nior IPS of­fi­cers in Ma­ha­rash­tra point out that the law does not re­quire a quid pro quo to be es­tab­lished.

“The law clearly says that if a govern­ment of­fi­cial’s ac­tion ben­e­fits some­one at the cost of pub­lic in­ter­est, he is li­able,” a se­nior po­lice of­fi­cer in Mum­bai says. “Whether Gupta made money or not is not the is­sue. His ac­tion led to loss of pub­lic money. That’s a crime.”

But in the wake of jail terms for Gupta and oth­ers on May 22, top govern­ment sources say cab­i­net sec­re­tary Pradeep Ku­mar Sinha will shortly con­vene a meet­ing with PMO of­fi­cials to de­lib­er­ate on the im­mi­nent amend­ments. The blocks for an amend­ment to the Pre­ven­tion of Cor­rup­tion Act may fi­nally be fall­ing in place.



BLACK MARK For­mer coal sec­re­tary H.C. Gupta at the Pa­tiala House Courts on May 22, the day of his con­vic­tion




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