Updated: August 25, 2016 3:07:21 am
When there is no element of criminality, how does a public servant defend a governmental decision in a criminal court? There is no apparent evidence in the chargesheets filed against Harish Gupta of “quid pro quo”, mens rea (criminal intent) or meeting of minds to commit an illegal act to make his decisions a criminal offence. In seven cases, the CBI found no evidence of criminality, the special court then ordered re-investigation and the CBI, again, did not find evidence against Gupta. Subsequently, the court charged him and other civil servants with criminal conspiracy, misconduct and corruption. The CBI has then raised issues related to non-adherence with guidelines in other cases.
The Supreme Court has held that guidelines are not binding and are not law, therefore, whether they were followed should be reviewed under procedures within the government, not by the CBI or a criminal court.
In a similar case relating to the allocation of a coal block by Manmohan Singh , as coal minister, on the recommendation of P.C. Parakh, secretary coal, the issue of summons has been stayed by the Supreme Court on the basis of three legal issues. First, whether a public servant could be prosecuted for criminal conspiracy, misconduct and corruption charges when “there is not even a whiff, let alone an allegation, of quid pro quo”? Second, whether mens rea was no longer a requirement under the law to prosecute a public servant under Section 13 of the Prevention of Corruption Act? Third, how can administrative decisions be part of a criminal conspiracy? These questions fully apply to the case of Harish Gupta.
The substantive issue relates to the nature of governmental decision-making. Singh explained the allocation of mines as a “governmental decision” taken in the public interest as part of the country’s liberalisation process. He said, “the exercise of balancing the needs of the public as well as the private sector in the larger public interest is complex and final solutions emerge by responding to the concerns of all stakeholders involved”.
Public interest is the most used and least defined term in public administration. The Australian senate committee on constitutional and legal affairs described public interest as “aggregating any number of interests that may bear upon a disputed question that is of general — as opposed to merely private — concern”.
Exercising discretionary power in any particular case is not a mathematical proposition. In the allocation of mines, the sectoral ministry, the states where mines are located and the states where end-use projects are planned, can have different, but equally valid views on what constitutes the public interest. Gupta, as chairman of the screening committee, was tasked with arriving at a unanimous decision. Out of around 1,400 applications, the 100-odd allocations were all unanimous decisions, which is the critical element of “due process” for such decisions. This is what a secretary to the government does in every decision and is considered to be acting in the public interest.
Two other issues stand in the way of justice for Harish Gupta. The Supreme Court, in the case Dr Subramanian Swamy vs Dr Manmohan Singh & Anr, 31 January, 2012, has observed that “it is not the province of the court at that stage of taking cognisance of a case to embark upon and sift the evidence to come to the conclusion whether or not an offence has been made out”. In the case of Gupta, contrary to the observations of the Supreme Court, the trial court came to a prima facie finding which was not based on the investigation and framed charges against public servants.
The second issue relates to the protection for taking honest decisions. The government’s stand is that there is a need for independent review and prosecution sanction as “it is the administrative ministry which has the best domain knowledge to take a clear view on the involvement of an officer in any given set of circumstances.” Inexplicably, this protection is not available to retired public servants.
Justice for Harish Gupta requires the government to review the chargesheets for any evidence of criminality, and if there is none, recognise he acted in the public interest, defend him at government cost and get him the same relief the Supreme Court has given to P.C. Parakh, who was Gupta’s immediate predecessor. This will also be the essential signal the bureaucracy is waiting for in order to take the hard decisions needed for India to be a $10 trillion economy.
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