Newspaper reports indicate that a CBI court has found former coal secretary Harish Chandra Gupta guilty of corruption and criminal conspiracy in the allocation of a coal block. There are a large number of other cases waiting in the wings for his prosecution. All these imply some irregularity in allocation and Gupta, as chairman of a committee which used to look into these cases, is said to be responsible. This case raises certain critical issues of governance. Whether this will encourage officers to take decisions fearlessly is now debatable. It takes away the protection enjoyed by honest civil servants.
When we joined the civil service more than five decades back, many situations were discussed. A guiding principle was that if you are honest and act in a bonafide manner, there is nothing in our system which can cause you harm. The “mantra” of success was your acting in a bonafide fashion.
Later, as cabinet secretary, I had several occasions to address young officers. I tried to instill the philosophy of uprightness, fair play and honesty and argued that the government always protected bonafide actions. It is extremely worrisome that these guiding principles are now being torn to pieces and a new philosophy is emerging which does not distinguish between honest mistakes and criminal actions.
Gupta is considered one of the country’s most honest civil servants. He has been found guilty because there were some shortcomings in the application for the allotment of a coal block. All such allocations were made by an inter-ministerial committee in consultation with state governments. The block was allegedly given in violation of the prescribed procedures. All coal block allocations have, since then, been cancelled and allocations are now made through auctions.
There is no charge that he, or other civil servants also convicted in the case, got any advantage, benefit, money, property or financial gain or made any other gains, financial or non-financial. It is difficult to understand a corruption case in which a guilty person has received no benefits or even planned to get them. What sort of criminal conspiracy is this where you neither get any advantage nor expect any benefit and yet you are held guilty for conspiring?
Administrative systems all over the world are based on the ability of senior officers, leaders of teams, to take risks. Such leadership invariably focusses on outcomes with members of the team acting together to achieve results. At times, in taking such decisions, mistakes are made. In the normal course, these are reviewed and corrective action is taken. Even in the private sector, which many of us admire for delivering excellent results, some decisions don’t work out. Such mistakes are a part of governance structures. With this case, we are sending a clear message: “Do not take risks. Just focus on procedures.” It is a recipe for disaster in a developing economy.
In the 1950s, public investment used to be predominant with private investment lagging behind. The major driver of economic growth is now the private sector. In fact, in the 1990s, there were amendments in the coal act to permit the allocation of coal mines for captive use by private power, cement and steel units. Initially, there was not much demand. As the economy expanded, demand picked up. Private investments increased simultaneously. This required a larger number of approvals from the government for coal blocks, iron ore mines, land, water and environment.
It is necessary for the courts to interpret the law on corruption in a way that is consistent with these new economic realities. The courts must appreciate that bonafide mistakes do not constitute a criminal offence. Our courts have very often used the process of judicial review for public good. Many fundamental rights of citizens today flow out of a very positive interpretation of our “right to life” provided under Article 21 of the Constitution. In fact, the right to education as a fundamental right was first construed from that article.
The current law on corruption suffers from two major problems. First, it does not require mens rea to find public servants guilty. This is a major requirement in laws on corruption in most countries. This is also a part of the UN Convention against Corruption. Under section 13(1)(d)(iii) of the Prevention of Corruption Act, a public servant is guilty even if no advantage was asked for by him or accrues to him or there is no quid pro quo.
Second, the concept of public interest, in violation of which public servants are deemed guilty of corruption, is not defined in the act. If a decision is taken which has immense economic benefits for the nation but is not consistent with previously announced guidelines, how should that be treated?
With an expanding private sector, due to the large increase in economic activity, the possibility of mistakes by public servants has increased. Unless bonafide decision-making is protected, we may be promoting a culture of indecision — a supine civil service will be busy passing papers from one desk to the other.
Not taking decisions is more harmful than taking the wrong decisions. While the latter can be corrected and the country can then move on to the desired direction, indecision evokes the story of the donkey who is said to have sat on the vertex of an isosceles triangle and died of hunger while not able to decide the shorter route to the base where plenty of green grass was available. By punishing honest civil servants like Gupta, we may be promoting a civil service which shuffles files from one desk to the other with no outcomes. Our nation cannot afford this.