The curious case of HC Gupta

When the British left this country they took justice with them and left behind laws, in-laws and outlaws. 

Former Coal Secretary Harish Chandra Gupta’s is a curious case of someone being convicted of a purported offence that is not an offence under the current provisions of law. 

Even if it treated as offence, there is no evidence of any pecuniary benefit to him or any other form of quid pro quo. Yet, he and a few other officers have been convicted.

The conviction of Harish Chandra Gupta and a few other IAS officers in the so-called “coal scam” case has created unprecedented outrage amongst the civil servants. 

Amitabh Pandey, another retired officer, has correctly stated, “Never before in its history has the Indian Administrative Service (IAS) witnessed a perversion of justice as has been evidenced in the conviction of H C Gupta……..He is not just another retired civil servant, but an icon who represents the gold standard for rectitude and probity in public service.”

All the officers convicted in this case have unimpeachable reputations. Someone of the stature of S Y Quraishi, former Chief Election Commissioner, has gone on to describe Gupta as “one of the most honest officers”. 

These officers had committed no “crime” and the law under which they have been convicted had been amended to do away with the “injustice” inherent in the provision of Section 13(1) (d) (ii) of the Prevention of Corruption Act.

This provision was not originally a part of the Act, but was introduced subsequently through an amendment. The crisis actually is an outcome of this provision that does not exist in law anymore. The provision stipulates that if a private party gets a benefit that is not in public interest, a civil servant could be held liable even if there was no evidence of quid pro quo or mala fide. 

Ironically, in some of the judgments, it has been clearly brought out that the charge of personal benefit has not been levelled against Harish Gupta; neither is there any evidence available to this effect. Yet Gupta and the officers have been pronounced guilty.

It all started with the hype created around the CAG report that dumped the coal block allocations and the subsequent intervention of the Supreme Court. Posterity will determine whether it was actually a “scam” of the scale it was made out to be or a “tsunami” that swept the good, the bad and the ugly. 

Now, let us understand whether it was a “crime” at all. Certain sets of “facts” and documents came before a committee that was chaired by Gupta. Some of the documents provided incorrect information. These errors were not apparent on the face of the record. The committee, accordingly, made recommendations. These recommendations were accepted at an “appropriate level”. This “appropriate level”, the decision-making authority, was privy to the same set of information that the committee headed by Gupta had. All this raises a few questions that need urgent answers.

Was it practically possible to verify all the facts that came before the committee? Won’t the administration come to a grinding halt if all Committees of the government start verifying the facts that come before them? 

If, for the sake of argument, Gupta and other two officers are held liable, why shouldn’t the other members of the Committee be held equally liable? Why shouldn’t the “appropriate level” that took the final decision be also held liable?

The British Northcote-Trevelyan Report published in 1854 - on the basis of which the Indian Civil Service (ICS) of pre-independent India, and its successor, the Indian Administrative Service is governed - clearly states that “politicians are elected and must, therefore, take decisions. Civil servants must remain anonymous in the sense that they should not be held publicly accountable for their advice or policy “. Can the politician, therefore, ‘hide’ behind a recommendation of a civil servant?

The civil service performs a critical role in delivery of services. Despite being castigated and pilloried, it has done well in a number of spheres. There are many performers in the bureaucracy and, more often than not, their efforts go unrecognised.  

However, like any other segment of the society, civil service too has its share of those that prefer not to stick their necks out. Such developments will only induce many more of them to “play safe”.

The decision will impact decision- making. Officers will be averse to expressing their views on the files. This is already in evidence in a number of departments of the government. The consequences could be grievous. Governance is suffering and could become worse on account of the sense of insecurity that such developments convey. It is hoped the amendment to the Prevention of Corruption Act will take care of recurrence of such developments.

Author is a former Union Secretary