Instilling accountability in the Bu

Start music   Aug 29 2016 || 11:33 PM

The accusations leveled against the civil servant, Mr.H.C. Gupta, the former  coal secretary, must be given due attention, especially by civil service aspirants, as there lies a lesson within the case that we need to take home.

Mr.H.C. Gupta is the former Union Coal Secretary, who is facing trial in several Coalgate cases or coal allocation scam, which is a major political scandal concerning the Indian government's allocation of the nation's coal deposits to public sector entities (PSEs) and private companies.

In the upcoming trial he has chosen not to hire a lawyer and also, declined the offer of state aid made by the judge and has decided to argue his own case, being thoroughly convinced of his guiltlessness. He is only partly right.

The formal charge sheet against him by the CBI do not allege that he ever obtained any gratification for showing favor to the private companies that had received licenses to operate a few coal

mines. The charge sheet indicts him only as part of a ‘conspiracy’ to confer undue favor on private parties, and which caused loss to the public exchequer.

This implied that he was negligent, and there was no application of mind on his part when the screening committee headed by him decided to examine the license applications in question. There is no recorded evidence, however, that he dissented from the majority opinion which favored the grant of licenses to some firms.

The Prevention of Corruption Act, 1947 and its lacunae:

The Supreme Court observed in M. Narayanan Nambiar v. State of Kerala case that, “Under Section 5(1) (d) of the 1947 Act, an ‘element of abuse of office’ was a necessary ingredient while trying to establish that a public servant used corrupt or illegal means to obtain monetary benefits. And ‘abuse of office’ was too vague an expression that let many corrupt officers off the hook. 

Moreover, the belief that as long as they were not beneficiaries to corruption no criminal liability was liable to be attached to them, led some officers to give in too easily to corrupt demands from above.

The Prevention of Corruption Act, 1988

To penalize this kind of encouragement, the government decided to enact the Prevention of Corruption Act, 1988, especially Section 13(1) (d) (iii), according to which, a public servant commits the offence of criminal misconduct if he, “while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest”.

The criticism leveled against this section was on the ground that the burden of proof in criminal cases, which normally rests with the prosecution, shifts here to the public servant who stands accused by law, and the latter had to prove to the satisfaction of the court that he did not at all benefit from the transaction under probe. This criticism is not true, although a glance at it appears as if the prosecution had no responsibility at all to establish the guilt of an accused.

Several decisions related to the 1947 Act and expert views on the 1988 Act clarify that court presumption of any accuser’s guilt contemplated here is not automatic. Such presumption follows only after the prosecution had done its duty of presenting evidence that the accused had “obtained or (has) agreed to obtain for himself or for any other person gratification (other than legal remuneration)”.

Also, Section 20 of the 1988 Act, which deals with the circumstances under which a court can raise a presumption against an accused, is specific to habitual offenders and not to others. These interpretations alone should allay the misgivings and fears of an honest civil servant that he would be hauled up for transparent decisions which stand the risk of going wrong and causing loss to the exchequer.

Amendment before Parliament

An amendment to the PC Act of 1988 is before a select committee in Parliament. It deals with Section 13(1) (d). It is just possible that this subsection may be eventually substantially diluted or wholly deleted. If this happens, the logical question would be one of how to introduce deterrence against a civil servant who, though honest, would like to just drift and permit him to cave in against a dishonest Minister.

This is a serious issue that negates the basic concept of civil service accountability. This would actually promote the tendency of the executive to choose weak civil servants who may be personally honest but are known to be extremely timid, and from whom no resistance at all to dishonest decisions could be expected.

When this is the hard reality on the ground, concerned citizens would do well to collectively protest against any dilution of anti-corruption safeguards as the proposed amendment seeks to do.

 

Source: The Hindu