An unjustified conviction…

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2–3 days back Mr. HC Gupta, the then coal secretary, was convicted in the coal scam (http://timesofindia.indiatimes.com/india/coalgate-former-coal-secretary-2-other-ex-officials-get-2-years-jail/articleshow/58797541.cms). Secretary to Government of India is a very high post in bureaucracy, almost the highest. Since then there has been a visible outrage, specially in the bureaucratic circles and there is a sense that injustice has been carried out in this case. And why not. After all, he didn’t take any bribe in this scam. Even the CBI couldn’t find any charge against him in 7 of the 10 cases and even in remaining 3, no allegation of bribery was leveled against him. I think that is pretty amazing in this mother of all scams in India and speaks volumes about the honesty and integrity of the officer. Then he was just following the existing policy which had been confirmed by the PM. Once the PM says don’t auction coal blocks, allocate them for free, what can a secretary do but to follow the policy…

No he wasn’t convicted for ‘corruption’ in our usual understanding but was convicted for not doing due diligence i.e. for not checking whether the companies applying for coal were indeed genuine companies and that their claims in application forms were true. By twisting facts and bribing powers that be, these companies who were otherwise ineligible got coal blocks for free. In each decision he took while allocating the blocks, he was presented with facts about the companies by the lower downs and he took a decision based on those facts assuming they were correct. He was the coal secretary, it was not his job to verify if those facts were indeed correct. Coal secretary has a thousand things to do and he can’t be expected to verify the facts presented to him else decision making would become painfully slow. Isn’t convicting him, then, grossly unfair? There are also host of other reasons why it was unfair to convict him. Prosecuting government servants requires sanction from the government which was never taken in this case. This prosecution sanction is meant to precisely protect officers from undue harassment in cases like this. Also appeals from this trial are not possible, so his basic right of appeal also goes. And so on…

However, in my limited understanding, I think there are 2 major sources of grievances behind this sense of injustice here: a) That Mr. HC Gupta was convicted. b) That Mr. HC Gupta was convicted alone.

As far as the first grievance source goes, I agree with all the points made above. The case in his defense is very strong and indeed in any ‘normal’ case these facts would clearly have carried the day. In fact, in the current case also, a higher court may take note of these facts and reverse the decision of the lower court. However, let’s for a moment think from the point of view of a common citizen of the country. What happened in coal back then was not any ‘normal’ scam. Even if I discredit CAG’s numbers, certainly this was one of the biggest scams in the country’s history. Coal prices were skyrocketing during that time and everybody knew that thousands of crores of coal mines were being given away for free by the government to a select few. Big rent seeking activity and bribery was too obvious knowing our system. Can we, swearing on our consciences, really assume that Mr. HC Gupta didn’t know what was going on under the tables at that time? It is certainly wrong to convict officers armed with the power of hind sight but in this case, can we really really, from deep down our hearts say that Mr Gupta didn’t have an iota of idea about what was going on? Most certainly he was not a part of it, we agree he is a dead honest man. But didn’t he know what was going on? Well, honestly, the odds are hell against this presumption (that he didn’t know). And if he knew, he should have said NO. Given the scale of the loot which was going on, he should have verified at least some files. In usual cases we can’t expect coal secretary to do all this, but in a loot of this scale, yes he should have. The people of this country have created civil service so that people who are part of the service protect their interests. But if, at the moment of truth, we shut our eyes sacrificing public interest, then hell yes, we are responsible. It was the duty of Mr. Gupta to say NO to protect the public interest. He didn’t say it. Many others also didn’t say NO, but he too didn’t say it. From the point of view of the people, the buck must stop somewhere. Mr. Gupta may not have been the selector of the team, but he was the captain. Perhaps he feared being thrown out of the team, that is why he played along, perhaps something else may have been in his mind— whatever that is not important. What is important is that he didn’t say NO. He has not been convicted for following the policy duly approved by then PM, he has been convicted for not ensuring the required due diligence while following the policy duly approved. In normal cases he couldn’t have been expected to do this due diligence, but in this case yes and even without the benefit of hindsight, yes.

But should he be held liable alone which is the second source of our grievance? No, certainly not. As much as it was his responsibility to say NO at that time, it was also the responsibility of the then coal minister, the state governments, the people below him, the people who actually took and gave bribes. In this I totally share the grievance that injustice has been carried out and others have not been brought to justice for bribing or knowingly supplying wrong facts or for not doing due diligence or for shutting their eyes while this public loot was being organised. However, the same weaknesses in our system which allowed for that loot to happen at that time are still present. And the same weaknesses ensure that the high and mighty are not getting caught now. Only a weak helpless service and few of its officers are being made the scapegoats. The others should also be brought to justice otherwise its just ‘ardhnyay’… and as they said in mahabharata when Ashvathama died, ‘ardhsatya’ is worse than full lies… so is ardhnyay worse than full scale injustice.

In the sentiments expressed after the conviction, some said that steel frame of bureaucracy will die due to this decision. I agree with them that this decision is a doom for civil service. It will break the backbone. It can be misused in future cases arbitrarily. Decision making will become painfully slower and policy paralysis will become acute. However, I think the steel frame has died long ago when successors to an office started saying yes to the things for which their predecessors were shunted out for saying NO. What remains now is merely a largely rusted structure losing fast its will to not bend.

PS. I know its not easy to say NO. It sounds glamorous to read about others in newspapers and watching in movies. But when it happens to oneself it is a most painful experience.