It’s a curious case indeed. In 2012, the central vigilance commission (CVC) received an anonymous complaint on coal block allocations, which it forwarded to the central bureau of investigation (CBI) as a matter of routine. A preliminary inquiry began. But after Common Cause, a Delhi-based NGO, filed a public interest litigation (PIL), the CBI registered an FIR and began investigations. In July 2014, the supreme court appointed additional sessions judge Bharat Parashar to preside over a special court set up exclusively to try cases related to the coal block allocation scam. Senior advocate RS Cheema was named special public prosecutor. A three-judge bench headed by the then CJI RM Lodha prodded on the trials, demanding that the authorities come out with notifications within two weeks and that the trials moved on a day-to-day basis. It said no court other than itself could intervene in matters related to Coalgate.

 

Gupta has been made an accused in 10 Coalgate cases. In all of them, the then prime minister Manmohan Singh (as coal minister) had approved allotment. Besides, in seven of these cases, the CBI found no evidence against Gupta and sought to close the cases. But in three cases, chargesheets were filed against him. The chief allegation is that he overlooked guidelines or procedural requirements. For now, Gupta remains out of jail; though he had chosen not to offer surety and seek bail, fellow bureaucrats filled in for him. 

 

“The basic argument is that, in his ex-officio capacity as chairman of the screening committee set up for recommending allocation of coal blocks to different private firms setting up power, cement or steel plants, Gupta failed to follow the prescribed guidelines, and that the responsibility for this rests squarely with him,” says Quraishi. “The screening committee, which Gupta chaired as coal secretary, had [representatives from] the administrative ministries, the state governments where coal blocks and end-use plants were located, and officials of the coal ministry, Coal India, technical experts, etc. as members. They were together responsible for providing all duly verified facts, along with their recommendations and opinions. There are various steps before it reaches the chairman. All that is part of the procedure and needs to be considered.”

 

Like Quraishi, many who vouch for Gupta’s honesty, say the screening committee was a recommendatory body, not a decision-making body. The recommendations of the committee were submitted to the coal minister for decision. The decision of the minister was then conveyed by the coal ministry to all concerned. Thereafter, the concerned state government, which had the actual right over the land where the blocks existed, leased the land to the concerned firms.

 

Another batchmate of Gupta and former home secretary, Madhukar Gupta, says, “There is no charge of personal gain or gratification or mens rea [guilty mind] in any case against Gupta. The fundamental point which clearly emerges from the analysis of the cases is that he is alleged to have not followed prescribed guidelines, and that the court seems to be taking the view that it is only the chairman who is responsible, not the members. I believe there were a number of people involved at different stages of decision making. Therefore, if the mistake has taken place in any way, then several people and layers should be taken into consideration.” Indeed, the judgment that convicted him last month says he’s guilty only of overlooking prescribed guidelines. There’s no money trail leading to him, nor is there documentary evidence of him gaining. The conviction is solely on circumstantial grounds.

However, Pranav Sachdeva, advocate for Common Cause, says: “The court had heard him in detail and Mr Gupta was well represented. The court found that he had abused his position to favour a private company. We will need to wait to see whether this finding is sustained by the high court or whether the argument of Mr Gupta is accepted that he did not act with any illegitimate motive. We have seen that in many corruption cases, there is no proof of direct bribery and conviction is often based on circumstantial evidence.”

 

The Central IAS Officers’ Association, in a rare move, has come forward to say that Gupta cannot be held responsible for something that involved many people at various levels before final allocation. Sanjay Bhoosreddy, honorary secretary of the Central IAS Officers’ Association, says, “There is a strong need to take a relook at the legal framework regarding prevention of corruption for the government servants so that they can work in a transparent manner without any fear. The legal framework in vogue is of the preliberalisation era. Post-liberalisation, in many ways, private investments are expected for the 21st century developmental agenda of the country. The existing legal regime will make the situation shaky for decision-makers, especially those who are on the verge of retirement, and this would lead to a policy paralysis.” He said the association would support Gupta and the other two convicted officers – KS Kropha, who was earlier in the coal ministry and is now chief secretary of Meghalaya, and KC samaria, who was a director in the coal ministry – because “whatever happened to them is very disturbing”.

 

Other serving officers say the relevant provisions do not envisage the constitution of a screening committee; its committee and the procedure framed for its conduct, arise from administrative decisions, violation of which cannot attract criminality. They say the major lapse alleged on part of the committee is that it failed to verify the facts presented by the layers below it – that is, the administrative ministries and state governments. In Gupta’s defence, they say the chairman had no means to verify these facts – nor was this the role of the chairman of any committee, they say. They offer the example of a 2002 case of allotment of petrol pumps and LPG distribution centres that came up before the supreme court. The allotments were made by dealer selection boards, chaired by retired high court judges and judicial officers; the allotments, in which malafide intent was alleged, were cancelled, but the chairpersons of the boards were not faulted for not verifying the facts. Nor was any criminal or administrative responsibility fixed on them.

 

Legal experts also say that all three cases related to Gupta arise from the decisions of three meetings of the committee, but are being treated as different cases. Gupta’s request that they be clubbed together was turned down. Plus, they say, if a public servant is to be prosecuted for corruption, the government’s sanction is required, which has not been obtained for the cases against Gupta.

 

Many retired and serving officers are of the opinion, that the provisions of section 13 (1) (d) of Prevention of Corruption Act, envisaging punishment even without mens rea and any personal gain, are fundamentally flawed and make all public servants liable for criminal prosecution. The provision is also against the UN Convention Against Corruption, 2005, to which India is a signatory. An amendment to this provision is already under consideration of parliament. The amendment should be effective retrospectively. 

 

Retired senior IAS officers feel that this situation has inevitably created a sense of injustice and despair in the mind of “totally honest officers” like Gupta. “Gupta’s integrity, competence and sense of what is right, combined with his innate morality, modesty and generosity, have made him a role model for many a public servant. This is the reason for the widespread sense of disbelief that a person like him could be placed in a position, which has driven him to take this extreme step of opting to go to jail,” says former home secretary Madhukar Gupta. At one point during the trials, HC Gupta had told the court he’d go to jail and defend himself from there, a decision the court asked him to reconsider; it also offered to arrange legal defence for him.

 

Quraishi says, “There is also a widely shared deep concern about the serious adverse impact of the case against Gupta on the governance of the country, as also on the morale of the public servants, many of whom have clearly said that if Gupta goes to jail, they would lose their faith in the entire system of governance. They have also expressed anxious concern that this would lead to a policy paralysis in the government.” Gupta’s cases come up for hearing in July. Airing concerns about the impact of this case, Niti Aayog CEO Amitabh Kant says, “His integrity and honesty was always talked about. All aspects and layers that led to this situation should be taken into consideration. Surely, conviction of retired officers will discourage the decision makers.”