The two judgements bear out the well-known adage that, often, courts are courts of law and not courts of justice.
These were scams that became a definitive byword for corruption in recent times—common people heard earth-shaking figures like “lakh crores” for the first time. The recent decisions by CBI courts in 2G and Coalgate are, therefore, disconcerting and raise a number of questions.
In the 2G case, the court has come to the shocking conclusion that there was no scam at all and no case had been made out against any of the accused. They have all been acquitted. The role of the CBI has come in for severe indictment. In the coal scam, the court has convicted almost all accused, including the former chief minister of Jharkhand and the then Union coal secretary. However, this judgement too raises a number of serious questions.
The two judgements bear out the well-known adage that, often, courts are courts of law and not courts of justice. While pursuing these criminal cases is important, equally crucial is to address the larger questions of accountability. Several key institutions were found wanting, and were devalued and eroded irreparably. Even if this sounds more abstract than black-and-white cases of crime, there is very good reason why these concerns must be addressed expeditiously.
Did the PM Know?
Former telecom minister A. Raja’s book, 2G Saga Unfolds, has added fuel to the fire. He has reiterated that he had kept then Prime Minister Manmohan Singh fully informed of the steps he was taking and at no stage had the PM objected.
Raja is also very strident in his criticism of then Comptroller and Auditor General Vinod Rai. “The possibility of a ‘conspiracy-nexus’ cannot be ruled out...I am certain that reports of auditors like Shriman Vinod Rai which I will show to be mere trash shall be unanimously deemed fit for the dustbin,” he writes. Also: “It is my contention that the sanctity of the C&AG was severely compromised by its then head Vinod Rai. Rai clearly had ulterior motives in overreaching the bounds of his constitutional function.”
Raja has challenged Rai for a public debate. Some political parties too have been fishing in troubled waters. I am glad Rai has maintained a dignified silence befitting the office he once occupied.
Despite Raja’s strident, self-righteous tone, I am not persuaded by his arguments. The 2G case brings out the worst of our public life—an unbelievable, total failure of governance, a shocking collapse of ethics.
Crony capitalism was brazenly at work from the beginning, via the assignment of cabinet portfolios. The Niira Radia tapes showed the extent of corporate influence exerted to ensure Raja was given this portfolio. Even a person of the stature of Ratan Tata had no qualms in urging the Supreme Court that his conversations with Radia not be made public and his right to privacy be protected! The apex court had found the Radia tapes “mind-boggling” but the CBI decided to close the case as no crime could be established!
The JPC Farce
Parliament, the highest forum of inquisition in a democracy, hardly lived up to expectations. The Public Accounts Committee (PAC) and Joint Parliamentary Committee (JPC) are key parliamentary instruments expected to function as non-partisan forums. Unfortunately, this has hardly ever happened. In the past, JPCs on Bofors and the bank scam were divided along party lines. The same thing happened in 2G.
Initially, the UPA opposed the demand for a JPC. When it finally came into being, it functioned entirely on party lines. The government made strenuous efforts to protect finance minister P. Chidambaram and the then PM and the demands to call them before the committee were turned down. Even officers from the PMO were not called to give evidence. Raja’s request to appear before the committee was rejected.
Sitaram Yechuri rightly stated in his dissenting note, “The role of the JPC is to assign political responsibility and to check if decisions are taken according to the policy.” The JPC clearly failed to do so.
Its final report elicited many stinging notes of dissent from opposition members. One went to the extent of describing the report as “perverse”. Another said, “It will go down in history as a complete farce.... Parties will have to think twice before demanding a JPC in future.” It was shocking to see certain portions of the dissenting notes being expunged by the JPC chairman with the approval of the Speaker. What an example to set in the age of freedom of information!
The role of the government’s highest law officers, the attorney general and solicitor general, was also controversial. The A-G’s advice during the Vajpayee government years that “public revenue is not synonymous with public interest” was conveniently misinterpreted to give undeserving concessions to the telecom industry and change over to a revenue-sharing regime. The only saving grace was that it was a cabinet decision.
This decision was used as a pretext by the UPA to continue the first-come-first-serve policy, non-auction of spectrum, freezing of entry fee etc. The role of Goolam Vahanawati, the then S-G, left much to be desired. His endorsement—“What is proposed is fair and reasonable. The press release makes for transparency. This seems to be in order”—was all the fig leaf they needed. When questioned in the JPC, his defence was ludicrous.
Coalition Karma
It is often accepted that India is now in the coalition era, but even after over two decades, no norms have been evolved to fix and distribute accountability for coalition regimes. The phrase ‘coalition dharma’, enunciated by A.B. Vajpayee, signifies, in reality, unprincipled and blatant compromises to hold on to power.
The PM’s position was weakened to such an extent during the UPA regime that Manmohan was clearly too diffident to assert his position while the 2G affair unfolded. Neither he nor his senior ministers Pranab Mukherjee and P. Chidambaram were prepared to insist on the rules of transaction of business being observed.
The government was certainly competent to decide if revenue should be foregone by fixing a lower entry fee or not insisting on auction of spectrum to ascertain its market-determined price, but such hidden subsidy had to be approved by the finance ministry and thereafter by the cabinet. In this case, then telecom minister Dayanidhi Maran insisted that spectrum pricing be taken out of the purview of the Group of Ministers and left to be decided by his ministry. The PM meekly agreed, though this was against the cabinet decision taken in 2003.
Whenever any points were raised by officers against actions proposed to be taken by Raja, his response was that the points were “out of context”. What context he meant only Raja knew! Shockingly, not even the prime minister dared to question him.
The most disturbing aspect of the two scams is the complete erosion of the prime minister’s office. In the 2G case, the PM wanted his office to be kept “at arm’s length” (or out of harm’s way?). What kind of democratic governance was that? Raja is right when he says he had kept the PM informed from time to time and his letters were routinely acknowledged by the PM. Rules of business were virtually waived—as if, under coalition arrangements, the telecom ministry was a DMK plaything.
Soot Boots
P.C. Parakh, former coal secretary, has in his book Crusader or Conspirator? Coalgate and Other Truths brought out how his efforts in 2004 to have a policy for auctioning coal blocks were stymied repeatedly by coal minister Shibu Soren and MoS Dasari Narayana Rao, and even the PMO. Parakh wrote: “Neither the industry nor the political system wanted a transparent and objective procedure. Every possible effort was made to delay the introduction of open bidding until all the fully explored good blocks had been allocated.” When Manmohan Singh held charge as coal minister, the proposal was indeed approved for being put up to the cabinet. But, as soon as Soren returned to the ministry, it was rejected and shelved.
Specific proposals for allotment of coal mines, recommended by the screening committee presided over by the coal secretary, were put up for approval and PM Manmohan, who then held the coal portfolio, approved them without demur. The CBI took the position that he was misled by the then coal secretary, Harish Gupta. This makes no sense. Manmohan Singh is not a run-of-the-mill politician. He is a technocrat with a doctorate in economics, who has held highly coveted posts like chief economic advisor, Planning Commission deputy chairman and RBI governor, and later ushered in liberalisation as finance minister. To suggest that such an erudite personage was misled by the secretary, coal, is ludicrous.
The CBI had filed an FIR against Parakh that was later quashed. Parakh has written that if the CBI director “was convinced that the Hindalco allocation was a conspiracy and had he the courage of conviction, he ought to have named the prime minister in the FIR.”
The CBI court has observed that due to pressures of work, the PM cannot be expected to have time to read all files closely. But the PM has a full-fledged secretariat to assist him, manned by a cabinet secretary-level officer, with two or three officers of the rank of secretaries, besides scores of senior officers. What were these officers doing when the files were put up for approval? Anyway, as Parakh’s book shows, when matters pertaining to open bidding were put up to the PM, they were scrutinised closely. In the pyramid of authority, the minister is highest. How can the minister (the PM holding additional charge in this case) not be held responsible?
The Lokpal Question
If we already had a Lokpal, and if the PM’s office had been brought under its jurisdiction, as I firmly believe it should be, perhaps these scams would not have taken place. Or at least responsibility would have been fixed for the grave lapses.
The way the Modi government has stonewalled and delayed the setting up of this vital institution is most distressing. Public opinion needs to be built up to force the government for early action on this front.
The million dollar question of how to reform the CBI also lingers. The “caged parrot” is still firmly under the Centre’s control and state governments remain as suspicious as ever of its misuse. The Supreme Court had sought suggestions on ways to grant it autonomy: all it got was deafening silence from both the UPA and now the NDA. No political party wants to let go of an instrument that allows it to wield “police powers”.
Depressingly, there seems no possibility in the near future of a free CBI. In the interim, I would suggest at least three urgent reforms:
** After retirement, the CBI director be made ineligible for any employment or office of profit under the central government.
** The CBI be brought under the RTI, with a stipulation that information pertaining to an ongoing investigation cannot be asked for and made available.
** The CBI be placed under the Central Vigilance Commission.
The coal scam has another disturbing feature. Then coal secretary Harish Gupta has been convicted for three years of rigorous imprisonment and a fine of Rs 1 lakh. He has been similarly charged in 10 other cases—all cases where he had presided over inter-ministerial screening committee meetings whose recommendations were then placed before the coal minister for approval. If the logic of conviction in the first case becomes the standard, Gupta will be in jail for the next 20-25 years. This when, in spite of vigorous efforts, the CBI has not been able to bring any evidence against Gupta’s integrity.
Looking at this case, several senior civil servants have pleaded that Section 13 of the Prevention of Corruption Act (PCA) should be amended. It is argued that Section 13(1)(d), envisaging punishment even without mens rea and any personal gain, are fundamentally flawed and make all public servants liable to criminal prosecution.
While I sympathise with the sentiment, any such amendment may be counter-productive and may weaken the war against corruption. The facts and circumstances relating to Gupta’s case, I believe, are exceptional. Coal mine allotments came out of unanimous recommendation of an inter-ministerial committee in which state government representatives were also present. The CBI should not have included Gupta’s name in the FIR. In fact, in some cases, his name was excluded but the court insisted on it being reinstated. I am sure the higher courts will intervene and overturn Gupta’s conviction and lay down appropriate law on the subject—perhaps departmental action for erroneous decisions, rather than criminal action.
Recall the scam involving the arbitrary allotment of petrol pumps during the Vajpayee regime. The anomaly: all allotments were cancelled but the chairmen of committees that recommended them were not held responsible in any way. Incidentally, all were retired high court judges. Similarly, the chairman of the Foreign Investment Promotion Board, who is ex-officio finance secretary, was never personally held responsible though the board had made favourable recommendations in highly controversial cases such as the Enron power project and Maxis-Aircel. The arc of culpability must always be wide enough to cover the highest responsible authority.
(The writer is former Union home secretary and secretary, justice.)