Why does the IAS Association defend HC Gupta but not Ashok Khemka?

The fervent defence of former Coal Secretary HC Gupta seems to be taking India into dangerous waters.

India’s Prevention Of Corruption Act, 1988 should be amended, wrote Partha Sen Sharma, a serving Indian Administrative Service officer in The Times Of India on Tuesday, to “make it mandatory to prove pecuniary benefit to a civil servant before he can be implicated in criminal liability”.

Sharma is not the first person to articulate this demand. In the last two weeks, ever since the former coal secretary HC Gupta, currently under trial for his role in the captive coal block allocation scam, told the special CBI court that he wanted to withdraw his personal bond due to financial difficulties, a clutch of serving and retired IAS officials have said that a quid pro quo – a favour or advantage granted in return for something – needs to be established before a bureaucrat can be put up on trial.

Take former cabinet secretary BK Chaturvedi. In a column titled “Civil Servants Bear The Brunt Of Corrupt Governance”, a sentiment that India’s poorer millions would probably have sharp words about, Chaturvedi wrote: “Unless there is clear proof of mala fide decisions made by the officers and clear benefit received by them, criminality cannot be assigned.”

These are problematic suggestions. If accepted, they will result in a dramatic reduction of the bureaucracy’s accountability to the rest of the country.

The question of accountability

Let us now examine the case under question. From all accounts, Gupta is an honest and upright officer. But when the coal scam was underway, what was needed from him was more than personal incorruptibility. He needed to hold his responsibility to the country higher than what the functionaries in the Congress seemed to have been telling him to do.

This is a point that his defenders do not address. Take Sharma. Gupta is being hounded, argues Sharma, because of a draconian clause in the Prevention of Corruption Act. Its Section 13, he writes, “makes any civil servant criminally liable if his act leads to pecuniary benefit to anyone and which is deemed to be not in ‘public interest’”.

This, he says, is problematic because every allocation will “naturally benefit” someone. Also, as he says, notions of what constitutes public interest are subjective.

It is a disingenuous argument. It is obvious that an allocation will benefit someone. The question, as an IAS official told Scroll, on the condition of anonymity, is whether one can explain the rationale for that decision. That is why Gupta is in trouble.

The Screening Committee that Gupta headed disregarded its own internal comparisons of all the applicants, as a Central Bureau of India official had pointed out. Subsequently, as we know, several of the files pertaining to the allocations went missing as well.

In other words, Gupta is not in the dock because he made recommendations that benefitted some companies. He is in the dock because he cannot explain why those companies were chosen. He cannot explain those decisions because he is not the one who made those decisions to begin with. Politicians, especially from the ruling Congress Party, influenced the allocations, this reporter was repeatedly told while covering the coal scam.

The costs of the coal scam, as we know, have been spectacular. They go beyond the Rs 1.86 lakh crore loss calculated by the Comptroller and Auditor General of India or the fact that several of our politicians slipped coal blocks to their friends and families. The coal scam skewed competitive advantage in sectors like power and steel sector towards politically powerful companies that could bag coal blocks. Ownership over the country’s coal reserves got concentrated among a few business families. Given that several of these families also control other minerals, the coal scam helped push India closer to an oligarchic future.

In other words, Gupta is in trouble because he did not oppose what the government was doing. This shows in the charges filed against him. He has been charged for “criminal breach of trust by public servants”, and “criminal misconduct by public servants” of the Prevention of Corruption Act.

The larger question

When Chaturvedi and Sharma say bureaucrats should be held responsible only in cases where a quid pro quo can be established – that is, a favour or advantage can be shown to be granted to them in return for decisions taken – they are pushing a solution which would help every pliant bureaucrat who doesn’t uphold the larger public interest over what the government of the day tells them to do, as it would insulate them from structures of accountability.

This could be a police officer who accepts his home or chief minister’s order to not stop a riot, a bureaucrat who knowingly fudges air quality data, a mandarin who allows undeserving medical colleges to flourish, or whatever. As we know, the IAS has careerists in its administrative services as well as good officers.

Now, imagine an outcome where the government has to give its consent for prosecution of officers. It is hard to not remember Ashok Khemka at this point. Unlike Gupta, he challenged wrongdoing by his political masters in government repeatedly – and paid for it every single time.

It speaks volumes about the IAS Association that it is far more voluble on Gupta than it ever was on Khemka. And it speaks volumes about us that we fall for all this.