Guilty without guilt in IAS

H C Gupta's case tells us how the 'system' works to punish the non-corrupt. And if this is how it's going to be, who would risk taking a decision?

Does the name H.C. Gupta ring a bell? If it doesn’t, it means three things. One, that you haven’t been reading the newspapers carefully. Two, you don’t care for what fate befalls straightforward and honest public servants while the corrupt get away. And three, that you should then stop complaining that economic reforms run into bureaucratic roadblocks.

We know that H.C. Gupta is a common enough name. And no, he is no relation of mine. This is no ordinary H.C. Gupta. He is an IAS officer of the 1971 batch who rose to be Union coal secretary and has been convicted and given jail sentences in 11 out of 12 cases filed under the so-called coal mines allocation scam.

Four points need to be underlined. First, in none of the 11 cases where he’s been convicted has he been held guilty of having collected any financial or material benefit for himself, or of having any intention to commit a crime, or what lawyers call mens rea.

Two, in none of the 11 cases of mine allocation was he the final, or the main deciding authority. The decision was taken by a screening committee. So, if he’s guilty for having cleared an undeserving allocation, so is every member, and the prime minister then, Dr Manmohan Singh.

Three, that no disproportionate assets or wealth have been recovered from him. Anybody who knows him, or has met him, says they can see he has no money. In fact, he once said in the court that he’d have no choice but to plead guilty in all cases because he had no money left for lawyers.

And fourth, most importantly, unlike the usual — where peers and colleagues completely forget and abandon somebody caught and convicted for corruption — in his case they’ve not only spoken up, but also raised money for his legal defence. Because he, a retiree and pauperised at 74 now, has no money left.

How passionately they are speaking up for him, you can check out in this story by Moushumi Das Gupta. Those rallying for him include his batchmate and former chief election commissioner S.Y. Quraishi, his successor as coal secretary, Anil Swarup, and former heavy industries secretary Rajan Katoch. This, by the mostly self-serving, save-your-own-backside norms of our civil services, is truly unusual.

Quraishi also reminds us that Gupta was a brilliant officer with a spotless record, topper in his batch with a score of 600/600 in the subjects he chose.

This is a good week for us to take our minds back to the 2010-13 season of scandal-mongering that still casts a shadow on Indian politics. But who cares about politics, you might say. Politicians can look after themselves, or reap what they sow. Important thing is, it also cast a lingering curse on our economy.

How heavy this is, became evident early this month as the bids for 5G spectrum allocation were closed and paid. All of the auction netted less than Rs 1.5 lakh crore. The opposition was screaming right away reminding the BJP that the alleged loss from the 2007 2G spectrum auction was valued at Rs 1.76 lakh crore by their favourite national hero, or the Holy National Accountant Vinod Rai, in his storied CAG report.

If “this much” of mere 2G spectrum in 2007 could be worth Rs 1.76 lakh crore, how come “much more” of the 5G spectrum fetches less, 15 years later when the economy and telecom sector have both grown exponentially and the dollar costs about twice as much. There must be a scandal.

Of course, I’d stick my neck out and say no, there is no scam in this auction. This was clean, at least on the evidence thus far. Just that if there is no scam in this price discovered through a fair auction, isn’t there a scam in the value of a fraction of this asset being reckoned at much more in 2007?

What’s the price India’s telecom sector and economy paid for this wanton peddling of fictitious maths? And if it wasn’t fiction, where the hell is the money? This auction should have then fetched Rs 10 lakh crore.

Ten lakh crore? You must be out of your mind, you might tell me. But here is why I may not be so. In 2012, the era when the CAG would release its reports in press conferences rather than place them quietly in Parliament as the practice should be, it grandly announced — at a press conference of course — that it had unearthed a scam several times bigger than 2G.

The initial value put to the coal scam, or what was called ‘Coalgate’, was, hold your breath, Rs 10.7 lakh crore. That’s why it wouldn’t be unreasonable of me now to “notionally” value the 5G sale at Rs 10 lakh crore. What’s a few zeroes between friends? All you need is some audacious accounting.

The Supreme Court, the champion corruption fighter — which it hasn’t been since — jumped in, cancelled the mine allocations going back to 1993, announced fresh auctions at some point, and ordered CBI inquiries. It was in that maelstrom that H.C. Gupta, another IAS officer, K.S. Kropha, and some others were caught. For sure, the top politicians and beneficiary corporates mostly got away.

As it happened in almost all those “scams” in the heyday of the CAG, no money was recovered. In 2G, everybody was acquitted. Nobody’s yet been convicted for what was supposed to be a ‘Rs 75,000 crore scam’ in the Commonwealth Games of 2010.

The supposed scandal — I think one respected broadsheet valued it at Rs 9 lakh crore — in what was called the Antrix-Devas case, has led to zero recovery and a $1.2 billion international arbitration award against India. The ISRO chief who was accused of being responsible for irregularities in the deal was admitted into the BJP in 2018. You can call it the crowning insult to India’s good sense and national interest, or cherry on the cake, depending on your appetite for sarcasm.

It’s only in “Coalgate” that some convictions are taking place. And the victims are those at the lowest end of that decision-making chain. H.C. Gupta being the most prominent. Looking at his fate, which civil servant would now be so audacious as to sign a file for privatisation, or a major reform? Because, if you can be sent to jail and be robbed of your retirement and dignity for merely, at worst, making a bad decision, why take any decision in the first place? It’s safer to be some Sir Humphrey Appleby.

See it from H.C Gupta’s point of view. How does all of this matter to him? He now has 11, I repeat, 11 jail sentences on his head while the judges convicting him have been clear on one thing: That he made no money, drew no personal, unfair, illicit benefit. At worst, he made an error. More likely, he’s the easiest, the most convenient scapegoat.

The problem lies with the old Prevention of Corruption Act, made especially more draconian by successive governments including the UPA under the pressure of the Anna Movement. Section 13 (1)(d)(iii) of the Act said, with vicious (for the victim) ambiguity, that an officer can be held guilty if he/she “while holding public office as public servant, obtains for ANY (emphasis mine) person ANY valuable thing or pecuniary advantage without any public interest”. This means you could be guilty without guilt. This is precisely what’s happened to Gupta.

Following his early convictions, an alarmed IAS Association lobbied the Modi government and had the section rewritten in 2018. It now says the officer is guilty only if he intentionally enriches himself illicitly during the period of his office or if “he dishonestly or fraudulently misappropriated for his benefit” etc etc. This is fair.

Yet, in case after case, judges are convicting Gupta under the draconian old law. This is how the ‘system’ works. And if this indeed is the ‘system,’ why would an officer today sign a file for a PSU bank privatisation? That’s why we should stop fretting over bureaucratic roadblocks to reform. Would you find spending your retirement in Tihar such a fine prospect?