The travails of HC Gupta: when law fails to protect the honest

Gupta's track record

It is a curious case all right. By all contemporary accounts, Gupta was known for his sterling honesty and simple lifestyle, and had an outstanding track record of service.

While serving as secretary to the Government of India nearly 10 years ago, he made recommendations on coal block allocations, on the basis of which the government took the final decision. There was no apparent criminal intent or mala fide on his part, nor is there even an allegation of quid pro quo in the charges against him.

Regardless of whether, in hindsight, the decisions made in these cases were perceived to be right or wrong, if the recommendations were made by him in good faith, in an official capacity, without any personal considerations or gains, why then is he being arraigned and prosecuted?

Something is clearly not right in what is happening. And if it is happening to him, it can happen to other honest officers as well.

The troublesome section

Is Gupta the victim of the overzealousness of the CBI officers investigating the case? There is some resentment among the senior bureaucracy over what is perceived to be the targeting and heavy-handedness in the investigations against senior officers in cases under the PC Act, in particular Section 13 (1)(d)(iii) of the Act.

This may be so in some cases, but if we look at it from the perspective of the investigating agency, it is tasked with implementing the law as it stands, and implementing it without fear or favour. Investigating officers, by and large, try to do their duty in implementing the law. Unfortunately, it is the law itself that permits such situations to occur - and that is the real issue!

Others have commented upon the ambiguity of the provisions of Section 13(1) (d) (iii) and the absurdity of its application in cases involving economic decision-making.

It is still worth reiterating the provision, which is part of a sub-section that defines criminal misconduct. As per Section 13(1)(d)(iii), a public servant is said to have committed the offence of criminal misconduct, if he, "while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest".

Notably, it is not necessary under this provision for the public servant to have had criminal intent and have personally benefitted (quid pro quo) from the decision.

Implications of the section

What is the implication of this, and how can it be applied? Public servants working at senior levels, particularly in economic ministries, dealing with policies and programmes affecting the private sector, have to make recommendations or take decisions on various matters from time to time in the public interest as part of their official duties.

Any policy/recommendation/decision will inevitably benefit some entities and adversely affect some entities. Whosoever is benefited by the action of the public servant has, in the language of the provision, is deemed to have obtained a "valuable thing or pecuniary advantage!"

There remains the question of whether the recommendation/decision was with or without any public interest. In the application of the provision, the reasoning and assessment in hindsight, usually many years after the event, of the investigating officer and the courts on whether there was or was not any public interest, tends to prevail over the reasoning and best assessment of the responsible officer on the spot at the time.

For the public servant whose actions come under such scrutiny under this provision, it is a lose-lose sitatuon, because her/his bona fides and the absence of quid pro quo do not matter! Which decision will be called into question and investigated, and for what reason, s/he cannot guess.

Once mala fide and personal gain are taken out of the picture as essential elements of criminality in such cases, there will be a tendency, as often as not, for the straightforward and decisive officers, who thought they were only doing their job sincerely, to be dragged into the net of criminal investigation. Cases like those of PC Parakh and Shyamal Ghosh come to mind.

Govt protects, court rejects

Why this provision at all? There is a history to it. Put briefly, it has been driven by public interest litigations and backed by activist court judgements that seem to regard the higher echelons of the government with suspicion.

In the past, the government has tried to temper the provisions to protect honest officers at decision-making levels, and prevent extreme cases such as this by the so-called "single directive", which provided for prior sanction of the government to be taken before commencing investigations in the case of senior officers of the rank of joint secretary and above.

This "directive" has been struck down by the courts twice; most recently the related laws were held unconstitutional and violative of the Right to Equality by the Supreme Court in May 2014. Currently, no single directive exists. A similar provision providing for prior sanction of the Chief Justice before commencement of investigation of cases relating to corruption against judges, however, remains!

A Bill to amend the PC Act was introduced in 2013, to make the penal provisions more stringent, and tighten up the definition of corruption, including that of criminal misconduct. It has not been simple to reach a consensus on the issues. The Bill is currently before a Select Committee of the Rajya Sabha. There the matter rests.

Why India needs a better law today

This is not just an issue of concern for the bureaucracy. It is an issue that has much larger implications.

The government has a vibrant economic agenda, with initiatives to spur manufacturing, investment and growth such as Make in India and the ease of doing business, which require the government to formulate policy and work with the private sector.

For these initiatives to succeed and deliver results, we need to remove the ever-present fear in the minds of senior officers that any economic decision taken by them in which there are gainers and losers could be second-guessed many years later and make them the targets of investigative action and prosecution much after they have retired from service.

We need to think of HC Gupta and his travails, and wonder why, as he is wondering why, honest officers are prosecuted and not protected.

And we need to ensure that a just law comes into force so that there are no more HC Gupta-like cases in future.

Edited by Shreyas Sharma

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