No immunity from prosecution

Special CBI Judge Bharat Parashar who is looking into the coal scam is a brave man. He is neither overawed by the status of those arraigned by him nor by the might of any investigating agency, including the formidable Central Bureau of Investigation (CBI), from whose conclusions he has now differed sharply. His place in history is assured, as he has dared to take cognisance of the offences alleged to have been >committed by the former Prime Minister, Dr. Manmohan Singh, in connection with the allocation of a coal block to a private company, Hindalco.

The others whom similar cognisance has been taken against are former Coal Secretary, P.C. Parakh, and Kumar Mangalam Birla, Chairman of the Aditya Birla Group, and the direct beneficiary of the award. The three have been accused of offences under the Indian Penal Code (IPC) and the Prevention of Corruption Act (PCA) 1988, making out both criminal conspiracy and breach of trust.

> Read: What’s the coal scam about?

Relevance of the CrPC

The judge’s decision comes after his rejection of two successive closure reports by the CBI in the case. It re-establishes the court’s prerogative to accept or turn down an investigator’s findings. As citizens, we should appreciate that this is the best safeguard we have against a tendentious and arbitrary criminal investigation that favours a ruling party. The latter has a vice-like grip over investigating agencies, both in the States and under the Centre (the CBI and the National Investigation Agency or NIA). It is an entirely different matter that the judge taking the position is also susceptible to both political pressure and a personal lack of integrity. Fortunately, such judges are an exception rather than the rule, especially in sensitive cases, such as the coal scam, where monitoring by the Supreme Court and the media’s hawk-like attention leave little room for judicial misconduct.

Relevant here is Section 319 of the Code of Criminal Procedure (CrPC) which gives the court enormous discretion to proceed against a person who may not have been cited by the investigating agency as being an accused. If after examination of the documents produced before him, the judge feels that there is an additional person against whom there is sufficient adverse material relevant to the case but has not been cited as an accused by the prosecution, the judge could direct him to face trial. Of course the latter will be given enough opportunity to defend himself, like the others charge sheeted by the investigating agency and who are already facing trial. This is how Dr. Singh has been caught in the Coalgate heat, much to his consternation and that of his supporters.

Majesty of the law

Dr. Singh and the Coal trail

  • March 2012 CAG’s draft report accuses govt of ‘inefficient’ allocation of coal blocks in 2004-2009; estimates windfall gains to allottees at Rs 10.7 lakh crore.

  • May 29, 2012 Prime Minister Manmohan Singh offers to give up his public life if found guilty in the scam. Two days later, CVC directs a CBI enquiry

  • November 25, 2014 CBI informs a special court that it was not permitted to question former Prime Minister Manmohan Singh. The investigating agency also said it wasn't necessary.

  • December 17, 2014 Special court ordered the CBI to examine former Prime Minister Manmohan Singh.

  • January 20, 2015 CBI records the statement of former Prime Minister Manmohan Singh.

  • March 11, 2015 Special court summons former Prime Minister Manmohan Singh, Kumar Mangalam Birla and P.C. Parakh as accused.

  • >Detailed timeline of the coal scam

The judge’s order also reaffirms the position that a Prime Minister — in office or outside — has no immunity from criminal prosecution. There are a few among Dr. Singh’s acolytes who are outraged that a former Prime Minister could be so taken to court to face trial. Their stand is preposterous and laughable. The majesty of the law can never get diminished, except under Army rule. Nobody is above the law, and Dr. Singh will have to go through the ordeal, at the end of which he may still emerge unscathed.

Some reactions to the judge’s direction to Dr. Singh to appear before him on April 8 are meant deliberately to obfuscate the issues. It is not the judge’s case that Dr. Singh was dishonest and had received a consideration for awarding the mine to Hindalco. None in his senses would allege that the former Prime Minister had received any illegal gratification. As against this are the several circumstances pertaining to the award that indicated that Dr. Singh and his office had shown undue interest in granting the coal block (Talabira II in the State of Odisha) to Hindalco. These included a personal meeting, on June 17, 2005, between Dr. Singh and Mr. Birla (as also a letter to the former from Mr. Birla), subsequent to which there was an alleged somersault from the earlier position that no mine will be awarded to a private company, and that it would be only to a public sector organisation, like the Neyveli Lignite Corporation (NLC), that would be preferred. This does not clinch the guilt of Dr. Singh, but certainly compounds the suspicion against him. It did not matter whether he was acting on his own or at the behest of someone else. The fact of the matter was that he was Coal Minister on that day, apart from being the Prime Minister.

> Read The Hindu's Editorial: Political price or personal liability?

Where the CBI erred

The cardinal mistake the CBI committed in the coal scam was its failure to question Dr. Singh. It was ridiculous that all CBI references were by name to both Mr. Parakh and Mr. Birla. When it came to Dr. Singh, he was being alluded to as a “Competent Authority”. Those who were or are in government knew that this was the Coal Minister and no one else. But still, there was an act of deception whereby the person with whom the buck stopped was being referred to only as a “Competent Authority”! We do not know whether Dr. Singh was not examined because of extraneous pressure or because the then Director of the CBI took the stand that this was not required. In either case, this was unconscionable. It is just possible that if he had been examined and a detailed statement recorded at the earliest point of time, Dr. Singh would have explained himself fully and the court could have been convinced of his non-culpability. The fact that the CBI examined him only after a court direction is indicative of a kid-glove treatment, something that possibly annoyed the judge and compelled him to take the rigid stand that he has now taken.

In my view, the key questions are: did the decision to award a block to Hindalco result in a loss to the public exchequer? Or, was it just a case of downright favouritism? Also, was Hindalco entitled to the allotment in preference to the others staking a claim for the particular block, and did this give them undue pecuniary advantage? In the final analysis, the judge will have to be convinced that there was no loss if he had to drop further proceedings either before he frames charges or after trial.

Proving one’s innocence

As Section 13(1)(d)(iii) of the PCA stands now, it is enough for the prosecution to prove that a public servant, while holding office acted “without public interest”, and obtained “for any person any valuable thing or pecuniary advantage.” In effect, this would mean causing wrongful loss to government and wrongful gain to another person. There is no need to establish mens rea (criminal intention) or a quid pro quo between the two. In effect the burden of proving his innocence falls on the accused, something gravely contrary to the English jurisprudence, which we have borrowed from the alien ruler. An amendment to the PCA to eliminate this highly questionable provision of law, which, on the face of it, is contrary to principles of natural justice, is still hanging fire. Therefore it is 13(1)(d)(iii) that could go grievously against Dr. Singh. All other factors are irrelevant, including his unassailable personal integrity and the fact that several Chief Ministers (including non-Congress) reportedly endorsed the then government’s policy of awarding public resources without resorting to the auction route.

The cardinal mistake the CBI committed in the coal scam was its failure to question Manmohan Singh ... The fact that the CBI examined him only after a court direction is indicative of a kid-glove treatment...

The former Prime Minister has several options. I will not be surprised if he does not show up at the Special Court on April 8 but goes on appeal to the Delhi High Court to challenge the cognisance taken against him by the special judge. He may also seek an exemption from appearance before the Special Court. If this happens we are likely to witness a prolonged court battle. In his arguments before the High Court, he may also point out that no sanction for prosecution had been obtained by the CBI as he was a public servant at the relevant time. Such sanction will certainly be needed for the IPC offences (and not for the PCA ones) alleged against him. It is believed that the CBI will have to address the President of India for obtaining sanction to prosecute Dr. Singh under the IPC. What we are talking of here is the President’s own application of mind, and not that of the Executive.

The added complication here is whether, as a sitting member of the Rajya Sabha, he gets the advantage of the CBI needing an additional sanction from the Chairman of that House, although the offence attributed to him was committed by him when he was a Prime Minister. In such an eventuality, there are several interesting possibilities.

(Dr. R.K. Raghavan is a former CBI Director.)

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