Weighing the burden of proof

“An honest civil servant should not be harassed by anybody or agency or institution while in service or after retirement. It would make the civil servants working in the system nervous and edgy, which would not be in the interest of the country,” Sanjay Bhoosreddy, Honorary Secretary of the Central IAS Officers Association has said.

Ponderous words indeed in the context of former Union Coal Secretary H.C. Gupta, who is facing trial in several Coalgate cases, choosing not to have any lawyer to defend him. Mr. Gupta told the trial judge recently that he did not have the money to hire a lawyer. He also turned down an offer of state aid made by the judge. In all likelihood, he will argue his own case. This is an extraordinary decision that could prove to be a double-edged weapon. The skill required to defend an accused in a criminal case is a specialised one. In my view, Mr. Gupta is taking too big a chance out of desperation and disgust at the way things are taking shape around him.

Appeal to good senses

Mr. Gupta is obviously outraged at the Central Bureau of Investigation (CBI) action. He probably understands that the law on the subject is against him, and he would therefore appeal directly to the good senses of the judge, something bordering on an attempt to play on emotions. Not for him the technicalities of what he is accused of. In his own eyes, he has done nothing wrong, and cannot be placed in the company of the corrupt and wily. He is only partly right.

Many in government and outside may dismiss him as a maverick. From whatever I have heard of him, Mr. Gupta was an outstanding officer with a reputation for integrity. Remember also that the formal charge sheet against him by the CBI do not allege that he ever obtained any gratification for showing favour to the private companies that had received licences to operate a few coal mines. The charge sheet indicts him only as part of a ‘conspiracy’ to confer undue favour on private parties, and which caused loss to the public exchequer. This implied that he was negligent, and there was no application of mind on his part when the screening committee headed by him decided to examine the licence applications in question. There is no recorded evidence, however, that he dissented from the majority opinion which favoured the grant of licences to some firms.

The conclusions of his committee were purely recommendatory in nature. That the final authority here was the Coal Minister, who, at that point of time, was Prime Minister Manmohan Singh, and that he was not prosecuted by the investigating agency, is not very relevant to Mr. Gupta’s defence — although the CBI decision, possibly backed by legal opinion, smacked of double standards. Remember, in Bofors, Prime Minister Rajiv Gandhi figured posthumously in the charge sheet as ‘accused not sent for trial’ only because he held charge of Defence. There was no charge that Bofors made any payment to him. Interestingly, what many of us would look upon as a moral or constructive civil liability comes to be defined as ‘criminal misconduct’ under the Prevention of Corruption Act, 1988, which was enacted to lend more deterrence to what was being considered for long as a weak and toothless — the 1947 law against public servant corruption.

Element of ‘abuse of office’

Several judgments over the years had exposed the lacunae in the 1947 Act, which enabled the corrupt to get off scot-free on being given a benefit of the doubt. Significant was the Supreme Court observation in M. Narayanan Nambiar v. State of Kerala , that under Section 5(1) (d) of the 1947 Act, an element of abuse of office was a necessary ingredient while trying to establish that a public servant used corrupt or illegal means to obtain pecuniary benefits. And ‘abuse of office’ was too vague an expression that let many corrupt officers off the hook. In several other judgments on the subject, courts had narrowed down the circumstances under which a public servant could be prosecuted for corruption. This is the background to the promulgation of the 1988 Act, which, under Section 13(1) (d), laid down five forms of criminal misconduct by a public servant. Finding that some officers were giving in too easily to corrupt demands from above — and did not do anything to resist such demands under the belief that as long as they were not beneficiaries, no criminal liability was liable to be attached to them — the government decided that such kind of abetment of graft in high places had to be penalised. This accounts specifically for Section 13(1) (d) (iii), according to which, a public servant commits 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”.

The tirade of the IAS and several senior servants belonging to other superior services against Section 13(1) (d) (iii) is on the ground that the burden of proof in criminal cases, which normally rests with the prosecution, shifts here to the public servant arraigned by law, and the latter had to prove to the satisfaction of the court that he did not at all benefit from the transaction under probe. This incidentally is germane to the defence of H.C. Gupta. This criticism is not true, although on a superficial reading it appears as if the prosecution had no responsibility at all to establish the guilt of an accused.

Several decisions related to the 1947 Act and expert views on the 1988 Act clarify that court presumption of any accused’s guilt contemplated here is not automatic. Such presumption follows only after the prosecution had done its duty of presenting evidence that the accused had “obtained or (has) agreed to obtain for himself or for any other person gratification (other than legal remuneration)”. Also, Section 20 of the 1988 Act, which deals with the circumstances under which a court can raise a presumption against an accused is specific to habitual offenders and not to others. Besides, the presumption is one of law and not facts. These interpretations alone should allay the misgivings and fears of an honest civil servant that he would be hauled up for transparent decisions which stand the risk of going wrong and causing loss to the exchequer.

Amendment before Parliament

An amendment to the PC Act of 1988 is before a select committee in Parliament. It deals with Section 13(1) (d). It is just possible that this subsection may be eventually substantially diluted or wholly deleted. If this happens, the logical question would be one of how to introduce deterrence against a civil servant who, though honest, would like to just drift and permit himself to cave in against a dishonest Minister. This is a serious issue that negates the basic concept of civil service accountability. This would actually promote the tendency of the executive to choose weak civil servants who may be personally honest but are known to be extremely timid, and from whom no resistance at all to dishonest decisions could be expected. The malady is particularly prevalent in some States where dishonesty is the order of the day.

The popular impression now is that in our country there is no fear of the anti-corruption law on the part of government officials. When this is the hard reality on the ground, concerned citizens would do well to collectively protest against any dilution of anti-corruption safeguards as the proposed amendment seeks to do.

A final word. What is the IAS Officers Association doing to promote integrity among its members? I would like to ask the same question of those holding positions in other associations, such as those for the IPS and IFS. Such groups cannot be mere trade unions fighting for rights. Their obligations include a stout advocacy of adherence by their members to ethics while serving the public. Whatever I hear on the subject may not however be music to the ears of those who currently stand for probity.

R.K. Raghavan is a former CBI Director.

There is enough in the law to allay the fears of an honest civil servant that he would be hauled up for transparent decisions which risk going wrong

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