Former coal secretary Harish Chandra Gupta has done well to tell the court that he would like to face trial from jail since he cannot afford a lawyer because, given his sterling reputation, he has focused the country’s attention on the harassment of bureaucrats for any decisions taken by them while in office. As FE has pointed out earlier in the case of the various charges leveled against Gupta, since the law did not allow for competitive bidding of mines at that time, the only way to get a mine was through government allotment – in which case, almost any decision taken would be subjective and was always open to be interpreted differently in hindsight. This leaves the bureaucrat open to charges of corruption and CBI charge-sheets in the manner Gupta has been, or in the manner Delhi chief minister Arvind Kejriwal filed an FIR against then oil minister Murli Deora and Reliance Industries chairman Mukesh Ambani for the government’s decision to hike gas prices. Which is why, Niti Aayog CEO Amitabh Kant has come out in Gupta’s favour and said that genuine errors in commercial decision-making have to be decriminalized; others have expressed a fear that penalizing bureaucrats, serving or retired, will lead to policy paralysis with few wanting to take a decision that could one day lead to them staring at the prospect of going to jail.
The government has done well to not just push the changes in the Prevention of Corruption Act (PCA), but also to add the provision that before a police officer can conduct any investigation into any bureaucrat’s decision, permission will have to be sought from the relevant authority since even the starting of an investigation causes severe damage to reputation – right now, while an investigation can be started without any prior approval, the sanction to prosecution requires this. The Rajya Sabha Select Committee whose report on the PCA came out on the last day of the previous session has agreed with this provision.
None of this means corrupt officials will be allowed to get away, all that it means is that a call will be taken at a higher level as to whether the bureaucrat’s decision was just wrong/incorrect – as any decision can appear in retrospect – or whether it was done for a bribe. Since the PCA says that an officer who has assets disproportionate to his/her income ‘shall be presumed to have intentionally enriched himself illicitly’, this will itself ensure corrupt officials are both investigated and prosecuted. What will happen under the new PCA is that the CBI/police will have to present prima facie evidence that will be examined by a committee which will decide whether or not to give sanction to investigate – it has been suggested that this could comprise the CVC and the secretary of a department for an officer below the rank of a secretary, and the CVC and the Cabinet Secretary for a secretary-level officer as per the Lokpal/Lokayukta Acts. As for HC Gupta-type cases in the future, the PCA plans to extend this protection to retired officials for decisions taken while they were in service. Gupta himself will get no relief since the PCA will be prospective, so the only hope lies in some senior counsel – in keeping with Gupta’s stature – offering to fight his case pro bono.