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Former coal secretary HC Gupta's conviction will lead to bureaucratic paralysis. Here is why
Why decision-making may soon grind to a halt in India's bureaucratic corridors
Over the years, our judiciary has handed out many landmark judgements. Its proactive approach has often raised eyebrows but the fact is that many path breaking decisions have been possible only because of this forward-looking approach.
It was this bold approach through which the Supreme Court directed that natural resources should be disposed of through public auction alone. This single judgement has severely choked all manipulations at the level of politicians and bureaucrats in many fields. Crores of rupees have been added to the State exchequer as a result of this mandate of Justice GS Singhvi.
But sometimes, perhaps unknowingly, some judgements can lead to unexpectedly disastrous consequences. The recent conviction by the CBI Court of former coal secretary HC Gupta has stirred up a debate. Rarely does a single judgement of a court have such farreaching consequences.
Gupta has been an officer of unimpeachable integrity. No less than two former cabinet secretaries, Naresh Chandra and TSR Subramanian, through newspaper articles, have put on record their appreciation of Gupta's high integrity. Rarely have I seen former cabinet secretaries writing articles to defend an officer.
Facing Consequences
But what went wrong? Perhaps the justice delivery system failed to appreciate the bureaucratic functioning. Administrative decisions are not mathematical solutions, where two plus two will always be four. A computer would always give the same answer but different bureaucrats need not take identical decisions in similar situations. In a given situation, widely divergent decisions may be taken by different officers.
There is no guarantee that every decision of a bureaucrat has to be invariably correct. Just as judges can go wrong, the chances of bureaucrats going wrong are greater. Even in the SC, many a times, five judges have delivered the majority judgement while the four judges on the bench have delivered dissenting judgments. Can it be said that the minority view was necessarily wrong?
Merely taking a different view, where another view was possible, cannot and should not attract criminal prosecution. One cannot be judgmental about every action of a bureaucrat but, assuming that he has gone wrong, should that automatically attract criminal liability? The answer is an emphatic no. But at the same time, bureaucrats cannot be given a blank cheque to indulge in reckless and flawed decisions.
A Lakshman Rekha has to be drawn. Our entire criminal jurisprudence is based on the concept of mens rea, that is guilty intention. If there is guilty intention, then certainly he or she should face the consequences. If he has directly or indirectly gained anything from such an act, he deserves to be punished ¡X but if there is no guilty intention, then he should not be subjected to criminal proceedings.
There are ample provisions for penalising a civil servant, where any wrong has been consciously committed. In a large number of cases, civil servants have faced the punishment of even dismissal from service for violation of conduct. Many officers are also compulsorily retired every year. Miscarriage of Justice
In an environment thick with large-scale corruption and the all-pervasive perception of an unholy nexus between the bureaucrats and the politicians in collusive corrupt practices, the courts cannot be mute spectators. They have to come down heavily to curb the widespread malaise. But, in this mission, the basic concept of criminal law - mens rea - should always be the guiding principle.
The definition in Prevention of Corruption Act may not be so happily worded and that is why there is a proposal to amend it. Even if there is no undue gain to the civil servant, he can be held liable under this Act. The basic concept of mens rea should be uppermost in the mind of a judge while dealing with any criminal case. The concept of mens rea transcends all other legal provisions in criminal jurisprudence. Inspite of all the precautions, miscarriage of justice is not unknown in our judicial system. But this is not an individual case. The reverberations of this judgment have gone far and wide.
The entire decision-making process at the bureaucratic level has come to a halt. Even in the normal course, leaving aside some honourable exceptions, the Indian bureaucracy in general, does not enjoy the reputation of fast decision-making. Red tape is the rule rather than the exception. But, after this judgment, bureaucracy will be virtually paralysed. However result-oriented an officer may be, he will think thrice before taking a decision. Decisions will be deferred on one pretext or the other. Consequently, the public will suffer. Civil servants will promptly act if the action involves loss or damage to anyone but they will avoid an action that leads to a gain or relief, however just and fair his claim may be.
However dynamic the political leadership may be, it cannot deliver the goods with a paralysed bureaucracy. If the civil servants are perpetually haunted by prospects of criminal proceedings, they are clever enough to avoid decisions, without saying so. Our economy would suffer. Our people would be oppressed if the judicial system is unable to draw a line between bonafide actions including bonafide errors and malafide decisions of the civil servants.
Why decision-making may soon grind to a halt in India's bureaucratic corridors
Over the years, our judiciary has handed out many landmark judgements. Its proactive approach has often raised eyebrows but the fact is that many path breaking decisions have been possible only because of this forward-looking approach.
It was this bold approach through which the Supreme Court directed that natural resources should be disposed of through public auction alone. This single judgement has severely choked all manipulations at the level of politicians and bureaucrats in many fields. Crores of rupees have been added to the State exchequer as a result of this mandate of Justice GS Singhvi.
But sometimes, perhaps unknowingly, some judgements can lead to unexpectedly disastrous consequences. The recent conviction by the CBI Court of former coal secretary HC Gupta has stirred up a debate. Rarely does a single judgement of a court have such farreaching consequences.
Gupta has been an officer of unimpeachable integrity. No less than two former cabinet secretaries, Naresh Chandra and TSR Subramanian, through newspaper articles, have put on record their appreciation of Gupta's high integrity. Rarely have I seen former cabinet secretaries writing articles to defend an officer.
Facing Consequences
But what went wrong? Perhaps the justice delivery system failed to appreciate the bureaucratic functioning. Administrative decisions are not mathematical solutions, where two plus two will always be four. A computer would always give the same answer but different bureaucrats need not take identical decisions in similar situations. In a given situation, widely divergent decisions may be taken by different officers.
There is no guarantee that every decision of a bureaucrat has to be invariably correct. Just as judges can go wrong, the chances of bureaucrats going wrong are greater. Even in the SC, many a times, five judges have delivered the majority judgement while the four judges on the bench have delivered dissenting judgments. Can it be said that the minority view was necessarily wrong?
Merely taking a different view, where another view was possible, cannot and should not attract criminal prosecution. One cannot be judgmental about every action of a bureaucrat but, assuming that he has gone wrong, should that automatically attract criminal liability? The answer is an emphatic no. But at the same time, bureaucrats cannot be given a blank cheque to indulge in reckless and flawed decisions.
A Lakshman Rekha has to be drawn. Our entire criminal jurisprudence is based on the concept of mens rea, that is guilty intention. If there is guilty intention, then certainly he or she should face the consequences. If he has directly or indirectly gained anything from such an act, he deserves to be punished ¡X but if there is no guilty intention, then he should not be subjected to criminal proceedings.
There are ample provisions for penalising a civil servant, where any wrong has been consciously committed. In a large number of cases, civil servants have faced the punishment of even dismissal from service for violation of conduct. Many officers are also compulsorily retired every year. Miscarriage of Justice
In an environment thick with large-scale corruption and the all-pervasive perception of an unholy nexus between the bureaucrats and the politicians in collusive corrupt practices, the courts cannot be mute spectators. They have to come down heavily to curb the widespread malaise. But, in this mission, the basic concept of criminal law - mens rea - should always be the guiding principle.
The definition in Prevention of Corruption Act may not be so happily worded and that is why there is a proposal to amend it. Even if there is no undue gain to the civil servant, he can be held liable under this Act. The basic concept of mens rea should be uppermost in the mind of a judge while dealing with any criminal case. The concept of mens rea transcends all other legal provisions in criminal jurisprudence. Inspite of all the precautions, miscarriage of justice is not unknown in our judicial system. But this is not an individual case. The reverberations of this judgment have gone far and wide.
The entire decision-making process at the bureaucratic level has come to a halt. Even in the normal course, leaving aside some honourable exceptions, the Indian bureaucracy in general, does not enjoy the reputation of fast decision-making. Red tape is the rule rather than the exception. But, after this judgment, bureaucracy will be virtually paralysed. However result-oriented an officer may be, he will think thrice before taking a decision. Decisions will be deferred on one pretext or the other. Consequently, the public will suffer. Civil servants will promptly act if the action involves loss or damage to anyone but they will avoid an action that leads to a gain or relief, however just and fair his claim may be.
However dynamic the political leadership may be, it cannot deliver the goods with a paralysed bureaucracy. If the civil servants are perpetually haunted by prospects of criminal proceedings, they are clever enough to avoid decisions, without saying so. Our economy would suffer. Our people would be oppressed if the judicial system is unable to draw a line between bonafide actions including bonafide errors and malafide decisions of the civil servants.
