The Political Executive, Not Civil Servant, Makes Policy Decisions

Regarding the Coal Scam, not only the secretary but one who holds political executive should also be culpable.

Former coal secretary HC Gupta and former Prime Minister Manmohan Singh (Photo Courtesy: PTI/Reuters/Altered by TheQuint)

The judgment rendered by the Special Court, convicting former Coal Secretary HC Gupta and two other senior bureaucrats in the coal scam case, betrays a complete ignorance of the constitutional fundamentals of a parliamentary form of government.

A minister is accountable to the Parliament for whatever goes on in his department, whatever the extent of delegation and whether he is personally involved or not. It is this accountability, which provides legitimacy to governance and justifies retention of confidence of the Parliament and consequently consent of the governed.

Former coal secretary HC Gupta at the Patiala House Court in New Delhi on May 22, 2017. (Photo Courtesy: PTI)

It is thus the minister alone who is the final decision-making authority and remains liable to account to Parliament for all mishaps and operational failures of his ministry.

Civil Servant Only Acts on Orders

There cannot be a presumption that a minister does not know what is happening in his ministry. The presumption, in fact, is to the contrary because his office is predicated on the affirmation of the principle of accountability, which negates the supposition that he need not know the affairs of his ministry.

An emphatic reiteration of this principle arises where power is exercised by the minister personally as in that event there is no displacement of authority to take decisions and of the consequential liability for the same.

In the case where the Coal Secretary has been convicted, he merely recommended allocation of coal blocks but the eventual approval was granted by the Minister of Coal who also happened to be the Prime Minister at the time – Manmohan Singh.

Also Read: Relief for Manmohan Singh in Coal Scam Case

Yet the Special Judge records in his order:

There was no reason in the facts and circumstances of the case for the Prime Minister as Minister of Coal to presume that the guidelines issued have not been complied with. It is not only apparent from the record but it is certainly permissible to draw a presumption in the overall facts and circumstances of the case that Prime Minister as Minister of Coal proceeded to consider the recommendation of the Screening Committee on the assumption that the applications must have been checked in MOC for their eligibility and completeness or that the guidelines must have been duly followed even by the Screening Committee.

Special Judge Bharat Parashar

Moreover, the Judge conflated the Prime Minister with the Government of India. He framed the issue as thus: “Whether dishonest representation continued before the Prime Minister and thereby cheating the Government of India”.

Both Minister and Civil Servant Are Culpable

The Prime Minister is NOT the Government of India and the comment betrays a complete lack of understanding about what the government is.

Even where functions entrusted to a minister (or prime minister) are performed by an official, there is in law no delegation because the official’s act is constitutionally that of the minister.

And should an official act in a manner the minister disapproves, the minister has then to act to show his disapproval of the same and should he choose not to so act, despite having the opportunity, the reason and ability his omission becomes part of the blameworthy act itself.

Also Read: Submissive to Outspoken: Bureaucracy in Solidarity With HC Gupta

In the instant case, the minister did not so act. If the civil servant is culpable so is the minister. Thus not the secretary alone, but he along with the Prime Minister can be liable to the Government of India.

In fact, in the instant case, the responsibility was more onerous on the Prime Minister for the Special Judge himself records that “the fact that the then Prime Minister of the country Dr Manmohan Singh thought it appropriate to retain the charge of Ministry of Coal with himself only, clearly shows as to how important the work of said Ministry was.

Also Read: Ex-Coal Secy HC Gupta Can’t Afford Lawyers, Wants Bail Cancelled

If it was admittedly very important for him, how can it be presumed in his favour that he left it to the discretion of the Screening Committee to make recommendations and then blindly follow them? The presumption would be that he was alert and was fully informed!

The wrong becomes more significant still as the concerned minister was also the Prime Minister. Another coal secretary during the period, PC Parakh, however has written that:

On the 20 August 2004, the Prime Minister approved allocation through open bidding. He wanted a cabinet note on this. After the Prime Minister’s approval, we received a note from the Prime Minister’s Office (PMO), enumerating the possible problems in moving to open bidding. It is understood that this note from the PMO was based on an unsigned note given by the Minister of State (for Coal) to the PMO.

Instances such as these are cited to prove the Prime Minister’s innocence – the fact that he was helpless. This reputation enabled him to a get relief from the Supreme Court too. However, if the act or omission is criminal, the goodness of disposition provides no amnesty from prosecution.

The Prime Minister Cannot Go Scot-Free

The fact remains that the Prime Minister did not remove the MoS, which he was entitled to do, and altered the decision to align with that of the minister!

Apart from the fact that omission to act, being intentional, had a behavioral dimension, which took away from it the badge of inactivity and firmly attached it to the unfolding criminality of conduct, the issue transcended from one of individual ministerial responsibility to one collective responsibility of the council of ministers for which, again, the Prime Minister is ultimately responsible.

If the secretary, as the head of the permanent civil service can be prosecuted, the Prime Minister who heads the political executive cannot be immune. In matters of policy, the responsibility is always that of the political executive.

And where the political executive allows faulty implementation of policy, the willful failure to act will make its liability joint with the civil servant. Let there be nothing arbitrary in drawing the bounds of criminality and never play favorites with the accused.

The law, after all, is not to be like “a spider-web through which big flies pass while the little ones get caught.”

Once the political executive is reined in the permanent civil service can never go astray. If, however, the law provides the possibility of wagering a chance to defeat the system immunizing some and randomly targeting others, it will remain a failure both instrumentally and normatively, and the systemic rot will remain endemic.

(Aman Lekhi is a Senior Advocate at the Supreme Court of India and writes on constitutional and commercial law issues. This opinion piece was originally published on BloombergQuint. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)