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Miscarriage of Justice

Patricia Mukhim 

As the editor of a newspaper it pains me to have to publish news regarding the former chief secretary of Meghalaya, Mr KS Kropha being pronouned guilty in the much hyped Coalgate scam – which concerns the allocation of coal deposits to the public sector and private companies. As a columnist, however, I am what Ezra Pound would call, ‘The Village Explainer.’ Hence this article! Now while the newspaper has to carry the news, the columnist-editor is entitled to her independent views and those views merit expression if only to show solidarity with an honest officer.

Mr KS Kropha, a 1982 batch IAS officer of the Assam-Meghalaya cadre, has held many posts in the state and is remembered fondly by all who have had occasion to interact with him. A man of few words, Mr Kropha perhaps believes that actions speak louder than words. Rather shy and reticent he hardly spoke to the media but if asked any questions he took pains to explain his brief. As far as corruption is concerned, there are many in the elite service, that have abused their positions but Kropha was not one of them. He rose above the venality of these troubled times.

One surmises that Kropha is a victim of perceived corruption as constructed by the Comptroller and Auditor General (CAG), while he served as Joint Secretary with the Ministry for Coal, Govt of India. In 2014 the CAG stated that the Government is authorised to allocate coal blocks by a process of competitive bidding, but chose not to. As a result, both public sector enterprises (PSEs) and private firms paid less than they might have otherwise. In its draft report in March 2012, the CAG estimated that the “windfall gain” to the allottees was Rs 10,673 billion (US$150 billion). When the final report of the CAG was tabled in Parliament it put the figure at Rs 1856 billion (US$26 billion). In August 2012, the then Prime Minister Manmohan Singh had rebutted the CAG’s report both in its reading of the law and the alleged cost of the government’s policies.

However, while the initial CAG report suggested that coal blocks could have been allocated more efficiently thereby generating more revenue for the government, it never suggested that there was corruption in the allocation of coal. It’s a different matter that in this country politics quickly takes over the discourse. The BJP then wanting to come to power was quick to cash in on every alleged scam. And as is the norm today the media then takes over as the judge, jury and executioner even before the court has given its verdict.

It is educative that the equally hyped spectrum allocation scam during Pramod Mahajan’s tenure as Telecom Minister in 2002 found the then Telecom Secretary Shyamal Ghosh, a 1965 batch IAS officer guilty of allotting airwaves in 2002 which led to the loss of Rs 508 crore to the exchequer. There were raids in offices of telecom majors, Airtel and Vodafone, which were alleged beneficiaries of NDA’s telecom policies. Both companies had denied taking undue favour from the then government.  Having known Mr Ghosh personally as a colleague on the Governing Board of an NGO – the Indo-German Social Service Society, I saw the pain and shock with which this allegation was received by Mr Ghosh, an officer whose credentials were impeccable. Yet, nine years after his retirement, Ghosh had to bear the cost of running to the law courts and spend money on engaging a lawyer to clear his name. In a conversation, Mr Ghosh once said that at the time, spectrum was a new thing and no one in the Government actually understood that air waves could be commodified and a cost fixed to them.

After a long trial, Mr Ghosh was acquitted in October 2015 and so too the three firms accused in the scam. The 235 page order of the Special Court came down heavily on the CBI and said that the charge-sheet was based on “deliberately redacted and garbled facts” and it was drafted in a manner to create an impression that a grave crime was committed, whereas there was none and there was “no incriminating material on record,” against the accused. Special CBI Judge O P Saini also noted that the charge-sheet was filed for “extraneous reasons” and directed the CBI director to conduct an inquiry against the erring officials and take action against them as per law. The court said the CBI had “deliberately” not produced many relevant documents before it to indicate that demand for additional spectrum started only after late Pramod Mahajan had joined as the telecom minister in 2001.Mr Ghosh evidently was a scapegoat in India’s new saga of telecom scams and high-voltage investigations.

In the light of what happened in the spectrum case we would be wrong to assume that every court verdict is based on the principles of justice because it takes a lot to establish what is absolutely just and what evidence the prosecution can put together againts an accused person and how the defence counsels refute those allegations. The defines miscarriage of justice as a legal act or verdict that is clearly mistaken, unfair, or improper. Primarily, a miscarriage of justice is the conviction and punishment of a person for a crime they did not commit.

Most of us don’t spend time to read CAG reports. Mediapersons have even lesser time to read the CAG narratives. We only go through the highlights. Hence in the case of Mr Kropha too, many have not cared to read the 69 page CAG report. The much hyped Report has itself stated that if the recommendations of the IAS officers in the Ministry of Coal (MOC) had been adopted then the notional loss of 1.86 lac crores to the national exchequer could have been avoided. When the officers in the Coal Ministry failed to get the auction method introduced due to stiff resistance from various stakeholders, they tried the next best thing. They introduced new measures to strengthen the then existing method of allocation. For the first time since 1993, they published advertisements and allocation guidelines for the public at large, making the entire process transparent and giving a level playing field for all participants.  These officers also ensured that all applications and documents were examined by concerned State Governments and Administrative Ministries. They also introduced measures to ensure that public interest was taken care of in case of failure of the company to implement the project.

Meanwhile the officers persisted in getting the auction method introduced in place of the Screening Committee method until in 2012 their efforts fructified. The foundations of the current auction method currently used was laid by these very IAS officers of the then Ministry of Coal.

It is ironic that today these very same officers are being crucified for putting in place a system that would indeed yield more revenue for the government and is also transparent and measurable.  The IAS fraternity stands with the two convicted officers because they know that this is a test case and the crucible upon which their decisions today may be re-interpreted in the future. This over-hyped CoalGate scam will impact on India’s governance system even as officers become wary about appending their signature on anything – even something they know to be in the larger public interest because they are unsure how future governments will construct their decision making wisdom at a particular juncture in history.

The IAS fraternity especially the serving officers know the credentials of their senior officers better than most. They know the two officers – HC Gupta the then Coal Secretary, KS Kropha the then Joint Secretary Coal and KC Samria, then Director in the Ministry of Coal have received no pecuniary or other benefits.

This case is destined to go down the way of Mr Shymal Ghosh’s one because no one including the courts has suggested that these officers have received any benefits in the allocation process. The Enforcement Directorate and CBI have been investigating them for the last six years and have found no disproportionate assets.

A word to be said about the habit of the CAG to leak audit reports to the media and for the media to term such leaks as scams. Once the media labels something as a scam and names some individuals, a public perception is created that those names are guilty even before the due process of law takes its course. Who will ever forget Vinod Rai and his construct of the Rs 1.76 lakh crore “notional” loss to the Telecom sector. Come to think of it, the NDA rode to victory on the 2G scam.

In the same manner, today the Rafale aircraft deal is being touted as a ‘scam’ even before the CAG has placed its report in Parliament and this time the Congress wants to ride the waves of the 2019 parliamentary elections on the Rafale..Politics certainly is an outragoes game. Alas! Often it also claims innocent victims.

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