In what is arguably a first, the Union Government has taken the contentious coal ordinance route to ring-fence itself and the bureaucracy from criminal prosecution.
This backstopping mechanism offers immunity to the ministers and babus against legal proceedings for any action taken in “good faith”.
But it is also a reason for concern as the NDA government goes ahead with its proposal to introduce a Bill for replacing the ordinance with an Act of Parliament.
Clause 28 incorporated in Chapter VI of the ordinance states: “No suit, prosecution or other legal proceedings shall lie against the Central Government, nominated authority, commissioner of payment or designated custodian or any person acting on their behalf, in respect of anything which is done or intended to be done in good faith under this Act.”
Clause 29 lays down that “the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law.”
It basically means that the Act will have overriding influence.
A senior bureaucrat confirmed : “Such blanket protection has never before been given to government officials and is, in fact, a rebound to the daft provisions under the Prevention of Corruption Act (PCA), under which investigations have been used to conduct witch-hunts even 10-12 years after a decision.”
He claimed that it had “impaired the functioning of the bureaucracy, which then refused to signs files”, but the government was now “swinging to the other extreme” to get things moving.
Another senior official pointed out that Clause 29 of the coal ordinance went a step ahead of a similar clause in the Central Electricity Act, which stated that the “provisions of this Act are in addition to and not in derogation” of other laws.
However, senior lawyer Dushyant Dave told that the ordinance cannot take away the powers of the high courts, as enshrined in the Constitution, to deal with corruption cases.
“If that happens, it would be ultra vires (beyond legal authority) of the Constitution and liable to be struck down,” he added.
Congress leader and senior lawyer Salman Khurshid said Clause 29 would prevent civil cases and suits from claiming damages, which tends to hamper decision-making.
“However, Article 226 of the Constitution (which confers powers on the high courts) will allow filing of cases against corruption. Similarly, Article 32 of the Constitution (under which PILs are filed in the Supreme Court) still holds good,” he said.
According to sources, the emphasis on the protection clause in coal ordinance is a sequel to the June 2014 meeting that Prime Minister Narendra Modi had with more than 70 government Secretaries at his residence. The senior bureaucrats were worried that they could be prosecuted under the PCA even 10 years later, when they were well into retirement, and it made it difficult for them to expedite big-ticket projects. The Prime Minister had then reportedly assured them that he would look into the issue.
But while it is essential to expedite the decision-making processes, recent corruption cases involving senior bureaucrats — including the coal scam, 2G spectrum scandal and the excess spectrum controversy — prove that they don’t always act in “good faith”. In fact, the courts have had to often prod the CBI for investigation in these cases.
In the case of former Coal Secretary H. C. Gupta, Joint Secretary K. S. Kropha and Director K. C. Samaria, a special court had observed that they ignored Navbharat Power Pvt Ltd’s wrong representation for getting coal blocks and it prima facie amounted to criminal misconduct. It also directed the CBI to further investigate the case which the agency wanted to close.
In the 2G scam, Telecom Minister A. Raja and then Telecom Secretary Siddharth Behura were sent to jail and are now undergoing trial. The CBI has now filed a case alleging that the exchequer lost Rs 30,984 crore in the allocation of 122 licences which were scrapped by the Supreme Court on February 2, 2012.
In the additional telecom spectrum case of 2002, the then Telecom Secretary Shyamal Ghosh was named as an accused nine years after his retirement.