In pursuit of fairness in the coal scam trials

Speaking at a recent event, Chief Justice of India NV Ramana remarked that "in our criminal justice system, the process is the punishment." Truer words were never spoken. But words come cheap, and this oft-repeated phrase only ends up normalizing the ordeal of those who are unfortunate enough to experience it.

HC Gupta, KS Kropha and KC Samria - former Secretary, Joint Secretary and Director respectively of the Coal Ministry - happen to be among them.

Last week, a special CBI court found Gupta and Kropha to be involved in a criminal conspiracy involving the allocation of the Lohara East coal block to Grace Industries Limited. Prior to this, Gupta was held to be guilty in three other cases and Kropha and Samria in two. Several other matters are still under consideration.

It has been a decade since the country was engulfed by the coal allocation scandal. A 2012 report by the Comptroller and Auditor General (CAG) declared that the Coal Ministry’s failure to adopt competitive auctions for coal blocks led to gains worth ₹1.86 lakh crore for private actors. The public discourse rapidly degenerated into treating this entire sum as a loss to the exchequer. The political crossfire that followed has now subsided. The legality of the administrative allocations has also been put to rest. In 2014, the Supreme Court cancelled 214 coal blocks on the grounds of arbitrariness and legal flaws.

But closure still remains far from sight for the named persons who continue to battle multiple corruption charges against them. While cancelling the coal block allocations, the apex court had made no observations about the personal conduct of the public servants involved in the matter. This determination was entrusted to a special CBI court, with the Supreme Court making it clear that its findings in cancelling the allocations should have no bearing on the trials. The promise of a detached assessment has, however, evaded both the investigation and trial proceedings.

From the word go, the coal investigations were mired in controversies of missing files, political interference, and even charges of corruption against a former CBI Director. This led the Supreme Court to term the CBI a ‘caged parrot speaking in its master's voice’, a criticism that may have been well deserved in this case. However, the masters in question here were, and continue to remain, the political bosses. Yet, it is the accused officials who have borne the brunt of the judiciary’s activism in fixing the vices of the investigative process.

Acting against the background of a high-profile political controversy and under the direct gaze of the Supreme Court, the special court has declared the former bureaucrats guilty in case after case. This sequential processing of cases emanating from the same fact situation has worked to the disadvantage of the accused. The special court enabled the defence’s arguments in one case to be used against them in subsequent investigations and prosecutions. A request to club the matters or allow for a joint trial was, however, denied by the trial court, and later the Supreme Court.

All the cases follow a similar pattern. There was misrepresentation of information by private actors while applying for the coal blocks. This was followed by a lack of due diligence in scrutinising the applications and infirmities in the Screening Committee’s processes. The Screening Committee was an inter-governmental and inter-departmental body set up by the Coal Ministry to make recommendations on the allocation of coal blocks. As per guidelines, the Screening Committee was to consider the applications based on the evaluation and recommendations made by administrative Ministries, like Power and Steel, and relevant state governments. The Coal Ministry’s officials did not have any overriding powers, which implies that all of the Committee’s members should ordinarily share responsibility for its recommendations. There are also no allegations of any quid pro quo or private gains by the named officials or evidence of collusion between them and the private parties. Yet, the trial court has chosen to pin all the inadequacies of the allocation process to a narrative of cheating and corruption on the part of the officials.

The special court has also been consistent in rejecting the CBI’s closure reports whenever it observed that there was no incriminating evidence against the public servants. Earlier this year, the court took cognizance in one such case involving an allocation made in favour of Contisteel Limited. This followed from a 2017 order, where the special judge rejected the CBI’s initial investigation report and remanded the case for further investigation. The order made it fairly obvious that a satisfactory investigation ought to bring the public officials within its fold, which the CBI has now done.

In a case involving Vikash Metal & Power Ltd, the trial court had acknowledged that the role of other Ministries in the allocation process could not be said to be above board. It noted that various acts of omission and commission could possibly be attributed even to the Coal Ministry’s Under Secretary, who was the prosecution’s star witness. Yet, the court proceeded on what it termed as a ‘deficient investigation’ and ‘self-contradictory deposition of prosecution witnesses’ to build its case against the officials. The logic given in another case was that since they were ‘senior and well experienced IAS officers’, the procedural lapses could not be on account of their inefficiency or incapability. The officers’ experience, therefore, became a ground for ascribing criminal intentions to them.

As per the CAG’s 2012 report, Coal Ministry’s officials had in fact been pushing for a switch from the Screening Committee’s allocations to competitive auctions since 2004. But the politics of the process, which included fears of dilution of control by the Ministries and states, delayed this amendment till 2010.

It is ironic that the persons now facing corruption charges were actively involved in shaping this reform. They also attempted incremental improvements in the allocation process, for instance, by issuing a public advertisement for the administrative allocations, which was done for the first time in 2005. This led to a doubling of the number of applications. But, as the record shows, the Ministry did not have the capacity or processes to handle this.

With the benefit of hindsight, one may call it foolhardy to take on an exercise of this scale within a broken government set up and with limited expertise in financial and technical evaluation. It is also fair to argue that those sitting at the helm of a Ministry’s administrative affairs should have been better equipped to navigate this environment of high economic and political stakes despite low state capacity. But to make criminals out of them by conjuring a criminal conspiracy where none exists cannot be a reasonable judicial or public response.

Despite an impeccable past service record, which many in their fraternity have vouched for, Gupta, Kropha and Samria now spend most of their days jostling with the emotional, financial and reputational strains of the coal trials. This game of procedural whack-a-mole is likely to go on for a while.

The Supreme Court’s 2021 decision to appoint two new special judges to take over the coal trials offered an opportunity to break away from the events that have transpired so far.

But the latest order confirms that the process will continue to be a punishment for them, for years to come.

Smriti Parsheera is a lawyer and public policy researcher.