The “SPECIAL” Coal Case – Ministers and Scamsters!

The judgment rendered by the Special Court betrays complete ignorance of the constitutional fundamentals of a Parliamentary form of Government.

A minister is responsible to 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. 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.

There cannot, therefore, 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. And 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.

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 bee duly followed even by the Screening Committee.”

Moreover he conflated the PM with the Government of India. He framed an issue thus: “Whether dishonest representation continued before the PM and thereby cheating Government of India.”

The PM is NOT the government of India and the comment betrays complete lack of understanding about what the government is.

Even where functions entrusted to a minister (or PM) 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 may 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. In the instant case the minister did not so act. If the civil servant is culpable so will 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 PM 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.” 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. Mr Parakh, however, has written that “on the 20th 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 MoS to the PMO.” Instances such as these are cited to prove The PM’s innocence – the fact that he was helpless. This reputation enabled him to a get relief from the Supreme Court too. However no matter how good a person one is, if the act (or omission) is criminal goodness of disposition provides no amnesty from prosecution. The fact remains that the PM did not remove the minister, who 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 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 PM is ultimately responsible.

If the secretary, as the head of the permanent civil service can be prosecuted, the PM who heads the political executive cannot be immune. In matters of policy the responsibility is always of the political executive. And where the political executive allows faulty implementation of policy, the wilful 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. 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 reigned in the permanent civil service can never go astray. If however law provides 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.

(THIS HAS BEEN PUBLISHED AS AN OPINION IN BLOOMBERGQUINT   ON 28TH OF MAY, 2017)

Referendums, Brexit, Bregret & Democracy

I am surprised that issue of United Kingdom’s withdrawal from the European Union was made subject to a referendum. There iseprecedent in its history of the dangers implicit in the choice. Referendums generally, despite nominal similarity with democratic practices, offend against reasoned deliberations which alone make participation on popular issues a meaningful political exercise.

It is doubly unfortunate that the Chief Minister of Delhi is planning to hold a referendum on statehood for Delhi. The Chief Minister’s sense of history is limited to the immediate past and he seems to be unaware that referendums have often been tools in the hands of dictators and can at many times be anti-democratic.

In the United Kingdom the Race Relations Act, 1968 made amendments to Race Relations Act, 1965. The Act of 1968 sought to make illegal racial discrimination in public-services, housing and employment. However at the time of the second reading of the Race Relations Bill (which was later to become Race Relations Act, 1968) Enoch Powell, a British Member of Parliament, gave what is notorious as Rivers of Blood Speech. The speech criticised the proposed legislation creating fears about “immigration descended population” and the prospect of British becoming strangers in their own country. Significantly Gallup’s opinion poll found an overwhelming majority agreed with Powell. If a referendum had been held on the need to make the Bill into an Act the Race Relations Act, 1968 would never have been passed. The referendum would have brought about an anti-democratic result offending liberal and democratic values through ostensibly democratic means.

Referendums in fact were the favorite of the plebiscitary democracy of Hitler – no exemplar where democratic traditions are concerned. Hitler used referendum to legitimise his holding the posts both of Chancellor and President and assume supreme power in 1934. He had actually assumed the offices earlier (and the sequence of events which preceded that assumption showed he had scant regard both for democracy and parliament) and the referendum was meant only to legitimise that assumption of authority. referendum was held even during the Reign of Terror in France and Napoleon used a referendum to become the Emperor of France.

Some referendums are not conclusive despite seeming to be almost unanimous. Take the example of the Crimean referendum on whether the people of Crimea would join Russia or remain part of Ukraine. Over 95 per cent of the voters, it was claimed, answered “yes” to the Republic joining Russia. The Ukrainian Government however called it a farce a fake and crime against the Ukrainian State.

And even where referendums are constitutionally sanctioned, as in Switzerland, the results (as in the case of Swiss Minaret referendum, 2009) may disregard the interests of minorities. In the Swiss case in fact the referendum was unnecessary as the zoning law which was in place may not have allowed the raising of minarets in any case. The holding of the referendum, therefore, may have more to make a point than to achieve a result and cause further polarisation in society.

Irrespective of who calls for referendums and without getting into controversies about their being free and voluntary or not referendums are singularly inappropriate for complex issues. Opinions on such issues are usually subjective and based on experience or knowledge which is not necessarily precise or accurate and in any event the range of probabilities which issues represent makes a conclusions right for one and wrong for the other and no means of objectively verifying who is actually correct. There can be many sides to an issue and the whole truth may elude everyone. Answers sometimes cannot be cabined in a “yes” or a “no” and the “yes” or “no” may themselves be swayed by emotions not facts. There are different sections of society with varied and competing interests and general well-being mandates accommodating all. A mechanism which operates in binaries can well result in tyranny of the majority sacrificing interests which may be significant even if less numerous. It is for this reason Brexit results in Bregret!

Democracy cannot be what John T Wenders said, “two coyotes and a lamb voting on what to have for lunch”! Yet this is precisely what referendums reduce democracy to.