Tuesday, August 28, 2012

With face blackened, UPA tries whitewash

(First published in The Pioneer dated August 22, 2012)


The Congress-led UPA Government has developed a visceral dislike for the terminology, ‘presumptive or notion loss’ to the exchequer, after the massive 2G Spectrum scam broke out in the public domain. So, out of respect for the regime, let us for the moment keep aside the figure of Rs 1.86 lakh crore that the Comptroller and Auditor-General has computed as the notional loss to the public coffer because the Government distributed a number of coal blocks to private players without going in for competitive bidding. That may be an approximately true enough figure or it may not. Instead of thus getting into an argument over this number, let us look at the Government’s justification for not having opted for the auction route.
The first defence of the UPA regime — and that of the Congress in particular, since the Prime Minister is directly under attack as he held the coal portfolio during the period when the Government decided to distribute the blocks like one-time feudal lords gifted away property to their favourites — is that the auction route would have taken a tortuously long time to materialise because auction would have needed changes in the Mines and Minerals (Development and Regulation) Act. Since the Government was keen to enhance coal production at the earliest, it decided on the direct allocation, goes the argument. This is a flimsy explanation to cover up for the fact that the Government was pre-disposed to the non-auction route, and that is why it dragged its feet on bringing about the changes in the relevant provisions of the MMDR Act. A look at the sequence of events will expose the regime’s lie. But first, let’s see how the facts played out.
Within six weeks of coming to power in May 2004, the UPA Government headed by Prime Minister Manmohan Singh made public the concept of competitive bidding for captive coal blocks. The Government went to great lengths to publicise its intent as part of its ‘determination’ to revamp and professionalise the coal sector. Two weeks after the declaration of this noble intent, the Coal Secretary prepared a comprehensive note on the subject.
The impression that gained ground was that the competitive bidding process would be approved. But, suddenly and mysteriously, a note materialised from the Prime Minister’s Office that detailed the ‘disadvantages’ of allotting coal blocks through competitive bidding.
The brave Coal Secretary (unusual for a bureaucrat) rubbished the note and drew attention to some ‘pressures’ that were being applied on the steering committee formed to study the issue. But his courage came to naught. The Union Ministry of Coal had made up its mind against auctioning the blocks on the pretext that competitive bidding would need changes in the law, and that such changes would be a long-drawn process. By the end of 2004 and early 2005, it had become clear that coal blocks would be awarded directly by a panel constituted by the Government and that competitive bidding would be considered on a prospective basis at a later date.
Having arrived at such a conclusion, the Government showed no hurry in moving to amend the MMDR Act. Had the UPA sincerely worked from the start of its first innings in office to bring about change in the legislation, it had a good chance of success. It took an entire two years for the Government to move on the issue of amendments. It was only in March 2006 that the Prime Minister’s Office, after having virtually cleared the route for direct and less than transparent allocation of coal blocks to a bunch of private players, decided to put in place the process of competitive bidding. Had the regime been serious, in the two year period (2004-06), it could have pushed through the needed amendments. But it used up the time to promote allocation of the valuable natural resource without competitive bidding. It began bolting the stable after the horses had escaped.
Even so, it was another two years before the Government brought to Parliament the Mines and Minerals (Development and Regulation) (Amendment) Bill. It was only towards the latter half of 2010 that the Bill became law. In other words, it took two years from the time amendments were proposed to their becoming law. It is clear from these facts that the Congress-led regime was less than enthusiastic for whatever reason in selling off the coal blocks to the highest bidder.
The Government can now argue that the delay in getting the amendments passed by Parliament was because it was busy ironing out differences among various stakeholders. But that does not sound convincing. The fact is that even today industry is unhappy with the amendments. The Federation of Indian Chambers of Commerce and Industry has, for instance, said the new provisions would make mining of coal and minerals “unattractive”. This, it claimed, is because of the rule that coal mining firms have to contribute 26 per cent of their profits to a development fund. FICCI also said that the tax burden on the coal sector as a result of the changes in law could rise to 61 per cent.
The other defence put forth by the Government has been that the allocation of blocks without an auction had been taken in the larger national interest. We are yet to be told what that ‘larger national interest’ was that has been adequately served. But the CAG offers us a glimpse of how the ‘larger interest’ has not been served. Three brief quotes from its report will tell the story:
1. The process of bringing in transparency and objectivity in the allocation process of coal blocks got delayed at various stages and the same is yet to materialise even after a lapse of seven years.
2. Out of 28 producing blocks as on June 30, 2011, in case of 10 blocks, there was time overrun ranging from one to 10 years.
3. The Coal Controller’s Organisation did not conduct any physical inspection of allocated coal blocks to ascertain the actual progress as per the MMDR Act, 1957.
To top it all, even the avowed purpose of the Government in directly allotting coal blocks to private parties without competitive bidding, does not seem to have been achieved. There is no indication that the UPA’s action has boosted coal production in any way, since many of the blocks are reporting little output. In fact, the CAG notes that the “de-reservation of Coal India Limited blocks did not yield desired results.”
Neither the Comptroller and Auditor-General of India nor the people in general are opposed to  private players having a major role in the development of the coal sector. Indeed, without the wholesome participation of the private players, the coal industry has no future. As the CAG notes, “Captive coal mining is a mechanism envisaged to encourage private sector participation in coal mining.” But such participation must happen in an environment of transparency and without loss to the public exchequer.

Justice neither done, nor seen to be done

(First published in The Pioneer on August 8, 2012)


Thirteen years ago, on a late chilly January night, a BMW car moving at reckless speed runs through a group of people in Delhi, killing six, including three policemen. The car was driven in an inebriated state by a youth in his early twenties, belonging to an influential family. The accused was brought to trial and convicted. The sentence: Jail term of a mere two years. The Delhi High Court passed this verdict and the Supreme Court upheld it. Will you call this justice? Ask any sane person and the answer will be in the negative. But for the learned judges of our courts, it certainly is.
Now, look at the gruesomeness of the incident to realise how the court rulings were not justice, but a joke in the name of justice — in fact, a farce. The prosecution laid it all before the courts: The car comes charging at breakneck speed towards the group which included three policemen on patrol who had stopped some people for checking their identities. It is midnight or thereafter. The vehicle hits them all. The impact is so terrible that the unfortunate persons are flung into the air. Some fall on the bonnet of the car; others dash against the windscreen. Some roll down and come under the car.
After a while, the accused halts the car, inspects the damage and rushes away, ignoring the cries of help from the injured and the dying persons. There are still some victims trapped underneath the vehicle; they too are dragged for a distance. The accused then takes the vehicle to the house of a friend. The car is washed there and evidence allegedly destroyed.
Now, study the submission of a witness who details the scene of the crime. He finds the head of one person crushed and the abdomen of a policeman ripped completely open, with blood flowing on the street. The mangled body of another constable too is noticed, with his right leg severed and lying at a distance of some 10 feet.
The perpetrator of this horrific crime, the one who snuffed out the lives of policemen performing their duty and innocent citizens, gets all of two years in prison. He is out today, having served his term. But there is no release from the trauma for the families of the victims. Have the courts done them justice? Go ask the surviving members, and you will know. The Supreme Court’s decision to uphold the ridiculously low two-year prison term also sends across a disturbing message to those who have lost their beloved ones to rash and drunk driving and are fighting a legal battle in the courts. Take a recent case: Some three months ago, a pregnant Kshama Chopra was returning home in a car after a routine medical check-up along with her husband and parents. Her vehicle was hit by a speeding BMW. The car she was in was tossed in the air and she died on the spot. The killer vehicle drove away from the site of the accident. While the legal trial is yet to begin, her shattered husband has already lost hope in the wake of the delays and the allegedly lackadaisical manner in which the police has been investigating the incident. In the end, even if the accused is convicted, he may well get away with a couple of years behind bars.
Let’s again return to the incident of three years ago. It’s important to trace the contours of the legal course that the case has taken to fully understand how justice (or the lack of it) has played out. The gruesome accident happened on the intervening night of January 9-10, 1999. The youth driving the car was Sanjeev Nanda, then 21, son of an influential businessman.  After the completion of the investigation, a charge-sheet was filed against him in the court of the Additional Sessions Judge, New Delhi. He was charged under various provisions of the Indian Penal Code, including Section 304. The trial court judge performed admirably by all accounts. Although the material witnesses presented by the prosecution turned hostile — let’s not get into the reasons, though we can well guess and the courts know it only too well — there was one who valiantly stood by his account and corroborated the prosecution’s claim. The trial court judge considered that witness as reliable. Moreover, the judge concluded that the accused should be held guilty under the more stringent Section 304 (Part II) of the IPC and sentenced him to five years in prison.
Aggrieved by the five-year prison term verdict, Sanjeev soon after approached the Delhi High Court in 2008. The High Court did two things: It set aside the statement of the lone witness — who had admirably not turned hostile — as being unreliable, and it converted the conviction from under Section 304 (Part II) to the less stringent Section 304A. Now, while the latter provision deals with ‘causing death due to negligence’, the former — which the trial court had applied — deals with ‘culpable homicide not amounting to murder’. The maximum sentence under the provisions of Section 304 (Part II) is 10 years imprisonment. In changing the Section under which he was convicted, the High Court slashed his term to two years. The prosecution was naturally unhappy and the matter arrived before the Supreme Court.
The apex court in its ruling subjects us to high-flowing rhetoric about the horrible nature of the crime, and upholds the trial court’s decision to convict Sanjeev under section 304 (Part II) of the IPC. But then, it also upholds the absolutely shocking two-year jail term the High Court had awarded. The Supreme Court says it was persuaded by certain ‘mitigating circumstances’ to maintain the small prison sentence, and that those were heavier than the ‘aggravating circumstances’ of the crime. And, what are those ‘mitigating circumstances’? Among others, Sanjeev has already served his two-year term; he is now married and the couple is blessed with a daughter; his conduct in jail had been exemplary. But, how does all this matter to the crime that he has committed? How does it even one bit justify his criminal conduct? Can these factors mitigate the loss and the grief that the families of the victims feel? Is this a fit closure for them?
It’s a good lesson for all would-be-convicts: Meet such criteria and you can be let off with a light punishment even if you have killed people and are convicted under Section 304 (Part II) of the IPC — or for that matter under any provision, however harsh it may be. Of course, the apex court has hastily added that the ruling need not be considered a precedent for similar cases in future, and that it has upheld the small sentence strictly on account of the ‘mitigating’ circumstances.
Well, crimes and criminals will always have some mitigating circumstance laced with heavy emotional quotient to quote in their favour. At times these may be reasonable; often they are diversionary in nature and succeed in their aim — as they did in the Sanjeev Nanda case.