Government's 'scam shield' to save coal block accused ?

Discussion in 'Politics & Society' started by Singh, Feb 18, 2015.

  1. Singh

    Singh Phat Cat Administrator

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    Government's 'scam shield' to save coal block accused: Ministers and netas get immunity from prosecution if they acted 'in good faith'

    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.

    [​IMG]

    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 to Mail Today: “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 Mail Today 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.


    Read more: Government's 'scam shield' to save coal block accused: Ministers and netas get immunity from prosecution if they acted 'in good faith' | Daily Mail Online
    Follow us: @MailOnline on Twitter | DailyMail on Facebook


    ?? - I haven't seen this news elsewhere please to confirm.
     
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  3. DingDong

    DingDong Senior Member Senior Member

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    BJP is going to loose peoples' trust faster than I assumed.
     
  4. NSG_Blackcats

    NSG_Blackcats Member of The Month OCTOBER 2009 Senior Member

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    The Coal scam is probed by CBI and monitored by the Apex court of this country, right? So government of India can influence a court monitored probe? If yes than no probe in this country is impartial.

    Regarding the Coal ordinance, I believe it was brought in as majority of the coal blocks allocated in last 15-20 years have been cancelled.

    The government is auctioning these mines which is getting a great response. These will benefit many state governments.

    We will have lot of conspiracy theories.
     
  5. NSG_Blackcats

    NSG_Blackcats Member of The Month OCTOBER 2009 Senior Member

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    Yes, at least of those who believes everything out in Media as gospel truth. Ex - Modi put on a 10 lakh suit by TOIlet paper, Coup by Indian Army etc :lol:
     
  6. NSG_Blackcats

    NSG_Blackcats Member of The Month OCTOBER 2009 Senior Member

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    Any law passed by Parliament can be struck down by the SC of India if it is illegal, right? This applies to Coal ordinance as well?

    Did the coal ordinance will apply from the date it was brought in or it will apply retrospectively?

    I will not believe Salman Khurshid if he is the last person alive on earth. Baishakhi chor :lol:
     
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  7. Singh

    Singh Phat Cat Administrator

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    Modi Govt to hasten reforms has given blanket immunity to Bureaucrats and ministers to get on with the job and not worry about prosecution from the Govt side.

    Now, I am not a lawywer, but corruption is a crime and in criminal cases there is no locus standii. So even though Modi mayn't go after these bureaucrats but these bureaucrats/ministers can be tried if involved in corruption by others.

    So basically immunity from a (vindictive) govt. but not from crime itself.

    Hopefully, some more knowledgeable member can clarify.
     
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  8. Khagesh

    Khagesh Regular Member

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    :rofl:

    Is this the best the MSM and the new conscience keeper of the world Mr. Kejri and their mothership could think of. $@$# lasan I say.

    All public servants and public officers are almost forever sought to be protected against vicarious liabilities. Anything if done in good faith should not result into trouble for government servants otherwise nobody would work as a government servant and with every change of government everybody would find himself hunted. Only reason this is being raised is because some people actually want this to happen. Such people are called anarchists. Sometime such people also call themselves an anarchist.

    Nuclear liability law has this, all procedural laws have this too.

    No wonder the paper quotes an unnamed bureaucrat.

    The responsibility starts with the leader. If Modi govt. falters Modi should fry not the people who took orders from him in good faith (good faith implies due diligence). Same goes for Kejri and MMS also.

    But seriously, what kind of idiot refers to savings immunities to try to attack a law.
     
  9. Khagesh

    Khagesh Regular Member

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    And yes if these clauses seem unreasonable please approach court. Be our guest.
     
  10. NSG_Blackcats

    NSG_Blackcats Member of The Month OCTOBER 2009 Senior Member

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    Agree with you. I will check if I can find out videos of the debate in Lok Sabha for this Bill. I guess this is passed by Lok Sabha and pending in Rajya Sabha.

    Yes , only qualified lawyers can clarify the issue. But if anything is made as a policy and the policy stands in a court of law; than action cannot be taken against any bureaucrat or politician if he took decision as per the policy framework. That is my understanding, I may be wrong though.
     
  11. Khagesh

    Khagesh Regular Member

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    Qualified lawyers have better things to do. Unless they happen to be the kind that enjoy a romp in their offices.

    Any man with sight and computer can cross check if other laws have these. Hell these are normal parts of even contracts/agreements.

    Why the hell should anybody be in trouble having done things in good faith? How does anybody reach a state of 'good faith'? How does 'good faith' get established, from evidence PoV?

    People should be threatened only when they do things in bad faith, out of negligence or plain old knuckleheadedness.
     
  12. Singh

    Singh Phat Cat Administrator

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    My earlier post got lost I think

    Basically this is a stupid policy a bandage over a gaping wound if you will.

    Instead of going for reforms, greater transparency, less regulations and less discretionary powers, the Govt is giving a carte blanche protection to bureaucrats and politicians from any wrongdoing which can and possibly will arise if we stick to such an opaque system.
     
  13. NSG_Blackcats

    NSG_Blackcats Member of The Month OCTOBER 2009 Senior Member

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    I am not sure Sir. What kind of transparency we are taking about?The Apex court of the country cancelled large scale mines allocated in last 15-20 years.

    The probe is going on which is monitored by SC. Do you want to say this ordinance/bill will protect the bureaucrats and politicians involved in the coal scam? I do not think that's possible.

    There are few companies which were blacklisted by GoI from bidding based on coal scam. Why various high courts granting them stay? GoI has to stop auctioning of few mines.

    GoI has accepted that going forward all natural resources will be auctioned? Is that a wrong policy? If yes, than what is the substitute for auctioning which will generate maximum revenue for the exchequer?

    No policy is perfect and there might be some loop holes. So auction is the best way of generating maximum revenues for the exchequer. The best part is the money will go to the states which will empower them.

    Moreover every lawyer will interpret different clause in his own way. That is why we have judges :cool2:

    I can not come to the conclusion based on a particular news report. No other newspaper has reported it as yet.
     
  14. Nicky G

    Nicky G Senior Member Senior Member

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    Some people unable to digest the apparent success of the coal allocation it seems. :lol:

    Its always a balancing act between preventing corruption and avoiding fear to take actions that lead to policy paralysis. If bureaucrats believe that they would not be protected in case of mistakes even though they acted in good-faith, it would inevitably lead to the situation that it did once the UPA-II scams came out in a hurry.

    Basic jurisprudence dictates that in such cases the principle of 'Mens rea' applies, a punishable offense should have both the act and the intend to act.

    Finally, if people have issues with this they are always free to approach the courts and they can strike down any law that goes against the tenets of the constitution.
     
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