Singh summoned as coal 'accused'

R. Balaji and Imran Ahmed Siddiqui, TT, New Delhi, March 11: Manmohan Singh, who managed to keep his reputation for personal probity at arm's length from that of the scandal-scarred regime he presided over, has been summoned by a CBI court as an "accused person" in a coal block allocation case.

Singh has been called to the court on April 8 in his capacity as coal minister in 2005 when the block in Odisha was allotted to Hindalco, the metals giant owned by Kumar Mangalam Birla.

However, since Singh was also the head of the government then, he becomes the second former Prime Minister after P.V. Narasimha Rao to be bracketed among the accused in a criminal case.

Rao, who brought Singh into public life and provided the political heft for the economic liberalisation that the economist pioneered, was convicted in the JMM bribery case in 2000 but was eventually acquitted by a higher court.

Special CB> judge Bharat Parashar has asked Singh, former coal secretary P.C. Parakh, Birla and two Hindalco officials to appear before him next month.

"Of course, I am upset but this is part of life," Singh told reporters in response to questions later in the day. "I have always said I am open for legal scrutiny.... I am sure the truth will prevail and I will get a chance to put forward my case with all the facts," he said.

The following are answers to some of the questions the contentious case has raised:

What is the case about?

The case deals with the allocation of a coal block, Talabira-II, in Odisha to Birla's Hindalco in 2005. Singh, then Prime Minister, was also holding additional charge of the coal portfolio.

The court feels that prima facie, it appears that the coal block allocation approved by Singh, on the basis of a note by the then coal secretary, facilitated "windfall profits" to Hindalco and caused losses to the state-owned Neyveli Lignite Corporation.

The court spoke of a concerted conspiracy "to extend undue benefit/wrongful gain to Hindalco..., causing wrongful loss to the Government of India".

Has the court found Singh guilty?

No. Judge Parashar said that at this stage, the court was only required to form a prima facie opinion on whether some offence has indeed been committed or not, and if "yes", who were involved in the commission of the offence.

Whether the accused are guilty or not would be decided only after the framing of charges, arguments and the final trial.

"I may once again mention that I am fully conscious of the seriousness of the matter as it involves officers not only of the ministry of coal but also of the Prime Minister's Office, including the Prime Minister/minister for coal besides the chairman of a leading industrial house of the country," the judge said.

The judge later ruled: "I have taken cognisance of the offence... against six accused i.e. Hindalco, Subhendhu Amitabh, D. Bhattacharya (employees of the company), Kumar Mangalam Birla, P.C. Parakh and Dr. Manmohan Singh and for the substantive offences... against accused P.C. Parakh and accused Dr. Manmohan Singh. Accordingly, summons be issued to all the accused persons and be served through IO (investigating officer) DSP K.L. Moses for 08.04.2015."

What are the substantive offences?

In this case, offences under IPC Section 409 (criminal breach of trust by public servants, bankers and businessmen) and various sections of the Prevention of Corruption Act. The other charges have been invoked under IPC 120B (criminal conspiracy).

Conviction under Section 409 carries imprisonment for life or rigorous imprisonment for at least 10 years.

Can Singh move a higher court now or will he have to wait for the final verdict in the special court?

He has the right to move the high court straightaway and seek the quashing of the summons. If the high court turns him down, he can approach the Supreme Court.

Asked about this today, Singh said he would discuss the issue with his legal team. Singh, who was examined by the CB> or anybody for that matter wants to ask, I have nothing to hide."

Has the court cited any evidence of conspiracy and motive while listing its prima facie findings?

No evidence yet, other than letters and meetings among Birla, top government officials and Singh, the interest shown by the PMO in the allotment and a decision to ignore the cautionary advice of two PMO officials. It is not unusual or illegal for industrialists to write letters to those in power and meet them to push their case.

However, the judge pointed out that when the court was only confronted with the issue whether any offence is prima facie found to have been committed or not, a detailed deliberation or analysis of the documents produced or that of the statement of witnesses was not required.

The court has cited several questionable procedures, such as Singh approving the note without making any observation. The coal secretary has been accused of withholding information and making a wrong noting. Birla has been accused of tapping "bureaucratic and political channels".

"The repeated reminders from the PMO, written as well as telephonic, to MOC (the ministry of coal) to expeditiously process the matter in view of the letters received from Kumar Mangalam Birla also prima facie indicate the extra undue interest shown by the PMO in the matter.... prima facie shows that there was a conscious effort on his part to somehow accommodate Hindalco in Talabira-II coal block," the judge said.

The irony is that as Prime Minister, Singh has always been accused by rivals of being indecisive. Now he is being tried for taking decisions which, according to him, were meant to promote industrial activity in Odisha on the request of chief minister Naveen Patnaik.

Did Patnaik play a role?

Patnaik did send a letter to the Centre on August 17, 2005, supporting Hindalco's claim to the coal block. The judge said the receipt of the letter from Patnaik "acted like a fresh lease of life" but clarified that he was not suggesting the chief minister "acted in pursuance to any criminal conspiracy".

Why is Patnaik getting the benefit of doubt?

It must be remembered that in the heady days of 2005, states were competing with each other for industrial projects. After a long phase of ideological battles, the country was in the middle of what came to be known as the "development agenda".

At the Centre, too, a discretionary policy was followed in allocating resources because it was felt that allotment based purely on auction would push up user charges and give an advantage to monopolies with deep pockets.

The discretionary process had a smooth ride so long as the going was good for the UPA government.

However, with "scam after scam" spilling out of the UPA closet, the allocation process was besmirched and the head-spinning figures of presumptive losses gained traction. Had the UPA not been viewed as corrupt to the core and Singh a silent spectator, it is unlikely that the issue would have reached where it has today.

What is the Supreme Court's stand on decisions taken by a Prime Minister?

A clarification first. Judge Parashar has not gone into any decision taken by Singh as Prime Minister. The decision that is under review was taken by Singh in his capacity as coal minister. Singh was holding the additional portfolio then because Shibu Soren had resigned.

Judge Parashar did refer to the Supreme Court's observations on the role of the Prime Minister.

"I would like to mention by way of abundant caution that I am dealing with the present matter keeping in view the observations of the Supreme Court ... (on the role of) the Prime Minister as was observed in (the 2G spectrum case filed by Subramanian Swamy against Singh). The Supreme Court, while discussing the role and position of the Prime Minister of the country in the 2G case, observed as under: 'By the very nature of the office held by him, Respondent 1 (the Prime Minister) is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers.

'Unfortunately, those who were expected to give proper advice to Respondent 1 (the Prime Minister) and place full facts and legal position before him failed to do so. We have no doubt that if Respondent 1 (the Prime Minister) had been apprised of the true factual and legal position regarding the representation made by the appellant, he would have surely taken appropriate decision....'"

Judge Parashar then drew a distinction between the coal and 2G cases. "The present case stands on a different footing as here, Dr Manmohan Singh did not act in the capacity of a Prime Minister but as a minister for coal. Undoubtedly, from the very nature of office held by him, the Prime Minister of a country cannot personally look into the minute details of each and every case placed before him and has to depend upon his advisers and other officers.

"However, in the present case, Dr Manmohan Singh chose to keep the coal portfolio with him and thus, prima facie, he cannot claim that being the Prime Minister he could not be expected to personally look into the minute details of each and every case."

What about industrialists?

While quashing a case against Bharti Cellular MD Sunil Mittal, the Supreme Court had said that a person ought not to be dragged on the ground of vicarious liability merely because a complaint has been filed against him.

But Judge Parashar explained today: "I am of the considered opinion that the facts of the present case cannot be put on a par with the said case as in the present case Kumar Mangalam Birla played an active role by tapping his bureaucratic and political channels in order to secure allocation in favour of Hindalco."

What is the likely impact of the summons to Singh?

Both the Narendra Modi government, during whose tenure in September 2014 the CB> court rejected it, and industry are worried.

The government does not want decisions to be held for fear of judicial intervention.

Industry chamber CII said the court "is absolutely within its rights to proceed on legal course, (but) industry would like to see that investor and the business community at large do not get the wrong signal on such matters and the way these are handled".

"Such judicial orders create uncertainty and anxiety in the minds of investors and dissuade businesses from investing in the country and take forward the 'Make in India' initiative," the CII added.

It added that reputations of institutions and individuals take years to build and can be easily destroyed by actions if they are not well thought through.

WHAT THE COURT SAID ABOUT THEM

Excerpts, some of them paraphrased, from the order of special CBI judge Bharat Parashar on the allocation of the Talabira-II coal block in Odisha in 2005