Whatever else the Controller and Auditor General of India may have achieved in exposing the 2G and Coalgate scams, he has certainly introduced us to a new vocabulary of criminal law. Here’s a sampler.

In November 2010, the CAG reported that by failing to auction spectrum in a transparent manner, depending on the assumptions you are willing to make, the Central Government had caused a ‘presumptive loss’ to the exchequer of between Rs. 45,614 Crores and Rs. 1.39 Lakh Crores. Gratifying as the admission of ‘presumption’ was, it remained unclear exactly how this was a ‘loss to the exchequer’. Recall that India had originally auctioned telecom licenses in 1995 to outrageously exaggerated bids. Mobile service unveiled at Rs. 16 a minute, a price point so absurd that the Government had no choice but to bail out the nascent industry by converting those mind boggling license fees into revenueshares. At the time, I don’t recall anyone talking about ‘presumptive losses to the exchequer’. Indeed, you would be off the reality curve to make that argument today because arguably, the Government has over the years made more money directly and indirectly taxing telecom companies than the telecom industry has made profits! The Finance Ministry will probably make even more money before the Vodafone Vortex is vanquished. In the larger scheme of things, it is inconsequential that Telecom Minister Sukh Ram was convicted of corruption for having a trunk load of money under his bed.

Bear also in mind that India subsidizes food for the poor, electricity for farmers and diesel for SUV drivers. In one way or another, every budgetary sop is a ‘presumptive loss’ to the exchequer. All laws favour someone and hurt someone else. Just because they hurt the government’s pocket doesn’t make them criminal. I have much more to say on this subject in my recently released new book ‘Bullshit Quotient: decoding India’s corporate, social and legal fine print’ (Hachette 2012) so I will move on toanother term that has found itself into our criminal lexicon.

In March this year, CAG put out a draft report stating that private parties had received a ‘presumptive gain’ of Rs 1.86 lakh Crore because coal blocks were allotted to private parties without public auctions. Lost in the god awful din of hyper ventilating talk show hosts on TV was the fundamental fact that the Coal Mine (Nationalization) Act 1973 makes two exceptions to the State’s monopoly over coal: (a) captive use in specified industries including iron and steel, and (b) isolated coal blocks or those too small to mine economically. Given our power woes and developmental ambitions, every government since 1993 has allotted coal blocks to private power projects and similar. That apart, under the Mines and Minerals Development and Regulation (MMDR) Act, 1957, applicants for mining licenses must be recommended by state governments who have jealously guarded this right. Legislative amendment is necessary to change this and Parliamentary stalemate being what it is in the last two years, we will surely do this as easily as breed pigs with wings. Notwithstanding the underlying ‘presumption’, the result of this report was a CBI registered FIR and an on-going investigation. This is deeply disturbing.

I am not for a moment suggesting that these, that, or all for that matter all, coal block allocations were not preceded by corresponding benefit to specific politicians. MadhuKoda’sRs 2000 Crores kickback is too recent to forget. Clearly, a whole generation of carpet baggers have gone from rags to riches overnight ridingon the back of great skill in converting under-priced public assets into private wealth in exchange for bribes to powerful politicians.

The core legal point here concerns the direction our judicial structure is taking. Georg Wilhelm Friedrich Hagel argued that nothing final can be said of any era till that era has ended. As lawyers and intellectual elites, our task is to be alert to flows of events that take us away from the civil society we are trying to build. Given the scam fixated mind-set that has seeped into national consciousness, we cannot but distrust the idea that law can presumes a bunch of facts and uses that to register an FIR which accused persons are then called on to defend. When you get past the high decibel rhetoric, what you have here is a political paradigm transforming into a criminal process on the basis of ‘presumptive’ legal facts. This should concern us all because we are all potential victims of such presumptive crimes. I am deeply concerned that if Mr P Chidambaram should see it fit to reduce my income tax like he did the last time he was Finance Minister, the presumptive gain to me will be the basis of a police investigation. It’s scary.