Criminal laws in India by way of “sanctions” allow for protective discrimination in favour of public officials.[1] Under various laws, sanctions are required to investigate and prosecute public officials. Over the past 15 years these provisions of law have been revisited by the judiciary and the legislature. Recently the Supreme Court in the Subramanian Swamy Case has suggested the concept of a deemed sanction. We look at the history of the requirement of sanction under criminal laws. Requirement of sanction to investigate certain public servants of the union government was introduced through a government notification[2]. The Criminal Procedure Code 1973 and the Prevention of Corruption Act 1988 provide that to prosecute a public servant, permission or sanction has to be secured from the government (central or state) for which the official works. Arguments that are often advanced in favour of such sanctions are that these ensure that (a) frivolous and vexatious cases are not filed, (b) public officials are not harassed, and (c) the efficacy of administrative machinery is not tampered with. Further, the requirement of sanction to investigate was also defended by the government before the Supreme Court in certain cases. In Vineet Narain vs. Union of India 1997[3], the government had argued that the CBI may not have the requisite expertise to determine whether the evidence was sufficient for filing a prima facie case. It was also argued that the Act instituting the CBI, Delhi Special Police Establishment Act 1946 (DSPE Act), granted the power of superintendence, and therefore direction, of the CBI to the central government. The Court in this case struck down the requirement of sanction to investigate. It held that “supervision” by the government could not extend to control over CBI’s investigations. As for prosecution, the Court affixed a time frame of three months to grant sanction. However, there was no clarity on what was to be done if sanction was not granted within such time. Following that judgment, the DSPE Act was amended in 2003, specifically requiring the CBI to secure a sanction before it investigated certain public servants. More recently, the Lokpal and Lokayukta Bill, 2011 that is pending before the Rajya Sabha, removed the requirement of sanction to investigate and prosecute public servants in relation to corruption. Recently, Mr. Subramanian Swamy approached the Supreme Court for directions on his request for sanction to prosecute Mr. A Raja in relation to the 2G Scam. As per the Supreme Court, judgment in Subramanian Swamy vs. Dr. Manmohan Singh & Anr, Mr. Swamy’s request was pending with the department for over 16 months. The Supreme Court held that denial of a timely decision on grant of sanction is a violation of due process of law (Right to equality before law read with Right to life and personal liberty). The Court reiterated the three month time frame for granting sanctions. It suggested that Parliament consider that in case the decision is not taken within three months, sanction would be deemed to be granted. The prosecution would then be responsible for filing the charge sheet within 15 days of the expiry of this period.
[1] Subramanian Swamy vs. Dr. Manmohan Singh & Anr. Civil Appeal No. 1193 of 2012 dated January 31, 2012
[2] Single Directive, No. 4.7.3
[3] AIR 1998 SC 889
Recently, the Indian Railways announced rationalisation of freight fares. This rationalisation will result in an 8.75% increase in freight rates for major commodities such as coal, iron and steel, iron ore, and raw materials for steel plants. The freight rates were rationalised to ensure additional revenue generation across the network. An additional revenue of Rs 3,344 crore is expected from such rationalisation, which will be utilised to improve passenger amenities. In addition, the haulage charge of containers has been increased by 5% and the freight rates of other small goods have been increased by 8.75%. Freight rates have not been increased for goods such as food grains, flours, pulses, fertilisers, salt, and sugar, cement, petroleum, and diesel. In light of this, we discuss some issues around Railways’ freight pricing.
Railways’ sources of internal revenue
Railways earns its internal revenue primarily from passenger and freight traffic. In 2016-17 (latest actual figures available), freight and passenger traffic contributed to about 63% and 28% of the internal revenue, respectively. The remaining is earned from miscellaneous sources such as parcel service, coaching receipts, and platform tickets.
Freight traffic: Railways majorly transports bulk freight, and the freight basket has mostly been limited to include raw materials for certain industries such as power plants, and iron and steel plants. It generates most of its freight revenue from the transportation of coal (43%), followed by cement (8%), food-grains (7%), and iron and steel (7%). In 2018-19, Railways expects to earn Rs 1,21,950 crore from its freight traffic.
Passenger traffic: Passenger traffic is broadly divided into two categories: suburban and non-suburban traffic. Suburban trains are passenger trains that cover short distances of up to 150 km, and help move passengers within cities and suburbs. Majority of the passenger revenue (94% in 2017-18) comes from the non-suburban traffic (or the long-distance trains).
Within non-suburban traffic, second class (includes sleeper class) contributes to 67% of the non-suburban revenue. AC class (includes AC 3-tier, AC Chair Car and AC sleeper) contributes to 32% of the non-suburban revenue. The remaining 1% comes from AC First Class (includes Executive class and First Class).
Railways’ ability to generate its own revenue has been slowing
The growth rate of Railways’ earnings from its core business of running freight and passenger trains has been declining. This is due to a decline in the growth of both freight and passenger traffic. Some of the reasons for such decline include:
Freight traffic growth has been declining, and is limited to a few items
Growth of freight traffic has been declining over the last few years. It has declined from around 8% in the mid-2000s to a 4% negative growth in mid-2010s, before an estimated recovery to about 5% now.
The National Transport Development Policy Committee (2014) had noted various issues with freight transportation on railways. For example, Indian Railways does not have an institutional arrangement to attract and aggregate traffic of smaller parcel size. Further, freight services are run with a focus on efficiency instead of customer satisfaction. Consequently, it has not been able to capture high potential markets such as FMCGs, hazardous materials, or automobiles and containerised cargo. Most of such freight is transported by roads.
The freight basket is also limited to a few commodities, most of which are bulk in nature. For example, coal contributes to about 43% of freight revenue and 25% of the total internal revenue. Therefore, any shift in transport patterns of any of these bulk commodities could affect Railways’ finances significantly.
For example, if new coal based power plants are set up at pit heads (source of coal), then the need for transporting coal through Railways would decrease. If India’s coal usage decreases due to a shift to more non-renewable sources of energy, it will reduce the amount of coal being transported. Such situations could have a significant adverse impact on Railways’ revenue.
Freight traffic cross-subsidises passenger traffic
In 2014-15, while Railways’ freight business made a profit of about Rs 44,500 crore, its passenger business incurred a net loss of about Rs 33,000 crore.17 The total passenger revenue during this period was Rs 49,000 crore. This implies that losses in the passenger business are about 67% of its revenue. Therefore, in 2014-15, for every one rupee earned in its passenger business, Indian Railways ended up spending Rs 1.67.
These losses occur across both suburban and non-suburban operations, and are primarily caused due to: (i) passenger fares being lower than the costs, and (ii) concessions to various categories of passengers. According to the NITI Aayog (2016), about 77% to 80% of these losses are contributed by non-suburban operations (long-distance trains). Concessions to various categories of passengers contribute to about 4% of these losses, and the remaining (73-76%) is due to fares being lower than the system costs.
The NITI Aayog (2016) had noted that Railways ends up using profits from its freight business to provide for such losses in the passenger segment, and also to manage its overall financial situation. Such cross-subsidisation has resulted in high freight tariffs. The NTDPC (2014) had noted that, in several countries, passenger fares are either higher or almost equal as freight rates. However, in India, the ratio of passenger fare to freight rate is about 0.3.
Impact of increasing freight rates
The recent freight rationalisation further increases the freight rates for certain key commodities by 8.75%, with an intention to improve passenger amenities. Higher freight tariffs could be counter-productive towards growth of traffic in the segment. The NTDPC report had noted that due to such high tariffs, freight traffic has been moving to other modes of transport. Further, the higher cost of freight segment is eventually passed on to the common public in the form of increased costs of electricity, steel, etc. Various experts have recommended that Railways should consider ways to rationalise freight and passenger tariff distortions in a way to reduce such cross-subsidisation.
For a detailed analysis of Railways revenue and infrastructure, refer to our report on ‘State of Indian Railways’.
