The journey of rail from the legendary ‘Sahib, Sultan and Sindh,’ three steamed locomotives which pulled twenty four carriages from Bori Bunder to Thane in April 1853 to 1997 when the total track length of railways running into 67,368 kilometers, recently experienced the salubrious touch of privatization when a train in the name of ‘Tejas Express’ started its journey on 24th May 2017.

In order to monetize the idle time of tracks, the Government of India adopted a policy inter alia envisaging as under:

  1. This is the first initiative for private investment in running passenger trains on the Indian Railways’ network. It began last year with the Indian Railway Catering and Tourism Corporation (IRCTC) introducing the Lucknow-Delhi Tejas Express.
  2. The project would entail a private sector investment of about Rs 30,000 crore.
  3. The 109 origin-destination routes have been formed into 12 clusters. Each train shall have a minimum of 16 coaches.
  4. Majority of these modern trains are to be manufactured under ‘Make in India’ and the private entity will be responsible for financing, procuring, operating and maintaining these trains
  5. Trains will be designed for a maximum speed of 160 kmph. There would be a substantial reduction in journey time.
  6. The running time taken by a train will be comparable to or faster than the fastest train of the Indian Railways operating on the respective route.
  7. The concession period for the project will be 35 years and the private entity will pay Indian Railways fixed haulage charges, energy charges as per actual consumption and a share in gross revenue determined through a transparent bidding process.
  8. These trains will be operated by the driver and guard of the Indian Railways. Operation of trains by the private entity will conform to the key performance indicators like punctuality, reliability, upkeep of trains, etc.
  9. Operation and maintenance of the passenger trains would be governed by standards and specifications, requirements specified by Indian Railways.
  10. The entire process of handing over certain routes to private players will be completed in two parts. The first started on July 1 with an invite for RFQs, wherein private bidders will qualify. The second step will be a Request for Proposal (RFP). The details of revenue generation and routes will be decided during the latter process.
  11. Aimed at offering airline-like services to train passengers, the national transporter said private players, apart from fixing fares, have to also provide facilities like catering, cleaning and supply of bedding to passengers.

The aforesaid policy is an avant garde financial planning model which is vitally needed to push the financial health of railways to a stable and robust status for the betterment of the nation. The policy also ensures that while public at large is benefitted by additional trains available for their travel, no investment is incurred by the Government for creating infrastructure.

The recent political narratives against the issue of privatization of railways is built in dried relics of socialism which are deeply embedded in the edifice of Indian democracy. Socialism, an undefined expression, is embossed in the Preamble of the Constitution of India through 42nd Amendment. An eminent jurist, while explaining the concept of socialism in the context of Indian Constitution, aptly said that socialism is to social justice what a ritual is to religion and dogma is to truth. ‘Socialism’ as imbued in the Constitutional scheme in India can also be explained as ‘leanings of Gandhian Socialistic thoughts’. However, one can also notice presence of ambivalence in the context of constitutionally defined predilections relating to economic policies which are considered to be the foundation of Socialistic philosophy in the Constitution. The political ambivalence, while standing on the edge of political choice between communism and capitalism resulted in a subtler path of Socialism. The hard and radical challenges of communism on one hand and political timidity to reject the same on the other led to the nebulous concept of Indian version of Socialism which was originally insinuated in the Part IV of the Constitution of India.

The vague and politically vulnerable concept of socialism converted the government and public sector organizations into political symbols of socialism. Whenever a prudent financial planning indicated a change in the existing and archaic models of public administration, such symbols were turned into a locus of protest by the hardcore ideologues of socialism against the government. The public sector and the government sector entrenched in such symbolism of a theistic status remained immune to reforms for a long stretch of time in the journey of democracy. Thus, the organizations literally turned into cesspits of inefficiency and insensitivity even to the bare standards of public service for which the departments and organizations were created by the State. Many such organizations literally collapsed and were wiped out, resulting in loss of massive State wealth.

Railways also falls in the shadows of political theism with symbols and flags of socialism fixed on its 67,368 kilometers of tracks spread across the length and breadth of the nation.

The value of the asset i.e. the Railway tracks is monumental in size. The asset remains partly utilized and also remained idle for want of trains. In this regard, it is stated that Indian Railways has 13,452 passenger trains. The number of travelers by trains is 23 million per day and the passenger load is increasing with each passing day. Apparently, a large number of additional trains is also the necessity of the day to meet the current demands.

The train moving on the track is followed, in the normal course by another train after gap of substantial time. This idle time of the tracks has always remained unaddressed area in the loss assessment on the basis of poor ‘return on investment’ rule of financial management.

The fire and heat of political criticism of the said policy is based on fuel comprised of ideas, slogans, placards, notions, principles and opinions about the perceived sacrilege of ‘socialistic principles’ enshrined in the constitution of India. Thus to have a fair understanding of the political  points and counterpoints, an apercu of  the ideals socialism as interpreted by the courts in India needs to be kept at the hindsight. To facilitate a fair scrutiny of the issues a conspectus of judicial exposition of concept of Socialism, the Courts had occasions to dwell over the philosophy of Socialism and expressed their distilled wisdom in the well worded expressions from time to time.

The Supreme Court in Excel v Union of India  ( AIR 1979 SC 25  ) expounds the concept of socialism as under ;

“The concept of socialism or a socialist State has undergone changes from time to time, from country to country and from thinkers to thinkers. But the basic concept still holds the field. The difference pointed out by supreme court in earlier case ( Akadashi Padhan v State of Orissa, AIR 1963 SC 1047 ) between the doctrinaire approach to the problem of socialism and pragmatic approach is very apt, and may enable the courts to lean more and more in favour of nationalism and State ownership of an industry, after addition of the word socialist in the Preamble of the constitution. But at the same time the Supreme Court posed a pertinent question – “can it be pushed to such an extreme so as to ignore completely the interests of another section of public, namely the private owners of undertakings?”.

The Supreme Court replied the question posed to itself in the negative and upheld the fundamental rights of private owners of industry.

In D S Nakra v Union Of India (AIR 1983 SC 130), Justice Desai observed as under;

“Though there word ‘socialist’ was not originally incorporated in the Preamble to the Constitution, the idea of Socialist goal was imprinted in Articles 38 and 39 of the Constitution.  The objects of these Articles are to usher in a socialist state by gradual improvement of the masses through social and economic justice secured to the masses. The principle aim of the socialist State as envisaged in the Preamble is to eliminate inequality in the income and status and decent standard of life. The basic framework of socialism is to provide a decent standard of life to the working people and specially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income. This blend of Marxism and Gandhism leaning heavily towards Gandhian socialism. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fulfillment of goal every State action taken must be directed and must be so interpreted as to take the society one step towards the goal.”

In State of Tamil Nadu v Abu Kavur Bai , AIR 1984 Sc 326 , Supreme court , inter alia, observed as under ;

‘What is meant by socialism in India is not socialism of Marxian brand. That is why Pandit Nehru avoided the word socialism and introduced the expression ‘socialist pattern of society’ which meant equal opportunity to each individual for progress. On the economic front gradual nationalization of, and State control over, industries. To facilitate gradual State control over industries, the ideal now set up in the Preamble will help the process”.

In G B Pant University of Agriculture and Technology v State of UP 2000 AIR SCW 2870 , the court observed that : “the concept of Socialism is to end poverty, ignorance, disease and inequality of opportunity. Such concept ought to be implemented in the true spirit of constitution. Social justice is the order and economic justice is rule of the day”.

Justice Sabyasachi Mukheriji, in National Engineering Industries Ltd. v Shri Kishan Bhageria, 1988 Supp SCC 82, para14 touched the lyrical strands of Socialism while holding that “As poet Tennyson observed- “freedom broadens from precedent to precedent” so also it is correct to state that social welfare and labour welfare’ broadens from legislation to legislation in India.”

Identically Justice V.R. Krishna Iyer In Mohd. Aslam v. State of U.P., (1976) 4 SCC 283, para 16  adopted a larger canvass to portray the philosophy of Socialism by observing that “The popular art of helping oneself to public money, in little bits or large slices, is an official pathology whose pernicious spell has proliferated with the considerable expansion in institutions of public welfare and expenditure for rural development.” And again in State of Karnataka v . Shri Ranganatha Reddy, (1977) 4 SCC 471, para 54, the jurist judge enlightened the darker patches on the path of Socialism through his aphoristic style of interpretation through these words- “Ideas of Old Order on “public purpose”, illusory compensation, nexus doctrine and “distributed to subserve the common good” should not reduce lofty constitutional considerations into “hollow concepts, tea cup debates and impotent ideas (which) debase modem jurisprudence” and are “intellectually subversive”, to use the indignant expressions of John Batt, Nietzsche once said: “great problems are in the streets”, Abraham Lincoln warned that “the dogmas of the quiet past are no longer adequate to the stormy present”. Our legal doctrines, canon of interpretation and constitutional attitudes must therefore take note of this adaptational potential and response to realities.”

The issue of so-called sacrilege in the temple of ‘social justice’ is often tilted politically into ‘nationalization versus privatization’ debates in public spheres. This restrictive spectrum of deliberations per se operates as a trap laid, nay, mischievously installed, on the terrain of logic, constitutional ethos and constitutional morality to necessarily result in futile conclusions.

It needs to be courageously acknowledged that when the theme of the public debate is cautiously confined only to ‘nationalization versus privatization’ it turns intrinsically  misleading and irrelevant, in as much as the stench and squalor of the real-time cesspools of inefficiency, abysmally low levels of public service and zero-accountability performance scenario  into which all the wings of the  government and public sectors are fast sinking in full public view, remain extraneous to the subject chosen for debate. Closure of large number of public sector entities over past seven decades of independent India, mergers of many as a last ditch effort to save them from  inglorious mortality, unjustified induction of  huge public funds as first-aid doses to these ill-managed entities from fragile financial  health are just few instances which remain unnoticed due to dangerous ‘appeasement culture’ in politics. In fact these loud and desperate reminders call upon ‘we the people of India’ to avoid the deification of inefficiency and hubris of the bureaucracy and rise above empty symbolism overshadowing ‘ nationalization versus privatization’ politics in Indian Democracy.

The questions that need to be answered are:

  1. Is privatization an anathema to progress of nation and to the concept of Social Justice ?
  1. Can any economic model be perpetually tested only on the parameters of employee-centric considerations under the politically generated illusion of ‘social justice’, regardless of vital factors of efficiency , public service and prudence qua resource –utilization, which indeed are relevant for all the stake holders in any functional model?

These questions need to be answered in the thoughtful serenity of ‘A quoi bon dire’ (A poem by Charlotte Mew, signifying ‘What good is there to say’). A debate or deliberation on any political issue must be moderated by the tranquil thought of ‘What good is there to say’ in the context of social welfare and not actuated by the usual cacophony of ‘punch and jab’ vulgarity in the crowded streets of democracy. In the emerging political order of the world today, only the empowered, sane and prudent will survive as sovereign and progressive States. The ‘others’ would, regardless of nature and complexion of their internal political turmoils, be left almost stranded by fellow-states in the present-day form of hebephrenic societies like: Syria, Yemen, Somalia, Argentina, Brazil etc.

The aforesaid two questions in the limited context of this avant garde policy of the Railway Ministry must be answered before acceptance or rejection of the Policy.

The Policy, as such, is not in antagonism with any principles of Socialism or any tenet of Social Justice, which the highest Court of the land, in its deliberations, has spelled out so far.

It is not out of place to mention that when privatization in the education sector was introduced, a challenge by the status quoists against the said policy was rejected by the Hon’ble Supreme Court in Unni Krishnan v State of A.P (1993) 1 SCC 645. Hon’ble Supreme Court in the said judgment held that it would be unrealistic and unwise to discourage private initiative in educational facilities, particularly for higher education. However, certain standards to ensure that private initiative actually results in improved infrastructure were stipulated as the basic factors which private players required to ensure.

To treat private investment in the context of the Policy as poisonous weeds in the verdant fields of Social Justice is erroneous not only in the domain of law but also in the realm of economics and public policy. Privatization, in its full fledged form, already exists in the banking sector and in other infrastructural sectors such as electricity, National Highways as well as sports, etc. There is no single valid reason, howsoever remote, to equate such policy initiative with racketeering or high sea piracy as is being projected in the toxic narratives by some political groups in the social media.

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